Franchise to Public Utility District (PUD) No. 1 of Thurston County AFTER RECORDING RETURN TO:
Lewis County Commissioner's Office.
351 NW North Street
Chehalis, WA. 98532
Tax Parcel Number: n/a,road right of way
BEFORE THE BOARD OF COMMISSIONERS
FOR LEWIS COUNTY, WASHINGTON
IN THE MATTER OF:
A nonexclusive franchise to PUD #1 of Thurston County to }
construct, operate, and maintain water system facilities in Lewis }
County rights-of-way; and setting forth conditions accompanying I RESOLUTION NO.
a grant of a nonexclusive franchise; and providing for County } Nonexclusive Franchise
administration and regulation of the nonexclusive franchise.
WHEREAS, PUD #1 of Thurston County has applied to the Board of County
Commissioners of Lewis County, pursuant to Chapter 36.55 RCW and Chapter 12.20 of Lewis
County Code (LCC) for a nonexclusive Franchise to construct, operate and maintain water system
facilities within County rights-of-way; and
WHEREAS, the County under Titles 5 & 12 Lewis County Code provides for the regulation
of use of County rights-of-way for utilities located in or using County rights-of-way; and
WHEREAS, pursuant to RCW 36.55.040, notice was posted in three public places in the
County seat at least fifteen (15) days before the hearing date, and notice was published twice in the
official County newspaper, the last publication being not less than five (5) days before the date fixed
for the hearing; and
WHEREAS, pursuant to RCW 36.55.040, a hearing on the application for Franchise was
held on then day of k\oVa ,2015; and
WHEREAS, the Board finds that it is in the public interest and has made a determination
under Chapters 12.25 through 12.50 LCC to grant PUD #1 of Thurston County's application for a
nonexclusive Franchise to construct, operate, and maintain water facilities within County rights-of-
way;
NOW THEREFORE BE IT RESOLVED, by the Board of County Commissioners for
Lewis County, Washington, that a nonexclusive Franchise is hereby granted to PUD #1 of Thurston
RESOLUTION NO. IS 3- Page 1 of 15
NONEXCLUSIVE WATER SYSTEM FRANCHISE
County to construct, operate, and maintain water system facilities in County rights-of-way as
described in Exhibit A., under the following express terms and conditions:
Section 1. Franchise
1.1 Definitions. Terms as used throughout this Franchise shall have the same meanings
given in Section 12.25.020 LCC and Section 12.20.020 LCC. Words not otherwise defined shall be
given their common and ordinary meaning.
1.2 Grant of Franchise. Lewis County, a Washington municipal corporation and
subdivision of the State (hereinafter "County") hereby grants PUD #1 of Thurston County
(hereinafter "Grantee"), a nonexclusive Franchise for the installation, construction, operation, and
maintenance of water system facilities within the rights-of-way of unincorporated Lewis County.
The following conditions shall apply to the Franchise granted herein:
A. The Franchise granted shall not convey any right, title or interest in the rights-of-way
but shall be deemed a Franchise only to use and occupy the rights-of-way for the
limited purposes and term stated herein. The Franchise shall not convey any right,
title,or interest in rights-of-way in which the County has an interest.
B. The Franchise granted shall not authorize or excuse Grantee from securing such
further easements, leases, permits, or other approvals as may be required to lawfully
occupy and use the rights-of-way.
C. The Franchise granted shall not be construed as any warranty of title or interest in any
right-of-way; it does not provide the Grantee with any interest in any particular
location within the right-of-way; and it does not confer rights other than as expressly
provided in the grant hereof.
D. No act, event, occurrence, or thing shall give Grantee any rights to occupy or use the
rights-of-way permanently nor shall operate as an estoppel against the County.
E. This Franchise is granted subject to the terms and conditions contained in
Chapter 12.20 LCC, Installation of Utilities on Lewis County rights-of-way, as
they are now written or as later amended, which shall apply in addition to the
provisions of this Franchise. Provisions of Chapter 12.20 LCC shall control over
inconsistent terms contained in this Franchise; provided, however,that Section 3.2 of
this Franchise, Release, Indemnity and Hold Harmless, shall control for this Franchise
over inconsistent provisions of Chapter 12.20 LCC as is currently adopted.
F. The matters contained in Grantee's Franchise application and all subsequent
applications or proposals for extensions or renewals of this Franchise, except as
inconsistent with law, regulations, or local ordinance, are hereby incorporated by
reference.
G. This Franchise is being granted for Grantee's water system facilities.
H. Grantee shall comply with all applicable state and federal laws, including regulatory
requirements of the WUTC, if applicable to Grantee.
I. This grant of authority to provide the services described herein shall be limited solely
to those services expressly described and no others. In the event of any ambiguity,this
Franchise agreement shall be strictly construed as to the rights granted herein.
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NONEXCLUSIVE WATER SYSTEM FRANCHISE
1.3 Term of Franchise. The term of this Nonexclusive Franchise shall be five (5) years
from the date of this Franchise.
1.4 Nonexclusive Franchise. The Franchise granted herein shall be nonexclusive. The
County specifically reserves the right to grant, at any time, such rights, permits, licenses, and/or
franchises to other Persons to use the rights-of-way for similar or different purposes allowed
hereunder as the County deems appropriate. Subject to this Franchise, Grantee shall not prevent or
prohibit the County from constructing, altering, maintaining, or using any of said rights-of-way, or
affect its jurisdiction over them or any part of them, the County having full power and authority to
make all necessary changes, relocation, repairs, or maintenance of said rights-of-way as the County
deems appropriate.
1.5 Renewal Applications. If Grantee desires to renew this Franchise, Grantee shall
comply with Section 12.37.120 LCC.
1.6 Renewal Determinations. Within 120 business days after receiving a complete
application for renewal, the Board shall make a determination on behalf of the County granting or
denying the renewal application in whole or in part. If the renewal application is denied, the
determination shall include the reasons for non-renewal. The criteria in Section 12.37.130 LCC shall
apply when determining whether to grant or deny the application, and the Board may also consider
Grantee's compliance with the requirements of Chapter 12.20 LCC,and this Franchise.
1.7 Obligation to Cure as a Condition of Renewal. This Franchise shall not be renewed
until any ongoing violations or defaults in Grantee's performance of this Franchise, of the
requirements of the Ordinance, and all applicable laws, statutes, codes, ordinances, rules, and
regulations have been cured; or a plan detailing the corrective action to be taken by Grantee has been
approved by the Administrator. Failure to comply with the terms of an approved plan shall be
grounds for non-renewal or immediate revocation of this Franchise.
1.8 Franchise Territory. The Franchise territory shall be that territory described in
Exhibit A. The Franchise granted herein does not give or grant to Grantee the right, privilege, or
authority to install water system facilities at any other location in the County. Grantee agrees not to
install water system facilities at any other County location without written County approval.
1.9 Amendment of Franchise for Territory Changes. Should Grantee not be able to
install water system facilities along the Franchise territory, Grantee shall request from the County, in
writing, a deviation from the territory set out herein. If Grantee desires to extend or locate its utilities
in rights-of-way which are not included in this Franchise, Grantee shall apply in writing for an
amendment to the Franchise. If the County orders Grantee to locate or relocate its water system
facilities in rights-of-way not included in this Franchise, the County shall grant a Franchise
amendment for the territory change without further application.
1.10 Right to Require Removal of Property. At the expiration of this Franchise, and if
Grantee has not obtained a new franchise from the County, the County shall have the right to require
Grantee to remove all or any part of Grantee's facilities under this Franchise from the rights-of-way
RESOLUTION NO.
NONEXCLUSIVE WATER SYSTEM FRANCHISE Page 3 of 15
and restore the affected area, all at Grantee's expense. Removal and restoration shall be to the
satisfaction of the County Engineer. If Grantee fails to do so, the County may perform the work or
cause it to be done and collect the cost thereof from Grantee. The actual cost thereof, including
direct and indirect administrative costs, shall be a lien upon all property of Grantee effective upon
filing of the lien with the Lewis County Auditor.
Section 2. Operation in rights-of-way
2.1 Construction or Alteration.
A. Facilities shall be constructed, operated, and maintained in accordance with this
Franchise and all applicable Federal, State, and County codes, rules, and regulations;
including, but not limited to, Chapter 12.20 LCC. Grantee shall comply with all
lawful County resolutions and ordinances regarding the acquisition of permits and/or
such other items as may be required in order to construct, operate, and maintain its
facilities. Grantee shall pay to the County all reasonable costs of granting or enforcing
the provisions of this Franchise including, but not limited to, County fees related to
the issuance of utility permits.
B. Grantee shall not construct, maintain, repair, relocate, or remove its facilities within
the rights-of-way without obtaining a utility permit. Applications for utility permits
to construct Grantee's facilities shall be in compliance with the provisions of Chapter
12.20 LCC. As part of the permitting process, the County may impose such
conditions and regulations as are necessary for the purpose of protecting any
structures in such rights-of-way, proper restoration of such rights-of-way and
structures, the protection of the public, and the continuity of pedestrian or vehicular
traffic. Such conditions may also include the provision of a construction schedule
and maps showing the location of the facilities to be installed in the right-of-way. All
work authorized and required hereunder shall be done in a safe, thorough, and
workmanlike manner. All installations of equipment shall be permanent in nature,
durable, and installed in accordance with good engineering practices.
C. Within limits reasonably related to the County's role in protecting public health,
safety, and welfare, the County may require that facilities be installed at a particular
time, at a specific place, or in a particular manner as a condition of access to a
particular right-of-way; may deny access if Grantee is not willing to comply with
County's requirements; may remove, or require removal of, any facility that is not
installed in compliance with the requirements established by the County; and may
require Grantee to cooperate with others to minimize adverse impacts on the rights-
of-way through joint trenching and other arrangements.
2.2 Non-Interference. In installing, constructing, operating, repairing, and maintaining
its facilities, Grantee shall not interfere with the use of the rights-of-way by the County, the general
public, or other Persons authorized to use or be present in or upon the rights-of-way. Work in the
right-of-way, on other public property, near public property, or on or near private property shall be
done in a manner that causes the least interference with the rights and reasonable convenience of
property owners and residents. Grantee's facilities shall be constructed and maintained in such
manner as not to interfere with any other pipes, wires, conduits, pedestals, structures, or other
RESOLUTION NO. Page 4 of 15
NONEXCLUSIVE WATER SYSTEM FRANCHISE
facilities that may have been laid in the rights-of-way by, or under, the County's authority. In the
event of such interference, the County may require the removal or relocation of Grantee's facilities
from the property in question at Grantee's expense.
2.3 Construction Schedule and Notice of Work. Unless otherwise provided herein,
Grantee, or any Person acting on Grantee's behalf, shall comply with the notice provisions set out in
Chapter 12.20 LCC.
2.4 Traffic Control. Grantee shall comply with the traffic control provisions set out in
Chapter 12.20 LCC.
2.5 Relocation or Removal of Facilities. Chapter 12.20 LCC shall govern the relocation
and removal of Grantee's facilities in the rights-of-way. .
2.6 Consistency with Designated Use. Notwithstanding this Franchise to use County
rights-of-way, no right-of-way shall be used by Grantee if the County determines that such use is
inconsistent with: (1)the terms and conditions of dedication or establishment of the right-of-way; (2)
the present use of the right-of-way; or(3) applicable federal, state or local laws.
2.7 Restoration of Rights-of-Way. Grantee shall comply with the restoration of rights-
of-way conditions set out in Chapter 12.20 LCC.
2.8 Restoration of Improvements. Upon completion of any construction work, Grantee
shall make restoration in accordance with Chapter 12.20 LCC.
2.9 Rights-of-Way and Other Public Property. Grantee shall warrant any restoration
work performed by or for Grantee in the right-of-way or on other public property for one (1)year. If
restoration is not satisfactorily performed by the Grantee within a reasonable time, the County may,
after 48 hours prior notice to the Grantee, or without notice where the disturbance or damage may
create a risk to public health or safety, cause the repairs to be made and recover the cost of those
repairs from the Grantee. The Grantee shall pay the County within thirty (30) days of receipt of an
itemized list of those costs, including the costs of labor,materials and equipment.
2.10 Facilities Maps. Grantee shall provide the County with facilities maps in accordance
with Section 12.20 LCC.
2.11 As-Built Drawings. If an Engineer's Certification is required under Chapter 12.20
LCC,then, in addition to the requirements of Section 2.10 of this Franchise regarding facilities maps,
Grantee shall provide as-built drawings in accordance with Chapter 12.20 LCC.
2.12 Aesthetic and Scenic Considerations. Grantee shall comply with Chapter 12.20 LCC.
2.13 Damage to Grantee's Facilities. To the extent permitted by Washington law, the
County shall not be liable for any damage to or loss of any of Grantee's facilities or any interruption
in water system services within the rights-of-way as a result of or in connection with any emergency
RESOLUTION NO. Page 5 of 15
NONEXCLUSIVE WATER SYSTEM FRANCHISE
removal or relocation, public works, public improvements, construction, excavation, grading, filling,
or work of any kind in the rights-of-way by or on behalf of the County or any Person under contract
with the County, except for damage caused by the sole negligence of the County.
2.14 Location of Facilities. All water system facilities shall be constructed, installed, and
located in accordance with Chapter 12.20 LCC. Consistent with any general County undergrounding
policy or program now or hereafter developed, the County may require Grantee's participation in
County-imposed undergrounding or related requirements at Grantee's expense. Grantee agrees to
coordinate its underground installation and planning activities with the County's underground plan.
2.15 Hazardous Substances.
A. Grantee shall comply with any and all applicable laws, statutes, regulations, and
orders concerning hazardous substances relating to Grantee's facilities in the rights-of-
way.
B. Grantee agrees to indemnify the County against any claims, costs, and expenses, of
any kind, whether direct or indirect, incurred by the County, arising out of Grantee's
release of hazardous substances caused by or related to the construction, operation or
maintenance of Grantee's facilities.
2.16 Notice to Private Property Owners. Grantee shall give notice to private property
owners of work on or adjacent to private property.
2.17 County Use of Trenching. The Grantee and the County recognize that situations
may occur in the future where the County may desire to place its own cable or conduit in trenches or
bores opened by the Grantee. The Grantee agrees to cooperate with the County in any construction
by the Grantee that involves trenching or boring, provided that the County has first notified the
Grantee in some manner that it is interested in sharing the trenches or bores in the area where the
Grantee's construction is occurring. The Grantee shall allow the County to lay its cable or conduit in
the Grantee's trenches and bores, provided the County shares in the cost of the trenching and boring
on the same terms and conditions as the Grantee at that time shares the total cost of trenches and
bores. The County shall be responsible for maintaining its respective cable or conduit buried in the
Grantee's trenches and bores under this paragraph.
2.18 Movement of Facilities for Other Franchise Holders. If any removal,replacement,
modification, or disconnection of the Grantee's pipelines is required to accommodate the
construction, operation, or maintenance of the facilities or equipment of another County franchise
holder, Grantee shall, after at least thirty (30) days' advance written notice, take action to effect the
necessary changes requested by the responsible entity. Grantee may require that the costs associated
with the removal or relocation be paid by the benefited party.
2.19 Work of Contractors and Subcontractors. Grantee's contractors and sub-
contractors shall be licensed and bonded in accordance with state law. Work by contractors and sub-
contractors is subject to the same restrictions, limitations, and conditions as if the work were
performed by Grantee. Grantee shall be responsible for all work performed by its contractors and
subcontractors and others performing work on its behalf as if the work were performed by it, shall
RESOLUTION NO. Page 6 of 15
NONEXCLUSIVE WATER SYSTEM FRANCHISE
ensure that all such work is performed in compliance with this Franchise and other applicable laws,
and shall be jointly and severally liable for all damages and for correcting all damage caused by them.
It is Grantee's responsibility to ensure that contractors, subcontractors, or other persons performing
work on Grantee's behalf are familiar with the requirements of this Franchise and other applicable
laws governing the work performed by them.
2.20 Inspection of Construction and Facilities. The County may inspect any of Grantee's
facilities, equipment, or construction at any time upon at least twenty-four (24) hours' notice, or, in
case of emergency, upon demand without prior notice. The County shall have the right to charge
generally applicable inspection fees therefor. If an unsafe condition is found to exist, the County, in
addition to taking any other action permitted under applicable law, may order Grantee, in writing, to
make necessary repairs and alterations forthwith to correct the unsafe condition by a stated date and
time. The County has the right to correct, inspect, administer, and repair the unsafe condition if
Grantee fails to do so, and to charge Grantee therefor.
2.21 Stop Work.
A. On notice from the County that any work is being performed contrary to the
provisions of this Franchise, or in an unsafe or dangerous manner as determined by the
County, or in violation of the terms of any applicable permits, laws, regulations, ordinances,
or standards,the work shall immediately stop.
B. The stop work order shall:
1. Be in writing.
2. Be given to the Person doing the work,or posted on the work site.
3. Be sent to Grantee by overnight delivery at the address given herein.
4. Indicate the nature of the alleged violation or unsafe condition.
5. Establish conditions under which work may be resumed.
Section 3. Financial Provisions
3.1 Financial Security. Pursuant to LCC 12.20 the County may require financial security to
ensure completion of construction before any construction work is started by Grantee. Depending on
the nature of the project planned by Grantee a Permit issued by the Public Works Department before
construction starts may require a bond.
3.2 Release,Indemnity and Hold Harmless.
A. In addition to and distinct from the insurance requirements of this Franchise, Grantee
releases and shall defend, indemnify, and hold harmless County, its elected and
appointed officers, officials, employees, agents, and representatives (collectively
referred to as the "Indemnitees") from any and all claims, losses, costs, liabilities,
damages, and expenses, including, but not limited to, those of Grantee's lessees,
(except those damages caused solely by the negligence of the Indemnitees), and also
including, but not limited to, reasonable attorneys' fees: 1) arising out of or alleged to
arise out of any claim for damages for Grantee's violation or infringement of any
copyright, trademark, trade name, service mark, or patent; or of any other right of any
RESOLUTION NO. Page 7 of 15
NONEXCLUSIVE WATER SYSTEM FRANCHISE
Person; 2) arising out of or in connection with Grantee's acts or omissions during the
construction, operation, maintenance or removal of water system facilities, and 3)
arising out of or in connection with the acts or omissions of Grantee or any of its
suppliers or contractors of any tier, or anyone acting on Grantee's behalf in connection
with said construction, operation, maintenance or removal of water system facilities.
B. Such indemnity, protection, and hold harmless shall include any demand, claim, suit,
or judgment for damages to property or injury to or death of Persons, including
officers, agents, and employees of any Person including payment made under or in
connection with any Worker's Compensation Law or under any plan for employees'
disability and death benefits, which may arise out of or be caused or contributed to
directly or indirectly by the construction, operation, maintenance, or removal of
Grantee's facilities, including any claims or demands of customers of Grantee with
respect thereto.
C. Indemnitees shall not be liable to Grantee or to Grantee's customers, and Grantee
hereby indemnifies, protects, and saves harmless the Indemnitees against any and all
such claims or demands, suit, or judgment for loss, liability, damages, and expense by
Grantee's customers; or for any interruption to the service of Grantee; or for
interference with the operation of the facilities.
D. To the fullest extent permitted by applicable law, the foregoing release, indemnity,
and hold harmless provisions shall apply to and be for the benefit of the Indemnitees.
E. Inspection or acceptance by the County of any work performed by Grantee shall not
be grounds for avoidance by Grantee of any of its obligations under this Section. Said
indemnification obligations shall extend to claims which are not reduced to a suit and
any claims which may be compromised prior to the culmination of any litigation or
the institution of any litigation.
F. In the event of liability for damages arising out of bodily injury to persons or damages
to property caused by or resulting from the concurrent negligence of Grantee and the
County, Grantee's liability hereunder shall be only to the extent of Grantee's
negligence. It is further specifically understood that the indemnification provision
provided herein constitutes Grantee's waiver of immunity under Title 51 RCW, solely
for the purposes of this indemnification. This waiver has been mutually negotiated by
the parties.
G. The provisions of Section 3.2 shall survive the expiration or termination of this
Franchise. Further, all provisions of Section 3.2 shall apply to the successors and
assigns of Grantee.
H. Procedures and Defense. If a claim or action arises, the County or any other
indemnified party shall tender the defense of the claim or action to the Grantee,which
defense shall be at the Grantee's expense. The County may participate in the defense
of a claim and, in any event, the Grantee may not agree to any settlement of claims
financially affecting the County without the County's written approval, which shall
not be unreasonably withheld.
Duty of Defense. The fact that the Grantee carries out any activities under this
Franchise though independent contractors shall not constitute an avoidance of or
defense to the Grantee's duty of defense and indemnification under this Section.
RESOLUTION NO. Page 8 of 15
NONEXCLUSIVE WATER SYSTEM FRANCHISE
3.3 Insurance. As a condition of this Franchise, Grantee shall secure and maintain the
following liability insurance policies.
A. Commercial General Liability insurance, and if necessary, Umbrella Liability
insurance, which will cover bodily injury, property damage, and any other exposure
which can be reasonably identified as potentially arising from Grantee's activities
within the rights-of-way. The limit of liability shall not be less than one million
dollars ($1,000,000) each occurrence with a two million dollar ($2,000,000)
aggregate. The County, its elected and appointed officers, officials, employees,
agents, and representatives shall be named as additional insureds with respect to
Grantee's activities occurring within its rights-of-way. Coverage shall be
comprehensive with respect to Grantee's activities within the Rights-of Way and shall
include completed operations, explosions, collapse, and underground hazards. Any
insurance or self-insurance maintained by the County, its officers, officials, boards,
commissions, employees, and agents shall be in excess of the Grantee's insurance and
shall not contribute to it.
B. Business Automobile Liability insurance for owned, non-owned, and hired vehicles
with limits of not less than one million dollars ($1,000,000) per person and one
million dollars($1,000,000)per occurrence.
C. Workers' Compensation insurance as required by Title 51 RCW and Employer's
Liability Coverage with a limit of not less than one million dollars($1,000,000).
D. The insurance policies required by Section 3.3 shall be maintained at all times by
Grantee. The insurer or Grantee shall notify the County at least forty-five (45) days
before the policy can be canceled by either party to be mailed to the Lewis County
Public Works, Real Estate Services Division (2025 NE Kresky Ave., Chehalis, WA
98532) as well as the named insured. Grantee will be obligated to replace or renew
the canceled or expiring policy and show proof in the form of a certificate of
insurance, at least twenty (20) days before the expiration or cancellation of the
existing policy(ies).
E. Grantee shall furnish the Real Estate Services Division with properly executed
certificates of insurance naming Lewis County as primary, non-contributory
additionally insured, or a signed policy endorsement which shall clearly evidence all
insurance required in Section 3.3.
F. Grantee or its agent will provide a copy of any and all insurance policies specified in
this Franchise upon request of the Real Estate Services Manager.
G. The insurance limits mandated for any insurance coverage required by this Franchise
are not intended to be an indication of limits of exposure nor are they limitations on
liability or indemnification.
H. By acceptance of this Franchise, Grantee agrees that failure to procure or maintain the
required insurance shall constitute a material breach of this Franchise and that the
County may immediately terminate this Franchise or, at the County's discretion,
procure or renew such insurance to protect the County's interests and be reimbursed
by Grantee for all premiums paid in connection therewith.
3.4 Compensation. The Franchise granted hereunder is subject to the County's right,
which is expressly reserved, to annually fix a fair and reasonable compensation for the authorization
RESOLUTION NO. Page 9 of 15
NONEXCLUSIVE WATER SYSTEM FRANCHISE
granted hereunder, and to reimburse the County's costs in connection with administration and
oversight of this Franchise, and in connection with reviewing, inspecting, monitoring, and
supervising the use and occupancy of the rights-of-way. Nothing herein shall prohibit the County and
Grantee from agreeing upon the compensation to be paid.
This Franchise shall not be interpreted to prevent the County from imposing additional lawful
conditions, including additional compensation conditions for use of the rights-of-way, should
Grantee provide services other than water services.
3.5 Reimbursement. Except as provided in Subsection 3.4 C., Grantee shall reimburse
the County within thirty(30)calendar days after receipt of written demand for all reasonable amounts
paid and costs incurred by the County in relation to this Franchise or the enforcement thereof
Section 4. Additional Franchise Provisions
4.1 Publication Costs. Grantee shall assume the costs of publication associated with this
Franchise as such publication is required by law.
4.2 Vacation.
A. If the County vacates all or a portion of any County rights-of-way which are subject
to rights granted by this Franchise, and said vacation is for the purpose of acquiring
the fee or other property interest in said rights-of-way for the use of the County in
either its proprietary or governmental capacity, the Board may, at its option and by
giving forty-five (45) days written notice to Grantee, terminate this Franchise with
reference to any County rights-of-way so vacated, and the County shall not be liable
for any damages or loss to Grantee by reason of such termination.
B. Whenever a County right-of-way or any portion thereof is vacated upon a finding that
it is not useful and the public will be benefited by the vacation,the County may retain
an easement in respect to the vacated land for the construction, operation and
maintenance of public utilities and services which at the time of the vacation are
specifically authorized under this Franchise or physically located on a portion of the
land being vacated, but only in accordance with the provisions of RCW 36.87.140.
The County shall not be liable for any damages or loss to Grantee by reason of any
such vacation.
4.3 Eminent Domain. This Franchise is subject to the power of eminent domain and the
right of the Board or the people acting for themselves through the initiative or referendum process to
repeal, amend, or modify this Franchise. In any proceeding under eminent domain, this Franchise
itself shall have no value.
4.4 Revocation or Termination.
A. This Franchise may be revoked as provided in the Ordinance after notice, an
opportunity to cure, and a hearing as provided in the Ordinance.
B. In addition to Section 4.4 A. of this Franchise, upon failure of Grantee, after written
notice, to perform properly and completely each term, condition, or obligation
RESOLUTION NO. Page 10 of 15
NONEXCLUSIVE WATER SYSTEM FRANCHISE
imposed upon it pursuant to this Franchise,the County may terminate this Franchise.
C. At the expiration of the term of this Franchise or upon its revocation or termination,
the County shall have the right to require Grantee to remove its facilities within ninety
(90) days from the County rights-of-way. Grantee shall be liable for any costs
incurred in removing any water system facilities of Grantee and restoring any County
rights-of-way. In removing its plant, structures, and equipment, Grantee shall refill, at
its own expense, any excavation that is made by it and shall leave all rights-of-way,
public places, and private property in as good condition as that prevailing prior to
Grantee's removal of its equipment. The indemnification and insurance provisions
and the letter of credit shall remain in full force and effect during the period of
removal, and Grantee shall not be entitled to, and agrees not to request, compensation
of any sort therefor.
D. If Grantee fails to remove its water system facilities to the County's satisfaction in the
time frame required by the County, the County may perform the work and collect the
cost thereof from Grantee. The actual cost thereof, including direct and indirect
administrative costs, shall be a lien upon all plant and property of Grantee effective
upon filing of the lien with the County Auditor.
E. A revocation or termination of this Franchise shall not prejudice any other remedy for
breach of contract, damages, non-payment or otherwise which the County has under
this Franchise or under law.
4.5 Modification. The County and Grantee reserve the right to modify the terms and
conditions of this Franchise upon written agreement of both parties to such modification or in the
exercise of the County's police power authority or other authority pursuant to applicable laws.
4.6 Franchise Subject to Future County Ordinances and Regulations. Nothing
herein shall be deemed to restrict the County's ability to adopt and enforce all necessary and
appropriate ordinances regulating the performance of the conditions of this Franchise, including any
valid ordinance made in the exercise of the County's police powers in the interest of public safety
and for the welfare of the public. The County shall have the authority at all times to control by
appropriate regulations the location, elevation, manner of construction, operation and maintenance of
any water system facilities by Grantee. Grantee agrees to promptly conform to all such regulations as
if they were in effect at the time this Franchise was executed by the County, unless compliance
would cause Grantee to violate other requirements of law. In the event of a conflict between the
provisions of this Franchise and any ordinance(s) enacted or action taken under the County's police
power authority, such ordinance(s) or other exercise of police power shall take precedence over the
provisions set forth herein.
4.7 Assignments or Transfers. Grantee shall comply with LCC 12.20 regarding
assignments, lease, sharing, transfers, and transactions affecting direct or indirect interest or control.
In no event shall a sale, lease, sharing, transfer, assignment, or disposal of ownership, interest, or
control be approved without the transferee acknowledging the obligations under LCC 12.20,
becoming a signatory to this Franchise, and assuming all rights and obligations hereunder; and
assuming all other rights and obligations of the transferor to the County.
RESOLUTION NO. Page 11 of 15
NONEXCLUSIVE WATER SYSTEM FRANCHISE
4.8 Receivership and Foreclosure.
A. At the option of the County, subject to applicable law,this Franchise may be revoked
one hundred twenty (120) days after the appointment of a receiver or trustee to take
over and conduct the business of Grantee whether in a receivership, reorganization,
bankruptcy, or other action or proceeding,unless:
1. The receivership or trusteeship is vacated within one hundred twenty (120)
days of appointment; or
2. The receivers or trustees have, within one hundred twenty (120) days after
their election or appointment, fully complied with all the terms and provisions
of this Franchise and have remedied all defaults under the Franchise.
Additionally, the receivers or trustees shall have executed an agreement duly
approved by the court having jurisdiction, by which the receivers or trustees
assume and agree to be bound by each and every term, provision, and
limitation of this Franchise.
B. If there is a foreclosure or other involuntary sale of the whole or any y part of the
property and equipment of Grantee, the County may serve notice of revocation on
Grantee and the purchaser at the sale, and the rights and privileges under this
Franchise shall be revoked thirty(30)days after service of such notice,unless:
1. The County has approved the transfer of the Franchise, in accordance with the
procedures set forth in this Franchise and as provided by law; and
2. The purchaser has covenanted and agreed with the County to assume and be
bound by all of the terms and conditions of this Franchise.
4.9 Incorporation and Annexation.
A. If any rights-of-way covered by this Franchise are incorporated into the limits of any
city or town, this Franchise shall terminate as to any rights-of-way within the
corporate limits of such city or town; but this Franchise shall continue as to County
rights-of-way not incorporated into a city or town.
B. If, pursuant to Article XI § 3 of the Washington Constitution, territory is stricken or
taken from the County and a new county is established from the territory taken from
the County, this Franchise shall terminate as to any rights-of-way within the territory
so taken to establish the new county; but this Franchise shall continue as to County
rights-of-way not taken from the County.
4.10 Service of Notice. Except as provided herein, any notices required or permitted to be
given under this Franchise shall be deemed properly served when deposited with the United States
Postal Service,postage paid, addressed to the party to receive same.
Notice to the County shall be sent to:
Lewis County Public Works Department
Real Estate Services Division
2025 NE Kresky Avenue
Chehalis, WA 98532
RESOLUTION NO. Page 12 of 15
NONEXCLUSIVE WATER SYSTEM FRANCHISE
Notice to Grantee shall be sent to:
PUD#1 of Thurston County
921 Lakeridge Way SW, Suite 301
Olympia, WA 98502
Grantee shall promptly notify the County of any change in notice address.
4.11 Open Records. The County, including the County's Auditor or his/her authorized
representative, shall have access to, and the right to inspect, any books and records of Grantee, its
parent corporations, and affiliates which are reasonably related to the administration or enforcement
of the terms of this Franchise. The County may, in writing, request copies of any such records or
books and Grantee shall provide such copies within thirty(30) days of the transmittal of such request.
One (1) copy of all reports and records required under this or any other subsection shall be furnished
to the County, at the sole expense of Grantee.
4.12 Severability. The parties understand and agree that if a court holds any part,term, or
provision of this Franchise .
p lose to be illegal or invalid in whole or in part, the validity of the remaining
provisions shall not be affected, and the parties' rights and obligations shall be construed and
enforced as if the Franchise did not contain the particular invalid provision. Should the County
determine that the severed portions substantially alter the Franchise so that the original intent and
purpose of this Franchise no longer exists, the County may, at its sole discretion, terminate this
Franchise without cost or penalty.
4.13 Remedies. All remedies and penalties under this Franchise, including termination of
this Franchise, are cumulative, and the recovery or enforcement of one is not a bar to the recovery or
enforcement of any other such remedy or penalty. The remedies and penalties contained in this
Franchise, including termination of this Franchise, are not exclusive, and the County reserves the
right to enforce the provisions of any ordinance or resolution and to avail itself of any and all
remedies available at law or in equity.
4.14 Nonwaiver of Rights. The County and Grantee agree that the excuse or forgiveness
of performance, or waiver of any provision(s) of this Franchise, does not constitute a waiver of such
provision(s) or future performance, or prejudice the right of the waiving party to enforce any of the
provisions of this Franchise at a subsequent time.
4.15 Choice of Law. This Franchise has been and shall be construed as having been made
and delivered within the State of Washington, and it is agreed by each party hereto that this Franchise
shall be governed by the laws of the State of Washington, both as to its interpretation and
performance.
4.16 Jurisdiction. Any action at law, suit in equity, or judicial proceeding arising out of
this Franchise shall be instituted and maintained only in any of the courts of competent jurisdiction in
Lewis County, Washington.
RESOLUTION NO.
Page 13 of 15
NONEXCLUSIVE WATER SYSTEM FRANCHISE
4.17 Context. When consistent with the context, words used in the present tense include
the future tense, words in the plural number include the singular number, and words in the singular
number include the plural number.
4.18 Entire Agreement. The parties agree that this Franchise is the complete expression
of the terms and conditions hereunder, and supersedes all prior agreements or proposals except as
specifically set forth herein. Any oral or written representations or understandings not incorporated
herein are specifically excluded. This Franchise is executed in duplicate originals and executed by
the persons signing below who warrant that they have the authority to execute this Franchise.
4.19 Familiarity with Franchise. The Grantee acknowledges and warrants by acceptance
of the rights, privileges and agreements granted herein, that it has carefully read and fully
comprehends the terms and conditions of this Franchise and is willing to and does accept all lawful
and reasonable risks of the meaning of the provisions,terms and conditions herein.
DONE IN OPEN SESSION this 23 day of yf44 , c 01
ACCEPTANCE: BOARD OF COMMISSIONERS
for Lewis County, Washington
PUD#1 of Thurston County
Grantee
By: / Edna J.Fu d,Ch• �'(A orized Signatory Representative)
Its: C n rr� / ri/'kvla e y-- i �� ��L it_
P te,Vice Chair
ATTEST:
a4)hhA./ 1 t Jl� Gary Stan/per, ommissioter
Karri Muir,CMC,Clerk of the Board
APPROVED AS TO FORM: Jonathan L.Meyer,P osecuting Attorney
By: �, .i
Civil Depute
RESOLUTION NO. 6'3.4P-- Page 14 of 15
NONEXCLUSIVE WATER SYSTEM FRANCHISE
EXHIBIT A
County Roads Used by PUD#1 of Thurston County Water Systems
TPUD System Name Address Portion of County Road
Sys. #
202 4199-A 4199 Jackson Highway East side Jackson Hwy,starting at Post Ln and going north
about 450 feet
208 Brockway#1 106 Walsh Lane From about 200 to 1200 feet north of Brockway Rd
centerline,east side Walsh Lane
210 Aust 2557 Jackson Hwy Chehalis Valley Drive
240 Valley Meadows Valley Meadows Drive Valley Meadows Drive and Valley Meadows Loop
S01-SO4 and Loop
288 Brookhaven 2 Romerman Road Between Karen Court and Kim Court
344 Eastridge West 133 Big Hanaford Rd North side Big Hanaford Rd,from about 160 feet
northwest of Eastridge Drive to about 600 feet northwest
of Eastridge Drive.
501 Raven Jack Fir Ct E Along Jack Fir Ct W, 175 feet west of Hemlock Ln and all
of Jack Fir Ct E
502 Maple Alderwood Dr/Jack Fir Along Jack Fir Ct W, 175 feet west of Hemlock Ln and all
Ct of Jack Fir Ct E.Also Hemlock Ln and east 400 feet from
Hemlock Ln along Alderwood Dr
503 Bear Jack Fir Ct E, Along Jack Fir Ct W, 175 feet west of Hemlock Ln and
Hemlock east 200 feet from Hemlock Ln on Jack Fir Ct E.Also
Hemlock Ln and east about 100 feet from Hemlock Ln
along Alderwood Dr
504 Cougar Jack Fir Ct W,Cannon Jack Fir Ct W and east along jack Fir Ct E, 15 feet from
Rd Hemlock Ln center line
512 Hemlock Jack Fir Ct Jack Fir Ct W and east 125 feet from Hemlock Ln on Jack
Fir Ct E.Also south along Hemlock Ln,about 150 feet
from Jack Fir Ct center line.
513 Eagle Alderwood Dr Along Jack Fir Ct W, 175 feet west of Hemlock Ln and
Jack Fir Ct E, 125 feet east of Hemlock Ln.Also Hemlock
Ln and about 400 feet west from Hemlock Ln along
Alderwood Dr.
514 Crow Cottonwood Ln Jack Fir Ct W and east 125 feet from Hemlock Ln on Jack
Fir Ct E.Also Hemlock Ln and about 350 feet along
Alderwood Dr west of Hemlock Ln.Also 520 feet south
along Cottonwood Ln from Cannon Rd and 200 feet east
along Cannon Rd from Cottonwood Ln.
RESOLUTION NO. IS 3L9-
NONEXCLUSIVE WATER SYSTEM FRANCHISE Page 15 of 15
I Executive Summary
BOCC Meeting Date:
2015-11-23
Contact:
Tim Elsea
Department:
Public Works
Wording
Approving a franchise to construct, operate and maintain telecommunication facilities on County
rights of way in Lewis County, Washington to Public Utility District (PUD) No. 1 of Thurston County
Description
Lewis County Code 12.20 and RCW 36.55 require that all utility installations on county road rights of
way be authorized by a franchise/license from the County. An application for a license has been
received from PUD No. 1 of Thurston County to construct, operate, and maintain telecommunication
facilities within county rights of way.
A hearing was set by Resolution 15-303 on November 2, 2015 to give all required notices to the
public.
Recommendation
Approve the Resolution to grant a Franchise to PUD No. 1 of Thurston County.
Other
BOCC AGENDA ITEM SUMMARY
Resolution #: J -3L0-- BOCC Meeting Date: Nov 23,2015
Suggested Wording for Agenda Item: Agenda Type: Hearing
Approving a franchise to construct, operate and maintain telecommunication facilities on County rights of way
in Lewis County, Washington to Public Utility District(PUD)No. 1 of Thurston County
Brief Reason for BOCC Action:
This resolution approves a franchise to PUD No. 1 of Thurston County.
Submitted By: Amrine, Kim Phone: 2697
Date Submitted: Nov 09, 2015
Contact Person Who Will Attend BOCC Meeting: Tim ElseaIVED
Action Needed: Approve Resolution
Publication Requirements: LEWIS CO. 2
SOS• ATTY
Hearing Date: Nov 23, 2015
Publications:
Publication Dates:
Additional Copies
Larry Unzelman
Kim Amrine