HomeMy WebLinkAbout0404 - Snohomish County - Agreement - Non-exclusive Blanket Franchise Agreement Public Right of Way,,:...::.'
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After Recording Return To:
Barbara Sikorski,Asst.Clerk of theCouncil
Snohomish County Council
MiS 609
3000 Rockefeller
Everett,WA 9820I
Grantor:Snohomish County
Grantee: Cityof Marysville
Tax Account No.:
Legal Description:
Ref.#of Docs. Affected:
Document Title:
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Not Applicable
Sections,Townships,and Ranges covered listed in §1.5,page4.
NIA
An Ordinance of Snohomish County Council Granting a Nonexclusive Franchise
Authorizing Limited Useof Public Road Rights-of-Way in Snohomish County,Washington,
to City of Marysville.
SNOHOMISH COUNTY COUNCIL
Snohomish County,Washington
ORDINANCE NO. 02 -0-1::;
AN ORDINANCE OF THE SNOHOMISH COUNTY COUNCIL GRANTING A
NONEXCLUSIVE FRANCHISE AUTHORIZING LIMITED USE OF THE
PUBLIC ROAD RIGHTS-OF-WAY IN SNOHOMISH COUNTY,
WASHINGTON,TO THE CITY OF MARSYVILLE
WHEREAS,the City of Marysville has applied to Snohomish County,Washington for a
nonexclusive franchise to construct, maintain, operate, replace and repair water and sewer
transmission facilities in, on, across, over, along, under, or through public rights-of-way within
unincorporated Snohomish County; and
WHEREAS,The Washington State Constitution,by and through its general grant of police
power, and Section 36.55.010 of the Revised Code of Washington authorize counties to grant
franchises for use of public rights-of-way; and
WHEREAS,Title 13 of the Snohomish County Code specifies requirements for franchises in
Snohomish County rights-of-way; and
Page 1
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WHEREAS,the 1934 Communications Act, as amended by the 1996 Telecommunications Act,
47 USC §151, et seq., relating to telecommunications providers recognizes and provides state
and local government authority to manage the public rights-of-way and to require fair and
reasonable compensation on a competitively neutral and nondiscriminatory basis; and
WHEREAS,a franchise is a legislative authorization to use public rights-of-way and actual
construction and activities in the rights-of-way will be subject to administratively approved
Right-of-Way Use Permits after review of specific plans; and
WHEREAS,it has been found to be in the public interest for a franchise authorizing use of
public rights-of-way for water and sewer transmission facilities to be issued to the City of
Marysville by enactment of IUl ordinance;
NOW,THEREFORE,SNOHOMISH COUNTY DOES ORDAIN:
TABLE OF CONTENTS
Section l.
Section 2.
Section 3.
Section 4.
Section 5.
Section 6.
Section 7.
Section 8.
Section 9.
Section 10.
Section 11.
Section 12.
Section 13.
Section 14.
Section 15.
Section 16.
Section 17.
Section 18.
Section 19.
Section 20.
Section 21.
Section 22.
Section 23.
Section 24.
Section 25.
Franchise Granted -Term and Scope.
Non-Exclusive Franchise Grant.
Right-of-Way Use Permit Required for All Work in Right-of-Way.
Emergency Work -Permit Waiver.
Compliance with Applicable Laws.
Restoration of Right-of-Way.
Maps and Records of Facility Location.
Relocation of Facilities.
Undergrounding of Facilities.
Mainteuance of Facilities.
Dangerous Conditions,Authority for County to Abate.
Abandonmeut of the Franchisee's Facilities.
Fees,Compensation for Use of Rights-of-Way,and Taxes.
Hold Hurmless and Indemnification.
Limitation of County Liability.
Insurance.
Bond or Performance Security.
Modification.
Annexation.
Vacation.
Assignment.
Termination,Revocation and Forfeiture.
Remedies to Enforce Compliance.
Nonwaiver of Rights or Remedies.
'Records.
Page 2
,I "1,
Section 26.
Section 27.
Section 28.
Section 29.
Section 30.
Section 31.
Section 32.
Section 33.
County Ordinances and Regulations -Reservation of Police Power.
Emhtent Domain,Powers of the People.
SurvivlJ!.
Governing Law and Stipulation of Venue.
Severabilitv.
Notice and Emergency Contact.
Acceptance.
Effective Date.
Section 1.Franchise Granted -Term and Scope.
1.1 Pursuant to Section 36.55.010 of the Revised Code of Washington (RCW) and
Chapter 13.80 ofthe Snohomish County Code (SCC),Snohomish County, a political subdivision
of the State of Washington (hereinafter the "Franchisee"),hereby grants to the City of
Marysville, a municipal corporation of the State of Washington (hereinafter the "Franchisee"),
subject to the terms and conditions in the County code, the Engineering Design &Development
Standards (EDDS) and this franchise ordinance, a non-exclusive franchise.
1.2 The term of this franchise shall be for a period of five (5) years,beginning on the
effective date ofthis franchise, unless terminated,revoked or modified under the provisions of
this franchise. This franchise shall be automatically renewed for additional five (5) year terms,
up to a total of fifteen (15) years from the effective date of this franchise,UNLESS,not less than
sixty (60) days prior to the termination of the current term or extension,the County gives notice
of its intention to renegotiate the terms or conditions of the franchise, in which case, the franchise
shall not renew unless and until the County and the Franchisee reach agreement on terms and
conditions acceptable to both parties.Ifthe County and the Franchisee are unable to reach
agreement on new terms and conditions,the franchise shall terminate and the Franchisee shall
remove its facilities from the County rights-of-way unless otherwise allowed under section 12.
1.3 At anytime after the fifth (5th)anniversary date of this franchise, the County may
direct the Franchisee to meet and discuss in good faith amendments to this franchise or enter into
separate agreements,provided that in the event that mutual agreement is not attained, the County
may schedule before the County Council the consideration of such amendments and the County
Council may take such action as it deems appropriate. The authority of the County to consider
mutually agreed amendments and, after the initial five (5) year period, to consider and take
unilateral action on amendments in the event the parties do not reach mutual agreement,shall be
in addition to, and shall in no way limit, the ability of the County to make amendments and
changes to the franchise conditions,negotiate renewals or extensions of the franchise term, or
take action pursuant to any other sections of this franchise, including,but not limited to, sections
18,26 and 27.
Page 3
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1.4 This franchise grants the Franchisee the right,privilege and authority to locate,
construct, operate, maintain, replace and use its facilities,including all necessary equipment and
facilities appurtenant thereto (referred to as "facilities"),for a water and sewer facility in, on,
across, over, along, under or through the public rights-of-way of the County,subject to all
applicable provisions of Title 13 SCC (including EDDS), chapter 36.55 RCW, and the terms and
conditions of County right-of-way use permits issued pursuant to Title 13 SCC and Section 3 of
this franchise. "Public rights-of-way"as used herein means all public streets, roads, ways, or
alleys of the County as now or hereafter laid out, platted, dedicated or improved. This franchise
merely authorizes the Franchisee to occupy and use the public rights-of-way within the County
and nothing contained herein shall be construed to grant or convey any right, title, or interest in
or to such public rights-of-way to the Franchisee.
1.5 This franchise covers public rights-of-way in the unincorporated areas of Snohomish
County located within:
Sections 24 and 25 of Township 31 North, Range 4 East, W.M.
Sections 19,20,21,27,28,29,30,31,32,33,34,35 and 36 of Township 31 North,
Range 5 East, W.M.
Sections 1,2,3,4,9,10,11,12, 13, 14, 15,16,21,22,23,24,25,26,27,34,35 and
36 of Township 30 North, Range 5 East, W.M.
Sections 2, 3, and 11 of Township 29 North, Range 5 East, W.M.
Section 2.Non-Exclusive Franchise Grant.
2.1 This franchise is granted upon the express condition that it shall not in any manner
prevent the County from granting other or further franchises in,on, across, over, along, under or
through any rights-of-way. Such franchise shall in no way prevent or prohibit the County from
using any of said roads, right-of-way or other public properties or affect its jurisdiction over them
or any part of them, and the County shall retain power to make all necessary changes, relocations,
repairs, maintenance, establishment, improvement, dedication, or vacation of the same as the
County may deem fit,including the dedication, establishment, maintenance, and improvement of
all new rights-of-way, thoroughfares and other public properties of every type and description.
2.2 All of the Franchisee's facilities located and operated within the right-of-way and all
work undertaken on any road right-of-way shall be done in such a manner so as to not interfere
with the public use ofthe county road and right-of-way for transportation and other goverrunental
purposes, the construction and maintenance of other authorized facilities or improvements,
public or private, nor the operation,maintenance or improvement of any county road, right-of-
way, or other public properties. Owners, public or private,of any authorized facilities installed
prior to construction and/or installation of Franchisee's facilities shall have preference as to
positioning and location of their facilities, subject to the authority of the County Road Engineer
to direct position and location of all facilities in the right-of-way.
Page 4
Section 3.Right-of-Way Use Permit Reqnired for All Work in Right-of-Way.
3.1 No work within county road right-of-way shall be commenced until a right-of-way
use permit has been issued by the County pursuant to Title 13 SCC for a site-specific location or
installation,including, but not limited to, relocations.In addition to the terms and conditions of
this franchise, all work shall be performed in accordance with the current County standards, the
approved plans and specifications, and the terms and conditions of the right-of-way use permit
and other permits and approvals under Title 13 SCC necessary to accomplish the work or
otherwise applicable (e.g., lane closure or road detour permits). The Franchisee shall remain
solely responsible for compliance with all applicable laws,regulations,codes, and standard plans
and specifications in the design and construction of Franchisee's facilities.
3.2 In addition to any criteria set forth in Title 13 SCC, the EDDS, and the County's
utility accommodation policies, the County Engineer shall apply the following criteria in
reviewing proposed utility routes and in the issuance,conditioning,or denial of a right-of-way
use permit:
A.the capacity of the public rights-of-way to accommodate the Franchisee's
proposed facilities;
B. the capacity ofthe public rights-of-way to accommodate additional utility, cable,
telecommunications,or other public facilities ifthe right-of-way use permit is
granted;
C. the damage or disruption,if any, to public or private facilities,improvements,
service, travel, or landscaping ifthe right-of-way use permit is granted;
D. the public interest in minimizing the cost and disruption of construction within the
public rights-of-way, including, but not limited to,coordination with future utility
installation or county improvement projects;
E. recent construction and/or improvements to the right-of-way and/or proposed
construction and/or improvements to the right-of-way which is proposed for
location offacilities;
F. the availability of alternate routes, locations, and/or methods of construction or
installation for the proposed facilities, including, but not limited to,whether other
routes arepreferred; and
G.whether the Franchisee has received all requisite licenses,certificates,and
authorizations from applicable federal, state, and local agencies with jurisdiction
over the activities proposed by the Franchisee.
3.3 During any period of relocation, construction or maintenance,all work performed by
the Franchisee or its contractors shall be accomplished in a safe and workmanlike manner, so as
to minimize interference with the free passage of traffic and the free use of adjoining property,
whether public or private. The Franchisee shall at all times post and maintain proper barricades
Page 5
and comply with all applicable safety regulations during such period of construction as required
by County code, the EDDS, or the laws of the State of Washington,including,but not limited to,
RCW 39.04.180 for the construction of trench safety systems.
3.4 Before any work which may affect any existing monuments or markers of any nature
relating to subdivisions,plats, roads, or other surveys is performed under this franchise,
Franchisee shall reference all such monuments and markers.Reference points shall be so located
that they will not be disturbed during Franchisee's operations under this franchise. The method
of referencing 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 conditions permit, and as directed by the County Engineer, to
federal, state, and local standards. The cost of monuments or markers lost, destroyed, or
disturbed,and the expense of replacement of approved monuments shall be borne by Franchisee.
A complete set of reference notes for monument and other ties shall be filed with the County.
3.5 If the Franchisee shall at any time plan to make excavations in any area covered by
this franchise, the Franchisee shall, upon receipt of a written request to do so,provide an
opportunity to share such excavation and coordinate utility locations or right-of-way
improvements with the County or other franchised entities,PROVIDED THAT:
A.such joint use shall not unreasonably delay the work of the party causing the
excavation to be made;
B. such joint use shall be arranged and accomplished on terms and conditions
satisfactory to the parties; and
C. the parties may deny such request for safety reasons.
Section 4.Emergency Work - Permit Waiver.
In the event of any emergency in which any of the Franchisee's facilities located in, above or
under any right-of-way breaks, becomes damaged, or if the Franchisee's construction area is
otherwise in such a condition as to immediately endanger the property, life,health or safety of
any individual, the Franchisee shall immediately take such measures as are necessary to repair its
facilities, to cure or remedy the dangerous conditions for the protection of property, life,health or
safety of individuals without first applying for and obtaining a permit as required by County code
and this franchise. However, this shall not relieve the Franchisee from the requirement of
obtaining any permits necessary for this purpose, and the Franchisee shall apply for all such
permits not later than the next business day.
Page 6
Section 5.Compliance with Applicable Laws.
5.1 Franchisee shall comply with all federal, state and local laws, rules and regulations
applicable to any work, facility or operation of the Franchisee relating to County roads or rights-
of-way during the period ofthis franchise.
5.2 All work performed by the Franchisee within the public right-of-way and all of
Franchisee's facilities located within the public right-of-way shall comply with the
comprehensive plan, zoning code and development regulations of the County.Franchisee's
facilities may require additional project permits and approvals under County land use codes and
development regulations.
5.3 All work shall be performed by the Franchisee in a manner to avoid or minimize
impacts on critical areas contained within the County right-of-way.Prior to commencing any
work in a critical area as defined by chapter 32.10 SCC, the Franchisee shall comply with all
requirements of chapter 32.10 SCC and any other applicable title of the County code and shall
obtain any and all necessary permits and approvals required. The granting of this franchise Shall
in no way relieve the Franchisee from its responsibility for avoiding "take"of any threatened or
endangered species as defined by the Endangered Species Act of 1973,16 USC §1531, et seq.,
as amended, in the performance of any work authorized by this franchise and any right-of-way
use permits.
Section 6.Restoration of Right-of-Way.
6.1 The Franchisee shall, after any excavation, installation,construction,relocation,
maintenance, repair, abandonment approved under Section 12 herein, or removal of its facilities
within the right-of-way, restore the surface of the right-of-way to at least the same condition the
property was in immediately prior to any such excavation, installation,construction,relocation,
maintenance, repair, abandonment, or removal and comply with all restoration conditions of
applicable permits or approvals.
6.2 The County Engineer shall have final approval to determine that the condition of such
roads and public places after restoration meets the requirements. The Franchisee agrees to
promptly complete all restoration work and to promptly repair any damage caused by such work
to the right-of-way or other affected areas at its sole cost and expense.
Section 7.Maps and Records of Facility Location.
After construction is complete, and as a condition of this franchise, the Franchisee shall provide
to the County upon request and at no cost, a copy of all as-built plans, maps and records
revealing the final location and condition of its facilities within the public rights-of-way and
public places.
Page 7
Section 8.Relocation of Facilities.
8.1 The Franchisee agrees and covenants at its sole cost and expense, to protect,support,
temporarily disconnect,relocate, or remove from any right-of-way any of its facilities when so
required by the County by reason of traffic conditions,public safety,dedications of new rights-
of-way and the establishment and improvement thereof, widening and improvement of existing
rights-of-way,right-of-way vacations, freeway construction,change or establishment of road
grade, or the construction of any public improvement or structure by any governmental agency
acting in a governmental capacity;PROVIDED that the Franchisee shall generally have the
privilege to temporarily bypass, in the authorized portion of the same right-of-way upon approval
by the County Engineer, any facilities required to be temporarily disconnected or removed.This
section applies to all of Franchisee's facilities wheresoever situated within the public right-of-
way,regardless of whether the Franchisee's facilities were previously located therein through an
easement or other property interest prior to the propertybecoming public road right-of-way.
8.2 Upon the request ofthe County and in order to facilitate County right-of-way
improvements,the Franchisee agrees to locate, at its sole cost and expense,and,if reasonably
determined necessary by the County, at its sole cost and expense, to excavate and expose
portions of its facilities for inspection so that the location of the facilities may be taken into
account in the improvement design;PROVIDED,that Franchisee shall not be required to
excavate and expose its facilities for inspection unless the Franchisee's as-built plans and maps
of its facilities submitted pursuant to Section 7 of this franchise are reasonably determined by the
County Engineer to be inadequate for purposes of evaluating improvements.The decision to
relocate Franchisee's facilities in order to accommodate road improvements shall be made by the
County Engineer upon review of the location and construction of the Franchisee's facilities.
Where additional costs accrue to the County during maintenance,operation,or improvement of
public facilities related to avoidance of damage or accommodation of the Franchisee's facilities,
Franchisee agrees to pay the County the full amount of additional costs,if any,resulting from the
Franchisee's facilities as identified by the County.
8.3 Any condition or requirement imposed by the County upon any person or entity
(including,without limitation, any condition or requirement imposed pursuant to any contract or
in conjunction with approvals for permits for zoning, land use,construction or development)
which reasonably necessitates the relocation of the Franchisee's facilities within the franchise
area shall be a required relocation for purposes of subsections 8.1 and 8.2 above.
8.4 If the County determines that a project necessitates the relocation of the Franchisee's
then existing facilities, the County shall:
A.At least ninety (90) days prior to the commencement of such improvement
project, provide the Franchisee with written notice requiring such relocation;
Page 8
PROVIDED, that in the event of an emergency posing a threat to public
safety, health or welfare, in the event of an emergency beyond the control of
the County and which will result in adverse financial consequences to the
County, or where the Franchisee's facilities could not reasonably have been
located or anticipated to require relocation, the County shall give the
Franchisee written notice as soon as practicable;and
B.Provide the Franchisee with copies of pertinent portions of the plans and
specifications for such improvement project and a proposed location for the
Franchisee's facilities so that the Franchisee may relocate its facilities in other
County rights-of-way in order to accommodate such improvement project.
C. After receipt of such notice and such plans and specifications,the Franchisee
shall complete relocation of its facilities at least ten (10) days prior to
commencement of the County's project at no charge or expense to the County.
Relocation shall be accomplished in such a manner as to accommodate the
County's project. In the event of an emergency, the Franchisee shall relocate
its facilities within the time period specified by the County Engineer.
8.5 The Franchisee may, after receipt ofwritten notice requesting a relocation of its
facilities,submit to the County written alternatives to such relocation.The County shall evaluate
such alternatives and advise the Franchisee in writing if one or more of the alternatives is suitable
to accommodate the work,which would otherwise necessitate relocation of the facilities.If so
requested by the County, the Franchisee shall submit additional information to assist the County
in making such evaluation. The County shall give each alternative proposed by the Franchisee
full and fair consideration.In the event the County ultimately determines that there is no other
reasonable or feasible alternative, the Franchisee shall relocate its facilities as otherwise provided
in this Section.
8.6 The provisions of this Section shall in no manner preclude or restrict the Franchisee
from making any arrangements it may deem appropriate when responding to a request for
relocation of its facilities by any person or entity other than the County,where the facilities to be
constructed by said person or entity are not or will not become County-owned,operated or
maintained facilities,provided that such arrangements do not unduly delay any County
construction projects.
8.7 Franchisee shall be responsible for timely relocation of its facilities and coordination
of relocation with the County or the Contractor for the project. The Franchisee shall be fully
responsible for the costs of any delays to County projects resulting from relocations of the
Franchisee's facilities. Franchisee shall hold harmless,indemnify and defend the County against
all claims, lawsuits, or damages caused in whole or in part by location or relocation of
Franchisee's facilities-including,but not limited to, problems,accommodations and delays, and
Page 9
including negligent or intentional acts or omissions of the Franchisee,its agents, officers and
employees, as more fully set forth in Section 14 of this franchise ordinance.
Section 9.Undergrounding of Facilities.
9.1 In any area ofthe County in which there are no aerial facilities, or in any area in
which telephone, electric power wires or other cables have been placed underground,the
Franchisee shall not be permitted to erect poles or to run or suspend wires, cables or other
facilities thereon, but shall lay such wires, cables or other facilities underground in the marmer
required by the County. The Franchisee acknowledges and agrees that, even if the County does
not require the undergrounding of its facilities at the time of right-of-way use permit application,
the County may, at any time in the future, require the conversion of the Franchisee's aerial
facilities to underground installation at the Franchisee's expense.
9.2 Whenever the County may require the undergrounding of the aerial facilities in any
area of the County, the Franchisee shall underground its aerial facilities in the manner specified
by the County,concurrently with and in the area of the other affected facilities. Where other
facilities are present or proposed and involved in the undergrounding project,the Franchisee
shall only be required to pay its fair share of common costs borne by all facilities, in addition to
the costs specifically attributable to the undergrounding of the Franchisee's own facilities.
"Common costs" shall include necessary costs not specifically attributable to the installation or
undergrounding of any particular facility, such as costs for common trenching and utility vaults.
"Fair share" shall be determined for a project on the basis of the number and size of the
Franchisee's facilities being installed or undergrounded in comparison to the total number and
size of all other utility facilities being installed or undergrounded.
9.3 Aerial facilities shall be permitted in areas of scenic beauty when other utility locations
are not available, are not technically feasible,result in adverse enviromnental consequences,are
unreasonably costly, or are less desirable from the standpoint of visual quality.
Section 10. Maintenance of Facilities.
10.1 The Franchisee shall maintain its facilities in accordance with accepted standards of
practice.
10.2 The Franchisee shall take necessary steps to maintain a reasonably clear area around all
objects permitted and installed within county road right-of-way. A minimum of five (5) feet of
clearance will be maintained around each object so as to provide clear visibility for County
operations and maintenance.If the Franchisee intends to use chemical sprays to control or kill
weeds and brush, the County must grant prior approval at least armually. The County may limit
or restrict the types, amounts, and timing of applications if a significant negative impact on the
Page 10
aesthetics of the area is anticipated,provided such limitations or restrictions are not in conflict
with State law governing utility right-of-way maintenance.
10.3 The Franchisee shall comply with Title 7.53 SCC,Water Pollution Control.In addition,
Franchisee agrees that it will not cause nor permit in any manner,including negligent or
intentional acts or omissions,release of any hazardous substance,waste,or pollutant or
contaminant into or upon any county road or right-of-way contrary to any state or federal law or
local regulation with respect thereto.Franchisee shall notify the Washington State Department of
Ecology and Snohomish County in writing immediately upon any such release.Franchisee shall
indemnify,hold harmless,defend and covenant not to sue the County, from and against any and
all claims, actions or suits in equity or at law and any judgments,damages,awards,penalties or
fines,including reasonable attorneys'fees and costs incurred in the defense thereof,arising out of
the release or spill of any such hazardous materials,dangerous waste, or pollutant within the
County right-of-way or on private property.Franchisee shall be responsible for completely
cleaning up and remediating,as required by any government agency, any and all hazardous
materials,dangerous waste or pollutants released or spilled within the County right-of-way or on
private property. The County shall be entitled to indemnification by Franchisee for all costs
incurred by it as the result of any release or spill of such materials by Franchisee,its agents,
officials,officers and employees.
10.4 Upon any release or spill of any such substance mentioned herein, the County may give
notice of intent to immediately terminate this franchise and, where it deems necessary to protect
the public health,safety and welfare, the County may immediately take whatever steps it deems
necessary and advisable to contain,clean up or remediate the release or spill. The County shall be
entitled to repayment from the Franchisee of any costs or expenses incurred in responding to such
a release or spill.
Section 11.Dangerons Conditions,Authority for County to Abate.
11.1 Whenever the Franchisee's excavation,construction,installation,relocation,
maintenance,repair,abandonment,or removal of facilities authorized by this franchise has
caused or contributed to a condition that substantially impairs,in the opinion of the County
Engineer, the lateral support of the adjoining road or public place, or endangers the public,an
adjoining public place, road facilities or County property,the County Engineer may direct the
Franchisee,at the Franchisee's own expense, to take actions to protect the public,adjacent public
places,County property or road facilities, and such action may include compliance within a
prescribed time.
11.2 In the event that the Franchisee fails or refuses to promptly take the actions directed
by the County, or fails to fully comply with such directions,or if emergency conditions exist
which require immediate action, the County may enter upon the property and take such actions as
are necessary to protect the public, the adjacent roads, or road facilities,or to maintain the lateral
Page 11
support thereof,or actions necessary to ensure the public safety, and the Franchisee shalI be
liable to the County for the costs thereof.
Section 12.Abandonment of the Franchisee's Facilities.
12.I No facilities located in the right-of-way by the Franchisee may be abandoned in place
by the Franchisee without the express agreement and written consent of the County.Any plan for
abandonment or removal of the Franchisee's facilities must be first approved by the County
Engineer,and alI necessary permits must be obtained prior to such work.
12.2 In the event Franchisee decides to discontinue using and abandons any of its
facilities,or the County reasonably determines,after making good faith attempts to contact the
Franchisee to ascertain the status ofthe facilities,that Franchisee has discontinued using and
abandoned any facilities,or that the facilities should be abandoned,or both parties have
negotiated in good faith but no franchise has been obtained therefor upon expiration of this
franchise,or within one hundred eighty (180) days after any termination of this franchise,
Franchisee shall, at its sole cost and as directed by the County,purge its facilities of any product
and hazardous or other additive substances rendering them safe in accordance with applicable law
or standards deemed appropriate by the County.Abandoning facilities in place shall not relieve
the Franchisee of the obligation and/or costs to remove or alter such facilities in the event the
County determines and requests Franchisee,in writing,to remove or alter such facilities as is
necessary for the installation,operation or maintenance of any County road or related utilities or
facilities,including,but not limited to,drainage facilities,or for the health and safety of the
public,in which case the Franchisee shalI perform such work in a timely manner at no cost to the
County. In the event Franchisee does not perform such work within a reasonable time folIowing
written notice from the County,the County may do,order,have done,any and alI work on such
abandoned facilities,and the Franchisee,upon demand,shalI pay to the County all costs of such
work.Franchisee shalI be responsible for any environmental review required for the abandonment
of any facility and payment of any costs of such environmental review.
Section 13.Fees,Compensation for Use of Rights-of-Way,and Taxes.
13.1 The Franchisee shalI be subject to alI permit fees associated with activities
undertaken through the authority granted in this franchise ordinance or under the laws of the
County.Where the County incurs costs and expenses for review,inspection or supervision of
activities undertaken through the authority granted in this franchise or any ordinances relating to
the subject for which a permit fee is not established,the Franchisee shall pay the reasonable
actual costs and expenses directly to the County.
13.2 The Franchisee warrants that the facilities proposed to be placed in the public rights-
of-way under this franchise are not for the purposes of providing telecommunications services or
Page 12
for a cable system or an open video system as those terms are defined by the federal
Communications Act of 1934, as amended.
13.3 The County hereby reserves the right to impose a franchise fee or fee in lieu of a
franchise fee on the Franchisee for purposes other than to recover its actual costs and
administrative expenses,if the Franchisee's operations change so that the facilities placed or
proposed to be placed in the public rights-of-way under this franchise are used for a cable system
or an open video system as defined by federal law. The County also reserves its right to require
that the Franchisee obtain a separate franchise for its change in use,which franchise may include
provisions intended to regulate the Franchisee's operations,as allowed under applicable law.
Such separate franchise may include,but is not limited to, a franchise for a cable system as
allowed under federal law.
13.4 The County hereby reserves the right to fix a fair,competitively neutral, non-
discriminatory,and reasonable compensation to be paid for the use of public rights-of-way
pursuant to this franchise. Any regulatory fees and/or compensation paid for use of the public
right-of-way are separate from, and additional to, any federal, state and local taxes that may be
levied, imposed, or due from any telecommunications carrier or provider,its customers or
subscribers, or on account of the lease, sale, delivery,right-of-use,or transmission of
telecommunications services, and shall not be considered a tax.
13.5 The County's reservation of the right to require franchise authorization and to obtain
fair and reasonable compensation for use of public right-of-way from persons,utilities,
telecommunications carriers (including telephone businesses),providers of cable services, open
video systems, or other services utilizing facilities placed within public rights-of-way,applies
regardless of whether those providers own, lease, license, or otherwise obtain access to facilities
through arrangements or agreements, including, but not limited to,indefeasible right of use
agreements.
13.6 The Franchisee shall pay applicable fees as specified in Chapter 13.110 SCC to cover
the County's costs in drafting and processing this franchise and all work related thereto. The fee
shall be paid at the time of acceptance of this franchise as set forth in Section 32 and this
franchise shall not become effective until payment of the fee. The Franchisee shall further be
subject to all permit fees associated with activities undertaken through the authority granted in
this franchise or under the laws of the County. Where the County incurs costs and expenses for
review,inspection or supervision of activities undertaken through the authority granted in this
franchise or any ordinances relating to the subject for which a permit fee is not established,the
Franchisee shall reimburse the County directly for any and all costs at the County's standard
rates.
13.7 In addition, the Franchisee shall reimburse the County for any and all documented
costs the County reasonably incurs in response to an emergency involving the Franchisee's
Page 13
facilities. The Franchisee shall promptly reimburse the County, upon submittal by the County of
an itemized billing, for the Franchisee's proportionate share of all actual,identified costs and
expenses incurred by the County in repairing any County facility, or altering such County facility
if at the Franchisee's request, as the result of the presence ofthe Franchisee's facilities in the
right-of-way. Such costs and expenses shall include, but not be limited to, the Franchisee's
proportionate share of the costs of County personnel assigned to oversee or engage in any work
in the right-of-way as a result of the presence of the Franchisee's facilities in the right-of-way.
Such costs and expenses shall also include the Franchisee's proportionate share of County time
spent reviewing construction plans in order to either accomplish the relocation of the
Franchisee's facilities or the routing or rerouting of any utilities so as not to interfere with the
Franchisee's facilities. Any and all costs will be billed on an actual cost basis.The billing may
be on an annual basis, but the County shall provide the Franchisee with the County's itemization
of costs at the conclusion of each project for information purposes.
13.8 The Franchisee acknowledges that it may be subject to State and local taxes,
including personal property tax. The Franchisee shall keep such tax accounts current as a special
condition of this franchise agreement.
Section 14. Hold Harmless and Indemnification.
14.1 The Franchisee shall assume the risk of, be liable for, and pay all damage, loss, cost
and expense of any party arising out ofthe Franchisee's use of the right-of-way,to the extent of
their negligent actions, errors, omissions, or breach of any obligations. The Franchisee hereby
releases,covenants not to bring suit, and agrees to indemnify,defend and hold harmless the
County, its elected and appointed officials, officers, employees, agents and representatives from
any and all claims, costs,judgments,awards, or liability to any person,including claims by the
Franchisee's own employees for which the Franchisee might otherwise be immune under Title 51
RCW, for injury or death of any person or damage to property caused by or arising out of the
negligent acts or omissions of the Franchisee,its agents, servants, officers or employees in the
performance of this franchise, and any rights granted hereunder.
14.2 The Franchisee shall hold harmless from and indemnify the County, its elected and
appointed officials, officers, employees, and volunteers,against all claims,demands,losses,
suits, actions, costs, counsel fees,litigation costs, expenses, damages,judgments,or decrees by
reason of damage to any property or business and/or any death,injury or disability to or of any
person or party of any nature arising out of or suffered,directly or indirectly, in whole or in part,
from the actions, errors,omissions,or breach of any common law, statutory,regulatory or
contractual obligations in connection with the activities ofthe Franchisee,its sub-contractors,
assigns, agents, contractors, or employees, under this franchise, any permit under County code, or
in connection with the use ofthe right-of-way;PROVIDED that nothing herein shall require the
Franchisee to hold harmless from and indemnify the County, its elected and appointed officials,
officers, employees, arid volunteers,against claims, demands, or suits based solely upon the
Page 14
negligence of the County, its elected and appointed officials, officers, employees, and volunteers;
and PROVIDED FURTHER,that if the claims, demands, or suits are caused by or result from
the concurrent negligence of (a) the County, its elected and appointed officials, officers,
employees, and volunteers and (b)the Franchisee, its sub-contractors,assigns, agents,
contractors,or employees, and involve those actions covered by RCW 4.24.115,this indemnity
provision,with respect to liability for damages arising out of bodily injury to persons or damage
to property based upon such concurrent negligence, shall be valid and enforceable only to the
extent of the Franchisee's negligence or the negligence of their sub-contractors,assigns, agents,
contractors,or employees, except as limited below. This indemnification provision constitutes
the Franchisee's waiver of immunity under Title 51 RCW,solely for the purposes of this
indemnification.This waiver has been mutually negotiated by the parties.
14.3 The Franchisee further agrees to process and defend at its own expense all claims,
demands, or suits at law or equity arising in whole or in part from the actions, errors,omissions,
or breach of any obligations of the Franchisee,its sub-contractors,assigns, agents, contractors, or
employees, arising out of or in connection with any activities related to this franchise or the
Franchisee's use of the right-of-way. The Franchisee's duty to assume the defense and to pay all
expenses thereof shall apply to all claims or allegations of negligence where any duty to provide
indemnification in whole or in part potentially applies,whether or not the injuries or damages are
ultimately found to be due to the negligence of the Franchisee arising out of the franchise or any
use of the right-of-way.
14.4 In the event that the Franchisee refuses the tender of defense in any suit or any claim,
said tender having been made pursuant to the indemnification provision contained herein, and
said refusal is subsequently determined by a court having jurisdiction (or such other tribunal that
the parties shall agree to decide the matter), to have been a wrongful refusal on the part of the
Franchisee,then the Franchisee shall pay all of the County's costs for defense of the action,
including all expert witness fees, costs, and reasonable attorney's fees,including costs and fees
incurred in recovering under this indemnification provision.
14.5 Inspection or acceptance by the County of any work performed by the Franchisee at
the time of completion of construction shall not be grounds for avoidance by the Franchisee of
any of its obligations under this Section.
Section 15. Limitation of County Liability.
Administration of this franchise shall not be construed to create the basis for any liability on the
part of the County, its elected and appointed officials, officers, employees, and agents for any
injury or damage from the failure of the Franchisee to comply with the provisions of this
franchise;by reason of anyplan, schedule or specification review,inspection,notice and order,
permission,or other approval or consent by the County; for any action or inaction thereof
Page 15
authorized or done in connection with the implementation or enforcement of this franchise by the
County; or for the accuracy of plans submitted to the County.
Section 16. Insurance.
16.1 The Franchisee shall procure and maintain for the duration of the franchise,
insurance against claims for injuries to persons or damages to property which may arise from or
in connection with the exercise of the rights,privileges and authority granted by this franchise
and right-of-way use permits to the Franchisee,its agents,representatives or employees. The
Franchisee shall provide a certificate of insurance to the County for its inspection prior to the
adoption of this franchise ordinance, and such insurance shall include:
A.Automobile Liability insurance with limits no less than $1,000,000 Combined
Single Limit per occurrence for bodily injury and property damage; and
B.Commercial General Liability insurance,written on an occurrence basis with
limits no less than $1,000,000 combined single limit per occurrence and
$2,000,000 aggregate for personal injury,bodily injury and property damage.
Coverage shall include, but not be limited to:blanket contractual;products and
completed operations; broad form property damage;explosion,collapse and
underground (XCD); and employer's liability.
16.2 The insurance policies obtained by the Franchisee shall name the County (its elected
and appointed officers, officials, employees, agents, and volunteers)as an additional insured with
regard to activities performed by or on behalf of the Franchisee.The coverage shall contain no
special limitations on the scope of protection afforded to the County, its elected and appointed
officers, officials, employees, agents, or volunteers.In addition, the insurance policy shall
contain a clause stating that coverage shall apply separately to each insured against whom claim
is made or suit is brought,except with respect to the limits of the insurer's liability. The
Franchisee's insurance shall be primary insurance as respects the County, its elected and
appointed officers, officials, employees, agents and volunteers.Any insurance maintained by the
County, its elected and appointed officials, officers, employees, agents or volunteers shall be
excess of the Franchisee's insurance and shall not contribute with it. The insurance policy or
policies required by this clause shall be endorsed to state that coverage shall not be suspended,
voided,canceled by either party, reduced in coverage or in limits except after thirty (30) days
prior written notice by certified mail, return receipt requested, has been given to the County.
16.3 The complete policy with all endorsements shall be provided to'the County upon
request. Any deductibles or self-insured retentions must be declared to and approved by the
County.Payment of deductible or self-insured retention shall be the sole responsibility of the
Franchisee.Proof of all insurance shall be in a form acceptable to the County Finance Director.
Any insurance provider shall be authorized to do business in Washington.If the Franchisee is
Page 16
self-insured,Franchisee shall provide such information as required by the County Finance
Director sufficient to demonstrate its ability to meet the requirements ofthis Section. All
insurance documentation shall be submitted and reviewed by the County Executive prior to final
execution of the franchise.
16.4 Any failure to comply with the reporting provisions of the policies required herein
shall not affect coverage provided to the County, its elected and appointed officials,officers,
employees, agents or volunteers.
Section 17.Bond or Performance Security.
Before undertaking any ofthe work,installation,improvements,construction,repair,relocation
or maintenance authorized by this franchise and the separate right-of-way use permit under
Section 3 the Franchisee shall, upon the request ofthe County, furnish a bond executed by the
Franchisee 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 County Engineer as sufficient to ensure performance of
the Franchisee's obligations under this franchise generally and under any specific right-of-way
use permits or approvals. The bond shall be conditioned so that the Franchisee shall observe all
the covenants, terms and conditions and faithfully perform all of the obligations of this franchise
and any right-of-way use permits or approvals, and to correct or replace any defective work or
materials discovered in the replacement of the County's roads or property within a period of two
(2) years from the date of the replacement and acceptance of such repaired roads, facilities, or
property by the County. The County may from time to time review the amount of surety and
determine an appropriate level based upon Franchisee's facilities and the Franchisee's
performance of the covenants, terms,conditions and obligations under this franchise and any
right-of-way use permits or approvals.
Section 18.Modification.
The County hereby reserves the right to alter, amend or modify the terms and conditions of this
franchise upon written agreement of both parties to such alteration,amendment or modification.
Nothing in this Section shall affect the right of the County to modify the terms and conditions of
this franchise in accordance with any other Section of this franchise, including, but not limited to,
sections 1, 26, and 27.
Section 19.Annexation.
If anyroad or right-of-way covered by this franchise is incorporated into the limits of any city or
town, this franchise shall terminate as to any road or right-of-way within the corporate limits of
such city or town; but this franchise shall continue as to County roads and rights-of-way not
incorporated into a city or town.
Page 17
Section 20. Vacation.
20.1 If the County vacates all or a portion of any County road or right-of-way which is
subject to this franchise, the County Council may, at its option and by giving thirty (30) days'
written notice to the Franchisee,terminate this franchise with reference to any County road or
right-of-way so vacated, and the County shall not be liable for any damages or loss to the
Franchisee by reason of such termination.
20.2 Whenever a county road or right-of-way or any portion thereof is vacated upon a
finding that it is not useful and the public will be benefited by the vacation, the County may
retain an easement with respect to the vacated land for the construction,repair and maintenance
of public utilities and services which at the time ofthe vacation are specifically authorized or are
physically located on a portion of the land being vacated, but only in accordance with the
provisions ofRCW 36.87.140 as now existing or hereafter amended. It shall be the
responsibility of the Franchisee to request that the County Council specifically include a
provision retaining an easement with respect to any proposed Council action on a particular
vacation. The County shall not be liable for any damages or loss to the Franchisee by reason of
any such vacation.
Section 21. Assignment.
This franchise authorizing use of public rights-of-way may not be leased, sold,transferred,
assigned,disposed of, or subject to a change of control, in whole or in part, in any manner
without the prior written consent of the County Council.In the case of transfer or assignment as
security by mortgage or other security instrument in whole or in part to secure indebtedness,
consent shall not be required unless and until the secured party elects to realize upon the
collateral. The Franchisee shall provide prompt,written notice to the County of any such
assignment.
Section 22. Termination, Revocation and Forfeiture.
22.1 If the Franchisee defaults on any term or condition of this franchise, the County
Council may terminate this franchise as provided in Title 13 SCC.Upon termination for any
cause, all rights of the Franchisee granted hereunder or under any right-of-way use permit shall
cease, and the Franchisee shall immediately commence to remove its facilities from the roads and
rights-of-way.
22.2 If the Franchisee willfully violates or fails to comply with any of the provisions of
this franchise, or through willful misconduct or gross negligence fails to heed or comply with any
notice given the Franchisee by the County under the provisions of this franchise, then the
Franchisee shall, at the election ofthe Snohomish County Council, forfeit all rights conferred
Page 18
hereunder and this franchise may be revoked or annulled by the Council after a hearing held upon
notice to the Franchisee.
22.3 In the event that the use of all or any part of the Franchisee's facilities is
discontinued for any reason, including, but not limited to,discontinuance,obsolescence,or
abandonment of the facility, or the abandonment,termination,expiration,revocation,or
forfeiture of this franchise, the Franchisee is solely responsible for the removal and proper
disposal of all facilities. The Franchisee is not entitled to abandon any facilities in place without
the County's prior written consent in accordance with Section 12 of this franchise. The
Franchisee shall restore the county roads and rights-of-way from which any facilities have been
removed in accordance with Section 6 of this franchise.
Section 23.Remedies to Enforce Compliance.
The County may elect, in lieu of the above and without any prejudice to any of its other legal
rights and remedies, to obtain an order from the Superior Court or other court,tribunal,or agency
having competent jurisdiction compelling the Franchisee to comply with the provisions of this
franchise and to recover damages and costs incurred by the County by reason of the Franchisee's
failure to comply.In addition to any other remedy provided herein, the County reserves the right
to pursue any remedy to compel or force the Franchisee and/or its successors and assigns to
comply with the terms hereof, and the pursuit of any right or remedy by the County shall not
prevent the County from thereafter declaring a forfeiture or revocation for breach of the
conditions herein.
Section 24.Nonwaiver of Rights or Remedies.
Failure of the County to exercise any rights or remedies under this franchise shall not be a waiver
of any obligation by the County and shall not prevent the County from pursuing that right at any
future time.
Section 25.Records.
The Franchisee shall maintain adequate records to document obligations performed under this
franchise. The County shall have the right to review the Franchisee's records, at reasonable
times,with regard to the subject matter of this franchise,upon reasonable notice. The right to
review records shall last for six (6) years from the termination date of this franchise,including
any extensions or renewals.In addition to the maps and records of facility location under Section
7, the Franchisee shall provide the County,upon the County's request, with copies of records of
construction,maintenance,operation,inspections,or regulatory compliance for all facilities
subject to this franchise as deemed necessary by the County to manage the county roads, rights-
of-way, or other property, or to protect the public health, safety, and welfare.Nothing in this
Page 19
Section 25 shall be construed to require Franchisee tb violate state or federal law concerning
subscriber privacy, nor shall this Section be construed to require Franchisee to disclose
proprietary or confidential information without adequate safeguards for its confidential or
proprietary nature.
Section 26.County Ordinances and Regulations -Reservation of Police Power.
Nothing in this franchise shall be deemed to restrict the County's ability to adopt and enforce all
necessary and appropriate ordinances regulating the performance of the conditions of this
franchise, including,but not limited to, any valid ordinance made in the exercise of its police
powers in the interest of public safety and for the welfare of the public. The County shall have
the authority at all times to control by appropriate regulations,including design standards,and
utility accommodation policies, the location, elevation, marmer of construction,and maintenance
of any facilities of the Franchisee within the right-of-way or affecting the right-of-way,and the
Franchisee shall promptly conform with all such regulations,unless compliance would cause the
Franchisee to violate other requirements oflaw.In the event of a conflict between the regulatory
provisions of this franchise and any other ordinance(s)enacted under the County's police power
authority, such other ordinance(s) shall take precedence over the regulatory provisions set forth
herein.
Section 27.Eminent Domain,Powers ofthe People.
This franchise is subject to the power of eminent domain and the right of the County Councilor
the people acting for themselves through the initiative or referendum to repeal,amend or modify
the franchise in the interest of the public. In any proceeding under eminent domain, the franchise
itself shall have no value.
Section 28.Survival.
All of the provisions,conditions and requirements of Sections 3,Right-of-Way Use Permit
Required for All Work in Right-of-Way;6,Restoration of Right-of-Way;8,Relocation of
Facilities; 9,Undergrounding of Facilities; 11,Dangerous Conditions,Authority for County to
Abate; 12,Abandonment of the Franchisee's Facilities 14,Hold Harmless and Indemnification;
and 25, Records; 29, Governing Law and Stipulation of Venue,of this franchise shall be in
addition to any and all other obligations and liabilities the Franchisee may have to the County at
common law, by statute, or by contract, and shall survive the expiration,revocation,termination,
or forfeiture of the County's franchise to the Franchisee as defined in Section 1herein, and any
renewals or extensions thereof. All of the provisions,conditions,regulations and requirements
contained in this franchise ordinance shall further be binding upon the successors and assigns of
the Franchisee and all privileges,as well as all obligations and liabilities of the Franchisee shall
inure to its successors and assigns equally as if they were specifically mentioned wherever the
Franchisee is named herein.
Page 20
Section 29.Governing Law and Stipulation of Venue.
This franchise and use of public rights-of-way shall be governed by the laws ofthe State of
Washington,unless preempted by federal law. The Franchisee agrees to be bound by the laws of
the State of Washington and subjected to the jurisdiction ofthe Courts ofthe State of
Washington.Any action relating to this franchise must be brought in the Superior Court of
Washington for Snohomish County, or in the case of a federal action, the United States District
Court for the Western District of Washington at Seattle, unless an administrative agency has
primary jurisdiction.
Section 30.Severability.
If any section, sentence, clause or phrase of this franchise or its application to any person or
entity should be held to be invalid or unconstitutional by a court of competent jurisdiction,such
invalidity or unconstitutionality shall not affect the validity or constitutionality of any other
section, sentence, clause or phrase of this franchise nor its application to any other person or
entity.
Section 31.Notice and Emergency Contact.
Any notice or information required or permitted to be given to the parties under this franchise
agreement may be sent to the following addresses unless otherwise specified:
SNOHOMISH COUNTY
Department of Public Works
2930 Wetmore Ave.
Everett, WA 98201
Attn. Franchises &Right-of-Way Use Permits
Phone: (425) 388-3488
City of Marysville
Department of Public Works
80 Columbia Avenue
Marysville, WA 98270
Attn.Robin Nelson,City Engineer
Phone:360-651-5100
The Franchisee shall also provide the County a current emergency contact name (or title) and
phone number available 24 hours a day, seven days a week. The Franchisee shall promptly
notify the County of any change in the notice address or emergency contact name (or title) and
phone number.
Section 32.Acceptance.
Within thirty (30) days after the passage and approval of this Ordinance,this franchise may be
accepted by the Franchisee by its filing with the County Clerk an unconditional written
acceptance thereof. Failure of the Franchisee to so accept this franchise within said period of
time shall be deemed ~rejection thereofby the Franchisee, and the rights and privileges herein
Page 21
granted shall, after the expiration ofthe thirty (30) day period,absolutely cease and terminate,
unless the time period is extended by ordinance duly passed for that purpose.
Section 33.Effective Date.
This ordinance shall take effect only upon satisfaction of the following conditions,but not sooner
than ten (10)days after sigoature by the County Executive (or ten days after the ordinance is
otherwise enacted):(1)the Franchisee sigos a copy of this franchise and returns it to the County
Council within the time provided in Section 32; (2) the Franchisee presents to the County
acceptable evidence of insurance and security as required in this franchise; and (3)the Franchisee
pays all applicable fees set forth in Subsection 13.6 above.
Section 34.Repealer.
This ordinance supersedes and repeals the following Ordinance passed by County Council
Granting Franchises to the City of Marysville:Amended Ordinance 01-022 passed on May 2,
2001,AF#200107231059;Amended Ordinance 91-080 passed on June 19, 1991,
AF#91 08070551;Amended Ordinance 84-008 passed on April 2, 1984 and Ordinance 83-031
passed on April 4, 1983.
PASSED this /(,-t.!day of O~),2002.
SNOHOMISH COUNTY COUNCIL
Sno mish County,Washington
County Executive
~Ot-2/02 .
GARY WEIKEL
Deputy Executive
Q0 APPROVED
()VETOED
()EMERGENCY
ATTEST:
kLlMJJ~
Page 22 JJ-7
Approved as to Form Only:
~loeM-J
The Provisions of this franchise are agreed to and hereby accepted. By accepting this franchise,
the City of Marysville covenants and agrees to perform and be bound by each and all of the terms
and conditions imposed by the Charter and Code of the County and this franchise.
Dated:
CERTIFICATION OF COMPLIANCE WITH CONDITIONS AND EFFECTIVE DATE:
I certify that I have received confirmation that: (1) the Franchisee returned a signed copy of this
franchise to the County Council within the time provided in Section 32; (2) the Franchisee has
presented to the County acceptable evidence of insurance and security as required in Section 16
ofthis franchise; and (3) the Franchisee has paid all applicable processing costs and fees set forth
in Subsection 13.6 of the franchise ordinance.
THE EFFECTIVE DATE OF THIS FRANCHISE ORDINANCE IS:4~3
Page 23
RECORDER'S ~~"cE~MENI SNOHOMISH COUNTY COUNCIL
PORTIONS OFLTI:VI~OR SCANNING.Snohomish County, Washington
ARE POOR QUA
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After Recording Return To:
Barbara Sikorski.Asst.Clerk of the Council
Snohomish County Council
MIS 609
3000 Rockefeller
Everett,WA 98201
Grantor:Snohomish County
Grantee:City of Marysville
Tax Account No.:
Legal Description:
Ref.#of Docs.Affected:
Document Title:
I111111 11111 11111 1111111111 1111111111 1111I ""I""I1111111111 1111 1111
eeea ..,,"'....200107231059
07/23/2001 04:07 PM Snohomish
P.0026 RECORDED County
Not Applicable
Sections,Townships,and Ranges covered listed in §1.5, page 4.
NIA
An Ordinance of Snohomish County Council Granting a Nonexclusive Franchise
Authorizing Limited Use of Public Road Rights-of-Way in Snohomish County,Washington,
to City of Marysville.
AMENDED ORDINANCE NO. 01 - 022
AN ORDINANCE OF THE SNOHOMISH COUNTY COUNCIL GRANTING
A NONEXCLUSIVE FRANCHISE AUTHORIZING LIMITED USE OF THE
PUBLIC ROAD RIGHTS-OF-WAY IN SNOHOMISH COUNTY,
WASHINGTON,TO THE CITY OF MARSYVILLE
WHEREAS,the City of Marysville has applied to Snohomish County, Washington for a
nonexclusive franchise to construct, maintain, operate, replace and repair water and sewer
transmission facilities in, on, across, over, along, under, or through public rights-of-way within
unincorporated Snohomish County; and
WHEREAS,The Washington State Constitution, by and through its general grant of police
power, and Section 36.55.010 of the Revised Code of Washington authorize counties to grant
franchises for use of public rights-of-way; and
WHEREAS,Title 13 of the Snohomish County Code specifies requirements for franchises in
Snohomish County rights-of-way; and
Amended Ordinance No.0/-022 -Adopted May 2.200/
Page I
WHEREAS, the 1934 Communications Act, as amended by the 1996 Telecommunications Act,
47 USC § 151, et seq., relating to telecommunications providers recognizes and provides state
and local government authority to manage the public rights-of-way and to require fair and
reasonable compensation on a competitively neutral and nondiscriminatory basis; and
WHEREAS, a franchise is a legislative authorization to use public rights-of-way and actual
construction and activities in the rights-of-way will be subject to administratively approved
Right-of-Way Use Permits after review of specific plans; and
WHEREAS, it has been found to be in the public interest for a franchise authorizing use of
public rights-of-way for water and sewer transmission facilities to be issued to the City of
Marysville by enactment of an ordinance;
NOW, THEREFORE, SNOHOMISH COUNTY DOES ORDAIN:
TABLE OF CONTENTS
Section 1.
Section 2.
Section 3.
Section 4.
Section 5.
Section 6.
Section 7.
Section 8.
Section 9.
Section 10.
Section 11.
Section 12.
Section 13.
Section 14.
Section 15.
Section 16.
Section 17.
Section 18.
Section 19.
Section 20.
Section 21.
Section 22.
Section 23.
Franchise Granted -Term and Scope.
Non-Exclusive Franchise Grant.
Right-of-Way Use Permit Required for All Work in Right-of-Way.
Emergency Work -Permit Waiver.
Compliance with Applicable Laws.
Restoration of Right-of-Way.
Maps and Records of Facility Location.
Relocation of Facilities.
Undergrounding of Facilities.
Maintenance of Facilities.
Dangerous Conditions,Authority for County to Abate.
Abandonment of the Franchisee's Facilities.
Fees,Compensation for Use of Rights-of-Way,and Taxes.
Hold Harmless and Indemnification.
Limitation of County Liability.
Insurance.
Bond or Performance Security.
Modification.
Annexation.
Vacation.
Assignment.
Termination,Revocation and Forfeiture.
Remedies to Enforce Compliance.
Amended Ordinance No.0/-022 -Adopted May 2,200/
Page 2
200107231U5~
Section 24.
Section 25.
Section 26.
Section 27.
Section 28.
Section 29.
Section 30.
Section 31.
Section 32.
Section 33.
Nonwaiver of Rights or Remedies.
Records.
County Ordinances and Regulations -Reservation of Police Power.
Eminent Domain,Powers of the People.
Survival.
Governing Law and Stipulation of Venue.
Severability.
Notice and Emergency Contact.
Acceptance.
Effective Date.
Section 1.Franchise Granted -Term and Scope.
1.1 Pursuant to Section 36.55.010 of the Revised Code of Washington (RCW) and
Chapter 13.80 of the Snohomish County Code (SCC),Snohomish County, a political subdivision
ofthe State of Washington (hereinafter the "Franchisee"),hereby grants to the City of
Marysville,a municipal corporation ofthe State of Washington (hereinafter the "Franchisee"),
subject to the terms and conditions in the County code, the Engineering Design &Development
Standards (EDDS) and this franchise ordinance, a non-exclusive franchise.
1.2 The term of this franchise shall be for a period of five (5) years, beginning on the
effective date of this franchise, unless terminated,revoked or modified under the provisions of
this franchise.This franchise shall be automatically renewed for additional five (5) year terms,
up to a total of fifteen (15) years from the effective date of this franchise, UNLESS, not less than
sixty (60) days prior to the termination of the current term or extension, the County gives notice
of its intention to renegotiate the terms or conditions of the franchise, in which case, the franchise
shall not renew unless and until the County and the Franchisee reach agreement on terms and
conditions acceptable to both parties.lfthe County and the Franchisee are unable to reach
agreement on new terms and conditions, the franchise shall terminate and the Franchisee shall
remove its facilities from the County rights-of-way unless otherwise allowed under section 12.
1.3 At any time after the fifth (5th)anniversary date of this franchise, the County may
direct the Franchisee to meet and discuss in good faith amendments to this franchise or enter into
separate agreements, provided that in the event that mutual agreement is not attained, the County
may schedule before the County Council the consideration of such amendments and the County
Council may take such action as it deems appropriate. The authority ofthe County to consider
mutually agreed amendments and, after the initial five (5) year period, to consider and take
unilateral action on amendments in the event the parties do not reach mutual agreement, shall be
in addition to, and shall in no way limit, the ability of the County to make amendments and
changes to the franchise conditions, negotiate renewals or extensions of the franchise term, or
Amended'Ordinance No.OJ -022 -Adopted May 2,200 J
Page3
2001 U.7 2 3 1 u 5 U
•
take action pursuant to any other sections of this franchise, including, but not limited to,sections
18,26 and 27.
1.4 This franchise grants the Franchisee the right,privilege and authority to locate,
construct,operate,maintain, replace and use its facilities,including all necessary equipment and
facilities appurtenant thereto (referred to as "facilities"),for a water and sewer facility in, on,
across, over, along, under or through the public rights-of-way of the County,subject to all
applicable provisions of Title 13 SCC (including EDDS),chapter 36.55 RCW, and the terms and
conditions of County right-of-way use permits issued pursuant to Title 13 SCC and Section 3 of
this franchise."Public rights-of-way" as used herein means all public streets, roads, ways, or
alleys of the County as now or hereafter laid out, platted, dedicated or improved.This franchise
merely authorizes the Franchisee to occupy and use the public rights-of-way within the County
and nothing contained herein shall be construed to grant or convey any right, title, or interest in
or to such public rights-of-way to the Franchisee.
1.5 This franchise covers public rights-of-way in the unincorporated areas of Snohomish
County located within Sections 34 and 35 in Township 30 North and Section 2, 3 and II in\/---
Township 29 North all in Range 5 East, W.M. As described in Exhibit A attached hereto.
Section 2.Non-Exclusive Franchise Grant.
2.1 This franchise is granted upon the express condition that it shall not in any manner
prevent the County from granting other or further franchises in, on, across, over, along,under or
through any rights-of-way.Such franchise shall in no way prevent or prohibit the County from
using any of said roads, right-of-way or other public properties or affect its jurisdiction over them
or any part of them, and the County shall retain power to make all necessary changes,
relocations,repairs, maintenance, establishment,improvement,dedication, or vacation of the
same as the County may deem fit, including the dedication,establishment,maintenance,and
improvement of all new rights-of-way,thoroughfares and other public properties of every type
and description.
2.2 All of the Franchisee's facilities located and operated within the right-of-way and all
work undertaken on any road right-of-way shall be done in such a manner so as to not interfere
with the public use of the county road and right-of-way for transportation and other
governmental purposes, the construction and maintenance of other authorized facilities or
improvements,public or private, nor the operation,maintenance or improvement of any county
road,right-of-way,or other public properties. Owners, public or private,of any authorized
facilities installed prior to construction and/or installation of Franchisee's facilities shall have
preference as to positioning and location of their facilities, subject to the authority of the County
Road Engineer to direct position and location of all facilities in the right-of-way.
Amended Ordinance No. 01-022 -Adopted May 2,2001
Page 4
20u 1.lJ 7231 u 59
Section 3.Right-of-Way Use Permit Required for All Work in Right-of-Way.
3.1 No work within county road right-of-way shall be commenced until a right-of-way
use permit has been issued by the County pursuant to Title 13 SCC for a site-specific location or
installation,including, but not limited to, relocations. In addition to the terms and conditions of
this franchise, all work shall be performed in accordance with the current County standards, the
approved plans and specifications, and the terms and conditions of the right-of-way use permit
and other permits and approvals under Title 13 SCC necessary to accomplish the work or
otherwise applicable (e.g., lane closure or road detour permits). The Franchisee shall remain
solely responsible for compliance with all applicable laws, regulations, codes, and standard plans
and specifications in the design and construction of Franchisee's facilities.
3.2 In addition to any criteria set forth in Title 13SCC, the EDDS, and the County's
utility accommodation policies, the County Engineer shall apply the following criteria in
reviewing proposed utility routes and in the issuance, conditioning, or denial of a right-of-way
use permit:
A. the capacity of the public rights-of-way to accommodate the Franchisee's
proposed facilities;
B. the capacity ofthe public rights-of-way to accommodate additional utility, cable,
telecommunications, or other public facilities if the right-of-way use permit is
granted;
C. the damage or disruption,if any, to public or private facilities, improvements,
service, travel, or landscaping if the right-of-way use permit is granted;
D. the public interest in minimizing the cost and disruption of construction within the
public rights-of-way, including, but not limited to, coordination with future utility
installation or county improvement projects;
E. recent construction and/or improvements to the right-of-way and/or proposed
construction and/or improvements to the right-of-way which isproposed for
location of facilities;
F. the availability of alternate routes, locations, and/or methods of construction or
installation for the proposed facilities, including, but not limited to, whether other
routes are preferred; and
G. whether the Franchisee has received all requisite licenses, certificates, and
authorizations from applicable federal, state, and local agencies with jurisdiction
over the activities proposed by the Franchisee.
3.3 During any period of relocation, construction or maintenance, all work performed by
the Franchisee or its contractors shall be accomplished in a safe and workmanlike manner, so as
Amended Ordinance No. 01-022 -Adopted May 2.2001
Page 5
to minimize interference with the free passage of traffic and the free use of adjoining property,
whether public or private. The Franchisee shall at all times post and maintain proper barricades
and comply with all applicable safety regulations during such period of construction as required
by County code, the EDDS, or the laws of the State of Washington,including, but not limited to,
RCW 39.04.180 for the construction of trench safety systems.
3.4 Before any work which.may affect any existing monuments or markers of any nature
relating to subdivisions,plats, roads, or other surveys is performed under this franchise,
Franchisee shall reference all such monuments and markers. Reference points shall be so located
that they will not be disturbed during Franchisee's operations under this franchise. The method
of referencing 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 conditions permit, and as directed by the County Engineer, to
federal, state, and local standards. The cost of monuments or markers lost, destroyed, or
disturbed,and the expense of replacement of approved monuments shall be borne by Franchisee.
A complete set of reference notes for monument and other ties shall be filed with the County.
3.5 If the Franchisee shall at any time plan to make excavations in any area covered by
this franchise, the Franchisee shall, upon receipt of a written request to do so,provide an
opportunity to share such excavation and coordinate utility locations or right-of-way
improvements with the County or other franchised entities,PROVIDED THAT:
A. such joint use shall not unreasonably delay the work of the party causing the
excavation to be made;
B.such joint use shall be arranged and accomplished on terms and conditions
satisfactory to the parties; and
C. the parties may deny such request for safety reasons.
Section 4.Emergency Work -Permit Waiver.
In the event of any emergency in which any ofthe Franchisee's facilities located in, above or
under any right-of-way breaks, becomes damaged, or if the Franchisee's construction area is .
otherwise in such a condition as to immediately endanger the property, life, health or safety of
any individual,the Franchisee shall immediately take such measures as are necessary to repair its
facilities, to cure or remedy the dangerous conditions for the protection of property, life,health or
safety of individuals without first applying for and obtaining a permit as required by County code
and this franchise. However, this shall not relieve the Franchisee from the requirement of
obtaining any permits necessary for this purpose, and the Franchisee shall apply for all such
permits not later than the next business day.
Amended Ordinance No. 01-022 -Adopted May 2.2001
Page 6
Section S.Compliance with Applicable Laws.
5.1 Franchisee shall comply with all federal, state and local laws, rules and regulations
applicable to any work, facility or operation ofthe Franchisee relating to County roads or rights-
of-way during the period of this franchise.
5.2 All work performed by the Franchisee within the public right-of-way and all of
Franchisee's facilities located within the public right-of-way shall comply with the
comprehensive plan, zoning code and development regulations ofthe County.Franchisee's
facilities may require additional project permits and approvals under County land use codes and
development regulations.
5.3 All work shall be performed by the Franchisee in a manner to avoid or minimize
impacts on critical areas contained within the County right-of-way.Prior to commencing any
work in a critical area as defined by chapter 32.10 SCC, the Franchisee shall comply with all
requirements of chapter 32.10 SCC and any other applicable title of the County code and shall
obtain any and all necessary permits and approvals required. The granting of this franchise shall
in no way relieve the Franchisee from its responsibility for avoiding "take"of any threatened or
endangered species as defined by the Endangered Species Act of1973,16USC §1531, et seq.,
as amended, in the performance of any work authorized by this franchise and any right-of-way
use permits.
Section 6.Restoration of Right-of-Way.
6.1 The Franchisee shall, after any excavation,installation,construction, relocation,
maintenance,repair,abandonment approved under Section 12 herein, or removal of its facilities
within the right-of-way, restore the surface ofthe right-of-way to at least the same condition the
property was in immediately prior to any such excavation,installation, construction, relocation,
maintenance, repair, abandonment, or removal and comply with all restoration conditions of
applicable permits or approvals.
6.2 The County Engineer shall have final approval to determine that the condition of such
roads and public places after restoration meets the requirements.The Franchisee agrees to
promptly complete all restoration work and to promptly repair any damage caused by such work
to the right-of-way or other affected areas at its sole cost and expense.
Section 7.Maps and Records of Facility Location.
After construction is complete, and as a condition of this franchise, the Franchisee shall provide
to the County upon request and at no cost, a copy of all as-built plans, maps and records
Amended Ordinance No.01-022 -Adopted May 2,2001
Page 7
200 1 U'7 2 3 1 05 9
revealing the final location and condition of its facilities within the public rights-of-way and
public places.
Section 8.Relocation of Facilities.
8.I The Franchisee agrees and covenants at its sole cost and expense, to protect, support,
temporarily disconnect,relocate, or remove from any right-of-way any of its facilities when so
required by the County by reason of traffic conditions,public safety, dedications of new rights-
of-way and the establishment and improvement thereof,widening and improvement of existing
rights-of-way,right-of-way vacations, freeway construction,change or establishment ofroad
grade, or the construction of any public improvement or structure by any govermnental agency
acting in a governmental capacity;PROVIDED that the Franchisee shall generally have the
privilege to temporarily bypass, in the authorized portion of the same right-of-way upon approval
by the County Engineer,any facilities required to be temporarily disconnected or removed. This
section applies to all of Franchisee's facilities wheresoever situated within the public right-of-
way,regardless of whether the Franchisee's facilities were previously located therein through an
easement or other property interest prior to the property becoming public road right-of-way.
8.2 Upon the request of the County and in order to facilitate County right-of-way
improvements,the Franchisee agrees to locate, at its sole cost and expense, and,if reasonably
determined necessary by the County, at its sole cost and expense,to excavate and expose
portions of its facilities for inspection so that the location of the facilities may be taken into
account in the improvement design; PROVIDED, that Franchisee shall not be required to
excavate and expose its facilities for inspection unless the Franchisee's as-built plans and maps
of its facilities submitted pursuant to Section 7 of this franchise are reasonably determined by the
County Engineer to be inadequate for purposes of evaluating improvements. The decision to
relocate Franchisee's facilities in order to accommodate road improvements shall be made by the
County Engineer upon review of the location and construction of the Franchisee's facilities.
Where additional costs accrue to the County during maintenance,operation, or improvement of
public facilities related to avoidance of damage or accommodation of the Franchisee's facilities,
Franchisee agrees to pay the County the full amount of additional costs,if any, resulting from the
Franchisee's facilities as identified by the County.
8.3 Any condition or requirement imposed by the County upon any person or entity
(including,without limitation, any condition or requirement imposed pursuant to any contract or
in conjunction with approvals for permits for zoning, land use, construction or development)
which reasonably necessitates the relocation of the Franchisee's facilities within the franchise
area shall be a required relocation for purposes of subsections 8.I and 8.2 above.
Amended Ordinance No. 01-022 -Adopted May 2,2001
Page 8
8.4 Ifthe County determines that a project necessitates the relocation ofthe Franchisee's
then existing facilities, the County shall:
A.At least ninety (90) days prior to the commencement of such improvement
project,provide the Franchisee with written notice requiring such relocation;
PROVIDED,that in the event of an emergency posing a threat to public
safety, health or welfare, in the event of an emergency beyond the control of
the County and which will result in adverse financial consequences to the
County,or where the Franchisee's facilities could not reasonably have been
located or anticipated to require relocation,the County shall give the
Franchisee written notice as soon as practicable;and
B.Provide the Franchisee with copies of pertinent portions of the plans and
specifications for such improvement project and a proposed location for the
Franchisee's facilities so that the Franchisee may relocate its facilities in other
County rights-of-way in order to accommodate such improvement project.
C. After receipt of such notice and such plans and specifications, the Franchisee
shall complete relocation of its facilities at least ten (10) days prior to
commencement of the County's project at no charge or expense to the County.
Relocation shall be accomplished in such a manner as to accommodate the
County's project.In the event of an emergency,the Franchisee shall relocate
its facilities within the time period specified by the County Engineer.
8.5 The Franchisee may, after receipt of written notice requesting a relocation of its
facilities,submit to the County written alternatives to such relocation. The County shall evaluate
such alternatives and advise the Franchisee in writing if one or more of the alternatives is suitable
to accommodate the work, which would otherwise necessitate relocation ofthe facilities.If so
requested by the County, the Franchisee shall submit additional information to assist the County
in making such evaluation.The County shall give each alternative proposed by the Franchisee
full and fair consideration.In the event the County ultimately determines that there is no other
reasonable or feasible alternative, the Franchisee shall relocate its facilities as otherwise provided
in this Section.
8.6 The provisions of this Section shall in no manner preclude or restrict the Franchisee
from making any arrangements it may deem appropriate when responding to a request for
relocation of its facilities by any person or entity other than the County, where the facilities to be
constructed by said person or entity are not or will not become County-owned, operated or
maintained facilities, provided that such arrangements do not unduly delay any County
construction projects.
Amended Ordinance No.01-012 -Adopted May 2.2001
Page 9
8.7 Franchisee shall be responsible for timely relocation of its facilities and coordination
of relocation with the County or the Contractor for the project.The Franchisee shall be fully
responsible for the costs of any delays to County projects resulting from relocations ofthe
Franchisee's facilities.Franchisee shall hold harmless,indemnify and defend the County against
all claims,lawsuits,or damages caused in whole or in part by location or relocation of
Franchisee's facilities, including, but not limited to,problems,accommodations and delays, and
including negligent or intentional acts or omissions of the Franchisee,its agents, officers and
employees,as more fully set forth in Section 14 of this franchise ordinance.
Section 9.Undergrounding of Facilities.
9.1 In any area of the County in which there are no aerial facilities, or in any area in
which telephone,electric power wires or other cables have been placed underground, the
Franchisee shall not be permitted to erect poles or to run or suspend wires, cables or other
facilities thereon, but shall lay such wires, cables or other facilities underground in the manner
required by the County. The Franchisee acknowledges and agrees that, even if the County does
not require the undergrounding of its facilities at the time of right-of-way use permit application,
the County may, at any time in the future, require the conversion ofthe Franchisee's aerial
facilities to underground installation at the Franchisee's expense.
9.2 Whenever the County may require the undergrounding ofthe aerial facilities in any
area of the County, the Franchisee shall underground its aerial facilities in the manner specified
by the County,concurrently with and in the area of the other affected facilities. Where other
facilities are present or proposed and involved in the undergrounding project,the Franchisee
shall only be required to pay its fair share of common costs borne by all facilities, in addition to
the costs specifically attributable to the undergrounding of the Franchisee's own facilities.
"Common costs"shall include necessary costs not specifically attributable to the installation or
undergrounding of any particular facility, such as costs for common trenching and utility vaults.
"Fair share"shall be determined for a project on the basis of the number and size of the
Franchisee's facilities being installed or undergrounded in comparison to the total number and
size of all other utility facilities being installed or undergrounded.
9.3 Aerial facilities shall be permitted in areas of scenic beauty when other utility locations
are not available,are not technically feasible, result in adverse environmental consequences,are
unreasonably costly, or are less desirable from the standpoint of visual quality.
Amended Ordinance No. 01-022 -Adopted May 2.2001
Page 10
2GOI07231U59
Section 10. Maintenance of Facilities.
10.1 The Franchisee shall maintain its facilities in accordance with accepted standards of
practice.
10.2 The Franchisee shall take necessary steps to maintain a reasonably clear area around all
objects permitted and installed within county road right-of-way. A minimum of five (5) feet of
clearance will be maintained around each object so as to provide clear visibility for County
operations and maintenance.If the Franchisee intends to use chemical sprays to control or kill
weeds and brush, the County must grant prior approval at least annually. The County may limit
or restrict the types, amounts, and timing of applications if a significant negative impact on the
aesthetics of the area is anticipated, provided such limitations or restrictions are not in conflict
with State law governing utility right-of-way maintenance.
10.3 The Franchisee shall comply with Title 7.53 SCC, Water Pollution Control. In addition,
Franchisee agrees that it will not cause nor permit in any manner,including negligent or
intentional acts or omissions, release of any hazardous substance, waste, or pollutant or
contaminant into or upon any county road or right-of-way contrary to any state or federal law or
local regulation with respect thereto.Franchisee shall notify the Washington State Department of
Ecology and Snohomish County in writing immediately upon any such release.Franchisee shall
indemnify,hold harmless, defend and covenant not to sue the County, from and against any and
all claims,actions or suits in equity or at law and any judgments,damages, awards,penalties or
fines,including reasonable attorneys' fees and costs incurred in the defense thereof, arising out
of the release or spill of any such hazardous materials, dangerous waste, or pollutant within the
County right-of-way or on private property.Franchisee shall be responsible for completely
cleaning up and remediating, as required by any govemment agency, any and all hazardous
materials,dangerous waste or pollutants released or spilled within the County right-of-way or on
private property.The County shall be entitled to indemnification by Franchisee for all costs
incurred by it as the result of any release or spill of such materials by Franchisee,its agents,
officials,officers and employees.
10.4 Upon any release or spill of any such substance mentioned herein, the County may give
notice of intent to immediately terminate this franchise and, where it deems necessary to protect
the public health, safety and welfare, the County may immediately take whatever steps it deems
necessary and advisable to contain, clean up or remediate the release or spill. The County shall
be entitled to repayment from the Franchisee of any costs or expenses incurred in responding to
such a release or spill.
Amended Ordinance No. 01-022 -Adopted May 2.2001
Page 11
2001U7231U59
Section 11.Dangerous Conditions,Authority for County to Abate.
11.1 Whenever the Franchisee's excavation,construction,installation, relocation,
maintenance,repair,abandonment,or removal of facilities authorized by this franchise has
caused or contributed to a condition that substantially impairs, in the opinion of the County
Engineer,the lateral support of the adjoining road or public place, or endangers the public, an
adjoining public place, road facilities or County property,the County Engineer may direct the
Franchisee,at the Franchisee's own expense, to take actions to protect the public, adjacent public
places,County property or road facilities, and such action may include compliance within a
prescribed time.
11.2 In the event that the Franchisee fails or refuses to promptly take the actions directed
by the County,or fails to fully comply with such directions,or if emergency conditions.exist
which require immediate action, the County may enter upon the property and take such actions as
are necessary to protect the public, the adjacent roads, or road facilities, or to maintain the lateral
support thereof,or actions necessary to ensure the public safety, and the Franchisee shall be
liable to the County for the costs thereof.
Section 12.Abandonment of the Franchisee's Facilities.
12.1 No facilities located in the right-of-way by the Franchisee may be abandoned in place
by the Franchisee without the express agreement and written consent of the County. Any plan for
abandonment or removal of the Franchisee's facilities must be first approved by the County
Engineer,and all necessary permits must be obtained prior to such work.
12.2 In the event Franchisee decides to discontinue using and abandons any of its
facilities, or the County reasonably determines, after making good faith attempts to contact the
Franchisee to ascertain the status of the facilities, that Franchisee has discontinued using and
abandoned any facilities, or that the facilities should be abandoned, or both parties have
negotiated in good faith but no franchise has been obtained therefor upon expiration of this
franchise, or within one hundred eighty (180) days after any termination of this franchise,
Franchisee shall,at its sole cost and as directed by the County, purge its facilities of any product
and hazardous or other additive substances rendering them safe in accordance with applicable law
or standards deemed appropriate by the County.Abandoning facilities in place shall not relieve
the Franchisee of the obligation and/or costs to remove or alter such facilities in the event the
County determines and requests Franchisee, in writing,to remove or alter such facilities as is
necessary for the installation,operation or maintenance of any County road or related utilities or
facilities,including,but not limited to, drainage facilities, or for the health and safety of the
public, in which case the Franchisee shall perform such work in a timely manner at no cost to the
County.In the event Franchisee does not perform such work within a reasonable time following
Amended Ordinance No. 01-022 -Adopted May 2,2001
Page 12
2001U7~;jlV5~
written notice from the County, the County may do, order, have done, any and all work on such
abandoned facilities, and the Franchisee, upon demand, shall pay to the County all costs of such
work.Franchisee shall be responsible for any environmental review required for the abandonment
of any facility and payment of any costs of such environmental review.
Section 13.Fees,Compensation for Use of Rights-of-Way,and Taxes.
13.1 The Franchisee shall be subject to all permit fees associated with activities
undertaken through the authority granted in this franchise ordinance or under the laws of the
County.Where the County incurs costs and expenses for review, inspection or supervision of
activities undertaken through the authority granted in this franchise or any ordinances relating to
the subject for which a permit fee is not established,the Franchisee shall pay the reasonable
actual costs and expenses directly to the County.
13.2 The Franchisee warrants that the facilities proposed to be placed in the public rights-
of-way under this franchise are not for the purposes of providing telecommunications services or
for a cable system or an open video system as those terms are defined by the federal
Communications Act of 1934, as amended.
13.3 The County hereby reserves the right to impose a franchise fee or fee in lieu of a
franchise fee on the Franchisee for purposes other than to recover its actual costs and
administrative expenses,if the Franchisee's operations change so that the facilities placed or
proposed to be placed in the public rights-of-way under this franchise are used for a cable system
or an open video system as defined by federal law. The County also reserves its right to require
that the Franchisee obtain a separate franchise for its change in use, which franchise may include
provisions intended to regulate the Franchisee's operations, as allowed under applicable law.
Such separate franchise may include, but is not limited to, a franchise for a cable system as
allowed under federal law.
13.4 The County hereby reserves the right to fix a fair,competitively neutral, non-
discriminatory,and reasonable compensation to be paid for the use of public rights-of-way
.pursuant to this franchise. Any regulatory fees and/or compensation paid for use of the public
right-of-way are separate from, and additional to, any federal, state and local taxes that may be
levied,imposed,or due from any telecommunications carrier or provider, its customers or
subscribers,or on account of the lease, sale, delivery, right-of-use, or transmission of
telecommunications services, and shall not be considered a tax.
13.5 The County's reservation ofthe right to require franchise authorization and to obtain
fair and reasonable compensation'foruse of public right-of-way from persons,utilities,
telecommunications carriers (including telephone businesses), providers of cable services,open
Amended Ordinance No. 01-022 -Adopted May 2,2001
Page 13
200 1 U 72 3 1 u 5 9
video systems,or other services utilizing facilities placed within public rights-of-way, applies
regardless of whether those providers own, lease, license, or otherwise obtain access to facilities
through arrangements or agreements, including, but not limited to, indefeasible right of use
agreements.
13.6 The Franchisee shall pay applicable fees as specified in Chapter 13.110 SCC to
cover the County's costs in drafting and processing this franchise and all work related thereto.
The fee shall be paid at the time of acceptance of this franchise as set forth in Section 32 and this
franchise shall not become effective until payment of the fee. The Franchisee shall further be
subject to all permit fees associated with activities undertaken through the authority granted in
this franchise or under the laws ofthe County.Where the County incurs costs and expenses for
review,inspection or supervision of activities undertaken through the authority granted in this
franchise or any ordinances relating to the subject for which a permit fee is not established,the
Franchisee shall reimburse the County directly for any and all costs at the County's standard
rates.
13.7 In addition, the Franchisee shall reimburse the County for any and all documented
costs the County reasonably incurs in response to an emergency involving the Franchisee's
facilities. The Franchisee shall promptly reimburse the County, upon submittal by the County of
an itemized billing, for the Franchisee's proportionate share of all actual, identified costs and
expenses incurred by the County in repairing any County facility, or altering such County facility
if at the Franchisee's request, as the result of the presence ofthe Franchisee's facilities in the
right-of-way. Such costs and expenses shall include, but not be limited to, the Franchisee's
proportionate share of the costs of County personnel assigned to oversee or engage in any work
in the right-of-way as a result of the presence of the Franchisee's facilities in the right-of-way.
Such costs and expenses shall also include the Franchisee's proportionate share of County time
spent reviewing construction plans in order to either accomplish the relocation of the
Franchisee's facilities or the routing or rerouting of any utilities so as not to interfere with the
Franchisee's facilities.Any and all costs will be billed on an actual cost basis. The billing may
be on an annual basis, but the County shall provide the Franchisee with the County's itemization
of costs at the conclusion of each project for information purposes.
13.8 The Franchisee acknowledges that it may be subject to State and local taxes,
including personal property tax. The Franchisee shall keep such tax accounts current as a special
condition of this franchise agreement.
Section 14.Hold Harmless and Indemnification.
14.1 The Franchisee shall assume the risk of, be liable for, and pay all damage, loss, cost
and expense of any party arising out of the Franchisee's use of the right-of-way, to the extent of
Amended Ordinance No.01-022 -Adopted May 2.2001
Page 14
1(1I01u7231U59
their negligent actions,errors,omissions,or breach of any obligations.The Franchisee hereby
releases,covenants not to bring suit, and agrees to indemnify,defend and hold harmless the
County,its elected and appointed officials, officers,employees,agents and representatives from
any and all claims,costs,judgments,awards, or liability to any person, including claims by the
Franchisee's own employees for which the Franchisee might otherwise be immune under Title
5I RCW, for injury or death of any person or damage to property caused by or arising out of the
negligent acts or omissions of the Franchisee, its agents, servants, officers or employees in the
performance ofthis franchise, and any rights granted hereunder.
14.2 The Franchisee shall hold harmless from and indemnify the County, its elected and
appointed officials,officers,employees,and volunteers,against all claims, demands,losses,
suits,actions,costs,counsel fees;litigation costs?expenses,damages,judgments,or decrees by
reason of damage to any property or business and/or any death, injury or disability to or of any
person or party of any nature arising out of or suffered,directly or.indirectly,in whole or in part,
from the actions,errors,omissions,or breach of any common law, statutory,regulatory or
contractual obligations in connection with the activities of the Franchisee, its sub-contractors,
assigns,agents,contractors,or employees, under this franchise, any permit under County code,
or in connection with the use of the right-of-way;PROVIDED that nothing herein shall require
the Franchisee to hold harmless from and indemnify.the County, its elected and appointed
officials,officers,employees,and volunteers,against claims, demands, or suits based solely upon
the negligence of the County,its elected and appointed officials,officers, employees, and
volunteers;and PROVIDED FURTHER,that if the claims, demands, or suits are caused by or
result from the concurrent negligence of (a) the County,its elected and appointed officials,
officers,employees,and volunteers and (b) the Franchisee,its sub-contractors,assigns,agents,
contractors,or employees,and involve those actions covered by RCW 4.24.115, this indemnity
provision,with respect to liability for damages arising out of bodily injury to persons or damage
to property based upon such concurrent negligence, shall be valid and enforceable only to the
extent of the Franchisee's negligence or the negligence of their sub-contractors, assigns,agents,
contractors,or employees,except as limited below.This indemnification provision constitutes
the Franchisee's waiver of immunity under Title 51 RCW,solely for the purposes of this
indemnification.This waiver has been mutually negotiated by the parties,
14.3 The Franchisee further agrees to process and defend at its own expense all claims,
demands,or suits at law or equity arising in whole or in part from the actions, errors,omissions,
or breach of any obligations of the Franchisee, its sub-contractors,assigns, agents,contractors,or
employees,arising out of or in connection with any activities related to this franchise or the
Franchisee's use of the right-of-way.The Franchisee's duty to assume the defense and to pay all
expenses thereof shall apply to all claims or allegations of negligence where any duty to provide
indemnification in whole or in part potentially applies,whether or not the injuries or damages are
Amended Ordinance No.01"022 -Adopted May 2,2001
Page 15
200 1 0 '7 2 3 1 059
ultimately found to be due to the negligence of the Franchisee arising out of the franchise or any
use ofthe right-of-way.
14.4 In the event that the Franchisee refuses the tender of defense in any suit or any claim,
said tender having been made pursuant to the indemnification provision contained herein, and
said refusal is subsequently determined by a court having jurisdiction (or such other tribunal that
the parties shall agree to decide the matter), to have been a wrongful refusal on the part ofthe
Franchisee, then the Franchisee shall pay all of the County's costs for defense of the action,
including all expert witness fees, costs, and reasonable attorney's fees,including costs and fees
incurred in recovering under this indemnification provision.
14.5 Inspection or acceptance by the County ofany work performed by the Franchisee at
the time of completion of construction shall not be grounds for avoidance by the Franchisee of
any of its obligations under this Section.
Section 15.Limitation of Connty Liability.
Administration of this franchise shall not be construed to create the basis for any liability on the
part of the County, its elected and appointed officials, officers, employees, and agents for any
injury or damage from the failure of the Franchisee to comply with the provisions of this
franchise; by reason of any plan,schedule or specification review, inspection, notice and order,
permission,or other approval or consent by the County; for any action or inaction thereof
authorized or done in connection with the implementation or enforcement of this franchise by the
County; or for the accuracy of plans submitted to the County.
Section 16.Insurance.
16.1 The Franchisee shall procure and maintain for the duration of the franchise,
insurance against claims for injuries to persons or damages to property which may arise from or
in connection with the exercise of the rights, privileges and authority granted by this franchise
and right-of-way use permits to the Franchisee,its agents,representatives or employees. The
Franchisee shall provide a certificate of insurance to the County for its inspection prior to the
adoption ofthis franchise ordinance, and such insurance shall include:
A. Automobile Liability insurance with limits no less than $1,000,000 Combined
Single Limit per occurrence for bodily injury and property damage; and
B. Commercial General Liability insurance, written on an occurrence basis with
limits no less than $1,000,000 combined single limit per occurrence and
$2,000,000 aggregate for personal injury, bodily injury and property damage.
Amended Ordinance No. 01-022 -Adopted May 2,2001
Page 16
2001U7231U59
Coverage shall include, but not be limited to:blanket contractual; products and
completed operations; broad form property damage; explosion, collapse and
underground (XCD); and employer's liability.
16.2 The insurance policies obtained by the Franchisee shall name the County (its elected
and appointed officers, officials, employees, agents, and volunteers)as an additional insured with
regard to activities performed by or on behalf of the Franchisee.The coverage shall contain no
special limitations on the scope of protection afforded to the County, its elected and appointed
officers,officials,employees, agents, or volunteers.In addition,the insurance policy shall
contain a clause stating that coverage shall apply separately to each insured against whom claim
is made or suit is brought, except with respect to the limits of the insurer's liability. The
Franchisee's insurance shall be primary insurance as respects the County, its elected and
appointed officers, officials, employees, agents and volunteers.Any insurance maintained by the
County,its elected and appointed officials, officers,employees,agents or volunteers shall be
excess ofthe Franchisee's insurance and shall not contribute with it. The insurance policy or
policies required by this clause shall be endorsed to state that coverage shall not be suspended,
voided,canceled by either party,reduced in coverage or in limits except after thirty (30) days
prior written notice by certified mail, return receipt requested,has been given to the County.
16.3 The complete policy with all endorsements shall be provided to the County upon
request. Any deductibles or self,insured retentions must be declared to and approved by the
County.Payment of deductible or self-insured retention shall be the sole responsibility of the
Franchisee.Proof of all insurance shall be in a form acceptable to the County Finance Director.
Any insurance provider shall be authorized to do business in Washington.If the Franchisee is
self-insured,Franchisee shall provide such information as required by the County Finance
Director sufficient to demonstrate its ability to meet the requirements of this Section. All
insurance documentation shall be submitted and reviewed by the County Executive prior to final
execution ofthe franchise.
16.4 Any failure to comply with the reporting provisions of the policies required herein
shall not affect coverage provided to the County, its elected and appointed officials, officers,
employees,agents or volunteers.
Section 17.Bond or Performance Security.
Before undertaking any of the work,installation,improvements,construction,repair, relocation
or maintenance authorized by this franchise and the separate right-of-way use permit under
Section 3 the Franchisee shall, upon the request ofthe County,furnish a bond executed by the
Franchisee 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 County Engineer as sufficient to ensure performance of
Amended Ordinance No.0/-022 -Adopted May 2,200/
Page 17
2001U7231U5~
the Franchisee's obligations under this franchise generally and under any specific right-of-way
use permits or approvals. The bond shall be conditioned so that the Franchisee shall observe all
the covenants,tenus and conditions and faithfully perfonu all of the obligations of this franchise
and any right-of-way use penuits or approvals, and to correct or replace any defective work or
materials discovered in the replacement of the County's roads or property within a period of two
(2) years from the date of the replacement and acceptance of such repaired roads, facilities, or
property by the County. The County may from time to time review the amount of surety and
detenuine an appropriate level based upon Franchisee's facilities and the Franchisee's
perfonuance ofthe covenants,tenus,conditions and obligations under this franchise and any
right-of-way use penuits or approvals.
Section 18. Modification.
The County hereby reserves the right to alter, amend or modify the tenus and conditions of this
franchise upon written agreement of both parties to such alteration,amendment or modification.
Nothing in this Section shall affect the right of the County to modify the tenus and conditions of
this franchise in accordance with any other Section of this franchise, including, but not limited
to,sections 1,26,and 27.
Section 19. Annexation.
If any road or right-of-way covered by this franchise is incorporated into the limits of any city or
town, this franchise shall tenuinate as to any road or right-of-way within the corporate limits of
such city or town; but this franchise shall continue as to County roads and rights-of-way not
incorporated into a city or town.
Section 20. Vacation.
20.1 Ifthe County vacates all or a portion of any County road or right-of-way which is
subject to this franchise, the County Council may, at its option and by giving thirty (30)days'
written notice to the Franchisee,tenuinate this franchise with reference to any County road or
right-of-way so vacated, and the County shall not be liable for any damages or loss to the
Franchisee by reason of such tenuination.
20.2 Whenever a county road or right-of-way or any portion thereof is vacated upon a
finding that it is not useful and the public will be benefited by the vacation, the County may
retain an easement with respect to the vacated land for the construction, repair and maintenance
of public utilities and services which at the time of the vacation are specifically authorized or are
physically located on a portion of the land being vacated, but only in accordance with the
provisions ofRCW 36.87.140 as now existing or hereafter amended.It shall be the
Amended Ordinance No. 01-022 -Adopted May 2.2001
Page 18
100107231059
responsibility ofthe Franchisee to request that the County Council specifically include a
provision retaining an easement with respect to any proposed Council action on a particular
vacation. The County shall not be liable for any damages or loss to the Franchisee by reason of
any such vacation.
Section 21.Assignment.
This franchise authorizing use of public rights-of-way may not be leased, sold, transferred,
assigned, disposed of, or subject to a change of control, in whole or in part, in any manner
without the prior written consent of the County Council. In the case of transfer or assignment as
security by mortgage or other security instrument in whole or in part to secure indebtedness,
.consent shall not be required unless and until the secured party elects to realize upon the
collateral. The Franchisee shall provide prompt,written notice to the County of any such
assignment.
Section 22.Termination,Revocation and Forfeiture.
22.1 If the Franchisee defaults on any term or condition of this franchise, the County
Council may terminate this franchise as provided in Title 13 SCC. Upon termination for any
cause, all rights of the Franchisee granted hereunder or under any right-of-way use permit shall
cease, and the Franchisee shall immediately commence to remove its facilities from the roads
and rights-of-way.
22.2 If the Franchisee willfully violates or fails to comply with any of the provisions of
this franchise, or through willful misconduct or gross negligence fails to heed or comply with
any notice given the Franchisee by the County under the provisions of this franchise, then the
Franchisee shall, at the election ofthe Snohomish County Council, forfeit all rights conferred
hereunder and this franchise may be revoked or aunulled by the Council after a hearing held
upon notice to the Franchisee.
22.3 In the event that the use of all or any part of the Franchisee's facilities is
discontinued for any reason, including, but not limited to,discontinuance,obsolescence, or
abandonment of the facility, or the abandonment,termination,expiration, revocation, or
forfeiture of this franchise, the Franchisee is solely responsible for the removal and proper
disposal of all facilities. The Franchisee is not entitled to abandon any facilities in place without
the County's prior written consent in accordance with Section 12 of this franchise. The
Franchisee shall restore the county roads and rights-of-way from which any facilities have been
removed in accordance with Section 6 of this franchise.
Amended Ordinance No. 01-022 -Adopted May 2,2001
Page 19
Section 23.Remedies to Enforce Compliance.
The County may elect, in lieu of the above and without any prejudice to any of its other legal
rights and remedies,to obtain an order from the Superior Court or other court, tribunal, or agency
having competent jurisdiction compelling the Franchisee to comply with the provisions of this
franchise and to recover damages and costs incurred by the County by reason of the Franchisee's
failure to comply.In addition to any other remedy provided herein, the County reserves the right
to pursue any remedy to compel or force the Franchisee and/or its successors and assigns to
comply with the terms hereof, and the pursuit of any right or remedy by the County shall not
prevent the County from thereafter declaring a forfeiture or revocation for breach of the
conditions herein.
Section 24.Nonwaiver of Rights or Remedies.
Failure of the County to exercise any rights or remedies under this franchise shall not be a waiver
of any obligation by the County and shall not prevent the County from pursuing that right at any
future time.
Section 25.Records.
The Franchisee shall maintain adequate records to document obligations performed under this
franchise. The County shall have the right to review the Franchisee's records, at reasonable
times,with regard to the subject matter of this franchise, upon reasonable notice. The right to
review records shall last for six (6) years from the termination date of this franchise,including
any extensions or renewals. In addition to the maps and records of facility location under
Section 7, the Franchisee shall provide the County, upon the County's request, with copies of
records of construction,maintenance,operation, inspections, or regulatory compliance for all
facilities subject to this franchise as deemed necessary by the County to manage the county
roads,rights-of-way,or other property, or to protect the public health, safety, and welfare.
Nothing in this Section 25 shall be construed torequire Franchisee to violate state or federal law
concerning subscriber privacy,nor shall this Section be construed to require Franchisee to
disclose proprietary or confidential information without adequate safeguards for its confidential
or proprietary nature.
Section 26.County Ordinances and Regulations -Reservation of Police Power.
Nothing in this franchise shall be deemed to restrict the County's ability to adopt and enforce all
necessary and appropriate ordinances regulating the performance of the conditions ofthis
franchise, including, but not limited to, any valid ordinance made in the exercise of its police
powers in the interest of public safety and for the welfare of the public. The County shall have
Amended Ordinance No. 01-022 -Adopted May 2.2001
Page 20
the authority at all times to control by appropriate regulations,including design standards,and
utility accommodation policies,the location, elevation, manner of construction,and maintenance
of any facilities of the Franchisee within the right-of-way or affecting the right-of-way, and the
Franchisee shall promptly conform with all such regulations, unless compliance would cause the
Franchisee to violate other requirements of law. In the event of a conflict between the regulatory
provisions ofthis franchise and any other ordinance(s)enacted under the County's police power
authority,such other ordinance(s)shall take precedence over the regulatory provisions set forth
herein.
Section 27.Eminent Domain,Powers of the People.
This franchise is subject to the power of eminent domain and the right of the County Councilor
the people acting for themselves through the initiative or referendum to repeal, amend or modify
the franchise in the interest of the public. In any proceeding under eminent domain, the franchise
itself shall have no value.
Section 28.Survival.
All of the provisions,conditions and requirements of Sections 3,Right-of-Way Use Pennit
Required for All Work in Right-of-Way;6,Restoration of Right-of-Way; 8, Relocation of
Facilities;9,Undergrounding of Facilities; 11,Dangerous Conditions,Authority for County to
Abate; 12,Abandonment of the Franchisee's Facilities 14,Hold Hannless and Indemnification;
and 25;Records;29,Governing Law and Stipulation of Venue,ofthis franchise shall be in
addition to any and all other obligations and liabilities the Franchisee may have to the County at
common law, by statute, or by contract, and shall survive the expiration,revocation,termination,
or forfeiture of the County's franchise to the Franchisee as defined in Section 1 herein, and any
renewals or extensions thereof. All of the provisions,conditions,regulations and requirements
contained in this franchise ordinance shall further be binding upon the successors and assigns of
the Franchisee and all privileges,as well as all obligations and liabilities ofthe Franchisee shall
inure to its successors and assigns equally as ifthey were specifically mentioned wherever the
Franchisee is named herein.
Section 29.Governing Law and Stipulation of Venue.
This franchise and use of public rights-of-way shall be governed by the laws of the State of
Washington,unless preempted by federal law. The Franchisee agrees to be bound by the laws of
the State of Washington and subjected to the jurisdiction of the Courts of the State.of
Washington,Any action relating to this franchise must be brought in the Superior Court of
Washington for Snohomish County, or in the case of a federal action, the United States District
Amended Ordinance No.Of-022 -Adopted May 2,200f
Page 21
Court for the Western District of Washington at Seattle, unless an administrative agency has
primary jurisdiction.
Section 30.Severability.
If any section,sentence,clause or phrase of this franchise or its application to any person or
entity should be held to be invalid or unconstitutional by a court of competent jurisdiction,such
invalidity or unconstitutionality shall not affect the validity or constitutionality of any other
section,sentence,clause or phrase of this franchise nor its application to any other person or
entity.
Section 31.Notice and Emergency Contact.
Any notice or information required or permitted to be given to the parties under this franchise
agreement may be sent to the following addresses unless otherwise specified:
SNOHOMISH COUNTY
Department of Public Works
2930 Wetmore Ave.
Everett, WA 98201
Attn.Franchises &Right-of-Way Use Permits
Phone:(425)388-3488
City of Marysville
Department of Public Works
80 Columbia Avenue
Marysville,WA 98270
Attn. Ken Winckler, Public Works Director
Phone:360-651-5100
The Franchisee shall also provide the County a current emergency contact name (or title)and
phone number available 24 hours a day, seven days a week. The Franchisee shall promptly
notify the County ofany change in the notice address or emergency contact name (or title) and
phone number.
Section 32.Acceptance.
Within thirty (30) days after the passage and approval ofthis Ordinance, this franchise may be
accepted by the Franchisee by its filing with the County Clerk an unconditional written
acceptance thereof.Failure of the Franchisee to so accept this franchise within said period of
time shall be deemed a rejection thereof by the Franchisee,and the rights and privileges herein
granted shall,after the expiration of the thirty (30)day period,absolutely cease and terminate,
unless the time period is extended by ordinance duly passed for that purpose.
Amended Ordinance No. 01-022 -Adopted May 2.2001
Page 22
Section 33.Effective Date.
This ordinance shall take effect only upon satisfaction of the following conditions,but not sooner
than ten (10) days after signature by the County Executive (or ten days after the ordinance is
otherwise enacted):(I)the Franchisee signs a copy of this franchise and returns it to the County
Council within the time provided in Section 32; (2)the Franchisee presents to the County
acceptable evidence of insurance and security as required in this franchise;and (3) the Franchisee
pays all applicable fees set forth in Subsection 13.6 above.
PASSED this dd day of--.'UJ=,~~_,2001.
SNOHOMISH COUNTY COUNCIL
Snohomish County,Washington
~EST:~
Clerk of the Council,!l.s.$/
Council Chairperson
(XI
( )
()
APPROVED
VETOED
EMERGENCY
GARY WEIKEL
Deputy Executive
.e ~~C'--l)-~hCounty Executive
DATE:S/o>j0f:
ATTEST:
"fWJu1~
Approved as to Form Only:
Deputy Prosecuting Attorney
Ilt?1Mded Ordinance No.0/-0~-AdoptedlJ1f:jq.cf<t!O /
Page 23
Date:,Tune 11 2001,
ACCEPTANCE:
The Provisions ofthis franchise are agreed to and hereby accepted.By accepting this franchise,
the City of Marysville covenants and agrees to perform and be bound by each and all ofthe terms
and conditions imposed by the Charter and Code ofthe County and this franchise.
Dated:June 11 ,2001
By:~-:!YJ.,UL-/Lk::..,~ld4--_-_
David Weiser
Mayor
Printed Name:_-.lli:lJl..l..Q.-I'ieJ-SCL-_
Title:~:=..L-"-=-_~~
CERTIFICATION OF COMPLIANCE WITH CONDITIONS AND EFFECTIVE DATE:
I certify that I have received confirmation that: (1) the Franchisee returned a signed copy ofthis
franchise to the County Council within the time provided in Section 32; (2) the Franchisee has
presented to the County acceptable evidence of insurance and security as required in Section J 6
of this franchise;and (3) the Franchisee has paid all applicable processing costs and fees set forth
in Subsection 13.6 of the franchise ordinance.
THE EFFECTIVE DATE OF THIS FRANCHISE ORDINANCE IS~I <f,doo J
S:\TES\COMMON\Franchise Forms\Fran Ord -Utility(3-2000).doc
Amended Ordinance No. 01-022 -Adopted May 2,2001
Page 24
..b-II
IOu 1.0'7231 U59
EXHIBIT A
City of Marysville
ServiceArea Trunk D, Phase II
Boundary Description
Those portions of Sections 34 and 35 in Township 30 North and Sections 2,3, and 11in Township
29 North all in Range 5 East,WM.,more particularly described as follows:
BEGINNlNG at the center of said section 34;thence east along the east-west centerline thereof to
the east margin of 53rd Avenue Northeast;thence south along said east margin to the south line of
said section 34;thence east alongthe south line thereof and the south line of said section 35 to the
west margin of 75th Avenue Northeast;thence north along said west margin to the westerly
extension of the north line of Tract 181 of Sunnyside Five Acre Tracts as recorded in Volume 7 of
Plats on page 19,records of Snohomish County Washington; thence east along said north line of
said Traer to the southwest comer of Tract 158of said plat;thence north along the west lines of
Tracts 158, 155, 134, 131, 110and 107to the northwest corner of said Tract 107;thence east along
the north line thereof and its extension to the southwest corner of Tract 87;thence continuing east
along the south line thereof to the southwest corner of Tract 88;thence north along the west lines
of Tracts 88, 81 and 64 to the northwest corner of Tract 64 of said plat; thence east along the north
line of said Tract 64 to the east margin of 83rd Avenue Northeast;thence south along said east
margin to the north line of said section 2;thence continuing south along said east margin to the
south margin of Soper Hill Road; thence west along said south margin in saidsections 2, 11and 3 to
the south line of the southeast quarter of said section 3; thence west along said south line to the ten
foot elevation contour line based on National Geodetic Vertical Datum,1929;thence northerly
along said contour line through section 3 and into said section 34 to the intersection with the north
line of 46th Street Northeast extended west;thence east along said extended line to the north-south
centerline of said section 34; thence north along said centerline to the center of said section and
POINT OF BEGINNING.
TOGETI-IER WITH that portion of Old Pacific Highway in the northwest quarter of Section 11,
Township 29 North,Range 5 East,WM.,described as follows:
OOMMENCIJ\fG at the north quarter corner of said Section 11;thence North 88°27'33"West
along the north line of said northwest quarter 2,630.48feet to the northwest corner of said Section
11;
Thence North 89°15'06"East 15.75feet to a cased pipe monument accepted as a point of curve on
the centerline of Sunnyside Boulevard NE (also known at 28th StreetNE);
Thence South 88°26'25" East alongthe centerline of said Boulevard 902.66feet to a cased pipe
monument accepted as the point of tangent, station 116 +49.45 as shown on the map of Pacific
Highway authorized by LegislativeActs 1913,records of Snohomish County Engineers Office and
known as Road SurveyNo. 488;
Thence South 1°33'35" West 30.00feet to the south margin of said highwayand POINT OF
BEGINNlNG;
Thence South 88°26'25"East parallel to the centerline of said Sunnyside Boulevard 224.70 feet to a
point of curve to the right from which the radius point bears south 1°33'35" west distant 925.37
feet;
working!erdahl/mvdescrptczs.doc
Page2
LegalDescription
Thence easterly along said curve through a central angle of 0°36'53"an arc distance of 9.93 feet to a
point on CUlVe on the south margin of Sunnyside -Vernon Park Road as shown on the 1938 map
of said road, Survey No.1536,records of Snohomish County Engineers Office (also known as
Soper Hill Road). Said point also being a point on curve on the north margin of said old Pacific
Highway from which the radius point bears south 30016'23""west distant 488.37 feet;
Thence southeasterly along said curve and said north margin of Old Pacific Highway through a
central angle of 5°17'12"an arc distance of 45.06 feet;
Thence on a radial bearing south 35°33'35"west 60.00 feet to a point on curve on the south margin
of said Old Pacific Highway from which the radius point bears south 35°33'35"west distant 428.37
feet;
Thence northwestely along said curve and said south margin through a central angle of 34°00'00"an
arc distance of 254.20 feet to the point of beginning,containing 6,817 square feet or 0.1565 acres.
2001 U 72 3 1 u 5 ~
working!erdahl/mvdescrp l025.doc