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HomeMy WebLinkAbout101920_ca02 JEFFERSON COUNTY BOARD OF COUNTY COMMISSIONERS AGENDA REQUEST TO: Board of County Commissioners Philip Morley, County Administrator FROM: Rose Ann Carroll,Auditor DATE: October ( 2020 (-}/ SUBJECT: AGREEMENT, Elections Ballot Drop Box Installation on Hoh Indian Nation STATEMENT OF ISSUE: The Washington State Legislature passed ESSB 5079 requiring County Auditors to establish ballot drop boxes at the request of a federally recognized Indian tribe with a reservation within the County. The Hoh Indian Nation made their official request on September 18, 2020 for a drop box to be installed on their tribal lands located in Jefferson County. FISCAL IMPACT: Elections has obtained a used drop box from another county that went to a larger capacity drop box. The costs associated with opening, closing and ballot collection are direct costs associated with the election and become part of the bill out for the election. RECOMMENDATION: Approve agreement with Hoh Indian Nation. REVI D BY: Philip Morely, un y Adm ii Date ,SON cOG r .4611I NG,SO INTERLOCAL COOPERATIVE BALLOT DROP BOX PROPERTY USE AGREEMENT Between Jefferson County Hoh Indian Nation This Ballot Drop Box Property Use Agreement (hereinafter "Agreement") is made and entered into this day of , 2020, the date the last party has signed ("Effective Date"), by and between JEFFERSON COUNTY,a political subdivision of the state of Washington (hereinafter "the County") and the Hoh Indian Nation, a federally-recognized Indian tribe and sovereign government (hereinafter "the Hoh Indian Nation") pursuant to the provisions of the Interlocal Cooperation Act, Chapter 39.34 of the Revised Code of Washington, and the Constitution of the Hoh Indian Nation (1975). The Hoh Indian Nation and the County may hereinafter be referred to collectively as "Parties" or individually as a"Party." RECITALS WHEREAS, the Hoh Indian Nation owns that certain parcel of real property located at 2261 Lower Hoh Rd, Forks, WA, Jefferson County, Washington as described in Exhibit A attached hereto and by this reference incorporated herein(hereinafter"Subject Property"); and WHEREAS, the County will provide a ballot drop box of the type and nature schematically depicted in Exhibit B attached hereto and by this reference incorporated herein (hereinafter "Drop Box")to be installed and used by the Hoh Indian Nation to collect ballots cast by voters in general and special elections conducted by the Auditor of Jefferson County pursuant to Chapter 29A of the Revised Code of Washington; and WHEREAS, the Hoh Indian Nation desires to make available to the County for the installation, use and maintenance of the Drop Box those certain portions of the Subject Property depicted and described in Exhibit A attached hereto and by this reference incorporated herein (hereinafter collectively the "Premises"); and WHEREAS, in 2017 the Washington State Legislature passed SSB 5472, which requires the County Auditor to establish ballot drop boxes at designated locations within the County; and WHEREAS,in 2019 the Washington State Legislature passed ESSB 5079,which requires the County Auditor to establish ballot drop boxes at the request of a federally recognized Indian tribe with a reservation within the County; and 1 WHEREAS,the Parties agree that it is in the best interest of the general public that a ballot drop box should be located in Forks, so as to facilitate and encourage public interest in electoral participation by local residents; and WHEREAS, on September 18,2020,the Hoh Indian Nation contacted the County Auditor requesting a ballot drop box be installed on Hoh Indian Nation property; and NOW, THEREFORE, for and in consideration of the terms, covenants and conditions set forth in this Agreement, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Hoh Indian Nation and the County hereby agree as follows: AGREEMENT 1 Incorporation of Recitals. The above recitals are true and correct and are incorporated herein by this reference as if fully set forth. 2 Grant of Use Right. The Hoh Indian Nation hereby grants to the County, and the County hereby accepts from the Hoh Indian Nation,the right to use the Subject Property and Premises according to the terms, covenants and conditions set forth in this Agreement. 3 Use Period. This Agreement shall commence on the Effective Date and terminate at midnight on December 31, 2022 (hereinafter"Use Period"). This Agreement shall automatically renew for successive periods of one (1) year, each beginning January 1 and ending December 31 (hereinafter each a "Renewal Period"). Notwithstanding the foregoing, this Agreement may be terminated at any time by either Party upon ninety (90) calendar days prior written notice served on the other Party as provided in Section 10 below. 4 Delivery of Use; Acceptance. The County shall be entitled to use of the Premises as of the Effective Date. The County has inspected the Premises and has determined to its complete satisfaction the same are suitable for the uses described in Section 5.1 below. 5 Use of Premises. 5.1 Permitted Uses. The County shall use the Premises for the sole purposes of using, maintaining and removing the Drop Box and for no other uses or purposes without the prior written consent of the Hoh Indian Nation. 5.2 Prohibited Uses. The County shall not use the Premises in violation of any statute, rule,ordinance,permit,order,regulation or code in effect and applicable to any part thereof, nor shall it do or suffer to be done in or about the Premises, or bring into, keep, or suffer to be brought into or kept in or about the Premises, anything that may constitute a waste, hazard, nuisance or unreasonable annoyance to the Hoh Indian Nation or its residents. Separate and apart from this Agreement,the County shall be solely and exclusively responsible for obtaining any regulatory approvals necessary to install the Drop Box. 6 The County's Responsibilities. 6.1 Maintenance. The County shall, at its sole cost and expense, maintain the Drop Box throughout the Use Period in good repair and in a neat, clean, safe, sanitary and graffiti-free condition. If the Drop Box is breached, damaged, vandalized or defaced in any way, the County shall, in its sole discretion, either re-secure, repair or replace the Drop Box as soon as practicable after receiving notice thereof; or 2 shall terminate this Agreement with thirty(30)days written notice to the Hoh Indian Nation, in which case the provisions of Section 14 shall apply. 6.2 Security. The County shall be solely responsible for the security of the Drop Box and its contents. If any threat is made with respect to the Drop Box, such as an incendiary or other device, the County shall, in its sole discretion, determine whether it will be solely responsible for dealing with and resolving that threat or whether the threat should be referred to another agency. 6.3 Collection of Ballots. During the eighteen-day period prior to primary, general and/or special elections, the County shall be responsible to empty and reseal the Drop Box as required by Section 434-250-100 of the Washington Administration Code. 7 The Hoh Indian Nation's Responsibilities. The Hoh Indian Nation shall: 7.1 Exercise due care and caution with respect to the Drop Box while conducting its business operations in and about the Subject Property and shall, at its sole cost and expense, repair any and all damage to the Drop Box caused by the negligent or willful conduct of its elected or appointed officials, contractors, servants, agents or employees; 7.2 Notify the County if at any time during the eighteen-day period prior to primary, general and/or special elections, the Drop Box has been filled to capacity and is no longer capable of accepting ballots; and 7.3 Notify the County immediately if the Hoh Indian Nation becomes aware that: 7.3.1 The Drop Box is breached, damaged, vandalized or defaced in any way; and/or 7.3.2 Any threat is made with respect to the Drop Box. 7 Indemnification. To the extent of its comparative liability, each Party agrees to indemnify, defend and hold the other Party, its elected and appointed officials, employees, agents and volunteers, harmless from and against any and all claims, damages, losses and expenses, including but not limited to court costs,attorney's fees and alternative dispute resolution costs, for any personal injury,for any bodily injury, sickness, disease or death and for any damage to or destruction of any property(including the loss of use resulting therefrom)which are alleged or proven to be caused by an act or omission, negligent or otherwise, of its elected and appointed officials, employees, agents or volunteers. In the event of any concurrent act or omission of the Parties, each Party shall pay its proportionate share of any damages awarded. The Parties agree to maintain a consolidated defense to claims made against them and to reserve all indemnity claims against each other until after liability to the claimant and damages,if any,are adjudicated. If any claim is resolved by voluntary settlement and the Parties cannot agree upon apportionment of damages and defense costs, they shall submit apportionment to binding arbitration. The Parties agree all indemnity obligations shall survive the completion, expiration or termination of this Agreement. 8 Duration of this Agreement. This Agreement shall commence upon execution by both parties, as signed and dated below, and shall remain in effect until either Party terminates this Agreement, or the parties mutually agree to terminate, as follows. Either party may, through 3 its authorized officials, terminate this Agreement upon sixty (60) days written notice to the other party. Termination of this Agreement by either Party does not affect or diminish authority exercised prior to the effective date of such termination. Termination shall not relieve either party of its obligation in Section 7 to indemnify the other Party. 9 Filing the Agreement with County Auditor or Posting on Website. It is mutually agreed by the Parties that this Agreement shall be filed with the Jefferson County Auditor after it is signed by the Parties,or in lieu thereof,posted on the official website of each Party. Recording costs shall be equally borne between the Parties. 10 No Joint Acquisition of Property. This Agreement does not contemplate the joint acquisition of property by the Parties. At termination, each party will remain the sole owner of its own property. 11 Tribe's Limited Waiver of Sovereign Immunity. The Hoh Tribe waives its right to assert sovereign immunity as a defense to any lawsuit or complaint by the County pursuant to Section 7 and consents to the jurisdiction of the courts of the State of Washington to hear and resolve any such lawsuit or complaint. The Hoh Tribe and County agree that Section 7 is the sole process for remedying or resolving disputes that arise under this Agreement and that no other lawsuit or complaint is permitted other than one arising under Section 7. 12 Default; Remedies. In the event of a default under this Agreement, either Party may pursue any remedy allowed by law. 13 Waiver. Failure by either Party to promptly enforce any right under this Agreement shall not operate as a waiver of such right with respect to any future default. 14 Notices. Any notices required or desired to be given shall be given in writing by electronic mail and U.S. Mail to the person(s) set forth below: To the Hoh Indian Nation: Attn: Secretary, Hoh Business Committee 2269 Lower Hoh Road Forks, WA 98331 Copy to: Hoh Indian Nation 2269Lower Hoh Road Forks, WA 98331 Telephone: (360) 374-6582 Email: bob.smith@hohtribe-nsn.org To the County: Jefferson County Auditor Attn: Rose Ann Carroll PO Box 563 Port Townsend, WA 98368 Telephone: 3 60-3 8 5-9118 Email: carrollra@co.jefferson.wa.us Copy to: Jefferson County Commissioners PO Box 1220 Port Townsend, WA 98368 Telephone: 3 60-3 8 5-9100 Email:jeffbocc@co.j efferson.wa.us 4 Any Party,by written notice to the other in the manner herein provided,may designate contact information different from that set forth above. 15 Counterparts. This Agreement may be signed in one or more counterparts, which taken together shall constitute the complete agreement between the Parties, and signatures to this Agreement by the Parties transmitted via facsimile or electronically by email shall be acceptable and binding. 16 Prior Agreements; Modification. This Agreement contains all of the agreements of the Parties with respect to any matter covered or mentioned herein and no prior agreement, letter of intent, negotiation or understanding pertaining to any such matter shall be effective for any purpose. No provision of this Agreement may be modified, amended, or added to, except by an agreement in writing signed by the Parties or their respective successors in interest. 17 Vacation of Premises. Upon expiration or earlier termination of the Agreement, the County shall: (a)remove the Drop Box and any associated mounting hardware from the Premises; and (b) leave the Premises in a neat, clean, safe and sanitary condition. 18 Severability. Any provision of this Agreement that found to be invalid, void, or illegal shall in no way affect, impair, or invalidate any other provision hereof, and such other provisions shall remain in full force and effect. 19 Governing Law; Venue. This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of Washington. The venue of any action between the Parties relating to the subject matter of this Agreement shall be in the Superior Court for Jefferson County, Washington. BOARD OF COMMISSIONERS HOH INDIAN NATION JEFFERSON COUNTY Greg Brotherton, Chair Dawn Gomez, President, or designee David Sullivan, Commissioner Kate Dean, Commissioner ATTEST: ATTEST: Carolyn Gallaway, Clerk of the Board Tahnee Hudson, Secretary Date: 5 APPROVED: Rose Ann Carroll Jefferson County Auditor APPROVED AS TO FORM: /jVa--• /4/ ,126 Philip Hunsucker Civil Deputy Prosecuting Attorney Jefferson County Prosecutor's Office 6 Exhibit A • +► I Hoh i �V:.,'� �tid i r1i ff �t tt .2 ntcr + .fit I Exhibit B ROP BALL I IIERP, IIRl1P I O 111"t.` 1`,111 ie�G uorW`a061i, 7