Chapter 4.60 WARNER FLATS WATER DISTRICT FRANCHISE

(1) Pursuant to Chapter 36.55 RCW and Chapter 8.25, the board of county commissioners for Chelan County, Washington, hereby grants to Warner Flats Water District a nonexclusive franchise (the “franchise”) under the terms and conditions in this franchise resolution (the “franchise resolution”).

(2) The territorial boundaries of Chelan County are established as set forth in RCW 64.04.040. The franchise granted by this chapter covers public rights-of-way located within the portion of the unincorporated Chelan County, Washington (the “franchise area”), as depicted in Appendix A, attached to the resolution codified in this chapter, which is incorporated herein.

(3) Pursuant to the franchise granted by this chapter, the franchisee shall have the right, privilege and authority to use public rights-of-way in the franchise area for the purpose of installing, operating and maintaining its irrigation facilities (the “permitted use”), and for no other use whatsoever. To facilitate the permitted use, the franchisee shall have the right to install, locate, construct, operate, maintain, use, replace, and/or remove such equipment and facilities as may be reasonably necessary for the conduct of the permitted use (the “franchise facilities”), in, on, across, over, along, under or through public rights-of-way located in the franchise area. Notwithstanding the existence of the franchise granted in this chapter, the installation, construction, location, operation, maintenance, use, replacement, and removal by franchisee of any franchise facility will be subject to applicable provisions of Chapters 3.04, 8.25, 8.26, 8.28 and 15.30, and shall comply with applicable laws, rules and regulations as provided at Section 4.60.070.

(4) The franchise granted by this chapter merely authorizes the franchisee to occupy and use the public rights-of-way located in the franchise area, and does not transfer, convey or vest any easement, title, servitude, or other real property interest in or to any public right-of-way or portion thereof to the franchisee. (Res. 2016-87 § 1, 10/4/16).

4.60.020 Nonexclusive franchise.

(1) This franchise granted by this chapter is granted upon the express condition and understanding that it shall be a nonexclusive franchise which shall not in any manner prevent or hinder the county from granting to other parties, at other times and under such terms and conditions as the board of county commissioners, in its sole discretion, may deem appropriate, other franchises or similar use rights, in, on, across, over, upon, along, under or through any public right-of-way. Additionally, the franchise shall in no way prevent, inhibit or prohibit the county from using any of the county roads, public rights-of-way or other public properties covered or affected by this franchise, nor shall this franchise affect the county’s jurisdiction, authority or power over any of them, in whole or in part. The county expressly retains its power to make or perform any and all changes, relocations, repairs, maintenance, establishments, improvements, dedications, or vacations of or to any of the county roads, public rights-of-way, or other public properties covered by or affected by this franchise as the county may, in its sole and absolute discretion, deem fit, including the dedication, establishment, maintenance and/or improvement of new public rights-of-way, thoroughfares and other public properties of every type and description.

(2) The franchisee shall perform any installation, location, maintenance, operation, relocation, removal and any other work related to any franchisee facilities occurring within, upon, over, under, across or through any public right-of-way covered by this chapter, in a safe and workmanlike manner, in such a way as to minimize interference with free flow of traffic and the use of adjacent property, whether such property is public or private. Owners, whether public or private, of any authorized facilities or equipment installed within, upon, under or across a public right-of-way prior to construction and/or installation of any franchisee facilities in the same location, shall have preference as to positioning and location of their facilities, subject to the authority of the county engineer to direct the position and location of all facilities in the public right-of-way. (Res. 2016-87 § 2, 10/4/16).

4.60.030 Term—Early termination—Renewal.

(1) The initial term of the franchise shall be for a period of twenty-five years, beginning on the effective date of the resolution codified in this chapter, and continuing until the date that is one day prior to the twenty-fifth anniversary of the effective date (the “expiration date”), unless earlier terminated, revoked or modified pursuant to the provisions of this chapter.

(2) The county shall have the right, in its sole and absolute discretion, at any time prior to the expiration date, to unilaterally elect to open negotiations with the franchisee regarding proposed amendments, alterations or other changes (collectively, the “amendments”) to the terms and conditions of the franchise granted by this chapter. In such event, the county shall deliver written notice to the franchisee stating the county’s general desire to alter the terms and conditions of the franchise. Within seven days after the date on which the franchise receives the county’s notice letter, the franchisee and the county shall enter into good faith negotiation regarding potential amendments to the terms and conditions of the franchise. Should the parties reach an agreement regarding such amendments, the parties shall memorialize such amendments and seek approval of the same by the board of county commissioners. Should the parties be unable to reach an agreement regarding proposed amendments within sixty days after the date on which negotiations commenced, then the franchise granted by this chapter shall automatically terminate. In the event of termination under this subsection, the franchisee shall promptly remove all franchisee facilities from the public rights-of-way as required by Section 4.60.140; except, the county engineer may authorize the franchisee to abandon or temporarily abandon in place all or any portion of the franchisee facilities.

(3) If the district elects to renew this franchise, the district shall submit written application/notice to the county at least one hundred twenty days prior to the franchise expiration date. If the district initiates a renewal of this franchise, the county may, at its sole discretion, by resolution extend the term of the franchise for up to one year. (Res. 2016-87 § 3, 10/4/16).

4.60.040 Permits required.

(1) The franchisee shall not commence any construction or other similar work within public right-of-way until (A) a permit to disturb a county road has been issued by the county for site-specific location or installation, including but not limited to, relocations, (B) if required by Title 3, a building permit authorizing such work has been issued by the county, and (C) if required by Title 11, a conditional use permit authorizing franchisee’s activity has been issued by the county. In addition to any standards of performance imposed by this chapter, any and all work performed by the franchisee pursuant to the franchise granted by this chapter shall be performed in accordance with all current county standards applicable to such work, including county-approved plans and specifications for the work, and the terms and conditions of any right-of-way use permit, permit to disturb a county road, conditional use permit and/or other permits and/or approvals required in order to accomplish the work (e.g., lane closure or road detour permits). The franchisee understands and acknowledges that some or all of the franchisee’s activities may require additional project permits and approvals under the county’s land use codes and development regulations, and that the franchisee accepts full responsibility for obtaining and complying with the same.

(2) In addition to any criteria set forth in the county’s utility accommodation policies, in reviewing the franchisee’s application for any right-of-way use permit, pursuant to this chapter, the county engineer shall apply the following criteria in reviewing proposed utility routes and in the issuance, conditioning, or denial of such permit:

(A) Capacity of the public rights-of-way at issue to accommodate the proposed franchise facilities;

(B) Capacity of public rights-of-way at issue to accommodate additional utility, cable, telecommunications, or other public facilities in the right-of-way if the permit is granted;

(C) Damage or disruption, if any, to public and private facilities, improvements, service, travel, or landscaping if the permit is granted;

(D) Public interest in minimizing the cost and disruption of construction within the public rights-of-way at issue, including but not limited to coordination with future utility installation or county improvement projects;

(E) Recent and/or proposed construction and/or improvements to the public rights-of-way at issue;

(F) Availability of alternative routes, locations, and/or methods of construction or installation of proposed franchisee facilities, including but not limited to whether other routes are preferred; and

(G) Whether the franchisee had obtained all requisite licenses, certificates, permits, and other authorizations from applicable federal, state, and local agencies with jurisdiction over the activities proposed by the franchisee. (Res. 2016-87 § 4, 10/4/16).

4.60.050 Location of franchise facilities—Undergrounding of franchise facilities—Shared excavations.

(1) Franchisee facilities shall be located to minimize the need for later adjustment or relocation to accommodate future roadway improvements and to permit access to servicing such franchisee facilities with minimum interference with roadway traffic and with other utilities. Where existing utility facilities are in place, new or relocated franchisee facilities shall be installed compatible with the existing installations. Locations of new or relocated franchisee facilities within county rights-of-way shall be approved in writing by county engineer prior to installation.

(2) The franchisee acknowledges that the county desires to promote a policy of undergrounding of facilities within the franchise area. Except as otherwise specifically authorized in a permit granted by the county, all facilities shall be located underground in conformity with all Chelan County Code, and applicable laws, regulations, agency orders, and industry standards.

(3) The franchisee acknowledges that the county desires to promote its policy of coordination and cooperation among franchisees in the right-of-way and agrees to make a good-faith effort to coordinate and share excavations with other franchisees with facilities in the vicinity of proposed excavation upon such terms as may be agreed between franchisees and satisfactory to the county engineer; provided, that such sharing of excavations shall not interfere with, hinder, or delay any county construction project or maintenance. (Res. 2016-87 § 5, 10/4/16).

4.60.060 Coordinating design—Alternative design.

(1) The county and the franchisee (individually also referred to as a “party,” or together as the “parties”) shall consult with each other as early as feasible in project planning to coordinate the design and the timing of the work of their projects.

(2) During the design phase of county construction projects requiring relocation of franchise facilities, the county will consult with the franchisee to coordinate design. Upon the county’s request, the franchisee shall locate its facilities during this time to facilitate the coordination.

(3) Whenever the county determines it necessary for any portion of the franchisee facilities within county right-of-way to be removed, relocated, or altered to accommodate county construction, reconstruction, maintenance, repair or betterment of county roads, drainages, bridges, or other county facilities or property, the franchisee shall change, relocate, reconstruct, or remove any and all such franchisee facilities as directed by the county engineer. The county shall not be responsible to reimburse the franchisee’s costs incurred pursuant to this section to accommodate county work; however, the franchisee may, at its own expense, devise and submit for county consideration alternative design(s) for any portion of a county road or bridge project affecting franchisee facilities. An alternative design may only be implemented upon the county engineer’s approval of the alternative as an acceptable design and safety equivalent to the county’s design. (Res. 2016-87 § 6, 10/4/16).

4.60.070 Compliance with applicable laws and standards.

(1) The franchisee shall at all times during the term of the franchise abide by all federal, state, and local laws, codes, rules, regulations, and standards (including, but not limited to, the county’s comprehensive plan, zoning code, and other development and environmental regulations and standards) that are applicable to any and all franchisee work or other activities performed by the franchisee pursuant to or under the authority of the franchise, and applicable to its franchise facilities.

(2) All franchisee work shall be performed in a manner which avoids or minimizes impacts on critical areas contained in the public rights-of-way. Prior to commencing any work in a critical area as defined in Section 13.04.230, the franchisee shall comply with applicable requirements of Chapters 11.78, 11.82, and 11.86, and any other provisions of the Chelan County Code and shall obtain all required permits and approvals. The granting of this franchise shall in no way relieve the franchisee from its responsibility for avoiding a “take” of any threatened or endangered species as defined by the Endangered Species Act of 1973, 16 U.S.C. Section 1531 et seq., as amended, in the performance of any work authorized by this chapter and/or right-of-way use or road disturbance permits.

(3) The franchisee is responsible to comply with requirements for RCW 58.04.015 and 58.09.130, WAC 332-120-010 through 332-120-070, and Chapter 15.30. In doing so, the franchisee shall, at its sole expense, obtain permits related to survey markers and monuments, engage licensed surveyors to perform survey work required by state law, and in compliance with state law and permits, replace all markers or monuments lost, destroyed, or disturbed during any franchisee construction or other franchisee work.

(4) During periods of installation, maintenance, operation, relocation, removal or other work related to any franchisee facilities occurring within, upon, over, under, across, or through public right-of-way covered by this franchise, the franchisee shall use its best efforts to ensure that to the extent reasonably feasible, such work does not impede: (A) public use of the county road and/or public right-of-way at issue for vehicular or pedestrian transportation; (B) the construction and/or maintenance of other authorized facilities, equipment and improvements, whether public or private; (C) the operation, maintenance or improvement by the county at the site at issue or any county road, public right-of-way or other public property affected by the franchisee’s work; or (D) the use of the site at issue for other governmental purposes.

(5) The franchisee shall perform any installation, location, maintenance, operation, relocation, removal and any other work related to any franchisee facilities occurring within, upon, over, under, across or through any public right-of-way covered by this chapter, in a safe and workmanlike manner, in such a way as to minimize interference with free flow of traffic and the use of adjacent property, whether such property is public or private.

(6) Owners, whether public or private, of any authorized facilities or equipment installed within, upon, under or across a public right-of-way prior to construction and/or installation of any franchisee facilities in the same location shall have preference as to positioning and location of their facilities, subject to the authority of the county engineer to direct the position and location of all facilities in the public right-of-way.

(7) Applications for permits for work in county right-of-way shall be presented to the public works department, which may require copies of plans, blueprints, cross-sections, or further detailing of work to be done. Grantee shall comply with all terms, conditions, standards and insurance coverages which may be required under the terms of the permit(s).

(8) The franchisee agrees and covenants to comply with the following requirements, whether or not stated in any permit:

(A) Any work done, whether by franchisee, its contractors, or third parties will include necessary paving, patching, grading, and any other reasonable necessary repair or restoration to the county right-of-way. All work shall be done to the reasonable satisfaction of the county engineer at grantee’s expense and in full compliance with the requirements of the Americans with Disabilities Act of 1990 (ADA), as amended.

(B) If located within the county road or right-of-way, the franchisee’s facilities and all equipment, and supplies used in the operation, maintenance, repair, or construction of the franchisee’s facilities shall be considered to be part of franchisee’s system and shall be the franchisee’s responsibility to maintain, repair, and operate.

(C) All permits required by any agency or jurisdiction for the operation, maintenance, repair or construction of said system shall be applied for and given in the name of the franchisee, who will be responsible for all work done under the permit. The franchisee shall remain responsible for all franchisee work whether the work is done by the franchisee, its contractors, or by third parties.

(D) The franchisee shall pay all costs and expenses incurred by the county in reviewing plans and specifications, as and to the extent required by applicable provisions of the Chelan County utility accommodation policy and other Chelan County code.

(E) The franchisee shall abide by all terms and conditions of permits issued by the county, shall perform all work consistent with all permit provisions, and shall be responsible for traffic management during performance of any work undertaken in the right-of-way.

(F) The franchisee shall post financial assurance for the estimated amount for repairs and shall pay all other required county fees before any permit may be issued to allow the franchisee to disturb any county right-of-way.

(G) No excavation shall be made or obstacle placed within the limits of the county right-of-way in such a manner as to interfere with public travel over the county road, except as authorized by the county engineer.

(H) If work done under this franchise interferes in any way with the drainage of the county road, the franchisee shall solely and at its own expense make such provision as the county engineer may direct to take care of such drainage.

(I) All work by the franchisee shall be completed to the reasonable satisfaction of the county engineer.

(J) Upon the franchisee’s completion of any work within or affecting county right-of-way, all rubbish and debris shall be immediately removed and the county roadway and roadside shall be left neat and presentable to the reasonable satisfaction of the county engineer. (Res. 2016-87 § 7, 10/4/16).

4.60.080 Restoration of county right-of-way.

(1) Promptly after completion of any franchisee work in, on, upon, over, under, across, along, or through any public right-of-way, including but not limited to any excavation, installation, construction, relocation, maintenance, repair and/or removal of any franchise facilities, the franchisee shall, at the franchisee’s sole cost and expense, restore the surface of the site and any adjacent affected areas to as good or better a condition as the property was in immediately prior to the commencement of the franchisee’s work. The franchisee shall also comply with all restoration conditions contained in applicable permits or approvals. In the event of the franchisee’s excavation through a paved county roadway or other paved public property, the franchisee shall restore the paved area to a standard and condition reasonably acceptable to the county engineer. Patching methods approved by the county engineer to repair the excavation and the surface of the paving to as near the standard of the original pavement as is possible may include the use of a hot mix in place asphalt patch or approved equal and/or the full overlay of the paved area for asphalt-paved roads, and the replacement of the affected portion of the panel to the nearest existing expansion joints for concrete-paved roads. Completion of county roadway restoration in a manner consistent with the approved plans shall satisfy the franchisee’s restoration obligations under this subsection. All franchisee restoration work shall be done in full compliance with the requirements of the Americans with Disabilities Act of 1990 (ADA), as amended. The county engineer shall have the final authority to determine, in every instance of restoration, whether the franchisee has performed adequate restoration.

(2) If the franchisee, its agents or its contractors fails to restore any county right-of-way to the reasonable satisfaction of the county engineer, the county may, after twenty days’ written notice, make such repairs or restorations as are necessary to return the county right-of-way to their pre-work condition; except, if in the reasonable opinion of the county engineer, the franchisee’s deficient restoration causes an emergency situation resulting in an immediate hazard to public safety, health, or property, the county may repair the deficiency without prior notice to the franchisee. The county shall provide oral notice followed by written notice immediately following such repair. The franchisee shall be responsible for reimbursing the county for all costs and expenses incurred by the county to correct any deficiency in the franchisee’s restoration of the right-of-way, whether with notice as set out above or on an emergency basis. Upon presentation of an itemized bill for repairs or restorations, including the costs of labor and equipment, the franchisee shall pay the bill within ninety days. If the county brings suit upon the franchisee’s failure to pay for repair and restoration, and if judgment in such a suit is entered in favor of the county, then the franchisee shall pay all of the actual costs, including interest from the date the bill was presented, disbursements, and reasonable attorneys’ fees and litigation-related costs incurred. (Res. 2016-87 § 8, 10/4/16).

4.60.090 Maps and records of franchisee facility locations.

(1) The franchisee agrees and covenants that it shall, promptly upon substantial completion of any construction project involving public right-of-way, provide to the county, at no cost to the county, a copy of all record drawings, maps and other records depicting the final locations and conditions of the franchisee facilities located within the public right-of-way.

(2) The county may, at any time, deliver a written request to the franchisee for documentation showing the location of all or any portion of the franchisee facilities located in county right-of-way. The franchisee shall provide the county, at no cost to the county, the requested documentation within a reasonable time after receipt of the county’s request.

(3) Documentation requested pursuant to subsection (1) of this section shall be provided in a commonly used digital format specified by the county, unless the county agrees to accept hard copy maps or records in lieu of digital documentation. Franchisee’s failure to comply with provisions of subsection (1) or (2) of this section shall constitute a default authorizing the county to terminate the franchise in accordance with Section 4.60.210(1). (Res. 2016-87 § 9, 10/4/16).

4.60.100 Relocation or removal of franchise facilities to accommodate county work.

(1) The franchisee agrees and covenants that it will promptly, at its sole cost and expense, protect, support, temporarily disconnect, relocate or remove from any public right-of-way any portion of the franchise facilities when so required by the county due to any of the following reasons: (A) public safety, (B) traffic conditions, (C) dedications of new rights-of-way and establishment or improvement thereof, (D) widening and/or improvement of existing rights-of-way, (E) right-of-way vacations, (F) change or establishment of road grade, or (G) the construction of any public improvement or structure by any governmental agency or entity acting in a governmental capacity; provided, that the franchisee shall have the privilege to temporarily bypass, in the authorized portion of the same public right-of-way, upon approval of the county engineer, any franchise facilities required to be temporarily disconnected or removed. The provisions of this section apply to all franchise facilities wheresoever situated within any public right-of-way, regardless of whether a franchise facility at issue was originally placed at such location under authority of an easement or other property interest prior to the property becoming public right-of-way.

(2) Whenever necessary for the construction, repair, improvement, alteration, or relocation of all or any portion of a county right-of-way as determined by the county engineer, or if the county engineer shall determine that the removal, relocation, or alteration of any or all franchise facilities from county right-of-way is necessary, incidental, or convenient to the construction, repair, improvement, alteration, or relocation of any county road or other county facility, the franchisee shall, at its sole expense, upon one hundred eighty days’ notice by county engineer, lower, raise, change, relocate, reconstruct, or remove any and all such franchisee facilities from the county right-of-way as may be required to conform to the plans for work contemplated or ordered by county engineer. If relocation and/or removal of such franchisee facility(s) is necessary but one hundred eighty days’ notice is not feasible, the county shall provide the franchisee with such notice as soon as reasonably practicable. All such changes, reconstruction, or relocation by the franchisee shall be done in such manner as will cause the least interference with the county’s performance and operations in the maintenance of its right-of-way.

(3) If the franchisee fails, neglects, or refuses to perform, within one hundred eighty days of receiving notice from the county, any change, removal, relaying, or relocating of any facilities required of franchisee by this franchise, the county may undertake and perform such requirement and the cost and expense thereof shall be immediately repaid to the county by the franchisee. (Res. 2016-87 § 10, 10/4/16).

4.60.110 Maintenance of franchisee facilities—Franchisee property in county right-of-way.

(1) The franchisee shall, at its sole expense, maintain its facilities for which this franchise is granted in a condition reasonably satisfactory to the county engineer.

(2) The franchisee bears the risk of damage or loss of the franchisee’s property placed by the franchisee in the county right-of-way, and the county will not assume responsibility for damage to the franchisee’s franchise facilities and various objects that are placed by the franchisee in county right-of-way, except damage or loss to the extent caused by the negligence or willful misconduct of county. The franchisee shall maintain its above-ground franchise facilities within the franchise area so as not to unreasonably interfere with the county’s maintenance of its rights-of-way nor with the free and safe passage of traffic. (Res. 2016-87 § 11, 10/4/16).

4.60.120 Hazardous materials.

(1) The franchisee covenants and agrees that the permitted use does not involve, and the franchisee shall not use, dispose, treat, generate or otherwise bring onto any public right-of-way covered by this chapter, any substances or materials that are classified as hazardous or otherwise harmful to life, health and/or safety (“hazardous material”) under one or more applicable federal, state, or local laws, codes, rules, regulations, ordinances/resolutions (collectively, the “hazardous material laws”). Notwithstanding other provisions of this chapter, the franchisee may, during its performance of any construction or maintenance activities authorized by this chapter, use de minimus quantities of such hazardous materials as may be reasonably necessary for the performance of such work; provided, that any such use of hazardous materials shall at all times be undertaken in full compliance with hazardous material laws, including any orders or instructions issued by authorized regulatory agencies.

(2) The franchisee covenants and agrees that it will neither cause or permit, in any manner, the release, seepage or spill of any hazardous material upon, into, under, over, across or through any public right-of-way or property adjacent thereto, whether public or private, in violation of any applicable hazardous material law. Should any such release of hazardous material occur, the franchisee shall immediately provide written notice of such release to the Washington State Department of Ecology and to the county engineer. The franchisee agrees that it shall indemnify, defend and hold the county, its elected officials, officers, employees, agents and volunteers (collectively, the “county parties”) harmless from and against any and all claims, lawsuits, actions, judgments, awards, penalties, fines and other damages (including, but not limited to, reasonable attorneys’ fees and costs) incurred or suffered by any of the county parties, arising from or related to the release, seepage or spill of any hazardous material caused by an act or omission of the franchisee or its directors, officers, agents, employees, contractors or licensees (collectively, the “franchisee parties”) within a public right-of-way or property adjacent thereto, whether public or private. The franchisee shall be responsible, at its sole cost and expense, for completely cleaning up and remediating, as required by any governmental agency having jurisdiction, any and all hazardous material released or spilled by any franchise party within a public right-of-way or a property adjacent thereto, whether public or private. Notwithstanding the franchisee’s obligation to completely remediate the same, in the event of any release or spill of hazardous material by a franchise party, the county may—but need not—in the interest of protecting the health, safety, welfare and property of the public, immediately take whatever action it deems reasonably necessary or advisable, in its sole discretion, to contain, clean up or remediate a release or spill by a franchise party. Should the county take any action pursuant to the preceding sentence, the county shall be entitled to reimbursement from the franchisee of any and all costs and expenses incurred by the county in performing such action.

(3) Should franchisee cause a release of hazardous material in violation of applicable hazardous material laws as described in subsection (2) of this section, such release shall constitute a default authorizing the county to terminate the franchise in accordance with Section 4.60.210(1).

(4) The obligations of the franchisee under this section shall survive the expiration or earlier termination of the franchise granted by this chapter. (Res. 2016-87 § 12, 10/4/16).

4.60.130 Emergencies—Hazardous conditions—Emergency management plan—County authority to abate.

(1) A party with actual notice shall promptly notify the other party of an emergency or hazardous condition related to or affecting its own or the other party’s facilities in county right-of-way. The parties shall cooperate and make reasonable efforts to respond as quickly and effectively as practical with reasonable action to minimize damage and to secure life, health and safety of the public and property.

(2) Notification of a hazardous condition or operation shall be timely made to the appropriate party by any reasonable means, including emergency notification for a hazard imminently dangerous to the public or property. Notice should include information about the location, nature, and extent of the hazard.

(3) The franchisee shall prepare, file, and keep updated with the county an emergency management plan for responding to any emergency condition. The franchisee’s plan shall designate responsible official and emergency twenty-four-hour on-call personnel and the procedures to be followed when responding to an emergency. Emergency notification shall be made to the appropriate party at the following emergency contact telephone numbers:

If to the County:	If to the Franchisee:
24-Hour Contact Number:	24-Hour Contact Number:
(509) 663-9911	(509) 670-6038
Contact Name/Title: RiverCom 911	Contact Name/Title: Mike Walcker/President

(4) Whenever any condition or operation caused by any activity undertaken by the franchisee within the franchise area becomes a hazard to life and limb, endangers property or public resources, or adversely affects the safety, use, or stability of a public right-of-way or drainage channel, the county engineer shall notify the franchisee in writing of the property upon which the condition or operation is located, or other person or agent in control of said property, and direct the franchisee to repair or eliminate such condition or operation within the period specified therein so as to eliminate the hazard and be in conformance with the requirements of this franchise.

(5) Should the county engineer have reasonable cause to believe that a situation is so adverse as to preclude written notice, he or she may take the measures necessary to eliminate the hazardous situation; provided, that he or she shall first make a reasonable effort to notify the franchisee before acting. If the franchisee creates or causes the hazardous situation, the franchisee shall be responsible for the payment of any reasonable costs incurred by county to eliminate the hazard. If costs are incurred and the hazardous situation has been created in conjunction with or as a result of an operation for which a bond has been posted pursuant to this franchise or any other county authorization, the county engineer shall have the authority to forfeit the bond or other security to recover the county costs incurred. Notwithstanding the foregoing, the county shall give the franchisee advance written notice of the county’s intention to seek forfeiture of a bond and documentation of the amount that is due for elimination of the hazard. If the county still has not received payment thirty days after the date of the franchisee receipt of such notice, the county may access the bond upon ten days’ prior written notice to franchisee. (Res. 2016-87 § 13, 10/4/16).

4.60.140 Abandonment and removal of franchise facilities.

(1) If the franchise expires or the franchisee decides to discontinue use of and abandons any of the franchise facilities, or the county reasonably determines that the franchisee has discontinued using and abandoned any of the franchise facilities, the franchisee shall, at its sole cost and as directed by the county engineer, render the facilities safe and remove the entire franchise facilities or portions thereof as directed by the county engineer. If the franchisee fails to comply with the county engineer’s direction, the county has the right, at the franchisee’s sole expense, to render safe or remove any of the franchisee facilities or portions of the franchisee facilities as is reasonably necessary for the public’s health, welfare, safety, or convenience including, but not limited to, the safe operation of county roads, the safe operation of the facilities of other franchisees, or for the construction, renewing, altering, or improving of any county right-of-way, or for the installation of facilities of other franchisees.

(2) If the franchisee has not timely applied for a renewal of this franchise, the franchisee shall, at its sole cost and as directed by the county engineer, render the franchise facilities safe or remove all or any portion of the franchise facilities as the county engineer determines is reasonably necessary for the public’s health, welfare, safety, or convenience including, but not limited to, the safe operation of county roads, the safe operation of facilities of other franchisees, or for the construction, renewing, altering, or improving of any county right-of-way, or for the installation of facilities of other franchisees. If the franchisee fails to render its franchise facilities safe or remove them as directed by the county engineer, then the county shall have the right to render the franchise facilities safe or remove them at the franchisee’s sole cost and expense. Should the county take any action pursuant to the preceding sentence, the county shall be entitled to reimbursement from the franchisee of any and all costs and expenses incurred by the county in performing such action.

(3) Should, at any time during the term of this franchise, the franchisee cease to use all or any part of the franchise facilities for any reason, including, but not limited to, discontinuance, obsolescence, or abandonment of such franchise facility, the franchisee shall promptly thereafter remove such franchise facility from the public right-of-way in accordance with subsection (1) of this section. (Res. 2016-87 § 14, 10/4/16).

4.60.150 Hold harmless and indemnification.

(1) The franchisee shall hold harmless from and indemnify the county parties (as such term is defined in Section 4.60.120) against any and all claims, demands, losses, suits, actions, costs, reasonable attorneys’ fees, litigation costs, expenses, damages, judgments, or decrees suffered or incurred by any of the county parties, including claims by the franchisee’s own employees for which the franchisee might otherwise be immune under RCW Title 51, arising out of or due to any death, injury or disability to persons or damage to property occurring or resulting from the actions or omissions of any of the franchise parties (as such term is defined in Section 4.60.120) in the performance of any rights or privileges granted in the franchise by this chapter; provided, that nothing herein shall require the franchisee to hold harmless from and indemnify the county parties against claims, demands, or suits based solely upon the negligence of the county parties. This indemnification provision constitutes the franchisee’s waiver of immunity under RCW Title 51, solely for the purposes of this indemnification. This waiver has been mutually negotiated by the parties.

(2) The franchisee agrees to process and defend at its own expense all claims, demands, or suits at law or in equity arising in whole or in part from the actions, errors, omissions, or breach of any obligations of the franchise parties arising out of or in connection with any activities related to this franchise or the franchisee’s use of any public rights-of-way covered by this chapter. The franchisee’s duty to assume the defense and pay all expenses thereof shall apply to all claims or allegations of negligence where the duty to provide indemnification in whole or in part potentially applies, whether or not the injuries or damages are ultimately found to be due to the negligence of the franchisee parties.

(3) In the event that the franchisee refuses the tender of defense in any suit or claim, said tender having been made pursuant to the indemnification provision contained herein, and said refusal is subsequently determined by a court having jurisdiction (or such other tribunal as the parties shall agree to decide the matter) to have been a wrongful refusal on the part of the franchisee, then the franchisee shall pay all of the county’s costs for defense of the action, including all expert witness fees, costs, and reasonable attorneys’ fees, including costs and fees incurred in recovering under this indemnification provision.

(4) Inspection or acceptance by the county of any work performed by the franchisee at the time of completion of construction shall not be grounds for avoidance by the franchisee of any obligation under this section.

(5) The provisions of this section shall survive expiration or earlier termination of the franchise granted by this chapter. (Res. 2016-87 § 15, 10/4/16).

4.60.160 Limitation of county liability.

The county’s administration of the franchise granted by this chapter shall not be construed to create the basis for any liability on the part of the county, its elected and appointed officials, officers, employees, and agents for any injury or damage from the failure of the franchisee to comply with the provisions of this chapter; by reason of any plan, schedule or specification review, inspection, notice and order, permission or other approval or consent by the county; for any action or inaction thereof authorized or done in connection with the implementation or enforcement of the franchise by the county, or for accuracy of plans, maps, or records submitted to the county. (Res. 2016-87 § 16, 10/4/16).

4.60.170 Insurance.

(1) The franchisee shall obtain and maintain general comprehensive liability insurance on a per occurrence basis naming Chelan County as an additional insured with limits no less than two million dollars for each occurrence of bodily injury liability or property damage liability and shall provide the county with certificates of said insurance. The coverage amounts set forth may be met by a combination of underlying and umbrella policies so long as in combination the limits equal or exceed those stated. The amounts listed in this subsection shall not constitute any limitation of liability. The franchisee shall initially, and annually thereafter, provide the county with proof of the required insurance. Failure to obtain the required insurance policy or lapse of insurance coverage shall be a basis for revocation of this franchise.

(2) All of the insurance required by this franchise agreement shall be endorsed to include Chelan County as an additional insured and shall stipulate that the insurance afforded by the franchisee’s policy(s) shall be primary insurance and that any insurance, self-insured retention, deductibles, or risk retention trusts maintained or participated in by the parties shall be excess and not contributory to insurance required. All liability insurance policies will be endorsed to show this additional coverage.

(3) In lieu of the insurance requirements set forth in this section, the franchisee may self-insure against such risks in such amounts as are consistent with good utility practice and the per occurrence minimum of two million dollars. The franchisee shall provide the county with a self-insurance letter as evidence that the franchisee maintains a self-insurance program. (Res. 2016-87 § 17, 10/4/16).

4.60.180 Annexation.

If any county right-of-way, or section or portion thereof, is annexed or condemned, the county’s successor shall be subject to franchisee’s occupancy to the extent allowed by law. (Res. 2016-87 § 18, 10/4/16).

4.60.190 Abandonment or vacation of right-of-way.

If the county abandons or vacates any portion of the county right-of-way subject to the franchise granted by this chapter, the county must either reserve a public utility easement or condition the abandonment or right-of-way vacation subject to the franchisee’s continued occupancy. The county agrees to provide the franchisee at least ninety days’ prior written notice of any abandonment or vacation of any portion of such right-of-way. (Res. 2016-87 § 19, 10/4/16).

4.60.200 Assignment or transfer of franchise.

The franchisee may assign or transfer this franchise with prior written consent of the board of county commissioners. Such consent to assign shall not be unreasonably withheld, conditioned or delayed; provided, however, that the franchisee may assign this franchise or any of its rights under this franchise without prior notice or consent to (1) any entity that it controls, is under common control with or is controlled by or (2) any entity that is the survivor of a merger, consolidation or other business combination or that acquires all or substantially all of the assets of the franchisee. In the latter circumstance, the franchisee shall provide the county with notice of transfer or assignment within a reasonable time. No assignment or transfer by the franchisee shall be effective unless the franchisee’s assignee accepts all rights, conditions, terms, provisions, and responsibilities contained within the franchise and posts such surety bond or other financial assurance as the board of county commissioners deems necessary. The board of county commissioners may condition its approval of the assignment upon the assignee’s acceptance of new or modified terms of the franchise. If the grantor’s consent is given and the franchise is assigned, a copy of the assignment shall be filed with the county auditor and the assignee shall be responsible for such filing costs. Any assignment or delegation in violation of this section is null and void. (Res. 2016-87 § 20, 10/4/16).

4.60.210 Failure to comply with franchise—No waiver.

(1) If the franchisee violates or fails to comply with any of the terms, conditions or responsibilities of this franchise through neglect or failure to obey or comply with any notice given to the franchisee under the provisions of this franchise, the county may, in its discretion, elect to revoke, amend, alter, change or supplement this franchise.

(2) Except as otherwise provided for in this franchise, and upon written notice, either party in default of the terms and conditions of this franchise will have thirty days to cure the default. A party is not considered to be in default of this franchise if the party commences to cure the default within the thirty-day period and diligently and in good faith continues to cure the default. If any default exists after the cure period, the non-defaulting party may, without prejudice to any other rights or remedies at law or equity or under this franchise, terminate this franchise.

(3) A party’s failure to enforce, or election to not enforce, any provision of this franchise will not constitute a waiver of its right to enforce that provision or any other provisions of this franchise. (Res. 2016-87 § 21, 10/4/16).

4.60.220 County resolutions and regulations—Reservations of police power.

(1) This franchise does not prevent or prohibit the county from constructing, altering, relocating, maintaining, or using any county right-of-way covered by this franchise. The county retains full power to make all changes, relocations, repair, maintenance, construction, or improvements as it may deem fit. The right to operate, maintain, repair and construct franchisee’s facilities, as granted by this franchise, does not preclude the county, its employees, agents or contractors from blasting, grading, or doing other work contiguous to, in the vicinity of or likely to affect the franchisee’s pipes, ditches, lines, and appurtenances located in, upon, under, across, along and over county right-of-way.

(2) By granting this franchise, the county does not waive any of its police powers to regulate the use of county roads or rights-of-way in the interest of public health, safety, and general welfare. The county shall retain full power to construct, alter, change, maintain, relocate, or use its county roads and rights-of-way as it deems necessary. Nothing in this agreement shall limit the county’s power to grant franchises or permits for use of county roads or rights-of-way or parts thereof. (Res. 2016-87 § 22, 10/4/16).

4.60.230 Eminent domain.

This franchise and the limited rights and interests for the construction, maintenance, and operation of the franchisee’s facilities within county right-of-way are subject to the exercise of eminent domain. In the event of the county’s exercise of the right of eminent domain, the value to be attributed to all the rights and interests granted under this franchise shall not exceed the actual amount the franchisee paid to grantor in obtaining this franchise. (Res. 2016-87 § 23, 10/4/16).

4.60.240 Governing law—Venue.

This franchise shall be governed by the laws of the state of Washington and any lawsuit regarding this agreement must be brought in a court of competent jurisdiction for Chelan County, Washington. (Res. 2016-87 § 24, 10/4/16).

4.60.250 Amendment.

This franchise may be amended only by a resolution of the board of county commissioners, accepted by the franchisee, and which specifically states that the resolution is an amendment to the franchise resolution codified in this chapter. (Res. 2016-87 § 25, 10/4/16).

4.60.260 Severability.

If any section, sentence, clause, phrase, provision or portion of any provision of this franchise, or application of the same to any person or entity is found to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall be deemed severed from the remainder of the franchise and shall not affect the validity or constitutionality of any other section, sentence, clause, phrase, provision or portion of any provision of this chapter nor the application of the provision at issue to any other person or entity. (Res. 2016-87 § 26, 10/4/16).

4.60.270 Nonemergency notice and contacts.

(1) Nothing in this section shall be construed to require all communication between the parties to be by written notice. Routine business communication may be in person, by telephone, by email, or by any other reasonable means.

(2) Any nonemergency notice required to be given in writing pursuant to this franchise, including but not limited to coordination of projects or permit applications, shall be by personal delivery or by first class U.S. mail, return receipt requested, to the following addresses:

If to the County:

If to the Franchisee:

County Engineer

Chelan County Public Works Department

316 Washington Street, Suite 402

Wenatchee, WA 98801

Mike Walcker

President

P.O. Box 593

Cashmere, WA 98815

(Res. 2016-87 § 27, 10/4/16).

4.60.280 Acceptance.

Within sixty days after passage and approval of the franchise resolution codified in this chapter by the board of county commissioners, the franchise granted by this chapter may be accepted by the franchisee by its filing with the board of county commissioners and unconditional written acceptance thereof. Failure of the franchisee to so accept the franchise granted by this franchise resolution within the sixty-day period for acceptance shall be deemed a rejection thereof by the franchisee, and the rights and privileges granted herein shall, after expiration of the sixty-day period, cease and terminate, unless the time for acceptance is extended by a resolution of the board of commissioners, duly passed for that purpose. (Res. 2016-87 § 28, 10/4/16).

4.60.290 Effective date.

The franchise granted herein shall take effect, if at all, on the date on which each of the following conditions has been met (the “effective date”):

(1) A minimum of ten days have elapsed since the board of county commissioners enacted the franchise resolution codified in this chapter; and

(2) The franchisee executed and returned a copy of this franchise resolution to the board of county commissioners within the time provided in Section 4.60.280; and

(3) The franchisee presents to the county acceptable evidence of insurance as required in Section 4.60.170. (Res. 2016-87 § 29, 10/4/16).