Chapter 16.30
PUBLIC AND PRIVATE
UTILITY FRANCHISES

Sections:

16.30.010    Terms and conditions – Scope.

16.30.020    Rights terminated when.

16.30.030    County right to acquire property of grantee.

16.30.040    Grantee – Rights described.

16.30.050    Grantee – Installation standards – Supervision required when.

16.30.060    Permit – Requirements generally.

16.30.070    Grantee – Work commencement and completion time.

16.30.080    Property to be restored to original condition – Damages – Emergency work.

16.30.090    Claims and damages – County to be held harmless.

16.30.100    Grantee – Liability.

16.30.110    County work contiguous to grantee improvements permitted when.

16.30.120    Readjustment and relocation of facilities.

16.30.130    Removal or relocation of facilities.

16.30.140    Franchise not exclusive – Work performance conditions generally.

16.30.150    Provisions – Binding upon successors and assigns.

16.30.160    Grantee – Rights forfeited when.

16.30.170    Provisions – Changes or amendments authorized when.

16.30.180    New facilities to be underground – Line extensions.

16.30.190    Grantee – Bond requirements.

16.30.200    Grantee – Scope of obligations.

16.30.210    Grantee – Franchise signature and acceptance time limit.

16.30.220    Severability.

16.30.230    Effective date.

16.30.010 Terms and conditions – Scope.

A. The following terms and conditions shall be subject to the Constitution and laws of the State of Washington and shall apply and shall be deemed to be terms and conditions of any franchise to use the roads, streets, avenues, highways, alleys, rights-of-way or other county properties of Cowlitz County hereafter granted by the county to any individual or municipal or private corporation engaged in the public service or utility business, unless and except to the extent that such ordinance or resolution granting such franchise expressly provides terms or conditions contrary to those herein contained.

B. All work done under said franchise shall be done in a thorough and workmanlike manner. In the laying of underground pipelines and cables, the construction of other facilities, and the opening of trenches, the tunneling under county roads, rights-of-way or other county properties, the grantee shall leave such 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. 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/his carelessness or neglect, or through any failure or neglect to properly guard or give warning of any trenches, ditches or tunnels dug or maintained by the grantee. [Ord. 5378, § 1, 8-8-77.]

16.30.020 Rights terminated when.

A. Whenever any of the streets, avenues, alleys, roads, highways, rights-of-way or public places designated in such franchise shall be eliminated from county jurisdiction by reason of the incorporation or annexation to a city, then all the rights, privileges and franchises so granted shall terminate in respect to said streets, avenues, alleys, roads, highways, rights-of-way and public places so eliminated, but otherwise the franchises shall continue in full force and effect in respect to all streets, avenues, alleys, roads, highways, rights-of-way and public places not so eliminated by such reduction or disincorporation.

B. If at any time the County of Cowlitz shall vacate any county street, avenue, alley, road, highway, right-of-way or other county property which is subject to rights granted by said franchise and said vacation shall be for the purpose of acquiring the fee or other property interest in said road, right-of-way or other county property for the use of Cowlitz County, in either its proprietary or governmental capacity, then the Board of County Commissioners for Cowlitz County may at its option, by giving 90 days’ written notice to the grantee and after granting an alternate route, terminate this franchise with reference to such county road, right-of-way or other county property so vacated, and the County of Cowlitz shall not be liable for any damages or losses to the grantee by reason of such termination. Wherever possible, the county agrees to protect the grantee’s interest by retaining easement rights. [Ord. 5378, § 2, 8-8-77.]

16.30.030 County right to acquire property of grantee.

The granting of such franchise shall not preclude Cowlitz County from acquiring by purchase or condemnation any or all of the mains, laterals, pipes, poles, cables or other improvements installed by the grantee within the county streets, avenues, alleys, roads, highways, rights-of-way or public places within Cowlitz County. [Ord. 5378, § 3, 8-8-77.]

16.30.040 Grantee – Rights described.

The grantee shall have the right and authority, to the extent expressed in the resolution of the Board of County Commissioners granting such franchise, or in any supplemental document, to enter upon the streets, avenues, alleys, roads, highways, rights-of-way and public places designated by such franchise for the purpose of construction work, extension of existing systems, connection of such systems with consumers’ pipelines, cables, lines or equipment, repairing of equipment, and in all fashions maintaining and operating the improvements installed within such county property, and to make rules and regulations governing the same in conformity with state and federal statutes and regulations now in force or hereafter enacted and adopted by state and/or federal agencies governing such utilities. [Ord. 5378, § 4, 8-8-77.]

16.30.050 Grantee – Installation standards – Supervision required when.

The grantee shall install the pipes, poles, lines, cables or other authorized improvements in the designated streets, avenues, alleys, roads, highways, rights-of-way or other public places pursuant to plans and specifications approved by the County Engineer and under supervision provided by the county at the expense of such grantee, whenever the grantee’s inspection services are determined by the county to be inadequate. [Ord. 5378, § 5, 8-8-77.]

16.30.060 Permit – Requirements generally.

Before any work is done by the grantee under such franchise, it/he shall first file with the County Engineer an application for permit to do such work accompanied by such supporting documents and/or field information as the County Engineer may require. The grantee shall specify the class and type of material to be used and provide sufficiently detailed plans so as to adequately show the type and extent of work to be performed upon the rights-of-way. All material and equipment shall conform to or exceed the standards of the industry. When requested by the County Engineer, the manner of excavation, construction installation, backfill and the type and size of temporary structures, including traffic turnouts, road obstructions, etc., shall be submitted for approval. The grantee shall pay to the county the actual cost and expenses incurred in the examination, necessary inspection and supervision of such work granted by the permit and done by the grantee or by an independent contractor under the franchise of the grantee. [Ord. 5378, § 6, 8-8-77.]

16.30.070 Grantee – Work commencement and completion time.

The grantee, its/his successors or assigns, shall commence construction under such permit granted by the County Engineer within the time period stated in such permit and shall have completed and have in operation such portion of the system of improvements as may be specified in such permit or the rights therein conferred upon the grantee shall cease and terminate insofar as unoccupied streets, roads, etc., are concerned. [Ord. 5378, § 7, 8-8-77.]

16.30.080 Property to be restored to original condition – Damages – Emergency work.

A. The grantee shall leave all streets, avenues, alleys, roads, highways, rights-of-way and other county properties, after laying and installing mains and doing construction work, making repairs to equipment, etc., in as good and safe condition in all respects as they were before the commencement of such work by the grantee, its/his agents or contractors, and all recorded monuments which have been disturbed or displaced by the work shall be reset to the specifications and approval of the County Engineer.

B. In case of any damage to said streets, avenues, alleys, roads, highways, rights-of-way or other county properties, or to paved or surfaced roadways, turn-outs, gutters, ditches, wood or concrete walks, drainpipes, hand or embankment rails, bridges, trestles, wharves, landings or monuments by the grantee, the said grantee agrees to immediately repair said damage at its/his own sole cost and expense.

C. When the County Engineer determines that an emergency situation does exist, he may order and have done any and all work considered necessary to restore to a safe condition any such street, avenue, alley, road, highway, right-of-way or other county property left by the grantee or agents in a condition dangerous to life or property. He may cause to be replaced or reset recorded monuments if a grantee fails to replace or reset same within a reasonable time after completion of construction. The grantee, upon demand, shall pay to the county all costs of such construction or repair and of doing such work. [Ord. 5378, § 8, 8-8-77.]

16.30.090 Claims and damages – County to be held harmless.

A. The grantee, its/his successors or assigns, shall protect, indemnify and save harmless Cowlitz County from all claims, actions or damages of every kind and description which may accrue to or be suffered by any person or persons, corporation or property by reason of any faulty construction, defective material or equipment operation or by the improper occupation of said rights-of-way or other county properties by the said grantee or by reason of the negligent, improper or faulty manner of safeguarding any excavation, temporary turnouts or inefficient operation by the grantee of its/his lines over or under said streets, avenues, alleys, roads, highways, rights-of-way or other county properties as hereinbefore designated, or for any other negligent acts or omissions on the part of grantee, and in case that suit or action is brought against the said county for damage arising out of or by reason of any of the abovementioned causes, the grantee, its/his successors or assigns, will, upon notice to it or him of the commencement of said action, defend the same at its or his sole cost and expense and in case judgment shall be rendered against Cowlitz County in such suit or action, will fully satisfy said judgment within 90 days after the said suit or action shall have been finally determined, if determined adversely to Cowlitz County; provided, that the grantee herein, its/his successors or assigns shall have the right to employ its/his own counsel in any cause or action and be given the management of the defense thereof.

B. Acceptance by the county of any work performed by the grantee at the time of completion shall not be ground for avoidance of this covenant. [Ord. 5378, § 9, 8-8-77.]

16.30.100 Grantee – Liability.

In consideration of the granting of such franchise by the grantor to the grantee, the grantee, for itself/himself and its/his assigns, shall contract and agree to save Cowlitz County harmless from any liability of whatsoever nature arising out of any damage and/or destruction done or suffered to be done to grantee’s mains, valves, pipes, poles, cables, lines or other fittings or appurtenances of whatsoever nature placed upon, along, across, over and/or under the county road right-of-way or other county property. This section shall be construed to mean that the grantee accepts such franchise and any rights conferred thereunder for the use and occupation of any portion of the right-of-way, at its/his own risk, and agrees to assume responsibility for any damage occasioned to grantee or third parties by grantor in the maintenance and/or construction work performed by grantor upon the roadways described herein and which would not have occurred but for the presence on said roadways of the grantee’s pipes, poles, lines, cables, fittings or other appurtenances mentioned above, except to the extent any such damage or loss is caused by the sole negligence of the grantor. [Ord. 5378, § 10, 8-8-77.]

16.30.110 County work contiguous to grantee improvements permitted when.

The laying, construction, maintenance and operation of the system of improvements granted under said franchise shall not preclude Cowlitz County, its accredited agents or its contractors, from blasting, grading or doing other necessary road work in a reasonably careful and prudent manner contiguous to the said grantee’s improvements; provided, that the grantee shall be given a minimum of two business days’ prior notice, in writing, signed by the County Engineer, of said blasting or excavating in order that said grantee may protect its/his lines and property. [Ord. 5378, § 11, 8-8-77.]

16.30.120 Readjustment and relocation of facilities.

If at any time Cowlitz County deems it advisable to improve any of its streets, avenues, alleys, roads, highways, rights-of-way or other county properties as hereinbefore designated, by grading, regrading, surfacing or paving same, or altering, changing, repairing or improving same, the grantee, upon written notice by the county, shall, at its/his own expense, as soon as reasonably practicable, so raise, lower or move its/his lines or improvements to conform to such new grades as may be established, or place said property in such locations or positions as shall cause the least interference with any such improvements or work thereon as contemplated by the county and the said county shall on no wise be held liable for any damage to said grantee that may occur by reason of the county improvements, repairs or maintenance performed in a reasonably careful and prudent manner, or by the exercise of any rights so reserved in this section or grant. If the county shall improve such streets, avenues, alleys, roads, highways, rights-of-way or other county properties, the grantee shall on written notice by county officials, at its/his own expense, replace such pipes, lines or system as may be in or through the improved subgrade of such improvement, with such materials as shall conform to or exceed the applicable standards of the industry for use in such streets, avenues, alleys, roads, highways, rights-of-way or other county properties; provided, that if a readjustment or relocation is necessitated for a reason other than the above-enumerated county purposes, the person, firm or private corporation or entity requesting such readjustment or relocation shall pay the grantee the actual costs thereof; provided, further, that in the event grantor should require such readjustment or relocation in connection with any improvement or project funded wholly or in part by state or federal funds, the grantor shall pay grantee such proportion of the actual cost of readjustment or relocation to the extent provided for by such state or federal funds received by grantor in connection with such improvement or project. [Ord. 5378, § 12, 8-8-77.]

16.30.130 Removal or relocation of facilities.

If at any time Cowlitz County shall install a line of pipes for sewage and/or drainage upon any of the streets, avenues, alleys, roads, highways, rights-of-way or other county properties herein described, wherein a grantee’s facilities unreasonably interfere with the construction project, the grantee, upon written notice by the County Engineer, shall temporarily remove or relocate its/his line of pipes or improvements at its/his own expense during said installation and replace same at its/his own sole cost and expense under the supervision of Cowlitz County. [Ord. 5378, § 13, 8-8-77.]

16.30.140 Franchise not exclusive – Work performance conditions generally.

A. Such grant or privileges shall not be deemed or held to be an exclusive franchise. It shall in no manner prohibit Cowlitz County from granting other franchises of a like nature or franchises for other public or private utilities over, along, across, under and upon any of the streets, avenues, alleys, roads, highways, rights-of-way or other county properties as herein enumerated, and shall in no wise prevent or prohibit the county from using any of said streets, avenues, alleys, roads, highways, rights-of-way or other county properties or affect its jurisdiction over them or any part of them.

B. All construction or installation of mains, valves, pipes, poles, cables, lines fittings and facilities, service, repair or relocation of the same, performed along, over and/or under the county roads, rights-of-way or other county properties subject to said franchise shall be done in such a manner as not to interfere with the construction and maintenance of other utilities, public or private, drains, drainage ditches and structures located therein, nor with the grading or improvement of such county roads, rights-of-way or other county properties.

C. The owners of all other utilities, public or private, installed in such county roads, rights-of-way or other county properties prior in time to 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 county road or right-of-way. [Ord. 5378, § 14, 8-8-77.]

16.30.150 Provisions – Binding upon successors and assigns.

All the provisions, conditions, regulations and requirements herein contained shall be binding upon the successors, assigns and independent contractors of the grantee, and all rights and privileges of the grantee shall inure to its/his successors, assigns and such contractors equally as if they were specifically mentioned herein wherever the grantee is mentioned.

The grantee, its/his successors and assigns shall have the right to sell, transfer or assign said franchise upon giving written notice of its/his intention to do so, not less than 60 days in advance of the date of the proposed transfer, to the Clerk of the Board of County Commissioners of Cowlitz County. [Ord. 5378, § 15, 8-8-77.]

16.30.160 Grantee – Rights forfeited when.

If the grantee, its/his successors or assigns, shall through willful or unreasonable neglect, fail to heed or comply with any notice given the grantee under the provisions of such grant, then the said grantee, its/his successors or assigns, shall forfeit all rights conferred thereunder and such franchise may be revoked or annulled by the Board of County Commissioners of Cowlitz County upon 30 days’ written notice thereof to the grantee. [Ord. 5378, § 16, 8-8-77.]

16.30.170 Provisions – Changes or amendments authorized when.

A. The county reserves for itself the right at any time, upon a 48-hour written notice to the grantee, to so change, amend, modify or amplify any of the provisions or conditions herein enumerated to conform to any state statute or county regulation relating to the public welfare, health, safety or highway regulation as may hereafter be enacted, amended, adopted, changed, etc., and such franchise may be terminated upon 30 days’ written notice to grantee if same is not operated or maintained in accordance with its provisions.

B. The grantee, notwithstanding any other terms of such franchise appearing to the contrary, shall be subject to the police power of the county to adopt and enforce general ordinances necessary to protect the safety and welfare of the general public in relation to the rights granted in such franchise. [Ord. 5378, § 17, 8-8-77.]

16.30.180 New facilities to be underground – Line extensions.

The grantee, as far as practicable, shall construct all new utility facilities underground. Extension of overhead facilities following streets, avenues, ways, boulevards or thoroughfares shall be undertaken only with the approval of the County Engineer; provided, however, that said approval shall not be unreasonably withheld. Grantee recognizes the desirability of underground facilities rather than overhead facilities and shall convert existing overhead facilities to underground facilities as and when equipment replacement is undertaken, or when other existing overhead utilities are placed underground, unless such replacement is unsafe, impractical or economically unreasonable. Line extension policies and procedures established by the grantee, and uniformly applied through its service area, shall be the standard in determining what is “practical, impractical or economically unreasonable” under this chapter; provided, that no new overhead utility facilities shall be constructed or established in any area set aside for public park, school, playground or athletic field purposes. [Ord. 5378, § 18, 8-8-77.]

16.30.190 Grantee – Bond requirements.

Before undertaking any of the work or improvements authorized by the franchise, the grantee, if other than a municipal corporation, shall furnish to the county a bond, executed by grantee and a corporate surety authorized to do a surety business in the State of Washington, in a sum to be recommended by the County Engineer and set and approved by the Board of County Commissioners as sufficient to insure performance of the grantee’s obligations under such franchise, and conditioned that the grantee shall well and truly keep and observe all of the covenants, terms and conditions and faithfully perform all of grantee’s obligations under said franchise, and to reset or replace any defective work performed or materials installed by or under the direction of the grantee, its/his employees or contractors, discovered in the replacement of the county’s roads, rights-of-way or other county properties within a period of two years from the date of the replacement and acceptance of such repaired roads, rights-of-way or other county properties by the county. Said bond requirement may be met by surety bonds of a continuing nature now in effect or that may hereafter come into effect. [Ord. 5378, § 19, 8-8-77.]

16.30.200 Grantee – Scope of obligations.

The obligations imposed upon the grantee by the express terms of the resolution granting such franchise or implied by the terms of this chapter or any other ordinance affecting the same, shall be deemed to include every employee, nominee or independent contractor of the grantee performing work in the county streets, avenues, alleys, roads, highways, rights-of-way or other county properties under contract, direction, request or authority of the grantee under this franchise, and the grantee, its/his agent, employee or independent contractor, severally, shall be responsible to the county for any injury or damage to county property or the expense incurred or suffered by the county in correcting defects in work replacing county roads or other improvements damaged by the acts or neglect of such servants, agents, or independent contractors of grantee. [Ord. 5378, § 20, 8-8-77.]

16.30.210 Grantee – Franchise signature and acceptance time limit.

If within 30 days of the granting of such franchise the grantee shall have failed to sign its/his written acceptance of same, then the granted rights and privileges therein shall be deemed forfeited and declared null and void. [Ord. 5378, § 22, 8-8-77.]

16.30.220 Severability.

If any provision of this chapter or application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are declared to be severable. [Ord. 5378, § 21, 8-8-77.]

16.30.230 Effective date.

This chapter shall be in full force and effect five days from and after the date of its passage. [Ord. 5378, § 23, 8-8-77.]