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HomeMy WebLinkAbout3373 28ui Kbovbsz35 ORDINANCE NO. 042-23 AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON, GRANTING A NON-EXCLUSIVE FRANCHISE TO THE CITY OF BREMERTON FOR THE PURPOSES OF ALLOWING BREMERTON TO CONSTRUCT, MAINTAIN, OPERATE, REPLACE, AND REPAIR A WATER SYSTEM WITHIN PUBLIC RIGHTS OF WAY OF THE CITY OF PORT ORCHARD, AND FIXING A TIME WHEN THE SAME SHALL BECOME EFFECTIVE. WHEREAS, portions of Bremerton’s water utility facilities are located within the city limits of Port Orchard and occupy portions of the Port Orchard rights of way; and WHEREAS, a portion of the Bremerton water service area is also within the city limits of Port Orchard; and WHEREAS, Port Orchard has requested Bremerton to enter into a water utility franchise for these facilities which will allow Bremerton to install, construct, maintain and operate a water system, including mains, appurtenances and service pipe along, under and across such city roads, streets, avenues, boulevards, alleys and public places hereinafter called “Rights-of Way,” within the city limits of Port Orchard; and WHEREAS, the Port Orchard City Council (“Council”) has authority to grant utility franchises pursuant to RCW 35A.47.040; and WHEREAS, the Parties to this franchise are subject to and participants in the Kitsap County Coordinated Water System Plan (“CWSP”) and pursuant to the CWSP have entered into a long term and mutually beneficial relationship for the provision of both wholesale water to Port Orchard and the provision of residential service directly to consumers in Port Orchard; and WHEREAS, pursuant to the CWSP and this relationship, the Parties have entered into a series of interlocal and other agreements providing for the joint ownership and maintenance of water reservoirs in Port Orchard and other matters relating to the provision of water in Port Orchard by both Port Orchard and Bremerton; and WHEREAS, the ongoing nature of this cooperative relationship for the provision of water by neighboring municipalities pursuant to the CWSP provides the basis for the understandings contained in this ordinance; NOW, THEREFORE, Water Franchise Agreement Page 1 10669603.7 - 366922 - 0036 THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, DOES ORDAIN AS FOLLOWS: SECTION 1. Definitions. Where used in this franchise (the "Franchise") these terms have the following meanings: A. "Port Orchard" means the City of Port Orchard, a Washington municipal corporation, and its respective successors and assigns. B."Bremerton" means the City of Bremerton, a Washington municipal corporation, and its respective successors and assigns. C. “CWSP” means the Kitsap County Coordinated Water System Plan, as the same exists or is hereafter amended. D. “Facility” or "Facilities" means tanks, reservoirs, water treatment facilities, meters, pipes, mains, valves, blow offs, vaults, fire suppression water facilities, risers, generators, electrical control panels, power meters, telephone connections, pressure reducing valves ("PRVs"), pump stations, meter stations, lines, service lines located in the Franchise Area as defined below, and all other necessary or convenient facilities and appurtenances thereto for the purpose of operating a water utility system, whether the same be located over, on or underground. E. "Franchise Area" means all areas that are within boundaries of the City of Port Orchard, as the same exist or are hereafter amended, and are also within Bremerton’s service area as defined by the CWSP and agreements between the Parties and shall include every and all of the public roads, streets, avenues, alleys, highways and rights-of-way of Port Orchard as now or hereafter laid out, platted, dedicated or improved within the Franchise Area. The Franchise Area shall not include or convey any right to Bremerton to install facilities on, or to otherwise use, City owned or leased properties, provided, however, the Parties have a long standing relationship as neighboring jurisdictions providing joint and other water utility services and nothing herein shall be deemed to abrogate or amend any existing contract, easement, or other understanding regarding the provision of water or shared facilities in place at the date of this franchise or hereafter entered into unless specifically set forth herein. F. "Ordinance" means this Port Orchard Ordinance No. 042-23, which sets forth the terms and conditions of this Franchise. G. "Party" or "Parties" means Port Orchard or Bremerton individually, or collectively as addressed in this Franchise. Water Franchise Agreement Page 2 10669603.7 - 366922 - 0036 H.“Routine Maintenance” means miscellaneous maintenance, repair and replacement activities undertaken by Bremerton on Facilities located in the streets and rights-of-way covered by this Franchise. Routine Maintenance includes, but shall not be limited to, flushing mains, video inspection of mains, operations, maintenance, repair and replacement of services, pumps, air-vacs, PRV stations, valves and hydrants, repair of surface areas around existing Facilities, hydro-excavation and potholing, and valve box adjustments. SECTION 2. Grant of Franchise. Port Orchard grants to Bremerton and to its successors and assigns, for the term of ten (10) years from the effective date hereof, the right, privilege, authority and franchise for itself, its successors and assigns, to install, construct, maintain and operate water infrastructure including mains, laterals and service lines along, under and across such Port OrchardRights-of-Way, together with all necessary equipment of every sort necessary, subject to all the terms and conditions herein. This grant shall be solely limited to theCity of Port Orchard’s present or future Rights-of-Way within Bremerton’s Retail Water Service Area, as that service area now exists or as it may be amended or altered in the future (the “Franchise Area”). and does not include other parts of Port Orchard. The term “Rights-of-Way” shall be understood to include any and every Port Orchard city road, street, avenue, alley or other public place designated or specified in this Franchise in, upon, under, over, across and along which rights are, or are intended to be vested in Bremerton, its successors and assigns, under and by virtue of this Franchise, but not to include parks or open space property without specific designation within this Franchise or another written agreement between the Parties. SECTION 3. Automatic Renewal; Termination. This Franchise shall automatically renew for successive 10-year terms unless it is terminated in accordance with this Section. Either Party may terminate this franchise after the initial term for any reason upon 730 days’ advance written notice to the other Party prior to the end of the renewal term. SECTION 4. Area of Franchise/Location of Infrastructure. This Franchise shall apply to those portions of Bremerton’s present and future water lines and appurtenances within the City of Port Orchard’s present or future Rights-of-Way within Bremerton’s Retail Water Service Area, as that service area now exists or as it may be amended or altered in the future (the “Franchise Area”). Upon Port Orchard’s request, Bremerton shall provide a map showing the approximate location of Bremerton’s water infrastructure within the Franchise Area. The Parties acknowledge the need to maintain adequate security measures regarding the location of water facilities and wish to avoid locating critical water facilities in public documents. In the event Port Orchard desires to design new streets or intersections, renovate existing streets, or make other public improvements, Bremerton will reasonably cooperate with the planning effort.Chapter19.122 RCW or other applicable law, with respect to determining the location of utility facilities prior to construction,shall control the marking and/or location of facilities and shall define the parties'respective obligations. SECTION 5. Operation and Maintenance. Bremerton shall be solely responsible for the operation, maintenance, repair, and construction of its utility infrastructure unless provided Water Franchise Agreement Page 3 10669603.7 - 366922 - 0036 otherwise by a written agreement between the Parties. Bremerton shall maintain its facilities located within the Franchise Area in good operating condition and repair in a manner consistent with applicable law and prudent utility practice. SECTION 6. Not an Exclusive Franchise. This Franchise shall not be deemed or held to be an exclusive franchise and shall not in any manner prohibit the Port Orchard Council from granting other and further franchises of any kind or character that it may deem proper, in, upon under, over, acrossand along any Rights-of-Way within the area described herein; provided, that no other franchise granted after this Franchise shall require the removal or relocation of Bremerton’s then existing facilities. No water franchise shall be granted which is not in compliance with the CWSP. This Franchise shall in no way prohibit or prevent the public from using any such Rights-of-Way or any part thereof, or Port Orchard’s power to make all necessary improvements, repairs, orchanges therein. SECTION 7. Regulation of Use and Control. Port Orchard in granting this Franchise does not waive any rights which it now has or may hereafter acquire with respect to Port Orchardroads, Rights-of-Way or other Port Orchardproperty and this Franchise shall not be construed to deprive Port Orchard of any powers, rights or privileges which it now has or may acquire to regulate the use of and to control Port Orchard roads, Rights-of-Way and any other Port Orchard property covered by this Franchise. SECTION 8. Compliance with applicable laws and regulations. The Parties to this Franchise agreement shall at all times adhere to applicable local, state, and federal law and to the provisions of the CWSP. In the event of ambiguity or conflict, interpretation of this franchise ordinance shall be informed by the CWSP and the interlocal and other agreements between the Parties relating to the provision of water or water service by Bremerton within the boundaries of Port Orchard. SECTION 9. Vacation. If at any time Port Orchard shall vacate any Port Orchard road, Rights- of-Way or other Port Orchard property which is subject to rights granted by this Franchise, Port Orchard shall not be liable for any damages or loss to Bremerton by reason of such vacation, provided that Port Orchard shall as a condition of the vacation, reserve an easement perpetuating Bremerton’s right to continue the use of the area for the operation and maintenance of its Facilities. SECTION 10. Indemnification. Bremerton shall indemnify, defend and hold harmless Port Orchard, and its officers, officials, boards, commissions, agents and employees (hereinafter in this Section “Port Orchard”) from any action, claim, damage, loss, liability, cost or expense, including court and appeal costs and reasonable attorneys’ fees and expenses, arising from any action, neglect, omission or inaction of Bremerton or its agents or employees including, but not limited to, delays on construction projects caused by or arising out of Bremerton’s failure to relocate its facilities in a timely manner, or the condition of any of its facilities, provided, however, that nothing herein shall require Bremerton to indemnify or hold harmless Port Orchard from any intentional or reckless tortious or criminal act. Bremerton shall consult and cooperate with Port Orchard while Water Franchise Agreement Page 4 10669603.7 - 366922 - 0036 conducting its defense of Port Orchard. If any such claim or demand is subject to RCW 4.24.115 and caused by or results from the concurrent negligence of (a) Port Orchard, its elected or appointed officials, or its agents or employees and (b) Bremerton, or its agents or employees, then in such event the defense and indemnity provisions shall be valid and enforceable only to the extent of Bremerton’s negligence. Port Orchard shall give Bremerton written notice as provided below of any claim or of the commencement of any action, suit or other proceeding covered by the indemnity in this Section. If a claim or action arises, Port Orchard or any other indemnified party shall then tender the defense of the claim to Bremerton as soon as feasible with a goal of tendering to Bremerton within ten(10) business days of receipt of such notice, which defense shall be at Bremerton’s expense. Bremerton may not agree to any settlement of claims financially affecting Port Orchard without Port Orchard’s prior written approval, which approval shall not be unreasonably withheld. If separate representation to fully protect the interests of both parties is necessary, such as a conflict of interest between Port Orchard and the counsel selected by Bremerton to represent Port Orchard, Bremerton shall pay the expenses incurred by Port Orchard in defending itself with regard to any action, suit or proceeding indemnified by Bremerton. Port Orchard’s expenses shall include all out of-pocket expenses that are necessary for Port Orchard’s defense, such as consultants’ fees, and shall also include the reasonable value of any services rendered by Port Orchard Attorney or any employees of Port Orchard or its agents but shall not include outside attorneys’ fees for services that are unnecessarily duplicative of services provided Port Orchard by Bremerton. This section shall survive the termination of this Franchise Agreement. SECTION 11. Insurance. A. General requirement. Each Party shall have and maintain adequate insurance or participate in an insurance authority during the entire term of this Franchise (and for a period of twelve \[12\] months thereafter) to protect itself against claims for death or injuries to persons or damages to property or equipment which in any way relate to, arise from or are connected with this Franchise or the use of Port Orchard’s rights-of-way, or their respective officials, agents, representatives, contractors, subcontractors and their employees. Bremerton’s insurance shall also protect Port Orchard for claims as described herein that arising from or are connected with this Franchise. B.Verification of Coverage. The Parties will provide each other withanEvidenceof Coverage Letter. The Evidence of Coverage is to be signed by a person authorized to bind coverage on its behalf. TheEvidence of Coverage lettermust be consistent with standard industry practices and is to be provided to Port Orchard upon acceptance of this Franchise. The Parties hereby warrant that itsrespective liabilitycoverage satisfy the requirements of this Franchise. Water Franchise Agreement Page 5 10669603.7 - 366922 - 0036 SECTION 12. Requirement for Construction Permits. Bremerton and its successors, assigns, or contractors shall have the right and authority to enter upon Port Orchard roads and Rights-of-way described herein for the purpose of constructing, extending, repairing or replacing, servicing and/or operating and maintaining its lines and facilities and connecting the same with consumer service lines, upon the condition that prior to such work within Port Orchard roads or Rights-of-way, Bremerton shall first obtain the necessary permits approved by Port Orchard and shall pay all applicable fees. Bremerton agrees to use best efforts to notify contractors or other parties who will be performing work on the Bremerton Facilities within the Franchise Area of the requirement to obtain permits from Port Orchard prior to commencing work. Before any work is performed, applications for said permits shall first be presented to the Port Orchard Permit Center which may require copies of plans, profiles, cross-sections, specifications, or such further detail of the work to be done as is or may be required by ordinance in other instances. Such work, whether done by Bremerton, or its contractors, shall include necessary paving, patching, grading and any other reasonable and necessary repair or restoration of Port Orchard roads or Rights-of-way and shall be to Port Orchard City Standards and the reasonable satisfaction of Port Orchard. Any third party seeking to connect to the Bremerton water system and not acting as a contractor or agent of Bremerton shall be responsible for acquiring all necessary permits at its expense from Port Orchard. All permits for work to be performed by Bremerton’s forces shall be applied for and given in the name of Bremerton who shall be held responsible for all work done thereunder, and Port Orchard shall waive bonding. Work performed on behalf of Bremerton by its contractors shall be undertaken in the name of the contractor which shall fully bond for its work. The preservation of monuments and markers shall be undertaken in compliance with Chapter 332- 120 WAC. If Bremerton or its contractors obtain bonding for work performed by others in Port Orchard within the Franchise Area, Port Orchard shall be named as an additional obligee on said performance bonds. In the event of an emergency in which Bremerton’s facilities within the Franchise Area are in a condition as to immediately endanger property, life, health or safety, Bremerton may take action immediately to correct the dangerous condition without first obtaining permits so long as permits are obtained as soon as practicable thereafter. Bremerton will notify Port Orchard of the nature of the emergency and the work to be performed prior to or at the commencement of the work, if reasonably possible. In the case of damage to the Rights-of-Way caused by Bremerton or its construction contractors, Bremerton agrees to repair the damage at its own expense and to restore the Rights-of-Way consistent with Section 16 below. Water Franchise Agreement Page 6 10669603.7 - 366922 - 0036 SECTION 13. Providing “As Built” Drawings. Bremerton or its agent shall maintain on the jobsite project plans marked to indicate plan revisions made in the field and other details of construction. The drawings shall be made available upon completion of the project to Bremerton for use in preparation of “as built” records. Bremerton shall be responsible for the cost of any required “as-built” drawings. A copy of these “as built” drawings shall be provided to Port Orchard. Bremerton shall be responsible for and present to Port Orchard “as built” records for any work done in the franchise area during the term of this franchise. SECTION 14. Notification to Cencom. If it is necessary to shut down or diminish water pressure so that fire hydrants may be affected, Bremerton shall ensure thatCencomis promptly notified in advance. In addition, when Bremerton will be flushing a portion of its system in Port Orchard or has a service outageor other shut down or reduction in its system, Bremerton Operations will notify Port Orchard Operations by phone or emailas soon as feasible. Port Orchard’s Operations telephone number is 360-845-8408 and email is publicworks@portorchardwa.gov. SECTION 15. Restoration of Rights-of-Way. Bremerton shall be responsible for and leave all Port Orchard roads and Rights-of-way in as good of condition, after work on, or under or adjacent to Port Orchard roads or Rights-of-way as the same existed before such work, and in addition such restoration or repair shall be consistent with the applicable City of Port Orchard Public Works Engineering Standards and Specifications. In the event that Bremerton, or its contractors connecting to Bremerton’s lines or facilities under work permit, shall fail to restore Port Orchard roads or Rights- of-way to the condition that pre-existed such work to Port Orchard standards and to the reasonable satisfaction of Port Orchard Public Works Director, Port Orchard may request that Bremerton make the repairs or undertake the restoration, but in any case, Port Orchard reserves the right to make such repairs or restoration to such roads or Rights-of-way. If Port Orchard opts to make the repairs and restoration, then upon presentation of an itemized bill for such repairs or restoration, including the cost of labor and equipment, Bremerton shall pay the said bill within sixty (60) days. SECTION 16. Removal or Relocation of Facilities Installed by Bremerton. Upon any construction or Rights-of-Way work or utility installation by Port Orchard that reasonably necessitates the removal, protection, support, temporary disconnection or relocation (hereinafter “relocation or relocate”) of Bremerton facilities, any of Bremerton’s lines or facilities, erected upon or within any portion of such Rights-of-Way, shall, if necessary, be relocated by Bremerton at its own expense so that it shall not interfere with the work of relocation or change of grade and shall be reset in accordance with the provisions above set forth so that the location and elevation of such line or facility shall conform to the new grade and location of the Rights-of-Way or Port Orchard facilities; provided, that if a third party’s project causes the need for the removal or relocation of Bremerton’s facilities, that third party shall pay for the removal or relocation of Bremerton’s facilities. This provision shall not apply to the second (or more) times a facility is required to be relocated by Port Orchard if such second (or more) relocation occurs within 5 years of a previous relocation of the same facility. Liability for any damages to Bremerton that may occur by reason of Port Orchard’s improvements, repairs, or maintenance or by the exercise of any rights reserved in this section shall be determined in accord with the laws of the state of Washington. Water Franchise Agreement Page 7 10669603.7 - 366922 - 0036 SECTION 17. Applicable Codes. Bremerton agrees that any new water line/facilities installation or replacement or any fire hydrant installationor replacement done pursuant to this Agreement shall meet fire flow and hydrant requirements, including water main looping, as set forth in approved water system plan and standards adopted by Bremerton andas set out in the current or subsequently adopted codes as adopted by Port Orchard: City's Building Code, including the International Fire Code, The CWSP, Chapters 70A and 35.92 RCW, and Chapter246-293WAC; and All other applicable state statutes regarding water works specifications and design. Work on, in, under, over or across the Port Orchard rights-of-way shall meet all codes and standards adopted by the City of Port Orchard, including the Port Orchard Municipal Code and the Port Orchard Public Works Engineering Standards and Specificationsprovided, however, that Bremerton’s water supply system shall be constructedto its standards and specifications. SECTION 18. Joint Planning Work. A.The Parties agree to participate in the development of, and reasonable updates to, the other Party's planning documents as follows: (1) For Bremerton’s service area within Port Orchard city limits, Bremerton will respond in a timely and reasonable matter to requests for information from Port Orchard in developingPort Orchard’s Comprehensive Plan Utilities Element that meets the requirements described in RCW 36.70A.070(4). (2) Bremerton agrees that upon request by Port Orchard, it will provide timely review and input of thePort Orchard Comprehensive Plan Utilities Element as it relates to Bremerton’s operations. (3) Bremerton shall submit information related to the general location, and proposed location of all existing and proposed Facilities within Port Orchard as requested by Port Orchard within a reasonable time, not exceeding sixty (60) days from receipt of a written request for such information, provided that such information is in Bremerton’s possession, or can be reasonably developed from the information in Bremerton’s possession. (4) Port Orchard will provide information relevant to Bremerton’s operations within sixty (60) days of written request to assist Bremerton in the development or update of Bremerton’s Water Comprehensive Plan(s) and/or Utilities Plan Element, provided that such information is in Port Orchard’s possession, or can be reasonably developed from the information in Port Orchard’s possession. Water Franchise Agreement Page 8 10669603.7 - 366922 - 0036 B.Bremerton and Port Orchard shall each assign a representative whose responsibility shall be to coordinate planning for capital improvement plan projects including those that involve undergrounding. At a minimum, such coordination shall include: (1) For the purpose of planning, Bremerton and Port Orchard shall provide each other with a copy of their respective current adopted Capital Improvement Plan upon request by the other Party. (2) At least annually, Bremerton shall provide Port Orchardwith a schedule of Bremerton’s planned capital improvements which may affect the Port Orchard rights-of-way for that year. (3) At least annually, Port Orchard shall provide Bremerton with a schedule of Port Orchard’s planned capital improvements which may affect the rights-of-way within the Franchise Area over the next twelve (12) month period including but not limited to street overlays and repairs, storm drainage improvements and construction, and all other rights- of-way activities that could affect Bremerton’s capital improvements and infrastructure. (4) Bremerton shall meet with Port Orchard, as reasonably necessary, to schedule and coordinate construction activities. (5) All construction locations, activities, and schedules shall be coordinated to minimize public inconvenience, disruption, or damages. (6) Port Orchard and Bremertonagree to cooperate in the planning and implementation of emergency operations response procedures. (7) Without charge to either Party, both Parties agree to provide each other with as-built plans, maps, and records in electronic format as available that show the location of its facilities within rights-of-way. (8) The Parties agree to meet periodically as needed to coordinate planning as described herein. SECTION 19. Shared Use of Excavations. A. Port Orchard and Bremerton shall exercise best efforts to coordinate construction work either Party may undertake within the Franchise Area so as to promote the orderly and expeditious performance and completion of such work as a whole. Such efforts shall include, at a minimum, reasonable and diligent efforts to keep the other Party and other utilities within the Franchise Areas informed of its intent to undertake such construction work. Port Orchard and Bremerton shall further exercise best efforts to minimize any delay or hindrance to any construction work undertaken by themselves or other utilities within the Franchise Area. B. If at any time, or from time to time, either Bremerton or Port Orchard shall cause excavations to be made within the Franchise Area, the Party causing such excavation to be made Water Franchise Agreement Page 9 10669603.7 - 366922 - 0036 shall afford the others, upon receipt of a written request to do so, an opportunity to use such excavation, provided that: (1) No statutes, laws, regulations, ordinances, or Bremerton policies prohibit or restrict the proximity of other utilities or facilities to Bremerton’s Facilities installed or to be installed within the area to be excavated; (2) Such joint use shall not unreasonably delay the work of the Party causing the excavation to be made; and (3) Such joint use shall be arranged and accomplished on terms and conditions satisfactory to both Parties. The Parties shall each cooperate with other utilities in the Franchise Area to minimize hindrance or delay in construction. C. Port Orchard reserves the right to not allow open trenching within any Port Orchard street within five (5) years following a street overlay or improvement project; however, Bremerton may open trench provided it grind and overlay a minimum distance of fifty (50) feet each side of the excavation. Bremerton shall be given written notice at least one hundred eighty (180) days prior to the commencement of any street overlay or improvement project. D. The laying, construction, maintenance, and operation of Bremerton’s system of lines and facilities granted under this Franchise shall not preclude Port Orchard, its agents, or its contractors grading or doing other necessary roadwork contiguous to Bremerton’s lines and facilities. Port Orchard, its agents or contractors shall be responsible in accordance with Washington law for any and all damage to Bremerton facilities that have been properly located in accordance with Chapter 19.122. SECTION 20. Assignment of Rights to Third Party. Bremerton shall have the right to assign its Franchise with Port Orchard’s consent, which shall not be unreasonably withheld. Provided, however, no such assignment shall be of any force or effect unless written notice of such assignment shall be filed with Port Orchard Clerk within thirty (30) days thereafter, together with an acceptance by the assignee in writing of all the terms, covenants, and conditions of this Franchise and an agreement of such assignee to perform and be bound by all the terms and conditions of this Franchise. All the provisions, conditions, regulations, and requirements herein contained shall be binding upon the successors and assigns of Bremerton, and all privileges, as well as all obligations and liabilities of Bremerton, shall insure to its successors and assigns equally as if they were specifically mentioned wherever Bremerton is mentioned. SECTION 21. Obsolete and Discontinued Infrastructure. Bremerton shall notify Port Orchard when any of its infrastructure subject to this Franchise has been deemed obsolete or its use discontinued. The Parties will confer and may agree to abandon the facilities in place or in the Water Franchise Agreement Page 10 10669603.7 - 366922 - 0036 event that they cannot agree, the facilities shall be removed at Bremerton’s expense within two (2) calendar years of notification unless a shorter time frame is reasonably required to facilitate Port Orchard’s use of its Rights of Way. SECTION 22.Franchise Costs.Given the ongoing nature of the Parties relationship and the revenues generated by the utility tax imposed by Port Orchard, the Parties shall each bear their respective costs incurred in the negotiation and administration of this franchise agreement, including Port Orchard bearing the legal expense of negotiating and drafting this Agreement. SECTION23.Reservation of Rights.Port Orchard reserves the right at any time upon ninety (90) days written notice to Bremerton, to so change, amend, modify, or amplify any of the provisions of its ordinances incorporated pursuant to Section 17and relating to the public health, safety, and welfare. In the event of a change in Washington case law, federal or state statute or regulation that invalidates or makes any term of this franchise illegal or impossible to fulfill, the Parties agree to reopen the negotiation of this franchise to achieve compliance with such law or regulation. Port Orchard specifically reserves for itself the right to impose taxes, use fees, costs, service requirements, or other fees on Bremertonfor the privilege of conducting this business in Port Orchard, for the use of the Port Orchard’srights-of-way, to pay for the costs of regulatingthis activity, or for any other public purpose so long as those taxes, use fees, costs, servicerequirements or other fees, as authorized by law, are imposed by ordinance. A utility tax is currently in effect which Bremerton is paying on Port Orchard business. Port Orchard will provide Bremerton with ninety (90) days’ advance written notice prior to the effective date of any change to such utility tax. Bremerton agrees that it will not challenge the imposition of these taxes to the extent that they only apply to business or activities that are conducted inside the Port Orchard city limits. Bremerton similarly reserves the right and discretion to adopt ordinances that pass these additional costs on to those customers served in the Franchise Area. SECTION 24. Penalty for Violation of Conditions. If Bremerton shall violate or fail to comply with any of the terms, conditions or responsibilities of this Franchise through neglect or failure to heed or comply with any notice given Bremerton under the provisions of this Franchise, the Council may revoke, amend, alter, change, or supplement this Franchise provided, however, that the Council shall give sixty (60) days written notice of its intention to do so, during which period Bremerton shall have the opportunity to remedy the failure to comply; and provided further, that if the failure cannot reasonably be cured in sixty (60) days, Bremerton shall be provided with a reasonable period to cure before any revocation, amendment, alteration, change or supplement shall take effect. No such notice need be given in case of an emergency. This provision shall not preclude any other remedies for noncompliance identified under this Agreement. Water Franchise Agreement Page 11 10669603.7 - 366922 - 0036 SECTION 25. Non-Waiver. The failure of either Party to enforce any breach or violation by the other Party or any provision of this Franchise shall not be deemed to be a waiver or a continuing waiver by the non-breaching Party of any subsequent breach or violation of the same or any other provision of this Franchise. SECTION 26. Alternate Dispute Resolution. If the Parties are unable to resolve disputes arising from the terms of this Franchise, prior to resorting to a court of competent jurisdiction, the Parties may submit the dispute to mediation or other non-binding alternate dispute resolution process agreed to by the Parties. Unless otherwise agreed upon between the Parties or determined herein, the cost of that process shall be shared equally by the Parties. SECTION 27. Attorneys’ Fees. All fees and expenses for mediation or arbitration shall be borne by the Parties equally. However, each Party shall bear the expense of its own counsel, experts, witnesses, and preparation and presentation of evidence. In any claim or lawsuit for damages arising from the Parties' performance of this Agreement, each Party shall pay all its legal costs and attorney's fees incurred in defending or bringing such claim or lawsuit, in addition to any other recovery or award providedby law; provided, however, nothing in this paragraph shall be construed to limit Port Orchard’s or Bremerton’s right to indemnification under Section 11of this Agreement. SECTION 28. Severability. This Agreement shall be construed to give effect to such purposes and uses under this Franchise which are consistent with economical and efficient service rendered in the public interest. If any provision of this Franchise, or its application, is determined to be invalid by court of law, then the remaining provisions shall continue and be valid unless the dominant purpose of the franchise or the public interest herein is thwarted thereby. SECTION 29. Venue and Applicable Law. This Agreement shall be governed by the laws of the State of Washington. Venue for all actions arising under this Agreement shall be KitsapCounty Superior Court. SECTION 30. Amendment. This Franchise may be amended only by written instrument, signed by both Parties, which specifically states that it is an amendment to this Franchise, and is approved and executed in accordance with the laws of the State of Washington. Without limiting the generality of the foregoing, this Franchise (including, without limitation, Section 11 “Indemnification” above) shall govern and supersede and shall not be changed, modified, deleted, added to, supplemented or otherwise amended by any permit, approval, license, agreement or other document required by or obtained from Port Orchard in conjunction with the exercise (or failure to exercise) by Bremerton of any and all rights, benefits, privileges, obligations, or duties in and under this Franchise. SECTION 31. Bremerton Acceptance of Franchise. Bremerton shall have no rights under this Franchise, nor shall Bremerton be bound by the terms and conditions of this Franchise unless Water Franchise Agreement Page 12 10669603.7 - 366922 - 0036 Bremerton shall, within sixty (60) days after the effective date of the ordinance, file with Port Orchard its written acceptance of this Franchise. SECTION 32. Effective Date of Franchise. The terms and conditions of this ordinance shall not be binding on Port Orchard and Bremerton unless the Bremerton City Council within sixty (60) days of the effective date of Port Orchard’s approval of the Franchise Ordinance adopts a resolution accepting this Franchise, and the date of the adoption of such resolution by the Bremerton City Council shall be the effective date ("Effective Date") of the Franchise. SECTION 33.Notice.Unless applicable law requires a different method of giving notice, any and all notices, demands or other communications required or desired to be given hereunder by any Party (collectively, "notices") shall be in writing and shall be validly given or madeto another Party if delivered either personally or by Federal Express or other overnight delivery service of recognized standing, or if deposited in the United States Mail, certified, registered, or express mail with postage prepaid, or if sent by e-mail with electronic confirmation. If such notice is personally delivered, it shall be conclusively deemed given at the time of such delivery. If such notice is delivered by Federal Express or other overnight delivery service of recognized standing, it shall be deemed given one (1) business day after the deposit thereof with such delivery service. If such notice is mailed as provided herein, such shall be deemed given three (3) business days after the deposit thereof in the United States Mail. If such notice is sent by email, it shall be deemed given at the time of the sender's receipt of electronic confirmation. Each such notice shall be deemed given only if properly addressed to the Party to whom such notice is to be given as follows: To Port Orchard: Public Works Director City of Port Orchard 216 Prospect Street Port Orchard, WA 98366 Phone: (360) 876-4407 With a Copy to the City Clerk at the same address To Bremerton: Public Works Director City of Bremerton th 345 6 Street, Suite 100 Bremerton, WA 98337 Phone: (360) 473-2376 Any Party may change its address for the purpose of receiving notices as herein provided by a written notice given in the manner required by this Section to the other Party. Water Franchise Agreement Page 13 10669603.7 - 366922 - 0036 SECTION 34.Entire Agreement.The Port Orchard Franchise Ordinance along with this Agreement andall exhibits thereto presents the entire agreement between the parties with respect to any matter covered by the franchise. SECTION 35.Effective Date of Ordinance.This ordinance shall be published in the official newspaper of the city and shall take full force and effect five (5) days after the date of publication. A summary of this ordinance in the form of the ordinance title may be published in lieu of publishing the ordinance in its entirety. PASSED by the City Council of the City of Port Orchard, APPROVED by the Mayor and attested th by the City Clerk in authentication of such passage this 19day ofDecember2023. ___________________________ RobertPutaansuu, Mayor ATTEST: ____________________________________ Brandy Wallace, MMC, City Clerk APPROVED AS TO FORM:SPONSOR: Charlotte A. ArcherCindy Lucarelli, Council Member Port Orchard City Attorney PUBLISHED:December 22, 2023 EFFECTIVE DATE:December 27, 2023 Water Franchise Agreement Page 14 10669603.7 - 366922 - 0036 ACCEPTANCE OF FRANCHISE BY BREMERTON The undersigned authorized representative of the City of Bremerton hereby declares on behalf of the Bremerton Mayor and City Council the acceptance of the nonexclusive franchise to the City of Bremerton approved by the Port Orchard City Council on , 2023, by the adoption of City of Port Orchard Ordinance No. DATED this ______ day of ________________, 20__. CITY OF BREMERTON ______________________________ Greg Wheeler, Mayor ATTEST/AUTHENTICATED: ____________________________________ Bremerton City Clerk APPROVED AS TO FORM: Kylie J. 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