Approve franchise to Middle Fork Water & Sewer, water and sewer facilities in Lewis County road rights of way. BEFORE THE BOARD OF COUNTY COMMISSIONERS
LEWIS COUNTY, WASHINGTON
IN THE MATTER OF: RESOLUTION NO. 21-330
APPROVE A FRANCHISE TO MIDDLE FORK WATER
& SEWER TO INSTALL, CONSTRUCT, OPERATE
AND MAINTAIN WATER AND SEWER 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 Middle Fork Water & Sewer to install, construct,
operate and maintain water and sewer facilities in Lewis County rights of way;
and
WHEREAS, a hearing was set for August 31, 2021, by Resolution 21-290, dated
August 10, 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 Middle Fork Water & Sewer to
install, construct, operate and maintain water and sewer facilities in Lewis County
rights of way.
DONE IN OPEN SESSION this 14th day of September, 2021.
Page 1 of 2 Res. 21-330
APPROVED AS TO FORM: BOARD OF COUNTY COMMISSIONERS
Jonathan Meyer, Prosecuting Attorney LEWIS COUNTY, WASHINGTON
Amber Smith Absent
By: Amber Smith, Gary Stamper, Chair
Deputy Prosecuting Attorney
ATTEST: .•'�°""'Y` s,;• Lindsey R. Pollock, DVM
Lftudsey R. Pollock, DVM, Vice Chair
'
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•4. „�.�5`0•Rieva Lester '•:14*; °p;s •. Sean D. Swope
Rieva Lester, •••.Sean D. Swope, Commissioner
Clerk of the Lewis County Board of
County Commissioners
Page 2 of 2 Res. 21-330
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
MIDDLE FORK WATER & SEWER SYSTEM
Section 1. Franchise
1.1 Definitions. Terms as used throughout this Franchise shall have the same meanings
given in Section 12.25.020 LCC and Section 12.20.020 LCC. Words not otherwise defined shall be
given their common and ordinary meaning.
1.2 Grant of Franchise. Lewis County, a Washington municipal corporation and
subdivision of the State (hereinafter "County") hereby grants Middle Fork Water & Sewer System
(hereinafter "Grantee"), a nonexclusive Franchise for the installation, construction, operation, and
maintenance of water and sewer system facilities within the rights of way of unincorporated Lewis
County. The following conditions shall apply to the Franchise granted herein:
A. The Franchise granted shall not convey any right, title or interest in the rights
of way but shall be deemed a Franchise only to use and occupy the rights of way for the
limited purposes and term stated herein. The Franchise shall not convey any right,title,
or interest in rights of way in which the County has an interest.
B. The Franchise granted shall not authorize or excuse Grantee from securing such
further easements, leases, permits, or other approvals as may be required to lawfully
occupy and use the rights of way.
C. The Franchise granted shall not be construed as any warranty of title or interest
in any right of way; it does not provide the Grantee with any interest in any particular
location within the right of way; and it does not confer rights other than as expressly
provided in the grant hereof.
D. No act, event, occurrence, or thing shall give Grantee any rights to occupy or
use the rights of way permanently nor shall operate as an estoppel against the County.
E. This Franchise is granted subject to the terms and conditions contained in
Chapter 12.20 LCC,Installation of Utilities on Lewis County rights of way,as they
are now written or as later amended, which shall apply in addition to the provisions of
this Franchise. Provisions of Chapter 12.20 LCC shall control over inconsistent terms
contained in this Franchise; provided, however, that Section 3.2 of this Franchise,
Release, Indemnity and Hold Harmless, shall control for this Franchise over
NONEXCLUSIVE WATER AND SEWER FRANCHISE Page 1 of 16
inconsistent provisions of Chapter 12.20 LCC as is currently adopted.
F. The matters contained in Grantee's Franchise application and all subsequent
applications or proposals for extensions or renewals of this Franchise, except as
inconsistent with law, regulations, or local ordinance, are hereby incorporated by
reference.
G. This Franchise is being granted for a water and sewer system facility for
Grantee's use to provide domestic water and sewer services.
H. Grantee shall 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 Grantee, 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 complete
application for renewal, the Board shall make a determination on behalf of the County granting or
denying the renewal application in whole or in part. If the renewal application is denied, the
determination shall include the reasons for non-renewal. The criteria in Section 12.37.130 LCC shall
apply when determining whether to grant or deny the application, and the Board may also consider
Grantee's compliance with the requirements of Chapter 12.20 LCC,and this Franchise.
1.7 Obligation to Cure as a Condition of Renewal.This Franchise shall not be renewed
until any ongoing violations or defaults in Grantee's performance of this Franchise,of the requirements
of the Ordinance, and all applicable laws, statutes,codes, ordinances,rules, and regulations have been
cured; or a plan detailing the corrective action to be taken by Grantee has been approved by the
Administrator. Failure to comply with the terms of an approved plan shall be grounds for non-renewal
or immediate revocation of this Franchise.
NONEXCLUSIVE WATER AND SEWER FRANCHISE Page 2 of 16
1.8 Franchise Territory.The Franchise territory shall be that territory described in Exhibit A.
The Franchise granted herein does not give or grant to Grantee the right,privilege,or authority to install
water or sewer system facilities at any other location in the County. Grantee agrees not to install water
or sewer system facilities at any other County location without written County approval.
1.9 Amendment of Franchise for Territory Changes. Should Grantee not be able to
install a water and sewer system facility within the Franchise territory, Grantee shall request from the
County, in writing, a deviation from the 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 and sewer
system facilities in rights of way not included in this Franchise, the County shall grant a Franchise
amendment for the territory change without further application.
1.10 Right to Require Removal of Property. At the expiration of this Franchise, and if
Grantee has not obtained a new franchise from the County, the County shall have the right to require
Grantee to remove all or any part of Grantee's water and sewer system facilities under this Franchise
from the rights of way and restore the affected area,all at Grantee's expense. Removal and restoration
shall be to the satisfaction of the County Engineer. If Grantee fails to do so,the County may perform
the work or cause it to be done and collect the cost thereof from Grantee. The actual cost thereof,
including direct and indirect administrative costs,shall be a lien upon all property of Grantee effective
upon filing of the lien with the Lewis County Auditor.
Section 2. Operation in Rights of way
2.1 Construction or Alteration.
A. Facilities shall be constructed,operated,and maintained in accordance with this
Franchise and all applicable Federal, State, and County codes, rules, and regulations;
including,but not limited to,Chapter 12.20 LCC. Grantee shall comply with all lawful
County resolutions and ordinances regarding the acquisition of permits and/or such
other items as may be required in order to construct,operate,and maintain its facilities.
Grantee shall pay to the County all reasonable costs of granting or enforcing the
provisions of this Franchise including, but not limited to, County fees related to the
issuance of utility permits.
B. Grantee shall not construct, maintain, repair, relocate, or remove its facilities
within the rights of way without obtaining a utility permit. Applications for utility
permits to construct Grantee's facilities shall be in compliance with the provisions of
Chapter 12.20 LCC. As part of the permitting process, the County may impose such
conditions and regulations as are necessary for the purpose of protecting any structures
in such rights of way, proper restoration of such rights of way and structures, the
protection of the public, and the continuity of pedestrian or vehicular traffic. Such
conditions may also include the provision of a construction schedule and maps showing
the location of the facilities to be installed in the right of way.All work authorized and
required hereunder shall be done in a safe, thorough, and workmanlike manner. All
NONEXCLUSIVE WATER AND SEWER FRANCHISE Page 3 of 16
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.
2.3 Construction Schedule and Notice of Work. Unless otherwise provided herein,
Grantee, or any Person acting on Grantee's behalf, shall comply with the notice provisions set out in
Chapter 12.20 LCC.
2.4 Traffic Control. Grantee shall comply with the traffic control provisions set out in
Chapter 12.20 LCC.
2.5 Relocation or Removal of Facilities. Chapter 12.20 LCC shall govern the relocation
and removal of Grantee's facilities in the rights of way. .
2.6 Consistency with Designated Use. Notwithstanding this Franchise to use County
rights of way, no right of way shall be used by Grantee if the County determines that such use is
inconsistent with: (1)the terms and conditions of dedication or establishment of the right of way; (2)
the present use of the right of way;or(3)applicable federal, state or local laws.
2.7 Restoration of Rights of way. Grantee shall comply with the restoration of rights of
way conditions set out in Chapter 12.20 LCC.
2.8 Restoration of Improvements. Upon completion of any construction work, Grantee
shall make restoration in accordance with Chapter 12.20 LCC.
2.9 Rights of way and Other Public Property.Grantee shall warrant any restoration work
NONEXCLUSIVE WATER AND SEWER FRANCHISE Page 4 of 16
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 and sewer system services within the rights of way as a result of or in connection with any
emergency removal or relocation, public works, public improvements, construction, excavation,
grading, filling, or work of any kind in the rights of way by or on behalf of the County or any Person
under contract with the County, except for damage caused by the sole negligence of the County.
2.14 Location of Facilities. All water and sewer system facilities shall be constructed,
installed, and located in accordance with Chapter 12.20 LCC. Consistent with any general County
undergrounding policy or program now or hereafter developed, the County may require Grantee's
participation in County-imposed undergrounding or related requirements at Grantee's expense.
Grantee agrees to coordinate its underground installation and planning activities with the County's
underground plan.
2.15 Hazardous Substances.
A. Grantee shall comply with any and all applicable laws,statutes,regulations,and
orders concerning hazardous substances relating to Grantee's facilities in the rights of
way.
B. Grantee agrees to indemnify the County against any claims,costs,and expenses,of any
kind,whether direct or indirect,incurred by the County,arising out of Grantee's release
of hazardous substances caused by or related to the construction, operation or
maintenance of Grantee's facilities.
2.16 Notice to Private Property Owners. Grantee shall give notice to private property
owners of work on or adjacent to private property.
2.17 County Use of Trenching. The Grantee and the County recognize that situations may
occur in the future where the County may desire to place its own cable or conduit in trenches or bores
NONEXCLUSIVE WATER AND SEWER FRANCHISE Page 5 of 16
opened by the Grantee. The Grantee agrees to cooperate with the County in any construction by the
Grantee that involves trenching or boring, provided that the County has first notified the Grantee in
some manner that it is interested in sharing the trenches or bores in the area where the Grantee's
construction is occurring. The Grantee shall allow the County to lay its cable or conduit in the Grantee's
trenches and bores, provided the County shares in the cost of the trenching and boring on the same
terms and conditions as the Grantee at that time shares the total cost of trenches and bores.The County
shall be responsible for maintaining its respective cable or conduit buried in the Grantee's trenches and
bores under this paragraph.
2.18 Movement of Facilities for Other Franchise Holders. If any removal,replacement,
modification,or disconnection of the Grantee's pipelines is required to accommodate the construction,
operation, or maintenance of the facilities or equipment of another County franchise holder, Grantee
shall, after at least thirty(30) days'advance written notice,take action to effect the necessary changes
requested by the responsible entity. Grantee may require that the costs associated with the removal or
relocation be paid by the benefited party.
2.19 Work of Contractors and Subcontractors. Grantee's contractors and sub-contractors
shall be licensed and bonded in accordance with state law. Work by contractors and sub-contractors is
subject to the same restrictions,limitations, and conditions as if the work were performed by Grantee.
Grantee shall be responsible for all work performed by its contractors and subcontractors and others
performing work on its behalf as if the work were performed by it, shall ensure that all such work is
performed in compliance with this Franchise and other applicable laws, and shall be jointly and
severally liable for all damages and for correcting all damage caused by them. It is Grantee's
responsibility to ensure that contractors,subcontractors,or other persons performing work on Grantee's
behalf are familiar with the requirements of this Franchise and other applicable laws governing the
work performed by them.
2.20 Inspection of Construction and Facilities.The County may inspect any of Grantee's
facilities, equipment, or construction at any time upon at least twenty-four (24) hours' notice, or, in
case of emergency, upon demand without prior notice. The County shall have the right to charge
generally applicable inspection fees therefor. If an unsafe condition is found to exist, the County, in
addition to taking any other action permitted under applicable law, may order Grantee, in writing, to
make necessary repairs and alterations forthwith to correct the unsafe condition by a stated date and
time.The County has the right to correct,inspect,administer,and repair the unsafe condition if Grantee
fails to do so, and to charge Grantee therefor.
2.21 Stop Work.
A. On notice from the County that any work is being performed contrary to the provisions
of this Franchise, or in an unsafe or dangerous manner as determined by the County, or in
violation of the terms of any applicable permits,laws,regulations,ordinances,or standards,the
work shall immediately stop.
B. The stop work order shall:
1. Be in writing.
2. Be given to the Person doing the work, or posted on the work site.
NONEXCLUSIVE WATER AND SEWER FRANCHISE Page 6 of 16
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 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, 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.
Grantee's indemnification obligations include assuming potential liability for actions brought by
Grantee's own employees and the employees of Grantee's agents,representatives, contractors, and
subcontractors even though Grantee might be immune under Title 51 RCW from direct suit brought
by such employees. It is expressly agreed and understood that this assumption of potential liability
for actions brought by the aforementioned employees is limited solely to claims against the County
arising by virtue of Grantee's exercise of the rights set forth in this Agreement. The obligations of
Grantee under this section have been mutually negotiated by the Parties,and Grantee acknowledges
that the County would not enter into this Agreement without Grantee's waiver. To the extent
required to provide this indemnification and this indemnification only,Grantee waives its immunity
NONEXCLUSIVE WATER AND SEWER FRANCHISE Page 7 of 16
under Title 51 RCW as provided in RCW 4.24.115.
In the event any matter(for which the County intends to assert its rights under this Section 3.2) is
presented to or filed with the County,the County shall promptly notify Grantee thereof,and Grantee
shall have the right, at its election and at its sole cost and expense, to settle and compromise such
matter as it pertains to Grantee's responsibility to indemnify,defend, and hold harmless the County,
its agents, officers,or employees. In the event any suit or action is started against the County based
upon any such matter,the County shall likewise promptly notify Grantee thereof, and Grantee shall
have the right, at its election and at its sole cost and expense, to settle and compromise such suit or
action,or defend the same at its sole cost and expense,by attorneys of its own election,as it pertains
to Grantee's responsibility to indemnify, defend, and hold harmless the County, its agents, officers,
or employees.
Acceptance by the County of any work performed by Grantee under this Agreement shall not be
grounds for avoidance of this Section 3.2.
The provisions of this Section 3.2 shall survive the termination or expiration of this Agreement.
3.3 Insurance. As a condition of this Franchise, Grantee shall secure and maintain the
following liability insurance policies.
A. Commercial General Liability insurance, and if necessary, Umbrella Liability
insurance, which will cover bodily injury, property damage, and any other exposure
which can be reasonably identified as potentially arising from Grantee's activities within
the 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 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
NONEXCLUSIVE WATER AND SEWER FRANCHISE Page 8 of 16
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
provide services other than water and sewer services.
3.5 Reimbursement. Except as provided in Subsection 3.4 C.,Grantee shall reimburse the
County within thirty(30)calendar days after receipt of written demand for all reasonable amounts paid
and costs incurred by the County in relation to this Franchise or the enforcement thereof.
Section 4. Additional Franchise Provisions
4.1 Publication Costs. Grantee shall assume the costs of publication associated with this
Franchise as such publication is required by law.
4.2 Vacation.
A. If the County vacates all or a portion of any County rights of way which are
subject to rights granted by this Franchise, and said vacation is for the purpose of
acquiring the fee or other property interest in said rights of way for the use of the County
in 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
NONEXCLUSIVE WATER AND SEWER FRANCHISE Page 9 of 16
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 and
sewer system facilities within ninety(90)days from the County rights of way. Grantee
shall be liable for any costs incurred in removing the water or sewer pipeline of Grantee
and restoring any County rights of way. In removing its facilities, Grantee shall refill,
at its own expense, any excavation that is made by it and shall leave all rights of way,
public places, and private property in as good condition as that prevailing prior to
Grantee's removal of its facilities. The indemnification and insurance provisions and
the letter of credit shall remain in full force and effect during the period of removal,and
Grantee shall not be entitled to, and agrees not to request, compensation of any sort
therefor.
D. If Grantee fails to remove its water or sewer system facilities to the County's
satisfaction in the time frame required by the County,the County may perform the work
and collect the cost thereof from Grantee. The actual cost thereof,including direct and
indirect administrative costs, shall be a lien upon all plant and property of Grantee
effective upon filing of the lien with the County Auditor.
E. A revocation or termination of this Franchise shall not prejudice any other
remedy for breach of contract, damages, non-payment or otherwise which the County
has under this Franchise or under law.
4.5 Modification. The County and Grantee reserve the right to modify the terms and
NONEXCLUSIVE WATER AND SEWER FRANCHISE Page 10 of 16
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
and sewer system facilities by Grantee. Grantee agrees to promptly conform to all such regulations as
if they were in effect at the time this Franchise was executed by the County,unless compliance would
cause Grantee to violate other requirements of law. In the event of a conflict between the provisions
of this Franchise and any ordinance(s) enacted or action taken under the County's police power
authority,such ordinance(s)or other exercise of police power shall take precedence over the provisions
set forth herein.
4.7 Assignments or Transfers. Grantee shall comply with LCC 12.20 regarding
assignments,lease,sharing,transfers,and transactions affecting direct or indirect interest or control. In
no event shall a sale, lease, 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 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
NONEXCLUSIVE WATER AND SEWER FRANCHISE Page 11 of 16
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
Notice to Grantee shall be sent to:
Betsy Dillin
Middle Fork Water&Sewer System
2025 NE Kresky Avenue
Chehalis,WA 98532
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.
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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.
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.
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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.
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ACCEPTED by Grantee this day of v e-y , 2021
ACCEPTANCE: BOARD OF COMMISSIONERS
for Lewis County, Washington
Mcoa arreg
Grantee
By: 7
Gary Stamper, Chair
( orized Signatory Representative)
Its: eie'tstd,2 ..‘- fl. PG& /J//L(
Lin ey R. Pollock, DVM, Vice Chair
ATTEST:
ean Swope o issioner
Rieva Lester, Clerk of the Lewis County
Board of County Commissioners ••'s courv!r�•
•.?�0ARDplc•�s••
•
2
APPROVED AS TO FORM: : : SINCE ;o•
Jonathan L. Meyer, Prosecuting Attorney :: 1845 a%z•
e.
•
•sy ros
• �CTON S 1•��•.
By: 9,,(00,6\4-niabiN. ••..••
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EXHIBIT A
Middle Fork Road located in portions of Sections 23, 24, 25, and 26 Township 13 North, Range 1
West W.M., and the West 50 feet of Sections 19 & 30, Township 13 North, Range 1 East W.M.
BirC(1(1eJrJ ._,
c�� a 3 24 Kruger Rd >19
i -4o
44.
se9Uo/ "• ,,0" Birchfield Pkwy
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dle E. R R. o ,'
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s Z. Q a
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o° Middle Fork Rd Ti {
os q- c 3
, 7, N
o
3 Fes— es
F-
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om k,,..-'-
Franchise Area 44
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BOCC AGENDA ITEM SUMMARY
Resolution: BOCC Meeting Date: Aug. 31, 2021
Suggested Wording for Agenda Item: Agenda Type: Hearing - Resolution
Approve a franchise to Middle Fork Water & Sewer to install, construct, operate and maintain water
and sewer facilities in Lewis County road rights of way
Contact: Martin Roy Phone: 1183
Department: PW - Public Works
Description:
This resolution approves a franchise to Middle Fork Water & Sewer to install, construct, operate,
and maintain water and sewer line 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, Martin Roy, Robin Saline, Tina
Hemphill, Sadie Rockey, Gary Hurley