Franchise - EXPIRED
1
. ,
,
After Recordmg Return to Spokane County Engmeer
Attn Engineermg Administration
` c D8~8
G ~ - ~~-,7_/O
RESOLUTION NO.
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF SPOKANE COUNTY, WASHINGTON
IN THE MATTER OF THE APPLICATION OF )
HUBER TRUCKING FOR A FRANCHISE TO ) F R A 1V C HI S E
CONSTRUCT, OPERATE, AND MAINTAIN A SEWER )
SYSTEM IN COUNTY ROADS, HIGHWAYS AND RIGHTS )
OF WAYS IN SPOKANE COUNTY, WASHINGTON )
Application of Huber Truckuig, douig business in Washington, at Spokane, for a franchise to
operate and maintain a sewer system m Spokane County roads, highways and rights of way in the
Spokane County, Washington, as hereinafter set forth, having come on regularly for hearing before the
County Commissioners of Spokane County, Washington, on the 19th day of June, 2001, at the hour of
5 00 p m, under the provisions of Chapter 187, State Sessions Laws of 1937, and it' appearing to the
Board that notice of said hearing has been duly given as required by law, and that rt is vn the public
interest to grant the franchise herem granted;
1. I)EFINITYONS
Captions. Throughout this Franchise, captions to sections are intended solely to facilitate
reading and to reference the sections and provisions of this Franchise. The captions shall not affect
the meaning and interpretation of this Franchise.
I3efinitions: For the purpose of this Franchise, the following terms, phrases, and their
derivations shall have the meanings given below unless the context indicates otherwise When not
inconsistent with the context, words used in the present tense include the future tense, words in the
plural number include the singular number, and words in the singular include the plural number
The word "shall" is always mandatory and not merely directory
1. "Construction or Construct" shall mean constructing, digging, excavating,
laying, testing, operating, extending, renewing, removing, replacing, and
repairing a facility
,
' T
2 "Consumer" shall mean any person, persons, customer, firm, association,
murucipal corporation, and/or corporation that uses the product, including
residential, commercial, and industrial users.
3. "County" - The County of Spokane, a municipal corporation of the State of
Washington, which specifically includes all areas incorporated therein as of
the effective date oftlus Franchise and any other areas later added thereto by
annexation or other means. Also to have the meaning of an entity, depending
on the context, its authorized agents, successors, and assigns
4. "County Engineer" - The head of the Division of Engineering, or the
designee or authorized representative of the County Engineer
5 "County Project" - Any public work or improvement under direction of the
County Engineers.
6. "Distribution System, System, and Lines" used either in the singular or
plural shall mean and include the pipe lines, mains, laterals, conduits,
feeders, regulators, meters, fixtures, connections, and all attachments,
appurtenances and appliances necessary and incidental thereto or in any way
appertaining to the distribution of the product and which are located within
the County Right of Way
7. "Days" - Calendar days.
8 "Facility" means any tangible component of the sewer system including
supporting structures, located in the operation of activities authorized by this
Franchise The abandonment by Grantee of any facilities as defined herein
shall not act to remove the same from this definition
9. "Franchise" means this Franchise agreement, as fully executed by the
County and the Grantee.
10. "Grantee" - An entity or natural person with whom this Franchise
agreement is made
11. "Maintenance, Maintaining, or Maintain" shall mean constructing,
relaying, repairing, replacing, examirung, testing, inspecting, removing,
digging and excavating, and restoring operations incidental thereto.
12 "Permittee" - A person who has been granted a permit by the Permitting
Authority.
13. "Permitting Authority" - The head of the County department authorized to
process and grant permits required to perform work in the County's Right of
Way, or the head of any agency authorized to perform this function on the
County's behalf Unless otherwise indicated, all references to Permitting
Authority shall include the designee of the department or agency head.
14. "Person" - An entity or natural person
15. "Product" - What the Franchise produces for consumer consumption
16. "Public Properties" - Any real-estate or any facility owned by the county. I
I
17. "Public Works Director" - The head of the Public Works Department of the
County, or in the absence thereof, the head of the Division of Engineering, or
the designee of either of these individuals.
18. "Right of Way", as used herein, shall refer to the surface of and the space
along, above, and below any street, road, highway, freeway, lane, sidewalk,
alley, court, boulevard, parkway, drive, Grantee easement, and/or road Right
of Way now or hereafter held or administered by the County of Spokane.
19. "Standard Specifications for Road, Bridge, and Municipal
Construction" is the most current edition. Where this standard refers to
"the State" substitute "the County."
20. "Streets", "Highways" mean the surface of, and the space above and below,
any public street, road, alley or highway, within the County used or intended
to be used by the general public, to the extent the County has the right to
allow the Grantee to use them.
2. RIGHTS GRANTED
Huber Trucking, its successors and assigns (hereinafter designated as the "Grantee"), shall
have the right and authority to enter upon the County roads, highways and rights-of-way as herein
described for the purpose of constructing and installing its Facilities (hereinafter referred to as the
"system") and for repairing, operating, maintaining, removing and replacing all or any portion of its
system, as approved under County permits issued by the Permitting Authority pursuant to this
Franchise and applicable County resolution ordinances.
If this franchise is for a City utility, the City agrees that it will not require an annexation
waiver -(i.e. agreements not to oppose annexation) as a condition for obtaining service from or
making connection to the facility authorized under this franchise.
3 TIME PERIOD
The granted Franchise shall be for a period of 10 years, commencing on the date this
Franchise becomes effective; provided that Grantee shall have no rights under this Franchise unless,
and until, Grantee files with the County a written consent to all terms and conditions of this
Franchise Agreement, and the Franchise granted by this agreement shall be null and void if such
written consent is not filed within thirty (30) days after the effective date of this Franchise.
Application for extension or renewai of the term may be made no sooner than one year before
expiration thereof.
4. SUPERCEDES OTHER AGREEMENTS
'
, This Franchise constitutes the entire understanding and agreement between the parties as to
the subject matter herein and no other agreements or understandings, written or otherwise, shall be
binding upon the parties upon execution and acceptance hereof.
This Franchise shall also supersede and cancel any previous right or claim of Grantee to
occupy the County roads as herein described.
5. ALL FACILIYTIES UNI)ER, FRANCHISE
Any facilities and appurtenances in streets, alleys, and rights-of-way described in Exhibit "A"
incidental to the Franchise system, that have been or are at any future time acquired, leased, or
utilized in any manner by Grantee are thereupon to be deemed authorized by and shall be subject to
all provisions of this Franchise
s. NoT EXCLUSNE
This Franchise is granted upon the further express condition that it shall not be an exclusive
Franchise and shall not, in any manner, prohibit the County of Spokane from granting any other
Franchise over, in, along, under, below, upon, and across any of the said County roads of any kind
and character or territories that may be deemed proper by the Spokane County Commissioners, and
this Franchise shall not in any way prevent the County of Spokane from using the said County roads
and highways of any kind and character or territories, or affect the jurisdiction over them and every
part of them by the County of Spokane. The County shall retain full authoritative power to make all
necessary repairs, changes, maintenance, relocations, estabhshment, improvement, dedication,
vacation, alterations, etc, in the same and like manner as though this Franchise had never been
granted.
7. liTON INTERFEREliTCE WITH ~ISTING FACILITIES
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 facilities and other governmental purposes,
and should a conflict arise with the Grantee's facilities, the Grantee shall, at its own expense and
cost, conform to the County's facilities and other government purposes of the County.
The owners of all utilities, public or private, installed in such Public Properties prior to the
installation of the hnes 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's system shall be constructed and maintained in such manner as not to interfere
with sewers, water pipes, or any other property of the County, or with any other pipes, wires,
conduits or other facilities that may have been laid in the Rights of Way by or under the County's
authority.
8. COUNTYS R,IGHT TO THE ROAD NOT SLT~.'ER,SEI)EI)
Spokane County, in the granting of this Franchise, does not waive any rights which it now
holds or may hereafter acquire, and this Franchise shall not be construed so as to deprive Spokane
County 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 any purpose including
constructing, repairing, or improving the same in any such manner as Spokane County, or its
representatives may elect. The County shall retain full authoritative power in the same and like
manner as though this Franchise had never been granted.
Nothing in this Franchise shall be construed to prevent the County from constructing
facilities, grading, paving, repairing and/or altering any street, or laying down, repairing or removing
facilrties or constructing or estabhshing any other public work or improvement All such work shall
be done, insofar as practicable, so as to not obstruct, injure or prevent the unrestricted use and
operation of the facilities of the Grantee under this Franchise. However, if any of the Grantee's
facilities interferes with County projects, Grantee's facilities shall be removed or replaced. Any and
all such removal or replacement shall be at the expense of the Grantee. Should Grantee fail to
remove, adjust or relocate its facihties by the date established by the County Engineer's written
notice to Grantee, the County may cause and/or effect such removal, adjustment or relocation, and
the expense thereof shall be paid by Grantee, including all costs and expenses incurred by the
County due to Grantee's delay.
9. R,ELOCATI010T OF FACILITIES
The County shall have the right to require Grantee to change the location of its facilities
wrthin the Rights of Way when the public converuence requires such change, and the expense thereof
shall bP naid so1Ply hv CTrantPe ThP C,oiinty qhall nrnvic3p thP CTrantPP with thP ctandard nottce. as
stated below, g►iven under the circumstances to other Franchisees, Licensees, or Permitees Should
Grantee fail to remove or relocate any such facilities by the date established by the County, the
County may cause and/or effect such removal or relocation, and the expense thereof shall be paid by
Grantee, including all direct, indirect and/or consequential costs and expenses incurred by the
County due to Grantee's delay. If the County requires Grantee to relocate its facilities located within
the County's Rights of Way, the County will make a reasonable effort to provide Grantee with an
alternate location for its facilities within the County's Rights of Way.
During the life of this Franchise, the County reserves the right to order any Facility moved
or changed as ordered and determined by the County Eng►ineer, so as to accommodate building or
other changed conditions in the vicinity.
The relocation of Grantee's facilities shall be at the sole expense of Grantee unless the
County Engineer determines, after consultation with Grantee and at Grantee's request, that the
benefit of such improvements or changes to the County road, highway or Right of Way inures
primarily to adjacent property owners or developers and not the general public. In such case, the
County agrees to make reasonable efforts to facilitate an agreement between such owners or
developers and Grantee, and where appropriate, as determined by the County Engineer, withhold
approval and/or acceptance of the improvements or development until the owner or developer has
entered into an agreement to pay for the costs of relocation.
The County shall in no way be held liable for any damages to Grantee that may occur by
reason of any of the County's improvements, changes or works above enumerated, except for damage
caused by the negligence of the County, its employees or agents
Grantee agrees and covenants at its sole cost and expense, to protect, support, temporarily
disconnect, relocate or remove from any Right of Way its facilities when so required by the County,
provided that Grantee shall in all such cases have the privilege to temporarily bypass, in the
authorized portion of the same Right of Way upon approval by the County, any facilities required to
be temporarily disconnected or removed.
When relocation of Grantee's facilities are required by County projects the following Standard
Notice shall be sent unless emergency conditions dictate otherwise, as determined by the County
Engineer•
1. Spokane County shall make available to Grantee a hst of anticipated projects for
each new budget period as soon as is reasonably practicable
2 Spokane County shall send a Preliminary Utility Notice with a section map
showing the job limits and a typical section or a preliminary plan if it is available.
3 Spokane County shall send a Second Utility Notice once the plans are available to
show the existing utilities
4. Spokane County shall hold a Utility Design Meeting for aIl the utilities affected
5. Spokane County shall send a"Utility Notice to Proceed" with the proposed bid
opening date and final plans.
6. Relocation of Grantee's facilities shall be completed in a timely manner defined
as follows:
Relocation of Grantee's facilities shall normally be accomplished ten (10) days in
advance of County projects. In the event relocation of Grantee's facilities shall be
done concurrently with such projects, Spokane County shall be so notified and
agree to a written schedule for relocation. Compliance with such a written
schedule shall be Grantee's duty. In no event shall relocation of Grantee's
facilities interfere with the progression and completion of County projects
7 If the Grantee does not relocate its facilities in a timely manner as required
above, Spokane County may relocate, or cause to be relocated, such facilities of
Grantee as Spokane County deems necessary, and in the manner Spokane
County deems necessary, in its sole discretion. Grantee hereby indemnifies and
holds Spokane County, its employees, officers, officials, and agents totally free
and harmless from all and any liability which may arise from damages caused by
the relocation by Spokane County of the facilities of Grantee except to the extent
that such damages and liability arise from the negligence of Spokane County, its
employees, officers, officials, and agents
8. Grantee hereby indemnifies and holds harmless Spokane County, its officers,
officials, and employees, from damages which may arise from Grantees' failure to
relocate its facilities in accordance with the dates for completion of relocation of
facihties set forth above, or any other act or omission by Grantee, its
contractor(s), agents, officers, or employees related to the provisions of this
Franchise
9. The exercise of its rights, as set forth in Item 7, above, by Spokane County in no
way relieves Grantee of completing and/or finalizing the relocation of its facilities
at no expense to Spokane County if the relocation work done by Spokane County
is incomplete.
10 In the event that the Grantee does not comply with the aforementioned
stipulations, after a reasonable opportunity to remedy its non-compliance the
Grantee shall forfeit all rights granted under this Franchise, and said Franchise
shall be null and void Grantee shall then remove all of its Facilities from the
County Right of Way. If Grantee has the right to be within County Right of Way
by another method other than a Franchise the County shall use any other means
at its disposal to bring the Grantee into compliance with this Franchise
Document.
The provisions of this Section shall in no manner preclude or restrict Grantee
from making any arrangements it may deem appropriate when responding to a
request for relocation of its facilities by any person other than the County, where
the improvements to be constructed by said person are not or will not become
County-owned, operated or maintained, provided that such arrangements do not
unduly delay a County construction project.
lo. PU8~~C RECoRDS
As a condition of this Franchise, and at its sole expense, Grantee agrees to provide the
County with as-built plans, potential improvement plans, field locates, maps, plats, specications,
nrnfilAe anrl rcrnrrle rMAea rernrrle eboll 'ke ir+ a rlimtol elen+rn"in fnrma+ onne,,+~l.ln +n +1►n (rn»n+,%7
r_-____-~ ,..~b~,..,.~ .,.......p.....,..... ......._._~unless the County Engineer deems it to be a hardship to the Grantee, in which case a hard copy in a
format acceptable to the County Engineer shall be provided Grantee shall provide the County a
plan map updated annually showing all Grantee's facihties located within the County Right of Way
or Public Properties.
To the extent such requests are limited to specific facilities at a given location within the
Franchise area in connection with the construction of any County project, Grantee shall provide to
the County, upon the County's reasonable request, copies of available drawings in use by Grantee
showing the location of such facilities. Grantee shall field locate its facilities in order to facilitate
design and planrung of County improvement projects
Upon written request of the County, Grantee shall provide the County with the most recent
update available of any plan of potential improvements to its facilities within the Francluse Area,
provided, however, any such plan so submitted shall be for informational purposes only, and shall
not obligate Grantee to undertake any specif'ic improvements within the Franchise Area
Public Disclosure Act: Grantee acknowledges that information submitted to the County is
open to public inspection under the Washington Public Disclosure Act RCW 42-17. Grantee may
identify information, such as trade secrets, financial records, customer information or techrucal
information, submitted to the County as confidential. Grantee shall prominently mark any
information for which it claims confidentiality with the word "Conf'idential" on each page of such
information, prior to submitting such information to the County The County shall treat any
information so marked as confidential until the County receives any request for disclosure of such
information Within five (5) working days of receiving any such request, the County shall provide
the Grantee with written notice of the request, including a copy of the request. Grantee shall have
five (5) working days within which to provide a written response to the County, before the County
will disclose any of the requested conf'idential information The County shall retain the final decision
to determine whether to release the requested confidential information, in accordance with
applicable laws
lle INCORI'ORATIO1\T I10TT0 A CITY OR, TOWN
Whenever any of the County roads or rights-of-way designated in this Franchise by reason of
the subsequent incorporation of any city or town, or extension of the limits of any city or town, shall
fall within the city or town limits, then this Franchise shall terminate in respect to said roads or
rights-of-way so included within said limits six (6) months after such incorporation or extension, but
this Franchise shall continue in force and effect as to all County roads or rights-of-way not so
included within city or town limits.
12e ROAD VACATIONS
In the event that the Grantor shall vacate any road, right of way, or other public property,
and if at the time of the vacation the Grantee is utilizing the property that is the subject of the
vacation for the purposes expressly provided for under this Franchise, then said Grantee may
request that a perpetual easement by reserved in the favor of the Grantee for the purpose of enabling
the Grantee to continue to operate and maintain its fiber facilities permissible under this Franchise
that was installed prior to the vacation Such easement shall also exnressly nrohibit any use of the
vacated properties which will interfere with the Grantees of the vacated properties in the manner
set forth in this Franchise.
13. CONSTRUCTION
Pre-Construction:
Prior to beginning construction, Grantee shall provide the County with an irutial
construction schedule for work in the Rights of Way. When Grantee's construction in the Right of
Way is completed, Grantee shall provide the County with a map showing the location of its installed
facilities, as built. Such "as-btult" maps shall be in a form acceptable to the County Engineer.
Notif cation of Work to be Done:
At least ten (10) days prior to Grantee's intended construction of facilities, Grantee shall
inform all residents in the affected area, that a construction project will commence, the dates and
~
nature of the project, and provide a toll-free or local number which the residents may call for further
information A pre-printed door hanger may be used for this purpose.
At least forty-eight (48) hours prior to entering Right-of Way adjacent to or on private
property to perform the installation, maintenance, repair, reconstruction, or removal of facilities, a
written notice describing the nature and location of the work to be performed shall be physically
posted upon the affected private property by the Grantee The Grantee shall make a good faith effort
to comply with the property owner/reszdent's preferences, if any, regarding the location or placement
of underground facilities (excluding aerial cable lines less than 55 KV utilizing existing poles and
existing cable paths), consistent with sound engineering practices.
All costs associated with this section of the franchise document including meetings, the notification
of the property owners and good faith efforts shall be born by the Grantee
Permits:
Prior to doing any work within the County Right of Way, the Grantee must apply for, and
obtain, appropriate permits from the County.
All facilities shall be installed and maintained at such locations as approved by the County
through the permit process so as to least interfere with existing and planned utilities and with free
passage of traffic and in accordance with the laws of the State of Washington and the Franchises and
standards of the County regulating such construction Grantee shall be responsible to obtain all
permits and approvals otherwise required by the County unless expressly provided to the contrary
herein. Fees associated with such permits shall be in addition to the herein Administrative Fee
Responsibilitv:
All construction, maintenance, installation, relocation, abandonment, and repair of any and
all Grantee's Facilities within County Rights-of-way shall, regardless of who performs installation
and/or construction, shall be and remain the responsibility of Grantee. The Grantee, not a
contractor, shall apply for and obtain all permits necessary for installation and/or construction of any
such Facilities, and for excavation and laying of any of its Facilities within County Rights of Way.
Grantee shall pay aIl applicable fees due for County construction permits.
Post-Construction:
One year after the effective date of this Franchise, and annually thereafter, Grantee shall
provide an electroruc map, in a format acceptable to the County Engnneer, to the County Engineer's
Office, or its successor, showing the location of Grantee's facilities within the County Right of Way
tied to either section corners or street intersections If an electronic map is deemed a hardship by
the County Engineer, the County will accept a paper copy of the map in a format acceptable to the
County Eng7neer
Poies in R.iaht of Wav:
In the event Grantee elects to use above ground poles, only one hne of poles shall be erected
or maintained hereunder, and each pole, brace, and guy pole shall be placed and maintained along
said County roads and highways in such positions and at such points as approved by the County
Eng7neer. Grantee's facilities shall, when crossing above the roadway, provide a minimum clearance
in accordance with the standards set forth in the applicable "Washington State Construction Code "
The work of constructing, removing, and relocation of any and all poles, wixes, or
appurtenances, shall be done at the expense of the Grantee. Grantee shall not interfere with traff'ic
upon or along any of said highways, and to the entire satisfaction and under the supervision of the
County Eng7neer, and none of such work shall be undertaken or carried on without first obtaining a
permit therefore from said County Engineer
Restorataon of Streets:
Whenever Grantee disturbs the surface of any County Right of Way for any purpose, Grantee
shall promptly restore the County Right of Way to at least its prior condition, before the work
commenced to the satisfaction of the County Engineer When any operung is made by Grantee in a
hard surface pavement in any County Right of Way, Grantee shall promptly refill the opening and
restore the surface to a condition satisfactory to the County Engineer If Grantee excavates the
surface of any County Right of Way, Grantee shall be responsible for restoration of the County Right
of Way and its surface within the area affected by the excavation The County may, after providing
notice to Grantee, refill and/or repave any opening made by Grantee in the County Right of Way, and
the expense thereof shall be paid by Grantee The County reserves the right, after providing notice
to Grantee, to remove and/or repair any work done by Grantee which, in the determination of the
County Engineer, is inadequate. The cost thereof, including the cost of inspection and supervision,
shall be paid by the Grantee. All excavations made by Grantee in the County Rights of Way shall be
properly safeguarded for the prevention of accidents All of Grantee's work under this Franchise
shall be done in strict compliance with all applicable rules and regulations of the County
PROVIDED, HOWEVER, that no such disturbance of the surface of said County Right of
Way shall be done prior to obtaining a permit issued by the County Eng►ineer, which permit shall
contain specifications for the restoration of said roads to the same conditions as they were prior to
such disturbance, and PROVIDED FURTHER, that said County Eng►ineer will require a bond in a
sum sufficient to guarantee to Spokane County that such Right of Way shall be restored to the same
condition as it was prior to such disturbance
During the progress of the work, the Grantee shall not unnecessarily obstruct the passage or
use of the Right of Way, and shall provide the County with plans, maps, and information showing the
proposed and final location of any Facilities in accord with this Franchise
Damaee and Non-cornpliance:
Any and all damage, or injury, done or caused to County Right of Way, County Facihties, or
any portion thereof in the construction, operation, maintenance or repair of Grantee's facilities shall
be immediately repaired and reconstructed to the satisfaction of the County Engineer, and in the
event the Grantee shall fail, neglect, or refuse to immediately repair and reconstruct said damage or
injury to said County Right of Way or Facilities, the same may be done by the County and the
expense and cost thereof and a penalty of three times the cost and expense shall be immediately
repaid by the Grantee to the County
If it is determined that Grantee has damaged, injured, or failed to restore the Right of Way in
accordance with this Franchise, the County shall provide the Grantee with written notice including a
description of actions the County believes necessary to restore the Right of Way. If the Right of Way
is not restored in accord with the County's notice within ten (10) days of that notice, the County, or
its authorized agent, may restore the Right of Way and Facilities. Unless the damage or injury or
failure to restore the Right of Way or Facihties presented an unsafe or dangerous condition, in which
case the County shall take immediate action to either make Grantee conform or perform the work or
the County or its authorized agent shall do the work at the cost of the Grantee. The Grantee is
responsible for all costs and expenses incurred by the County and a penalty of three times what the
expense and cost of the repair and reconstruction in restoring the Right of Way and Facilities in
accordance with this Franchise. The rights granted to the County under this paragraph shall be in
addition to those otherwise provided by this Franchise.
Construction Standards:
All facilities shall be laid and installed in conformity with the maps and specif'~cations filed
with the County, except in instances in which deviation may be allowed thereafter in writing by the
County Engineer pursuant to application by the Grantee All plans and specifications shall specify
the class and type of material and equipment to be used, manner of excavation, construction and
installation, backf'ill, erection of temporary structures, erection of permanent structures, and the
traffic control mitigation measures as provided by the Manual on Uiuform Traffic Control Devices, or
similar standards as may be applicable from time to time The plans must meet all Federal, State,
County Codes and the Utihty Accommodation Plan Standards. No such construction shall be
commenced without the Grantee first securing a permit in writing from the County Eng7neer and
notifying the County Engineer's representative at least 48 hours prior to construction. All such work
shall be subject to the approval of and shall pass the inspection of the County by and through its
County Engineer or other designated official
Notwrthstanding any provision herein to the contrary, any excavations and installations by
the Grantee in any of the public properties within the corporate limits of the County shall be done in
accordance with such reasonable rules, regulations, resolutions, and resolutions of general
application now enacted or to be enacted by the Board of County Commissioners, relating to
excavations in public properties of the County, and authorized by the County Engineer. Said rules,
regulations, authorizations, and resolutions shall be for the purposes of fulfilling the County's pubiic
trustee role in administering the primary use and purpose of public properties, and not for relieving
the Grantee of any duty, obligation, or responsibility for the competent design, construction,
maintenance, and operation of its facihties. All of the County's actual reasonable admirustrative
expenses directly related to its administration of public properties under this Franchise, shall be paid
by the Grantee to the County upon invoice. Grantee is responsible for the supervision, condition, and
quality of the work done, whether it is by itself or by contractors, assigns or agencies
Construction:
1. Prior to the beginrung of construction, a preconstruction conference shall be
held at which the County Engineer's Representative and a representative of the
Grantee unless lt is determined by the County Engineer or his representative
that said preconstruction conference is unnecessary because of the scope of the
proj ect.
2 The Grantee agrees to schedule the work herein referred to and perform said
work in such a manner as not to delay County projects
3. A copy of the permit and plans must be on the job site, and protected from the
elements, at all times during any of the construction authorized by said permit
or Franchise
4 Work within the Right-of Way shall be restricted to between hours that will
accommodate the Noise Disturbance Ordinance, with the exception of emergency
work, and no work shall be allowed on the Right of Way on Saturday, Sunday, or
holidays, unless authorized by the County Engineer Any lane closures must be
submitted for approval in advance of use. The hours of permitted closure may
differ from the above noted hours.
5 Should the Grantee choose to perform the work outlined herein with other
than its own forces, a representative of the Grantee shall be responsible for the
work of the contractor All contact between the County and the Grantee's
contractor shall be through the representative of the Grantee Where the
Grantee chooses to perform the work with its own forces, it may elect to appoint
one of its own employees engaged in the construction as its representative.
Failure to comply with this provision shall be grounds for restricting any further
work by the Grantee within the County Right of Way until said requirement is
met. The Grantee, at its own expense, shall adequately police and supervise all
work on the above described project by itself, its contractor, subcontractor, agent,
and others, so as not to endanger or injure any person or property
6 The Grantee shall install detector tape or cable approximately 6-12 inches
above the underground facility. The tape shall conform to the standards of the
American Public Works Association Uniform Color Code.
7. During the construction and/or maintenance of this facility, the Grantee shall
comply with the current addition of the Manual on Uniform Traffic Control
Devices for Streets and Highways. If determined necessary by the County
Engineer, the Grantee shall submit a sigrung and traffic control plan to the
County Engineer's representative for approval prior to construction or
maintenance operations
8. The shoulders, where disturbed shall be surfaced with crushed surfacing top
course six inches minimum compacted depth, or as directed by the County
Engineer's representative. The surface of the finished shoulder shall slope down
from the edge of pavement at the rate of 0.02 foot per foot unless otherwise
directed The restored shoulder must not have any strips less than 2 feet wide
The restored shoulder shall be surfaced with crushed surfacing top course.
9. The Grantee shall notify the County Engineer's representative upon
completion of the work under this permrtlFranchise so that a final inspection can
be made and shall immediately furnish to the County Engineer a revised plan of
the final location or relocation of its facilities if the orig7nal permit/Franchise
plans have been revised during the course of construction
10. In the event that construction and maintenance of the highway facihty within
the proximity of the Grantee's installation becomes necessary during the period
which the Grantee will occupy a portion of the Right of Way, it is expressly
understood that, upon request from the County Engineer's representative, the
Grantee will promptly identify and locate by suitable field markings any and all
of their underground facilities so that the County or its contractor can be fully
apprised at all times of its precise location and at no cost or expense to the
County or its contractor.
11. The Grantee agrees to be responsible for any construction deficiencies as a
result of the roadway installation.
12 The responsibility of the Grantee for proper performance, safe conduct, and
' adequate policing and supervision of the project shall not be lessened or
otherwise affected by the County's approval of plans, specifications or work, or by
the presence at the work site of the County's representatives, or by compliance
by the Grantee with any requests or recommendations made by such
representatives.
Shared Use Excavation:
If, at any time, or from time to time, either Grantee or the County shall cause excavations to
be made within the Franchise area, the party causing such excavation to be made shall afford the
other upon receipt of a written request to do so, an opporturuty to use such excavation, provided that:
(n such joint use shall not unreasonably delay the work of the party causing the excavation to be
made, (II) such joint use shall be arranged and accomplished on terms and conditions satisfactory to
both parties, and (III) either party may deny such a request for reasons of safety
F'inal Conclition:
After performing any work within the County's Right of Way, Grantee shall leave every road
or public highway in as good and safe condition in all respects as they were before the
commencement of said work, and whenever Grantee shall discontinue the use of any pole or facility
it shall immediately, upon the direction of the County Engineer, remove such unused pole or facility
from said roads or abandon said facilities in place at the discretion of the County Engineer.
14. E10/IERGENCY R,ESPOl\TSE
The Grantee shall prepare and file wrth the County an emergency management plan for
responding to any spill, break, or other emergency condition. The plan shall designate responsible
officials and emergency 24-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
In the event the Grantee fails or refuses to promptly take the directed action, or fails to fully
comply with such direction, or if emergency conditions exist which require immediate action to
prevent imminent inJury or damages to persons or property, the County may take such actions as it
believes are necessary to protect persons or property and the Grantee shall be responsible to
reimburse the County for its costs and any penalties
In the event that emergency repairs are necessary, Grantee shall immediately notify the
County of the need for such repairs. If the emergency occurs outside of business hours the Grantee
shall contact the County Sheriff, who will contact the appropriate people Grantee may
immediately irutiate such emergency repairs, and shall apply for approprzate permits the next
business day following discovery of the emergency. Grantee must comply with all appropriate
current codes, standards, regulations, and franchise provisions relating to such excavations and/or
construction, including the payment of permit or Iicense fees
15 o SAk'ETY:
The Grantee, in accordance with applicable federal, state, and local safety rules and
regulations, shall, at all times, employ ordinary care in the installation, abandonment, relocation,
construction, maintenance, and/or repair, utilizing methods and devices commonly accepted in their
industry of operation to prevent failures and accidents that are likely to cause damage, injury, or
nuisance to persons or property.
All of Grantee's facilities in the Right of Way shall be constructed and maintained in a safe
and operational condition Grantee shall follow all safety codes and other applicable regulations in
the installation, operation, and maintenance of the facilities.
16. DRAIl\TAGE:
If the work done under this Franchise interferes in any way with the drainage of the County
Right of Way, the Grantee shall wholly and at its own expense make such provisions as necessary to
eliminate the interference to the drainage to the satisfaction of the County Engineer
17. PROTECTIOlOT OF MOIOTUlVIENTS
Before any work is performed under tlus Franchise which may affect any existing
monuments or markers of any nature relating to subdivisions, plats, roads, and all other surveys, the
Grantee shall reference all such monuments and markers The reference points shall be so located
that they will not be disturbed during the Grantee's operations under this Franchise The method of
referencing these monuments or other points to be referenced shall be approved by the County
Engineer All concrete encased recorded monuments which have been disturbed or displaced by such
work shall be restored pursuant to Federal standards and specif'ications. The replacement of all such
monuments or markers disturbed during construction shall be made as expeditiously as the
conditions permit, and as directed by the County Engineer. The cost of monuments or other markers
lost, destroyed, or disturbed, and the exnense of reDlacement of anDroved monuments and other
marker ties which have been re-established or disturbed shall be borne by the Grantee.
18. TREES
The right of Grantee to maintain its lines, facilities and appurtenance shall include the right
to cut, trim or remove any and all trees, brush or shrubs growing in, on, or hanging over any County
road, right-of-way, streets, alleys or County property that interferes with or may interfere with
Grantee's installations, including wires, poles, conduits or other apparatus of Grantee, its successors
and assigns. The Grantee shall exercise due care in performing such activities
19e I-iAZARDOUS SUBSTANCES
Grantee shall comply with all applicable state and federal laws, statutes, regulations and
orders concerning Hazardous Substances relating to Grantee's Facilities in the Right of Way.
Grantee shall maintain and inspect its Facilities located in the Rights of Way Upon
reasonable notice to Grantee and in the presence of an authorized representative of Grantee, the
County may inspect Grantee's facilities in the Rights of Way to determine if any release of
Hazardous Substances has occurred, or may occur, from or related to Grantee's Facilities. This
inspection is not to remove the burden of inspection from the Grantee on a periodic basis of its
facilities for Hazardous substances, nor is to remove the responsibility of the Hazardous substance
from the Grantee
In removing or modifying Grantee's facilities as provided in this Franchise, Grantee shall
also remove all residue of Hazardous Substances in compliance with applicable environmental clean-
up standards related thereto
Grantee agrees to forever indemzufy the County against any claims, costs, and expenses, of
any kind, whether direct or indirect, incurred by the County arising out of the release or threat of
release of Hazardous Substances caused by Grantee's ownership or operation of its Facilities within
the County Right of Way.
20. MAIliTTENANCE
Grantee shall provide and put in use all Facilrties necessary to control and carry Grantee's
products so as to prevent injury to the County's property or property belong7ng to any Person within
the County Grantee, solely at its own expense, shall repair, renew, change, and improve said
Facilities from time to time as may be necessary to accomplish this purpose. Grantee shall not
construct its Facilities in a manner that requires any customer to install cables, ducts, conduits, or
other facilities, in, under, or over the County's Rights of Way.
21. LOCATES - One-Call Systean
Pursuant to RCW 19122, Grantee is responsible for becoming familiar with, and
understanding, the provisions of Washington's One Call statutes Grantee shall comply with the
terms and conditions set forth in the One-Call statutes.
22. FEES
For and in consideration of the rights and privileges set forth herein, the Grantee agrees that
Spokane County, to the extent authorized by law, may during the term of this Franchise, by
Franchise or resolution, impose fees for the rights and privileges granted herein Such fees shall be
based upon reasonable costs for the administration of such Franchise as well as reasonable costs for
the use of County roads or rights-of-way The Board of County Commissioners of Spokane County
agrees to provide not less than thirty (30) days written notice prior to the imposition of such fees in
order to negotiate the actual fee to be assessed and payments scheduled Nothing in this section or
agreement shall be construed to prohibit the County or its successor from imposing any license fee,
tax or assessment which it is specifically authorized by law to impose.
ReCOVerv of COSts Nothing herein shall preclude the County from recovering 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 insure conformity with the integrity of the County roads, traffic flow, and
other Franchisees within the County Right of Way. This shall also include the costs of permits for
any work done in the County Right of Way. Grantee shall reimburse any actual costs reasonably
incurred by the County in responding to emergencies involving Grantee's facilities
23. BONI)
Faithful Perforynance Bond:
A. Upon the effective date of the Franchise, the Grantee shall furnish proof of
the posting of a faithful performance bond running to the County, with a good
corporate surety authorized to do a surety business in the State of Washington, in
the penal sum of $2,000, conditioned that the Grantee shall well and truly
observe, fulf'ill, and perform each term and condition of the Franchise. Grantee
shall pay all premiums charged for the bond, and shall keep the bond in full force
and effect at all times throughout the term of the Franchise, including, if
necessary, the time required for removal of all of Grantee's Facilities installed in
the County's Rights of Way The bond shall contain a provision that it shall not
be terminated or otherwise allowed to expire without a prior 30 day written
notice first being given to the County Eng7neer The bond shall be reviewed and
approved as to form by the County Attorney This performance bond shall be in
accordance with all the provisions of the current "Standard Specifications for
Road, Bridge, and Murucipal Construction."
B. During the term of the Franchise, Grantee shall file with the County
Engineer a duplicate copy of the bond along with written evidence of payment of
the required premiums
Construction Bond: During all times when Grantee is performing any construction work in or
under the Streets requiring a street operung permit, Grantee shall post a faithful performance bond
or irrevocable letter of credit, as is required for street opening permits, running to the County, with
good a corporate surety authorized to do a surety business in the State of Washington, in a sum to be
set and approved by the County Englneer as sufficient to ensure performance of Grantee's
obligations under this Franchise The bond shall be conditioned so that Grantee shall observe all the
covenants, terms and conditions and faithfully perform all of the obligations of this Franchise, and to
erect or replace any defective work or materials discovered in the replacement of the County's streets
or property within a period of two years from the date of the replacement and acceptance of such
repaired streets by the County The bond or letter of credit shall be conditioned that the Grantee
shall well and truly observe, fulfill and perform each term and condition under the Franchises for
Construction and Relocation Grantee shall pay all premiums or other costs associated with
maintairung the bond or letter of credit, and shall keep the same in full force and effect at all times
during the construction work The bond or letter of credit shall provide that it may be terminated
upon final approval of Grantee's construction work in or under the streets by the County Engineer
which shall not be unreasonably withheld or delayed. Upon such approval, the County agrees to sign
all documents necessary to release the bond in accordance with the terms of this Franchise During
the duration of the construction work, Grantee shall file with the County Eng7neer a copy of the bond
or letter of credit, along with written evidence of the required premiums The bond or letter of credit
shall be subject to the reasonable approval of the County Englneer as to its adequacy under the
requirements of this Franchise
R,ecourse ALlainst Bonds and Other Securitv So long as the bond is in place, it may
be utilized by the County for the following purposes, including, but not limited to, reimbursement of
the County by reason of Grantee's failure to pay the County for actual costs and expenses incurred
by the County to make emergency or safety or to correct Franchise violations not corrected by the
Grantee after notice, and monetary remedies or damages assessed against Grantee due to default or
violations of the requirements of County Franchise Agreements.
In the event Grantee has been declared to be in default by the County and if Grantee fails,
within thirty (30) days of mailing of the County's default notice, to pay the County any penalties, or
monetary amounts, or fails to perform any of the conditions of this Franchise, the County may
thereafter obtain from the performance bond an amount sufficient to compensate the County for
damages. Upon such withdrawal from the bond, the County shall notify Grantee in writing, by
Certified Mail, of the amount withdrawn and date thereof
Thirty (30) days after the County's mailing of notice of the bond forfeiture or withdrawal
authorized herein, Grantee shall deposit such further bond, cash, or other security, as the County
may require, which is sufficient to meet the requirements of this Franchise.
The rights reserved to the County with respect to any bond are in addition to all other rights
of the County whether reserved by this Franchise or authorized by law, and no action, proceeding, or
exercise of a right with respect to any bond shall constitute an election or waiver of any rights or
other remedies the County may have.
24. 1OT01lT-YSE
In the event the rights and privileges hereby granted are not diligently exercised in the
pubhc interest, and/or in the event the Grantee shall fail for a period of one (1) month to operate its
facilities, except in case of strikes, lockouts, or the destruction of the same by fire or the elements, or
for any reasons beyond the control of the Grantee, this Franchise shall terminate and all of the rights
and privileges granted hereunder shall cease and desist, without any further action being necessary
on the part of the County, provided, that the Grantee shall have the right temporaril.y to discontinue
use of its facilities or any part thereof for the purpose of making repairs or extensions, and shall not
be hable to a forfeiture thereof if such repairs and extensions are made with reasonable diligence.
When the Grantee may reasonably do so, it shall give notice of the discontinuance of service either in
writing, properly addressed to the consumer, or by notice in the official newspaper of the County, or
by telephone or other commurucation approved by the County Engineer.
25. ABANDON1VIENT OF FACILITIES
In the event the County declares that the Grantee's facilities must be abandoned, or if the
Grantee abandons its facilities in place, those facilities abandoned must be treated at the expense of
the Grantee, so as to render them completely safe and purged of hazardous materials. The Grantee
shall be responsible for undertaking any environmental review required by the abandonment of such
facihties, and for the payment of any costs of conducting such environmental review The Grantee
shall remove said abandoned facilities when either the Grantee or the County opens that section of
Right of Way for maintenance, repair, installation, or replacement of facilities. Said removal shall be
at the County's converuence and shall be done in a manner so as not to interfere with County
projects.
26. COIVSENT TO OWNER,SHIP CHANGE
Countv's Written Consent Reauired for Assienment. Transfer. Mereer.
Lease Ox MOrteaere. Neither this Franchise nor any of Grantee's Facilities located in the
County Right of Way by authority of this Franchise shall be sold, transferred, leased, mortgaged,
assigned or disposed of in whole or in part either by sale, voluntary or involuntary merger,
consolidation or otherwise, without the prior written consent of the County after appropriate public
process The County's granting of consent in one instance shall not render unnecessary any
subsequent consent in any other instance
Grantee shall not lease or sublet any of its Facilities, or the public Right of Way in which
such are contained, without the County's prior consent as expressed by Franchise Agreement.
Within ten (10) days after execution and delivery of any instrument so consented to by the
County, Grantee shall file with the Auditor an executed counterpart or certified copy thereof. No
sale, lease, mortgage, assignment, transfer or merger may occur until the successor, assignee or
lessee has complied with the requirements of this Franchise, which requires a performance bond
For the purpose of determining whether the County will consent to any assignment, transfer,
merger, lease or mortgage, the County may inquire into the qualifications of the prospective party
The Grantee shall assist the County in any such inquiry The County may condition any sale,
assignment, transfer, merger, lease or mortgage upon such conditions as it deems appropriate.
All provisions, conditions, regulations and requirements herein contained shall be binding
upon the successors and assigns of the Grantee, and all privileges as well as all obligations and
liabihties of the Grantee shall inure to its successors and assigns equally as if they were specifically
mentioned wherever the Grantee is mentioned.
The County's approval shall not be unreasonably withheld or delayed. Any costs associated
with the County's review of any transfer proposed by the Grantee shall be reimbursed to the County
by the new prospective Franchisee, if the County approves the transfer, or by the Grantee if said
transfer is not approved by the County.
An assignment of this Franchise shall be deemed to occur if there is an actual change in
control or where ownership of fifty percent (50%) or more of the beneficial interests, singly or
collectively, are obtained by other parties The word "control" as used herein is not limited to
majority stock ownership only, but includes actual workuig control in whatever manner exercised.
Except as otherwise provided herein, the Grantee shall promptly notify the County prior to
any proposed change in, or transfer of, or acquisition by any other party of control of the Grantee's
company. Every change, transfer, or acquisition of control of the Grantee's company shall cause a
review of the proposed transfer. In the event that the County denies its consent and such change,
transfer or acquisition of control has been effected, the County may cancel the Franchise Approval
shall not be required for mortgaging purposes or if said transfer or assignment is from the Grantee to
another person or entity controlling, controlled by, or otherwise under common control with the
Grantee Grantee shall notify the County of any transfers to such entities within ten (10) days of
such transfers. Nothing contained herein shall be deemed to prohibit the mortgage, pledge, or
assignment of tangible assets of Grantee's Facilities for the purpose of financing the acquisition of
equipment for or the construction and operation of Grantee's Facilities without the County's consent,
but any such mortgage, pledge or assignment shall be subject to the County's other rights contauied
in this Franchise
27. NON-COIVdPLIANCE VVITH FR,ANCHISE TERIVIS
R,emeclies to Enforce Compliance. In addition to any other remedy provided herein, the
County reserves, and has the right to pursue any remedy to compel or force the Grantee, and/or its
successors and assigns, to comply with the terms hereof The pursuit of any right or remedy by the
County shall not prevent the County from thereafter declaring a forfeiture for any reason pursuant
to this Franchise
(a) If the Grantee shall fail to comply with any material provision of this
Franchise, the County may compel compliance by serving upon the Grantee a
written notice of the violation and the direction to comply within thirty (30) days
from the date the order is received by the Grantee. If the Grantee is not in
comphance with this Franchise after expiration of said thirty (30) day period, the
County may declare an immediate forfeiture and termination of this Franchise,
provided however, that if any failure to comply with this Franchise by the
Grantee cannot be corrected with due diligence within said thirty (30) day period
then the County shall extend the time for compliance for such time as may be
reasonably necessary for the Grantee to comply, so long as the Grantee
commences promptly and diligently to effect such compliance.
(b) The notice requirements of paragraph (a) of this section shall not apply if the
noncompliance of the Grantee results, in the opiruon of the County, in any
emergency or life-threaterung condition. In such case, the County may set a
period of less than thirty (30) days for the Grantee to comply and may set such
conditions and specifications for comphance as the County may deem reasonable
under the circumstances In the event that the Grantee fails to comply with any
time set for compliance or with any condition set for comphance under this
paragraph, the County may declare an immediate forfeiture and termination of
this Franchise and may take whatever steps the County deems necessary to
correct the emergency condition to restore safety. In such event, the Grantee
shall be liable to the County for all costs and expenses incurred in taking such
corrective action.
(c) Nothing herein shall limit the remedies available to the County in the event
of noncompliance by the Grantee. The County may sue for specif'ic performance
and/or damages in addition to the remedies provided herein.
(d) In the event this Franchise is forfeited or terminated for any reason stated
herein the Grantee shall remove promptly all of its equipment and facilities and
return said property to its original state as if the Grantee had never had its
equipment or facilities on or wrthin said property, at the Grantee's sole cost and
expense, provided that, as an alternative to removal the County may, at the
County's sole option, allow the Grantee to abandon its equipment and facilities in
place.
28. I)ISPUTE RESOLUTION
In the event of the occurrence of any dispute between the County and Grantee arising by
reason of this Franchise, or from any obligation of either party under this Franchise, that dispute
shall be resolved under the terms of this Franchise which shall be the sole remedy for resolution of
any such dispute
Forfeiture:
(A) In addition to any other rights set out elsewhere in this Franchise, the County
reserves the right to declare a forfeiture of the Franchise, and all of Grantee's rights
arising hereunder, in the event that.
1 The Grantee violates any material provision of the Franchise;
2 The Grantee is found by a court of competent jurisdiction to have
practiced any fraud or deceit upon the County; or
3 There is a final determination that Grantee has failed, refused, neglected
or is otherwise unable to obtain and/or maintain any permit required by ~
any federal or state regulatory body regarding Grantee's operation of its
Telecommunications System within the County. ~
i
~
(B) For purposes of this Section, the following are material provisions of this Franchise, '
allowing the County, without limitation, to exercise its rights under this Section or as set forth elsewhere in this Franchise
1 The invalidation, failure to pay, or any suspension of Grantee's payments
of Franchise fees to the County for use of the Rights of Way under this ~
Franchise. ~
2. Any failure by the Grantee to submit timely reports regarding the
calculation of its gross revenues based on Franchise fees to the County. ,
~
3. Any failure by Grantee to maintain the liability insurance required under ~
this Franchise. ~
~
4 Any failure by Grantee to maintain the performance bond required under ;
this Franchise. ~
I
~
Additional Remedies: j
I
In addition to any rights set out elsewhere in this Franchise, as well as its rights i
under the County Code, the County reserves the right, at its sole option, to apply any of the
following, alone or in combination.
~
I
,
(A) Impose a financial penalty
(B) Suspend the Grantee's Franchise rights, until the Grantee corrects or
otherwise remedies the violation.
(C) In determining which remedy or remedies are appropriate, the County
shall consider the nature of the violation, the person or persons burdened
by the violation, the nature of the remedy required in order to prevent
further such violations, and any other matters the County deems
appropriate.
Notice and Opportunitv to Cure:
The County shall give Grantee thirty (30) days prior written notice of its intent to
exercise its rights under this Section, stating the reasons for such action. If Grantee cures
the stated reason within the thirty (30) day notice period, or if the Grantee initiates efforts
satisfactory to the County to remedy the stated reason and the efforts continue in good faith,
the County shall not exercise its remedy rights If Grantee fails to cure the stated reason
within`the thirty (30) day notice period, or if the Grantee does not undertake and/or maintain
efforts satisfactory to the County to remedy the stated reason, then the County
Commissioners may impose any or all of the remedies available under this Section.
However, in no event shall the County exercise its rights under this Section if a bona fide,
good farth dispute exists between the County and the Grantee
Choice of Forum:
Any litigation between the County and the Grantee arising under or regarding this
Franchise shall occur, if in the state courts, in the Spokane County Court having jurisdiction
thereof, and if in the federal courts, in the Uruted States District Court for the Eastern
District of Washington _
29. NATLTRAL I)ISASTER,
A. For purposes of this subsection, the term "Force Majeure" shall mean acts of
God, landslides, earthquakes, lightning, fires, hurricanes, volcanic activity,
storms, floods, washouts, droughts, civil disturbances, acts of terrorism or of the
public enemy, partial or entire failure of utilities, strikes, explosions, lockouts or
other industrial disturbances, insurrections, public riots or other similar events
which are not reasonably within the control of the parties hereto.
B. If the Grantee is wholly or partially unable to carry out its obligations under this
Franchise as a result of Force Majeure, the Grantee shall give the County prompt
notice of such Force Ma7eure, describing the same in reasonable detail, and
Grantee's obligations under this Franchise, other than for the payment of monies
due, shall not be deemed in violation or default for the duration of the Force
Majeure. Grantee agrees to use its best efforts to remedy as soon as possible,
under the circumstances, Grantee's inability, by reason of Force Majeure, to carry
out its responsibility and duties under this Franchise.
. r
30. NON-ENFOR,CEMEIOTT BY THE COUNTY
R,eaulation and Non-enforcerraent bv the Countv• The County shall be vested with
the power and authority to reasonably regulate the exercise of the privileges permitted by this
Franchise in the public interest Grantee shall not be reheved of its obligations to comply with any of
the provisions of this Franchise by reason of any failure of the County to enforce prompt compliance,
nor does the County waive or limit any of rts rights under this Franchise by reason of such failure or
neglect
31. ENVIRONM]ENTAL OBLIGATIONS
Environanental Oblieations of Grantee• Grantee shall comply with all environmental
protection laws, rules, recommendations, and regulations of the United States and the State of
Washington, and their various subdivisions and agencies as they presently exist or may hereafter be
enacted, promulgated, or amended, and shall indemnify and hold the County harmless from any and
all damages arising, or which may arise, or be caused by, or result from the failure of Grantee fully to
comply with any such laws, rules, recommendations, or regulations, whether or not Grantee's acts or
activities were intentional or uruntentional. Grantee shall further indemnify the County against all
losses, costs, and expenses (including legal expenses) which the County may incur as a result of the
requirement of any government or governmental subdivision or agency to clean and/or remove any
pollution caused or permitted by Grantee, whether said requirement is during the term of the
Franchise or subsequent to its termination.
,
32. INI)EMIOTIFI CATION
Grantee hereby releases, covenants not to bring suit, and agrees to indemnify, defend and
hold harmless the County, its elected officials, employees, agents, and volunteers from any and all
claims, cost and expense, judgments, cause of action, damages, loss, awards or liability to any person,
including claims by Grantee's own employees to which Grantee might otherwise be immune under
Title 51 RCW, arising from injury, sickness, or death of any person or damage to property of which
the negligent acts or omissions of Grantee, its agents, servants, officers or employees in performing
activities authorized by this Franchise
Grantee further releases, covenants not to bring suit and agrees to indemnify, defend and
hold harmless the County, its elected officials, employees, agents, and volunteers from any and all
claims, costs, judgments, awards or hability to any persons (including claims by Grantee's own
employees, including those claims to which Grantee might otherwise have immunity under Title 51
RCV) arising against the County solely by virtue of the County's ownership or control of the rights of
way or other public properties, by virtue of Grantee's exercise of the rights granted herein, or by
virtue of the County's permitting Grantee's use of the Right of Way or other public property based
upon the inspection or lack of inspection of work performed by Grantee, its agents and servants,
officers or employees in connection with work authorized on the County's property or property over
which the County has control, pursuant to this Franchise or pursuant to any other permit or
approval issued in connection with this Franchise This covenant of indemnification shall include,
. +
but not be limited by this reference, claims against the County arising as a result of the negligent
acts or omissions of Grantee, its agents, servants, officers or employees in barricading, instituting
trench safety systems or providing other adequate warnings of any excavation, construction, or work
in any Right of Way or other public place in performance of work or services permitted under this
Franchise
If final judgment is rendered against the County, its elected officials, employees, agents, and
volunteers, or any of them, Grantee, its successors or assigns, shall fully satisfy said judgment within
ninety (90) days
Grantee also hereby agrees to indemnify the County for any damages, claims, additional
costs or expenses assessed against or payable by the County arising out of or resulting, directly or
indirectly, from Grantee's failure to remove, adjust or relocate any of its Facilities in the Rights of
Way in a timely manner in accordance with a reasonable relocation schedule furrushed to Grantee by
the County Englneer, unless Grantee's failure arises directly from the County's negligence or willful
misconduct
Inspection or acceptance by the County of any work performed by Grantee at the time of
completion of construction shall not be grounds for avoidance of any of these covenants of
indemmfication Said indemmfication obligations shall extend to claims that are not reduced to a
suit and any claims that may be compromised prior to the culmination of any litigation or the
institution of any litigation
In the event Grantee refuses to undertake the defense of any suit or any claim, after the
County's request for defense and indemnification has been made pursuant to the indemnif'ication
clauses contained herein, and Grantee's refusal is subsequently determined by a court having
jurisdiction, or such other tribunal that the parties shall agree to decide the matter, to have been a
wrongful refusal on the part of Grantee, then Grantee shall pay all of the County's costs and
expenses for defense of the action, including reasonable attorneys' fees of recovery under this
indemmfication clause as well as any judgment against the County.
Should a court of competent jurisdiction determine that this Franchise is subject to RCW
4 24.115, then, in the event of liabilrty for damages arising out of bodily injury to persons or damages
to property caused by or resulting from the concurrent negligence of Grantee or the County, its
officers, employees and agents, Grantee's habihty hereunder shall be only to the extent of Grantee's
negligence It is further specif"ically and expressly understood that the indemnif"ication provided in
Section 16 constitutes Grantee's waiver of immuruty under Title 51 RCW, solely for the purposes of
this indemnification. This waiver has been mutually negotiated by the partZes
33. INSLTRANCE
During the term of this franchise the County Engineers, County Risk Manager or other
designee of the County may review the relative risk of the Grantee's installation and operations and
direct changes to insurance and liability protections as he/she may require. Unless so modif'ied,
Grantee shall furrush satisfactory evidence of commercial general liability insurance and maintain
the same in good standing with limits of at least one million dollars ($1,000,000.00) per occurrence
and two million dollars ($2,000,000.00) aggregate, with the County of Spokane named as an
additional insured.
,
~ ,
The grantee 41j--6 ~ x46~~ a corporation, hereinbefore referred to, for
itself, and for its successors ~nd assigns, does accept all of the terms and conditions of the foregoing
franchise.
~
Mak~ger ~
IN WITNESS WHEREOF, it has caused these presents to be signed by
this day of , 2001. Subscribed and sworn be
before me this day of ~64 N~ , &,Ve ~ -
~
Not y Public in and for the Washington
I
,
~
~
EXHIBIT "A"
Broadway Avenue's Northerly alignment from the centerlme of Barker Road to 250 feet East
along Broadway Avenue.
Barker Road between the centerline of Broadway Avenue's Northerly alignment and the South
luie of Broadway Avenue's Southerly alignment
Located in Section 17, Township 25 North, Range 45 E W M
Broadway Avenue's Southerly alignment between the East lme of Barker Road and the West line
of Assessor's Parcel Number 55184.0912
Located m Section 18, Township 25 North, Range 45 E W M.
,