Franchise to Kenneth E.S. Barnes, water line facilities in Lewis County BEFORE THE BOARD OF COUNTY COMMISSIONERS
LEWIS COUNTY, WASHINGTON
IN THE MATTER OF: RESOLUTION NO. 21-050
NOTICE OF HEARING REGARDING A FRANCHISE
TO KENNETH E.S. BARNES TO INSTALL,
CONSTRUCT, OPERATE AND MAINTAIN WATER
LINE FACILITIES IN LEWIS COUNTY RIGHTS OF
WAY
WHEREAS, Lewis County Code 12.20 and RCW 36.55 require that all utility
installations in county road rights of way be authorized by a franchise from Lewis
County; and
WHEREAS, an application for a franchise has been received by the Board of
County Commissioners (BOCC) from Kenneth E.S. Barnes to install, construct,
operate and maintain water line facilities in Lewis County rights of way; and
WHEREAS, said application and all related materials have been reviewed by the
BOCC and found appropriate for further proceedings.
NOW THEREFORE BE IT RESOLVED that the BOCC will hold a public hearing on
the proposed acceptance of the franchise on March 2, 2021, at or after 2:00 p.m.
The hearing will take place at the Lewis County Courthouse, Commissioners'
Hearing Room, 351 NW North Street, Chehalis, Wash., as set forth in the Notice of
Public Hearing attached hereto. Interested parties are encouraged to check the
Commissioners' hearing schedule online at https://lewiscountywa.gov/offices/
commissioners/agendas-calendar/ for updated details as the hearing date
approaches. The Clerk of the BOCC is hereby instructed to proceed with all
appropriate and necessary notifications, posting and publication as required by
RCW 36.55.040.
DONE IN OPEN SESSION this 8th day of February, 2021.
Page 1 of 2 Res. 21-050
APPROVED AS TO FORM: BOARD OF COUNTY COMMISSIONERS
Jonathan Meyer, Prosecuting Attorney LEWIS COUNTY, WASHINGTON
Amber Smith Gary Stamper
By: Amber Smith, Gary Stamper, Chair
Deputy Prosecuting Attorney
ATTEST: •c,°.P; F";.,s,;. Lindsey R. Pollock, DVM
�° Lfrtdse R. Pollock, DVM, Vice Chair
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Rieva Lester ';�s;��`_�?;,:.;: Sean D. Swope
Rieva Lester, Sean D. Swope, Commissioner
Clerk of the Lewis County Board of
County Commissioners
Page 2 of 2 Res. 21-050
NOTICE OF HEARING
NOTICE IS HEREBY GIVEN that the Board of County Commissioners, Lewis County, Washington
(BOCC), has received an application for a non-exclusive franchise from Kenneth E.S. Barnes to
install, construct, operate, and maintain water line facilities located within Lewis County road right
of way in the following location description:
All that part of Mineral Addition in Section 9, Township 14 North, Range 5 East W.M. described
as follows:
The Northerly 450 feet of Lincoln Avenue.
All that part of an alley lying between Lots 1-10, Block 4 and Lots 1-10, Block 5.
All that part of Front Street contiguous to the north end of Lincoln Avenue.
The franchise being considered is for a period of five years.
The application and all related materials have been reviewed by the BOCC and found appropriate
for further proceedings. A hearing on the non-exclusive franchise will be held on March 2, 2021, at
or after 2 p.m., in the Commissioners' Hearing Room on the 2nd floor of the Historic Courthouse in
Chehalis, Washington, when and where all persons may appear and be heard upon the granting of
the franchise. Please look at the Commissioners' hearing schedule at
https://lewiscountywa.gov/offices/commissioners/agendas-calendar/as March 2, 2021, approaches
for updated details.
RCW 36.55.040 requires that notice of hearing be posted in three public places in the county seat of
the county at least 15 days before the day fixed for hearing, and also published two times in the
official newspaper of the county, the last publication to be not less than 5 days before the day fixed
for hearing.
Dated: February 8, 2021 •xscourvr•••
• ��,goARD �'•
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.�' SINCE AI
Rieva Lester :;, 'o
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Clerk of the Lewis County Board � _ ,�
of County Commissioners •;yam,,�, s�o,.'•;
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Publish: The Chronicle February 9 and 16, 201•• ••
AFTER RECORDING RETURN TO:
Lewis County Public Works Dept.
2025 NE Kresky Ave
Chehalis,WA.98532
Tax Parcel Number:N/A Road Right of Way
NONEXCLUSIVE FRANCHISE AGREEMENT
KENNETHE.S. BARNES
Section 1. Franchise
1.1 Definitions. Terms as used throughout this Franchise shall have the same meanings
given in Section 12.25.020 LCC("Lewis County Code") and Section 12.20.020 LCC. In addition to
the meaning set forth in 12.25.020 LCC, "Ordinance", as used herein, shall be inclusive of Chapters
12.20 through 12.50 of the 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 Kenneth E.S. Barnes (hereinafter
"Grantee"),a nonexclusive Franchise for the installation,construction,operation,and maintenance of
water 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
NONEXCLUSIVE WATER FRANCHISE Page 1 of 16
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 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.
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 right to grant, at any time, such tights, 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
NONEXCLUSIVE WATER FRANCHISE Page 2 of 16
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 set pit om
Exhibit A attached hereto and made part of hereof. The Franchise granted herein does not give or
grant to Grantee the right,privilege, or authority to install water facilities at any other location in the
County. Grantee agrees not to install water 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 a water facility within 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 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 water 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 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
NONEXCLUSIVE WATER FRANCHISE Page 3 of 16
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
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.
23 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.
NONEXCLUSIVE WATER FRANCHISE Page 4 of 16
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 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 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
NONEXCLUSIVE WATER FRANCHISE Page 5 of 16
•
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 water facilities 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
sub-contractors and others performing work on its behalf as if the work were performed by it, and
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, sub-contractors, 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.
NONEXCLUSIVE WATER FRANCHISE Page 6 of 16
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.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 arising 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.
NONEXCLUSIVE WATER FRANCHISE Page 7 of 16
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
sub-contractors 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,
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 (subject to approval as set forth below), as it pertains to Grantee's
responsibility to indemnify, defend, and hold harmless the County, its agents, officers, or
employees. Grantee's selection of legal counsel to defend the County shall be subject to the approval
of the Prosecuting Attorney of County; furthermore, Grantee shall exercise its best efforts to provide
legal counsel that is acceptable to the Prosecuting Attorney of County. In addition, the Office of the
Prosecuting Attorney may participate in the defense of the County in any such litigation without
thereby waiving Grantee's indemnity obligations or any other right or protection in this Agreement;
and Grantee agrees to cooperate with the Office of the Prosecuting Attorney as necessary in order to
facilitate its participation in the litigation.
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 rights of way. The limit of liability shall not be less than two million
dollars ($2,000,000) each occurrence with a five million dollar ($5,000,000)
aggregate. The County, its elected and appointed officers, officials, employees,
agents, and representatives shall be named as additional insureds with respect to
NONEXCLUSIVE WATER FRANCHISE Page 8 of 16
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 thirty (30) 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 fifteen (15) 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
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
NONEXCLUSIVE WATER FRANCHISE Page 9 of 16
provide services other than water facilities.
3.5 Reimbursement. Except as provided in Subsection 3.4, 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
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 facilities within
ninety(90) days from the County rights of way. Grantee shall be liable for any costs
NONEXCLUSIVE WATER FRANCHISE Page 10 of 16
incurred in removing the water facilities 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 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 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.
4.8 Receivership and Foreclosure.
A. At the option of the County,subject to applicable law,this Franchise may be revoked
NONEXCLUSIVE WATER FRANCHISE Page 11 of 16
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 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
NONEXCLUSIVE WATER FRANCHISE Page 12 of 16
Notice to Grantee shall be sent to:
Kenneth E.S.Barnes
PO Box 74
Mineral,WA 98355
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 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.
NONEXCLUSIVE WATER FRANCHISE Page 13 of 16
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 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.
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.
NONEXCLUSIVE WATER FRANCHISE Page 14 of 16
ACCEPTED by Grantee this ( 5 day of 1 0fk ,2021
ACCEPTANCE: BOARD OF COMMISSIONERS
for Lewis County,Washington
•
rantee
By: Gary Stamper,Chair
(Authorized Signatory&Representative)
Its:
Lindsey R. Pollock,DVM, Vice Chair
ATTEST:
Sean Swope,Commissioner
Rieva Lester,Clerk of the Lewis County
Board of County Commissioners
APPROVED AS TO FORM:
Jonathan L. Meyer,Prosecuting Attorney
By
Civil Deputy
NONEXCLUSIVE WATER FRANCHISE Page 15 of 16
EXHIBIT A
All that part of Mineral Addition in Section 9,Township 14 North, Range 5 East
W.M. described as follows:
The Northerly 450 feet of Lincoln Avenue.
All that part of an alley lying between Lots 1-10, Block 4 and Lots 1-10, Block 5.
All that part of Front Street contiguous to the north end of Lincoln Avenue.
NONEXCLUSIVE WATER FRANCHISE Page 16 of 16
Kenneth E.S. Barnes Water Franchise Map
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BOCC AGENDA ITEM SUMMARY
Resolution: BOCC Meeting Date: Feb. 8, 2021
Suggested Wording for Agenda Item: Agenda Type: Legal Notice
Notice of hearing regarding a franchise to Kenneth E.S. Barnes to install, construct, operate, and
maintain water line facilities in Lewis County rights of way
Contact: Martin Roy Phone: 740-1183
Department: PW - Public Works
Description:
Lewis County Code 12.20 and RCW 36.55 require that all utility installations in county road rights of
way be authorized by a franchise from Lewis County. An application for a franchise has been
received by the Board of County Commissioners (BOCC) from Kenneth E.S. Barnes, to install,
construct, operate, and maintain water line facilities in Lewis County road rights of way.
This resolution sets a hearing for at or after 2 p.m. March 2, 2021 in the Commissioners' Hearing
Room on the 2nd floor of the Historic Courthouse in Chehalis, Washington, and further instructs the
Clerk of the BOCC to proceed with all appropriate and necessary notifications, posting and
publication as required by RCW 36.55.040. Interested parties are encouraged to check the
Commissioners' hearing schedule online at https://lewiscountywa.gov/offices/commissioners/
agendas-calendar/ as the hearing date approaches for updated details.
Approvals: Publication Requirements:
Publications:
User Status The Chronicle - February 9 & 16, 2021;
PA's Office Pending
Additional Copies: Cover Letter To:
Tina Hemphill, Rose Williams, Kim Amrine,
Matt Hinderlie