NOH: regarding franchise to Claquato Cemetery Association, water facilities in Lewis County rights of way BEFORE THE BOARD OF COUNTY COMMISSIONERS
LEWIS COUNTY, WASHINGTON
IN THE MATTER OF: RESOLUTION NO. 21-214
NOTICE OF HEARING REGARDING A FRANCHISE
TO CLAQUATO CEMETERY ASSOCIATION TO
INSTALL, CONSTRUCT, OPERATE AND MAINTAIN
WATER FACILITIES IN LEWIS COUNTY RIGHTS OF
WAY
WHEREAS, Lewis County Code 12.20 and RCW 36.55 require that all utility
installations in county road rights of way be authorized by a franchise from Lewis
County; and
WHEREAS, an application for a franchise has been received by the Board of
County Commissioners (BOCC) from Claquato Cemetery Association to install,
construct, operate and maintain water facilities in Lewis County rights of way; and
WHEREAS, said application and all related materials have been reviewed by the
BOCC and found appropriate for further proceedings.
NOW THEREFORE BE IT RESOLVED that the BOCC will hold a public hearing on
the proposed acceptance of the franchise at or after 2 p.m. June 29, 2021. The
hearing will take place at the Lewis County Courthouse, Commissioners' Hearing
Room, 351 NW North Street, Chehalis, Wash., as set forth in the Notice of Public
Hearing attached hereto. Interested parties are encouraged to check the
Commissioners' hearing schedule online at httbs://lewiscountywa.gov/offices/
commissioners/agendas-calendar/ for updated details as the hearing date
approaches. The Clerk of the BOCC is hereby instructed to proceed with all
appropriate and necessary notifications, posting and publication as required by
RCW 36.55.040.
DONE IN OPEN SESSION this 8th day of June, 2021.
Page 1 of 2 Res. 21-214
APPROVED AS TO FORM: BOARD OF COUNTY COMMISSIONERS
Jonathan Meyer, Prosecuting Attorney LEWIS COUNTY, WASHINGTON
Amber Smith Gary Stamper
By: Amber Smith, Gary Stamper, Chair
Deputy Prosecuting Attorney
ATTEST: ' �""T` Lindsey R. Pollock, DVM
;▪ S� Rn�F'sF
Rieva Lester, Clerk of the Boarc ° ( 0 dsey R. Pollock, DVM, Vice Chair
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Tamara Martin 9▪ sy• 'T�` ;.� Sean D. Swope
By: Tamara Martin Sean D. Swope, Commissioner
Page 2 of 2 Res. 21-214
NOTICE OF HEARING
NOTICE IS HEREBY GIVEN that the Board of County Commissioners, Lewis County, Washington
(BOCC), has received an application for a non-exclusive franchise from Claquato Cemetery
Association to install, construct, operate, and maintain water facilities located within Lewis County
road right of way in the following location description:
The following described roads located in Section 2, Township 13 North, Range 3 West, W.M.:
Stearns Road from its intersection with Elm View Drive, thence westerly for 1300 feet
Elm View Drive between Stearns Road and Claquato Drive
Claquato Drive between Elm View Drive and State Highway 6
Hwy 603 between State Highway 6 and the Chehalis River
The franchise being considered is for a period of five years.
The application and all related materials have been reviewed by the BOCC and found appropriate
for further proceedings. A hearing on the non-exclusive franchise will be held on June 29, 2021, at
or after 2 p.m., in the Commissioners' Hearing Room on the 2nd floor of the Historic Courthouse in
Chehalis, Washington, when and where all persons may appear and be heard upon the granting of
the franchise. Interested parties are encouraged to check the Commissioners' hearing schedule
online at https://lewiscountywa.gov/offices/commissioners/agendas-calendar/for updated details as
the hearing date approaches.
RCW 36.55.040 requires that notice of hearing be posted in three public places in the county seat of
the county at least 15 days before the day fixed for hearing, and also published two times in the
official newspaper of the county, the last publication to be not less than 5 days before the day fixed
for hearing.
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Publish: The Chronicle June 10 and June 17, 2021
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NONEXCLUSIVE WATER FRANCHISE Page 17 of 17
•
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
CLAQUATO CEMETERY ASSOCIATION
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 Claquato Cemetery Association
(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
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
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
2. Be given to the Person doing the work,or posted on the work site.
3. Be sent to Grantee by overnight delivery at the address given herein.
4. Indicate the nature of the alleged violation or unsafe condition.
5. Establish conditions under which work may be resumed.
Section 3. Financial Provisions
3.1 Financial Security. Pursuant to LCC 12.20 the County may require financial security
to ensure completion of construction before any construction work is started by Grantee. Depending
on the nature of the project planned by Grantee a Permit issued by the Public Works Department before
construction starts may require a bond.
3.2 Release,Indemnity and Hold Harmless.Grantee shall indemnify,defend, and hold
the County, its appointed and 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
NONEXCLUSIVE WATER FRANCHISE Page 7 of 17
($1,000,000).
D. The insurance policies required by Section 3.3 shall be maintained at all times
by Grantee. The insurer or Grantee shall notify the County at least thirty (30) days
before the policy can be canceled by either party to be mailed to the Lewis County
Public Works, Real Estate Services Division (2025 NE Kresky Ave., Chehalis, WA
98532)as well as the named insured.Grantee will be obligated to replace or renew the
canceled or expiring policy and show proof in the form of a certificate of insurance,at
least fifteen(15)days before the expiration or cancellation of the existing policy(ies).
E. Grantee shall furnish the Real Estate Services Division with properly executed
certificates of insurance naming Lewis County as primary, non-contributory
additionally insured, or a signed policy endorsement which shall clearly evidence all
insurance required in Section 3.3.
F. Grantee or its agent will provide a copy of any and all insurance policies
specified in this Franchise upon request of the Real Estate Services Manager.
G. The insurance limits mandated for any insurance coverage required by this
Franchise are not intended to be an indication of limits of exposure nor are they
limitations on liability or indemnification.
H. By acceptance of this Franchise, Grantee agrees that failure to procure or
maintain the required insurance shall constitute a material breach of this Franchise and
that the County may immediately terminate this Franchise or,at the County's discretion,
procure or renew such insurance to protect the County's interests and be reimbursed by
Grantee for all premiums paid in connection therewith.
3.4 Compensation. The Franchise granted hereunder is subject to the County's right,
which is expressly reserved,to annually fix a fair and reasonable compensation for the authorization
granted hereunder,and to reimburse the County's costs in connection with administration and oversight
of this Franchise, and in connection with reviewing, inspecting,monitoring, and supervising the use
and occupancy of the rights of way.Nothing herein shall prohibit the County and Grantee from agreeing
upon the compensation to be paid.
This Franchise shall not be interpreted to prevent the County from imposing additional lawful
conditions,including additional compensation conditions for use of the rights of way,should Grantee
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.
NONEXCLUSIVE WATER FRANCHISE Page 9 of 17
remedy for breach of contract, damages,non-payment or otherwise which the County
has under this Franchise or under law.
4.5 Modification. The County and Grantee reserve the right to modify the terms and
conditions of this Franchise upon written agreement of both parties to such modification or in the
exercise of the County's police power authority or other authority pursuant to applicable laws.
4.6 Franchise Subject to Future County Ordinances and Regulations. Nothing herein
shall be deemed to restrict the County's ability to adopt and enforce all necessary and appropriate
ordinances regulating the performance of the conditions of this Franchise, including any valid
ordinance made in the exercise of the County's police powers in the interest of public safety and for
the welfare of the public. The County shall have the authority at all times to control by appropriate
regulations the location, elevation, manner of construction, operation and maintenance of any water
facilities by Grantee. Grantee agrees to promptly conform to all such regulations as if they were in
effect at the time this Franchise was executed by the County,unless compliance would cause Grantee
to violate other requirements of law. In the event of a conflict between the provisions of this Franchise
and any ordinance(s) enacted or action taken under the County's police power authority, such
ordinance(s)or other exercise of police power shall take precedence over the provisions set forth herein.
4.7 Assignments or Transfers. Grantee shall comply with LCC 12.20 regarding
assignments,lease,sharing,transfers,and transactions affecting direct or indirect interest or control. In
no event shall a sale,lease, sharing, transfer,assignment,or disposal of ownership,interest,or control
be approved without the transferee acknowledging the obligations under LCC 12.20, becoming a
signatory to this Franchise, and assuming all rights and obligations hereunder; and assuming all other
rights and obligations of the transferor to the County.
4.8 Receivership and Foreclosure.
A. At the option of the County, subject to applicable law, this Franchise may be
revoked 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
NONEXCLUSIVE WATER FRANCHISE Page 11 of 17
representative,shall have access to,and the right to inspect,any books and records of Grantee,its parent
corporations and affiliates which are reasonably related to the administration or enforcement of the
terms of this Franchise. The County may,in writing,request copies of any such records or books and
Grantee shall provide such copies within thirty(30) days of the transmittal of such request. One (1)
copy of all reports and records required under this or any other subsection shall be furnished to the
County,at the sole expense of Grantee.
4.12 Severability. The parties understand and agree that if a court holds any part,term, or
provision of this Franchise to be illegal or invalid in whole or in part, the validity of the remaining
provisions shall not be affected, and the parties'rights and obligations shall be construed and enforced
as if the Franchise did not contain the particular invalid provision. Should the County determine that
the severed portions substantially alter the Franchise so that the original intent and purpose of this
Franchise no longer exists,the County may,at its sole discretion,terminate this Franchise without cost
or penalty.
4.13 Remedies. All remedies and penalties under this Franchise, including termination of
this Franchise,are cumulative, and the recovery or enforcement of one is not a bar to the recovery or
enforcement of any other such remedy or penalty. The remedies and penalties contained in this
Franchise, including termination of this Franchise,are not exclusive,and the County reserves the right
to enforce the provisions of any ordinance or resolution and to avail itself of any and all remedies
available at law or in equity.
4.14 Nonwaiver of Rights. The County and Grantee agree that the excuse or forgiveness
of performance, or waiver of any provision(s) of this Franchise, does not constitute a waiver of such
provision(s) or future performance, or prejudice the right of the waiving party to enforce any of the
provisions of this Franchise at a subsequent time.
4.15 Choice of Law. This Franchise has been and shall be construed as having been made
and delivered within the State of Washington,and it is agreed by each party hereto that this Franchise
shall be governed by the laws of the State of Washington,both as to its interpretation and performance.
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.
NONEXCLUSIVE WATER FRANCHISE Page 13 of 17
ACCEPTED by Grantee this day of ,2021
ACCEPTANCE: BOARD OF COMMISSIONERS
for Lewis County,Washington
CSC �.c.-� Cc,ic
Grantee
BY: 4 /.l���,�,6 Gary Stamper,Chair
(Authorized Signatory&Representative)
Its: QX c �QC.
Lindsey R. Pollock,DVM,Vice Chair
ATTEST:
Sean Swope,Commissioner
Rieva Lester,Clerk of the Lewis County
Board of County Commissioners
APPROVED AS TO FORM:
Jonathan L. Meyer,Prosecuting Attorney
By:
Civil Deputy
NONEXCLUSIVE WATER FRANCHISE Page 15 of 17
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NONEXCLUSIVE WATER FRANCHISE Page 17 of 17
BOCC AGENDA ITEM SUMMARY
Resolution: BOCC Meeting Date: June 8, 2021
Suggested Wording for Agenda Item: Agenda Type: Legal Notice
Notice of hearing regarding a franchise to Claquato Cemetery Association to install, construct,
operate and maintain water facilities in Lewis County rights of way
Contact: Martin Roy Phone: 1183
Department: PW - Public Works
Description:
Lewis County Code 12.20 and RCW 36.55 require that all utility installations in county road rights of
way be authorized by a franchise from Lewis County. An application for a franchise has been
received by the Board of County Commissioners (BOCC) from Claquato Cemetery Association, to
install, construct, operate, and maintain water facilities in Lewis County road rights of way.
This resolution sets a hearing for at or after 2 p.m. June 29, 2021 in the Commissioners' Hearing
Room on the 2nd floor of the Historic Courthouse in Chehalis, Washington, and further instructs the
Clerk of the BOCC to proceed with all appropriate and necessary notifications, posting and
publication as required by RCW 36.55.040. Interested parties are encouraged to check the
Commissioners' hearing schedule online at https://lewiscountywa.gov/offices/commissioners/
agendas-calendar/ as the hearing date approaches for updated details.
Approvals: Publication Requirements:
Publications:
User Status The Chronicle -June 10 &June 17, 2021
PA's Office Pending
Additional Copies: Cover Letter To:
Tina Hemphill, Kim Amrine, Robin Saline,
Martin Roy, Matt Hinderlie