Approve franchise to Enchanted Valley Vader Water, water facilities in Lewis County road rights of way. BEFORE THE BOARD OF COUNTY COMMISSIONERS
LEWIS COUNTY, WASHINGTON
IN THE MATTER OF: RESOLUTION NO. 21-331
APPROVE A FRANCHISE TO ENCHANTED VALLEY
VADER WATER TO INSTALL, CONSTRUCT,
OPERATE AND MAINTAIN WATER 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 Enchanted Valley Vader Water to install, construct,
operate and maintain water facilities in Lewis County rights of way; and
WHEREAS, a hearing was set for August 31, 2021, by Resolution 21-291, 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 Enchanted Valley Vader Water to
install, construct, operate and maintain water facilities in Lewis County rights of
way.
DONE IN OPEN SESSION this 14th day of September, 2021.
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: ••�.0"--s-1Y,"'qs,•• Lindsey R. Pollock, DVM
PRD OF '`i
3 e° L Y
; lse R. Pollock, DVM, Vice Chair
S,�C� ••
845
.OLD `S� �•
••Rieva Lester y:::°V•'' Sean D. Swope
Rieva Lester, Sean D. Swope, Commissioner
Clerk of the Lewis County Board of
County Commissioners
Page 1 of 1 Res. 21-331
AliTFR 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
VADER WATER 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 ("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 Enchanted Valley Vader Water
(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 they
are now written or as later amended,which shall apply in addition to the provisions of
NONEXCLUSIVE WATER FRANCHISE Page 1 of 17
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 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
NONEXCLUSIVE WATER FRANCHISE Page 2 of 17
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 herein. 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
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
NONEXCLUSIVE WATER FRANCHISE Page 3 of 17
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.
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.
NONEXCLUSIVE WATER FRANCHISE Page 4 of 17
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
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 FRANCHISE Page 5 of 17
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.
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 FRANCHISE Page 6 of 17
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
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
NONEXCLUSIVE WATER FRANCHISE Page 7 of 17
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 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).
NONEXCLUSIVE WATER FRANCHISE Page 8 of 17
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
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.
NONEXCLUSIVE WATER FRANCHISE Page 9 of 17
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 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
NONEXCLUSIVE WATER FRANCHISE Page 10 of 17
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 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
NONEXCLUSIVE WATER FRANCHISE Page 11 of 17
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
Notice to Grantee shall be sent to:
Betsy Dillin
Vader Water 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
NONEXCLUSIVE WATER FRANCHISE Page 12 of 17
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.
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.
NONEXCLUSIVE WATER FRANCHISE Page 13 of 17
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 17
ACCEPTED by Grantee this 22 day of j 0 i -' ,2021
ACCEPTANCE: BOARD OF COMMISSIONERS
for Lewis County, Washington
641..frvuowED VAc e.E.1 1/140t[.. Wg1'E-
Grantee
By: !�, 'iii��/ Gary Stamper, Chair
• uthorized Sign Jos ry&Representative)
Its: RZEcfls(L Matt etkeics .74atWzi4
Li sey P�ck DVl��, Vice Chair
ATTEST:
Sea Swope, Commissioner/_
Rieva Lester, Clerk of the Lewis County
Board of County Commissioners .•aq); , ....�
�y1' ILD Op A'ryVP •�2•
..44.
`�'•
•
' C•
APPROVED AS TO FORM: :°: SINCE
Jonathan L. Meyer, Prosecuting Attorney : '
w
• 1 g45 ,S •
• •
'•9s; Cock• 0.
By: W V\i xsos
Cikkil Deputy
NONEXCLUSIVE WATER FRANCHISE Page 15 of 17
EXHIBIT A
The following described county roads in un-incorporated Lewis County further located in Sections
28, 29, 32, and 33 Township 11 North, Range 2 West, W.M.:
Annonen Rd, S Military Rd, West Side Hwy, and all platted roads located within Enchanted
Valley First, Second, and Third Additions
NONEXCLUSIVE WATER FRANCHISE Page 16 of 17
EXHIBIT B
I
I ate"`� r
Annonen Rd
g I gIT
Ili
11.
29
7
1
1 hkcMuI'phY Glee*
1 c 1
u
c
City of
a Vader
1 /
1 S Military Rd
, ,` ' _� West Side
6tr, ...,ea_. ___/ a \ Hwy
s r' Hwy 506 O
\ r
• a ' g ' r Little
a I 2m.
S , �1ll Pinto Ct 3
� � =I
_Ii_.ai �� Enchanted
t � co 1
` � Valley Dr Pi
i 1� an
Spring Ct I
.
1 z.
1n Olequa Pl0.
e: , ki\ ftY ' •
2 l.ti Park ► ,,
\
\ C �'�?\o�`7,c
N \egvareed.. . o �\
R 1, '•9\9�a O Enchanted
T - 0 u Valley Dr S
H • Olequa Ct ..'
t
F . Olequa Dr
Franchise Area
NONEXCLUSIVE WATER FRANCHISE Page 17 of 17
ORDINANCE NO. 2021-05
AN ORDINANCE OF THE CITY OF VADER, GRANTING
TO LEWIS COUNTY A NON-EXCLUSIVE FRANCHISE TO
CONSTRUCT, MAINTAIN, OPERATE, REPLACE, AND
REPAIR A WATER SYSTEM WITHIN PUBLIC RIGHTS-
OF-WAY OF THE CITY OF VADER FOR A FIVE-YEAR
PERIOD,AND FIXING A TIME WHEN THE SAME SHALL
BECOME EFFECTIVE.
WHEREAS,pursuant to Chapter 35A.47.040 RCW Lewis County has applied to the City
of Vader,for a non-exclusive Franchise to construct,maintain,operate,replace,and repair a water
system within City Rights-of-Way; and
WHEREAS, Lewis County was transferred the Vader water system in 2014 under an
Agreement of Purchase and Sale of Water Assets("Transfer Agreement"); and
WHEREAS, in conjunction with this Transfer Agreement, the City granted a franchise to
the County,and the Parties also executed a Memorandum of Understanding regarding coordination
on water issues; and
WHEREAS, the Parties further executed a subsequent Interlocal Agreement in 2015
regarding reimbursement by the City for the meter reading expense incurred by the County which
the City utilizes in its sewer billings ("Meter Reading ILA"); and
WHEREAS, under the terms of the Transfer Agreement, Vader may make a request any
time before December 16,2023 to have the water system and assets returned; and
WHEREAS, if the water system is transferred back to Vader during the term of this
Franchise Agreement this action would moot the County's need for a Franchise Agreement for
water in Vader; and
WHEREAS, in addition to renewing the Franchise Agreement for water,the Parties desire
to address additional issues related to the Transfer Agreement, Memorandum of Understanding,
and the Meter Reading ILA; and
WHEREAS, pursuant to RCW 35A.47.040, more than five days have passed since this
franchise was introduced to the City's legislative body and this Ordinance has passed at a Regular
Meeting of the Vader City Council by a vote of the majority of the Council,plus one; and
WHEREAS, notice of this Ordinance has been published at least once in a newspaper of
general circulation in the City prior to the Council's adoption of this Non-Exclusive Franchise;
and
WHEREAS the City of Vader finds that it is in the public's best interest to grant Lewis
ORD 2021-05
Page 1 of 16
1375898.6-367464-0016
County's application for a non-exclusive Franchise to construct, operate and maintain a water
system within City Rights-of-Way; and
WHEREAS, Lewis County has agreed to reimburse the City for all of the costs associated
with this Franchise Agreement prior to the effective date thereof; and
WHEREAS, the Vader City Council introduced this Ordinance at its meeting on
,2021 and adopted it at its regular meeting on ,2021;
NOW,THEREFORE,
THE CITY COUNCIL OF THE CITY OF VADER DOES HEREBY ORDAIN AS
FOLLOWS:
Section 1.Definitions.
Where used in this franchise(the "Franchise")these terms have the following meanings:
A. "City" means the City of Vader, a Washington municipal corporation, and
its respective successors and assigns. The City is also the Grantor.
B. "County" means Lewis County, a Washington municipal corporation, and
its respective successors and assigns. The County is also the Grantee.
C. "Facility"or"Facilities" means tanks,reservoirs,water treatment facilities,
meters, pipes, mains, valves, blow offs, vaults, fire suppression water facilities, risers,
generators, electrical control panels, power meters, telephone connections, pressure
reducing valves("PRVs"),pump stations,meter stations, lines, service lines located in the
Franchise Area as defined below, and all other necessary or convenient facilities and
appurtenances thereto for the purpose of operating a water utility system,whether the same
be located over,on, or underground.
D. "Franchise Area"means every and all of the public roads, streets, avenues,
alleys, highways and rights-of-way of the City as now or hereafter laid out, platted,
dedicated or improved; and any and all public City roads,streets,avenues,alleys,highways,
and other rights-of-way that may hereafter be laid out, platted, dedicated or improved
in the County's service area within the present corporate boundaries of the City(as depicted
in Exhibit A, attached hereto, which is by this reference incorporated as if fully set forth
herein), and as such corporate boundaries may be extended within County's service area by
annexation or otherwise, but shall not include private roads, streets, avenues and alleys.
The Franchise Area shall not include or convey any right to the County to install facilities
on, or to otherwise use, City owned or leased properties.
E. "Ordinance"means this Ordinance No. 2021-05,which sets forth the terms
and conditions of this Franchise.
ORD 2021-05
Page 2 of 16
1375898.6-367464-0016
F. "Party" or "Parties" means the City or the County individually, or
collectively as addressed in this Franchise.
Section 2.Franchise.
2.1 Grant of Franchise. The City of Vader, a Washington municipal corporation
(hereinafter"Grantor"or"City")hereby grants Lewis County, a political subdivision of the State
of Washington, (hereinafter "Grantee" or "County"), a non-exclusive Franchise for the
construction, operation, and maintenance of a water system within the Franchise Area. 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 County from securing such
further permits or other approvals as may be required to lawfully occupy,use, or perform
work on, in, or under 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 County 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 County any rights to occupy or use
the Rights-of-Way permanently nor shall operate as an estoppel against the City.
E. County shall make its water services available to any customer within its
Franchise Area who shall request such service, subject to the availability of facilities and
the ability of the customer to pay for the water services. Water service shall be provided
without discrimination, except as permitted by law, as to the terms, conditions, rates or
charges for County's water services.
F. County shall comply with all applicable service quality and continuity
requirements of state and federal law.
G. 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.
2.2 Term of Franchise. The term of this non-exclusive Franchise shall be five(5)years,
unless earlier terminated under the terms of this Franchise Agreement and/or unless earlier
terminated by the transfer of the water system to the City of Vader during the franchise term.
ORD 2021-05
Page 3 of 16
1375898.6-367464-0016
2.3 Non-Exclusive Franchise. The Franchise granted herein shall be non-exclusive. The
City 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 City deems appropriate. Subject to this Franchise, County shall not prevent or
prohibit the City from constructing, altering, maintaining, or using any of said Rights-of-Way, or
affect its jurisdiction over them or any part of them, the City having full power and authority to
make all necessary changes,relocation,repairs,or maintenance of said Rights-of-Way as the City
deems appropriate.
2.4 Renewal Determinations. Within 120 business days after receiving a complete
application for renewal, the City shall make a determination 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.Provided,however,that if this franchise is terminated under the terms
of this Agreement,no explanation shall be required for the City's denial of the renewal.
2.5 Obligation to Cure as a Condition of Renewal. This Franchise shall not be renewed
until any ongoing violations or defaults in County's performance of this Franchise, of the
requirements of this Resolution, and all applicable laws, statutes, codes, ordinances, rules, and
regulations have been cured, or a plan detailing the corrective action to be taken by County has
been approved by the City. Failure to comply with the terms of an approved plan shall be grounds
for non-renewal or immediate revocation of this Franchise.
2.6 Franchise Area. The Franchise Area shall include all City rights of way within the
existing and future corporate boundaries of the City of Vader("Rights-of-Way"). The Franchise
granted herein does not give or grant to County the right, privilege, or authority to install water
system facilities at any other location in the City.
2.7 Amendment of Franchise for Territory Changes. Should County not be able to
install water system facilities within the Franchise Area, County shall request from the City, in
writing,a deviation from the Franchise Area described above.If County desires to extend or locate
its water system facilities in Rights-of-Way which are not included in this Franchise, County shall
apply in writing for an amendment to the Franchise. If the City orders County to locate or relocate
its water system facilities in Rights-of-Way not included in this Franchise, the City shall grant a
Franchise amendment for the area change without further application.
2.8 Right to Require Removal of Property. At the expiration of this Franchise, and if
County has not obtained a new Franchise from the City, the City shall have the right to require
County to remove all or any part of County's water system facilities under this Franchise from the
Rights-of-Way and restore the affected area,all at County's expense.Removal and restoration shall
be to the satisfaction of the City. If County fails to do so,the City may perform the work or cause
it to be done and collect the cost thereof from County.
Section 3. Operation in Rights-of-Way.
3.1 Construction or Alteration. Water system facilities shall be constructed, operated,
ORD 2021-05
Page 4 of 16
1375898.6-367464-0016
and maintained in accordance with this Franchise and all applicable Federal, State,and City codes,
rules, and regulations. County shall comply with all lawful City resolutions and ordinances
regarding the acquisition of permits and/or such other items as may be required in order to
construct,operate,replace,repair,and maintain its water system facilities. County shall pay to the
City all reasonable costs of granting or enforcing the provisions of this Franchise including, but
not limited to, City fees related to the issuance of utility permits, excavation permits, or right of
way use permits.
A. Within limits reasonably related to the City's role in protecting public health,
safety and welfare, the City may require that water system 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 County is not willing to comply with City's
requirements; and may remove, or require removal of, any facility that is not installed in
compliance with the requirements established by the City, and may require County to
cooperate with others to minimize adverse impacts on the Rights-of-Way through joint
trenching and other arrangements.
3.2 Non-Interference. In installing, constructing, operating, repairing, replacing, and
maintaining its water system, County shall not interfere with the use of the Rights-of-Way by the
City,by 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. County's water system shall be
constructed and maintained in such manner as to not 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 City's authority. In the event of such interference, the City may require the removal or
relocation of County's water system from the property in question at County's expense.
3.3 Traffic Control. County shall comply with generally accepted traffic control
provisions.
3.4 Consistency with Designated Use.Notwithstanding this Franchise to use City Rights-
of-Way, County shall not be permitted to place its facilities in a right of way if such use is
inconsistent with the terms, conditions, or provisions by which such right-of-way was created or
dedicated.
3.5 Restoration of Improvements. Upon completion of any construction, operation,
repair,replacement,or maintenance work,County shall promptly restore any disturbed or damaged
property.
3.6 Rights-of-Way and Other Public Property. County shall warrant any restoration
work performed by or for County in the Right-of-Way or on other public property for one(1)year.
If restoration is not satisfactorily performed by the County within a reasonable time,the City may,
after 48 hours prior notice to the County,or without notice where the disturbance or damage may
create a risk to public health or safety,cause the necessary repairs to be made and recover the cost
of those repairs from the County, including the costs of inspection and supervision. Within thirty
ORD 2021-05
Page 5 of 16
1375898.6-367464-0016
(30) days of receipt of an itemized list of those costs, including the costs of labor, materials and
equipment, such itemized costs shall be paid by the County to the City.
3.7 Damage to County's Water System Facilities.To the extent permitted by Washington
law,the City shall not be liable for any damage to or loss of any of County's water system 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 City or any Person
under contract with the City, except for damage caused by the sole negligence of the City. The
City shall not be responsible for any damages, losses, or liability arising from the issuance or
approval by the City of a permit, license, or franchise to any third party.
3.8 Hazardous Substances.
County shall comply with any and all applicable laws, statutes, regulations and orders
concerning hazardous substances relating to County's water system and County's actions and
omissions in the City rights-of-way.
A. County agrees to indemnify, defend, and hold harmless the City against any
claims, costs, and expenses, of any kind, whether direct or indirect, incurred by the City
arising out of a release of hazardous substances caused by County's water system and
County's actions and omissions in the City rights of way.
3.9 Notice of Work.County shall provide the City advance notice of emergency and non-
emergency work within City rights-of-way.
3.10 Movement of Water System Facilities for Other Franchise Holders If any
removal, replacement, modification, or disconnection of the water system is required to
accommodate the construction, operation or repair of the facilities or equipment of another City
franchise holder,County shall,after at least thirty(30)days'advance written notice,take action to
effect the necessary changes requested by the responsible entity. County may require that the costs
associated with the removal or relocation be paid by the benefited party.
3.11 Work of Contractors and Subcontractors. County's contractors and subcontractors
shall be licensed and bonded in accordance with state law.Work by contractors and subcontractors
is subject to the same restrictions, limitations and conditions as if the work were performed by
County. County 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 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 correcting all damage caused by them. It is
County's responsibility to ensure that contractors,subcontractors or other persons performing work
on County's behalf are familiar with the requirements of this Franchise and other applicable laws
governing the work performed by them.
3.12 Inspection of Construction and Facilities. The City may inspect any of County'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 City shall have the right to charge
ORD 2021-05
Page 6of16
1375898.6-367464-0016
generally applicable inspection fees therefor. If an unsafe condition is found to exist, the City, in
addition to taking any other action permitted under applicable law,may order County, in writing,
to make the necessary repairs and alterations specified therein forthwith to correct the unsafe
condition by a time the City establishes. The City has the right to correct, inspect, administer, and
repair the unsafe condition if County fails to do so, and to charge County therefor.
3.13 Stop Work.On notice from the City that any work is being performed contrary to the
provisions of this Franchise,or in an unsafe or dangerous manner as determined by the City,or in
violation of the terms of any applicable permit, laws, regulations, ordinances, or standards, the
work may immediately be stopped by the City.
A. 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 County by overnight delivery at the address given herein;
4. Indicate the nature of the alleged violation or unsafe condition; and
5. Establish conditions under which work may be resumed.
Section 4. Financial Provisions.
4.1 Release,Indemnity and Hold Harmless.In addition to and distinct from the insurance
requirements of this Franchise, County releases and shall hold harmless City, its elected and
appointed officers, officials, employees, volunteers, agents, and representatives from any and all
claims, losses, costs, liabilities, damages and expenses, including, but not limited to, those of
County's lessees, and also including, but not limited to, reasonable attorneys' fees: 1) arising out
of or alleged to arise out of any claim for damages for County's violation of infringement of any
copyright, trademark, trade name, service mark or patent, or of any other right of any Person; 2)
arising out of or in connection with County's acts or omissions during the installation of any water
system facilities,the performance of any work,the operation of any water system facilities,or the
County's systems; and 3) arising out of or in connection with the acts or omissions of County or
any of its suppliers or contractors of any tier, or anyone acting on County's behalf in connection
with said installation of water system facilities,performance of work,or operation of water system
facilities or County's system.
A. Such hold harmless shall include any demand, claim, suit or judgment for
damages to property or injury to or death of Persons, including officers, agents, and
employees of any Person including payment made under or in connection with any
Worker's Compensation Law or under any plan for employees' disability and death
benefits,which may arise out of or be caused or contributed to directly or indirectly by the
erection, maintenance, presence, operation, use, or removal of County's water system
facilities or installations of water system facilities including any claims or demands of
customers of County with respect thereto.
B. City shall not be liable to County or to County's customers, and County
hereby holds harmless the City against any and all such claims or demands, suits, or
judgments for loss, liability, damages, and expense by County's customers, or for any
ORD 2021-05
Page 7 of 16
1375898.6-367464-0016
interruption to the service of County, or for interference with the operation of the water
system, except for claims or demands, suits, or judgments or interruption of service or
interference with operations caused by the sole negligence of the City.
C. To the fullest extent permitted by applicable law, the foregoing release and
hold harmless provisions shall apply to and be for the benefit of the City.
D. Inspection or acceptance by the City of any work performed by County shall
not be grounds for avoidance by County of any of its obligations under this Section. Said
indemnification obligations shall extend to claims which are not reduced to •a suit and any
claims which may be compromised prior to the culmination of any litigation or the
institution of any litigation.
E. In the event of liability for damages arising out of bodily injury to persons
or damages to property caused by or resulting from the concurrent negligence of County
and the City,County's liability hereunder shall be only to the extent of County's negligence.
F. The provisions of Section 4.1 shall survive the expiration or termination of this
Franchise. Further, all provisions of Section 4.1 shall apply to the successors and assigns
of County.
4.2 Insurance.
A. County's insurance policy of self-insurance must provide liability coverage,and
include public liability coverage for bodily injury,property damage,and personal injury of
not less than TWO MILLION($2,000,000.00)combined single limit per occurrence,with
a general aggregate amount of not less than FOUR MILLION($4,000,000.00)per policy
period. The County certifies that it is self-insured and agrees to provide acceptable
evidence of it its self-insured status to City.
B. In the event the County, after commencement of this Agreement, elects to
terminate its self-insured status and secure commercial liability coverage,the County will
promptly notify City, and provide a certificate of insurance from an insurer licensed to
conduct business in the State of Washington.
Coverage, if obtained by the County in compliance with this section, shall not be
deemed as having relieved the County of any liability.
4.3 Payment of Utility Taxes. The City has imposed a utility tax on water. The current
rate is seven (7)percent of the total gross amount assessed monthly or bimonthly on charges for
use for water furnished to each and every customer in the City. County has been remitting these
utility taxes to City under the prior franchise agreement and County agrees to continue to do so
under this Franchise Agreement. Such taxes are due and payable monthly to City based on the
prior month's gross receipts and such taxes shall be remitted to the City no later than the end of
the month following the County's collection of such taxes from the customer.
ORD 2021-05
Page 8 of 16
1375898.6-367464-0016
4.4 No limitation. This Franchise shall not be interpreted to prevent the City from
imposing additional lawful conditions,including additional compensation conditions for use of the
Rights-of-Way, should County provide service other than a water system.
4.5 Reimbursement.County shall reimburse the City within thirty(30)calendar days after
receipt of written demand for all reasonable amounts paid and costs incurred by the City in relation
to this Franchise or the enforcement thereof,including the City's legal fees in reviewing, drafting,
researching,and negotiating this Franchise Agreement.
Section 5. Coordination between water and sewer.
5.1 Coordination, in general. The Parties are both municipal government agencies. The
City operates a sewer system in the Franchise Area. The County operates a water system which
was transferred from the City and which may be transferred back to the City during this Franchise
Term. Use of the sanitary sewer system requires water and all water typically drains to the sewer
system which is then subject to wastewater treatment by the sewer provider.Therefore,sewer rates
are based on water consumption volumes. When water service is turned on, sometimes the
customer does not also seek to start sewer service. When this happens, the customer is still using
sewer service without permission from the City and without payment for these services. The
Parties agreed to coordinate with each other when they executed a Memorandum of Understanding
("MOU") on or about December 19, 2013 for the purpose of promoting intergovernmental
consultation while the County owns the and operates the water utility which was transferred to it
under the Transfer Agreement. The MOU requires the Parties to coordinate regarding the water
system, including new connections, projects in the Franchise area, etc. The coordination and
cooperation as set forth in this section is consistent with the MOU.
5.2 Water Connections Require Sewer Connections. When a customer requests water
service for a property located within the City limits of Vader,the County agrees that it will inform
the customer that the customer will also need to obtain sewer service from Vader. The County will
promptly notify the City when a request for new water service is received. The City will promptly
communicate to the County whether the customer has also obtained sewer services. For the
purposes of this Section, "promptly"means within three business days.
Section 6.Additional Franchise Provisions.
6.1 Publication Costs. County shall assume the costs of publication associated with this
Franchise as such publication is required by law.
6.2 Eminent Domain. This Franchise is subject to the power of eminent domain and the
right of the City 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.
6.3 Revocation or Termination. This Franchise may be revoked or terminated after
notice, and opportunity to cure.
ORD 2021-05
Page 9 of 16
1375898.6-367464-0016
Failure of County, after written notice, to perform properly and completely each term,
condition, or obligation imposed upon it pursuant to this Franchise, will result in the City having
the authority to terminate this Franchise.
At the expiration of the term of this Franchise or upon its revocation or termination, the
City shall have the right to require County to remove its water system facilities within one year
from the City Rights-of-Way. County shall be liable for any costs incurred in removing any water
system facilities of County and restoring any City Rights-of-Way. In removing its structures and
equipment,County 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 County's removal of its equipment without affecting the electrical or telephone cable wires or
attachments. The indemnification and insurance provisions and the letter of credit shall remain in
full force and effect during the period of removal, and County shall not be entitled to, and agrees
not to request, compensation of any sort therefor.
If County fails to remove its water system facilities to the City's satisfaction in the time
frame required by the City, the City may perform the work and collect the cost thereof from
County.
A revocation or termination of this Franchise shall not prejudice any other remedy for
breach of contract,damages,non-payment or otherwise which the City has under this Franchise or
under law.
6.4 Modification. The City and County 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 City's police power authority or other authority pursuant to applicable laws.
6.5 Franchise Subject to Future City Ordinances and Regulations.Nothing herein shall
be deemed to direct or restrict the City'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 its police powers in the interest of public safety and for the
welfare of the public. The City shall have the authority at all times to control by appropriate
regulations the location, elevation, manner of construction, and maintenance of any facilities by
the County, and the County shall promptly conform with all such regulations, unless compliance
would cause the County to violate other requirements of law.
6.6 Assignments or Transfers. In no event shall a sale, lease, sharing, transfer,
assignment,or disposal of ownership, interest,or control to an entity or person other than the City
be approved without the transferee acknowledging the obligations under this Franchise,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 City.
6.7 Termination of Franchise based on Transfer of Water System to City. The Parties
entered into an Agreement of Purchase and Sale of Water Assets ("Transfer Agreement") which
they executed on or about February 24, 2014. This Transfer Agreement was authorized by the
ORD 2021-05
Page 10 of 16
1375898.6-367464-0016
County via Resolution 13-504 and by the City via Resolution 12-2013. If the water system is
transferred from the County to the City under the terms of the Transfer Agreement during the term
of this Franchise Agreement, then this Franchise Agreement shall automatically terminate upon
the effective date or closing date of that transfer, except that any sections that are expressly
intended to survive termination, shall continue to survive.
6.8 Receivership and Foreclosure. At the option of the City, 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 County whether in a receivership,
reorganization,bankruptcy,or other action or proceeding,unless:
A. The receivership or trusteeship is vacated within one hundred twenty(120)
days of appointment; or
B. 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.
If there is a foreclosure or other involuntary sale of the whole or any part of the property and
equipment of County, the City may serve notice of revocation on County and to the purchaser at
the sale, and the rights and privileges of County under this Franchise shall be revoked thirty (30)
days after service of such notice,unless:
(1) The City 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 City to assume and be bound by
all of the terms and conditions of this Franchise.
6.9 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. Such communication shall
also be sent via email.
Notice to the City shall be sent to: Notice to County shall be sent to:
City of Vader Lewis County Public Works Department
Attn. City Clerk 2025 NE Kresky Avenue
PO Box 189 Chehalis, WA 98532
Vader, WA 98593 Email: Martin.Roy@lewiscountywa.gov
Email: VaderCity@centurylink.net
County shall promptly notify the City of any change in notice address.
ORD 2021-05
Page 11 of 16
1375898.6-367464-0016
6.10 Open Records. The City, including its authorized representative, shall have access
to, and the right to inspect, any books and records of County which are reasonably related to the•
administration or enforcement of the terms of this Franchise or County's facilities within the
rights-of-way. The City may, in writing, request copies of any such records or books and County
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 City,
at the sole expense of County.
6.11 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 City
determine that the severed portions substantially alter the Franchise so that the original intent and
purpose of this Franchise no longer exists, the City may, in its sole discretion, terminate this
Franchise without cost or penalty.
6.12 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 City 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.
6.13 Nonwaiver of Rights. The City and County 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), future performance, or prejudice the right of the waiving party to enforce any of the
provisions of this Franchise at a subsequent time.
6.14 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.
6.15 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.
6.16 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.
6.17 Entire Agreement. The Parties agree that this Franchise is the complete expression
of the terms and conditions hereunder, and supersedes all prior rights, agreements, or proposals
concerning the specific subject matter of this Franchise 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
ORD 2021-05
Page 12 of 16
1375898.6-367464-0016
warrant that they have the authority to execute this Franchise.
6.18 Familiarity with Franchise. The County 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.
6.19 Acceptance.Within thirty(30)days after adoption of this Franchise by the City,this
Franchise may be accepted by County by executing this Franchise in duplicate, signing the
acceptance (Exhibit B), and filing it with the Vader City Clerk. Further, the executed Franchise
shall be returned accompanied by the required evidence of insurance as provided in Section 4.2 of
this Franchise. In the event County 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 City
Council,this Franchise shall be null and void.
Section 7. Recitals Incorporated into Franchise Agreement. The recitals in this
Ordinance are expressly incorporated and made part of the Franchise Agreement.
Section 8. Performance Bond and Insurance. The Performance Bond and insurance
policies provided by Lewis County pursuant to the Franchise shall remain in effect during the franchise
period and any extension thereof.
Section 9. Directions to City Clerk. The City Clerk is hereby authorized and directed to
forward certified copies of this ordinance to the County as set forth in this ordinance. County shall
have thirty (30) days from the receipt of the certified copy of this ordinance to accept in writing
the terms of the Franchise granted to the County by this ordinance and file with the City Clerk the
Statement of Acceptance, attached hereto as Exhibit`B,"and incorporated by reference.
Section 10. Severability. If any section, sentence, clause, or phrase of this Ordinance
should be held to be unconstitutional by a court of competent jurisdiction, such invalidity or
unconstitutionality shall not affect the validity or constitutionality of any other section, sentence,
clause,or phrase of this Ordinance.
Section 11. Publication. This Ordinance shall be published by an approved summary
consisting of the title.
Section 12. Effective Date. This Ordinance shall be effective five days after publication
as provided by law. The terms and conditions of this ordinance shall not be binding on the City
and the County unless the County Board of Commissioners within thirty(30)days of the effective
date of this ordinance adopts a resolution accepting this Franchise, and the date of the adoption of
such resolution by the County Board of Commissioners shall be the effective date ("Effective
Date")of the Franchise.
///
ORD 2021-05
Page 13 of 16
1375898.6-367464-0016
ADOPTED by the City Council of the City of Vader and attested by the City Clerk in
authentication of such passage on this day of , 2021.
APPROVED by the Mayor this day of , 2021.
Joe Schey,Mayor
ATTEST/AUTHENTICATED:
Dianne Floyd, City Clerk
APPROVED AS TO FORM:
Office of the City Attorney
Jennifer S. Robertson
PASSED BY THE CITY COUNCIL:
DATE PUBLISHED:
EFFECTIVE DATE:
ORDINANCE NO: 2021-05
ORD 2021-05
Page 14 of 16
1375898.6-367464-0016
Exhibit "A"
Map of Boundaries of Water System in City of Vader Boundaries
co .
1 Annonen Rd Me LAI
t
r I i cr
i
..T. \
z
1.:
'II
v
.......I.—.
o
o .C . 4,ee•
Mu c OWL' -
/
,.
.,
'- . ,.
- - S Military Rd /
•-.*
,
(*; City of
„.)
Vader
i 1 Ll{,—.. 1 —_„ li - - West Side
Hwy
? L mt 1
Hwy 506 Cz; _
• . t
\ a
Pau al
ixtr
...
- ,
,-.0111- , as
rg
..,
el- _
. .,.
.-', ) tp t; •
Rat Ri -4 ..,;.. 0
N ,,-
, 0
R
T
H
f
il
Franchise Area IIIIIM
NONEXCLUSIVE WATER FRANCHISE
ORD 2021-05
Page 15 of 16
Exhibit"B"
ACCEPTANCE BY LEWIS COUNTY
The undersigned authorized representative of Lewis County hereby declares on behalf of
Lewis County the acceptance of the nonexclusive franchise to Lewis County approved by the
Vader City Council on , 2021,by adoption of Vader Ordinance No. 2021-05.
ACCEPTED this day of ,2021.
LEWIS COUNTY
By:
(Authorized Representative Signature)
NOTARY BLOCK FOR LEWIS COUNTY
STATE OF WASHINGTON )
)SS.
County of Lewis )
On this day of ,2021,before me personally appeared
to me known to be the of Lewis County that executed the foregoing
instrument, and acknowledged said instrument to be the free and voluntary act and deed of Lewis
County,for the uses and purposes therein mentioned,and on oath stated that was authorized to execute
said instrument.
SUBSCRIBED AND SWORN TO before me this_day of ,2021.
NOTARY PUBLIC in and for the State of
Washington,residing at
My commission expires:
ORD 2021-05
Page 16 of 16
1375898.6-367464-0016
Vader Water within City Limits of Vader
zi Annonen Rdt"-----
lei - , , I?1k
: /—
•
al F ,.', '
U :l,
0
ocMutphy 4578Y,.
/d/oci(17,,:E
`' •.,.: S Military Rd Z
City ofVader .rcr Wes? H
r
M ': LF1ys06 -I, . I •/
o Q .g): dial z 3
1x a
va .
i
4-
N _ - \'� `r' a
T I PVG, Gk 4d 6^
H M "
) )
If
Franchise Area
NONEXCLUSIVE WATER FRANCHISE Page 17 of 17
BOCC AGENDA ITEM SUMMARY
Resolution: BOCC Meeting Date: Aug. 31, 2021
Suggested Wording for Agenda Item: Agenda Type: Deliberation
Approve the terms of a franchise between Vader Water and the City of Vader to install, construct,
operate and maintain water facilities within the city limits of Vader
Contact: Martin Roy Phone: 1183
Department: PW - Public Works
Description:
This resolution approves the terms of a franchise between Vader Water and the City of Vader to
install, construct, operate, and maintain water line facilities within the city limits of Vader
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, Betsy Dillon, Gary
Hurley