Franchise No. 98-0847 - EXPIRED
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j After Recording Return to: Spokane County Engineer
` Attn: Engineering Administration
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BEFORE THE BOAR.D OF COUNTY COMMISSIONERS OF SPOKANE COUNTY, WASHINGTON
9 S 0547
In the Matter of the Application of the WWP Fiber Inc., )
a subsidiary of Avist,a Capital a wholly-owned subsidiary ) of Washington Water Power f o r a Franchise to construct, ) operate and maintain a Telecommunications System ) F R A N C H I S E
in, over, along and under County roads, highways and )
rights of-way in Spokane County, Washington ) Franchise No. O9~
Application of WWP Fiber Inc., a subsidiary of Avista Capital a wholly-owned subsidiary of
Washington Water Power doi.ng business in Washington, at Spokane, for a Franchise to construct,
operate and maintain a Telecommunications System in, over along and under County roads,
highways and rights=of-way in Spokane County, Washin~on, as 'desc 'bed in Exhibit A, which is
attached hereto and incorporated by refexence, on the a?0day of ~-0612 . 199 0, under .
the provisions of Chapter 35.55 RCW, 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 under the following terms and conditions.
1. I)EFINITIONS
Captions. Throughout thi.s 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 pur'pose of this Franchise, the following terms, phrases, and their
derivations shall have the meanings given below unless the conte:ct indicates otherwise. When not
inconsistent with the context, words used in the present tense include the future tense, words i.n the
plural number include the singular number, and words in the singular include the plural number.
The woxd "shall" is always mandatory and not merely directory. _
,1. "Construction or Construct" shall mean constructing, diggi.ng, excavating,
laying, testing, operating, extending, renewing, removing, replaci.ng, and
repairing a facility 1
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2. "Consumer" shall mean any person, persons, customer, firm, association,
municipal 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 specif'ically includes all areas incorporated therein as of
the effective date of this Franchise and any other areas later added thereto by
annexation or other means. Also to have the meaning of an entity, depend.ing
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.
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5. "County Project" - Any public work or i.mprovement under direction of the
County Engineers.
6. "Distributaon System, System, and Lines" used either in the singular or
plural shall mean and include the pipe li.nes, 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 d.istribution of the product and which aze located within
the County R.ight of Way.
"Days" - Calendar days. 8. "Facility" means any tangible component of the WWP Fiber Inc., a
subsid.iary of Avista Capital a wholly-owned subsidiary of Washington Water
- Power 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 the same from this definition.
9. "F'ranchise" 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 inade.
11. "Maintenance, Maintaining, or Maintain" shall mean constructing,
- relaying,' repairing, replacing, examining, testing, inspecting, removing,
d.igging and excavating, and restoring operations incidental thereto.
12, "Permittee" - A person who has been granted a permit by the Permitti.ng
Authority. ,
13. "Permitting Authority" - The head of the Cowaty department authorized to
process and grant permits required to perforna 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 Pernaitting ,
Authority shall include the designee of the department or agency head.
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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.
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 stxeet, 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
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"the State„ substitute "the County:"
20. "Streets", "Highw►ays" 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 camers,
and/or wholesale telecommunications providers for the purpose of voice,
vitieo, or data transmission.
B. Services connecting interexchange carriers and/or competitive
carriers to telephone companies providing local exchange services for the
purpose af 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 compa.ny providing local exchange services, for the purpose
of voice, video, or data transmission andlor otherwise connecting two or
more entities for such purposes.
22. "Telecommunications System" means all wires, cables, ducts, conduits,
vaults, poles and other necessary Facilities owned or used by the Grantee for
the purpose of providi.ng 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 GRANTED .
WWP Fiber Inc., a subsidiarv of Avista Capital a whollv-owned subsidiarv of Washineton
Water Power, its - successors and assigns (hereinafter designated as the "Grantee'), shall, have the
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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, mainta.ining, 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.
Authorized Activities. The Franchise granted herein is solely for the operation of a
telecommunications system.
3 TIME PERIOI)
The Franchise granted by this Franchise shall be for a period of 15 years, commencing on the
date this Fzanchise 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. SUl'ERCEDES OTH]ER A.GR,EEIIENTS
This Franchise constitutes the entir.e 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 FACILIITIES UNDER 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 aze 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. l.
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 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
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and highways of any kind and character or Lerritories, 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 like manner as though this Franchise had never been
granted.
7. NONINTER,FER,ENCE WIT'H ~XISTING 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 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 relocati.ng 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. COUN'IYS RIGHT70 THE R0AD NOT SUPERSEDEI)
Spokane County, in the gra.nting 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, i.ncluding 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 improvi.ng 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 wnrestricted 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 andlor 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.
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9. RELOCATION OF FACILITIES
The County shall have the right to require Grantee to change the location of its facilities
withi.n the Rights of Way when the public convenience requires such change, and the expense thexeof
shall be paid solely by Grantee. The County shall provide the Grantee with the standaxd notice, as
stated below, given under the circumstances to other Franchisees, Licensees, or Permitees. Should
Grantee fail to re*move 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 R.ights of Way.
During the life of this Franchise, the County reserves the right to order any Pacility moved
or changed as ordered and determin.ed 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 o£ 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
pri.marily 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 andlor 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
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
Engi.neer: L
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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 Preli.minary Utility Notice with a section map
showing the job limits and a typical section or a preliminaxy 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.
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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 coinpleted 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 Sptikane
County deems necessary, in its sole discretion. Gra.ntee hereby indemni.fies and
holds Spokane CounLy, 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 indemxufies 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 amission 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 i.n 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 Coun.ty
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 Franchi.se
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 bri.ng the Grantee into compliance with this -Franchise
Docum.ent. • 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 mai.ntained, provided that such
arrangements do not unduly delay a County construction project.
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10. BUILDING 1VIOVING
4Vhenever 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 expense of the Permittee desiring
to move the building or structure, any of Grantee's faciiities that may obstruct the movement thereof;
provided, that the path for movi.ng such building or structure is the path of least interference, as
determined by the County.
11. PITIBLIC RECO]R,DS
As a condition of this Franchise, and at its sole expense, Grantee agrees to provide the
County with as-bui2t 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 Iocated within the County Right of Way
or Public Properties. '
To the extent such requests are lim.ited 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 dsawings 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 improvement projects. -
Upon written request of the County, Grantee shall provide the County with the most recent
update available of any plan of potential i.mprovements 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 i.mprovements within the Franchise Area.
Public Disclosuse Act: Grantee. acknowledges that information submitted to the County is
opea to public inspection under the Washi.ngton Public Disclosure Act RCW 42•17. Grantee may
identify i.nformation, such as trade secrets, financial records, customer i.nformation or technical ,
infornaation, submitted to the County as confidential. Grantee shall prominently mark any '
i.nformation for which it clai.ms confidentiality with the word "Confidentia.l" 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
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12. IIVCORPORATION INTO A CIT'Y OR TOWN
Whenever any of the County roads or rights-of-way designated in this Franchise by reason of
the subsequent i.ncorporation of any city or town, or extension of the li.mits 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 sai.d limits siY (6) months after such incorporation or estension; but
this Franchise shall continue in force and effect as to all County roads or rights-of-way not so
i.ncluded within city or town limits.
13. R.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 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 puxpose 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 i.nterfere with the Grantees of the vacated properties in the manner
set forth in this Franchise.
14. GRANTOR ATTACH111/IEloTTS
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 traffic signals, luminaries,
and overhead suspended signs, when the use of such devices or attachments does not i.nterfere 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,
operatian, or maintenance o£. any of the Facilities installed under this document.
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15. CONSTRLTC'I'ION
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 R.ight 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.
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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 per£orm 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 placement
of underground facilities (excluding aerial cable lines utilizing existing poles and existing cable .
paths), consistent with sound engi.neering practices.
Permits:
„
Prior to doing any work within the County Right of Way, the Grantee must apply for, and
obtai.n, appropriate permits from the County. _
All facilities shall be installed and maintai.ned 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 regulati.ng such construction.' Grantee shall be responsible to obtain all
permits and approvals otherwise required by the County unless expressly provided to the contrary
herei.n. 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 Right;s-of-way shall, regardless of who performs installation
andlor construction, shall be and remain the responsibility of Grantee. The Grantee, not a
contractor, shall apply for and obtai.n all permits necessary for installation and/or construction of any
such Facilities, and for excavation and laying of any of its Facilities within County R.ights 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 ita successor, showing the lacation 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 Counzy will accept a paper copy of the map in a format acceptable to the
County Engi.neer.
Poles in Rieht of Wav:
In the event Grantee elects to use above ground poles, only one li.ne of poles shall be erected
or maintained hereunder, and each pole, brace, and guy pole shall be placed and maintained along
said County roada 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 a minimum clearance .
in accordance with the standards set forth in the applicable "Washington State Construction Code."
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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.
R,estoration of Streets:
Whenever Grantee disturbs the surface of any County Right of VVay 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 promptTy refill the opening and
restore the surface to a condition satisfactvey to the County Engineer. If Grantee excavates the
surface of any County Right of Way, Grantee shall be responsible for restoration of the County R.ight
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 shallbe 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 xules and regulations of the County.
PROVIDED, HOWE`TER, that no such disturbance of the swrface of said County Right of
Way shall be done prior to obtaining a permit issued by the County Engineer, which permit shall
conta.in specifications for the restoration of said roads to the same conditions as they were prior to
such disturbance; and PROVIDED FURTHER, that said County Engineer will requi.re 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 wnnecessarily 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.
DamacLre and Non-compliance: . .
~ Any and all damage, or injury, done or caused to County R.ight of Way, County Facilities, or
any portion thereof in the construction, operation, maintenance or repair of Grantee's facilities shall
be immediately repai.red 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 immed.iately
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 autharized 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 incurred by the County and a penalty of three times what the
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espense 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 whi;ch 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
si.nzilar standards as may be applicable from time to time. The plans must meet all Federal, State,
Caunty Codes and the Utility Accommodation Plan Standazds. No such construction shall be
commenced without the Grantee first securing a permit i.n writing from the County Engineer and
notifying the County Engineer's representative at Ieast 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 Engi.neer 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, relati.ng 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 public
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 operativn of its facilities. All of the County's actual reasonable admi.nistrative
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, conclition, 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 determined 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 shali 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.
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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. Ali 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.
Fa.ilure to oomply 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 approxi.mately 6-12 inches
above the underground facility. The tape shall conform to the standards of the
A.merican Public Works Association Uniform Color Code.
During the construction and/or mai.ntenance of this facility, the Gra.ntee shall
comply with the Manual on Uniform Traffic Contzol Devices for Streets and
Highways. If determined necessary by the County Engineer, the Grantee shall
submit a signi.ng and traffic control plan to the County Engineer's representative
for approval prior to construction or mai.ntenance operations.
8. The shoulders, where disturbed shall be surfaced with crushed surfaci.ng 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. 'I`he restored shoulder must not have any strips or Franchises 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 perm.it/Franchise so that a final inspection can
be made and shall immediately furnish to the County Engineer a revised pZan of
the final location or relocation of its facilities if the original permitlF'ranchise
plans have been revised during the course of construction.
10. In the event that construction and mai.ntenance of the highway facility within
the progimity 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 marki.ngs 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 .
Countp or its contractor.
11. The Grantee agrees to be responsible for any construction deficiencies as a
resuit of the roadway i.nstallation.
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
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by the Grantee with any requests or recommendations made by such
representatives.
Shared Use Escavation: If, at any tune, or from tune 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 opportunity to use such excavation, provided that:
(I) such joint use shall not unreasonably delay the work of the party causing the e:ccavation to be
made; (II) such joint use shall be arranged and accomplished on terms and conditions satisfactory to
both parties; and (III) either paxty may deny such a request for reasons of safety.
Firial Condition:
After performing any work within the County's Right of Way, Grantee shall leave every road
or public highway i.n 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.
16. E~ERGENCY R,ES~~~St
The Grantee shall prepaze and file with the County an emergency management plan for
respondi.ng to any spill, brea.k, 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 fiilly
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 repai.rs are necessary, Grantee shall inamediately 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 i.nitiate such emergency repairs, and shall apply for appxopriate 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 andlor
construction, i.ncluding the payment of permit or license fees.
17. SAFETY:
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
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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.
18. DRAIN~GE:
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
eli.minate the interference to the drainage to the satisfaction of the County Engineer.
19. g'ROTECTI0N OF NIONUMEIVTS
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 shaIl 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 direeted by the County Engineer. The cost of monuments or other markers
Iost, 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. 'rREES - 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 SLTBSTANCES
Grantee shall comply with all applicable state and federal laws, statutes, regulations and
orders concerning Hazardous Substances relating to Grantee's Facilities in the R.ight 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
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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 indemriify the County against any claims, costs, and e:cpenses, 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 ownexship or operation of its Facilities within
the County Right of Way.
;
2 2.MAI NTE NAN C E
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 i.n a manner that requires any customer to install cables, ducts, conduits, or
other facilities, in, under, or over the Cpunty's Rights of Way.
23. LOCA,TES - One-Call Systeari
Pursuant to RCW 19.122, Grantee is responsible for becoming familiar with, and
understandi.ng, the provisions of Washington's One Call statutes. Grantee shall comply with the
terms and conditions set forth i.n 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 t,erm of this Franchise, by
Franchise or resolution, i.mpose fees for the rights and privileges granted herein. Such fees shall be
based upon reasonable costs for the admin.istration of such Franchise as well as reasonable costs for
the use of County roads or rights-of-way. The Boaxd of County Commissioners of Spokane County
agrees to provide not less than thirry (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 speci.fically authorized by law to impose.
Reeoverv of Costs. Nothing herein shall preclude the County from recovering all actual
reasonable costs of and expense necessariiy incurred by Grantor in the exami.nation, inspection, and
approval of all plans and specifications for, and all details of construction of, all facilities involved
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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. BOND Faithful Performance 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, i.n
the penal sum of $100,000, conditioned that the Grantee shall well and truly
observe, fulfill, 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 ti.me required for removal of all of Grantee's Facilities installed i.n
the County's R.ights 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 provisivns of the current "Standard Speci.fications for
Road, Bridge, and Municipal Construction."
B. During the term of the Franchise, Grantee shall fiIe with the County Engineer a duplicate copy of the bond along with written evidence of payment of
the required premiums. . .
Construction Bond: During all ti.mes when Grantee is.performing any construction work in or
under the Streets requiring a street opening 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 Engineer as suffzcient to ensure performance of Grantee's
obligations under this Franchise. The bond shall be conditioned so that Grantee shall observe all the
co6enants, 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
repai.red 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 .
maintaini.ng the bond or letter of credit, and shall keep the same in full force and effect at all ti.mes
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 Engi.neer
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 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 Engineer as to its adequacy under the
requirements of this Franchise.
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• Recourse Acrainst 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 e:cpenses 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 obta.in 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 a.ny bond shall constitute an election or waiver of any rights or
other remedies the County may have. .
26. NOlv TJSE
In the event the rights and privileges hereby granted are not diligently exercised 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 fuxther 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 pwrpose 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
writi.ng, 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. ABANDON1!/IENT 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 t,reated at the expense of
the Grantee, so as to render them completely safe and purged of hazazdous materials. The Grantee
shall be responsible for undertaking any environmental review required by the abandonment of such
facilities, and for the payment of any costs of conducting such environmental review. The Grantee
shall remove sa.id abandoned facilities when either the Grantee or the County opens that section of
Right of Way for mai.ntenance, repa.ir, i.nstallation, 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. .
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28. C ONSENT TO OVVNERSHIP CHANGE
Countv's Written Consent Required for AssiLrnment, 7['ransfer, Merger,
Lease or Mortaaae. Neither this Franchise nor any of Grantee's Facilities located in the
County R.ight 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 wnnecessary any
subsequent consent in any other instance.
Grantee shall not lease any of its Facilities, or the public Right of Way i.n which such axe
contained, without the County's prior consent as expressed by Franchise Agreement. The lease of
facilitzes for purposes of this section does not include arrangements between grantee and third
parties in the ordi.nary course of its business which involves the operation of a telephone business
and the providing of signal carrying capability, consistent with the rights granted to Grantee under
Section 3 of this franchise.
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, Iease, 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 assign.ment, transfer,
merger, lease or mortgage, the County may i.nqui.re into the qualifications of the prospective party.
The Grantee shall assist the County in any such inquiry. The County may condition any sale,
assigument; 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
-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 i.s 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 obtai.ned 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
xeview 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
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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 contained
in this Franchise.
29. IvTON-COMPLIANCE WITH FR,ANCI3ISE TERIVIS
Remedies 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 ternas 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 recei.yed 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 d.iligently 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 thirty (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. Tn the event that the Grantee fails to compZy with any
time 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 cond.ition 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) Nothi.ng herein shall limit the remedies available to the County in the event
of noncompliance by the Grantee. The County may sue for specific 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
herei.n the Grantee shall remove promptly all of its equipment and facilities and
return sa.id property to its origi.nal state as if the Grantee had never had its
equipment or facilities on or withi.n said property, at the Grantee's sole cost and
expense, provided that, as an alternative _ to removal the County may, . at. the
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County's sole option, allow the Grantee to abandon its equipment and facilities in
place.
30. DISI'UTE R,ESOLZJ'TION
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 obtai.n 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 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. A.ny failure by Grantee to maintain the liability insurance required under
this Franchise. 1
4. A.ny 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
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(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 andl 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 mai.ntain
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 faith dispute exists between the County and the Grantee.
Choice of Forum:
Any litigation between the County and the Grantee arising under or regard.i.ng this
Franchise shall occur, if in the state courts, in the Spokane County Court haviug jurisdiction
thereof, and if in the federal courts, in the Un.ited States District Court for the District of
Washington.
31o NATURAL :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 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 Majeure, describi.ng 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 possibie,
under the circumstances, Grantee's inability, by reason of Force Majeure, to carry
out its responsibility and duties under this Franchise. 22
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32. NON-ENFORCEMEIoTT BY THE COUNTY
Regrulation and Non-enforcement bv the Countv: The County shall be vested with
the power and authority to reasonably regulate the esercise 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 its rights under this Franchise by.reason of such failure or
neglect.
~
33. ENVIR,ONM]ENTAI., OBLIGATIONS
Environmental ObliLrations of Grantee: Grantee shall comply with all environmental
protection laws, rules, recommendations, and regulations of the United States and the State of
Washi.ngton, 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 unintentional.. Grantee shall further indemnify the County against all
losses, costs, and expenses (i.ncludi.ng Iegal 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.
34. INDEMNIFICA.TION .
Grantee hereby releases, covenants not to bring suit, and agrees to indemni.fy, 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,
i.ncludi.ng claims by Grantee's own employees to which Grantee might otherwise be immune under
Title 51 RCW, arising fxam 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 volunteexs from any and all
clainas, costs, judgments, awards or liability to any persons (including claims by Grantee's own
employees, includi.ng those clai.ms to which Grantee might otherwise have immunity under Title 51.
RCV) arising agai.nst 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,
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o= : I f . : ~ _ 11 ~1311998 08; 53R
C,~ FNG MiSC $0.00 Sookane Co. 1~A
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 pernlit 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 indemxzify the Cowaty 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 ti.mely manner in accordance with a. reasonable relocation schedule furnished'to Grantee by
the County Engi.neer, unless Grantee's failure arises d.irectly 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 a.ny 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 clai.m, after the
County's request for defense and indemnification has been made pursuant to the indemni.fication
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
wrongfizl 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
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 srhall 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 indemni.fication. This waiver has been mutually negotiated by the parties.
,
35. I1vSURATCE
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 modified,
Grantee shall furnish satisfactory evidence of commercial general liability insurance and maintai.n
the same in good standi.ng 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.
24
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f,(l FNG MiSC SO.QO Sookane Ca. WA
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 ind.icating County coverage
requi.red 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. AQUIR,ING 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 Facilitzes. Such Facilities shall immediately be subject to the terms of this Franchise.
37. RE NE G OTIATI O N
Spokane County reserves for itself the right to change, amend, modify, or a.mplify 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
terminatzng this Franchise and to cure defaults by the Grantee.
The County and Grantee hereby reserve the right to also alter, amend or modify 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 o£ 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 jurisd.iction, the County reserves the right to reconsider the grant of this Franchise and
may amend, repeal, add,.replace or modify any other provision of this Franchise, or may terminate
this Franchise. -
25
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. 9
1111311908 08:53A
f,~ FNG MiSC 30.00 Sookane Co. WA
39. NOTIC]E
Any notice provided for under this Franchise shall be sufficient if it is in writing and
delivered personally to the following addressee or delivered by certified mail with a return receipt
requested.
Spokane County Public 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 recorded
with the County Auditor accepti.ng all terms and conditions as set forth in this Franchise 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 include the identification o£ 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. 1
,.R
26
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11 ~ 130998 998 08:53A
rA FN' tRiM,i 4b.00 Sookane Co. WA
Dt1TED at SPOKANE. WASHINGTON, this ^10A day of &411Y( , 1998.
. /o°•' C01us
y ~
' r BOARD OF COUNTY COMMISSIONERS
OT '4~~ CoL• O~
OF SPOKANE COUNTY, WASHINGTON
. " s
. /
.
•$~1.• y
~ • . ,~I~'
ALL D. HARRIS, CHAIRMAN
ATTEST: WILLIAM E. DON ~ CLERK OF THE BOARD a ~ -
M. TE 1PN
B
DANIELA ERICKSON, DEPUTY
Accepted by WWP Fiber, Inc. JO OSKELLEY
~
, ~
Vy: Watreni~er i The grantee, WWP Fiber, Inc. , a corporation, hereinbefore referred to, for
itself, and for its successors and assigns, does accept all of the terms and conditions of the foregoing
franchise.
IN WITNESS WHEREOF, it has caused these presents to be signed by
Warren Miller this day of November 4 , 1998. Subscribed and sworn be
before me this 4th day of . November 1998.
.
OFFlCi~►L 3EAt. ,
vw-
R. a~~ NotaryPublic in and for the State of Washington
~s~ ~ residing at Spokane
~ JM3p.99W99 ~ My comnission expires:
/ ~ .
27
EXIBIT A 98 OS47
.
~
, Franchise No. covers all County roads, highways, and rights of ways located within the
following Townships, Ranges, and Sections, less all the incorporated areas within Spokane County:
TOWNSHIP RANGE SECTIONS
21 40 1-36
22 40 1-36
23 qp 1-36
24 40 1-36
u 40 1-36
26 40 1-36
27 40 1, 12-17, 21-36
21 41 1-36
22 41 1-36
23 41 1-36
24 41 1-36
25 41 1-36
26 41 1-36
27 41 5-8, 16-22, 26-36
'
28 41 31,32
21 42 1-36 +
22 42 1-36
23 42 1-36
24 42 1-36
25 42 1-36
26 42 1-36
27 42 1-5, 8-17, 20-29, 31-36
28 42 1-5, 8-17, 20-29, 32-36
29 42 " 1-5, 8-17, 20-29, 32-36
21 43 1-36
22 43 1-36
23 43 1-36
24 43 1-36
25 43 1-36 26 43 1-36
27 43 . 1-36
28 , 43 1-36
29 43 1-36 .
21 44 1-36
22 44 1-36
23 44. 1-36
24 44 1-36 .
25 44 1-36
26 44 1-36 RR
27 44 1-36 ~ .
. 28 44 1-36 .~.o
29 44 1-36 ~
21 45 1-36
22 45 1-36
23 • 45 1-36
~
24 45 1-36
25 45 1-36 ~
26 45 1-36
27 45 1-36 ~
Zg 45 1-36
29 45 1-36
21 46 6, 7, 18, 19. 30; 31 . . o~
22 46 , . . _ . 6, 7, 18; 19, 30, 31
23 46 7, 18, 19, 30, 31 - ~
24 46 6, 7, 18, 19, 30, 31 •
25 46 6.7. 18, 19, 30, 31 °
N
26 46 6, 7, 18, 19, 30, 31 . c~
2 7 46 6.7. 18, 19, 30, 31 0§ N~p
28 46 6.7. 18, 19, 30, 31
iq 46 6. 7, 18, 19, 30, 31
~ ~m