Approve franchise to Wiltel Communications LLC, telecommunications BEFORE THE BOARD OF COUNTY COMMISSIONERS
LEWIS COUNTY, WASHINGTON
IN THE MATTER OF: RESOLUTION NO. 21-105
APPROVE A FRANCHISE TO WILTEL
COMMUNICATIONS LLC TO INSTALL,
CONSTRUCT, OPERATE AND MAINTAIN
TELECOMMUNICATIONS FACILITIES IN LEWIS
COUNTY ROAD 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 from Wiltel Communications LLC to install, construct,
operate and maintain telecommunications facilities in Lewis County rights of way;
and
WHEREAS, a hearing was set for March 16, 2021, by Resolution 21-062, dated
February 22, 2021, and all required notices were given to the public.
NOW THEREFORE BE IT RESOLVED the Board of County Commissioners
approves the Resolution to grant a franchise to Wiltel Communications LLC to
install, construct, operate and maintain telecommunications facilities in Lewis
County rights of way.
DONE IN OPEN SESSION this 16th day of March, 2021.
Page 1 of 2 Res. 21-105
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: .•'�°- ":�s•• Lindsey R. Pollock, DVM
;
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
WIL TEL COMMUNICATIONS LL C
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. 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 Wiltel Communications LLC
(organized under the laws of the State of Delaware) (hereinafter "Grantee"), a nonexclusive
Franchise for the installation, construction, operation, and maintenance of telecommunications
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 that the County has an interest in only through
agreement and does not possess an easement in the right of way.
B. The Franchise granted shall not authorize or excuse Grantee from securing such
further 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, and
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the Lewis County Telecommunications Ordinance 1171, hereinafter the
"Ordinance," 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 and
the Ordinance 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 and the Ordinance as they are 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 telecommunication 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 rights, permits, licenses and/or
franchises to other Persons to use the rights of way for similar or different purposes allowed
hereunder as the County deems appropriate. Subject to this Franchise, Grantee shall not prevent or
prohibit the County from constructing, altering, maintaining or using any of said rights of way, or
affect its jurisdiction over them or any part of them, the County having full power and authority to
make all necessary changes, relocation, repairs, or maintenance of said rights of way as the County
deems appropriate.
1.5 Renewal Applications. If Grantee desires to renew this Franchise, Grantee shall
comply with Section 12.37.120 LCC.
1.6 Renewal Determinations. Within 120 business days after receiving a signed copy
of the new franchise agreement executed by the Grantee, the BOCC 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
NONEXCLUSIVE TELECOMMUNICATIONS FRANCHISE Page 2 of 17
Section 12.37.130 LCC shall apply when determining whether to grant or deny the application, and
the Board may also consider Grantee's compliance with the requirements of Chapter 12.20 LCC,
and this Franchise.
1.7 Obligation to Cure as a Condition of Renewal. This Franchise shall not be
renewed until any ongoing violations or defaults in Grantee's performance of this Franchise, of the
requirements of the Ordinance, and all applicable laws, statutes, codes, ordinances, rules and
regulations have been cured; or a plan detailing the corrective action to be taken by Grantee has
been approved by the Administrator. Failure to comply with the terms of an approved plan shall be
grounds for non-renewal or immediate revocation of this Franchise.
1.8 Franchise Territory. The Franchise territory shall be that territory set out in
Exhibit A attached hereto and made a part hereof. The Franchise granted shall be the
unincorporated area of the County.
1.9 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 telecommunications facilities under this
Franchise from the rights of way and restore the affected area, all at Grantee's expense, or at the
franchisee's request the County will allow those portions of the infrastructure deemed acceptable
to abandon in place at the discretion and approval of the County Engineer. 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. Telecommunications 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 telecommunications 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
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12.20 LCC. As part of the permitting process, the County may impose such
conditions and regulations as are necessary for the purpose of protecting any
structures in such rights of way, proper restoration of such rights of way and
structures, the protection of the public, and the continuity of pedestrian or vehicular
traffic. Such conditions may also include the provision of a construction schedule
and maps showing the location of the facilities to be installed in the right of way.All
work authorized and required hereunder shall be done in a safe, thorough, and
workmanlike manner. All installations of equipment shall be permanent in nature,
durable,and installed in accordance with good engineering practices.
C. Within limits reasonably related to the County's role in protecting public health,
safety and welfare, the County may require that telecommunications 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; and 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 telecommunications 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 telecommunication 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 telecommunications 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 Telecommunications Facilities. In the relocation or
removal of Grantee's telecommunications facilities, Grantee shall comply with Chapter 12.20 LCC
and the Ordinance.
2.6 Consistency with Designated Use. Notwithstanding this Franchise to use County
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rights of way, no right of way shall be used by Grantee if the County determines that such use is
inconsistent with: (1)the terms and conditions of dedication or establishment of the right of way;(2)
the present use of the right of way;or(3)applicable federal,state or local laws.
2.7 Restoration of Rights of Way. Grantee shall comply with the restoration of rights
of way conditions set out in Chapter 12.20 LCC.
2.8 Restoration of Improvements. Upon completion of any construction work,
Grantee shall make restoration in accordance with Chapter 12.20 LCC.
2.9 Rights of Way and Other Public Property. Grantee shall warrant any restoration
work performed by or for Grantee in the right of way or on other public property for one(1)year. If
restoration is not satisfactorily performed by the Grantee within a reasonable time,the County may,
after 48 hours prior notice to the Grantee, or without notice where the disturbance or damage may
create a risk to public health or safety, cause the repairs to be made and recover the cost of those
repairs from the Grantee. The Grantee shall pay the County within thirty (30) days of receipt of an
itemized list of those costs,including the costs of labor,materials and equipment.
2.10 Telecommunications Facilities Maps. Grantee shall provide the County with
telecommunications facilities maps in accordance with Section 12.20 LCC and the Ordinance.
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, Telecommunications
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 Telecommunications 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
telecommunications facilities or any interruption in telecommunications 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, including, but not limited to, damages, losses, or liability
arising from the issuance or approval by the County of a permit, license or franchise to any third
party.
2.14 Location of Telecommunications Facilities. All telecommunications facilities
shall be constructed, installed, and located in accordance with Chapter 12.20 LCC and the
Ordinance. 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
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underground installation and planning activities with the County's underground plan and policies.
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 telecommunications
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 a release
of hazardous substances caused by Grantee's telecommunications 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's request does not increase the costs to
Grantee or materially slow Grantee's construction, and 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 Telecommunications System Facilities for Other Franchise
Holders. If any removal, replacement, modification or disconnection of the telecommunications
system is required to accommodate the construction, operation or repair 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
law,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
NONEXCLUSIVE TELECOMMUNICATIONS FRANCHISE Page 6 of 17
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 located within the public right-of-way 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 the necessary repairs and alterations
specified therein forthwith to correct the unsafe condition by a time the County establishes. The
County has the right to correct, inspect,administer and repair the unsafe condition if Grantee fails to
do so, and to charge Grantee therefor.
2.21 Stop Work.
A. On notice from the County that any work is being performed contrary to the
provisions of this Franchise, or in an unsafe or dangerous manner as determined by the
County, or in violation of the terms of any applicable permits, laws, regulations, ordinances,
or standards,the work shall immediately stop.
B. The stop work order shall:
1. Be in writing.
2. Be given to the Person doing the work, or posted on the work site.
3. Be sent to Grantee by overnight delivery at the address given herein.
4. Indicate the nature of the alleged violation or unsafe condition.
5. Establish conditions under which work may be resumed.
Section 3. Financial Provisions
3.1 Financial Security. Pursuant to LCC 12.20 the County may require financial security
to ensure completion of construction before any construction work is started by Grantee. Depending
on the nature of the project planned by Grantee a Permit issued by the Public Works Department
before construction starts may require a bond.
3.2 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.
NONEXCLUSIVE TELECOMMUNICATIONS FRANCHISE Page 7 of 17
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 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 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.
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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
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 two million dollars ($2,000,000) per person, two million
dollars($2,000,000)per accident.
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 Administrator.
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
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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. If County elects to exercise such authority,
Grantee will receive written notice of the proposed ordinance not less than 30 days prior to its
first reading and be provided an opportunity to comment. Any subsequently enacted
compensation terms will be applied on a competitively neutral and non-discriminatory basis, and
in compliance with county, state and federal laws. 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 service other than telecommunications service.
3.5 Reimbursement. Except as provided in Subsection 3.4, Grantee shall reimburse
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. The
County's demand shall include appropriate documentation of all such costs and be provided within
ninety(90)days of said costs being incurred by County.
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 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
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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 installation, 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. Grantee may request termination of this Franchise if the use of the property is no
longer necessary or desired.
D. 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 telecommunications
facilities within ninety (90) days from the County rights of way, or at the
franchisee's request the County will allow those portions of the infrastructure
deemed acceptable to abandon in place at the discretion and approval of the
County Engineer. Grantee shall be liable for any costs incurred in removing any
telecommunications facilities of Grantee and restoring any County rights of way. In
removing its plant,structures and equipment,Grantee shall refill, at its own expense,
any excavation that is made by it and shall leave all rights of way,public places and
private property in as good condition as that prevailing prior to Grantee's removal of
its facilities. The indemnification and insurance provisions and the letter of credit
shall remain in full force and effect during the period of removal. 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.
E. If Grantee fails to remove its telecommunications 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.
F. A revocation or termination of this Franchise shall not prejudice any other remedy
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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 installation, construction and maintenance
of any telecommunications facilities by Grantee per regulations in effect at the time of installation as
approved in the permit and plan for said installation. 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. Notwithstanding the
foregoing, upon 60 day written notice to the County this Franchise may be assigned to any party
controlling, controlled by or under common control with Grantee, provided that such assignee
assumes all rights and obligations hereunder.
4.8 Receivership and Foreclosure
A. At the option of the County, subject to applicable law, this Franchise may be
revoked one hundred twenty(120)days after the appointment of a receiver or trustee
to take over and conduct the business of Grantee whether in a receivership,
reorganization,bankruptcy,or other action or proceeding,unless:
1. The receivership or trusteeship is vacated within one hundred twenty (120)
days of appointment;or
2. The receivers or trustees have, within one hundred twenty (120) days after
their election or appointment, fully complied with all the terms and
provisions of this Franchise and have remedied all defaults under the
Franchise. Additionally, the receivers or trustees shall have executed an
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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, or via national overnight courier, addressed to the party to
receive same. Grantee shall promptly notify the County of any change in notice address.
Notice to the County shall be sent to:
Lewis County Public Works Department
Real Estate Services, Property Management
2025 NE Kresky Ave.
Chehalis, WA 98532
Notice to Grantee shall be sent to:
WilTel Communications LLC
C/O Lumen
1025 Eldorado Blvd
Broomfield, CO 80021
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Attn:NIS/ROW
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, in its sole discretion, terminate this
Franchise without cost or penalty.
4.13 Remedies. All remedies and penalties under this Franchise, including termination
of this Franchise,are cumulative,and the recovery or enforcement of one is not a bar to the recovery
or enforcement of any other such remedy or penalty. The remedies and penalties contained in this
Franchise, including termination of this Franchise, are not exclusive, and the County reserves the
right to enforce the provisions of any ordinance or resolution and to avail itself of any and all
remedies available at law or in equity.
4.14 Nonwaiver of Rights. The County and Grantee agree that the excuse or forgiveness
of performance,or waiver of any provision(s)of this Franchise does not constitute a waiver of such
provision(s) or future performance, or prejudice the right of the waiving party to enforce any of the
provisions of this Franchise at a subsequent time.
4.15 Choice of Law. This Franchise has been and shall be construed as having been
made and delivered within the State of Washington, and it is agreed by each party hereto that this
Franchise shall be governed by the laws of the State of Washington, both as to its interpretation and
performance.
4.16 Jurisdiction. Any action at law,suit in equity, or judicial proceeding arising out of
this Franchise shall be instituted and maintained only in any of the courts of competent jurisdiction
in Lewis County,Washington or the federal located nearest thereto.
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
NONEXCLUSIVE TELECOMMUNICATIONS FRANCHISE Page 14 of 17
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 sixty (60) 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, and the Security Fund as provided in Sec. 3.4 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.
►
ACCEPTED by ra ee this ,b day of t4,f & . 20
ACCEPTANCE: BOARD OF COMMISSIONERS
0111( niTifiqa for Lewis County, Washington
ni ret 6)4S LL-
Grantee
B W1 A .
BY: 11f'� �. .—� • S . •per, Chair
(• itho 'zed Signato & Re • sentative)
Its: `JQ,Y.■.cx 11\. .cvn0, 1s"' - /d
•, Vice Chair
ATTEST: ',A ,1s R. -Polloc,}-c, 2VA
i
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Se.' Swope,C. ssioner
`11-/fre."-e531e-41 Rieva Lester, Clerk of the Lewis County
Board of County Commissioners
••.COUNTY, N,9.•
APPROVED AS TO FORM: :��0OI WJ)of syi•
Jonathan L. Meyer, Prosecuting Attorney •4' 2�'�:
SINCE "a:
Val 1g45 �,•PS:
vil Deputy '•;•y7 _co s�-
NONEXCLUSIVE TELECOMMUNICATIONS FRANCHISE Page 16 of 17
Exhibit A
Any and all county roads in Lewis County, WA, not within the limits of any
incorporated city or town.
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43OCC AGENDA ITEM SUMMARY
Resolution: BOCC Meeting Date: March 16, 2021
Suggested Wording for Agenda Item: Agenda Type: Hearing - Resolution
Approve a franchise to Wiltel Communications LLC to install, construct, operate and maintain
telecommunications facilities in Lewis County road rights of way
Contact: Martin Roy Phone:
Department: PW - Public Works
Description:
This resolution approves a franchise to Wiltel Communications LLC to install, construct, operate,
and maintain telecommunications facilities in Lewis County road rights of way.
Approvals: Publication Requirements:
Publications:
User Status
PA's Office Pending
Additional Copies: Cover Letter To:
Tim Fife, Kim Amrine, Martin Roy, Rose
Williams, Tina Hemphill, PW