Chapter 5.44 DOMESTIC WATER DISTRIBUTION PIPELINE SYSTEM FRANCHISES

“Across” means location of underground transmission and service lines and appurtenances crossing from one side of a right-of-way to another. If transmission lines, service lines, and/or appurtenances are located under a roadway, the angle of crossing should be as near a right angle to the road centerline as practicable.

“Along” means abutting or adjacent to a road, usually parallel to or following the path of a roadway or right-of-way.

“Appurtenance(s)” means equipment and/or accessories which are a necessary part of an operating utility system or subsystem.

“Commission” refers to the Chelan County commission acting in its official capacity.

“Construction” or “construct” means constructing, digging, excavating, laying, testing, operating, maintaining, extending, renewing, removing, replacing, and repairing an irrigation water distribution system.

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

“County road right(s)-of-way” (or “county right(s)-of-way” or “right(s)-of-way”) means public land, property or interest therein, usually in a strip, acquired for or devoted to transportation or secondary purposes, including public highways, streets, roads, and alleys. As used herein, these terms refer only to those rights-of-way within the area described in Section 5.44.020 in which Chelan County has an actual interest.

“Director” refers to the director of public works for Chelan County, any successor office with responsibility for management of public properties within Chelan County, or the director’s successor or designee.

“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 the Chelan County Code.

“Grantee” or “district” refers to Valleyhi Community Club, Inc., its successors and those assigns approved pursuant to Section 5.44.150.

“In” refers to construction and maintenance activity within the right-of-way and to placement of transmission and service lines and appurtenances underground beneath the right-of-way.

“Maintenance,” “maintaining” or “maintain” shall mean constructing, relaying, repairing, replacing, examining, testing, inspecting, removing, digging and excavating, and restoring operations incidental thereto.

“Other governing body” refers to any public official or other public board or body as may have the power and jurisdiction to permit or regulate the installation and maintenance of utilities and other facilities in, under, over, across, and along any of the county property described in Section 5.44.020.

“Over” means an overhead installation conforming to all requirements of federal, state, and county laws, regulations, and ordinances and in compliance with all requirements mandated by the director, particularly requirements related to public health and safety, height and clearance restrictions and requirements, roadway characteristics and use, roadway design requirements, integrity of the right-of-way and abutting properties, aesthetics, and other pertinent factors as determined by the director.

“Permit” means a document issued under the authority of (1) the county engineer or public works director and/or (2) a franchise granted by the county’s legislative authority. The permit provides specific requirements and conditions for specific utility work at specific locations within the right-of-way.

“Pipe,” “pipeline,” “line(s),” “transmission line(s),” or “service line(s)” means a structural tubular product designed, tested and produced for the transmittance of specific liquids and gases under specific conditions. As used herein, the specific liquid to be transmitted is domestic water. These terms exclude irrigation ditches and grantee may not construct or operate irrigation ditches or any nonenclosed water system in, upon, under, across, along and over any county right-of-way.

“Relocation” means a planned change of location of an existing facility to a more advantageous place without changing the character or physical nature of the facility.

“Restoration” means all work necessary to replace, repair or otherwise restore the right-of-way and all features contained within to the same or equal condition as before any change or construction thereto.

“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.

“Under” means underground installation conforming to all requirements of federal, state, and county laws, regulations, and ordinances and in compliance with all requirements mandated by the director, particularly requirements related to public health and safety, roadway characteristics and use, roadway design requirements, integrity of the right-of-way and abutting properties, aesthetics, and other pertinent factors as determined by the director.

“Upon” refers only to construction or maintenance activity and does not imply that transmission lines, service lines, or appurtenances may be installed on or at the surface of any roadway.

“Utility” refers either to the grantee or, depending on the context, to any other person, firm, or corporation, public or private, which may hold a franchise to maintain and operate similar facilities in, under, over, across, and along any of the county property described in Section 5.44.020. (Res. 2009-52 § 1, 4/15/09).

5.44.020 Description of franchise area.

Valleyhi Community, Valleyhi Addition I, II, III, including the following roads: Allen Lane, Hansel Lane, Cottonwood Lane, and Ingalls Lane. (Res. 2009-52 § 2, 4/15/09).

5.44.030 Grant of franchise.

(a) Grant. Chelan County hereby gives and grants unto the grantee, Valleyhi Community Club, Inc., its successors and assigns the right, privilege, authority, and franchise to construct, operate, and maintain a domestic water distribution pipeline system and all necessary appurtenances thereto in, upon, under, across, along and over those certain county road rights-of-way in Chelan County, Washington, described in Section 5.44.020.

(b) Term. The rights, privileges, and franchise hereby granted to and conferred upon the grantee, unless this franchise becomes terminated as herein provided, extends for a term of twenty years from the effective date of the resolution codified in this chapter.

(c) Limited Purpose for Grant. This franchise authorizes the grantee to construct, operate, and maintain a domestic water distribution pipeline system for the transportation and disposition of domestic water in, upon, under, across, along and over those certain county rights-of-way in Chelan County, Washington. This franchise does not authorize the grantee to engage in any other activities regulated by the Chelan County Code or any other franchise. No facility shall be used for other than the purpose stated in the grant of franchise above, unless the grantee first obtains from Chelan County a separate franchise which conforms to the requirements of the Chelan County Code.

(d) Nonexclusive Franchise. This franchise is not exclusive. This franchise does not prohibit Chelan County from granting franchises for other public or private utilities in, upon, under, over, across, and along any county property, including county road rights-of-way. Where existing utility facilities are in place, new facilities shall be compatible with the existing installations.

This franchise does not prevent or prohibit Chelan County from constructing, altering, relocating, maintaining, or using any county road rights-of-way covered by this franchise. County retains full power to make all changes, relocations, repair, maintenance, etc., as it may deem fit. Utility installations 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.

The county shall have prior and superior right to the use of its roads, streets and alleys and public properties for installation and maintenance of its utilities and other governmental purposes, and should a conflict arise with the grantee’s lines, the grantee shall, at its own expense and cost, conform to the utilities and other government purposes of the county in the event that reasonably feasible alternative is available. The owners of all utilities, public or private, installed in such public properties prior to the installation of the lines and facilities of the grantee, shall have preference as to the positioning and location of such utilities so installed with respect to the grantee. Such preference shall continue in the event of the necessity of relocating or changing the grade of any such public properties. Grantee shall pay all actual reasonable costs of and expense necessarily incurred by grantor in the examination, inspection and approval of all plans and specifications for, and all details of construction of, all facilities involved herein as necessary to ensure conformity with the integrity of the county roads, traffic flow and other franchisees within the county public property.

(e) County Jurisdiction over Rights-of-Way. All rights granted by this franchise to county road rights-of-way outside incorporated towns and cities apply to all existing county road rights-of-way acquired by Chelan County during the term of this franchise. This franchise is intended to convey limited rights and interest only as to those roads and rights-of-way in which Chelan County has an actual interest. It is not a warranty of title or of interest in county road rights-of-way.

Whenever any of the county road rights-of-way as designated in this franchise, by reason of the subsequent incorporation of any town or city, or extension of the limits of any town or city, shall fall within city or town limits, this franchise shall continue in force and effect until such time as the incorporation and/or annexation is complete according to applicable state law, after which time the county will no longer have any responsibility for maintenance of any county roads, rights-of-way or other county property within the area of annexation/incorporation.

None of the rights granted to the grantee shall affect the jurisdiction of Chelan County over county road rights-of-way or the county’s power to perform work upon its roadways, rights-of-way or appurtenant drainage facilities including by constructing, altering, renewing, paving, widening, grading, blasting, or excavating.

(f) Regulation of Use and Control of Rights-of-Way—Reservation of Police Powers. In the granting of this franchise, Chelan County does not waive any rights which it now holds or may hereafter acquire and this franchise shall not be construed so as to deprive Chelan County of any powers, rights, or privileges which it now has or may hereafter acquire, including the right of eminent domain, to regulate the use and control of the county roads covered by this franchise, or to go upon any and all county roads and highways for the purpose of constructing and improving the same in such manner as Chelan County or its representatives may elect.

All the rights herein granted shall be subject to and governed by this chapter; provided, however, that the board of county commissioners expressly reserves unto itself all its police power to adopt resolutions necessary to protect the health, safety and welfare of the general public in relation to the rights granted by this chapter.

(g) Rates. The grantee agrees that it shall be subject to all authority now or later possessed by the county or any other governing body having competent jurisdiction to fix just, reasonable, and compensatory rates for services under this franchise.

(h) Conformance with County Code. This franchise does not authorize the grantee to engage in any activities regulated by the Chelan County Code or any other franchise. If the grantee wants to engage in any such activities, it must first obtain from Chelan County a separate franchise which conforms to the requirements of said code. (Res. 2009-52 § 3, 4/15/09).

5.44.040 Eminent domain.

This franchise and the limited rights and interests for the operation, maintenance, repair, and construction of grantee’s domestic water delivery and related transmission and service lines and appurtenances 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 this franchise shall not exceed the actual amount the grantee paid to Chelan County in obtaining this franchise. (Res. 2009-52 § 4, 4/15/09).

5.44.050 Indemnity and hold harmless.

The grantee agrees to indemnify and hold harmless Chelan County as provided herein to the maximum extent possible under law. Accordingly, the grantee agrees for itself, its successors and assigns to defend, indemnify and hold harmless Chelan County, its appointed and elected officials, and employees from and against liability for all claims, demands, suits, and judgments, including costs of defense thereof, for injury to persons, death, or property damage which is caused by, arises out of, or is incidental to grantee’s exercise of rights and privileges granted by this franchise. The grantee’s obligations under this section shall include:

(1) Indemnification for such claims which arise from the sole negligence of the grantee, the concurrent negligence of both parties, or the negligence of one or more third parties.

(2) The duty to promptly accept tender of defense and provide defense to the county at the grantee’s own expense.

(3) Indemnification of claims made by the grantee’s own employees or agents.

(4) Waiver of the grantee’s immunity under the industrial insurance provisions of RCW Title 51, which waiver has been mutually negotiated by the parties.

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.

In the event it is determined that RCW 4.24.115 applies to this franchise agreement, the grantee agrees to defend, hold harmless and indemnify Chelan County to the maximum extent permitted thereunder, and specifically for its negligence concurrent with that of Chelan County to the full extent of grantee’s negligence. Grantee agrees to defend, indemnify, and hold harmless the county for claims by grantee’s employees and insofar as claims from the county for indemnity only agrees to waiver of its immunity under RCW Title 51, which waiver has been mutually negotiated by the parties. (Res. 2009-52 § 5, 4/15/09).

5.44.060 Insurance.

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 section shall not constitute any limitation of liability. (Res. 2009-52 § 6, 4/15/09).

5.44.070 Vacation of rights-of-way.

If at any time Chelan County vacates any rights-of-way covered by this franchise, Chelan County will not be held liable for any damages or loss to the grantee by reasons of such vacation. Chelan County may, after giving thirty days’ written notice to the grantee, terminate this franchise with respect to any of the county road rights-of-way vacated. (Res. 2009-52 § 7, 4/15/09).

5.44.080 Underground—Installation, repair, removal or relocation—Shared excavations.

(a) The grantee acknowledges that the grantor 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 county codes, laws, regulations, agency orders, and industry standards.

(b) The grantee hereby covenants, at its own expense, to install, repair, remove, or relocate existing facilities including all appurtenant facilities, transmission lines and service lines connecting its services to users within county road rights-of-way if such installation, repair, removal, or relocation is required by the county for any purpose.

(c) If at any time either grantee or grantor shall cause excavations to be made within the franchise area, the party causing such excavation shall afford the other, upon receipt of a written request to do so, an opportunity to use such excavation; provided, that such joint use shall not unreasonably delay the work of the party causing the excavation to be made and such joint use shall be arranged and accomplished on terms and conditions satisfactory to both parties. The grantee also 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. (Res. 2009-52 § 8, 4/15/09).

5.44.090 Construction permit and bond requirements.

(a) Construction Permit Requirements. The grantee, its successors or assigns has the right, privilege, and authority to enter the county rights-of-way for the purpose of operating, maintaining, repairing, or constructing its transmission and service lines and appurtenances, on the condition that grantee obtains appropriate permits approved by the director prior to commencing construction or maintenance work.

Applications for work permits 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).

Any work done, whether by grantee, its contractors, or third parties will include necessary paving, patching, grading, and any other reasonable necessary repair or restoration to the county road rights-of-way. All work shall be done to the reasonable satisfaction of the director and at grantee’s expense.

All equipment, lines, and appurtenances which are used in the operation, maintenance, repair, or construction of the grantee’s service and which are 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. 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 work done under the permit. The grantee remains responsible whether the work is done by the grantee, its contractors, or by third parties.

Grantee shall abide by all terms and conditions of any 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.

(b) Construction Bond Requirement. In conformity with the Chelan County Code now in effect or as hereafter amended, before any permit is issued to allow the grantee to disturb any public road, the grantee shall post a cashier’s check or a bond in the estimated amount of repairs for disturbing any county road for which the permit is sought. (Res. 2009-52 § 9, 4/15/09).

5.44.100 Record of location of facilities—Emergency management plan.

(a) Record of Location of Facilities. The grantee shall keep full, current and complete records showing the exact location and size of all transmission and service lines and appurtenances in the county. 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.

(b) Emergency Management Plan. Grantee shall prepare and file with the county an emergency management plan for responding to any spill, breaks or other emergency condition. 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. (Res. 2009-52 § 10, 4/15/09).

5.44.110 Restoration of county rights-of-way.

(a) Restoration of Rights-of-Way. After work in, on, upon, over, under, across, along, or adjacent to county road rights-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 to a standard and condition acceptable to the director as specified in the permit to be issued for the work. Patching methods approved by the director 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 thermal 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. Completion of the county road restoration in a manner consistent with the approved plans shall satisfy the grantee’s restoration obligations under this subsection.

(b) Failure to Restore Right-of-Way. In the event that the grantee, its contractors, or third parties should fail to restore any county road rights-of-way to the reasonable satisfaction of the director, 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 director, 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 district. The district shall be responsible for reimbursing the county for any and all costs and expenses incurred by the county, to correct any deficiency in the district’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.

(c) Recovery of Costs of Suit for Enforcement. 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. 2009-52 § 11, 4/15/09).

5.44.120 Performance of work.

The grantee covenants that, in consideration for the rights and privileges granted by this franchise, all work performed by the grantee on county road rights-of-way shall conform to all county requirements including, but not limited to, the requirements of the current edition of the county road standards in force when the work is performed and all traffic control shall also conform to the current edition of the Manual of Uniform Traffic Control Devices in force when the work is performed. (Res. 2009-52 § 12, 4/15/09).

5.44.130 County road work—Excavating and blasting.

(a) County’s Right to Do Road Work. The right to operate, maintain, repair and construct grantee’s transmission and service lines and appurtenances granted by this franchise 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 those certain county rights-of-way in Chelan County, Washington, described in Section 5.44.020.

The grantor will, during the predesign phase of construction projects involving relocation of water facilities, consult with the grantee to coordinate the design.

(b) Notice of Blasting/Excavating Work. When practical, the grantor will give grantee forty-eight hours’ notice of any blasting or excavating as described in subsection (a) of this section so that the grantee may protect its lines and appurtenances. (Res. 2009-52 § 13, 4/15/09).

5.44.140 Survey markers and monuments.

(a) Reference Points. Before any work is performed under this franchise, 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. The reference points shall be located so that they will not be disturbed during any of grantee’s operations under this franchise. The method of referencing monuments or other markers or points shall be approved by the director before placement.

(c) Cost of Replacement. 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. 2009-52 § 14, 4/15/09).

5.44.150 Binding effect and assignment.

(a) 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 this franchise wherever the grantee is so mentioned.

(b) Assignment. The grantee may not assign this franchise without consent of the Chelan County board of commissioners. Such consent to assign shall not be unreasonably withheld.

No assignment shall be effective unless an acceptance by the assignee of all rights, conditions, terms, provisions, and responsibilities contained within the franchise, as well as surety bonds which either the director or the commission deems necessary to be posted are received. Commission approval of the assignment may be made subject to 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. (Res. 2009-52 § 15, 4/15/09).

5.44.160 Modification and/or revocation—Reservation of right to impose taxes, costs, and fees.

(a) Failure to Comply with Franchise Terms—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 this franchise through neglect or failure to obey or comply with any notice given the grantee under the provisions of this franchise, either the director or the commission may notify the grantee of the county’s intent to revoke, amend, alter, change or supplement this franchise. Chelan County shall give the grantee thirty days’ written notice of its intention to amend, alter, change or supplement this franchise, during which period the grantee shall have the opportunity to remedy the failure to comply.

(b) Revocation—Notice. 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 this franchise will become effective ninety days following the public hearing if the commission finds the revocation to be in the public interest.

(c) Reservation of Right to Impose Taxes, Costs, and Fees. Chelan County specifically reserves for itself the right 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 eighty days’ written notice to the grantee. (Res. 2009-52 § 16, 4/15/09).

5.44.170 Extension, renewal, abandonment and expiration.

(a) Extension of Franchise Pending Renewal. If the grantee has initiated a renewal of this franchise 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.

(b) Abandonment of Facilities—Render Safe or Remove Lines. In the event that 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, render them safe and/or remove them. If the grantee fails to comply with the county’s direction, Chelan County has the right 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.

(c) Expiration—County’s Right to Remove/Relocate Lines. If the grantee has not applied for a renewal of this franchise before it expires, grantee shall, at its sole cost and as directed by the county, render its lines and appurtenances safe, remove or relocate 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. If the grantee fails to render the lines and appurtenances safe, or remove or relocate them, as directed by the county, the county shall have the right to render the lines and appurtenances safe, or remove or relocate them.

(d) Costs of Removal/Relocation of Lines. Grantee shall be liable for the costs incurred under this section in any removal or relocation of its lines and appurtenances or costs incurred rendering the lines and appurtenances safe. Costs include the expense of labor and equipment; provided, that any removal is effected within two years from the expiration date of this franchise.

(e) Grantee’s Obligations After Expiration. Upon expiration of this franchise, the grantee shall continue to be responsible for the operation and maintenance of existing facilities in the county road rights-of-way but shall not have the right to provide additional services. (Res. 2009-52 § 17, 4/15/09).

5.44.180 Compliance with laws.

Grantee shall conform to all applicable federal, state, and local laws 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. 2009-52 § 18, 4/15/09).

5.44.190 Nondiscrimination.

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 this agreement 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 this agreement and shall be grounds for cancellation, termination, or suspension, in whole or in part, of the agreement by the county and may result in ineligibility for further county agreements. (Res. 2009-52 § 19, 4/15/09).

5.44.200 Penalty for violation of conditions.

If the grantee shall violate or fail 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 the grantee under the provisions of this franchise, the commission may revoke, amend, alter, change or supplement this franchise as provided under Section 5.44.160. The commission shall give thirty days’ written notice to the grantee of its intention to do so, during which period the grantee shall have the opportunity to remedy the failure to comply. (Res. 2009-52 § 20, 4/15/09).

5.44.210 Enforcement.

Failure of Chelan County to enforce any provision of this agreement does not constitute a waiver of its right to enforce that provision or any other provisions of this agreement. (Res. 2009-52 § 21, 4/15/09).

5.44.220 Dispute resolution and remedies.

In the event of the occurrence of any dispute between the county and grantee arising by reason of this chapter, or any obligation of either party under this chapter, the parties agree to make good faith efforts to resolve any dispute as provided herein.

(1) Dispute Resolution. Upon request of either party, such dispute shall be referred to the county public works director or his designee and the grantee’s general manager to have oversight over the administration of this franchise. Such officers shall meet within thirty days and make a good faith attempt to negotiate a resolution of the dispute. If the parties cannot reach a negotiated agreement, the Chelan County public works director shall make a written decision and serve such decision upon the grantee by first class mail.

(2) Other Remedies. The parties shall not be barred from seeking any other remedy to which they may be entitled at law or in equity. (Res. 2009-52 § 22, 4/15/09).

5.44.230 Right of appeal and review—Venue.

(a) Right of Appeal and Review. Decisions, requirements, or approvals of the director are binding on the parties to this document. Appeals from the director’s determinations will be made by filing a complaint with the Chelan County superior court.

(b) Venue. Venue for any action or suit related to this franchise shall be in Chelan County superior court. (Res. 2009-52 § 23, 4/15/09).

5.44.240 Force majeure.

In the event that either party is prevented or delayed in the performance of any obligations under this franchise by reason or reasons beyond its reasonable control (“force majeure event”), then that party’s performance shall be excused during the force majeure event. Force majeure events shall include, without limitation, war, civil disturbance, flood, storm, earthquake or other act of God, or other condition which necessitates mobilization of a party or its contractors to restore utility service to its customers, emergency services, or governmental services, as the case may be; or laws, regulations, rules or orders of any governmental agency; or sabotage; or strikes or similar labor disputes involving personnel of a party or its contractors; or any failure or delay in the performance by the other party, or a third party who is not an employee, agent, or contractor of the party claiming a force majeure event in this franchise. Upon removal or termination of the force majeure event, the party claiming force majeure event shall promptly perform the affected obligations in an orderly and expedited manner under this franchise or procure a substitute for such obligation. The parties shall use all commercially reasonable efforts to eliminate or minimize delay caused by a force majeure event. (Res. 2009-52 § 25, 4/15/09).

5.44.250 Entire franchise.

This franchise contains all terms and conditions permitting and authorizing grantee’s use and occupancy of county rights-of-way for an irrigation water distribution system, except as may be modified by subsequent board of county commissioner resolution. (Res. 2009-52 § 26, 4/15/09).

Article II. Ponderosa Community Club, Inc.

5.44.310 Grant of franchise.

Chelan County hereby grants to Ponderosa Community Club, Inc., its successors and assigns, a nonexclusive franchise for a period of twenty years for the construction, operation, and maintenance of the grantee’s domestic water distribution pipeline system and all appurtenances thereto in, upon, under, across, along and over the county road right-of-way in Chelan County, Washington, shown and described in Appendix 1, attached to the resolution codified in this article. (Res. 2012-45 § 1, 5/15/12).

5.44.320 Definitions.

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

“Appurtenance(s)” means equipment and/or accessories which are a necessary part of an operating utility system or subsystem.

“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” means all or part of a utility’s lines, pipelines, appurtenances, or other installations of structures.

“Franchise” or “franchise agreement” or “agreement” 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 the Chelan County Code.

“Grantee” means Ponderosa Community Club, Inc., its successors and those assigns approved pursuant to Section 5.44.430.

“Grantor” means Chelan County.

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

“Pipe,” “pipeline,” “line(s),” “transmission line(s),” or “service line(s)” means a structural tubular product designed, tested and produced for the transmittance of specific liquids and gases under specific conditions. As used herein, the specific liquid to be transmitted is domestic water. These terms exclude irrigation ditches and grantee may not construct or operate irrigation ditches or any non-enclosed water system in, upon, under, across, along and over any county right-of-way.

“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.

“State” means the state of Washington. (Res. 2012-45 § 2, 5/15/12).

5.44.330 Permits, plans, specifications.

(a) County Requirements. The grantee covenants that in consideration for the rights and privileges granted by this franchise, 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.

(b) 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 transmission and service lines and appurtenances, 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.

(c) County Permits for Work in the Right-of-Way. 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). Grantee shall comply with the following requirements, whether or not stated in any permit:

(1) Any work done, whether by grantee, 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 repairs shall be done to the reasonable satisfaction of the county engineer at grantee’s expense.

(2) All equipment, lines, and appurtenances which are used in the operation, maintenance, repair, or construction of the grantee’s service and which are 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.

(3) 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. The grantee remains responsible whether the work is done by the grantee, its contractors, or by third parties.

(4) Grantee 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 county code.

(5) 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.

(6) 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.

(7) 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 unless authorized by the county.

(8) If work done under this franchise 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.

(9) All work by the grantee shall be done to the satisfaction of the county engineer.

(10) On completion of any work by the grantee, all rubbish and debris shall be immediately removed and the roadway and roadside shall be left neat and presentable to the satisfaction of the county engineer. (Res. 2012-45 § 3, 5/15/12).

5.44.340 Undergrounding—Shared excavations.

(a) Undergrounding. The grantee acknowledges that the grantor 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 county codes, laws, regulations, agency orders, and industry standards. (Res. 2012-45 § 4, 5/15/12).

5.44.350 Maintenance of facilities.

(a) The grantee shall maintain at its sole expense its lines, appurtenances, structures and other facilities for which this franchise is granted in a condition satisfactory to the county.

(b) 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. 2012-45 § 5, 5/15/12).

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

(a) Record of Location of Facilities. The grantee shall maintain full, current and complete records showing the exact location and size of all transmission and service lines and appurtenances 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.

(1) Whenever any conditions or operations caused by any activity undertaken by grantee pursuant to this franchise 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 shall 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 this franchise.

(2) Should the county engineer have reasonable cause to believe that the situation is so adverse as to preclude written notice, the county engineer may take the measures necessary to eliminate the hazardous situation; provided, that he/she 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 reasonable costs incurred by the county. 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 authority, the county engineer shall have the authority to forfeit the bond or other security to recover the costs incurred. (Res. 2012-45 § 6, 5/15/12).

5.44.370 Restoration of county right-of-way.

(a) Restoration of Right-of-Way. After 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 to a standard and condition 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. Restoration under these circumstances shall be at grantee’s sole expense. Completion of the county road restoration in a manner consistent with the approved plans shall satisfy the grantee’s restoration obligations under this subsection.

(b) Failure to Restore Right-of-Way. In the event that the grantee, its contractors, or third parties should fail to restore any county road right-of-way to the reasonable satisfaction of the director, 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. 2012-45 § 7, 5/15/12).

5.44.380 Survey markers and monuments.

(a) Reference Points. Before any work is performed under this franchise, 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 this franchise. The method of referencing monuments or other markers or points shall be approved by the county surveyor before placement.

(b) Replacement of Markers or Monuments. The replacement of all markers or monuments disturbed during any construction of the grantee shall be made as promptly as conditions permit and as ordered by the county engineer. 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. 2012-45 § 8, 5/15/12).

5.44.390 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 illegal release. Grantee shall be completely liable for any and all consequences of such illegal 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 5.44.470, from any and all liability resulting from such an illegal 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 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 illegal release of a hazardous substance by grantee, the county may give immediate notice of termination of this franchise, 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. 2012-45 § 9, 5/15/12).

5.44.400 Relocation or removal of grantee’s facilities.

(a) Relocation or Removal of Facilities. Whenever necessary for the construction, repair, improvement, alteration, or relocation of all or any portion of a county road as determined by the county engineer, or if the county engineer shall determine that the removal of any or all facilities from county right-of-way is necessary, incidental, or convenient to the construction, repair, improvement, alteration, or relocation of any county road, the grantee shall, upon notice by the county, relocate or remove any and all such facilities from the county right-of-way as may be required by the county at grantee’s sole expense or its successors or assigns. All such changes, reconstruction, or relocation by the grantee shall be done in such manner as will cause the least interference with the county’s performance and operation in the maintenance of its road.

(b) Failure to Relocate or Remove Facilities. Upon failure, neglect, or refusal of the grantee to perform any change, removal, relaying, or relocating of any facilities required of the grantee 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 grantee. (Res. 2012-45 § 10, 5/15/12).

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

(a) County’s Right to Do Road Work. This franchise does not prevent or prohibit Chelan County from constructing, altering, relocating, maintaining, or using any county road right-of-way covered by this franchise. 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 transmission and service lines and appurtenances granted by this franchise 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.

(b) 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 their facilities during this time to facilitate the coordination.

(c) Notice of 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. 2012-45 § 11, 5/15/12).

5.44.420 Nonexclusive franchise.

(a) Franchise Not Exclusive. This franchise 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.

(b) 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 by the county prior to installation. (Res. 2012-45 § 12, 5/15/12).

5.44.430 Binding effect and assignment.

(b) Assignment or Transfer. The grantee may not assign or transfer this franchise 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 this franchise without commission approval shall be cause for cancellation. (Res. 2012-45 § 13, 5/15/12).

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

(a) Failure to Comply with Franchise Terms. If the grantee shall violate or fail 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 the grantee under the provisions of this franchise, the commission may revoke, amend, alter, change or supplement this franchise.

(b) 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 this franchise through neglect or failure to obey or comply with any notice given the grantee under the provisions of this franchise, either the county engineer or the commission may notify the grantee of the county’s intent to amend, alter, change or supplement this franchise. Chelan County shall give to the grantee thirty days’ written notice of its intention to amend, alter, change or supplement this franchise, during which period the grantee shall have the opportunity to remedy the failure to comply.

(c) 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 this franchise will become effective ninety days following the public hearing if the commission finds the revocation to be in the public interest. (Res. 2012-45 § 14, 5/15/12).

5.44.450 Extension, renewal, abandonment and expiration.

(b) 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. If the grantee fails to comply with the county engineer’s direction, Chelan County has the right 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 at the grantee’s expense.

(c) Expiration—County’s Right to Remove/Relocate Lines. If the grantee has not applied for a renewal of this franchise before it expires, grantee shall, at its sole cost and as directed by the county, render its lines and appurtenances safe, remove, or relocate 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 right-of-way, or for the installation of lines and/or facilities of other franchise holders. If the grantee fails to render the lines and appurtenances safe, or remove or relocate them, as directed by the county, the county shall have the right to render the lines and appurtenances safe, or remove or relocate them at the grantee’s expense. (Res. 2012-45 § 15, 5/15/12).

5.44.460 Rates, other regulation, and eminent domain.

(a) Rates. The grantee agrees that it shall be subject to all authority now or later possessed by the county or any other governing body having competent jurisdiction to fix just, reasonable, and compensatory rates for services under this franchise.

(b) Reservation of Right to Impose Taxes, Costs, and Fees. Chelan County specifically reserves for itself the right 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 eighty days’ written notice to the grantee.

(c) Other Activities Regulated by Chelan County Code. This franchise does not authorize the grantee to engage in any activities regulated by the Chelan County Code or any other franchise. If the grantee wants to engage in any such activities, it must first obtain from Chelan County a separate franchise which conforms to the requirements of Chelan County Code. (Res. 2012-45 § 16, 5/15/12).

5.44.470 Hold harmless and indemnity.

(a) Hold Harmless and Indemnity. 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: (1) 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 (2) are caused by a breach of any of the conditions of this franchise 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 lines, appurtenances, and other facilities, in county right-of-way shall be limited to the cost of repair of such grantee property and are only recoverable in those instances where the grantee’s property is authorized to be located in the county right-of-way, is constructed and located in compliance with this franchise agreement and all required permits, and for which the grantee maintains a record of location as required in this franchise. 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’s, 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 this franchise against Chelan County, its officials, agents, or employees, except the reasonable costs of repair of property resulting from the negligent injury or damage to grantee’s property 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.

(b) 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.

(c) Expiration or Termination of Franchise. The provisions of this section shall survive the expiration or termination of this agreement. (Res. 2012-45 § 17, 5/15/12).

5.44.480 Insurance.

(a) 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 this franchise.

(b) County as Additional Insured. All of the insurance required by agreement 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.

(c) 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 self-insurance program. (Res. 2012-45 § 18, 5/15/12).

5.44.490 Right-of-way vacation.

If at any time Chelan County vacates any right-of-way covered by this franchise, Chelan County will not be held liable for any damages or loss to the grantee by reasons of such vacation. Chelan County may, after giving thirty days’ written notice to the grantee, terminate this franchise with respect to such county right-of-way vacated. (Res. 2012-45 § 19, 5/15/12).

5.44.500 Nondiscrimination.

In all hiring or employment made possible or resulting from this franchise agreement, 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 this agreement 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 this agreement and shall be grounds for cancellation, termination, or suspension in whole or in part of the agreement by the county and may result in ineligibility for further county agreements. (Res. 2012-45 § 20, 5/15/12).

5.44.510 Waiver of breach.

Failure of Chelan County to enforce any provision of this franchise agreement does not constitute a waiver of its right to enforce that provision or any other provisions of this agreement. (Res. 2012-45 § 21, 5/15/12).

5.44.520 Governing law and stipulation of venue.

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. The parties hereby stipulate that this franchise shall be governed by the laws of the state of Washington and that any lawsuit regarding this contract must be brought in Chelan County, Washington, or in the case of a federal action, in the United States District Court for the Eastern District of Washington at Spokane, Washington. (Res. 2012-45 § 22, 5/15/12).

5.44.530 Grantee’s acceptance of terms and conditions.

Full acceptance of this franchise is a condition precedent to its taking effect, and unless this franchise 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 this franchise 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. 2012-45 § 23, 5/15/12).

5.44.540 Limitation on liability.

Administration of this franchise 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 this franchise; 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 this franchise by the county, or for the accuracy of plans submitted to the county. (Res. 2012-45 § 24, 5/15/12).

5.44.550 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. 2012-45 § 25, 5/15/12).

5.44.560 Notice.

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

To the county:

Chelan County Public Works Department

316 Washington Street, Suite 402

Wenatchee, WA 98801

To the grantee:

Ponderosa Community Club, Inc.

21100 Cayuse Street

Leavenworth, WA 98826

Attn: Associate Manager

with a copy to:

__________________________________________

Attn: _____________________________________

The grantee shall promptly notify the county of any change in notice address. (Res. 2012-45 § 26, 5/15/12).

5.44.570 Miscellaneous.

(a) Amendment. This franchise may be amended only by written instrument, signed by both parties, which specifically states that it is an amendment to this franchise and is approved and executed in accordance with the laws of the state of Washington.

(b) Tariffs. This franchise is subject to the provisions of any applicable tariff on file with the Washington Utilities and Transportation Commission or its successor. In the event of any conflict or inconsistency between the provisions of this franchise and such tariff, the provisions of such tariff shall control.

(c) Reimbursement of County Costs. Grantee shall be fully responsible for, and upon presentation of an invoice, shall reimburse the county for all cost of public notice, including publication, and for auditor’s filing fees associated with the grant of this franchise. (Res. 2012-45 § 27, 5/15/12).

5.44.580 Additional franchise terms.

The additional franchise terms contained in Appendix 2, attached to the resolution codified in this article, are incorporated herein by reference. (Res. 2012-45 § 28, 5/15/12).

5.44.590 Entire agreement.

This franchise agreement contains all terms and conditions permitting and authorizing grantee’s use and occupancy of county rights-of-way for a domestic water distribution system, except as may be modified by changes in federal or state law or regulations or further written agreement of the parties. (Res. 2012-45 § 29, 5/15/12).

5.44.600 Severability.

This agreement 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 this franchise or its application is determined to be invalid by a court of law, then the remaining provisions of this franchise shall continue and remain valid unless the dominant purpose of the franchise would be prevented or the public interest is no longer served. (Res. 2012-45 § 30, 5/15/12).

5.44.610 Effective date.

The resolution codified in this article 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. 2012-45 § 31, 5/15/12).

Article III. Lake Wenatchee Water District

5.44.710 Grant of franchise.

Chelan County hereby grants to Lake Wenatchee Water District, its successors and assigns, a nonexclusive franchise for a period of twenty years for the construction, operation, and maintenance of the grantee’s domestic water distribution pipeline system and all appurtenances thereto in, upon, under, across, along and over the county road right-of-way in Chelan County, Washington, shown and described in Appendix 1, attached to the resolution codified in this article. (Res. 2012-72 § 1, 8/1/12).

5.44.720 Definitions.

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

“Appurtenance(s)” means equipment and/or accessories which are a necessary part of an operating utility system or subsystem.

“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” means all or part of a utility’s lines, pipelines, appurtenances, or other installations of structures.

“Grantee” means Lake Wenatchee Water District, its successors and those assigns approved pursuant to Section 5.44.830.

“Grantor” means Chelan County.

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

“Pipe,” “pipeline,” “line(s),” “transmission line(s),” or “service line(s)” means a structural tubular product designed, tested and produced for the transmittance of specific liquids and gases under specific conditions. As used herein, the specific liquid to be transmitted is domestic water. These terms exclude irrigation ditches and grantee may not construct or operate irrigation ditches or any non-enclosed water system in, upon, under, across, along and over any county right-of-way.

“State” means the state of Washington. (Res. 2012-72 § 2, 8/1/12).

5.44.730 Permits, plans, specifications.

(9) All work by the grantee shall be done to the satisfaction of the county engineer.

5.44.740 Undergrounding—Shared excavations.

(b) Shared Excavations. The grantee acknowledges that the grantor desires to promote a policy of coordination and cooperation among franchises 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. (Res. 2012-72 § 4, 8/1/12).

5.44.750 Maintenance of facilities.

(a) The grantee shall maintain at its sole expense its lines, appurtenances, structures and other facilities for which this franchise is granted in a condition satisfactory to the county.

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

5.44.770 Restoration of county right-of-way.

5.44.780 Survey markers and monuments.

(a) Reference Points. Before any work is performed under this franchise, 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 this franchise. The method of referencing monuments or other markers or points shall be approved by the county surveyor before placement.

5.44.790 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 illegal release. Grantee shall be completely liable for any and all consequences of such illegal 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 5.44.870, from any and all liability resulting from such an illegal 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 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 illegal release of a hazardous substance by grantee, the county may give immediate notice of termination of this franchise, 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. 2012-72 § 9, 8/1/12).

5.44.800 Relocation or removal of grantee’s facilities.

(a) Relocation or Removal of Facilities. Whenever necessary for the construction, repair, improvement, alteration, or relocation of all or any portion of a county road as determined by the county engineer, or if the county engineer shall determine that the removal, relocation, or alteration of any or all facilities from county right-of-way is necessary, incidental, or convenient to the construction, repair, improvement, alteration, or relocation of any county road, the grantee shall, upon notice by the county and at grantee’s sole expense, lower, raise, change, relocate, reconstruct or remove any and all such grantee facilities from the county right-of-way as may be required to conform to the plans for work contemplated or ordered by the county. All such changes, reconstruction, or relocation by the grantee shall be done in such manner as will cause the least interference with the county’s performance and operations in the maintenance of its road.

(b) 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 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 grantee. (Res. 2012-72 § 10, 8/1/12).

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

5.44.820 Nonexclusive franchise.

5.44.830 Binding effect and assignment.

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

5.44.850 Extension, renewal, abandonment and expiration.

(b) 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. 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.

(c) Grantee’s Obligations After Expiration—County’s Right to Remove/Relocate Lines. If the grantee has not applied for a renewal of this franchise before it expires, grantee shall not have the right to provide additional services and shall, at its sole cost and as directed by the county, render its lines and appurtenances safe, remove, or relocate 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 right-of-way, or for the installation of lines and/or facilities of other franchise holders. If the grantee fails to render the lines and appurtenances safe, or remove or relocate them, as directed by the county, the county shall have the right to render the lines and appurtenances safe, or remove or relocate them at the grantee’s expense. (Res. 2012-72 § 15, 8/1/12).

5.44.860 Rates, other regulation, and eminent domain.

(d) Eminent Domain. This franchise and the limited rights and interests for the construction, maintenance, and operation of grantee’s system and related transmission and service lines and appurtenances within Chelan County right-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 this franchise shall not exceed the actual amount the grantee paid to Chelan County in obtaining this franchise. (Res. 2012-72 § 16, 8/1/12).

5.44.870 Hold harmless and indemnity.

(c) Expiration or Termination of Franchise. The provisions of this section shall survive the expiration or termination of this agreement. (Res. 2012-72 § 17, 8/1/12).

5.44.880 Insurance.

5.44.890 Right-of-way vacation.

5.44.900 Nondiscrimination.

In all hiring or employment made possible or resulting from this franchise agreement, 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 this agreement 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 this agreement and shall be grounds for cancellation, termination, or suspension in whole or in part of the agreement by the county and may result in ineligibility for further county agreements. (Res. 2012-72 § 20, 8/1/12).

5.44.910 Waiver of breach.

5.44.920 Governing law and stipulation of venue.

5.44.930 Grantee’s acceptance of terms and conditions.

5.44.940 Limitation on liability.

5.44.950 Compliance with laws.

5.44.960 Notice.

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

To the county:

Chelan County Public Works Department

316 Washington Street, Suite 402

Wenatchee, WA 98801

To the grantee:

(Name)

Address

Attn:

with a copy to:

LWWD Water District

c/o President

16621 Brown Rd, Leavenworth, WA, 98826

Attn: _____________________________________

The grantee shall promptly notify the county of any change in notice address. (Res. 2012-72 § 26, 8/1/12).

5.44.970 Miscellaneous.

5.44.980 Additional franchise terms.

The additional franchise terms contained in Appendix 2, attached to the resolution codified in this article, are incorporated herein by reference. (Res. 2012-72 § 28, 8/1/12).

5.44.990 Entire agreement.

5.44.1000 Severability.

5.44.1010 Effective date.

Article IV. Chelan Butte Estate, LLC

5.44.1110 Grant of franchise.

(a) Pursuant to Chapter 36.55 RCW and Chapter 8.25, the board of county commissioners for Chelan County, Washington, hereby grants to Chelan Butte Estate, LLC, a nonexclusive franchise (the “franchise”) under the terms and conditions in this article.

(b) The territorial boundaries of Chelan County are established as set forth in RCW 64.04.040. The franchise granted by this article 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 article, which is incorporated herein.

(c) Pursuant to the franchise granted by this article, 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 and domestic water 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 article, 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 5.44.1170.

(d) The franchise granted by this article 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. 2018-66 § 1, 8/7/18).

5.44.1120 Nonexclusive franchise.

(a) The franchise granted by this article 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.

(b) 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 article, 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. 2018-66 § 2, 8/7/18).

5.44.1130 Term—Early termination—Renewal.

(a) The initial term of the franchise shall be for a period of twenty-five years, beginning on the effective date of the franchise resolution codified in this article, 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 article.

(b) 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 article. 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 article shall automatically terminate. In the event of termination under this section, the franchisee shall promptly remove all franchisee facilities from the public rights-of-way as required by Section 5.44.1240; except, the county engineer may authorize the franchisee to abandon or temporarily abandon in place all or any portion of the franchisee facilities.

(c) If the franchisee elects to renew this franchise, the franchisee shall submit written application/notice to the county at least one hundred twenty days prior to the franchise expiration date. If the franchisee 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. 2018-66 § 3, 8/7/18).

5.44.1140 Permits required.

(a) The franchisee shall not commence any construction or other similar work within a public right-of-way until (1) 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, (2) if required by Title 3, a building permit authorizing such work has been issued by the county, and (3) 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 article, any and all work performed by the franchisee pursuant to the franchise granted by this article 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.

(b) 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 article the county engineer shall apply the following criteria in reviewing proposed utility routes and in the issuance, conditioning, or denial of such permit:

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

(2) 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;

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

(4) 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;

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

(6) 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

(7) 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. 2018-66 § 4, 8/7/18).

5.44.1150 Location of franchise facilities—Undergrounding of franchise facilities—Shared excavations.

(a) 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 the county engineer prior to installation.

(b) 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.

(c) 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. 2018-66 § 5, 8/7/18).

5.44.1160 Coordinating design—Alternative design.

(a) 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.

(b) 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.

(c) 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 road, drainage, bridge, 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. 2018-66 § 6, 8/7/18).

5.44.1170 Compliance with applicable laws and standards.

(a) The franchisee shall at all times during the term of the franchise abide 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.

(b) 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 article and/or right-of-way use or road disturbance permits.

(c) The franchisee is responsible to comply with requirements for RCW 58.04.015, 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.

(d) 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: (1) public use of the county road and/or public right-of-way at issue for vehicular or pedestrian transportation; (2) the construction and/or maintenance of other authorized facilities, equipment and improvements, whether public or private; (3) 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 (4) the use of the site at issue for other governmental purposes.

(e) 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 article, 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.

(f) 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.

(g) Applications for permits for work in a 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).

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

(1) 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.

(2) 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.

(3) 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.

(4) 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.

(5) The franchisee shall abide by all terms and conditions of permits issued by 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.

(6) 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.

(7) 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.

(8) 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.

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

(10) 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. 2018-66 § 7, 8/7/18).

5.44.1180 Restoration of county right-of-way.

(a) 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.

(b) If the franchisee, its agents or its contractors fail 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 rights-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. 2018-66 § 8, 8/7/18).

5.44.1190 Maps and records of franchisee facility locations.

(a) 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.

(b) 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.

(c) Documentation requested pursuant to subsection (a) 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 (a) or (b) of this section shall constitute a default authorizing the county to terminate the franchise in accordance with Section 5.44.1310. (Res. 2018-66 § 9, 8/7/18).

5.44.1200 Relocation or removal of franchise facilities to accommodate county work.

(a) 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: (1) public safety, (2) traffic conditions, (3) dedications of new rights-of-way and establishment or improvement thereof, (4) widening and/or improvement of existing rights-of-way, (5) right-of-way vacations, (6) change or establishment of road grade, or (7) 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.

(b) 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 the 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 the 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.

(c) 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 the 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. 2018-66 § 10, 8/7/18).

5.44.1210 Maintenance of franchisee facilities—Franchisee property in county right-of-way.

(a) 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.

(b) 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. 2018-66 § 11, 8/7/18).

5.44.1220 Hazardous materials.

(a) 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 article, 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 article, the franchisee may, during its performance of any construction or maintenance activities authorized by this article, use de minimis 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 materials laws, including any orders or instructions issued by authorized regulatory agencies.

(b) 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.

(c) Should the franchisee cause a release of hazardous material in violation of applicable hazardous material laws as described in subsection (b) of this section, such release shall constitute a default authorizing the county to terminate the franchise in accordance with Section 5.44.1310(a).

(d) The obligations of the franchisee under this section shall survive the expiration or earlier termination of the franchise granted by this article. (Res. 2018-66 § 12, 8/7/18).

5.44.1230 Emergencies—Hazardous conditions—Emergency management plan—County authority to abate.

(a) 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 a 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.

(b) 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.

(c) 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	____ 253-380-4381 _____
Contact Name/Title: RiverCom 911	Contact Name/Title: Owner

(d) 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.

(e) 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. 2018-66 § 13, 8/7/18).

5.44.1240 Abandonment and removal of franchise facilities.

(a) 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.

(b) 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.

(c) 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 (a) of this section. (Res. 2018-66 § 14, 8/7/18).

5.44.1250 Hold harmless and indemnification.

(a) The franchisee shall hold harmless from and indemnify the county parties (as such term is defined in Section 5.44.1220) 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 5.44.1220) in the performance of any rights or privileges granted in the franchise by this article; 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.

(b) 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 article. 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.

(c) 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.

(d) 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.

(e) The provisions of this section shall survive expiration or earlier termination of the franchise granted by this article. (Res. 2018-66 § 15, 8/7/18).

5.44.1260 Limitation of county liability.

The county’s administration of the franchise granted by this article 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 article; by reason 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. 2018-66 § 16, 8/7/18).

5.44.1270 Insurance.

(a) 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 one 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.

(b) 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.

(c) 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 one million dollars. The franchisee shall provide the county with a self-insurance letter as evidence that the franchisee maintains a self-insurance program. (Res. 2018-66 § 17, 8/7/18).

5.44.1280 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. 2018-66 § 18, 8/7/18).

5.44.1290 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 article, 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. 2018-66 § 19, 8/7/18).

5.44.1300 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 (a) any entity that it controls, is under common control with or is controlled by or (b) 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. 2018-66 § 20, 8/7/18).

5.44.1310 Failure to comply with franchise—No waiver.

(a) 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.

(b) 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 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.

(c) 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. 2018-66 § 21, 8/7/18).

5.44.1320 County resolutions and regulations—Reservations of police power.

(a) 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.

(b) 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. 2018-66 § 22, 8/7/18).

5.44.1330 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. 2018-66 § 23, 8/7/18).

5.44.1340 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. 2018-66 § 24, 8/7/18).

5.44.1350 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 this article. (Res. 2018-66 § 25, 8/7/18).

5.44.1360 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 article nor the application of the provision at issue to any other person or entity. (Res. 2018-66 § 26, 8/7/18).

5.44.1370 Nonemergency notice and contacts.

(a) 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.

(b) 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

Chelan Butte Estate, LLC

Attn: Steven Teeny

P.O. Box 2829

Chelan, WA 98816

(Res. 2018-66 § 27, 8/7/18).

5.44.1380 Acceptance.

Within sixty days after passage and approval of the franchise resolution by the board of county commissioners, the franchise granted by this article may be accepted by the franchisee by its filing with the board of county commissioners an unconditional written acceptance thereof. Failure of the franchisee to so accept the franchise granted by this article 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. 2018-66 § 28, 8/7/18).

5.44.1390 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”): (a) a minimum of ten days have elapsed since the board of county commissioners enacted the franchise resolution codified in this article; and (b) the franchisee executed and returned a copy of the franchise resolution codified in this article to the board of county commissioners within the time provided in Section 5.44.1380; and (c) the franchisee presents to the county acceptable evidence of insurance as required in Section 5.44.1270. (Res. 2018-66 § 29, 8/7/18).