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Franchise No. 0-0227 - EXPIRED .~i ' - After Recording Return to: Spokane County.Engineer Attn: Engineering Administration. RESOLUTION NO. , O 00`m`w A27 BEFORE THE BOARD OF COUNTY COMMISSIONERS OF SPOKANE COUNTY, WASHINGTON IN THE MATTER OF THE APPLICATION OF . ) THE WEST VALLEY SCHOOL DISTRICT NO. 363 ) FOR A FR.ANCHISE FOR TELECOMMUNICATION ) F R A N C H I S E AND DISTRIBUTION FACILITIES IN COUNTY ) ROADS, HIGHWAYS AND RIGHTS OF WAY IN SPOKA.NE COUNTY, WASHINGTON ) Application of West Valley School District No. 363, doing business in Washington, at Spokane, for a franchise to operate and maintain telecommunication and distribution facilities in 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 _75% day of I-Well , 2000, 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 it is in the public interest to grant the franchise herein granted; 1. DEFIIVITIONS 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. Definitions: For the purpose of this Franchise, the following terms, phrases, and their derivations shall have the meanings given below unless the context ind.icates 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. l. "Construction or Construct" shall mean constructing, digging, excavating, laying, testing, operating, extending, renewing, removing, replacing, and rep airing a facility M1t . 2. "Consumer" shall mean any person, persons, customer, firm, association, municipal corporation, and/or corporation that uses the product, including residentia2, commercial, and industrial users. 3. "County" - The County of Spokane, a muni.cipal corporation of the State of Washington, which specifically includes all areas incorporated therein as of the effective date of this Franchise and any other areas later added thereto by annexat'ion 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" - A.ny public work or improvement under direction of the County Engineers. 6. "Distribution System, System, and Lines" used either in the si.ngular 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 Telecommunication system includi.ng 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 zhe 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, examini.ng, 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. f - , 16. "Public Properties" - Any real-estate or any facility owned by the county. 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, andlor 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." 20.1 "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. 21. "Telecommunications Services" means: A. Services interconnecting interexchange carriers, competitive carriers, - and/or wholesale telecommunications providers for the purpose of voice, video, or data transmission. B. Services connecting interexchange carriers andJor competitive carriers to telephone compani,es providing local exchange services for the purpose of voice, video, or data transmission C. Services connecting interexchange carriers or competitive carriers to any entity other than another interexchange carrier, competitive carrier, . or telephone company providing local exchange services, for the purpose of voice, video, or data transmission and/or otherwise connecting two or more entities for such purposes. 22. i`Telecommunications System" means all wires, cables, ducts, conduits, vaults, poles and other necessary Facilities owned or used by the Grantee for the purpose of providing Telecommunications Services and located in, under and above County Rights of Way, excluding ducts, conduits and vaults leased from another County Franchisee, Licensee or Permittee. 2. R,IGHTS GRATTEI) West Vallev School District No. 363, 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. 3 TIME PER,IOD The granted Franchise shall be for a period o£ ten (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 renewal of the term may be made no sooner than one year before expiration thereof. 4. SUPERCEDES OTHER AGREENIENTS Tlus Franchise constitutes the entire understancling 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 FACILIITIES UNDER F'RANCHISE 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 provisians of this Franchise. , 6. NOT EXCLUSIVE 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 acrass 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, establishment, improvement, dedication, vacation, alterations, etc., in the same and Iike manner as though this Franchise had never been granted. , 70 NON IIV'rER,F'EREIVCE WITH FMSTI1VG FA.CILITIES ; 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 e,cpense 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 lines and facilities of the Grantee, shall have preference as to the positioning and location of such utilities so installed with respect to the Grantee. Such preference shall continue in the event of the necessity of relocating or changing the grade of any such Public Properties. . Grantee'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 Taid in the R.ights of Way by or under the County's " authority. 8. COUNZ'Y'S RIGHT TO TIIE ROAD IeTOT SUPERSEDEI) Spokane County, in the granting of this Franchise, does not waive any rights which it now holds or may hereafter acquire, and this Franchise shallnot 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 facilities or constructing or establishing 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 facilities 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. RELOCATION OF FACILITIES . , The County shall have the right to require Grantee to change the location of its facilities within the Rights of Way when the public convenience requires such change, and the expense thereof shall be paid solely by Grantee. The County shall provide the Grantee with the standard notice, as stated below, given 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 Engineer, 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 i.mprovements, 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 d.isconnect, 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 list 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 all 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 ari.se 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 . facilities 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 faciiities at no e.cpense 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 Franchi.se Document. The provisions af this Section shall in no manner preclude or restrict Grantee from making any arrangements it may deenz appxopriate 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. 10. BUILDING IVIOVING . Whenever any person shall have obtained permission from the County to use any Right of Way for the purpose of moving any building or other oversized structure, Grantee, upon fourteen (14) days written notice from the County, shall raise or remove, at the eYpense of the Permittee desiring ~ to move the building or structure, any of Grantee's facilities that may obstruct the movement thereof; provided, that the path for moving such building or structure is the path of least interference, as determined by the County. 11. PUBLIC RECORDS . . _ , As a condition of this Franchise, and at its sole espense, Grantee agrees to provide the County with as-built plans, potential i.mprovement plans, field locates, maps, plats, specifications, profiles, and records. These records shall be in a digital electronic format acceptable to the County, 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 facilities located within the County Right of Way or Public Properties. To the extent such requests are limited to specific facilities at a given location withi.n the " Franchise area in connection with the construction of any County project, Grantee shall provide to the County, upori 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 planning of County i.mprovement 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 Franchise Area; provided, however, any such plan so submitted shall be for informational purposes only; and shall not obligate Grantee to undertake any specific 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 technical information, submitted to the County as confidential. Grantee shall prominently mark any information for which it claims confidentiality with the word "Confidential" 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 confidential information. The County shall retain the final decision to determine whether to release the requested confidential information, in accordance with applicable laws. 12o INCOR,PORATION INTO A CITY OR TOVVN 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. • , . , 13. I~OAD 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 o£ the vacation for the purposes expressly provided for under this Franchise, then said Grantee may request that a perpetual easement by reserved in the £avor 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 expressly prohibit any use of the vacated properties which_ will interfere with the Grantees of the vacated properties in the manner set forth in this Franchise. ' 14. GRANTOR ATTACHMENTS --Whenever it is deemed necessary for the benefit and safety of the traveling public, the County Engineer hereby reserves the right to attach and maintain upon any facility owned by the Grantee under this document any required traffic control devices, such as traftc signals, luminaries, and overhead suspended signs, when the use of such devices or attachments does not interfere with the use for which the facility was constructed. The County shall bear the cost of attachment and maintenance of such traffic control devices, including the reasonable cost of any extra construction - beyond normal; such extra cost to be determined jointly by the County and the Grantee of this document. It is not to be construed that the County is to share in the normal cost of installation, operation, or maintenance of any of the Facilities installed under this document. 15. CONSTRUCTION Pre-Construction: Prior to beginning construction, Grantee shall provide the County. with an initial 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-built" maps shall be in a form acceptable to the County Engineer. Notification 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/resident's preferences, if any, regarding the location or piacement of underground facilities (excluding aerial cable lines utilizing emsting poles and existing cable paths), consistent with sound engineering practices. 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 assoc'iated 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 remai.n the responsibility of Grantee. The Grantee, not a contractor, shall apply for and obtain all permits necessary for installation andJor construction of any such Facilities, and for excavation and laying of any of its Facilities within County Rights of Way. Grantee shall pay all 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 electronic map, in a format acceptable to the County Engineer, 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 Engineer. Poles in Riaht of Wav: . In the event Grantee elects to use above ground poles, only one line of poles shall be erected or maintained hereunder, and each pole, brace, and guy pole shall be placed and maintai_ned along said County roads and highways in such positions and at such points as approved by the County Engineer. Grantee's facilities shall, when crossing above the roadway, provide aminimum 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, wires, or appurtenances; shall be done at the expense of the Grantee. Grantee shall not interfere with traffic upon or along any of said highways, and to the entire satisfaction and under the supervision of the County Engineer, and none of such work shall be undertaken or carried on without first obtaining a permit therefore from said County Engineer. Restoration 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 opening 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 Caunty Right of Way arid 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 Engineer, which permit shall contain speci.fications for the restoration of said roads to the same conditions as they were prior to such disturbance; and PROVIDED FURTHER, that said County Engi.neer 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. Duri.ng 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. DaxnaLre and Non-comiDliance; Any and all damage, or injury, done or caused to County. Right of Way, County Facilities, 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 repaired 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 Facilities 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 incuxred 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 specifications 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, backfill, erection of temporary structures, erection of permanent structures, and the traffic control mitigation measures as provided by the Manual on Uniform 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 Utility Accommodation Plan Standards. No such construction shall be commenced without the Grantee first securing a permit in writing from the County Engineer 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. Notwithstanding 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 escavations 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 public . trustee role in administering the pri.mary 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 facilities. All of the County's actual reasonable administrative 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 beginni.ng of construction, a preconstruction conference shall be held at which the County Engineer's Representative and a representative of the Grantee unless it is determinecl by the County Engineer or his representative that said preconstruction conference is unnecessary because of the scope of the project. 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 Abatement 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 restricti.ng 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 Manual on Uniform Traffic Control Deyices for Streets and Highways. If determined necessary by the County Engineer, the Grantee shall submit a sigIllrig 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 xestored shoulder must not have any strips Iess 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 permit/Franchise 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 original permit/Franchise plans have been revised during the course of construction. 10. In the event that constxuction and maintenance of the highway facility 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 agxees 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 Egcavation: If, at any ti.me, 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 wxitten request to do so, an opportunity to use such excavation, provided that: (I) 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. , . Final Condition: 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 cliscretion of the County Engineer. 16. EIVIER,GENCY RESPONSE , The Grantee shall prepare and file with 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, Gr,qntee 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 initiate such emergency repairs, and shall apply for appropriate 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 license fees. 1/ s AJl ai Ei i e 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 fallow all safety codes and other applicable regulations in the installation, operation, and maintenance of the facilities. 18. I)RAIATAGE: 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. 19. PROTECTION OF MONUMENTS , Before any work is performed under this 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 specifications. 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 expense of replacement of approved monuments and other marker ties which have been re-established or disturbed shall be borne by the Grantee. 20. TR,EES 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. 21e HAZARDOUS 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. . 1 , ' ' • ' _ ' 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 indemnify the County against any claims, costs, and espenses, 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. . 22. 1VIAIN'I'ENA.loTCE , Grantee shall provide and put in use all Facilities necessary to control and carry Grantee's products so as to'prevent injury to,the County's property or property belonging 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. 23. LOCATES - One-Call System , Pursuant to RCW 19.122, 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. 24. 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 scheduied. 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, ancl approval of allplans 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. 25. B010TD Faithful Performance Boncl: A. Upon the effective date vf the Franchise, the Grantee shall furnish proof of the posting of a faithful performance bond runn;ng 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, fuMll, 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 thraughout. the term of the Franchise, including, if necessary, the time requi.red 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 Engineer. 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 Municipal Construction." B. During the term of the Franchise, Grantee shall file with the County Engineex a duplicate copy of the bond along with written evidence of payment of the required premiums. Construetion Bond: During all times when Grantee is performing any construction work in ar under the Streets requiring a street opening permit, Grantee shall post a faithful performance bond or irrevocable letter of creclit, 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 Enguieer 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 fxom 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, fu]fill and perform each term and condition under the Franchises for Construction and Relocation. Grantee shall pay all premiums ar other costs associated with maintaining 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 fnal 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 Engineer a copy of the bond or letter of cred.it, along with written evidence of the required premiums. The bond or letter of credit shall be subject to the reasonable approval. of the County Engineer as to its adequacy under the requirements of this Franchi.se. Recourse AoLrainst Bonds and Other Seeuritv. 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. 26. NON-USE , In the event the rights and privileges hereby granted are not diligently eYercised in the public 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 temporarily to discontinue use of its facilities or any part thereof for the purpose of making repairs or extensions, and shall not be liable 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 communication approved by the County Engineer. 27. ABANDONMENT 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 enyironmental review required by the abandonment of such facilities, 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 convenience and shall be done in a manner so as not to interfere with County projects. . 28. CONSEIvTT TO 0WNERSHIP CHANGE Countv's VVritten Consent Reciuired for Assignment, Transfer, MerLyer. Lease or MortLwaLre. 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 -involuntaxy 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 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. The lease of facilities for purposes of this section does not include arrangements between grantee and third parties in the ordinary course of its business which involves the operation of a telephone business and the providi.ng of signal carrying capability, consistent with the rights granted to Grantee under . Section 3 of this franchise. Within ten (10) days after execution and delivexy 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 perfoxmance 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 lierein contained shall be binding upon the successors and assigns of the Grantee, and. all privileges as well as all obligations and liabilities of the Grantee shall inure to its successors and assigns equally as if they were specifically mentioned 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 working 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 i£ 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 shallbe 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 Faciiities without the County's consent, but any such mortgage, pledge or assignment shall be subject to the County's other rights contained , in this Franchise: . . 29e 1\TON-COlVIPI,IANCE VVITH FRANCHISE TERNIS R,emedies to Enforee Comuliance. In adclition to any other remedy provided herein, the CounLy reserves, and has the right to pursue any remedy to compel or force the Grantee, and/or its successors and assigns, to comply wi.th 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 compliance 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 opinion of the County, in any emergency or life-threatening condition. In such case, the County may set a . period of less than thixty (30) days for the Grantee to comply and may set such conditions and specifications for compliance as the County may.deem reasonable under the circumstances. In the event that the Grantee fails to comply with any ti_me set for compliance or with any condition set for compliance 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 specifi.c performance and/or damages in addition to the xemedies 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 within said properLy, at the Grantee's sole cost and eYpense, provided that, as an alternative to removal the County may, at the , • C.ounty's sole option, allow the Grantee to abandon its equipment and facilities in place. 30. I)ISPUTE RESOLIT'I'ION 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 cour.t of competent jurisdiction to have practiced any fraud ox 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. (B) For purposes of this Section, the following are material provisions of this Franchise, allowing the County, without li.mitation, to exercise its rights under this Section or as set forth elsewhere in this Franchise: 1. The invalidation, faiiure 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 tv the County. 3. A.ny 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. Additional Remedies: In addition to any rights set out elsewhere in this Franchise, as well as its rights under the County Code, the County reserves the right, at its sole option, to apply any of the following, alone or in combination: . (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 Coun.ty 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 faith 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 United States District Court for the District of Washi.ngton. 31a NATZJRAL DISASTER 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 partzally 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 Majeure, describing the same in reasonable detail, and Grantee's obligations under this Franchise, other than for the payment of nlonies 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. , , 32. NON-E1oTFORCEMEN'I' BY THE COUNTY . Regtzlation and Non-enforcement by 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 relieved 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 zts rights under this Franchise by reason of such failure or neglect. 33. ENVIRON1VIEloTTAL OB]LIGATIONS Environmental Obligations 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 Iaws, rules, recommendations, or regulations, whether or not Grantee's acts or activities were intentional or unintentional. Grantee shall further indemziify 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. . 3 4. INDEMNIFICATION 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 clazms 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 indemriify, defend and hold harmless the County, its elected officials, employees, agents, and volunteers from any and all claims, costs, judgments, awards or liability to any persons (including claims by Grantee's own employees, including those claims to which Grantee might otherwise have immunity under Title 51 . RCW) axising 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 . . z , , . which the County has control; pursuant to this Franchise or pursuant to any other permit or approval issued in connection with this Francb.ise. 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, off'icers 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 ni.nety (90) days. Grantee also hereby agrees to indemnify the County for any damages, clai.ms, additional . costs or expenses assessed against or payable by the County ar.isirig 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 furnished to Grantee by the County Engineer, 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 indemnification. Said indemnification 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 indemnification 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 espenses for defense of the action, including reasonable attorneys' fees of recovery under this indemnification.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 liability 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 liability hereunder shall be only to the extent of Grantee's negligence. It is further specifically and expressly understood that the indemnification provided in Section 16 constitutes Grantee's waiver of immunity under Title 51 RCW, solely for the purposes of this indemnification. This waiver has been mutually negotiated by the parties. 35. INSLTRAIOTCE , 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 clirect changes to insurance and liability protections as he/she may require. Unless so modified, Grantee shall furnish 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. . ' In those situations where, through the Grantee's negligent or intentional acts or omissions, damage has occurred Grantee's insurance shall be primary to any County insurance coverage or, in the event the County is self insured, any Grantee policy shall afford first dollar protection coverage for risks included in Grantee's operations. On or before thirty .(30) days of the anniversary date of the franchise, Grantee shall file with the County Clerk, with a copy to the County Risk Manager, proof of continued insurance coverage, at least in the amounts required in this Section, through a Certificate of Insurance including the additional insured endorsement indicating County coverage required herein and a provision that said coverage may not be canceled or reduced without at least thirty (30) days notice to the County, filed as above provided. 36. AQUIRIloTG NEW FACILITIES Upon Grantee's acquisition of any new Facilities in the Rights of Way, or upon any addition or annexation to the County of any area in which Grantee retains any such Facilities in the Rights of Way, the Grantee shall submit to the County a written statement describing all Facilities involved, whether authorized by Franchise or any other form of prior right, and specifying the location of all such Facilities. Such Facilities shall immediately be subject to the terms of this Franchise. 37. RENEG0TIAT1oN , Spokane County reserves for itself the right to change, amend, moclify, or amplify this . Franchise to conform to any state statute, or County regulation, Utility Accommodation Plan, Franchise, or Right of Way regulation, State and National Codes, Standards, and Regulations as may hereafter be enacted, adopted or promulgated. If the Grantee fails to comply with its terms and conditions, or if the Grantee fails to comply with such changes, amendments, modifications, and/or ' amplifications, this Franchise may be terminated at any time upon ninety (90) days written notice to the Grantee to terminate this Franchise and upon termination Spokane County shall have a lien upon all equipment and materials erected or placed under this Franchise, which lien may be enforced to reimburse Spokane County for any reasonable expenses and payments incurred in terminating this Franchise and to cure defaults by the Grantee. The County and Grantee hereby reserve the right to. also alter, amend or moclify the terms and conditions of the Franchise upon written agreement of both parties to such amendment. 38. SEVERABILITY , If any section, sentence, clause or phrase of this Franchise should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause or phrase of this Franchise. In the event that any of the provisions of this Franchise are held to be invalid by a court of competent jurisdiction, the County reserves the right to reconsider the grant of this Franchise and may amend, repeal, add, replace or modify any other provision of tlus Franchise, or may terminate this Franchise. : . 39. NOTICE Any notice provided for under this Franchise shall be sufficient if it is in wziting and delivered personally.to the following addressee or delivered by certified mail with a return receipt requested. Spokane County P.ublic Works ' Division of Engineering and Roads 1026 West Broadway Avenue Spokane, Washington 99260-0170 40. ACCEPTANCE As a condition precedent to this Franchise taking effect, . a written letter of full acceptance must be filed with the Clerk of the Board of County Commissioners of Spokane County and recarded with the County Auditor accepting. all: terms and conditions as set. forth in this Francluse within thirty days from the date signed by the Board of County Commissioners. Such acceptance shall be unqualified and shall be construed to be an acceptance of all the terms, conditions and restrictions contained in this Franchise. The Grantee's written acceptance shall incZude the identification of an official liaison that will act as the County's contact for all issues regarding this Franchise. The Grantee shall notify the County of any change in the identity of its liaison. A failure on the part of Grantee to file such written acceptance within such time shall be deemed an abandonment and rejection of the rights and privileges conferred hereby and this Franchise Agreement shall be null and void. . . DATED at SPOKANE, W ON, this day of 2000. OF Cnj~t SJ•l 4 ~~E Cp R~ BOARD OF COUNTY COMMISSIONERS OF SPOKANE COUNTY, WASHINGTON , . o n • sEt,i.. ~NE CO~~' " JO OSKELLEY; CHAIR ATTEST: VICKY M. DALTON CLERK OF THE BOARD LI~ . S, VICE-CHAIR X: . B ~ DANIELA ERICKSON, DEPUTY ~ J A M. KATE Mc IN ~ The grantee, a corporation,hereinbefore referred to, for itself, and for its successors and assigns, does accept all of the terms and conditions of the foregom franchise. "V Manager IN WITNESS WHEREOF, it has caused these presents to be . signed by this day of , 2000. Subscribed and sworn be before me this day of 12000. Notary Public in and for the State of Washington ~ . ` . • EXHIBIT "A" 0 AW .0►7 A strip of land five feet in width lying East and South of the following described line: Beginning at the intersection of Park Road and Nora Avenue thence N89°21'00" West 1087.53 feet, thence SO°21'40" West 30 feet to the True Point of Beginning; thence NO°21'40" East 60 feet thence S89°21'00" East 165 feet and the terminus of this line description. Located in the Southeast Quarter of Section 12, Township 25 North, Range 43 E.W.M. e