Chapter 5.46 SPRINT COMMUNICATIONS FIBER OPTIC CABLE FRANCHISE

Chelan County hereby grants to Sprint Communications Company L.P., a Delaware limited partnership, its successors and assigns a nonexclusive franchise for a period of twenty years, from October 29, 2013, to and through October 28, 2033, for the operation and maintenance of grantee’s buried fiber optic cable 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 chapter. (Res. 2013-86 § 1, 10/29/13).

5.46.020 Definitions.

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

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

“Board” or “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, or designee.

“Director” means the Chelan County public works director, or designee.

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

“Franchise” or “franchise agreement” or “agreement” means an occupancy and use document granted by grantor, required for occupancy of road rights-of-way in accordance with Chapters 36.55 and 80.32 RCW, and Chelan County Code.

“Grantee” means Sprint Communications Company L.P., Delaware limited partnership, its successors and those assigns approved pursuant to Section 5.46.130.

“Grantor” means Chelan County.

“Line(s),” “transmission line(s),” or “service line(s)” means the conduit and fiber optic and similar cabling contained therein. 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.

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

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

“Road” or “roadway” means a street, road, or other public way, including shoulders, designated for the purpose of vehicular traffic. As used herein, these terms refer only to those roads or roadways in which Chelan County has an actual interest within the franchise area.

“State” means the state of Washington. (Res. 2013-86 § 2, 10/29/13).

5.46.030 Permits, plans, specifications.

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

(2) Permits for Work in the Right-of-Way. Grantee has the right, privilege, and authority to enter county right-of-way for the purpose of operating, relocating, installing, repairing, reinstalling, maintaining, and upgrading its transmission and service lines and appurtenances, on the condition that prior to commencing any work on a county right-of-way grantee obtains and complies fully with all required federal, state, and county permits required for such work.

(3) Permits for Work in County 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). A sample application for permit (“Appendix 2A”) and supplemental instructions for utility applicants (“Appendix 2B”), which grantor may revise from time to time, are attached as described to the resolution codified in this chapter. Grantee shall comply with the following requirements, whether or not stated in any permit:

(A) 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.

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

(C) All permits for the operation, maintenance, repair or construction of said system shall be applied for and given in the name of grantee, who will be responsible for all work done under the permit. Grantee remains responsible whether the work is done by grantee, its contractors, or by third parties.

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

(E) 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 performance of any work undertaken in the right-of-way.

(F) 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 grantee to disturb any county right-of-way.

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

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

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

(J) On completion of any work by grantee, all rubbish and debris shall be immediately removed and the roadway and roadside shall be left neat and presentable to the reasonable satisfaction of the county engineer. (Res. 2013-86 § 3, 10/29/13).

5.46.040 Undergrounding—Shared excavations.

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

(2) Shared Excavations. Grantee acknowledges that 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 grantor; provided, that such sharing of excavations shall not interfere with, hinder, or delay any grantor construction project or maintenance. (Res. 2013-86 § 4, 10/29/13).

5.46.050 Maintenance of facilities.

(1) Maintenance. Grantee shall maintain at its sole expense its lines, appurtenances, structures and other facilities for which this franchise is granted in a condition reasonably satisfactory to grantor.

(2) Grantee’s Property. Grantor will not assume responsibility for damage to grantee’s property and various objects that are placed in county roads and rights-of-way, except to the extent caused by the negligence or willful misconduct of county. Grantee will maintain any above-ground facilities within the franchise area so as not to unreasonably interfere with grantor’s maintenance or free and safe passage of traffic. (Res. 2013-86 § 5, 10/29/13).

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

(1) Record of Location of Facilities. 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 grantor upon request.

(2) Emergency Management Plan. Grantee shall prepare, file, and keep updated with grantor an emergency management plan for responding to any 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.

(A) Emergency Contact Information for Grantee:

24-Hour Contact Number: (800) 521-0579

Contact Individual: Sprint

(B) Emergency Contact Information for County:

24-Hour Contact Number: (509) 663-9911

Contact Individual: RiverCom 911

(C) After being notified of an emergency, grantee shall cooperate with the county and make every effort to respond as fast as practical with action to minimize damage and to protect the health and safety of the public.

(3) Hazardous Conditions.

(A) 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 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.

(B) 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 grantee before acting. In such instance, grantee (responsible for the creation of the hazardous situation) shall be responsible for the payment of any reasonable costs incurred by grantor. 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. Notwithstanding the foregoing, prior to invading the bond grantor shall give grantee written notice of grantor’s intention to invade the bond together with sufficient documentation of the amount that is due (“notice”). If grantor still has not received payment thirty days after the date of grantee’s receipt of such notice, grantor may access the bond upon ten days’ prior written notice to grantee. (Res. 2013-86 § 6, 10/29/13).

5.46.070 Restoration of county right-of-way.

(1) Restoration of Right-of-Way. After grantee performs work in, on, upon, over, under, across, along, or adjacent to county road right-of-way, it 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 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. Restoration under these circumstances shall be at grantee’s sole expense. Completion of county road restoration in a manner consistent with the approved plans shall satisfy the grantee’s restoration obligations under this subsection.

(2) Failure to Restore Right-of-Way. If grantee, its agents or its contractors fail to restore any county road right-of-way to the reasonable satisfaction of the director, grantor 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 reasonable opinion of the county engineer, grantee’s deficient restoration causes an emergency situation resulting in an immediate hazard to public safety, health, or property, grantor may repair the deficiency without prior notice to the grantee. Grantor shall provide oral notice followed by written notice immediately following such repair. The grantee shall be responsible for reimbursing grantor for any and all costs and expenses incurred by grantor 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 ninety days. If grantor brings suit upon grantee’s failure to pay for repair and restoration, and if judgment in such a suit is entered in favor of grantor, then grantee 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. 2013-86 § 7, 10/29/13).

5.46.080 Survey markers and monuments.

(1) 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.

(2) Replacement of Markers or Monuments. The replacement of all markers or monuments disturbed during any construction of 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 grantee. (Res. 2013-86 § 8, 10/29/13).

5.46.090 Hazardous wastes, substances.

Grantee agrees that it will not negligently or intentionally cause the release of any hazardous substance, waste, or pollutant or contaminant (as defined by applicable law) into or upon any county road or right-of-way in violation of any state or federal law with respect thereto. Grantee shall notify grantor 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 grantor harmless, as provided in Section 5.46.170, 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. Grantor 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, grantor 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 grantee, but only if grantee does not promptly take corrective action after receiving written notice from the county engineer. (Res. 2013-86 § 9, 10/29/13).

5.46.100 Relocation or removal of grantee’s facilities.

(1) 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, grantee shall, upon one hundred eighty days’ notice by grantor, 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 grantor. If relocation and/or removal of grantee’s facilities is necessary but one hundred eighty days’ notice is not feasible, grantor shall provide grantee with such notice as soon as reasonably practicable. All such changes, reconstruction, or relocation by the grantee shall be done in such manner as will cause the least interference with grantor’s performance and operations in the maintenance of its road.

(2) Failure to Relocate or Remove Facilities. Upon failure, neglect, or refusal of grantee to perform, within one hundred eighty days’ notice from grantor, any change, removal, relaying, or relocating of any facilities required of grantee by this franchise, grantor may undertake and perform such requirement and the cost and expense thereof shall be immediately repaid to grantor by grantee. (Res. 2013-86 § 10, 10/29/13).

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

(1) Grantor’s Right to Do Road Work. This franchise does not prevent or prohibit grantor from constructing, altering, relocating, maintaining, or using any county road right-of-way covered by this franchise. Grantor 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 lines and appurtenances granted by this franchise does not preclude grantor, its agents or contractors from blasting, grading, or doing other road work contiguous to, in the vicinity of or likely to affect grantee’s lines and appurtenances in, upon, under, across, along and over county right-of-way.

(2) Coordinating Design. Grantor will, during the design phase of construction projects involving relocation of facilities, consult with grantee in order to coordinate design. Grantee, upon grantor’s request, shall locate its facilities during this time to facilitate the coordination.

(3) Notice of Blasting/Excavating Work. Grantor will give grantee seventy-two hours’ notice prior to grantor’s conduct of blasting, or of excavation exceeding a depth of two feet, in the portion of right-of-way in which grantee’s lines and/or appurtenances are located. The requirement of prior notice shall be waived for blasting or excavation undertaken to protect public health or safety in emergency or hazardous conditions; however, if the circumstances permit, grantor will endeavor to give grantee as much prior notice as reasonably possible. Notwithstanding the foregoing, immediately following such activity, grantor must notify grantee orally, and followed promptly by written notice, that grantor entered the right-of-way and describe the actions taken by grantor due to the emergency or hazardous condition. (Res. 2013-86 § 11, 10/29/13).

5.46.120 Nonexclusive franchise.

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

(2) Location of Grantee’s Facilities. Grantee’s facilities shall be located to minimize the need for later adjustment to accommodate future roadway improvements and to permit access to servicing such installations with minimum interference with roadway traffic and other utilities. Where existing utility facilities are in place, new facilities shall be compatible with the existing installations. Locations of new or relocated facilities within the right-of-way shall be approved in writing by grantor prior to installation. (Res. 2013-86 § 12, 10/29/13).

5.46.130 Binding effect and assignment.

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

(2) Assignment or Transfer. Grantee may assign or transfer this franchise with prior written consent of the commission. Such consent to assign shall not be unreasonably withheld, conditioned or delayed; provided, however, that grantee may assign this franchise or any of its rights under this franchise without 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 grantee. No assignment or transfer shall be effective unless the assignee accepts all rights, conditions, terms, provisions, and responsibilities contained within the franchise and posts 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. Any assignment or delegation in violation of this section is null and void.

(3) Abandonment—Vacation—Annexation. If grantor abandons or vacates any portion of the right-of-way subject to this franchise agreement, grantor must either reserve a public utility easement or condition the abandonment or right-of-way vacation subject to grantee’s occupancy. Grantor agrees to provide grantee at least one hundred eighty days’ prior written notice of any abandonment or vacation of any portion of such right-of-way. If such right-of-way or portion thereof is annexed or condemned, the grantor’s successor shall be subject to grantee’s occupancy to the extent allowed by law. (Res. 2013-86 § 13, 10/29/13).

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

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

(2) Opportunity to Cure. 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 applicable cure period, the nondefaulting party may, without prejudice to any other rights or remedies at law or in equity or under this franchise, terminate this franchise.

(3) Notice of Intent to Modify. If 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 grantee under the provisions of this franchise, and is in default, either the county engineer or the commission may notify grantee of the grantor’s intent to amend, alter, change or supplement this franchise. Grantor shall give to grantee thirty days’ written notice of its intention to amend, alter, change or supplement this franchise, during which period grantee shall have the opportunity to remedy the failure to comply.

(4) Notice of Intent to Revoke. If grantor intends to revoke the franchise, 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. 2013-86 § 14, 10/29/13).

5.46.150 Extension, renewal, abandonment and expiration.

(1) Renewal. If grantee elects to renew this franchise, grantee shall submit written application/notice to grantor at least one hundred twenty days prior to the franchise expiration date.

(2) Extension of Franchise Pending Renewal. If grantee initiates a renewal of this franchise, grantor may, at its sole discretion, extend the term of the franchise on a month-to-month basis for up to one year at no additional cost to grantee.

(3) Abandonment of Facilities—Render Safe or Remove Lines. If grantee decides to discontinue use of and abandons any of its facilities, or grantor 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 remove any electronics or remove the facilities. If grantee fails to comply with the county engineer’s direction, grantor has the right, at grantee’s expense, to render safe or remove any lines and appurtenances of 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.

Grantee will not be considered to have abandoned its facilities or to have breached the franchise terms if grantee reduces the amount of right-of-way occupied.

(4) Grantee’s Obligations after Expiration—Grantor’s Right to Remove/Relocate Lines. If grantee has not timely applied for a renewal of this franchise, grantee shall, at its sole cost and as directed by grantor, render its lines and appurtenances safe, remove or relocate any lines and appurtenances of 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 grantee fails to render the lines and appurtenances safe, or remove or relocate them, as directed by grantor, then grantor shall have the right to render the lines and appurtenances safe, or remove or relocate them, at the grantee’s expense. Thereafter, grantee shall have no further obligations under this franchise, except as provided in Section 5.46.170. (Res. 2013-86 § 15, 10/29/13).

5.46.160 Rates, other regulation, and eminent domain.

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

(2) Reservation of Right to Impose Taxes, Costs, and Fees. Grantor specifically reserves for itself the right to impose taxes, use fees, costs, service requirements, or other fees on grantee for the privilege of conducting this business in Chelan County, for the use of grantor’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 grantee.

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

(4) 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 grantor’s right-of-way are subject to the exercise of eminent domain. In the event of grantor’s exercise of eminent domain 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 grantee paid to grantor in obtaining this franchise. (Res. 2013-86 § 16, 10/29/13).

5.46.170 Hold harmless and indemnity.

(1) Hold Harmless and Indemnity. Each party, its successors and assigns, or its officials and employees, agree to indemnify, defend, and hold the other harmless from all claims, demands, damages, expenses, or suits that: (A) arise out of or are incident to any negligence by the other and the other’s agents, officials, contractors, or employees in the use of the right-of-way pursuant to this document, or (B) are caused by a breach of any of the conditions of this franchise by either party and either party’s agents, officials, contractors, or employees. Any action for damages against grantor, 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 and restoration of such grantee property and are only recoverable in those instances where 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 grantee maintains a record of location as required in this franchise. 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 grantee, its assigns’, successor’s, agent’s, contractor’s, licensee’s, or employee’s construction, installation, maintenance, operation, use, or occupancy of the county right-of-way or in the exercise of this franchise against grantor, its officials, agents, or employees, except the reasonable costs of repair of property, and restoration of that property, resulting from the negligent injury or damage to grantee’s property by grantor, its agents, contractors, or employees. In the event it is necessary for grantee or grantor 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 other party.

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

(3) Expiration or Termination of Franchise. The provisions of this section shall survive the expiration or termination of this agreement. (Res. 2013-86 § 17, 10/29/13).

5.46.180 Insurance.

(1) Coverage Required. Grantee shall obtain and maintain general comprehensive liability insurance on a per occurrence basis naming grantor 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 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. Grantee shall initially, and annually thereafter, provide grantor with proof of the required insurance. Failure to obtain the required insurance policy or lapse of insurance coverage shall be a basis for revocation of this franchise.

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

(3) 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 grantor with a self-insurance letter as evidence that grantee maintains a self-insurance program. (Res. 2013-86 § 18, 10/29/13).

5.46.190 Right-of-way vacation.

If at any time grantor vacates any right-of-way covered by this franchise, grantor will not be held liable for any damages or loss to grantee by reasons of such vacation. Grantor agrees to provide grantee with at least ninety days’ written notice prior to any such vacation. Grantor may, after giving thirty days’ written notice to grantee, terminate this franchise with respect to such grantor right-of-way vacated. (Res. 2013-86 § 19, 10/29/13).

5.46.200 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 grantor and may result in ineligibility for further county agreements. (Res. 2013-86 § 20, 10/29/13).

5.46.210 Waiver of breach.

Failure of grantor 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. 2013-86 § 21, 10/29/13).

5.46.220 Governing law and stipulation of venue.

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. 2013-86 § 22, 10/29/13).

5.46.230 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. 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 grantee filing a signed original of the certificate of acceptance of with the clerk of the commission within thirty days of the commission’s resolution authorizing this grant of franchise. (Res. 2013-86 § 23, 10/29/13).

5.46.240 Limitation on liability.

Administration of this franchise shall not be construed to create the basis for any liability on the part of grantor, its appointed and elected officials and employees for any injury or damage from the failure of 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 grantor; for any action or inaction thereof authorized or done in connection with the implementation or enforcement of this franchise by grantor; or for the accuracy of plans submitted to grantor. (Res. 2013-86 § 24, 10/29/13).

5.46.250 Compliance with laws.

Grantee shall conform to all applicable federal, state, and local laws, codes, and regulations, as now may be in force or as may be further enacted or amended, including, but not limited to, the State Environmental Policy Act and Chelan County Code. (Res. 2013-86 § 25, 10/29/13).

5.46.260 Notice and contact information.

(1) Notice (Other Than Legal Process). Notice (other than legal process) provided for in this franchise shall be sent via certified mail, return receipt requested, or express carrier with notice deemed given upon receipt or first refusal and shall be sent to the following addresses:

To grantor:

County Engineer

Chelan County Public Works Department

316 Washington Street, Suite 402

Wenatchee, WA 98801

Phone: 509.667.6415

Fax: 509.667.6250

To grantee:

Sprint Communications Company L.P.

6391 Sprint Parkway

MS: KSOPHT0101-Z2040

Overland Park, KS 66251

Attn: Manager, Real Estate

With a copy to:

Sprint Communications Company L.P.

6391 Sprint Parkway

MS: KSOPHT0101-Z2020

Overland Park, KS 66251

Attn: Real Estate Attorney

(2) Notice by Alternate Method. If agreed in writing by the parties’ designated representatives identified in subsection (1) of this section, notice (other than legal process) provided for in this franchise may be sent via facsimile (fax) to the receiving party’s representative (subsection (1) of this section), and unless waived by the receiving party, shall be promptly followed by delivery of the original notice by certified mail or express carrier as provided in subsection (1) of this section.

(3) Contact Information to be Kept Current. Each party shall promptly provide notice to the other of any change in address and/or other contact information (subsection (1) of this section). (Res. 2013-86 § 26, 10/29/13).

5.46.270 Miscellaneous.

(1) 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.

(2) 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.

(3) Reimbursement of Grantor Costs. Grantee shall be fully responsible for, and within thirty days of presentation of an invoice together with reasonable supporting documentation, shall reimburse grantor for all cost of public notice, including publication, and for auditor’s filing fees associated with the grant of this franchise. (Res. 2013-86 § 27, 10/29/13).

5.46.280 Additional franchise terms.

The additional franchise terms contained in Appendix 3, attached to the resolution codified in this chapter, are incorporated herein by reference. (Res. 2013-86 § 28, 10/29/13).

5.46.290 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 fiber optic cable system, except as may be modified by changes in federal or state law or regulations or further written agreement of the parties. (Res. 2013-86 § 29, 10/29/13).

5.46.300 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. 2013-86 § 30, 10/29/13).

5.46.310 Effective date.

The resolution codified in this chapter shall be in full force and effect from and after its passage, approval, and legal publication as provided by law; and provided, that it has been duly accepted by grantee and recorded in the office of the Chelan County auditor. (Res. 2013-86 § 31, 10/29/13).