Chapter 4.36
MALAGA WATER DISTRICT FRANCHISE
Sections:
4.36.020 Description of franchise area.
4.36.050 Reservation of police power.
4.36.060 Construction on public properties.
4.36.070 Excavation in re-paved streets.
4.36.080 Hold harmless—Insurance.
4.36.090 Vacation of right-of-way.
4.36.100 Reference monuments and markers.
4.36.110 Nonexclusive franchise.
4.36.120 Binding effect—Assignment.
4.36.130 Abandonment of facilities.
4.36.140 Emergency response plan.
4.36.150 Dispute resolution—Remedies and forfeiture.
4.36.160 Acceptance by grantee.
4.36.010 Definitions.
The following definitions are provided for the sole purpose of proper interpretation and administration of this resolution:
“Construction or construct” means constructing, digging, excavating, laying, testing, operating, extending, renewing, removing, replacing and repairing a water distribution system. The functions of meter-reading and water quality sampling, which may occasionally be performed by the grantee, shall not be deemed construction or maintenance as defined herein, unless said sampling involves the removal or physical disruption of any portion of grantors improvements and/or facilities or the disruption of traffic. The permit requirements of this franchise shall be triggered only when construction affects traffic flow or impacts the integrity of public property or other franchise rights.
“Consumer” means any person, persons, customer, firm, association, municipal corporation and/or corporation, that uses domestic water, including residential, commercial and industrial users.
“Director” means the director of the department of public works of Chelan County, or any successor office with responsibility for management of the public properties within Chelan County, or his/her designee.
“Distribution system, system and lines,” used either in the singular or plural, means and includes the water pipes, pipe lines, mains, laterals, conduits, feeders, regulators, meters, fixtures, connections and all attachments, appurtenances and appliances necessary and incidental thereto or in any way appertaining to the distribution and use of water, and which are located within public properties.
“Maintenance, maintaining or maintain” means constructing, relaying, repairing, replacing, examining, testing, inspecting, removing, digging and excavating, and restoring operations incidental thereto. The functions of meter-reading and water quality sampling, which may occasionally be performed by the grantee, shall not be deemed construction or maintenance as defined herein, unless said sampling involves the removal or physical disruption of any portion of grantors improvements and/or facilities or the disruption of traffic. The permit requirements for franchise shall be triggered only when maintenance affects traffic flow or impacts the integrity of public property or other franchise rights.
“Public properties” means Chelan County’s public highway, street, road and alley rights-of-way within the present and/or any future limits of the Malaga water district. (Res. 95-65 § 1, 6/13/95).
4.36.020 Description of franchise area.
A. The district includes the following sections and parts of sections:
1. Within Township 21 North, Range 20 East, W.M. all of Sections 1, 12 and 14, the eastern halves of Sections 2 and 11, and the northwestern three-fourths of Section 13 and the northern half of Section 23;
2. Within Township 21 North, Range 21 East, W.M. all of Sections 5, 6 and 7, as well as the northern halves of Sections 3 and 4;
3. Within Township 22 North, Range 20 East, W.M. all of Sections 24 and 36 within Chelan County, as well as the eastern half of Section 25;
4. Within Township 22 North, Ranges 21 and 22 East, W.M. all sections in Chelan County.
B. Excluded from the above described boundaries are the Three Lakes Water District as described below:
That portion of Section 29, Township 22 North, Range 21 East, W.M., Chelan County, State of Washington described as Three Lakes Country Estates, Division No. 1 recorded in Vol. 6 of Plats at pages 71-78; Three Lakes Country Club Estates, Division No. 2 recorded in Vol. 6 of Plats at pages 80-81; and Three Lakes Country Club Estates, Division No. 3 recorded in Vol. 7 of Plats, pages 23-24; and:
That portion of the S.E. quarter of the S.W. quarter lying Southwesterly of the Upper Malaga Road in Section 29, Township 22 North, Range 21 East, W.M. and the South 1/2 of the Southeast 1/4 of Section 29, Township 22 North, Range 21 East, W.M., except that portion platted as Three Lakes Country Club Estates, Division No. 1 recorded in Vol. 6 of Plats at pages 71-78; Three Lakes Country Club Estates, Division No. 2 recorded in Vol. 6 of Plats at pages 80-81; and Three Lakes Country Club Estates, Division No. 3 recorded in Vol. 7 of Plats, pages 23-24 and the county road right of way.
(Res. 95-65 § 2, 6/13/95).
4.36.030 Grant of franchise.
A. Chelan County, Washington, a municipal corporation under the Code of the state of Washington, (“county” or “grantor”), hereby grants and gives unto the Malaga water district, a Washington municipal corporation, (“District” or “grantee”), and its successors and assigns, the right, privilege, authority and franchise to construct, or otherwise acquire, and to own, maintain, equip and operate water distribution lines and mains, and all necessary or desirable appurtenances thereto, for the purchase, transmission and distribution of domestic water, including the right to construct, lay, maintain, extend, renew, remove, replace, repair, use and operate a water distribution system in, under, upon, over, across and along the present and future public properties, within the present and/or any future limits of the franchise area granted by the county, for the purpose of transporting, distributing, selling and supplying domestic water for any and all domestic, commercial and industrial purposes in the franchise area and to its inhabitants, and persons, firms, associations and corporations therein.
B. The county, acting through its director, reserves the right, as the interest of the public may require, to require the installation or construction of new facilities proposed by the district to be constructed outside the paved area of the county road; provided, distribution to all affected parcels of property is substantially comparable. The director shall give particular preference to the alternate installation location in cases in which the existing improvements to the public right-of-way would be affected by the proposed installation and in which the improvements were completed by the county less than thirty-six months prior to the district’s request, or where the structural integrity of the surface of the roadway, or inconvenience to the public caused by the proposed installation cannot be mitigated through alternative means. If public properties other than county roads within the limit of the district’s franchise area form a part of the route of a state highway, the grantee shall determine the requirements of the state of Washington, and take them into account with respect to the use thereof by the grantee.
C. All water distribution and transmission lines and facilities constructed, operated, maintained across county streets, roads or public places covered by this franchise shall be constructed, operated and maintained in compliance with all applicable laws, codes and regulations of the state governmental agency having jurisdiction thereover. (Res. 95-65 § 3, 6/13/95).
4.36.040 Term.
The rights, privileges and franchise granted to, and conferred upon the grantee, unless this franchise becomes terminated as herein provided, extends for a term of thirty years from the effective date hereof as established by signature of the board of county commissioners of Chelan County. (Res. 95-65 § 4, 6/13/95).
4.36.050 Reservation of police power.
Chelan County, in the granting of this franchise does not waive any rights which it now holds or may hereafter acquire and this franchise shall not be construed so as to deprive Chelan County any powers, rights or privileges which it now has or may hereafter acquire, including the right of eminent domain, to regulate the use and control of the county roads covered by this franchise, or to go upon any and all county roads and highways for the purpose of constructing and improving the same in such manner as Chelan County, or its representatives may elect. All the rights herein granted shall be subject to and governed by this resolution; provided, however, that the board of county commissioners expressly reserves unto itself all its police power to adopt resolutions necessary to protect the health, safety and welfare of the general public in relation to the rights hereby granted not inconsistent herewith. (Res. 95-65 § 5, 6/13/95).
4.36.060 Construction on public properties.
A. Permits Required. Except in the case of an emergency pursuant to Section 4.36.110, prior to commencing construction or maintenance work on public properties, grantee shall first file with the county detailed plans, specifications and profiles of the intended work as may be prescribed by the board of county commissioners and director, and shall receive an appropriate permit or permits from the county prior to commencing such work. Grantee shall comply with all terms, conditions, standards and insurance coverages as may be required under the terms of the permit. Grantor shall determine each request for a permit within thirty days of a proper application, including the submittal of complete, accurate and adequate plans, specifications and schedules for the proposed construction and/or maintenance.
B. Entry Upon Public Properties. After obtaining the necessary permit from the director in the manner prescribed by resolution, the grantee may enter upon, dig and excavate in the present and future public properties of the county as hereinabove specified, as now laid out or which may hereafter be established or acquired, but only for the purposes consistent with the grant of this franchise. The work will be done in accordance with the terms of the permits and resolutions of the county regulating the opening and breaking of public properties and rights-of-way of the county.
C. Location of Improvements. In all cases where practicable, the mains and pipes of the grantee shall be laid to make the water supply of the grantee available to the consumers of the district, with any deviation therefore to be with the consent of the board of county commissioners. The location of all mains, laterals and appurtenances, and their depth below the surface of the ground or grade of any public properties, shall be determined and fixed by the director, so long as the location or depth is not inconsistent with applicable regulations of federal or state agencies having jurisdiction over the grantee.
D. Preference in Installations. 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 utilities and other governmental purposes, and should a conflict arise with the grantee’s lines, the grantee shall, at its own expense and cost, conform to the utilities and other government purposes of the county in the event that a reasonably feasible alternative is available. The owners of all utilities, public or private, installed in such public properties prior to the installation of the lines and facilities of the grantee, shall have preference as to the positioning and location of such utilities so installed with respect to the grantee. Such preference shall continue in the event of the necessity of relocating or changing the grade of any such public properties. Grantee shall pay all actual reasonable costs of and expense necessarily incurred by grantor in the examination, inspection and approval of all plans and specifications for, and all details of construction of, all facilities involved herein as necessary to insure conformity with the integrity of the county roads, traffic flow and other franchisees within the county public property.
E. Relocation of Facilities. If the county should pave or otherwise improve public properties, including drainage facilities, relocate the same or change the grade thereof, or provide for the relocation of any such street, and such work should require the relocation or moving of any portion of the distribution system of the grantee, including relocating or readjusting the elevation of its lines and facilities to conform to such new grades as may be established, such work shall be done expeditiously by the grantee and its successors and assigns at its own cost and expense. All work to be performed by the grantee under this section shall be performed as may be required by the terms of this franchise. Grantor shall provide grantee thirty days’ notice of such work, except that notice will not be required of grantor under emergency conditions as determined by the director. The county will submit annually to the district a copy of its adopted six-year transportation improvement plan and its annual construction program.
F. Construction Standards. All pipelines and appurtenant facilities shall be laid and installed in conformity with the maps and specifications filed with the county, except in instances in which deviation may be allowed thereafter in writing by the director pursuant to application by the grantee. All plans and specifications shall specify the class and type of material and equipment to be used, manner of excavation, construction and installation, backfill, erection of temporary structures, erection of permanent structures, and the traffic control mitigation measures as provided by the manual on uniform traffic control devices, or similar standards as may be applicable from time to time. No such construction shall be commenced without the grantee first securing a permit in writing from the director. All such work shall be subject to the approval of and shall pass the inspection of the county by and through its director or other designated official. All such construction shall meet the standards set forth in the utility location guidelines promulgated by the state of Washington, Department of Transportation for protection of utility objects in traffic hazard areas to the extent the guidelines are applicable.
G. Supervision of Installations. Notwithstanding any provision herein to the contrary, any excavations and installations by the grantee in any of the public properties within the corporate limits of the county shall be done in accordance with such reasonable rules, regulations, resolutions and resolutions of general application now enacted or to be enacted by the board of county commissioners, relating to excavations in public properties of the county, and under the direction and supervision of the director. Said direction and supervision 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 district of any duty, obligation or responsibility for the competent design, construction, maintenance and operation of its facilities. All of the county’s actual reasonable administrative expenses directly related to its administration of public properties under this franchise, shall be paid by the grantee to the county upon invoice.
H. Repair of County Facilities. The grantee shall leave all streets, avenues, roads, alleys, lanes, public places and ways, after laying and installing mains and doing construction work, making repairs to equipment, etc., in as good and safe condition in all respects as is practicable, as they were before the commencement of such work by the grantee, its agents, or contractors. In case of any damage to said streets, avenues, roads, alleys, lanes, public places and ways, to the pavement, turnouts, gutters, ditches, walks, drain pipes, rails, bridges, trestles, wharves or landings, and other improvements by the grantee, the grantee shall immediately repair all damage at its sole cost and expense. The director may at any time, after giving prior reasonable written notice to grantee, do, order and have done any and all work considered necessary to restore to a safe condition any such streets, avenues, roads, alleys, lanes, public places and ways, or pavement, turnouts, gutters, ditches, walks, drain pipes, rails, bridges, trestles, wharves or landings left by the grantee or its agents in a condition dangerous to life or property, and the grantee, upon demand, shall pay to Chelan County all costs of such construction or repair and of doing such work. In the event of any excavation through a paved public property, grantee shall restore the paved area to a standard and condition acceptable to the director as specified in the permit to be issued for the work. Patching methods approved by the director to repair the excavation and the surface of the paving to as near the standard of the original pavement as is possible may include the use of a thermal in-place asphalt patch or approved equal and/or the full overlay of the paved area for asphalt paved streets, and the replacement of the affected portion of the panel to the nearest existing expansion joints for concrete paved streets.
I. Bond. Before undertaking any of the work or improvements authorized by this franchise and in all instances naming the county on the bond as an additional insured party, the grantee shall on request by the county, furnish a bond executed by the grantee and a corporate surety authorized to do a surety business in the state of Washington, in a sum to be set and approved by the Director or other properly authorized county official as sufficient to insure performance of the grantee’s obligations under this franchise, conditioned that the grantee shall keep and observe all of the covenants, terms and conditions and faithfully perform all of the grantee’s obligations under this franchise; shall correct or replace forthwith, on receipt of notice thereof, any defective work or materials used in the replacement of the county streets or property discovered within a two-year period of the date of the replacement and acceptance of such repaired streets by the county; and shall restore the streets or property within the period of time specified by the director in the permit issued for such work.
Grantee shall require in all contracts it enters for either goods or services or both, warranties of future performance, fitness and merchantability.
J. Record of Installations. The grantee shall at all times keep full and complete plans, plat or plats, specifications, profiles and records showing the exact location, and size of all water mains and lines heretofore laid in the county, and showing the location of all valves, hydrants, blocking and other service construction; and such plans, plat or plats, profiles, specifications and records shall be kept current annually by the grantee to show thereon the exact location of all additional mains and lines hereinafter installed by the grantee. These records shall be subject to inspection at all reasonable times by the proper officials and agents of the county, and a copy of these plans, plat or plats, profiles, specifications and records, shall be furnished to the county upon request. (Res. 95-65 § 6, 6/13/95).
4.36.070 Excavation in re-paved streets.
Prior to re-pavement or new construction of grantor’s street, roads and alleys, the grantee shall extend the grantee’s water distribution facilities through the area of pavement construction or re-paving; provided, that if the anticipated revenues to be derived from such extension shall not afford a fair and reasonable return on the cost of providing and rendering service, then the grantee shall not be required to make such extension. (Res. 95-65 § 7, 6/13/95).
4.36.080 Hold harmless—Insurance.
A. Hold Harmless. The grantee agrees to protect and save harmless the county from all claims, actions or damages of every kind and description, except for claims arising as a result of the negligence of the county, which may occur to, or be suffered by, any person or persons, corporation or property by reason of any act or failure to act on the part of the grantee. In case suit or action is brought against the county for damages arising out of, or by reason of the above-mentioned causes, the grantee shall, upon notice to it of the commencement of said action, defend the same at its sole cost and expense, and hold harmless and indemnify the county from any attorney’s fees and costs of litigation incurred by the county in connection with the litigation, and in case judgment shall be rendered against the county in the suit or action, the grantee shall fully satisfy the judgment within sixty-days after the suit or action shall have finally been determined if determined adversely to the county. Upon the grantee’s failure to satisfy the judgment within the sixty-day period, this franchise shall at once cease and terminate.
B. Insurance. Grantee shall maintain in full force and effect throughout the term of this franchise, a minimum of one million dollars, or such amount as the county may reasonably require, general comprehensive liability insurance for property damage and bodily injury, including contractual coverage (certificate to be endorsed to show that Chelan County franchise is specifically covered), and coverage for operations, products and/or completed operations. In satisfying the insurance requirements set forth above, grantee may self-insure against risks in such amounts as are consistent with good utility practice. Grantee shall annually provide the county with sufficient written evidence, that such insurance (or self-insurance) is being so maintained by grantee. Such written evidence shall include, to the extent available from grantee’s insurance carrier, a written certificate of insurance with respect to any insurance maintained by grantee in compliance with this section. The county shall be named as an additional insured on any insurance policy for the purposes of actions performed and risks undertaken under the terms of any permit to undertake work to construct, repair or maintain the distribution system. A certificate of insurance, or other proof of insurance satisfactory to the director, shall be filed with the county prior to commencing any such work in public properties. (Res. 95-65 § 8, 6/13/95).
4.36.090 Vacation of right-of-way.
If at any time the county shall vacate any street or right- of-way or other county property which is then used for utility purposes pursuant to the rights granted by this franchise, the grantor will, at the request of the grantee, in its vacation procedure, reserve an easement for any existing franchise holder. (Res. 95-65 § 9, 6/13/95).
4.36.100 Reference monuments and markers.
Before any work is performed under this franchise which may affect any existing monuments or markers of any nature relating to subdivisions, plats, roads or other surveys, the district shall reference all such monuments and markers. The reference points shall be so located that they will not be disturbed during the district’s operations under this franchise. The method of referencing these monuments or other points to be referenced shall be approved by the director. The replacement of all such monuments or markers disturbed during construction shall be made as expeditiously as conditions permit and as directed by the director. The cost of monuments or other markers lost, destroyed or disturbed, and the expense of replacement by approved monuments, shall be borne by the district. (Res. 95-65 § 10, 6/13/95).
4.36.110 Nonexclusive franchise.
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 streets, alleys or public thoroughfares or properties subject to this franchise, and shall in no way prevent or prohibit the county from constructing, altering, maintaining or using any of said streets, alleys, draining facilities, irrigation structures or facilities or public places, or affect its jurisdiction over them or any part of them, with full power to make all necessary changes, relocations, repairs, and maintenance as the county may deem fit from time to time. (Res. 95-65 § 11, 6/13/95).
4.36.120 Binding effect—Assignment.
A. Binding Effect. All of the 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 in this franchise wherever the grantee is so mentioned.
B. Assignment. The grantee, and its successors and assigns, may not assign this franchise without the prior written consent of the board of county commissioners approving the terms of the assignment. If such consent is given and the franchise is assigned, a copy of the assignment shall be filed with the Chelan County auditor. Such consent to assign shall not be unreasonably withheld by the county and shall be granted in the event the state governmental authority having jurisdiction thereover has, after due investigation and notice, authorized such assignment. (Res. 95-65 § 12, 6/13/95).
4.36.130 Abandonment of facilities.
In the event grantee decides to discontinue using and abandons any of its facilities, or the county reasonably determines that grantee has discontinued using and abandoned any of its facilities, grantee shall, at its sole cost and as directed by the county render them completely safe. Abandoning facilities in place shall not relieve the grantee of the obligation and/or costs to remove or alter such facilities in the event the county determines and requests grantee, in writing, to remove or alter such facilities as is necessary for the installation, operation or maintenance of any county owned utility or for the health and safety of the public, in which case the grantee shall preform such work in a timely manner at no cost to the county. In the event grantee does not preform such work within a reasonable time following written notice from the county, the county may do, order, have done, any and all work on such abandoned facilities, and the grantee, upon demand, shall pay to the county all costs of such work. Grantee shall be responsible for any environmental review required for the abandonment of any facility and payment of any costs of such environmental review. (Res. 95-65 § 13, 6/13/95).
4.36.140 Emergency response plan.
Grantee shall prepare and file with the county an emergency management plan for responding to any spill, breaks or other emergency condition. The plan shall designate responsible officials and emergency twenty-four-hour on-call personnel and the procedures to be followed when responding to an emergency. 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. (Res. 95-65 § 14, 6/13/95).
4.36.150 Dispute resolution—Remedies and forfeiture.
In the event of the occurrence of any dispute between the county and grantee arising by reason of this resolution, or any obligation of either party under this resolution, that dispute shall be resolved under the terms of this section which shall be the sole remedy for resolution of any such dispute.
A. Initial Recourse. Upon request of either party, such dispute shall be first referred to the county public works director and the grantee’s general manager to have oversight over the administration of this resolution. Such officers shall meet within thirty days and make a good faith attempt to mediate a resolution of the dispute.
B. Determination by the Board of County Commissioners and the District Board of Directors. In the event that the parties are unable to mediate a resolution of the dispute under the procedure set forth above within thirty days, then the dispute shall be referred to the Chelan County board of commissioners and the grantee’s board of directors for resolution of the dispute.
C. Arbitration. If the dispute has not been resolved pursuant to subsection A or B of this section, then the matter shall, at the request of either party, be referred to the American Arbitration Association for resolution in accordance with its rules governing commercial arbitrations. An award of the expenses of the arbitration, and the attorneys fees and arbitration expenses incurred by the prevailing party, as determined by the arbitrator, shall be included as a part of the award.
D. Other Remedies. In addition to other remedies provided herein, the grantor reserves and has the right to pursue any remedy to compel or enforce the grantee to comply with the terms hereof, and to furnish the service herein called for. The pursuit of any right or remedy by the county shall not prevent the county from thereafter declaring a forfeiture for any reason herein stated after giving the notice required under subsection E of this section, nor shall the delay of the county in declaring a forfeiture preclude it from thereafter doing so, unless the action of the county shall have prevented, caused or contributed materially to the failure to perform or do the act or thing complained of. Grantee retains all rights and remedies that otherwise exist at law.
E. Forfeiture. In addition to other remedies provided herein, in case of failure on the part of the grantee, to comply with any of the provisions of this resolution, or if the grantee does or causes to be done any act or thing prohibited by, or in violation of the terms of this franchise resolution, the grantor shall give fifteen days’ written notice of such violation and of its intention to revoke the franchise if such violation is not corrected within such fifteen day period, or such longer period of time as may be provided by the grantor. Upon expiration of such period and failure of the grantee to eliminate such violation, the grantee shall forfeit all rights and privileges granted by this resolution, and all of its rights thereunder shall cease and terminate.
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 month to operate its water distribution system, 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 determine, without any further action being necessary on the part of the county; provided, that the grantee shall have the right temporarily to discontinue distribution of water though the distribution system or any part thereof for the purpose of making repairs or extensions, and shall not be liable to a forfeiture therefor 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 water service either in writing, properly addressed to the consumer, or by notice in the official newspaper of the county, or by telephone or other communication approved by the director. (Res. 95-65 § 15, 6/13/95).
4.36.160 Acceptance by grantee.
After the passage and legal publication of this resolution as provided by law relating to granting of franchises, and if accepted thereafter within thirty days by the grantee, the grantee shall indicate such acceptance by its filing with the Chelan County auditor an unconditional written acceptance thereof, to be executed according to law. The failure of the grantee to so accept this resolution within that period of time shall be deemed a rejection thereof by the grantee, and all rights and privileges herein granted shall, after the expiration of the thirty-day period, if not so accepted, absolutely cease and determine unless the period of time shall be extended by the county by proper resolution duly passed for that purpose. (Res. 95-65 § 16, 6/13/95).