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Jefferson County Public Works Department
623 Sheridan Street
Port Townsend, WA 98368
DOCUMENT TITLE
Jefferson County Public Utility District #1 Broadband Telecommunications Franchise
Resolution
REFERENCE NUMBER(S) OF RELATED DOCUMENTS
Jefferson County Board of Commissioners Resolution 31-12
Additional Reference #s on page
GRANTOR(S) (Last, First and Middle Initial)
Jefferson County
Additional grantor on page
GRANTEE(S) (Last, First and Middle Initial)
Jefferson County Public Utility District #1
Additional grantee on page
LEGAL DESCRIPTION (Abbreviated fomt: i.e. lot, block, plat or section, township, range, quarter/quarter)
NA -Jefferson County Road Rights-of-way within Sections, Townships, and Ranges listed
in Jefferson County Public Utility District #1 Broadband Telecommunications Franchise,
Attachment A -Grantee Franchise Area
Additional legal on page
ASSESSOR'S PROPERTY TAX PARCEL/ACCOUNT NUMBER
NA -Jefferson County Road Rights-of--way
Additional parcel #s on page
The AuditorBecorderwdl rely on the information provided on this form. The staff will not read the document to
verify the accuracy or completeness of the indexing information provided herein.
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STATE OF WASHINGTON
COUNTY OF JEFFERSON
In The Matter of the Application by )
Jefferson County Public Utility District #1 )
For a Nonexclusive Franchise )
To Construct, Maintain, and Operate )
Telecommunications Facilities including )
Transmission Cables Together With )
Related Appurtenances )
Upon, Over, Along, and Across )
A Franchise Area Within )
Unincorporated Jefferson County )
Resolution 31-12
Granting A Nonexclusive Franchise
WHEREAS, adoption by the Jefferson Boazd of County Commissioners, hereinafrer the Board,
of a Resolution granting a nonexclusive franchise to Jefferson County Public Utility District #1,
hereinafrer Grantee, to install, construct, repair, replace, maintain, relocate, extend, remove,
operate, and use telecommunications facilities consisting of overhead and underground cables,
lines, routers, poles, and other related appurtenances in, upon, over, under, along, through, and
across the Franchise Area in unincorporated Jefferson County; setting forth terms and conditions
accompanying the grant of the nonexclusive franchise; and providing for County administration
and regulation of the nonexclusive franchise would memorialize the relationship between
Grantee and the County; and
WHEREAS, Grantee has applied to the .Board, pursuant to Chapter 36.55 RCW and
Chapter 80.32 RCW, for a nonexclusive franchise; and
WHEREAS, Jefferson County Code (JCC) 13.60 requires telecommunications providers who
occupy County rights-of--way to obtain a franchise from the County and pay all fees provided
therein; and
WHEREAS, the Board finds that granting the Franchise is consistent with the requirements of
JCC Title 13 Utilities, Division III. Telecommunications Use of Jefferson County Rights-of--Way
in that:
(a) Grantee has the financial and technical ability to fulfill its obligations under a
franchise granted by Jefferson County;
(b) Grantee has legal standing to be granted a franchise;
(c) Granting a 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;
(d) 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;
JCPUD / NoaNet Broadband Franchise
(e) Granting a Franchise will protect the public's health, safety, and welfare;
(f) Granting a Franchise is consistent with applicable Federal, State, and County laws,
regulations, rules, and policies, including RCW 36.55, RCW 80.32, and JCC Title 13 Utilities,
Division III. Telecommunications Use of Jefferson County Rights-of--Way; and
WHEREAS, pursuant to RCW 36.55 and RCW 80.32, 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 RCW Chapter 36.55 and RCW Chapter 80.32, a hearing on the
application was held on the 29th day of May, 2012; and
WHEREAS, the Board finds that it is in the public interest to grant the Franchise to Grantee;
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COMMISSIONERS OF
JEFFERSON COUNTY that the Franchise is hereby granted to Grantee 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 singulaz 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 otherwise defined shall be given their common and ordinary meaning.
1.1 "Boazd" 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.
1.3 "Emergency" means any condition constituting a clear and present danger to life,
safety, or property.
1.4 "Engineer" means the County Engineer or designee.
1.5 "Facilities" means, collectively, any and all (i) telecommunications transmission
systems, including but not limited to, overhead and buried cables, routers, poles (with or without
cross arms), wires, lines, conduits, braces, guys, anchors, and vaults and (ii) 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 or
underground.
1.6 "Franchise" means the grant of rights, privileges, and authority embodied in this
Resolution.
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1.7 "Franchise Area" means the rights-of--way for County Roads located within those
areas of the County listed in Attachment A -Grantee 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
(i.e., County owned or leased properties or easements unrelated to the County Roads described
above), including, but not limited to, parks, trails, facilities, orpits, located inside or outside of
the boundazies of the County, 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 "MUTCD" means the Manual on Uniform Traffic Control Devices, as adopted by the
Washington State Department of Transportation and published by the United States Department
of Transportation, Federal Highway Administration, 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 undertaken
by the County, 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 that is undertaken by the County for pazks; 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, or network facilities. 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.
1.13 "Third Party" means any Person other than the County and Grantee.
SECTION 2 FRANCHISE
2.1 Grant of Franchise.
2.1.1 Pursuant to the laws of the State of Washington, including, but not limited to,
RCW 36.55 and RCW 80.32.010, the County hereby grants to Grantee, subject to and in
accordance with the terms and conditions set forth herein, a nonexclusive franchise that grants
the right, authority and franchise to install, construct, repair, replace, maintain, relocate, extend,
remove, operate, and use Facilities in, upon, over, under, along, through, and across the
Franchise Area.
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2.1.2 The Franchise granted 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.
2.1.3 The Franchise granted 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.
2.1.4 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 are not, and will not be
deemed to be, located pursuant to rights derived from this Franchise.
2.1.5 The Franchise granted shall not be construed as any warranty of title.
2.1.6 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.
2.1.7 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 and Division III. Telecommunications Use
of Jefferson County Rights-of--way, Chapters 13.60, 13.64, 13.72, 13.80, 13.84, 13.88, and 13.92,
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 and ordinances.
2.1.8 The express terms and conditions of this Franchise constitute a valid and
enforceable contract between the Parties.
2.2 Noninterference. All installation, construction, repair, replacement, maintenance,
relocation, extension, removal, operation, and use of Grantee's Facilities performed in, upon,
over, under, along, and/or across the Franchise Area shall be done in such a manner as not to
interfere with the free passage of pedestrian and/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 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 aze 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
JCPUD / NoaNet Broadband Franchise
only subject to and in accordance with the terms, conditions, and requirements set forth in
Section 4.
2.3 Drawings. Grantee shall provide the County, upon the County's reasonable request,
copies of available drawings in Grantee's possession showing the location of Grantee's Facilities
at specific locations within the Franchise Area. As to any such drawings so provided, Grantee
does not warrant the accuracy thereof and to the extent the location of the Facilities are shown
such Facilities are shown in approximate location. Upon the County's request, in connection
with the design of any County improvement project within the Franchise Area, Grantee shall
verify the location of its underground 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 azising 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 fifteen (15) years
from the date of adoption of the Franchise by the Board.
2.4.2 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 the Franchise. At the time of filing its written acceptance,
Grantee shall reimburse the County for the. expenses required to be paid by Grantee under
Section 6.1 and deliver to the County the required evidence of insurance set out in Section 8. 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.
2.4.3 Franchise Renewal. This Franchise may be renewed, at the sole discretion of
the Boazd, for an additional ten (10) year period upon the written request of Grantee, such
request to be submitted not more than two (2) yeazs nor less than one hundred-eighty (180) days
prior to the expiration of the Franchise.
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 where it uses or occupies that portion of the Franchise Area unless the
County expressly agrees to such exclusion in writing.
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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 13.56, 13.60, 13.64, 13.72,
13.80, 13.84, 13.88, and 13.92 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 pursuant to the requirements of JCC 13.56.
3.1.3 Work by Grantee shall comply with the utility permit and plans. 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
response or 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 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, standazds, and procedures as now exist or as
later amended or superseded.
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 particulaz part of the Franchise Area, all
JCPUD / NoaNe[ Broadband Franchise 6
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 Financial Security. 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 Franchise Area following the completion of Grantee's work therein.
At the County's discretion, Grantee may provide and maintain a single on-going financial
security covering multiple permits in lieu of individual surety.
3.6 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, as per Chapter 332-120 WAC, as from time to time amended, and all pertinent Federal,
State and County standards and specifications.
3.7 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.
3.8 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 Jefferson County
permit issued 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
contro] plans. 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.
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. Provide Grantee with a copy of the Jefferson County Six Year Transportation Improvement
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Program within thirty (30) days of its adoption by the Boazd;
b. Provide Grantee each year with a copy of the Jefferson County Annual Construction Program
within thirty (30) days of its 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 Crrantee 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, 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 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 aze 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, but only if, as, and to the extent the delay is directly caused by Grantee's breach of its
obligations under this Section 4.
4.5 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 4.6.
4.6 If an emergency arises that inunediately endangers the property or life of any
individual or poses a threat to public safety or welfaze 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.
SECTION 5 REMOVAL OF FACILITIES
5.1 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
JCPUD / NoaNet Broadband Franchise 8
Facilities at its sole cost and expense, except as set forth in Section 5.2.
5.2 With the express written consent of the Engineer, the Grantee may leave such
Facilities in place subject to the conditions set forth in this Section 5.2. The Engineer's consent
shall not relieve the Grantee of the obligation and/or costs to subsequently remove or alter such
Facilities at the County's request, in which case the Grantee shall perform such work at no cost
to the County in accordance with this Section 5.
5.3 The obligations contained in this Section 5 shall survive the expiration, revocation or
termination of this Franchise.
SECTION 6 RIGHTS AND POWERS RESERVED TO THE COUNTY
6.1 County Expenses. As provided for in JCC 13.88.020, Grantee shall reimburse the
County for the administrative expenses incurred by the County that aze related to (a) developing
and approving this Franchise, (b) processing permit applications, reviewing plans, and inspecting
construction, and (c) preparing a detailed statement pursuant to Chapter 43.21C RCW. 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.
6.2 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.
6.3 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.
SECTION 7 INDEMNIFICATION AND HOLD HARMLESS
7.1 Grantee shall indemnify, defend, and hold harmless the County, its elected and
appointed officers, officials, employees, representatives, and agents (collectively referred to as
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 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, employees, lessees, contractors, or subcontractors in exercising the
rights granted to Grantee under this Franchise.
JCPUD ! NoaNet Broadband Franchise 9
7.2 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 7, 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.
7.3 In any and all claims against the Indemnitees by any officer, employee,
representative, or agent of the 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 7 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, 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 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.
7.4 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 7.
7.5 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.
7.6 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 the Grantee, its agents, employees, representatives, lessees,
contractors, and subcontractors.
7.7 The provisions of this Section 7 shall survive the expiration or termination of this
Franchise. Further, all provisions of this Section 7 shall apply to the successors, assigns, and
lessees of Grantee.
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SECTION 8 INSURANCE
8.1 Grantee Insurance. Grantee shall procure and maintain for the duration of this
Franchise the following insurance:
a. 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
and one million dollars ($1,000,000) property damage. 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 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 one million dollars ($1,000,000) per person and one million dollars
($1,000,000) per occurrence.
c. Workers' Compensation insurance as required by Chapter 51 RCW and Employers Liability
Coverage with a limit of not less than one million dollazs ($1,000,000) per occurrence.
d. The insurance policies required by this Section 8 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).
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 8.1.
The certificates will, at a minimum, list the limits of liability and coverage.
f Grantee or its agent 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
intended to be an indication of limits of exposure nor are they limitations on liability or
indemnification.
h. 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.
8.2 Self-Insurance. In lieu of the insurance requirements set forth in Section 8.1,
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 the Grantee maintains
such self-insurance.
JCPUD / NoaNet Broadband Franchise 11
8.3 The obligations contained in this Section 8 shall survive the expiration, revocation or
termination of this Franchise for a period of one (1) yeaz or for as long as Grantee's Facilities
remain within the Franchise Area, whichever is longer. Further, all provisions of this Section 8
shall apply to the successors, assigns, and lessees of Grantee.
SECTION 9 LIMITATION OF LIABILITY
9.1 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 FCC, 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 County; for any action or inaction thereof authorized or done in
connection with the implementation or enforcement of this Franchise by the County; or for the
accuracy of plans submitted to the County.
SECTION 10 DISPUTE RESOLUTION
10.1 The Parties agree to use their best efforts to prevent and resolve disputes before
they escalate into claims or legal actions.
10.2 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 Grantee's 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 Grantee's designated
representative to discuss and attempt to resolve the dispute in a timely manner.
10.3 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 11 or institute a legal proceeding in any court and/or with
governmental agency having jurisdiction over the dispute.
10.4 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
JCPUD / NoaNet Broadband Franchise 12
of specific performance, injunctive relief or mandate, or any other remedy at law or in equity.
SECTION 11 TERMINATION OF FRANCHISE
11.1 Default by Grantee. If Grantee materially breaches any term or condition of this
Franchise, the County may terminate this Franchise in accordance with Section 11.2. Upon
termination of the Franchise, all rights of Grantee hereunder shall cease.
11.2 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.
11.3 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 11.2 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.
11.4 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.
11.5 Dispute Resolution. Neither Party may invoke or rely upon the terms and
obligations of this Section 11 (except for the Force Majeure rights in Section 11.4) until such
time as the Dispute Resolution procedure listed in Section 10 has been utilized by the aggrieved
Party.
SECTION 12 ASSIGNMENT OF FRANCHISE
12.1 Assignment. 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, assuming
all rights and obligations hereunder and agreeing to perform the terms and conditions under this
JCPUD (NoaNet Broadband Franchise 13
Franchise.
12.2 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.
12.3 Grantee will use Federal grant funds under the Broadband Technology
Opportunities Program (BTOP) to finance the purchase, installation, and construction of
Facilities located in the Franchise Area. Pursuant. to BTOP requirements, Grantee holds its
interest in the Franchise and Facilities as trustee for the National Telecommunications and
Information Administration (NTIA), the Federal Agency administrating the BTOP program.
Grantee may record a public notice of such Federal interest. Grantee may freely assign its
interest in the Franchise to NTIA as required by BTOP requirements.
SECTION 13 INCORPORATION/ANNEXATION
13.1 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.
SECTION 14 VACATION
14.1 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 specifically authorized under this Franchise or
physically located on a portion of the land being vacated. 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 15 NON-WAIVER OF RIGHTS
15.1 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 16 GOVERNING LAW AND VENUE
16.1 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.
JCPUD / NoaNet Broadband Franchise 14
16.2 Venue. Any action at law, suit in equity, or judicial proceeding azising 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 RCW 36.01.050.
SECTION 17 NOTICES
17.1 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 Stteet
Port Townsend, WA 98368
Notice and billings to Grantee shall be sent to:
Manager
Public Utility District #1 of Jefferson County
PO Box 929
Port Hadlock, WA 98339
Grantee shall promptly notify the County of any change in the notice or billing addresses.
SECTION 18 SEVERABILITY AND SURVIVABILITY
18.1 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
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.
18.2 The headings of the sections and paragraphs of this Franchise are for convenience
of reference only and aze not intended to restrict, affect, or be of any weight in the interpretation
or construction of the provisions of such sections or paragraphs.
18.3 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 19 AMENDMENT TO FRANCHISE
19.1 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 RCW 36:55.
JCPUD / NoaNet Broadband Franchise t 9
SECTION 20 ENTIRE AGREEMENT
20.1 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. Any oral or written representations or understandings not
incorporated herein are specifically excluded.
APPROVED AND ADOPTED this o2°! ~ day of ) " ~cti , 2012.
JEFFERSON COUNTY
BOARD OF COMMISSIONERS
Y.
t ':> ~ y{,
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,~~;~ QSOb•G~'~,a
ATTEST:
~Rairra-?t~dali ~~ ~ y ~t/ ~ krkl~2"ee ~
~~epary~Clerk of the Board
John ustin, Chair
~~ ~ X CC [_~~LC ri t'T.J.iLf _ LC~I~ F l
Phil Johnson, Member
David W. Sullivan, Member
APPROVED AS TO FORM:
,` 4 ~1 ~~l~z-
qJ ~/ ~ ~Z•t-vt,
David Alvarez
Deputy Prosecuting Attorney
JCPUD / NoaNet Broadband Franchise 16
Public Utility District #1 of Jefferson County Franchise
Attachment A -Grantee Franchise Area
Township Ran a Sections
25 North 1 West 2 - 5
25 North 2 West 2, 3, 7, 8, 10, 11, 14 - 17, 21, 22, 28 -32
26 North I West 1 - 3, 7, 9 -12, 14 - 16, 18, 21 - 23, 27 - 29, 32 - 35
26 North 2 West 13, 23, 24, 26, 28 - 30, 33 - 35
27 North 1 East 1 - 9, 16 - 20, 30
27 North 1 West 1 - 20, 22 - 32, 34 - 36
27 North 2 West 1 - 4, 9 - 16, 21 - 28, 36
28 North 1 East 4 - 10, 15 - 23, 25 - 35
28 North 1 West 1 - 36
28 North 2 West 1 - 4, 9 - 16, 21 - 28, 33 - 36
29 North 1 East 3 - 10, 16 - 19, 29 - 33
29 North 1 West 1 - 36
29 North 2 West 1 - 4, 9 - 16, 21 - 28, 33 - 36
30 North 1 East 17, 18, 2Q 28, 29, 32, 33
30 North 1 West 4 - 9, 16 - 22, 26 - 35
30 North 2 West 12, 13, 24, 25, 27, 28, 33 - 36
31 North 1 West 31 - 33
JCPUD / NoaNet Broadband Franchise 17
JEFFERSON COUNTY, WASHINGTON
ACCEPTANCE OF RESOLUTION N0.31-12
The undersigned, Public Utility District #1 of Jefferson County (Grantee), a Washington
municipal corporation, hereby wholly accepts Jefferson County Resolution No. 31-12 Granting
A Nonexclusive Franchise which was adopted by the Jefferson County Board of Commissioners
on the 29th day of May, 2012 and provides that:
Jefferson County, Washington grants ,Ina the right, privilege, authority, and franchise to
install, construct, repair, replace, maintain, relocate, extend, remove, operate, and use Facilities
in, upon, over, under, along, through, and across the Franchise Area pursuant to the terms of the
Franchise Agreement.
This Acceptance of the Franchise is unconditionally made without reservation and is expressly
part of the Franchise Agreement, 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 J ~h_ , 2112.
Public Utili/ty/,Ptstrict #1 of J fferson County NaN~~aa~puq~
Print Name: r~ ~<. d~ £y~
i ~4 pV B`'`4 rFi~
Title: ~cSovyc G ~c, h ~ ~ ~~ Sri ~'r''a 1-23-1~~ v
~h 1 ~M~uwa~~a• ~? ~~~
STATE OF WASHING/T~ON ~~''a' uOF,w^~~„~~~
COUNTY OF JP-F-t-~ Se~-~- ss.
I certify that I know or have satisfactory evidence that ~ ~ j'i ILYr~ ~' - ~/u~Z~/~~ ,known to be
the I"PS~I.U~cQ. `VfGt rile , ~-~ of the Public Utility District #1 of Jefferson County is the
person who appeared before me, and said person acknowledged that he/she signed this instrument, on
oath stated that he/she was duly authorized to execute the instrument on behalf of the corporation, and
acknowledged it to be the free and voluntary act of such party for the uses and purposes herein described.
GNE unde~my h n an offici seal, this ~ day of J.u,l~, , 2012.
~~
~rrh~~~~~f1 offi~ -ffyl-f- ,J) I
Notary Public in and for the State of Washington residing at ~O1 ~ ~ ~+ / ~1tiJ W bS~ / /'~`i~
My commission expires ~/.~ 3 , ~~.
JCPUD / NoaNet Broadband Franchise 18
Department of Public Works
O Regular Agenda
Page 1 of 2
Jefferson County
Board of Commissioners
Agenda Request
To: Board of Commissioners
Philip Morley, County Administrator
From: Frank Gifford, Public Works Director ~..p1
Agenda Date: May 29, 2012
Subject: Jefferson County PUD #1 Broadband Telecommunications
Franchise; Workshop and Public Hearing
Statement of Issue:
Jefferson County PUD #1 has applied to Jefferson County for a franchise to construct,
maintain, and operate broadband telecommunications facilities in County rights-of-
way in eastern Jefferson County. Public Works has submitted a Resolution for the
Board's review granting a franchise to the PUD. 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.
Analysis/Strategic Goals/Pro's & Con's:
Bringing broadband telecommunications to Jefferson County is an important
component of the County's economic development strategy. A franchise from
Jefferson County is required in order to construct the facilities in County Road rights-
of-way. The PUD will own the system and hold the Jefferson County franchise. The
Northwest Open Access Network (NoaNet), a consortium of public utility districts, will
manage the construction of the broadband telecommunications facilities in Jefferson
County.
Significant Franchise Terms and Conditions:
• Section 2 Franchise describes the terms and conditions of the franchise. The
express terms and conditions of the franchise constitute a binding contract
between Jefferson County and the PUD. The franchise would be for fifteen years.
Section 3 Performance of Work establishes the requirements for the PUD to
install, maintain, and operate facilities in County rights-of-way.
• Section 4 Relocation describes the process and requirements for the PUD to
relocate its facilities in County rights-of-way in order to accommodate County
Department of Public Works
O Regular Agenda
Page 2 of 2
projects. Section 4.5 requires the County to bear the relocation expense if it
requires subsequent relocation of the same Facility within 5 years, except if the
relocation is required by an emergency.
• Section b Rights and Powers Reserved to the County requires the PUD to
reimburse the County for its expenses related to developing the franchise.
• Section 7 Indemnification indemnifies the County against third party claims
related to the PUD's negligence.
• Section 8 Insurance establishes the PUD's insurance requirements.
• Section 12 Assignment allows the PUD to assign its interest in the Franchise to the
Federal National Telecommunications and Information Administration.
• Attachment A -Grantee Franchise Area lists the sections, townships, and ranges
in eastern Jefferson County where the PUD would be authorized to locate
Facilities in County Road rights-of-way.
Fiscal Impact/Cost Benefit Analysis:
The franchise requires the PUD to reimburse the 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:
Prior to the public hearing, Public Works will conduct a brief workshop and answer
questions regarding the Franchise Resolution.
After the hearing, the Board, at its discretion, could:
• Consider the comments received and decide whether to grant the franchise or
• Direct Public Works to compile the comments and prepare responses and, if
appropriate, prepare recommended revisions to the Franchise Resolution for
consideration by the Board and the PUD.
Department Contact: Jim Pearson, 385-9160
Date