Chapter 4.64 CITY OF CHELAN WATER AND SANITARY SEWER FRANCHISE

The board of county commissioners for Chelan County, state of Washington, hereby grants to the city of Chelan, its successors and assigns, a nonexclusive franchise for a period of twenty years for the construction, operation, and maintenance of domestic water distribution pipelines and sanitary sewer system within, under, along and across the county road rights-of-way, within the current urban growth area in unincorporated Chelan County, Washington. (Res. 2019-60 § 1 (App. A § 1), 5/7/19).

4.64.020 Definitions.

The following definitions are provided for the sole purpose of proper interpretation and administration of this chapter:

“Appurtenance(s)” means equipment and/or accessories which are a necessary part of grantees’ facilities.

“Commission” refers to the board of county commissioners for Chelan County acting in its official capacity.

“County” means Chelan County, Washington, a municipal corporation under the laws of the state of Washington.

“County engineer” means the Chelan County engineer.

“Director” means the Chelan County public works director.

“Facilities” or “system” means the grantee’s system of domestic water distribution and sanitary sewerage pipelines and appurtenance(s) located within county road rights-of-way in the franchise area, including water pipe mains, valves, laterals and necessary sanitary sewage collection mains, and fixtures appurtenant thereto, for collection treatment, disposal, and treatment of domestic, commercial, and industrial wastewater in accordance with federal and state regulations.

“Franchise” means an occupancy and use document granted by the county required for occupancy of road rights-of-way in accordance with Chapters 36.55 and 80.32 RCW, and county code.

“Grantee” or “city” means the city of Chelan, a non-charter code city and municipal corporation in Chelan County, state of Washington. When referencing work performed in the county right-of-way, including restoration, or disturbance of, obstruction of, or interference with the county right-of-way, “grantee” shall include the city’s contractors and any customers or other third parties performing any activity in the right-of-way on behalf of or instead of the city, or with the city’s knowledge, acquiescence, or authorization.

“Grantor” means the board of county commissioners for Chelan County, Washington.

“MUTCD” means the Manual of Uniform Traffic Control Devices, including amended editions or a successor.

“Permitted use” means the city’s water distribution and sanitary sewer facilities located within the franchise area.

“Right-of-way” means land, property, or property interest (e.g., an easement), usually in a strip, acquired for or devoted to transportation purposes and as a utility corridor. “Right-of-way” includes the county road.

“Road” or “roadway” means a street, road, or other public way, including shoulders, designated for the purpose of vehicular traffic. As used herein, these terms refer only to those roads or roadways in which Chelan County has an actual interest within the franchise area. (Res. 2019-60 § 1 (App. A § 2, 5/7/19).

4.64.030 Permits, plans, specifications.

(1) County Requirements. The grantee covenants that in consideration for the rights and privileges granted by the franchise codified in this chapter, all work performed by the grantee on county right-of-way shall conform to all county requirements in effect at the time that work is performed. These county requirements include, but are not limited to, the county code regarding utilities on rights-of-way and disturbing county roads, county road cut repair standards and requirements, and MUTCD traffic control requirements.

(2) Permits for Work in the Right-of-Way. The grantee has the right, privilege, and authority to enter the county right-of-way for the purpose of operating, maintaining, repairing, or constructing its facilities, on the condition that prior to commencing any work on a county right-of-way the grantee obtains and complies fully with all required federal, state, and county permits required for such work.

(3) County Permits for Work in the Right-of-Way. Notice shall be given one week prior for any and all work within the county right-of-way. Applications for permits for work requiring pavement cuts in county right-of-way shall be presented to the public works department, which may require copies of plans, blueprints, cross-sections, or urther detailing of work to be done. Permits shall be granted at no cost to the grantee. In an emergency, grantee may perform emergency repairs in county right-of-way without prior notice to the grantor, but shall without delay provide verbal notice to the grantor followed as soon as feasible by a written notice and application. Grantee shall comply with all terms, conditions, standards and insurance coverages which may be required under the terms of the permit(s). Grantee shall comply with the following requirements, whether or not stated in any permit:

(A) Any work done by the grantee will include necessary paving, patching, grading, and any other reasonable necessary repair or restoration to the county right-of-way. All repairs shall be done to the satisfaction of the county engineer at grantee’s expense.

(B) All of grantee’s equipment which is used in the operation, maintenance, repair, or construction of the grantee’s facilities and which is located within the county road rights-of-way shall be considered to be part of the grantee’s system and shall be the grantee’s responsibility.

(C) All permits for the operation, maintenance, repair or construction of said system shall be applied for and given in the name of the grantee, who will be responsible for all work done under the permit.

(D) Grantee shall provide copies of all plans and specifications to the grantor at no cost to grantor.

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

(F) Grantee shall pay an annual franchise fee of two thousand five hundred dollars for the right to maintain its water and sewer system in the county right-of-way and to cover the county’s costs related to issuance of required permits for work in the right-of-way; provided, that each year the county may adjust the franchise fee. The franchise fee may be adjusted effective on the first day of May of each year based on the change in the Consumer Price Index (CPI-U) for the U.S. cities average published by the Department of Labor Statistics for the previous calendar year. Once the Consumer Price Index (CPI-U) for the North Central Washington area is established, the county reserves the right to use it in place of the U.S. cities average. These annual rate changes shall be adopted by the board of Chelan County commissioners prior to becoming effective.

(G) Traffic control for work completed in the right-of-way shall be in accordance with the Manual of Uniform Traffic Control Devices (MUTCD).

(H) Except as may otherwise be agreed in writing between the parties, the grantee 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 grantee to disturb any county right-of-way.

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

(J) All work by the grantee shall be done to the satisfaction of the county engineer in accordance with the most recent repair standards adopted by the county.

(K) On completion of any work by the grantee, all rubbish and debris shall be immediately removed and the roadway and roadside shall be left substantially in the condition it was in prior to the work. (Res. 2019-60 § 1 (App. A § 3), 5/7/19).

4.64.040 Location of grantee’s facilities—Undergrounding—Coordinating design.

(1) Location of Facilities. Grantee’s 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 grantee’s facilities with minimum interference with roadway traffic and with other utilities. Where existing utility facilities are in place, new or relocated grantee’s facilities shall be installed compatible with the existing installations. Locations of new or relocated grantee’s facilities within county rights-of-way shall be approved in writing by county engineer prior to installation.

(2) Undergrounding. The grantee acknowledges that the grantor desires to promote a policy of undergrounding of facilities within the franchise area. To the extent feasible, grantee’s facilities shall be located underground in conformity with county codes, laws, regulations, agency orders, and industry standards.

(3) Shared Excavations. The grantee acknowledges that the grantor desires to promote a 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 grantor; provided, that such sharing of excavations shall not interfere with, hinder, or delay any grantor construction project or maintenance.

(4) Coordinating Design. Grantee shall consult with the county and with other franchise holders in grantee’s project area as early as feasible in grantee’s project planning to coordinate the design and the timing of the work of any of grantee’s projects affecting the county or any other franchise holder in the franchise area. (Res. 2019-60 § 1 (App. A § 4), 5/7/19).

4.64.050 Maintenance of facilities.

(1) Facilities Maintained in Satisfactory Condition. The grantee, at grantee’s sole expense, shall maintain its facilities in a condition satisfactory to the county.

(2) Grantee’s Property and Facilities in Franchise Area. The county will not assume responsibility for damage to the grantee’s property and various objects that are placed in county roads and rights-of-way. The grantee will maintain any above-ground facilities within the franchise area so as not to unreasonably interfere with county maintenance or free and safe passage of traffic. (Res. 2019-60 § 1 (App. A § 5), 5/7/19).

4.64.060 Record of location of facilities—Emergency management plan—Hazardous conditions.

(1) Record of Location of Facilities. The grantee shall maintain full, current and complete records showing the exact location, and size of all facilities in the county right-of-way. These records shall be subject to inspection at reasonable times by the proper officials and agents of the county, and a copy of these records shall be furnished to the county upon request.

(2) Emergency Management Plan. Grantee shall prepare and file with the county an emergency management plan for responding to any emergency condition affecting or related to its facilities. The grantee shall timely provide the county with copies of all updates to its emergency plan. The plan shall designate responsible officials and emergency twenty-four-hour on-call personnel and the procedures to be followed when responding to an emergency. After being notified of an emergency, grantee shall cooperate with the county and make every effort to respond as fast as practical with action to minimize damage and to protect the health and safety of the public.

(3) Hazardous Conditions.

(A) Hazardous Conditions. Whenever any conditions or operations caused by any activity undertaken by grantee pursuant to the franchise codified in this chapter are known to the county engineer to have become a hazard to life and limb, endanger property or public resources, or adversely affect the safety, use, or stability of a public way or drainage channel, the county engineer may notify the grantee 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 them 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 the franchise codified in this chapter.

(B) Mitigating/Eliminating Hazards—Costs. Should the county engineer have cause to believe that the grantee’s hazardous condition or operation is so hazardous or imminent as to preclude written notice, the county engineer may take the measures necessary to mitigate or eliminate the hazardous situation; provided, that the county engineer, if feasible, shall first make a reasonable effort to notify the grantee before acting. In such instance, the grantee (responsible for the creation of the hazardous situation) shall be responsible for the payment of any costs incurred by the county. If costs are incurred by the county 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 the franchise codified in this chapter or any other county authority, the county engineer shall have the authority to forfeit the bond or other security to recover the costs incurred. (Res. 2019-60 § 1 (App. A § 6), 5/7/19).

4.64.070 Restoration of county right-of-way.

(1) Restoration of Right-of-Way. After grantee’s work in, on, upon, over, under, across, along, or adjacent to county road right-of-way, the grantee is responsible for and will leave all county road rights-of-way in at least as good a condition as the rights-of-way were before any work was done. In the event of any excavation through a paved public property, grantee shall restore the paved area in accordance with the county’s current adopted road repair standards or as approved by 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. Restoration under these circumstances shall be at grantee’s sole expense. Full or half-street restoration shall be required as set forth in Attachment 3 to the resolution codified in this chapter. Completion of the county road restoration in a manner consistent with the approved plans shall satisfy the grantee’s restoration obligations under this subsection.

(2) Failure to Restore Right-of-Way. In the event that the grantee should fail to restore any county road right-of-way to the satisfaction of the county engineer, Chelan County may, after twenty days’ written notice make such repairs or restorations as are necessary to return the county road rights-of-way to their pre-work condition, except if in the opinion of the county engineer, the grantee’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 grantee. The grantee shall be responsible for reimbursing the county for any and all costs and expenses incurred by the county to correct any deficiency in the grantee’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 grantee shall pay the bill within thirty days. If suit is brought upon the grantee’s failure to pay for repair and restoration, and if judgment in such a suit is entered in favor of Chelan County, then the grantee shall pay all of the actual costs, including interest from the date the bill was presented, disbursements, and attorneys’ fees and litigation-related costs incurred. (Res. 2019-60 § 1 (App. A § 7), 5/7/19).

4.64.080 Survey markers and monuments.

(1) Reference Points. Before any work is performed under the franchise codified in this chapter, the grantee shall establish two or more reference marks to all monuments and markers of every nature relating to subdivisions, plats, rights-of-way, and all other surveys within their work areas. The reference points shall be located so that they will not be disturbed during any of grantee’s operations under the franchise codified in this chapter. The method of referencing monuments or other markers or points shall be approved by the county surveyor before placement.

(2) Replacement of Markers or Monuments. The replacement of all markers, cases, or monuments disturbed during any construction of the grantee shall be made consistent with state law. The cost of monuments or markers lost, destroyed, or disturbed and the expense of replacement with approved markers or monuments shall be borne by the grantee. (Res. 2019-60 § 1 (App. A § 8), 5/7/19).

4.64.090 Hazardous wastes, substances.

Grantee agrees that it will not negligently or intentionally cause the release of any hazardous substance, waste, or pollutant or contaminant (as defined by applicable law) into or upon any county road or right-of-way in violation of any state or federal law with respect thereto. Grantee shall notify the county and the State Department of Ecology in writing of any such release. Grantee shall be completely liable for any and all consequences of such release, including liability under any federal or state statute or at common law. Grantee shall indemnify and hold the county harmless, as provided in Section 4.64.170, from any and all liability resulting from such a release and shall have full responsibility for completely cleaning up, as required by any government agency, any and all contamination from such release. The county shall be entitled to full contribution and reimbursement for all costs incurred by it as the result of any release of such materials by grantee in violation of any state or federal law. Upon any such release of a hazardous substance by grantee, the county may give immediate notice of termination of the franchise codified in this chapter, or enter the franchise area and take whatever steps it deems appropriate to cure the consequences of any such release, all at the expense of the grantee, but only if grantee does not promptly take corrective action after receiving written notice from the county engineer. (Res. 2019-60 § 1 (App. A § 9), 5/7/19).

4.64.100 Relocation or removal of grantee’s facilities—Alternative design.

(1) Relocation or Removal of Facilities. Whenever the county determines it necessary for any portion of the grantee’s facilities within county right-of-way to be removed, relocated, or altered to accommodate county construction, reconstruction, maintenance, repair or betterment of the county road, drainage, bridge, or other county facilities or property, the grantee shall, at change, relocate, reconstruct, or remove any and all such grantee’s facilities as directed by the county engineer. The county will make every effort to give one calendar year’s notice prior to beginning any construction activities requiring alteration of the grantee’s facilities grades, locations or alignments in order to properly plan, budget and implement the required construction efforts in advance of the county project. The county shall not be responsible to reimburse the grantee’s costs incurred pursuant to this section to accommodate county work; however, the grantee 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 grantee’s facilities.

(2) Alternative Design. 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.

(3) Failure to Relocate or Remove Facilities. Upon failure, neglect, or refusal of the grantee to perform, within thirty days’ notice from the county, any change, removal, relaying, or relocating of any facilities required of the grantee by the franchise codified in this chapter, the county may undertake and perform such requirement and the actual cost and expense incurred by the county shall be reimbursed to the county by the grantee. Upon presentation of an itemized bill for any change, removal, relaying, or relocating of any facilities including the costs of labor and equipment, the grantee shall pay the bill within thirty days. If suit is brought upon the grantee’s failure to pay for any change, removal, relaying, or relocating of any facilities, and if judgment in such a suit is entered in favor of Chelan County, then the grantee shall pay all of the actual costs, including interest from the date the bill was presented, disbursements, and attorneys’ fees and litigation-related costs incurred. (Res. 2019-60 § 1 (App. A § 10), 5/7/19).

4.64.110 County road work—Coordinating design—Excavating and blasting.

(1) County’s Right to Do Road Work. The franchise codified in this chapter does not prevent or prohibit Chelan County from constructing, altering, relocating, maintaining, or using any county road right-of-way covered by the franchise codified in this chapter. County retains full power to make all changes, relocations, repair, maintenance, etc., as it may deem fit. The right to operate, maintain, repair and construct grantee’s facilities granted by the franchise codified in this chapter does not preclude Chelan County, its agents or contractors from blasting, grading, or doing other road work contiguous to, in the vicinity of or likely to affect, the grantee’s lines and appurtenances in, upon, under, across, along and over county right-of-way. If requested during the construction phase of a county project, the grantee may be required to pothole their facilities to determine if conflicts exist. Once this request is made by the county, the grantee has five days to complete the pothole or provide other utility location information to the county. If other forms of utility location information are provided, other than direct potholing, and does not satisfy the county, the five-day window will continue to be in force. If the location information is not received within five days, the grantee may be financially responsible for delay costs incurred by the county or its contractors.

(2) Coordinating Design. The county will, during the design phase of construction projects involving relocation of facilities, consult with the grantee in order to coordinate design. The grantee, upon request, shall locate its facilities during this time to facilitate the coordination. This may include the requirement to pothole at locations specified by the county. These potholes shall be completed within twenty working days from the original request, either by email or letter.

(3) Notice of County Blasting/Excavating Work. When practical, the grantor will give grantee forty-eight hours’ notice of any blasting or excavating conducted by the county so that the grantee may protect its lines and appurtenances. (Res. 2019-60 § 1 (App. A § 11), 5/7/19).

4.64.120 Nonexclusive franchise.

(1) Franchise Not Exclusive. The franchise codified in this chapter shall not be deemed or held to be an exclusive one and shall not prohibit the county from granting rights of like or other nature or other public or private utilities, nor shall it prevent the county from using its roads, right-of-way, or public places, or affect its right to full supervision and control over all or part of them, none of which is hereby surrendered.

(2) Location of Grantee’s Facilities. Grantee’s facilities shall be located to minimize the need for later adjustment to accommodate future roadway improvements and to permit access to servicing such installations with minimum interference with roadway traffic and other utilities. Where existing utility facilities are in place, new facilities shall be compatible with the existing installations. Locations of new or relocated facilities within the right-of-way shall be approved in writing by the county prior to installation. (Res. 2019-60 § 1 (App. A § 12), 5/7/19).

4.64.130 Binding effect and assignment.

(1) Binding Effect. All of the provisions, conditions, regulations and requirements herein contained shall be binding upon the grantee, its successors and assigns, and all privileges as well as all obligations and liabilities of the grantee shall inure to its successors and assigns equally as if they were specifically mentioned in the franchise codified in this chapter wherever the grantee is so mentioned.

(2) Assignment or Transfer. The grantee may not assign or transfer the franchise codified in this chapter without consent of the commission. Such consent to assign shall not be unreasonably withheld. No assignment or transfer shall be effective unless the assignee accepts all rights, conditions, terms, provisions, and responsibilities contained within the franchise and post such surety bond or other financial assurance as the commission deems necessary. The commission may condition its approval of the assignment upon the assignee’s acceptance of new or modified terms of the franchise. If the commission’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. Attempting to assign the franchise codified in this chapter without commission approval shall be cause for cancellation. (Res. 2019-60 § 1 (App. A § 13), 5/7/19).

4.64.140 Failure to comply with franchise terms—Modification and/or revocation—Notice.

(1) Dispute Resolution. Prior to the grantor exercising authority provided in subsections (2), (3) and (4) of this section, the parties will attempt in good faith to resolve any dispute or claim arising out of or in relation to the franchise agreement codified in this chapter through negotiations between a director of each of the parities with authority to settle the relevant dispute. If the dispute cannot be settled within fourteen days from the date on which either party has served written notice on the other of the dispute then the parties are free to avail themselves of any other remedy at law or in equity. Performance of this franchise agreement shall continue during negotiation proceedings.

(2) Failure of Grantee to Comply with Franchise Terms. If the grantee shall violate or fail to comply with any of the terms, conditions or responsibilities of the franchise codified in this chapter through neglect or failure to obey or comply with any notice given the grantee under the provisions of the franchise codified in this chapter, the commission may revoke, amend, alter, change or supplement the franchise codified in this chapter.

(3) Notice of Intent to Modify. If the grantee, its successors or assigns, shall violate or fail to comply with any of the terms, conditions or stipulations or any modifications of the franchise codified in this chapter through neglect or failure to obey or comply with any notice given the grantee under the provisions of the franchise codified in this chapter, either the county engineer or the commission may notify the grantee of the county’s intent to amend, alter, change or supplement the franchise codified in this chapter. Chelan County shall give to the grantee thirty days’ written notice of its intention to amend, alter, change or supplement the franchise codified in this chapter, during which period the grantee shall have the opportunity to remedy the failure to comply.

(4) Notice of Intent to Revoke. If Chelan County intends to revoke the franchise, the grantee will be given written notification. A public hearing shall be scheduled within ninety days following the notification. The decision to revoke the franchise codified in this chapter will become effective ninety days following the public hearing if the commission finds the revocation to be in the public interest. (Res. 2019-60 § 1 (App. A § 14), 5/7/19).

4.64.150 Extension, renewal, abandonment and expiration.

(1) Extension of Franchise Pending Renewal. If the grantee has initiated a renewal of the franchise codified in this chapter before it expires, the county may, at its sole discretion, extend the term of the franchise on a month-to-month basis for up to one year. Should the county elect to extend the franchise, written notice shall be provided to the grantee before the franchise expiration date.

(2) Abandonment of Facilities—Render Safe or Remove Lines. In the event that the grantee decides to discontinue using and abandons any of its facilities, or the county reasonably determines that grantee has discontinued using and abandoned any of its facilities, grantee shall, at its sole cost and as directed by the county engineer, render them safe and/or remove them. Prior to designating any of the grantee’s facilities as abandoned and commencing with removal operations, the county engineer shall consult with the grantee to determine the status of said facility element. If the grantee fails to comply with the county engineer’s direction, Chelan County has the right, at the grantee’s expense, to render safe or remove any lines and appurtenances of the grantee 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 facilities of other franchise holders, or for the construction, renewing, altering, or improving of any county road rights-of-way, or for the installation of lines and/or facilities of other franchise holders. Upon presentation of an itemized bill for any removal or making the facilities safe, including the costs of labor and equipment, the grantee shall pay the bill within thirty days. If suit is brought upon the grantee’s failure to pay for the removal or making the facilities safe, and if judgment in such a suit is entered in favor of Chelan County, then the grantee shall pay all of the actual costs, including interest from the date the bill was presented, disbursements, and attorneys’ fees and litigation-related costs incurred.

(3) Grantee’s Obligations After Expiration—County’s Right to Remove/Relocate Lines. If the grantee has not applied for a renewal of the franchise codified in this chapter before it expires, grantee shall, at its sole cost and as directed by the county, render its facilities safe, remove, or relocate any facilities of the grantee as the county determines 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 franchise holders, or for the construction, renewing, altering, or improving of any county road right-of-way, or for the installation of lines and/or facilities of other franchise holders. If the grantee fails to render its facilities safe, or remove or relocate them, as directed by the county, the county shall have the right to render the facilities safe, or remove or relocate them at the grantee’s expense. Upon presentation of an itemized bill for any removal, relocation or making the facilities safe, including the costs of labor and equipment, the grantee shall pay the bill within thirty days. If suit is brought upon the grantee’s failure to pay for the removal, relocation or making the facilities safe, and if judgment in such a suit is entered in favor of Chelan County, then the grantee shall pay all of the actual costs, including interest from the date the bill was presented, disbursements, and attorneys’ fees and litigation-related costs incurred. (Res. 2019-60 § 1 (App. A § 15), 5/7/19).

4.64.160 Rates, other regulation, and eminent domain.

(1) Reservation of Right to Impose Taxes, Costs, and Fees. Chelan County specifically reserves for itself the right, to the extent allowed by law, to impose taxes, use fees, costs, service requirements, or other fees on the grantee for the privilege of conducting this business in Chelan County, for the use of the county’s property, to pay for the cost of regulating this activity, or for any other public purpose so long as those taxes, use fees, costs, service requirements or other fees are imposed by ordinance, or resolution, and after one hundred and eighty days’ written notice to the grantee.

(2) Other Activities Regulated by Chelan County Code. The franchise codified in this chapter does not authorize the grantee to engage in any other activities regulated by the Chelan County Code or any other franchise. If the grantee wants to engage in any such other activities, it must first obtain from Chelan County a separate franchise which conforms to the requirements of Chelan County Code.

(3) Eminent Domain. The franchise codified in this chapter and the limited rights and interests for the location, construction, maintenance, and operation of grantee’s facilities within Chelan County rights-of-way are subject to the exercise of eminent domain. In the event of an exercise of eminent domain by Chelan County within its existing right-of-way, the value to be attributed to all the rights and interests granted under the franchise codified in this chapter shall not exceed the actual amount the grantee paid to Chelan County in obtaining the franchise codified in this chapter.

(4) No Prerequisites. The grantee agrees that for twenty years following the date of acceptance by grantee of this franchise agreement, grantee is prohibited from requiring customers or potential customers to either agree to or waive objection to annexation as a condition to obtaining sewer connection or service. No “pre-annexation agreement” and no “no protest agreement” can be required of customers or potential customers as a condition to obtaining sewer connection or service until twenty years following the date of acceptance by grantee of this franchise agreement. (Res. 2019-60 § 1 (App. A § 16), 5/7/19).

4.64.170 Hold harmless and indemnity.

(1) Hold Harmless and Indemnity. To the extent authorized by law, the grantee, its successors and assigns, agree to indemnify, defend, and hold Chelan County, its officials and employees, harmless from all claims, demands, damages, expenses, or suits that: (A) arise out of or are incident to any negligence by the grantee, its agents, contractors, or employees in the use of the right-of-way pursuant to this document or (B) are caused by a breach of any of the conditions of the franchise codified in this chapter by the grantee, its agents, contractors, or employees. Any action for damages against Chelan County, its agents, officials, contractors, or employees arising out of damages to grantee’s property, including its facilities, in county right-of-way shall be limited to the cost of repair of such grantee’s property and are only recoverable in those instances where the grantee’s property or facilities are authorized to be located in the county right-of-way, are constructed and located in compliance with the franchise codified in this chapter and all required permits, and for which the grantee maintains a record of location as required in the franchise codified in this chapter. The grantee, on behalf of its successors, assigns, agents, licensees, contractors, and employees agrees to waive any claims of loss, expenses, damages, or lost revenues incurred by it or its agents, contractors, licensees, employees, or customers in connection with the grantee, its assigns’, successors’, agents’, contractors’, licensees’, or employees’ construction, installation, maintenance, operation, use, or occupancy of the county right-of-way or in the exercise of the franchise codified in this chapter against Chelan County, its officials, agents, or employees, except the reasonable costs of repair of property or facilities resulting from the negligent injury or damage to grantee’s property or facilities by Chelan County, its agents, contractors, or employees. In the event it is necessary for the county to incur attorney’s fees, legal expenses, or other costs to enforce the provisions of this section, all such fees, expenses and costs shall be recoverable from the grantee.

(2) Waiver of RCW Title 51 Immunity. Solely to the extent required for the county to enforce grantee’s indemnification obligations under this section, grantee waives its immunity under RCW Title 51; provided, that the foregoing waiver shall not in any way preclude grantee from raising such immunity as a defense against any claim brought against grantee by any of its employees. This waiver has been mutually negotiated by the parties.

(3) Expiration or Termination of Franchise. The provisions of this section shall survive the expiration or termination of the franchise codified in this chapter. (Res. 2019-60 § 1 (App. A § 17), 5/7/19).

4.64.180 Insurance.

(1) Coverage Required. Grantee 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 three million dollars for each occurrence of bodily injury liability or property damage liability and shall provide grantor with certificates of said insurance. The amounts listed in this subsection shall not constitute any limitation of liability. The grantee 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 the franchise codified in this chapter.

(2) County as Additional Insured. All of the insurance required by the franchise codified in this chapter shall be endorsed to include the county as an additional insured and shall stipulate that the insurance afforded by the grantee’s policy(ies) 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) Self-Insurance. In lieu of the insurance requirements set forth in this section, grantee may self-insure against such risks in such amounts as are consistent with good utility practice and the per occurrence minimum of three million dollars. Grantee shall provide the county with a self-insurance letter as evidence that grantee maintains a satisfactory self-insurance program. (Res. 2019-60 § 1 (App. A § 18), 5/7/19).

4.64.190 Right-of-way vacation.

If at any time Chelan County proceeds to vacate any right-of-way covered by the franchise codified in this chapter in which the grantee maintains, or may maintain in the future, sewer facilities, the county shall give thirty days’ advance notice to the grantee and at the request of grantee shall retain a sewer utility easement in the vacated right-of-way entitling the grantee to the construction, use and maintenance of its facilities in the easement. Chelan County will not be held liable for any damages or loss to the grantee by reasons of such vacation. (Res. 2019-60 § 1 (App. A § 19), 5/7/19).

4.64.200 Nondiscrimination.

In all hiring or employment made possible or resulting from the franchise codified in this chapter, there shall be no discrimination against any employee or applicant for employment because of sex, sexual orientation, age, race, color, religion, ancestry, national origin, marital status or the presence of any sensory, mental, or physical handicap, unless based upon a bona fide occupational qualification, and this requirement shall apply to but not be limited to the following: employment, advertising, lay-off or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. No person shall be denied, or subjected to discrimination in receipt of the benefit of any services or activities made possible by or resulting from the franchise codified in this chapter on the grounds of sex, sexual orientation, race, color, religion, ancestry, national origin, age, except minimum age and retirement provisions, marital status, or the presence of any sensory, mental, or physical handicap. Any violation of this provision shall be considered a violation of a material provision of the franchise codified in this chapter and shall be grounds for cancellation, termination, or suspension in whole or in part, of the franchise by the county and may result in ineligibility for further county franchises. (Res. 2019-60 § 1 (App. A § 20), 5/7/19).

4.64.210 Waiver of breach.

Failure of Chelan County to enforce any provision of the franchise codified in this chapter does not constitute a waiver of its right to enforce that provision or any other provisions of the franchise codified in this chapter. (Res. 2019-60 § 1 (App. A § 21), 5/7/19).

4.64.220 Governing law.

The grantee hereby agrees to be bound by the laws of the state of Washington and subjected to the jurisdiction of the state of Washington. Venue shall be in Chelan County superior court. (Res. 2019-60 § 1 (App. A § 22), 5/7/19).

4.64.230 Grantee’s acceptance of terms and conditions.

Full acceptance of the franchise codified in this chapter is a condition precedent to its taking effect, and unless the franchise codified in this chapter is accepted within the time specified, this grant will be null and void and have no force or effect. The grantee shall indicate its full acceptance of the franchise codified in this chapter by the attested signature(s) of its authorized representative(s) on the certificate of acceptance and by the grantee filing a signed original of the certificate of acceptance with the clerk of the commission within thirty days of the commission’s resolution authorizing this grant of franchise. (Res. 2019-60 § 1 (App. A § 23), 5/7/19).

4.64.240 Limitation on liability.

Administration of the franchise codified in this chapter shall not be construed to create the basis for any liability on the part of the county, its appointed and elected officials and employees, for any injury or damage from the failure of the grantee to comply with the provisions of the franchise codified in 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 codified in this chapter by the county, or for the accuracy of plans submitted to the county. (Res. 2019-60 § 1 (App. A § 24), 5/7/19).

4.64.250 Compliance with laws.

Grantee shall conform to all applicable federal, state, and local laws, codes, and regulations, as now may be in force or as may be further enacted or amended, including, but not limited to, the State Environmental Policy Act and the Chelan County Code. (Res. 2019-60 § 1 (App. A § 25), 5/7/19).

4.64.260 Notices.

Notice (other than legal process) provided for in the franchise codified in this chapter shall be sent to the following addresses:

To the county:

Chelan County Public Works Department

Attn: Director/County Engineer

316 Washington Street, Suite 402

Wenatchee, WA 98801

Phone: 509.667.6415

To the grantee:

City of Chelan, Public Works Department

Attn: Director

Post Office Box 1669

135 E. Johnson Ave

Chelan, WA 98816

Phone: 509-682-8030

The grantee shall promptly notify the county of any change in notice address. (Res. 2019-60 § 1 (App. A § 26), 5/7/19).

4.64.270 Tariffs.

If the franchise codified in this chapter is subject to the provisions of any applicable tariff on file with the Washington Utilities and Transportation Commission or its successor, in any conflict or inconsistency between the provisions of the franchise codified in this chapter and such tariff the provisions of such tariff shall control. Grantee shall pay its proportionate share of such tariffs. (Res. 2019-60 § 1 (App. A § 27), 5/7/19).

4.64.280 Severability.

The franchise codified in this chapter gives effect to purposes and uses which are consistent with economical and efficient services rendered in the public interest. If any section, subsection, paragraph, sentence, clause, phrase, or provision of the franchise codified in this chapter or its application is determined to be invalid by a court of law, then the remaining provisions of the franchise codified in this chapter shall continue and remain valid unless the dominant purpose of the franchise would be prevented or the public interest is no longer served. (Res. 2019-60 § 1 (App. A § 28), 5/7/19).

4.64.290 Effective date.

The resolution codified in this chapter shall be in full force and effect from and after its passage, approval, and legal publication as provided by law and provided that it has been duly accepted by grantee and recorded in the office of the Chelan County auditor. (Res. 2019-60 § 1 (App. A § 29), 5/7/19).