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Franchise No. 86-0736 - EXPIREDSG 0736 035063 BEFORE THE BOARD OF COUNTY COMMISSIONERS OF SPOKANE COUNTY, WASHINGTON In the Matter of the application of ) WASHINGTON WATER POWER COMPANY for a ) franchise to construct, operate and ) F R A N C H I S E maintain a natural gas distribution ) system in, along and under County) Roads, highways and other County ) property in Spokane County, Washington ) Application of WASHINGTON WATER POWER COMPANY, doing business in Washington, at Spokane, for a franchise to construct, operate and maintain a natural gas distribution system in, over along and under County Roads, highways and other County property in Spokane County, Washington, as hereinafter set forth, having come on regularly for hearing before the County Commissioners of Spokane County, Washington, on the 26th day of August, 1986, at the hour of 10 o'clock A.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 re- quired by law, and that it is in the public interest to grant the franchise herein granted;. NOW THEREFORE: IT IS ORDERED, that a franchise be and the same is hereby given and granted to WASHING- TON WATER POWER COMPANY, doing business in the State of Washington, its successors and assigns, hereinafter referred to as the "Grantee ", for a period of twenty five (25) years from and after the date of the entry of this order, to construct, operate and maintain a water distribution system in, under, along and over the following described public County roads and County property in Spokane County, Washington, to -wit: All those public County roads and County property herein listed as follows: Gilbert Road in Section 2, Township 25 N., Range 44 E.W.M. Rich Avenue & Wellesley Avenue in Section 6, Township 25 N., Range 45 E.W.M. Wellesley Avenue in Section 5, Township 25 N., Range 45 E.W.M. Gilbert Road in Sections 33 and 34, Township 26 N., Range 45 E.W.M. Joseph Avenue & Mitchell Drive in Section 34, Township 26 N., Range 45 E.W.M. Gilbert Road Extended & Malvern Road in Sections 26A 35, Township 26 N., Range 45 E.W.M. Dalke Avenue in Section 35, Township 26 N., Range 45 E.W.M. This franchise is granted upon the following express terms and conditions, to -wit: I . WASHINGTON WATER POWER COMPANY, its successors and assigns (hereinafter designated as the "Grantee ") shall have the right and authority to enter upon the County roads, rights of way and other County property herein listed for the purpose of constructing and installing its water and power distribution system and all necessary facilities connected therewith (hereinafter referred to as the "system ") and for repairing, operating, maintaining, removing and replacing all or any portion of its system. II. All construction and installation work where crossing County roads or rights of way or other County property outside of the corporate limits of any incorporated town shall be submitted for the approval of and pass the inspection of the County Engineer. III. Prior to commencement of construction of any portion of said system, the grantee shall first file with the County Engineer its plans and specifications in duplicate showing the position, depth and location of all lines and facilities sought to be constructed, laid, installed or erected at that time, showing their relative position to existing County roads, rights of way or other County property upon plans drawn to scale. The system shall be installed in conformity with said plans, except in instances in which deviation may be allowed thereafter in writing by the County Engineer pursuant to application by grantee. The plans and specifications shall specify the class and type of material and equipment to be used, manner of excavation, construction, installation, back fill, erection of temporary structures, erection of permanent structures, traffic control, traffic turnouts and road obstructions, etc. Upon completion of such construction, a set of "As Built Plans" shall be filed with the County Engineer. i ,. No such construction shal. be commenced without the grants first securing a written permit from the County Engineer, including approval endorsed on one set of plans and speci- fications returned to the grantee. All such work shall be done subject to the approval of and shall pass the inspection of the County Engineer. IV. In any work which requires breaking of surface of the County roads, rights of way, or other County property subject to this franchise for the purpose of laying, relaying, con- necting, disconnecting and repairing the said system, and making connections between the same to structures and buildings of consumers or making connections to other facilities of the grantee now in existence of hereafter constructed, the grantee shall be governed by and conform to the general rules now existing or hereafter adopted by the officers charged with the supervision and care of such County roads, rights of way and other County property; and the grantee at its own expense and with all convenient speed shall complete the work for which the surface has been broken and forthwith replace the work and make good the County road, right of way, or County property and leave same in as good condition as before the work commenced; provided, however, that no such breaking of the surface on the County roads, right of way or other County property shall be done prior to the filing of its plans with the County Engineer; provided, however, that in cases of emergency arising out of office hours when an immediate excavation may be necessary for protection of private or public property the same shall be reported to the County Sheriff. Plans for the restoration of the County road, right of way or other property to the same condition as it was prior to such breaking shall be filed with the County Engineer. The County Commissioners upon notice to the grantee may at any time order or have done any and all work that they consider necessary to restore to a safe condition any such County road, right of way or other County property left by the grantee or its agents in a condition dangerous to life and /or property, and the grantee upon demand shall pay to the County all coats of such work. V . All lines and facilities constructed, operated and maintained across County roads, rights of way or other County property as covered by this franchise shall be constructed, operated and maintained in compliance with the Standards of the American Public Works Asso- ciation. All construction or installation of such lines and facilities, service repair, or relocation of the same, performed along or under the County roads, rights of way or other County property subject to this franchise shall be done in such a manner as not to interfere with the construction and maintenance of other utilities, public or private, drain, drainage ditches and structures, irrigation ditches and structures located therein, nor with the grading or improvement of such County roads, rights of way or other County property. All utilities, public or private, actually installed in such County roads, rights of way or other County property prior in time to the installation of the lines and facilities of the grantee shall have preference as to the positioning and location of such utilities so stalled with respect to the grantee. Such preference shall continue in the event of the necessity of relocation or changing the grade of any such County road or right of way. VI. All work done under this franchise shall he done in a thorough and workmanlike manner. In the laying of lines and the construction of other facilities and the opening of trenches, the tunneling under County roads, rights of way and other County property, the grantee shall leave the trenches, ditches and tunnels in such a way as to interfere as little as possible with public travel and shall take all due and necessary precautions to guard the same so that damage or injury shall not occur or arise by reason of such work; and where any of such trenches, ditches or tunnels are.left open at night, the grantee shall place warning lights and barricades at such a position as to give adequate warning of such work. The grantee shall be liable for any injury to person or persons or damage to property sustained through its carelessness or neglect, or through any failure to properly guard or give warning of any trenches, ditches or tunnels dug or obstructions placed by the grantee. VII. The County in granting this franchise does not waive any right which it now has or may hereafter acquire with respect to County roads, right of way or other County property and this franchise shall not be construed to deprive the County of any powers, rights or privil- eges which it now has or may hereafter acquire to regulate the use of and to control the County roads, rights of way or other County property covered by this franchise. (2) VIII. If, at any time, the County shall improve or change any County road, right of way or other County property subject to this franchise by grading or regrading, planking or paving the same, changes of grade, altering, changing, repairing or relocating the same or by constructing drainage facilities, the grantee upon written notice from the County Engineer shall, at its sole expense, with all convenient speed change the location or readjust the elevation of its system and other facilities so that the same shall not interfere with such County work and so that such lines and facilities shall conform to such new grades or routes as may be established. The County shall in no way be held liable for any damages to said grantee that may occur by reason of any of the County's improvements, changes or works above enumerated, except for damage caused by negligence of the County's employees or agents. All work performed by the grantee under this section shall pass the inspection of the County Engineer. The grantee shall pay all reasonable costs of the expense incurred in the examination, inspection and approval of such work. At such time as the roadways covered by this franchise are scheduled to be paved, the grantee upon notice from the County Engineer, shall within twenty (20) days, install ser- vices to the property line of all lots or properties abutting the roadway to be paved, and extend the lines as necessary and practicable to avoid future pavement cutting. IX. The laying, construction, operation and maintenance of the grantee's system authorized by this franchise shall not preclude the County, its agents, or its contractors from blasting, grading, excavating, or doing other necessary roadwork contiguous to the said lines and facilities of the grantee, providing that the grantee shall be given not less than fifteen (15) days notice of said blasting or other work in order that the grantee may pro- tect its lines and facilities; provided further, that in the event of an emergency as deter- mined by the County Engineer, the grantee shall be given forty -eight (48) hours notice. X . Before any work is performed under this franchise which may affect any existing monu- ments or markers of any nature relating to subdivision, 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 fran- chise. The method of referencing these monuments or other points to be referenced shall be approved by the County Engineer. 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 dis- turbed, and the expense of replacement of approved monuments shall be borne by the grantee. The grantee shall file a complete set of reference notes to monuments and other marker ties which have been re- established or disturbed. XI. If, at any time, the County shall vacate any County road, right of way or other County property which is subject to rights granted by this franchise and said vacation shall be for the purpose of acquiring the fee or other property interest in said road, right of way of other County property for the use of the County, either in its proprietary or governmental capacity, then the Board of County Commissioners may at their option and by giving thirty (30) days written notice to the grantee, terminate this franchise with reference to such County road, right of way or other County property so vacated and the County shall not be liable for any damage or loss to the grantee by reason of such termination; provided, how- ever, that if the County can provide an alternate route across other County property, roads, or rights of way, the County shall do so within a reasonable time prior to such termination, it being understood and agreed that the grantee shall pay all costs of changing and re- routing its system. XII. The grantee hereby agrees to protect and save harmless the County of Spokane from any and all claims, actions or damages of every kind and description which may be asserted against such County by reason of the grantee's acts in connection with the construction, operation and maintenance of said system. In case that suit or action is brought against the County for damages arising out of or by reason of the above - mentioned causes, the grantee will upon notice to it of the commencement of said action defend the same at its sole cost and expense. In case a final judgment shall be rendered against the County in (3) awo ea ch "suit or action, the g. tee will fully satisfy said ju lent within ninety (90) days aFter said suit or action shall have finally been determined by a trial court, or appellate court, or courts if appeal be taken, if determined adversely to the County. Upon grantee's failure to satisfy said final judgment within the ninety (90) day period, the Board of County Commissioners may upon due notice terminate this franchise and the County shall have a lien upon the system which may be endorsed against the property for the full amount of any such final judgment so taken against the County. Acceptance by the County of any work performed by the grantee at the time of completion shall not be a ground for avoidance of this covenant. The grantee shall obtain and keep in force during the term of the franchise, public liability and property damage insurance with companies holding a valid and subsisting cer- tificates of authority to engage in business of insurance in this state as provided by Chapter 48.05 RCW. The amount of coverage shall be not less than one million dollars ($1,000,000) combined single limit. Spokane County shall be specifically named as addition- al insured by endorsement to the policy. XIII. This franchise shall not be deemed to be an exclusive franchise. It shall in no manner prohibit the County from granting other franchises of a like nature or franchises for other public or private utilities under, along, across, over and upon any of the County roads, rights / bf way or other County property subject to this franchise and shall in no ways pre- vent or prohibit the County from constructing, altering, maintaining or using any of said roads, rights of way, drainage structures or facilities, irrigation structures or facil- ities, or any other County property or affect its jurisdiction over them with full power to make all necessary changes, relocations, repairs, maintenance, etc., the same as the County may deem fit. XIV. All provisions, conditions, regulations and requirements herein contained shall be binding upon the succesors and assigns of the grantee, and all privileges as well as all obligations and liabilities.of the grantee shall insure to its successors, and assigns equally as if they were specifically mentioned wherever the grantee is mentioned. XV. The grantee, its successors and assigns shall have the right to sell, transfer or assign this franchise upon giving written notice to do so sixty (60) days in advance of the date of any proposed transfer to the Board of County Commissioners. XVI. It is understood that, in the event any of the County roads or rights of way as desig- nated in this franchise which, by reason of the subsequent incorporation of any city or town, or extension of the limits, then the control of the County with respect to this fran- chise shall be aE an end and shall terminate as to such roads and rights of way so included within such city or town limits. XVII. This franchise shall supercede and cancel any previous right or claim of grantee to occupy the County roads as herein described. XVIII. For and in consideration of the rights and privileges herein set forth, the grantee agrees that Spokane County has the right during the term of this franchise, by ordinance or resolution, to impose fees for the rights and privileges granted. The Board of Commission- ers of Spokane County agrees to provide thirty (30) days written notice prior to the imposi- tion of this fee in order to negotiate the actual rate to be assessed and payment schedule. The assessment rate and payment schedule may be based on factors determined by the Board of Commissioners of Spokane County and may include gross revenues derived from monthly service charges paid by subscribers located within Spokane County and may include revenues received as installation charges and fees for reconnections, inspections, repairs or modifi- cations of any installation in the areas served by this franchise. Or, the fee may be based upon other criteria such as length of facilities in road or number of services. (4) Grantee agrees to and sha provide available financial ii rmation to the Board of _,county Commissioners of Spokane County in determining the basis for a fee schedule or the ` to be assessed. Grantee agrees and shall during regular business hours and at its office located in Spokane County, Washington, allow agents of Spokane County access for inspection and reproduction of all of grantee's business records, gross revenue reports, or rules and regulations relevant to a determination of the gross revenues received by grantee from the areas served by the facilities permitted by this franchise if the fee schedule is to be based, or is based, on gross revenues. Acceptance of any payment due under this section shall not be deemed to be a waiver of any breach of this franchise occurring thereto, nor shall the acceptance by Spokane County of any such payments preclude Spokane County from later establishing that a greater amount was actually due, or from collecting any balance due. XIX. If the grantee shall willfully violate or fail to comply with any of the provisions of this franchise through willful and unreasonable neglect or willful and unreasonable failure to heed or comply with any notice given the grantee under the provisions of this grant, then the said grantee shall forfeit all rights conferred hereunder and this franchise may be revoked or annulled by the Board of County Commissioners; provided, however, that the Board of County Commissioners shall give thirty (30) days written notice of its intention to re- voke or annul the franchise during which period the grantee shall have the opportunity to remedy the situation. XX. The granting of this franchise is not to be construed as a grant of any legal authority to the City to require as a condition of receiving services from the system installed in the County roads, rights of way, or other County property the execution of an agreement by a property owner not to object to their property being annexed into the City. XXI. The full acceptance of this franchise and all of its terms and conditions within thirty (30) days from August 26, 1986, by the WASHINGTON WATER POWER COMPANY, of Spokane, Washing- ton, in writing, is to be filed with the Clerk of the Board of County Commissioners of Spokane County and shall be a condition precedent to its taking effect, and unless the franchise is accepted within such time, this grant shall be null and DATED at SPOKANE, WASHINGTON, this 26th day ust, Board of County Commissioners of Spokane County, Washington The grantee, WASHINGTON WATER POWER COMPANY, 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. Washington Water Power Company IN WITNESS WHEREOF, it has caused these presents to be signed by this day of , 1986. Subscribed and sworn to before me this day of , 1986. Notary Public, In Ena I& the State of Washington, residing at Spokane, Washington. (5)