HomeMy WebLinkAboutHoldPHIrrigationFranchiseZirklePayneRdKITTITAS COUNTY
DEPARTMENT OF PUBLIC WORKS
AGENDA STAFF REPORT
AGENDA DATE: January 15, 2019
ACTION REQUESTED: Hold a Public Hearing to consider an irrigation franchise with
Zirkle Fruit Company on Payne Road.
BACKGROUND: Zirkle Fruit Company has applied for an irrigation franchise across
Payne Road. The proposed franchise is to install a 10" irrigation
pipe approximately 0.78 miles south of Thrall Road. Upon
approval of the irrigation franchise, a right of way permit will be
required to conduct the proposed work.
The Franchise has been signed by the applicant for Board of
County Commissioner consideration and approval.
INTERACTION: Public Works
RECOMMENDATION: Approve an Irrigation Franchise with Zirkle Fruit Company across
Payne Road.
ATTACHMENTS: Franchise
LEAD STAFF: Mark Cook
Director of Public Works
KITTITAS COUNTY PUBLIC WORKS
STATE OF WASHINGTON
NON-EXCLUSIVE IRRIGATION WATER FRANCHISE
TO USE COUNTY ROADS, RIGHTS-OF-WAY AND OTHER
COUNTY PROPERTY WITHIN KITTITAS COUNTY
Application of ZIRKLE FRUIT COMPANY, (OR HIS/HER SUCCESSORS), hereafter
referred to as "FRANCHISEE" for irrigation water crossing over, along and under county roads,
rights-of-way and other county property in Kittitas County, Washington, as hereinafter set forth,
having come on regularly for hearing before the County under the provisions of RCW Chapter
36.55, and it appearing to the Board that notice of said hearing has been duly given as required
by law, and that it is in the public interest to grant the franchise herein granted;
WHEREAS, the COUNTY also recognizes that the use of public rights-of-way must be restricted
to allow for the construction of amenities necessary to serve the needs for the listed parcels as described
at this date as Tax Lot Number 850433 and Tax Lot Number 880433, and that the coordination,
planning, and management of the COUNTY's rights-of-way is necessary to ensure that the burden of
costs for the operations of non -municipal interests are not borne by the citizenry; and
WHEREAS, the COUNTY has determined that the development of a comprehensive plan for
rights-of-way use and management is the most effective means for managing the current use of rights-of-
way and ensuring prudent and appropriate decisions concerning the use of rights-of-way in the future; and
WHEREAS, "FRANCHISEE", has determined that it is in their best interests to move forward with
the installation of facilities within the public rights-of-way prior to the completion of the comprehensive
rights-of-way use and management plan and has agreed to abide by the terms and conditions of such a
plan once it has been completed;
NOW THEREFORE; IT IS ORDERED
Section 1. Non-exclusive Franchise Granted. The county of Kittitas hereby grants to "FRANCHISEE",
subject to the conditions prescribed in this Franchise Agreement, the franchise rights and authority to
construct, replace, repair, monitor, maintain, use and operate the equipment and facilities necessary for a
irrigation water crossing, within the COUNTY -owned rights-of-way generally described below, and
hereinafter referred to as the "franchise area":
Such franchise shall not be deemed to be exclusive to "FRANCHISEE", and shall in no way prohibit or
limit the COUNTY's ability to grant other franchises, permits, or rights along, over, or under the areas to
which this franchise has been granted to "FRANCHISEE"; provided, that such other franchises do not
unreasonably interfere with "FRANCHISEE", exercise of franchise rights granted herein as determined by
the COUNTY. This franchise shall in no way interfere with existing utilities or in any way limit, prohibit, or
prevent, the COUNTY from using the franchise area or affect the COUNTY's jurisdiction over such area in
any way.
Section 2. Authority. The Director of Public Works or his or her designee is hereby granted the authority
to administer and enforce the terms and provisions of this Franchise and may develop such rules, policies,
and procedures as he or she deems necessary to carry out the provisions contained herein.
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Section 3. Construction Provisions and Standards. The following provisions shall be considered
mandatory and failure to abide by any conditions described herein shall be deemed as non-compliance
with the terms of this franchise and may result in some or all of the penalties specified in Section 4. See
KCC 12.56
A. Permit Required - No construction, maintenance, or repairs (except for emergency
repairs) shall be undertaken in the franchise area without first obtaining a permit to
Perform Work in the County Right -Of -Way from the COUNTY of Kittitas, Department of
Public Works. "FRANCHISEE" shall post a bond in the amount deemed necessary by the
Kittitas County Director of Public Works.
B. Coordination - All work and inspection shall be coordinated with the Engineering Division
of the Public Works Department to ensure consistency with COUNTY infrastructure,
future COUNTY of Kittitas Capital Improvement Projects, all developer improvements,
and pertinent codes and franchises.
C. Construction Standards - Any construction, installation, maintenance, and restoration
activities performed by or for "FRANCHISEE", within the franchise area shall be
conducted and located so as to produce the least amount of interference with the free
passage of pedestrian and vehicular traffic. All construction, installation, maintenance,
traffic control and restoration activities shall be conducted such that they conform to the
most current COUNTY of Kittitas standards in effect at the time that such activities take
place, and as detailed in the Manual on Accommodating Utilities.
D. Underground Installation Required - All irrigation water system components shall be
installed underground unless otherwise exempted from this requirement, in writing, by the
Director of Public Works for the COUNTY.
E. Removal or Abandonment - Upon the removal from service of any irrigation water lines
or other associated structures, facilities and amenities, "FRANCHISEE", shall comply with
all applicable standards and requirements prescribed by the COUNTY of Kittitas Public
Works Department for the removal or abandonment of said structures and irrigation water
facilities.
F. "One -Call" Location & Liability — Kittitas County will not locate private infrastructure.
The "One -Call" locate will be the responsibility of the "FRANCHISEE".
G. As -Built Plans Required - "FRANCHISEE" shall present as -built plans to be inspected
and approved by the Kittitas County Public Works Director.
H. Protect Public Interest -Applicant understands and agrees that Kittitas County Code
Chapter 12.56 Incorporates provisions necessary to protect the public interest and
investment with regard to utilization of County road right-of-way and further, that the
provisions of Chapter 12.56 are in full force and effect as if herein included or attached to
or made a part of this franchise. Detailed restoration requirements are provided in the
Manual on Accommodating Utilities.
Relocation - Whenever the COUNTY determines that it is necessary for any of
"FRANCHISEE", facilities or other system components to be moved or relocated to
accommodate the construction, or enhancement of any COUNTY -owned public amenity
in the franchise area, the COUNTY shall notify "FRANCHISEE", in writing of such
determination, and "FRANCHISEE", shall promptly submit plans for such relocation.
Within ninety (90) days of the approval by the COUNTY of the plans for relocation,
"FRANCHISEE", shall relocate those facilities or structures designated by the COUNTY.
The costs of moving or relocating "FRANCHISEE" facilities or structures, including but not
limited to costs for design, engineering and construction is the responsibility of the
"FRANCHISEE".
Section 4. Franchise Compliance.
A. Franchise Violations - The failure by "FRANCHISEE" to comply fully with any of the
provisions of this Franchise Agreement may result in a written notice from the COUNTY
which describes the violations of the franchise and requests remedial action within thirty
(30) days of receipt of such notice. If "FRANCHISEE", has not attained full compliance at
the end of the thirty (30) day period following receipt of the violation notification, the
COUNTY may declare an immediate termination of all franchise rights and privileges;
provided that full compliance was reasonably possible within that thirty (30) day period.
The demonstration of due diligence on the part of "FRANCHISEE", may be grounds for
the grant of an extension in the period during which compliance is to be attained, provided
that, "FRANCHISEE", continues to pursue correction of any violations of the Franchise
Agreement noted by the COUNTY.
B. Emergency Actions - If any of "FRANCHISEE", actions, or any failure by
"FRANCHISEE", to act to correct a situation caused by "FRANCHISEE", is deemed by the
COUNTY to create a threat to life or property, the COUNTY may order "FRANCHISEE",
to immediately correct said situation threat or, at the COUNTY's discretion, the COUNTY
may undertake measures to correct said situation threat itself; provided that, when
possible, the COUNTY shall notify "FRANCHISEE", of said threat and give
"FRANCHISEE", an opportunity to correct said threat before undertaking such measures
itself. "FRANCHISEE", shall be liable for all costs, expenses, and damages attributable to
the correction of such an emergency situation as undertaken by the COUNTY to the
extent that such situation was caused by "FRANCHISEE", and shall further be liable for all
costs, expenses, and damages resulting to the COUNTY from such situation and any
reimbursement of such costs to the COUNTY shall be made within thirty (30) days of
written notice of the completion of such action or determination of damages by the
COUNTY. The failure by "FRANCHISEE", to take appropriate action to correct a situation
caused by "FRANCHISEE", and identified by the COUNTY as a threat to public or private
safety or property shall be considered a violation of franchise terms and each day that
such a situation continues to exist and "FRANCHISEE", fails to take appropriate action to
abate said situation shall be regarded as a separate violation.
C. Other Remedies - Nothing contained in this Franchise Agreement shall limit the
COUNTY's available remedies in the event if "FRANCHISEE" (OR HIS
SUCCESSORS), failure to comply with the provisions of this Franchise Agreement, to
include but not limited to, the COUNTY's right to sue for specific performance and/or
damages.
D. Removal of System - In the event that this Franchise Agreement is terminated as a
result of violations of the terms of this Franchise Agreement, "FRANCHISEE", shall at his
sole expense, promptly remove all irrigation water system components and facilities,
provided that, the COUNTY, at its sole option, may allow "FRANCHISEE", to abandon its
facilities in place.
Section 5. Insurance. "FRANCHISEE" shall present such insurance deemed necessary by the Kittitas
County Public Works Director.
Section 6. Other Permits & Approvals. Nothing in this agreement shall relieve "FRANCHISEE", from
any obligation to obtain approvals or necessary permits from applicable federal, state, and COUNTY
authorities for all activities in the franchise area.
Section 7. Transfer of Ownership. The rights, privileges, benefits, title, or interest provided by this
franchise shall be transferred to the new owner if any of these parcels changeownership.
Section 8. Franchise Term. The franchise rights granted herein shall remain in full force and effect for a
period of fifteen (15) years from the effective date of this franchise and will be renegotiable at the end of
that time.
Section 9. Administrative Fees. NOT APPLICABLE
Section 10. Franchise Fee: $1,615.00
Section 11. Capacity for COUNTY Use. NOT APPLICABLE
Section 12. Notices. Any notices to be served upon the COUNTY or "FRANCHISEE", shall be delivered
to the following addresses respectively:
COUNTY of Kittitas
Department of Public Works
411 N. Ruby St. Suite #1
Ellensburg, WA 98926
Zirkle Fruit Company
PO Box 190
Selah, WA 98942
Section13. Claims for Damages. In the construction, installation, repair, operation, and maintenance of
its structures and facilities, "FRANCHISEE", shall use reasonable and appropriate precautions to avoid
damage to persons or property. "FRANCHISEE", shall indemnify and save harmless the COUNTY from
all claims, actions or damages of every kind or description, including reasonable attorney's and expert
witness fees, which may accrue to or be suffered by any person or persons, corporation or property to the
extent caused in part or in whole by any negligent act or omission of "FRANCHISEE", its officers, agents,
servants or employees, carried on in the furtherance of the rights, benefits, and privileges granted to
"FRANCHISEE", by this franchise. In the event any claim or demand is presented to or filed with the
COUNTY which gives rise to "FRANCHISEE", obligation pursuant to this section, the COUNTY shall within
a reasonable time notify "FRANCHISEE", thereof and "FRANCHISEE", shall have a right, at its election, to
settle or compromise such claim or demand. In the event any claim or action is commenced in which the
COUNTY is named a party, and which suit or action is based on a claim or demand which gives rise to
"FRANCHISEE", obligation pursuant to this section, the COUNTY shall promptly notify "FRANCHISEE",
thereof, and "FRANCHISEE", shall, at its sole cost and expense, defend such suit or action by attorneys of
its own election. In defense of such suit or action, "FRANCHISEE", may, at its election and at its sole cost
and expense, settle or compromise such suit or action. This section shall not be construed to require
"FRANCHISEE", to: (i) protect and save the COUNTY harmless from any claims, actions, or damages; (ii)
settle or compromise any claim, demand, suit, or action; (iii) appear in or defend any suit or action; or, (iv)
pay any judgment or reimburse the COUNTY's costs and expenses (including reasonable attorney's fees),
to the extent such claim arises out of the sole negligence of the COUNTY. To the extent of any
concurrent negligence between "FRANCHISEE", and the COUNTY, "FRANCHISEE", obligations under
this paragraph shall only extend to its share of negligence or fault. The COUNTY shall have the right at all
times to participate through its own attorney in any suit or action which arises out of any right, privilege,
and authority granted by or exercised pursuant to this franchise when the COUNTY determines that such
participation is required to protect the interests of the COUNTY or the public. Such participation by the
COUNTY shall be at the COUNTY's sole cost and expense.
Section 14. Severability. If any section, sentence, clause or phrase of this Franchise is held to be
invalid or unconstitutional by a court of competent jurisdiction, the COUNTY may, at its sole option, deem
the entire franchise to be affected and thereby nullified. However, in the event that a determination is
made that a section, sentence, clause, or phrase in this Franchise is invalid or unconstitutional, the
COUNTY may elect to treat the portion declared invalid or unconstitutional as severable and enforce the
remaining provisions of this Franchise, provided that, if the COUNTY elects to enforce the remaining
provisions of the Franchise, "FRANCHISEE", shall have the option to terminate the franchise.
Section 15. Indemnification. "FRANCHISEE", its successors and assigns, agrees and covenants to
indemnify and hold harmless the County of Kittitas from and against any and all liability, loss, cost,
damages, whether to persons or property, or expense of any type or nature, including reasonable
attorney's fees and expert witness fees, to the extent it arises from any negligent act or omission or willful
misconduct of "FRANCHISEE", its successors and assigns arising from or connected to "FRANCHISEE",
work under this franchise, provided however, that in case any suit or action is instituted against the County
by reason of any such damage or injury, County shall: (i) cause written notice thereof to be given unto
"FRANCHISEE", and (ii) provide all reasonably requested assistance in defense or settlement of such
claim at "FRANCHISEE", expense, and (iii) retain the right to control the defense of settlement or such
claims.
Section 16. Effective Date. This Franchise shall take effect and be in full force and effect five (5) days
after approval of the Kittitas County Board of Commissioners which is hereby approved.
Section 17. Other Conditions: None
This franchise is not valid until accepted and signed by "FRANCHISEE"
DATED this day of , _, at Ellensburg, Washington.
BOARD OF COUNTY COMMISSIONERS
KITTITAS COUNTY, WASHINGTON
ATTEST:
Chair
Clerk of the Board
Vice -Chair
APPROVED:
Commissioner
Approved as to Form:
Prosecuting Attorney
WSBA #
A CEPTEED•:
UU -"FRANCHISEE"-Signature
-"FRANCHISEE"-Signature
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