HomeMy WebLinkAbout102218_ca01 Department of Public Works
0 Consent Agenda
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Jefferson County
Board of Commissioners
Agenda Request
To: Board of Commissioners
Philip Morley, County Administrator
From: Monte Reinders, P.E., County Engineer / Public Works Director/4_,
Agenda Date: October 22, 2018
Subject: Seamount Estates Community Water System Franchise
Schedule Public Hearing
Statement of Issue:
Seamount Estates Community has applied to Jefferson County for a non-exclusive
franchise for a community water system located in southern Jefferson County. The
Franchise Area would include all County Road rights-of-way located within the
following Sections 29, 30, 31 a 32, Township 25 North, Range 2 West.
Attached is a public hearing notice for a Board of Commissioners' public hearing on
the Franchise Resolution at 10:00 AM on Tuesday, November 13, 2018.
Analysis/Strategic Goals/Pro's &t Con's:
Significant franchise terms and conditions:
In accordance with RCW 36.55.040, upon application to the County legislative
authority for a franchise, it shall fix a time and place for hearing the same and shall
give public notice at the expense of the applicant.
Fiscal Impact/Cost Benefit Analysis:
All costs related to the advertising costs for the hearing notice and the installation,
maintenance and repair of the utilities under this Franchise shall be the responsibility
of the Applicant.
Recommendation:
The Department requests that the Board schedule a public hearing on the Franchise
Resolution at 10:00 AM on Tuesday, November 13, 2018 and direct the Chair of the
Board to sign the attached public hearing notice.
Department of Public Works
0 Consent Agenda
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As per the requirements of RCW 36.55, public hearing notices will be published in the
Leader on October 31, 2018 and November 7, 2018 and will be posted at three
locations in Port Townsend. Public Works will also post the public hearing notice and
Franchise Resolution on the County's Internet home page.
Department Contact: Terry Duff, 385-9160
Reviewed By:
e7"
Philip Morle Irekty Administ • or Date
NOTICE OF PUBLIC HEARING:
SEAMOUNT ESTATES COMMUNITY WATER SYSTEM FRANCHISE
Notice is hereby given that the Jefferson County Board of Commissioners will conduct a public hearing on
Tuesday,November 13,2018 at 10:00 AM in the Commissioners' Chambers at the Jefferson County
Courthouse, 1820 Jefferson Street,Port Townsend, Washington to take testimony concerning a Resolution
granting a nonexclusive community water system Franchise to the Seamount Estates Community to
construct,maintain,and operate a Group A Community Public Water System within County Road rights-
of-way located in Sections 29, 30,31 &32,Township 25 North, Range 2 West.
Copies of the Resolution are available at the Commissioners' Office at the County Courthouse, 1820 Jefferson
Street, Port Townsend, Washington. Copies may also be requested by calling the Commissioners' Office at
(360) 385-9100 or emailing jeffbocc@cojefferson.wa.us. The Resolution can also be viewed on the County
website at www.cojefferson.wa.us.
Comments on the Resolution can be made at the public hearing or by letter to the Jefferson County Board of
Commissioners at PO Box 1220,Port Townsend,WA 98368 or by email to jeffbocc@cojefferson.wa.us until
4:00 PM on Friday November 9,2018.
The meeting site is ADA accessible. Accommodations for people with disabilities can be arranged with
advance notice by calling 385-9100.
David Sullivan,Chair
Jefferson County Board of Commissioners
STATE OF WASHINGTON
COUNTY OF JEFFERSON
In The Matter of the Application by )
Seamount Estates Community Water System )
For a Nonexclusive Franchise ) Resolution
To Construct, Maintain, and Operate a ) Granting A Nonexclusive
Group A Community Public Water System Consisting of ) Franchise
Pipes, Valves, Hydrants, and Other Appurtenances )
Upon, Under, Along, and Across a Franchise Area )
Within Unincorporated Jefferson County )
WHEREAS, Seamount Estates Community Water System ("Grantee"), has applied to the
Jefferson Board of County Commissioners ("the Board"), pursuant to Chapter 36.55 and
Chapter 80.32 of the Revised Code of Washington ("RCW"), 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 the Franchise
Area(as defined below) in unincorporated Jefferson County; and
WHEREAS,Chapter 13.56 of the Jefferson County Code("JCC")requires utility providers
who occupy Jefferson County ("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,Chapter 13.56 JCC specifies standards and procedures for granting franchises
for utility providers to occupy County rights-of-way; and
WHEREAS, the Board finds that granting a franchise is consistent with the requirements
of 13.56.080 JCC in that:
1. Grantee has the financial and technical ability to fulfill its obligations under a
franchise granted by the County; and
2. Grantee has legal standing to be granted a franchise; and
3. Grantee currently has Utility Facilities (the "Facilities," as defined below) that are
accommodated within County rights-of-way in the portions of Jefferson County; and
Seamount Estates Community Water System Franchise
4. County rights-of-way generally have the capacity to accommodate the Facilities, if
there is appropriate planning and provision for installation, operation, maintenance, and repair of
the Facilities; and
5. Granting the proposed franchise would not significantly damage or disrupt public
or private facilities,improvements, services,travel,or landscaping,if there is appropriate planning
and provision for installation, operation, maintenance, and repair of the Facilities; and
6. The public interest in minimizing the cost and disruption resulting from the
presence of the Facilities in County rights-of-way can be protected; and
7. Granting a franchise will authorize Grantee to continue to provide water service in
its Current Water Service Area in Jefferson County; and
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,
ordinances, regulations, rules, and policies, including Chapter 36.55 RCW and Chapter 80.32
RCW and the 13.56 JCC; and
WHEREAS, pursuant to Chapter 36.55 RCW and Chapter 80.32 RCW, a hearing on the
application was held on the day of , 2018; 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 finds that it is in the public interest to grant the nonexclusive
franchise;
NOW,THEREFORE,BE IT RESOLVED BY THE BOARD that a nonexclusive franchise
is hereby granted to Grantee, to install, construct, repair, replace, maintain, relocate, extend,
remove, operate, and use the Facilities in, upon, under, along, through, and across the Franchise
Area, under the following express terms and conditions.
1. DEFINITIONS
The terms listed below, as used in this Franchise, shall have the meanings given in this
Franchise. When not inconsistent with the text,words used in the present tense include the
future tense,words in the plural number include the singular number,words in the singular
number include the plural number, and the use of any gender shall be applicable to both
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.
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1.1. "Aboveground Facilities" means Facilities that are at or above ground and not
buried underground.
1.2. "Board"means Board of County Commissioners of Jefferson County.
1.3. "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.
1.4. "Emergency" means any condition constituting a clear and present danger to life,
safety, or property.
1.5. "Engineer"means the County Engineer or designee.
1.6. "Facilities" means, collectively, all: (a) components of a water transmission and
distribution system, including but not limited to, pipes, valves, and hydrants; and,
(b) any and all other equipment, appliances, attachments, appurtenances and other
items necessary, convenient, or in any way appertaining to any and all of the
foregoing, whether the same be located above ground or underground.
1.7. "Franchise" means this Franchise, including all the grant of rights, privileges, and
authority embodied in this Resolution.
1.8. "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—
Seamount Estates Community 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,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.
1.9. "Force Majeure Event" means an event beyond the control of a Party, which
prevents a Party from complying with any of its obligations under this Franchise
and includes but is not limited to fires, explosions, earthquakes, droughts, floods,
tsunamis, storms or other natural disasters, civil emergencies declared by the
federal, state or local government, and any failure or delay in the performance by
the other Party or caused by a Third Party who is not an employee, agent, or
contractor of the either Party.
1.10. "Grantee"means the Seamount Estates Community Water System.
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1.11. "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, including its hazardous communications standards, the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA), the
Resource Conservation and Recovery Act (RCRA), the Washington Hazardous
Waste Management Act,the Washington Model Toxic Control 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
that regulates any hazardous, toxic, or dangerous substance, material, waste,
pollutant, or contaminant, as it exists now or is later amended or superseded.
1.12. "JCC"means the Jefferson County Code, as it now exists or as it is later amended
or superseded.
1.13. "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.
1.14. "Parties"or collectively the County and Grantee.
1.15. "Party"means one of the Parties.
1.16. "Person" means an individual, entity, corporation, partnership, firm, association,
joint venture, or organization of any kind.
1.17. "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,or streets;curbs,or sidewalks;pedestrian,bicycle„or other
non-motorized transportation facilities; water systems; sanitary sewer systems;
bridges, culverts, and storm drainage facilities; and County-owned fiber optic
cable, conduit, or network facilities. For the avoidance of doubt, a Public
Improvement Project will not include any development or other activity requiring
the relocation of the Facilities for the benefit of a Third Party. Any such relocation
shall be subject to the rights provided to Grantee in Section 4.9.
1.18. "Resolution"means this Resolution.
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1.19. "RCW" means the Revised Code of Washington, as it exists now or is later
amended or superseded.
1.20. "Section"means a section of this Franchise.
1.21. "Third Party"means any Person other than the County and Grantee.
1.22. "Utility Facility" means privately, publicly, or cooperatively owned plant,
equipment and property including, but not limited to, the poles, pipes, mains,
conduits, ducts, cables, wires, plant and equipment located under, on or above the
surface of the ground within rights-of-way and used or to be used for the purpose
of providing utility or telecommunications services.
1.23. "WAC" means the Washington Administrative Code, as it exists now or is later
amended or superseded.
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 in this Franchise, 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 in
this Franchise.
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, 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.
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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 regarding 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 in this Franchise 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 apply 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 a new franchise has been granted by the
County.
2.2 Noninterference. All construction, installation, service, repair, or maintenance of
the Facilities performed upon,over,under,along,or across the Franchise Area shall
be done in such a manner as not to interfere with the free passage of pedestrian, or
vehicle traffic in the Franchise Area; 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. The
Facilities shall have the same preference regarding 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 the Facilities.
Nothing in Section 2.2 is intended to or will affect or modify the rights and
obligations of the Parties with respect to the relocation of the Facilities under
Section 4. All relocations of the Facilities will be undertaken only subject to and
in accordance with the terms, conditions, and requirements set forth in Section 4.
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2.3 Drawings. Grantee shall provide the Engineer, upon the County's reasonable
request, copies of available drawings in Grantee's possession showing the location
of the Facilities at specific locations within the Franchise Area. The Grantee does
not warrant the accuracy of such drawings and the location of the Facilities shown
are approximate.
2.4 Verification of Underground Facilities. 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.
2.5 Determining Location of Utility Facilities. With respect to any excavations by or
on behalf of Grantee or the County within the Franchise Area, nothing in this
Franchise 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.
2.6 Term of Franchise.
2.6.1 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.
2.6.2 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 13 and deliver to the County the required
evidence of insurance set out in Section 16. 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.
2.6.3 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.
2.7 Nonexclusive Franchise. The Franchise shall be nonexclusive.
2.7.1 The County specifically reserves the right to grant at any time such rights,
permits, licenses, or franchises to Persons to use the Franchise Area for
similar or different purposes allowed hereunder as the County deems
appropriate, so long as the same does not interfere with Grantee's rights
under this Franchise.
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2.7.2 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.
2.7.3 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.
2.8 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 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, or permits, as now exist or as later amended or superseded.
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
Chapter 13.56 JCC (Utilities).
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 Chapter 13.56 JCC.
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.
3.1.4. 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.
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Seamount Estates Community Water System Franchise
3.1.5. 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. During 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.
3.2.2. If 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.
3.2.3. In the event any of the 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.
3.2.4. If Grantee shall fail to repair the Facilities and correct the 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.
3.3.1. After installation,construction,relocation,maintenance,removal,repair,or
replacement of any of the 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.
3.3.2. 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, further, nothing in this Franchise 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.
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Seamount Estates Community Water System Franchise
3.4. Refuse and Debris.
3.4.1. Grantee shall promptly remove and properly dispose of refuse and debris
resulting from any of Grantee's work within the Franchise Area.
3.4.2. Grantee shall remove refuse and debris on a regular basis during the work
day to keep all travel ways clear.
3.4.3. Should Grantee's work last for more than one day in a 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 considering the work being
undertaken by Grantee.
3.5. Financial Security.
3.5.1. 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 in the Franchise Area.
3.5.2. 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.
3.8. Traffic Control.
3.8.1. 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 control plans.
3.8.2. 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.
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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 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 the 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. To assist Grantee in planning for Public Improvement Projects that may require
relocation of the 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 the Facilities within thirty
(30)days of their preparation.
4.3. Whenever the County undertakes a Public Improvement Project that requires
relocation of the 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 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
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Seamount Estates Community Water System Franchise
County shall evaluate Grantee's request and proposed alternative schedule in
good faith and under the review standard specified below in 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 Section 4 the County
and Grantee shall work cooperatively to establish a revised schedule for
the Public Improvement Project and the relocation of the 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 Section 4.4.
4.4.2. If the County, under the review standard required above,reasonably and
properly denies Grantee's request,thereafter and subject to Section 4
Grantee shall relocate its Facilities within the Franchise Area 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 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 the
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 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
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Seamount Estates Community Water System Franchise
shall relocate its Facilities within the Franchise Area to accommodate the
County's schedule for the Public Improvement Project.
4.6. Subject to compliance by the County with the terms of Section 4 and to the
maximum extent provided by law, Grantee shall reimburse the County for any
and all costs, expenses, or damages that are legally required to be paid by the
County to its Third Party contractor(s) as a direct result of 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 Section 4 with respect to the relocation of the 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 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 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 the 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 the Facilities
within the Franchise Area to accommodate such development; or, (b)the County
requires the relocation of the 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 the Facilities. Any
condition or requirement imposed by the County upon any Third Party that
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Seamount Estates Community Water System Franchise
requires the relocation of the Facilities shall be a required relocation for the
purposes of 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.
5. REMOVAL OF FACILITIES
5.1 In the event Grantee permanently ceases use of any of its Aboveground Facilities
within the Franchise Area, Grantee shall, within one hundred eighty (180) days
after such permanent cessation of use or such additional time as is agreed to
between the Parties, remove such Facilities at its sole cost and expense, except as
set forth in Section 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 Section 5.2.
The Engineer's consent shall not relieve the Grantee of the obligation 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
Section 5.
5.3 The obligations contained in Section 5 shall survive the expiration, revocation, or
termination of this Franchise.
6. ABANDONMENT OF WATER PIPE AND SYSTEM FACILITIES
6.1. Whenever the Grantee proposes to abandon in place any Grantee property that is
located in the right-of-way,the Grantee shall provide the County with: (a) as-built
drawings showing the location of the facilities to be abandoned; and, (b) written
documentation showing its plans for compliance with all applicable regulations
pertaining to abandonment of the property and materials.
6.2. In the event of abandonment of any property or materials owned by the Grantee,
the County shall have the right to first elect whether to assume ownership of said
property or materials or may demand removal at Grantee's expense.
6.3. Whenever a conflict cannot be resolved except by removal from the right-of-way
of abandoned Grantee property, then the Grantee shall, at the Grantee's expense
remove that abandoned property. In removing such material, the Grantee shall
conform to all federal, State and local laws,ordinances or regulations applicable to
removal of the specific type of property or materials.
6.4. Whenever the Grantee proposes to abandon in place any Grantee property
containing asbestos cement that is located in the right-of-way, the Grantee shall
provide the County with: (a)as-built drawings showing the location of the facilities
to be abandoned; and, (b) written documentation showing its plans for compliance
with all applicable regulations pertaining to abandonment of asbestos materials.
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Seamount Estates Community Water System Franchise
6.5. Whenever a conflict cannot be resolved except by removal from the right-of-way
of abandoned Grantee property containing asbestos, then the Grantee shall, at the
Grantee's expense remove that abandoned property. In removing such material,
the Grantee shall conform to all federal, State and local laws, ordinances or
regulations applicable to asbestos abatement.
7. RIGHTS NOT DERIVED FROM THIS FRANCHISE
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 existing prior to this
Franchise 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.
8. COORDINATION AND SHARED EXCAVATIONS
8.1. 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 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 by each Party 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.
8.2. 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.
9. HAZARDOUS SUBSTANCES
9.1. 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 federal, State or local laws,rules,regulations,ordinances,and standards 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.
9.2. To the fullest extent required by applicable federal and 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
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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.
9.3. To the fullest extent authorized by applicable federal and State law, the County
shall be entitled to full reimbursement for all response costs, damages or other
expenses incurred by the County as the result of any release of Hazardous
Substances by Grantee.
10. GRADING OR EXCAVATING BY COUNTY
10.1. This Franchise shall not preclude the County, its agents, employees, or contractors
from grading, excavating, or doing other work contiguous to the Facilities.
10.2. However, with respect to such grading, excavating, and other work, the County
shall use its best efforts to coordinate such work with Grantee to protect the
Facilities from harm, damage, or disturbance.
11. VACATION
11.1. 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 the 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.
11.2. 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.
11.3. The County shall not be liable for any damages or loss to the Grantee by reason of
such vacation.
12. RIGHTS AND POWERS RESERVED TO THE COUNTY
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.
13. 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
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Seamount Estates Community Water System Franchise
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.
14. DAMAGE TO GRANTEE'S FACILITIES
The County shall not be liable for any damage to or loss of any of the 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.
15. INDEMNIFICATION AND HOLD HARMLESS
15.1. In addition to and distinct from the insurance requirements of Section 16, 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 attorney's 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.
15.2. 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 Section 15,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.
15.3. 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
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Seamount Estates Community Water System Franchise
any of them may be liable, the indemnification obligation under Section 15 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 in this Franchise,
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.
15.4. 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 Section 15.
15.5. The 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.
15.6. 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.
15.7. The provisions of Section 15 shall survive the expiration or termination of this
Franchise. Further, all provisions of Section 15 shall apply to the successors,
assigns, and lessees of Grantee.
16. INSURANCE
16.1. Grantee Insurance. Grantee shall procure and maintain for the duration of this
Franchise the following insurance:
16.1.1. Commercial General Liability insurance and, if necessary, Umbrella
Liability insurance, which will cover bodily injury, property damage, and
any other exposure which can be reasonably identified as potentially arising
from Grantee's activities within the Franchise Area. The limit of liability
shall not be less than 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
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Grantee's activities within the Franchise Area and shall include completed
operations, collapse, explosions, and underground hazards.
16.1.2. 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.
16.1.3. 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.
16.2. The insurance policies required by Section 16 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).
16.3. Grantee shall furnish the County with properly executed certificates of insurance
or a signed policy endorsement,which shall clearly evidence all insurance required
in Section 16.1. The certificates will, at a minimum, list the limits of liability and
coverage.
16.4. 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.
16.5. Self-Insurance. In lieu of the insurance requirements set forth in Section 16.1,
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.
16.6. The obligations contained in Section 16 shall survive the expiration,revocation,or
termination of this Franchise. Further, all provisions of Section 16 shall apply to
the successors, assigns, and lessees of Grantee.
17. LIMITATION OF LIABILITY
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, 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
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County.
18. DISPUTE RESOLUTION
18.1. The Parties agree to use their best efforts to prevent and resolve disputes before
they escalate into claims or legal actions.
18.2. 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:
18.2.1. Level One: The Engineer or his designee shall meet with the Grantee or its
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 in Section 18.2.2.
18.2.2. Level Two: The County Administrator or his designee shall meet with
Grantee or its designee to discuss and attempt to resolve the dispute in a
timely manner.
18.3. 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 19 or institute a legal proceeding in the
jurisdiction and venue authorized by Section 25.2.
18.4. Subject to the limitations in Section 25, 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.
19. TERMINATION OF FRANCHISE
19.1. Default by Grantee. If Grantee materially breaches any term or condition of this
Franchise, the County may terminate this Franchise in accordance with
Section 19.2. Upon termination of the Franchise, all rights of Grantee hereunder
shall cease.
19.2. 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
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Seamount Estates Community Water System Franchise
give the Grantee at least ten (10) days written notice of a regularly scheduled
meeting of the Board 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.
19.3. 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 19.2 due to events beyond Grantee's control, then the County, in its sole
discretion, 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 affect such compliance.
19.4. Force Majeure. A Party shall not be deemed in breach or default of any provisions
of this Franchise when a Force Majeure Event prevents 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.
19.5. Dispute Resolution. Neither Party may invoke or rely upon the terms and
obligations of Section 19 (except for the Force Majeure rights in Section 19.4)until
the Dispute Resolution procedure listed in Section 18 has been utilized by the
allegedly aggrieved Party.
20. ASSIGNMENT OF FRANCHISE
Grantee may not assign or otherwise transfer its rights,privileges, or authority under this
Franchise without the prior written authorization and approval of the County. Any
assignment or transfer of any interest in this Franchise shall not be approved by the
County or be effective until the assignee or transferee becomes a signatory to this
Franchise, assuming all rights and obligations hereunder and agreeing to perform all 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.
21. 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.
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Seamount Estates Community Water System Franchise
22. INCORPORATION/ANNEXATION
22.1. 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 the Franchise Area not
incorporated into a city or town.
22.2. 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 the Franchise Area not taken from the
County.
23. NON-WAIVER OF RIGHTS
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.
24. GOVERNING LAW AND VENUE
24.1. Governing Law. It is understood and agreed that this Franchise is entered into in
the State of Washington. This Franchise shall be governed by and construed in
accordance with the laws of the United States, the State of Washington, and the
County of Jefferson, as if applied to transactions entered into and to be performed
wholly within Jefferson County, Washington between Jefferson County residents.
No party shall argue or assert that any state law other than Washington law applies
to the governance or construction of this Franchise.
24.2. Litigation/Jurisdiction/Venue.
24.2.1. Should either party bring any legal action, each party in such action shall
bear the cost of its own attorney's fees and court costs.
24.2.2. The venue for any legal action shall be solely in the appropriate state court
in Jefferson County,Washington,subject to the venue provisions for actions
against counties in RCW 36.01.050.
25. PRECEDENCE OF INTERPRETATION
In the event of any ambiguity or inconsistency in this Franchise, unless otherwise provided
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herein,the ambiguity or inconsistency shall be resolved by giving precedence in the following
order:
25.1. Applicable federal, state, and local statutes, regulations, county code, ordinances;
and then,
25.2. This Franchise.
26. COUNTY ORDINANCES AND REGULATIONS
26.1. This franchise shall not prevent the County from adopting and enforcing all
necessary and appropriate ordinances or resolutions regulating the performance of
the conditions of this franchise, including any valid ordinance made in the exercise
of its police powers.
26.2. The County retains its authority to control by reasonable regulations the location,
elevation, manner of construction, and maintenance of Grantee water delivery
facilities in the public rights-of-way, and the Grantee shall conform with all such
regulations, unless compliance would cause the Grantee to violate other
requirements of law.
26.3. In the event of a conflict between the provisions of this franchise and any other
ordinance(s) or resolution(s) enacted under the County's police power, such other
ordinance(s)or resolutions(s) shall take precedence.
27. NOTICES
27.1. 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.
27.2. Notice to the County shall be sent to:
Jefferson County Public Works Department
623 Sheridan Street
Port Townsend, WA 98368
27.3. Notice and billings to Grantee shall be sent to:
Water Operations Manager
Seamount Estates Community Water
P.O. Box 5
Brinnon, WA 98320
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Seamount Estates Community Water System Franchise
27.4. Grantee shall promptly notify the County of any change in the notice or billing
addresses.
28. SEVERABILITY AND SURVIVABILITY
28.1. 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 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.
28.2. The terms and conditions contained in this Franchise that by their sense and context
are intended to survive the expiration or termination of this Franchise shall so
survive.
29. BINDING ON SUCCESSORS AND ASSIGNS
This Franchise is binding upon the successors and assigns of the Grantee and all
privileges, as well as all obligations and liabilities of the Grantee shall inure to its
successors and assigns.
30. AMENDMENT TO FRANCHISE
This Franchise may be amended by mutual written agreement of the Parties(which
specifically states that it is an amendment to this Franchise) upon compliance with the
requirements of Chapter 36.55 RCW.
31. FORFEITURE AND REVOCATION
If the Grantee willfully fails to comply with any provision of this franchise, or through
willful misconduct, or gross negligence fails to comply with any notice given the Grantee
by the County under the provisions of this franchise, then this franchise may be revoked
by the County after a hearing held upon notice to the Grantee.
32. REMEDIES TO ENFORCE COMPLIANCE
In addition to any other remedy,the County may obtain a Superior Court Order
compelling the Grantee to comply with the provisions of this franchise and seek to
recover damages and costs incurred by the County by reason of the Grantee's failure to
comply. The pursuit of any right or remedy by the County shall not prevent the County
from acting under Section 33.
33. SECTION HEADINGS
The headings of the sections of this Franchise are for convenience of reference only and
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Seamount Estates Community Water System Franchise
are not intended to restrict, affect, or be of any weight in the interpretation or construction
of the provisions of such sections.
34. 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 are specifically excluded.
(SIGNATURES FOLLOW ON THE NEXT PAGE)
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Seamount Estates Community Water System Franchise
APPROVED AND ADOPTED this day of , 2018.
JEFFERSON COUNTY
BOARD OF COMMISSIONERS
David W. Sullivan, Chair
Kathleen Kler,Member
Kate Dean, Member
SEAL
ATTEST: APPROVED AS TO FORM ONLY:
Carolyn Gallaway Philip C. Hunsucker, Date
Deputy Clerk of the Board Chief Civil Deputy Prosecuting Attorney
Monte Reinders, P.E. Date
Public Works Director/County Engineer
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Seamount Estates Community Water System Franchise
Seamount Estates Community Water System Franchise
Attachment A—Seamount Estates Community 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:
Sections 29, 30, 31 & 32, Township 25 North, Range 2 West.
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Seamount Estates Community Water System Franchise
JEFFERSON COUNTY,WASHINGTON
ACCEPTANCE OF FRANCHISE RESOLUTION NO.
The undersigned hereby wholly accepts Jefferson County Resolution No.
adopted by the Jefferson County Board of Commissioners on the day of
2018 which provides that:
Jefferson County, Washington grants the Seamount Estates Community 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. Seamount Estates
Community 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 Jami Gilbertson, Manager of said Seamount Estates
Community Water System has caused this written Acceptance to be executed in her name as its
undersigned authorized signer,thereunto duly authorized on the day of
, 2018.
Seamount Estates Community Water System
By:
Jami Gilbertson, Manager
STATE OF WASHINGTON
ss.
COUNTY OF
I certify that I know or have satisfactory evidence that Jami Gilbertson is the person who appeared
before me, and said person acknowledged that she signed this instrument, on oath stated that she
was duly authorized to execute the instrument on behalf of the Seamount Estates Community
Water System, and acknowledged it to be the free and voluntary act of such party for the uses and
purposes herein described.
GIVEN under my hand and official seal this day of , 2018.
Notary Public in and for the State of Washington residing
at
My commission expires ,
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Seamount Estates Community Water System Franchise