HomeMy WebLinkAboutHEARING re Olele Point Water Franchise JEFFERSON COUNTY
BOARD OF COUNTY COMMISSIONERS
REGULAR AGENDA REQUEST
TO: Board of County Commissioners
Josh Peters,County Administrator
FROM: Monte Reinders,P.E.,Public Works Director 4.7
DATE: October 13 2025
SUBJECT: Swalwell & Kogut,Olele Point Road Water Line Franchise Public Hearing
STATEMENT OF ISSUE:
Jarred Swalwell& Megan Kogut have assumed an in-progress application for renewal of a non-
exclusive franchise to construct,maintain, and operate components of a public water
transmission and distribution system in County rights-of-way in eastern Jefferson County. Public
Works has submitted a Resolution to the Board granting a franchise to Jarred Swalwell & Megan
Kogut. The Board has scheduled a public hearing. Public Works has complied with the public
notice requirements of RCW 36.55 and posted the Franchise Resolution and public hearing
notice on the County's Internet home page.
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ANALYSIS:
Jarred Swalwell & Megan Kogut(franchisee)currently own and operate components of a water
transmission and distribution system within Jefferson County right of way. This Franchise
agreement formalizes approval and details rights and responsibilities of the franchisee.
Significant Franchise terms and conditions:
• Sections 2-4 Purpose/Definitions/Franchise: describes the Franchise terms and
conditions. The Franchise constitutes a binding contract between Jefferson County and
franchisee. The franchise would be for 20 years.
• Section 5 Performance of Work: establishes the requirements for franchisee to install and
operate facilities in County rights-of-way.
• Section 6 Relocation& Modification of Facilities: describes the process and requirements
for franchisee to relocate its facilities in County rights-of-way in order to accommodate
County projects.
• Section 7 Removal of Facilities: Details requirements related to removal of facilities.
• Section 10 Hazardous Substances: Details franchisee responsibilities regarding
notification, liability and reimbursement requirements for hazardous substance release.
• Section 13 Compensation: Details reservation of right for Board of County
Commissioners to fix fair and reasonable compensation for the use of the public property
(right of way).
• Section 14 Indemnification and Hold Harmless: indemnifies the County against third
party claims related to franchisee's negligence.
• Section 15 Insurance: establishes franchisee's insurance requirements.
• Section 17 Dispute Resolution: Details the steps/process to be used for dispute resolution
between the County and franchisee.
• Section 18 Termination of Franchise: Details the process to terminate franchise due to
breach.
FISCAL IMPACT:
None -The Franchise requires franchisee to reimburse Public Works for its staff time expense in preparing
the Franchise and for the expense of publishing and posting the public hearing notice and filing the
Franchise with the County Auditor.
RECOMMENDATION:
During the public hearing, Public Works will detail the franchise application and approval process and
answer questions regarding the Jarred Swalwell & Megan Kogut, Water Line Franchise Resolution.
After the close of the hearing,the Board could:
Consider the comments received and decide whether to grant the Franchise, or
Direct Public Works to compile the comments and prepare responses for review by the Board at a later date.
If the Board decides to grant the Franchise,the Commissioners should sign all three copies of the Franchise
Resolution and return them to Public Works to send to franchisee for final acceptance. One fully executed
version will be returned to the Board following recording.
Department Contact:
Josh Thornton, Real Property Specialist, 360-385-9162.
REVIEWED BY:
to /( -c
Jos 'eters, County Administrator Date
CONTRACT REVIEW FORM Clear Form
(INSTRUCTIONS ARE ON THE NEXT PAGE) p it v g‘`,5., Q?3
CONTRACT WITH: Jarred Swalwell&Megan Kogut Contract No: WATER LINE FRAN
Contract For: Water Line Franchise Term: 20 Years
COUNTY DEPARTMENT: PUBLIC WORKS
Contact Person: JOSHUA THORNTON
Contact Phone: 360-385-9162
Contact email: JTHORNTON@CO.JEFFERSON.WA US
AMOUNT: NO FISCAL IMPACT TO THE COUNTY PROCESS: ` Exempt from Bid Process
Revenue: Cooperative Purchase
._
Expenditure: Competitive Sealed Bid
Matching Funds Required: Small Works Roster
Sources(s)of Matching Funds Vendor List Bid
Fund# RFP or RFQ
Munis Org/Obj ✓ Other:
APPROVAL STEPS:
STEP 1: DEPARTMENT CERTIFIES MPLIANCE WITH JCC 3.55.080 AND CH PTER 42.23 RCW.
CERTIFIED: ❑ N/A: ■❑ E 9 c 3/a0a\5
Signature Date
STEP 2: DEPARTMENT CERTIFIES THE PERSON PROPOSED FOR CONTRACTING WITH THE
COUNTY (CONTRACTOR) HAS NOT BEEN DEBARRED BY ANY FEDERAL, STATE, OR LOCAL
AGENCY.
/9.CERTIFIED: ❑ N/A: a �.. C : / 3/ o �
Signature Date
STEP 3: RISK MANAGEMENT REVIEW(will be added electronically through Laserfiche):
Electronically approved by Risk Management on 9/29/2025.
STEP 4: PROSECUTING ATTORNEY REVIEW(will be added electronically through Lasertiche):
lectronically approved as to form by PAO on 9/29/2025.
Franchise agreement prepared with the assistance of the PAO.
STEP 5: DEPARTMENT MAKES REVISIONS & RESUBMITS TO RISK MANAGEMENT AND
PROSECUTING ATTORNEY(IF REQUIRED).
STEP 6: CONTRACTOR SIGNS
STEP 7: SUBMIT TO BOCC FOR APPROVAL
1
Please publish 2 times: October 1,2025 and October 8, 2025
1
Contact Person: Josh Thornton, Real Property Specialist .j
Bill to: Jefferson County Public Works
623 Sheridan St., Port Townsend, WA 98368
NOTICE OF PUBLIC HEARING
Jarred Swalwell& Megan Kogut,Water Line Franchise located at Olele Point Road
NOTICE IS HEREBY GIVEN that a public hearing is scheduled by the Jefferson County Board of
Commissioners for Monday,October 13th,2025 at 10:00 a.m. in the Commissioners' Chambers,
County Courthouse, 1820 Jefferson Street, Port Townsend, WA 98368 (HYBRID).Notice of said
hearing is to be published in the official newspaper of Jefferson County.
During the hearing,testimony will be taken concerning a resolution to grant Jarred Swalwell&
Megan Kogut a nonexclusive franchise to construct,maintain, and operate components of a water
transmission and distribution system and facilities in County rights-of-way in eastern Jefferson
County,the franchise area would include all County Road rights-of-way located within the South
West Quarter of Section 28 Township 29 North,Range 1 East, W.M.
The information is available for viewing on the County website by visiting: www.cojefferson.wa.us
and follow this pathway—Services—Laserfiche Web Portal(username and password is: public)-
Board of Commissioners—BOCC Agenda Packets—2025 Weekly Agenda Items— 10 October 2025
— 101325—HEARING re Olele Point Water System.
You are welcome to participate in this hearing. You will need to join the meeting by 10:00 a.m.
using the following methods: VIRTUALLY: Via the following Zoom, link:
https://zoom.us/j/93777841705, PHONE: Dial 1-253-215-8782 and enter access code: 937-7784-
1705#and press *9 to"raise your hand"to be called upon. Access for the hearing impaired can be
accommodated using Washington Relay Service at 1-800-833-6384,or IN-PERSON: In the BOCC
Chambers. If you experience difficulties joining the meeting or viewing documents,please call 360-385-
9100 to report any issues.
In addition,written testimony is also invited beginning on September 22,2025 and ending on
October 13,2025 at the end of the Public Hearing, unless extended by the Board of County
Commissioners. Written public testimony may be submitted by Email to: ,
ieffbocc@co.jefferson.wa.us. You may view testimony received by visiting: www.co.jefferson.wa.us
and following this pathway—Services—Laserfiche Web Portal (username and password is: public)—
Board of Commissioners—BOCC Agenda Packets—2025 Weekly Agenda Items— 10 October 2025
— 101325—HEARING re Olele Point Water System.
You can also Mail your testimony to: Jefferson County Commissioners' Office; P.O. Box 1220, Port
Townsend, WA 98368. Written testimony must be received by the Board of County Commissioners
by the end of the hearing testimony period.
1c 'f
Iii;
a this nd day of September,2025.
I ' , C„...---"
JEFFERSON COUNTY
BOARD OF COMMISSIONERS
/S/Heidi Eisenhour,Chair
STATE OF WASHINGTON
COUNTY OF JEFFERSON
In The Matter of the Application by Jarred
Swalwell& Megan Kogut For a
Nonexclusive Grant of Franchise to RESOLUTION NO.
Construct, Maintain, and Operate a Single Granting A Nonexclusive Franchise
Family Water line Within a Portion of
Uninco orated Jefferson Coun
WHEREAS, adoption by the Jefferson Board of County Commissioners (Board) of a
resolution granting a nonexclusive franchise to Jarred Swalwell & Megan Kogut (Grantee) to
install, construct, repair, replace, maintain, relocate, extend, remove, operate, and use Facilities
consisting of consisting of pipes,valves, hydrants, and other appurtenances in, upon, over, under,
along,through and across the Franchise Area in unincorporated Jefferson County(the County)for
the purpose of providing potable domestic water service; setting forth terms and conditions
accompanying the grant of the nonexclusive franchise; and providing for the County
administration and regulation of the nonexclusive franchise would memorialize the relationship
between Grantee and the County; and
WHEREAS, chapter 13.56 of the Jefferson County Code (JCC) requires utility providers
who occupy County rights-of-way to obtain a franchise from the County and pay all fees provided
therein; and
WHEREAS, Grantee has applied to the Board and paid the applicable application fee for
a nonexclusive franchise; and
WHEREAS, the Board finds that granting this Franchise is consistent with the
requirements of JCC 13.56.080 in that:
a) Grantee has the financial and technical ability to fulfill its obligations under a franchise
granted by the County;
b) Grantee has legal standing to be granted a franchise;
c) The County rights-of-way within the Franchise Area have the capacity to accommodate
Grantee's Facilities, if this Franchise is granted;
d) County rights-of-way within the Franchise Area have the capacity to accommodate
additional utility, telecommunications and cable television facilities, if this Franchise is
granted;
e) Grantee is willing and able to mitigate or repair any damage or disruption to public or
private facilities,improvements,services,travel or landscaping,if this Franchise is granted;
Jarred Swalwell&Megan Kogut
Water Line Franchise- 1
f) It is in the public interest in minimizing the cost and disruption resulting from the presence
of Grantee's Facilities in County rights-of-way can be protected;
g) Access to potable water is an important and much needed service for the County's citizens;
h) In the County's sole opinion, there should be no anticipated adverse impact to public
health, safety and welfare, if this Franchise is granted;
i) The lack of availability of alternate routes or locations for Grantee's Facilities is limited;
j) Grant of franchise is consistent with applicable Federal, State, and County laws,
regulations,rules, and policies; and
WHEREAS, pursuant to RCW 36.55.040, notice was posted in three (3) public places in the
County seat at least fifteen(15)days before the hearing date and notice was published once a week
for two (2) consecutive weeks in the official County newspaper of record, the last publication
being not less than five(5)days before the date fixed for the hearing; and
WHEREAS,pursuant to chapter 36.55 RCW,a hearing on the application was held on the 13th
day of October,2025; and
WHEREAS,the Board finds that it is in the public interest to grant this Franchise to Grantee;
NOW, THEREFORE, THE BOARD OF COUNTY COMMISSIONERS OF
JEFFERSON COUNTY,WASHINGTON,HEREBY RESOLVE AS FOLLOWS:
SECTION 1 —WHEREAS CLAUSES ARE FINDINGS OF FACT.
The Jefferson County Board of Commissioners hereby adopts the above"Whereas"clauses
as Findings of Fact.
SECTION 2—PURPOSE.
The purpose of this resolution is that a nonexclusive franchise is hereby granted to Grantee,
to install, construct, repair, replace, maintain, relocate, modify, extend, remove, operate,
and use Facilities in,upon,over,under,along,through across and along the County Rights-
of-Way located in the areas identified in Section 3.5 below, for the purpose of providing
water service to a single family home under the following express terms and conditions.
SECTION 3—DEFINITIONS.
The terms defined below,as used in this Franchise, shall have the meanings defined. Other
terms as defined in JCC 13.56.030 shall have the meanings given in that code section, if
not otherwise defined in this Franchise. When not inconsistent with the text,words used in
the present tense include the future tense, words in the plural number include the singular
number,words in the singular number include the plural number,and the use of any gender
Jarred Swalwell&Megan Kogut
Water Line Franchise-2
shall be applicable to all genders. The words "shall" and "will" are mandatory, and the
word "may" is permissive. The words "and" means "or" and "or" means "and," so as to
make the term inclusive rather than exclusive. Words not otherwise defined shall be given
their common and ordinary meaning in the context used and as defined in the Dictionary
by Merriam-Webster https://www.merriam-webster.com/). Whenever the following terms
are used in this Franchise, the meanings in this Section 3 apply.
3.1 "Emergency"has the same meaning as in JCC 13.56.030(16).
3.2 "Engineer"has the same meaning as in JCC 13.56.030(18).
3.3 "Facilities"means, collectively, all: (a)components of a water
transmission and distribution system, including but not limited to, pipes,
valves, and hydrants; and, (b)any and all other equipment, appliances,
attachments, appurtenances and other items necessary, convenient, or in
any way appertaining to any and all of the foregoing, whether the same be
located above ground or underground.
3.4 "Franchise" means all the terms of this Resolution, including but not limited to
Section 4.
3.5 "Franchise Area" means the rights-of-way for County roads located within the
South West Quarter Section 28, Township 29 North, Range 1 East, W.M., (as
shown in Appendix A) and not within an incorporated city or town, as now or as
may hereafter be laid out, platted, dedicated, or improved within the present limits
of the County and as such limits may be hereafter extended. The Franchise Area
does not include(a)any other County owned or leased properties or easements(i.e.,
County owned or leased properties or easements unrelated to the County Roads
described above), including, but not limited to, parks, trails, facilities, or pits,
located inside or outside of the boundaries of the County, or(b) Grantee owned or
leased properties or easements located inside or outside of the boundaries of the
County.
3.6 "Hazardous Substance" means any hazardous, toxic, or dangerous substance,
material,waste,pollutant,or contaminant that is identified as such under applicable
regulations adopted pursuant to the federal hazardous materials transportation act,
the toxic substances control act, the resource recovery and conservation act, the
comprehensive environmental response compensation and liability act, the federal
insecticide, fungicide, and rodenticide act, the occupational safety and health act
hazardous communications standards, and the Washington State hazardous waste
act, the Washington Model Toxic Controls Act, all as exist now or as amended or
superseded, or any other federal, state, or local statute,code or ordinance or lawful
rule, regulation, order, decree, or other governmental authority as now or at any
time hereafter in effect.
Jarred Swalwell&Megan Kogut
Water Line Franchise-3
3.7 "JCC" means the Jefferson County Code, as it now exists or as it is later amended
or superseded.
3.8 "Parties" or "Party" means collectively the County and Grantee, and individually
either the County or Grantee.
3.9 "Public Improvement Project"means any County capital improvement undertaken
by the County, including projects listed in the County's Six-Year Transportation
Improvement Program or Annual Construction Program, or the construction,
relocation, modification, expansion, repair, maintenance, or removal of any
County-owned facility located on, in, over, or under the Franchise Area that is
undertaken by the County for parks;roads or streets;curbs or sidewalks;pedestrian,
bicycle, or other non-motorized transportation facilities; water systems; sanitary
sewer systems; bridges, culverts, and storm drainage facilities; and County-owned
fiber optic cable,conduit,or network facilities. For the avoidance of doubt,a Public
Improvement Project will not include any development or other activity requiring
the relocation or modification of Grantee's Facilities for the sole benefit of a Third-
Party. Any such relocation or modification shall be subject to the rights provided
to Grantee in Section 4.
3.10 "RCW" means the Revised Code of Washington, as it now exists or as it is later
amended or superseded
3.11 "Section" means a section in this Franchise, unless otherwise clear from the
context.
3.12 "Third-Party"means any Person other than the County and Grantee.
3.13 "Traffic Control"has the same meaning as in JCC 13.56.030(52).
3.14 "WAC" means the Washington Administrative Code, as it now exists or as it is
later amended or superseded.
SECTION 4—FRANCHISE.
4.1 Grant of Franchise.
4.1.1 Pursuant to the laws of the State of Washington, including, but not limited
to,chapter 36.55 RCW,the County hereby grants to Grantee,subject to and
in accordance with the terms and conditions set forth in this Franchise, a
nonexclusive franchise that grants the right, authority and franchise to
install, construct, repair, replace, maintain, relocate, extend, remove,
operate, and use the Facilities in, upon, over, under, along, through and
across the Franchise Area.
Jarred Swalwell&Megan Kogut
Water Line Franchise-4
4.1.2 This Franchise shall not convey to Grantee any title or ownership interest
in the Franchise Area, but shall be deemed a franchise only to use and
occupy the Franchise Area for the limited purposes and term stated herein.
4.1.3 This Franchise shall not authorize, excuse, preclude or prohibit Grantee
from securing such further easements,leases,permits,or other approvals as
may be required or desired to lawfully occupy and use the Franchise Area.
4.1.4 The Parties acknowledge and agree that this Franchise shall not govern,
cover, or apply to any Facilities located on Grantee owned or leased
properties or easements(whether inside or outside of County rights-of-way,
whether granted by a private or public entity, and whether now existing or
hereafter acquired) and that such Facilities owned by Grantee are not, and
will not be deemed to be, located pursuant to rights derived from this
Franchise.
4.1.5 This Franchise granted shall not be construed as any warranty of title.
4.1.6 No act, event or occurrence shall give Grantee any rights to occupy or use
the Franchise Area permanently nor shall operate as an estoppel against the
County.
4.1.7 Grantee specifically agrees to exercise its rights within the Franchise Area
in accordance with all applicable Federal and State of Washington laws and
applicable rules and regulations, as now exist or as later amended or
superseded; and all applicable County codes, including, but not limited to,
JCC Title 13 Utilities, Division II (Accommodation of Utilities upon
Jefferson County Rights-of-Way, chapter 13.56 JCC), resolutions, and
ordinances, as now exist or as later amended or superseded; provided,
however, in the event of a conflict or inconsistency between any such
provisions and this Franchise, the express terms and conditions of this
Franchise will govern; provided, further,nothing herein shall be deemed to
waive,prejudice,or otherwise limit any right of appeal afforded Grantee by
such County codes,resolutions or ordinances.
4.1.8 The express terms and conditions of this Franchise constitute a valid and
enforceable contract between the Parties.
4.1.9 Pursuant to chapter 19.122 RCW Grantee shall participate in the One Call
utilities-locating system by subscribing to a utilities underground location
service. Grantee shall provide evidence of subscribing to the Engineer.
4.1.10 Prior to using the Franchise Area to provide additional types of utility
services not expressly authorized by this Franchise,Grantee shall submit an
application to the County for a franchise to use the Franchise Area to
Jarred Swalwell&Megan Kogut
Water Line Franchise-5
provide those additional services. Grantee shall not use the Franchise Area
to provide any such additional utility services until such time as a new
franchise has been granted by the County.
4.2 Noninterference. All installation, construction, repair, replacement, maintenance,
relocation,extension,removal,operation,and use of Grantee's Facilities performed
within the Franchise Area shall be done in such a manner as not to interfere with
the free passage of pedestrian or vehicle traffic therein; the reasonable ingress or
egress to the properties abutting the Franchise Area as they exist at the time of
installation of the Facilities; the use, maintenance, and repair of existing County-
owned or non-County-owned utilities, drainage facilities, or other improvements
located within the Franchise Area. Grantee's Facilities shall have the same
preference as is given to non-County improvements that are proposed to be installed
in the Franchise Area subsequent in time to Grantee's Facilities. Nothing in this
Section 4.2 is intended to or will affect or modify the rights and obligations of the
Parties with respect to the relocation or modification of Grantee's Facilities under
Section 6. All relocations or modifications of Grantee's Facilities will be
undertaken only subject to and in accordance with the terms, conditions, and
requirements set forth in Section 6.
4.3 Drawings. Grantee shall provide the County, within sixty (60)days of installation
of the Facilities, drawings showing the location of Grantee's Facilities within the
Franchise Area,and such information in an electronic format suitable for import as
a layer into the County GIS system. Except for as-built drawings required under
JCC 13.56.340, as to any such drawings provided under this Section 4.3, Grantee
does not warrant the accuracy thereof and to the extent the location of the Facilities
is shown such Facilities are shown in approximate location. Upon the County's
request, in connection with the design of any Public Improvement Project within
the Franchise Area, Grantee shall verify the location of its underground Facilities
within the Franchise Area by excavating, including potholing, at no expense to the
County. With respect to any excavations by or on behalf of Grantee or the County
within the Franchise Area, nothing herein is intended nor shall be construed to
relieve either Party of their respective obligations arising under applicable law with
respect to determining the location of utility facilities.
4.4 Term of Franchise.
4.4.1 Term of Franchise. This Franchise is granted for a period of twenty (20)
years from the date of adoption of this Franchise by the Board.
4.4.2 Franchise Acceptance. As an express condition of this Franchise, within
sixty (60) days after the adoption of this Franchise by the Board, Grantee
shall file with the Clerk of the Board its written acceptance of this Franchise
substantially in the form provided in Exhibit A attached hereto and by this
reference made a part hereof. At the time of filing its written acceptance,
Jarred Swaiwell&Megan Kogut
Water Line Franchise-6
Grantee shall reimburse the County for the expenses required to be paid by
Grantee under Section 13.1 and deliver to the County the required evidence
of insurance set out in Section 15. In the event Grantee fails to accept this
Franchise in the manner specified above within the said sixty(60)days,this
Franchise shall be null and void.
4.4.3 Franchise Renewal. This Franchise may be renewed, at the sole discretion
of the Board, in accordance and compliance with JCC 13.56.160 through
13.56.180. The terms of this Franchise shall continue during the period
between expiration of the original term and approval of a new Franchise as
long as the renewal application procedures and conditions are met.
4.5 Nonexclusive Franchise. This Franchise shall be nonexclusive. The County
specifically reserves the right to grant at any time such rights,permits, licenses, or
franchises to Persons to use the Franchise Area for similar or different purposes
allowed hereunder as the County deems appropriate, so long as the same does not
interfere with Grantee's rights under this Franchise. Subject to this Franchise,
Grantee shall not prevent or prohibit the County from constructing, altering,
maintaining, or using any portion of the Franchise Area or affect its jurisdiction
over any part thereof, the County having full power and authority to make all
necessary changes, relocations, modifications, repairs, or maintenance of the
Franchise Area as the County deems appropriate. Grantee acknowledges that it
cannot exclude the County from any portion of the Franchise Area where it uses or
occupies that portion of the Franchise Area unless the County expressly agrees to
such exclusion in writing.
SECTION 5—PERFORMANCE OF WORK.
5.1 Permit Required; Standard of Work.
5.1.1 Prior to commencing any Work within the Franchise Area, Grantee shall
apply for and receive a utility permit from the County in accordance with
the requirements of chapter 13.56 JCC.
5.1.2 Work by Grantee within the Franchise Area shall conform to the
requirements of the applicable codes, ordinances, and standards, including
JCC Title 13 Utilities, Division II (Accommodation of Utilities upon the
County Rights-of-Way, chapter 13.56 JCC), provided, however, in the
event of a conflict or inconsistency between any such requirements and this
Franchise, the express terms and conditions of this Franchise will govern
and control.
5.1.3 Work by Grantee within the Franchise Area shall be performed in a
thorough, professional, and workmanlike manner, shall comply with
approved permits and plans;provided,however,in the event of a conflict or
Jarred Swalwell&Megan Kogut
Water Line Franchise-7
inconsistency between any such requirements and this Franchise, the
express terms and conditions of this Franchise will govern and control.
5.1.4 The Director may order removal, at Grantee's expense, of work that does
not comply with the permit,plans, codes or standards. If Grantee shall fail
to make a required correction within a reasonable time established by the
Engineer,the County may perform(with County forces or contractors)any
and all work necessary to correct the noncomplying work and restore the
Franchise Area and shall bill Grantee for reimbursement of such work.
Grantee shall reimburse the County for all reasonable expenses related to
such work within thirty(30)days of receiving an invoice.
5.1.5 Grantee is solely responsible for the performance and completion of work
authorized by a utility permit that is issued to Grantee.
5.2 Emergency Response and Repairs.
5.2.1 In the event of an Emergency or the need for unexpected repair, Grantee
may commence such Emergency response or repair as required by the
circumstances, in accordance with, and subject to JCC 13.56.430. In the
event that Grantee conducts Emergency response or repairs under this
Section 5.2, Grantee shall make application for a utility permit as soon as
practicable, but in no event(unless waived by the County) later than thirty
(30)days from the Emergency event.
5.2.2 In the event any of Grantee's Facilities within the Franchise Area are in a
condition such that, in the reasonable opinion of the Engineer, an
Emergency is created, Grantee upon request of the Engineer shall
expeditiously and at its own expense repair the Facilities and correct the
Emergency condition. If Grantee shall fail to repair the Facilities and
correct the Emergency condition within a reasonable time established by
the Engineer, the County may perform(with County forces or contractors)
any and all work necessary to correct the Emergency condition and restore
the Franchise Area and shall bill Grantee for reimbursement of such work.
Grantee shall reimburse the County for all reasonable expenses related to
such work within thirty(30)days of receiving an invoice.
5.3 Restoration. After installation, construction, relocation, maintenance, removal,
repair, or replacement of any of Grantee's Facilities within the Franchise Area,
Grantee at its expense shall expeditiously restore the Franchise Area and any
County property within the Franchise Area that may have been disturbed or
damaged by such work to at least the same condition as they were in immediately
prior to any such work. The County shall have final approval of the condition of
the Franchise Area after restoration pursuant to the provisions of applicable County
codes, ordinances, regulations, standards, and procedures as now exist or as later
Jarred Swalwell&Megan Kogut
Water Line Franchise-8
amended or superseded.
5.4 Refuse and Debris. Grantee shall promptly remove and properly dispose of refuse
and debris resulting from any of Grantee's work within the Franchise Area.
Grantee shall remove refuse and debris on a regular basis during the work day to
keep all travel ways clear. Should Grantee's work last for more than one day in a
particular part of the Franchise Area, all refuse and debris shall be removed prior
to leaving the site at the end of the work day, to the extent feasible in light of the
work being undertaken by Grantee.
5.5 Financial Security. Pursuant to JCC 13.56.200,the County may require Grantee to
post financial security, as determined by the County, to ensure satisfactory
completion of construction, including,but not limited to,restoration of the Rights-
of-Way and other property affected by Grantee's work. At the County's discretion,
Grantee may provide and maintain a single on-going financial security covering
multiple permits in lieu of individual surety.
5.6 Survey Monuments. All survey monuments that are disturbed, displaced, or
destroyed by Grantee in its performance of any work under this Franchise shall be
referenced and restored by Grantee, in accordance with chapter 332-120 WAC, as
from time to time amended, and all pertinent Federal, State and County standards
and specifications.
5.7 Traffic Control. Grantee's activities within the Franchise Area and activities within
the Franchise Area conducted by Grantee's agents or by Third-Parties under a
permit issued by the County to Grantee shall conform to the latest edition of the
Manual on Uniform Traffic Control Devices, the requirements of JCC 13.56.460
Traffic Control, and approved traffic control plans provided,however, in the event
of a conflict or inconsistency between any such manual,requirements,or plans and
this Franchise, the express terms and conditions of this Franchise will govern and
control.It shall be the responsibility of Grantee to ensure compliance.Grantee shall
be liable for any damages resulting from Grantee's failure to provide adequate
Traffic Control.
SECTION 6— RELOCATION OR MODIFICATION OF FACILITIES.
6.1 Grantee at its own expense shall relocate or modify its Facilities existing within the
Franchise Area as necessary to accommodate Public Improvement Projects, in
accordance with and subject to the terms and conditions set forth in this Section 4.
The County acknowledges that Grantee's ability to relocate or modify its Facilities
within the Franchise Area to accommodate Public Improvement Projects may be
constrained due to the need to acquire property rights or long lead time items or to
other conditions beyond Grantee's control. In order to reasonably accommodate
Grantee's constraints, while recognizing the County's authority to manage the
Franchise Area and responsibility to construct Public Improvement Projects within
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the County's funding and scheduling constraints, the Parties will at all times work
cooperatively and in good faith with the goal of ensuring that relocations or
modifications of Grantee's Facilities within the Franchise Area that are required to
accommodate Public Improvement Projects are planned,scheduled,and completed
promptly and with due regard to the interests and constraints of both Parties.
6.2 In order to assist Grantee in planning for Public Improvement Projects that may
require relocation or modification of Grantee's Facilities within the Franchise Area,
the County shall provide Grantee with written notice and thirty percent (30%)
complete plans for Public Improvement Projects that may require relocation or
modification of Grantee's Facilities within thirty(30)days of their preparation.
6.3 Whenever the County undertakes a Public Improvement Project that requires
relocation or modification of Grantee's Facilities within the Franchise Area, the
County shall, within a reasonable time prior to the commencement of the Public
Improvement Project and in any event not less than one hundred twenty(120)days
prior to the commencement of the Public Improvement Project, provide Grantee
written notice of the required relocation or modification and reasonable plans,
specifications,and schedule for the Public Improvement Project. Within thirty(30)
days of receipt of the notice,plans, specifications,and schedule, and subject to the
exercise by Grantee of its rights under Section 6.4 or Section 6.5, Grantee shall
provide the County with a proposed schedule to relocate or modify its Facilities
within the Franchise Area that will accommodate the County's schedule for the
Public Improvement Project.
6.4 If Grantee foresees that it may be unable to relocate or modify its Facilities to
accommodate the County's schedule for the Public Improvement Project, Grantee
shall notify the County as soon as reasonably practicable and request that the
County revise its schedule for the Public Improvement Project to accommodate
Grantee's constraints. The request shall include a description of the factors that
constrain Grantee's ability to relocate or modify its Facilities to accommodate the
County's schedule for the Public Improvement Project and a proposed alternative
schedule. The County shall give Grantee's request and proposed alternative
schedule full and fair consideration with due regard to Grantee's constraints and all
other facts and circumstances which bear upon the request and shall provide a
written response to Grantee.
6.4.1 In the event that the County approves Grantee's request, thereafter and
subject to this Section 6 the County and Grantee shall work cooperatively
to establish a revised schedule for the Public Improvement Project and the
relocation or modification of Grantee's Facilities and Grantee shall relocate
or modify its Facilities within the Franchise Area so as to accommodate the
revised schedule for the Public Improvement Project that is established
pursuant to this Section 6.4.
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6.4.2 In the event that the County denies Grantee's request,thereafter and subject
to this Section 6 Grantee shall relocate or modify its Facilities within the
Franchise Area so as to accommodate the County's schedule for the Public
Improvement Project.
6.5 After receipt of written notice of the required relocation or modification and
reasonable plans, specifications, and schedule for the Public Improvement Project
under Section 6.3, Grantee may submit a request to the County to perform the
relocation or modification concurrently with the Public Improvement Project.
Grantee shall submit said request with a proposed schedule for concurrent
relocation or modification not more than thirty (30) days after receiving the
County's notice of the required relocation or modification under Section 6.3. The
County shall give Grantee's request full and fair consideration with due regard to
Grantee's interests and all other facts and circumstances which bear upon the
request and shall provide a written response to Grantee.
6.5.1 In the event the County approves Grantee's request to relocate or modify its
Facilities concurrently with the Public Improvement Project, the County
and Grantee shall thereafter work cooperatively to establish a schedule for
the concurrent relocation or modification of Grantee's Facilities and
Grantee shall relocate or modify its Facilities within the Franchise Area so
as to accommodate said schedule for concurrent relocation or modification
that is established pursuant to this Section 6.5.
6.5.2 In the event the County denies Grantee's request that the relocation or
modification be performed concurrently with the Public Improvement
Project, Grantee shall relocate or modify its Facilities within the Franchise
Area so as to accommodate the County's schedule for the Public
Improvement Project.
6.6 Grantee shall reimburse the County for any and all costs,expenses,or damages that
are legally required to be paid by the County to its Third-Party contractor(s) as a
direct result of any delay in meeting the established schedule for a Public
Improvement Project. Grantee's obligation to pay delay damages arises only if,as,
and to the extent the delay is directly caused by Grantee's breach of its obligations
under this Section 6 with respect to the relocation or modification of Grantee's
Facilities within the Franchise Area in accordance with the applicable schedule for
the Public Improvement Project; provided the County shall first provide Grantee
written notice of any such claim by the Third-Party contractor(s) and provide
Grantee the opportunity to work with the Third-Party contractor(s) to resolve the
claim for a period of not less than sixty (60) days prior to payment of the claim.
Nothing in this Section 6.6 will require Grantee to bear or be responsible for any
cost, expense or damage that results from any delay in meeting the applicable
schedule for a Public Improvement Project if,as,and to the extent the schedule was
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established by the County in violation of the provisions for schedule adjustments
under Section 6.4 or Section 6.5 or the delay is caused by the County, any Third-
Party, or a Force Majeure Event under Section 18.4.
6.7 If the County requires the subsequent relocation or modification of any Facilities
within five (5) years from the date of relocation or modification of such Facilities
pursuant to this Section 6, the County shall bear the entire cost of such subsequent
relocation or modification, except if the relocation or modification is required by
an Emergency under Section 6.8.
6.8 If an emergency arises that immediately endangers the property or life of any
individual or poses a threat to public safety or welfare that requires the relocation
of Grantee's Facilities within the Franchise Area, the County shall give Grantee
notice of the Emergency as soon as reasonably practicable. Upon receipt of such
notice from the County, Grantee shall relocate the affected Facilities as soon as
reasonably practicable at Grantee's expense.
6.9 Whenever either: (a)any public or private development within the Franchise Area,
other than a Public Improvement Project,requires the relocation or modification of
Grantee's Facilities within the Franchise Area to accommodate such development;
or, (b) the County requires the relocation or modification of Grantee's Facilities
within the Franchise Area for the benefit of any Third-Party, including, without
limitation, any condition or requirement imposed pursuant to any contract or in
conjunction with approvals or permits for zoning, land use, construction, or
development,then in such event,Grantee shall have the right as a condition of such
relocation or modification to require such development proponent or Third-Party
to reimburse Grantee, at a time and upon terms acceptable to Grantee, for any and
all costs and expenses incurred by Grantee in the relocation or modification of
Grantee's Facilities.
SECTION 7— REMOVAL OF FACILITIES.
7.1 In the event Grantee permanently ceases use of any of its Facilities within the
Franchise Area, Grantee shall, within one hundred eighty (180) days after such
permanent cessation of use or such additional time as is agreed to between the
Parties, remove such Facilities at its sole cost and expense, except as set forth in
Section 7.2.
7.2 Upon the express written consent of the Engineer,Grantee may leave such Facilities
in place as long as Grantee has provided County with drawings showing the
locations of such Facilities,the same information in an electronic form suitable for
input into the County's GIS system, and subject to any other conditions required
by the Engineer. The Engineer's consent shall not relieve Grantee of the obligation
or costs to subsequently remove or alter the Facilities at the County's request, in
which case Grantee shall perform such work at no cost to the County in accordance
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with this Section 7.
7.3 The obligations contained in this Section 7 shall survive the expiration, revocation
or termination of this Franchise.
SECTION 8—RIGHTS NOT DERIVED FROM THIS FRANCHISE.
Nothing in Sections 6 or 7 shall require Grantee to bear any cost or expense in connection
with the relocation, modification, or removal of any Facilities then existing pursuant to
easement or such other rights not derived from this Franchise, regardless of whether the
easement is on public or private property and regardless of whether this Franchise co-exists
with such easement.
SECTION 9—COORDINATED AND SHARED EXCAVATIONS.
9.1 Grantee and the County shall each exercise their respective best reasonable efforts
to coordinate any construction work that either may undertake within the Franchise
Area so as to promote the orderly and expeditious performance and completion of
such work as a whole. Such efforts shall include, at a minimum, compliance with
JCC 13.56.270 and other reasonable and diligent efforts to keep the other Party and
other utilities within the Franchise Area informed of its intent to undertake such
construction work. Grantee and the County shall further exercise reasonable efforts
to minimize any delay or hindrance to any construction work undertaken by
themselves or other utilities within the Franchise Area. Grantee shall meet with the
County annually or more frequently, as reasonably determined by the County, to
coordinate construction activities.
9.2 If either Grantee or the County shall cause excavations to be made within the
Franchise Area,the Party causing such excavation to be made shall afford the other,
upon receipt of a written request to do so, an opportunity to use such excavation,
provided that: (a) such joint use shall not unreasonably delay the work of the Party
causing the excavation to be made; and, (b) such joint use shall be arranged and
accomplished on terms and conditions satisfactory to both Parties.
SECTION 10—HAZARDOUS SUBSTANCES.
10.1 In the exercise of its rights under this Franchise,Grantee agrees that it will not allow
or cause the release of any Hazardous Substance into or upon the Franchise Area
contrary to any local,state or federal law,rules,regulations,ordinances or standards
with respect thereto.
10.2 Within twenty-four(24)hours of any such release of Hazardous Substances that is
discovered by Grantee, Grantee shall notify the Engineer and the Washington
Department of Ecology in writing of such release.
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10.3 To the fullest extent required by applicable Federal or State law, Grantee shall be
completely liable for any and all consequences of any actual or alleged claim,
demand,request,action,duty,right,obligation(including contractual,common law
or statutory), liability, action, order, suit, lawsuit or proceeding of every kind and
nature,wherever and whenever occurring,whether at law or in equity,and whether
sounding in tort, contract, equity, nuisance, trespass, negligence, strict liability or
any statutory or common law cause of action, duty or obligation of any sort,
whether pursued by any person, insurer, corporation, association, governmental
entity, or any other public or private entity, arising out of any actual or threatened
release of Hazardous Substances allowed or caused by Grantee in the Franchise
Area based on, arising out of or relating to Grantee's alleged or actual acts,
omissions or responsibility for the Hazardous Substances into or upon the Franchise
Area.
10.4 To the fullest extent authorized by applicable Federal or State law,the County shall
be entitled to full reimbursement for any response to any actual, alleged or
threatened loss, cost or expense arising out of or in connection with the testing for,
monitoring, cleanup, removal, containment, treatment, detoxification,
neutralization, investigation, study, prevention, mitigation, restitution or
remediation of Hazardous Substances caused or allowed by Grantee, , whether
voluntary or involuntary or pursuant to any Environmental Law, governmental
order (consensual or otherwise), decree, judgment or other compulsion, whether
undertaken by the County or by some other person or entity at the expense of the
County and any damages incurred by it as the result of any release of Hazardous
Substances caused or allowed by Grantee into or upon the Franchise Area.
10.5 To the fullest extent authorized by applicable Federal or State law,the County shall
be entitled to full reimbursement for any alleged, actual, threatened, or potential
loss of natural resources; or alleged, actual, threatened, or potential damage to,
destruction of, diminution in value or loss of use of any property, whether owned
by the County or some other person,wherever,whenever,and how ever arising out
of the release of Hazardous Substances allowed or caused by Grantee into or upon
the Franchise Area.
10.6 The obligations contained in this Section 10 shall survive the expiration,revocation
or termination of this Franchise
SECTION 11 —GRADING OR EXCAVATING BY COUNTY.
This Franchise shall not preclude the County, its agents, employees, or contractors from
grading, excavating, or doing other work contiguous to Grantee's Facilities. However,
with respect to such grading, excavating, and other work, the County shall use its best
efforts to coordinate such work with Grantee so as to protect Grantee's Facilities from
harm, damage, or disturbance.
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SECTION 12—VACATION OF RIGHT-OF-WAY.
In the event the County vacates any portion of the Franchise Area, the Board may, at its
discretion and as authorized in chapter 12.10 JCC and RCW 36.87.140,retain an easement
within the vacated right-of-way for the construction, repair and maintenance of Grantee's
Facilities which at the time of the vacation are specifically authorized under this Franchise
or physically located on a portion of the land being vacated. Pursuant to JCC 13.56.070(6),
the Board may also, at its discretion and by giving ninety (90) days written notice to
Grantee, terminate this Franchise with reference to such portion of the Franchise Area so
vacated. The County shall not be liable for any damages or loss to Grantee by reason of
such termination.
SECTION 13—COMPENSATION.
13.1 County Expenses. Grantee shall reimburse the County for any administrative
expenses incurred by the County are related to: (a) developing and approving this
Franchise, (b)processing any permit applications, reviewing plans, and inspecting
construction; and, (c) preparing a detailed statement pursuant to chapter 43.21 C
RCW, if applicable. The expenses related to (a)above shall include staff wage and
benefit and indirect expenses as determined by the County, the expense to publish
and post legal notices of the public hearing required for this Franchise by RCW
36.55.040, and the expense to record this Franchise with the Jefferson County
Auditor as required by RCW 36.55.080.
13.2 Fees for Use of County Rights-of-Way. The Board specifically reserves the right,
to the extent permitted by county, state and federal laws as now exist or as later
amended or superseded,to fix a fair and reasonable compensation for the use of its
property. If the County elects to exercise such authority, Grantee will receive
written notice ("Compensation Notice")not less than 60 days prior to its effective
date and provide an opportunity to comment. Acceptance of the County's
definition, terms, and or formula identified in the Compensation Notice will occur
if Grantee accepts in writing within sixty days of receipt of the Compensation
Notice, in which case the applicable ordinance that the Board passes will be
determinative. Rejection by Grantee shall be deemed grounds for termination of
this Franchise. Any such enacted compensation terms will be applied on a
competitively neutral and non-discriminatory basis and in compliance with all
applicable then-existing laws.
SECTION 14—INDEMNIFICATION AND HOLD HARMLESS.
14.1 Grantee shall defend, indemnify, and hold harmless the County and its officers,
officials, employees, agents and volunteers, and their marital communities
(collectively the Indemnitees) from any claims, injuries, damages, losses or suits,
including attorney's fees, arising out of or resulting from the acts, errors or
omissions of the Contractor in performance of this Franchise, except for injuries
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and damages caused by the sole negligence of the County.
14.2 In the event any such claim or demand is presented to or filed with the County that
causes the County to choose to invoke its rights under this Section 14, the County
shall promptly notify Grantee thereof, and Grantee shall have the right, at its
election and at its sole cost and expense, to settle and compromise such claim or
demand as it pertains to Grantee's responsibility to indemnify, defend, and hold
harmless the Indemnitees. In the event any suit or action is begun against the
County based upon any such claim or demand,the County shall likewise promptly
notify Grantee thereof, and Grantee shall have the right, at its election and its sole
cost and expense, to settle and compromise such suit or action, or defend the same
at its sole cost and expense, by attorneys of its own election, as it pertains to
Grantee's responsibility to indemnify, defend, and hold harmless the Indemnitees.
14.3 In any and all claims against the Indemnitees by any officer, employee,
representative, or agent of Grantee, its contractors, subcontractors, or lessees, or
anyone directly or indirectly employed by any of them, or anyone for whose acts
any of them may be liable, the indemnification obligation under this Section 14
shall not be limited in any way by any limitation on the amount or type of damages,
compensation,or benefits payable by or for Grantee,its contractors,subcontractors,
or lessees under worker's compensation acts, disability benefit acts, or other
employee benefit acts. It is further specifically understood that,solely to the extent
required to enforce the indemnification provided herein, Grantee waives its
immunity under Title 51 RCW Industrial Insurance; provided, however, the
foregoing waiver shall not in any way preclude Grantee from raising such immunity
as a defense against any claim brought directly against Grantee by any of its
employees. This waiver has been mutually negotiated by the Parties and is
authorized by RCW 4.24.115. Grantee acknowledges that the County would not
enter into this Franchise without this waiver thereof.
14.4 Inspection or acceptance by the County of any work performed by Grantee shall
not be grounds for avoidance by Grantee of any of its obligations under this Section
14.
14.5 Said indemnification and hold harmless obligations shall extend to claims which
are not reduced to a suit and any claims which may be compromised prior to the
culmination of any litigation or the institution of any litigation.
14.6 In the event of liability for damages arising out of bodily injury to persons or
damages to property or business caused by or resulting from the concurrent
negligence of Grantee and the County, Grantee's liability hereunder shall apply
only to the extent of negligence attributable to Grantee, its agents, employees,
representatives, lessees, contractors, and subcontractors.
14.7 The provisions of this Section 14 shall survive the expiration or termination of this
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Franchise. Further, all provisions of this Section 14 shall apply to the successors,
assigns, and lessees of Grantee.
SECTION 15—INSURANCE.
15.1 Grantee Insurance. Grantee shall procure and maintain for the duration of this
Franchise the following insurance:
15.1.1 Commercial General Liability insurance and, if necessary, Umbrella
Liability insurance, which will cover bodily injury, property damage, and
any other exposure which can be reasonably identified as potentially arising
from Grantee's activities within the Franchise Area. The limit of liability
shall not be less than two million dollars ($2,000,000) per person, two
million dollars ($2,000,000) property damage and $2,000,000 for all other
types of liability. The County, its elected and appointed officers, officials,
employees, agents, and representatives shall be named as additional
insureds with respect to activities occurring within the Franchise Area.
Coverage shall be comprehensive with respect to Grantee's activities within
the Franchise Area and shall include completed operations, collapse,
explosions, and underground hazards.
15.1.2 Commercial Automobile Liability insurance for owned, non-owned, hired
and leased vehicles with limits of not less than one million dollars
($1,000,000) per person and three million dollars ($3,000,000) per
occurrence.
15.1.3 Workers' Compensation insurance as required by Title 51 RCW.
15.1.4 Grantee's commercial general liability policy shall include employers'
liability coverage with policy limits of not less than one million dollars
($1,000,000)per occurrence.
15.1.5 The insurance policies required by this Section 15 shall be maintained at all
times by Grantee. Grantee shall notify the County at least forty-five (45)
days before it cancels a policy. Grantee shall be obligated to replace or
renew a canceled or expiring policy and show proof in the form of a
certificate of insurance at least twenty (20) days before the expiration or
cancellation of the existing policy(s).
15.1.6 Grantee shall furnish the County with properly executed certificates of
insurance or a signed policy endorsement, which shall clearly evidence all
insurance required in this Section 15.1. The certificates will,at a minimum,
list the limits of liability and coverage.
15.1.7 Grantee or its agent will provide a copy of any and all insurance policies
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specified in this Franchise upon request of the County.
15.1.8 The insurance limits mandated for any insurance coverage required by this
Franchise are not intended to be an indication of limits of exposure nor are
they limitations on liability or indemnification.
15.1.9 Excepting Workers Compensation Insurance,the County shall be named on
all policies as an additional insured. Grantee's insurance shall be in all
circumstances primary to the insurance available to the County.
15.2 Self-Insurance. In lieu of the insurance requirements set forth in Section 15.1,
Grantee may self-insure against such risks in such amounts, subject to good utility
practice. Grantee shall provide the County with reasonable written evidence that
Grantee maintains such self-insurance.
15.3 The obligations contained in this Section 15 shall survive the expiration,revocation
or termination of this Franchise for a period of one (1) year or for as long as
Grantee's Facilities remain within the Franchise Area, whichever is longer.
Further, all provisions of this Section 15 shall apply to the successors, assigns, and
lessees of Grantee.
SECTION 16—LIMITATION OF LIABILITY.
16.1 The County's 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 officers,
officials,agents,employees, and representatives for any injury or damage from the
failure of Grantee to comply with the provisions of this Franchise; for any injury or
damage arising from the failure of Grantee to comply with or follow a directive,
order, or instruction of the Federal Communications Commission, any hearing
officer or administrative law judge, or a court of competent jurisdiction; 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.
16.2 The County shall not be liable for any damage to or loss of any of Grantee's
Facilities within the Franchise Area as a result of or in connection with any
Emergency removal or relocation, public works, public improvements,
construction, excavation, grading, filling, mowing, or work of any kind in the
Franchise Area by or on behalf of the County or any entity under contract with the
County, except for damage or loss caused by the negligence or willful misconduct
of the County or anyone acting for or on behalf of the County. The foregoing,
however,is not intended to,and will not in any way,limit the County's liability for
any breach by the County of this Franchise.
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SECTION 17—DISPUTE RESOLUTION.
17.1 The Parties agree to use their best efforts to prevent and resolve disputes before
they escalate into claims or legal actions.
17.2 Resolving Disputes through Negotiation. The Parties agree to use their best efforts
and good faith negotiations to resolve disputes arising out of or related to this
Franchise. To that end the Parties shall engage in the following dispute resolution
process should any such disputes arise:
17.2.1 Level One: The Engineer or designee shall meet with Grantee's Manager or
designee to discuss and attempt to resolve the dispute in a timely manner.
If they cannot resolve the dispute within fifteen(15)business days after the
referral of that dispute to Level One, either Party may refer the dispute to
Level Two as described herein.
17.2.2 Level Two: The County Administrator or designee shall meet with
Grantee's designated representative to discuss and attempt to resolve the
dispute in a timely manner.
17.3 In the event a dispute is referred to Level Two but is not resolved at Level Two
within fifteen (15) business days after that referral, then either Party may invoke
the rights provided to them by Section 18 or institute a legal proceeding in any court
or with governmental agency having jurisdiction over the dispute.
17.4 No provision of this Franchise shall be deemed to bar the right of either Party to
seek or obtain judicial relief from a violation of any provision of this Franchise;nor
to bar or otherwise limit the right of either Party to recover monetary damages for
such violations by the other Party or to seek and obtain judicial enforcement of the
other Party's obligations by means of specific performance, injunctive relief or
mandate, or any other remedy at law or in equity.
SECTION 18—TERMINATION OF FRANCHISE.
18.1 Default by Grantee. If Grantee materially breaches any term or condition of this
Franchise, the County may terminate this Franchise in accordance with Section
18.2. Upon termination of this Franchise, all rights of Grantee hereunder shall
cease.
18.2 Procedure. The County may terminate this Franchise if Grantee materially
breaches any term or condition of this Franchise and fails to cure such breach in all
material respects within sixty (60) days after Grantee's receipt of written demand
by the County to so comply. Prior to terminating this Franchise, the County shall
give Grantee at least ten(10) days written notice of a regularly scheduled meeting
of the Board of County Commissioners at which meeting the Board intends to
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formally revoke or terminate this Franchise. At such meeting, the Board shall
consider a report from the Engineer regarding the breach of this Franchise and hear
any Person desiring to be heard on the termination of this Franchise. If the Board
determines that Grantee's breach justifies revocation or termination of this
Franchise,the Board may pass a resolution declaring that this Franchise is revoked
or terminated.
18.3 Extension of Cure Period. If any breach of this Franchise by Grantee cannot be
corrected with due diligence within the sixty (60) day period specified in Section
18.2 due to events beyond Grantee's control,then the County may extend the time
within which Grantee may so comply for an additional period or periods not to
exceed thirty (30) days so long as Grantee commences promptly and diligently to
effect such compliance.
18.4 Force Majeure. A Party shall not be deemed in breach or default of any provisions
of this Franchise when earthquake, flood, storm or other natural disaster, civil
emergency, any failure or delay in the performance by the other Party or a Third-
Party who is not an employee, agent or contractor of the affected Party, or other
such circumstances beyond such Party's control(a"Force Majeure Event")prevent
performance or compliance. Upon removal or termination of the Force Majeure
Event, the Party claiming a Force Majeure Event shall promptly perform the
affected obligations in an orderly and expedited manner under this Franchise. The
Parties shall use all commercially reasonable efforts to eliminate or minimize any
delay caused by the Force Majeure Event.
18.5 Dispute Resolution. Neither Party may invoke or rely upon the terms and
obligations of this Section 18 (except for the Force Majeure rights in Section 18.4)
until such time as the Dispute Resolution procedure listed in Section 17 has been
utilized by the aggrieved Party.
SECTION 19—AMENDMENT OF FRANCHISE.
19.1 This Franchise may be amended only by mutual written agreement of the Parties
(which specifically states that it is an amendment to this Franchise).
19.2 During the term of this Franchise, either Party may propose amendments to this
Franchise to address opportunities or conflicts created as a result of changes to
federal, state or local franchise law.
SECTION 20—ASSIGNMENT OF FRANCHISE.
Grantee may not assign or otherwise transfer its rights, privileges or authority under this
Franchise without the prior written authorization and approval of the County. Any
assignment or transfer of any interest in this Franchise shall not be approved by the County
or be effective until the assignee or transferee becomes a signatory to this Franchise,
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assuming all rights and obligations hereunder and agreeing to perform the terms and
conditions under this Franchise.
SECTION 21 —BINDING ON SUCCESSORS AND ASSIGNS.
All provisions,conditions,regulations,and requirements herein contained shall be binding
upon the successors and assigns of Grantee and all privileges as well as all obligations and
liabilities of Grantee shall inure to its successors and assigns equally as if they were
specifically mentioned wherever Grantee is mentioned.
SECTION 22—NO THIRD-PARTY BENEFICIARIES
The Parties do not intend, and nothing in this Franchise shall be construed to mean, that
any provision in this Franchise is to benefit any person or entity who is not a Party.
SECTION 23—INCORPORATION/ANNEXATION
If any portion of the Franchise Area covered by this Franchise is incorporated into the
limits of any city or town, or into a new or existing County pursuant to Article XI of the
Washington State Constitution,this Franchise shall terminate as to any such portion within
the corporate limits of such city or town and the County shall be released of its obligations
under this Franchise as to the portion incorporated. This Franchise shall continue as to all
of the Franchise Area not incorporated into such city or town or new or existing County.
SECTION 24—NON-WAIVER OF RIGHTS
The excuse or forgiveness of performance or waiver of any provision(s) of this Franchise
shall not constitute a waiver of such provision(s) or future performance or prejudice the
right of the waiving Party to enforce any of the provisions of this Franchise at a subsequent
time.
SECTION 25—GOVERNING LAW AND VENUE
25.1 Governing Law. This Franchise has been and shall be construed as having been
made and executed within the State of Washington. The Parties stipulate that this
Franchise shall be governed by the laws of the State of Washington, both as to its
interpretation and performance. No Party shall argue or assert that any state law
other than Washington law applies to the governance or construction of this
Agreement.
25.2 Venue. Any action at law, suit in equity, or judicial proceeding arising out of this
Franchise shall be instituted and maintained only in the appropriate state court in
Jefferson County, Washington, subject to the venue provisions for actions against
counties in RCW 36.01.050.
Jarred Swalwell&Megan Kogut
Water Line Franchise-21
25.3 Attorney's Fees and Costs. Should either Party bring any legal action, each Party
in such action shall pay for its own attorney's fees and court costs.
SECTION 26—NOTICES
26.1 Notices. Any notices required or permitted to be given under this Franchise shall
be deemed properly served when deposited with the United States Postal Service,
postage paid, addressed to the Party to receive same.
Notice to the County shall be sent to:
Public Works Director
Jefferson County Public Works Department
623 Sheridan Street
Port Townsend, WA 98368
Notice and billings to Grantee shall be sent to:
Jarred Swalwell & Megan Kogut
811 Olele Point Rd
Port Ludlow, WA 98365
26.2 The Parties shall promptly notify each other of any change in the notice or billing
addresses.
SECTION 27—SEVERABILITY AND SURVIVABILITY
27.1 If a court of competent jurisdiction holds any part, term, or provision of this
Franchise to be illegal or invalid in whole or in part, the validity of the remaining
provisions shall not be affected and the Parties' rights and obligations shall be
construed and enforced as if this Franchise did not contain the particular provision
held to be invalid. The invalidity of any portion of this Franchise shall not abate,
reduce or otherwise affect any consideration or other obligation required of either
Party or any grant of right to either Party.
27.2 The terms and conditions contained in this Franchise that by their sense and context
are intended to survive the expiration or termination of this Franchise shall so
survive. Without limiting the generality of the preceding sentence, and for the
avoidance of doubt,the provisions that survive the term of this agreement include:
(a)controlling law; (b)insurance; and, (c)indemnification.
SECTION 28 —ENTIRE AGREEMENT
28.1 This Franchise is the complete expression of the terms and conditions hereunder
and cannot be changed orally,but only by an instrument in writing executed by the
Parties.
Jarred Swalwell&Megan Kogut
Water Line Franchise-22
28.2 This Franchise supersedes all prior or simultaneous representations, discussions,
negotiations, and agreements, whether written or oral, within the scope of this
Franchise. Any oral or written representations or understandings not incorporated
herein are specifically excluded.
28.3 No representation or promise not contained in this Franchise has been made.
28.4 The Parties are not entering into this Franchise based on any inducement, promise
or representation, expressed or implied, which is not contained in this Franchise.
SECTION 29—LEGAL AND REGULATORY COMPLIANCE
While performing under this Franchise, Grantee, its contractors and their employees must
comply with all applicable local, state and federal laws, codes,ordinances,and
regulations, including but not limited to:
a) Applicable regulations of the Washington Department of Labor and Industries,
including WA-DOSH Safety Regulations; and,
b) State and Federal Anti-Discrimination Laws.
SECTION 30—ARMS-LENGTH NEGOTIATIONS
The Parties agree this Franchise has been negotiated at arms-length, with the assistance
and advice of competent, independent legal counsel.
SECTION 31 —SIGNATURE IN COUNTERPARTS
This Franchise may be executed in one or more counterparts, each of which shall be
deemed an original, and all of which counterparts together shall constitute the same
instrument which may be sufficiently evidenced by one counterpart. Execution of this
Franchise at different times and places by the Parties shall not affect the validity of this
Franchise, so long as all the Parties execute a counterpart of this Franchise.
SECTION 32—FACSIMILE AND ELECTRONIC SIGNATURES
The Parties agree that facsimile and electronic signatures shall have the same force and
effect as original signatures.
SECTION 33—ATTACHMENTS OR EXHIBITS
Any document in this Franchise identified as an attachment or exhibit is part of this
Franchise and is incorporated by reference into this Franchise.
SECTION 34—REFERENCE TO SECTIONS IN THIS FRANCHISE
Jarred Swalwell&Megan Kogut
Water Line Franchise-23
Any reference to a section in this Franchise is a reference to a section of this Franchise,
unless clearly stated to the contrary.
SECTION 35—REPRESENTATIONS AND WARRANTIES
The Parties represent and warrant that:
35.1 Each person signing this Franchise is fully authorized to enter into this Franchise
on behalf of the Party for whom signature is being made;
35.2 Each Party that is a corporate entity is duly organized and validly existing in good
standing under the laws of one of the states of the United States of America;
35.3 The making and performance of this Franchise will violate no provision of law or
of any Party's articles of incorporation, charter, or by-laws;
35.4 Each corporate Party has taken all necessary corporate and internal legal actions to
duly approve the making and performance of this Franchise and that no further
corporate or other internal approval is necessary; and,
33.5 Each Party has read this Franchise in its entirety and know the contents of this
Franchise,that the terms are contractual and not merely recitals,and that they have
signed this Franchise, having obtained the advice of legal counsel.
SECTION 36—SEPA CATEGORAL EXEMPTION
This resolution is categorically exempt from the State Environmental Policy Act under
WAC 197-11-800(19).
SECTION 37—EFFECTIVE DATE
This resolution shall take effect and be in full force immediately upon approval and
adoption by the Board of County Commissioners.
[SIGNATURES ON FOLLOWING PAGE]
Jarred Swalwell&Megan Kogut
Water Line Franchise-24
APPROVED AND ADOPTED this day of ,2025.
JEFFERSON COUNTY
BOARD OF COMMISSIONERS
Heather Dudley-Nollette,District 1
Heidi Eisenhour,District 2
Greg Brotherton, District 3
ATTEST: APPROVED S TO FORM:
for 09/29/2025
Carolyn Gallaway, CMC Date Philip C. Hunsucker Date
Clerk of the Board Chief Civil Deputy Prosecuting Attorney
Jarred Swalwell&Megan Kogut
Water Line Franchise-25
EXHIBIT A
ACCEPTANCE OF RESOLUTION NO.
Jarred Swalwell & Meaan Kogut
The undersigned,Jarred Swalwell& Megan Kogut(Grantee),hereby wholly accepts Jefferson
County Resolution No. Granting A Nonexclusive Franchise which was adopted by
the Jefferson County Board of Commissioners on the day of , 2025
("the Franchise,"attached).
This Acceptance of the Franchise is unconditionally made without reservation and is expressly
part of the Franchise,which is hereby incorporated by reference. Grantee hereby accepts all of
the rights and privileges of the Franchise subject to all of the terms, conditions,duties, and
obligations provided therein.
IN TESTIMONY WHEREOF said Grantee has caused this written Acceptance to be executed in
its name by its undersigned authorized signer,thereunto duly authorized on the day
of , 2025.
Jarred Swalwell & Megan Kogut
Jarred Swalwell:
Megan Kogut:
State of Washington
County of Jefferson
This record was acknowledged before me on ,2025 by Jarred Swalwell
&Megan Kogut.
Notary Public in and for the State of Washington
My Commission Expires
Jarred Swalwell&Megan Kogut
Water Line Franchise-26
APPENDIX A
Franchise Location Map
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Jarred Swalwell&Megan Kogut
Water Line Franchise-27
Franchise Agreement
Public Hearing
Olele Point Water System
Jarred Swalwell / Megan Kogut
October 13, 2025
Josh Thornton
Real Property Specialist
Jefferson County Public Works
1
1
Agenda
October 13, 2025 2
Franchise Agreements
Olele Point Water System
Public Process
Questions
Next Steps
2
Franchise
Agreements
October 13, 2025 3
3
Franchise Agreements – What are they & why do we have them?
October 13, 2025 4
•RCW 36.55.010 authorizes BOCC to grant franchises:
“Any board of county commissioners may grant franchises to persons or private or
municipal corporations to use the right-of-way of county roads in their respective
counties for the construction and maintenance of waterworks, gas pipes, telephone,
telegraph, and electric light lines, sewers and any other such facilities.”
•JCC 13.56.070 (1) To the extent permitted by law, a franchise shall be required of any
utility provider who currently occupies or desires in the future to occupy rights-of-way
and to provide utility services to any person or area in the county.Utility provider shall
pay all the fees and/or taxes as provided herein and in the franchise agreement.
A franchise is a formal, legally binding agreement between the county, and utility or service
provider. The agreement grants the franchisee (the provider) the non-exclusive right to install,
maintain, and operate its infrastructure, such as pipelines, cables, conduits, and poles, within the
public land designated for roads, streets, and highways—known as the public right-of-way. It acts as
a long-term contractual permission, outlining specific terms, conditions, and responsibilities for the
company's use of public space to deliver services.
Counties have right-of-way franchises primarily to manage and control the use of their public
infrastructure for the benefit of their residents. These agreements allow essential services like
electricity, natural gas, water, internet, and cable television to be delivered throughout the county
by providing a legal framework for utility companies to access and utilize public land. Without such
franchises, counties would lack the necessary authority to regulate the placement and maintenance
of critical infrastructure, potentially leading to haphazard development, safety hazards, and
disputes over public space.
Furthermore, right-of-way franchises enable counties to ensure public safety, protect their assets,
and recover costs associated with managing the rights-of-way. They often include provisions for
proper construction standards, restoration of disturbed areas, and the ability to require relocation
of facilities if road improvements are necessary. For certain services like cable television, federal
and state laws also permit counties to collect franchise fees, providing a revenue stream that can
help offset the administrative and oversight costs of managing these essential public corridors.
4
Franchise Agreements – Exemptions
October 13, 2025 5
JCC 13.56.070(1)(a) Franchises will not be required for the
construction and maintenance of utility facilities serving one
single-family residence where such facilities will cross the rights-
of-way perpendicular to the rights-of-way line, plus or minus 10
degrees. Persons who fall under this franchise exemption shall enter
into an indemnification agreement before a utility permit will be issued.
This Jefferson County Code provision is a good thing for small single-user providers whose
improvements in the public right of way are minimal and it streamlines the process for
connecting individual residences to utilities. By exempting them from the lengthy and
complex franchise application process, it saves both them and the county significant time,
money, and administrative burden. The indemnification agreement still transfers risk from
the county to the provider for losses or damages. This exemption makes it much simpler
and quicker to get single-family service connected across a right-of-way.
5
Types of Franchise Agreements
October 13, 2025 6
Types of Franchise Agreements
•Telecommunications
•Cable TV
•Basic Telephone Service
•Small Cell Wireless Facilities / Traditional Wireless Communication Facilities
•Other Telecommunications (Internet or enhanced services operating on telephone or cable)
•Utility
•Water Provider – irrigation or potable water
•Sewer / Septic / Effluent Transport
•Electric Power
•Natural Gas
•Drainage
•Learn More: MRSC - Franchising -An Essential Tool for Right-of-Way Management
Federal and Washington State laws treat cable TV, telephone, and traditional utility
providers differently. Cable TV franchising requirements and fees are regulated under the
federal Cable Act. Some legacy telephone companies (for example successor to Pac Bell),
are exempt from needing a county granted franchise due to a statewide "grant" stemming
from RCW 80.36.040. Other utility providers such as power, water, sewer & gas as well as
enhanced telecommunications services offered by telephone & fiber companies have the
least amount of state and federal restrictions when it comes to county negotiated franchise
agreements.
6
Franchise Fee Legal Background
October 13, 2025 7
Prior to the 2019 WA State Supreme Court decision in King County vs. King County Water Districts, 194 Wn.2d 830, 453 P.3d 681 (2019), non-cable TV provider franchise fees were limited to only the administrative costs for developing, negotiating & finalizing franchises. This was because the legal interpretation at the time often viewed attempts to charge more than administrative costs as an unauthorized tax or an overreach of county authority.
In King County vs. King County Water Districts, the Supreme Court ruled franchise fees are not a tax but rather a bargained-for amount allowing a utility to make use of right-of-way (“a valuable property right”) for the operation of the utility.
JCC 13.56.150, JCC 13.72.100, and JCC 13.88.050 specifies the BoCC may establish fair and reasonable compensation to be paid for use of public right of way by a franchised utility provider. Newly negotiated franchise agreements incorporate a provision allowing the exercise of this right.
7
Olele Point Water System
Jarred Swalwell / Megan Kogut
Public Process
October 13, 2025 8
8
Franchise Agreement Procedural Process Requirements
October 13, 2025 9
RCW 36.55.040
Application—Notice of hearing.
On application being made to the county legislative authority for franchise, it shall fix a time and place for hearing the same, and shall cause the county auditor to give public notice
thereof at the expense of the applicant, by posting notices in three public places in the county seat of the county at least fifteen days before the day fixed for the hearing. The
county legislative authority shall also publish a like notice two times in the official newspaper of the county, the last publication to be not less than five days before the day fixed for the hearing.The notice shall state the name or names of the applicant or
applicants, a description of the county roads by reference to section, township and range in which the county roads or portions thereof are physically located, to be included in the
franchise for which the application is made, and the time and place fixed for the hearing.
[1985 c 469 s 49; 1963 c 4 s 36.55.040. Prior: 1961 c 55 s 3; prior: 1937 c 187 s 38, part; RRS s 6450-38, part.]
State Law RCW 36.55.040 requires a public hearing take place and details that notices must
be posted in three public places at least 15 days before the hearing date. Another
requirement is that the public hearing notice be published two times in the county's official
newspaper. The last publication must be no less than five days before the hearing.
9
Franchise Agreement Procedural Process Requirements
October 13, 2025 10
RCW 36.55.050
Hearing—Order.
The hearing may be adjourned from time to time by the order of the board of county
commissioners. If, after the hearing, the board deems it to be for the public interest
to grant the franchise in whole or in part, it may make and enter a resolution to that
effect and may require the applicant to place his or her utility and its appurtenances in
such location on or along the county road as the board finds will cause the least
interference with other uses of the road.
[2009 c 549 s 4094;1963 c 4 s 36.55.050. Prior:1961 c 55 s 4; prior: 1937 c 187 s 38,
part; RRS s 6450-38, part.]
10
Franchise Agreement Public Process Timeline
July 21, 2025 11
•Public Hearing Notice – Consent Agenda (September 15, 2025)
•Publication in The Port Townsend & Jefferson County Leader on October 1, 2025 and
October 8, 2025
•Hearing Notice Posted on Jefferson County’s Website (September 15, 2025)
•Hearing Notice Posted in 3 Public Locations (September 23, 2025)
Courthouse
Public Library
Port Townsend Post Office
•Public Hearing (October 13, 2025)
Jefferson County, WA |
Official Website
11
Next Steps
October 13, 2025 12
12
Franchise Agreement Public Process
October 13, 2025 13
•After closing the public hearing, the Board may:
•grant the franchise without revision;
•request Public Works compile and respond to comments from hearing & develop
recommended revisions to submit to BoCC & Applicant for consideration; or,
•deny franchise for cause (for example, no or insufficient public benefit, safety
concerns, failure to meet application requirements, applicants inability to perform
or environmental impact).
•If Board approves the agreement, Public Works will forward to Jarred Swalwell and
Megan Kogut for acceptance within 60 days along with a bill for any costs exceeding
application fee if applicable.
•Agreement will be recorded with signed copies distributed to BoCC, Public Works &
Applicant.
13
Questions?
October 13, 2025 14
14