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HomeMy WebLinkAbout035 13STATE OF WASHINGTON COUNTY OF JEFFERSON In The Matter of the Application by Walter Moa for the Moa -Tel Water System For a Nonexclusive Franchise To Construct, Maintain, and Operate a Group A Community Public Water System Consisting of Pipes, Valves, Hydrants, and Other Appurtenances Upon, Under, Along, and Across a Franchise Area Within Unincorporated Jefferson County Resolution 35 -13 Granting A Nonexclusive Franchise WHEREAS, Walter Moa, owner of the Moa -Tel Water System and hereinafter Grantee, has applied to the Jefferson Board of County Commissioners, hereinafter the Board, pursuant to the Revised Code of Washington (RCW) Chapter 36.55 and Chapter 80.32, for a nonexclusive franchise to construct, maintain, and operate a Group A Community Public Water System consisting of pipes, valves, hydrants, and other appurtenances, in, upon, under, along, through, and across a Franchise Area in unincorporated Jefferson County depicted as the Moa -Tel Water System Current and Future Service Areas on Exhibit I1I -1 Water Service Areas dated April 16, 1999 in the Jefferson County Coordinated Water System Plan; and WHEREAS, Jefferson County Code Chapter 13.56 requires utility providers who occupy County rights -of -way to obtain a franchise from the County; and WHEREAS, adoption by the Board of a Resolution 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, Jefferson County Code Chapter 13.56 specifies standards and procedures for granting franchises for utility providers to occupy County rights-of-way; and WHEREAS, Grantee is authorized to provide water service in the Current Service Area by the Coordinated Water Service Plan; but is not currently authorized to provide water service in the Future Service Area and could only be authorized to do so by approval from the State Department of Health; and WHEREAS, Grantee does not have an adequate water right to expand its service, but has applied for an additional water right from the Washington Department of Ecology which right has not been granted; and WHEREAS, the Board finds that granting a franchise is consistent with the requirements of Jefferson County Code, Section 13.56.080 in that: Moa -Tel Water System Franchise I . 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. Grantee currently has utility facilities that are accommodated within County rights -of -way in the portions of Jefferson County depicted as the Moa -Tel Water System Current Service Area on Exhibit II1 -1 Water Service Areas dated April 16, 1999 in the Jefferson County Coordinated Water System Plan; 4. County rights -of -way generally have the capacity to accommodate Grantee's facilities, provided that there is appropriate planning and provision for installation, operation, maintenance, and repair of Grantee's facilities; 5. 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, operation, maintenance, and repair of Grantee's facilities; 6. 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; 7. Granting a franchise will authorize Grantee to continue to provide water service in its Current Water Service Area in Jefferson County; 8. Granting a franchise will protect the public's health, safety, and welfare; and 9. Granting a franchise is consistent with applicable Federal, State, and County laws, regulations, rules, and policies, including Chapter 36.55 RCW and Chapter 80.32 RCW and the Jefferson County Code 13.56; and WHEREAS, pursuant to Chapter 3 .55 RCW and Chapter 80.32 RCW, a hearing on the application was held on the 6i day of , 2013; and WHEREAS, pursuant to Chapter 36.55 RCW and Chapter 80.32 RCW, notice was posted in three public places in the County seat at least fifteen (15) days before the hearing date and notice 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, the Board of County Commissioners finds that it is in the public interest to grant the nonexclusive franchise; NOW, THEREFORE, BE IT 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, extend, remove, operate, and use Facilities in, upon, under, along, through, and across the Franchise Area within the portions of unincorporated Jefferson County listed in Attachment A -- Moa -Tel Water System Service Territory 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 both genders. The words "shall" and "will" are mandatory, and the word "may" is permissive. 2 Moa -Tel Water System Franchise Words not otherwise 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. 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) components of a water transmission and distribution system, including but not limited to, pipes, valves, and hydrants; 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 ground or underground. 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 portions of the County listed in Attachment A — Moa -Tel Water System Service 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 roads, streets, avenues, alleys and /or highways described above), including, but not limited to, parks, trails, facilities, or pits, located inside or outside of the boundaries of the County, or (b) Grantee -owned or leased properties or easements located inside or outside of the boundaries of the County. 1.8 "Hazardous Substance" means any hazardous, toxic, or dangerous substance, material, waste, pollutant, or contaminant that is identified as such under applicable regulations adopted pursuant to the federal hazardous materials transportation act, the toxic substances control act, the resource recovery and conservation act, the comprehensive environmental response compensation and liability act, the federal insecticide, fungicide, and rodenticide act, the occupational safety and health act hazardous communications standards, and the Washington State hazardous waste act, the Washington Model Toxic Controls Act, all as exist now or as amended or superseded, or any other federal, state, or local statute, code or ordinance or lawful rule, regulation, order, decree, or other governmental authority as now or at any time hereafter in effect. 1.9 "JCC" means the Jefferson County Code, as it now exists or as it is later amended or superseded. Moa -Tel Water System Franchise 1.10 "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. 1.11 "Parties" or "Party" means collectively the County and Grantee, and individually either the County or Grantee. 1.12 "Person" means an individual, entity, corporation, partnership, firm, association, joint venture, or organization of any kind. 1.13 "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 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, or network facilities. For the 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. 1.14 "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, Chapter 36.55 RCW and Chapter 80.32.010 RCW, 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 set, erect, lay, construct, extend, support, attach, connect, maintain, repair, replace, enlarge, operate, and use Facilities in, upon, under, along, through, and across the Franchise Area. 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 4 Moa -Tel Water System Franchise 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 such act, event, or occurrence operate as an estoppel against the County with regard to a claim by Grantee of its right to permanently occupy or use the Franchise Area. 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 Chapter 13.56 Utilities, 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 here in shall be deemed to waive, prejudice, or otherwise limit any right of appeal afforded Grantee by such County codes, resolutions and ordinances. The express terms and conditions of this Franchise constitute a valid and enforceable contract between the Parties. 2.1.8 Pursuant to Chapter 19.122 RCW Grantee shall participate in the Call- Before- You -Dig utilities locating system by subscribing to a utilities underground location service. Grantee shall provide evidence of subscribing to the Engineer. 2.1.9 Prior to using the Franchise Area to provide additional types of utility services not expressly authorized by this Franchise, Grantee shall submit an application to the County for a franchise to use the Franchise Area to provide those additional services. Grantee shall not use the Franchise Area to provide any such additional utility services until such time as a new franchise has been granted by the County. 2.2 Noninterference. All construction, installation, service, repair, or maintenance of Grantee's Facilities performed 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 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 only subject to and in accordance with the terms, conditions, and requirements set forth in Section 4. 5 Moa -Tel Water System Franchise 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 Public 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 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 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, or promptly thereafter, Grantee shall reimburse the County for the administrative expenses required to be paid by Grantee under Section 11.2 and deliver to the County the required evidence of insurance set out in Section 13. 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 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. 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. 2.6 Facilities Installed by Prior Franchise. Existing Facilities installed or maintained by Grantee in accordance with prior franchise agreements on public grounds and places within the County (but which are not within the Franchise Area as defined by this Franchise) may be 6 Moa -Tel Water System Franchise maintained and operated by Grantee at the location where such Facilities exist as of the effective date of this Franchise for the term of this Franchise; provided, however, that no such Facilities may be enlarged, improved or expanded without the prior review and approval of the County pursuant to the provisions of any applicable County codes, ordinances, regulations, standards, procedures, and /or permits, as now exist or as later amended or superseded. 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 pursuant to the requirements of JCC 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. If Grantee shall fail to make a required correction within a reasonable time established by the Engineer, the County may have done any and all work necessary to correct the work and restore the Franchise Area and submit a billing to Grantee for reimbursement. Grantee shall reimburse the County for all reasonable expenses related to such work within thirty (30) days of receiving the billing. 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 a utility permit as soon as practicable, but in no event (unless waived by the County) later than three (3) 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. If Grantee shall fail to repair the Facilities and correct the 7 Moa -Tel Water System Franchise emergency condition within a reasonable time established by the Engineer, the County may have done any and all work necessary to repair the Facilities and correct the emergency condition and submit a billing to Grantee for reimbursement. Grantee shall reimburse the County for all reasonable expenses related to such work within thirty (30) days of receiving the billing. 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, 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 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 local 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; 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 control. 3.8 Traffic Control. Grantee's activities within the Franchise Area and activities within 8 Moa -Tel Water System Franchise 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 control plans; provided, however, in the event of a conflict or inconsistency between any such manual, requirements, or plans and this Franchise, the express terms and conditions of this Franchise will govern and control. It shall be the responsibility of Grantee to ensure compliance. Grantee shall be liable for any damages resulting from Grantee's failure to provide adequate traffic control. SECTION 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 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 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 9 Moa -Tel Water System Franchise 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. 4.6 Subject to compliance by the County with the terms of this Section 4 and to the 10 Moa -Tel Water System Franchise 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 Majeure Event under Section 16.4. 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 immediately endangers the property or life of any individual or poses a threat to public health, safety, or welfare that requires the relocation of Grantee's Facilities within the Franchise Area, the County shall give Grantee notice of the emergency as soon as reasonably practicable. Upon receipt of such notice from the County, Grantee shall relocate the affected Facilities as soon as reasonably practicable at Grantee's expense. 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 costs and expenses incurred by Grantee in the relocation of Grantee's Facilities. 4.9.1 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 REMOVAL OF FACILITIES 5.1 In the event Grantee permanently ceases use of any of its aboveground Facilities 11 Moa -Tel Water System Franchise (i.e., Facilities that are at or above grade and are not buried underground) within the Franchise Area, Grantee shall, within one hundred eighty (180) days after such permanent cessation of use or such additional time as is agreed to between the Parties, remove such Facilities at its sole cost and expense, except as set forth in Section 5.2. 5.2 With the express written consent of the Engineer, the Grantee may leave such aboveground 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 NOT DERIVED FROM THIS FRANCHISE 6.1 Nothing in Sections 4 or 5 shall require Grantee to bear any cost or expense in connection with the relocation, modification, or removal of any Facilities then existing pursuant to easement or such other rights not derived from this Franchise, regardless of whether the easement is on public or private property and regardless of whether this Franchise co- exists with such easement. SECTION 7 COORDINATION AND SHARED EXCAVATIONS 7.1 Grantee and the County shall each exercise their respective best reasonable efforts to coordinate any construction work that either may undertake within the Franchise Area so as to promote the orderly and expeditious performance and completion of such work as a whole. Such efforts shall include, at a minimum, reasonable and diligent efforts to keep the other Party and other utilities within the Franchise Area informed of its intent to undertake such construction work. Grantee and the County shall further exercise reasonable efforts to minimize any delay or hindrance to any construction work undertaken by themselves or other utilities within the Franchise Area. Grantee shall meet with the County annually or more frequently, as reasonably determined by the County, to coordinate construction activities. 7.2 if either Grantee or the County shall cause excavations to be made within the Franchise Area, the Party causing such excavation to be made shall afford the other, upon receipt of a written request to do so, an opportunity to use such excavation, provided that: (a) such joint use shall not unreasonably delay the work of the Party causing the excavation to be made; and (b) such joint use shall be arranged and accomplished on terms and conditions satisfactory to both Parties. SECTION 8 HAZARDOUS SUBSTANCES 8.1 Hazardous Substances. In the exercise of its rights under this Franchise, Grantee agrees that it will not cause the release of any Hazardous Substance into or upon the Franchise Area contrary to any County, state or federal law, rules, regulations, ordinances and standards 12 Moa -Tel Water System Franchise with respect thereto. Within twenty -four (24) hours of any such release that is discovered by Grantee, Grantee shall notify the Engineer and the Washington Department of Ecology in writing of such release. To the fullest extent required by applicable Federal and /or State law, Grantee shall be completely liable for any and all consequences of such release to the extent the same is caused by Grantee, including any such liability under any Federal or State law or at common law and shall have full responsibility for complete clean up, as required by any government agency, of any and all contamination from such a release. To the fullest extent authorized by applicable Federal and/or State law, the County shall be entitled to full reimbursement for all costs and damages incurred by it as the result of any release of such materials by Grantee. SECTION 9 GRADING OR EXCAVATING BY COUNTY 9.1 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 10 VACATION 10.1 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 11 RIGHTS AND POWERS RESERVED TO THE COUNTY 11.1 No privileges or rights granted hereunder shall exempt the Grantee from any future uniform rent, license, tax, charge, fee, or import which may hereafter be required by the County for revenue or as reimbursement for use and occupancy of public ways, roads, streets, rights-of- way, or other County property. Failure to timely remit any sums properly due thereby shall cause forfeiture of the privileges and rights hereunder. 11.2 County Expenses. As and to the extent permitted by applicable law, the County may recover from the Grantee the actual administrative expenses incurred by the County 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 43.21C RCW. The reimbursable expenses for receiving and approving this Franchise shall include the expenses for County staff time for preparing this Franchise, posting and publication of hearing notices, and filing this Franchise with the Jefferson County Auditor. 11.3 Damage to Grantee's Facilities. The County shall not be liable for any damage to or 13 Moa -Tel Water System Franchise 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 12 INDEMNIFICATION AND HOLD HARMLESS 12.1 In addition to and distinct from the insurance requirements of this Franchise, 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. 12.2 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 12, 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. 123 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 12 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. 14 Moa -Tel Water System Franchise 12.4 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 12. 12.5 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. 12.6 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. 12.7 The provisions of this Section 12 shall survive the expiration or termination of this Franchise. Further, all provisions of this Section 12 shall apply to the successors, assigns, and lessees of Grantee. SECTION 13 INSURANCE 13.1 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 one million dollars ($1,000,000) each occurrence and two million dollars ($2,000,000) aggregate. 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, 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 dollars ($1,000,000) per occurrence. d. The insurance policies required by this section 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 13.1. 15 Moa -Tel Water System Franchise 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. 13.2 Self- Insurance. In lieu of the insurance requirements set forth in Section 13.1, 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. 13.3 The obligations contained in this Section 13 shall survive the expiration, revocation or termination of this Franchise. Further, all provisions of this Section 13 shall apply to the successors, assigns, and lessees of Grantee. SECTION 14 LIMITATION OF LIABILITY 14.1 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 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 15 DISPUTE RESOLUTION 15.1 The Parties agree to use their best efforts to prevent and resolve disputes before they escalate into claims or legal actions. 15.2 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 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. 16 Moa -Tel Water System Franchise b. Level Two; The County Administrator or his designee shall meet with Grantee or his designee to discuss and attempt to resolve the dispute in a timely manner. 15.3 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 16 or institute a legal proceeding in any court and /or with governmental agency having jurisdiction over the dispute. 15.4 No provision of this Franchise shall be deemed to bar the right of either Party to seek or obtain judicial relief from a violation of any provision of this Franchise; nor to bar or otherwise limit the right of either Party to recover monetary damages for such violations by the other Party or to seek and obtain judicial enforcement of the other Party's obligations by means of specific performance, injunctive relief or mandate, or any other remedy at law or in equity. SECTION 16 TERMINATION OF FRANCHISE 16.1 Default by Grantee. If Grantee materially breaches any term or condition of this Franchise, the County may terminate this Franchise in accordance with Section 16.2. Upon termination of the Franchise, all rights of Grantee hereunder shall cease. 16.2 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. 16.3 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 16.2 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. 16.4 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. 17 Moa -Tel Water System Franchise 16.5 Dispute Resolution. Neither Party may invoke or rely upon the terms and obligations of this Section 16 (except for the Force Majeure rights in Section 16.4) until such time as the Dispute Resolution procedure listed in Section 15 has been utilized by the aggrieved Party. SECTION 17 ASSIGNMENT OF FRANCHISE 17.1 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 Franchise. The County hereby authorizes and approves the mortgage by Grantee of its rights, privileges, and authority under this Franchise to the trustee for its bondholders. 17.2 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 18 INCORPORATION /ANNEXATION 18.1 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. 18.2 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 19 NON - WAIVER OF RIGHTS 19.1 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 20 GOVERNING LAW AND VENUE 20.1 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 18 Moa -Tel Water System Franchise be governed by the laws of the State of Washington, both as to its interpretation and performance. 20.2 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 21 NOTICES 21.1 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: Jefferson County Public Works Department 623 Sheridan Street Port Townsend, WA 98368 Notice and billings to Grantee shall be sent to: Walter Moa Moa -Tel. Water System 154 Hwy 20 Port Townsend, WA 98368 Grantee shall promptly notify the County of any change in the notice or billing addresses. SECTION 22 SEVERABILITY AND SURVIVABILITY 22.1 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. 22.2 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. 22.3 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 23 AMENDMENT TO FRANCHISE 23.1 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 19 Moa -Tel Water System Franchise requirements of Chapter 36.55 RCW. SECTION 24 ENTIRE AGREEMENT 24.1 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. Upon the adoption date of this Franchise and acceptance of the Franchise by Grantee, all prior franchises between the County and Grantee or its predecessors in interest shall be deemed repealed. Any oral or written representations or understandings not incorporated herein are specifically excluded. APPROVED AND ADOPTED this /5 day of 2013. JEFFERSON COUNTY 4711, A ATTEST: e�7 A.. Dep,t4j Clerk of the Board Moa -Tel Water System Franchise BOARD OF COMMISSIONERS John A tin, Chair '/X Phil Johnson, Member David W. Sullivan, Member APPROVED AS TO FORM: (7 l3 David Alvarez Deputy Prosecuting Attorney FM Moa -Tel Water System Franchise Attachment A — Moa -Tel Water System Service Area The Franchise Area shall include all rights-of-way for County roads, streets, avenues, alleys, and highways located within the following sections: Township 29 North, Range 2 West Section 13 Southwest Quarter: Southeast, Southwest, and Northeast Quarters Southeast Quarter: Southwest Quarter, only the portion of Old Gardiner Road adjacent to the Olsen Short Plat, less the easterly 40.59 feet of Lot 1 Section 23 Northeast Quarter: Northeast and Southeast Quarters Southeast Quarter Section 24 Northeast Quarter Northwest Quarter Southwest Quarter: Southeast Quarter: Section 25 Northwest Quarter: Southwest Quarter: Section 26 Northeast Quarter Southeast Quarter Northwest Quarter and Southwest Quarter Portion of Northeast and Northwest Quarters northerly of SR 20 Northwest and Southwest Quarters Northwest and Southwest Quarters Township 29 North, 1 West Section 19 Northwest Quarter: Southwest Quarter Southwest Quarter: Portion of Northwest Quarter northerly of SR 20 21 Moa -Tel Water System Franchise JEFFERSON COUNTY, WASHINGTON ACCEPTANCE OF FRANCHISE RESOLUTION NO. 35 -13 The undersigned hereby wholly accepts Jefferson County Resolution No. 35•-13 adopted by the Jefferson County Board of Commissioners on the day of , 2013 which provides that: Jefferson County, Washington grants the Moa -Tel Water System 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 Resolution. This Acceptance of the Franchise Resolution is unconditionally made without reservation and is expressly part of the Franchise which is hereby incorporated by reference. Moa -Tel Water System 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 Walter Moa, owner of said Moa -Tel Water System has caused this written Acceptance to be exeetted in his name as its undersigned authorized signer, thereunto duly authorized on the day of 2013. Moa -Tel Water Sy tem By: Walter Moa, Owner STATE OF WASHINGTON COUNTY 5S. OF ���I2- �'a7�i I certify that I know or have satisfactory evidence that Walter Moa is the person who appeared before me, and said person acknowledged that he signed this instrument, on oath stated that he was duly authorized to execute the instrument on behalf of the Moa -Tel Water System, and acknowledged it to be the free and voluntary act of such party for the uses and purposes herein described. GIVEN under; myk6h'4 and offiFial seal-pis �`'� day of J Z--Y , 2013. NotZliv, an or t e State of Washington residing `���`` p �� s ,q �•,,, at J o� ••••. q� %�- v OT AR My commission expir , w N } Exp 9/300M -A pU130G = Moa -Tel Water System Franchise 22 W A'B \-\ ' / /�OF r 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 1511V Agenda Date: July 15, 2013 Subject: Moa -Tel Water System Franchise Resolution Conduct Public Hearing Statement of Issue: The Moa -Tel Water System provides water service in the Discovery Bay area, depicted as the Moa -Tel Water System Current Service Area on Exhibit III -1 Water Service Areas dated April 16, 1999 in the Jefferson County Coordinated Water System Plan. RCW 36.55 requires utilities to obtain a franchise from the County in order to provide utility service using County rights -of -way. The Water System does not have a County franchise. Walter Moa, the owner of the Moa -Tel Water System has applied for a franchise. Public Works has submitted the Franchise Resolution to the Board and 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 Ft Con's: Significant Franchise terms and conditions: The Franchise includes the following franchise terms and conditions: • Section 2.1.8 requires the Water System to subscribe to a Call - Before - You -Dig utilities location service. The System does not currently subscribe to a utilities location service. This can cause inconvenience for Public Works and excavation contractors and has the potential to result in damage to utilities. • Section 2.4 sets the franchise term at 25 years with an option to renew for an additional 25 years. • Section 3 Performance of Work establishes the requirements for conducting operations within County Road rights -of -way. Department of Public Works O Regular Agenda Page 2 of 2 • Section 4 Relocation describes the process and requirements for relocating facilities to accommodate County Public Improvement Projects. • Section 11 Rights and Powers Reserved to the County requires the Water System to reimburse the County for its expenses related to developing the Franchise. • Section 12 Indemnification and Hold Harmless indemnifies the County against third party claims related to the negligence of the Franchisee. • Section 13 Insurance establishes insurance requirements. • Section 15 Dispute Resolution establishes a dispute resolution procedure. • Section 16 Termination of Franchise establishes standards and a procedure for terminating the Franchise. • Attachment A - Moa -Tel Water System Service Area describes the Franchise Area which includes both Current and Future Water Service Areas as depicted on Exhibit III -1 Water Service Areas in the Coordinated Water System Plan. The Service Area is also depicted on the attached Moa -Tel Water System map. The Water System does not have an adequate water right to expand service. Mr. Moa has applied for an additional water right from the Washington Department of Ecology that has not been granted. The Franchise recognizes that until such time as additional water rights are secured and the Washington Department of Health grants approval, the Water System cannot expand its service. Fiscal Impact /Cost Benefit Analysis: Mr. Moa has paid a Franchise Application Fee as provided for in the Public Works Fee Schedule. The Franchise requires Mr. Moa to reimburse Public Works for its expenses that exceed the Application Fee. Recommendation: Prior to the public hearing, Public Works will conduct a brief workshop and answer questions regarding the Franchise Resolution. After the close of the hearing, the Board could: • Consider the comments received and decide whether to grant the Franchise or • Direct Public Works to compile the comments and prepare responses for review by the Board at a later date. If the Board grants the Franchise, the Commissioners should sign all three copies of the Franchise Resolution and return them to Public Works to send to Mr. Moa for acceptance. Department Contact: Jim Pearson, 385 -9160 "wed By: lip Mole , County Admirn rator Date CONTRACT REVIEW CONTRACT WITH: Walter Moa, Moa -Tel Water System r (Contractor /Consultant) CONTRACT FOR: Water system franchise COUNTY DEPARTMENT: For More Information Contact: Contact Phon #: I RETURN TO: AMOUNT: NA Revenue: NA Expenditure: NA Matching Funds Required: NA Sources(s) of Matching Funds NA Step 1: REVIEW BY Review by: Date Reviewed: APPROVED FORM Comments Works Jim Pearson 162 RETURN BY: JUN `7 201 A. P✓ 01-1LE7 XlNG.41`Tr)*2EY 2413 PROCESS: Exempt from Bid Process Consultant Selection Process Cooperative Purchase Competitive Sealed Bid Small Works Roster Vendor List Bid RFP or RFQ Other Returned for revision (See Comments) Step 2: REVIEW BY ROSECUT N TT R Review by: L tvt Date Reviewed: APPROVED AS TO FORM Returned for re Kid (See Comments) Comments Step 3: (If required) DEPARTMENT MAKES REVISIONS & RESUBMITS TO RISK MANAGEMENT AND PROSECUTING ATTORNEY Step 4: CONTRACTOR/CONSULTANT SIGNS APPROPRIATE NUMBER OF ORIGINALS Step 5: SUBMIT TO BOCC FOR APPROVAL Submit originals and 9 copies of Contract, Review Form, and Agenda Bill to BOCC Office. Place "Sign Here" markers on all places the BOCC needs to sign. MUST be in BOCC Office by 5 p.m. TUESDAY for the following Monday's agenda. (This form to stay with contract throughout the contract review process.)