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HomeMy WebLinkAbout053 10 STATE OF WASHINGTON COUNTY OF JEFFERSON In The Matter of the Application by Washington State Parks arid Recreation Commission For a Nonexclusive Franchise To Construct, Maintain, and Operate A Sanitary Sewer Force Main Together With Other Appurtenances Under, Upon, Along, and Across County Road Rights-of-Way Within Unincorporated Jefferson County ) ) ) ) ) Resolution 53-10 ) Granting A Nonexclusive Franchise ) ) ) WHEREAS, the Washington State Parks and Recreation Commission, hereinafter Grantee, proposes to construct a sanitary sewer system to serve the Dosewallips State Park consisting of facilities to collect sewage effluent at the Dosewallips State Park and convey it by a force main to an off-site treatment and disposal facility located on property owned by Grantee in the Northwest Quarter of the Southwest Quarter of Section 35, Township 26 North, Range 2 West, W.M.; and WHEREAS, pursuant to the Revised Code of Washington (RCW) Chapter 36.55 and Jefferson County Code Chapter 13.56, utility providers who wish to occupy County Road rights-of- way are required to obtain a franchise from Jefferson County; and WHEREAS, Grantee has applied to the Jefferson Board of County Commissioners, hereinafter the Board, for a nonexclusive franchise to install, construct, repair, replace, maintain, relocate, remove, operate, and use a sanitary sewer force main together with pumping stations and other appurtenances in, upon, under, along, through, and across public rights-of-way in unincorporated Jefferson County in the areas listed in Attachment A - Washington State Parks and Recreation Commission Franchise Area, hereinafter the Franchise Area in order to provide sanitary sewer service to the Dosewallips State Park; and WHEREAS, Jefferson County Code Chapter 13.56 specifies standards and procedures for granting nonexclusive franchises for utility providers to occupy County rights-of-way; and WHEREAS, the Board of County Commissioners finds that granting a franchise is consistent with the requirements of Jefferson County Code, Section 13.56.080 in that: 1. Grantee has the financial and technical ability to fulfill its obligations under a franchise granted by Jefferson County; 2. .Grantee has legal standing to be granted a franchise; 3. County rights-of-way listed in Attachment A - Washington State Parks and Recreation Commission Franchise Area have the capacity to accommodate Grantee's facilities, provided that there is appropriate planning and provision for insta1lation, maintenance, and repair of Grantee's facilities; 4. Granting the franchise would not significantly damage or disrupt public or private facilities, improvements, services, travel, or landscaping, provided that there is appropriate planning and provision for installation, maintenance, and repair of Grantee's facilities; 5. 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; 6. Granting a franchise will enable Grantee to continue to provide sanitary sewage facilities at the Dosewallips State Park; 7. Granting a franchise will protect the public's health, safety, and welfare; 8. Granting a franchise is consistent with applicable Federal, State, and County laws, regulations, rules, and policies, including Chapter 36.55 RCW and Jefferson County Code Chapter 13.56; and WHEREAS, adoption of a Resolution by the Board granting a nonexclusive franchise to Grantee, setting forth terms and conditions of the franchise, and providing for County administration and regulation of the franchise would memorialize the relationship between Grantee and the County; and WHEREAS, pursuant to Chapter 36.55 RCW, notice of the Board's public hearing on the Franchise was posted in three public places in the County seat at least fifteen (15) days before the hearing date and was published once a week for two 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 15th day of November, 2010; and WHEREAS, the Board of County Commissioners finds that it is in the public interest to grant the nonexclusive franchise; NOW, THEREFORE, BElT RESOLVED BY THE BOARD OF COMMISSIONERS OF JEFFERSON COUNTY that a nonexclusive franchise is hereby granted to Grantee to install, construct, repair, replace, maintain, relocate, remove, operate, and use Facilities in, upon, under, along, through, and across the Franchise Area as listed in Attachment A - Washington State Parks and Recreation Commission Franchise Area in order to provide sanitary sewer service to the Dosewallips State Park under the following express terms and conditions: SECTION 1 DEFINITIONS The terms listed below, as used in this Franchise, shall have the meanings given herein. 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 shall be applicable to all genders. The words "shall" and "will" are mandatory, and the word "may" is permissive. Words not othetwise defined shall be given their common and ordinary meaning. 1.1 "Board" means Board of County Commissioners of Jefferson County. 1.2 "County" means Jefferson County, a municipal corporation and political subdivision of the State of Washington, represented by its designated employees, representatives, and agents, including, but not limited to the County Administrator, County Engineer, and their designees. Washington State Parks and Recreation Commission 2 1.3 "Emergency" means any condition constituting a clear and present danger to life, health, safety, or property. 1.4 "Engineer" means the County Engineer or designee. 1.5 ''Facilities'' means collectively (i) a sanitary sewer force main and (ll) any and all other equipment, appliances, attachments, appurtenances and other items necessary, convenient, or in any way appertaining to the foregoing, whether located above or under ground. 1.6 "Franchise" means the grant of rights, privileges, and authority 'embodied in this Resolution. 1.7 "Franchise Area" means all rights-of-way for County roads, streets, avenues, alleys, and highways located within those areas of the County listed in Attachment A - Washington State Parks and Recreation Commission Franchise Area 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 unrelated to the roads, streets, avenues, alleys and/or highways described 'above, including, but not limited to, parks, trails, facilities, or pits or (b) Grantee-owned or leased properties or easements located inside or outside of the boundaries of the County. 1.8 "JCC" means the Jefferson County Code, as it now exists or as it is later amended or superseded. 1.9 "Manual on Uniform Traffic Control Devices" means the manual published by the United States Department of Transportation, Federal Highway Administration that contains standards for traffic control signs, siguals, and pavement markings in the United States, as it now exists or as later amended or superseded. 1.10 "Parties" or "Party" means collectively the County and Grantee, and individually either the County or Grantee. 1.11 "Person" means an individual, entity, corporation, partnership, firm, association,joint venture, or organization of any kind. 1.12 "Public Improvement Project" means any County capital improvement, including projects listed in the County's Six-Year Transportation Improvement Program or Annual Construction Program, or the construction, relocation, expansion, repair, maintenance, or removal of any County-owned facility located on, in, over, or under the Franchise Area for parks; roads and/or streets; curbs and/or sidewalks; pedestrian, bicycle, and/or other non-motorized transportation facilities; water systems; sanitary sewer systems; bridges, culverts, and storm drainage facilities; and County-owned fiber optic cable, conduit, ornetwork facilities. Forthe avoidance of doubt, a Public Improvement Project will not include any development or other activity requiring the relocation of Grantee's Facilities for the benefit of a Third Party. Any such relocation shall be subject to the rights provided to Grantee in Section 4.9. Washington Stale Parks and Recreation Commission 3 1.13 "Third Party" m!:ans any Person other than th!: County and Grant\Je. SECTION 2 FRANClllSE 2.1 Grant of Franchise. 2.1.1 Pursuant to the laws of the State of Washington, including, but not limited to, Chapter 36.55 RCW the County hereby grants to Grant\Je, subject to and in accordance with the terms and conditions set forth herein, a nonexclusiv!: franchise to install, construct, repair, replace, maintain, relocate, r!:move, op!:!ate, and us!: Facilities in, upon, under, along, through, and across th!: Franchise Area. 2.1.2 The Franchise shall not convey to Grant\Je 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 t= stated herein. 2.1.3 The Franchise shall not authorize, !:xcus!:, pr!:c1ud!:, or prohibit Grantee from securing such furth!:r eas!:ments, 1eas!:s, permits, or oth!:r approvals as may be required or desired to lawfully occupy and use th!: Franchise Area. 2.1.4 Th!: Franchis!: shall not gov!:rn or apply to any Faciliti!:S loCated on Grant\Je-owned or leas!:d propertl!:s or !:as!:ments and such Faeiliti!:S are not and will not Ix: d\Jem!:d to be located pursuant to rights dllrived from this Franchise. 2. i.5 Th!: Franchise granted shall not b!: construoo as any warranty of title. 2.1.6 No act, !:vent or occurrence shall give Grant\Je any rights to occupy or use the Franchise Area P=aDently nor shall operate as an !:stoppel against the County. 2.1.7Grant\Je specifically agr\Jes to exercise its rights within th!: Franchise Area in accordance with all applicabl!: fooeraland Stat!: of Washington laws and applicable rules and regulations, as now exist or as !at!:! am!:nded or superseded; and all applicable County cod!:S, including, but not limited to, JCC Chapter 13.56 Utilities, r!:SOlutions,and ordinances, as now exist or as later amendoo 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, r!:Solutions and ordinanC!:S. The express t!:rmS and conditions of this Franchise constitute a valid and enforceable contract between the Parti!:S. 2.2 Noninterference. All construction, installation, service, repair, or maintenance of Grant\Je's Facilities performed upon, over, under, along, andlor across the Franchise Area shall Ix: done in such a manner as not to interfere with the fr\Je passage of pedestrian andl 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 facilities and uses within the Franchise Area; or the use, maintenance, and repair of existing utilities, drainage Washington State Parks and Recreation Commission 4 facilities, or other improvements located within the Franchise Area. Grantee's Facilities shall have the same preference in regard to non-County facilities, including, but not limited to, utilities, drainage facilities, or other improvements that are proposed to be installed in the Franchise Area subsequent in time to Grantee's Facilities. Nothing in this Section 2.2 is intended to or will affect or modifY the rights and obligations of the Parties with respect to the relocation of Grantee's Facilities under Section 4. All relocations of Grantee's Facilities will be undertaken subject to and in accordance with the terms, conditions, and requirements set forth in Section 4. 2.3 Drawings. Within ninety (90) days of completion of construction of Grantee's Facilities within the Franchise Area, Grantee shall provide the County with record drawings showing the location of Grantee's Facilities within the Franchise Area. Upon the County's request, in connection with the design of any County Public Improvement Project within the Franchise Area, Grantee shall verifY the location of its Facilities within the Franchise Area by excavating, including pot holing, 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. 2.4 Term of Franchise. 2.4.1 Term of Franchise. This Franchise is granted for a period of twenty-five (25) years from the date of adoption of the Franchise by the Board. 2.4.2 As express conditions of this Franchise, within thirty (30) days after the adoption of this Franchise by the Board, Grantee shall: a. File with the Clerk of the Board its written acceptance of the Franchise; b. Reimburse the County for the administrative expenses required to be paid by Grantee under Section 8.1; c. Provide to the County the evidence of insurance as required by Section 10; and d. Reimburse the County for the cost of posting and publishing the public hearing notice as required by 36.55.040 RCW and for the cost of filing this Franchise with the Jefferson County Auditor as required by Chapter 36.55.080 RCW. 2.4.3 In the event Grantee fails to accept this Franchise in the manner specified above within the said thirty (30) days, this Franchise shall be null and void. 2.4.4 Franchise Renewal. This Franchise may be renewed, at the sole discretion of the Board, for an additional twenty-five (25) year period upon the written request of Grantee, such request to be submitted not more than two (2) years nor less than one hundred-eighty (180) days prior to the expiration of the initial twenty-five (25) year term. Washington State Parks and Recreation Commission 5 2.5 Nonexclusive Franchise. The Franchise granted herein shall be nonexclusive. The County specifically reserves the right to grant at any time such rights, permits, licenses, and/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, 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 unless the County expressly agrees to such exclusion in writing. SECTION 3 PERFORMANCE OF WORK 3.1 Permit Required. 3.1.1 Work by Grantee within the Franchise Area shall conform to the requirements of the applicable codes, ordinances, and standards, including JCC Chapter 13.56 Utilities; 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. 3.1.2 Prior to commencing any work within the Franchise Area, Grantee shall apply for and receive a utility permit from the County pursilant to the requirements of lCC 13.56 Utilities. 3.1.3 Work by Grantee shall comply with the utility permit and plans; provided, however, in the event of any conflict or inconsistency between such permit or plans and this Franchise, the express terms and conditions of this Franchise will govern and control. The County may order removal at Grantee's expense of work that does not comply with the permit or plans. 3.1.4 Grantee is solely responsible for the performance and completion of work authorized by a utility permit that is issued to Grantee. 3.2 Emergency Response and Repairs. 3.2.1 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, provided that Grantee shall notify the County in writing before commencing the work or within twenty-four (24) hours, if advance notice is not practicable. In the event that Grantee conducts emergency repairs under this section, Grantee shall make application for an utility permit as soon as practicable, but in no event (unless waived by the County) later than thirty (30) days from the emergency event 3.2.2 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. 3.3 Restoration. After installation, construction, relocation, maintenance, removal, repair, or Washington State Parks and Recreation Commission 6 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 thatmay 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 and County property after restoration pursuant to the provisions of applicable County codes, ordinances, regulations, standards, and procedures as now exist or as later amended or superseded; provided, however, in the event of any conflict or inconsistency between such codes, ordinances, regulations, standards, or procedures and this Franchise, the express terms and conditions of this Franchise will govern and control; provided, further, nothing herein shall be deemed to waive, prejudice, or limit any right of appeal afforded by such codes, ordinances, regulations, standards, or procedures. Grantee or its agent shall contact the County for inspection upon completion of work. 3.4 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. 3.5 Monuments. All survey monuments that are disturbed, displaced, or destroyed by Grantee ill its performance of any work under this Franchise shall be referenced and restored by Grantee, as per Chapter 332-120 WAC, as from time to time amended. and all pertinent federal, state and local standards and specifications. 3.6 Workmanlike Manner. All work performed by Grantee within the Franchise Area shall be done in accordance with adopted County codes, ordinances, regulations, standards, and procedures, tOgether with the laws of the State of Washington, all as now exist or as later amended or superseded in a thorough, professional, and workmanlike manner; provided, however, in the event of any conflict or inconsistency between any County codes, ordinances, regulations, standards, or procedures and this Franchise, the express terms and conditions of this Franchise will govern and c~L . 3.7 Traffic ControL Grantee's activities within the Franchise Area and activities within the Franchise Area conducted by Grantee's agents or by Third Parties 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. Washington State Parks and Recreation Commission 7 SECTION 4 RELOCATION OF FACILITIES FOR PUBLIC IMPROVEMENT PROJECTS 4.1 Grantee at its own expense shall relocate 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 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 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 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. 4.2 In order to assist Grantee in planning for Public Improvement Projects that may require relocation of Grantee's Facilities within the Franchise Area, the County shall: a NotifY Grantee if a Public Improvement Project within the Franchise Area is proposed in the Jefferson County Six Year Transportation Improvement Program within thirty (30) days of the Program's adoption by the Board; b. NotifY Grantee if a Public Improvement Project within the Franchise Area is proposed in the Jefferson County Annual Construction Program within thirty (30) days of the Program's adoption by the Board; c. Meet with Grantee at Grantee's request during the first quarter of each year to discuss Public Improvement Projects in the Annual Construction Program that may require relocation of Grantee's Facilities; and d. Provide Grantee with written notice and thirty percent (30%) complete plans for Public Improvement Projects that may require relocation of Grantee's Facilities within thirty (30) days of their preparation. 4.3 Whenever the County undertakes a Public Improvement Project that requires relocation 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 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 4.4 or Section 4.5, Grantee shall provide the County with a proposed schedule to relocate its Facilities within the Franchise Area that will accommodate the County's schedule for the Public Improvement Project. 4.4 If Grantee foresees that it may be unable to relocate its Facilities to accommodate the Washington State Parks and Recreation Commission 8 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 its Facilities to accommodate the County's schedule for the Public Improvement Project and a: proposed alternative schedule. The County shall evaluate Grantee's request and proposed alternative schedule in good faith and under the review standard specified below in this Section 4.4 and provide a written response to Grantee. The County shall give Grantee's request full and fair consideration with due regard to Grantee's constraints and all other facts and circumstances which bear upon the request and shall not unreasonably withhold its approval of the request. 4.4.1 In the event that the County, under the review standard required above, approves Grantee's request, thereafter and subject to this Section 4 the County and Grantee shall work cooperatively to establish a revised schedule for the Public Improvement Project and the relocation of Grantee's Facilities and Grantee shall relocate 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 4.4. 4.4.2 In the event that the County, under the review standard required above, reasonably and properly denies Grantee's request, thereafter and subject to this Section 4 Grantee shall relocate its Facilities within the Franchise Area so as to accommodate the County's schedule for the Public Improvement Project. 4.5 After receipt of written notice of the required relocation and reasonable plans, specifications, and schedule for the Public Improvement Project under Section 4.3, Grantee may submit a request to the County to perform the relocation concurrently with the Public Improvement Project. Grantee shall submit said request with a proposed schedule for concurrent relocation not more than thirty (30) days after receiving the County's notice of the required relocation under Section 4.3. The County shall evaluate Grantee's request and proposed schedule in good faith and under the review standard specified below in this Section 4.5 and provide a written response to Grantee. 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 not unreasonably withhold its approval of the request. 4.5.1 In the event the County, under the review standard required above, approves Grantee's request to relocate its Facilities concurrently with the Public Improvement Project, the County and Grantee shall thereafter work cooperatively to establish a schedule for the concurrent relocation of Grantee's Facilities and Grantee shall relocate its Facilities within the Franchise Area so as to accommodate said schedule for concurrent relocation that is established pursuant to this . Section 4.5. 4.5.2 In the event the County, under the review standard required above, reasonably and properly denies Grantee's request that the relocation be performed concurrently with the Public Improvement Project, Grantee shall relocate its Facilities within the Franchise Area so as to accommodate the County's schedule for the Public Improvement Project. Washington State Parks and Recreation Commission 9 4.6 Subject to compliance by the County with the terms of this Section 4 and to the maximum extent provided by law, Grantee shall reimburse the County for any and all costs, expenses, and/or damages that are legally required to be paid by the County to its Third Party contractor(s) as a direct result of a delay in meeting the schedule for a Public Improvement Project that has been established under Section 4.3 when Grantee has not exercised its rights under Section 4.4 or Section 4.5 or that has been established pursuant to Section 4.4 or Section 4.5, but only if, as, and to the extent the delay is directly caused by Grantee's breach of its obligations under this Section 4 with respect to the relocation of Grantee's Facilities within the Franchise Area in accordance with such 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 4.6 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 established by the County in violation of the provisions for schedule adjustments under Section 4.4 or Section 4.5 or the delay is caused by the County, any Third Party, or a Force MDjeure Event under Section 13.4. 4.7 If the County requires the subsequent relocation of any Facilities within five (5) years from the date of relocation of such Facilities pursuant to this Section 4, the County shall bear the entire cost of such subsequent relocation, except if the relocation is required by an emergency under Section 4.8. 4.8 If an emergency arises that endangers public health or safety, public property, or the property or life of any individual 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. 4.9 Whenever (a) any public or private development within the Franchise Area, other than a Public Improvement Project, requires the relocation of Grantee's Facilities within the Franchise Area to accommodate such development; or (b) the County requires the relocation of Grantee's Facilities within the Franchise Area for the benefit of any Third Party, then in such event, Grantee shall have the right as a condition of such relocation to require such development proponent or Third Party to reimburse Grantee, at a time and upon terms acceptable to Grantee, for any and all reasonable costs and expenses incurred by Grantee in the relocation of Grantee's Facilities. 4.9. I Any condition or requirement imposed by the County upon any Third Party that requires the relocation of Grantee's Facilities shall be a required relocation for the purposes of this Section 4.9, 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. SECTION 5 RIGHTS NOT DERIVED FROM THIS FRANCHISE 5.1 Nothing in this Franchise shllll require Grantee to bear any cost or expense in connection Washington State Parks and Recreation Commission 10 with the relocation, modification, or removal of any Facilities that have been constructed pursuant to an easement or such other rights not derived from this Franchise. SECTION 6 GRADING OR EXCAVATING BY COUNTY 6.1 Grading and Excavating. 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.. SECTION 7 VACATION 7.1 In the event the County vacates any portion of the Franchise Area, the Board may, at its discretion and as provided for in Chapter 36.87.140 RCW, retain an easement in respect to the vacated land for the construction, maintenance, repair, and replacement of Grantee's Facilities that at the time of the vacation are authorized under this Franchise. The Board may also, at its discretion and by giving forty-five (45) 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 the Grantee by reason of such termination. SECTION 8 RIGHTS AND POWERS RESERVED TO THE COUNTY 8.1 County Expenses. The Grantee shall reimburse the County for the County's administrative expenses that are directly related to (a) receiving and approving a permit, license, or this Franchise, (b) inspecting plans and construction, and (c) preparing a detailed statement pursuant to Chapter 43.21 C RCW. The reimbursable expenses of receiving and approving this Franchise shal1 include the expenses for County staff time preparing this Franchise, posting and publication of hearing notices, and filing this Franchise with the Jefferson County Auditor. 8.2 Damage to Grantee's Facilities. 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 or any other written agreement between the Parties or otherwise limit any right or remedy to which Grantee is entitled by contract or applicable law. SECTION 9 INDEMNIFICATION AND HOLD HARMLESS 9.1 To the extent permitted by law, Grantee shall indemnify, defend, and hold harmless the County, its elected and appointed officers, officials, employees, representatives, and agents (collectively the "Indemnitees") from any and all Third Party claims, demands, actions, suits, liabilities, losses, expenses, nAmAges, and judgments of any nature whatsoever, including all costs Washington State Parks and Recreation Commission 11 and attorneys fees, made against the Indemnitees on account of injury or damage to the person or property of another, to the extent such injury or damage is caused by the negligence of Grantee, its agents, representatives, or employees in exercising the rights granted to Grantee under this Franchise. 9.2 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 9, 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 Indernnitees. 9.3 Grantee shall, with respect to design, installation, construction, maintenance, repair, or replacement of the Facilities, require its contractors, including, but not limited to, its prime or general contractor for installation, construction, maintenance, repair, or replacement of the Facilities to contractually agree to indemnify and hold harmless the County, its elected and appointed officers, officials, employees, representatives, and agents (collectively the "Indemnitees") from any and all Third Party claims. demands, actions, suits, liabilities, losses, expenses, damages, and judgments of any nature whatsoever, including all costs and attorneys fees, made against the Indemnitees on account ofinjury or damage to the person or property of another, to the extent such injury or damage is caused by the negligence of said contractor, its agents, representatives, employees, or subcontractors in the installation, construction, maintenance, repair, and replacement of the Facilities. 9.4 In'any and all claims against the Indemnitees by any officer, employee, representative, or agent of the Grantee or its contractors, the indemnification obligation under this Section 9 shall not be limited in any way by any limitation on the amount or type of damages, compensation, or benefits payable by or for the Grantee or its contractors 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 Chapter 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. 9.5 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 9. 9.6 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. Washington State Parks and Recreation Commission 12 9.7 In the event ofliability for damages arising out of bodily injury to Persons or damages to property or business caused by or resu1ting from the concurrent negligence of Grantee and the County, Grantee's liability hereunder sha1l apply only to the extent of negligence attributable to the Grantee, its agents, representatives, or employees. 9.8 The provisions of this Section 9 shall survive the expiration or termination of this Franchise. Further, all provisions of this Section 9 shall apply to the successors, assigns, and lessees of Grantee. SECfION 10 INSURANCE 10.1 Grantee Insurance. Grantee shall procure and maintain for the duration of this Franchise the fo1lowing insurance: a. Commercial General Liability insurance and, if necessary, Umbre1la Liability insurance, which covers 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 five million dollars ($5,000,000) each occurrence. 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 sha1l be comprehensive with respect to the Grantee's activities within the Franchise Area and shall include completed operations, collapse, explosions, and underground hazards. b. Business Automobile Liability insurance for owned, non-owned, and hired vehicles with limits of not less than five miIlion do1lars ($5,000,000) per person, five mi1lion dollars ($5,000,000) per occurrence. c. Workers' Compensation insurance as required by Chapter 51 RCW and Employers Liability Coverage with a limit of not less than five million dollars ($5,000,000) per occurrence. d. The insurance policies required by this section shall be maintained at all times by Grantee. Each liability policy shall be endorsed to require the insurer to notify the County at least forty-five (45) days before the policy can be canceled by either Party, and to reqUire notice of cancellation due to non-payment of premium to be mailed to the County as we1l as the named insured. Grantee shall be obligated to replace or renew the canceled or expiring policy and show proofin the form of a certificate of insurance, at least twenty (20) days before the expiration or cancellation of the existing policy(s). e. 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 10.1. The certificates wi1l, at a minimum, list the limits ofliability and coverage. f. Grantee will provide a copy of any and all insurance policies specified in this Franchise upon request of the County. g. The insurance limits mandated for any insurance coverage required by this Franchise are not Washington Stale Parks and Recreation Commission 13 intended to be an indication of limits of exposure nor are they limitations on liability or indemnification. 10.2 Self-Insurance. In lieu of the insurance requirements set forth in Section 10.1, Grantee may self-insure against such risks in such amotlllts. Grantee shall provide the COtlllty with reasonable written evidence that the Grantee maintains such self-insurance. 10.3 The obligations contained in this Section 10 shall survive the expiration, revocation or termination of this Franchise. Further, all provisions of this Section 10 shall apply to the successors, assigns, and lessees of Grantee. SECTION 11 LIMITATION OF LIABILITY 11.1 The COtlllty's administration of this Franchise shall not be construed to create the basis for any liability on the part of the COtlllty, 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 thi.s Franchise; for any injury or damage arising from the failure of Grantee to comply with or follow a directive, order, or instruction of any hearing officer or administrative law judge, and/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 COtlllty; for any action or inaction thereof authorized or done in connection with the implementation or enforcement of this Franchise by the COtlllty; or for the accuracy of plans submitted to the County. SECTION 12 DISPUTE RESOLUTION 12.1 The Parties agree to use their best efforts to prevent and resolve disputes before they escalate into claims or legal actions. 12.2 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: a. Level One: The Engineer or his designee shall meet with the Dosewallips State Park Manager or his 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. b. Level Two: The County Administrator or his designee shall meet with the Director of Parks and Recreation or his designee to discuss and attempt to resolve the dispute in a timely manner. 12.3 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 13 or institute a legal proceeding in any court and/or with gove=ental agency having jurisdiction over the dispute. Washington State Parks and Recreation Commission 14 12.4 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 eithe~ 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 13 TERMINATION OF FRANCHISE 13.1 Default by Grantee. If Grantee materially breaches any term or condition of this Franchise, the County may terminate this Franchise in accordance with Section 13.2. Upon termination of the Franchise, all rights of Grantee hereunder shall cease. 13.2 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 the Franchise, the County shall give the 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 formally revoke or terminate the Franchise. At such meeting, the Board shall consider a report from the Engineer regarding the Franchise breach and hear any Person desiring to be heard on the Franchise termination. If the Board determines that Grantee's breach justifies revocation or termination of the Franchise, the Board may pass a resolution declaring that the Franchise is revoked or terminated. 13.3 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 13.2 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. 13.4 Force Majeure. A Party shall not be deemed in breach or default of any provisions of this Franchise when earthquake, flood, storm or other natura1 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. 13.5 Dispute Resolution. Neither Party may invoke orrely upon the terms and obligations of this Section 13 (except for the Force Majeure rights in Section 13.4) until such time as the Dispute Resolution procedure listed in Section 12 has been utilized by the aggrieved Party. SECTION 14 ASSIGNMENT OF FRANCmSE 14.1 Assignment. Grantee may not assign or otherwise transfer its rights, privileges or Washington State Parks and Recreation Commission 15 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, assuming all rights and obligations hereunder and agreeing to perform the terms and conditions under this Franchise. 14.2 Binding on Successors. 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 15 INCORPORATION/ANNEXATION 15.1 City or Town. If any portion of the Franchise Area covered by this Franchise is incorporated into the limits of any city or town, 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 a city or town. 15.2 New County. If, pursuant to Article XI ~3 of the State of Washington Constitution, territory is stricken or taken from the County and a new county is established from the territory taken from the County, this Franchise shall terminate as to any portion of the Franchise Area within the territory so taken to establish the new county and the County shall be released of its obligations under this Franchise as to the territory' taken. This Franchise shall continue as to all of the Franchise Area not taken from the County. SECTION 16 NON-WAIVER OF RIGHTS 16.1 The County and Grantee agree that the excuse or forgiveness of performance or waiver of any provision(s) of this Franchise does 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 17 GOVERNING LAW AND VENUE 17.1 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. 17.2 Venue. Any action at law, suit in equity, or judicial proceeding arising out of this Franchise shall be instituted and maintained only in any of the courts of competent jurisdiction in Jefferson County, Washington or as provided for in Chapter 36.01.050 RCW. SECTION 18 NOTICES 18.1 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, Washington State Parks and Recreation Commission 16 addressed to the Party to receive same. Notice to the County shall be sent to: Jefferson County Public Works Department 623 Sheridan Street Port Townsend, W A 98368 Notice and billings to Grantee shall be sent to: Washington State Parks and Recreation Commission PO Box 42650 Olympia, W A 98504-2650 Grantee shall promptly notify the County of any change in the notice or billing addresses. SECTION 19 SEVERABILITY AND SURVIVABILITY 19.1 If a court of competent jurisdiction holds any part, term, or provision of this Franchise to be ilIegal 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 the 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. 19.2 The headings of the sections and paragraphs of this Franchise are for convenience of reference only and are not intended to restrict, affect, or be of any weight in the interpretation or construction of the provisions of such sections or paragraphs. 19.3 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. SECTION 20 AMENDMENT TO FRANCmSE 20.1 This Franchise may be amended by mutual written agreement of the Parties (which specifically states that it is an amendment to this Franchise) upon compliance with the requirements of Chapter 36.55 RCW. SECTION 21 ENTIRE AGREEMENT 21.1 Entire Agreement. The Parties agree that 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. Washington State Parks and Recreation Commission 17 APPROVED AND ADOPTED this l.e ~ day of '-;)R ( O..Vv\ hP!( ATTEST: cY~y Lorna Delaney Clerk of the Board Washington State Parks and Recreation CODlDlission JEFFERSON COUNTY BOAf COMMISSIONERS -~Q/ David W. Sullivan, Chair }00n~~ ~- P 1 Jo , Member .2010. APPROVED AS TO FORM: ~~_ ~ 1';Z-~J201a Deputy Prosecuting Attorney 18 Attachment A - Washington State Parks and Recreation Commission Franchise Area Township 25 North Ranee 2 West Sections 2 26 North 2 West 34-35 County Roads aud Road Numbers Brinnon Lane, 245209 Church Road, 251109 Corey Lane, 247809 Dosewallips Road, 250008 Easy Street, 246509 Schoolhouse Road, 249109 Washington State Parks and Recreation Commission 19 JEFFERSON COUNTY, WASIDNGTON ACCEPTANCE OF RESOLUTION NO. 53-10 The undersigned, Washington State Parks and Recreation Commission, hereby wholly accepts Jefferson County Resolution No. 53-10 Granting A Nonexclusive Franchise (the ''Franchise Agreement"), which was adopted by the Jefferson County Board of Commissioners on the 6th day of December, 2010 and provides that: Jefferson County, Washington grants Washington State Parks and Recreation Commission the right, privilege, authority, and franchise to install, construct, repair, replace, maintain, relocate, extend, remove, operate, and use Facilities in, upon, under, along, through, and across the Franchise Area pursuant to the terms of the Franchise Agreement. This Acceptance of the Franchise Agreement is unconditionally made without reservation and is expressly part of the Franchise Agreement, which is hereby incorporated by reference. Washington State Parks and Recreation Commission hereby accepts all of the rights and privileges of the Franchise Agreement subject to all of the terms, conditions, duties, and obligations provided therein. IN TESTIMONY WHEREOF said Washington State Parks and Recreation Commission has caused this Acceptance to be executed in its name by its undersigned authorized signer, thereunto duly authorized on the day of ,2010. WASmNGTON STATE PARKS AND RECREATION COMMISSION By: L-10 l ~ Print Name: ~~\U ~ lPr);~ '\ 1=:'1:: (.,,~ Title: 7(,,-~\IS '\.)\\~}J\l1Yl()\A} U'IYlI( ~'J\J STATE OF WASHINGTON COUNTY OF \lJ"I ~~~ \1\1\ ss. I certifY that I )g:tow ~r have satisfactory, evidence that 'known to be the ~ ilf >\~I u~)\?ffiQ lilt \::Mar I:UPfWashington State ksand Recrea 'on Commission is the person who appeared beforeme, and said person acknowledged that helshe signed this instrument, on oath stated that helshe was duly authorized execute the instrunmt on behalf of the Commission and acknowledged it to be the free and voluntary act of such parl)1 for the uses and pljJOses herein mentioned. GIVEN under my hand and teial seal this ~ day of D ( 0 Ii""- kYJ r , 20 I O. \\\II\/JIII "'\O.~.'?.':f:'? III" :::: 15t ....~.,., ~-%;... ~ ~ =:: "'-...3 ~".1J-;:' _Cf.),,, NOTARY"', - - : PUBLIC i . . - -::: .... ....~:::: ~<J)." "" .... .'LO.... ~ "1;>'" -..li3' .,' c.' .... /" .~. ........... ~v " III OF Wf'..SV/. I"~ Ittflll\l\\\ ...- Notary bit in and for the State 0 ashingtonresiding at My com iss' n expires ~ I \Ill 3 Washington State Parks and Recreation Commission 20 557077 PGS:21 RESO 01/04/201101,32 PM $92.00 JEFFERSON COUNTY PUBLIC WORKS Jefferson County WA Auditor's Of,ice - Donna Eldridse. Auditor .\IIl't1"*Ptrl,It't,I~N/.lp~r+1~H.\'M'L~(l.r.wJ ~lIi 11111 RETURN ADDRESS Jefferson County Public Works Department 623 Sheridan Street Port Townsend, W A 98368 DOCUMENT TITLE Washington State Parks and Recreation Commission Drinnon Sewer Line Franchise REFERENCE NUMBER(S) OF RELATED DOCUMENTS Jefferson County Board of Commissioners Resolution 53-10 Additional Reference #5 on page _ GRANTOR(S) (Last, First and Middle Initial) Jefferson County Additional gnmtor nn page _ GRANTEE(S) (Last, First and Middle Initial) Washington State Parks and Recreation Commission Additional gnmtee on page _ LEGAL DESCRIPTION (Abbreviated fonn: i.e. lot, block, plat or section, township, range, quarter/quarter) Washington State Parks and Recreation Commission Franchise Area located on the following Jefferson County Road rights-of-way: Brinnon Lane (CR 245209), Church Road (CR251109), Corey Lane (CR247809), Dosewallips Road (CR250008), EaSy Street (CR246509), and Schoolhouse Road (CR249109) in Section 2, Township 25 North, Range 2 West and Sections 34 and 35, Township 26 North, Range 2 West AdditioriallegaI on page _ ASSESSOR'S PROPERTY TAX PARCEL/ACCOUNT NUMBER NA - County Road Rights-of-way Additional parcel #5 on page _ The AuditorIRecorder will rely on the infonnation provided on this fonn. The staff will not read the docmnent to verify the accuracy or completeness of the indexing infonnation provided herein.