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Home My WebLink About2020/02/18 - Regular Packet BOARD OF MASON COUNTY COMMISSIONERS DRAFT MEETING AGENDA Commission Chambers— 9:00 a.m. 411 North Fifth Street, Shelton WA 98584 February 18, 2020 1. Call to Order 2. Pledge of Allegiance 3. Roll Call 4. Correspondence and Organizational Business 4.1 Correspondence 5. Open Forum for Citizen Input (3 minutes per person, 15 minutes time limit) If you wish to address the Commission, raise your hand to be recognized by the Chair. When you have been recognized, please step up to the microphone and give your name and address before your comments. The Mason County Commission is committed to maintaining a meeting atmosphere of mutual respect and speakers are encouraged to honor this principle. 6. Adoption of Agenda Items appearing on the agenda after"Item 10. Public Hearings", may be acted upon before 9:15 a.m. 7. Approval of Minutes —January 6, 2020 Briefing Minutes; February 4, 2020 Regular Meeting Minutes. 8. Approval of Action Agenda: All items listed under the"Action Agenda"may be enacted by one motion unless a Commissioner or citizen requests an item be removed from the Action Agenda and considered as a separate item. 8.1 Approval of Warrants &Treasure Electronic Remittances Claims Clearing Fund Warrant #s 8070309-8070448 $ 485,123.04 Direct Deposit Fund Warrant #s 65698-66082 $ 707,280.93 Salary Clearing Fund Warrant #s 7004979-7005014 $ 1,000,610.54 8.2 Approval to set a public hearing for March 17, 2020 at 9:15 a.m. to consider the approval of budget supplemental appropriations and amendments to the 2020 budget. 8.3 Approval of the resolution amending Mason County Code Chapter 2.02, Departments reporting to the Commissioners, adding a Motor Pool Department. 8.4 Approval to have the Chair sign contract #SEASMP-1921-MACoCs-00057 between Mason County and the State of Washington Department of Ecology for the periodic update of the Shoreline Master Program. 8.5 Approval of a resolution to establish Fund 141 as the Sheriff's Boating Program, establish Fund 142 as the Narcotics Investigation Fund, delete Fund 140 and place Prisoner Welfare Program monies (aka commissary) and General Donations into Current Expense as Committed Revenues. Agendas are subject to change,please contact the Commissioners'office for most recent version. This agenda was last printed on 02/13/20 10:14 AM. If special accommodations are needed,contact the Commissioners'office at ext.419,Shelton#360-427-9670;Belfair #275-4467,Elma#482-5269. MASON COUNTY COMMISSIONERS' MEETING AGENDA February 18, 2020—PAGE 2 8.6 Approval to authorize the Public Works Director to execute Amendment No. 1 to the contract agreement with Financial Consulting Solutions Group, Inc. to update and revise the Belfair Sewer financial plan and complete an updated financial plan. 8.7 Approval to have the Board authorize the payback of 2018 traffic diversion dollars in the amount of$66,917.19 to County Roads from Non-Departmental for the buyout of 75% of two Ford Explorers. 9. Other Business (Department Heads and Elected Officials) 10. 9:15 a.m. Public Hearings and Items Set for a Certain Time 10.1 Public Hearing to consider approval of the franchise agreement application between Mason County and Erickson Lake Homeowners Association to run water lines and appurtenances under and across county road right of way. Staff: Loretta Swanson 10.2 Public Hearing to consider approval of the water system franchise agreements between Mason County and the following: • Beacon Point Community Club, • Maggie Lake Water District Inc. • Cedar View Tracts • Merrimount Water System • Harstine Island Estates • Triton Head Water Association • Lynnwood Community Beach • Twanoh Tides Community Club Association 11. Board's Reports and Calendar 12. Adjournment JAAGENDAS\2020\2020-02-18 REG.doc L /fir i` MASON COUNTY TO: BOARD OF MASON COUNTY COMMISSIONERS Reviewed: FROM: Ginger Kenyon Ext. 380 DEPARTMENT: Support Services Action Agenda DATE: February 18, 2020 No. 4.1 ITEM: Correspondence 4.1.1 The State of Washington Governor's Committee on Disability Issue and Employment sent in a letter regarding The Town Hall Meeting on Thursday February 27th 2020 from 5:30pm to 7:30pm. 4.1.2 Department of Natural Resources sent in the County Income Report Explanation of Tables for January 2020. Attachments: Originals on file with the Clerk of the Board. STATS o� cc:CMMRS Neatherlin,Shutty&Trask Clerk Dya-ne x �y't �eae aoy STATE OF WASHINGTON GOVERNOR'S COMMITTEE ON DISABILITY ISSUES AND EMPLOYMENT Employment Security Department ■P.O.Box 9046 ■MS:6000■Olympia, Washington ■98507-9046 Olympia(360)890-3778 ■ Toll Free Fax 844-935-35310 Spokane(509)482-3854 .-=, � February 6,2020 ,x , The Honorable Kevin Shutty FEB 10 2020 Mason County Commissioner 411 N. 5th Street Mason County Shelton,WA 98584 Cornmissioners Dear Commissioner Shutty; As a civic leader,we value your input and want to hear from you. The Washington State Governor's Committee on Disability Issues and Employment(GCDE) is holding a Town Hall Meeting on Thursday, February 27h from 5:30 pm to 7:30 pm at the Mason County PUD NO 3, 2621 E. Johns Prairie Road, Shelton,WA. The meeting will be held in the Johns Prairie Room The purpose of the Town Hall Meeting is to discuss issues important to persons with disabilities including transportation, employment opportunities,health care, and affordable housing. GCDE is also interested in learning about local success stories and efforts being made in your community to improve accessibility and expand services for the disability community. On Friday morning, GCDE is hosting a Leadership Breakfast from 8:00 AM to 10:30 AM in the Skookum Room,at the PUD. During the continental breakfast, a facilitated working session is conducted where we review issues and concerns discussed at the Town Hall Meeting to gather additional information and explore possible solutions. Seating space is limited. Please complete the enclosed RSVP form and return it as soon as possible either by email or calling Melinda Johnson(see below). Also included are copies of Town Hall Meeting flyer. We would appreciate it if would post them and share the flyers with others in the community who might be interested in attending. Warmest regards, Daxliffa Damiana Harper, Chairperson Community Outreach Subcommittee **Please note it is the policy of GCDE to ask participants to limit their use of fragrances as an accommodation. Thank you for your consideration. ** The meeting location is accessible. Real Time Captioning(CART) service is being provided. Sign language or other accommodations will be provided upon request. To request an accommodation please contact Melinda Johnson at msjohnson@esd.wa.gov or(509) 482-3854 by February 18, 2020. RSVP LEADERSHIP BREAKFAST Friday, February 28, 2020 8:00 to 10:30 A.M. Mason County PUD NO 3 2621 E. Johns Prairie Road In the Johns Prairie Room Shelton, Washington NAME: PHONE NUMBER: E-MAIL: ADDRESS: [] I WILL ATTEND THE LEADERSHIP BREAKFAST. I WILL NOT BE ATTENDING THE LEADERHSIP BREAKFAST. ❑ I WILL ATTEND THE TOWN HALL MEETING ❑ I WILL NOT BE ATTENDING THE TOWN HALL MEETING. I AM REQUESTING THE FOLLWING ACCOMMODATIONS: (Due by February 18, 2020 Note: Real Time Captioning is being provided ❑ Large Print ❑ Braille ❑ Sign Language Interpreter ❑ Assistive Listening Devices ❑ Other Please note it is the policy of GCDE to ask participants to limit their use of fragrances as an accommodation. Thank you for your consideration. Confirm by email: msjohnson@esd.wa.gov Confirm by phone: 509.482-3854 Confirm by FAX: Toll Free 844.935.3531 Area of Interest:❑Transportation ❑Employment ❑Healthcare ❑Housing❑Emergency Mgmt. ❑ Other Revised:October 27,2018 ' GCDE The Washington State Governor's Committee on Disability Issues and Employment STATA, d w� t 1889 � TOWN HALL MEETING WHERE: Mason County PUD # 3 2621 E. Johns Prairie Road Shelton, WA 98584 ROOM Skookum Room DATE: Thursday, February 27th TIME: 5:30 PM to 7:30 PM Improve the lives of Shelton residents who have disabilities. Attend the Town Hall Meeting to discuss: • Issues affecting people with disabilities, their families and advocates • Accessible housing, transportation and school to work transition • Employment opportunities, services for people with disabilities and physical access to the built environment. • Your ideas for positive change The Mason County PUD #3 is accessible. Captioning services (CART) will be provided. If you need sign language interpreters or other accommodations, contact Melinda Johnson by February 18th at msjohnson@esd.wa.gov or at 509-482-3854 Pease limit your use of perfumes and fragrances to be courteous to those who are sensitive to smell ' GCDE The Washington State Governor's Committee on Disability Issues and Employment STATP /10�11 9 a 3 x d 1 x 1389 by TOWN HALL MEETING WHERE: Mason County PUD # 3 2621 E. Johns Prairie Road Shelton, WA 98584 ROOM Skookum Room DATE: Thursday, February 27th TIME: 5:30 PM to 7:30 PM Improve the lives of Shelton residents who have disabilities. Attend the Town Hall Meeting to discuss: • Issues affecting people with disabilities, their families and advocates • Accessible housing, transportation and school to work transition • Employment opportunities, services for people with disabilities and physical access to the built environment. • Your ideas for positive change The Mason County PUD #3 is accessible. Captioning services (CART) will be provided. If you need sign language interpreters or other accommodations, contact Melinda Johnson by February 18th at msjohnson@esd.wa.gov or at 509-482-3854 Pease limit your use of perfumes and fragrances to be courteous to those who are sensitive to smell cc: CMMRS Neatherlin, Shutty&Trask Clerk �PSHINGrOi/ O D � O Hyl ��y Op IV 7UVL HILARY S.FRANZ COMMISSIONER OF PUBLIC LANDS February 6, 2020 The Honorable Sharon Trask, Chair Mason County Board of Commissioners 411 North Fifth Street Shelton,WA 98584 Dear Commissioner Trask: The Washington State Department of Natural Resources (DNR) manages approximately 28,909 acres of State Forest Transfer and Purchase Lands that benefit Mason County. These lands generated $4,512,000 in calendar year 2019. Net value under contract for calendar year 2020 is estimated at $1,832,000 from activities expected to occur under current contracts. The income information in this report does not include anticipated revenues from additional planned activities (contracts harvests, leases, easements, etc.) for which contracts have not been finalized. These income estimates are net after the current agency management cost percentage has been applied. Some counties receive portions of their income from leases and fees; however,the majority of income reflected in this report is derived from timber sales. As most revenue stems from timber sales, these projections can fluctuate depending upon when timber harvests occur. Market conditions, weather, contract requirements, and regulatory requirements influence timber purchasers' decisions about when to harvest. I appreciate how necessary revenue is to the success of county functions. DNR consistently strives to ensure that we realize the maximum available income from the State Forest Transfer and Purchase Lands. Should you have any questions regarding this information,please contact Scott Sargent, South Puget Sound Region Manager, at 360-825-1631 or at scott.sargent@dnr.wa.gov. Sincerely, Hilary . anz Commissioner of Public Lands Enclosures PRINTED ON RECYCLED PAPER.DNR IS AN EQUAL OPPORTUNITY EMPLOYER i.1OO =- ie HILARY S.FRANZ DEPARTMENT OF NATURAL RESOURCES 360-902-1000 COMMISSIONER OF PUBLIC LANDS 1111 WASHINGTON STREET SE FAX 360-902-1775 CPL@DNR.WA.GOV MAIL STOP 47001 TRS 711 OLYMPIA,WA 98504-7001 WWW.DNR.WA.GOV too COUNTY INCOME REPORT EXPLANATION OF TABLES January 2020 Two categories of lands are managed by the Washington State Department of Natural Resources (DNR) specifically to benefit counties: 1. State Forest Transfer Lands.Lands acquired by counties through tax foreclosures were transferred to DNR to manage. Management fee rates are established by the Board of Natural Resources. Currently, counties receive 75 percent of the revenue from these lands. 2. State Forest Purchase Lands. State-issued bonds were used to acquire certain parcels from private owners. Typically, these forest lands had been severely logged and were in need of active management. Allocation of revenue from these lands was determined when purchase was authorized, as follows: 26.5 percent to the county in which the property is located; 50 percent to DNR for management expenses; and the remaining 23.5 percent to the State General Fund. Nineteen counties include these types of State Forest Lands within their county boundaries. Income from management activities on State Forest Lands is designated for allocation to several taxing districts in each county. Only a small amount is available to the county for discretionary use. Revenue from State Forest Lands originates primarily from timber sales. These amounts vary widely as market conditions fluctuate. Smaller portions of revenue are derived from activities such as communication site leases, rights-of-way easements for utilities and roads, special forest products, special uses, and interest. Income will also vary with the number of revenue-generating activities within a given year. Variables responsible for high revenues in one year can lead to reduced income the following year. • Table 1 shows the annual revenue for each county from calendar year 2009 through calendar year 2019. This table illustrates the variability in total revenues from year to year. • Table 2 shows projected revenue for all 19 counties from all activities on State Forest Lands for calendar year 2019. • Table 2A shows projected revenue for each timber sale on State Forest Lands in your county anticipated to occur for 2020 and beyond(enclosed if applicable). • Table 3 shows the volume and net value under contract as of December 31, 2019 that is not currently scheduled for harvest until after December 2020(enclosed if applicable). Projections were developed by DNR region staff by contacting each timber purchaser that has rights to an upcoming sale. Purchasers were asked how much and when they planned to harvest the timber from each sale. These projected timber revenues should be considered rough estimates only; actual activity will depend on individual sale characteristics (species, volume, location, etc.), combined with outside market factors as determined by each purchaser. The schedule of future timber sales from State Forest Lands in your county is available upon request from Department of Natural Resources' region staff. Table 1. Revenue to Counties from State Forest Transfer and Purchase Lands (Calendar Years) Updated: 1/15/2020 2019 County 2010 2011 2012 2013 2014 2015 2016 2017 2018 Jan-Dec Clallam 6,229,596 5,502,033 4,738,336 5,643,329 8,487,731 3,376,506 7,938,764 6,543,420 2,987,754 6,611,511 Clark 8,793,446 4,601,597 8,528,782 7,191,261 6,388,518 5,846,269 4,791,957 5,192,493 1,486,670 2,577,304 Cowlitz 3,709,692 1,534,691 1,557,816 1,598,498 1,067,106 4,025,043 1,358,909 1,358,770 1,417,984 68,780 Grays Harbor 2,178,958 1,991,750 2,168,671 1,075,212 875,687 1,245,311 2,838,170 1,881,541 1,151,469 1,608,663 T Jefferson 981,510 3,082,453 740,481 661,568 1,085,477 2,906,961 1,603,428 1,085,544 2,573,648 1,632,243 King 2,737,595 2,474,997 1,112,153 741,392 2,818,269 952,755 2,397,790 905,021 1,245,122 4,708,952 Kitsap 495,884 55,958 877,589 743,958 293,314 851,397 824,969 1,130,540 556,973 1,566,788 Klickitat 327,073 209,403 559,355 289,623 215,737 352,380 26,797 25,551 10,947 518 Lewis 6,147,429 11,076,482 3,439,911 4,280,541 8,677,045 4,053,711 5,416,025 5,411,157 7,666,065 12,440,080 Mason 3,062,868 2,616,802 2,024,430 1,337,166 3,067,093 8,005,336 3,621,960 2,810,189 6,970,807 4,512,364 Pacific 2,060,204 2,547,153 441,369 3,446,724 1,267,286 1,227,526 2,653,344 1,387,737 3,505,380 4,651,968 Pierce 1,523,600 214,159 178,426 121,558 222,815 32,691 335,489 437,463 1,307,281 767,430 Skagit 8,746,747 11,679,594 9,093,422 5,976,604 7,452,783 7,425,535 8,592,232 14,533,379 15,534,103 11,695,390 Skamania 1,215,005 747,982 926,532 1,367,876 2,415,852 1,234,445 2,131,536 1,566,271 2,930,483 4,148,517 Snohomish 13,132,194 13,981,341 5,682,380 11,786,058 9,251,851 7,256,233 5,652,325 7,678,567 6,178,109 7,627,248 Stevens 47,542 59,973 64,654 69,322 70,725 63,533 94,918 90,768 110,709 96,010 Thurston 7,964,904 4,200,388 1,660,728 5,017,407 2,999,025 4,368,240 8,747,144 2,947,101 3,065,897 5,787,365 Wahkiakum 1,820,052 1,400,872 1,956,441 1,742,003 1,631,697 802,706 2,026,441 1,443,199 3,146,937 2,583,841 Whatcom 2,405,630 3,543,071 4,468,281 3,763,694 2,178,129 4,022,292 2,061,161 1,481,660 3,077,070 4,279,585 Totals $73,579,929 $71,520,698 $50,219,757 $56,853,794 $60,466,140 $58,048,870 $ 63,113,359 $57,910,371 $64,923,408 $77,364,557 Note: Revenue is received daily by the Department of Natural Resources for activities on State Forest lands and deposited daily at the Office of State Treasurer. Effective February 1998 these monies are remitted to each county via wire transfer a minimum of four times per month. Due to the specific date monies are received by the Department and the cutoff dates used by the State Treasurer for wire transfers, the revenue for the current period may be different than actual remittances to date. 1/15/2020 Table 2. Total Projected Revenues to Counties from State Forest Transfers and Purchase Lands ' (Dollars in Thousands) January thru June 2020 July thru December 2020 County High Medium High Medium Clallam $2,316.0 $2,792.8 $334.0 $1,264.2 Clark 2,017.0 2,237.1 152.9 232.0 Cowlitz 21.2 46.5 22.4 149.8 Grays Harbor 1,209.1 2,042.7 0.7 109.1 Jefferson 1,133.7 1,133.7 269.7 549.9 King 1,455.3 1,556.8 999.0 1,913.2 Kitsap 33.4 33.4 26.1 26.1 Klickitat 7.4 7.4 4.9 4.9 Lewis 3,043.3 5,248.1 236.2 3,573.5 Mason 1,322.8 1,322.8 509.6 509.6 Pacific 390.2 1,207.8 0.9 26.8 Pierce 4.0 4.0 0.0 0.0 Skagit 1,689.0 3,064.0 22.9 1,041.6 Skamania 19.1 19.1 13.8 153.0 Snohomish 931.7 2,952.8 100.7 2,854.4 Stevens 31.7 31.7 67.1 67.1 Thurston 3,170.0 5,696.6 2,611.4 3,914.9 Wahkiakum 1,203.9 1,203.9 0.5 0.5 W hatcom 551.5 881.3 25.0 469.4 Totals $20,550.4 $31,482.6 $5,397.7 $16,859.9 High - 90 percent reliability that timber harvest will occur and stated revenue will be transmitted. Medium -50 percent reliability that timber harvest will occur and stated revenue will be transmitted. Note: Projected revenues are based on timber purchaser's logging plans as of December 2019. These plans change with changes in the economy and the business needs of each purchaser. Department of Natural Resources' region staff should be contacted concerning possible fluctuations in timber harvest for sales currently under contract and the schedule of future sales on State Forest Lands in your county. 2/6/2020 Table 2A. Projected Timber Harvest Revenues to Mason County from State Forest Transfer and Purchase Lands by Legal Description (Thousands of Dollars)' Value Under Sale App. Expiration Legal Description January thru June 2020 July thru December 2020 Contract after Number Sale Name Date Section Township Range High Medium High Medium Dec-20 95701 Log Yard 10/31/20 31,32,33 24N 3W 504.4 504.4 0.0 0.0 0.0 98110 Infrared Fire Salvage 09/30/20 7, 18 24N 3W 699.1 699.1 466.1 466.1 0.0 Total $1,203.5 $1,203.5 $466.1 $466.1 $0.0 High-90 percent reliability that timber harvest will occur and stated revenue will be transmitted. Medium-50 percent reliability that timber harvest will occur and stated revenue will be transmitted. Values are cumulative from high to medium probability. Note: Projected revenues are based on timber purchaser's logging plans as of December 2019. These plans change with changes in the economy and business needs of each purchaser. Department of Natural Resources regional staff should be contacted concerning possible changes in timber harvest plans and for copies of sale area maps for specific locations of timber sales within the legal descriptions listed above. Mason Page 1 of 1 1/15/2020 BOARD OF MASON COUNTY COMMISSIONERS'BRIEFING MINUTES Mason County Commission Chambers,411 North 5th Street,Shelton,WA Week of January 6,2020 Monday,January 6,2020 9:00 A.M. Closed Session—RCW 42.30.140(4)Labor Discussion Commissioners Shutty,Trask and Neatherlin met in Closed Session from 9:00 a.m.to 9:45a.m.with Frank Pinter(who phoned into the meeting)for a labor discussion. 9:50 A.M. Support Services—Frank Pinter Commissioners Shutty,Trask and Neatherlin were in attendance. • Letters of interest for MTA governing board-No response has been received in regards to serving.Cmmr.Shutty asked Cmmr.Trask to reach out to the Southside School Board for possible applicants. • Jennifer Beierle said she was going to reach out to the State Auditor about the$5000 budgeted for Veterans Assistance. She asked the Board for any input to which Cmmr. Neatherlin said he would like to make things as easy as possible.He suggested speaking in further detail at the next Audit Committee meeting. • CDBG grant—Jennifer noted that it was agreed to leave the program,but she needs to speak with Frank once he returns.Cmmr.Neatherlin asked Jennifer to prepare an item for the agenda to take action in removing the County from this program. • State Homeland Security Program Grant—Ross McDowell said this grant is already in place,but more funds are coming forward.He asked if this item could be fast tracked for approval on the January 7,2020 meeting.The board approved. • Enterprise Fleet Management Lease Agreements for General Fund&Public Health vehicles-Kelly Frazier recommended placing the Enterprise contract on the agenda for approval,January 14t'.Dawn stated that the contract has been reviewed by Tim Whitehead,and Frank.Discussion was had about insurance and who could be named on the policy. • Courthouse Security Contract—Kelly handed out a letter from Pacific Security regarding a one year extension,which was allowed when the original contract was approved.This would require the County to go out for an RFQ in fall of 2020. 10:00 A.M. Community Services—Dave Windom Commissioners Shutty,Trask and Neatherlin were in attendance. • Kell Rowen said a developer had applied for the eight year property tax exemption,but after further studies of the property,the developer has been told he does not qualify for the exemption.He will still move forward with building an apartment complex. • Dave Windom spoke about the sign codes and items not currently addressed within the code.Cmmr.Neatherlin voiced caution over the expense of changing signs to comply for businesses that have been open.Dave said that they plan to go to the community,and then take those suggestions to the Planning Advisory Commission. • Kristopher Nelsen handed out the permit numbers for December,and quickly reviewed them.Dave then discussed open Code Enforcement cases. 10:25 A.M. Public Works—Loretta Swanson Utilities&Waste Management Commissioners Shutty,Trask and Neatherlin were in attendance. • Letters of interest 2020—Loretta said they going out for Letters of Interest for Construction Project Inspector,Contract and Fee Appraisers,Construction Materials Testing and timber management services. • Property Management—Loretta said there had been discussion about the Eells Hill property being partially harvested.Cmmr.Neatherlin suggested going out for a non- binding bid.Cmmr. Shutty agreed.Loretta said the parcel across from the Public Works Building has been on the market for a bit,and Richard Beckman has asked to reduce the price.Cmmr.Neatherlin asked to see Richard's email before the board makes a decision. • Diversion/2018 Sheriff Vehicle Purchases—Diane Sheesley asked to have all resolutions updated in regards to ER&R once the Enterprise Contract is approved.The Board let her know that Dawn will work with Diane Zoren to make sure all updates are done correctly. • Illumination at E.Island Lake Drive—She said the lighting would be added to an existing pole,and has been looked at by PUD. • Loretta said there will be a resolution brought forward to appoint an interim county engineer in the wake of Diane leaving. • Richard Dickinson spoke about Belfair Pump Station,noting that the station is down to only one pump.The need to create a backup plan was discussed in the event that this pump also fails. • Loretta said that applications have not been coming in for open Transfer Station positions.She said a discussion will be had with HR for a possible proposal that will come to the Board. • The Board openly spoke to Public Works staff about the decision to move forward with the Enterprise Fleet Contract. 11:30 A.M. Superior&District Courts—Robyn Lockwood/Patsy Robinson • Judge Goodell asked for an increase to the Court Commissioner hourly rate.He noted that district court is also present to make the same request.Hourly rates in nearby counties were discussed.Patsy Robinson said in order to increase the rate District Court would need a budget increase of$8,800.Cmmr. Shutty suggested holding off on a budget increase since the year just began.The Board approved moving forward with the increase for both District and Superior Courts. Respectfully submitted, Melissa Drewry,Clerk of the Board BOARD OF MASON COUNTY COMMISSIONERS Sharon Trask Randy Neatherlin Kevin Shutty Chair Commissioner Commissioner BOARD OF MASON COUNTY COMMISSIONERS' PROCEEDINGS Mason County Commission Chambers, 411 North Sth Street, Shelton, WA February 4, 2020 1. Call to Order—The Chairperson called the regular meeting to order at 9:03 a.m. 2. Pledge of Allegiance— led the flag salute. 3. Roll Call — Present: Commissioner District 1 - Randy Neatherlin; Commissioner District 2 — Kevin Shutty; Commissioner District 3 — Sharon Trask. 4. Correspondence and Organizational Business 4.1 Correspondence 4.1.1 Washington State Liquor and Cannabis Board sent in a Change of Location Application for Dank Cannabis. 4.1.2 Washington State Liquor and Cannabis Board sent in an application for Marijuana Processor on the behalf of Chad Robert Dobson. 4.1.3 Timberland Regional Library sent notice that Kathleen Varney was appointed by Thurston County Board of Commissioners to the Timberland Regional Library Board of Trustees. 4.2 Proclamation — 100 Year Anniversary of the League of Women Voters 4.3 Skokomish River Flooding update Staff: Loretta Swanson/Ross McDowell 5. Open Forum for Citizen Input— 5.1 Charles Toll voiced concern over the safety of citizens in the Skokomish Valley during flooding. He suggested adding culverts and raising the road. 5.2 Ken VanBuskirk addressed the 2004 Belfair Sub Area Plan. He said he is worried that the Board is moving too quickly on the EIS as discussed at briefings on February 3, 2020. 5.3 Patricia Bailey also voiced concern about the Skokomish River flooding, noting that people are losing days of work and children are losing days of school. 5.4 Ron Gold spoke about the missing bank on the Skokomish River. He said the bank has been removed with the various work that has been done, and needs to be replaced. 5.5 Steve Bass said road closure signs need to be on both ends of the road. 5.6 Jerry Saeger voiced how unfair it is for Green Diamond to close the 800 road to residents. He suggested that Green Diamond place a security guard at the 800 entrance to verify residents. 5.7 An unnamed citizen said the residents are used to flooding after living out there for years, but it is getting worse with no escape routes available. She asked to Board to declare an emergency to open the evacuation routes. 5.8 Carl Black, owner of Olympic Ice Cream, said he doesn't have hope for the supposed road repair in 2022. 5.9 Cindy Hacker talked about the levels of the river compared to the dips in the road. She asked that Public Works be more consistent in their road closures. 5.10 Patti Case from Green Diamond spoke on the 800 road. She said the road needs to be repaired and it may take some time to do so. Patti offered any help to the Commissioners if they need assistance to speed up the federal funds for repair of the Skokomish Valley Road. 5.11 Chief Matthew Welander said the 800 road is still closed to residents because the road is still sliding in areas. He warned not to drive in moving water because roads can be washed out. He assured citizens that there is a flood rescue vehicle, helicopters and other trucks to get to residents in case of emergency. 6. Adoption of Agenda - Cmmr. Neatherlin/Shutty moved and seconded to adopt the agenda as published. Motion carried unanimously. N-aye; S-aye; T-aye. 7. Approval of Minutes—January 20 and January 27, 2020 Briefing Minutes; January 28, 2020 Regular Meeting Minutes. Cmmr. Shutty/Neatherlin moved and seconded to adopt the January 20 BOARD OF MASON COUNTY COMMISSIONERS' PROCEEDINGS February 4, 2020 - PAGE 2 and January 27, 2020 Briefing Minutes; January 28, 2020 Regular Meeting Minutes as presented. 8. Approval of Action Agenda: 8.1 Approval of amendment 12 to contract CLH18253between Mason County Public Health and the State of Washington Department of Health. 8.2 Approval of the Settlement Agreement/Release of All Claims in the Brad Carey v. Mason County lawsuit filed in Thurston County, Cause #20-2-00081-34. 8.3 Approval to concur with Thurston County's appointment of Kathleen Varney to the Timberland Regional Library Board of Trustees for a term ending December 31, 2023. 8.4 Approval of the letter of support for the Evergreen Mobile Park to become an owner- led cooperative. 8.5 Approval of the 2020 Memorandum of Agreement, Appendix A, between Washington State University Extension and Mason County. 8.6 Approval of the Resolution amending the fee schedule for the Current Use Assessment Programs and Designated Forest Land to $500 per parcel. (Ex.A—Res. 2020-13) 8.7 Approval of the Interlocal Agreements with the Thurston-Mason Behavioral Health Organization for Involuntary Treatment Court Services with Superior Court, Prosecuting Attorney, Clerk and Public Defense. 8.8 Approval to have the Chair execute the Road Levy Certification for 2020. 8.9 Approval to have the Chair sign a Joint Aquatic Resources Permit Application (DARPA) and an Aquatic Protection Permitting System (APPS) application for the Haven Lake Fish Passage Improvement Project. 8.10 Approval to authorize the following for County Road Project (CRP) 2027, Clear Zone Improvement Projects: 1. Resolution for CRP for clear zone improvement projects on Arcadia Road, Highland Road, Matlock Brady Road and Kamilche Point Road; (Ex. B—Res. 2020-14) 2. County Engineer to advertise, set bid date/time and award contract; 3. County Engineer to announce Request for Qualifications as needed for consultant services for the project and enter into contract(s); 4. County Engineer and/or the chair to sign all pertinent documents for project and Federally funded Highway Safety Improvement Program grant. 8.11 Approval to authorize Public Works to advertise, set bid opening dates/times, award contracts and allow the Chair to sign all pertinent documents for call for bids for routine Paint Line, Asphalt Emulsion and Manufacturing and Stockpiling of Chipseal Aggregate for 2020. The contract awards will be announced during a regular meeting of the Board. 8.12 Approval of the resolution to cancel uncollectible personal property taxes. (Ex.C—Res. 2020-15) 8.13 Approval of a resolution to dissolve the Perishable Property Trust Fund, close all accounts tied to the fund, and Rescind Mason County Code Chapter 3.68. (Ex. D—Res. 2020-16) 8.14 Approval of the Acknowledgement of receipt of 2019 Property Tax Refunds from the County Treasurer. 8.15 Approval of Warrants &Treasure Electronic Remittances Claims Clearing Fund Warrant #s 8070103-8070157 $ 103,753.97 BOARD OF MASON COUNTY COMMISSIONERS' PROCEEDINGS February 4, 2020 - PAGE 3 Direct Deposit Fund Warrant #s 65320-65697 $ 731,279.01 Salary Clearing Fund Warrant #s 7004953-7004978 $ 515,543.15 Cmmr. Shutty asked to remove item 8.2 for discussion. Cmmr. Neatherlin/Shutty moved and seconded to approve action items 8.1 through 8.15 with the exception of item 8.2 . Motion carried unanimously. N-aye; S-aye;T-aye. 8.2 Tim Whitehead gave some background to the lawsuit noting that additional records were found after a public records request had been closed by the Department of Community Development. Tom Davis said he would like to have this item removed from the agenda in order to discuss it outside of the meeting. He voiced concern over the fact that the public was not given time to see what caused this $30,000 agreement. Tim and Tom had a discussion over how these lawsuits are covered by most Counties. Mike Olsen, former City of Shelton Commissioner, asked if the funds would be coming from insurance or public funds. Tim Whitehead stated that insurance no longer covers Public Records Lawsuits. Cmmr. Shutty/Neatherlin moved and seconded to approve the Settlement Agreement/Release of All Claims in the Brad Carey v. Mason County lawsuit filed in Thurston County, Cause #20-2-00081-34. 9. Other Business (Department Heads and Elected Officials) — None. 10. 9:15 a.m. Public Hearings and Items set for a certain time— No hearings. 11. Board's Reports and Calendar-The Commissioners reported on meetings attended the past week and announced their upcoming weekly meetings. 12. Adjournment—The meeting adjourned at 10:17 a.m. BOARD OF COUNTY COMMISSIONERS ATTEST: MASON COUNTY, WASHINGTON Melissa Drewry, Clerk of the Board Sharon Trask, Chair Randy Neatherlin, Commissioner Kevin Shutty, Commissioner C',C- rK MASON COUNTY AGENDA ITEM SUMMARY FORM TO: BOARD OF MASON COUNTY COMMISSIONERS From: Ginger Kenyon Action Agenda _X_ Public Hearing Other DEPARTMENT: Support Services EXT: 380 DATE: February 18, 2020 Agenda Item #g (Commissioner staff to complete) BRIEFING DATE: BRIEFING PRESENTED BY: [X] ITEM WAS NOT PREVIOUSLY BRIEFED WITH THE BOARD Please provide explanation of urgency ITEM: Approval of Warrants &Treasure Electronic Remittances Claims Clearing Fund Warrant #s 8070309-8070448 $ 485,123.04 Direct Deposit Fund Warrant #s 65698-66082 $ 707,280.93 Salary Clearing Fund Warrant #s 7004979-7005014 $ 1,000,610.54 Background: The Board approved Resolution No. 80-00 Payment of Claims Against County: Procedure Authorizing Warrant Issue and Release Prior to Board Claim Approval. Mason County Code 3.32.060(a) requires that the board enter into the minutes of the County Commissioners the approval of claims listing warrant numbers. Claims Clearing YTD Total $ 3,503,509.52 Direct Deposit YTD Total $ 2,148,033.20 Salary Clearing YTD Total $ 2,511,981.13 Approval of Treasure Electronic Remittances YTD Total $ 1,539,798.04 RECOMMENDED ACTION: Approval to: Move to approve the following warrants: Claims Clearing Fund Warrant #s 8070309-8070448 $ 485,123.04 Direct Deposit Fund Warrant #s 65698-66082 $ 707,280.93 Salary Clearing Fund Warrant #s 7004979-7005014 $ 1,000,610.54 Attachment(s): Originals on file with Auditor/Financial Services (Copies on file with Clerk of the Board) MASON COUNTY AGENDA ITEM SUMMARY FORM TO: BOARD OF MASON COUNTY COMMISSIONERS From: Jennifer Beierle Action Agenda _X_ Public Hearing Other DEPARTMENT: Support Services EXT: 532 DATE: February 18, 2020 Agenda Item # Commissioner staff NY complete) BRIEFING DATE: February 10, 2020 BRIEFING PRESENTED BY: Jennifer Beierle [ ] ITEM WAS NOT PREVIOUSLY BRIEFED WITH THE BOARD Please provide explanation of urgency Item: Set a Public Hearing for March 17, 2020 at 9:15 a.m. to consider approval of budget supplemental appropriations and amendments to the 2020 budget. Background: Requests for 2020 budget supplemental appropriations and amendments. Recommended Action: Request to set a public hearing for March 17th at 9:15 a.m. in order to consider the approval of the attached supplemental appropriations and amendments to the 2020 budget: Total Adjustments to authorized expenditure appropriations in the General Fund: $274,162 Total Adjustments to authorized expenditure appropriations in funds other than the General Fund: $976,823 J:\Budget Office\Briefmg, Agenda,&Public Hearing Items\Budget Hearings\2020\3.17.20 Budget Hearing\Budget Action Agenda for 3.17.20 Hearing-2.18.20.doc RESOLUTION NO. 2020 BUDGET BUDGET SUPPLEMENTAL APPROPRIATIONS AND AMENDMENT REQUESTS-NOTICE OF HEARING WHEREAS, by reason of conditions which could not be reasonably foreseen at the time of making the budget for the year 2020, it is necessary to make provisions for supplemental appropriations and amendments to the budget as required by RCW 36.40.100,and RCW 36.40.195;and WHEREAS, the revenue and expenditure adjustments to County funds, as listed in Attachment A& B to this Resolution, are required in order to incorporate into the budget the revenues and expenditures now identified,which were not known at the time of original budget adoption;and WHEREAS,the net total of adjustments to 2020 authorized expenditure appropriations in the General Fund is an increase of$274,162;and WHEREAS, the net total of adjustments to 2020 authorized expenditure appropriations in funds other than the General Fund is an increase of$976,823;and THEREFORE,BE IT RESOLVED BY THE Board of Mason County Commissioners: That the 17'day of March,2020 at the hour of 9:15 a.m., in the Mason County Commissioners Chambers in Courthouse Building I,411 North 5th Street,Shelton,Washington,is hereby fixed as the time and place for a public hearing upon the matter of Budget Amendment Requests to the 2020 Budget as provided in Attachment A&B to this Resolution. Contact person:Jennifer Beierle, Budget Manager, (360)427-9670 ext.532 A copy of this resolution and the proposed amendments to the 2020 budget is available by contacting Kelly Bergh at(360)427-9670 ext.644. The Clerk of the Board is hereby authorized,empowered,and directed to cause notice of such hearing to be published as provided by law. DATED this 18`h of February,2020 ATTEST: BOARD OF COUNTY COMMISSIONERS MASON COUNTY,WASHINGTON Melissa Drewry,Clerk of the Board Sharon Trask,Chair APPROVED AS TO FORM: Randy Neatherlin,Commissioner Tim Whitehead,Chief DPA CC: Auditor—Financial Services Kevin Shutty,Commissioner Publish 2x 2/27&3/5 bill to Commissioners, 411 North 5th Street,Shelton ATTACHMENT A TO RESOLUTION NO. 2020 BUDGET AMENDMENT#1 DETAIL 2020 2020 FUND REVENUE EXPENDITURE LINE NO. FUND NAME DEPARTMENT CHANGE CHANGE DESCRIPTION 1 1001 1 GENERAL FUND WSU 2,235 NU GENERAL WAGE INC 1.75%Res#101-19 2 001 GENERAL FUND ASSESSOR 1,456 NU GENERAL WAGE INC 1.75%Res#101-19 3 001 GENERAL FUND AUDITOR 3,509 NU GENERAL WAGE INC 1.75%Res#101-19 4 001 GENERAL FUND DEM 647 NU GENERAL WAGE INC 1.75%Res#101-19 5 001 GENERAL FUND FACILITIES 1,575 NU GENERAL WAGE INC 1.75%Res#101-19 6 001 GENERAL FUND HR/RISK 5,177 NU GENERAL WAGE INC 1.75%Res#101-19 7 001 GENERAL FUND CLERK 1,299 NU GENERAL WAGE INC 1.75%Res#101-19 8 001 GENERAL FUND SUPPORT SERVICES 10,187 NU GENERAL WAGE INC 1.75%Res#101-19 9 001 GENERAL FUND DISTRICT COURT 1,823 NU GENERAL WAGE INC 1.75%Res#101-19 10 001 GENERAL FUND DCD 4,756 NU GENERAL WAGE INC 1.75%Res#101-19 11 001 GENERAL FUND PARKS&TRAILS 647 NU GENERAL WAGE INC 1.75%Res#101-19 12 001 GENERAL FUND JUVENILE CT SRVS 3,650 NU GENERAL WAGE INC 1.75%Res#101-19 13 001 GENERAL FUND PROSECUTOR 4,851 NU GENERAL WAGE INC 1.75%Res#101-19 14 001 GENERAL FUND CHILD SUPPORT ENF 1,143 NU GENERAL WAGE INC 1.75%Res#101-19 15 001 GENERAL FUND SHERIFF 10,722 NU GENERAL WAGE INC 1.75%Res#101-19 16 001 GENERAL FUND OPD 3,261 NU GENERAL WAGE INC 1.75%Res#101-19 17 001 GENERAL FUND SUPERIOR COURT 5,369 NU GENERAL WAGE INC 1.75%Res#101-19 18 001 GENERAL FUND THERAPEUTIC CRT 3,180 NU GENERAL WAGE INC 1.75%Res#101-19 19 001 GENERAL FUND TREASURER 1,520 NU GENERAL WAGE INC 1.75%Res#101-19 20 105 COUNTY ROAD 23,986 NU GENERAL WAGE INC 1.75%Res#101-19 21 110 CRIME VICTIMS 966 NU GENERAL WAGE INC 1.75%Res#101-19 22 114 VICTIM WITNESS 781 NU GENERAL WAGE INC 1.75%Res#101-19 23 150 COMM SRVS HEALTH 4,502 NU GENERAL WAGE INC 1.75%Res#101-19 24 160 LAW LIBRARY 72 NU GENERAL WAGE INC 1.75%Res#101-19 25 402 MC LANDFILL 2,259 NU GENERAL WAGE INC 1.75%Res#101-19 26 403 NBCI SEWER UTILITY 1,506 NU GENERAL WAGE INC 1.75%Res#101-19 27 411 RUSTLEWOOD S&W 540 NU GENERAL WAGE INC 1.75%Res#101-19 28 412 BEARDS COVE WATER 242 NU GENERAL WAGE INC 1.75%Res#101-19 29 413 BELFAIR SEWER 684 NU GENERAL WAGE INC 1.75%Res#101-19 30 500 INFO TECHNOLOGY 667 NU GENERAL WAGE INC 1.75%Res#101-19 31 501 ER&R 3,585 NU GENERAL WAGE INC 1.75%Res#101-19 34 001 GENERAL FUND AUDITOR 3,063 ADD TRAVEL THAT WAS CUT IN 2020 BACK IN 35 001 GENERAL FUND FACILITIES 40,000 JANITORIAL SERVICES CONTRACT INCREASE TO FUND REMAINING PORTION OF.5 FTE IN 36 001 GENERAL FUND FACILITIES 6,805 FACILITIES DEPT($20,632 IS IN BUDGET) 37 001 GENERAL FUND CLERK 5,366 RECLASS CHIEF DEPUTY-RANGE 27 TO 29 38 001 GENERAL FUND JUVENILE CT SRVS 5,051 RECLASS DEPUTY ADMIN-RANGE 33 TO 35 TRANSFER CASH FROM SHERIFF SPECIAL FUNDS TO PRISONER WELFARE&GENERAL DONATIONS 39 001 GENERAL FUND SHERIFF 80,000 80,000 TO CLOSE OUT FUND 140 CREATING BUDGETED REVENUE&EXPENSE LINES FOR PRISONER WELFARE&DONATIONS 40 001 GENERAL FUND SHERIFF 29,432 29,432 PREVIOUSLY PART OF FUND 140 41 001 GENERAL FUND MOTOR POOL 10,000 INITIAL OPERATING BUDGET AUTHORITY .5 FTE BUDGETED TO MP DEPARTMENT(.5 FTE 42 001 GENERAL FUND MOTOR POOL 27,438 WILL BE BUDGETED TO FACILITIES) 43 105 COUNTY ROAD 38,925 38,925 FHWA GRANT-HARSTINE ISL BRIDGE DECK 44 105 COUNTY ROAD 262,000 PATCH TRUCK ORDERED IN JULY OF 2019 SHERIFF'S SPECIAL TRANSFER OUT CASH BALANCES TO PRISONER FUNDS WELFARE, DONATIONS, BOATING, & NARCOTICS 45 140 330,000 330,000 INVESTIGATION Page 1 of 2 ATTACHMENT A TO RESOLUTION NO. 2020 BUDGET AMENDMENT#1 DETAIL 2020 2020 FUND REVENUE EXPENDITURE LINE NO. FUND NAME DEPARTMENT CHANGE CHANGE DESCRIPTION SHERIFF'S BOATING TRANSFER CASH FROM SHERIFF SPECIAL FUNDS 46 141 PROGRAM 160,000 160,000 TO CLOSE OUT FUND 140 CREATING BUDGETED REVENUE&EXPENSE SHERIFF'S BOATING LINES FOR BOATING PREVIOUSLY PART OF FUND 47 141 PROGRAM 48,947 48,947 140 NARCOTICS TRANSFER CASH FROM SHERIFF SPECIAL FUNDS 48 142 INVESTIGATION 90,000 90,000 TO CLOSE OUT FUND 140 CREATING BUDGETED REVENUE&EXPENSE NARCOTICS LINES FOR NARCOTICS INVESTIGATION 49 142 INVESTIGATION 6,797 6,797 PREVIOUSLY PART OF FUND 140 INC TRANSFER IN DUE TO FACILITIES ADDITIONAL 50 500 INFO TECHNOLOGY 214 214 .5 FTE INC TRANSFER IN DUE TO FACILITIES ADDITIONAL 51 502 UNEMPLOYMENT _i 150 150 .5 FTE GENERAL FUND TOTAL 109,432 274,162 OTHER FUNDS TOTAL 675,033 976,823 ALL FUNDS GRAND TOTAL 784,465 1,250,985 Page 2 of 2 ATTACHMENT B TO RESOLUTION NO. 2020 BUDGET AMENDMENT#1 DETAILED BUDGET ENTRIES Proposed Budgeted EFB Account Type I/D Revenue Expenditure EFB Chane Total Description 001.000000.010.000.571.21.530030.0000.00. 1 1 1,264 OFFICE MANAGER 001.000000.010.003.553.60.510060.0000.00. 1 1 971 COORDINATOR 001.000000.020.000.514.24.510020.0000.00. 1 1 1,456 CHIEF DEPUTY 001.000000.030.031.514.23.510020.0000.00. 1 1 2,009 CHIEF FINANCIAL OFFICER 001.000000.030.034.514.40.510010.0000.00. 1 1 1,500 ELECTIONS SUPERINTENDENT 001.000000.050.000.525.10.510010.0000.00. 1 1 647 DEM MANAGER 001.000000.055.000.518.30.510010.0000.00. 1 1 1,575 FACILITIES MANAGER 001.000000.057.000.518.10.510010.0000.00. 1 1 1,575 HUMAN RESOURCE RISK MANAGER 001.000000.057.000.518.10.510020.0000.00. 1 1 1,246 PERSONNEL ANALYST 001.000000.057.100.518.90.510030.0000.00. 1 1 1,198 RISK SAFETY COMPLIANCE MANAGER 001.000000.057.200.514.20.510010.0000.00. 1 I 579 ADMIN CLERK 001.000000.057.200.521.10.510010.0000.00. 1 I 579 ADMIN CLERK 001.000000.070.000.512.30.510020.0000.00. 1 I 1,299 CHIEF DEPUTY 001.000000.090.000.511.30.510010.0000.00. 1 I 1,158 CLERK OF BOARD CLAIMS ADMIN 001.000000.090.000.513.10.510005.0000.00. 1 I 2,645 SUPPORT SERVICES DIRECTOR 001.000000.090.000.513.10.510010.0000.00. 1 1 1,575 ADMINISTRATIVE SUPERVISOR 001.000000.090.000.513.10.510030.0000.00. 1 1 912 SECRETARY RECEPTIONIST 001.000000.090.000.513.10.510040.0000.00. 1 I 987 SECRETARY RECEPTIONIST 001.000000.090.000.514.20.510020.0000.00. 1 I 1,694 BUDGET MANAGER 001.000000.090.000.514.20.510030.0000.00. 1 I 1,216 FINANCIAL ANALYST 001.000000.100.000.512.40.510020.0000.00. 1 I 1,203 COURT ADMINISTRATOR 001.000000.100.173.523.33.510020.0000.00. 1 I 620 ADMINISTRATOR 001.000000.125.140.558.50.510005.0000.00. 1 1 451 COMMUNITY SRVCS DIRECTOR 001.000000.125.140.558.50.510007.0000.00. 1 1 1,693 PERMIT ASSISTANCE CENTER MNGR 001.000000.125.145.558.60.510005.0000.00. 1 1 451 COMMUNITY SRVCS DIRECTOR 001.000000.125.145.558.60.510052.0000.00. 1 1 855 PLANNING MANAGER 001.000000.125.146.558.60.510005.0000.00. 1 1 451 COMMUNITY SRVCS DIRECTOR 001.000000.125.146.558.60.510010.0000.00. 1 1 855 PLANNING MANAGER 001.000000.146.000.576.80.510780.0000.00. 1 1 647 PARKS&TRAILS MANAGER 001.000000.170.000.523.31.510010.0000.00. 1 1 1,914 ADMINISTRATOR 001.000000.170.000.523.31.510020.0000.00. 1 1 1,736 DEPUTY ADMINISTRATOR 001.000000.180.000.515.31.510040.0000.00. 1 1 1 1,496 ADMINISTRATIVE MANAGER 001.000000.180.000.515.31.510050.0000.00. 1 1 1,065 LEGAL SECRETARY 001.000000.180.000.515.31.510090.0000.00. 1 1 1,065 ADMINISTRATIVE SECRETARY 001.000000.180.000.515.31.510091.0000.00. 1 1 433 SECRETARY RECEPTIONIST 001.000000.180.000.515.31.510092.0000.00. 1 1 533 ADMINISTRATIVE SECRETARY 001.000000.180.000.515.31.510100.0000.00. 1 I 259 ADMINISTRATIVE SECRETARY 001.000000.185.000.515.80.510050.0000.00. 1 1 78 ADMINISTRATIVE SUPERVISOR 001.000000.185.000.515.80.510090.0000.00. 1 1 1,065 ADMINISTRATIVE SECRETARY 001.000000.205.265.521.10.510010.0000.00. 1 1 2,648 SHERIFF 001.000000.205.265.521.10.510020.0000.00. 1 1 I 2,523 UNDERSHERIFF 001.000000.205.265.521.10.510100.0000.00. 1 I 1,499 FINANCE MANAGER 001.000000.205.270.523.60.510001.0000.00. 1 I 2,231 JAIL CHIEF 001.000000.205.270.523.60.510152.0000.00. 1 I 1,821 LIEUTENANT 001.000000.240.200.515.91.510010.0000.00. 1 1 2,086 CHIEF PUBLIC DEFENDER 001.000000.240.200.515.91.510080.0000.00. 1 1 1,175 ADMINISTRATIVE ASSISTANT 001.000000.250.000.512.21.510030.0000.00. 1 1 1,816 COURT ADMINISTRATOR 001.000000.250.000.512.21.510130.0000.00. 1 1 1,234 COURT RECORDER JUDICAL ASSIST 001.000000.250.000.512.21.510140.0000.00. 1 1 1,085 COURT RECORDER JUDICIAL ASSIST 001.000000.250.000.512.21.510150.0000.00. 1 1 1,234 COURT RECORDER FACILITATOR 001.000000.256.100.512.22.510025.0000.00. 1 1 1,427 PROGRAM MANAGER 001.000000.256.100.512.22.510035.0000.00. 1 1 894 CASEWORKER 001.000000.256.100.512.22.510045.0000.00. 1 L 859 FRC CASEWORKER 001.000000.260.000.514.22.510020.0000.00. 1 1 1,520 CHIEF DEPUTY 001.000000.320.000.508.80.500000.0000.00. 1 D - 67,007 529,791 END FUND BALANCE UNRESERVED 105.000000.000.000.542.10.510035.0000.00. 1 1 670 OPER&MAINT ER&R ADMINISTRATO 105.000000.000.000.542.10.510100.0000.00. 1 1 1,176 ROAD OPERATIONS MANAGER 105.000000.000.000.542.10.510110.0000.00. 1 1 1,780 ASSISTANT ROAD OPER&MAIN SUP 105.000000.000.000.542.10.510120.0000.00. 1 1 1,569 ROAD SUPERVISOR 105.000000.000.000.542.10.510130.0000.00. 1 1 1,575 ROAD SUPERVISOR 105.000000.000.000.542.10.510140.0000.00. 1 1 1,575 ROAD SUPERVISOR 105.000000.000.000.543.10.510010.0000.00. 1 1 1,221 PUBLIC WORKS DIRECTOR 105.000000.000.000.543.10.510020.0000.00. 1 1 1,817 COUNTY ENGINEER 105.000000.000.000.543.10.510030.0000.00. 1 1 653 FINANCE MANAGER Page 1 of 4 ATTACHMENT B TO RESOLUTION NO. 2020 BUDGET AMENDMENT#1 DETAILED BUDGET ENTRIES Proposed Budgeted EFB Account Type I/D Revenue Expenditure EFB Change Total Description 105.000000.000.000.543.10.510070.0000.00. 1 1 1,070 OFFICE ADMINISTRATOR 105.000000.000.000.544.20.510020.0000.00. 1 1 227 COUNTY ENGINEER 105.000000.000.000.544.20.510025.0000.00. 1 I 1,957 TECHNICAL SERVICES MANAGER 105.000000.000.000.544.20.510150.0000.00. 1 I 1,201 ENGINEERING&CONST MANAGER 105.000000.000.000.544.20.510200.0000.00. 1 I 1,736 TRANSPORTATION PLANNING SUPVSR 105.000000.000.000.544.20.510210.0000.00. 1 I 1,354 ENGINEER 105.000000.000.000.544.20.510230.0000.00. 1 I 1,736 ENGINEER HYDRAULIC ENGINEER 105.000000.000.000.544.20.510240.0000.00. 1 I 385 ENGINEER 105.000000.000.000.595.10.510020.0000.00. 1 I 227 ENGINEER 105.000000.000.000.595.10.510150.0000.00. 1 I 801 ENGINEERING&CONST MANAGER 105.000000.000.000.595.10.510240.0000.00. 1 I 1,153 ENGINEER 105.000000.000.100.543.10.510025.0000.00. 1 1 103 ITECHNICAL SERVICES MANAGER 105.000000.000.000.508.10.500000.0000.00. 1 D 23,986 1,623,814 JEND FUND RESERVED 110.000000.000.000.515.70.510091.0000.00. 1 I 433 CRIME VICTIM'S ASSIST 110.000000.000.000.515.70.510100.0000.00. 1 I 533 CRIME VICTIM'S ASSIST 110.000000.000.000.508.10.500000.0000.00. 1 D 966 85,131 END FUND RESERVED 114.000000.000.000.515.70.510091.0000.00. 1 1 781 VICTIM WITNESS ASST 114.000000.000.000.508.10.500000.0000.00. 1 D 781 16,852 END FUND RESERVED 150.000000.100.000.562.10.510010.0000.00. 1 1 1,354 COMMUNITY SRVCS DIRECTOR 150.000000.100.000.562.10.510015.0000.00. 1 1 1,575 FINANCE MANAGER 150.000000.300.000.562.50.510015.0000.00. 1 1 1,573 ENVIRONMENTAL HEALTH MANAGER 150.000000.000.000.508.10.500000.0000.00. 1 D 4,502 15,372 END FUND RESERVED 160.000000.000.000.572.20.510140.0000.00. 1 1 72 LAW LIBRARIAN CLERK 160.000000.000.000.508.10.500000.0000.00. 1 D 72 60,008 END FUND RESERVED 402.000000.000.000.537.80.510995.0000.00. 1 1 1,351 PROGRAM MANAGER 402.000000.000.000.538.10.510010.0000.00. 1 1 579 UTILITIES PUB WORKS DIRECTOR 402.000000.000.000.538.10.510030.0000.00. 1 1 232 FINANCE MANAGER 402.000000.000.000.538.10.510070.0000.00. 1 1 97 PUB WKS OFFICE MGR 402.000000.000.000.508.10.500000.0000.00. 1 D 2,259 486,373 END FUND RESERVED 403.000000.100.020.535.83.510045.0000.00. 1 1 1,069 WATER&WASTEWATER MANAGER 403.000000.100.020.538.10.510010.0000.00. 1 1 279 UTILITIES PUB WORKS DIRECTOR 403.000000.100.020.538.10.510030.0000.00. 1 I 1 112 FINANCE MANAGER 403.000000.100.020.538.10.510070.0000.00. 1 1 46 PUB WKS OFFICE MGR 403.000000.100.020.508.10.500000.0000.00. 1 D 1,506 593,841 END FUND RESERVED 411.000000.100.000.535.81.510045.0000.00. 1 1 179 OPERATOR 411.000000.100.000.538.10.510010.0000.00. 1 1 58 UTILITIES PUB WORKS DIRECTOR 411.000000.100.000.538.10.510030.0000.00. 1 1 23 FINANCE MANAGER 411.000000.100.000.538.10.510070.0000.00. 1 I 1 10 PUB WKS OFFICE MGR 411.000000.200.000.534.81.510045.0000.00. 1 1 179 OPERATOR 411.000000.200.000.538.10.510010.0000.00. 1 1 58 UTILITIES PUB WORKS DIRECTOR 411.000000.200.000.538.10.510030.0000.00. 1 1 23 FINANCE MANAGER 411.000000.200.000.538.10.510070.0000.00. 1 1 10 PUB WKS OFFICE MGR 411.000000.000.000.508.10.500000.0000.00. 1 D 540 5,706 END FUND RESERVED 412.000000.200.000.534.82.510045.0000.00. 1 1 144 OPERATOR 412.000000.200.000.538.10.510010.0000.00. 1 1 63 UTILITIES PUB WORKS DIRECTOR 412.000000.200.000.538.10.510030.0000.00. 1 1 25 FINANCE MANAGER 412.000000.200.000.538.10.510070.0000.00. 1 1 10 PUB WKS OFFICE MGR 412.000000.000.000.508.10.500000.0000.00. 1 D 242 585,080 END FUND RESERVED 413.000000.000.000.535.84.510045.0000.00. 1 1 392 OPERATOR 413.000000.000.000.538.10.510010.0000.00. 1 1 1 187 UTILITIES PUB WORKS DIRECTOR 413.000000.000.000.538.10.510030.0000.00. 1 1 75 FINANCE MANAGER 413.000000.000.000.538.10.510070.0000.00. 1 1 30 PUB WKS OFFICE MGR 413.000000.000.000.508.10.500000.0000.00. 1 D 684 376,352 END FUND RESERVED 500.000000.000.000.518.80.510780.0000.00. 1 1 667 INFORMATION SERV MANAGER 500.000000.000.000.508.10.500000.0000.00. 1 D 667 31,137 END FUND RESERVED 501.000000.000.000.548.30.510030.0000.00. 1 1 490 FINANCE MANAGER 501.000000.000.000.548.30.510035.0000.00. 1 1 670 OPER&MAINT ER&R ADMINISTRATO 501.000000.000.000.548.30.510070.0000.00. 1 I 66 PUB WKS OFFICE MGR 501.000000.000.000.548.30.510100.0000.00. 1 I 784 DEP DIRECTOR ER&R 501.000000.000.000.548.30.510760.0000.00. 1 I 1,575 EQUIPMENT MAINT SUPERVISOR 501.000000.000.000.508.10.500000.0000.00. 1 D 3,585 2,413,276 END FUND RESERVED 001.000000.030.030.513.10.543010.0000.00. 1 1 1,150 TRAVEL 001.000000.030.031.514.23.549020.0000.00. 1 1 1,063 TRAINING/DUES/REGISTRATION Page 2 of 4 ATTACHMENT B TO RESOLUTION NO. 2020 BUDGET AMENDMENT#1 DETAILED BUDGET ENTRIES Propose Budgeted EFB Account Tye I/D Revenue Expenditure EFB Chane Total Description 001.000000.030.033.514.81.543010.0000.00. 1 I 850 TRAVEL 001.000000.320.000.508.80.500000.0000.00. 1 D 3,063 450,457 END FUND BALANCE UNRESERVED 001.000000.055.000.518.30.541030.0000.00. 1 1 1 40,000 JANITORIAL SERVICES 001.000000.320.000.508.80.500000.0000.00. JD 40,000 410,457 END FUND BALANCE UNRESERVED 001.000000.055.000.518.30.510030.0000.00. 6,805 MAINTENANCE 001.000000.320.000.508.80.500000.0000.00. 6,805 403,652 END FUND BALANCE UNRESERVED 001.000000.070.000.512.30.510020.0000.00. 4,452 DEPUTY ADMINISTRATOR 001.000000.070.000.512.30.520020.0000.00. 341 SOCIAL SECURITY MEDICARE 001.000000.070.000.512.30.520030.0000.00. 1 1 573 STATE RETIREMENT 001.000000.320.000.508.80.500000.0000.00. 1 D 5,366 398,286 END FUND BALANCE UNRESERVED 001.000000.170.000.523.31.510020.0000.00. 1 1 4,191 DEPUTY ADMINISTRATOR 001.000000.170.000.523.31.520020.0000.00. 1 1 321 SOCIAL SECURITY MEDICARE 001.000000.170.000.523.31.520030.0000.00. 1 1 539 STATE RETIREMENT 001.000000.320.000.508.80.500000.0000.00. 1 D 5,051 393,235 END FUND BALANCE UNRESERVED 001.000000.205.290.397.00.300140.0000.00. 2 1 60,000 TRANSFER IN-SHERIFF'S SPECIAL FUNDS 001.000000.205.290.341.70.300000.0000.00. 2 1 15,939 MERCHANDISE SALES 001.000000.205.290.369.91.300010.0000.00. 2 1 3,720 SECURUS VIDEO 001.000000.205.290.369.91.300000.0000.00. 2 1 473 MISCELLANEOUS REVENUE 001.000000.205.290.523.60.531010.0000.00. 2 1 3,650 INMATE SUPPLIES 001.000000.205.290.523.60.535010.0000.00. 2 1 300 SMALL TOOLS&MINOR EQUIPMENT 001.000000.205.290.523.90.541010.0000.00. 2 1 76,182 FOOD SERVICES 001.000000.205.295.397.00.300140.0000.00. 2 1 20,000 TRANSFER IN-SHERIFF'S SPECIAL FUNDS 001.000000.205.295.367.00.300000.0000.00. 2 1 9,300 DONATIONS 001.000000.205.295.521.10.520011.0000.00. 2 1 2,000 VOLUNTEER INDUSTRIAL INSURANCE 001.000000.205.295.521.10.520050.0000.00. 2 1 1 200 VOLUNTEER UNIFORMS 001.000000.205.295.521.10.531010.0000.00. .2 1 100 VOLUNTEER SUPPLIES 001.000000.205.295.521.23.520050.0000.00. 2 1 600 UNIFORMS 001.000000.205.295.521.23.531010.0000.00. 2 1 1,935 SUPPLIES&EQUIPMENT 001.000000.205.295.521.23.535099.0000.00. 2 1 3,250 TRACKABLE TOOLS&EQUIPMENT 001.000000.205.295.521.23.541010.0000.00. 2 1 19,070 PROFESSIONAL SERVICES 001.000000.205.295.521.23.543010.0000.00. 2 1 545 TRAVEL 001.000000.205.295.521.23.549020.0000.00. 2 1 1,600 TUITION,REGISTRATIONS,&MEMBER. 001.000000.305.000.548.70.531010.0000.00. 1 1 10,000 SUPPLIES 001.000000.320.000.508.80.500000.0000.00. 1 D 10,000 383,235 END FUND BALANCE UNRESERVED 001.000000.305.000.548.70.510030.0000.00. 1 I 17,029 MAINTENANCE 001.000000.305.000.548.70.520010.0000.00. 1 I 833 INDUSTRIAL INSURANCE 001.000000.305.000.548.70.520020.0000.00. 1 1 1,303 SOCIAL SECURITY/MEDICARE 001.000000.305.000.548.70.520030.0000.00. 1 1 2,190 STATE RETIREMENT 001.000000.305.000.548.70.520035.0000.00. 1 1 390 TEAMSTERS PENSION 001.000000.305.000.548.70.520040.0000.00. 1 1 1 5,436 MED/DENT/VIS/LIFE 001.000000.305.000.548.70.520045.0000.00. 1 1 25 WA PD FMLA 001.000000.305.000.548.70.520050.0000.00. 1 1 50 UNIFORMS 001.000000.305.000.548.70.541501.0000.00. 1 1 107 RESERVE FOR TECH 001.000000.305.000.548.70.546096.0000.00. 1 1 75 UNEMPLOYMENT 001.000000.320.000.508.80.500000.0000.00. 1 D 27,438 355,797 END FUND BALANCE UNRESERVED 105.000000.000.000.333.20.320000.0000.00. 2 1 38,925 FED FHWA VIA WS ST DOT 105.000000.000.000.544.20.541000.0000.00. 2 1 38,925 PROFESSIONAL SERVICES 105.000000.000.000.594.44.564000.0000.00. 1 1 262,000 CAPITAL MACHINERY&EQUIPMENT 105.000000.000.000.508.10.500000.0000.00. 1 D 262,000 1,361,814 END FUND RESERVED 140.000000.000.000.308.10.300000.0000.00. 2 1 330,000 BEGINNING FUND BALANCE 140.000000.000.000.597.00.500290.0000.00. 2 I 60,000 TRANSFER OUT-PRISONER WELFARE 140.000000.000.000.597.00.500300.0000.00. 2 I 20,000 TRANSFER OUT-DONATIONS 140.000000.000.000.597.00.500300.0000.00. 2 1 160,000 TRANSFER OUT-BOATING Page 3 of 4 ATTACHMENT B TO RESOLUTION NO. 2020 BUDGET AMENDMENT#1 DETAILED BUDGET ENTRIES Proposed Budgeted EFB Account Type I/D Revenue Expenditure EFB Chane Total Description 140.000000.000.000.597.00.500300.0000.00. 2 1 90,000 TRANSFER OUT-NARCOTICS 141.000000.000.000.397.00.300140.0000.00. 2 1 160,000 TRANSFER IN-SHERIFF'S SPECIAL FUNDS 141.000000.000.000.333.97.301010.0000.00. 2 1 12,947 WA STATE PARKS GRANT 141.000000.000.000.336.00.384000.0000.00. 2 1 33,000 VESSEL REGISTRATION FEES 141.000000.000.000.361.10.300000.0000.00. 2 1 3,000 INVESTMENT INTEREST 141.000000.000.000.514.21.541510.0000.00 2 1 1,093 STATE AUDITOR CHARGES 141.000000.000.000.521.22.512000.0000.00 2 1 22,000 OVERTIME 141.000000.000.000.521.22.520010.0000.00 2 1 512 INDUSTRIAL INSURANCE 141.000000.000.000.521.22.520020.0000.00 2 1 1,727 SOCIAL SECURITY/MEDICARE 141.000000.000.000.521.22.520030.0000.00 2 1 1,249 STATE RETIREMENT 141.000000.000.000.521.22.520040.0000.00 2 1 2,564 MED/DENT/VIS/LIFE 141.000000.000.000.521.22.520045.0000.00 2 I 34 WA PD FMLA 141.000000.000.000.521.22.532010.0000.00 2 1 3,031 FUEL USED 141.000000.000.000.521.22.535010.0000.00 2 1 330 SMALL TOOLS&MINOR EQUIPMENT 141.000000.000.000.521.22.541019.0000.00 2 1 5,330 INTERNAL ALLOCATION 141.000000.000.000.521.22.546010.0000.00 2 1 157 LIABILITY INSURANCE 141.000000.000.000.521.22.548010.0000.00 2 1 160 BOAT REPAIRS&MAINTENANCE 141.000000.000.000.508.10.500000.0000.00 2 1 170,760 END FUND RESERVE 142.000000.000.000.397.00.300140.0000.00. 2 1 90,000 TRANSFER IN-SHERIFF'S SPECIAL FUNDS 142.000000.000.000.351.50.301000.0000.00. 2 1 3,637 DRUG FUND 142.000000.000.000.361.10.300000.0000.00. 2 1 160 INVESTMENT INTEREST 142.000000.000.000.369.30.300000.0000.00. 2 1 3,000 142.000000.000.000.521.21.541010.0000.00. 2 1 242 PROFESSIONAL SERVICES 142.000000.000.000.521.21.544010.0000.00. 2 1 126 10%STATE CONFISCATION PAYMENT 142.000000.000.000.521.21.548011.0000.00. 2 1 101 REPAIRS AND MAINTENANCE 142.000000.000.000.521.22.541019.0000.00. 2 1 3,058 INTERNAL ALLOCATION 142.000000.000.000.521.21.549010.0000.00. 2 1 2,516 INVESTIGATING REVOLVING REIMB. 142.000000.000.000.508.10.500000.0000.00. 2 1 90,754 END FUND RESERVE 500.000000.000.000.348.40.300000.0000.00. 1 1 214 RESERVE FOR TECH 500.000000.000.000.508.10.500000.0000.00. 1 1 214 END FUND RESERVED 502.000000.000.000.341.97.300001.0000.00. 1 1 150 _ UNEMPLOYMENT 502.000000.000.000.517.78.520060.0000.00. 1 I 150 UNEMPLOYMENT PAYMENTS General Fund Total: 109,432 274,162 164,730 Other Funds Total: 675,033 976,823 301,790 All Funds Grand Total: 784,465 1,250,985 466,520 Page 4 of 4 MASON COUNTY AGENDA ITEM SUMMARY FORM TO: BOARD OF MASON COUNTY COMMISSIONERS From: Diane Zoren Action Agenda x Public Hearing Other DEPARTMENT: Support Services EXT: 747 DATE: February 18, 2020 Agenda Item # g;3 Commissioner staff to complete) BRIEFING DATE: February 10, 2020 BRIEFING PRESENTED BY: Support Services [ ] ITEM WAS NOT PREVIOUSLY BRIEFED WITH THE BOARD Please provide explanation of urgency ITEM: Approval of the Resolution amending Mason County Code Chapter 2.02, Departments reporting to the Commissioners, adding a Motor Pool Department Background: Current Expense and Public Health vehicles and equipment were removed from the Equipment Rental and Revolving Fund by adoption of Resolution 20- 07 on January 21, 2020 and for efficient management of these vehicles and equipment it is recommended to create a Motor Pool Department in the Current Expense Budget that will be managed by the Director of Support Services RECOMMENDED ACTION: Approval of the Resolution amending Mason County Code Chapter 2.02, Departments reporting to the Commissioners, adding a Motor Pool Department. Attachment(s): Resolution RESOLUTION NO. AMENDING RESOLUTION NO. 23-07 AND CHAPTER 2.02, MASON COUNTY CODE, DEPARTMENTS REPORTING TO THE BOARD OF MASON COUNTY COMMISSIONERS WHEREAS, RCW 36.16.070 states that"In all cases where the duties of any county office are greater than can be performed by the person elected to fill it, the officer may employ deputies and other necessary employees with the consent of the board of county commissioners. The board shall fix their compensations ..."; and WHEREAS, the Support Services Department was established by adoption of Resolution 82-13 and includes the Board of Equalization, Budget Manager, Civil Services, Commissioner Administration Support, Emergency Management, Facilities and Grounds, Information Technology, LEOFF 1, Human Resources, Parks and Trails, and Risk Management; WHEREAS, Current Expense and Public Health vehicles and equipment were removed from the Equipment Rental and Revolving Fund by adoption of Resolution 20-07 on January 21, 2020 and for efficient management of these vehicles and equipment it is recommended to create a Motor Pool Department in the Current Expense Budget that will be managed by the Director of Support Services; and WHEREAS, this Motor Pool Department may include vehicles and equipment from Current Expense and other Funds, as determined by the Mason County Commissioners; NOW, THEREFORE BE IT RESOLVED by the Board of County Commissioners of Mason County that Chapter 2.02.010 of the Mason County Code be amended in its entirety to read as follows: 2.02.010 Departments established. The following departments are established to serve the board of Mason County commissioners and shall serve at the pleasure of the board: 1. Community Services Department which includes Building, Planning, Community Health and Human Services, Environmental Health, Fire Marshal and Vital Records; 2. Support Services Department which includes Board of Equalization, Budget Manager, Civil Services, Commissioner Administration Support, Emergency Management, Facilities and Grounds, Information Technology, LEOFF 1, Human Resources, Parks and Trails, Risk Management and Motor Pool; 3. Public Works Department which includes Utilities and Waste Management. DATED this day of 12020. BOARD OF COUNTY COMMISSIONERS MASON COUNTY,WASHINGTON ATTEST: Sharon Trask, Chair Melissa Drewry, Clerk of the Board Randy Neatherlin, Commissioner APPROVED AS TO FORM: ... 1 Kevin Shutty, Commissioner Tim Whitehea Chief Deputy Prosecuting Attorney ]:\RESOLUTIONS&ORDINANCES\RESOLUTIONS-ORDINANCES Word Files\2020\Dept reporting to Board.doc MASON COUNTY AGENDA ITEM SUMMARY FORM To: Board of Mason County Commissioners From: Kell Rowen, Planning Manager Action Agenda Q Public Hearing ❑ Other ❑ Department: Community Services Ext: 286 Date: February 18, 2020 Agenda Item # (Commissioner Staff To Complete) Briefing Date: February 10, 2020 Briefing Presented By: Kell Rowen [ ] Item Was Not Previously Briefed With The Board Please Provide Explanation Of Urgency ITEM: Grant contract in the amount of s84,000from the Department of Ecology for the periodic update of the Shoreline Master Program. BACKGROUND: Grant award for Counties, including Mason County is s84,000 to be used from July 2019 through June 30, 2021. Planning staff started the update in January 2020. All work will be done in-house with no outside consultants. RECOMMENDED ACTION: The Board of County Commissioners shall give approval for the Chair to sign the contract with the Department of Ecology at the February 18, 202o Action Agenda. ATTACHMENT(S): Final Contract 2/12/2020 DEPARTMENT OF ECOLOGY State of Washington Agreement No. SEASMP-1921-MACoCs-00057 SHORELANDS SHORELINE MASTER PROGRAM AGREEMENT BETWEEN THE STATE OF WASHINGTON DEPARTMENT OF ECOLOGY AND MASON COUNTY This is a binding Agreement entered into by and between the state of Washington,Department of Ecology,hereinafter referred to as"ECOLOGY,"and Mason County,hereinafter referred to as the"RECIPIENT,"to carry out with the provided funds activities described herein. GENERAL INFORMATION Project Title: Shoreline Master Program—Periodic Review Total Cost: $84,000.00 Total Eligible Cost: $84,000.00 Ecology Share: $84,000.00 Recipient Share: $0.00 The Effective Date of this Agreement is: 07/01/2019 The Expiration Date of this Agreement is no later than: 06/30/2021 Project Type: Periodic Review of the Shoreline Master Program Project Short Description: The RECIPIENT will conduct a periodic review of the Shoreline Master Program(SMP)that is developed in a manner consistent with requirements of the Shoreline Management Act(SMA),RCW 90.58,and its implementing rules,WAC 173-26,including the Shoreline Master Program Guidelines(SMP Guidelines). Project Long Description: The purpose of the Shoreline Master Program periodic review is to(a)assure that the master program complies with applicable law and SMP Guidelines in effect at the time of the review,and(b)assure consistency of the master program with the local government's comprehensive plan and development regulations adopted under chapter RCW 36.70A,if applicable.Local governments should also consider amendments needed to address changed circumstances,new information,or improved data. State of Washington Department of Ecology Page 2 of 25 Agreement No: SEASMP-1921-MACoCs-00057 Project Title: Shoreline Master Program—Periodic Review Recipient Name: Mason County Please note:Beyond the scope of this agreement,the RECIPIENT will continue the SMP formal adoption process as stated in the SMA and WAC 173-26. Work related to these activities and formal adoption by the local governing body is eligible for reimbursement under this grant,provided it is completed by June 30,2021.The adoption process includes the activities shown below. 1.Complete SEPA review and documentation Conduct SEPA review pursuant to the State Environmental Policy Act(RCW 43.21Q. 2.Provide GMA 60-day notice of intent to adopt For local governments planning under the Growth Management Act,notify ECOLOGY and the Department of Commerce of intent to adopt the SMP amendment at least 60 days in advance of final local approval,pursuant to RCW 36.70A.106. 3.Hold public hearing Hold at least one public hearing prior to local adoption of the draft SMP or Findings of Adequacy,consistent with the requirements of WAC 173-26-100 or WAC 173-26-104. 4.Prepare a responsiveness summary Prepare a summary responding to all comments received during the public hearing and the public comment period.The names and mailing addresses of all interested parties providing comment shall be compiled. 5.Adopt SMP and submit to ECOLOGY Complete the adoption process for the SMP update under either WAC 173-26-100 or WAC 173-26-104 and submit the locally-adopted Draft SMP amendment or Findings of Adequacy and Periodic Review Checklist to ECOLOGY under WAC 173-26-110. The RECIPIENT will be using grant funds to pay for the following tasks: Task 1 Project Oversight:Coordination,Management and Administration. Task 3 Public Participation. Task 4 Review Shoreline Master Program and Draft Revisions,If needed. Task 5 Final Draft SMP or Findings of Adequacy. The RECIPIENT will be paying for the following task themselves: Task 2 Secure Consultant Services,If Needed. Overall Goal: Periodic Review Checklist and final draft SMP amendment or Findings of Adequacy. Template Version 10/30/2015 State of Washington Department of Ecology Page 3 of 25 Agreement No: SEASMP-1921-MACoCs-00057 Project Title: Shoreline Master Program—Periodic Review Recipient Name: Mason County RECIPIENT INFORMATION Organization Name: Mason County Federal Tax ID: 91-6001354 DUNS Number: 695801751 Mailing Address: 615 West Alder Shelton,WA 98584 Physical Address: 615 West Alder Shelton,Washington 98584 Contacts Template Version 10/30/2015 State of Washington Department of Ecology Page 4 of 25 Agreement No: SEASMP-1921-MACoCs-00057 Project Title: Shoreline Master Program—Periodic Review Recipient Name: Mason County Kell Rowen Project Manager Planning Manager 615 West Alder Shelton,Washington 98584 Email: krowen@co.mason.wa.us Phone: (360)427-9670 Billing Contact Kathy Chaussee 615 West Alder Shelton,Washington 98584 Email: kathyc@co.mason.wa.us Phone: (360)427-9670 David Windom Authorized Director Signatory 615 West Alder Shelton,Washington 98584 Email: dwindom@co.mason.wa.us Phone: (360)427-9670 Template Version 10/30/2015 State of Washington Department of Ecology Page 5 of 25 Agreement No: SEASMP-1921-MACoCs-00057 Project Title: Shoreline Master Program—Periodic Review Recipient Name: Mason County ECOLOGY INFORMATION Mailing Address: Department of Ecology Shorelands PO BOX 47600 Olympia,WA 98504-7600 Physical Address: Shorelands 300 Desmond Drive SE Lacey,WA 98503 Contacts Kim Van Zwalenburg Project Manager PO Box 47775 Olympia,Washington 98504-7775 Email: kvan461@ecy.wa.gov Phone: (360)407-6520 Layne Slone Financial Financial Manager Manager PO Box 47600 Olympia,Washington 98504-7600 Email: Inak461@ecy.wa.gov Phone: (360)407-7540 Template Version 10/30/2015 State of Washington Department of Ecology Page 6 of 25 Agreement No: SEASMP-1921-MACoCs-00057 Project Title: Shoreline Master Program—Periodic Review Recipient Name: Mason County AUTHORIZING SIGNATURES RECIPIENT agrees to furnish the necessary personnel,equipment,materials,services,and otherwise do all things necessary for or incidental to the performance of work as set forth in this Agreement. RECIPIENT acknowledges that they had the opportunity to review the entire Agreement,including all the terms and conditions of this Agreement,Scope of Work,attachments,and incorporated or referenced documents,as well as all applicable laws, statutes,rules,regulations,and guidelines mentioned in this Agreement. Furthermore,the RECIPIENT has read,understood, and accepts all requirements contained within this Agreement. This Agreement contains the entire understanding between the parties,and there are no other understandings or representations other than as set forth,or incorporated by reference,herein. No subsequent modifications or amendments to this agreement will be of any force or effect unless in writing,signed by authorized representatives of the RECIPIENT and ECOLOGY and made a part of this agreement.ECOLOGY and RECIPIENT may change their respective staff contacts without the concurrence of either party. This Agreement shall be subject to the written approval of Ecology's authorized representative and shall not be binding until so approved. The signatories to this Agreement represent that they have the authority to execute this Agreement and bind their respective organizations to this Agreement. Washington State Mason County Department of Ecology By: By: Gordon White Date David Windom Date Shorelands Director Program Manager Template Approved to Form by Attorney General's Office Template Version 10/30/2015 State of Washington Department of Ecology Page 7 of 25 Agreement No: SEASMP-1921-MACoCs-00057 Project Title: Shoreline Master Program—Periodic Review Recipient Name: Mason County Sharon Trask Commissioner Date Template Version 10/30/2015 State of Washington Department of Ecology Page 8 of 25 Agreement No: SEASMP-1921-MACoCs-00057 Project Title: Shoreline Master Program—Periodic Review Recipient Name: Mason County SCOPE OF WORK Task Number: 1 Task Cost: $8,400.00 Task Title: 1.Project Oversight:Coordination,Management,and Administration Task Description: The RECIPIENT will provide necessary project oversight to complete the scope of work in compliance with this ECOLOGY agreement,which includes project coordination,project management,and project administration. A.The RECIPIENT will coordinate with ECOLOGY throughout the SMP review process.The RECIPIENT will provide ECOLOGY opportunities to review draft deliverables at appropriate intervals.ECOLOGY will provide ongoing technical assistance,and will evaluate consistency of deliverables with the Shoreline Management Act and applicable guidelines throughout the review process. B. The RECIPIENT will coordinate with other applicable federal,state and local agencies,neighboring jurisdictions,and Indian tribes as provided in the Guidelines and SMA procedural rules. In addition,the RECIPIENT will consult with other appropriate entities which may have useful information if necessary. C. The RECIPIENT will conduct project management activities including compliance with state statutes and rules,project scheduling,adherence to the scope of work,timelines,and due dates;request for,and if applicable,conducting the competitive procurement process including preparation of contractor bidding documents,advertisements,and grant monitoring. D. The RECIPIENT will submit quarterly progress reports and payment requests(PRPRs)with supporting documentation; maintain project records;and submit ECOLOGY-approved deliverables by the due dates established between ECOLOGY and the RECIPIENT. Task Goal Statement: Properly manage and fully document the project in accordance with ECOLOGY's grant administration requirements. Task Expected Outcome: Timely and complete submittal of requests for reimbursement,quarterly progress reports and recipient closeout report. Properly maintained project documentation. Recipient Task Coordinator: Kell Rowen 1.Project Oversight: Coordination,Management,and Administration Deliverables Number Description Due Date 1.1 Progress reports are due quarterly. 1.2 Recipient Close Out Report 06/30/2021 Template Version 10/30/2015 State of Washington Department of Ecology Page 9 of 25 Agreement No: SEASMP-1921-MACoCs-00057 Project Title: Shoreline Master Program—Periodic Review Recipient Name: Mason County SCOPE OF WORK Task Number: 2 Task Cost: 50.00 Task Title: 2. Secure Consultant Services,If Needed Task Description: If applicable,the RECIPIENT will: A. Secure qualified consultant services In accordance with the RECIPIENT or State of Washington procurement procedures,the RECIPIENT will enter into a contract with the selected consultant(s)and prepare a sub agreement in accordance with the scope of work in this agreement. Task Goal Statement: To ensure the RECIPIENT has qualified personnel to conduct the scope of this project. Task Expected Outcome: If applicable,signed contract and sub-agreement with consultant(s). 2.Secure Consultant Services,If Needed Deliverables Number Description Due Date 2.1 Final signed consulting contract.Upload to EAGL per the date in the Deliverable Due Dates form. 2.2 Update in quarterly progress report. Template Version 10/30/2015 State of Washington Department of Ecology Page 10 of 25 Agreement No: SEASMP-1921-MACoCs-00057 Project Title: Shoreline Master Program—Periodic Review Recipient Name: Mason County SCOPE OF WORK Task Number: 3 Task Cost: $8,400.00 Task Title: 3.Public Participation Task Description: The RECIPIENT will: A. Develop a Public Participation Plan Prepare and disseminate a public participation plan to invite and encourage public involvement in the SMP periodic review consistent with WAC 173-26-090. The public participation plan should include applicable local requirements such as planning commission review and formal hearings,as well as applicable state notice requirements. B. Conduct public participation activities Implement the public participation plan throughout the course of the SMP periodic review process. Task Goal Statement: To inform and involve all stakeholders in the SMP periodic review process. Task Expected Outcome: Continuous public participation activities throughout the SMP periodic review process. Recipient Task Coordinator: Kell Rowen 3.Public Participation Deliverables Number Description Due Date 3.1 Public Participation Plan.Upload to EAGL per the date in the Deliverable Due Dates form. 3.2 Updates of public involvement activities in progress reports. Template Version 10/30/2015 State of Washington Department of Ecology Page 11 of 25 Agreement No: SEASMP-1921-MACoCs-00057 Project Title: Shoreline Master Program—Periodic Review Recipient Name: Mason County SCOPE OF WORK Task Number: 4 Task Cost: $40,320.00 Task Title: 4.Review Shoreline Master Program and Draft Revisions,If Needed Task Description: The RECIPIENT will: A. Review the SMP to determine if revisions are needed 1. Review amendments to chapter 90.58 RCW and Ecology rules that have occurred since the Shoreline Master Program was last amended,and determine if local amendments are needed to maintain compliance.Ecology will provide a checklist of legislative and rule amendments to assist local governments with this review. 2. Review changes to the comprehensive plan and development regulations to determine if the Shoreline Master Program policies and regulations remain consistent with them.Document the consistency analysis to support proposed changes to the Shoreline Master Program or Findings of Adequacy. 3. Conduct additional analysis deemed necessary to address changing local circumstances,new information or improved data. B. Draft revised SMP goals,policies and regulations,or prepare Findings of Adequacy 1. Prepare amended goals and policies or regulations identified through the review process.Use the checklist to identify where in the SMP changes are made to address applicable statutory or regulatory changes. 2. Where the review conducted under Task 4A concludes no changes are necessary,prepare draft Findings of Adequacy. Task Goal Statement: To review the SMP to determine if changes are necessary,and revise the SMP if changes are deemed necessary. Task Expected Outcome: A completed Periodic Review Checklist documenting the initial staff review of the SMP,and either initial draft SMP amendments or draft Findings of Adequacy. Template Version 10/30/2015 State of Washington Department of Ecology Page 12 of 25 Agreement No: SEASMP-1921-MACoCs-00057 Project Title: Shoreline Master Program—Periodic Review Recipient Name: Mason County Recipient Task Coordinator: Kell Rowen 4.Review Shoreline Master Program and Draft Revisions, If Needed Deliverables Number Description Due Date 4.1 A Periodic Review Checklist documenting consideration of statutory amendments,and internal consistency review. Upload to EAGL per the date in the Deliverable Due Dates form. 4.2 Initial draft SMP amendments or Findings of Adequacy and supporting documentation.Upload to EAGL per the date in the Deliverable Due Dates form. Template Version 10/30/2015 State of Washington Department of Ecology Page 13 of 25 Agreement No: SEASMP-1921-MACoCs-00057 Project Title: Shoreline Master Program—Periodic Review Recipient Name: Mason County SCOPE OF WORK Task Number: 5 Task Cost: $26,880.00 Task Title: 5. Final Draft SMP or Findings of Adequacy Task Description: The RECIPIENT will: A. Conduct public review process Conduct a local public review process for the proposed Shoreline Master Program as provided in the SMA and WAC 173-26. Where amendments to the SMP are proposed they shall contain applicable shoreline goals,policies,or regulations with copies of any provisions adopted by reference.Where no changes are needed,the local process will include a formal Findings of Adequacy. B. Assemble fmal draft amendment or Findings of Adequacy Assemble a complete SMP final draft amendment in preparation for review and approval by the local jurisdictional governing body. Where the review determines that no changes are needed,the Recipient will prepare a formal Findings of Adequacy. Task Goal Statement: Complete a Shoreline Master Program final draft amendment or Findings of Adequacy. Task Erected Outcome: A Shoreline Master Program final draft amendment or Findings of Adequacy. Recipient Task Coordinator: Kell Rowen 5.Final Draft SMP or Findings of Adequacy Deliverables Number Description Due Date 5.1 Updates of public review process activities in progress report. 5.2 Submit an SMP final draft amendment or Findings of Adequacy,with relevant supporting documentation and a complete Periodic Review checklist. Upload to EAGL per the date in the Deliverable Due Dates form. Template Version 10/30/2015 State of Washington Department of Ecology Page 14 of 25 Agreement No: SEASMP-1921-MACoCs-00057 Project Title: Shoreline Master Program—Periodic Review Recipient Name: Mason County BUDGET Funding Distribution EG200423 NOTE: The above funding distribution number is used to idents this specific agreement and budget on payment remittances and may be referenced on other communications from ECOLOGY. Your agreement may have multiple funding distribution numbers to idents each budget. Funding Title: Model Toxics Control Operating Account(MTFunding Type: Grant Funding Effective Date: 07/01/2019 Funding Expiration Date: 06/30/2021 Funding Source: Title: Model Toxics Control Operating Account(MTCOA) Type: State Funding Source%: 100% Description: Model Toxics Control Operating Account(MTCOA) Approved Indirect Costs Rate: Approved State Indirect Rate:30% Recipient Match%: 0% InKind Interlocal Allowed: No InKind Other Allowed: No Is this Funding Distribution used to match a federal grant? No Model Toxics Control Operating Account(MTCOA) Task Total 1.Project Oversight:Coordination,Management,and $ 8,400.00 Administration 2.Secure Consultant Services,If Needed $ 0.00 3.Public Participation $ 8,400.00 4.Review Shoreline Master Program and Draft Revisions,If $ 40,320.00 Needed 5.Final Draft SMP or Findings of Adequacy $ 26,880.00 Total: $ 84,000.00 Template Version 10/30/2015 State of Washington Department of Ecology Page 15 of 25 Agreement No: SEASMP-1921-MACoCs-00057 Project Title: Shoreline Master Program—Periodic Review Recipient Name: Mason County Funding Distribution Summary Recipient/Ecology Share Funding Distribution Name Recipient Match % Recipient Share Ecology Share Total Model Toxics Control Operating 0.00 % $ 0.00 $ 84,000.00 $ 84,000.00 Account MTCOA Total $ 0.00 $ 84,000.00 S 84,000.00 AGREEMENT SPECIFIC TERMS AND CONDITIONS N/A SPECIAL TERMS AND CONDITIONS Deliverable Due Date Form: The RECIPIENT will negotiate the task deliverable due dates with the ECOLOGY Project Manager,and the ECOLOGY Project Manager will enter the information in the Deliverable Due Date EAGL form.The RECIPIENT will keep track of these due dates,and will note any date changes on the quarterly progress reports.The Deliverable Due Date form can be found on the Application Menu-Forms page in EAGL.(Note:This form does not automatically print out with the agreement.) Document Accessibility Requirements(as described in the General Terms and Conditions of this Agreement: ACCESSIBILITY REQUIREMENTS FOR COVERED TECHNOLOGY): For documents produced under this agreement intended to be published,posted, or hosted on ECOLOGY's external web site,the RECIPIENT shall provide the documents in both their"native format"(such as Word,Excel,PowerPoint)and in PDF format(latest version of Adobe Acrobat Pro or compatible).The PDF documents must satisfactorily pass the Adobe Acrobat Pro Accessibility Checker(Full Check).The RECIPIENT will provide ECOLOGY the Accessibility Checker's report. ECOLOGY will review the PDF Accessibility results and may request the RECIPIENT remedy any known issues. ECOLOGY reserves the right to perform independent testing to validate accessibility and may require the RECIPIENT remedy any identified issues before acceptance of the document. For assistance concerning Accessibility,visit state of Washington,Office of the Chief Information Officer,OCIO Policy no. 188,Accessibility (https://ocio.wa.gov/policy/accessibility). GENERAL FEDERAL CONDITIONS If a portion or all of the funds for this agreement are provided through federal funding sources or this agreement is used to match a federal grant award,the following terms and conditions apply to you. A.CERTIFICATION REGARDING SUSPENSION,DEBARMENT,INELIGIBILITY OR VOLUNTARY EXCLUSION: 1. The RECIPIENT/CONTRACTOR,by signing this agreement,certifies that it is not suspended,debarred,proposed for Template Version 10/30/2015 State of Washington Department of Ecology Page 16 of 25 Agreement No: SEASMP-1921-MACoCs-00057 Project Title: Shoreline Master Program—Periodic Review Recipient Name: Mason County debarment,declared ineligible or otherwise excluded from contracting with the federal government,or from receiving contracts paid for with federal funds.If the RECIPIENT/CONTRACTOR is unable to certify to the statements contained in the certification,they must provide an explanation as to why they cannot. 2. The RECIPIENT/CONTRACTOR shall provide immediate written notice to ECOLOGY if at any time the RECIPIENT/CONTRACTOR learns that its certification was erroneous when submitted or had become erroneous by reason of changed circumstances. 3. The terms covered transaction,debarred,suspended,ineligible,lower tier covered transaction,participant,person, primary covered transaction,principal,proposal,and voluntarily excluded,as used in this clause,have the meaning set out in the Definitions and Coverage sections of rules implementing Executive Order 12549. You may contact ECOLOGY for assistance in obtaining a copy of those regulations. 4. The RECIPIENT/CONTRACTOR agrees it shall not knowingly enter into any lower tier covered transaction with a person who is proposed for debarment under the applicable Code of Federal Regulations,debarred,suspended, declared ineligible,or voluntarily excluded from participation in this covered transaction. 5. The RECIPIENT/CONTRACTOR further agrees by signing this agreement,that it will include this clause titled "CERTIFICATION REGARDING SUSPENSION,DEBARMENT,INELIGIBILITY OR VOLUNTARY EXCLUSION"without modification in all lower tier covered transactions and in all solicitations for lower tier covered transactions. 6. Pursuant to 2CFR180.330,the RECIPIENT/CONTRACTOR is responsible for ensuring that any lower tier covered transaction complies with certification of suspension and debarment requirements. 7. RECIPIENT/CONTRACTOR acknowledges that failing to disclose the information required in the Code of Federal Regulations may result in the delay or negation of this funding agreement,or pursuance of legal remedies,including suspension and debarment. 8. RECIPIENT/CONTRACTOR agrees to keep proof in its agreement file,that it,and all lower tier recipients or contractors,are not suspended or debarred, and will make this proof available to ECOLOGY before requests for reimbursements will be approved for payment.RECIPIENT/CONTRACTOR must run a search in A=://www.sam.gov>and print a copy of completed searches to document proof of compliance. B.FEDERAL FUNDING ACCOUNTABILITY AND TRANSPARENCY ACT(FFATA)REPORTING REQUIREMENTS: CONTRACTOR/RECIPIENT must complete the FFATA Data Collection Form(ECY 070-395)and return it with the signed agreement to ECOLOGY. Any CONTRACTOR/RECIPIENT that meets each of the criteria below must report compensation for its five top executives using the FFATA Data Collection Form. • Receives more than$25,000 in federal funds under this award. • Receives more than 80 percent of its annual gross revenues from federal funds. • Receives more than$25,000,000 in annual federal funds. Ecology will not pay any invoices until it has received a completed and signed FFATA Data Collection Form.Ecology is required to report the FFATA information for federally funded agreements,including the required DUNS number,at www.fsrs.gov<ft://www.fsrs.jzov/>within 30 days of agreement signature. The FFATA information will be available to the public at www.usaspending. ov<http://www.usaspending_gov/>. For more details on FFATA requirements,see www.fsrs.gov A=://www.fsrs.goy/>. Template Version 10/30/2015 State of Washington Department of Ecology Page 17 of 25 Agreement No: SEASMP-1921-MACoCs-00057 Project Title: Shoreline Master Program—Periodic Review Recipient Name: Mason County GENERAL TERMS AND CONDITIONS Pertaining to Grant and Loan Agreements With the state of Washington,Department of Ecology GENERAL TERMS AND CONDITIONS AS OF LAST UPDATED 7-1-2019 VERSION 1. ADMINISTRATIVE REQUIREMENTS a) RECIPIENT shall follow the"Administrative Requirements for Recipients of Ecology Grants and Loans—EAGL Edition." (https:Hfortress.wa.gov/ecy/publ ications/SummaryPages/1701004.html) b) RECIPIENT shall complete all activities funded by this Agreement and be fully responsible for the proper management of all funds and resources made available under this Agreement. c) RECIPIENT agrees to take complete responsibility for all actions taken under this Agreement,including ensuring all subgrantees and contractors comply with the terms and conditions of this Agreement.ECOLOGY reserves the right to request proof of compliance by subgrantees and contractors. d) RECIPIENT's activities under this Agreement shall be subject to the review and approval by ECOLOGY for the extent and character of all work and services. 2. AMENDMENTS AND MODIFICATIONS This Agreement may be altered,amended,or waived only by a written amendment executed by both parties. No subsequent modification(s)or amendment(s)of this Agreement will be of any force or effect unless in writing and signed by authorized representatives of both parties. ECOLOGY and the RECIPIENT may change their respective staff contacts and administrative information without the concurrence of either party. 3. ACCESSIBILITY REQUIREMENTS FOR COVERED TECHNOLOGY The RECIPIENT must comply with the Washington State Office of the Chief Information Officer,OCIO Policy no. 188, Accessibility(https:Hocio.wa.gov/policy/accessibility)as it relates to"covered technology."This requirement applies to all products supplied under the agreement,providing equal access to information technology by individuals with disabilities, including and not limited to web sites/pages,web-based applications,software systems,video and audio content,and electronic documents intended for publishing on Ecology's public web site. 4. ARCHAEOLOGICAL AND CULTURAL RESOURCES RECIPIENT shall take reasonable action to avoid,minimize,or mitigate adverse effects to archeological and historic resources. The RECIPIENT must agree to hold harmless the State of Washington in relation to any claim related to historical or cultural artifacts discovered,disturbed,or damaged due to the RECIPIENT's project funded under this Agreement. RECIPIENT shall: a) Contact the ECOLOGY Program issuing the grant or loan to discuss any Cultural Resources requirements for their project: • For capital construction projects or land acquisitions for capital construction projects,if required,comply with Governor Executive Order 05-05,Archaeology and Cultural Resources. • For projects with any federal involvement,if required,comply with the National Historic Preservation Act. • Any cultural resources federal or state requirements must be completed prior to the start of any work on the project site. b) If required by the ECOLOGY Program,submit an Inadvertent Discovery Plan(IDP)to ECOLOGY prior to implementing any project that involves ground disturbing activities. ECOLOGY will provide the IDP form. RECIPIENT shall: • Keep the IDP at the project site. Template Version 10/30/2015 State of Washington Department of Ecology Page 18 of 25 Agreement No: SEASMP-1921-MACoCs-00057 Project Title: Shoreline Master Program—Periodic Review Recipient Name: Mason County • Make the IDP readily available to anyone working at the project site. • Discuss the IDP with staff and contractors working at the project site. • Implement the IDP when cultural resources or human remains are found at the project site. c) If any archeological or historic resources are found while conducting work under this Agreement: • Immediately stop work and notify the ECOLOGY Program,the Department of Archaeology and Historic Preservation at (360)586-3064,any affected Tribe,and the local government. d) If any human remains are found while conducting work under this Agreement: • Immediately stop work and notify the local Law Enforcement Agency or Medical Examiner/Coroner's Office,and then the ECOLOGY Program. e) Comply with RCW 27.53,RCW 27.44.055,and RCW 68.50.645,and all other applicable local,state,and federal laws protecting cultural resources and human remains. 5. ASSIGNMENT No right or claim of the RECIPIENT arising under this Agreement shall be transferred or assigned by the RECIPIENT. 6. COMMUNICATION RECIPIENT shall make every effort to maintain effective communications with the RECIPIENT's designees,ECOLOGY,all affected local,state,or federal jurisdictions,and any interested individuals or groups. 7. COMPENSATION a) Any work performed prior to effective date of this Agreement will be at the sole expense and risk of the RECIPIENT. ECOLOGY must sign the Agreement before any payment requests can be submitted. b) Payments will be made on a reimbursable basis for approved and completed work as specified in this Agreement. c) RECIPIENT is responsible to determine if costs are eligible. Any questions regarding eligibility should be clarified with ECOLOGY prior to incurring costs. Costs that are conditionally eligible require approval by ECOLOGY prior to expenditure. d) RECIPIENT shall not invoice more than once per month unless agreed on by ECOLOGY. e) ECOLOGY will not process payment requests without the proper reimbursement forms,Progress Report and supporting documentation. ECOLOGY will provide instructions for submitting payment requests. f) ECOLOGY will pay the RECIPIENT thirty(30)days after receipt of a properly completed request for payment. g) RECIPIENT will receive payment through Washington State's Office of Financial Management's Statewide Payee Desk. To receive payment you must register as a statewide vendor by submitting a statewide vendor registration form and an IRS W-9 form at website,https:Hofin.wa.gov/it-systems/statewide-vendorpayee-services. If you have questions about the vendor registration process,you can contact Statewide Payee Help Desk at(360)407-8180 or email PayeeRegistration@ofin.wa.gov. h) ECOLOGY may,at its sole discretion,withhold payments claimed by the RECIPIENT if the RECIPIENT fails to satisfactorily comply with any term or condition of this Agreement. i) Monies withheld by ECOLOGY may be paid to the RECIPIENT when the work described herein,or a portion thereof, has been completed if,at ECOLOGY's sole discretion,such payment is reasonable and approved according to this Agreement, as appropriate,or upon completion of an audit as specified herein. j) RECIPIENT must submit within thirty(30)days after the expiration date of this Agreement,all financial,performance,and other reports required by this agreement.Failure to comply may result in delayed reimbursement. 8. COMPLIANCE WITH ALL LAWS RECIPIENT agrees to comply fully with all applicable federal,state and local laws,orders,regulations,and permits related to this Agreement,including but not limited to: a) RECIPIENT agrees to comply with all applicable laws,regulations,and policies of the United States and the State of Template Version 10/30/2015 State of Washington Department of Ecology Page 19 of 25 Agreement No: SEASMP-1921-MACoCs-00057 Project Title: Shoreline Master Program—Periodic Review Recipient Name: Mason County Washington which affect wages and job safety. b) RECIPIENT agrees to be bound by all applicable federal and state laws,regulations,and policies against discrimination. c) RECIPIENT certifies full compliance with all applicable state industrial insurance requirements. d) RECIPIENT agrees to secure and provide assurance to ECOLOGY that all the necessary approvals and permits required by authorities having jurisdiction over the project are obtained. RECIPIENT must include time in their project timeline for the permit and approval processes. ECOLOGY shall have the right to immediately terminate for cause this Agreement as provided herein if the RECIPIENT fails to comply with above requirements. If any provision of this Agreement violates any statute or rule of law of the state of Washington,it is considered modified to conform to that statute or rule of law. 9. CONFLICT OF INTEREST RECIPIENT and ECOLOGY agree that any officer,member,agent,or employee,who exercises any function or responsibility in the review,approval,or carrying out of this Agreement,shall not have any personal or financial interest,direct or indirect,nor affect the interest of any corporation,partnership,or association in which he/she is a part, in this Agreement or the proceeds thereof. 10. CONTRACTING FOR GOODS AND SERVICES RECIPIENT may contract to buy goods or services related to its performance under this Agreement. RECIPIENT shall award all contracts for construction,purchase of goods,equipment,services,and professional architectural and engineering services through a competitive process,if required by State law. RECIPIENT is required to follow procurement procedures that ensure legal,fair,and open competition. RECIPIENT must have a standard procurement process or follow current state procurement procedures. RECIPIENT may be required to provide written certification that they have followed their standard procurement procedures and applicable state law in awarding contracts under this Agreement. ECOLOGY reserves the right to inspect and request copies of all procurement documentation,and review procurement practices related to this Agreement. Any costs incurred as a result of procurement practices not in compliance with state procurement law or the RECIPIENT's normal procedures may be disallowed at ECOLOGY's sole discretion. 11. DISPUTES When there is a dispute with regard to the extent and character of the work, or any other matter related to this Agreement the determination of ECOLOGY will govern,although the RECIPIENT shall have the right to appeal decisions as provided for below: a) RECIPIENT notifies the funding program of an appeal request. b) Appeal request must be in writing and state the disputed issue(s). c) RECIPIENT has the opportunity to be heard and offer evidence in support of its appeal. d) ECOLOGY reviews the RECIPIENT's appeal. e) ECOLOGY sends a written answer within ten(10)business days,unless more time is needed,after concluding the review. The decision of ECOLOGY from an appeal will be final and conclusive,unless within thirty(30)days from the date of such decision,the RECIPIENT furnishes to the Director of ECOLOGY a written appeal.The decision of the Director or duly authorized representative will be final and conclusive. The parties agree that this dispute process will precede any action in a judicial or quasi-judicial tribunal. Appeals of the Director's decision will be brought in the Superior Court of Thurston County. Review of the Director's decision will not be taken to Environmental and Land Use Hearings Office. Pending final decision of a dispute,the RECIPIENT agrees to proceed diligently with the performance of this Agreement and in Template Version 10/30/2015 State of Washington Department of Ecology Page 20 of 25 Agreement No: SEASMP-1921-MACoCs-00057 Project Title: Shoreline Master Program—Periodic Review Recipient Name: Mason County accordance with the decision rendered. Nothing in this Agreement will be construed to limit the parties'choice of another mutually acceptable method,in addition to the dispute resolution procedure outlined above. 12. ENVIRONMENTAL DATA STANDARDS a) RECIPIENT shall prepare a Quality Assurance Project Plan(QAPP)for a project that collects or uses environmental measurement data. RECIPIENTS unsure about whether a QAPP is required for their project shall contact the ECOLOGY Program issuing the grant or loan. If a QAPP is required,the RECIPIENT shall: • Use ECOLOGY's QAPP Template/Checklist provided by the ECOLOGY,unless ECOLOGY Quality Assurance(QA) officer or the Program QA coordinator instructs otherwise. • Follow ECOLOGY's Guidelines for Preparing Quality Assurance Project Plans for Environmental Studies,July 2004 (Ecology Publication No.04-03-030). • Submit the QAPP to ECOLOGY for review and approval before the start of the work. b) RECIPIENT shall submit environmental data that was collected on a project to ECOLOGY using the Environmental Information Management system(EIM),unless the ECOLOGY Program instructs otherwise.The RECIPIENT must confirm with ECOLOGY that complete and correct data was successfully loaded into EIM,find instructions at: http://www.ecy.wa.gov/eim. c) RECIPIENT shall follow ECOLOGY's data standards when Geographic Information System (GIS)data is collected and processed.Guidelines for Creating and Accessing GIS Data are available at: https://ecology.wa.gov/Research-Data/Data-resources/Geographic-Information-Systems-GIS/Standards. RECIPIENT,when requested by ECOLOGY,shall provide copies to ECOLOGY of all final GIS data layers,imagery,related tables,raw data collection files,map products,and all metadata and project documentation. 13. GOVERNING LAW This Agreement will be governed by the laws of the State of Washington,and the venue of any action brought hereunder will be in the Superior Court of Thurston County. 14. INDEMNIFICATION ECOLOGY will in no way be held responsible for payment of salaries,consultant's fees,and other costs related to the project described herein,except as provided in the Scope of Work. To the extent that the Constitution and laws of the State of Washington permit,each party will indemnify and hold the other harmless from and against any liability for any or all injuries to persons or property arising from the negligent act or omission of that party or that party's agents or employees arising out of this Agreement. 15. INDEPENDENT STATUS The employees,volunteers,or agents of each party who are engaged in the performance of this Agreement will continue to be employees,volunteers,or agents of that party and will not for any purpose be employees,volunteers,or agents of the other ply. 16. KICKBACKS RECIPIENT is prohibited from inducing by any means any person employed or otherwise involved in this Agreement to give up any part of the compensation to which he/she is otherwise entitled to or receive any fee,commission,or gift in return for award of a subcontract hereunder. 17. MINORITY AND WOMEN'S BUSINESS ENTERPRISES(MWBE) Template Version 10/30/2015 State of Washington Department of Ecology Page 21 of 25 Agreement No: SEASMP-1921-MACoCs-00057 Project Title: Shoreline Master Program—Periodic Review Recipient Name: Mason County RECIPIENT is encouraged to solicit and recruit,to the extent possible,certified minority-owned(MBE)and women-owned (WBE)businesses in purchases and contracts initiated under this Agreement. Contract awards or rejections cannot be made based on MWBE participation;however, the RECIPIENT is encouraged to take the following actions,when possible, in any procurement under this Agreement: a) Include qualified minority and women's businesses on solicitation lists whenever they are potential sources of goods or services. b) Divide the total requirements,when economically feasible,into smaller tasks or quantities,to permit maximum participation by qualified minority and women's businesses. c) Establish delivery schedules,where work requirements permit,which will encourage participation of qualified minority and women's businesses. d) Use the services and assistance of the Washington State Office of Minority and Women's Business Enterprises(OMWBE) (866-208-1064)and the Office of Minority Business Enterprises of the U.S.Department of Commerce,as appropriate. 18. ORDER OF PRECEDENCE In the event of inconsistency in this Agreement,unless otherwise provided herein,the inconsistency shall be resolved by giving precedence in the following order: (a)applicable federal and state statutes and regulations;(b) The Agreement;(c)Scope of Work;(d)Special Terms and Conditions;(e)Any provisions or terms incorporated herein by reference,including the "Administrative Requirements for Recipients of Ecology Grants and Loans";(f)Ecology Funding Program Guidelines;and(g) General Terms and Conditions. 19. PRESENTATION AND PROMOTIONAL MATERIALS ECOLOGY reserves the right to approve RECIPIENT's communication documents and materials related to the fulfillment of this Agreement: a) If requested,RECIPIENT shall provide a draft copy to ECOLOGY for review and approval ten(10)business days prior to production and distribution. b) RECIPIENT shall include time for ECOLOGY's review and approval process in their project timeline. c) If requested,RECIPIENT shall provide ECOLOGY two(2)final copies and an electronic copy of any tangible products developed. Copies include any printed materials,and all tangible products developed such as brochures,manuals,pamphlets,videos,audio tapes,CDs,curriculum,posters,media announcements,or gadgets with a message,such as a refrigerator magnet,and any online communications,such as web pages,blogs,and twitter campaigns.If it is not practical to provide a copy,then the RECIPIENT shall provide a description(photographs,drawings,printouts,etc.)that best represents the item. Any communications intended for public distribution that uses ECOLOGY's logo shall comply with ECOLOGY's graphic requirements and any additional requirements specified in this Agreement. Before the use of ECOLOGY's logo contact ECOLOGY for guidelines. RECIPIENT shall acknowledge in the communications that funding was provided by ECOLOGY. 20. PROGRESS REPORTING a) RECIPIENT must satisfactorily demonstrate the timely use of funds by submitting payment requests and progress reports to ECOLOGY. ECOLOGY reserves the right to amend or terminate this Agreement if the RECIPIENT does not document timely use of funds. b) RECIPIENT must submit a progress report with each payment request. Payment requests will not be processed without a progress report. ECOLOGY will define the elements and frequency of progress reports. c) RECIPIENT shall use ECOLOGY's provided progress report format. d) Quarterly progress reports will cover the periods from January 1 through March 31,April 1 through June 30,July 1 through Template Version 10/30/2015 State of Washington Department of Ecology Page 22 of 25 Agreement No: SEASMP-1921-MACoCs-00057 Project Title: Shoreline Master Program—Periodic Review Recipient Name: Mason County September 30,and October 1 through December 31. Reports shall be submitted within thirty(30)days after the end of the quarter being reported. e) RECIPIENT must submit within thirty(30)days of the expiration date of the project,unless an extension has been approved by ECOLOGY,all financial,performance,and other reports required by the agreement and funding program guidelines. RECIPIENT shall use the ECOLOGY provided closeout report format. 21. PROPERTY RIGHTS a) Copyrights and Patents. When the RECIPIENT creates any copyrightable materials or invents any patentable property under this Agreement,the RECIPIENT may copyright or patent the same but ECOLOGY retains a royalty free,nonexclusive, and irrevocable license to reproduce,publish,recover,or otherwise use the material(s)or property,and to authorize others to use the same for federal,state,or local government purposes. b) Publications. When the RECIPIENT or persons employed by the RECIPIENT use or publish ECOLOGY information; present papers,lectures,or seminars involving information supplied by ECOLOGY;or use logos,reports,maps,or other data in printed reports,signs,brochures,pamphlets,etc.,appropriate credit shall be given to ECOLOGY. c) Presentation and Promotional Materials. ECOLOGY shall have the right to use or reproduce any printed or graphic materials produced in fulfillment of this Agreement,in any manner ECOLOGY deems appropriate.ECOLOGY shall acknowledge the RECIPIENT as the sole copyright owner in every use or reproduction of the materials. d) Tangible Property Rights. ECOLOGY's current edition of"Administrative Requirements for Recipients of Ecology Grants and Loans,"shall control the use and disposition of all real and personal property purchased wholly or in part with funds furnished by ECOLOGY in the absence of state and federal statutes,regulations,or policies to the contrary,or upon specific instructions with respect thereto in this Agreement. e) Personal Property Furnished by ECOLOGY. When ECOLOGY provides personal property directly to the RECIPIENT for use in performance of the project, it shall be returned to ECOLOGY prior to final payment by ECOLOGY. If said property is lost,stolen,or damaged while in the RECIPIENT'S possession,then ECOLOGY shall be reimbursed in cash or by setoff by the RECIPIENT for the fair market value of such property. f) Acquisition Projects. The following provisions shall apply if the project covered by this Agreement includes funds for the acquisition of land or facilities: 1. RECIPIENT shall establish that the cost is fair value and reasonable prior to disbursement of funds provided for in this Agreement. 2. RECIPIENT shall provide satisfactory evidence of title or ability to acquire title for each parcel prior to disbursement of funds provided by this Agreement. Such evidence may include title insurance policies,Torrens certificates,or abstracts,and attorney's opinions establishing that the land is free from any impediment,lien,or claim which would impair the uses intended by this Agreement. g) Conversions. Regardless of the Agreement expiration date,the RECIPIENT shall not at any time convert any equipment, property,or facility acquired or developed under this Agreement to uses other than those for which assistance was originally approved without prior written approval of ECOLOGY. Such approval may be conditioned upon payment to ECOLOGY of that portion of the proceeds of the sale,lease,or other conversion or encumbrance which monies granted pursuant to this Agreement bear to the total acquisition,purchase,or construction costs of such property. 22. RECORDS,AUDITS,AND INSPECTIONS RECIPIENT shall maintain complete program and financial records relating to this Agreement,including any engineering documentation and field inspection reports of all construction work accomplished. All records shall: a) Be kept in a manner which provides an audit trail for all expenditures. b) Be kept in a common file to facilitate audits and inspections. c) Clearly indicate total receipts and expenditures related to this Agreement. Template Version 10/30/2015 State of Washington Department of Ecology Page 23 of 25 Agreement No: SEASMP-1921-MACoCs-00057 Project Title: Shoreline Master Program—Periodic Review Recipient Name: Mason County d) Be open for audit or inspection by ECOLOGY,or by any duly authorized audit representative of the State of Washington, for a period of at least three(3)years after the final grant payment or loan repayment,or any dispute resolution hereunder. RECIPIENT shall provide clarification and make necessary adjustments if any audits or inspections identify discrepancies in the records. ECOLOGY reserves the right to audit,or have a designated third party audit,applicable records to ensure that the state has been properly invoiced. Any remedies and penalties allowed by law to recover monies determined owed will be enforced. Repetitive instances of incorrect invoicing or inadequate records may be considered cause for termination. All work performed under this Agreement and any property and equipment purchased shall be made available to ECOLOGY and to any authorized state, federal or local representative for inspection at any time during the course of this Agreement and for at least three(3)years following grant or loan termination or dispute resolution hereunder. RECIPIENT shall provide right of access to ECOLOGY,or any other authorized representative,at all reasonable times,in order to monitor and evaluate performance,compliance, and any other conditions under this Agreement. 23. RECOVERY OF FUNDS The right of the RECIPIENT to retain monies received as reimbursement payments is contingent upon satisfactory performance of this Agreement and completion of the work described in the Scope of Work. All payments to the RECIPIENT are subject to approval and audit by ECOLOGY,and any unauthorized expenditure(s)or unallowable cost charged to this Agreement shall be refunded to ECOLOGY by the RECIPIENT. RECIPIENT shall refund to ECOLOGY the full amount of any erroneous payment or overpayment under this Agreement. RECIPIENT shall refund by check payable to ECOLOGY the amount of any such reduction of payments or repayments within thirty(30)days of a written notice. Interest will accrue at the rate of twelve percent(12%)per year from the time ECOLOGY demands repayment of funds. Any property acquired under this Agreement,at the option of ECOLOGY,may become ECOLOGY's property and the RECIPIENT's liability to repay monies will be reduced by an amount reflecting the fair value of such property. 24. SEVERABILITY If any provision of this Agreement or any provision of any document incorporated by reference shall be held invalid,such invalidity shall not affect the other provisions of this Agreement which can be given effect without the invalid provision,and to this end the provisions of this Agreement are declared to be severable. 25. STATE ENVIRONMENTAL POLICY ACT(SEPA) RECIPIENT must demonstrate to ECOLOGY's satisfaction that compliance with the requirements of the State Environmental Policy Act(Chapter 43.21 C RCW and Chapter 197-11 WAC)have been or will be met. Any reimbursements are subject to this provision. 26. SUSPENSION When in the best interest of ECOLOGY,ECOLOGY may at any time,and without cause,suspend this Agreement or any portion thereof for a temporary period by written notice from ECOLOGY to the RECIPIENT.RECIPIENT shall resume performance on the next business day following the suspension period unless another day is specified by ECOLOGY. 27. SUSTAINABLE PRACTICES In order to sustain Washington's natural resources and ecosystems,the RECIPIENT is fully encouraged to implement sustainable practices and to purchase environmentally preferable products under this Agreement. a) Sustainable practices may include such activities as: use of clean energy,use of double-sided printing,hosting low impact meetings,and setting up recycling and composting programs. b) Purchasing may include such items as:sustainably produced products and services, EPEAT registered computers and Template Version 10/30/2015 State of Washington Department of Ecology Page 24 of 25 Agreement No: SEASMP-1921-MACoCs-00057 Project Title: Shoreline Master Program—Periodic Review Recipient Name: Mason County imaging equipment,independently certified green cleaning products,remanufactured toner cartridges,products with reduced packaging,office products that are refillable,rechargeable,and recyclable, 100%post-consumer recycled paper,and toxic free products. For more suggestions visit ECOLOGY's web page,Green Purchasing, https:Hecology.wa.gov/Regulations-Permits/Guidance-technical-assistance/Sustainable-purchasing. 28. TERMINATION a) For Cause ECOLOGY may terminate for cause this Agreement with a seven(7)calendar days prior written notification to the RECIPIENT,at the sole discretion of ECOLOGY,for failing to perform an Agreement requirement or for a material breach of any term or condition. If this Agreement is so terminated,the parties shall be liable only for performance rendered or costs incurred in accordance with the terms of this Agreement prior to the effective date of termination. Failure to Commence Work. ECOLOGY reserves the right to terminate this Agreement if RECIPIENT fails to commence work on the project funded within four(4)months after the effective date of this Agreement,or by any date mutually agreed upon in writing for commencement of work,or the time period defined within the Scope of Work. Non-Performance.The obligation of ECOLOGY to the RECIPIENT is contingent upon satisfactory performance by the RECIPIENT of all of its obligations under this Agreement. In the event the RECIPIENT unjustifiably fails,in the opinion of ECOLOGY,to perform any obligation required of it by this Agreement,ECOLOGY may refuse to pay any further funds, terminate in whole or in part this Agreement,and exercise any other rights under this Agreement. Despite the above,the RECIPIENT shall not be relieved of any liability to ECOLOGY for damages sustained by ECOLOGY and the State of Washington because of any breach of this Agreement by the RECIPIENT. ECOLOGY may withhold payments for the purpose of setoff until such time as the exact amount of damages due ECOLOGY from the RECIPIENT is determined. b) For Convenience ECOLOGY may terminate for convenience this Agreement,in whole or in part,for any reason when it is the best interest of ECOLOGY,with a thirty(30)calendar days prior written notification to the RECIPIENT,except as noted below. If this Agreement is so terminated,the parties shall be liable only for performance rendered or costs incurred in accordance with the terms of this Agreement prior to the effective date of termination. Non-Allocation of Funds. ECOLOGY's ability to make payments is contingent on availability of fimding. In the event funding from state,federal or other sources is withdrawn,reduced,or limited in any way after the effective date and prior to the completion or expiration date of this Agreement,ECOLOGY,at its sole discretion,may elect to terminate the Agreement,in whole or part,or renegotiate the Agreement,subject to new funding limitations or conditions. ECOLOGY may also elect to suspend performance of the Agreement until ECOLOGY determines the funding insufficiency is resolved. ECOLOGY may exercise any of these options with no notification or restrictions,although ECOLOGY will make a reasonable attempt to provide notice. In the event of termination or suspension,ECOLOGY will reimburse eligible costs incurred by the RECIPIENT through the effective date of termination or suspension.Reimbursed costs must be agreed to by ECOLOGY and the RECIPIENT. In no event shall ECOLOGY's reimbursement exceed ECOLOGY's total responsibility under the agreement and any amendments. If payments have been discontinued by ECOLOGY due to unavailable funds,the RECIPIENT shall not be obligated to repay monies which had been paid to the RECIPIENT prior to such termination. RECIPIENT's obligation to continue or complete the work described in this Agreement shall be contingent upon availability of funds by the RECIPIENT's governing body. c) By Mutual Agreement Template Version 10/30/2015 State of Washington Department of Ecology Page 25 of 25 Agreement No: SEASMP-1921-MACoCs-00057 Project Title: Shoreline Master Program—Periodic Review Recipient Name: Mason County ECOLOGY and the RECIPIENT may terminate this Agreement,in whole or in part,at any time,by mutual written agreement. d) In Event of Termination All finished or unfinished documents,data studies,surveys,drawings,maps,models,photographs,reports or other materials prepared by the RECIPIENT under this Agreement,at the option of ECOLOGY,will become property of ECOLOGY and the RECIPIENT shall be entitled to receive just and equitable compensation for any satisfactory work completed on such documents and other materials. Nothing contained herein shall preclude ECOLOGY from demanding repayment of all funds paid to the RECIPIENT in accordance with Recovery of Funds,identified herein. 29. THIRD PARTY BENEFICIARY RECIPIENT shall ensure that in all subcontracts entered into by the RECIPIENT pursuant to this Agreement,the state of Washington is named as an express third party beneficiary of such subcontracts with full rights as such. 30. WAIVER Waiver of a default or breach of any provision of this Agreement is not a waiver of any subsequent default or breach,and will not be construed as a modification of the terms of this Agreement unless stated as such in writing by the authorized representative of ECOLOGY. Template Version 10/30/2015 MASON COUNTY AGENDA ITEM SUMMARY FORM TO: BOARD OF MASON COUNTY COMMISSIONERS From: Diane Zoren Action Agenda x Public Hearing Other DEPARTMENT: Support Services EXT: 747 DATE: February 18, 2020 Agenda Item # j Commissioner staff to complete) BRIEFING DATE: February 10, 2020 BRIEFING PRESENTED BY: Support Services [ ] ITEM WAS NOT PREVIOUSLY BRIEFED WITH THE BOARD Please provide explanation of urgency ITEM: Approval of the Resolution to establish Fund 141 as the Sheriff's Boating Program, establish Fund 142 as the Narcotics Investigation Fund, delete Fund 140 and places Prisoner Welfare Program monies (aka Commissary) and General Donations into Current Expense as Committed Revenues Background: Mason County Sheriff's Office requested an accounting fund be established to facilitate better fiscal management of the Boating Safety Program and the Mason County Audit Committee supports this request. The Audit Committee is also recommending a separate fund for Narcotics Investigations and move the Prisoner Welfare Program monies, which includes revenue from Jail Commissary purchases and video visitation proceeds, to Current Expense as Committed Revenues. Also move Sheriff's Office General Donations to Current Expense as Committed Revenues. Fund 140 which currently has these various revenues would be deleted. This proposal has been thoroughly reviewed by the Audit Committee and Sheriff's office. Budget Impacts: Deletes Fund 140 and creates Fund 141 and Fund 142 and creates committed revenues in Current Expense for the Sheriff's Office. RECOMMENDED ACTION: Approval of the Resolution to establish Fund 141 as the Sheriff's Boating Program, establish Fund 142 as the Narcotics Investigation Fund, delete Fund 140 and places Prisoner Welfare Program monies (aka Commissary) and General Donations into Current Expense as Committed Revenues Attachment(s): Resolution Resolution No. Establish Fund 141 as the Sheriff's Boating Program and Amending Mason County Code 3.132 and Establish Fund 142 as the Narcotics Investigation Fund and Amending Mason County Code 3.52 and Delete Fund 140 and Place Prisoner Welfare Program monies (aka Commissary) and General Donations into Current Expense as Committed Revenues WHEREAS, RCW 36.32.120 (5) states that the Board of County Commissioners have responsibility to "Allow all accounts legally chargeable against the county not otherwise provided for, and audit the accounts of all officers having the care, management, collection, or disbursement of any money belonging to the county or appropriated to its benefit" and; WHEREAS, RCW 88.02.650 authorizes the Washington State Department of Licensing to allocate revenue from vessel registration fees to Mason County to finance the Sheriff's Boating Safety Program and further designates, "Jurisdictions receiving funds under this section shall deposit the funds into an account dedicated solely for supporting the jurisdiction's boating safety programs. These funds may not replace existing local funds used for boating safety programs." and; WHEREAS, there are other funds available in the form of grants available to Mason County and the Mason County Sheriffs Office. WHEREAS, the Mason County Sheriff's Office requested an accounting fund be established to facilitate better fiscal management of the Boating Safety Program and the Mason County Audit Committee supports this request; and WHEREAS, Resolution 29-07 established the Sheriff's Boating Fund 140 however, in 2010 other functions were rolled into this fund and it is now recommended by the Mason County Audit Committee and the Mason County Sheriff's Office to abolish Fund 140 and create Fund 141 for the Sheriff's Boating Program; and WHEREAS, the Narcotics Investigation Fund was established by Resolution No. 3-86 and deleted from the Mason County Budget by adoption of Resolution 104-10 and it is now recommended by the Mason County Audit Committee and the Mason County Sheriff's Office to reestablish the Narcotics Investigation Fund as Fund 142 and close the Criminal Investigation Revolving checking account at Columbia Bank but make no changes to the imprest account established in Resolution No. 33-95 of $20,000; and WHEREAS, Jail Operating Standards, Chapter 2.21.370, state proceeds from the jail facility commissary shall be used for operation and maintenance of the commissary service and/or prisoner welfare expenses; and WHEREAS, the Mason County Audit Committee and the Mason County Sheriff's Office recommends the Commissary monies, including video visitation proceeds, and General Donations deposited into Fund 140 be transferred to Current Expense as Committed Revenues in two separate programs; NOW, THEREFORE, BE IT HEREBY RESOLVED by the Mason County Board of Commissioners to amend Mason County Code Chapter 3.132 reestablishing the Sheriff's Boating Program Fund as Fund 141 and delete Fund 140; and BE IT FURTHER RESOLVED to amend Mason County Code Chapter 3.52 reestablishing the Narcotics Investigation Fund as Fund 142 and close the Criminal Investigation Revolving checking account at Columbia Bank and deposit the $1500 into Current Expense; and Resolution No. FURTHER RESOLVE to transfer the Commissary monies, including video visitation proceeds, and General Donations from Fund 140 into Current Expense as Committed Revenues under two separate programs and change the title of the Commissary monies to the Prisoner Welfare Program; and FURTHER RESOLVE THAT: The Mason County Sheriff or his/her designee shall administer these funds and Committed Revenues and shall provide the information on the amount of money, as of April 1, 2020, that will be transferred to Fund 141 and Fund 142 and the amounts to transfer to Current Expense as Committed Revenues; and The Sheriff's Boating Program Fund may be used for any purpose related to Mason County's enforcement of federal, state, and local boating laws. This will include, but is not limited to training, specialized equipment, and employee wages and benefits. Interest on investment of Boating funds shall accrue for the benefit of said operating fund; and The Sheriffs Narcotics,Investigation,and Felony Forfeiture Program Fund may be used for any purpose related to Mason County's enforcement of federal, state, and local laws.This will include but is not limited to training, specialized equipment, professional services, and state confiscation reimbursement. Interest on investment of Narcotics Investigation and Felony Forfeiture funds shall accrue for the benefit of said operating fund; and The Prisoner Welfare Program may be used for any purpose benefiting Mason County's inmate population whether or not they are housed in the Mason County jail facility. This will include, but is not limited to, providing supplies, tools, and equipment for the benefit of the inmates subject to applicable laws and statues; and The General Donations may be used for any purpose related to the Mason County Sheriff's Office subject to applicable laws and statues; and The Mason County Treasurer shall establish separate and distinct special funds to be designated Sheriff's Boating Program Fund and Narcotics Investigation Fund and transfer the appropriate Prisoner Welfare Program monies (aka Commissary) and General Donations into Current Expense as Committed Revenues. DATED this day of February, 2020. BOARD OF COUNTY COMMISSIONERS MASON COUNTY, WASHINGTON ATTEST: Sharon Trask, Chair Melissa Drewry, Clerk of the Board Randy Neatherlin, Commissioner APPROVED AS TO FORM: Tim Whitehead Kevin Shutty, Commissioner Chief Deputy Prosecuting Attorney MASON COUNTY AGENDA ITEM SUMMARY FORM TO: BOARD OF MASON COUNTY COMMISSIONERS From: Loretta Swanson, Director Action Agenda Richard Dickinson Deputy Director/U&W Management DEPARTMENT: Public Works EXT: 450 COMMISSION MEETING DATE: February 18, 2020 Agenda Item # BRIEFING DATE: April 16, 2018 and February 10, 2020 BRIEFING PRESENTED BY: Loretta Swanson [] ITEM WAS NOT PREVIOUSLY BRIEFED WITH THE BOARD Please provide explanation of urgency: ITEM: Belfair Financial Plan Update—Amendment No. 1 BACKGROUND: Mason County and FCS GROUP entered into an agreement for professional services on April 25, 2018, under which FCS GROUP provides financial analysis in support of the Belfair Sewer System and its potential expansion. A part of the original scope of work involving the City of Bremerton is ongoing, but the analysis for the County was completed and reported to the Board of Commissioners. Since then, the County has made more progress on the design of a potential sewer expansion into the northeast part of the Belfair Urban Growth Area. The County now desires an updated financial analysis, further documentation, and another meeting with the Board of Commissioners. As a result, the contract budget needs to be increased and the termination date extended. Therefore, the Parties agree that: 1. The scope of work for the contract is revised to add a new Task 11-Updated Analysis: a. Update financial analysis related to the expansion of the Belfair Sewer System; b. Prepare a memo documenting the updated analysis; and c. Attend a Board of Commissioners briefing to explain the analysis and answer questions. 2. The contract budget is increased by $8,200, for a new total of $72,200. 3. The contract term is extended to September 30, 2020. RECOMMENDED ACTION: Recommend the Board authorize the Public Works Director to execute Amendment No. 1 to the contract agreement with Financial Consulting Solutions Group, Inc. to update and revise the Belfair sewer financial plan and complete an updated financial plan. ATTACHMENT: Amendment 1 January 31, 2020 Page 1 AMENDMENT #1 TO PROFESSIONAL SERVICES CONTRACT BETWEEN FINANCIAL CONSULTING SOLUTIONS Mason County GROUP, INC. (FCS GROUP) AND Department of Public Works Redmond Town Center 100 West Public Works Drive 7525- 166 1h Ave.NE, Suite D-215 Shelton,WA 98584 Redmond, Washington 98052 PROJECT: Belfair Sewer Financial Plan Update Mason County and FCS GROUP entered into an agreement for professional services on April 25, 2018, under which FCS GROUP provides financial analysis in support of the Belfair Sewer System and its potential expansion.A part of the original scope of work involving the City of Bremerton is ongoing, but the analysis for the County was completed and reported to the Board of Commissioners. Since then, the County has made more progress on the design of a potential sewer expansion into the northeast part of the Belfair Urban Growth Area. The County now desires an updated financial analysis, further documentation, and another meeting with the Board of Commissioners.As a result,the contract budget needs to be increased and the termination date extended. Therefore,the Parties agree that: 1. The scope of work for the contract is revised to add anew Task 11-Updated Analysis: a. Update financial analysis related to the expansion of the Belfair Sewer System; b. Prepare a memo documenting the updated analysis; and c. Attend a Board of Commissioners briefing to explain the analysis and answer questions. 2. The contract budget is increased by$8,200, for a new total of$72,200. 3. The contract term is extended to September 30,2020. All other terms and provisions of the contract remain the same. IN WITNESS WHEREOF,the parties hereto have hereunto set their hands and seals this day of , 20 . APPROVED: APPROVED: FINANCIAL CONSULTING Mason County SOLUTIONS GROUP, INC. Department of Public Works Jo Ghilarducci Loretta Swanson P sident ? Public Works Director Date: Date: ATTEST: •:;�FCS GROUP www1esgroup.com MASON COUNTY AGENDA ITEM SUMMARY FORM TO: BOARD OF MASON COUNTY COMMISSIONERS From: Jennifer Beierle Action Agenda _X_ Public Hearing Other DEPARTMENT: Support Services EXT: 532 DATE: February 18, 2020 Agenda Item # g Commissioner staff to complete) BRIEFING DATE: December 2, 2019 & February 10, 2020 BRIEFING PRESENTED BY: Frank Pinter / Jennifer Beierle [ ] ITEM WAS NOT PREVIOUSLY BRIEFED WITH THE BOARD Please provide explanation of urgency Item: Approval for the Board to authorize the payback of 2018 traffic diversion dollars for the buyout of 75% of two Ford Explorers. Background: In 2018 the General Fund purchased 4 Sheriffs vehicles with Traffic Policing Dollars. In order to maintain Rural Arterial Trust Account (RATA) funding for Mason County the purchase of those vehicles cannot be born entirely by Road Fund diverted dollars because those vehicles are not 100% used for traffic policing purposes. The General Fund repaid to Roads that component of the cost of the four vehicles that are not eligible for Traffic Policing Diversion in December of 2019, and also bought out the two Chevrolet Tahoes completely. The purchase of Sheriff vehicles using Traffic Diversion dollars creates an administrative burden on the Sheriff's Office. According to CRAB, the vehicle usage must be tracked in detail for the life of these vehicles. The vehicle usage must always be above the percentage that was paid using Traffic Diversion, or RATA funds may be at risk. This differs in the way the Sheriff is allowed to account for traffic policing staff time, which may be done using a sampling of time for a period each year. In order to avoid the tracking of each hour of time to these vehicles, the Sheriff's Office and Support Services are recommending to the Board that the general fund buy-out the vehicles with a retro-active effective date of 12/31/19. Attached is the calculation of the buy-out. The same methodology was used as in the buy- out of the Chevy Tahoes in December. Recommended Action: Approval for the Board to authorize the payback of 2018 traffic diversion dollars in the amount of$66,917.19 to County Road from Non-Departmental for the buyout of 75% of two Ford Explorers J:\Budget Office\Briefmg, Agenda,&Public Hearing Items\2020\Action Agenda-Buyout of Ford Explorers.doc Attachment: Calculation of 2018 traffic diversion payback to County Road from the General Fund J:\Budget Office\Briefing,Agenda,&Public Hearing Items\2020\Action Agenda-Buyout of Ford Explorers.doc 12/31/19 Buy-Out of two Ford Explorers purchased using 75%Traffic Diversion Dollars in 2018 February 10,2020 BOCC Briefing Option to Option 1 Buyout Ford approved by Explorers at BOCC in 12/31/19 in December of addition to 2019 Tahoes Total 2018-4 vehicles paid out of the Sheriffs Budget $ 245,035.09 Total 2018 of the 4 vehicles paid out of Traffic Funds $ 212,107.50 2018 Chevy Tahoes Depreciation $ 24,342.39 Chevy Tahoes 2018 depreciation charged to Traffic $ 12,779.76 Ford Explorers charged to Traffic at 75% $ 83,646.49 $ 83,646.49 Total Allowable Traffic Policing Vehicles $ 96,426.24 $ 83,646.49 Ford Explorers 2018 depreciation charged to Traffic $ 16,729.30 Buy-out amount due back to Roads from Current Expense $ 66,917.19 Total 2018 Traffic Policing Expenditures $ 2,180,456.05 Remove uniform allowance-inelligible per CRAB $ (7,200.00) Remove 2018 amount paid from Traffic $ (212,107.50) Add back allowable portion of 2018 vehicles $ 96,426.24 $ 66,917.19 Total allowable Traffic Policing $ 2,057,574.79 Total 2018 collected Traffic Diversion $ 2,160,000.00 2018 Traffic Diversion due back to Roads $ 102,425.21 Total Chevy Tahoe(s) paid for with General Fund Dollars during 2018 Reconciliation:: $ 13,256.05 Total Chevy Tahoe(s) paid for with General Fund Dollars in 2019 for 2018: $ 102,425.21 Total General Fund Dollars used to purchase Tahoe(s) $ 115,681.26 Buy out two Chevy Tahoes completely(using straightline depreciation over 5 yrs-no salvage value) Buy out Two Ford Explorers in addition to Option 1 K9 Equipment S 11,794.48 Remove K9 Equipment- not traffic policing eligible per CRAB Total cost for two Chevy Tahoes-Traffic $ 133,506.44 $ (11,794.48) $ 121,711.96 Total cost for two Ford Explorers- Patrol $ 111,528.65 $ 111,528.65 $ 245,035.09 $ 233,240.61 J:\Budget Office\Fund&Department Info\Sheriff's Office Info\Traffic Diversion\2018 Traffic Diversion Payback-2 MASON COUNTY AGENDA ITEM SUMMARY FORM TO: BOARD OF MASON COUNTY COMMISSIONERS From: Lorettta Swanson, Director Action Agenda DEPARTMENT: Public Works EXT: 450 COMMISSION MEETING DATE: February 18, 2020 Agenda Item #/0, BRIEFING DATE: January 13, 2020 BRIEFING PRESENTED BY: Loretta Swanson and Diane Sheesley [] ITEM WAS NOT PREVIOUSLY BRIEFED WITH THE BOARD Please provide explanation of urgency: ITEM: Franchise Agreement Applications for Erickson Lake Homeowners Association's Water System —Hearing BACKGROUND: Katherine Shank submitted an application for a new Franchise Agreement for a private water system and appurtenances for Erickson Lake Homeowners Association. The Franchise would cover the system in the right of way off of Mason County's Tahuya Blacksmith Road. The water system currently does not have a Franchise Agreement with Mason County that authorizes the system to occupy the County right-of-way. BUDGET IMPACT: Applicant paid the $400 for the franchise application fee. RECOMMENDED ACTION: Recommend the Board approve the franchise agreement application between Mason County and Erickson Lake Homeowners Association to run water lines and appurtenances under and across county road right of way. Attachments: 1. Franchise agreement IN THE MATTER OF THE APPLICATION OF Erickson Lake Homeowners Association. FOR A FRANCHISE PERMIT TO CONSTRUCT, OPERATE, AND MAINTAIN Water System and Appurtenances UTILITY FACILITIES, OVER,ALONG AND UNDER COUNTY ROADS AND HIGHWAYS LOCATED IN MASON COUNTY, WASHINGTON Application of(Name of operator)Erickson Lake Homeowners Association, doing business in Washington as Erickson Lake Homeowners Association, with its principal offices located at 5981 Tahuya Blacksmith rd. Belfair WA 98584, by and through(person authorized to act for and on behalf of applicant)Katherine Shank,for a franchise to construct,operate and maintain(description oftype)Water System utility facilities in,over,along and under county roads and highways in Mason County,Washington,as set forth in attached Exhibit`B" (Franchise Area),having come on regularly for hearing before the County Commissioners of Mason County, Washington, on the day of ,20 ,at the hour of ,under the provisions of RCW 36.55,RCW 80.32.010 and RCW 80.36.040,and it appearing to the Board that notice of said hearing has been duly given as required by law,and that it is in the public interest to allow the franchise herein granted; NOW THEREFORE, IT IS ORDERED that a non-exclusive franchise be, and the same is hereby given and granted to Operator, and its successors and assigns, hereinafter referred to as the Franchisee, for a period of 10 years with automatic renewal at the end of each term of 10 years unless either party gives the other written notice of termination at least 30 days prior to the end of the relevant term. (no more than ten years each term and can only be renewed 3 times) from and after the date of the entry of this order for the purposes,at the location(s), and upon the express terms and conditions as described herein. I. DEFINITIONS For the purposes of this franchise,terms,phrases,words,and their derivations not defined herein that are defined in Title 12 of the Mason County Code or the Manual on Accommodating Utilities in the Mason County Right-of-Way published by the County Engineer(the"Manual"),shall have the same meaning or be interpreted as provided in Title 12 of the Mason County Code or the Manual. Words not defined here, in Title 12 of the Mason County Code or the Manual shall have their ordinary meaning. A reference to Title 12 of the Mason County Code or the Manual refers to the same as may be amended,revised,updated,re-enacted or re-codified from time to time. II. GRANT The County of Mason hereby grants to the Franchisee a non-exclusive franchise which, once it becomes effective shall authorize the Franchisee to enter upon the road rights-of-way located within the Franchise Area identified in attached Exhibit`B", for the purpose of installing, 1 constructing, maintaining, repairing, replacing, adjusting,relocating and operating the utility facilities,which grant shall be limited to the following described purpose(s): A Water System and Appurtenances . Such grant is subject to and must be exercised in strict accordance with and subject to this franchise, Title 12 of the Mason County Code, the Manual and all applicable laws, rules, regulations and ordinances. Franchisee's exercise of any rights granted pursuant to the franchise is subject to the exercise of the County's police powers,and other regulatory powers as it may have or obtain in the future. No rights shall pass to the franchisee by implication. This franchise does not include permission to enter into or upon the road rights-of-way for any purposes others than the purposes expressly described herein. Permittee has a duty to notify the County of any change in use or condition of the utility facilities that may affect the status of the utility facilities or the impact of the utility facilities upon the road rights-of-way. III. UTILITY PERMIT REQUIRED Franchisee shall not commence or perform work(hereafter"Work")to install,construct,maintain repair, replace adjust, connect, disconnect, rebuild, or relocate its utility facilities within the road rights-of-way,without first applying for,paying all associated fees,and obtaining a utility permit as required pursuant to Title 12 of the Mason County Code. In any utility permit so issued,the County may impose,as a condition of the granting the utility permit,such conditions and regulations as may be necessary for the protection,preservation and management of the road rights-of-way,including, by way of example and not limitation, for the purpose of protecting any structures in the road rights-of-way, maintaining proper distance from other utilities, ensuring the proper restoration of such road rights-of-way and structures, and for the protection of the County and the public and the continuity of pedestrian and vehicular traffic. Franchisee shall first file with the County Engineer its application for a utility permit to do such Work together with plans and specifications in triplicate showing at a minimum: A.The position,depth and location of all such utility facilities sought to be constructed,laid, installed or erected at that time,showing their relative position to existing county roads,rights-of-way or other county property upon plans drawn to scale,hereinafter collectively referred to as the"map of definite location; B. The class and type of material and equipment to be used, manner of excavation, construction,installation,backfill,erection of temporary structures,erection of permanent structures, traffic control,traffic turnouts and road obstructions; C. The manner in which the utility facility is to be installed; D. Measures to be taken to preserve safe and free flow of traffic; E. Structural integrity of the roadway, bridge, or other structure; 2 F. Specifications for the restoration of the county road,right-of-way or other county property in the event that the road right of way will be disturbed by the Work; and G. Provision for ease of future road maintenance and appearance of the roadway. Provision shall be made for known or planned expansion of the utility facilities,particularly those located underground or attached to bridges or other structures within the road right-of-way. The location, alignment and depth of the utility facilities shall conform with said map of definite location,except in instances in which deviation may be allowed thereafter in writing by the County Engineer pursuant to application by Franchisee. All such Work shall be subject to the approval of and shall pass the inspection of the County Engineer.The Franchisee shall pay all costs of and expenses incurred in the examination,inspection and approval of such work on account of granting the said utility permits. IV. RESTORATION OF ROAD RIGHT OF WAY In any Work which disturbs or causes damage to the road rights-of-way subject to this franchise, public or private property, the Franchisee shall at its own expense and with all convenient speed, complete the work to repair and restore the county road right-of-way, or the public or private property so disturbed or damaged, and leave the same in as good or better condition as before the Work was commenced,to the reasonable satisfaction of the County Engineer. The Franchisee shall pay all costs of and expenses incurred in the examination, inspection and approval of such restoration or repair. The County Commissioners and/or County Engineer may at any time do,order or have done any and all work that they consider necessary to restore to a safe condition such County road right-of-way or other County property left by the Franchisee or its agents in a condition dangerous to life or property, and the Franchisee, upon demand, shall pay to the County all costs of such work. V. FRANCHISEE WORK IN RIGHT OF WAY Franchisee expressly agrees and understands that,with regard to Work within the road rights-of-way: A. All of Franchisee's utility facilities and Work within the road rights-of-way or other County property shall be in compliance with the provisions of Title 12 MCC, the Manual, the administrative regulations adopted by the County Engineer,other County established requirements for placement of utility facilities in road rights-of-way, including the specific location of utility facilities in the road rights-of-way, and all applicable laws,rules, regulations and ordinances; B. In preparing plans and specifications for Work of utility facilities in the road rights-of- way the Franchisee shall use the Manual. Prior to commencement of work in the road rights-of-way, Franchisee shall submit such plans and specifications to the Mason County Engineer for review and 3 approval together with adequate exhibits depicting existing or proposed location of the utility facility in relation to the road, including right-of-way or easement lines; relationship to currently planned road revisions,if applicable;and all locations and situations for which deviations in depth of cover (including the proposed method of protection) or other locational standards that are anticipated; C. All Work to utility facilities located within the road rights-of-way or other county property subject to this franchise shall be done in such a manner as not to interfere, other than in ways approved by the County, with the construction, operation and maintenance of other utilities, public or private, drains, drainage ditches and structures, irrigation ditches and structures, located therein,nor with the grading or improvements of such County roads,rights-of-way or other County property; D. The owners and operators of all utility facilities (public or private) installed in the Franchise Area or other county property prior in time to the utility facilities of the Franchisee,shall have preference as to the alignment and location of such utilities so installed with respect to the Franchisee. Such preference shall continue in the event of the necessity of relocating or changing the grade of any such county road or right-of-way; E. Franchisee shall perform the Work and operate its utility facilities in a manner that minimizes interference with the use of the road rights-of-way by others,including others that may be installing utility facilities; and F. The County may require that Franchisee's utility facilities be installed at a particular time, at a specific place,or in a particular manner as a condition of access to a particular road right-of-way; may deny access if a Franchisee is not willing to comply with the County's requirements; and may remove, or require removal of, any utility facility that is not installed in compliance with the requirements established by the County, or which is installed without prior County approval of the time, place, or manner of installation and charge the Franchisee for all the costs associated with removal; and may require Franchisee to cooperate with others to minimize adverse impacts on the road rights-of-way through joint trenching and other arrangements. G. The County may inspect the utility facilities at any time reasonable under the circumstances to ensure compliance with this franchise and applicable law,including to ensure that the utility facilities are constructed and maintained in a safe condition. If an unsafe condition is found to exist,the County,in addition to taking any other action permitted under applicable law,may order the Franchisee, in writing, to make the necessary repairs and alterations specified therein forthwith to correct the unsafe condition on a time-table established by the County which is reasonable in light of the unsafe condition. The County has the right to correct,inspect,administer, and repair the unsafe condition if the Franchisee fails to do so, and to charge the Franchisee therefore. The right of the County to conduct such inspections and order or make repairs shall not be construed to create an obligation therefore,and such obligation to construct and maintain its utility facilities in a safe condition shall at all times remain the sole obligation of the Franchisee. 4 H. When required by the County,Franchisee shall make information available to the public regarding any work involving the ongoing installation,construction,adjustment,relocation,repair or maintenance of its utility facilities sufficient to show(1)the nature of the work being performed; (2) where it is being performed; (3) its estimated completion date; and(4)progress to completion. I. FRANCHISEE IS PLACED ON NOTICE THAT FIBER OPTIC,COMMUNICATIONS, POWER, CONTROL SYSTEMS, OTHER TYPES OF CABLES, AND PIPELINES MAY BE BURIED ON THE RIGHT OF WAY. Before beginning any underground work, Franchisee will contact the appropriate personnel to have such facilities located and make arrangements as to protective measures that must be adhered to prior to the commencement of any work within the Road rights-of-way. In addition to the liability terms elsewhere in this Agreement, Franchisee shall indemnify and hold the County and its elected and appointed officers, employees and agents harmless against and from all cost,liability,and expense whatsoever(including,without limitation, attorney's fees and court costs and expenses)arising out of or in any way contributed to by any act or omission of Franchisee,its contractor,agents and/or employees,that cause or in any way or degree contribute to (1) any damage,to or destruction of any such facilities by Franchisee, and/or its contractor, agents and/or employees, on the County's property, (2) any injury to or death of any person employed by or on behalf of any entity,and/or its contractor,agents and/or employees,on the road rights-of-way, and/or(3) any claim or cause of action for alleged loss of profits or revenue,or loss of service, by a customer or user of services or products of such company(ies) (collectively "Liabilities" for purposes of this Section V.1). The only Liabilities with respect to which Franchisee's obligation to indemnify the County and its elected and appointed officers, employees and agents does not apply are Liabilities to the extent arising out of,caused by or resulting from the negligence of the County, and its elected and appointed officers, employees and agents and Liabilities that by law the County and its elected and appointed officers, employees and agents for which the County cannot be indemnified. J. Franchisee shall continuously be a member of the State of Washington one number locator service under RCW 19.122, or an approved equivalent, and shall comply with all such applicable rules and regulations. K. Except in the event of emergency as described below,Franchisee and its Agents may not enter upon the Franchise Area to perform work for which a utility permit is not required,unless and except upon two-business days notice to the County Engineer. L. In the event of an emergency involving the threat of imminent harm to persons or property,and for purposes of taking immediate corrective action,Franchisee and its agents may enter the Franchise Area without advance notice to the County as long as such entry is for the sole purpose of addressing the emergency;provided however, that if any entry for such purposes would require issuance of a utility permit,Franchisee shall give the County verbal or telephonic notice of the places where and the manner in which entry is required prior to such entry,promptly followed by written notice. In all cases,notice to the County shall be given as far in advance as practical prior to entry or as soon as practicable after entry upon the road right-of-Way. M. Franchisee shall promptly reimburse the County for their reasonable and direct costs incurred in responding to an emergency that is caused, created by or attributable to the presence, 5 construction,maintenance,repair,or operation of the Franchisees utility facilities in the road rights- of-way. N. If,during installation,construction,relocation,realignment,adjustment,maintenance,or repair of the Franchisee's utility facilities in the road rights-of-way,Franchisee or its agents discover scientific or historic artifacts,Franchisee shall immediately notify the County of said discovery and shall protect such artifacts in a manner as specified by the County. Any such artifact shall be the property of the County if the County wishes to own it. VI. PROTECTION OF PUBLIC All work done under this franchise shall be done in a thorough and workman-like manner. In the performance of Work within or near the road rights-of-way, including without limitation, the opening of trenches and the tunneling under county roads,rights-of way or other county property,the Franchisee shall leave such trenches, ditches and tunnels in such a way as to interfere as little as possible with public travel and shall take all due and necessary precautions to guard the same,so that damage or injury shall not occur or arise by reason of such Work; and where any of such trenches, ditches and tunnels are left open at night,the Franchisee shall place warning lights,barricades and other appropriate protective devices at such a position as to give adequate warning of such Work. The Franchisee shall be liable for any injury to person or persons or damage to property sustained arising out of its carelessness or neglect,or through any failure or neglect to properly guard or give warning of any trenches, ditches or tunnels dug or maintained by the Franchisee. VII. POLICE POWERS The County of Mason,in granting this franchise,does not waive any rights which it now has or may hereafter acquire with respect to county roads, rights-of-way or other county property and this franchise shall not be construed to deprive the county of any powers, rights or privileges which it now has or may hereafter acquire to regulate the use of and to control the county roads,rights-of-way and other county property covered by this franchise. The County retains the right to administer and regulate activities of the Franchisee up to the fullest extent of the law. The failure to reserve a particular right to regulate, or reference a particular regulation, shall not be interpreted by negative implication or otherwise to prevent the application of a regulation to the Franchisee. VIII. RELOCATION Franchisee shall,in the course of any Work, comply with the following requirements: A. The Franchisee shall, by a time specified by the County, protect, support, temporarily disconnect,relocate,or remove any of its utility facilities when required by the County by reason of traffic conditions;public safety;road right-of-way construction;road right-of-way repair(including resurfacing or widening);change of road right-of-way grade; construction,installation,or repair of County-owned sewers,drains,water pipes,power lines,signal lines,tracks,communications system, 6 other public work, public facility, or improvement of any government-owned utility; road right-of-way vacation;or for any other purpose where the County work involved would be aided by the removal or relocation of the utility facilities. Collectively,such matters are referred to below as the "public work." Franchisee acknowledges and understands that any delay by Franchisee in performing the herein described work may delay, hinder, or interfere with the work performed by the County and its contractors and subcontractors done in furtherance of such Public Work and result in damage to the County,including but not limited to,delay claims. Franchisee shall cooperate with the County and its contractors and subcontractors to coordinate such Franchisee work to accommodate the Public Work project and project schedules to avoid delay, hindrance of, or interference with the Public Work. The County of Mason shall make available to the Franchisee a copy of the Six Year Transportation Program and the County's annual construction program after adoption each year. It is anticipated these programs will aid the utility in planning construction programs. B. Franchisee has a duty to protect its utility facilities from work performed by the County within the road rights-of-way. The rights granted to the Franchisee herein do not preclude the County of Mason, its employees, contractors, subcontractors, and agents from blasting, grading, excavating, or doing other necessary road work contiguous to Franchisee's utility facilities; providing that, the Franchisee shall be given a minimum of forty-eight (48) hours notice of said blasting or other work in order that the Franchisee may protect its utility facilities. C. In the event of an emergency,or where the utility facility creates or is contributing to an imminent danger to health, safety, or property, the County may protect, support, temporarily disconnect,remove,or relocate any or all parts of the utility facility without prior notice,and charge the Franchisee for costs incurred. D. If any Person that is authorized to place facilities in the road right of way requests the Franchisee to protect, support,temporarily disconnect,remove, or relocate the Franchisee's utility facilities to accommodate the construction,operation,or repair of the facilities of such other person, the Franchisee shall,after 30 days'advance written notice,take action to effect the necessary changes requested;provided that,if such project is related to or competes with Franchisee's service,or if the effect of such changes would be to permanently deprive Franchisee of the beneficial enjoyment of this franchise for its intended purposes through interference with the operation of Franchisee's utility facilities or otherwise, Franchisee shall not be required to relocate its utility facilities. Unless the matter is governed by a valid contract or a state or federal law or regulation, or unless the Franchisee's utility facilities were not properly installed, the reasonable cost of the same shall be borne by the Person requesting the protection, support, temporary disconnection, removal, or relocation at no charge to the County, even if the County makes the request for such action. E. The Franchisee shall, on the request of any person holding a valid permit issued by a governmental authority, temporarily raise or lower its wires to permit the moving of buildings or 7 other objects. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same. The County of Mason will accept liability for direct and actual damages to said Franchisee that are the result of the negligence of Mason County, its trustees, officers, employees, contractors, subcontractors or agents while performing County improvement or Public Works projects enumerated in the original franchise agreement under Section VIII,paragraph B. Direct and actual damages are specifically limited to physical damage to properly installed and located infrastructure of the Franchisee and the cost to repair such physical damage. Mason County retains the right to assert all applicable defenses in the'event of a dispute including contributory negligence on the part of the Franchisee. Mason County shall in no way be liable for incidental damages claimed to arise from such actions. All Work to be performed by the Franchisee under this section shall pass the inspection of the County Engineer. The Franchisee shall pay all costs of and expenses incurred in the examination, inspection and approval of such work. IX. PRESERVATION OF MONUMENTS/MARKERS Before any work is performed under this franchise which may affect any existing monuments or markers of any nature relating to subdivisions,plats,roads and all other surveys,the Franchisee shall reference all such monuments and markers. The reference points shall be so located that they will not be disturbed during the Franchisee's operations under this franchise. The method of referencing these monuments or other points to be referenced shall be approved by the County Engineer. The replacement of all such monuments or markers disturbed during construction shall be made as expeditiously as conditions permit,and as directed by the County Engineer. The cost of monuments or other markers lost, destroyed, or disturbed, and the expense of replacement by approved monuments shall be borne by the Franchisee. A complete set of reference notes for monument and other ties shall be filed with the office of the Mason County Engineer. X. VACATION OF ROAD RIGHT-OF-WAY If at any time the County shall vacate any County road,right-of-way or other County property which is subject to rights granted by this franchise and said vacation shall be for the purpose of acquiring the fee or other property interest in said road, right-of-way or other county property for the use of Mason County,in either its proprietary or governmental capacity,then the Board of Mason County Commissioners may, at its option, and by giving thirty(30) days written notice to the Franchisee, terminate this franchise with reference to such county road,right-of-way or other county property so vacated, and the County of Mason shall not be liable for any damages or loss to the Franchisee by reason of such termination. It has been the practice of Mason County to reserve easements for utilities at the time of road vacation,and will continue to be the practice until such time the Board of Mason County Commissioners direct a change of practice. 8 XI. FINANCIAL SECURITY A. Insurance Except as otherwise provided herein,Franchisee shall maintain for itself and the County,throughout the entire period any part of Franchisee's utility facilities are located in the Franchise Area, adequate insurance to protect the Parties and their elected and appointed officers, agents, employees against all of County's and Franchisee's liability arising out of Franchisee's use and occupancy of the Franchise Area or any part thereof. This obligation shall require the Franchisee to maintain insurance at least in the following amounts: 1. COMMERCIAL GENERAL LIABILITY insurance to cover liability, bodily injury, and property damage. The Commercial General Liability insurance shall be written on an occurrence basis, with an aggregate limit location endorsement for the Franchise Area, and shall provide coverage for any and all costs, including defense costs, and losses and damages resulting from personal injury, bodily injury and death, property damage, products liability and completed operations. Such insurance shall include blanket contractual coverage, including coverage for the Franchise as now or hereafter amended and specific coverage for the indemnity provisions set forth herein. Coverage must be written with the following limits of liability: Bodily and Personal Injury&Property Damage $ 1,000,000 per Occurrence $ 2,000,000 aggregate 2 WORKERS' COMPENSATION insurance shall be maintained to comply with statutory limits for all employees,and in the case any work is sublet,the Franchisee shall require its contractors and subcontractors similarly to provide workers' compensation insurance for all the employees. The Franchisee shall also maintain, during the life of this policy, employer's liability insurance;provided that this obligation shall not apply to any time period during which Franchisee has no employees. The following minimum limits must be maintained: Workers'Compensation Statutory Employer's Liability $ 1,000,000 each occurrence 3.COMPREHENSIVE AUTO LIABILITY insurance shall include owned,hired,and non-owned vehicles operated by Franchisee employees on an occurrence basis with coverage of at least $2,000,000 per occurrence. If the Franchisee, its contractors, or subcontractors do not have the required insurance, the County may require such entities to stop operations until the insurance is obtained and approved. Certificates of Insurance reflecting evidence of the required insurance and approved by the County's Risk Manager for the GENERAL LIABILITY policies described above,shall be sent to the County's risk manager. The certificate shall be filed with the acceptance of the franchise, and annually 9 thereafter, and as provided below. All coverage shall be listed all on one certificate with the same expiration dates. The certificates shall contain a provision that coverages afforded under these policies will not be canceled until at least 30 days'prior written notice has been given to the County. In the event that the insurance certificate provided indicates that the insurance shall terminate or lapse during the period of the franchise,then, in that event,the Franchisee shall furnish, at least 30 days prior to the expiration of the date of such insurance,a renewed certificate of insurance as proof that equal and like coverage has been or will be obtained prior to any such lapse or termination during the balance of the period of the franchise. The County reserves the right, during the term of the franchise, to require any other insurance coverage or adjust the policy limits as it deems reasonably necessary utilizing sound risk management practices and principals based upon the loss exposures. Each insurance policy required pursuant to this franchise shall be primary and non-contributing as respects any coverage maintained by the County and shall include an endorsement reflecting the same. Any other coverage maintained by County shall be excess of this coverage herein defined as primary and shall not contribute with it. The certificate of insurance must reflect that the above wording is included in all such policies. Each insurance policy obtained pursuant to this franchise shall be issued by financially sound insurers who may lawfully do business in the State of Washington with a financial rating at all times during coverage of no less than rating of"A" and a class of"X" or better in the latest edition of "Best's Key Rating Guide"published by A.M.Best Company,or such other financial rating or rating guide approved in writing by the County's risk manager. In the event that at any time during coverage,the insurer does not meet the foregoing standards,Franchisee shall give prompt notice to the County and shall seek coverage from an insurer that meets the foregoing standards. The County reserves the right to change the rating or the rating guide depending upon the changed risks or availability of other suitable and reliable rating guides. Comprehensive general liability insurance policies and coverage obtained pursuant to this franchise shall include an endorsement(standard ISO form CG 24-17)deleting all exclusions for work or incidents occurring within any distance from a railroad track or railroad property, or on, over, or under a railroad track. Insurance policies required pursuant to this franchise shall have no non-standard exclusions unless approved of by the County Risk Manager or designee. Commercial general liability insurance policies obtained pursuant to this franchise shall name the County as an additional insured without limitation,pursuant to an endorsement approved of by the County's Risk Manager or designee. 10 Franchisee and Franchisee's Contractors' insurers, through policy endorsement, shall waive their rights of subrogation against the County for all claims and suits. The certificate of insurance must reflect this waiver of subrogation rights endorsement. Commercial General Liability Insurance policies and coverage required herein of public utility operators may include a reasonable deductible or self-insured retention;provided,however,that as to any Loss or Damage covered as provided herein, if Franchisee elects to include any deductible or self-insured retention,Franchisee shall itself directly cover,in lieu of insurance,any and all County liabilities that would otherwise in accordance with the provisions of this Franchise be covered by Franchisee's insurance if Franchisee elected not to include a deductible or self-insured retention. Such direct coverage by Franchisee shall be in an amount equal to the amount of Franchisee's actual deductible or self-insured retention. Franchisee shall be required to provide a certification of self- insurance retention to the county in a form and content acceptable to the county engineer. B. Performance/Payment Bond. At the same time Franchisee provides its acceptance of this Franchise, the Franchisee shall, if required by the County Engineer, provide a performance and payment bond to ensure the full and faithful performance of all of its responsibilities under this franchise and applicable rules, regulations and ordinances, including, by way of example,but not limited to,its obligations to relocate and remove its utility facilities,to restore the road rights-of-way and other property when damaged or disturbed, and to reimburse the County for its costs. The amount of the performance and payment bond shall be for ZERO ($0). The amount of the bond,or cash deposit as described below, may be adjusted by the County every five years from the date of execution of this franchise,to take into account cumulative inflation or increased risks to the County. The Franchisee maybe required to obtain additional bonds in accordance with the County's ordinary practices. The bond shall be in a form with terms and conditions acceptable to the County and reviewed and approved by the County Engineer. The bond shall be with a surety with a rating no less than "A V in the latest edition of"Bests Key Rating Guide," published by A.M. Best Guide. The Franchisee shall pay all premiums or costs associated with maintaining the bond,and shall keep the same in full force and effect at all times.If Franchisee fails to provide or maintain the bond,then the County,in its sole discretion,may require Franchisee to substitute an equivalent cash deposit as described below in lieu of the bond. Franchisee, may at its election or upon order by the County, substitute an equivalent cash deposit instead of a performance and payment bond. This cash deposit shall ensure the full and faithful performance of all of Franchisee's responsibilities hereto under this Permit and all applicable laws, rules, regulations or ordinances. This includes, but is not limited to, its obligations to relocate or remove its facilities, restore the road rights-of-way and other property to their original condition, reimbursing the County for its costs, and keeping Franchisee's insurance in full force. The County shall notify Franchisee in writing, by certified mail, of any default and shall give Franchisee thirty(30)days from the date of such notice to cure any such default. In the event that the Franchisee fails to cure such default to the satisfaction of the County,the County may,at its option, 11 forfeit the entire amount of the cash deposit or draw upon the cash deposit up to the amount of the County's costs incurred to cure Franchisee's default. Upon the County's cure of Franchisee's default, the County shall notify Franchisee in writing of such cure. In the event that the County draws upon the cash deposit or forfeits the same, Franchisee shall thereupon replenish the cash deposit to the full amount as specified herein or provide a replacement performance and payment bond. Before any Work commences in the road right-of-way,the County Engineer may require the operator to provide a performance and payment bond for each separate project in an amount to be determined by the County Engineer, but not less than five hundred dollars, written by a surety company acceptable to the County Risk Manager and authorized to do business in the state of Washington. The purpose of the bond is to insure completion of construction, including the restoration of surfacing,slopes,slope treatment,topsoil,landscape treatment,and drainage facilities,and cleanup of rights-of-way, and payment of costs incurred by the County to enforce the requirements of this Chapter. The performance and payment bond shall be in place for a period ending not more than one year after the date of completion. A project specific performance bond shall not be required in the event that the franchisee has in place a blanket performance bond and, when required, a payment bond, maintained pursuant to the requirements of this franchise. A performance and payment bond for work in the road right-of-way will not be required of the United States Government or any of its agencies or of any municipal corporation or department of the state of Washington and its local subdivisions. C. Limitation of Liabilitv. To the fullest extent permitted by law,the Franchisee shall,and shall cause its contractor(s) to release, indemnify, defend and hold harmless the county and the county's legal representatives, officer(elected or), appointed) employees and agents(collectively, "indemnitees") for, from and against any and all claims, liabilities, fines,penalties,cost,damages, losses, liens, causes of action, suits, demands, judgments and expenses (including, without limitations, court costs, attorneys' fees and costs of investigation, removal and remediation and governmental oversight costs),Environmental or otherwise(collectively"liabilities")of any nature, kind, or description, of any person or entity,directly or indirectly, arising out of,resulting from,or related to (in whole or in part): 1. this franchise; 2. any rights or interests granted pursuant to this franchise; 3. franchisee's occupation and use of the road right of way; 4. franchisee's operation of its utility facilities; 12 5. the presence of utility facilities within the right of way; 6. the environmental condition and status of the road right-of-way caused by, aggravated by, or contributed to, in whole or in part,by franchisee or its agents; or 7. The acts,errors,or omissions of third parties when arising out of the installation, construction,adjustment,relocation,replacement,removal,or maintenance of such third party utility facilities within the road rights-of-way when such work is performed under authority of the operator's utility permit or at the direction or under the control of the operator; or 8. any act or omission of franchisee or franchisee's agents; The only liabilities with respect to which franchisee's obligation to indemnify the indemnitees do not apply are liabilities to the extent arising out of, caused by or resulting from the negligence of the county, its officers, agents, employees or contractors and liabilities that by law the indemnities cannon be indemnified for. Upon written notice from the county,franchisee agrees to assume the defense of any lawsuit or other proceeding brought against any indemnitee by any entity, relating to any matter covered by this franchise for which franchisee has an obligation to assume liability for and/or save and hold harmless any indemnitee.Franchisee shall pay all cost incident to such defense,including,but not limited to, attorneys' fees,investigators' fees,litigation and appeal expenses,settlement payments and amounts paid in satisfaction of judgments. Franchisee will fully satisfy said judgment within ninety(90)days after said suit or action shall have finally been determined if determined adversely to Mason County. Upon the Franchisee's failure to satisfy said judgment within the ninety (90) day period, this franchise shall at once cease and terminate. Acceptance by the County of any Work performed by the Franchisee at the time of completion shall not be grounds for avoidance of this covenant. XII. FRANCHISE NONEXCLUSIVE This franchise shall not be deemed to be an exclusive franchise. It shall in no manner prohibit the County of Mason from granting other utilities under,along,across,over and upon any of the County roads,rights-of-way or other County property subject to this franchise and shall in no way prevent or prohibit the County of Mason from constructing, altering, maintaining or using any of said roads, rights-of-way,drainage structures or facilities,irrigation structures or facilities,or any other county property or affect its jurisdiction over them or any part of them with full power to make all necessary changes, relocations,repairs, maintenance, etc.,the same as the county may deem fit. XIII. SUCCESSORS AND ASSIGNS 13 All the provisions,conditions,regulations and requirements herein contained shall be binding upon the successors and assigns of the Franchisee,and all privileges,as well as all obligations and liability of the Franchisee, shall ensure to its successors and assigns equally as if they were specifically mentioned wherever the Franchisee is mentioned. Any reference in this franchise to a specifically named party shall be deemed to apply to any successor, heir, administrator, executor or assign of such party who has acquired its interest in compliance with the terms of this franchise,or under law. XIV. TRANSFER/ASSIGNMENT Franchisee may assign or transfer this franchise after prior written notice to County of Mason and assignee's written commitment,in a form and content approved by the County Prosecutor,delivered to County of Mason,that assignees shall thereafter be responsible for all obligations of Franchisee with respect to the franchise and guaranteeing performance under the terms and conditions of the franchise and that transferee will be bound by all the conditions of the franchise and will assume all the obligations of its predecessor: Such an assignment shall relieve the Franchisee of any further obligations under the franchise, including any obligations not fulfilled by Franchisee's assignee; provided that,the assignment shall not in any respect relieve the Franchisee,or any of its successors in interest,of responsibility for acts or omissions,known or unknown,or the consequences thereof, which acts or omissions occur prior to the time of the assignment. No franchise or master road use permit may be assigned or transferred without filing or establishing with the county the insurance certificates and performance bond as required pursuant to this franchise. XV. ANNEXATION Whenever any of the County roads, rights-of-way or other county property as designated in this franchise,by reason of the subsequent incorporation of any town or city,or extension of the limits of any town or city, shall fall within the city or town limits and shall by operation of law or otherwise terminate in respect to the said roads,rights-of-way or other county property so included with city or town limits; this franchise shall continue in force and effect to all county roads, rights-of-way or other county property not so included in city or town limits. XVI. REVOCATION/REMEDIES A. Revocation. In addition the right to revoke this franchise as set forth in Title 12 of the Mason County Code, if the Franchisee shall willfully violate, or fail to comply with any of the provisions of this franchise through willful or unreasonable neglect or fail to heed or comply with any notice given the Franchisee under the provision of this grant, then Franchisee shall forfeit all rights conferred hereunder and this franchise may be revoked or annulled,after a public hearing by the Board of County Commissioners. The Franchisee shall not be relieved of any of its obligations to comply promptly with any provision of this franchise by reason of any failure of the County to enforce prompt compliance,and the County's failure to enforce shall not constitute a waiver of rights or acquiescence in the Licensee's conduct. 14 Subject to the required consent, adjudication, permission or authorization of a federal or state regulatory agency with jurisdiction over the subject matter, upon revocation of the franchise, the County may require the Franchisee to remove its utility facilities from any road rights-of-way, and restore such road right-of-way to its same or better condition as existed just prior to such removal,or de-commission and abandon such utility facilities in place in whole or in part and in a manner approved by the County Board of Commissioners. If the Franchisee fails to remove utility facilities that the County requires it to remove,the County may perform the work and collect the cost thereof from the Franchisee. The actual cost thereof,including direct and indirect administrative costs,shall be a lien upon all utility facilities of the Franchisee within the franchise Area effective upon filing of the lien with the Mason County Auditor. B. Remedies. The County has the right to exercise any and all of the following remedies, singly or in combination,in the event of Default. "Default"shall mean any failure of Franchisee or its agents to keep,observe,or perform any of Franchisee's or its agent's duties or obligations under this franchise: 1. Damages. Franchisee shall be liable for any and all damages incurred by County. 2. Specific Performance. County shall be entitled to specific performance of each and every obligation of Franchisee under this franchise without any requirement to prove or establish that County does not have an adequate remedy at law. Franchisee hereby waives the requirement of any such proof and acknowledges that County would not have an adequate remedy at law for Franchisee's commission of an Event of Default hereunder. 3. Injunction. County shall be entitled to restrain, by injunction, the actual or threatened commission or attempt of an Event of Default and to obtain a judgment or order specifically prohibiting a violation or breach of this Agreement without, in either case, being required to prove or establish that County does not have an adequate remedy at law. Franchisee hereby waives the requirement of any such proof and acknowledges that County would not have an adequate remedy at law for Franchisee's commission of an Event of Default hereunder. 4. Alternative Remedies. Neither the existence of other remedies identified in this franchise nor the exercise thereof shall be deemed to bar or otherwise limit the right of the County to commence an action for equitable or other relief, and/or proceed against Franchisee and any guarantor for all direct monetary damages, costs and expenses arising from the Default and to recover all such damages, costs and expenses, including reasonable attorneys' fees. Remedies are cumulative; the exercise of one shall not foreclose the exercise of others. XVII. SUBSEQUENT ACTION In the event that after this franchise becomes effective, (a) there is a change in the law which broadens the authority of the County of Mason or the Franchisee with respect to any act permitted or authorized under this franchise; or (b) the County of Mason or the Franchisee believe that 15 amendments to this franchise are necessary or appropriate, then the County of Mason and the Franchisee agree to enter into good faith negotiations to amend this franchise so as to enable the Parties to address, in a manner reasonably acceptable to all Parties, such change or other development which formed the basis for the negotiations. The Parties recognize that the purpose of the negotiations would be to preserve, to the maximum extent consistent with law, the scope and purpose of this franchise. Mason County reserves for itself the right at any time upon ninety(90) days written notice to the Franchisee, to so change, amend, modify or amplify any of the provisions or conditions herein enumerated to conform to any state statute or county regulation,relating to the public welfare,health, safety or highway regulation,as may hereafter be enacted,adopted or promulgated and this franchise may be terminated at such time a public hearing is held by the Board of County Commissioners,and the Franchisee's utility facilities are found not to be operated or maintained in accordance with such statute or regulation. XVIII. ACCEPTANCE Franchisee shall execute and return to the County of Mason a signed acceptance of the franchise granted hereunder. The acceptance shall be in the form of the acceptance attached hereto as Exhibit "A", and in accepting the franchise, Franchisee warrants that it has carefully read the terms and conditions of this franchise and accepts all of the terms and conditions of this franchise and agrees to abide by the same and acknowledges that it has relied upon its own investigation of all relevant facts, that it has had the assistance of counsel, that it was not induced to accept a franchise, that this franchise represents the entire agreement between the Franchisee and the County of Mason. In the event the Franchisee fails to submit the countersigned ordinance and acceptance as provided for herein within the time limits set forth in this section, the grant herein is and shall become null and void. XIX. MISCELLANEOUS PROVISIONS A. Controlling Law/Venue. Any disputes concerning the application or interpretation of any of the provisions of this franchise shall be governed by the laws of the State of Washington. Venue of any action or arbitration brought under this franchise shall be in Mason County,Washington or the Western District of Washington if an action is brought in federal court, provided, however, that venue of such action is legally proper. B. Liens. Franchisee shall promptly pay and discharge any and all liens arising out of any Work done, suffered or permitted to be done by Franchisee on any Franchise Area. C. Waiver. No waiver by either party of any provision of this franchise shall in any way impair the right of such party to enforce that provision for any subsequent breach, or County of Mason's right to enforce all other provisions of this franchise. 16 D. Attorney's Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this franchise, the substantially prevailing Party or Parties shall be entitled to reasonable attorney's fees,costs and necessary disbursements in addition to any other relief to which such Party or Parties may be entitled. E. Amendment. This franchise may be amended only by a written contract signed by authorized representatives of Franchisee and County of Mason. F. Severability. If any provision of this franchise is held to be illegal, invalid or unenforceable under present or future laws,such provision will be fully severable and this franchise will be construed and enforced as if such illegal, invalid or unenforceable provision is not a part hereof,and the remaining provisions hereof will remain in full force and effect. In lieu of any illegal, invalid or unenforceable provision herein, there will be added automatically as a part of this franchise; a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal,valid and enforceable. G. Joint and Several Liability. Franchisee acknowledges that, in any case in which Franchisee and Franchisee's Contractors are responsible under the terms of this franchise, such responsibility is joint and several as between Franchisee and any such Franchisee's Contractors; provided that,the Franchisee is not prohibited from allocating such liability as a matter of contract. H. Notices. Any notice contemplated, required, or permitted to be given under this franchise shall be sufficient if it is in writing and is sent either by: (a)registered or certified mail, return receipt requested;or(b)a nationally recognized overnight mail delivery service,to the Party and at the address specified below,except as such Party and address may be changed by providing notice to the other Party no less than thirty (30) days' advance written notice of such change in address. Franchisee: Erickson Lake Homeowners Association. 5981 NE Tahuya Blacksmith Road Belfair, WA 98528 Attn: Katherine Shank Grantor: County of Mason Public Works 100 Public Works Drive Shelton, WA 98584 I. Approvals. Nothing in this franchise shall be deemed to impose any duty or obligation upon the County of Mason to determine the adequacy or sufficiency of Franchisee's plans and specifications or to ascertain whether Franchisee's proposed or actual construction, testing, maintenance,repairs,replacement,relocation,adjustment or removal is adequate or sufficient or in 17 conformance with the plans and specifications reviewed by the County of Mason. No approval given, inspection made,review or supervision performed by the County of Mason pursuant to this franchise shall constitute or be construed as a representation or warranty express or implied by County of Mason that such item approved, inspected, or supervised, complies with laws, rules regulations or ordinances or this franchise or meets any particular standard,code or requirement,or is in conformance with the plans and specifications,and no liability shall attach with respect thereto. County and inspections as provided herein, are for the sole purpose of protecting the County of Mason's rights as the owner or manager of the road rights-of-way and shall not constitute any representation or warranty,express or implied,as to the adequacy of the design,construction,repair, or maintenance of the utility facilities, suitability of the Franchise Area for construction, maintenance,or repair of the utility facilities,or any obligation on the part of the County of Mason to insure that work or materials are in compliance with any requirements imposed by a governmental entity. County of Mason is under no obligation or duty to supervise the design, construction, installation, relocation, adjustment, realignment, maintenance, repair, or operation of the utility facilities. J. Force Majeure. Neither Party hereto shall be liable to the other Party for any failure to perform an obligation set forth herein to the extent such failure is caused by war,act of terrorism or an act of God, provided that such Party has made and is making all reasonable efforts to perform such obligation and minimize any and all resulting loss or damage. K. Construction. All pronouns and any variations thereof shall be deemed to refer to the masculine,feminine or neuter, singular or plural,as the identity of the Party or Parties may require. The provisions of this franchise shall be construed as a whole according to their common meaning, except where specifically defined herein,not strictly for or against any party and consistent with the provisions contained herein in order to achieve the objectives and purposes of this franchise. L. Incorporation by Reference. All exhibits annexed hereto at the time of execution of this franchise or in the future as contemplated herein, are hereby incorporated by reference as though fully set forth herein. M. Calculation of Time. All periods of time referred to herein shall include Saturdays, Sundays,and legal holidays in the State of Washington,except that if the last day of any period falls on any Saturday,Sunday,or legal holiday in the State of Washington,the period shall be extended to include the next day which is not a Saturday, Sunday, or legal holiday in the State of Washington. N. Entire Agreement. This franchise is the full and complete agreement of County of Mason and Franchisee with respect to all matters covered herein and all matters related to the use of the Franchise Area by Franchisee and Franchisee's Contractors,and this franchise supersedes any and all other agreements of the Parties hereto with respect to all such matters,including,without limitation, all agreements evidencing the franchise. O. No Recourse. Without limiting such immunities as the County or other persons may have 18 under applicable law,Franchisee shall have no monetary recourse whatsoever against the County or its officials, boards, commissions, agents, or employees for any loss or damage arising out of the County's exercising its authority pursuant to this Franchise or other applicable law. P. Responsibility for Costs. Except as expressly provided otherwise,any act that Franchisee is required to perform under this franchise shall be performed at its cost. If Franchisee fails to perform work that it is required to perform within the time provided for performance,the County may perform the work and bill the Franchisee. The Franchisee shall pay the amounts billed within 30 days. Q. Work of Contractors and Subcontractors. Work by contractors and subcontractors is subject to the same restrictions, limitations, and conditions as if the work was performed by the Franchisee. The Franchisee shall be responsible for all work performed by its contractors and subcontractors,and others performing work on its behalf,under its control,or under authority of its utility permit,as if the work were performed by it and shall ensure that all such work is performed in compliance with this franchise, Title 12 MCC, the Manual and other applicable law, and shall be jointly and severally liable for all damages and correcting all damage caused by them. It is the Franchisee's responsibility to ensure that contractors, subcontractors,or other Persons performing work on the Franchisee's behalf are familiar with the requirements of the franchise,Title 12 MCC, the Manual, and other applicable laws governing the work performed by them. R. Survival of Terms. Upon the expiration, termination, revocation or forfeiture of the franchise,the Franchisee shall no longer have the right to occupy the franchise area for the purpose of providing services authorized herein. However,the Franchisee's obligations under this franchise to the County shall survive the expiration, termination, revocation or forfeiture of these rights according to its terms for so long as the Franchisee's utility facilities shall remain in whole or in part in the road rights of way. By way of illustration and not limitation, Franchisee's obligations to indemnify, defend and hold harmless the County, provide insurance and a performance/payment bond pursuant to Section XI and Franchisee's obligation to relocate its utility facilities pursuant to Section VIII, shall continue in effect as to the Franchisee, notwithstanding any expiration, termination, revocation or forfeiture of the franchise, except to the extent that a County-approved transfer, sale,or assignment of the utility system is completed,and another entity has assumed full and complete responsibility for the utility system or for the relevant acts or omissions. S. Warranties. By acceptance of this franchise, Franchisee warrants: 1. That Franchisee has full right and authority to enter into and perform this Franchise in accordance with the terms hereof, and by entering into or performing this Franchise, Franchisee is not in violation of its charter or by-laws,or any law,regulation,or agreement by which it is bound or to which it is subject; and 2. That the execution,delivery,and performance of this Franchise by Franchisee has been duly authorized by all requisite Board/Commission action, that the signatories for Franchisee of the acceptance hereof are authorized to sign this Franchise,and that the joinder or consent of any other 19 party, including a court, trustee, or referee, is not necessary to make valid and effective the execution, delivery,and performance of this Franchise and acceptance. DATED at Shelton, Washington this day of 20_. BOARD OF COMMISSIONERS AP OVED: MASON COUNTY, WASHINGTON PE-.- County Engineer Chair Approve as to form: Vice Chair Chief D.P.A. Commissioner 20 Exhibit A ACCEPTANCE OF FRANCHISE Ordinance No. 115-06, effective November 14, 2006. I, V_ �am the and am the authorized representative to accept the above-referenced franchise on behalf of VN I certify th this franchise and all terms and conditions thereof are accepted by r , without qualification or reservation. ;///,A, DATED this A71_day of (2C �� , 20_1q. FRANCHISEE By: �� ^� L_CG A Its: `\_to CS f x-4C,',k\-Q J^i i-'%! S � Tax Id. No. — law 1-';�0 STATE OF 1 ) ss. COUNTY OF ) I certify that I know or have satisfactory evidence that �—is the person who appeared before me,and said person acknowledged that he/she signed this instrument,on oath stated that he/she w s authoriz d to execute he in trument and acknowledged it as the of the to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: Y' vN0,41 Z oiz PA PA g117p......�,'k111,,�� 11 Nota Public i10 X L �10T j� �y'�m�� Print e ' ' 00 '%�0 My coin fission expires ]X53 s,qo PUBL1G ti ojo` S ••. 1111��;WA y�•• A EXHIBIT B Description of Franchise Area N Erickson Lake o I U) Y +! I w W Z I � i 1 i r 1 � Erickson La 2 m \ W I W oo I W H + +1 Z 3 - B RECORDED AT THE REQUEST OF AND AFTER RECORDING RETURN TO: County of Mason 100 West Public Works Drive Shelton WA 98584 Attn: County Engineer Title: Erickson Lake Homeowners Association Franchise Agreement Grantor: COUNTY OF MASON,a legal subdivision of the state of Washington Grantee: ERICKSON LAKE HOMEOWNERS ASSOCIATION Description of Franchise Area: SEE EXHIBIT B MASON COUNTY AGENDA ITEM SUMMARY FORM TO: BOARD OF MASON COUNTY COMMISSIONERS From: Loretta Swanson, Director Action Agenda DEPARTMENT: Public Works EXT: 450 COMMISSION MEETING DATE: February 18, 2020 Agenda Item #)( . BRIEFING DATE: January 13, 2020 BRIEFING PRESENTED BY: Loretta Swanson and Diane Sheesley [] ITEM WAS NOT PREVIOUSLY BRIEFED WITH THE BOARD Please provide explanation of urgency: ITEM: Franchise Agreement Applications for Multiple Water Systems—Hearing BACKGROUND: This is the third in a series of"bundled"water system franchise agreement renewals. The agreements include updated franchise language with a provision for automatic renewal for up to three 10-year terms. The third set of water systems that have re-applied for franchise agreements and to be considered include: Beacon Point Community Club, Inc. Maggie Lake Water District Cedar View Tracts Merrimount Water System Harstine Island Estates Triton Head Water Association Lynnwood Community Beach Association Twanoh Tides Community Club BUDGET IMPACT: Applications are not considered "new"and applicants have paid $300 for each re-application or renewal of their respective franchises. RECOMMENDED ACTION: Recommend the Board approve the franchise agreement applications between Mason County and Beacon Point Community Club, Inc., Cedar View Tracts, Harstine Island Estates, Lynnwood Community Beach Association, Maggie Lake Water District, Merrimount Water System, Triton Head Water Association and Twanoh Tides Community Club, granting permission to run the utility lines under and across county road rights of way. Attachments: 1. Franchise Agreements IN THE MATTER OF THE APPLICATION OF Beacon Point Community Club Inc. FOR A FRANCHISE PERMIT TO CONSTRUCT, OPERATE, AND MAINTAIN Water System and Appurtenances UTILITY FACILITIES, OVER, ALONG AND UNDER COUNTY ROADS AND HIGHWAYS LOCATED IN MASON COUNTY, WASHINGTON Application of(Name of Operator)_Beacon Point Community Club Inc., doing business in Washington as Beacon Point Community Club Inc, with its principal offices located at Lillwaup, Wa 561 N Beacon Point Loop , by and through(person authorized to act for and on behalf of applicant)�Dayid Tucker , for a franchise to construct, operate and maintain (description of type) Water utility facilities in,over,along and under county roads and highways in Mason County,Washington,as set forth in attached Exhibit `B" (Franchise Area), having come on regularly for hearing before the County Commissioners of Mason County, Washington, on the day of , 20 , at the hour of , under the provisions of RCW 36.55, RCW 80.32.010 and RCW 80.36.040, and it appearing to the Board that notice of said hearing has been duly given as required by law, and that it is in the public interest to allow the franchise herein granted; NOW THEREFORE, IT IS ORDERED that a non-exclusive franchise be, and the same is hereby given and granted to Operator, and its successors and assigns, hereinafter referred to as the Franchisee, for a period of 10 years with automatic renewal at the end of each term of 10 years unless either party gives the other written notice of termination at least 30 days prior to the end of the relevant term. (no more than ten years each term and can only be renewed 3 times) from and after the date of the entry of this order for the purposes, at the location(s), and upon the express terms and conditions as described herein. I. DEFINITIONS For the purposes of this franchise,terms,phrases,words,and their derivations not defined herein that are defined in Title 12 of the Mason County Code or the Manual on Accommodating Utilities in the Mason County Right-of-Way published by the County Engineer(the"Manual"),shall have the same meaning or be interpreted as provided in Title 12 of the Mason County Code or the Manual. Words not defined here, in Title 12 of the Mason County Code or the Manual shall have their ordinary meaning. A reference to Title 12 of the Mason County Code or the Manual refers to the same as may be amended, revised, updated, re-enacted or re-codified from time to time. II. GRANT The County of Mason hereby grants to the Franchisee a non-exclusive franchise which, once it becomes effective shall authorize the Franchisee to enter upon the road rights-of-way located 1 within the Franchise Area identified in attached Exhibit`B", for the purpose of installing, constructing, maintaining,repairing,replacing, adjusting, relocating and operating the utility facilities,which grant shall be limited to the following described purpose(s): Water System and Appurtenances. Such grant is subject to and must be exercised in strict accordance with and subject to this franchise, Title 12 of the Mason County Code, the Manual and all applicable laws, rules, regulations and ordinances. Franchisee's exercise of any rights granted pursuant to the franchise is subject to the exercise of the County's police powers,and other regulatory powers as it may have or obtain in the future. No rights shall pass to the franchisee by implication. This franchise does not include permission to enter into or upon the road rights-of-way for any purposes others than the purposes expressly described herein. Permittee has a duty to notify the County of any change in use or condition of the utility facilities that may affect the status of the utility facilities or the impact of the utility facilities upon the road rights-of-way. III. UTILITY PERMIT REQUIRED Franchisee shall not commence or perform work(hereafter"Work")to install, construct,maintain repair, replace adjust, connect, disconnect, rebuild, or relocate its utility facilities within the road rights-of-way,without first applying for,paying all associated fees,and obtaining a utility permit as required pursuant to Title 12 of the Mason County Code. In any utility permit so issued,the County may impose,as a condition of the granting the utility permit,such conditions and regulations as may be necessary for the protection,preservation and management of the road rights-of-way,including, by way of example and not limitation, for the purpose of protecting any structures in the road rights-of-way, maintaining proper distance from other utilities, ensuring the proper restoration of such road rights-of-way and structures, and for the protection of the County and the public and the continuity of pedestrian and vehicular traffic. Franchisee shall first file with the County Engineer its application for a utility permit to do such Work together with plans and specifications in triplicate showing at a minimum: A.The position,depth and location of all such utility facilities sought to be constructed,laid, installed or erected at that time,showing their relative position to existing county roads,rights-of-way or other county property upon plans drawn to scale,hereinafter collectively referred to as the"map of definite location; B. The class and type of material and equipment to be used, manner of excavation, construction,installation,backfill,erection of temporary structures,erection of permanent structures, traffic control, traffic turnouts and road obstructions; C. The manner in which the utility facility is to be installed; D. Measures to be taken to preserve safe and free flow of traffic; 2 E. Structural integrity of the roadway,bridge, or other structure; F. Specifications for the restoration of the county road,right-of-way or other county property in the event that the road right of way will be disturbed by the Work; and G. Provision for ease of future road maintenance and appearance of the roadway. Provision shall be made for known or planned expansion of the utility facilities,particularly those located underground or attached to bridges or other structures within the road right-of-way. The location, alignment and depth of the utility facilities shall conform with said map of definite location, except in instances in which deviation may be allowed thereafter in writing by the County Engineer pursuant to application by Franchisee. All such Work shall be subject to the approval of and shall pass the inspection of the County Engineer.The Franchisee shall pay all costs of and expenses incurred in the examination,inspection and approval of such work on account of granting the said utility permits. IV. RESTORATION OF ROAD RIGHT OF WAY In any Work which disturbs or causes damage to the road rights-of-way subject to this franchise, public or private property, the Franchisee shall at its own expense and with all convenient speed, complete the work to repair and restore the county road right-of-way, or the public or private property so disturbed or damaged, and leave the same in as good or better condition as before the Work was commenced,to the reasonable satisfaction of the County Engineer. The Franchisee shall pay all costs of and expenses incurred in the examination, inspection and approval of such restoration or repair. The County Commissioners and/or County Engineer may at any time do,order or have done any and all work that they consider necessary to restore to a safe condition such County road right-of-way or other County property left by the Franchisee or its agents in a condition dangerous to life or property, and the Franchisee,upon demand, shall pay to the County all costs of such work. V. FRANCHISEE WORK IN RIGHT OF WAY Franchisee expressly agrees and understands that,with regard to Work within the road rights-of-way: A. All of Franchisee's utility facilities and Work within the road rights-of-way or other County property shall be in compliance with the provisions of Title 12 MCC, the Manual, the administrative regulations adopted by the County Engineer,other County established requirements for placement of utility facilities in road rights-of-way, including the specific location of utility facilities in the road rights-of-way, and all applicable laws, rules,regulations and ordinances; B. In preparing plans and specifications for Work of utility facilities in the road rights-of- 3 4 way the Franchisee shall use the Manual. Prior to commencement of work in the road rights-of-way, Franchisee shall submit such plans and specifications to the Mason County Engineer for review and approval together with adequate exhibits depicting existing or proposed location of the utility facility in relation to the road, including right-of-way or easement lines; relationship to currently planned road revisions,if applicable; and all locations and situations for which deviations in depth of cover (including the proposed method of protection) or other locational standards that are anticipated; C. All Work to utility facilities located within the road rights-of-way or other county property subject to this franchise shall be done in such a manner as not to interfere, other than in ways approved by the County, with the construction, operation and maintenance of other utilities, public or private, drains, drainage ditches and structures, irrigation ditches and structures, located therein,nor with the grading or improvements of such County roads,rights-of-way or other County property; D. The owners and operators of all utility facilities (public or private) installed in the Franchise Area or other county property prior in time to the utility facilities of the Franchisee,shall have preference as to the alignment and location of such utilities so installed with respect to the Franchisee. Such preference shall continue in the event of the necessity of relocating or changing the grade of any such county road or right-of-way; E. Franchisee shall perform the Work and operate its utility facilities in a manner that minimizes interference with the use of the road rights-of-way by others,including others that maybe installing utility facilities; and F. The County may require that Franchisee's utility facilities be installed at a particular time, at a specific place,or in a particular manner as a condition of access to a particular road right-of-way; may deny access if a Franchisee is not willing to comply with the County's requirements; and may remove, or require removal of, any utility facility that is not installed in compliance with the requirements established by the County,or which is installed without prior County approval of the time, place, or manner of installation and charge the Franchisee for all the costs associated with removal; and may require Franchisee to cooperate with others to minimize adverse impacts on the road rights-of-way through joint trenching and other arrangements. G. The County may inspect the utility facilities at any time reasonable under the circumstances to ensure compliance with this franchise and applicable law,including to ensure that the utility facilities are constructed and maintained in a safe condition. If an unsafe condition is found to exist,the County,in addition to taking any other action permitted under applicable law,may order the Franchisee, in writing, to make the necessary repairs and alterations specified therein forthwith to correct the unsafe condition on a time-table established by the County which is reasonable in light of the unsafe condition. The County has the right to correct,inspect,administer, and repair the unsafe condition if the Franchisee fails to do so, and to charge the Franchisee therefore. The right of the County to conduct such inspections and order or make repairs shall not be construed to create an obligation therefore,and such obligation to construct and maintain its utility 4 facilities in a safe condition shall at all times remain the sole obligation of the Franchisee. H. When required by the County,Franchisee shall make information available to the public regarding any work involving the ongoing installation,construction,adjustment,relocation,repair or maintenance of its utility facilities sufficient to show (1) the nature of the work being performed; (2) where it is being performed; (3) its estimated completion date; and(4)progress to completion. I. FRANCHISEE IS PLACED ON NOTICE THAT FIBER OPTIC,COMMUNICATIONS, POWER, CONTROL SYSTEMS, OTHER TYPES OF CABLES, AND PIPELINES MAY BE BURIED ON THE RIGHT OF WAY. Before beginning any underground work, Franchisee will contact the appropriate personnel to have such facilities located and make arrangements as to protective measures that must be adhered to prior to the commencement of any work within the Road rights-of-way. In addition to the liability terms elsewhere in this Agreement, Franchisee shall indemnify and hold the County and its elected and appointed officers, employees and agents harmless against and from all cost,liability,and expense whatsoever(including,without limitation, attorney's fees and court costs and expenses)arising out of or in any way contributed to by any act or omission of Franchisee,its contractor,agents and/or employees,that cause or in any way or degree contribute to (1) any damage to or destruction of any such facilities by Franchisee, and/or its contractor, agents and/or employees, on the County's property, (2) any injury to or death of any person employed by or on behalf of any entity,and/or its contractor,agents and/or employees,on the road rights-of-way, and/or(3) any claim or cause of action for alleged loss of profits or revenue,or loss of service, by a customer or user of services or products of such company(ies) (collectively "Liabilities" for purposes of this Section V.I). The only Liabilities with respect to which Franchisee's obligation to indemnify the County and its elected and appointed officers, employees and agents does not apply are Liabilities to the extent arising out of,caused by or resulting from the negligence of the County, and its elected and appointed officers, employees and agents and Liabilities that by law the County and its elected and appointed officers, employees and agents for which the County cannot be indemnified. J. Franchisee shall continuously be a member of the State of Washington one number locator service under RCW 19.122, or an approved equivalent, and shall comply with all such applicable rules and regulations. K. Except in the event of emergency as described below,Franchisee and its Agents may not enter upon the Franchise Area to perform work for which a utility permit is not required,unless and except upon two-business days notice to the County Engineer. L. In the event of an emergency involving the threat of imminent harm to persons or property,and for purposes of taking immediate corrective action,Franchisee and its agents may enter the Franchise Area without advance notice to the County as long as such entry is for the sole purpose of addressing the emergency; provided however, that if any entry for such purposes would require issuance of a utility permit,Franchisee shall give the County verbal or telephonic notice of the places where and the manner in which entry is required prior to such entry,promptly followed by written notice. In all cases,notice to the County shall be given as far in advance as practical prior to entry or as soon as practicable after entry upon the road right-of-Way. 5 M. Franchisee shall promptly reimburse the County for their reasonable and direct costs incurred in responding to an emergency that is caused, created by or attributable to the presence, construction,maintenance,repair,or operation of the Franchisees utility facilities in the road rights- of-way. N. If,during installation,construction,relocation,realignment,adjustment,maintenance,or repair of the Franchisee's utility facilities in the road rights-of-way,Franchisee or its agents discover scientific or historic artifacts,Franchisee shall immediately notify the County of said discovery and shall protect such artifacts in a manner as specified by the County. Any such artifact shall be the property of the County if the County wishes to own it. VI. PROTECTION OF PUBLIC All work done under this franchise shall be done in a thorough and workman-like manner. In the performance of Work within or near the road rights-of-way, including without limitation, the opening of trenches and the tunneling under county roads,rights-of way or other county property,the Franchisee shall leave such trenches, ditches and tunnels in such a way as to interfere as little as possible with public travel and shall take all due and necessary precautions to guard the same,so that damage or injury shall not occur or arise by reason of such Work; and where any of such trenches, ditches and tunnels are left open at night,the Franchisee shall place warning lights,barricades and other appropriate protective devices at such a position as to give adequate warning of such Work. The Franchisee shall be liable for any injury to person or persons or damage to property sustained arising out of its carelessness or neglect,or through any failure or neglect to properly guard or give warning of any trenches, ditches or tunnels dug or maintained by the Franchisee. VII. POLICE POWERS The County of Mason,in granting this franchise,does not waive any rights which it now has or may hereafter acquire with respect to county roads, rights-of-way or other county property and this franchise shall not be construed to deprive the county of any powers, rights or privileges which it now has or may hereafter acquire to regulate the use of and to control the county roads,rights-of-way and other county property covered by this franchise. The County retains the right to administer and regulate activities of the Franchisee up to the fullest extent of the law. The failure to reserve a particular right to regulate,or reference a particular regulation, shall not be interpreted by negative implication or otherwise to prevent the application of a regulation to the Franchisee. VIII. RELOCATION Franchisee shall, in the course of any Work, comply with the following requirements: A. The Franchisee shall, by a time specified by the County, protect, support, temporarily disconnect,relocate,or remove any of its utility facilities when required by the County by reason of traffic conditions;public safety;road right-of-way construction;road right-of-way repair(including 6 resurfacing or widening); change of road right-of-way grade; construction,installation,or repair of County-owned sewers,drains,water pipes,power lines,signal lines,tracks,communications system, other public work, public facility, or improvement of any government-owned utility; road right-of-way vacation;or for any other purpose where the County work involved would be aided by the removal or relocation of the utility facilities. Collectively, such matters are referred to below as the "public work." Franchisee acknowledges and understands that any delay by Franchisee in performing the herein described work may delay, hinder, or interfere with the work performed by the County and its contractors and subcontractors done in furtherance of such Public Work and result in damage to the County,including but not limited to,delay claims. Franchisee shall cooperate with the County and its contractors and subcontractors to coordinate such Franchisee work to accommodate the Public Work project and project schedules to avoid delay, hindrance of, or interference with the Public Work. The County of Mason shall make available to the Franchisee a copy of the Six Year Transportation Program and the County's annual construction program after adoption each year. It is anticipated these programs will aid the utility in planning construction programs. B. Franchisee has a duty to protect its utility facilities from work performed by the County within the road rights-of-way. The rights granted to the Franchisee herein do not preclude the County of Mason, its employees, contractors, subcontractors, and agents from blasting, grading, excavating, or doing other necessary road work contiguous to Franchisee's utility facilities; providing that, the Franchisee shall be given a minimum of forty-eight (48) hours notice of said blasting or other work in order that the Franchisee may protect its utility facilities. C. In the event of an emergency,or where the utility facility creates or is contributing to an imminent danger to health, safety, or property, the County may protect, support, temporarily disconnect,remove,or relocate any or all parts of the utility facility without prior notice,and charge the Franchisee for costs incurred. D. If any Person that is authorized to place facilities in the road right of way requests the Franchisee to protect, support,temporarily disconnect,remove, or relocate the Franchisee's utility facilities to accommodate the construction,operation,or repair of the facilities of such other person, the Franchisee shall,after 30 days'advance written notice,take action to effect the necessary changes requested;provided that,if such project is related to or competes with Franchisee's service,or if the effect of such changes would be to permanently deprive Franchisee of the beneficial enjoyment of this franchise for its intended purposes through interference with the operation of Franchisee's utility facilities or otherwise, Franchisee shall not be required to relocate its utility facilities. Unless the matter is governed by a valid contract or a state or federal law or regulation, or unless the Franchisee's utility facilities were not properly installed, the reasonable cost of the same shall be borne by the Person requesting the protection, support, temporary disconnection, removal, or relocation at no charge to the County, even if the County makes the request for such action. 7 E. The Franchisee shall, on the request of any person holding a valid permit issued by a governmental authority, temporarily raise or lower its wires to permit the moving of buildings or other objects. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same. The County of Mason will accept liability for direct and actual damages to said Franchisee that are the result of the negligence of Mason County, its trustees, officers, employees, contractors, subcontractors or agents while performing County improvement or Public Works projects enumerated in the original franchise agreement under Section VIII,paragraph B. Direct and actual damages are specifically limited to physical damage to properly installed and located infrastructure of the Franchisee and the cost to repair such physical damage. Mason County retains the right to assert all applicable defenses in the event of a dispute including contributory negligence on the part of the Franchisee. Mason County shall in no way be liable for incidental damages claimed to arise from such actions. All Work to be performed by the Franchisee under this section shall pass the inspection of the County Engineer. The Franchisee shall pay all costs of and expenses incurred in the examination, inspection and approval of such work. IX. PRESERVATION OF MONUMENTS/MARKERS Before any work is performed under this franchise which may affect any existing monuments or markers of any nature relating to subdivisions,plats,roads and all other surveys,the Franchisee shall reference all such monuments and markers. The reference points shall be so located that they will not be disturbed during the Franchisee's operations under this franchise. The method of referencing these monuments or other points to be referenced shall be approved by the County Engineer. The replacement of all such monuments or markers disturbed during construction shall be made as expeditiously as conditions permit,and as directed by the County Engineer. The cost of monuments or other markers lost, destroyed, or disturbed, and the expense of replacement by approved monuments shall be borne by the Franchisee. A complete set of reference notes for monument and other ties shall be filed with the office of the Mason County Engineer. X. VACATION OF ROAD RIGHT-OF-WAY If at any time the County shall vacate any County road,right-of-way or other County property which is subject to rights granted by this franchise and said vacation shall be for the purpose of acquiring the fee or other property interest in said road, right-of-way or other county property for the use of Mason County,in either its proprietary or governmental capacity,then the Board of Mason County Commissioners may, at its option, and by giving thirty(30) days written notice to the Franchisee, terminate this franchise with reference to such county road,right-of-way or other county property so vacated, and the County of Mason shall not be liable for any damages or loss to the Franchisee by reason of such termination. It has been the practice of Mason County to reserve easements for 8 utilities at the time of road vacation,and will continue to be the practice until such time the Board of Mason County Commissioners direct a change of practice. XI. FINANCIAL SECURITY A. Insurance Except as otherwise provided herein,Franchisee shall maintain for itself and the County,throughout the entire period any part of Franchisee's utility facilities are located in the Franchise Area, adequate insurance to protect the Parties and their elected and appointed officers, agents,employees against all of County's and Franchisee's liability arising out of Franchisee's use and occupancy of the Franchise Area or any part thereof. This obligation shall require the Franchisee to maintain insurance at least in the following amounts: 1. COMMERCIAL GENERAL LIABILITY insurance to cover liability, bodily injury, and property damage. The Commercial General Liability insurance shall be written on an occurrence basis, with an aggregate limit location endorsement for the Franchise Area, and shall provide coverage for any and all costs, including defense costs, and losses and damages resulting from personal injury, bodily injury and death, property damage, products liability and completed operations. Such insurance shall include blanket contractual coverage, including coverage for the Franchise as now or hereafter amended and specific coverage for the indemnity provisions set forth herein. Coverage must be written with the following limits of liability: Bodily and Personal Injury &Property Damage $ 1,000,000 per Occurrence $ 2,000,000 aggregate 2 WORKERS' COMPENSATION insurance shall be maintained to comply with statutory limits for all employees,and in the case any work is sublet,the Franchisee shall require its contractors and subcontractors similarly to provide workers' compensation insurance for all the employees. The Franchisee shall also maintain, during the life of this policy, employer's liability insurance;provided that this obligation shall not apply to any time period during which Franchisee has no employees. The following minimum limits must be maintained: Workers'Compensation Statutory Employer's Liability $ 1,000,000 each occurrence 3.COMPREHENSIVE AUTO LIABILITY insurance shall include owned,hired,and non-owned vehicles operated by Franchisee employees on an occurrence basis with coverage of at least$2,000,000 per occurrence. If the Franchisee, its contractors, or subcontractors do not have the required insurance,the County may require such entities to stop operations until the insurance is obtained and approved. Certificates of Insurance reflecting evidence of the required insurance and approved by the County's 9 Risk Manager for the GENERAL LIABILITY policies described above,shall be sent to the County's risk manager. The certificate shall be filed with the acceptance of the franchise, and annually thereafter,•and as provided below. All coverage shall be listed all on one certificate with the same expiration dates. The certificates shall contain a provision that coverages afforded under these policies will not be canceled until at least 30 days'prior written notice has been given to the County. In the event that the insurance certificate provided indicates that the insurance shall terminate or lapse during the period of the franchise,then, in that event,the Franchisee shall furnish, at least 30 days prior to the expiration of the date of such insurance,a renewed certificate of insurance as proof that equal and like coverage has been or will be obtained prior to any such lapse or termination during the balance of the period of the franchise. The County reserves the right, during the term of the franchise, to require any other insurance coverage or adjust the policy limits as it deems reasonably necessary utilizing sound risk management practices and principals based upon the loss exposures. Each insurance policy required pursuant to this franchise shall be primary and non-contributing as respects any coverage maintained by the County and shall include an endorsement reflecting the same. Any other coverage maintained by County shall be excess of this coverage herein defined as primary and shall not contribute with it. The certificate of insurance must reflect that the above wording is included in all such policies. Each insurance policy obtained pursuant to this franchise shall be issued by financially sound insurers who may lawfully do business in the State of Washington with a financial rating at all times during coverage of no less than rating of"A" and a class of"X" or better in the latest edition of "Best's Key Rating Guide"published by A.M.Best Company,or such other financial rating or rating guide approved in writing by the County's risk manager. In the event that at any time during coverage,the insurer does not meet the foregoing standards,Franchisee shall give prompt notice to the County and shall seek coverage from an insurer that meets the foregoing standards. The County reserves the right to change the rating or the rating guide depending upon the changed risks or availability of other suitable and reliable rating guides. Comprehensive general liability insurance policies and coverage obtained pursuant to this franchise shall include an endorsement(standard ISO form CG 24-17) deleting all exclusions for work or incidents occurring within any distance from a railroad track or railroad property, or on, over, or under a railroad track. Insurance policies required pursuant to this franchise shall have no non-standard exclusions unless approved of by the County Risk Manager or designee. Commercial general liability insurance policies obtained pursuant to this franchise shall name the 10 County as an additional insured without limitation,pursuant to an endorsement approved of by the County's Risk Manager or designee. Franchisee and Franchisee's Contractors' insurers, through policy endorsement, shall waive their rights of subrogation against the County for all claims and suits. The certificate of insurance must reflect this waiver of subrogation rights endorsement. Commercial General Liability Insurance policies and coverage required herein of public utility operators may include a reasonable deductible or self-insured retention;provided,however,that as to any Loss or Damage covered as provided herein, if Franchisee elects to include any deductible or self-insured retention,Franchisee shall itself directly cover,in lieu of insurance,any and all County liabilities that would otherwise in accordance with the provisions of this Franchise be covered by Franchisee's insurance if Franchisee elected not to include a deductible or self-insured retention. Such direct coverage by Franchisee shall be in an amount equal to the amount of Franchisee's actual deductible or self-insured retention. Franchisee shall be required to provide a certification of self- insurance retention to the county in a form and content acceptable to the county engineer. B. Performance/Payment Bond. At the same time Franchisee provides its acceptance of this Franchise, the Franchisee shall, if required by the County Engineer, provide a performance and payment bond to ensure the full and faithful performance of all of its responsibilities under this franchise and applicable rules, regulations and ordinances, including, by way of example,but not limited to,its obligations to relocate and remove its utility facilities,to restore the road rights-of-way and other property when damaged or disturbed, and to reimburse the County for its costs. The amount of the performance and payment bond shall be for ZERO ($0). The amount of the bond,or cash deposit as described below, may be adjusted by the County every five years from the date of execution of this franchise,to take into account cumulative inflation or increased risks to the County. The Franchisee may be required to obtain additional bonds in accordance with the County's ordinary practices. The bond shall be in a form with terms and conditions acceptable to the County and reviewed and approved by the County Engineer. The bond shall be with a surety with a rating no less than "A V in the latest edition of"Bests Key Rating Guide," published by A.M. Best Guide. The Franchisee shall pay all premiums or costs associated with maintaining the bond,and shall keep the same in full force and effect at all times.If Franchisee fails to provide or maintain the bond,then the County,in its sole discretion,may require Franchisee to substitute an equivalent cash deposit as described below in lieu of the bond. Franchisee, may at its election or upon order by the County, substitute an equivalent cash deposit instead of a performance and payment bond. This cash deposit shall ensure the full and faithful performance of all of Franchisee's responsibilities hereto under this Permit and all applicable laws, rules, regulations or ordinances. This includes, but is not limited to, its obligations to relocate or remove its facilities, restore the road rights-of-way and other property to their original condition, reimbursing the County for its costs, and keeping Franchisee's insurance in full force. The County shall notify Franchisee in writing, by certified mail, of any default and shall give 11 Franchisee thirty(30)days from the date of such notice to cure any such default. In the event that the Franchisee fails to cure such default to the satisfaction of the County,the County may,at its option, forfeit the entire amount of the cash deposit or draw upon the cash deposit up to the amount of the County's costs incurred to cure Franchisee's default. Upon the County's cure of Franchisee's default,the County shall notify Franchisee in writing of such cure. In the event that the County draws upon the cash deposit or forfeits the same, Franchisee shall thereupon replenish the cash deposit to the full amount as specified herein or provide a replacement performance and payment bond. Before any Work commences in the road right-of-way,the County Engineer may require the operator to provide a performance and payment bond for each separate project in an amount to be determined by the County Engineer, but not less than five hundred dollars, written by a surety company acceptable to the County Risk Manager and authorized to do business in the state of Washington. The purpose of the bond is to insure completion of construction, including the restoration of surfacing,slopes,slope treatment,topsoil,landscape treatment,and drainage facilities,and cleanup of rights-of-way, and payment of costs incurred by the County to enforce the requirements of this Chapter. The performance and payment bond shall be in place for a period ending not more than one year after the date of completion. A project specific performance bond shall not be required in the event that the franchisee has in place a blanket performance bond and, when required, a payment bond, maintained pursuant to the requirements of this franchise. A performance and payment bond for work in the road right-of-way will not be required of the United States Government or any of its agencies or of any municipal corporation or department of the state of Washington and its local subdivisions. C. Limitation of Liability. To the fullest extent permitted by law,the Franchisee shall,and shall cause its contractor(s) to release, indemnify, defend and hold harmless the county and the county's legal representatives,officer(elected or), appointed)employees and agents(collectively, "indemnitees") for, from and against any and all claims, liabilities,fines,penalties, cost, damages, losses, liens, causes of action, suits, demands, judgments and expenses (including, without limitations, court costs, attorneys' fees and costs of investigation, removal and remediation and governmental oversight costs),Environmental or otherwise(collectively"liabilities")of any nature, kind, or description, of any person or entity,directly or indirectly,arising out of,resulting from,or related to (in whole or in part): 1. this franchise; 2. any rights or interests granted pursuant to this franchise; 3. franchisee's occupation and use of the road right of way; 12 4. franchisee's operation of its utility facilities; 5. the presence of utility facilities within the right of way; 6. the environmental condition and status of the road right-of-way caused by, aggravated by, or contributed to, in whole or in part,by franchisee or its agents; or 7. The acts, errors,or omissions of third parties when arising out of the installation, construction,adjustment,relocation,replacement,removal,or maintenance of such third party utility facilities within the road rights-of-way when such work is performed under authority of the operator's utility permit or at the direction or under the control of the operator; or 8. any act or omission of franchisee or franchisee's agents; The only liabilities with respect to which franchisee's obligation to indemnify the indemnitees do not apply are liabilities to the extent arising out of, caused by or resulting from the negligence of the county, its officers, agents, employees or contractors and liabilities that by law the indemnities cannon be indemnified for. Upon written notice from the county,franchisee agrees to assume the defense of any lawsuit or other proceeding brought against any indemnitee by any entity, relating to any matter covered by this franchise for which franchisee has an obligation to assume liability for and/or save and hold harmless any indemnitee.Franchisee shall pay all cost incident to such defense,including,but not limited to, attorneys' fees,investigators'fees,litigation and appeal expenses,settlement payments and amounts paid in satisfaction of judgments. Franchisee will fully satisfy said judgment within ninety(90)days after said suit or action shall have finally been determined if determined adversely to Mason County. Upon the Franchisee's failure to satisfy said judgment within the ninety (90) day period, this franchise shall at once cease and terminate. Acceptance by the County of any Work performed by the Franchisee at the time of completion shall not be grounds for avoidance of this covenant. XII. FRANCHISE NONEXCLUSIVE This franchise shall not be deemed to be an exclusive franchise. It shall in no manner prohibit the County of Mason from granting other utilities under,along,across,over and upon any of the County roads,rights-of-way or other County property subject to this franchise and shall in no way prevent or prohibit the County of Mason from constructing, altering,maintaining or using any of said roads, rights-of-way,drainage structures or facilities,irrigation structures or facilities,or any other county property or affect its jurisdiction over them or any part of them with full power to make all necessary changes, relocations, repairs,maintenance, etc.,the same as the county may deem fit. 13 XIII. SUCCESSORS AND ASSIGNS All the provisions,conditions,regulations and requirements herein contained shall be binding upon the successors and assigns of the Franchisee,and all privileges,as well as all obligations and liability of the Franchisee, shall ensure to its successors and assigns equally as if they were specifically mentioned wherever the Franchisee is mentioned. Any reference in this franchise to a specifically named party shall be deemed to apply to any successor, heir, administrator, executor or assign of such party who has acquired its interest in compliance with the terms of this franchise,or under law. XIV. TRANSFER/ASSIGNMENT Franchisee may assign or transfer this franchise after prior written notice to County of Mason and assignee's written commitment,in a form and content approved by the County Prosecutor,delivered to County of Mason,that assignees shall thereafter be responsible for all obligations of Franchisee with respect to the franchise and guaranteeing performance under the terms and conditions of the franchise and that transferee will be bound by all the conditions of the franchise and will assume all the obligations of its predecessor. Such an assignment shall relieve the Franchisee of any further obligations under the franchise, including any obligations not fulfilled by Franchisee's assignee; provided that,the assignment shall not in any respect relieve the Franchisee,or any of its successors in interest,of responsibility for acts or omissions,known or unknown,or the consequences thereof, which acts or omissions occur prior to the time of the assignment. No franchise or master road use permit may be assigned or transferred without filing or establishing with the county the insurance certificates and performance bond as required pursuant to this franchise. XV. ANNEXATION Whenever any of the County roads, rights-of-way or other county property as designated in this franchise,by reason of the subsequent incorporation of any town or city,or extension of the limits of any town or city, shall fall within the city or town limits and shall by operation of law or otherwise terminate in respect to the said roads,rights-of-way or other county property so included with city or town limits; this franchise shall continue in force and effect to all county roads, rights-of-way or other county property not so included in city or town limits. XVI. REVOCATION/REMEDIES A. Revocation. In addition the right to revoke this franchise as set forth in Title 12 of the Mason County Code, if the Franchisee shall willfully violate, or fail to comply with any of the provisions of this franchise through willful or unreasonable neglect or fail to heed or comply with any notice given the Franchisee under the provision of this grant, then Franchisee shall forfeit all rights conferred hereunder and this franchise may be revoked or annulled, after a public hearing by the Board of County Commissioners. The Franchisee shall not be relieved of any of its obligations to comply promptly with any provision of this franchise by reason of any failure of the County to enforce prompt compliance,and the County's failure to enforce shall not constitute a waiver of rights 14 or acquiescence in the Licensee's conduct. Subject to the required consent, adjudication, permission or authorization of a federal or state regulatory agency with jurisdiction over the subject matter, upon revocation of the franchise, the County may require the Franchisee to remove its utility facilities from any road rights-of-way,and restore such road right-of-way to its same or better condition as existed just prior to such removal,or de-commission and abandon such utility facilities in place in whole or in part and in a manner approved by the County Board of Commissioners. If the Franchisee fails to remove utility facilities that the County requires it to remove,the County may perform the work and collect the cost thereof from the Franchisee. The actual cost thereof,including direct and indirect administrative costs,shall be a lien upon all utility facilities of the Franchisee within the franchise Area effective upon filing of the lien with the Mason County Auditor. B. Remedies. The County has the right to exercise any and all of the following remedies, singly or in combination,in the event of Default. "Default"shall mean any failure of Franchisee or its agents to keep,observe,or perform any of Franchisee's or its agent's duties or obligations under this franchise: 1. Damages. Franchisee shall be liable for any and all damages incurred by County. 2. Specific Performance. County shall be entitled to specific performance of each and every obligation of Franchisee under this franchise without any requirement to prove or establish that County does not have an adequate remedy at law. Franchisee hereby waives the requirement of any such proof and acknowledges that County would not have an adequate remedy at law for Franchisee's commission of an Event of Default hereunder. 3. Injunction. County shall be entitled to restrain, by injunction, the actual or threatened commission or attempt of an Event of Default and to obtain a judgment or order specifically prohibiting a violation or breach of this Agreement without, in either case, being required to prove or establish that County does not have an adequate remedy at law. Franchisee hereby waives the requirement of any such proof and acknowledges that County would not have an adequate remedy at law for Franchisee's commission of an Event of Default hereunder. 4. Alternative Remedies. Neither the existence of other remedies identified in this franchise nor the exercise thereof shall be deemed to bar or otherwise limit the right of the County to commence an action for equitable or other relief, and/or proceed against Franchisee and any guarantor for all direct monetary damages, costs and expenses arising from the Default and to recover all such damages, costs and expenses, including reasonable attorneys' fees. Remedies are cumulative; the exercise of one shall not foreclose the exercise of others. XVII. SUBSEQUENT ACTION In the event that after this franchise becomes effective, (a) there is a change in the law which 15 broadens the authority of the County of Mason or the Franchisee with respect to any act permitted or authorized under this franchise; or (b)the County of Mason or the Franchisee believe that amendments to this franchise are necessary or appropriate, then the County of Mason and the Franchisee agree to enter into good faith negotiations to amend this franchise so as to enable the Parties to address, in a manner reasonably acceptable to all Parties, such change or other development which formed the basis for the negotiations. The Parties recognize that the purpose of the negotiations would be to preserve, to the maximum extent consistent with law, the scope and purpose of this franchise. Mason County reserves for itself the right at any time upon ninety(90) days written notice to the Franchisee, to so change, amend, modify or amplify any of the provisions or conditions herein enumerated to conform to any state statute or county regulation,relating to the public welfare,health, safety or highway regulation,as may hereafter be enacted,adopted or promulgated and this franchise may be terminated at such time a public hearing is held by the Board of County Commissioners,and the Franchisee's utility facilities are found not to be operated or maintained in accordance with such statute or regulation. XVIII. ACCEPTANCE Franchisee shall execute and return to the County of Mason a signed acceptance of the franchise granted hereunder. The acceptance shall be in the form of the acceptance attached hereto as Exhibit "A", and in accepting the franchise, Franchisee warrants that it has carefully read the terms and conditions of this franchise and accepts all of the terms and conditions of this franchise and agrees to abide by the same and acknowledges that it has relied upon its own investigation of all relevant facts, that it has had the assistance of counsel, that it was not induced to accept a franchise, that this franchise represents the entire agreement between the Franchisee and the County of Mason. In the event the Franchisee fails to submit the countersigned ordinance and acceptance as provided for herein within the time limits set forth in this section,the grant herein is and shall become null and void. XIX. MISCELLANEOUS PROVISIONS A. Controlling Law/Venue. Any disputes concerning the application or interpretation of any of the provisions of this franchise shall be governed by the laws of the State of Washington. Venue of any action or arbitration brought under this franchise shall be in Mason County,Washington or the Western District of Washington if an action is brought in federal court, provided, however, that venue of such action is legally proper. B. Liens. Franchisee shall promptly pay and discharge any and all liens arising out of any Work done, suffered or permitted to be done by Franchisee on any Franchise Area. C. Waiver. No waiver by either party of any provision of this franchise shall in any way impair the right of such party to enforce that provision for any subsequent breach, or County of 16 Mason's right to enforce all other provisions of this franchise. D. Attorney's Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this franchise, the substantially prevailing Party or Parties shall be entitled to reasonable attorney's fees,costs and necessary disbursements in addition to any other relief to which such Party or Parties may be entitled. E. Amendment. This franchise may be amended only by a written contract signed by authorized representatives of Franchisee and County of Mason. F. Severability. If any provision of this franchise is held to be illegal, invalid or unenforceable under present or future laws,such provision will be fully severable and this franchise will be construed and enforced as if such illegal, invalid or unenforceable provision is not a part hereof,and the remaining provisions hereof will remain in full force and effect. In lieu of any illegal, invalid or unenforceable provision herein, there will be added automatically as a part of this franchise; a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable. G. Joint and Several Liability. Franchisee acknowledges that, in any case in which Franchisee and Franchisee's Contractors are responsible under the terms of this franchise, such responsibility is joint and several as between Franchisee and any such Franchisee's Contractors; provided that,the Franchisee is not prohibited from allocating such liability as a matter of contract. H. Notices. Any notice contemplated, required, or permitted to be given under this franchise shall be sufficient if it is in writing and is sent either by: (a)registered or certified mail, return receipt requested;or(b)a nationally recognized overnight mail delivery service,to the Party and at the address specified below, except as such Party and address may be changed by providing notice to the other Party no less than thirty (30) days' advance written notice of such change in address. Franchisee: Beacon Point Community Club, INC. 561 N Beacon Point Community. Inc Lilliwaup, WA 98555 Attn: Grantor: County of Mason Public Works 100 Public Works Drive Shelton,WA 98584 1. Approvals. Nothing in this franchise shall be deemed to impose any duty or obligation upon the County of Mason to determine the adequacy or sufficiency of Franchisee's plans and specifications or to ascertain whether Franchisee's proposed or actual construction, testing, 17 maintenance,repairs,replacement,relocation,adjustment or removal is adequate or sufficient or in conformance with the plans and specifications reviewed by the County of Mason. No approval given, inspection made, review or supervision performed by the County of Mason pursuant to this franchise shall constitute or be construed as a representation or warranty express or implied by County of Mason that such item approved, inspected, or supervised, complies with laws, rules regulations or ordinances or this franchise or meets any particular standard,code or requirement,or is in conformance with the plans and specifications,and no liability shall attach with respect thereto. County and inspections as provided herein, are for the sole purpose of protecting the County of Mason's rights as the owner or manager of the road rights-of-way and shall not constitute any representation or warranty,express or implied,as to the adequacy of the design,construction,repair, or maintenance of the utility facilities, suitability of the Franchise Area for construction, maintenance,or repair of the utility facilities,or any obligation on the part of the County of Mason to insure that work or materials are in compliance with any requirements imposed by a governmental entity. County of Mason is under no obligation or duty to supervise the design, construction, installation, relocation, adjustment, realignment, maintenance, repair, or operation of the utility facilities. J. Force Majeure. Neither Party hereto shall be liable to the other Party for any failure to perform an obligation set forth herein to the extent such failure is caused by war,act of terrorism or an act of God, provided that such Party has made and is making all reasonable efforts to perform such obligation and minimize any and all resulting loss or damage. K. Construction. All pronouns and any variations thereof shall be deemed to refer to the masculine,feminine or neuter, singular or plural,as the identity of the Party or Parties may require. The provisions of this franchise shall be construed as a whole according to their common meaning, except where specifically defined herein,not strictly for or against any party and consistent with the provisions contained herein in order to achieve the objectives and purposes of this franchise. L. Incorporation by Reference. All exhibits annexed hereto at the time of execution of this franchise or in the future as contemplated herein, are hereby incorporated by reference as though fully set forth herein. M. Calculation of Time. All periods of time referred to herein shall include Saturdays, Sundays,and legal holidays in the State of Washington,except that if the last day of any period falls on any Saturday,Sunday,or legal holiday in the State of Washington,the period shall be extended to include the next day which is not a Saturday, Sunday, or legal holiday in the State of Washington. N. Entire Agreement. This franchise is the full and complete agreement of County of Mason and Franchisee with respect to all matters covered herein and all matters related to the use of the Franchise Area by Franchisee and Franchisee's Contractors,and this franchise supersedes any and all other agreements of the Parties hereto with respect to all such matters,including,without limitation, all agreements evidencing the franchise. 18 O. No Recourse. Without limiting such immunities as the County or other persons may have under applicable law,Franchisee shall have no monetary recourse whatsoever against the County or its officials, boards, commissions, agents, or employees for any loss or damage arising out of the County's exercising its authority pursuant to this Franchise or other applicable law. P. Responsibility for Costs. Except as expressly provided otherwise,any act that Franchisee is required to perform under this franchise shall be performed at its cost. If Franchisee fails to perform work that it is required to perform within the time provided for performance, the County may perform the work and bill the Franchisee. The Franchisee shall pay the amounts billed within 30 days. Q. Work of Contractors and Subcontractors. Work by contractors and subcontractors is subject to the same restrictions, limitations, and conditions as if the work was performed by the Franchisee. The Franchisee shall be responsible for all work performed by its contractors and subcontractors,and others performing work on its behalf,under its control,or under authority of its utility permit,as if the work were performed by it and shall ensure that all such work is performed in compliance with this franchise, Title 12 MCC, the Manual and other applicable law, and shall be jointly and severally liable for all damages and correcting all damage caused by them. It is the Franchisee's responsibility to ensure that contractors, subcontractors, or other Persons performing work on the Franchisee's behalf are familiar with the requirements of the franchise,Title 12 MCC, the Manual, and other applicable laws governing the work performed by them. R. Survival of Terms. Upon the expiration, termination, revocation or forfeiture of the franchise,the Franchisee shall no longer have the right to occupy the franchise area for the purpose of providing services authorized herein. However,the Franchisee's obligations under this franchise to the County shall survive the expiration, termination, revocation or forfeiture of these rights according to its terms for so long as the Franchisee's utility facilities shall remain in whole or in part in the road rights of way. By way of illustration and not limitation, Franchisee's obligations to indemnify, defend and hold harmless the County, provide insurance and a performance/payment bond pursuant to Section XI and Franchisee's obligation to relocate its utility facilities pursuant to Section VIII, shall continue in effect as to the Franchisee, notwithstanding any expiration, termination, revocation or forfeiture of the franchise, except to the extent that a County-approved transfer, sale,or assignment of the utility system is completed, and another entity has assumed full and complete responsibility for the utility system or for the relevant acts or omissions. S. Warranties. By acceptance of this franchise, Franchisee warrants: 1. That Franchisee has full right and authority to enter into and perform this Franchise in accordance with the terms hereof, and by entering into or performing this Franchise, Franchisee is not in violation of its charter or by-laws,or any law,regulation,or agreement by which it is bound or to which it is subject; and 2. That the execution,delivery,and performance of this Franchise by Franchisee has been duly authorized by all requisite Board/Commission action, that the signatories for Franchisee of the 19 acceptance hereof are authorized to sign this Franchise,and that the joinder or consent of any other party, including a court, trustee, or referee, is not necessary to make valid and effective the execution, delivery, and performance of this Franchise and acceptance. DATED at Shelton, Washington this day of 20_. BOARD OF COMMISSIONERS APP VED: MASON COUNTY, WASHINGTON �. d P, County Engineer Chair Approve as to form: Vice Chair Chief D.P.A. Commissioner 20 Exhibit A ACCEPTANCE OF FRANCHISE Ordinance No. 115-06, effective November 14, 2006. I, q v i d -T V C.,t e,4,- , am the r`Gsi v4g6rof d Mco+r �O i►M%C v�� T.*'C' and am the authorized representative to accept the above-referenced franchise on behalf of �r4c.e,•, pa�n� G� ;T y climb i KC. I certify that this franchise and all terms and conditions thereof are accepted by �A�� , without qualification or reservation. DATED this 2!r-day of *G d"Wer , 20j_�. FRANCHISEE By: ��/ Its: 11 Tax Id. No. STATE OF * )ss. COUNTY OF I"t a 50.4 ) I certify that I know or have satisfactory evidence that is the pers;she who appeared before me,and said person acknowledged th a he signed this instrument,on oath stated th' was aAorized to xecute the instrument and acknowledged it as the C7 LJ re r of the C��.�ra �; } t W kze, S.4S �r to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: o Notary Publ�'r;� Notary Public Print Name fG. «i p - �r c: tate of Washington My commission expires 7 - a - Z PHILLIP D FRANKLIN COMMISSION EXPIRES JULY 10,2021 A EXHIBIT B Description of Franchise Area Beacon Point Development N i J Hood Canal B IN THE MATTER OF THE APPLICATION OF Cedar View Tracts FOR A FRANCHISE PERMIT TO CONSTRUCT, OPERATE, AND MAINTAIN Water System UTILITY FACILITIES, OVER,ALONG AND UNDER COUNTY ROADS AND HIGHWAYS LOCATED IN MASON COUNTY, WASHINGTON Application of(Name of operator) Cedar View Tracts, doing business in Washington as Cedar View Tracts , with its principal offices located at PO BOX 11, Belfair, WA 98528, by and through (person authorized to act for and on behalf of applicant) John Nester, for a franchise to construct, operate and maintain (description of type) water system utility facilities in,over,along and under county roads and highways in Mason County,Washington,as set forth in attached Exhibit `B" (Franchise Area), having come on regularly for hearing before the County Commissioners of Mason County, Washington, on the day of , 20 , at the hour of , under the provisions of RCW 36.55, RCW 80.32.010 and RCW 80.36.040, and it appearing to the Board that notice of said hearing has been duly given as required by law, and that it is in the public interest to allow the franchise herein granted; NOW THEREFORE,IT IS ORDERED that a non-exclusive franchise be, and the same is hereby given and granted to Operator, and its successors and assigns,hereinafter referred to as the Franchisee, for a period of 10 years with automatic renewal at the end of each term of 10 years unless either party gives the other written notice of termination at least 30 days prior to the end of the relevant term. (no more than ten years each term and can only be renewed 3 times) from and after the date of the entry of this order for the purposes, at the location(s), and upon the express terms and conditions as described herein. I. DEFINITIONS For the purposes of this franchise,terms,phrases,words,and their derivations not defined herein that are defined in Title 12 of the Mason County Code or the Manual on Accommodating Utilities in the Mason County Right-of-Way published by the County Engineer(the"Manual"),shall have the same meaning or be interpreted as provided in Title 12 of the Mason County Code or the Manual. Words not defined here, in Title 12 of the Mason County Code or the Manual shall have their ordinary meaning. A reference to Title 12 of the Mason County Code or the Manual refers to the same as may be amended, revised,updated, re-enacted or re-codified from time to time. II. GRANT The County of Mason hereby grants to the Franchisee a non-exclusive franchise which, once it becomes effective shall authorize the Franchisee to enter upon the road rights-of-way located 1 within the Franchise Area identified in attached Exhibit`B", for the purpose of installing, constructing,maintaining, repairing, replacing, adjusting,relocating and operating the utility facilities,which grant shall be limited to the following described purpose(s): Water System. Such grant is subject to and must be exercised in strict accordance with and subject to this franchise, Title 12 of the Mason County Code, the Manual and all applicable laws, rules, regulations and ordinances. Franchisee's exercise of any rights granted pursuant to the franchise is subject to the exercise of the County's police powers,and other regulatory powers as it may have or obtain in the future. No rights shall pass to the franchisee by implication. This franchise does not include permission to enter into or upon the road rights-of-way for any purposes others than the purposes expressly described herein. Permittee has a duty to notify the County of any change in use or condition of the utility facilities that may affect the status of the utility facilities or the impact of the utility facilities upon the road rights-of-way. III. UTILITY PERMIT REQUIRED Franchisee shall not commence or perform work(hereafter"Work")to install, construct,maintain repair, replace adjust, connect, disconnect, rebuild, or relocate its utility facilities within the road rights-of-way,without first applying for,paying all associated fees,and obtaining a utility permit as required pursuant to Title 12 of the Mason County Code. In any utility permit so issued,the County may impose,as a condition of the granting the utility permit,such conditions and regulations as may be necessary for the protection,preservation and management of the road rights-of-way,including, by way of example and not limitation, for the purpose of protecting any structures in the road rights-of-way, maintaining proper distance from other utilities, ensuring the proper restoration of such road rights-of-way and structures, and for the protection of the County and the public and the continuity of pedestrian and vehicular traffic. Franchisee shall first file with the County Engineer its application for a utility permit to do such Work together with plans and specifications in triplicate showing at a minimum: A. The position,depth and location of all such utility facilities sought to be constructed,laid, installed or erected at that time,showing their relative position to existing county roads,rights-of-way or other county property upon plans drawn to scale,hereinafter collectively referred to as the"map of definite location; B. The class and type of material and equipment to be used, manner of excavation, construction,installation,backfill,erection of temporary structures,erection of permanent structures, traffic control,traffic turnouts and road obstructions; C. The manner in which the utility facility is to be installed; D. Measures to be taken to preserve safe and free flow of traffic; 2 E. Structural integrity of the roadway, bridge, or other structure; F. Specifications for the restoration of the county road,right-of-way or other county property in the event that the road right of way will be disturbed by the Work; and G. Provision for ease of future road maintenance and appearance of the roadway. Provision shall be made for known or planned expansion of the utility facilities,particularly those located underground or attached to bridges or other structures within the road right-of-way. The location, alignment and depth of the utility facilities shall conform with said map of definite location,except in instances in which deviation may be allowed thereafter in writing by the County Engineer pursuant to application by Franchisee. All such Work shall be subject to the approval of and shall pass the inspection of the County Engineer.The Franchisee shall pay all costs of and expenses incurred in the examination,inspection and approval of such work on account of granting the said utility permits. IV. RESTORATION OF ROAD RIGHT OF WAY In any Work which disturbs or causes damage to the road rights-of-way subject to this franchise, public or private property, the Franchisee shall at its own expense and with all convenient speed, complete the work to repair and restore the county road right-of-way, or the public or private property so disturbed or damaged, and leave the same in as good or better condition as before the Work was commenced,to the reasonable satisfaction of the County Engineer. The Franchisee shall pay all costs of and expenses incurred in the examination, inspection and approval of such restoration or repair. The County Commissioners and/or County Engineer may at any time do,order or have done any and all work that they consider necessary to restore to a safe condition such County road right-of-way or other County property left by the Franchisee or its agents in a condition dangerous to life or property, and the Franchisee, upon demand, shall pay to the County all costs of such work. V. FRANCHISEE WORK IN RIGHT OF WAY Franchisee expressly agrees and understands that,with regard to Work within the road rights-of-way: A. All of Franchisee's utility facilities and Work within the road rights-of-way or other County property shall be in compliance with the provisions of Title 12 MCC, the Manual, the administrative regulations adopted by the County Engineer,other County established requirements for placement of utility facilities in road rights-of-way, including the specific location of utility facilities in the road rights-of-way, and all applicable laws, rules, regulations and ordinances; B. In preparing plans and specifications for Work of utility facilities in the road rights-of- 3 way the Franchisee shall use the Manual. Prior to commencement of work in the road rights-of-way, Franchisee shall submit such plans and specifications to the Mason County Engineer for review and approval together with adequate exhibits depicting existing or proposed location of the utility facility in relation to the road, including right-of-way or easement lines; relationship to currently planned road revisions,if applicable;and all locations and situations for which deviations in depth of cover (including the proposed method of protection) or other locational standards that are anticipated; C. All Work to utility facilities located within the road rights-of-way or other county property subject to this franchise shall be done in such a manner as not to interfere, other than in ways approved by the County, with the construction, operation and maintenance of other utilities, public or private, drains, drainage ditches and structures, irrigation ditches and structures, located therein,nor with the grading or improvements of such County roads,rights-of-way or other County property; D. The owners and operators of all utility facilities (public or private) installed in the Franchise Area or other county property prior in time to the utility facilities of the Franchisee,shall have preference as to the alignment and location of such utilities so installed with respect to the Franchisee. Such preference shall continue in the event of the necessity of relocating or changing the grade of any such county road or right-of-way; E. Franchisee shall perform the Work and operate its utility facilities in a manner that minimizes interference with the use of the road rights-of-way by others,including others that may be installing utility facilities; and F. The County may require that Franchisee's utility facilities be installed at a particular time, at a specific place,or in a particular manner as a condition of access to a particular road right-of-way; may deny access if a Franchisee is not willing to comply with the County's requirements; and may remove, or require removal of, any utility facility that is not installed in compliance with the requirements established by the County,or which is installed without prior County approval of the time, place, or manner of installation and charge the Franchisee for all the costs associated with removal; and may require Franchisee to cooperate with others to minimize adverse impacts on the road rights-of-way through joint trenching and other arrangements. G. The County may inspect the utility facilities at any time reasonable under the circumstances to ensure compliance with this franchise and applicable law,including to ensure that the utility facilities are constructed and maintained in a safe condition. If an unsafe condition is found to exist,the County,in addition to taking any other action permitted under applicable law,may order the Franchisee, in writing, to make the necessary repairs and alterations specified therein forthwith to correct the unsafe condition on a time-table established by the County which is reasonable in light of the unsafe condition. The County has the right to correct,inspect,administer, and repair the unsafe condition if the Franchisee fails to do so, and to charge the Franchisee therefore. The right of the County to conduct such inspections and order or make repairs shall not be construed to create an obligation therefore,and such obligation to construct and maintain its utility 4 facilities in a safe condition shall at all times remain the sole obligation of the Franchisee. H. When required by the County,Franchisee shall make information available to the public regarding any work involving the ongoing installation,construction,adjustment,relocation,repair or maintenance of its utility facilities sufficient to show(1)the nature of the work being performed; (2)where it is being performed; (3) its estimated completion date; and(4)progress to completion. I. FRANCHISEE IS PLACED ON NOTICE THAT FIBER OPTIC,COMMUNICATIONS, POWER, CONTROL SYSTEMS, OTHER TYPES OF CABLES, AND PIPELINES MAY BE BURIED ON THE RIGHT OF WAY. Before beginning any underground work, Franchisee will contact the appropriate personnel to have such facilities located and make arrangements as to protective measures that must be adhered to prior to the commencement of any work within the Road rights-of-way. In addition to the liability terms elsewhere in this Agreement, Franchisee shall indemnify and hold the County and its elected and appointed officers, employees and agents harmless against and from all cost,liability,and expense whatsoever(including,without limitation, attorney's fees and court costs and expenses)arising out of or in any way contributed to by any act or omission of Franchisee,its contractor,agents and/or employees,that cause or in any way or degree contribute to (1)any damage to or destruction of any such facilities by Franchisee, and/or its contractor, agents and/or employees, on the County's property, (2)any injury to or death of any person employed by or on behalf of any entity,and/or its contractor,agents and/or employees,on the road rights-of-way,and/or(3)any claim or cause of action for alleged loss of profits or revenue,or loss of service, by a customer or user of services or products of such company(ies) (collectively "Liabilities" for purposes of this Section V.I). The only Liabilities with respect to which Franchisee's obligation to indemnify the County and its elected and appointed officers,employees and agents does not apply are Liabilities to the extent arising out of,caused by or resulting from the negligence of the County, and its elected and appointed officers, employees and agents and Liabilities that by law the County and its elected and appointed officers,employees and agents for which the County cannot be indemnified. J. Franchisee shall continuously be a member of the State of Washington one number locator service under RCW 19.122, or an approved equivalent, and shall comply with all such applicable rules and regulations. K. Except in the event of emergency as described below,Franchisee and its Agents may not enter upon the Franchise Area to perform work for which a utility permit is not required,unless and except upon two-business days notice to the County Engineer. L. In the event of an emergency involving the threat of imminent harm to persons or property,and for purposes of taking immediate corrective action,Franchisee and its agents may enter the Franchise Area without advance notice to the County as long as such entry is for the sole purpose of addressing the emergency; provided however,that if any entry for such purposes would require issuance of a utility permit,Franchisee shall give the County verbal or telephonic notice of the places where and the manner in which entry is required prior to such entry,promptly followed by written notice. In all cases,notice to the County shall be given as far in advance as practical prior to entry or as soon as practicable after entry upon the road right-of-Way. 5 M. Franchisee shall promptly reimburse the County for their reasonable and direct costs incurred in responding to an emergency that is caused, created by or attributable to the presence, construction,maintenance,repair,or operation of the Franchisees utility facilities in the road rights- of-way. N. If,during installation,construction,relocation,realignment,adjustment,maintenance,or repair of the Franchisee's utility facilities in the road rights-of-way,Franchisee or its agents discover scientific or historic artifacts,Franchisee shall immediately notify the County of said discovery and shall protect such artifacts in a manner as specified by the County. Any such artifact shall be the property of the County if the County wishes to own it. VI. PROTECTION OF PUBLIC All work done under this franchise shall be done in a thorough and workman-like manner. In the performance of Work within or near the road rights-of-way, including without limitation, the opening of trenches and the tunneling under county roads,rights-of way or other county property,the Franchisee shall leave such trenches, ditches and tunnels in such a way as to interfere as little as possible with public travel and shall take all due and necessary precautions to guard the same,so that damage or injury shall not occur or arise by reason of such Work; and where any of such trenches, ditches and tunnels are left open at night,the Franchisee shall place warning lights,barricades and other appropriate protective devices at such a position as to give adequate warning of such Work. The Franchisee shall be liable for any injury to person or persons or damage to property sustained arising out of its carelessness or neglect,or through any failure or neglect to properly guard or give warning of any trenches,ditches or tunnels dug or maintained by the Franchisee. VII. POLICE POWERS The County of Mason,in granting this franchise,does not waive any rights which it now has or may hereafter acquire with respect to county roads, rights-of-way or other county property and this franchise shall not be construed to deprive the county of any powers, rights or privileges which it now has or may hereafter acquire to regulate the use of and to control the county roads,rights-of-way and other county property covered by this franchise. The County retains the right to administer and regulate activities of the Franchisee up to the fullest extent of the law. The failure to reserve a particular right to regulate,or reference a particular regulation, shall not be interpreted by negative implication or otherwise to prevent the application of a regulation to the Franchisee. VIII. RELOCATION Franchisee shall, in the course of any Work, comply with the following requirements: A. The Franchisee shall, by a time specified by the County, protect, support, temporarily disconnect,relocate,or remove any of its utility facilities when required by the County by reason of traffic conditions;public safety;road right-of-way construction;road right-of-way repair(including 6 resurfacing or widening);change of road right-of-way grade;construction,installation,or repair of County-owned sewers,drains,water pipes,power lines,signal lines,tracks,communications system, other public work, public facility, or improvement of any government-owned utility; road right-of-way vacation;or for any other purpose where the County work involved would be aided by the removal or relocation of the utility facilities. Collectively,such matters are referred to below as the "public work." Franchisee acknowledges and understands that any delay by Franchisee in performing the herein described work may delay, hinder, or interfere with the work performed by the County and its contractors and subcontractors done in furtherance of such Public Work and result in damage to the County,including but not limited to,delay claims. Franchisee shall cooperate with the County and its contractors and subcontractors to coordinate such Franchisee work to accommodate the Public Work project and project schedules to avoid delay, hindrance of, or interference with the Public Work. The County of Mason shall make available to the Franchisee a copy of the Six Year Transportation Program and the County's annual construction program after adoption each year. It is anticipated these programs will aid the utility in planning construction programs. B. Franchisee has a duty to protect its utility facilities from work performed by the County within the road rights-of-way. The rights granted to the Franchisee herein do not preclude the County of Mason, its employees, contractors, subcontractors, and agents from blasting, grading, excavating, or doing other necessary road work contiguous to Franchisee's utility facilities; providing that, the Franchisee shall be given a minimum of forty-eight (48) hours notice of said blasting or other work in order that the Franchisee may protect its utility facilities. C. In the event of an emergency,or where the utility facility creates or is contributing to an imminent danger to health, safety, or property, the County may protect, support, temporarily disconnect,remove,or relocate any or all parts of the utility facility without prior notice,and charge the Franchisee for costs incurred. D. If any Person that is authorized to place facilities in the road right of way requests the Franchisee to protect, support,temporarily disconnect,remove, or relocate the Franchisee's utility facilities to accommodate the construction,operation,or repair of the facilities of such other person, the Franchisee shall,after 30 days'advance written notice,take action to effect the necessary changes requested;provided that,if such project is related to or competes with Franchisee's service,or if the effect of such changes would be to permanently deprive Franchisee of the beneficial enjoyment of this franchise for its intended purposes through interference with the operation of Franchisee's utility facilities or otherwise, Franchisee shall not be required to relocate its utility facilities. Unless the matter is governed by a valid contract or a state or federal law or regulation, or unless the Franchisee's utility facilities were not properly installed, the reasonable cost of the same shall be borne by the Person requesting the protection, support, temporary disconnection, removal, or relocation at no charge to the County, even if the County makes the request for such action. 7 E. The Franchisee shall, on the request of any person holding a valid permit issued by a governmental authority, temporarily raise or lower its wires to permit the moving of buildings or other objects. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same. The County of Mason will accept liability for direct and actual damages to said Franchisee that are the result of the negligence of Mason County, its trustees, officers, employees, contractors, subcontractors or agents while performing County improvement or Public Works projects enumerated in the original franchise agreement under Section VIII,paragraph B. Direct and actual damages are specifically limited to physical damage to properly installed and located infrastructure of the Franchisee and the cost to repair such physical damage. Mason County retains the right to assert all applicable defenses in the event of a dispute including contributory negligence on the part of the Franchisee. Mason County shall in no way be liable for incidental damages claimed to arise from such actions. All Work to be performed by the Franchisee under this section shall pass the inspection of the County Engineer. The Franchisee shall pay all costs of and expenses incurred in the examination, inspection and approval of such work. IX. PRESERVATION OF MONUMENTS/MARKERS Before any work is performed under this franchise which may affect any existing monuments or markers of any nature relating to subdivisions,plats,roads and all other surveys,the Franchisee shall reference all such monuments and markers. The reference points shall be so located that they will not be disturbed during the Franchisee's operations under this franchise. The method of referencing these monuments or other points to be referenced shall be approved by the County Engineer. The replacement of all such monuments or markers disturbed during construction shall be made as expeditiously as conditions permit,and as directed by the County Engineer. The cost of monuments or other markers lost, destroyed, or disturbed, and the expense of replacement by approved monuments shall be borne by the Franchisee. A complete set of reference notes for monument and other ties shall be filed with the office of the Mason County Engineer. X. VACATION OF ROAD RIGHT-OF-WAY If at any time the County shall vacate any County road,right-of-way or other County property which is subject to rights granted by this franchise and said vacation shall be for the purpose of acquiring the fee or other property interest in said road, right-of-way or other county property for the use of Mason County,in either its proprietary or governmental capacity,then the Board of Mason County Commissioners may, at its option, and by giving thirty(30) days written notice to the Franchisee, terminate this franchise with reference to such county road,right-of-way or other county property so vacated, and the County of Mason shall not be liable for any damages or loss to the Franchisee by reason of such termination. It has been the practice of Mason County to reserve easements for 8 utilities at the time of road vacation,and will continue to be the practice until such time the Board of Mason County Commissioners direct a change of practice. XI. FINANCIAL SECURITY A. Insurance Except as otherwise provided herein,Franchisee shall maintain for itself and the County,throughout the entire period any part of Franchisee's utility facilities are located in the Franchise Area, adequate insurance to protect the Parties and their elected and appointed officers, agents,employees against all of County's and Franchisee's liability arising out of Franchisee's use and occupancy of the Franchise Area or any part thereof. This obligation shall require the Franchisee to maintain insurance at least in the following amounts: 1. COMMERCIAL GENERAL LIABILITY insurance to cover liability, bodily injury, and property damage. The Commercial General Liability insurance shall be written on an occurrence basis, with an aggregate limit location endorsement for the Franchise Area, and shall provide coverage for any and all costs, including defense costs, and losses and damages resulting from personal injury, bodily injury and death, property damage, products liability and completed operations. Such insurance shall include blanket contractual coverage, including coverage for the Franchise as now or hereafter amended and specific coverage for the indemnity provisions set forth herein. Coverage must be written with the following limits of liability: Bodily and Personal Inj^urs & Property Damage $ 1,000,000 per Occurrence $ 2,000,000 aggregate 2 WORKERS' COMPENSATION insurance shall be maintained to comply with statutory limits for all employees,and in the case any work is sublet,the Franchisee shall require its contractors and subcontractors similarly to provide workers' compensation insurance for all the employees. The Franchisee shall also maintain, during the life of this policy, employer's liability insurance;provided that this obligation shall not apply to any time period during which Franchisee has no employees. The following minimum limits must be maintained: Workers' Compensation Statutory Employer's Liability $ 1,000,000 each occurrence 3.COMPREHENSIVE AUTO LIABILITY insurance shall include owned,hired,and non-owned vehicles operated by Franchisee employees on an occurrence basis with coverage of at least$2,000,000 per occurrence. If the Franchisee, its contractors, or subcontractors do not have the required insurance,the County may require such entities to stop operations until the insurance is obtained and approved. Certificates of Insurance reflecting evidence of the required insurance and approved by the County's 9 Risk Manager for the GENERAL LIABILITY policies described above,shall be sent to the County's risk manager. The certificate shall be filed with the acceptance of the franchise, and annually thereafter, and as provided below. All coverage shall be listed all on one certificate with the same expiration dates. The certificates shall contain a provision that coverages afforded under these policies will not be canceled until at least 30 days'prior written notice has been given to the County. In the event that the insurance certificate provided indicates that the insurance shall terminate or lapse during the period of the franchise,then, in that event,the Franchisee shall furnish,at least 30 days prior to the expiration of the date of such insurance,a renewed certificate of insurance as proof that equal and like coverage has been or will be obtained prior to any such lapse or termination during the balance of the period of the franchise. The County reserves the right, during the term of the franchise, to require any other insurance coverage or adjust the policy limits as it deems reasonably necessary utilizing sound risk management practices and principals based upon the loss exposures. Each insurance policy required pursuant to this franchise shall be primary and non-contributing as respects any coverage maintained by the County and shall include an endorsement reflecting the same. Any other coverage maintained by County shall be excess of this coverage herein defined as primary and shall not contribute with it. The certificate of insurance must reflect that the above wording is included in all such policies. Each insurance policy obtained pursuant to this franchise shall be issued by financially sound insurers who may lawfully do business in the State of Washington with a financial rating at all times during coverage of no less than rating of"A" and a class of"X" or better in the latest edition of "Best's Key Rating Guide"published by A.M.Best Company,or such other financial rating or rating guide approved in writing by the County's risk manager. In the event that at any time during coverage,the insurer does not meet the foregoing standards,Franchisee shall give prompt notice to the County and shall seek coverage from an insurer that meets the foregoing standards. The County reserves the right to change the rating or the rating guide depending upon the changed risks or availability of other suitable and reliable rating guides. Comprehensive general liability insurance policies and coverage obtained pursuant to this franchise shall include an endorsement(standard ISO form CG 24-17) deleting all exclusions for work or incidents occurring within any distance from a railroad track or railroad property, or on, over, or under a railroad track. Insurance policies required pursuant to this franchise shall have no non-standard exclusions unless approved of by the County Risk Manager or designee. Commercial general liability insurance policies obtained pursuant to this franchise shall name the 10 County as an additional insured without limitation,pursuant to an endorsement approved of by the County's Risk Manager or designee. Franchisee and Franchisee's Contractors' insurers, through policy endorsement, shall waive their rights of subrogation against the County for all claims and suits. The certificate of insurance must reflect this waiver of subrogation rights endorsement. Commercial General Liability Insurance policies and coverage required herein of public utility operators may include a reasonable deductible or self-insured retention;provided,however,that as to any Loss or Damage covered as provided herein, if Franchisee elects to include any deductible or self-insured retention,Franchisee shall itself directly cover,in lieu of insurance,any and all County liabilities that would otherwise in accordance with the provisions of this Franchise be covered by Franchisee's insurance if Franchisee elected not to include a deductible or self-insured retention. Such direct coverage by Franchisee shall be in an amount equal to the amount of Franchisee's actual deductible or self-insured retention. Franchisee shall be required to provide a certification of self- insurance retention to the county in a form and content acceptable to the county engineer. B. Performance/Payment Bond. At the same time Franchisee provides its acceptance of this Franchise, the Franchisee shall, if required by the County Engineer, provide a performance and payment bond to ensure the full and faithful performance of all of its responsibilities under this franchise and applicable rules, regulations and ordinances, including, by way of example, but not limited to,its obligations to relocate and remove its utility facilities,to restore the road rights-of-way and other property when damaged or disturbed, and to reimburse the County for its costs. The amount of the performance and payment bond shall be for ZERO ($0). The amount of the bond,or cash deposit as described below, may be adjusted by the County every five years from the date of execution of this franchise,to take into account cumulative inflation or increased risks to the County. The Franchisee may be required to obtain additional bonds in accordance with the County's ordinary practices. The bond shall be in a form with terms and conditions acceptable to the County and reviewed and approved by the County Engineer. The bond shall be with a surety with a rating no less than "A V in the latest edition of"Bests Key Rating Guide," published by A.M. Best Guide. The Franchisee shall pay all premiums or costs associated with maintaining the bond,and shall keep the same in full force and effect at all times.If Franchisee fails to provide or maintain the bond,then the County,in its sole discretion,may require Franchisee to substitute an equivalent cash deposit as described below in lieu of the bond. Franchisee, may at its election or upon order by the County, substitute an equivalent cash deposit instead of a performance and payment bond. This cash deposit shall ensure the full and faithful performance of all of Franchisee's responsibilities hereto under this Permit and all applicable laws, rules, regulations or ordinances. This includes, but is not limited to, its obligations to relocate or remove its facilities, restore the road rights-of-way and other property to their original condition, reimbursing the County for its costs, and keeping Franchisee's insurance in full force. The County shall notify Franchisee in writing, by certified mail, of any default and shall give 11 Franchisee thirty(30)days from the date of such notice to cure any such default. In the event that the Franchisee fails to cure such default to the satisfaction of the County,the County may,at its option, forfeit the entire amount of the cash deposit or draw upon the cash deposit up to the amount of the County's costs incurred to cure Franchisee's default. Upon the County's cure of Franchisee's default,the County shall notify Franchisee in writing of such cure. In the event that the County draws upon the cash deposit or forfeits the same, Franchisee shall thereupon replenish the cash deposit to the full amount as specified herein or provide a replacement performance and payment bond. Before any Work commences in the road right-of-way,the County Engineer may require the operator to provide a performance and payment bond for each separate project in an amount to be determined by the County Engineer, but not less than five hundred dollars, written by a surety company acceptable to the County Risk Manager and authorized to do business in the state of Washington. The purpose of the bond is to insure completion of construction, including the restoration of surfacing,slopes,slope treatment,topsoil,landscape treatment,and drainage facilities,and cleanup of rights-of-way, and payment of costs incurred by the County to enforce the requirements of this Chapter. The performance and payment bond shall be in place for a period ending not more than one year after the date of completion. A project specific performance bond shall not be required in the event that the franchisee has in place a blanket performance bond and, when required, a payment bond, maintained pursuant to the requirements of this franchise. A performance and payment bond for work in the road right-of-way will not be required of the United States Government or any of its agencies or of any municipal corporation or department of the state of Washington and its local subdivisions. C. Limitation of Liability. To the fullest extent permitted by law,the Franchisee shall,and shall cause its contractor(s) to release, indemnify, defend and hold harmless the county and the county's legal representatives,officer(elected or),appointed)employees and agents(collectively, "indemnitees")for,from and against any and all claims, liabilities,fines,penalties,cost,damages, losses, liens, causes of action, suits, demands, judgments and expenses (including, without limitations, court costs, attorneys' fees and costs of investigation, removal and remediation and governmental oversight costs),Environmental or otherwise(collectively"liabilities")of any nature, kind,or description,of any person or entity,directly or indirectly,arising out of,resulting from,or related to (in whole or in part): 1. this franchise; 2. any rights or interests granted pursuant to this franchise; 3. franchisee's occupation and use of the road right of way; 12 4. franchisee's operation of its utility facilities; 5. the presence of utility facilities within the right of way; 6. the environmental condition and status of the road right-of-way caused by, aggravated by, or contributed to, in whole or in part,by franchisee or its agents; or 7. The acts,errors,or omissions of third parties when arising out of the installation, construction,adjustment,relocation,replacement,removal,or maintenance of such third party utility facilities within the road rights-of-way when such work is performed under authority of the operator's utility permit or at the direction or under the control of the operator; or 8. any act or omission of franchisee or franchisee's agents; The only liabilities with respect to which franchisee's obligation to indemnify the indemnitees do not apply are liabilities to the extent arising out of, caused by or resulting from the negligence of the county, its officers, agents, employees or contractors and liabilities that by law the indemnities cannon be indemnified for. Upon written notice from the county,franchisee agrees to assume the defense of any lawsuit or other proceeding brought against any indemnitee by any entity, relating to any matter covered by this franchise for which franchisee has an obligation to assume liability for and/or save and hold harmless any indemnitee.Franchisee shall pay all cost incident to such defense,including,but not limited to, attorneys'fees,investigators' fees,litigation and appeal expenses,settlement payments and amounts paid in satisfaction of judgments. Franchisee willfully satisfy said judgment within ninety(90)days after said suit or action shall have finally been determined if determined adversely to Mason County. Upon the Franchisee's failure to satisfy said judgment within the ninety (90) day period, this franchise shall at once cease and terminate. Acceptance by the County of any Work performed by the Franchisee at the time of completion shall not be grounds for avoidance of this covenant. XII. FRANCHISE NONEXCLUSIVE This franchise shall not be deemed to be an exclusive franchise. It shall in no manner prohibit the County of Mason from granting other utilities under,along,across,over and upon any of the County roads,rights-of-way or other County property subject to this franchise and shall in no way prevent or prohibit the County of Mason from constructing, altering, maintaining or using any of said roads, rights-of-way,drainage structures or facilities,irrigation structures or facilities,or any other county property or affect its jurisdiction over them or any part of them with full power to make all necessary changes,relocations,repairs,maintenance, etc.,the same as the county may deem fit. 13 XIII. SUCCESSORS AND ASSIGNS All the provisions,conditions,regulations and requirements herein contained shall be binding upon the successors and assigns of the Franchisee,and all privileges,as well as all obligations and liability of the Franchisee, shall ensure to its successors and assigns equally as if they were specifically mentioned wherever the Franchisee is mentioned. Any reference in this franchise to a specifically named party shall be deemed to apply to any successor, heir, administrator, executor or assign of such party who has acquired its interest in compliance with the terms of this franchise,or under law. XIV. TRANSFER/ASSIGNMENT Franchisee may assign or transfer this franchise after prior written notice to County of Mason and assignee's written commitment,in a form and content approved by the County Prosecutor,delivered to County of Mason,that assignees shall thereafter be responsible for all obligations of Franchisee with respect to the franchise and guaranteeing performance under the terms and conditions of the franchise and that transferee will be bound by all the conditions of the franchise and will assume all the obligations of its predecessor. Such an assignment shall relieve the Franchisee of any further obligations under the franchise, including any obligations not fulfilled by Franchisee's assignee; provided that,the assignment shall not in any respect relieve the Franchisee,or any of its successors in interest,of responsibility for acts or omissions,known or unknown,or the consequences thereof, which acts or omissions occur prior to the time of the assignment. No franchise or master road use permit may be assigned or transferred without filing or establishing with the county the insurance certificates and performance bond as required pursuant to this franchise. XV. ANNEXATION Whenever any of the County roads, rights-of-way or other county property as designated in this franchise,by reason of the subsequent incorporation of any town or city,or extension of the limits of any town or city, shall fall within the city or town limits and shall by operation of law or otherwise terminate in respect to the said roads,rights-of-way or other county property so included with city or town limits; this franchise shall continue in force and effect to all county roads, rights-of-way or other county property not so included in city or town limits. XVI. REVOCATION/REMEDIES A. Revocation. In addition the right to revoke this franchise as set forth in Title 12 of the Mason County Code, if the Franchisee shall willfully violate, or fail to comply with any of the provisions of this franchise through willful or unreasonable neglect or fail to heed or comply with any notice given the Franchisee under the provision of this grant, then Franchisee shall forfeit all rights conferred hereunder and this franchise may be revoked or annulled,after a public hearing by the Board of County Commissioners. The Franchisee shall not be relieved of any of its obligations to comply promptly with any provision of this franchise by reason of any failure of the County to enforce prompt compliance,and the County's failure to enforce shall not constitute a waiver of rights 14 or acquiescence in the Licensee's conduct. Subject to the required consent, adjudication, permission or authorization of a federal or state regulatory agency with jurisdiction over the subject matter, upon revocation of the franchise, the County may require the Franchisee to remove its utility facilities from any road rights-of-way,and restore such road right-of-way to its same or better condition as existed j ust prior to such removal,or de-commission and abandon such utility facilities in place in whole or in part and in a manner approved by the County Board of Commissioners. If the Franchisee fails to remove utility facilities that the County requires it to remove,the County may perform the work and collect the cost thereof from the Franchisee. The actual cost thereof,including direct and indirect administrative costs,shall be a lien upon all utility facilities of the Franchisee within the franchise Area effective upon filing of the lien with the Mason County Auditor. B. Remedies. The County has the right to exercise any and all of the following remedies, singly or in combination,in the event of Default. "Default"shall mean any failure of Franchisee or its agents to keep,observe,or perform any of Franchisee's or its agent's duties or obligations under this franchise: 1. Damages. Franchisee shall be liable for any and all damages incurred by County. 2. Specific Performance. County shall be entitled to specific performance of each and every obligation of Franchisee under this franchise without any requirement to prove or establish that County does not have an adequate remedy at law. Franchisee hereby waives the requirement of any such proof and acknowledges that County would not have an adequate remedy at law for Franchisee's commission of an Event of Default hereunder. 3. Injunction. County shall be entitled to restrain, by injunction, the actual or threatened commission or attempt of an Event of Default and to obtain a judgment or order specifically prohibiting a violation or breach of this Agreement without, in either case, being required to prove or establish that County does not have an adequate remedy at law. Franchisee hereby waives the requirement of any such proof and acknowledges that County would not have an adequate remedy at law for Franchisee's commission of an Event of Default hereunder. 4. Alternative Remedies. Neither the existence of other remedies identified in this franchise nor the exercise thereof shall be deemed to bar or otherwise limit the right of the County to commence an action for equitable or other relief, and/or proceed against Franchisee and any guarantor for all direct monetary damages, costs and expenses arising from the Default and to recover all such damages, costs and expenses, including reasonable attorneys' fees. Remedies are cumulative; the exercise of one shall not foreclose the exercise of others. XVII. SUBSEQUENT ACTION In the event that after this franchise becomes effective, (a) there is a change in the law which 15 broadens the authority of the County of Mason or the Franchisee with respect to any act permitted or authorized under this franchise; or (b)the County of Mason or the Franchisee believe that amendments to this franchise are necessary or appropriate, then the County of Mason and the Franchisee agree to enter into good faith negotiations to amend this franchise so as to enable the Parties to address, in a manner reasonably acceptable to all Parties, such change or other development which formed the basis for the negotiations. The Parties recognize that the purpose of the negotiations would be to preserve, to the maximum extent consistent with law, the scope and purpose of this franchise. Mason County reserves for itself the right at any time upon ninety(90) days written notice to the Franchisee, to so change, amend, modify or amplify any of the provisions or conditions herein enumerated to conform to any state statute or county regulation,relating to the public welfare,health, safety or highway regulation,as may hereafter be enacted,adopted or promulgated and this franchise may be terminated at such time a public hearing is held by the Board of County Commissioners,and the Franchisee's utility facilities are found not to be operated or maintained in accordance with such statute or regulation. XVIII. ACCEPTANCE Franchisee shall execute and return to the County of Mason a signed acceptance of the franchise granted hereunder. The acceptance shall be in the form of the acceptance attached hereto as Exhibit "A", and in accepting the franchise, Franchisee warrants that it has carefully read the terms and conditions of this franchise and accepts all of the terms and conditions of this franchise and agrees to abide by the same and acknowledges that it has relied upon its own investigation of all relevant facts, that it has had the assistance of counsel, that it was not induced to accept a franchise, that this franchise represents the entire agreement between the Franchisee and the County of Mason. In the event the Franchisee fails to submit the countersigned ordinance and acceptance as provided for herein within the time limits set forth in this section,the grant herein is and shall become null and void. XIX. MISCELLANEOUS PROVISIONS A. Controlling Law/Venue. Any disputes concerning the application or interpretation of any of the provisions of this franchise shall be governed by the laws of the State of Washington. Venue of any action or arbitration brought under this franchise shall be in Mason County,Washington or the Western District of Washington if an action is brought in federal court, provided, however, that venue of such action is legally proper. B. Liens. Franchisee shall promptly pay and discharge any and all liens arising out of any Work done, suffered or permitted to be done by Franchisee on any Franchise Area. C. Waiver. No waiver by either party of any provision of this franchise shall in any way impair the right of such party to enforce that provision for any subsequent breach, or County of 16 Mason's right to enforce all other provisions of this franchise. D. Attorney's Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this franchise, the substantially prevailing Party or Parties shall be entitled to reasonable attorney's fees,costs and necessary disbursements in addition to any other relief to which such Party or Parties may be entitled. E. Amendment. This franchise may be amended only by a written contract signed by authorized representatives of Franchisee and County of Mason. F. Severability. If any provision of this franchise is held to be illegal, invalid or unenforceable under present or future laws,such provision will be fully severable and this franchise will be construed and enforced as if such illegal, invalid or unenforceable provision is not a part hereof,and the remaining provisions hereof will remain in full force and effect. In lieu of any illegal, invalid or unenforceable provision herein, there will be added automatically as a part of this franchise; a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable. G. Joint and Several Liability. Franchisee acknowledges that, in any case in which Franchisee and Franchisee's Contractors are responsible under the terms of this franchise, such responsibility is joint and several as between Franchisee and any such Franchisee's Contractors; provided that,the Franchisee is not prohibited from allocating such liability as a matter of contract. H. Notices. Any notice contemplated, required, or permitted to be given under this franchise shall be sufficient if it is in writing and is sent either by: (a)registered or certified mail, return receipt requested; or(b)a nationally recognized overnight mail delivery service,to the Party and at the address specified below,except as such Party and address may be changed by providing notice to the other Party no less than thirty (30) days' advance written notice of such change in address. Franchisee: Cedar View Tracts PO BOX 11 Belfair, WA 98528 Attn: John Nester Grantor: County of Mason Public Works 100 Public Works Drive Shelton, WA 98584 1. Approvals. Nothing in this franchise shall be deemed to impose any duty or obligation upon the County of Mason to determine the adequacy or sufficiency of Franchisee's plans and specifications or to ascertain whether Franchisee's proposed or actual construction, testing, 17 maintenance,repairs,replacement,relocation,adjustment or removal is adequate or sufficient or in conformance with the plans and specifications reviewed by the County of Mason. No approval given, inspection made,review or supervision performed by the County of Mason pursuant to this franchise shall constitute or be construed as a representation or warranty express or implied by County of Mason that such item approved, inspected, or supervised, complies with laws, rules regulations or ordinances or this franchise or meets any particular standard,code or requirement,or is in conformance with the plans and specifications,and no liability shall attach with respect thereto. County and inspections as provided herein, are for the sole purpose of protecting the County of Mason's rights as the owner or manager of the road rights-of-way and shall not constitute any representation or warranty,express or implied,as to the adequacy of the design,construction,repair, or maintenance of the utility facilities, suitability of the Franchise Area for construction, maintenance,or repair of the utility facilities,or any obligation on the part of the County of Mason to insure that work or materials are in compliance with any requirements imposed by a governmental entity. County of Mason is under no obligation or duty to supervise the design, construction, installation, relocation, adjustment, realignment, maintenance, repair, or operation of the utility facilities. J. Force Majeure. Neither Parry hereto shall be liable to the other Party for any failure to perform an obligation set forth herein to the extent such failure is caused by war,act of terrorism or an act of God, provided that such Party has made and is making all reasonable efforts to perform such obligation and minimize any and all resulting loss or damage. K. Construction. All pronouns and any variations thereof shall be deemed to refer to the masculine,feminine or neuter, singular or plural,as the identity of the Party or Parties may require. The provisions of this franchise shall be construed as a whole according to their common meaning, except where specifically defined herein,not strictly for or against any party and consistent with the provisions contained herein in order to achieve the objectives and purposes of this franchise. L. Incorporation by Reference. All exhibits annexed hereto at the time of execution of this franchise or in the future as contemplated herein, are hereby incorporated by reference as though fully set forth herein. M. Calculation of Time. All periods of time referred to herein shall include Saturdays, Sundays,and legal holidays in the State of Washington,except that if the last day of any period falls on any Saturday,Sunday,or legal holiday in the State of Washington,the period shall be extended to include the next day which is not a Saturday, Sunday, or legal holiday in the State of Washington. N. Entire Agreement. This franchise is the full and complete agreement of County of Mason and Franchisee with respect to all matters covered herein and all matters related to the use of the Franchise Area by Franchisee and Franchisee's Contractors,and this franchise supersedes any and all other agreements of the Parties hereto with respect to all such matters,including,without limitation, all agreements evidencing the franchise. 18 O. No Recourse. Without limiting such immunities as the County or other persons may have under applicable law,Franchisee shall have no monetary recourse whatsoever against the County or its officials, boards, commissions, agents, or employees for any loss or damage arising out of the County's exercising its authority pursuant to this Franchise or other applicable law. P. Responsibility for Costs. Except as expressly provided otherwise,any act that Franchisee is required to perform under this franchise shall be performed at its cost. If Franchisee fails to perform work that it is required to perform within the time provided for performance, the County may perform the work and bill the Franchisee. The Franchisee shall pay the amounts billed within 30 days. Q. Work of Contractors and Subcontractors. Work by contractors and subcontractors is subject to the same restrictions, limitations, and conditions as if the work was performed by the Franchisee. The Franchisee shall be responsible for all work performed by its contractors and subcontractors,and others performing work on its behalf,under its control,or under authority of its utility permit,as if the work were performed by it and shall ensure that all such work is performed in compliance with this franchise, Title 12 MCC, the Manual and other applicable law, and shall be jointly and severally liable for all damages and correcting all damage caused by them. It is the Franchisee's responsibility to ensure that contractors, subcontractors,or other Persons performing work on the Franchisee's behalf are familiar with the requirements of the franchise,Title 12 MCC, the Manual, and other applicable laws governing the work performed by them. R. Survival of Terms. Upon the expiration, termination, revocation or forfeiture of the franchise,the Franchisee shall no longer have the right to occupy the franchise area for the purpose of providing services authorized herein. However,the Franchisee's obligations under this franchise to the County shall survive the expiration, termination, revocation or forfeiture of these rights according to its terms for so long as the Franchisee's utility facilities shall remain in whole or in part in the road rights of way. By way of illustration and not limitation, Franchisee's obligations to indemnify, defend and hold harmless the County, provide insurance and a performance/payment bond pursuant to Section XI and Franchisee's obligation to relocate its utility facilities pursuant to Section VIII, shall continue in effect as to the Franchisee, notwithstanding any expiration, termination, revocation or forfeiture of the franchise, except to the extent that a County-approved transfer, sale, or assignment of the utility system is completed,and another entity has assumed full and complete responsibility for the utility system or for the relevant acts or omissions. S. Warranties. By acceptance of this franchise, Franchisee warrants: 1. That Franchisee has full right and authority to enter into and perform this Franchise in accordance with the terms hereof, and by entering into or performing this Franchise, Franchisee is not in violation of its charter or by-laws,or any law,regulation,or agreement by which it is bound or to which it is subject; and 2. That the execution,delivery,and performance of this Franchise by Franchisee has been duly authorized by all requisite Board/Commission action, that the signatories for Franchisee of the 19 acceptance hereof are authorized to sign this Franchise,and that the joinder or consent of any other party, including a court, trustee, or referee, is not necessary to make valid and effective the execution, delivery, and performance of this Franchise and acceptance. DATED at Shelton, Washington this day of 20_. BOARD OF COMMISSIONERS AZkVED: & MASON COUNTY, WASHINGTON County Engineer Chair Approve as to form: Vice Chair Chief D.P.A. Commissioner 20 Exhibit A ACCEPTANCE OF FRANCHISE Ordinance No. 115-06, effective November 14, 2006. I, i�/L , am the ?Nxs of cd and am the authorized representative to accept the above-referenced franchise on behalf of 1 k!A - 6A, I certify that this franchise and all terms and conditions thereof are accepted by C�d.n�t o6c.✓ 1 zA<,-J� , without qualification or reservation. DATED this l lf7 day of C eM, ,< , 20_ff. FRANCHISEE By: Its: .k)�►n� s Gci Tax STATE OF I ss. COUNTY OF V)(\ LSO-Y ) ) I certify that I know or have satisfactory evidence that d�V\ is the person who appeared before me,and said person acknowledged that he/she signed this instrument,on oath stated that he/she was authorized to execute the instrument and acknowledged it as the VI OA Rke,,5 i c f 6A-T' of the GT ct A A- V t 6l-) 1oe-,4�7s to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: _D'eC ZQi Notary P c 1 Print Name A 1 t' ry S 1�1 y commission expires ZLR / ?_U 2 Z Notary Public State of Washington AMBER N SMITH MY COMMISSION EXPIRES APRIL 18,2022 A EXHIBIT B Description of Franchise Area Cedar View Tracts 0 w ' E S ITZ R 0 ?G � �O B RECORDED AT THE REQUEST OF AND AFTER RECORDING RETURN TO: County of Mason 100 West Public Works Drive Shelton WA 98584 Attn: County Engineer Title: Cedar View Tracts Franchise Agreement Grantor: COUNTY OF MASON,a legal subdivision of the state of Washington Grantee: CEDAR VIEW TRACTS Description of Franchise Area: SEE EXHIBIT B IN THE MATTER OF THE APPLICATION OF Harstine Island Estates FOR A FRANCHISE PERMIT TO CONSTRUCT, OPERATE, AND MAINTAIN Water System&Appurtenances UTILITY FACILITIES, OVER,ALONG AND UNDER COUNTY ROADS AND HIGHWAYS LOCATED IN MASON COUNTY, WASHINGTON Application of(Name of operator) Harstine Island Estates Association, doing business in Washington as Harstine Island Estates Association, with its principal offices located at 540 E Camus Drive, Shelton, WA 98584, by and through (person authorized to act for and on behalf of applicant) Pamela Gummel, Treasurer, for a franchise to construct, operate and maintain (description of type) Group A Water utility facilities in,over,along and under county roads and highways in Mason County,Washington,as set forth in attached Exhibit `B" (Franchise Area), having come on regularly for hearing before the County Commissioners of Mason County, Washington, on the day of , 20 , at the hour of , under the provisions of RCW 36.55, RCW 80.32.010 and RCW 80.36.040, and it appearing to the Board that notice of said hearing has been duly given as required by law, and that it is in the public interest to allow the franchise herein granted; NOW THEREFORE,IT IS ORDERED that a non-exclusive franchise be, and the same is hereby given and granted to Operator, and its successors and assigns,hereinafter referred to as the Franchisee, for a period of 10 years with automatic renewal at the end of each term of 10 years unless either party gives the other written notice of termination at least 30 days prior to the end of the relevant term. (no more than ten years each term and can only be renewed 3 times) from and after the date of the entry of this order for the purposes, at the location(s), and upon the express terms and conditions as described herein. 1. DEFINITIONS For the purposes of this franchise,terms,phrases,words,and their derivations not defined herein that are defined in Title 12 of the Mason County Code or the Manual on Accommodating Utilities in the Mason County Right-of-Way published by the County Engineer(the"Manual"),shall have the same meaning or be interpreted as provided in Title 12 of the Mason County Code or the Manual. Words not defined here, in Title 12 of the Mason County Code or the Manual shall have their ordinary meaning. A reference to Title 12 of the Mason County Code or the Manual refers to the same as may be amended, revised, updated, re-enacted or re-codified from time to time. II. GRANT The County of Mason hereby grants to the Franchisee a non-exclusive franchise which, once it becomes effective shall authorize the Franchisee to enter upon the road rights-of-way located 1 within the Franchise Area identified in attached Exhibit`B", for the purpose of installing, constructing,maintaining,repairing,replacing, adjusting,relocating and operating the utility facilities, which grant shall be limited to the following described purpose(s): - Water System Such grant is subject to and must be exercised in strict accordance with and subject to this franchise, Title 12 of the Mason County Code, the Manual and all applicable laws, rules, regulations and ordinances. Franchisee's exercise of any rights granted pursuant to the franchise is subject to the exercise of the County's police powers,and other regulatory powers as it may have or obtain in the future. No rights shall pass to the franchisee by implication. This franchise does not include permission to enter into or upon the road rights-of-way for any purposes others than the purposes expressly described herein. Permittee has a duty to notify the County of any change in use or condition of the utility facilities that may affect the status of the utility facilities or the impact of the utility facilities upon the road rights-of-way. III. UTILITY PERMIT REQUIRED Franchisee shall not commence or perform work(hereafter"Work")to install,construct,maintain repair, replace adjust, connect, disconnect, rebuild, or relocate its utility facilities within the road rights-of-way,without first applying for,paying all associated fees,and obtaining a utility permit as required pursuant to Title 12 of the Mason County Code. In any utility permit so issued,the County may impose,as a condition of the granting the utility permit,such conditions and regulations as may be necessary for the protection,preservation and management of the road rights-of-way,including, by way of example and not limitation, for the purpose of protecting any structures in the road rights-of-way, maintaining proper distance from other utilities, ensuring the proper restoration of such road rights-of-way and structures, and for the protection of the County and the public and the continuity of pedestrian and vehicular traffic. Franchisee shall first file with the County Engineer its application for a utility permit to do such Work together with plans and specifications in triplicate showing at a minimum: A. The position,depth and location of all such utility facilities sought to be constructed,laid, installed or erected at that time,showing their relative position to existing county roads,rights-of-way or other county property upon plans drawn to scale,hereinafter collectively referred to as the"map of definite location; B. The class and type of material and equipment to be used, manner of excavation, construction,installation,backfill,erection of temporary structures,erection of permanent structures, traffic control,traffic turnouts and road obstructions; C. The manner in which the utility facility is to be installed; D. Measures to be taken to preserve safe and free flow of traffic; 2 E. Structural integrity of the roadway,bridge, or other structure; F. Specifications for the restoration of the county road,right-of-way or other county property in the event that the road right of way will be disturbed by the Work; and G. Provision for ease of future road maintenance and appearance of the roadway. Provision shall be made for known or planned expansion of the utility facilities,particularly those located underground or attached to bridges or other structures within the road right-of-way. The location, alignment and depth of the utility facilities shall conform with said map of definite location, except in instances in which deviation may be allowed thereafter in writing by the County Engineer pursuant to application by Franchisee. All such Work shall be subject to the approval of and shall pass the inspection of the County Engineer.The Franchisee shall pay all costs of and expenses incurred in the examination,inspection and approval of such work on account of granting the said utility permits. IV. RESTORATION OF ROAD RIGHT OF WAY In any Work which disturbs or causes damage to the road rights-of-way subject to this franchise, public or private property, the Franchisee shall at its own expense and with all convenient speed, complete the work to repair and restore the county road right-of-way, or the public or private property so disturbed or damaged, and leave the same in as good or better condition as before the Work was commenced,to the reasonable satisfaction of the County Engineer. The Franchisee shall pay all costs of and expenses incurred in the examination, inspection and approval of such restoration or repair. The County Commissioners and/or County Engineer may at any time do,order or have done any and all work that they consider necessary to restore to a safe condition such County road right-of-way or other County property left by the Franchisee or its agents in a condition dangerous to life or property, and the Franchisee,upon demand, shall pay to the County all costs of such work. V. FRANCHISEE WORK IN RIGHT OF WAY Franchisee expressly agrees and understands that,with regard to Work within the road rights-of-way: A. All of Franchisee's utility facilities and Work within the road rights-of-way or other County property shall be in compliance with the provisions of Title 12 MCC, the Manual, the administrative regulations adopted by the County Engineer,other County established requirements for placement of utility facilities in road rights-of-way, including the specific location of utility facilities in the road rights-of-way, and all applicable laws,rules,regulations and ordinances; B. In preparing plans and specifications for Work of utility facilities in the road rights-of- 3 way the Franchisee shall use the Manual. Prior to commencement of work in the road rights-of-way, Franchisee shall submit such plans and specifications to the Mason County Engineer for review and approval together with adequate exhibits depicting existing or proposed location of the utility facility in relation to the road, including right-of-way or easement lines; relationship to currently planned road revisions,if applicable; and all locations and situations for which deviations in depth of cover (including the proposed method of protection)or other locational standards that are anticipated; C. All Work to utility facilities located within the road rights-of-way or other county property subject to this franchise shall be done in such a manner as not to interfere, other than in ways approved by the County, with the construction, operation and maintenance of other utilities, public or private, drains, drainage ditches and structures, irrigation ditches and structures, located therein,nor with the grading or improvements of such County roads,rights-of-way or other County property; D. The owners and operators of all utility facilities (public or private) installed in the Franchise Area or other county property prior in time to the utility facilities of the Franchisee,shall have preference as to the alignment and location of such utilities so installed with respect to the Franchisee. Such preference shall continue in the event of the necessity of relocating or changing the grade of any such county road or right-of-way; E. Franchisee shall perform the Work and operate its utility facilities in a manner that minimizes interference with the use of the road rights-of-way by others,including others that may be installing utility facilities; and F. The County may require that Franchisee's utility facilities be installed at a particular time, at a specific place,or in a particular manner as a condition of access to a particular road right-of-way; may deny access if a Franchisee is not willing to comply with the County's requirements; and may remove, or require removal of, any utility facility that is not installed in compliance with the requirements established by the County,or which is installed without prior County approval of the time, place, or manner of installation and charge the Franchisee for all the costs associated with removal; and may require Franchisee to cooperate with others to minimize adverse impacts on the road rights-of-way through joint trenching and other arrangements. G. The County may inspect the utility facilities at any time reasonable under the circumstances to ensure compliance with this franchise and applicable law,including to ensure that the utility facilities are constructed and maintained in a safe condition. If an unsafe condition is found to exist,the County,in addition to taking any other action permitted under applicable law,may order the Franchisee, in writing, to make the necessary repairs and alterations specified therein forthwith to correct the unsafe condition on a time-table established by the County which is reasonable in light of the unsafe condition. The County has the right to correct,inspect,administer, and repair the unsafe condition if the Franchisee fails to do so, and to charge the Franchisee therefore. The right of the County to conduct such inspections and order or make repairs shall not be construed to create an obligation therefore,and such obligation to construct and maintain its utility 4 facilities in a safe condition shall at all times remain the sole obligation of the Franchisee. H. When required by the County,Franchisee shall make information available to the public regarding any work involving the ongoing installation,construction,adjustment,relocation,repair or maintenance of its utility facilities sufficient to show (1)the nature of the work being performed; (2)where it is being performed; (3)its estimated completion date; and(4)progress to completion. I. FRANCHISEE IS PLACED ON NOTICE THAT FIBER OPTIC,COMMUNICATIONS, POWER, CONTROL SYSTEMS, OTHER TYPES OF CABLES, AND PIPELINES MAY BE BURIED ON THE RIGHT OF WAY. Before beginning any underground work, Franchisee will contact the appropriate personnel to have such facilities located and make arrangements as to protective measures that must be adhered to prior to the commencement of any work within the Road rights-of-way. In addition to the liability terms elsewhere in this Agreement, Franchisee shall indemnify and hold the County and its elected and appointed officers, employees and agents harmless against and from all cost,liability,and expense whatsoever(including,without limitation, attorney's fees and court costs and expenses)arising out of or in any way contributed to by any act or omission of Franchisee, its contractor,agents and/or employees,that cause or in any way or degree contribute to (1) any damage to or destruction of any such facilities by Franchisee, and/or its contractor, agents and/or employees, on the County's property, (2) any injury to or death of any person employed by or on behalf of any entity,and/or its contractor,agents and/or employees,on the road rights-of-way,and/or(3) any claim or cause of action for alleged loss of profits or revenue,or loss of service, by a customer or user of services or products of such company(ies) (collectively "Liabilities" for purposes of this Section V.I). The only Liabilities with respect to which Franchisee's obligation to indemnify the County and its elected and appointed officers, employees and agents does not apply are Liabilities to the extent arising out of,caused by or resulting from the negligence of the County, and its elected and appointed officers, employees and agents and Liabilities that by law the County and its elected and appointed officers, employees and agents for which the County cannot be indemnified. J. Franchisee shall continuously be a member of the State of Washington one number locator service under RCW 19.122, or an approved equivalent, and shall comply with all such applicable rules and regulations. K. Except in the event of emergency as described below,Franchisee and its Agents may not enter upon the Franchise Area to perform work for which a utility permit is not required,unless and except upon two-business days notice to the County Engineer. L. In the event of an emergency involving the threat of imminent harm to persons or property,and for purposes of taking immediate corrective action,Franchisee and its agents may enter the Franchise Area without advance notice to the County as long as such entry is for the sole purpose of addressing the emergency; provided however, that if any entry for such purposes would require issuance of a utility permit,Franchisee shall give the County verbal or telephonic notice of the places where and the manner in which entry is required prior to such entry,promptly followed by written notice. In all cases,notice to the County shall be given as far in advance as practical prior to entry or as soon as practicable after entry upon the road right-of-Way. 5 M. Franchisee shall promptly reimburse the County for their reasonable and direct costs incurred in responding to an emergency that is caused, created by or attributable to the presence, construction,maintenance,repair,or operation of the Franchisees utility facilities in the road rights- of-way. N. If,during installation,construction,relocation,realignment,adjustment,maintenance,or repair of the Franchisee's utility facilities in the road rights-of-way,Franchisee or its agents discover scientific or historic artifacts,Franchisee shall immediately notify the County of said discovery and shall protect such artifacts in a manner as specified by the County. Any such artifact shall be the property of the County if the County wishes to own it. VI. PROTECTION OF PUBLIC All work done under this franchise shall be done in a thorough and workman-like manner. In the performance of Work within or near the road rights-of-way, including without limitation, the opening of trenches and the tunneling under county roads,rights-of way or other county property,the Franchisee shall leave such trenches, ditches and tunnels in such a way as to interfere as little as possible with public travel and shall take all due and necessary precautions to guard the same,so that damage or injury shall not occur or arise by reason of such Work; and where any of such trenches, ditches and tunnels are left open at night, the Franchisee shall place warning lights,barricades and other appropriate protective devices at such a position as to give adequate warning of such Work. The Franchisee shall be liable for any injury to person or persons or damage to property sustained arising out of its carelessness or neglect,or through any failure or neglect to properly guard or give warning of any trenches, ditches or tunnels dug or maintained by the Franchisee. VII. POLICE POWERS The County of Mason,in granting this franchise,does not waive any rights which it now has or may hereafter acquire with respect to county roads, rights-of-way or other county property and this franchise shall not be construed to deprive the county of any powers, rights or privileges which it now has or may hereafter acquire to regulate the use of and to control the county roads,rights-of-way and other county property covered by this franchise. The County retains the right to administer and regulate activities of the Franchisee up to the fullest extent of the law. The failure to reserve a particular right to regulate,or reference a particular regulation, shall not be interpreted by negative implication or otherwise to prevent the application of a regulation to the Franchisee. VIII. RELOCATION Franchisee shall, in the course of any Work , comply with the following requirements: A. The Franchisee shall, by a time specified by the County, protect, support, temporarily disconnect,relocate,or remove any of its utility facilities when required by the County by reason of traffic conditions;public safety;road right-of-way construction;road right-of-way repair(including 6 resurfacing or widening);change of road right-of-way grade; construction,installation,or repair of County-owned sewers,drains,water pipes,power lines,signal lines,tracks,communications system, other public work, public facility, or improvement of any government-owned utility; road right-of-way vacation;or for any other purpose where the County work involved would be aided by the removal or relocation of the utility facilities. Collectively,such matters are referred to below as the "public work." Franchisee acknowledges and understands that any delay by Franchisee in performing the herein described work may delay, hinder, or interfere with the work performed by the County and its contractors and subcontractors done in furtherance of such Public Work and result in damage to the County,including but not limited to,delay claims. Franchisee shall cooperate with the County and its contractors and subcontractors to coordinate such Franchisee work to accommodate the Public Work project and project schedules to avoid delay, hindrance of, or interference with the Public Work. The County of Mason shall make available to the Franchisee a copy of the Six Year Transportation Program and the County's annual construction program after adoption each year. It is anticipated these programs will aid the utility in planning construction programs. B. Franchisee has a duty to protect its utility facilities from work performed by the County within the road rights-of-way. The rights granted to the Franchisee herein do not preclude the County of Mason, its employees, contractors, subcontractors, and agents from blasting, grading, excavating, or doing other necessary road work contiguous to Franchisee's utility facilities; providing that, the Franchisee shall be given a minimum of forty-eight (48) hours notice of said blasting or other work in order that the Franchisee may protect its utility facilities. C. In the event of an emergency,or where the utility facility creates or is contributing to an imminent danger to health, safety, or property, the County may protect, support, temporarily disconnect,remove,or relocate any or all parts of the utility facility without prior notice,and charge the Franchisee for costs incurred. D. If any Person that is authorized to place facilities in the road right of way requests the Franchisee to protect, support, temporarily disconnect,remove, or relocate the Franchisee's utility facilities to accommodate the construction,operation,or repair of the facilities of such other person, the Franchisee shall,after 30 days'advance written notice,take action to effect the necessary changes requested;provided that,if such project is related to or competes with Franchisee's service,or if the effect of such changes would be to permanently deprive Franchisee of the beneficial enjoyment of this franchise for its intended purposes through interference with the operation of Franchisee's utility facilities or otherwise, Franchisee shall not be required to relocate its utility facilities. Unless the matter is governed by a valid contract or a state or federal law or regulation, or unless the Franchisee's utility facilities were not properly installed, the reasonable cost of the same shall be borne by the Person requesting the protection, support, temporary disconnection, removal, or relocation at no charge to the County, even if the County makes the request for such action. 7 E. The Franchisee shall, on the request of any person holding a valid permit issued by a governmental authority, temporarily raise or lower its wires to permit the moving of buildings or other objects. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same. The County of Mason will accept liability for direct and actual damages to said Franchisee that are the result of the negligence of Mason County, its trustees, officers, employees, contractors, subcontractors or agents while performing County improvement or Public Works projects enumerated in the original franchise agreement under Section VIII,paragraph B. Direct and actual damages are specifically limited to physical damage to properly installed and located infrastructure of the Franchisee and the cost to repair such physical damage. Mason County retains the right to assert all applicable defenses in the event of a dispute including contributory negligence on the part of the Franchisee. Mason County shall in no way be liable for incidental damages claimed to arise from such actions. All Work to be performed by the Franchisee under this section shall pass the inspection of the County Engineer. The Franchisee shall pay all costs of and expenses incurred in the examination, inspection and approval of such work. IX. PRESERVATION OF MONUMENTS/MARKERS Before any work is performed under this franchise which may affect any existing monuments or markers of any nature relating to subdivisions,plats,roads and all other surveys,the Franchisee shall reference all such monuments and markers. The reference points shall be so located that they will not be disturbed during the Franchisee's operations under this franchise. The method of referencing these monuments or other points to be referenced shall be approved by the County Engineer. The replacement of all such monuments or markers disturbed during construction shall be made as expeditiously as conditions permit,and as directed by the County Engineer. The cost of monuments or other markers lost, destroyed, or disturbed, and the expense of replacement by approved monuments shall be borne by the Franchisee. A complete set of reference notes for monument and other ties shall be filed with the office of the Mason County Engineer. X. VACATION OF ROAD RIGHT-OF-WAY If at any time the County shall vacate any County road,right-of-way or other County property which is subject to rights granted by this franchise and said vacation shall be for the purpose of acquiring the fee or other property interest in said road, right-of-way or other county property for the use of Mason County,in either its proprietary or governmental capacity,then the Board of Mason County Commissioners may, at its option, and by giving thirty(30) days written notice to the Franchisee, terminate this franchise with reference to such county road,right-of-way or other county property so vacated, and the County of Mason shall not be liable for any damages or loss to the Franchisee by reason of such termination. It has been the practice of Mason County to reserve easements for 8 utilities at the time of road vacation,and will continue to be the practice until such time the Board of Mason County Commissioners direct a change of practice. XI. FINANCIAL SECURITY A. Insurance Except as otherwise provided herein,Franchisee shall maintain for itself and the County, throughout the entire period any part of Franchisee's utility facilities are located in the Franchise Area, adequate insurance to protect the Parties and their elected and appointed officers, agents, employees against all of County's and Franchisee's liability arising out of Franchisee's use and occupancy of the Franchise Area or any part thereof. This obligation shall require the Franchisee to maintain insurance at least in the following amounts: 1. COMMERCIAL GENERAL LIABILITY insurance to cover liability, bodily injury, and property damage. The Commercial General Liability insurance shall be written on an occurrence basis, with an aggregate limit location endorsement for the Franchise Area, and shall provide coverage for any and all costs, including defense costs, and losses and damages resulting from personal injury, bodily injury and death, property damage, products liability and completed operations. Such insurance shall include blanket contractual coverage, including coverage for the Franchise as now or hereafter amended and specific coverage for the indemnity provisions set forth herein. Coverage must be written with the following limits of liability: Bodily and Personal Injury&Property Damage $ 1,000,000 per Occurrence $ 2,000,000 aggregate 2 WORKERS' COMPENSATION insurance shall be maintained to comply with statutory limits for all employees,and in the case any work is sublet,the Franchisee shall require its contractors and subcontractors similarly to provide workers' compensation insurance for all the employees. The Franchisee shall also maintain, during the life of this policy, employer's liability insurance;provided that this obligation shall not apply to any time period during which Franchisee has no employees. The following minimum limits must be maintained: Workers' Compensation Statutory Employer's Liability $ 1,000,000 each occurrence 3.COMPREHENSIVE AUTO LIABILITY insurance shall include owned,hired,and non-owned vehicles operated by Franchisee employees on an occurrence basis with coverage of at least$2,000,000 per occurrence. If the Franchisee, its contractors,or subcontractors do not have the required insurance,the County may require such entities to stop operations until the insurance is obtained and approved. Certificates of Insurance reflecting evidence of the required insurance and approved by the County's 9 Risk Manager for the GENERAL LIABILITY policies described above,shall be sent to the County's risk manager. The certificate shall be filed with the acceptance of the franchise, and annually thereafter, and as provided below. All coverage shall be listed all on one certificate with the same expiration dates. The certificates shall contain a provision that coverages afforded under these policies will not be canceled until at least 30 days'prior written notice has been given to the County. In the event that the insurance certificate provided indicates that the insurance shall terminate or lapse during the period of the franchise,then,in that event,the Franchisee shall furnish, at least 30 days prior to the expiration of the date of such insurance,a renewed certificate of insurance as proof that equal and like coverage has been or will be obtained prior to any such lapse or termination during the balance of the period of the franchise. The County reserves the right, during the term of the franchise, to require any other insurance coverage or adjust the policy limits as it deems reasonably necessary utilizing sound risk management practices and principals based upon the loss exposures. Each insurance policy required pursuant to this franchise shall be primary and non-contributing as respects any coverage maintained by the County and shall include an endorsement reflecting the same. Any other coverage maintained by County shall be excess of this coverage herein defined as primary and shall not contribute with it. The certificate of insurance must reflect that the above wording is included in all such policies. Each insurance policy obtained pursuant to this franchise shall be issued by financially sound insurers who may lawfully do business in the State of Washington with a financial rating at all times during coverage of no less than rating of"A" and a class of"X" or better in the latest edition of "Best's Key Rating Guide"published by A.M.Best Company,or such other financial rating or rating guide approved in writing by the County's risk manager. In the event that at any time during coverage,the insurer does not meet the foregoing standards,Franchisee shall give prompt notice to the County and shall seek coverage from an insurer that meets the foregoing standards. The County reserves the right to change the rating or the rating guide depending upon the changed risks or availability of other suitable and reliable rating guides. Comprehensive general liability insurance policies and coverage obtained pursuant to this franchise shall include an endorsement (standard ISO form CG 24-17) deleting all exclusions for work or incidents occurring within any distance from a railroad track or railroad property, or on, over, or under a railroad track. Insurance policies required pursuant to this franchise shall have no non-standard exclusions unless approved of by the County Risk Manager or designee. Commercial general liability insurance policies obtained pursuant to this franchise shall name the 10 County as an additional insured without limitation,pursuant to an endorsement approved of by the County's Risk Manager or designee. Franchisee and Franchisee's Contractors' insurers, through policy endorsement, shall waive their rights of subrogation against the County for all claims and suits. The certificate of insurance must reflect this waiver of subrogation rights endorsement. Commercial General Liability Insurance policies and coverage required herein of public utility operators may include a reasonable deductible or self-insured retention;provided,however,that as to any Loss or Damage covered as provided herein, if Franchisee elects to include any deductible or self-insured retention,Franchisee shall itself directly cover,in lieu of insurance,any and all County liabilities that would otherwise in accordance with the provisions of this Franchise be covered by Franchisee's insurance if Franchisee elected not to include a deductible or self-insured retention. Such direct coverage by Franchisee shall be in an amount equal to the amount of Franchisee's actual deductible or self-insured retention. Franchisee shall be required to provide a certification of self- insurance retention to the county in a form and content acceptable to the county engineer. B. Performance/Payment Bond. At the same time Franchisee provides its acceptance of this Franchise, the Franchisee shall, if required by the County Engineer, provide a performance and payment bond to ensure the full and faithful performance of all of its responsibilities under this franchise and applicable rules, regulations and ordinances, including, by way of example, but not limited to,its obligations to relocate and remove its utility facilities,to restore the road rights-of-way and other property when damaged or disturbed, and to reimburse the County for its costs. The amount of the performance and payment bond shall be for ZERO ($0). The amount of the bond,or cash deposit as described below, may be adjusted by the County every five years from the date of execution of this franchise,to take into account cumulative inflation or increased risks to the County. The Franchisee may be required to obtain additional bonds in accordance with the County's ordinary practices. The bond shall be in a form with terms and conditions acceptable to the County and reviewed and approved by the County Engineer. The bond shall be with a surety with a rating no less than "A V in the latest edition of"Bests Key Rating Guide," published by A.M. Best Guide. The Franchisee shall pay all premiums or costs associated with maintaining the bond,and shall keep the same in full force and effect at all times.If Franchisee fails to provide or maintain the bond,then the County,in its sole discretion,may require Franchisee to substitute an equivalent cash deposit as described below in lieu of the bond. Franchisee, may at its election or upon order by the County, substitute an equivalent cash deposit instead of a performance and payment bond. This cash deposit shall ensure the full and faithful performance of all of Franchisee's responsibilities hereto under this Permit and all applicable laws, rules, regulations or ordinances. This includes, but is not limited to, its obligations to relocate or remove its facilities, restore the road rights-of-way and other property to their original condition, reimbursing the County for its costs, and keeping Franchisee's insurance in full force. The County shall notify Franchisee in writing, by certified mail, of any default and shall give 11 Franchisee thirty(30)days from the date of such notice to cure any such default. In the event that the Franchisee fails to cure such default to the satisfaction of the County,the County may,at its option, forfeit the entire amount of the cash deposit or draw upon the cash deposit up to the amount of the County's costs incurred to cure Franchisee's default. Upon the County's cure of Franchisee's default, the County shall notify Franchisee in writing of such cure. In the event that the County draws upon the cash deposit or forfeits the same, Franchisee shall thereupon replenish the cash deposit to the full amount as specified herein or provide a replacement performance and payment bond. Before any Work commences in the road right-of-way,the County Engineer may require the operator to provide a performance and payment bond for each separate project in an amount to be determined by the County Engineer, but not less than five hundred dollars, written by a surety company acceptable to the County Risk Manager and authorized to do business in the state of Washington. The purpose of the bond is to insure completion of construction, including the restoration of surfacing,slopes,slope treatment,topsoil,landscape treatment,and drainage facilities,and cleanup of rights-of-way, and payment of costs incurred by the County to enforce the requirements of this Chapter. The performance and payment bond shall be in place for a period ending not more than one year after the date of completion. A project specific performance bond shall not be required in the event that the franchisee has in place a blanket performance bond and, when required, a payment bond, maintained pursuant to the requirements of this franchise. A performance and payment bond for work in the road right-of-way will not be required of the United States Government or any of its agencies or of any municipal corporation or department of the state of Washington and its local subdivisions. C. Limitation of Liability. To the fullest extent permitted by law,the Franchisee shall,and shall cause its contractor(s) to release, indemnify, defend and hold harmless the county and the county's legal representatives, officer(elected or), appointed)employees and agents(collectively, "indemnitees") for, from and against any and all claims, liabilities, fines,penalties, cost,damages, losses, liens, causes of action, suits, demands, judgments and expenses (including, without limitations, court costs, attorneys' fees and costs of investigation, removal and remediation and governmental oversight costs),Environmental or otherwise(collectively"liabilities")of any nature, kind, or description,of any person or entity,directly or indirectly, arising out of,resulting from,or related to (in whole or in part): 1. this franchise; 2. any rights or interests granted pursuant to this franchise; 3. franchisee's occupation and use of the road right of way; 12 4. franchisee's operation of its utility facilities; 5. the presence of utility facilities within the right of way; 6. the environmental condition and status of the road right-of-way caused by, aggravated by, or contributed to, in whole or in part,by franchisee or its agents; or 7. The acts,errors,or omissions of third parties when arising out of the installation, construction,adjustment,relocation,replacement,removal,or maintenance of such third party utility facilities within the road rights-of-way when such work is performed under authority of the operator's utility permit or at the direction or under the control of the operator; or 8. any act or omission of franchisee or franchisee's agents; The only liabilities with respect to which franchisee's obligation to indemnify the indemnitees do not apply are liabilities to the extent arising out of, caused by or resulting from the negligence of the county, its officers, agents, employees or contractors and liabilities that by law the indemnities cannon be indemnified for. Upon written notice from the county,franchisee agrees to assume the defense of any lawsuit or other proceeding brought against any indemnitee by any entity, relating to any matter covered by this franchise for which franchisee has an obligation to assume liability for and/or save and hold harmless any indemnitee. Franchisee shall pay all cost incident to such defense,including,but not limited to, attorneys' fees,investigators' fees,litigation and appeal expenses,settlement payments and amounts paid in satisfaction of judgments. Franchisee willfully satisfy said judgment within ninety(90)days after said suit or action shall have finally been determined if determined adversely to Mason County. Upon the Franchisee's failure to satisfy said judgment within the ninety (90) day period, this franchise shall at once cease and terminate. Acceptance by the County of any Work performed by the Franchisee at the time of completion shall not be grounds for avoidance of this covenant. XII. FRANCHISE NONEXCLUSIVE This franchise shall not be deemed to be an exclusive franchise. It shall in no manner prohibit the County of Mason from granting other utilities under,along,across,over and upon any of the County roads,rights-of-way or other County property subject to this franchise and shall in no way prevent or prohibit the County of Mason from constructing, altering,maintaining or using any of said roads, rights-of-way,drainage structures or facilities,irrigation structures or facilities,or any other county property or affect its jurisdiction over them or any part of them with full power to make all necessary changes, relocations, repairs, maintenance, etc., the same as the county may deem fit. 13 XIII. SUCCESSORS AND ASSIGNS All the provisions,conditions,regulations and requirements herein contained shall be binding upon the successors and assigns of the Franchisee,and all privileges,as well as all obligations and liability of the Franchisee, shall ensure to its successors and assigns equally as if they were specifically mentioned wherever the Franchisee is mentioned. Any reference in this franchise to a specifically named party shall be deemed to apply to any successor, heir, administrator, executor or assign of such party who has acquired its interest in compliance with the terms of this franchise,or under law. XIV. TRANSFER/ASSIGNMENT Franchisee may assign or transfer this franchise after prior written notice to County of Mason and assignee's written commitment,in a form and content approved by the County Prosecutor,delivered to County of Mason,that assignees shall thereafter be responsible for all obligations of Franchisee with respect to the franchise and guaranteeing performance under the terms and conditions of the franchise and that transferee will be bound by all the conditions of the franchise and will assume all the obligations of its predecessor. Such an assignment shall relieve the Franchisee of any further obligations under the franchise, including any obligations not fulfilled by Franchisee's assignee; provided that,the assignment shall not in any respect relieve the Franchisee,or any of its successors in interest,of responsibility for acts or omissions,known or unknown,or the consequences thereof, which acts or omissions occur prior to the time of the assignment. No franchise or master road use permit may be assigned or transferred without filing or establishing with the county the insurance certificates and performance bond as required pursuant to this franchise. XV. ANNEXATION Whenever any of the County roads, rights-of-way or other county property as designated in this franchise,by reason of the subsequent incorporation of any town or city,or extension of the limits of any town or city, shall fall within the city or town limits and shall by operation of law or otherwise terminate in respect to the said roads,rights-of-way or other county property so included with city or town limits; this franchise shall continue in force and effect to all county roads, rights-of-way or other county property not so included in city or town limits. XVI. REVOCATION/REMEDIES A. Revocation. In addition the right to revoke this franchise as set forth in Title 12 of the Mason County Code, if the Franchisee shall willfully violate, or fail to comply with any of the provisions of this franchise through willful or unreasonable neglect or fail to heed or comply with any notice given the Franchisee under the provision of this grant, then Franchisee shall forfeit all rights conferred hereunder and this franchise may be revoked or annulled,after a public hearing by the Board of County Commissioners. The Franchisee shall not be relieved of any of its obligations to comply promptly with any provision of this franchise by reason of any failure of the County to enforce prompt compliance,and the County's failure to enforce shall not constitute a waiver of rights 14 or acquiescence in the Licensee's conduct. Subject to the required consent, adjudication, permission or authorization of a federal or state regulatory agency with jurisdiction over the subject matter, upon revocation of the franchise, the County may require the Franchisee to remove its utility facilities from any road rights-of-way, and restore such road right-of-way to its same or better condition as existed just prior to such removal,or de-commission and abandon such utility facilities in place in whole or in part and in a manner approved by the County Board of Commissioners. If the Franchisee fails to remove utility facilities that the County requires it to remove,the County may perform the work and collect the cost thereof from the Franchisee. The actual cost thereof,including direct and indirect administrative costs,shall be a lien upon all utility facilities of the Franchisee within the franchise Area effective upon filing of the lien with the Mason County Auditor. B. Remedies. The County has the right to exercise any and all of the following remedies, singly or in combination,in the event of Default. "Default"shall mean any failure of Franchisee or its agents to keep,observe,or perform any of Franchisee's or its agent's duties or obligations under this franchise: 1. Damages. Franchisee shall be liable for any and all damages incurred by County. 2. Specific Performance. County shall be entitled to specific performance of each and every obligation of Franchisee under this franchise without any requirement to prove or establish that County does not have an adequate remedy at law. Franchisee hereby waives the requirement of any such proof and acknowledges that County would not have an adequate remedy at law for Franchisee's commission of an Event of Default hereunder. 3. Injunction. County shall be entitled to restrain, by injunction, the actual or threatened commission or attempt of an Event of Default and to obtain a judgment or order specifically prohibiting a violation or breach of this Agreement without, in either case, being required to prove or establish that County does not have an adequate remedy at law. Franchisee hereby waives the requirement of any such proof and acknowledges that County would not have an adequate remedy at law for Franchisee's commission of an Event of Default hereunder. 4. Alternative Remedies. Neither the existence of other remedies identified in this franchise nor the exercise thereof shall be deemed to bar or otherwise limit the right of the County to commence an action for equitable or other relief, and/or proceed against Franchisee and any guarantor for all direct monetary damages, costs and expenses arising from the Default and to recover all such damages, costs and expenses, including reasonable attorneys' fees. Remedies are cumulative; the exercise of one shall not foreclose the exercise of others. XVII. SUBSEQUENT ACTION In the event that after this franchise becomes effective, (a) there is a change in the law which 15 broadens the authority of the County of Mason or the Franchisee with respect to any act permitted or authorized under this franchise; or (b) the County of Mason or the Franchisee believe that amendments to this franchise are necessary or appropriate, then the County of Mason and the Franchisee agree to enter into good faith negotiations to amend this franchise so as to enable the Parties to address, in a manner reasonably acceptable to all Parties, such change or other development which formed the basis for the negotiations. The Parties recognize that the purpose of the negotiations would be to preserve, to the maximum extent consistent with law, the scope and purpose of this franchise. Mason County reserves for itself the right at any time upon ninety(90) days written notice to the Franchisee, to so change, amend, modify or amplify any of the provisions or conditions herein enumerated to conform to any state statute or county regulation,relating to the public welfare,health, safety or highway regulation,as may hereafter be enacted,adopted or promulgated and this franchise may be terminated at such time a public hearing is held by the Board of County Commissioners,and the Franchisee's utility facilities are found not to be operated or maintained in accordance with such statute or regulation. XVIII. ACCEPTANCE Franchisee shall execute and return to the County of Mason a signed acceptance of the franchise granted hereunder. The acceptance shall be in the form of the acceptance attached hereto as Exhibit "A", and in accepting the franchise, Franchisee warrants that it has carefully read the terms and conditions of this franchise and accepts all of the terms and conditions of this franchise and agrees to abide by the same and acknowledges that it has relied upon its own investigation of all relevant facts, that it has had the assistance of counsel, that it was not induced to accept a franchise, that this franchise represents the entire agreement between the Franchisee and the County of Mason. In the event the Franchisee fails to submit the countersigned ordinance and acceptance as provided for herein within the time limits set forth in this section, the grant herein is and shall become null and void. XIX. MISCELLANEOUS PROVISIONS A. Controlling Law/Venue. Any disputes concerning the application or interpretation of any of the provisions of this franchise shall be governed by the laws of the State of Washington. Venue of any action or arbitration brought under this franchise shall be in Mason County,Washington or the Western District of Washington if an action is brought in federal court, provided, however, that venue of such action is legally proper. B. Liens. Franchisee shall promptly pay and discharge any and all liens arising out of any Work done, suffered or permitted to be done by Franchisee on any Franchise Area. C. Waiver. No waiver by either party of any provision of this franchise shall in any way impair the right of such party to enforce that provision for any subsequent breach, or County of 16 Mason's right to enforce all other provisions of this franchise. D. Attorney's Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this franchise, the substantially prevailing Party or Parties shall be entitled to reasonable attorney's fees,costs and necessary disbursements in addition to any other relief to which such Party or Parties may be entitled. E. Amendment. This franchise may be amended only by a written contract signed by authorized representatives of Franchisee and County of Mason. F. Severability. If any provision of this franchise is held to be illegal, invalid or unenforceable under present or future laws,such provision will be fully severable and this franchise will be construed and enforced as if such illegal, invalid or unenforceable provision is not a part hereof,and the remaining provisions hereof will remain in full force and effect. In lieu of any illegal, invalid or unenforceable provision herein, there will be added automatically as a part of this franchise; a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable. G. Joint and Several Liability. Franchisee acknowledges that, in any case in which Franchisee and Franchisee's Contractors are responsible under the terms of this franchise, such responsibility is joint and several as between Franchisee and any such Franchisee's Contractors; provided that,the Franchisee is not prohibited from allocating such liability as a matter of contract. H. Notices. Any notice contemplated, required, or permitted to be given under this franchise shall be sufficient if it is in writing and is sent either by: (a)registered or certified mail, return receipt requested;or(b)a nationally recognized overnight mail delivery service,to the Party and at the address specified below,except as such Party and address may be changed by providing notice to the other Party no less than thirty (30) days' advance written notice of such change in address. Franchisee: Harstine Island Estates Association 510 E Camus Drive Shelton, WA 98584 Attn: Doug Ot en Grantor: County of Mason Public Works 100 Public Works Drive Shelton, WA 98584 I. Approvals. Nothing in this franchise shall be deemed to impose any duty or obligation upon the County of Mason to determine the adequacy or sufficiency of Franchisee's plans and specifications or to ascertain whether Franchisee's proposed or actual construction, testing, 17 maintenance,repairs,replacement,relocation,adjustment or removal is adequate or sufficient or in conformance with the plans and specifications reviewed by the County of Mason. No approval given, inspection made,review or supervision performed by the County of Mason pursuant to this franchise shall constitute or be construed as a representation or warranty express or implied by County of Mason that such item approved, inspected, or supervised, complies with laws, rules regulations or ordinances or this franchise or meets any particular standard,code or requirement,or is in conformance with the plans and specifications,and no liability shall attach with respect thereto. County and inspections as provided herein, are for the sole purpose of protecting the County of Mason's rights as the owner or manager of the road rights-of-way and shall not constitute any representation or warranty,express or implied,as to the adequacy of the design,construction,repair, or maintenance of the utility facilities, suitability of the Franchise Area for construction, maintenance,or repair of the utility facilities,or any obligation on the part of the County of Mason to insure that work or materials are in compliance with any requirements imposed by a governmental entity. County of Mason is under no obligation or duty to supervise the design, construction, installation, relocation, adjustment, realignment, maintenance, repair, or operation of the utility facilities. J. Force Majeure. Neither Party hereto shall be liable to the other Party for any failure to perform an obligation set forth herein to the extent such failure is caused by war,act of terrorism or an act of God, provided that such Party has made and is making all reasonable efforts to perform such obligation and minimize any and all resulting loss or damage. K. Construction. All pronouns and any variations thereof shall be deemed to refer to the masculine,feminine or neuter,singular or plural,as the identity of the Party or Parties may require. The provisions of this franchise shall be construed as a whole according to their common meaning, except where specifically defined herein,not strictly for or against any party and consistent with the provisions contained herein in order to achieve the objectives and purposes of this franchise. L. Incorporation by Reference. All exhibits annexed hereto at the time of execution of this franchise or in the future as contemplated herein, are hereby incorporated by reference as though fully set forth herein. M. Calculation of Time. All periods of time referred to herein shall include Saturdays, Sundays,and legal holidays in the State of Washington,except that if the last day of any period falls on any Saturday,Sunday,or legal holiday in the State of Washington,the period shall be extended to include the next day which is not a Saturday, Sunday, or legal holiday in the State of Washington. N. Entire Agreement. This franchise is the full and complete agreement of County of Mason and Franchisee with respect to all matters covered herein and all matters related to the use of the Franchise Area by Franchisee and Franchisee's Contractors,and this franchise supersedes any and all other agreements of the Parties hereto with respect to all such matters,including,without limitation, all agreements evidencing the franchise. 18 under applicable law,Franchisee shall have no monetary recourse whatsoever against the County or its officials, boards, commissions, agents, or employees for any loss or damage arising out of the County's exercising its authority pursuant to this Franchise or other applicable law. P. Responsibility for Costs. Except as expressly provided otherwise,any act that Franchisee is required to perform under this franchise shall be performed at its cost. If Franchisee fails to perform work that it is required to perform within the time provided for performance,the County may perform the work and bill the Franchisee. The Franchisee shall pay the amounts billed within 30 days. Q. Work of Contractors and Subcontractors. Work by contractors and subcontractors is subject to the same restrictions, limitations, and conditions as if the work was performed by the Franchisee. The Franchisee shall be responsible for all work performed by its contractors and subcontractors,and others performing work on its behalf,under its control,or under authority of its utility permit,as if the work were performed by it and shall ensure that all such work is performed in compliance with this franchise, Title 12 MCC,the Manual and other applicable law, and shall be jointly and severally liable for all damages and correcting all damage caused by them. It is the Franchisee's responsibility to ensure that contractors,subcontractors,or other Persons performing work on the Franchisee's behalf are familiar with the requirements of the franchise,Title 12 MCC, the Manual, and other applicable laws governing the work performed by them. R. Survival of Terms. Upon the expiration, termination, revocation or forfeiture of the franchise,the Franchisee shall no longer have the right to occupy the franchise area for the purpose of providing services authorized herein. However,the Franchisee's obligations under this franchise to the County shall survive the expiration, termination, revocation or forfeiture of these rights according to its terms for so long as the Franchisee's utility facilities shall remain in whole or in part in the road rights of way. By way of illustration and not limitation, Franchisee's obligations to indemnify, defend and hold harmless the County, provide insurance and a performance/payment bond pursuant to Section XI and Franchisee's obligation to relocate its utility facilities pursuant to Section VIII, shall continue in effect as to the Franchisee, notwithstanding any expiration, termination, revocation or forfeiture of the franchise, except to the extent that a County-approved transfer, sale,or assignment of the utility system is completed,and another entity has assumed full and complete responsibility for the utility system or for the relevant acts or omissions. S. Warranties. By acceptance of this franchise,Franchisee warrants: 1. That Franchisee has full right and authority to enter into and perform this Franchise in accordance with the terms hereof, and by entering into or performing this Franchise, Franchisee is not in violation of its charter or by-laws,or any law,regulation,or agreement by which it is bound or to which it is subject; and 2. That the execution,delivery,and performance of this Franchise by Franchisee has been duly authorized by all requisite Board/Commission action, that the signatories for Franchisee of the acceptance hereof are authorized to sign this Franchise,and that the joinder or consent of any other 19 party, including a court, trustee, or referee, is not necessary to make valid and effective the execution, delivery, and performance of this Franchise and acceptance. DATED at Shelton, Washington this day of 20_. BOARD OF COMMISSIONERS APP OVED: MASON COUNTY, WASHINGTON County Engineer Chair Approve as to form: Vice Chair Chief D.P.A. Commissioner 20 Exhibit A ACCEPTANCE OF FRANCHISE Ordinance No. 115-06, effective November 14, 2006. I, PA rn c L* (-rJm am the 2. of #Ak$r_0�Jc.15La#j)S Esr-4'rrs A-5s0G'f1-)s A) and am the authorized representative to accept the above-referenced franchise on behalf of k4e.sfwe .ZL4A. Z*-rArE5 /4ssoc�aTio� I certify that this franchise and all terms and conditions thereof are accepted by �L,(`}rG5 7/nJF �5 L ANS E6TATE5 4550CiA-7-)0-1 , without qualification or reservation. DATED this Liµ day of/�t i(.„�f k ,' 120/1 FRANCHISEE By: Ze/11j2(�421"Y' Its: Tax Id. No. 27— STATE OFlU ) � ss. COUNTY OF Gl•� LL-- ) I certify that I know or have satisfactory evidence tha�"`I 6arnrry/ is the verso ho appeared before me,and said person acknowledged that heEsliiigned this instrument,on oath stated that he/diRas authorized to ex cute the instru ent and acknowledged it as the "l'C_ta tL�f-C.►� of the Q f4 i0, L.�G�ti L � 1S I cCLY n�I'tb be the free and voluntary act of such party for the uses and �^ purposes mentioned in the instrument. Dated: , l 4& Notary Pub ' ,�Ny„•, h/ Print Name tm 0 g�� '• My commission expires g�'•d��0TAR N'• �►BLIG ' OF A EXHIBIT B Description of Franchise Area Harstine Island Estates " 0 0 � a Puget Sound B RECORDED AT THE REQUEST OF AND AFTER RECORDING RETURN TO: County of Mason 100 West Public Works Drive Shelton WA 98584 Attn: County Engineer Title: Harstine Island Estates Association Franchise Agreement Grantor: COUNTY OF MASON, a legal subdivision of the state of Washington Grantee: HARSTINE ISLAND ESTATES ASSOCIATION Description of Franchise Area: SEE EXHIBIT B IN THE MATTER OF THE APPLICATION OF Lynnwood Community Beach Association FOR A FRANCHISE PERMIT TO CONSTRUCT, OPERATE,AND MAINTAIN A Water System and Appurtenances UTILITY FACILITIES, OVER, ALONG AND UNDER COUNTY ROADS AND HIGHWAYS LOCATED IN MASON COUNTY, WASHINGTON Application of(Name of Operator) Lynnwood Community Beach Association, doing business in Washington as Lynnwood Community Beach Association, with its principal offices located at PO BOX 484, Belfair, WA 98528, by and through (person authorized to act for and on behalf of applicant) Ron Wright, for a franchise to construct, operate and maintain (description of type) utility facilities in,over,along and under county roads and highways in Mason County,Washington,as set forth in attached Exhibit `B" (Franchise Area), having come on regularly for hearing before the County Commissioners of Mason County, Washington, on the day of , 20 , at the hour of , under the provisions of RCW 36.55, RCW 80.32.010 and RCW 80.36.040, and it appearing to the Board that notice of said hearing has been duly given as required by law, and that it is in the public interest to allow the franchise herein granted; NOW THEREFORE, IT IS ORDERED that a non-exclusive franchise be, and the same is hereby given and granted to Operator, and its successors and assigns,hereinafter referred to as the Franchisee, for a period of 10 years with automatic renewal at the end of each term of 10 years unless either party gives the other written notice of termination at least 30 days prior to the end of the relevant term. (no more than ten years each term and can only be renewed 3 times) from and after the date of the entry of this order for the purposes,at the location(s), and upon the express terms and conditions as described herein. I. DEFINITIONS For the purposes of this franchise,terms,phrases,words,and their derivations not defined herein that are defined in Title 12 of the Mason County Code or the Manual on Accommodating Utilities in the Mason County Right-of-Way published by the County Engineer(the"Manual"),shall have the same meaning or be interpreted as provided in Title 12 of the Mason County Code or the Manual. Words not defined here, in Title 12 of the Mason County Code or the Manual shall have their ordinary meaning. A reference to Title 12 of the Mason County Code or the Manual refers to the same as may be amended,revised, updated,re-enacted or re-codified from time to time. II. GRANT The County of Mason hereby grants to the Franchisee a non-exclusive franchise which, once it becomes effective shall authorize the Franchisee to enter upon the road rights-of-way located 1 within the Franchise Area identified in attached Exhibit`B", for the purpose of installing, constructing,maintaining,repairing,replacing,adjusting, relocating and operating the utility facilities, which grant shall be limited to the following described purpose(s): A Water System and Appurtenances. Such grant is subject to and must be exercised in strict accordance with and subject to this franchise, Title 12 of the Mason County Code, the Manual and all applicable laws, rules, regulations and ordinances. Franchisee's exercise of any rights granted pursuant to the franchise is subject to the exercise of the County's police powers,and other regulatory powers as it may have or obtain in the future. No rights shall pass to the franchisee by implication. This franchise does not include permission to enter into or upon the road rights-of-way for any purposes others than the purposes expressly described herein. Permittee has a duty to notify the County of any change in use or condition of the utility facilities that may affect the status of the utility facilities or the impact of the utility facilities upon the road rights-of-way. III. UTILITY PERMIT REQUIRED Franchisee shall not commence or perform work(hereafter"Work")to install,construct,maintain repair, replace adjust, connect, disconnect, rebuild, or relocate its utility facilities within the road rights-of-way,without first applying for,paying all associated fees,and obtaining a utility permit as required pursuant to Title 12 of the Mason County Code. In any utility permit so issued,the County may impose,as a condition of the granting the utility permit,such conditions and regulations as may be necessary for the protection,preservation and management of the road rights-of-way,including, by way of example and not limitation, for the purpose of protecting any structures in the road rights-of-way, maintaining proper distance from other utilities, ensuring the proper restoration of such road rights-of-way and structures,and for the protection of the County and the public and the continuity of pedestrian and vehicular traffic. Franchisee shall first file with the County Engineer its application for a utility permit to do such Work together with plans and specifications in triplicate showing at a minimum: A.The position,depth and location of all such utility facilities sought to be constructed,laid, installed or erected at that time,showing their relative position to existing county roads,rights-of-way or other county property upon plans drawn to scale,hereinafter collectively referred to as the"map of definite location; B. The class and type of material and equipment to be used, manner of excavation, construction,installation,backfill,erection of temporary structures,erection of permanent structures, traffic control,traffic turnouts and road obstructions; C. The manner in which the utility facility is to be installed; D. Measures to be taken to preserve safe and free flow of traffic; 2 E. Structural integrity of the roadway,bridge, or other structure; F. Specifications for the restoration of the county road,right-of-way or other county property in the event that the road right of way will be disturbed by the Work; and G. Provision for ease of future road maintenance and appearance of the roadway. Provision shall be made for known or planned expansion of the utility facilities,particularly those located underground or attached to bridges or other structures within the road right-of-way. The location, alignment and depth of the utility facilities shall conform with said map of definite location,except in instances in which deviation may be allowed thereafter in writing by the County Engineer pursuant to application by Franchisee. All such Work shall be subject to the approval of and shall pass the inspection of the County Engineer.The Franchisee shall pay all costs of and expenses incurred in the examination,inspection and approval of such work on account of granting the said utility permits. IV. RESTORATION OF ROAD RIGHT OF WAY In any Work which disturbs or causes damage to the road rights-of-way subject to this franchise, public or private property, the Franchisee shall at its own expense and with all convenient speed, complete the work to repair and restore the county road right-of-way, or the public or private property so disturbed or damaged, and leave the same in as good or better condition as before the Work was commenced,to the reasonable satisfaction of the County Engineer. The Franchisee shall pay all costs of and expenses incurred in the examination, inspection and approval of such restoration or repair. The County Commissioners and/or County Engineer may at any time do,order or have done any and all work that they consider necessary to restore to a safe condition such County road right-of-way or other County property left by the Franchisee or its agents in a condition dangerous to life or property, and the Franchisee, upon demand, shall pay to the County all costs of such work. V. FRANCHISEE WORK IN RIGHT OF WAY Franchisee expressly agrees and understands that,with regard to Work within the road rights-of-way: A. All of Franchisee's utility facilities and Work within the road rights-of-way or other County property shall be in compliance with the provisions of Title 12 MCC, the Manual, the administrative regulations adopted by the County Engineer,other County established requirements for placement of utility facilities in road rights-of-way, including the specific location of utility facilities in the road rights-of-way, and all applicable laws, rules,regulations and ordinances; B. In preparing plans and specifications for Work of utility facilities in the road rights-of- 3 way the Franchisee shall use the Manual. Prior to commencement of work in the road rights-of-way, Franchisee shall submit such plans and specifications to the Mason County Engineer for review and approval together with adequate exhibits depicting existing or proposed location of the utility facility in relation to the road, including right-of-way or easement lines; relationship to currently planned road revisions,if applicable; and all locations and situations for which deviations in depth of cover (including the proposed method of protection)or other locational standards that are anticipated; C. All Work to utility facilities located within the road rights-of-way or other county property subject to this franchise shall be done in such a manner as not to interfere, other than in ways approved by the County, with the construction, operation and maintenance of other utilities, public or private, drains, drainage ditches and structures, irrigation ditches and structures, located therein,nor with the grading or improvements of such County roads,rights-of-way or other County property; D. The owners and operators of all utility facilities (public or private) installed in the Franchise Area or other county property prior in time to the utility facilities of the Franchisee,shall have preference as to the alignment and location of such utilities so installed with respect to the Franchisee. Such preference shall continue in the event of the necessity of relocating or changing the grade of any such county road or right-of-way; E. Franchisee shall perform the Work and operate its utility facilities in a manner that minimizes interference with the use of the road rights-of-way by others,including others that maybe installing utility facilities; and F. The County may require that Franchisee's utility facilities be installed at a particular time, at a specific place,or in a particular manner as a condition of access to a particular road right-of-way; may deny access if a Franchisee is not willing to comply with the County's requirements; and may remove, or require removal of, any utility facility that is not installed in compliance with the requirements established by the County,or which is installed without prior County approval of the time, place, or manner of installation and charge the Franchisee for all the costs associated with removal; and may require Franchisee to cooperate with others to minimize adverse impacts on the road rights-of-way through joint trenching and other arrangements. G. The County may inspect the utility facilities at any time reasonable under the circumstances to ensure compliance with this franchise and applicable law,including to ensure that the utility facilities are constructed and maintained in a safe condition. If an unsafe condition is found to exist,the County,in addition to taking any other action permitted under applicable law,may order the Franchisee, in writing, to make the necessary repairs and alterations specified therein forthwith to correct the unsafe condition on a time-table established by the County which is reasonable in light of the unsafe condition. The County has the right to correct,inspect,administer, and repair the unsafe condition if the Franchisee fails to do so, and to charge the Franchisee therefore. The right of the County to conduct such inspections and order or make repairs shall not be construed to create an obligation therefore,and such obligation to construct and maintain its utility 4 facilities in a safe condition shall at all times remain the sole obligation of the Franchisee. H. When required by the County,Franchisee shall make information available to the public regarding any work involving the ongoing installation,construction,adjustment,relocation,repair or maintenance of its utility facilities sufficient to show (1)the nature of the work being performed; (2)where it is being performed; (3)its estimated completion date; and(4)progress to completion. I. FRANCHISEE IS PLACED ON NOTICE THAT FIBER OPTIC,COMMUNICATIONS, POWER, CONTROL SYSTEMS, OTHER TYPES OF CABLES, AND PIPELINES MAY BE BURIED ON THE RIGHT OF WAY. Before beginning any underground work, Franchisee will contact the appropriate personnel to have such facilities located and make arrangements as to protective measures that must be adhered to prior to the commencement of any work within the Road rights-of-way. In addition to the liability terms elsewhere in this Agreement, Franchisee shall indemnify and hold the County and its elected and appointed officers, employees and agents harmless against and from all cost,liability,and expense whatsoever(including,without limitation, attorney's fees and court costs and expenses)arising out of or in any way contributed to by any act or omission of Franchisee, its contractor,agents and/or employees,that cause or in any way or degree contribute to (1) any damage to or destruction of any such facilities by Franchisee, and/or its contractor, agents and/or employees, on the County's property, (2) any injury to or death of any person employed by or on behalf of any entity,and/or its contractor,agents and/or employees,on the road rights-of-way, and/or(3) any claim or cause of action for alleged loss of profits or revenue,or loss of service, by a customer or user of services or products of such company(ies) (collectively "Liabilities" for purposes of this Section V.I). The only Liabilities with respect to which Franchisee's obligation to indemnify the County and its elected and appointed officers, employees and agents does not apply are Liabilities to the extent arising out of,caused by or resulting from the negligence of the County, and its elected and appointed officers, employees and agents and Liabilities that by law the County and its elected and appointed officers, employees and agents for which the County cannot be indemnified. J. Franchisee shall continuously be a member of the State of Washington one number locator service under RCW 19.122, or an approved equivalent, and shall comply with all such applicable rules and regulations. K. Except in the event of emergency as described below,Franchisee and its Agents may not enter upon the Franchise Area to perform work for which a utility permit is not required,unless and except upon two-business days notice to the County Engineer. L. In the event of an emergency involving the threat of imminent harm to persons or property,and for purposes of taking immediate corrective action,Franchisee and its agents may enter the Franchise Area without advance notice to the County as long as such entry is for the sole purpose of addressing the emergency; provided however, that if any entry for such purposes would require issuance of a utility permit,Franchisee shall give the County verbal or telephonic notice of the places where and the manner in which entry is required prior to such entry,promptly followed by written notice. In all cases,notice to the County shall be given as far in advance as practical prior to entry or as soon as practicable after entry upon the road right-of-Way. 5 M. Franchisee shall promptly reimburse the County for their reasonable and direct costs incurred in responding to an emergency that is caused, created by or attributable to the presence, construction,maintenance,repair,or operation of the Franchisees utility facilities in the road rights- of-way. N. If,during installation,construction,relocation,realignment,adjustment,maintenance,or repair of the Franchisee's utility facilities in the road rights-of-way,Franchisee or its agents discover scientific or historic artifacts,Franchisee shall immediately notify the County of said discovery and shall protect such artifacts in a manner as specified by the County. Any such artifact shall be the property of the County if the County wishes to own it. VI. PROTECTION OF PUBLIC All work done under this franchise shall be done in a thorough and workman-like manner. In the performance of Work within or near the road rights-of-way, including without limitation, the opening of trenches and the tunneling under county roads,rights-of way or other county property,the Franchisee shall leave such trenches, ditches and tunnels in such a way as to interfere as little as possible with public travel and shall take all due and necessary precautions to guard the same,so that damage or injury shall not occur or arise by reason of such Work; and where any of such trenches, ditches and tunnels are left open at night, the Franchisee shall place warning lights,barricades and other appropriate protective devices at such a position as to give adequate warning of such Work. The Franchisee shall be liable for any injury to person or persons or damage to property sustained arising out of its carelessness or neglect,or through any failure or neglect to properly guard or give warning of any trenches, ditches or tunnels dug or maintained by the Franchisee. VII. POLICE POWERS The County of Mason,in granting this franchise,does not waive any rights which it now has or may hereafter acquire with respect to county roads, rights-of-way or other county property and this franchise shall not be construed to deprive the county of any powers, rights or privileges which it now has or may hereafter acquire to regulate the use of and to control the county roads,rights-of-way and other county property covered by this franchise. The County retains the right to administer and regulate activities of the Franchisee up to the fullest extent of the law. The failure to reserve a particular right to regulate,or reference a particular regulation, shall not be interpreted by negative implication or otherwise to prevent the application of a regulation to the Franchisee. VIII. RELOCATION Franchisee shall, in the course of any Work, comply with the following requirements: A. The Franchisee shall, by a time specified by the County, protect, support, temporarily disconnect,relocate,or remove any of its utility facilities when required by the County by reason of traffic conditions;public safety;road right-of-way construction;road right-of-way repair(including 6 resurfacing or widening);change of road right-of-way grade; construction,installation,or repair of County-owned sewers,drains,water pipes,power lines,signal lines,tracks,communications system, other public work, public facility, or improvement of any government-owned utility; road right-of-way vacation;or for any other purpose where the County work involved would be aided by the removal or relocation of the utility facilities. Collectively,such matters are referred to below as the "public work." Franchisee acknowledges and understands that any delay by Franchisee in performing the herein described work may delay, hinder, or interfere with the work performed by the County and its contractors and subcontractors done in furtherance of such Public Work and result in damage to the County,including but not limited to,delay claims. Franchisee shall cooperate with the County and its contractors and subcontractors to coordinate such Franchisee work to accommodate the Public Work project and project schedules to avoid delay, hindrance of, or interference with the Public Work. The County of Mason shall make available to the Franchisee a copy of the Six Year Transportation Program and the County's annual construction program after adoption each year. It is anticipated these programs will aid the utility in planning construction programs. B. Franchisee has a duty to protect its utility facilities from work performed by the County within the road rights-of-way. The rights granted to the Franchisee herein do not preclude the County of Mason, its employees, contractors, subcontractors, and agents from blasting, grading, excavating, or doing other necessary road work contiguous to Franchisee's utility facilities; providing that, the Franchisee shall be given a minimum of forty-eight (48) hours notice of said blasting or other work in order that the Franchisee may protect its utility facilities. C. In the event of an emergency,or where the utility facility creates or is contributing to an imminent danger to health, safety, or property, the County may protect, support, temporarily disconnect,remove,or relocate any or all parts of the utility facility without prior notice,and charge the Franchisee for costs incurred. D. If any Person that is authorized to place facilities in the road right of way requests the Franchisee to protect, support, temporarily disconnect,remove,or relocate the Franchisee's utility facilities to accommodate the construction,operation,or repair of the facilities of such other person, the Franchisee shall,after 30 days'advance written notice,take action to effect the necessary changes requested;provided that,if such project is related to or competes with Franchisee's service,or if the effect of such changes would be to permanently deprive Franchisee of the beneficial enjoyment of this franchise for its intended purposes through interference with the operation of Franchisee's utility facilities or otherwise, Franchisee shall not be required to relocate its utility facilities. Unless the matter is governed by a valid contract or a state or federal law or regulation, or unless the Franchisee's utility facilities were not properly installed, the reasonable cost of the same shall be borne by the Person requesting the protection, support, temporary disconnection, removal, or relocation at no charge to the County, even if the County makes the request for such action. 7 E. The Franchisee shall, on the request of any person holding a valid permit issued by a governmental authority, temporarily raise or lower its wires to permit the moving of buildings or other objects. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same. The County of Mason will accept liability for direct and actual damages to said Franchisee that are the result of the negligence of Mason County, its trustees, officers, employees, contractors, subcontractors or agents while performing County improvement or Public Works projects enumerated in the original franchise agreement under Section VIII,paragraph B. Direct and actual damages are specifically limited to physical damage to properly installed and located infrastructure of the Franchisee and the cost to repair such physical damage. Mason County retains the right to assert all applicable defenses in the event of a dispute including contributory negligence on the part of the Franchisee. Mason County shall in no way be liable for incidental damages claimed to arise from such actions. All Work to be performed by the Franchisee under this section shall pass the inspection of the County Engineer. The Franchisee shall pay all costs of and expenses incurred in the examination, inspection and approval of such work. IX. PRESERVATION OF MONUMENTS/MARKERS Before any work is performed under this franchise which may affect any existing monuments or markers of any nature relating to subdivisions,plats,roads and all other surveys,the Franchisee shall reference all such monuments and markers. The reference points shall be so located that they will not be disturbed during the Franchisee's operations under this franchise. The method of referencing these monuments or other points to be referenced shall be approved by the County Engineer. The replacement of all such monuments or markers disturbed during construction shall be made as expeditiously as conditions permit,and as directed by the County Engineer. The cost of monuments or other markers lost, destroyed, or disturbed, and the expense of replacement by approved monuments shall be borne by the Franchisee. A complete set of reference notes for monument and other ties shall be filed with the office of the Mason County Engineer. X. VACATION OF ROAD RIGHT-OF-WAY If at any time the County shall vacate any County road,right-of-way or other County property which is subject to rights granted by this franchise and said vacation shall be for the purpose of acquiring the fee or other property interest in said road, right-of-way or other county property for the use of Mason County,in either its proprietary or governmental capacity,then the Board of Mason County Commissioners may, at its option, and by giving thirty(30)days written notice to the Franchisee, terminate this franchise with reference to such county road,right-of-way or other county property so vacated, and the County of Mason shall not be liable for any damages or loss to the Franchisee by reason of such termination. It has been the practice of Mason County to reserve easements for 8 utilities at the time of road vacation,and will continue to be the practice until such time the Board of Mason County Commissioners direct a change of practice. XI. FINANCIAL SECURITY A. Insurance Except as otherwise provided herein,Franchisee shall maintain for itself and the County,throughout the entire period any part of Franchisee's utility facilities are located in the Franchise Area, adequate insurance to protect the Parties and their elected and appointed officers, agents, employees against all of County's and Franchisee's liability arising out of Franchisee's use and occupancy of the Franchise Area or any part thereof. This obligation shall require the Franchisee to maintain insurance at least in the following amounts: 1. COMMERCIAL GENERAL LIABILITY insurance to cover liability, bodily injury, and property damage. The Commercial General Liability insurance shall be written on an occurrence basis, with an aggregate limit location endorsement for the Franchise Area, and shall provide coverage for any and all costs, including defense costs, and losses and damages resulting from personal injury, bodily injury and death, property damage, products liability and completed operations. Such insurance shall include blanket contractual coverage, including coverage for the Franchise as now or hereafter amended and specific coverage for the indemnity provisions set forth herein. Coverage must be written with the following limits of liability: Bodily and Personal Injury& Property Damage $ 1,000,000 per Occurrence $ 2,000,000 aggregate 2 WORKERS' COMPENSATION insurance shall be maintained to comply with statutory limits for all employees,and in the case any work is sublet,the Franchisee shall require its contractors and subcontractors similarly to provide workers' compensation insurance for all the employees. The Franchisee shall also maintain, during the life of this policy, employer's liability insurance;provided that this obligation shall not apply to any time period during which Franchisee has no employees. The following minimum limits must be maintained: Workers' Compensation Statutory Employer's Liability $ 1,000,000 each occurrence 3.COMPREHENSIVE AUTO LIABILITY insurance shall include owned,hired,and non-owned vehicles operated by Franchisee employees on an occurrence basis with coverage of at least$2,000,000 per occurrence. If the Franchisee, its contractors, or subcontractors do not have the required insurance, the County may require such entities to stop operations until the insurance is obtained and approved. Certificates of Insurance reflecting evidence of the required insurance and approved by the County's 9 Risk Manager for the GENERAL LIABILITY policies described above,shall be sent to the County's risk manager. The certificate shall be filed with the acceptance of the franchise, and annually thereafter, and as provided below. All coverage shall be listed all on one certificate with the same expiration dates. The certificates shall contain a provision that coverages afforded under these policies will not be canceled until at least 30 days'prior written notice has been given to the County. In the event that the insurance certificate provided indicates that the insurance shall terminate or lapse during the period of the franchise,then,in that event,the Franchisee shall furnish, at least 30 days prior to the expiration of the date of such insurance,a renewed certificate of insurance as proof that equal and like coverage has been or will be obtained prior to any such lapse or termination during the balance of the period of the franchise. The County reserves the right, during the term of the franchise, to require any other insurance coverage or adjust the policy limits as it deems reasonably necessary utilizing sound risk management practices and principals based upon the loss exposures. Each insurance policy required pursuant to this franchise shall be primary and non-contributing as respects any coverage maintained by the County and shall include an endorsement reflecting the same. Any other coverage maintained by County shall be excess of this coverage herein defined as primary and shall not contribute with it. The certificate of insurance must reflect that the above wording is included in all such policies. Each insurance policy obtained pursuant to this franchise shall be issued by financially sound insurers who may lawfully do business in the State of Washington with a financial rating at all times during coverage of no less than rating of"A" and a class of"X" or better in the latest edition of "Best's Key Rating Guide"published by A.M.Best Company,or such other financial rating or rating guide approved in writing by the County's risk manager. In the event that at any time during coverage,the insurer does not meet the foregoing standards,Franchisee shall give prompt notice to the County and shall seek coverage from an insurer that meets the foregoing standards. The County reserves the right to change the rating or the rating guide depending upon the changed risks or availability of other suitable and reliable rating guides. Comprehensive general liability insurance policies and coverage obtained pursuant to this franchise shall include an endorsement (standard ISO form CG 24-17)deleting all exclusions for work or incidents occurring within any distance from a railroad track or railroad property, or on, over, or under a railroad track. Insurance policies required pursuant to this franchise shall have no non-standard exclusions unless approved of by the County Risk Manager or designee. Commercial general liability insurance policies obtained pursuant to this franchise shall name the 10 County as an additional insured without limitation,pursuant to an endorsement approved of by the County's Risk Manager or designee. Franchisee and Franchisee's Contractors' insurers, through policy endorsement, shall waive their rights of subrogation against the County for all claims and suits. The certificate of insurance must reflect this waiver of subrogation rights endorsement. Commercial General Liability Insurance policies and coverage required herein of public utility operators may include a reasonable deductible or self-insured retention;provided,however,that as to any Loss or Damage covered as provided herein, if Franchisee elects to include any deductible or self-insured retention,Franchisee shall itself directly cover,in lieu of insurance,any and all County liabilities that would otherwise in accordance with the provisions of this Franchise be covered by Franchisee's insurance if Franchisee elected not to include a deductible or self-insured retention. Such direct coverage by Franchisee shall be in an amount equal to the amount of Franchisee's actual deductible or self-insured retention. Franchisee shall be required to provide a certification of self- insurance retention to the county in a form and content acceptable to the county engineer. B. Performance/Payment Bond. At the same time Franchisee provides its acceptance of this Franchise, the Franchisee shall, if required by the County Engineer, provide a performance and payment bond to ensure the full and faithful performance of all of its responsibilities under this franchise and applicable rules, regulations and ordinances, including, by way of example, but not limited to,its obligations to relocate and remove its utility facilities,to restore the road rights-of-way and other property when damaged or disturbed, and to reimburse the County for its costs. The amount of the performance and payment bond shall be for ZERO ($0). The amount of the bond,or cash deposit as described below, may be adjusted by the County every five years from the date of execution of this franchise,to take into account cumulative inflation or increased risks to the County. The Franchisee may be required to obtain additional bonds in accordance with the County's ordinary practices. The bond shall be in a form with terms and conditions acceptable to the County and reviewed and approved by the County Engineer. The bond shall be with a surety with a rating no less than "A V in the latest edition of"Bests Key Rating Guide," published by A.M. Best Guide. The Franchisee shall pay all premiums or costs associated with maintaining the bond,and shall keep the same in full force and effect at all times.If Franchisee fails to provide or maintain the bond,then the County,in its sole discretion,may require Franchisee to substitute an equivalent cash deposit as described below in lieu of the bond. Franchisee, may at its election or upon order by the County, substitute an equivalent cash deposit instead of a performance and payment bond. This cash deposit shall ensure the full and faithful performance of all of Franchisee's responsibilities hereto under this Permit and all applicable laws, rules, regulations or ordinances. This includes, but is not limited to, its obligations to relocate or remove its facilities, restore the road rights-of-way and other property to their original condition, reimbursing the County for its costs, and keeping Franchisee's insurance in full force. The County shall notify Franchisee in writing, by certified mail, of any default and shall give 11 Franchisee thirty(30)days from the date of such notice to cure any such default. In the event that the Franchisee fails to cure such default to the satisfaction of the County,the County may,at its option, forfeit the entire amount of the cash deposit or draw upon the cash deposit up to the amount of the County's costs incurred to cure Franchisee's default. Upon the County's cure of Franchisee's default,the County shall notify Franchisee in writing of such cure. In the event that the County draws upon the cash deposit or forfeits the same, Franchisee shall thereupon replenish the cash deposit to the full amount as specified herein or provide a replacement performance and payment bond. Before any Work commences in the road right-of-way,the County Engineer may require the operator to provide a performance and payment bond for each separate project in an amount to be determined by the County Engineer, but not less than five hundred dollars, written by a surety company acceptable to the County Risk Manager and authorized to do business in the state of Washington. The purpose of the bond is to insure completion of construction, including the restoration of surfacing,slopes,slope treatment,topsoil,landscape treatment,and drainage facilities,and cleanup of rights-of-way, and payment of costs incurred by the County to enforce the requirements of this Chapter. The performance and payment bond shall be in place for a period ending not more than one year after the date of completion. A project specific performance bond shall not be required in the event that the franchisee has in place a blanket performance bond and, when required, a payment bond, maintained pursuant to the requirements of this franchise. A performance and payment bond for work in the road right-of-way will not be required of the United States Government or any of its agencies or of any municipal corporation or department of the state of Washington and its local subdivisions. C. Limitation of Liability. To the fullest extent permitted by law,the Franchisee shall,and shall cause its contractor(s) to release, indemnify, defend and hold harmless the county and the county's legal representatives,officer(elected or),appointed)employees and agents(collectively, "indemnitees")for, from and against any and all claims, liabilities, fines,penalties, cost,damages, losses, liens, causes of action, suits, demands, judgments and expenses (including, without limitations, court costs, attorneys' fees and costs of investigation, removal and remediation and governmental oversight costs),Environmental or otherwise(collectively"liabilities")of any nature, kind, or description,of any person or entity,directly or indirectly,arising out of,resulting from,or related to(in whole or in part): 1. this franchise; 2. any rights or interests granted pursuant to this franchise; 3. franchisee's occupation and use of the road right of way; 12 4. franchisee's operation of its utility facilities; 5. the presence of utility facilities within the right of way; 6. the environmental condition and status of the road right-of-way caused by, aggravated by, or contributed to, in whole or in part,by franchisee or its agents; or 7. The acts,errors,or omissions of third parties when arising out of the installation, construction,adjustment,relocation,replacement,removal,or maintenance of such third party utility facilities within the road rights-of-way when such work is performed under authority of the operator's utility permit or at the direction or under the control of the operator; or 8. any act or omission of franchisee or franchisee's agents; The only liabilities with respect to which franchisee's obligation to indemnify the indemnitees do not apply are liabilities to the extent arising out of, caused by or resulting from the negligence of the county, its officers, agents, employees or contractors and liabilities that by law the indemnities cannon be indemnified for. Upon written notice from the county,franchisee agrees to assume the defense of any lawsuit or other proceeding brought against any indemnitee by any entity, relating to any matter covered by this franchise for which franchisee has an obligation to assume liability for and/or save and hold harmless any indemnitee.Franchisee shall pay all cost incident to such defense,including,but not limited to, attorneys' fees,investigators'fees,litigation and appeal expenses,settlement payments and amounts paid in satisfaction of judgments. Franchisee will fully satisfy said judgment within ninety(90)days after said suit or action shall have finally been determined if determined adversely to Mason County. Upon the Franchisee's failure to satisfy said judgment within the ninety (90) day period, this franchise shall at once cease and terminate. Acceptance by the County of any Work performed by the Franchisee at the time of completion shall not be grounds for avoidance of this covenant. XII. FRANCHISE NONEXCLUSIVE This franchise shall not be deemed to be an exclusive franchise. It shall in no manner prohibit the County of Mason from granting other utilities under,along,across,over and upon any of the County roads,rights-of-way or other County property subject to this franchise and shall in no way prevent or prohibit the County of Mason from constructing, altering, maintaining or using any of said roads, rights-of-way,drainage structures or facilities,irrigation structures or facilities,or any other county property or affect its jurisdiction over them or any part of them with full power to make all necessary changes,relocations, repairs,maintenance, etc., the same as the county may deem fit. 13 XIII. SUCCESSORS AND ASSIGNS All the provisions,conditions,regulations and requirements herein contained shall be binding upon the successors and assigns of the Franchisee,and all privileges,as well as all obligations and liability of the Franchisee, shall ensure to its successors and assigns equally as if they were specifically mentioned wherever the Franchisee is mentioned. Any reference in this franchise to a specifically named party shall be deemed to apply to any successor, heir, administrator, executor or assign of such party who has acquired its interest in compliance with the terms of this franchise,or under law. XIV. TRANSFER/ASSIGNMENT Franchisee may assign or transfer this franchise after prior written notice to County of Mason and assignee's written commitment,in a form and content approved by the County Prosecutor,delivered to County of Mason,that assignees shall thereafter be responsible for all obligations of Franchisee with respect to the franchise and guaranteeing performance under the terms and conditions of the franchise and that transferee will be bound by all the conditions of the franchise and will assume all the obligations of its predecessor. Such an assignment shall relieve the Franchisee of any further obligations under the franchise, including any obligations not fulfilled by Franchisee's assignee; provided that,the assignment shall not in any respect relieve the Franchisee,or any of its successors in interest,of responsibility for acts or omissions,known or unknown,or the consequences thereof, which acts or omissions occur prior to the time of the assignment. No franchise or master road use permit may be assigned or transferred without filing or establishing with the county the insurance certificates and performance bond as required pursuant to this franchise. XV. ANNEXATION Whenever any of the County roads, rights-of-way or other county property as designated in this franchise,by reason of the subsequent incorporation of any town or city,or extension of the limits of any town or city, shall fall within the city or town limits and shall by operation of law or otherwise terminate in respect to the said roads,rights-of-way or other county property so included with city or town limits; this franchise shall continue in force and effect to all county roads, rights-of-way or other county property not so included in city or town limits. XVI. REVOCATION/REMEDIES A. Revocation. In addition the right to revoke this franchise as set forth in Title 12 of the Mason County Code, if the Franchisee shall willfully violate, or fail to comply with any of the provisions of this franchise through willful or unreasonable neglect or fail to heed or comply with any notice given the Franchisee under the provision of this grant, then Franchisee shall forfeit all rights conferred hereunder and this franchise may be revoked or annulled,after a public hearing by the Board of County Commissioners. The Franchisee shall not be relieved of any of its obligations to comply promptly with any provision of this franchise by reason of any failure of the County to enforce prompt compliance,and the County's failure to enforce shall not constitute a waiver of rights 14 or acquiescence in the Licensee's conduct. Subject to the required consent, adjudication, permission or authorization of a federal or state regulatory agency with jurisdiction over the subject matter, upon revocation of the franchise, the County may require the Franchisee to remove its utility facilities from any road rights-of-way, and restore such road right-of-way to its same or better condition as existed just prior to such removal,or de-commission and abandon such utility facilities in place in whole or in part and in a manner approved by the County Board of Commissioners. If the Franchisee fails to remove utility facilities that the County requires it to remove,the County may perform the work and collect the cost thereof from the Franchisee. The actual cost thereof,including direct and indirect administrative costs,shall be a lien upon all utility facilities of the Franchisee within the franchise Area effective upon filing of the lien with the Mason County Auditor. B. Remedies. The County has the right to exercise any and all of the following remedies, singly or in combination,in the event of Default. "Default"shall mean any failure of Franchisee or its agents to keep,observe,or perform any of Franchisee's or its agent's duties or obligations under this franchise: 1. Damages. Franchisee shall be liable for any and all damages incurred by County. 2. Specific Performance. County shall be entitled to specific performance of each and every obligation of Franchisee under this franchise without any requirement to prove or establish that County does not have an adequate remedy at law. Franchisee hereby waives the requirement of any such proof and acknowledges that County would not have an adequate remedy at law for Franchisee's commission of an Event of Default hereunder. 3. Injunction. County shall be entitled to restrain, by injunction, the actual or threatened commission or attempt of an Event of Default and to obtain a judgment or order specifically prohibiting a violation or breach of this Agreement without, in either case, being required to prove or establish that County does not have an adequate remedy at law. Franchisee hereby waives the requirement of any such proof and acknowledges that County would not have an adequate remedy at law for Franchisee's commission of an Event of Default hereunder. 4. Alternative Remedies. Neither the existence of other remedies identified in this franchise nor the exercise thereof shall be deemed to bar or otherwise limit the right of the County to commence an action for equitable or other relief, and/or proceed against Franchisee and any guarantor for all direct monetary damages, costs and expenses arising from the Default and to recover all such damages, costs and expenses, including reasonable attorneys' fees. Remedies are cumulative; the exercise of one shall not foreclose the exercise of others. XVII. SUBSEQUENT ACTION In the event that after this franchise becomes effective, (a) there is a change in the law which 15 broadens the authority of the County of Mason or the Franchisee with respect to any act permitted or authorized under this franchise; or (b)the County of Mason or the Franchisee believe that amendments to this franchise are necessary or appropriate, then the County of Mason and the Franchisee agree to enter into good faith negotiations to amend this franchise so as to enable the Parties to address, in a manner reasonably acceptable to all Parties, such change or other development which formed the basis for the negotiations. The Parties recognize that the purpose of the negotiations would be to preserve, to the maximum extent consistent with law, the scope and purpose of this franchise. Mason County reserves for itself the right at any time upon ninety(90) days written notice to the Franchisee, to so change, amend, modify or amplify any of the provisions or conditions herein enumerated to conform to any state statute or county regulation,relating to the public welfare,health, safety or highway regulation,as may hereafter be enacted,adopted or promulgated and this franchise may be terminated at such time a public hearing is held by the Board of County Commissioners,and the Franchisee's utility facilities are found not to be operated or maintained in accordance with such statute or regulation. XVIII. ACCEPTANCE Franchisee shall execute and return to the County of Mason a signed acceptance of the franchise granted hereunder. The acceptance shall be in the form of the acceptance attached hereto as Exhibit "A", and in accepting the franchise, Franchisee warrants that it has carefully read the terms and conditions of this franchise and accepts all of the terms and conditions of this franchise and agrees to abide by the same and acknowledges that it has relied upon its own investigation of all relevant facts, that it has had the assistance of counsel, that it was not induced to accept a franchise, that this franchise represents the entire agreement between the Franchisee and the County of Mason. In the event the Franchisee fails to submit the countersigned ordinance and acceptance as provided for herein within the time limits set forth in this section, the grant herein is and shall become null and void. XIX. MISCELLANEOUS PROVISIONS A. Controlling Law/Venue. Any disputes concerning the application or interpretation of any of the provisions of this franchise shall be governed by the laws of the State of Washington. Venue of any action or arbitration brought under this franchise shall be in Mason County,Washington or the Western District of Washington if an action is brought in federal court, provided, however, that venue of such action is legally proper. B. Liens. Franchisee shall promptly pay and discharge any and all liens arising out of any Work done, suffered or permitted to be done by Franchisee on any Franchise Area. C. Waiver. No waiver by either party of any provision of this franchise shall in any way impair the right of such party to enforce that provision for any subsequent breach, or County of 16 Mason's right to enforce all other provisions of this franchise. D. Attorney's Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this franchise, the substantially prevailing Party or Parties shall be entitled to reasonable attorney's fees,costs and necessary disbursements in addition to any other relief to which such Party or Parties may be entitled. E. Amendment. This franchise may be amended only by a written contract signed by authorized representatives of Franchisee and County of Mason. F. Severability. If any provision of this franchise is held to be illegal, invalid or unenforceable under present or future laws,such provision will be fully severable and this franchise will be construed and enforced as if such illegal, invalid or unenforceable provision is not a part hereof,and the remaining provisions hereof will remain in full force and effect. In lieu of any illegal, invalid or unenforceable provision herein, there will be added automatically as a part of this franchise; a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal,valid and enforceable. G. Joint and Several Liability. Franchisee acknowledges that, in any case in which Franchisee and Franchisee's Contractors are responsible under the terms of this franchise, such responsibility is joint and several as between Franchisee and any such Franchisee's Contractors; provided that,the Franchisee is not prohibited from allocating such liability as a matter of contract. H. Notices. Any notice contemplated, required, or permitted to be given under this franchise shall be sufficient if it is in writing and is sent either by: (a)registered or certified mail, return receipt requested;or(b)a nationally recognized overnight mail delivery service,to the Party and at the address specified below,except as such Party and address may be changed by providing notice to the other Party no less than thirty (30) days' advance written notice of such change in address. Franchisee: Lynnwood Community Beach Association PO BOX 484 Belfair, WA 98528 Attn: Ron Wright Grantor: County of Mason Public Works 100 Public Works Drive Shelton, WA 98584 I. Approvals. Nothing in this franchise shall be deemed to impose any duty or obligation upon the County of Mason to determine the adequacy or sufficiency of Franchisee's plans and specifications or to ascertain whether Franchisee's proposed or actual construction, testing, 17 maintenance,repairs,replacement,relocation,adjustment or removal is adequate or sufficient or in conformance with the plans and specifications reviewed by the County of Mason. No approval given, inspection made, review or supervision performed by the County of Mason pursuant to this franchise shall constitute or be construed as a representation or warranty express or implied by County of Mason that such item approved, inspected, or supervised, complies with laws, rules regulations or ordinances or this franchise or meets any particular standard,code or requirement,or is in conformance with the plans and specifications,and no liability shall attach with respect thereto. County and inspections as provided herein, are for the sole purpose of protecting the County of Mason's rights as the owner or manager of the road rights-of-way and shall not constitute any representation or warranty,express or implied,as to the adequacy of the design,construction,repair, or maintenance of the utility facilities, suitability of the Franchise Area for construction, maintenance,or repair of the utility facilities,or any obligation on the part of the County of Mason to insure that work or materials are in compliance with any requirements imposed by a governmental entity. County of Mason is under no obligation or duty to supervise the design, construction, installation, relocation, adjustment, realignment, maintenance, repair, or operation of the utility facilities. J. Force Majeure. Neither Party hereto shall be liable to the other Party for any failure to perform an obligation set forth herein to the extent such failure is caused by war,act of terrorism or an act of God, provided that such Party has made and is making all reasonable efforts to perform such obligation and minimize any and all resulting loss or damage. K. Construction. All pronouns and any variations thereof shall be deemed to refer to the masculine,feminine or neuter,singular or plural,as the identity of the Party or Parties may require. The provisions of this franchise shall be construed as a whole according to their common meaning, except where specifically defined herein,not strictly for or against any party and consistent with the provisions contained herein in order to achieve the objectives and purposes of this franchise. L. Incorporation by Reference. All exhibits annexed hereto at the time of execution of this franchise or in the future as contemplated herein, are hereby incorporated by reference as though fully set forth herein. M. Calculation of Time. All periods of time referred to herein shall include Saturdays, Sundays,and legal holidays in the State of Washington,except that if the last day of any period falls on any Saturday,Sunday,or legal holiday in the State of Washington,the period shall be extended to include the next day which is not a Saturday, Sunday, or legal holiday in the State of Washington. N. Entire Agreement. This franchise is the full and complete agreement of County of Mason and Franchisee with respect to all matters covered herein and all matters related to the use of the Franchise Area by Franchisee and Franchisee's Contractors,and this franchise supersedes any and all other agreements of the Parties hereto with respect to all such matters,including,without limitation, all agreements evidencing the franchise. 18 under applicable law,Franchisee shall have no monetary recourse whatsoever against the County or its officials, boards, commissions, agents, or employees for any loss or damage arising out of the County's exercising its authority pursuant to this Franchise or other applicable law. P. Responsibility for Costs. Except as expressly provided otherwise,any act that Franchisee is required to perform under this franchise shall be performed at its cost. If Franchisee fails to perform work that it is required to perform within the time provided for performance,the County may perform the work and bill the Franchisee. The Franchisee shall pay the amounts billed within 30 days. Q. Work of Contractors and Subcontractors. Work by contractors and subcontractors is subject to the same restrictions, limitations, and conditions as if the work was performed by the Franchisee. The Franchisee shall be responsible for all work performed by its contractors and subcontractors,and others performing work on its behalf,under its control,or under authority of its utility permit,as if the work were performed by it and shall ensure that all such work is performed in compliance with this franchise, Title 12 MCC,the Manual and other applicable law, and shall be jointly and severally liable for all damages and correcting all damage caused by them. It is the Franchisee's responsibility to ensure that contractors, subcontractors,or other Persons performing work on the Franchisee's behalf are familiar with the requirements of the franchise,Title 12 MCC, the Manual, and other applicable laws governing the work performed by them. R. Survival of Terms. Upon the expiration, termination, revocation or forfeiture of the franchise,the Franchisee shall no longer have the right to occupy the franchise area for the purpose of providing services authorized herein. However,the Franchisee's obligations under this franchise to the County shall survive the expiration, termination, revocation or forfeiture of these rights according to its terms for so long as the Franchisee's utility facilities shall remain in whole or in part in the road rights of way. By way of illustration and not limitation, Franchisee's obligations to indemnify, defend and hold harmless the County, provide insurance and a performance/payment bond pursuant to Section XI and Franchisee's obligation to relocate its utility facilities pursuant to Section VIII, shall continue in effect as to the Franchisee, notwithstanding any expiration, termination, revocation or forfeiture of the franchise, except to the extent that a County-approved transfer, sale, or assignment of the utility system is completed,and another entity has assumed full and complete responsibility for the utility system or for the relevant acts or omissions. S. Warranties. By acceptance of this franchise,Franchisee warrants: 1. That Franchisee has full right and authority to enter into and perform this Franchise in accordance with the terms hereof, and by entering into or performing this Franchise, Franchisee is not in violation of its charter or by-laws,or any law,regulation,or agreement by which it is bound or to which it is subject; and 2. That the execution,delivery,and performance of this Franchise by Franchisee has been duly authorized by all requisite Board/Commission action, that the signatories for Franchisee of the acceptance hereof are authorized to sign this Franchise,and that the joinder or consent of any other 19 party, including a court, trustee, or referee, is not necessary to make valid and effective the execution, delivery, and performance of this Franchise and acceptance. DATED at Shelton, Washington this day of 20_. BOARD.OF COMMISSIONERS APPR VED: MASON COUNTY,WASHINGTON z County Engineer Chair Approve as to form: Vice Chair Chief D.P.A. Commissioner 20 Exhibit A ACCEPTANCE OF FRANCHISE Ordinance No. 115-06, effective November 14, 2006. 1, AL 4_L e r,14 !, am the ;P/e e. S, of Z,v.,yc•,66 ) Self,- and am the authorized representative to accept the above-referenced franchise on behalf of I certify that this franchise and all terms and conditions thereof are accepted by without qualification or reservation. DATED this S Pay of / tlj , 20_Ly FRANCHISEE By: Its: Tax Id. No. STATE OF ) ss. COUNTY OFNaG - � ) I certify that I know or have satisfactory evidence thatis the person who appeared before me,and said person acknowledged that helqksig!d this strument,on oath stated that hel'gke was auth rized to execute the instrument and acknowledged it as the 1�Jpe-s d_k of the .woad ASSo0_ to be the free and voluntary act of such party for the uses and purpos s mentioned in the instrument. Dated: K)c1jAp4jaLr-- 5. 20 W ON Notary Pub(iE r_ � Print Name ocl, r�p'TARyam'. My commission expiresJaALLQ6z.&, Lo 2- N �- pUB �' Z ��, �', `�v9H %9] 29, /OF' A EXHIBIT B Description of Franchise Area Lynwood Community Association " b I � . _� Hood Canal 4T IN THE MATTER OF THE APPLICATION OF Maggie Lake Water District FOR A FRANCHISE PERMIT TO CONSTRUCT, OPERATE,AND MAINTAIN A Water System and Appurtenances UTILITY FACILITIES, OVER,ALONG AND UNDER COUNTY ROADS AND HIGHWAYS LOCATED IN MASON COUNTY, WASHINGTON Application of(Name of Operator) Maggie Lake Water District, doing business in Washington as Maggie Lake Water District, with its principal offices located at PO BOX 350, Tahuya, WA 98588 by and through(person authorized to act for and on behalf of applicant) Ken Loomis, for a franchise to construct, operate and maintain(description of type) water utility facilities in, over,along and under county roads and highways in Mason County, Washington, as set forth in attached Exhibit`B"(Franchise Area),having come on regularly for hearing before the County Commissioners of Mason County, Washington, on the day of , 20 , at the hour of , under the provisions of RCW 36.55, RCW 80.32.010 and RCW 80.36.040,and it appearing to the Board that notice of said hearing has been duly given as required by law,and that it is in the public interest to allow the franchise herein granted; NOW THEREFORE, IT IS ORDERED that a non-exclusive franchise be, and the same is hereby given and granted to Operator, and its successors and assigns,hereinafter referred to as the Franchisee, for a period of 10 years with automatic renewal at the end of each term of 10 years unless either party gives the other written notice of termination at least 30 days prior to the end of the relevant term. (no more than ten years each term and can only be renewed 3 times) from and after the date of the entry of this order for the purposes, at the location(s), and upon the express terms and conditions as described herein. I. DEFINITIONS For the purposes of this franchise,terms,phrases,words,and their derivations not defined herein that are defined in Title 12 of the Mason County Code or the Manual on Accommodating Utilities in the Mason County Right-of-Way published by the County Engineer(the"Manual"),shall have the same meaning or be interpreted as provided in Title 12 of the Mason County Code or the Manual. Words not defined here, in Title 12 of the Mason County Code or the Manual shall have their ordinary meaning. A reference to Title 12 of the Mason County Code or the Manual refers to the same as may be amended,revised,updated,re-enacted or re-codified from time to time. Il. GRANT The County of Mason hereby grants to the Franchisee a non-exclusive franchise which, once it becomes effective shall authorize the Franchisee to enter upon the road rights-of-way located 1 within the Franchise Area identified in attached Exhibit`B", for the purpose of installing, constructing,maintaining, repairing,replacing, adjusting,relocating and operating the utility facilities, which grant shall be limited to the following described purpose(s): A Water System and Appurtenances. Such grant is subject to and must be exercised in strict accordance with and subject to this franchise, Title 12 of the Mason County Code, the Manual and all applicable laws, rules, regulations and ordinances. Franchisee's exercise of any rights granted pursuant to the franchise is subject to the exercise of the County's police powers,and other regulatory powers as it may have or obtain in the future. No rights shall pass to the franchisee by implication. This franchise does not include permission to enter into or upon the road rights-of-way for any purposes others than the purposes expressly described herein. Permittee has a duty to notify the County of any change in use or condition of the utility facilities that may affect the status of the utility facilities or the impact of the utility facilities upon the road rights-of-way. III. UTILITY PERMIT REQUIRED Franchisee shall not commence or perform work(hereafter"Work")to install,construct,maintain repair, replace adjust, connect, disconnect, rebuild, or relocate its utility facilities within the road rights-of-way,without first applying for,paying all associated fees,and obtaining a utility permit as required pursuant to Title 12 of the Mason County Code. In any utility permit so issued,the County may impose,as a condition of the granting the utility permit,such conditions and regulations as may be necessary for the protection,preservation and management of the road rights-of-way,including, by way of example and not limitation, for the purpose of protecting any structures in the road rights-of-way, maintaining proper distance from other utilities, ensuring the proper restoration of such road rights-of-way and structures,and for the protection of the County and the public and the continuity of pedestrian and vehicular traffic. Franchisee shall first file with the County Engineer its application for a utility permit to do such Work together with plans and specifications in triplicate showing at a minimum: A.The position,depth and location of all such utility facilities sought to be constructed,laid, installed or erected at that time,showing their relative position to existing county roads,rights-of-way or other county property upon plans drawn to scale,hereinafter collectively referred to as the"map of definite location; B. The class and type of material and equipment to be used, manner of excavation, construction,installation,backfill,erection of temporary structures,erection of permanent structures, traffic control,traffic turnouts and road obstructions; C. The manner in which the utility facility is to be installed; D. Measures to be taken to preserve safe and free flow of traffic; 2 E. Structural integrity of the roadway, bridge, or other structure; F. Specifications for the restoration of the county road,right-of-way or other county property in the event that the road right of way will be disturbed by the Work; and G. Provision for ease of future road maintenance and appearance of the roadway. Provision shall be made for known or planned expansion of the utility facilities,particularly those located underground or attached to bridges or other structures within the road right-of-way. The location, alignment and depth of the utility facilities shall conform with said map of definite location, except in instances in which deviation may be allowed thereafter in writing by the County Engineer pursuant to application by Franchisee. All such Work shall be subject to the approval of and shall pass the inspection of the County Engineer.The Franchisee shall pay all costs of and expenses incurred in the examination,inspection and approval of such work on account of granting the said utility permits. IV. RESTORATION OF ROAD RIGHT OF WAY In any Work which disturbs or causes damage to the road rights-of-way subject to this franchise, public or private property, the Franchisee shall at its own expense and with all convenient speed, complete the work to repair and restore the county road right-of-way, or the public or private property so disturbed or damaged, and leave the same in as good or better condition as before the Work was commenced,to the reasonable satisfaction of the County Engineer. The Franchisee shall pay all costs of and expenses incurred in the examination, inspection and approval of such restoration or repair. The County Commissioners and/or County Engineer may at any time do,order or have done any and all work that they consider necessary to restore to a safe condition such County road right-of-way or other County property left by the Franchisee or its agents in a condition dangerous to life or property, and the Franchisee, upon demand, shall pay to the County all costs of such work. V. FRANCHISEE WORK IN RIGHT OF WAY Franchisee expressly agrees and understands that,with regard to Work within the road rights-of-way: A. All of Franchisee's utility facilities and Work within the road rights-of-way or other County property shall be in compliance with the provisions of Title 12 MCC, the Manual, the administrative regulations adopted by the County Engineer,other County established requirements for placement of utility facilities in road rights-of-way, including the specific location of utility facilities in the road rights-of-way, and all applicable laws, rules,regulations and ordinances; B. In preparing plans and specifications for Work of utility facilities in the road rights-of- 3 way the Franchisee shall use the Manual. Prior to commencement of work in the road rights-of-way, Franchisee shall submit such plans and specifications to the Mason County Engineer for review and approval together with adequate exhibits depicting existing or proposed location of the utility facility in relation to the road, including right-of-way or easement lines; relationship to currently planned road revisions,if applicable;and all locations and situations for which deviations in depth of cover (including the proposed method of protection) or other locational standards that are anticipated; C. All Work to utility facilities located within the road rights-of-way or other county property subject to this franchise shall be done in such a manner as not to interfere, other than in ways approved by the County, with the construction, operation and maintenance of other utilities, public or private, drains, drainage ditches and structures, irrigation ditches and structures, located therein,nor with the grading or improvements of such County roads,rights-of-way or other County property; D. The owners and operators of all utility facilities (public or private) installed in the Franchise Area or other county property prior in time to the utility facilities of the Franchisee,shall have preference as to the alignment and location of such utilities so installed with respect to the Franchisee. Such preference shall continue in the event of the necessity of relocating or changing the grade of any such county road or right-of-way; E. Franchisee shall perform the Work and operate its utility facilities in a manner that minimizes interference with the use of the road rights-of-way by others,including others that may be installing utility facilities; and F. The County may require that Franchisee's utility facilities be installed at a particular time, at a specific place,or in a particular manner as a condition of access to a particular road right-of-way; may deny access if a Franchisee is not willing to comply with the County's requirements; and may remove, or require removal of, any utility facility that is not installed in compliance with the requirements established by the County,or which is installed without prior County approval of the time, place, or manner of installation and charge the Franchisee for all the costs associated with removal; and may require Franchisee to cooperate with others to minimize adverse impacts on the road rights-of-way through joint trenching and other arrangements. G. The County may inspect the utility facilities at any time reasonable under the circumstances to ensure compliance with this franchise and applicable law,including to ensure that the utility facilities are constructed and maintained in a safe condition. If an unsafe condition is found to exist,the County,in addition to taking any other action permitted under applicable law,may order the Franchisee, in writing, to make the necessary repairs and alterations specified therein forthwith to correct the unsafe condition on a time-table established by the County which is reasonable in light of the unsafe condition. The County has the right to correct,inspect,administer, and repair the unsafe condition if the Franchisee fails to do so, and to charge the Franchisee therefore. The right of the County to conduct such inspections and order or make repairs shall not be construed to create an obligation therefore,and such obligation to construct and maintain its utility 4 facilities in a safe condition shall at all times remain the sole obligation of the Franchisee. H. When required by the County,Franchisee shall make information available to the public regarding any work involving the ongoing installation,construction,adjustment,relocation,repair or maintenance of its utility facilities sufficient to show (1)the nature of the work being performed; (2)where it is being performed; (3)its estimated completion date; and(4)progress to completion. I. FRANCHISEE IS PLACED ON NOTICE THAT FIBER OPTIC,COMMUNICATIONS, POWER, CONTROL SYSTEMS, OTHER TYPES OF CABLES, AND PIPELINES MAY BE BURIED ON THE RIGHT OF WAY. Before beginning any underground work, Franchisee will contact the appropriate personnel to have such facilities located and make arrangements as to protective measures that must be adhered to prior to the commencement of any work within the Road rights-of-way. In addition to the liability terms elsewhere in this Agreement, Franchisee shall indemnify and hold the County and its elected and appointed officers, employees and agents harmless against and from all cost,liability,and expense whatsoever(including,without limitation, attorney's fees and court costs and expenses)arising out of or in any way contributed to by any act or omission of Franchisee,its contractor,agents and/or employees,that cause or in any way or degree contribute to (1) any damage to or destruction of any such facilities by Franchisee, and/or its contractor, agents and/or employees, on the County's property, (2) any injury to or death of any person employed by or on behalf of any entity,and/or its contractor,agents and/or employees,on the road rights-of-way,and/or(3) any claim or cause of action for alleged loss of profits or revenue,or loss of service, by a customer or user of services or products of such company(ies) (collectively "Liabilities" for purposes of this Section V.I). The only Liabilities with respect to which Franchisee's obligation to indemnify the County and its elected and appointed officers, employees and agents does not apply are Liabilities to the extent arising out of,caused by or resulting from the negligence of the County, and its elected and appointed officers, employees and agents and Liabilities that by law the County and its elected and appointed officers, employees and agents for which the County cannot be indemnified. J. Franchisee shall continuously be a member of the State of Washington one number locator service under RCW 19.122, or an approved equivalent, and shall comply with all such applicable rules and regulations. K. Except in the event of emergency as described below,Franchisee and its Agents may not enter upon the Franchise Area to perform work for which a utility permit is not required,unless and except upon two-business days notice to the County Engineer. L. In the event of an emergency involving the threat of imminent harm to persons or property,and for purposes of taking immediate corrective action,Franchisee and its agents may enter the Franchise Area without advance notice to the County as long as such entry is for the sole purpose of addressing the emergency; provided however, that if any entry for such purposes would require issuance of a utility permit,Franchisee shall give the County verbal or telephonic notice of the places where and the manner in which entry is required prior to such entry,promptly followed by written notice. In all cases,notice to the County shall be given as far in advance as practical prior to entry or as soon as practicable after entry upon the road right-of-Way. 5 M. Franchisee shall promptly reimburse the County for their reasonable and direct costs incurred in responding to an emergency that is caused, created by or attributable to the presence, construction,maintenance,repair,or operation of the Franchisees utility facilities in the road rights- of-way. N. If,during installation,construction,relocation,realignment,adjustment,maintenance,or repair of the Franchisee's utility facilities in the road rights-of-way,Franchisee or its agents discover scientific or historic artifacts,Franchisee shall immediately notify the County of said discovery and shall protect such artifacts in a manner as specified by the County. Any such artifact shall be the property of the County if the County wishes to own it. VI. PROTECTION OF PUBLIC All work done under this franchise shall be done in a thorough and workman-like manner. In the performance of Work within or near the road rights-of-way, including without limitation, the opening of trenches and the tunneling under county roads,rights-of way or other county property,the Franchisee shall leave such trenches, ditches and tunnels in such a way as to interfere as little as possible with public travel and shall take all due and necessary precautions to guard the same,so that damage or injury shall not occur or arise by reason of such Work; and where any of such trenches, ditches and tunnels are left open at night, the Franchisee shall place warning lights,barricades and other appropriate protective devices at such a position as to give adequate warning of such Work. The Franchisee shall be liable for any injury to person or persons or damage to property sustained arising out of its carelessness or neglect,or through any failure or neglect to properly guard or give warning of any trenches, ditches or tunnels dug or maintained by the Franchisee. VII. POLICE POWERS The County of Mason,in granting this franchise,does not waive any rights which it now has or may hereafter acquire with respect to county roads, rights-of-way or other county property and this franchise shall not be construed to deprive the county of any powers, rights or privileges which it now has or may hereafter acquire to regulate the use of and to control the county roads,rights-of-way and other county property covered by this franchise. The County retains the right to administer and regulate activities of the Franchisee up to the fullest extent of the law. The failure to reserve a particular right to regulate,or reference a particular regulation, shall not be interpreted by negative implication or otherwise to prevent the application of a regulation to the Franchisee. VIII. RELOCATION Franchisee shall, in the course of any Work, comply with the following requirements: A. The Franchisee shall, by a time specified by the County, protect, support, temporarily disconnect,relocate,or remove any of its utility facilities when required by the County by reason of traffic conditions;public safety;road right-of-way construction;road right-of-way repair(including 6 resurfacing or widening);change of road right-of-way grade; construction,installation,or repair of County-owned sewers,drains,water pipes,power lines,signal lines,tracks,communications system, other public work, public facility, or improvement of any government-owned utility; road right-of-way vacation;or for any other purpose where the County work involved would be aided by the removal or relocation of the utility facilities. Collectively,such matters are referred to below as the "public work." Franchisee acknowledges and understands that any delay by Franchisee in performing the herein described work may delay, hinder, or interfere with the work performed by the County and its contractors and subcontractors done in furtherance of such Public Work and result in damage to the County,including but not limited to,delay claims. Franchisee shall cooperate with the County and its contractors and subcontractors to coordinate such Franchisee work to accommodate the Public Work project and project schedules to avoid delay, hindrance of, or interference with the Public Work. The County of Mason shall make available to the Franchisee a copy of the Six Year Transportation Program and the County's annual construction program after adoption each year. It is anticipated these programs will aid the utility in planning construction programs. B. Franchisee has a duty to protect its utility facilities from work performed by the County within the road rights-of-way. The rights granted to the Franchisee herein do not preclude the County of Mason, its employees, contractors, subcontractors, and agents from blasting, grading, excavating, or doing other necessary road work contiguous to Franchisee's utility facilities; providing that, the Franchisee shall be given a minimum of forty-eight (48) hours notice of said blasting or other work in order that the Franchisee may protect its utility facilities. C. In the event of an emergency,or where the utility facility creates or is contributing to an imminent danger to health, safety, or property, the County may protect, support, temporarily disconnect,remove,or relocate any or all parts of the utility facility without prior notice,and charge the Franchisee for costs incurred. D. If any Person that is authorized to place facilities in the road right of way requests the Franchisee to protect, support,temporarily disconnect,remove, or relocate the Franchisee's utility facilities to accommodate the construction,operation,or repair of the facilities of such other person, the Franchisee shall,after 30 days'advance written notice,take action to effect the necessary changes requested;provided that,if such project is related to or competes with Franchisee's service,or if the effect of such changes would be to permanently deprive Franchisee of the beneficial enjoyment of this franchise for its intended purposes through interference with the operation of Franchisee's utility facilities or otherwise, Franchisee shall not be required to relocate its utility facilities. Unless the matter is governed by a valid contract or a state or federal law or regulation, or unless the Franchisee's utility facilities were not properly installed, the reasonable cost of the same shall be borne by the Person requesting the protection, support, temporary disconnection, removal, or relocation at no charge to the County, even if the County makes the request for such action. 7 E. The Franchisee shall, on the request of any person holding a valid permit issued by a governmental authority, temporarily raise or lower its wires to permit the moving of buildings or other objects. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same. The County of Mason will accept liability for direct and actual damages to said Franchisee that are the result of the negligence of Mason County, its trustees, officers, employees, contractors, subcontractors or agents while performing County improvement or Public Works projects enumerated in the original franchise agreement under Section VIII,paragraph B. Direct and actual damages are specifically limited to physical damage to properly installed and located infrastructure of the Franchisee and the cost to repair such physical damage. Mason County retains the right to assert all applicable defenses in the event of a dispute including contributory negligence on the part of the Franchisee. Mason County shall in no way be liable for incidental damages claimed to arise from such actions. All Work to be performed by the Franchisee under this section shall pass the inspection of the County Engineer. The Franchisee shall pay all costs of and expenses incurred in the examination, inspection and approval of such work. IX. PRESERVATION OF MONUMENTS/MARKERS Before any work is performed under this franchise which may affect any existing monuments or markers of any nature relating to subdivisions,plats,roads and all other surveys,the Franchisee shall reference all such monuments and markers. The reference points shall be so located that they will not be disturbed during the Franchisee's operations under this franchise. The method of referencing these monuments or other points to be referenced shall be approved by the County Engineer. The replacement of all such monuments or markers disturbed during construction shall be made as expeditiously as conditions permit,and as directed by the County Engineer. The cost of monuments or other markers lost, destroyed, or disturbed, and the expense of replacement by approved monuments shall be borne by the Franchisee. A complete set of reference notes for monument and other ties shall be filed with the office of the Mason County Engineer. X. VACATION OF ROAD RIGHT-OF-WAY If at any time the County shall vacate any County road,right-of-way or other County property which is subject to rights granted by this franchise and said vacation shall be for the purpose of acquiring the fee or other property interest in said road, right-of-way or other county property for the use of Mason County,in either its proprietary or governmental capacity,then the Board of Mason County Commissioners may, at its option, and by giving thirty(30) days written notice to the Franchisee, terminate this franchise with reference to such county road,right-of-way or other county property so vacated, and the County of Mason shall not be liable for any damages or loss to the Franchisee by reason of such termination. It has been the practice of Mason County to reserve easements for 8 utilities at the time of road vacation,and will continue to be the practice until such time the Board of Mason County Commissioners direct a change of practice. XI. FINANCIAL SECURITY A. Insurance Except as otherwise provided herein,Franchisee shall maintain for itself and the County,throughout the entire period any part of Franchisee's utility facilities are located in the Franchise Area, adequate insurance to protect the Parties and their elected and appointed officers, agents, employees against all of County's and Franchisee's liability arising out of Franchisee's use and occupancy of the Franchise Area or any part thereof. This obligation shall require the Franchisee to maintain insurance at least in the following amounts: 1. COMMERCIAL GENERAL LIABILITY insurance to cover liability, bodily injury, and property damage. The Commercial General Liability insurance shall be written on an occurrence basis, with an aggregate limit location endorsement for the Franchise Area, and shall provide coverage for any and all costs, including defense costs, and losses and damages resulting from personal injury, bodily injury and death, property damage, products liability and completed operations. Such insurance shall include blanket contractual coverage, including coverage for the Franchise as now or hereafter amended and specific coverage for the indemnity provisions set forth herein. Coverage must be written with the following limits of liability: Bodily and Personal Injury&Property Damage $ 1,000,000 per Occurrence $ 2,000,000 aggregate 2 WORKERS' COMPENSATION insurance shall be maintained to comply with statutory limits for all employees,and in the case any work is sublet,the Franchisee shall require its contractors and subcontractors similarly to provide workers' compensation insurance for all the employees. The Franchisee shall also maintain, during the life of this policy, employer's liability insurance;provided that this obligation shall not apply to any time period during which Franchisee has no employees. The following minimum limits must be maintained: Workers'Compensation Statutory Employer's Liability $ 1,000,000 each occurrence 3.COMPREHENSIVE AUTO LIABILITY insurance shall include owned,hired,and non-owned vehicles operated by Franchisee employees on an occurrence basis with coverage of at least$2,000,000 per occurrence. If the Franchisee, its contractors, or subcontractors do not have the required insurance,the County may require such entities to stop operations until the insurance is obtained and approved. Certificates of Insurance reflecting evidence of the required insurance and approved by the County's 9 Risk Manager for the GENERAL LIABILITY policies described above,shall be sent to the County's risk manager. The certificate shall be filed with the acceptance of the franchise, and annually thereafter, and as provided below. All coverage shall be listed all on one certificate with the same expiration dates. The certificates shall contain a provision that coverages afforded under these policies will not be canceled until at least 30 days'prior written notice has been given to the County. In the event that the insurance certificate provided indicates that the insurance shall terminate or lapse during the period of the franchise,then, in that event,the Franchisee shall furnish,at least 30 days prior to the expiration of the date of such insurance,a renewed certificate of insurance as proof that equal and like coverage has been or will be obtained prior to any such lapse or termination during the balance of the period of the franchise. The County reserves the right, during the term of the franchise, to require any other insurance coverage or adjust the policy limits as it deems reasonably necessary utilizing sound risk management practices and principals based upon the loss exposures. Each insurance policy required pursuant to this franchise shall be primary and non-contributing as respects any coverage maintained by the County and shall include an endorsement reflecting the same. Any other coverage maintained by County shall be excess of this coverage herein defined as primary and shall not contribute with it. The certificate of insurance must reflect that the above wording is included in all such policies. Each insurance policy obtained pursuant to this franchise shall be issued by financially sound insurers who may lawfully do business in the State of Washington with a financial rating at all times during coverage of no less than rating of"A" and a class of"X" or better in the latest edition of "Best's Key Rating Guide"published by A.M.Best Company,or such other financial rating or rating guide approved in writing by the County's risk manager. In the event that at any time during coverage,the insurer does not meet the foregoing standards,Franchisee shall give prompt notice to the County and shall seek coverage from an insurer that meets the foregoing standards. The County reserves the right to change the rating or the rating guide depending upon the changed risks or availability of other suitable and reliable rating guides. Comprehensive general liability insurance policies and coverage obtained pursuant to this franchise shall include an endorsement(standard ISO form CG 24-17)deleting all exclusions for work or incidents occurring within any distance from a railroad track or railroad property, or on, over, or under a railroad track. Insurance policies required pursuant to this franchise shall have no non-standard exclusions unless approved of by the County Risk Manager or designee. Commercial general liability insurance policies obtained pursuant to this franchise shall name the 10 County as an additional insured without limitation,pursuant to an endorsement approved of by the County's Risk Manager or designee. Franchisee and Franchisee's Contractors' insurers, through policy endorsement, shall waive their rights of subrogation against the County for all claims and suits. The certificate of insurance must reflect this waiver of subrogation rights endorsement. Commercial General Liability Insurance policies and coverage required herein of public utility operators may include a reasonable deductible or self-insured retention;provided,however,that as to any Loss or Damage covered as provided herein, if Franchisee elects to include any deductible or self-insured retention,Franchisee shall itself directly cover,in lieu of insurance,any and all County liabilities that would otherwise in accordance with the provisions of this Franchise be covered by Franchisee's insurance if Franchisee elected not to include a deductible or self-insured retention. Such direct coverage by Franchisee shall be in an amount equal to the amount of Franchisee's actual deductible or self-insured retention. Franchisee shall be required to provide a certification of self- insurance retention to the county in a form and content acceptable to the county engineer. B. Performance/Payment Bond. At the same time Franchisee provides its acceptance of this Franchise, the Franchisee shall, if required by the County Engineer, provide a performance and payment bond to ensure the full and faithful performance of all of its responsibilities under this franchise and applicable rules, regulations and ordinances, including, by way of example, but not limited to,its obligations to relocate and remove its utility facilities,to restore the road rights-of-way and other property when damaged or disturbed, and to reimburse the County for its costs. The amount of the performance and payment bond shall be for ZERO ($0). The amount of the bond,or cash deposit as described below, may be adjusted by the County every five years from the date of execution of this franchise,to take into account cumulative inflation or increased risks to the County. The Franchisee may be required to obtain additional bonds in accordance with the County's ordinary practices. The bond shall be in a form with terms and conditions acceptable to the County and reviewed and approved by the County Engineer. The bond shall be with a surety with a rating no less than "A V in the latest edition of"Bests Key Rating Guide," published by A.M. Best Guide. The Franchisee shall pay all premiums or costs associated with maintaining the bond,and shall keep the same in full force and effect at all times.If Franchisee fails to provide or maintain the bond,then the County,in its sole discretion,may require Franchisee to substitute an equivalent cash deposit as described below in lieu of the bond. Franchisee, may at its election or upon order by the County, substitute an equivalent cash deposit instead of a performance and payment bond. This cash deposit shall ensure the full and faithful performance of all of Franchisee's responsibilities hereto under this Permit and all applicable laws, rules, regulations or ordinances. This includes, but is not limited to, its obligations to relocate or remove its facilities, restore the road rights-of-way and other property to their original condition, reimbursing the County for its costs, and keeping Franchisee's insurance in full force. The County shall notify Franchisee in writing, by certified mail, of any default and shall give 11 Franchisee thirty(30)days from the date of such notice to cure any such default. In the event that the Franchisee fails to cure such default to the satisfaction of the County,the County may,at its option, forfeit the entire amount of the cash deposit or draw upon the cash deposit up to the amount of the County's costs incurred to cure Franchisee's default. Upon the County's cure of Franchisee's default, the County shall notify Franchisee in writing of such cure. In the event that the County draws upon the cash deposit or forfeits the same, Franchisee shall thereupon replenish the cash deposit to the full amount as specified herein or provide a replacement performance and payment bond. Before any Work commences in the road right-of-way,the County Engineer may require the operator to provide a performance and payment bond for each separate project in an amount to be determined by the County Engineer, but not less than five hundred dollars, written by a surety company acceptable to the County Risk Manager and authorized to do business in the state of Washington. The purpose of the bond is to insure completion of construction, including the restoration of surfacing,slopes,slope treatment,topsoil,landscape treatment,and drainage facilities,and cleanup of rights-of-way, and payment of costs incurred by the County to enforce the requirements of this Chapter. The performance and payment bond shall be in place for a period ending not more than one year after the date of completion. A project specific performance bond shall not be required in the event that the franchisee has in place a blanket performance bond and, when required, a payment bond, maintained pursuant to the requirements of this franchise. A performance and payment bond for work in the road right-of-way will not be required of the United States Government or any of its agencies or of any municipal corporation or department of the state of Washington and its local subdivisions. C. Limitation of Liability. To the fullest extent permitted by law,the Franchisee shall,and shall cause its contractor(s) to release, indemnify, defend and hold harmless the county and the county's legal representatives,officer(elected or), appointed)employees and agents(collectively, "indemnitees") for, from and against any and all claims, liabilities, fines,penalties,cost,damages, losses, liens, causes of action, suits, demands, judgments and expenses (including, without limitations, court costs, attorneys' fees and costs of investigation, removal and remediation and governmental oversight costs),Environmental or otherwise(collectively"liabilities")of any nature, kind, or description, of any person or entity,directly or indirectly, arising out of,resulting from, or related to (in whole or in part): 1. this franchise; 2. any rights or interests granted pursuant to this franchise; 3. franchisee's occupation and use of the road right of way; 12 4. franchisee's operation of its utility facilities; 5. the presence of utility facilities within the right of way; 6. the environmental condition and status of the road right-of-way caused by, aggravated by, or contributed to, in whole or in part,by franchisee or its agents; or 7. The acts,errors,or omissions of third parties when arising out of the installation, construction,adjustment,relocation,replacement,removal,or maintenance of such third party utility facilities within the road rights-of-way when such work is performed under authority of the operator's utility permit or at the direction or under the control of the operator; or 8. any act or omission of franchisee or franchisee's agents; The only liabilities with respect to which franchisee's obligation to indemnify the indemnitees do not apply are liabilities to the extent arising out of, caused by or resulting from the negligence of the county, its officers, agents, employees or contractors and liabilities that by law the indemnities cannon be indemnified for. Upon written notice from the county,franchisee agrees to assume the defense of any lawsuit or other proceeding brought against any indemnitee by any entity, relating to any matter covered by this franchise for which franchisee has an obligation to assume liability for and/or save and hold harmless any indemnitee. Franchisee shall pay all cost incident to such defense,including,but not limited to, attorneys' fees,investigators' fees,litigation and appeal expenses,settlement payments and amounts paid in satisfaction of judgments. Franchisee willfully satisfy said judgment within ninety(90)days after said suit or action shall have finally been determined if determined adversely to Mason County. Upon the Franchisee's failure to satisfy said judgment within the ninety (90) day period, this franchise shall at once cease and terminate. Acceptance by the County of any Work performed by the Franchisee at the time of completion shall not be grounds for avoidance of this covenant. XII. FRANCHISE NONEXCLUSIVE This franchise shall not be deemed to be an exclusive franchise. It shall in no manner prohibit the County of Mason from granting other utilities under,along,across,over and upon any of the County roads,rights-of-way or other County property subject to this franchise and shall in no way prevent or prohibit the County of Mason from constructing, altering, maintaining or using any of said roads, rights-of-way,drainage structures or facilities,irrigation structures or facilities,or any other county property or affect its jurisdiction over them or any part of them with full power to make all necessary changes,relocations, repairs,maintenance, etc., the same as the county may deem fit. 13 XIII. SUCCESSORS AND ASSIGNS All the provisions,conditions,regulations and requirements herein contained shall be binding upon the successors and assigns of the Franchisee,and all privileges,as well as all obligations and liability of the Franchisee, shall ensure to its successors and assigns equally as if they were specifically mentioned wherever the Franchisee is mentioned. Any reference in this franchise to a specifically named party shall be deemed to apply to any successor, heir, administrator, executor or assign of such party who has acquired its interest in compliance with the terms of this franchise,or under law. XIV. TRANSFER/ASSIGNMENT Franchisee may assign or transfer this franchise after prior written notice to County of Mason and assignee's written commitment,in a form and content approved by the County Prosecutor,delivered to County of Mason,that assignees shall thereafter be responsible for all obligations of Franchisee with respect to the franchise and guaranteeing performance under the terms and conditions of the franchise and that transferee will be bound by all the conditions of the franchise and will assume all the obligations of its predecessor. Such an assignment shall relieve the Franchisee of any further obligations under the franchise, including any obligations not fulfilled by Franchisee's assignee; provided that,the assignment shall not in any respect relieve the Franchisee,or any of its successors in interest,of responsibility for acts or omissions,known or unknown,or the consequences thereof, which acts or omissions occur prior to the time of the assignment. No franchise or master road use permit may be assigned or transferred without filing or establishing with the county the insurance certificates and performance bond as required pursuant to this franchise. XV. ANNEXATION Whenever any of the County roads, rights-of-way or other county property as designated in this franchise,by reason of the subsequent incorporation of any town or city,or extension of the limits of any town or city, shall fall within the city or town limits and shall by operation of law or otherwise terminate in respect to the said roads,rights-of-way or other county property so included with city or town limits; this franchise shall continue in force and effect to all county roads, rights-of-way or other county property not so included in city or town limits. XVI. REVOCATION/REMEDIES A. Revocation. In addition the right to revoke this franchise as set forth in Title 12 of the Mason County Code, if the Franchisee shall willfully violate, or fail to comply with any of the provisions of this franchise through willful or unreasonable neglect or fail to heed or comply with any notice given the Franchisee under the provision of this grant, then Franchisee shall forfeit all rights conferred hereunder and this franchise may be revoked or annulled,after a public hearing by the Board of County Commissioners. The Franchisee shall not be relieved of any of its obligations to comply promptly with any provision of this franchise by reason of any failure of the County to enforce prompt compliance,and the County's failure to enforce shall not constitute a waiver of rights 14 or acquiescence in the Licensee's conduct. Subject to the required consent, adjudication, permission or authorization of a federal or state regulatory agency with jurisdiction over the subject matter, upon revocation of the franchise, the County may require the Franchisee to remove its utility facilities from any road rights-of-way,and restore such road right-of-way to its same or better condition as existed just prior to such removal,or de-commission and abandon such utility facilities in place in whole or in part and in a manner approved by the County Board of Commissioners. If the Franchisee fails to remove utility facilities that the County requires it to remove,the County may perform the work and collect the cost thereof from the Franchisee. The actual cost thereof,including direct and indirect administrative costs,shall be a lien upon all utility facilities of the Franchisee within the franchise Area effective upon filing of the lien with the Mason County Auditor. B. Remedies. The County has the right to exercise any and all of the following remedies, singly or in combination,in the event of Default. "Default"shall mean any failure of Franchisee or its agents to keep,observe,or perform any of Franchisee's or its agent's duties or obligations under this franchise: 1. Damages. Franchisee shall be liable for any and all damages incurred by County. 2. Specific Performance. County shall be entitled to specific performance of each and every obligation of Franchisee under this franchise without any requirement to prove or establish that County does not have an adequate remedy at law. Franchisee hereby waives the requirement of any such proof and acknowledges that County would not have an adequate remedy at law for Franchisee's commission of an Event of Default hereunder. 3. Injunction. County shall be entitled to restrain, by injunction, the actual or threatened commission or attempt of an Event of Default and to obtain a judgment or order specifically prohibiting a violation or breach of this Agreement without, in either case, being required to prove or establish that County does not have an adequate remedy at law. Franchisee hereby waives the requirement of any such proof and acknowledges that County would not have an adequate remedy at law for Franchisee's commission of an Event of Default hereunder. 4. Alternative Remedies. Neither the existence of other remedies identified in this franchise nor the exercise thereof shall be deemed to bar or otherwise limit the right of the County to commence an action for equitable or other relief, and/or proceed against Franchisee and any guarantor for all direct monetary damages, costs and expenses arising from the Default and to recover all such damages, costs and expenses, including reasonable attorneys' fees. Remedies are cumulative; the exercise of one shall not foreclose the exercise of others. XVII. SUBSEQUENT ACTION In the event that after this franchise becomes effective, (a) there is a change in the law which 15 broadens the authority of the County of Mason or the Franchisee with respect to any act permitted or authorized under this franchise; or (b)the County of Mason or the Franchisee believe that amendments to this franchise are necessary or appropriate, then the County of Mason and the Franchisee agree to enter into good faith negotiations to amend this franchise so as to enable the Parties to address, in a manner reasonably acceptable to all Parties, such change or other development which formed the basis for the negotiations. The Parties recognize that the purpose of the negotiations would be to preserve, to the maximum extent consistent with law, the scope and purpose of this franchise. Mason County reserves for itself the right at any time upon ninety(90) days written notice to the Franchisee, to so change, amend, modify or amplify any of the provisions or conditions herein enumerated to conform to any state statute or county regulation,relating to the public welfare,health, safety or highway regulation,as may hereafter be enacted,adopted or promulgated and this franchise may be terminated at such time a public hearing is held by the Board of County Commissioners,and the Franchisee's utility facilities are found not to be operated or maintained in accordance with such statute or regulation. XVIII. ACCEPTANCE Franchisee shall execute and return to the County of Mason a signed acceptance of the franchise granted hereunder. The acceptance shall be in the form of the acceptance attached hereto as Exhibit "A", and in accepting the franchise, Franchisee warrants that it has carefully read the terms and conditions of this franchise and accepts all of the terms and conditions of this franchise and agrees to abide by the same and acknowledges that it has relied upon its own investigation of all relevant facts, that it has had the assistance of counsel, that it was not induced to accept a franchise, that this franchise represents the entire agreement between the Franchisee and the County of Mason. In the event the Franchisee fails to submit the countersigned ordinance and acceptance as provided for herein within the time limits set forth in this section,the grant herein is and shall become null and void. XIX. MISCELLANEOUS PROVISIONS A. Controlling Law/Venue. Any disputes concerning the application or interpretation of any of the provisions of this franchise shall be governed by the laws of the State of Washington. Venue of any action or arbitration brought under this franchise shall be in Mason County,Washington or the Western District of Washington if an action is brought in federal court, provided, however, that venue of such action is legally proper. B. Liens. Franchisee shall promptly pay and discharge any and all liens arising out of any Work done, suffered or permitted to be done by Franchisee on any Franchise Area. C. Waiver. No waiver by either party of any provision of this franchise shall in any way impair the right of such party to enforce that provision for any subsequent breach, or County of 16 Mason's right to enforce all other provisions of this franchise. D. Attorney's Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this franchise, the substantially prevailing Party or Parties shall be entitled to reasonable attorney's fees,costs and necessary disbursements in addition to any other relief to which such Party or Parties may be entitled. E. Amendment. This franchise may be amended only by a written contract signed by authorized representatives of Franchisee and County of Mason. F. Severability. If any provision of this franchise is held to be illegal, invalid or unenforceable under present or future laws,such provision will be fully severable and this franchise will be construed and enforced as if such illegal, invalid or unenforceable provision is not a part hereof,and the remaining provisions hereof will remain in full force and effect. In lieu of any illegal, invalid or unenforceable provision herein, there will be added automatically as a part of this franchise; a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal,valid and enforceable. G. Joint and Several Liability. Franchisee acknowledges that, in any case in which Franchisee and Franchisee's Contractors are responsible under the terms of this franchise, such responsibility is joint and several as between Franchisee and any such Franchisee's Contractors; provided that,the Franchisee is not prohibited from allocating such liability as a matter of contract. H. Notices. Any notice contemplated, required, or permitted to be given under this franchise shall be sufficient if it is in writing and is sent either by: (a)registered or certified mail, return receipt requested;or(b)a nationally recognized overnight mail delivery service,to the Party and at the address specified below,except as such Party and address may be changed by providing notice to the other Party no less than thirty (30) days' advance written notice of such change in address. Franchisee: Maggie Lake Water District PO BOX 350 Tahuya, WA 98588 Attn: Terri Sherfick Grantor: County of Mason Public Works 100 Public Works Drive Shelton, WA 98584 I. Approvals. Nothing in this franchise shall be deemed to impose any duty or obligation upon the County of Mason to determine the adequacy or sufficiency of Franchisee's plans and specifications or to ascertain whether Franchisee's proposed or actual construction, testing, 17 maintenance,repairs,replacement,relocation,adjustment or removal is adequate or sufficient or in conformance with the plans and specifications reviewed by the County of Mason. No approval given, inspection made,review or supervision performed by the County of Mason pursuant to this franchise shall constitute or be construed as a representation or warranty express or implied by County of Mason that such item approved, inspected, or supervised, complies with laws, rules regulations or ordinances or this franchise or meets any particular standard,code or requirement,or is in conformance with the plans and specifications,and no liability shall attach with respect thereto. County and inspections as provided herein, are for the sole purpose of protecting the County of Mason's rights as the owner or manager of the road rights-of-way and shall not constitute any representation or warranty,express or implied,as to the adequacy of the design,construction,repair, or maintenance of the utility facilities, suitability of the Franchise Area for construction, maintenance,or repair of the utility facilities,or any obligation on the part of the County of Mason to insure that work or materials are in compliance with any requirements imposed by a governmental entity. County of Mason is under no obligation or duty to supervise the design, construction, installation, relocation, adjustment, realignment, maintenance, repair, or operation of the utility facilities. J. Force Majeure. Neither Party hereto shall be liable to the other Party for any failure to perform an obligation set forth herein to the extent such failure is caused by war,act of terrorism or an act of God, provided that such Party has made and is making all reasonable efforts to perform such obligation and minimize any and all resulting loss or damage. K. Construction. All pronouns and any variations thereof shall be deemed to refer to the masculine,feminine or neuter, singular or plural,as the identity of the Party or Parties may require. The provisions of this franchise shall be construed as a whole according to their common meaning, except where specifically defined herein,not strictly for or against any party and consistent with the provisions contained herein in order to achieve the objectives and purposes of this franchise. L. Incorporation by Reference. All exhibits annexed hereto at the time of execution of this franchise or in the future as contemplated herein, are hereby incorporated by reference as though fully set forth herein. M. Calculation of Time. All periods of time referred to herein shall include Saturdays, Sundays,and legal holidays in the State of Washington,except that if the last day of any period falls on any Saturday,Sunday,or legal holiday in the State of Washington,the period shall be extended to include the next day which is not a Saturday, Sunday, or legal holiday in the State of Washington. N. Entire Agreement. This franchise is the full and complete agreement of County of Mason and Franchisee with respect to all matters covered herein and all matters related to the use of the Franchise Area by Franchisee and Franchisee's Contractors,and this franchise supersedes any and all other agreements of the Parties hereto with respect to all such matters,including,without limitation, all agreements evidencing the franchise. 18 O. No Recourse. Without limiting such immunities as the County or other persons may have under applicable law,Franchisee shall have no monetary recourse whatsoever against the County or its officials, boards, commissions, agents, or employees for any loss or damage arising out of the County's exercising its authority pursuant to this Franchise or other applicable law. P. Responsibility for Costs. Except as expressly provided otherwise,any act that Franchisee is required to perform under this franchise shall be performed at its cost. If Franchisee fails to perform work that it is required to perform within the time provided for performance, the County may perform the work and bill the Franchisee. The Franchisee shall pay the amounts billed within 30 days. Q. Work of Contractors and Subcontractors. Work by contractors and subcontractors is subject to the same restrictions, limitations, and conditions as if the work was performed by the Franchisee. The Franchisee shall be responsible for all work performed by its contractors and subcontractors,and others performing work on its behalf,under its control,or under authority of its utility permit,as if the work were performed by it and shall ensure that all such work is performed in compliance with this franchise, Title 12 MCC, the Manual and other applicable law, and shall be jointly and severally liable for all damages and correcting all damage caused by them. It is the Franchisee's responsibility to ensure that contractors, subcontractors,or other Persons performing work on the Franchisee's behalf are familiar with the requirements of the franchise,Title 12 MCC, the Manual, and other applicable laws governing the work performed by them. R. Survival of Terms. Upon the expiration, termination, revocation or forfeiture of the franchise,the Franchisee shall no longer have the right to occupy the franchise area for the purpose of providing services authorized herein. However,the Franchisee's obligations under this franchise to the County shall survive the expiration, termination, revocation or forfeiture of these rights according to its terms for so long as the Franchisee's utility facilities shall remain in whole or in part in the road rights of way. By way of illustration and not limitation, Franchisee's obligations to indemnify, defend and hold harmless the County, provide insurance and a performance/payment bond pursuant to Section XI and Franchisee's obligation to relocate its utility facilities pursuant to Section VIII, shall continue in effect as to the Franchisee, notwithstanding any expiration, termination, revocation or forfeiture of the franchise, except to the extent that a County-approved transfer, sale, or assignment of the utility system is completed, and another entity has assumed full and complete responsibility for the utility system or for the relevant acts or omissions. S. Warranties. By acceptance of this franchise, Franchisee warrants: 1. That Franchisee has full right and authority to enter into and perform this Franchise in accordance with the terms hereof, and by entering into or performing this Franchise, Franchisee is not in violation of its charter or by-laws,or any law,regulation,or agreement by which it is bound or to which it is subject; and 2. That the execution,delivery,and performance of this Franchise by Franchisee has been duly authorized by all requisite Board/Commission action, that the signatories for Franchisee of the 19 acceptance hereof are authorized to sign this Franchise,and that the joinder or consent of any other party, including a court, trustee, or referee, is not necessary to make valid and effective the execution, delivery, and performance of this Franchise and acceptance. DATED at Shelton, Washington this day of 20_. BOARD OF COMMISSIONERS APPROVED: MASON COUNTY, WASHINGTON ounty Engineer Chair Approve as to form: Vice Chair Chief D.P.A. Commissioner 20 Exhibit A ACCEPTANCE OF FRANCHISE Ordinance No. 115-06, effective November 14, 2006. I, 5 , am the m RrA GeX2 of W 0.�ev- and am the authorized representative to accept the above-referenced franchise on behalf of I certify that this franchise and all terms and conditions thereof are accepted by Ac-c-le L"r_ WcA.ker t) A without qualification or reservation. DATED this 1Z day of NocJi/hOr'.� , 2019 FRANCHISEE By: Its: ANA Tax Id. No. q1 - STATE 1 -STATE OF Uqo ) ss. COUNTY OF ) I certify that I know or have satisfactory evidence that V_4Xk is the person who appeared before me,and said person acknowledged that he/she signed this instrument,on oath stated that he/she was authorized to execute the instrument and acknowledged it as the of the to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: 44 .(NN +i J__ �. N��„��4 /�� Notary Pu lic '� Print Nam i v\.-'.o �Sa o7�RV,,s y My commi ion ex 'y 95973 O'K,0,68011, Z '4414�wka,` p �IIIIIOF+WAS'(\` !QQ: A EXHIBIT B Description of Franchise Area Maggie Lake ry 'Gr '- akb '99%r 0 Q Dry ,Pond J 2 NE ADY LN " CO 2 B RECORDED AT THE REQUEST OF AND AFTER RECORDING RETURN TO: County of Mason 100 West Public Works Drive Shelton WA 98584 Attn: County Engineer Title: Maggie Lake Water District Franchise Agreement Grantor: COUNTY OF MASON, a legal subdivision of the state of Washington Grantee: MAGGIE LAKE WATER DISTRICT Description of Franchise Area: SEE EXHIBIT B IN THE MATTER OF THE APPLICATION OF MERRIMOUNT WATER SYSTEM FOR A FRANCHISE PERMIT TO CONSTRUCT, OPERATE, AND MAINTAIN Water UTILITY FACILITIES, OVER, ALONG AND UNDER COUNTY ROADS AND HIGHWAYS LOCATED IN MASON COUNTY, WASHINGTON Application of(Name of Operator) Merrimount Water System, Inc., doing business in Washington as Merrimount Water System, Inc., with its principal offices located at 20 E-Merrimount Road,Union, WA 98592, by and through (person authorized to act for and on behalf of applicant) Don Clawson, for a franchise to construct, operate and maintain (description of type) Water utility facilities in,over,along and under county roads and highways in Mason County,Washington,as set forth in attached Exhibit `B" (Franchise Area), having come on regularly for hearing before the County Commissioners of Mason County, Washington, on the day of , 20 , at the hour of , under the provisions of RCW 36.55, RCW 80.32.010 and RCW 80.36.040, and it appearing to the Board that notice of said hearing has been duly given as required by law, and that it is in the public interest to allow the franchise herein granted; NOW THEREFORE, IT IS ORDERED that a non-exclusive franchise be, and the same is hereby given and granted to Operator, and its successors and assigns,hereinafter referred to as the Franchisee, for a period of 10 years with automatic renewal at the end of each term of 10 years unless either party gives the other written notice of termination at least 30 days prior to the end of the relevant term. (no more than ten years each term and can only be renewed 3 times) from and after the date of the entry of this order for the purposes, at the location(s), and upon the express terms and conditions as described herein. I. DEFINITIONS For the purposes of this franchise,terms,phrases,words,and their derivations not defined herein that are defined in Title 12 of the Mason County Code or the Manual on Accommodating Utilities in the Mason County Right-of-Way published by the County Engineer(the"Manual"),shall have the same meaning or be interpreted as provided in Title 12 of the Mason County Code or the Manual. Words not defined here, in Title 12 of the Mason County Code or the Manual shall have their ordinary meaning. A reference to Title 12 of the Mason County Code or the Manual refers to the same as may be amended, revised,updated,re-enacted or re-codified from time to time. II. GRANT The County of Mason hereby grants to the Franchisee a non-exclusive franchise which, once it becomes effective shall authorize the Franchisee to enter upon the road rights-of-way located 1 within the Franchise Area identified in attached Exhibit`B", for the purpose of installing, constructing,maintaining, repairing,replacing, adjusting,relocating and operating the utility facilities, which grant shall be limited to the following described purpose(s): Water System Such grant is subject to and must be exercised in strict accordance with and subject to this franchise, Title 12 of the Mason County Code, the Manual and all applicable laws, rules, regulations and ordinances. Franchisee's exercise of any rights granted pursuant to the franchise is subject to the exercise of the County's police powers,and other regulatory powers as it may have or obtain in the future. No rights shall pass to the franchisee by implication. This franchise does not include permission to enter into or upon the road rights-of-way for any purposes others than the purposes expressly described herein. Permittee has a duty to notify the County of any change in use or condition of the utility facilities that may affect the status of the utility facilities or the impact of the utility facilities upon the road rights-of-way. III. UTILITY PERMIT REQUIRED Franchisee shall not commence or perform work(hereafter"Work")to install,construct,maintain repair, replace adjust, connect, disconnect, rebuild, or relocate its utility facilities within the road rights-of-way,without first applying for,paying all associated fees,and obtaining a utility permit as required pursuant to Title 12 of the Mason County Code. In any utility permit so issued,the County may impose,as a condition of the granting the utility permit,such conditions and regulations as may be necessary for the protection,preservation and management of the road rights-of-way,including, by way of example and not limitation, for the purpose of protecting any structures in the road rights-of-way, maintaining proper distance from other utilities, ensuring the proper restoration of such road rights-of-way and structures,and for the protection of the County and the public and the continuity of pedestrian and vehicular traffic. Franchisee shall first file with the County Engineer its application for a utility permit to do such Work together with plans and specifications in triplicate showing at a minimum: A.The position,depth and location of all such utility facilities sought to be constructed,laid, installed or erected at that time,showing their relative position to existing county roads,rights-of-way or other county property upon plans drawn to scale,hereinafter collectively referred to as the"map of definite location; B. The class and type of material and equipment to be used, manner of excavation, construction,installation,backfill,erection of temporary structures,erection of permanent structures, traffic control,traffic turnouts and road obstructions; C. The manner in which the utility facility is to be installed; D. Measures to be taken to preserve safe and free flow of traffic; 2 E. Structural integrity of the roadway,bridge, or other structure; F. Specifications for the restoration of the county road,right-of-way or other county property in the event that the road right of way will be disturbed by the Work; and G. Provision for ease of future road maintenance and appearance of the roadway. Provision shall be made for known or planned expansion of the utility facilities,particularly those located underground or attached to bridges or other structures within the road right-of-way. The location, alignment and depth of the utility facilities shall conform with said map of definite location,except in instances in which deviation may be allowed thereafter in writing by the County Engineer pursuant to application by Franchisee. All such Work shall be subject to the approval of and shall pass the inspection of the County Engineer.The Franchisee shall pay all costs of and expenses incurred in the examination,inspection and approval of such work on account of granting the said utility permits. IV. RESTORATION OF ROAD RIGHT OF WAY In any Work which disturbs or causes damage to the road rights-of-way subject to this franchise, public or private property, the Franchisee shall at its own expense and with all convenient speed, complete the work to repair and restore the county road right-of-way, or the public or private property so disturbed or damaged, and leave the same in as good or better condition as before the Work was commenced,to the reasonable satisfaction of the County Engineer. The Franchisee shall pay all costs of and expenses incurred in the examination, inspection and approval of such restoration or repair. The County Commissioners and/or County Engineer may at any time do,order or have done any and all work that they consider necessary to restore to a safe condition such County road right-of-way or other County property left by the Franchisee or its agents in a condition dangerous to life or property, and the Franchisee,upon demand, shall pay to the County all costs of such work. V. FRANCHISEE WORK IN RIGHT OF WAY Franchisee expressly agrees and understands that,with regard to Work within the road rights-of-way: A. All of Franchisee's utility facilities and Work within the road rights-of-way or other County property shall be in compliance with the provisions of Title 12 MCC, the Manual, the administrative regulations adopted by the County Engineer,other County established requirements for placement of utility facilities in road rights-of-way, including the specific location of utility facilities in the road rights-of-way, and all applicable laws, rules,regulations and ordinances; B. In preparing plans and specifications for Work of utility facilities in the road rights-of- 3 way the Franchisee shall use the Manual. Prior to commencement of work in the road rights-of-way, Franchisee shall submit such plans and specifications to the Mason County Engineer for review and approval together with adequate exhibits depicting existing or proposed location of the utility facility in relation to the road, including right-of-way or easement lines; relationship to currently planned road revisions,if applicable;and all locations and situations for which deviations in depth of cover (including the proposed method of protection)or other locational standards that are anticipated; C. All Work to utility facilities located within the road rights-of-way or other county property subject to this franchise shall be done in such a manner as not to interfere, other than in ways approved by the County, with the construction, operation and maintenance of other utilities, public or private, drains, drainage ditches and structures, irrigation ditches and structures, located therein,nor with the grading or improvements of such County roads,rights-of-way or other County property; D. The owners and operators of all utility facilities (public or private) installed in the Franchise Area or other county property prior in time to the utility facilities of the Franchisee,shall have preference as to the alignment and location of such utilities so installed with respect to the Franchisee. Such preference shall continue in the event of the necessity of relocating or changing the grade of any such county road or right-of-way; E. Franchisee shall perform the Work and operate its utility facilities in a manner that minimizes interference with the use of the road rights-of-way by others,including others that may be installing utility facilities; and F. The County may require that Franchisee's utility facilities be installed at a particular time, at a specific place,or in a particular manner as a condition of access to a particular road right-of-way; may deny access if a Franchisee is not willing to comply with the County's requirements; and may remove, or require removal of, any utility facility that is not installed in compliance with the requirements established by the County,or which is installed without prior County approval of the time, place, or manner of installation and charge the Franchisee for all the costs associated with removal; and may require Franchisee to cooperate with others to minimize adverse impacts on the road rights-of-way through joint trenching and other arrangements. G. The County may inspect the utility facilities at any time reasonable under the circumstances to ensure compliance with this franchise and applicable law,including to ensure that the utility facilities are constructed and maintained in a safe condition. If an unsafe condition is found to exist,the County,in addition to taking any other action permitted under applicable law,may order the Franchisee, in writing, to make the necessary repairs and alterations specified therein forthwith to correct the unsafe condition on a time-table established by the County which is reasonable in light of the unsafe condition. The County has the right to correct,inspect,administer, and repair the unsafe condition if the Franchisee fails to do so, and to charge the Franchisee therefore. The right of the County to conduct such inspections and order or make repairs shall not be construed to create an obligation therefore,and such obligation to construct and maintain its utility 4 facilities in a safe condition shall at all times remain the sole obligation of the Franchisee. H. When required by the County,Franchisee shall make information available to the public regarding any work involving the ongoing installation,construction,adjustment,relocation,repair or maintenance of its utility facilities sufficient to show(1)the nature of the work being performed; (2)where it is being performed; (3) its estimated completion date; and(4)progress to completion. I. FRANCHISEE IS PLACED ON NOTICE THAT FIBER OPTIC,COMMUNICATIONS, POWER, CONTROL SYSTEMS, OTHER TYPES OF CABLES, AND PIPELINES MAY BE BURIED ON THE RIGHT OF WAY. Before beginning any underground work, Franchisee will contact the appropriate personnel to have such facilities located and make arrangements as to protective measures that must be adhered to prior to the commencement of any work within the Road rights-of-way. In addition to the liability terms elsewhere in this Agreement, Franchisee shall indemnify and hold the County and its elected and appointed officers, employees and agents harmless against and from all cost,liability,and expense whatsoever(including,without limitation, attorney's fees and court costs and expenses)arising out of or in any way contributed to by any act or omission of Franchisee,its contractor,agents and/or employees,that cause or in any way or degree contribute to (1)any damage to or destruction of any such facilities by Franchisee, and/or its contractor, agents and/or employees, on the County's property, (2)any injury to or death of any person employed by or on behalf of any entity,and/or its contractor,agents and/or employees,on the road rights-of-way,and/or(3)any claim or cause of action for alleged loss of profits or revenue,or loss of service, by a customer or user of services or products of such company(ies) (collectively "Liabilities" for purposes of this Section V.I). The only Liabilities with respect to which Franchisee's obligation to indemnify the County and its elected and appointed officers,employees and agents does not apply are Liabilities to the extent arising out of,caused by or resulting from the negligence of the County, and its elected and appointed officers, employees and agents and Liabilities that by law the County and its elected and appointed officers, employees and agents for which the County cannot be indemnified. J. Franchisee shall continuously be a member of the State of Washington one number locator service under RCW 19.122, or an approved equivalent, and shall comply with all such applicable rules and regulations. K. Except in the event of emergency as described below,Franchisee and its Agents may not enter upon the Franchise Area to perform work for which a utility permit is not required,unless and except upon two-business days notice to the County Engineer. L. In the event of an emergency involving the threat of imminent harm to persons or property,and for purposes of taking immediate corrective action,Franchisee and its agents may enter the Franchise Area without advance notice to the County as long as such entry is for the sole purpose of addressing the emergency; provided however,that if any entry for such purposes would require issuance of a utility permit,Franchisee shall give the County verbal or telephonic notice of the places where and the manner in which entry is required prior to such entry,promptly followed by written notice. In all cases,notice to the County shall be given as far in advance as practical prior to entry or as soon as practicable after entry upon the road right-of-Way. 5 M. Franchisee shall promptly reimburse the County for their reasonable and direct costs incurred in responding to an emergency that is caused, created by or attributable to the presence, construction,maintenance,repair,or operation of the Franchisees utility facilities in the road rights- of-way. N. If,during installation,construction,relocation,realignment,adjustment,maintenance,or repair of the Franchisee's utility facilities in the road rights-of-way,Franchisee or its agents discover scientific or historic artifacts,Franchisee shall immediately notify the County of said discovery and shall protect such artifacts in a manner as specified by the County. Any such artifact shall be the property of the County if the County wishes to own it. VI. PROTECTION OF PUBLIC All work done under this franchise shall be done in a thorough and workman-like manner. In the performance of Work within or near the road rights-of-way, including without limitation, the opening of trenches and the tunneling under county roads,rights-of way or other county property,the Franchisee shall leave such trenches, ditches and tunnels in such a way as to interfere as little as possible with public travel and shall take all due and necessary precautions to guard the same,so that damage or injury shall not occur or arise by reason of such Work; and where any of such trenches, ditches and tunnels are left open at night,the Franchisee shall place warning lights,barricades and other appropriate protective devices at such a position as to give adequate warning of such Work. The Franchisee shall be liable for any injury to person or persons or damage to property sustained arising out of its carelessness or neglect,or through any failure or neglect to properly guard or give warning of any trenches, ditches or tunnels dug or maintained by the Franchisee. VII. POLICE POWERS The County of Mason,in granting this franchise,does not waive any rights which it now has or may hereafter acquire with respect to county roads, rights-of-way or other county property and this franchise shall not be construed to deprive the county of any powers, rights or privileges which it now has or may hereafter acquire to regulate the use of and to control the county roads,rights-of-way and other county property covered by this franchise. The County retains the right to administer and regulate activities of the Franchisee up to the fullest extent of the law. The failure to reserve a particular right to regulate,or reference a particular regulation,shall not be interpreted by negative implication or otherwise to prevent the application of a regulation to the Franchisee. VIII. RELOCATION Franchisee shall, in the course of any Work, comply with the following requirements: A. The Franchisee shall, by a time specified by the County, protect, support, temporarily disconnect,relocate,or remove any of its utility facilities when required by the County by reason of traffic conditions;public safety;road right-of-way construction;road right-of-way repair(including 6 resurfacing or widening);change of road right-of-way grade;construction,installation,or repair of County-owned sewers,drains,water pipes,power lines,signal lines,tracks,communications system, other public work, public facility, or improvement of any government-owned utility; road right-of-way vacation;or for any other purpose where the County work involved would be aided by the removal or relocation of the utility facilities. Collectively,such matters are referred to below as the "public work." Franchisee acknowledges and understands that any delay by Franchisee in performing the herein described work may delay, hinder, or interfere with the work performed by the County and its contractors and subcontractors done in furtherance of such Public Work and result in damage to the County,including but not limited to,delay claims. Franchisee shall cooperate with the County and its contractors and subcontractors to coordinate such Franchisee work to accommodate the Public Work project and project schedules to avoid delay, hindrance of, or interference with the Public Work. The County of Mason shall make available to the Franchisee a copy of the Six Year Transportation Program and the County's annual construction program after adoption each year. It is anticipated these programs will aid the utility in planning construction programs. B. Franchisee has a duty to protect its utility facilities from work performed by the County within the road rights-of-way. The rights granted to the Franchisee herein do not preclude the County of Mason, its employees, contractors, subcontractors, and agents from blasting, grading, excavating, or doing other necessary road work contiguous to Franchisee's utility facilities; providing that, the Franchisee shall be given a minimum of forty-eight (48) hours notice of said blasting or other work in order that the Franchisee may protect its utility facilities. C. In the event of an emergency,or where the utility facility creates or is contributing to an imminent danger to health, safety, or property, the County may protect, support, temporarily disconnect,remove,or relocate any or all parts of the utility facility without prior notice,and charge the Franchisee for costs incurred. D. If any Person that is authorized to place facilities in the road right of way requests the Franchisee to protect, support,temporarily disconnect,remove,or relocate the Franchisee's utility facilities to accommodate the construction,operation,or repair of the facilities of such other person, the Franchisee shall,after 30 days'advance written notice,take action to effect the necessary changes requested;provided that,if such project is related to or competes with Franchisee's service,or if the effect of such changes would be to permanently deprive Franchisee of the beneficial enjoyment of this franchise for its intended purposes through interference with the operation of Franchisee's utility facilities or otherwise, Franchisee shall not be required to relocate its utility facilities. Unless the matter is governed by a valid contract or a state or federal law or regulation, or unless the Franchisee's utility facilities were not properly installed, the reasonable cost of the same shall be borne by the Person requesting the protection, support, temporary disconnection, removal, or relocation at no charge to the County, even if the County makes the request for such action. 7 E. The Franchisee shall, on the request of any person holding a valid permit issued by a governmental authority, temporarily raise or lower its wires to permit the moving of buildings or other objects. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same. The County of Mason will accept liability for direct and actual damages to said Franchisee that are the result of the negligence of Mason County, its trustees, officers, employees, contractors, subcontractors or agents while performing County improvement or Public Works projects enumerated in the original franchise agreement under Section VIII,paragraph B. Direct and actual damages are specifically limited to physical damage to properly installed and located infrastructure of the Franchisee and the cost to repair such physical damage. Mason County retains the right to assert all applicable defenses in the event of a dispute including contributory negligence on the part of the Franchisee. Mason County shall in no way be liable for incidental damages claimed to arise from such actions. All Work to be performed by the Franchisee under this section shall pass the inspection of the County Engineer. The Franchisee shall pay all costs of and expenses incurred in the examination, inspection and approval of such work. IX. PRESERVATION OF MONUMENTS/MARKERS Before any work is performed under this franchise which may affect any existing monuments or markers of any nature relating to subdivisions,plats,roads and all other surveys,the Franchisee shall reference all such monuments and markers. The reference points shall be so located that they will not be disturbed during the Franchisee's operations under this franchise. The method of referencing these monuments or other points to be referenced shall be approved by the County Engineer. The replacement of all such monuments or markers disturbed during construction shall be made as expeditiously as conditions permit,and as directed by the County Engineer. The cost of monuments or other markers lost, destroyed, or disturbed, and the expense of replacement by approved monuments shall be borne by the Franchisee. A complete set of reference notes for monument and other ties shall be filed with the office of the Mason County Engineer. X. VACATION OF ROAD RIGHT-OF-WAY If at any time the County shall vacate any County road,right-of-way or other County property which is subject to rights granted by this franchise and said vacation shall be for the purpose of acquiring the fee or other property interest in said road, right-of-way or other county property for the use of Mason County,in either its proprietary or governmental capacity,then the Board of Mason County Commissioners may, at its option, and by giving thirty(30) days written notice to the Franchisee, terminate this franchise with reference to such county road,right-of-way or other county property so vacated, and the County of Mason shall not be liable for any damages or loss to the Franchisee by reason of such termination. It has been the practice of Mason County to reserve easements for 8 utilities at the time of road vacation,and will continue to be the practice until such time the Board of Mason County Commissioners direct a change of practice. XI. FINANCIAL SECURITY A. Insurance Except as otherwise provided herein,Franchisee shall maintain for itself and the County,throughout the entire period any part of Franchisee's utility facilities are located in the Franchise Area, adequate insurance to protect the Parties and their elected and appointed officers, agents,employees against all of County's and Franchisee's liability arising out of Franchisee's use and occupancy of the Franchise Area or any part thereof. This obligation shall require the Franchisee to maintain insurance at least in the following amounts: 1. COMMERCIAL GENERAL LIABILITY insurance to cover liability, bodily injury, and property damage. The Commercial General Liability insurance shall be written on an occurrence basis, with an aggregate limit location endorsement for the Franchise Area, and shall provide coverage for any and all costs, including defense costs, and losses and damages resulting from personal injury, bodily injury and death, property damage, products liability and completed operations. Such insurance shall include blanket contractual coverage, including coverage for the Franchise as now or hereafter amended and specific coverage for the indemnity provisions set forth herein. Coverage must be written with the following limits of liability: Bodily and Personal Injury&Prope , Damage $ 1,000,000 per Occurrence $ 2,000,000 aggregate 2 WORKERS' COMPENSATION insurance shall be maintained to comply with statutory limits for all employees,and in the case any work is sublet,the Franchisee shall require its contractors and subcontractors similarly to provide workers' compensation insurance for all the employees. The Franchisee shall also maintain, during the life of this policy, employer's liability insurance;provided that this obligation shall not apply to any time period during which Franchisee has no employees. The following minimum limits must be maintained: Workers'Compensation Statutory Employer's Liability $ 1,000,000 each occurrence 3.COMPREHENSIVE AUTO LIABILITY insurance shall include owned,hired,and non-owned vehicles operated by Franchisee employees on an occurrence basis with coverage of at least$2,000,000 per occurrence. If the Franchisee, its contractors, or subcontractors do not have the required insurance,the County may require such entities to stop operations until the insurance is obtained and approved. Certificates of Insurance reflecting evidence of the required insurance and approved by the County's 9 Risk Manager for the GENERAL LIABILITY policies described above,shall be sent to the County's risk manager. The certificate shall be filed with the acceptance of the franchise, and annually thereafter, and as provided below. All coverage shall be listed all on one certificate with the same expiration dates. The certificates shall contain a provision that coverages afforded under these policies will not be canceled until at least 30 days'prior written notice has been given to the County. In the event that the insurance certificate provided indicates that the insurance shall terminate or lapse during the period of the franchise,then, in that event,the Franchisee shall furnish,at least 30 days prior to the expiration of the date of such insurance,a renewed certificate of insurance as proof that equal and like coverage has been or will be obtained prior to any such lapse or termination during the balance of the period of the franchise. The County reserves the right, during the term of the franchise, to require any other insurance coverage or adjust the policy limits as it deems reasonably necessary utilizing sound risk management practices and principals based upon the loss exposures. Each insurance policy required pursuant to this franchise shall be primary and non-contributing as respects any coverage maintained by the County and shall include an endorsement reflecting the same. Any other coverage maintained by County shall be excess of this coverage herein defined as primary and shall not contribute with it. The certificate of insurance must reflect that the above wording is included in all such policies. Each insurance policy obtained pursuant to this franchise shall be issued by financially sound insurers who may lawfully do business in the State of Washington with a financial rating at all times during coverage of no less than rating of"A" and a class of"X" or better in the latest edition of "Best's Key Rating Guide"published by A.M.Best Company,or such other financial rating or rating guide approved in writing by the County's risk manager. In the event that at any time during coverage,the insurer does not meet the foregoing standards,Franchisee shall give prompt notice to the County and shall seek coverage from an insurer that meets the foregoing standards. The County reserves the right to change the rating or the rating guide depending upon the changed risks or availability of other suitable and reliable rating guides. Comprehensive general liability insurance policies and coverage obtained pursuant to this franchise shall include an endorsement(standard ISO form CG 24-17)deleting all exclusions for work or incidents occurring within any distance from a railroad track or railroad property, or on, over, or under a railroad track. Insurance policies required pursuant to this franchise shall have no non-standard exclusions unless approved of by the County Risk Manager or designee. Commercial general liability insurance policies obtained pursuant to this franchise shall name the 10 County as an additional insured without limitation,pursuant to an endorsement approved of by the County's Risk Manager or designee. Franchisee and Franchisee's Contractors' insurers, through policy endorsement, shall waive their rights of subrogation against the County for all claims and suits. The certificate of insurance must reflect this waiver of subrogation rights endorsement. Commercial General Liability Insurance policies and coverage required herein of public utility operators may include a reasonable deductible or self-insured retention;provided,however,that as to any Loss or Damage covered as provided herein, if Franchisee elects to include any deductible or self-insured retention,Franchisee shall itself directly cover,in lieu of insurance,any and all County liabilities that would otherwise in accordance with the provisions of this Franchise be covered by Franchisee's insurance if Franchisee elected not to include a deductible or self-insured retention. Such direct coverage by Franchisee shall be in an amount equal to the amount of Franchisee's actual deductible or self-insured retention. Franchisee shall be required to provide a certification of self- insurance retention to the county in a form and content acceptable to the county engineer. B. Performance/Payment Bond. At the same time Franchisee provides its acceptance of this Franchise, the Franchisee shall, if required by the County Engineer, provide a performance and payment bond to ensure the full and faithful performance of all of its responsibilities under this franchise and applicable rules, regulations and ordinances, including, by way of example, but not limited to,its obligations to relocate and remove its utility facilities,to restore the road rights-of-way and other property when damaged or disturbed, and to reimburse the County for its costs. The amount of the performance and payment bond shall be for ZERO ($0). The amount of the bond,or cash deposit as described below, may be adjusted by the County every five years from the date of execution of this franchise,to take into account cumulative inflation or increased risks to the County. The Franchisee may be required to obtain additional bonds in accordance with the County's ordinary practices. The bond shall be in a form with terms and conditions acceptable to the County and reviewed and approved by the County Engineer. The bond shall be with a surety with a rating no less than "A V in the latest edition of"Bests Key Rating Guide," published by A.M. Best Guide. The Franchisee shall pay all premiums or costs associated with maintaining the bond,and shall keep the same in full force and effect at all times.If Franchisee fails to provide or maintain the bond,then the County,in its sole discretion,may require Franchisee to substitute an equivalent cash deposit as described below in lieu of the bond. Franchisee, may at its election or upon order by the County, substitute an equivalent cash deposit instead of a performance and payment bond. This cash deposit shall ensure the full and faithful performance of all of Franchisee's responsibilities hereto under this Permit and all applicable laws, rules, regulations or ordinances. This includes, but is not limited to, its obligations to relocate or remove its facilities, restore the road rights-of-way and other property to their original condition, reimbursing the County for its costs, and keeping Franchisee's insurance in full force. The County shall notify Franchisee in writing, by certified mail, of any default and shall give 11 Franchisee thirty(30)days from the date of such notice to cure any such default. In the event that the Franchisee fails to cure such default to the satisfaction of the County,the County may,at its option, forfeit the entire amount of the cash deposit or draw upon the cash deposit up to the amount of the County's costs incurred to cure Franchisee's default. Upon the County's cure of Franchisee's default,the County shall notify Franchisee in writing of such cure. In the event that the County draws upon the cash deposit or forfeits the same, Franchisee shall thereupon replenish the cash deposit to the full amount as specified herein or provide a replacement performance and payment bond. Before any Work commences in the road right-of-way,the County Engineer may require the operator to provide a performance and payment bond for each separate project in an amount to be determined by the County Engineer, but not less than five hundred dollars, written by a surety company acceptable to the County Risk Manager and authorized to do business in the state of Washington. The purpose of the bond is to insure completion of construction, including the restoration of surfacing,slopes,slope treatment,topsoil,landscape treatment,and drainage facilities,and cleanup of rights-of-way, and payment of costs incurred by the County to enforce the requirements of this Chapter. The performance and payment bond shall be in place for a period ending not more than one year after the date of completion. A project specific performance bond shall not be required in the event that the franchisee has in place a blanket performance bond and, when required, a payment bond, maintained pursuant to the requirements of this franchise. A performance and payment bond for work in the road right-of-way will not be required of the United States Government or any of its agencies or of any municipal corporation or department of the state of Washington and its local subdivisions. C. Limitation of Liability. To the fullest extent permitted by law,the Franchisee shall,and shall cause its contractor(s) to release, indemnify, defend and hold harmless the county and the county's legal representatives,officer(elected or),appointed)employees and agents(collectively, "indemnitees")for, from and against any and all claims, liabilities,fines,penalties,cost,damages, losses, liens, causes of action, suits, demands, judgments and expenses (including, without limitations, court costs, attorneys' fees and costs of investigation, removal and remediation and governmental oversight costs),Environmental or otherwise(collectively"liabilities")of any nature, kind,or description, of any person or entity,directly or indirectly,arising out of,resulting from,or related to (in whole or in part): 1. this franchise; 2. any rights or interests granted pursuant to this franchise; 3. franchisee's occupation and use of the road right of way; 12 4. franchisee's operation of its utility facilities; 5. the presence of utility facilities within the right of way; 6. the environmental condition and status of the road right-of-way caused by, aggravated by,or contributed to, in whole or in part, by franchisee or its agents; or 7. The acts,errors,or omissions of third parties when arising out of the installation, construction,adjustment,relocation,replacement,removal,or maintenance of such third party utility facilities within the road rights-of-way when such work is performed under authority of the operator's utility permit or at the direction or under the control of the operator; or 8. any act or omission of franchisee or franchisee's agents; The only liabilities with respect to which franchisee's obligation to indemnify the indemnitees do not apply are liabilities to the extent arising out of, caused by or resulting from the negligence of the county, its officers, agents, employees or contractors and liabilities that by law the indemnities cannon be indemnified for. Upon written notice from the county,franchisee agrees to assume the defense of any lawsuit or other proceeding brought against any indemnitee by any entity, relating to any matter covered by this franchise for which franchisee has an obligation to assume liability for and/or save and hold harmless any indemnitee.Franchisee shall pay all cost incident to such defense,including,but not limited to, attorneys'fees,investigators'fees,litigation and appeal expenses,settlement payments and amounts paid in satisfaction of judgments. Franchisee will fully satisfy said judgment within ninety(90)days after said suit or action shall have finally been determined if determined adversely to Mason County. Upon the Franchisee's failure to satisfy said judgment within the ninety (90) day period, this franchise shall at once cease and terminate. Acceptance by the County of any Work performed by the Franchisee at the time of completion shall not be grounds for avoidance of this covenant. XII. FRANCHISE NONEXCLUSIVE This franchise shall not be deemed to be an exclusive franchise. It shall in no manner prohibit the County of Mason from granting other utilities under,along,across,over and upon any of the County roads,rights-of-way or other County property subject to this franchise and shall in no way prevent or prohibit the County of Mason from constructing, altering, maintaining or using any of said roads, rights-of-way,drainage structures or facilities,irrigation structures or facilities,or any other county property or affect its jurisdiction over them or any part of them with full power to make all necessary changes,relocations, repairs, maintenance, etc.,the same as the county may deem fit. 13 XIII. SUCCESSORS AND ASSIGNS All the provisions,conditions,regulations and requirements herein contained shall be binding upon the successors and assigns of the Franchisee,and all privileges,as well as all obligations and liability of the Franchisee, shall ensure to its successors and assigns equally as if they were specifically mentioned wherever the Franchisee is mentioned. Any reference in this franchise to a specifically named party shall be deemed to apply to any successor, heir, administrator, executor or assign of such party who has acquired its interest in compliance with the terms of this franchise,or under law. XIV. TRANSFER/ASSIGNMENT Franchisee may assign or transfer this franchise after prior written notice to County of Mason and assignee's written commitment,in a form and content approved by the County Prosecutor,delivered to County of Mason,that assignees shall thereafter be responsible for all obligations of Franchisee with respect to the franchise and guaranteeing performance under the terms and conditions of the franchise and that transferee will be bound by all the conditions of the franchise and will assume all the obligations of its predecessor. Such an assignment shall relieve the Franchisee of any further obligations under the franchise, including any obligations not fulfilled by Franchisee's assignee; provided that,the assignment shall not in any respect relieve the Franchisee,or any of its successors in interest,of responsibility for acts or omissions,known or unknown,or the consequences thereof, which acts or omissions occur prior to the time of the assignment. No franchise or master road use permit may be assigned or transferred without filing or establishing with the county the insurance certificates and performance bond as required pursuant to this franchise. XV. ANNEXATION Whenever any of the County roads, rights-of-way or other county property as designated in this franchise,by reason of the subsequent incorporation of any town or city,or extension of the limits of any town or city,shall fall within the city or town limits and shall by operation of law or otherwise terminate in respect to the said roads,rights-of-way or other county property so included with city or town limits; this franchise shall continue in force and effect to all county roads, rights-of-way or other county property not so included in city or town limits. XVI. REVOCATION/REMEDIES A. Revocation. In addition the right to revoke this franchise as set forth in Title 12 of the Mason County Code, if the Franchisee shall willfully violate, or fail to comply with any of the provisions of this franchise through willful or unreasonable neglect or fail to heed or comply with any notice given the Franchisee under the provision of this grant, then Franchisee shall forfeit all rights conferred hereunder and this franchise may be revoked or annulled,after a public hearing by the Board of County Commissioners. The Franchisee shall not be relieved of any of its obligations to comply promptly with any provision of this franchise by reason of any failure of the County to enforce prompt compliance,and the County's failure to enforce shall not constitute a waiver of rights 14 or acquiescence in the Licensee's conduct. Subject to the required consent, adjudication, permission or authorization of a federal or state regulatory agency with jurisdiction over the subject matter, upon revocation of the franchise, the County may require the Franchisee to remove its utility facilities from any road rights-of-way,and restore such road right-of-way to its same or better condition as existed just prior to such removal,or de-commission and abandon such utility facilities in place in whole or in part and in a manner approved by the County Board of Commissioners. If the Franchisee fails to remove utility facilities that the County requires it to remove,the County may perform the work and collect the cost thereof from the Franchisee. The actual cost thereof,including direct and indirect administrative costs,shall be a lien upon all utility facilities of the Franchisee within the franchise Area effective upon filing of the lien with the Mason County Auditor. B. Remedies. The County has the right to exercise any and all of the following remedies, singly or in combination,in the event of Default. "Default"shall mean any failure of Franchisee or its agents to keep,observe,or perform any of Franchisee's or its agent's duties or obligations under this franchise: 1. Damages. Franchisee shall be liable for any and all damages incurred by County. 2. Specific Performance. County shall be entitled to specific performance of each and every obligation of Franchisee under this franchise without any requirement to prove or establish that County does not have an adequate remedy at law. Franchisee hereby waives the requirement of any such proof and acknowledges that County would not have an adequate remedy at law for Franchisee's commission of an Event of Default hereunder. 3. Injunction. County shall be entitled to restrain, by injunction, the actual or threatened commission or attempt of an Event of Default and to obtain a judgment or order specifically prohibiting a violation or breach of this Agreement without, in either case, being required to prove or establish that County does not have an adequate remedy at law. Franchisee hereby waives the requirement of any such proof and acknowledges that County would not have an adequate remedy at law for Franchisee's commission of an Event of Default hereunder. 4. Alternative Remedies. Neither the existence of other remedies identified in this franchise nor the exercise thereof shall be deemed to bar or otherwise limit the right of the County to commence an action for equitable or other relief, and/or proceed against Franchisee and any guarantor for all direct monetary damages, costs and expenses arising from the Default and to recover all such damages, costs and expenses, including reasonable attorneys' fees. Remedies are cumulative;the exercise of one shall not foreclose the exercise of others. XVII. SUBSEQUENT ACTION In the event that after this franchise becomes effective, (a) there is a change in the law which 15 broadens the authority of the County of Mason or the Franchisee with respect to any act permitted or authorized under this franchise; or (b)the County of Mason or the Franchisee believe that amendments to this franchise are necessary or appropriate, then the County of Mason and the Franchisee agree to enter into good faith negotiations to amend this franchise so as to enable the Parties to address, in a manner reasonably acceptable to all Parties, such change or other development which formed the basis for the negotiations. The Parties recognize that the purpose of the negotiations would be to preserve, to the maximum extent consistent with law,the scope and purpose of this franchise. Mason County reserves for itself the right at any time upon ninety (90) days written notice to the Franchisee, to so change, amend, modify or amplify any of the provisions or conditions herein enumerated to conform to any state statute or county regulation,relating to the public welfare,health, safety or highway regulation,as may hereafter be enacted,adopted or promulgated and this franchise may be terminated at such time a public hearing is held by the Board of County Commissioners,and the Franchisee's utility facilities are found not to be operated or maintained in accordance with such statute or regulation. XVIII. ACCEPTANCE Franchisee shall execute and return to the County of Mason a signed acceptance of the franchise granted hereunder. The acceptance shall be in the form of the acceptance attached hereto as Exhibit "A", and in accepting the franchise, Franchisee warrants that it has carefully read the terms and conditions of this franchise and accepts all of the terms and conditions of this franchise and agrees to abide by the same and acknowledges that it has relied upon its own investigation of all relevant facts, that it has had the assistance of counsel, that it was not induced to accept a franchise, that this franchise represents the entire agreement between the Franchisee and the County of Mason. In the event the Franchisee fails to submit the countersigned ordinance and acceptance as provided for herein within the time limits set forth in this section,the grant herein is and shall become null and void. XIX. MISCELLANEOUS PROVISIONS A. Controlling Law/Venue. Any disputes concerning the application or interpretation of any of the provisions of this franchise shall be governed by the laws of the State of Washington. Venue of any action or arbitration brought under this franchise shall be in Mason County,Washington or the Western District of Washington if an action is brought in federal court, provided, however, that venue of such action is legally proper. B. Liens. Franchisee shall promptly pay and discharge any and all liens arising out of any Work done, suffered or permitted to be done by Franchisee on any Franchise Area. C. Waiver. No waiver by either party of any provision of this franchise shall in any way impair the right of such party to enforce that provision for any subsequent breach, or County of 16 Mason's right to enforce all other provisions of this franchise. D. Attorney's Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this franchise, the substantially prevailing Party or Parties shall be entitled to reasonable attorney's fees,costs and necessary disbursements in addition to any other relief to which such Party or Parties may be entitled. E. Amendment. This franchise may be amended only by a written contract signed by authorized representatives of Franchisee and County of Mason. F. Severability. If any provision of this franchise is held to be illegal, invalid or unenforceable under present or future laws,such provision will be fully severable and this franchise will be construed and enforced as if such illegal, invalid or unenforceable provision is not a part hereof,and the remaining provisions hereof will remain in full force and effect. In lieu of any illegal, invalid or unenforceable provision herein, there will be added automatically as a part of this franchise; a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal,valid and enforceable. G. Joint and Several Liability. Franchisee acknowledges that, in any case in which Franchisee and Franchisee's Contractors are responsible under the terms of this franchise, such responsibility is joint and several as between Franchisee and any such Franchisee's Contractors; provided that,the Franchisee is not prohibited from allocating such liability as a matter of contract. H. Notices. Any notice contemplated, required, or permitted to be given under this franchise shall be sufficient if it is in writing and is sent either by: (a)registered or certified mail, return receipt requested;or(b)a nationally recognized overnight mail delivery service,to the Party and at the address specified below,except as such Party and address may be changed by providing notice to the other Parry no less than thirty (30) days' advance written notice of such change in address. Franchisee: Merrimount Water System 20 E Merrimount Road Union, WA 98592 Attn: Don Clawson Grantor: County of Mason Public Works 100 Public Works Drive Shelton, WA 98584 I. Approvals. Nothing in this franchise shall be deemed to impose any duty or obligation upon the County of Mason to determine the adequacy or sufficiency of Franchisee's plans and specifications or to ascertain whether Franchisee's proposed or actual construction, testing, 17 maintenance,repairs,replacement,relocation,adjustment or removal is adequate or sufficient or in conformance with the plans and specifications reviewed by the County of Mason. No approval given, inspection made,review or supervision performed by the County of Mason pursuant to this franchise shall constitute or be construed as a representation or warranty express or implied by County of Mason that such item approved, inspected, or supervised, complies with laws, rules regulations or ordinances or this franchise or meets any particular standard,code or requirement,or is in conformance with the plans and specifications,and no liability shall attach with respect thereto. County and inspections as provided herein, are for the sole purpose of protecting the County of Mason's rights as the owner or manager of the road rights-of-way and shall not constitute any representation or warranty,express or implied,as to the adequacy of the design,construction,repair, or maintenance of the utility facilities, suitability of the Franchise Area for construction, maintenance,or repair of the utility facilities,or any obligation on the part of the County of Mason to insure that work or materials are in compliance with any requirements imposed by a governmental entity. County of Mason is under no obligation or duty to supervise the design, construction, installation, relocation, adjustment, realignment, maintenance, repair, or operation of the utility facilities. J. Force Majeure. Neither Party hereto shall be liable to the other Party for any failure to perform an obligation set forth herein to the extent such failure is caused by war,act of terrorism or an act of God, provided that such Party has made and is making all reasonable efforts to perform such obligation and minimize any and all resulting loss or damage. K. Construction. All pronouns and any variations thereof shall be deemed to refer to the masculine,feminine or neuter,singular or plural,as the identity of the Party or Parties may require. The provisions of this franchise shall be construed as a whole according to their common meaning, except where specifically defined herein,not strictly for or against any party and consistent with the provisions contained herein in order to achieve the objectives and purposes of this franchise. L. Incorporation by Reference. All exhibits annexed hereto at the time of execution of this franchise or in the future as contemplated herein, are hereby incorporated by reference as though fully set forth herein. M. Calculation of Time. All periods of time referred to herein shall include Saturdays, Sundays,and legal holidays in the State of Washington,except that if the last day of any period falls on any Saturday,Sunday,or legal holiday in the State of Washington,the period shall be extended to include the next day which is not a Saturday, Sunday, or legal holiday in the State of Washington. N. Entire Agreement. This franchise is the full and complete agreement of County of Mason and Franchisee with respect to all matters covered herein and all matters related to the use of the Franchise Area by Franchisee and Franchisee's Contractors,and this franchise supersedes any and all other agreements of the Parties hereto with respect to all such matters,including,without limitation, all agreements evidencing the franchise. 18 under applicable law,Franchisee shall have no monetary recourse whatsoever against the County or its officials, boards, commissions, agents, or employees for any loss or damage arising out of the County's exercising its authority pursuant to this Franchise or other applicable law. P. Responsibility for Costs. Except as expressly provided otherwise,any act that Franchisee is required to perform under this franchise shall be performed at its cost. If Franchisee fails to perform work that it is required to perform within the time provided for performance,the County may perform the work and bill the Franchisee. The Franchisee shall pay the amounts billed within 30 days. Q. Work of Contractors and Subcontractors. Work by contractors and subcontractors is subject to the same restrictions, limitations, and conditions as if the work was performed by the Franchisee. The Franchisee shall be responsible for all work performed by its contractors and subcontractors,and others performing work on its behalf,under its control,or under authority of its utility permit,as if the work were performed by it and shall ensure that all such work is performed in compliance with this franchise, Title 12 MCC, the Manual and other applicable law, and shall be jointly and severally liable for all damages and correcting all damage caused by them. It is the Franchisee's responsibility to ensure that contractors, subcontractors,or other Persons performing work on the Franchisee's behalf are familiar with the requirements of the franchise,Title 12 MCC, the Manual, and other applicable laws governing the work performed by them. R. Survival of Terms. Upon the expiration, termination, revocation or forfeiture of the franchise,the Franchisee shall no longer have the right to occupy the franchise area for the purpose of providing services authorized herein. However,the Franchisee's obligations under this franchise to the County shall survive the expiration, termination, revocation or forfeiture of these rights according to its terms for so long as the Franchisee's utility facilities shall remain in whole or in part in the road rights of way. By way of illustration and not limitation, Franchisee's obligations to indemnify, defend and hold harmless the County, provide insurance and a performance/payment bond pursuant to Section XI and Franchisee's obligation to relocate its utility facilities pursuant to Section VIII, shall continue in effect as to the Franchisee, notwithstanding any expiration, termination,revocation or forfeiture of the franchise, except to the extent that a County-approved transfer, sale, or assignment of the utility system is completed,and another entity has assumed full and complete responsibility for the utility system or for the relevant acts or omissions. S. Warranties. By acceptance of this franchise,Franchisee warrants: 1. That Franchisee has full right and authority to enter into and perform this Franchise in accordance with the terms hereof, and by entering into or performing this Franchise, Franchisee is not in violation of its charter or by-laws,or any law,regulation,or agreement by which it is bound or to which it is subject; and 2. That the execution,delivery,and performance of this Franchise by Franchisee has been duly authorized by all requisite Board/Commission action, that the signatories for Franchisee of the acceptance hereof are authorized to sign this Franchise,and that the joinder or consent of any other 19 party, including a court, trustee, or referee, is not necessary to make valid and effective the execution, delivery, and performance of this Franchise and acceptance. DATED at Shelton, Washington this day of 20_. BOARD OF COMMISSIONERS ZAPPOVED: MASON COUNTY, WASHINGTON County Engineer Chair Approve as to form: .... .... ... Vice Chair Chief D.P.A. Commissioner 20 Exhibit A ACCEPTANCE OF FRANCHISE Ordinance No. 115-06, effective November 14, 2006. �P roti I, �.� G��ciJ S A Ll , am theure!' Of Awe- i ,k CP co%. y and am the authorized representative to accept the above-referenced franchise on behalf of I certify that this franchise and all terms and conditions thereof are accepted by lc�r 1 i,ca — le��_,5 without qualification or reservation. DATED this day of , 20 FRANCHISEE Y Its: (f y — Tax Id. No. STATE OF ) ss. COUNTY OF ) I certify that I know or have satisfactory evidence that�OV\ LLE u¢J is the person who appeared before me,and said person acknowledged that he/she signed this instrument,on oath stated that a/she was authorized to execute the instrument and acknowledged it as the tw-Ca S L L pf'i of the V-WAS r Sq&4ejlA to be the free and voluntary act of such party for the uses and purposes mentioned in the instrume . Dated: Q a'. Print Name AOIARY _ My commission expires /oLA <. PU B 'Q, �r '4-0 F WAS A EXHIBIT B Description of Franchise Area Merrimount ------------------ .......... O Hood Canal Canal .,%,Des RECORDED AT THE REQUEST OF AND AFTER RECORDING RETURN TO: County of Mason 100 West Public Works Drive Shelton WA 98584 Attn: County Engineer Title: Merrimount Water System,Inc. Franchise Agreement Grantor: COUNTY OF MASON, a legal subdivision of the state of Washington Grantee: MERRIMOUNT WATER SYSTEM,INC. Description of Franchise Area: SEE EXHIBIT B IN THE MATTER OF THE APPLICATION OF Triton Head Water Association FOR A FRANCHISE PERMIT TO CONSTRUCT, OPERATE, AND MAINTAIN Water System and Appurtenances UTILITY FACILITIES, OVER,ALONG AND UNDER COUNTY ROADS AND HIGHWAYS LOCATED IN MASON COUNTY, WASHINGTON Application of(Name of Operator) Triton Head Water Association, doing business in Washington as Triton Head Water Association, with its principal offices located at 216 Hurricane Ridge Drive, Sequim, WA 98382, by and through (person authorized to act for and on behalf of applicant) Theresa Alca3Lasa, for a franchise to construct, operate and maintain (description of type) water utility facilities in,over,along and under county roads and highways in Mason County,Washington,as set forth in attached Exhibit `B" (Franchise Area), having come on regularly for hearing before the County Commissioners of Mason County, Washington, on the day of , 20 , at the hour of , under the provisions of RCW 36.55, RCW 80.32.010 and RCW 80.36.040, and it appearing to the Board that notice of said hearing has been duly given as required by law, and that it is in the public interest to allow the franchise herein granted; NOW THEREFORE, IT IS ORDERED that a non-exclusive franchise be, and the same is hereby given and granted to Operator, and its successors and assigns,hereinafter referred to as the Franchisee, for a period of 10 years with automatic renewal at the end of each term of 10 years unless either party gives the other written notice of termination at least 30 days prior to the end of the relevant term. (no more than ten years each term and can only be renewed 3 times)from and after the date of the entry of this order for the purposes, at the location(s), and upon the express terms and conditions as described herein. I. DEFINITIONS For the purposes of this franchise,terms,phrases,words,and their derivations not defined herein that are defined in Title 12 of the Mason County Code or the Manual on Accommodating Utilities in the Mason County Right-of-Way published by the County Engineer(the"Manual"),shall have the same meaning or be interpreted as provided in Title 12 of the Mason County Code or the Manual. Words not defined here, in Title 12 of the Mason County Code or the Manual shall have their ordinary meaning. A reference to Title 12 of the Mason County Code or the Manual refers to the same as may be amended,revised,updated, re-enacted or re-codified from time to time. II. GRANT The County of Mason hereby grants to the Franchisee a non-exclusive franchise which, once it becomes effective shall authorize the Franchisee to enter upon the road rights-of-way located 1 within the Franchise Area identified in attached Exhibit`B", for the purpose of installing, constructing,maintaining,repairing, replacing, adjusting, relocating and operating the utility facilities, which grant shall be limited to the following described purpose(s): Water System and Appurtenances. Such grant is subject to and must be exercised in strict accordance with and subject to this franchise, Title 12 of the Mason County Code, the Manual and all applicable laws, rules, regulations and ordinances. Franchisee's exercise of any rights granted pursuant to the franchise is subject to the exercise of the County's police powers,and other regulatory powers as it may have or obtain in the future. No rights shall pass to the franchisee by implication. This franchise does not include permission to enter into or upon the road rights-of-way for any purposes others than the purposes expressly described herein. Permittee has a duty to notify the County of any change in use or condition of the utility facilities that may affect the status of the utility facilities or the impact of the utility facilities upon the road rights-of-way. III. UTILITY PERMIT REQUIRED Franchisee shall not commence or perform work(hereafter"Work")to install,construct,maintain repair, replace adjust, connect, disconnect, rebuild, or relocate its utility facilities within the road rights-of-way,without first applying for,paying all associated fees,and obtaining a utility permit as required pursuant to Title 12 of the Mason County Code. In any utility permit so issued,the County may impose,as a condition of the granting the utility permit,such conditions and regulations as may be necessary for the protection,preservation and management of the road rights-of-way,including, by way of example and not limitation, for the purpose of protecting any structures in the road rights-of-way, maintaining proper distance from other utilities, ensuring the proper restoration of such road rights-of-way and structures, and for the protection of the County and the public and the continuity of pedestrian and vehicular traffic. Franchisee shall first file with the County Engineer its application for a utility permit to do such Work together with plans and specifications in triplicate showing at a minimum: A.The position,depth and location of all such utility facilities sought to be constructed,laid, installed or erected at that time,showing their relative position to existing county roads,rights-of-way or other county property upon plans drawn to scale,hereinafter collectively referred to as the"map of definite location; B. The class and type of material and equipment to be used, manner of excavation, construction,installation,backfill,erection of temporary structures,erection of permanent structures, traffic control,traffic turnouts and road obstructions; C. The manner in which the utility facility is to be installed; D. Measures to be taken to preserve safe and free flow of traffic; 2 E. Structural integrity of the roadway,bridge, or other structure; F. Specifications for the restoration of the county road,right-of-way or other county property in the event that the road right of way will be disturbed by the Work; and G. Provision for ease of future road maintenance and appearance of the roadway. Provision shall be made for known or planned expansion of the utility facilities,particularly those located underground or attached to bridges or other structures within the road right-of-way. The location, alignment and depth of the utility facilities shall conform with said map of definite location,except in instances in which deviation may be allowed thereafter in writing by the County Engineer pursuant to application by Franchisee. All such Work shall be subject to the approval of and shall pass the inspection of the County Engineer.The Franchisee shall pay all costs of and expenses incurred in the examination,inspection and approval of such work on account of granting the said utility permits. IV. RESTORATION OF ROAD RIGHT OF WAY In any Work which disturbs or causes damage to the road rights-of-way subject to this franchise, public or private property, the Franchisee shall at its own expense and with all convenient speed, complete the work to repair and restore the county road right-of-way, or the public or private property so disturbed or damaged, and leave the same in as good or better condition as before the Work was commenced,to the reasonable satisfaction of the County Engineer. The Franchisee shall pay all costs of and expenses incurred in the examination, inspection and approval of such restoration or repair. The County Commissioners and/or County Engineer may at any time do,order or have done any and all work that they consider necessary to restore to a safe condition such County road right-of-way or other County property left by the Franchisee or its agents in a condition dangerous to life or property, and the Franchisee, upon demand, shall pay to the County all costs of such work. V. FRANCHISEE WORK IN RIGHT OF WAY Franchisee expressly agrees and understands that,with regard to Work within the road rights-of-way: A. All of Franchisee's utility facilities and Work within the road rights-of-way or other County property shall be in compliance with the provisions of Title 12 MCC, the Manual, the administrative regulations adopted by the County Engineer,other County established requirements for placement of utility facilities in road rights-of-way, including the specific location of utility facilities in the road rights-of-way, and all applicable laws, rules,regulations and ordinances; B. In preparing plans and specifications for Work of utility facilities in the road rights-of- 3 way the Franchisee shall use the Manual. Prior to commencement of work in the road rights-of-way, Franchisee shall submit such plans and specifications to the Mason County Engineer for review and approval together with adequate exhibits depicting existing or proposed location of the utility facility in relation to the road, including right-of-way or easement lines; relationship to currently planned road revisions,if applicable; and all locations and situations for which deviations in depth of cover (including the proposed method of protection) or other locational standards that are anticipated; C. All Work to utility facilities located within the road rights-of-way or other county property subject to this franchise shall be done in such a manner as not to interfere, other than in ways approved by the County, with the construction, operation and maintenance of other utilities, public or private, drains, drainage ditches and structures, irrigation ditches and structures, located therein,nor with the grading or improvements of such County roads,rights-of-way or other County property; D. The owners and operators of all utility facilities (public or private) installed in the Franchise Area or other county property prior in time to the utility facilities of the Franchisee,shall have preference as to the alignment and location of such utilities so installed with respect to the Franchisee. Such preference shall continue in the event of the necessity of relocating or changing the grade of any such county road or right-of-way; E. Franchisee shall perform the Work and operate its utility facilities in a manner that minimizes interference with the use of the road rights-of-way by others,including others that may be installing utility facilities; and F. The County may require that Franchisee's utility facilities be installed at a particular time, at a specific place,or in a particular manner as a condition of access to a particular road right-of-way; may deny access if a Franchisee is not willing to comply with the County's requirements; and may remove, or require removal of, any utility facility that is not installed in compliance with the requirements established by the County,or which is installed without prior County approval of the time, place, or manner of installation and charge the Franchisee for all the costs associated with removal; and may require Franchisee to cooperate with others to minimize adverse impacts on the road rights-of-way through joint trenching and other arrangements. G. The County may inspect the utility facilities at any time reasonable under the circumstances to ensure compliance with this franchise and applicable law,including to ensure that the utility facilities are constructed and maintained in a safe condition. If an unsafe condition is found to exist,the County,in addition to taking any other action permitted under applicable law,may order the Franchisee, in writing, to make the necessary repairs and alterations specified therein forthwith to correct the unsafe condition on a time-table established by the County which is reasonable in light of the unsafe condition. The County has the right to correct,inspect,administer, and repair the unsafe condition if the Franchisee fails to do so, and to charge the Franchisee therefore. The right of the County to conduct such inspections and order or make repairs shall not be construed to create an obligation therefore,and such obligation to construct and maintain its utility 4 facilities in a safe condition shall at all times remain the sole obligation of the Franchisee. H. When required by the County,Franchisee shall make information available to the public regarding any work involving the ongoing installation,construction,adjustment,relocation,repair or maintenance of its utility facilities sufficient to show (1)the nature of the work being performed; (2)where it is being performed; (3) its estimated completion date; and(4)progress to completion. I. FRANCHISEE IS PLACED ON NOTICE THAT FIBER OPTIC,COMMUNICATIONS, POWER, CONTROL SYSTEMS, OTHER TYPES OF CABLES, AND PIPELINES MAY BE BURIED ON THE RIGHT OF WAY. Before beginning any underground work, Franchisee will contact the appropriate personnel to have such facilities located and make arrangements as to protective measures that must be adhered to prior to the commencement of any work within the Road rights-of-way. In addition to the liability terms elsewhere in this Agreement, Franchisee shall indemnify and hold the County and its elected and appointed officers, employees and agents harmless against and from all cost,liability,and expense whatsoever(including,without limitation, attorney's fees and court costs and expenses)arising out of or in any way contributed to by any act or omission of Franchisee,its contractor,agents and/or employees,that cause or in any way or degree contribute to (1) any damage to or destruction of any such facilities by Franchisee, and/or its contractor, agents and/or employees, on the County's property, (2) any injury to or death of any person employed by or on behalf of any entity,and/or its contractor,agents and/or employees,on the road rights-of-way,and/or(3)any claim or cause of action for alleged loss of profits or revenue,or loss of service, by a customer or user of services or products of such company(ies) (collectively "Liabilities" for purposes of this Section V.I). The only Liabilities with respect to which Franchisee's obligation to indemnify the County and its elected and appointed officers, employees and agents does not apply are Liabilities to the extent arising out of,caused by or resulting from the negligence of the County, and its elected and appointed officers, employees and agents and Liabilities that by law the County and its elected and appointed officers, employees and agents for which the County cannot be indemnified. J. Franchisee shall continuously be a member of the State of Washington one number locator service under RCW 19.122, or an approved equivalent, and shall comply with all such applicable rules and regulations. K. Except in the event of emergency as described below,Franchisee and its Agents may not enter upon the Franchise Area to perform work for which a utility permit is not required,unless and except upon two-business days notice to the County Engineer. L. In the event of an emergency involving the threat of imminent harm to persons or property,and for purposes of taking immediate corrective action,Franchisee and its agents may enter the Franchise Area without advance notice to the County as long as such entry is for the sole purpose of addressing the emergency; provided however, that if any entry for such purposes would require issuance of a utility permit,Franchisee shall give the County verbal or telephonic notice of the places where and the manner in which entry is required prior to such entry,promptly followed by written notice. In all cases,notice to the County shall be given as far in advance as practical prior to entry or as soon as practicable after entry upon the road right-of-Way. 5 M. Franchisee shall promptly reimburse the County for their reasonable and direct costs incurred in responding to an emergency that is caused, created by or attributable to the presence, construction,maintenance,repair,or operation of the Franchisees utility facilities in the road rights- of-way. N. If,during installation,construction,relocation,realignment,adjustment,maintenance,or repair of the Franchisee's utility facilities in the road rights-of-way,Franchisee or its agents discover scientific or historic artifacts,Franchisee shall immediately notify the County of said discovery and shall protect such artifacts in a manner as specified by the County. Any such artifact shall be the property of the County if the County wishes to own it. VI. PROTECTION OF PUBLIC All work done under this franchise shall be done in a thorough and workman-like manner. In the performance of Work within or near the road rights-of-way, including without limitation, the opening of trenches and the tunneling under county roads,rights-of way or other county property,the Franchisee shall leave such trenches, ditches and tunnels in such a way as to interfere as little as possible with public travel and shall take all due and necessary precautions to guard the same,so that damage or injury shall not occur or arise by reason of such Work; and where any of such trenches, ditches and tunnels are left open at night,the Franchisee shall place warning lights,barricades and other appropriate protective devices at such a position as to give adequate warning of such Work. The Franchisee shall be liable for any injury to person or persons or damage to property sustained arising out of its carelessness or neglect,or through any failure or neglect to properly guard or give warning of any trenches, ditches or tunnels dug or maintained by the Franchisee. VII. POLICE POWERS The County of Mason,in granting this franchise,does not waive any rights which it now has or may hereafter acquire with respect to county roads, rights-of-way or other county property and this franchise shall not be construed to deprive the county of any powers, rights or privileges which it now has or may hereafter acquire to regulate the use of and to control the county roads,rights-of-way and other county property covered by this franchise. The County retains the right to administer and regulate activities of the Franchisee up to the fullest extent of the law. The failure to reserve a particular right to regulate,or reference a particular regulation, shall not be interpreted by negative implication or otherwise to prevent the application of a regulation to the Franchisee. VIII. RELOCATION Franchisee shall, in the course of any Work, comply with the following requirements: A. The Franchisee shall, by a time specified by the County, protect, support, temporarily disconnect,relocate,or remove any of its utility facilities when required by the County by reason of traffic conditions;public safety;road right-of-way construction;road right-of-way repair(including 6 resurfacing or widening); change of road right-of-way grade; construction,installation,or repair of County-owned sewers,drains,water pipes,power lines,signal lines,tracks,communications system, other public work, public facility, or improvement of any government-owned utility; road right-of-way vacation;or for any other purpose where the County work involved would be aided by the removal or relocation of the utility facilities. Collectively,such matters are referred to below as the "public work." Franchisee acknowledges and understands that any delay by Franchisee in performing the herein described work may delay, hinder, or interfere with the work performed by the County and its contractors and subcontractors done in furtherance of such Public Work and result in damage to the County,including but not limited to,delay claims. Franchisee shall cooperate with the County and its contractors and subcontractors to coordinate such Franchisee work to accommodate the Public Work project and project schedules to avoid delay, hindrance of, or interference with the Public Work. The County of Mason shall make available to the Franchisee a copy of the Six Year Transportation Program and the County's annual construction program after adoption each year. It is anticipated these programs will aid the utility in planning construction programs. B. Franchisee has a duty to protect its utility facilities from work performed by the County within the road rights-of-way. The rights granted to the Franchisee herein do not preclude the County of Mason, its employees, contractors, subcontractors, and agents from blasting, grading, excavating, or doing other necessary road work contiguous to Franchisee's utility facilities; providing that, the Franchisee shall be given a minimum of forty-eight (48) hours notice of said blasting or other work in order that the Franchisee may protect its utility facilities. C. In the event of an emergency,or where the utility facility creates or is contributing to an imminent danger to health, safety, or property, the County may protect, support, temporarily disconnect,remove,or relocate any or all parts of the utility facility without prior notice,and charge the Franchisee for costs incurred. D. If any Person that is authorized to place facilities in the road right of way requests the Franchisee to protect, support,temporarily disconnect,remove, or relocate the Franchisee's utility facilities to accommodate the construction,operation,or repair of the facilities of such other person, the Franchisee shall,after 30 days'advance written notice,take action to effect the necessary changes requested;provided that,if such project is related to or competes with Franchisee's service,or if the effect of such changes would be to permanently deprive Franchisee of the beneficial enjoyment of this franchise for its intended purposes through interference with the operation of Franchisee's utility facilities or otherwise, Franchisee shall not be required to relocate its utility facilities. Unless the matter is governed by a valid contract or a state or federal law or regulation, or unless the Franchisee's utility facilities were not properly installed, the reasonable cost of the same shall be borne by the Person requesting the protection, support, temporary disconnection, removal, or relocation at no charge to the County, even if the County makes the request for such action. 7 E. The Franchisee shall, on the request of any person holding a valid permit issued by a governmental authority, temporarily raise or lower its wires to permit the moving of buildings or other objects. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same. The County of Mason will accept liability for direct and actual damages to said Franchisee that are the result of the negligence of Mason County, its trustees, officers, employees, contractors, subcontractors or agents while performing County improvement or Public Works projects enumerated in the original franchise agreement under Section VIII,paragraph B. Direct and actual damages are specifically limited to physical damage to properly installed and located infrastructure of the Franchisee and the cost to repair such physical damage. Mason County retains the right to assert all applicable defenses in the event of a dispute including contributory negligence on the part of the Franchisee. Mason County shall in no way be liable for incidental damages claimed to arise from such actions. All Work to be performed by the Franchisee under this section shall pass the inspection of the County Engineer. The Franchisee shall pay all costs of and expenses incurred in the examination, inspection and approval of such work. IX. PRESERVATION OF MONUMENTS/MARKERS Before any work is performed under this franchise which may affect any existing monuments or markers of any nature relating to subdivisions,plats,roads and all other surveys,the Franchisee shall reference all such monuments and markers. The reference points shall be so located that they will not be disturbed during the Franchisee's operations under this franchise. The method of referencing these monuments or other points to be referenced shall be approved by the County Engineer. The replacement of all such monuments or markers disturbed during construction shall be made as expeditiously as conditions permit,and as directed by the County Engineer. The cost of monuments or other markers lost, destroyed, or disturbed, and the expense of replacement by approved monuments shall be borne by the Franchisee. A complete set of reference notes for monument and other ties shall be filed with the office of the Mason County Engineer. X. VACATION OF ROAD RIGHT-OF-WAY If at any time the County shall vacate any County road,right-of-way or other County property which is subject to rights granted by this franchise and said vacation shall be for the purpose of acquiring the fee or other property interest in said road, right-of-way or other county property for the use of Mason County,in either its proprietary or governmental capacity,then the Board of Mason County Commissioners may, at its option, and by giving thirty(30) days written notice to the Franchisee, terminate this franchise with reference to such county road,right-of-way or other county property so vacated, and the County of Mason shall not be liable for any damages or loss to the Franchisee by reason of such termination. It has been the practice of Mason County to reserve easements for 8 utilities at the time of road vacation,and will continue to be the practice until such time the Board of Mason County Commissioners direct a change of practice. XI. FINANCIAL SECURITY A. Insurance Except as otherwise provided herein,Franchisee shall maintain for itself and the County,throughout the entire period any part of Franchisee's utility facilities are located in the Franchise Area, adequate insurance to protect the Parties and their elected and appointed officers, agents, employees against all of County's and Franchisee's liability arising out of Franchisee's use and occupancy of the Franchise Area or any part thereof. This obligation shall require the Franchisee to maintain insurance at least in the following amounts: 1. COMMERCIAL GENERAL LIABILITY insurance to cover liability, bodily injury, and property damage. The Commercial General Liability insurance shall be written on an occurrence basis, with an aggregate limit location endorsement for the Franchise Area, and shall provide coverage for any and all costs, including defense costs, and losses and damages resulting from personal injury, bodily injury and death, property damage, products liability and completed operations. Such insurance shall include blanket contractual coverage, including coverage for the Franchise as now or hereafter amended and specific coverage for the indemnity provisions set forth herein. Coverage must be written with the following limits of liability: Bodily and Personal Injury&Property Damage $ 1,000,000 per Occurrence $ 2,000,000 aggregate 2 WORKERS' COMPENSATION insurance shall be maintained to comply with statutory limits for all employees,and in the case any work is sublet,the Franchisee shall require its contractors and subcontractors similarly to provide workers' compensation insurance for all the employees. The Franchisee shall also maintain, during the life of this policy, employer's liability insurance;provided that this obligation shall not apply to any time period during which Franchisee has no employees. The following minimum limits must be maintained: Workers'Compensation Statutory Employer's Liability $ 1,000,000 each occurrence 3.COMPREHENSIVE AUTO LIABILITY insurance shall include owned,hired,and non-owned vehicles operated by Franchisee employees on an occurrence basis with coverage of at least$2,000,000 per occurrence. If the Franchisee, its contractors,or subcontractors do not have the required insurance,the County may require such entities to stop operations until the insurance is obtained and approved. Certificates of Insurance reflecting evidence of the required insurance and approved by the County's 9 Risk Manager for the GENERAL LIABILITY policies described above,shall be sent to the County's risk manager. The certificate shall be filed with the acceptance of the franchise, and annually thereafter, and as provided below. All coverage shall be listed all on one certificate with the same expiration dates. The certificates shall contain a provision that coverages afforded under these policies will not be canceled until at least 30 days'prior written notice has been given to the County. In the event that the insurance certificate provided indicates that the insurance shall terminate or lapse during the period of the franchise,then,in that event,the Franchisee shall furnish, at least 30 days prior to the expiration of the date of such insurance,a renewed certificate of insurance as proof that equal and like coverage has been or will be obtained prior to any such lapse or termination during the balance of the period of the franchise. The County reserves the right, during the term of the franchise, to require any other insurance coverage or adjust the policy limits as it deems reasonably necessary utilizing sound risk management practices and principals based upon the loss exposures. Each insurance policy required pursuant to this franchise shall be primary and non-contributing as respects any coverage maintained by the County and shall include an endorsement reflecting the same. Any other coverage maintained by County shall be excess of this coverage herein defined as primary and shall not contribute with it. The certificate of insurance must reflect that the above wording is included in all such policies. Each insurance policy obtained pursuant to this franchise shall be issued by financially sound insurers who may lawfully do business in the State of Washington with a financial rating at all times during coverage of no less than rating of"A" and a class of"X" or better in the latest edition of "Best's Key Rating Guide"published by A.M.Best Company,or such other financial rating or rating guide approved in writing by the County's risk manager. In the event that at any time during coverage,the insurer does not meet the foregoing standards,Franchisee shall give prompt notice to the County and shall seek coverage from an insurer that meets the foregoing standards. The County reserves the right to change the rating or the rating guide depending upon the changed risks or availability of other suitable and reliable rating guides. Comprehensive general liability insurance policies and coverage obtained pursuant to this franchise shall include an endorsement(standard ISO form CG 24-17)deleting all exclusions for work or incidents occurring within any distance from a railroad track or railroad property, or on, over, or under a railroad track. Insurance policies required pursuant to this franchise shall have no non-standard exclusions unless approved of by the County Risk Manager or designee. Commercial general liability insurance policies obtained pursuant to this franchise shall name the 10 County as an additional insured without limitation, pursuant to an endorsement approved of by the County's Risk Manager or designee. Franchisee and Franchisee's Contractors' insurers, through policy endorsement, shall waive their rights of subrogation against the County for all claims and suits. The certificate of insurance must reflect this waiver of subrogation rights endorsement. Commercial General Liability Insurance policies and coverage required herein of public utility operators may include a reasonable deductible or self-insured retention;provided,however,that as to any Loss or Damage covered as provided herein, if Franchisee elects to include any deductible or self-insured retention,Franchisee shall itself directly cover,in lieu of insurance,any and all County liabilities that would otherwise in accordance with the provisions of this Franchise be covered by Franchisee's insurance if Franchisee elected not to include a deductible or self-insured retention. Such direct coverage by Franchisee shall be in an amount equal to the amount of Franchisee's actual deductible or self-insured retention. Franchisee shall be required to provide a certification of self- insurance retention to the county in a form and content acceptable to the county engineer. B. Performance/Payment Bond. At the same time Franchisee provides its acceptance of this Franchise, the Franchisee shall, if required by the County Engineer, provide a performance and payment bond to ensure the full and faithful performance of all of its responsibilities under this franchise and applicable rules, regulations and ordinances, including, by way of example, but not limited to,its obligations to relocate and remove its utility facilities,to restore the road rights-of-way and other property when damaged or disturbed, and to reimburse the County for its costs. The amount of the performance and payment bond shall be for ZERO ($0). The amount of the bond,or cash deposit as described below, may be adjusted by the County every five years from the date of execution of this franchise,to take into account cumulative inflation or increased risks to the County. The Franchisee may be required to obtain additional bonds in accordance with the County's ordinary practices. The bond shall be in a form with terms and conditions acceptable to the County and reviewed and approved by the County Engineer. The bond shall be with a surety with a rating no less than "A V in the latest edition of"Bests Key Rating Guide," published by A.M. Best Guide. The Franchisee shall pay all premiums or costs associated with maintaining the bond,and shall keep the same in full force and effect at all times.If Franchisee fails to provide or maintain the bond,then the County,in its sole discretion,may require Franchisee to substitute an equivalent cash deposit as described below in lieu of the bond. Franchisee, may at its election or upon order by the County, substitute an equivalent cash deposit instead of a performance and payment bond. This cash deposit shall ensure the full and faithful performance of all of Franchisee's responsibilities hereto under this Permit and all applicable laws, rules, regulations or ordinances. This includes, but is not limited to, its obligations to relocate or remove its facilities, restore the road rights-of-way and other property to their original condition, reimbursing the County for its costs, and keeping Franchisee's insurance in full force. The County shall notify Franchisee in writing, by certified mail, of any default and shall give 11 Franchisee thirty(30)days from the date of such notice to cure any such default. In the event that the Franchisee fails to cure such default to the satisfaction of the County,the County may,at its option, forfeit the entire amount of the cash deposit or draw upon the cash deposit up to the amount of the County's costs incurred to cure Franchisee's default. Upon the County's cure of Franchisee's default, the County shall notify Franchisee in writing of such cure. In the event that the County draws upon the cash deposit or forfeits the same, Franchisee shall thereupon replenish the cash deposit to the full amount as specified herein or provide a replacement performance and payment bond. Before any Work commences in the road right-of-way,the County Engineer may require the operator to provide a performance and payment bond for each separate project in an amount to be determined by the County Engineer, but not less than five hundred dollars, written by a surety company acceptable to the County Risk Manager and authorized to do business in the state of Washington. The purpose of the bond is to insure completion of construction, including the restoration of surfacing,slopes,slope treatment,topsoil,landscape treatment,and drainage facilities,and cleanup of rights-of-way, and payment of costs incurred by the County to enforce the requirements of this Chapter. The performance and payment bond shall be in place for a period ending not more than one year after the date of completion. A project specific performance bond shall not be required in the event that the franchisee has in place a blanket performance bond and, when required, a payment bond, maintained pursuant to the requirements of this franchise. A performance and payment bond for work in the road right-of-way will not be required of the United States Government or any of its agencies or of any municipal corporation or department of the state of Washington and its local subdivisions. C. Limitation of Liability. To the fullest extent permitted by law,the Franchisee shall,and shall cause its contractor(s) to release, indemnify, defend and hold harmless the county and the county's legal representatives,officer(elected or),appointed)employees and agents(collectively, "indemnitees") for, from and against any and all claims,liabilities, fines,penalties,cost,damages, losses, liens, causes of action, suits, demands, judgments and expenses (including, without limitations, court costs, attorneys' fees and costs of investigation, removal and remediation and governmental oversight costs),Environmental or otherwise(collectively"liabilities")of any nature, kind,or description, of any person or entity,directly or indirectly,arising out of,resulting from,or related to (in whole or in part): 1. this franchise; 2. any rights or interests granted pursuant to this franchise; 3. franchisee's occupation and use of the road right of way; 12 4. franchisee's operation of its utility facilities; 5. the presence of utility facilities within the right of way; 6. the environmental condition and status of the road right-of-way caused by, aggravated by, or contributed to, in whole or in part,by franchisee or its agents; or 7. The acts,errors,or omissions of third parties when arising out of the installation, construction,adjustment,relocation,replacement,removal,or maintenance of such third party utility facilities within the road rights-of-way when such work is performed under authority of the operator's utility permit or at the direction or under the control of the operator; or 8. any act or omission of franchisee or franchisee's agents; The only liabilities with respect to which franchisee's obligation to indemnify the indemnitees do not apply are liabilities to the extent arising out of, caused by or resulting from the negligence of the county, its officers, agents, employees or contractors and liabilities that by law the indemnities cannon be indemnified for. Upon written notice from the county,franchisee agrees to assume the defense of any lawsuit or other proceeding brought against any indemnitee by any entity, relating to any matter covered by this franchise for which franchisee has an obligation to assume liability for and/or save and hold harmless any indemnitee. Franchisee shall pay all cost incident to such defense,including,but not limited to, attorneys' fees,investigators' fees,litigation and appeal expenses,settlement payments and amounts paid in satisfaction of judgments. Franchisee will fully satisfy said judgment within ninety(90)days after said suit or action shall have finally been determined if determined adversely to Mason County. Upon the Franchisee's failure to satisfy said judgment within the ninety (90) day period, this franchise shall at once cease and terminate. Acceptance by the County of any Work performed by the Franchisee at the time of completion shall not be grounds for avoidance of this covenant. XII. FRANCHISE NONEXCLUSIVE This franchise shall not be deemed to be an exclusive franchise. It shall in no manner prohibit the County of Mason from granting other utilities under,along,across,over and upon any of the County roads,rights-of-way or other County property subj ect to this franchise and shall in no way prevent or prohibit the County of Mason from constructing, altering, maintaining or using any of said roads, rights-of-way,drainage structures or facilities,irrigation structures or facilities,or any other county property or affect its jurisdiction over them or any part of them with full power to make all necessary changes,relocations,repairs,maintenance, etc., the same as the county may deem fit. 13 XIII. SUCCESSORS AND ASSIGNS All the provisions,conditions,regulations and requirements herein contained shall be binding upon the successors and assigns of the Franchisee,and all privileges,as well as all obligations and liability of the Franchisee, shall ensure to its successors and assigns equally as if they were specifically mentioned wherever the Franchisee is mentioned. Any reference in this franchise to a specifically named party shall be deemed to apply to any successor, heir, administrator, executor or assign of such party who has acquired its interest in compliance with the terms of this franchise,or under law. XIV. TRANSFER/ASSIGNMENT Franchisee may assign or transfer this franchise after prior written notice to County of Mason and assignee's written commitment,in a form and content approved by the County Prosecutor,delivered to County of Mason, that assignees shall thereafter be responsible for all obligations of Franchisee with respect to the franchise and guaranteeing performance under the terms and conditions of the franchise and that transferee will be bound by all the conditions of the franchise and will assume all the obligations of its predecessor. Such an assignment shall relieve the Franchisee of any further obligations under the franchise, including any obligations not fulfilled by Franchisee's assignee; provided that,the assignment shall not in any respect relieve the Franchisee,or any of its successors in interest,of responsibility for acts or omissions,known or unknown,or the consequences thereof, which acts or omissions occur prior to the time of the assignment. No franchise or master road use permit may be assigned or transferred without filing or establishing with the county the insurance certificates and performance bond as required pursuant to this franchise. XV. ANNEXATION Whenever any of the County roads, rights-of-way or other county property as designated in this franchise,by reason of the subsequent incorporation of any town or city,or extension of the limits of any town or city, shall fall within the city or town limits and shall by operation of law or otherwise terminate in respect to the said roads,rights-of-way or other county property so included with city or town limits; this franchise shall continue in force and effect to all county roads, rights-of-way or other county property not so included in city or town limits. XVI. REVOCATION/REMEDIES A. Revocation. In addition the right to revoke this franchise as set forth in Title 12 of the Mason County Code, if the Franchisee shall willfully violate, or fail to comply with any of the provisions of this franchise through willful or unreasonable neglect or fail to heed or comply with any notice given the Franchisee under the provision of this grant, then Franchisee shall forfeit all rights conferred hereunder and this franchise may be revoked or annulled, after a public hearing by the Board of County Commissioners. The Franchisee shall not be relieved of any of its obligations to comply promptly with any provision of this franchise by reason of any failure of the County to enforce prompt compliance,and the County's failure to enforce shall not constitute a waiver of rights 14 or acquiescence in the Licensee's conduct. Subject to the required consent, adjudication, permission or authorization of a federal or state regulatory agency with jurisdiction over the subject matter, upon revocation of the franchise, the County may require the Franchisee to remove its utility facilities from any road rights-of-way, and restore such road right-of-way to its same or better condition as existed just prior to such removal,or de-commission and abandon such utility facilities in place in whole or in part and in a manner approved by the County Board of Commissioners. If the Franchisee fails to remove utility facilities that the County requires it to remove,the County may perform the work and collect the cost thereof from the Franchisee. The actual cost thereof,including direct and indirect administrative costs,shall be a lien upon all utility facilities of the Franchisee within the franchise Area effective upon filing of the lien with the Mason County Auditor. B. Remedies. The County has the right to exercise any and all of the following remedies, singly or in combination,in the event of Default. "Default"shall mean any failure of Franchisee or its agents to keep,observe,or perform any of Franchisee's or its agent's duties or obligations under this franchise: 1. Damages. Franchisee shall be liable for any and all damages incurred by County. 2. Specific Performance. County shall be entitled to specific performance of each and every obligation of Franchisee under this franchise without any requirement to prove or establish that County does not have an adequate remedy at law. Franchisee hereby waives the requirement of any such proof and acknowledges that County would not have an adequate remedy at law for Franchisee's commission of an Event of Default hereunder. 3. Injunction. County shall be entitled to restrain, by injunction, the actual or threatened commission or attempt of an Event of Default and to obtain a judgment or order specifically prohibiting a violation or breach of this Agreement without, in either case, being required to prove or establish that County does not have an adequate remedy at law. Franchisee hereby waives the requirement of any such proof and acknowledges that County would not have an adequate remedy at law for Franchisee's commission of an Event of Default hereunder. 4. Alternative Remedies. Neither the existence of other remedies identified in this franchise nor the exercise thereof shall be deemed to bar or otherwise limit the right of the County to commence an action for equitable or other relief, and/or proceed against Franchisee and any guarantor for all direct monetary damages, costs and expenses arising from the Default and to recover all such damages, costs and expenses, including reasonable attorneys' fees. Remedies are cumulative; the exercise of one shall not foreclose the exercise of others. XVII. SUBSEQUENT ACTION In the event that after this franchise becomes effective, (a) there is a change in the law which 15 broadens the authority of the County of Mason or the Franchisee with respect to any act permitted or authorized under this franchise; or (b)the County of Mason or the Franchisee believe that amendments to this franchise are necessary or appropriate, then the County of Mason and the Franchisee agree to enter into good faith negotiations to amend this franchise so as to enable the Parties to address, in a manner reasonably acceptable to all Parties, such change or other development which formed the basis for the negotiations. The Parties recognize that the purpose of the negotiations would be to preserve, to the maximum extent consistent with law, the scope and purpose of this franchise. Mason County reserves for itself the right at any time upon ninety(90) days written notice to the Franchisee, to so change, amend, modify or amplify any of the provisions or conditions herein enumerated to conform to any state statute or county regulation,relating to the public welfare,health, safety or highway regulation,as may hereafter be enacted,adopted or promulgated and this franchise may be terminated at such time a public hearing is held by the Board of County Commissioners,and the Franchisee's utility facilities are found not to be operated or maintained in accordance with such statute or regulation. XVIII. ACCEPTANCE Franchisee shall execute and return to the County of Mason a signed acceptance of the franchise granted hereunder. The acceptance shall be in the form of the acceptance attached hereto as Exhibit "A", and in accepting the franchise, Franchisee warrants that it has carefully read the terms and conditions of this franchise and accepts all of the terms and conditions of this franchise and agrees to abide by the same and acknowledges that it has relied upon its own investigation of all relevant facts, that it has had the assistance of counsel, that it was not induced to accept a franchise, that this franchise represents the entire agreement between the Franchisee and the County of Mason. In the event the Franchisee fails to submit the countersigned ordinance and acceptance as provided for herein within the time limits set forth in this section,the grant herein is and shall become null and void. XIX. MISCELLANEOUS PROVISIONS A. Controlling Law/Venue. Any disputes concerning the application or interpretation of any of the provisions of this franchise shall be governed by the laws of the State of Washington. Venue of any action or arbitration brought under this franchise shall be in Mason County,Washington or the Western District of Washington if an action is brought in federal court, provided, however, that venue of such action is legally proper. B. Liens. Franchisee shall promptly pay and discharge any and all liens arising out of any Work done, suffered or permitted to be done by Franchisee on any Franchise Area. C. Waiver. No waiver by either party of any provision of this franchise shall in any way impair the right of such party to enforce that provision for any subsequent breach, or County of 16 Mason's right to enforce all other provisions of this franchise. D. Attorney's Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this franchise, the substantially prevailing Party or Parties shall be entitled to reasonable attorney's fees,costs and necessary disbursements in addition to any other relief to which such Party or Parties may be entitled. E. Amendment. This franchise may be amended only by a written contract signed by authorized representatives of Franchisee and County of Mason. F. Severability. If any provision of this franchise is held to be illegal, invalid or unenforceable under present or future laws,such provision will be fully severable and this franchise will be construed and enforced as if such illegal, invalid or unenforceable provision is not a part hereof,and the remaining provisions hereof will remain in full force and effect. In lieu of any illegal, invalid or unenforceable provision herein, there will be added automatically as a part of this franchise; a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal,valid and enforceable. G. Joint and Several Liability. Franchisee acknowledges that, in any case in which Franchisee and Franchisee's Contractors are responsible under the terms of this franchise, such responsibility is joint and several as between Franchisee and any such Franchisee's Contractors; provided that,the Franchisee is not prohibited from allocating such liability as a matter of contract. H. Notices. Any notice contemplated, required, or permitted to be given under this franchise shall be sufficient if it is in writing and is sent either by: (a)registered or certified mail, return receipt requested;or(b)a nationally recognized overnight mail delivery service,to the Party and at the address specified below,except as such Party and address may be changed by providing notice to the other Party no less than thirty (30) days' advance written notice of such change in address. Franchisee: Triton Head Water Association 216 Hurricane Ridge Drive Sequim. WA 98382 Attn: T. Alcayasa Grantor: County of Mason Public Works 100 Public Works Drive Shelton, WA 98584 I. Approvals. Nothing in this franchise shall be deemed to impose any duty or obligation upon the County of Mason to determine the adequacy or sufficiency of Franchisee's plans and specifications or to ascertain whether Franchisee's proposed or actual construction, testing, 17 maintenance,repairs,replacement,relocation,adjustment or removal is adequate or sufficient or in conformance with the plans and specifications reviewed by the County of Mason. No approval given, inspection made,review or supervision performed by the County of Mason pursuant to this franchise shall constitute or be construed as a representation or warranty express or implied by County of Mason that such item approved, inspected, or supervised, complies with laws, rules regulations or ordinances or this franchise or meets any particular standard,code or requirement,or is in conformance with the plans and specifications,and no liability shall attach with respect thereto. County and inspections as provided herein, are for the sole purpose of protecting the County of Mason's rights as the owner or manager of the road rights-of-way and shall not constitute any representation or warranty,express or implied,as to the adequacy of the design,construction,repair, or maintenance of the utility facilities, suitability of the Franchise Area for construction, maintenance,or repair of the utility facilities,or any obligation on the part of the County of Mason to insure that work or materials are in compliance with any requirements imposed by a governmental entity. County of Mason is under no obligation or duty to supervise the design, construction, installation, relocation, adjustment, realignment, maintenance, repair, or operation of the utility facilities. J. Force Majeure. Neither Party hereto shall be liable to the other Party for any failure to perform an obligation set forth herein to the extent such failure is caused by war,act of terrorism or an act of God, provided that such Party has made and is making all reasonable efforts to perform such obligation and minimize any and all resulting loss or damage. K. Construction. All pronouns and any variations thereof shall be deemed to refer to the masculine,feminine or neuter,singular or plural,as the identity of the Party or Parties may require. The provisions of this franchise shall be construed as a whole according to their common meaning, except where specifically defined herein,not strictly for or against any party and consistent with the provisions contained herein in order to achieve the objectives and purposes of this franchise. L. Incorporation by Reference. All exhibits annexed hereto at the time of execution of this franchise or in the future as contemplated herein, are.hereby incorporated by reference as though fully set forth herein. M. Calculation of Time. All periods of time referred to herein shall include Saturdays, Sundays,and legal holidays in the State of Washington,except that if the last day of any period falls on any Saturday,Sunday,or legal holiday in the State of Washington,the period shall be extended to include the next day which is not a Saturday, Sunday, or legal holiday in the State of Washington. N. Entire Agreement. This franchise is the full and complete agreement of County of Mason and Franchisee with respect to all matters covered herein and all matters related to the use of the Franchise Area by Franchisee and Franchisee's Contractors,and this franchise supersedes any and all other agreements of the Parties hereto with respect to all such matters,including,without limitation, all agreements evidencing the franchise. 18 Exhibit A ACCEPTANCE OF FRANCHISE Ordinance No. 115-06, effective November 14, 2006. I, Theresa Alcayasa, am the Treasurer of Triton Head Nater Association and am the authorized representative to accept the above-referenced franchise on behalf of Triton Head Water Association. I certify that this franchise and all terms and conditions thereof are accepted by -eAscI 1 Lo,op\�4 , without qualification or reservation. DATED thi;3- day of , 20 FRANCHISEE Its: Tax Id. No. STATE OF ) ss. COUNTY OF ) I certify that I know or have satisfactory evidence that �N� � VA AU AJ.&is the person who appeared before me,and said person acknowledged that heos ie signed this instrument,o oath stated that he/ was authorized to execute the instrument and acknowledged it as the :P&Q161 AAZV__' of the J)gACL.,�_- 13kND\j�AC! sb� an fQg , h , to be the free and voluntary act of such party for the uses d purposes mentioned in the instrument. Dated: �j, C Notary b 'c Print Name 0 E e NOELLE K FAZIO My commission expires A,�J• ��1�23 NOTARY PUBLIC#176157 STATE OF WASHINGTON COMMISSION EXPIRES JANUARY 15, 2023 A EXHIBIT B Description of Franchise Area Triton Head Development N ^o Hood Canal B O. No Recourse. Without limiting such immunities as the County or other persons may have under applicable law,Franchisee shall have no monetary recourse whatsoever against the County or its officials, boards, commissions, agents, or employees for any loss or damage arising out of the County's exercising its authority pursuant to this Franchise or other applicable law. P. Responsibility for Costs. Except as expressly provided otherwise,any act that Franchisee is required to perform under this franchise shall be performed at its cost. If Franchisee fails to perform work that it is required to perform within the time provided for performance, the County may perform the work and bill the Franchisee. The Franchisee shall pay the amounts billed within 30 days. Q. Work of Contractors and Subcontractors. Work by contractors and subcontractors is subject to the same restrictions, limitations, and conditions as if the work was performed by the Franchisee. The Franchisee shall be responsible for all work performed by its contractors and subcontractors,and others performing work on its behalf,under its control,or under authority of its utility permit,as if the work were performed by it and shall ensure that all such work is performed in compliance with this franchise, Title 12 MCC, the Manual and other applicable law, and shall be jointly and severally liable for all damages and correcting all damage caused by them. It is the Franchisee's responsibility to ensure that contractors, subcontractors, or other Persons performing work on the Franchisee's behalf are familiar with the requirements of the franchise,Title 12 MCC, the Manual, and other applicable laws governing the work performed by them. R. Survival of Terms. Upon the expiration, termination, revocation or forfeiture of the franchise,the Franchisee shall no longer have the right to occupy the franchise area for the purpose of providing services authorized herein. However,the Franchisee's obligations under this franchise to the County shall survive the expiration, termination, revocation or forfeiture of these rights according to its terms for so long as the Franchisee's utility facilities shall remain in whole or in part in the road rights of way. By way of illustration and not limitation, Franchisee's obligations to indemnify, defend and hold harmless the County, provide insurance and a performance/payment bond pursuant to Section XI and Franchisee's obligation to relocate its utility facilities pursuant to Section VIII, shall continue in effect as to the Franchisee, notwithstanding any expiration, termination, revocation or forfeiture of the franchise, except to the extent that a County-approved transfer, sale, or assignment of the utility system is completed, and another entity has assumed full and complete responsibility for the utility system or for the relevant acts or omissions. S. Warranties. By acceptance of this franchise, Franchisee warrants: 1. That Franchisee has full right and authority to enter into and perform this Franchise in accordance with the terms hereof, and by entering into or performing this Franchise, Franchisee is not in violation of its charter or by-laws,or any law,regulation,or agreement by which it is bound or to which it is subject; and 2. That the execution,delivery,and performance of this Franchise by Franchisee has been duly authorized by all requisite Board/Commission action, that the signatories for Franchisee of the 19 acceptance hereof are authorized to sign this Franchise, and that the joinder or consent of any other party, including a court, trustee, or referee, is not necessary to make valid and effective the execution, delivery, and performance of this Franchise and acceptance. DATED at Shelton, Washington this day of 20_. BOARD OF COMMISSIONERS APPR VED: MASON COUNTY, WASHINGTON County Engineer Chair Approve as to form: Vice Chair Chief D.P.A. Commissioner 20 RECORDED AT THE REQUEST OF AND AFTER RECORDING RETURN TO: County of Mason 100 West Public Works Drive Shelton WA 98584 Attn: County Engineer Title: Triton Head Water Association Franchise Agreement Grantor: COUNTY OF MASON, a legal subdivision of the state of Washington Grantee: TRITON HEAD WATER ASSOCIATION Description of Franchise Area: SEE EXHIBIT B IN THE MATTER OF THE APPLICATION OF Twanoh Tides Community Club FOR A FRANCHISE PERMIT TO CONSTRUCT, OPERATE, AND MAINTAIN Water System UTILITY FACILITIES, OVER,ALONG AND UNDER COUNTY ROADS AND HIGHWAYS LOCATED IN MASON COUNTY, WASHINGTON Application of(Name of Operator) Twanoh Tides Community Club, doing business in Washington as Twanoh Tides Community Club, with its principal offices located at 19495 Vista Hill Drive Hillsboro, OR 97123, by and through(person authorized to act for and on behalf of applicant)Lynn Albin, for a franchise to construct, operate and maintain (description of type) Water System utility facilities in,over,along and under county roads and highways in Mason County,Washington,as set forth in attached Exhibit `B" (Franchise Area), having come on regularly for hearing before the County Commissioners of Mason County, Washington, on the day of , 20_' at the hour of , under the provisions of RCW 36.55, RCW 80.32.010 and RCW 80.36.040, and it appearing to the Board that notice of said hearing has been duly given as required by law, and that it is in the public interest to allow the franchise herein granted; NOW THEREFORE,IT IS ORDERED that a non-exclusive franchise be, and the same is hereby given and granted to Operator, and its successors and assigns,hereinafter referred to as the Franchisee, for a period of 10 years with automatic renewal at the end of each term of 10 years unless either party gives the other written notice of termination at least 30 days prior to the end of the relevant term. (no more than ten years each term and can only be renewed 3 times) from and after the date of the entry of this order for the purposes, at the location(s), and upon the express terms and conditions as described herein. I. DEFINITIONS For the purposes of this franchise,terms,phrases,words,and their derivations not defined herein that are defined in Title 12 of the Mason County Code or the Manual on Accommodating Utilities in the Mason County Right-of-Way published by the County Engineer(the"Manual"),shall have the same meaning or be interpreted as provided in Title 12 of the Mason County Code or the Manual. Words not defined here, in Title 12 of the Mason County Code or the Manual shall have their ordinary meaning. A reference to Title 12 of the Mason County Code or the Manual refers to the same as may be amended, revised, updated,re-enacted or re-codified from time to time. II. GRANT The County of Mason hereby grants to the Franchisee a non-exclusive franchise which, once it becomes effective shall authorize the Franchisee to enter upon the road rights-of-way located 1 within the Franchise Area identified in attached Exhibit`B", for the purpose of installing, constructing,maintaining, repairing,replacing,adjusting,,relocating and operating the utility facilities, which grant shall be limited to the following described purpose(s): Water System Such grant is subject to and must be exercised in strict accordance with and subject to this franchise, Title 12 of the Mason County Code, the Manual and all applicable laws, rules, regulations and ordinances. Franchisee's exercise of any rights granted pursuant to the franchise is subject to the exercise of the County's police powers,and other regulatory powers as it may have or obtain in the future. No rights shall pass to the franchisee by implication. This franchise does not include permission to enter into or upon the road rights-of-way for any purposes others than the purposes expressly described herein. Permittee has a duty to notify the County of any change in use or condition of the utility facilities that may affect the status of the utility facilities or the impact of the utility facilities upon the road rights-of-way. III. UTILITY PERMIT REQUIRED Franchisee shall not commence or perform work(hereafter"Work")to install,construct,maintain repair, replace adjust, connect, disconnect, rebuild, or relocate its utility facilities within the road rights-of-way,without first applying for,paying all associated fees,and obtaining a utility permit as required pursuant to Title 12 of the Mason County Code. In any utility permit so issued,the County may impose,as a condition of the granting the utility permit,such conditions and regulations as may be necessary for the protection,preservation and management of the road rights-of-way,including, by way of example and not limitation, for the purpose of protecting any structures in the road rights-of-way, maintaining proper distance from other utilities, ensuring the proper restoration of such road rights-of-way and structures,and for the protection of the County and the public and the continuity of pedestrian and vehicular traffic. Franchisee shall first file with the County Engineer its application for a utility permit to do such Work together with plans and specifications in triplicate showing at a minimum: A. The position,depth and location of all such utility facilities sought to be constructed,laid, installed or erected at that time,showing their relative position to existing county roads,rights-of-way or other county property upon plans drawn to scale,hereinafter collectively referred to as the"map of definite location; B. The class and type of material and equipment to be used, manner of excavation, construction,installation,backfill,erection of temporary structures,erection of permanent structures, traffic control,traffic turnouts and road obstructions; C. The manner in which the utility facility is to be installed; D. Measures to be taken to preserve safe and free flow of traffic; 2 E. Structural integrity of the roadway, bridge, or other structure; F. Specifications for the restoration of the county road,right-of-way or other county property in the event that the road right of way will be disturbed by the Work; and G. Provision for ease of future road maintenance and appearance of the roadway. Provision shall be made for known or planned expansion of the utility facilities,particularly those located underground or attached to bridges or other structures within the road right-of-way. The location, alignment and depth of the utility facilities shall conform with said map of definite location,except in instances in which deviation may be allowed thereafter in writing by the County Engineer pursuant to application by Franchisee. All such Work shall be subject to the approval of and shall pass the inspection of the County Engineer.The Franchisee shall pay all costs of and expenses incurred in the examination,inspection and approval of such work on account of granting the said utility permits. IV. RESTORATION OF ROAD RIGHT OF WAY In any Work which disturbs or causes damage to the road rights-of-way subject to this franchise, public or private property, the Franchisee shall at its own expense and with all convenient speed, complete the work to repair and restore the county road right-of-way, or the public or private property so disturbed or damaged, and leave the same in as good or better condition as before the Work was commenced,to the reasonable satisfaction of the County Engineer. The Franchisee shall pay all costs of and expenses incurred in the examination, inspection and approval of such restoration or repair. The County Commissioners and/or County Engineer may at any time do,order or have done any and all work that they consider necessary to restore to a safe condition such County road right-of-way or other County property left by the Franchisee or its agents in a condition dangerous to life or property, and the Franchisee, upon demand, shall pay to the County all costs of such work. V. FRANCHISEE WORK IN RIGHT OF WAY Franchisee expressly agrees and understands that,with regard to Work within the road rights-of-way: A. All of Franchisee's utility facilities and Work within the road rights-of-way or other County property shall be in compliance with the provisions of Title 12 MCC, the Manual, the administrative regulations adopted by the County Engineer,other County established requirements for placement of utility facilities in road rights-of-way, including the specific location of utility facilities in the road rights-of-way, and all applicable laws,rules,regulations and ordinances; B. In preparing plans and specifications for Work of utility facilities in the road rights-of- 3 way the Franchisee shall use the Manual. Prior to commencement of work in the road rights-of-way, Franchisee shall submit such plans and specifications to the Mason County Engineer for review and approval together with adequate exhibits depicting existing or proposed location of the utility facility in relation to the road, including right-of-way or easement lines; relationship to currently planned road revisions,if applicable;and all locations and situations for which deviations in depth of cover (including the proposed method of protection) or other locational standards that are anticipated; C. All Work to utility facilities located within the road rights-of-way or other county property subject to this franchise shall be done in such a manner as not to interfere, other than in ways approved by the County, with the construction, operation and maintenance of other utilities, public or private, drains, drainage ditches and structures, irrigation ditches and structures, located therein,nor with the grading or improvements of such County roads,rights-of-way or other County property; D. The owners and operators of all utility facilities (public or private) installed in the Franchise Area or other county property prior in time to the utility facilities of the Franchisee,shall have preference as to the alignment and location of such utilities so installed with respect to the Franchisee. Such preference shall continue in the event of the necessity of relocating or changing the grade of any such county road or right-of-way; E. Franchisee shall perform the Work and operate its utility facilities in a manner that minimizes interference with the use of the road rights-of-way by others,including others that may be installing utility facilities; and F. The County may require that Franchisee's utility facilities be installed at a particular time, at a specific place,or in a particular manner as a condition of access to a particular road right-of-way; may deny access if a Franchisee is not willing to comply with the County's requirements; and may remove, or require removal of, any utility facility that is not installed in compliance with the requirements established by the County,or which is installed without prior County approval of the time, place, or manner of installation and charge the Franchisee for all the costs associated with removal; and may require Franchisee to cooperate with others to minimize adverse impacts on the road rights-of-way through joint trenching and other arrangements. G. The County may inspect the utility facilities at any time reasonable under the circumstances to ensure compliance with this franchise and applicable law,including to ensure that the utility facilities are constructed and maintained in a safe condition. If an unsafe condition is found to exist,the County,in addition to taking any other action permitted under applicable law,may order the Franchisee, in writing, to make the necessary repairs and alterations specified therein forthwith to correct the unsafe condition on a time-table established by the County which is reasonable in light of the unsafe condition. The County has the right to correct,inspect,administer, and repair the unsafe condition if the Franchisee fails to do so, and to charge the Franchisee therefore. The right of the County to conduct such inspections and order or make repairs shall not be construed to create an obligation therefore,and such obligation to construct and maintain its utility 4 facilities in a safe condition shall at all times remain the sole obligation of the Franchisee. H. When required by the County,Franchisee shall make information available to the public regarding any work involving the ongoing installation,construction,adjustment,relocation,repair or maintenance of its utility facilities sufficient to show(1)the nature of the work being performed; (2)where it is being performed; (3)its estimated completion date; and(4)progress to completion. I. FRANCHISEE IS PLACED ON NOTICE THAT FIBER OPTIC,COMMUNICATIONS, POWER, CONTROL SYSTEMS, OTHER TYPES OF CABLES, AND PIPELINES MAY BE BURIED ON THE RIGHT OF WAY. Before beginning any underground work, Franchisee will contact the appropriate personnel to have such facilities located and make arrangements as to protective measures that must be adhered to prior to the commencement of any work within the Road rights-of-way. In addition to the liability terms elsewhere in this Agreement, Franchisee shall indemnify and hold the County and its elected and appointed officers, employees and agents harmless against and from all cost,liability,and expense whatsoever(including,without limitation, attorney's fees and court costs and expenses)arising out of or in any way contributed to by any act or omission of Franchisee, its contractor,agents and/or employees,that cause or in any way or degree contribute to (1) any damage to or destruction of any such facilities by Franchisee, and/or its contractor, agents and/or employees, on the County's property, (2)any injury to or death of any person employed by or on behalf of any entity,and/or its contractor,agents and/or employees,on the road rights-of-way,and/or(3)any claim or cause of action for alleged loss of profits or revenue,or loss of service, by a customer or user of services or products of such company(ies) (collectively "Liabilities" for purposes of this Section V.I). The only Liabilities with respect to which Franchisee's obligation to indemnify the County and its elected and appointed officers,employees and agents does not apply are Liabilities to the extent arising out of,caused by or resulting from the negligence of the County, and its elected and appointed officers, employees and agents and Liabilities that by law the County and its elected and appointed officers,employees and agents for which the County cannot be indemnified. J. Franchisee shall continuously be a member of the State of Washington one number locator service under RCW 19.122, or an approved equivalent, and shall comply with all such applicable rules and regulations. K. Except in the event of emergency as described below,Franchisee and its Agents may not enter upon the Franchise Area to perform work for which a utility permit is not required,unless and except upon two-business days notice to the County Engineer. L. In the event of an emergency involving the threat of imminent harm to persons or property,and for purposes of taking immediate corrective action,Franchisee and its agents may enter the Franchise Area without advance notice to the County as long as such entry is for the sole purpose of addressing the emergency;provided however,that if any entry for such purposes would require issuance of a utility permit,Franchisee shall give the County verbal or telephonic notice of the places where and the manner in which entry is required prior to such entry,promptly followed by written notice. In all cases,notice to the County shall be given as far in advance as practical prior to entry or as soon as practicable after entry upon the road right-of-Way. 5 M. Franchisee shall promptly reimburse the County for their reasonable and direct costs incurred in responding to an emergency that is caused, created by or attributable to the presence, construction,maintenance,repair,or operation of the Franchisees utility facilities in the road rights- of-way. N. If,during installation,construction,relocation,realignment,adjustment,maintenance,or repair of the Franchisee's utility facilities in the road rights-of-way,Franchisee or its agents discover scientific or historic artifacts,Franchisee shall immediately notify the County of said discovery and shall protect such artifacts in a manner as specified by the County. Any such artifact shall be the property of the County if the County wishes to own it. VI. PROTECTION OF PUBLIC All work done under this franchise shall be done in a thorough and workman-like manner. In the performance of Work within or near the road rights-of-way, including without limitation, the opening of trenches and the tunneling under county roads,rights-of way or other county property,the Franchisee shall leave such trenches, ditches and tunnels in such a way as to interfere as little as possible with public travel and shall take all due and necessary precautions to guard the same,so that damage or injury shall not occur or arise by reason of such Work; and where any of such trenches, ditches and tunnels are left open at night,the Franchisee shall place warning lights,barricades and other appropriate protective devices at such a position as to give adequate warning of such Work. The Franchisee shall be liable for any injury to person or persons or damage to property sustained arising out of its carelessness or neglect,or through any failure or neglect to properly guard or give warning of any trenches, ditches or tunnels dug or maintained by the Franchisee. VII. POLICE POWERS The County of Mason,in granting this franchise,does not waive any rights which it now has or may hereafter acquire with respect to county roads, rights-of-way or other county property and this franchise shall not be construed to deprive the county of any powers, rights or privileges which it now has or may hereafter acquire to regulate the use of and to control the county roads,rights-of-way and other county property covered by this franchise. The County retains the right to administer and regulate activities of the Franchisee up to the fullest extent of the law. The failure to reserve a particular right to regulate,or reference a particular regulation,shall not be interpreted by negative implication or otherwise to prevent the application of a regulation to the Franchisee. VIII. RELOCATION Franchisee shall, in the course of any Work, comply with the following requirements: A. The Franchisee shall, by a time specified by the County, protect, support, temporarily disconnect,relocate,or remove any of its utility facilities when required by the County by reason of traffic conditions;public safety;road right-of-way construction;road right-of-way repair(including 6 resurfacing or widening);change of road right-of-way grade;construction,installation,or repair of County-owned sewers,drains,water pipes,power lines,signal lines,tracks,communications system, other public work, public facility, or improvement of any government-owned utility; road right-of-way vacation;or for any other purpose where the County work involved would be aided by the removal or relocation of the utility facilities. Collectively,such matters are referred to below as the "public work." Franchisee acknowledges and understands that any delay by Franchisee in performing the herein described work may delay, hinder, or interfere with the work performed by the County and its contractors and subcontractors done in furtherance of such Public Work and result in damage to the County,including but not limited to,delay claims. Franchisee shall cooperate with the County and its contractors and subcontractors to coordinate such Franchisee work to accommodate the Public Work project and project schedules to avoid delay, hindrance of, or interference with the Public Work. The County of Mason shall make available to the Franchisee a copy of the Six Year Transportation Program and the County's annual construction program after adoption each year. It is anticipated these programs will aid the utility in planning construction programs. B. Franchisee has a duty to protect its utility facilities from work performed by the County within the road rights-of-way. The rights granted to the Franchisee herein do not preclude the County of Mason, its employees, contractors, subcontractors, and agents from blasting, grading, excavating, or doing other necessary road work contiguous to Franchisee's utility facilities; providing that, the Franchisee shall be given a minimum of forty-eight (48) hours notice of said blasting or other work in order that the Franchisee may protect its utility facilities. C. In the event of an emergency,or where the utility facility creates or is contributing to an imminent danger to health, safety, or property, the County may protect, support, temporarily disconnect,remove,or relocate any or all parts of the utility facility without prior notice,and charge the Franchisee for costs incurred. D. If any Person that is authorized to place facilities in the road right of way requests the Franchisee to protect, support,temporarily disconnect,remove,or relocate the Franchisee's utility facilities to accommodate the construction,operation,or repair of the facilities of such other person, the Franchisee shall,after 30 days'advance written notice,take action to effect the necessary changes requested;provided that,if such project is related to or competes with Franchisee's service,or if the effect of such changes would be to permanently deprive Franchisee of the beneficial enjoyment of this franchise for its intended purposes through interference with the operation of Franchisee's utility facilities or otherwise, Franchisee shall not be required to relocate its utility facilities. Unless the matter is governed by a valid contract or a state or federal law or regulation, or unless the Franchisee's utility facilities were not properly installed, the reasonable cost of the same shall be borne by the Person requesting the protection, support, temporary disconnection, removal, or relocation at no charge to the County, even if the County makes the request for such action. 7 E. The Franchisee shall, on the request of any person holding a valid permit issued by a governmental authority, temporarily raise or lower its wires to permit the moving of buildings or other objects. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same. The County of Mason will accept liability for direct and actual damages to said Franchisee that are the result of the negligence of Mason County, its trustees, officers, employees, contractors, subcontractors or agents while performing County improvement or Public Works projects enumerated in the original franchise agreement under Section VIII,paragraph B. Direct and actual damages are specifically limited to physical damage to properly installed and located infrastructure of the Franchisee and the cost to repair such physical damage. Mason County retains the right to assert all applicable defenses in the event of a dispute including contributory negligence on the part of the Franchisee. Mason County shall in no way be liable for incidental damages claimed to arise from such actions. All Work to be performed by the Franchisee under this section shall pass the inspection of the County Engineer. The Franchisee shall pay all costs of and expenses incurred in the examination, inspection and approval of such work. IX. PRESERVATION OF MONUMENTS/MARKERS Before any work is performed under this franchise which may affect any existing monuments or markers of any nature relating to subdivisions,plats,roads and all other surveys,the Franchisee shall reference all such monuments and markers. The reference points shall be so located that they will not be disturbed during the Franchisee's operations under this franchise. The method of referencing these monuments or other points to be referenced shall be approved by the County Engineer. The replacement of all such monuments or markers disturbed during construction shall be made as expeditiously as conditions permit,and as directed by the County Engineer. The cost of monuments or other markers lost, destroyed, or disturbed, and the expense of replacement by approved monuments shall be borne by the Franchisee. A complete set of reference notes for monument and other ties shall be filed with the office of the Mason County Engineer. X. VACATION OF ROAD RIGHT-OF-WAY If at any time the County shall vacate any County road,right-of-way or other County property which is subject to rights granted by this franchise and said vacation shall be for the purpose of acquiring the fee or other property interest in said road, right-of-way or other county property for the use of Mason County,in either its proprietary or governmental capacity,then the Board of Mason County Commissioners may, at its option, and by giving thirty(30) days written notice to the Franchisee, terminate this franchise with reference to such county road,right-of-way or other county property so vacated, and the County of Mason shall not be liable for any damages or loss to the Franchisee by reason of such termination. It has been the practice of Mason County to reserve easements for 8 utilities at the time of road vacation,and will continue to be the practice until such time the Board of Mason County Commissioners direct a change of practice. XI. FINANCIAL SECURITY A. Insurance Except as otherwise provided herein,Franchisee shall maintain for itself and the County,throughout the entire period any part of Franchisee's utility facilities are located in the Franchise Area, adequate insurance to protect the Parties and their elected and appointed officers, agents,employees against all of County's and Franchisee's liability arising out of Franchisee's use and occupancy of the Franchise Area or any part thereof. This obligation shall require the Franchisee to maintain insurance at least in the following amounts: 1. COMMERCIAL GENERAL LIABILITY insurance to cover liability, bodily injury, and property damage. The Commercial General Liability insurance shall be written on an occurrence basis, with an aggregate limit location endorsement for the Franchise Area, and shall provide coverage for any and all costs, including defense costs, and losses and damages resulting from personal injury, bodily injury and death, property damage, products liability and completed operations. Such insurance shall include blanket contractual coverage, including coverage for the Franchise as now or hereafter amended and specific coverage for the indemnity provisions set forth herein. Coverage must be written with the following limits of liability: Bodily and Personal Injury&Property Damage $ 1,000,000 per Occurrence $ 2,000,000 aggregate 2 WORKERS' COMPENSATION insurance shall be maintained to comply with statutory limits for all employees,and in the case any work is sublet,the Franchisee shall require its contractors and subcontractors similarly to provide workers' compensation insurance for all the employees. The Franchisee shall also maintain, during the life of this policy, employer's liability insurance;provided that this obligation shall not apply to any time period during which Franchisee has no employees. The following minimum limits must be maintained: Workers' Compensation Statutory Employer's Liability $ 1,000,000 each occurrence 3.COMPREHENSIVE AUTO LIABILITY insurance shall include owned,hired,and non-owned vehicles operated by Franchisee employees on an occurrence basis with coverage of at least$2,000,000 per occurrence. If the Franchisee, its contractors, or subcontractors do not have the required insurance,the County may require such entities to stop operations until the insurance is obtained and approved. Certificates of Insurance reflecting evidence of the required insurance and approved by the County's 9 Risk Manager for the GENERAL LIABILITY policies described above,shall be sent to the County's risk manager. The certificate shall be filed with the acceptance of the franchise, and annually thereafter, and as provided below. All coverage shall be listed all on one certificate with the same expiration dates. The certificates shall contain a provision that coverages afforded under these policies will not be canceled until at least 30 days'prior written notice has been given to the County. In the event that the insurance certificate provided indicates that the insurance shall terminate or lapse during the period of the franchise,then, in that event,the Franchisee shall furnish,at least 30 days prior to the expiration of the date of such insurance,a renewed certificate of insurance as proof that equal and like coverage has been or will be obtained prior to any such lapse or termination during the balance of the period of the franchise. The County reserves the right, during the term of the franchise, to require any other insurance coverage or adjust the policy limits as it deems reasonably necessary utilizing sound risk management practices and principals based upon the loss exposures. Each insurance policy required pursuant to this franchise shall be primary and non-contributing as respects any coverage maintained by the County and shall include an endorsement reflecting the same. Any other coverage maintained by County shall be excess of this coverage herein defined as primary and shall not contribute with it. The certificate of insurance must reflect that the above wording is included in all such policies. Each insurance policy obtained pursuant to this franchise shall be issued by financially sound insurers who may lawfully do business in the State of Washington with a financial rating at all times during coverage of no less than rating of"A" and a class of"X" or better in the latest edition of "Best's Key Rating Guide"published by A.M.Best Company,or such other financial rating or rating guide approved in writing by the County's risk manager. In the event that at any time during coverage,the insurer does not meet the foregoing standards,Franchisee shall give prompt notice to the County and shall seek coverage from an insurer that meets the foregoing standards. The County reserves the right to change the rating or the rating guide depending upon the changed risks or availability of other suitable and reliable rating guides. Comprehensive general liability insurance policies and coverage obtained pursuant to this franchise shall include an endorsement(standard ISO form CG 24-17)deleting all exclusions for work or incidents occurring within any distance from a railroad track or railroad property, or on, over, or under a railroad track. Insurance policies required pursuant to this franchise shall have no non-standard exclusions unless approved of by the County Risk Manager or designee. Commercial general liability insurance policies obtained pursuant to this franchise shall name the 10 County as an additional insured without limitation,pursuant to an endorsement approved of by the County's Risk Manager or designee. Franchisee and Franchisee's Contractors' insurers, through policy endorsement, shall waive their rights of subrogation against the County for all claims and suits. The certificate of insurance must reflect this waiver of subrogation rights endorsement. Commercial General Liability Insurance policies and coverage required herein of public utility operators may include a reasonable deductible or self-insured retention;provided,however,that as to any Loss or Damage covered as provided herein, if Franchisee elects to include any deductible or self-insured retention,Franchisee shall itself directly cover,in lieu of insurance,any and all County liabilities that would otherwise in accordance with the provisions of this Franchise be covered by Franchisee's insurance if Franchisee elected not to include a deductible or self-insured retention. Such direct coverage by Franchisee shall be in an amount equal to the amount of Franchisee's actual deductible or self-insured retention. Franchisee shall be required to provide a certification of self- insurance retention to the county in a form and content acceptable to the county engineer. B. Performance/Payment Bond. At the same time Franchisee provides its acceptance of this Franchise, the Franchisee shall, if required by the County Engineer, provide a performance and payment bond to ensure the full and faithful performance of all of its responsibilities under this franchise and applicable rules, regulations and ordinances, including, by way of example, but not limited to,its obligations to relocate and remove its utility facilities,to restore the road rights-of-way and other property when damaged or disturbed, and to reimburse the County for its costs. The amount of the performance and payment bond shall be for ZERO ($0). The amount of the bond,or cash deposit as described below, may be adjusted by the County every five years from the date of execution of this franchise,to take into account cumulative inflation or increased risks to the County. The Franchisee may be required to obtain additional bonds in accordance with the County's ordinary practices. The bond shall be in a form with terms and conditions acceptable to the County and reviewed and approved by the County Engineer. The bond shall be with a surety with a rating no less than "A V in the latest edition of"Bests Key Rating Guide," published by A.M. Best Guide. The Franchisee shall pay all premiums or costs associated with maintaining the bond,and shall keep the same in full force and effect at all times.If Franchisee fails to provide or maintain the bond,then the County,in its sole discretion,may require Franchisee to substitute an equivalent cash deposit as described below in lieu of the bond. Franchisee, may at its election or upon order by the County, substitute an equivalent cash deposit instead of a performance and payment bond. This cash deposit shall ensure the full and faithful performance of all of Franchisee's responsibilities hereto under this Permit and all applicable laws, rules, regulations or ordinances. This includes, but is not limited to, its obligations to relocate or remove its facilities, restore the road rights-of-way and other property to their original condition, reimbursing the County for its costs, and keeping Franchisee's insurance in full force. The County shall notify Franchisee in writing, by certified mail, of any default and shall give 11 Franchisee thirty(30)days from the date of such notice to cure any such default. In the event that the Franchisee fails to cure such default to the satisfaction of the County,the County may,at its option, forfeit the entire amount of the cash deposit or draw upon the cash deposit up to the amount of the County's costs incurred to cure Franchisee's default. Upon the County's cure of Franchisee's default,the County shall notify Franchisee in writing of such cure. In the event that the County draws upon the cash deposit or forfeits the same, Franchisee shall thereupon replenish the cash deposit to the full amount as specified herein or provide a replacement performance and payment bond. Before any Work commences in the road right-of-way,the County Engineer may require the operator to provide a performance and payment bond for each separate project in an amount to be determined by the County Engineer, but not less than five hundred dollars, written by a surety company acceptable to the County Risk Manager and authorized to do business in the state of Washington. The purpose of the bond is to insure completion of construction, including the restoration of surfacing,slopes,slope treatment,topsoil,landscape treatment,and drainage facilities,and cleanup of rights-of-way, and payment of costs incurred by the County to enforce the requirements of this Chapter. The performance and payment bond shall be in place for a period ending not more than one year after the date of completion. A project specific performance bond shall not be required in the event that the franchisee has in place a blanket performance bond and, when required, a payment bond, maintained pursuant to the requirements of this franchise. A performance and payment bond for work in the road right-of-way will not be required of the United States Government or any of its agencies or of any municipal corporation or department of the state of Washington and its local subdivisions. C. Limitation of Liability. To the fullest extent permitted by law,the Franchisee shall,and shall cause its contractor(s) to release, indemnify, defend and hold harmless the county and the county's legal representatives,officer(elected or),appointed)employees and agents(collectively, "indemnitees")for,from and against any and all claims, liabilities,fines,penalties,cost,damages, losses, liens, causes of action, suits, demands, judgments and expenses (including, without limitations, court costs, attorneys' fees and costs of investigation, removal and remediation and governmental oversight costs),Environmental or otherwise(collectively"liabilities")of any nature, kind,or description,of any person or entity,directly or indirectly,arising out of,resulting from,or related to (in whole or in part): 1. this franchise; 2. any rights or interests granted pursuant to this franchise; 3. franchisee's occupation and use of the road right of way; 12 4. franchisee's operation of its utility facilities; 5. the presence of utility facilities within the right of way; 6. the environmental condition and status of the road right-of-way caused by, aggravated by, or contributed to, in whole or in part, by franchisee or its agents; or 7. The acts,errors,or omissions of third parties when arising out of the installation, construction,adjustment,relocation,replacement,removal,or maintenance of such third party utility facilities within the road rights-of-way when such work is performed under authority of the operator's utility permit or at the direction or under the control of the operator; or 8. any act or omission of franchisee or franchisee's agents; The only liabilities with respect to which franchisee's obligation to indemnify the indemnitees do not apply are liabilities to the extent arising out of, caused by or resulting from the negligence of the county, its officers, agents, employees or contractors and liabilities that by law the indemnities cannon be indemnified for. Upon written notice from the county,franchisee agrees to assume the defense of any lawsuit or other proceeding brought against any indemnitee by any entity, relating to any matter covered by this franchise for which franchisee has an obligation to assume liability for and/or save and hold harmless any indemnitee.Franchisee shall pay all cost incident to such defense,including,but not limited to, attorneys'fees,investigators' fees,litigation and appeal expenses,settlement payments and amounts paid in satisfaction of judgments. Franchisee will fully satisfy said judgment within ninety(90)days after said suit or action shall have finally been determined if determined adversely to Mason County. Upon the Franchisee's failure to satisfy said judgment within the ninety (90) day period, this franchise shall at once cease and terminate. Acceptance by the County of any Work performed by the Franchisee at the time of completion shall not be grounds for avoidance of this covenant. XII. FRANCHISE NONEXCLUSIVE This franchise shall not be deemed to be an exclusive franchise. It shall in no manner prohibit the County of Mason from granting other utilities under,along,across,over and upon any of the County roads,rights-of-way or other County property subject to this franchise and shall in no way prevent or prohibit the County of Mason from constructing, altering, maintaining or using any of said roads, rights-of-way,drainage structures or facilities,irrigation structures or facilities,or any other county property or affect its jurisdiction over them or any part of them with full power to make all necessary changes,relocations,repairs,maintenance, etc.,the same as the county may deem fit. 13 XIII. SUCCESSORS AND ASSIGNS All the provisions,conditions,regulations and requirements herein contained shall be binding upon the successors and assigns of the Franchisee,and all privileges,as well as all obligations and liability of the Franchisee, shall ensure to its successors and assigns equally as if they were specifically mentioned wherever the Franchisee is mentioned. Any reference in this franchise to a specifically named party shall be deemed to apply to any successor, heir, administrator, executor or assign of such party who has acquired its interest in compliance with the terms of this franchise,or under law. XIV. TRANSFER/ASSIGNMENT Franchisee may assign or transfer this franchise after prior written notice to County of Mason and assignee's written commitment,in a form and content approved by the County Prosecutor,delivered to County of Mason,that assignees shall thereafter be responsible for all obligations of Franchisee with respect to the franchise and guaranteeing performance under the terms and conditions of the franchise and that transferee will be bound by all the conditions of the franchise and will assume all the obligations of its predecessor. Such an assignment shall relieve the Franchisee of any further obligations under the franchise, including any obligations not fulfilled by Franchisee's assignee; provided that,the assignment shall not in any respect relieve the Franchisee,or any of its successors in interest,of responsibility for acts or omissions,known or unknown,or the consequences thereof, which acts or omissions occur prior to the time of the assignment. No franchise or master road use permit may be assigned or transferred without filing or establishing with the county the insurance certificates and performance bond as required pursuant to this franchise. XV. ANNEXATION Whenever any of the County roads, rights-of-way or other county property as designated in this franchise,by reason of the subsequent incorporation of any town or city,or extension of the limits of any town or city, shall fall within the city or town limits and shall by operation of law or otherwise terminate in respect to the said roads,rights-of-way or other county property so included with city or town limits; this franchise shall continue in force and effect to all county roads, rights-of-way or other county property not so included in city or town limits. XVI. REVOCATION/REMEDIES A. Revocation. In addition the right to revoke this franchise as set forth in Title 12 of the Mason County Code, if the Franchisee shall willfully violate, or fail to comply with any of the provisions of this franchise through willful or unreasonable neglect or fail to heed or comply with any notice given the Franchisee under the provision of this grant, then Franchisee shall forfeit all rights conferred hereunder and this franchise may be revoked or annulled,after a public hearing by the Board of County Commissioners. The Franchisee shall not be relieved of any of its obligations to comply promptly with any provision of this franchise by reason of any failure of the County to enforce prompt compliance,and the County's failure to enforce shall not constitute a waiver of rights 14 or acquiescence in the Licensee's conduct. Subject to the required consent, adjudication, permission or authorization of a federal or state regulatory agency with jurisdiction over the subject matter, upon revocation of the franchise, the County may require the Franchisee to remove its utility facilities from any road rights-of-way,and restore such road right-of-way to its same or better condition as existed just prior to such removal,or de-commission and abandon such utility facilities in place in whole or in part and in a manner approved by the County Board of Commissioners. If the Franchisee fails to remove utility facilities that the County requires it to remove,the County may perform the work and collect the cost thereof from the Franchisee. The actual cost thereof,including direct and indirect administrative costs,shall be a lien upon all utility facilities of the Franchisee within the franchise Area effective upon filing of the lien with the Mason County Auditor. B. Remedies. The County has the right to exercise any and all of the following remedies, singly or in combination,in the event of Default. "Default"shall mean any failure of Franchisee or its agents to keep,observe,or perform any of Franchisee's or its agent's duties or obligations under this franchise: 1. Damages. Franchisee shall be liable for any and all damages incurred by County. 2. Specific Performance. County shall be entitled to specific performance of each and every obligation of Franchisee under this franchise without any requirement to prove or establish that County does not have an adequate remedy at law. Franchisee hereby waives the requirement of any such proof and acknowledges that County would not have an adequate remedy at law for Franchisee's commission of an Event of Default hereunder. 3. Injunction. County shall be entitled to restrain, by injunction, the actual or threatened commission or attempt of an Event of Default and to obtain a judgment or order specifically prohibiting a violation or breach of this Agreement without, in either case, being required to prove or establish that County does not have an adequate remedy at law. Franchisee hereby waives the requirement of any such proof and acknowledges that County would not have an adequate remedy at law for Franchisee's commission of an Event of Default hereunder. 4. Alternative Remedies. Neither the existence of other remedies identified in this franchise nor the exercise thereof shall be deemed to bar or otherwise limit the right of the County to commence an action for equitable or other relief, and/or proceed against Franchisee and any guarantor for all direct monetary damages, costs and expenses arising from the Default and to recover all such damages, costs and expenses, including reasonable attorneys' fees. Remedies are cumulative; the exercise of one shall not foreclose the exercise of others. XVII. SUBSEQUENT ACTION In the event that after this franchise becomes effective, (a) there is a change in the law which 15 broadens the authority of the County of Mason or the Franchisee with respect to any act permitted or authorized under this franchise; or (b)the County of Mason or the Franchisee believe that amendments to this franchise are necessary or appropriate, then the County of Mason and the Franchisee agree to enter into good faith negotiations to amend this franchise so as to enable the Parties to address, in a manner reasonably acceptable to all Parties, such change or other development which formed the basis for the negotiations. The Parties recognize that the purpose of the negotiations would be to preserve, to the maximum extent consistent with law, the scope and purpose of this franchise. Mason County reserves for itself the right at any time upon ninety (90) days written notice to the Franchisee, to so change, amend, modify or amplify any of the provisions or conditions herein enumerated to conform to any state statute or county regulation,relating to the public welfare,health, safety or highway regulation,as may hereafter be enacted,adopted or promulgated and this franchise may be terminated at such time a public hearing is held by the Board of County Commissioners,and the Franchisee's utility facilities are found not to be operated or maintained in accordance with such statute or regulation. XVIII. ACCEPTANCE Franchisee shall execute and return to the County of Mason a signed acceptance of the franchise granted hereunder. The acceptance shall be in the form of the acceptance attached hereto as Exhibit "A", and in accepting the franchise, Franchisee warrants that it has carefully read the terms and conditions of this franchise and accepts all of the terms and conditions of this franchise and agrees to abide by the same and acknowledges that it has relied upon its own investigation of all relevant facts, that it has had the assistance of counsel, that it was not induced to accept a franchise, that this franchise represents the entire agreement between the Franchisee and the County of Mason. In the event the Franchisee fails to submit the countersigned ordinance and acceptance as provided for herein within the time limits set forth in this section,the grant herein is and shall become null and void. XIX. MISCELLANEOUS PROVISIONS A. Controlling Law/Venue. Any disputes concerning the application or interpretation of any of the provisions of this franchise shall be governed by the laws of the State of Washington. Venue of any action or arbitration brought under this franchise shall be in Mason County,Washington or the Western District of Washington if an action is brought in federal court, provided, however, that venue of such action is legally proper. B. Liens. Franchisee shall promptly pay and discharge any and all liens arising out of any Work done, suffered or permitted to be done by Franchisee on any Franchise Area. C. Waiver. No waiver by either party of any provision of this franchise shall in any way impair the right of such party to enforce that provision for any subsequent breach, or County of 16 Mason's right to enforce all other provisions of this franchise. D. Attorney's Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this franchise, the substantially prevailing Party or Parties shall be entitled to reasonable attorney's fees,costs and necessary disbursements in addition to any other relief to which such Party or Parties may be entitled. E. Amendment. This franchise may be amended only by a written contract signed by authorized representatives of Franchisee and County of Mason. F. Severability. If any provision of this franchise is held to be illegal, invalid or unenforceable under present or future laws,such provision will be fully severable and this franchise will be construed and enforced as if such illegal, invalid or unenforceable provision is not a part hereof,and the remaining provisions hereof will remain in full force and effect. In lieu of any illegal, invalid or unenforceable provision herein, there will be added automatically as a part of this franchise; a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal,valid and enforceable. G. Joint and Several Liability. Franchisee acknowledges that, in any case in which Franchisee and Franchisee's Contractors are responsible under the terms of this franchise, such responsibility is joint and several as between Franchisee and any such Franchisee's Contractors; provided that,the Franchisee is not prohibited from allocating such liability as a matter of contract. H. Notices. Any notice contemplated, required, or permitted to be given under this franchise shall be sufficient if it is in writing and is sent either by: (a)registered or certified mail, return receipt requested;or(b)a nationally recognized overnight mail delivery service,to the Party and at the address specified below,except as such Party and address may be changed by providing notice to the other Party no less than thirty (30) days' advance written notice of such change in address. Franchisee: Twanoh Tides Community Club 19495 Vista Hill Drive Hillsboro, OR 97123 Attn: Lynn Albin Grantor: County of Mason Public Works 100 Public Works Drive Shelton, WA 98584 I. Approvals. Nothing in this franchise shall be deemed to impose any duty or obligation upon the County of Mason to determine the adequacy or sufficiency of Franchisee's plans and specifications or to ascertain whether Franchisee's proposed or actual construction, testing, 17 maintenance,repairs,replacement,relocation,adjustment or removal is adequate or sufficient or in conformance with the plans and specifications reviewed by the County of Mason. No approval given, inspection made,review or supervision performed by the County of Mason pursuant to this franchise shall constitute or be construed as a representation or warranty express or implied by County of Mason that such item approved, inspected, or supervised, complies with laws, rules regulations or ordinances or this franchise or meets any particular standard,code or requirement,or is in conformance with the plans and specifications,and no liability shall attach with respect thereto. County and inspections as provided herein, are for the sole purpose of protecting the County of Mason's rights as the owner or manager of the road rights-of-way and shall not constitute any representation or warranty,express or implied,as to the adequacy of the design,construction,repair, or maintenance of the utility facilities, suitability of the Franchise Area for construction, maintenance,or repair of the utility facilities,or any obligation on the part of the County of Mason to insure that work or materials are in compliance with any requirements imposed by a governmental entity. County of Mason is under no obligation or duty to supervise the design, construction, installation, relocation, adjustment, realignment, maintenance, repair, or operation of the utility facilities. J. Force Majeure. Neither Party hereto shall be liable to the other Party for any failure to perform an obligation set forth herein to the extent such failure is caused by war,act of terrorism or an act of God, provided that such Party has made and is making all reasonable efforts to perform such obligation and minimize any and all resulting loss or damage. K. Construction. All pronouns and any variations thereof shall be deemed to refer to the masculine,feminine or neuter,singular or plural,as the identity of the Party or Parties may require. The provisions of this franchise shall be construed as a whole according to their common meaning, except where specifically defined herein,not strictly for or against any party and consistent with the provisions contained herein in order to achieve the objectives and purposes of this franchise. L. Incorporation by Reference. All exhibits annexed hereto at the time of execution of this franchise or in the future as contemplated herein, are hereby incorporated by reference as though fully set forth herein. M. Calculation of Time. All periods of time referred to herein shall include Saturdays, Sundays,and legal holidays in the State of Washington,except that if the last day of any period falls on any Saturday,Sunday,or legal holiday in the State of Washington,the period shall be extended to include the next day which is not a Saturday, Sunday,or legal holiday in the State of Washington. N. Entire Agreement. This franchise is the full and complete agreement of County of Mason and Franchisee with respect to all matters covered herein and all matters related to the use of the Franchise Area by Franchisee and Franchisee's Contractors,and this franchise supersedes any and all other agreements of the Parties hereto with respect to all such matters,including,without limitation, all agreements evidencing the franchise. 18 O. No Recourse. Without limiting such immunities as the County or other persons may have under applicable law,Franchisee shall have no monetary recourse whatsoever against the County or its officials, boards, commissions, agents, or employees for any loss or damage arising out of the County's exercising its authority pursuant to this Franchise or other applicable law. P. Responsibility for Costs. Except as expressly provided otherwise,any act that Franchisee is required to perform under this franchise shall be performed at its cost. If Franchisee fails to perform work that it is required to perform within the time provided for performance, the County may perform the work and bill the Franchisee. The Franchisee shall pay the amounts billed within 30 days. Q. Work of Contractors and Subcontractors. Work by contractors and subcontractors is subject to the same restrictions, limitations, and conditions as if the work was performed by the Franchisee. The Franchisee shall be responsible for all work performed by its contractors and subcontractors,and others performing work on its behalf,under its control,or under authority of its utility permit,as if the work were performed by it and shall ensure that all such work is performed in compliance with this franchise, Title 12 MCC, the Manual and other applicable law, and shall be jointly and severally liable for all damages and correcting all damage caused by them. It is the Franchisee's responsibility to ensure that contractors, subcontractors, or other Persons performing work on the Franchisee's behalf are familiar with the requirements of the franchise,Title 12 MCC, the Manual, and other applicable laws governing the work performed by them. R. Survival of Terms. Upon the expiration, termination, revocation or forfeiture of the franchise,the Franchisee shall no longer have the right to occupy the franchise area for the purpose of providing services authorized herein. However,the Franchisee's obligations under this franchise to the County shall survive the expiration, termination, revocation or forfeiture of these rights according to its terms for so long as the Franchisee's utility facilities shall remain in whole or in part in the road rights of way. By way of illustration and not limitation, Franchisee's obligations to indemnify, defend and hold harmless the County, provide insurance and a performance/payment bond pursuant to Section XI and Franchisee's obligation to relocate its utility facilities pursuant to Section VIII, shall continue in effect as to the Franchisee, notwithstanding any expiration, termination, revocation or forfeiture of the franchise, except to the extent that a County-approved transfer, sale,or assignment of the utility system is completed,and another entity has assumed full and complete responsibility for the utility system or for the relevant acts or omissions. S. Warranties. By acceptance of this franchise, Franchisee warrants: 1. That Franchisee has full right and authority to enter into and perform this Franchise in accordance with the terms hereof, and by entering into or performing this Franchise, Franchisee is not in violation of its charter or by-laws,or any law,regulation,or agreement by which it is bound or to which it is subject; and 2. That the execution,delivery,and performance of this Franchise by Franchisee has been duly authorized by all requisite Board/Commission action, that the signatories for Franchisee of the 19 acceptance hereof are authorized to sign this Franchise,and that the joinder or consent of any other party, including a court, trustee, or referee, is not necessary to make valid and effective the execution, delivery, and performance of this Franchise and acceptance. DATED at Shelton, Washington this day of 20_. BOARD OF COMMISSIONERS APPROVED: MASON COUNTY, WASHINGTON County Engineer Chair Approve as to form: Vice Chair Chief D.P.A. Commissioner 20 Exhibit A ACCEPTANCE OF FRANCHISE Ordinance No. 115-06, effective November 14, 2006. 1, Caval CN m,.Me,_hWt�11�i k am the {'�-ec i Je+J- of 7ynoL'_ Ca"'.VW M-u and am the authorized representative to accept the above-referenced franchise on behalf of I cert that this franchise and all terms and conditions thereof are accepted by Ck��l LH^_^Me--I�Xj A-t.biv- %u-Q---UI+ / �l �....,,,�..,• A, without qualification or reservation. � lk i3 DATED this day of I`-I •r�vrti � , 20 i �. FRANCHISEE By: Its: Tax Id. No. 1'l,,V 02 STATE OF ) ' ,1 - )ss. COUNTY OF W N -q* I certify that I know or have satisfactory evidence that (,_- 10 Me' is the person who appeared before me,and said person acknowledged that he/sht signed this in4ument,on oath stated that he/she was authorized to execute the instrument and acknowledged it as the 4e–11-kof ther-"Ja v%,01—T l- '3 L`yvWv...j vv�•-� to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. C l� Dated: t Notary Public / Print Name f\-N-4 \ OFFICIAL STAMP y commission expires `r' o ANDRIA KREIMEIER NOTARY PUBLIC•OREGON COMMISSION NO.98M MY COMMISSION EXPIRES:JUNE 26,2023 A EXHIBIT B Description of Franchise Area Twanoh Tides Development " Hood Canal O B RECORDED AT THE REQUEST OF AND AFTER RECORDING RETURN TO: County of Mason 100 West Public Works Drive Shelton WA 98584 Attn: County Engineer Title: Twanoh Tides Community Club Franchise Agreement Grantor: COUNTY OF MASON, a legal subdivision of the state of Washington Grantee: TWANOH TIDES COMMUNITY CLUB Description of Franchise Area: SEE EXHIBIT B