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Non-exclusive Franchise for the Industrial Park at TransAlta 3506801 RES 08/05/2019 02 48 19 PM Larry E Grove CPA Total Papes• 17 1111 Lewis County Audttor, Chehaiiess Washington 50 Washinston II 11 dtill!' 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 for the Industrial Park at TransAlta } to construct, operate, and maintain water and sewer system } facilities in Lewis County rights of way; and setting forth } conditions accompanying a grant of a nonexclusive franchise, } RESOLUTION NO i 4 and providing for County administration and regulation of the } Nonexclusive Franchise nonexclusive franchise } WHEREAS, the Industrial Park at TransAlta (IPAT) 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 and sewer 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 m 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 WHE AS, pursuant to RCW 36.55 040, a hearing on the application for Franchise was held on the 24ay of �v� ,2019, and WHEREAS, the Board finds that it is m the public interest and has made a determination under Chapters 12.25 through 12.50 LCC to grant 1PAT's application for a nonexclusive Franchise to construct,operate,and maintain water and sewer system facilities within County rights of way, RESOLUTION NO i a Page 1 of 17 NONEXCLUSIVE WATER AND SEWER FRANCHISE NOW THEREFORE, BE IT RESOLVED by the Board of County Commissioners for Lewis County, Washington, that a nonexclusive Franchise is hereby granted to IPAT to construct operate, and maintain water and sewer system facilities in Lewis County nghts 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 IPAT (hereinafter "Grantee"), a nonexclusive Franchise for the installation, construction, operation, and maintenance of water and sewer 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 nghts 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 nghts 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 m 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 a water and sewer system facility for Grantee's use to provide domestic water and sewer services H Grantee shall cc�omply with all applicable state and federal laws, including regulatory RESOLUTION NO l q ' �O b Page 2 of 17 NONEXCLUSIVE WATER AND SEWER FRANCHISE 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 1.3 Term of Franchise The term of this Nonexclusive Franchise shall be five (5) years from the date of this Franchise. This Franchise may be renewed, at the sole discretion of the County by resolution of the Board of County Commissioners, for one additional five (5) year period upon the written request of, such request to be submitted not more than two (2) years nor less than one hundred eighty(180)days prior to the expiration of the initial five(5)year term. 1.4 Nonexclusive Franchise. The Franchise granted herein shall be nonexclusive The County specifically reserves the nght 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 nghts of way as the County deems appropriate 15 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 critena 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 temtory 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 or sewer system facilities at any other location in the County Grantee agrees not to install water or sewer system facilities at any other County location without written County approval RESOLUTION NO I"I ' 0 O Page 3 of 17 NONEXCLUSIVE WATER AND SEWER FRANCHISE 1.9 Amendment of Franchise for Territory Changes. Should Grantee not be able to install a water and sewer system facility within the Franchise territory, Grantee shall request from the County, in writing, a deviation from the temtory 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 and sewer system facilities in rights of way not included in this Franchise, the County shall grant a Franchise amendment for the temtory 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 nght to require Grantee to remove all or any part of Grantee's water and sewer system facilities under this Franchise from the rights of way 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 hen 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 m 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 nght 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 RESOLUTION NO I - O Page 4 of 17 NONEXCLUSIVE WATER AND SEWER FRANCHISE 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 nghts 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 nght 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 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 RESOLUTION NO �q- Page 5 of 17 NONEXCLUSIVE WATER AND SEWER FRANCHISE 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 and sewer system services within the rights of way as a result of or in connection with any emergency 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 and sewer 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 nghts 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, ansmg 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 m 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 RESOLUTION NO q' 0 O Page 6 of 17 NONEXCLUSIVE WATER AND SEWER FRANCHISE Grantee's construction is occurnng The Grantee shall allow the County to lay its cable or conduit m 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 burred 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 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 pnor 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. RESOLUTION NO 10 O d Page 7 of 17 NONEXCLUSIVE WATER AND SEWER FRANCHISE 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 fmancial 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 Grantee shall indemnify, defend, and hold the County, its appointed and elective officials, agents, officers, and employees harmless from and against any and all claims, demands, liability, loss, cost, damage, or expense of any nature whatsoever including all costs and attorney's fees, made against the County, its agents, officers, or employees on account of injury, harm, death, or damage to persons or property ansing out of or in connection with Grantee's construction, operation, use, or maintenance of Grantee's Facilities, except that such indemnification shall not extend to nor include any liability due to the sole negligence of the County, its elected and appointed officials, agents, officers, and employees acting within the scope of their employment Grantee shall indemnify, defend, and hold the County, its appointed and elected officials, agents, officers, and employees harmless from and against any and all claims, demands, liability, loss, cost, damage, or expense of any nature whatsoever including all costs and attorney's fees, made against the County on account of violation of any environmental laws applicable to the Facilities, or from any release of petroleum products or Hazardous Substances on or from the Facilities, except for any such claims, demands, liability, loss, cost, damage, or expense of any nature whatsoever including costs and attorney's fees caused by the sole negligence of the County, its elected and appointed officials, agents, officers or employees acting within the scope of their employment This indemnity includes, but is not limited to (a) liability for a governmental agency's costs of removal or remedial action for hazardous substances, (b) damages to natural resources caused by hazardous substances, including the reasonable costs of assessing such damages, (c) liability for any other person's costs of responding to hazardous substances, and (d) liability for any costs of investigation, abatement, correction, or cleanup, or fines, penalties, or other damages arising under any environmental laws Grantee's indemnification obligations include assuming potential liability for actions brought by Grantee's own employees and the employees of Grantee's agents, representatives, contractors, and subcontractors even though Grantee might be immune under Title 51 RCW from direct suit brought by such employees. It is expressly agreed and understood that this assumption of potential liability for actions brought by the aforementioned employees is limited solely to claims against the County arising by virtue of Grantee's exercise of the rights set forth in this Agreement The obligations of Grantee under this section have been mutually negotiated by the Parties, and Grantee acknowledges that the County would not enter into this Agreement without Grantee's waiver To the extent required to provide this indemnification and this indemnification only, RESOLUTION NO I Page 8 of 17 NONEXCLUSIVE WATER AND SEWER FRANCHISE Grantee waives its immunity under Title 51 RCW as provided in RCW 4.24 115 In the event any matter (for which the County intends to assert its rights under this Section 3 2) is presented to or filed with the County, the County shall promptly notify Grantee thereof, and Grantee shall have the right, at its election and at its sole cost and expense, to settle and compromise such matter as it pertains to Grantee's responsibility to indemnify, defend, and hold harmless the County, its agents, officers, or employees In the event any suit or action is started against the County based upon any such matter, the County shall likewise promptly notify Grantee thereof, and Grantee shall have the right, at its election and at its sole cost and expense, to settle and compromise such suit or action, or defend the same at its sole cost and expense, by attorneys of its own election, as it pertains to Grantee s responsibility to indemnify, defend, and hold harmless the County, its agents, officers, or employees Acceptance by the County of any work performed by Grantee under this Agreement shall not be grounds for avoidance of this Section 3 2 The provisions of this Section 3.2 shall survive the termination or expiration of this Agreement 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 nghts of way The limit of liability shall not be less than two million dollars ($2 000,000) 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 RESOLUTION NO I'7'goo Page 9 of 17 NONEXCLUSIVE WATER AND SEWER FRANCHISE 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 pohcy(ies) E Grantee shall furnish the Real Estate Services Division with properly executed certificates of insurance naming Lewis County as pnmary non-contributory additionally insured, or a signed policy endorsement which shall clearly evidence all insurance required m 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 authonzation granted hereunder, and to reimburse the County's costs in connection with administration and oversight of this Franchise, and in connection with reviewing, inspecting, monitonng, 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 and sewer 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 RESOLUTION NO I q' Od Page 10 of 17 NONEXCLUSIVE WATER AND SEWER FRANCHISE either its proprietary or governmental capacity, the Board may, at its option and by giving forty-five (45) days wntten notice to Grantee, terminate this Franchise with reference to any County nghts 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 authonzed 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 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 water and sewer system facilities within ninety(90)days from the County rights of way Grantee shall be liable for any costs incurred in removing the water or sewer pipeline of Grantee and restoring any County rights of way In removing its facilities, 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 facilities 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 or sewer 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 RESOLUTION NO I q' g-0 Page 11 of 17 NONEXCLUSIVE WATER AND SEWER FRANCHISE 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 appropnate 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 and sewer 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, shanng, 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 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 l 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 part of the property and equipment of Grantee, the County may serve notice of revocation on RESOLUTION NO )q' Page 12 of 17 NONEXCLUSIVE WATER AND SEWER FRANCHISE 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 nghts 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 410 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 Notice to Grantee shall be sent to Industrial Park at TransAlta 1111 Big Hanaford Road Centralia,WA 98531 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 RESOLUTION NO 4Q '9 -c) Page 13 of 17 NONEXCLUSIVE WATER AND SEWER FRANCHISE 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 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 onginal 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 m 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 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 wntten representations or understandings not incorporated herein are specifically excluded This Franchise is executed in duplicate onginals and executed by the persons signing below who warrant that they have the authonty to execute this Franchise 4 19 Familiarity with Franchise The Grantee acknowledges and warrants by acceptance RESOLUTION NO ICI ' a a D Page 14 of 17 NONEXCLUSIVE WATER AND SEWER FRANCHISE 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 4.20 Acceptance Within thirty (30) days after adoption of this Franchise by the Board, this Franchise may be accepted by Grantee by executing this Franchise in duplicate, filing it with the Clerk of the Board, and paying publication costs set out in Sec 4 1 of this Franchise Further, the executed Franchise shall be returned accompanied by the required evidence of insurance as provided in Sec 3.3 of this Franchise, the Financial Security as provided in Sec 3 1 of this Franchise In the event Grantee fails to accept this Franchise or fails to comply with all conditions of acceptance as set forth herein within thirty(30)days after adoption by the Board, this Franchise shall be null and void. DONE IN OPEN SESSION this ' ' day of , 2019 __d _r___ ACCEPTANCE B o • ' 0 OF COMMISSIONERS Z PAS for Le s County, Washingto Grantee il---- A' Robert C Jackson, Chair (Authorized Signatory&Representative) Its Prey i elk K • Gary S per, ice'Chair ATTEST 67i'/ - k al yr" Edna J. Fund, Comm;oner Rieva Lester, Clerk of the Lewis County 0.COUNT°• Board of County Commissioners ® �ls5 o •. APPROVED AS TO FORM : ' SINCE \i Q: •,, IL' 1845 , z: Jonathan L Meyer, P executing Attorney®�%, ,_. c���i : jlt ` �_ , e,omm s- . By �, �!AL •.�bNS15�..• Civil Deputy RESOLUTION NO 11 ' -() Page 15 of 17 NONEXCLUSIVE WATER AND SEWER FRANCHISE EXHIBIT A Big Hanaford Road lying within the Southwest Quarter(SW1/4)of Section 29,Township 15 North,Range 1 West,W M and in the Southeast Quarter(SE1/4)of Section 30,Township 15 North,Range 1 West,W M RESOLUTION NO I g -le 0 ) Page 16 of 17 NONEXCLUSIVE WATER AND SEWER FRANCHISE L �..�„r. '� z s. till • ' ---,=, -....k ,... 1 Mr ar _.41 I/ , _ 4,131 ,..jiii_ _i _ ' 8 la. Iiiiik.,\ II 1 p„I I.___ ").`-- pm z , .., , 1 r i_ : ? i . , 1j o Z 0 D T PO 01 fD Oi 3 CD 3 po n N ro r) i( N / — k ✓ p .. \\\) r X . RESOLUTION NO l(1 /0 0D Page 17 of 17 NONEXCLUSIVE WATER AND SEWER FRANCHISE r"- ir /ft/ I j r ` C' ri � 3 cu c co C u cu tlo ry JY s t O 10 YC� z Of r Ln ❑ a o 0 g. c _ iIr = O Ai . _. inn piv ......Aft , Mill Rif .' 1110111Pa 1111 k.......„ , Iii4a__ lilll i „ Ill . _ . --, .`_ . 145,1, - . nillor , -_„11111% -111040 iiii \—.kik Iii 111 . if" . EN in i C3 f II n.4.7...,-si I 1 231•111 BOCC AGENDA ITEM SUMMARY Resolution BOCC Meeting Date. Jul 29, 2019 Suggested Wording for Agenda Item: Agenda Type. Hearing Approving a franchise to Industrial Park at Transalta, to construct, operate and maintain water and sewer facilities on Big Hanaford Road right-of-way in Lewis County, WA Contact Josh Metcalf Phone: 2697 RECEIVED Department Public Works JUL 18 2019 Action Needed Approve Resolution LEWIS COUNTY PROSECUTING ATTORNEY Description Lewis County Code 12.20 and RCW 36 55 require that all utility installations in county road rights of way be authonzed by a franchise from Lewis County An application for a franchise has been received by the Board of County Commissioners(BOCC)from Industrial Park at Transalta, to construct, operate and maintain water and sewer facilities on Big Hanaford Road right-of-way in Lewis County, WA The application and all related materials have been reviewed and found appropriate for further proceedings A hearing was set by Resolution No 19-187 dated July 8th, 2019, and all required notices were given to the public Public Works recommends approval of the Resolution to grant a franchise to Industrial Park at Transalta, to construct, operate and maintain water and sewer facilities on Big Hanaford Road right-of-way in Lewis County, WA Approvals' Publication Requirements: Hearing Date- Jul 29, 2019 User Group Status Publications. Metcalf, Josh Public Works Pending Publication Dates. Additional Copies Kim Amrme Fiscal Martin Roy Greg Snelson Robin Saline