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RESOLUTION NO. ac -3
A RESOLUTION OF THE CITY OF PASCO, WASHINGTON
AMENDING RESOLUTION NO 2216 GRANTING A NON-
EXCLUSIVE FRANCHISE FOR THE DELIVERY OF
IRRIGATION WATER TO IRRIGATION WATER, INC
WHEREAS, Resolution No 2216 was approved by the Pasco City
Council on October 2, 1995, such resolution granting to Irrigation
Water, Inc a non-exclusive twenty-five (25) year franchise for the
installation, location, construction, maintenance, operation, use and if
necessary, removal of a pressurized irrigation water system and the
necessary appurtenances thereto, under those portions of any and all
City roadways, streets, alleys and other rights-of-way which lie
within the City of Pasco and set forth within the service area shown
in Exhibit A thereto, and
WHEREAS, both the City and Irrigation Water System, Inc, are
in agreement that the franchise granted under Resolution No 22 1 6
requires amendment to provide substantial disincentive for the
occurrence of any unpermitted cross-connections with the City Water
System or other breach of the Franchise Agreement and to provide
adequate penalties and provision for forfeiture and termination of
the franchise in the event of such circumstances, NOW, THEREFORE,
THE CITY COUNCIL OF THE CITY OF PASCO, WASHINGTON DOES
HEREBY RESOLVE AS FOLLOWS
Section 1 Resolution No 2216 is hereby amended by the
addition of the following section
2.24 Forfeiture and Termination.
(a) In addition to all other rights and powers retained by the
City under this Franchise or otherwise, the City Council
reserves the right to forfeit and terminate the Franchise
and all rights and privileges of the Grantee hereunder in
the event of a substantial breach of its terms and
conditions A substantial breach of Grantee shall include,
but shall not be limited to the following
1 Violation of any material provision of the Franchise
or material rule, order, regulation, penalties, or
determination of the Council made pursuant to the
Franchise
2 Attempt to evade any material provision of the
Franchise or practice any fraud or deceit upon the
irrigation water system customers or upon the City
government
3 Any safety and health risk to the public or
customers, including any violation of City or State
regulations regarding cross-connections to the City
domestic water system
(b) The foregoing shall not constitute a substantial breach if
the violation occurs, but it is without fault of a grantee, or
occurs as a result of circumstances beyond his direct
control such as war, civil disturbance, natural catastrophe
and other acts of God Grantee shall not be excused b y
mere economic hardship, nor by misfeasance or
malfeasance of its directors, officers or employees
(c) In the event of a substantial breach of a Franchise term
or condition, the City may consider the issue of
terminating the Franchise, provided that the City shall
cause to be served upon the Grantee at least twenty (20)
days prior to the date the City is to consider the issue of
termination, a written notice of intent to request such
termination and the time and place of the meeting
Public notice shall be given of the meeting the issue(s)
which the City is to consider
(d) The City Council, or its duly designated representative,
shall hear and consider the issue and shall hear any
person interested therein, and the City Council shall
determine in its discretion whether or not any violation
by the Grantee has occurred
(e) If the City Council shall determine the violation by the
Grantee was the fault of the Grantee and within its
control, the City Council, by Resolution, may declare that
the Franchise of the Grantee shall be forfeited and
terminated unless there is compliance within such period
as the Council may fix, such period shall not be less than
ten (10) days, provided that no opportunity for
compliance need be granted for fraud, misrepresentation
or criminal conduct constituting a gross misdemeanor or
felony violation
(f) The issue of forfeiture and termination shall
automatically be placed upon the City Council agenda at
the expiration of the time set for it for compliance The
Council then may terminate the Franchise forthwith upon
finding that the company has failed to achieve
compliance, or may further extend the period at its
discretion
Section 2 Resolution No 2216 is further amended by the
addition of the following section
2.25 Penalties.
(a) The Grantee agrees not to interfere with the Pasco City
domestic water system and to comply with all City or
State regulations regarding cross-connection to the City
domestic water system, including those outlined in PMC
13 16 110, Pasco Municipal Code as presently in effect, or
hereafter amended If the City determines that the
Grantee has failed to comply with such regulations
regarding cross-connection to the City domestic water
system, the City may assess the Grantee, and the Grantee
agrees to pay the City, a monetary penalty of Five
Thousand and No/100 Dollars ($5,000 00), plus City costs,
for each violation
(b) The Grantee agrees that if the Grantee fails to observe
any obligation under the Franchise, other than the cross-
connection violations covered in (a) above, the City, upon
notice to the Grantee that a breach of the terms and
conditions of the Franchise Agreement has occurred, may
assess the Grantee, and the Grantee agrees to pay to the
City, a monetary penalty of Two Hundred Fifty and
No/100 Dollars ($250 00) per day for each day that the
Grantee fails to correct such breach after receipt of notice
thereof
(c) All assessments under (a) and (b) above shall be paid
within thirty (30) days of written notice Such
assessments shall not constitute a waiver by the City of
any other right or remedy it may have under this
Franchise, including the forfeiture and termination of the
Franchise as outlined in Section B, or under applicable
law, including, without limitation, its right to recover
from the Grantee and its surety such additional damages,
losses, costs and expenses as may have been suffered or
incurred by the City by reason of or arising out of such
breach of this Franchise
Section 3 Resolution No 2216 shall be further amended by the
addition of the following section
Charles D Kilbury, or
2.26 Records and Reports of Grantee.
During the period of the Franchise, the books and records of
Grantee shall contain records of Grantee's water flow from its
wells and pump stations, and its delivery of irrigation water to
its customers The City shall be entitled at any time to inspect
all such records upon the giving of reasonable notice to the
Grantee The Grantee shall further meter all sources and
record the waterflows on a monthly basis, and keep the record
for City inspection up to three (3) years Upon written request
by the City, the Grantee shall provide copies of all flow records
monthly
PASSED BY the City Council of the City of Pasco, Washington at a
regular meeting this /7 day of , 1996
CITY OF PASCO
Attest:
City Clerk
Appr d as to Form:
City Attorney
ACCEPTED BY:
IRRIG
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