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2020/07/14 - Regular Packet
July 14.1 Pursuant to Proclamation by the Governor 20-28.7, in-person attendance to Commission meetings is temporarily prohibited. Our Commission meetings are live streamed at http://masonwebtv.com/ and we will accept public comment via email dlz@co.mason.wa.us; or mail to Commissioners Office, 411 North 5th Street, Shelton, WA 98584; or call 360-427-9670 ext. 419. If you need to listen to the Commission meeting via your telephone, please provide your telephone number to the Commissioners' office no later than 4 p.m. the Friday before the meeting. BOARD OF MASON COUNTY COMMISSIONERS DRAFT MEETING AGENDA Commission Chambers— 9:00 a.m. 411 North Fifth Street, Shelton WA 98584 July 14, 2020 1. Call to Order 2. Pledge of Allegiance 3. Roll Call 4. Correspondence and Organizational Business 4.1 Correspondence 4.2 News Release— Hours of Operation at Solid Waste Facilities 5. Open Forum for Citizen Input In response to the COVID-19 outbreak we are suspending Citizen Input at this time. We will accept public comment via email —dlz@co.mason.wa.us ; or mail to Commissioners Office, 411 North 5th Street, Shelton, WA 98584; or call 360-427-9670 ext. 419. We will revisit this suspension on a weekly basis. 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— July 6, 2020 Briefing Minutes; July 7, 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 grant #20-46108-20 between Mason County Public Health and the Department of Commerce for the Housing and Essential Needs Program. 8.2 Approval of the 2020 Oath of Credit Card Inventory per RCW 43.09.2855 8.3 Approval of the Private Line Occupancy Permit granting permission to run utility lines under and across North Shore Road for 11451 North Shore Road, Parcel #32224-50- 00104. 8.4 Approval to authorize the County Engineer to execute an agreement with Washington State Association of Counties (WSAC) for the purpose of conducting fish passage Agendas are subject to change,please contact the Commissioners'office for most recent version. This agenda was last printed on 07/09/20 2:23 PM. 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 July 14, 2020— PAGE 2 assessments with Mason County road rights-of-way and to develop and execute agreements with Mason Conservation District and Hood Canal salmon Enhancement Group as necessary to complete the scope of work. 8.5 Approval to authorize the County Engineer to execute the Project Review Reimbursable Agreement, WSDOT Agreement #J1455, to reimburse WSDOT for the purchase, labor, equipment and all associated incidental costs to install radar speed signs on US 101 in Hoodsport, and approval to authorize the County Engineer to execute the Maintenance and Operation Agreement after equipment is installed to reimburse WSDOT for all future costs associated with yearly preventative maintenance and/or repair/replacement costs due to damage, vandalism and/or failure of equipment. 8.6 Approval of Warrants &Treasure Electronic Remittances Claims Clearing Fund Warrant #8073348-8073470 $ 1,068,105.31 Direct Deposit Fund Warrant # $ Salary Clearing Fund Warrant # $ Treasurer Electronic Remittance for June 2020 $ 1,341,757.41 8.7 Approval of a Resolution amending Resolution No. 79-17 for the Tidelands Lease Agreement with Seattle Shellfish and approval to have the Board sign Tidelands Lease Agreement Amendment No. 2. 8.8 Approval of contract amendment #2 to contract #K2751 between Mason County Public Health and Washington Health Care Authority. 8.9 Approval of contract #SA1, Amendment #1 between Mason County Public Health and Family Education Support Services. 8.10 Approval of Amendment #3 to contract #CH:2019-2021.4 between Crossroads Housing and Mason County for coordinated entry services, and approval to discontinue the contract with North Mason Resources. 8.11 Approval to reschedule the July 28, 2020 Commission meeting to 9 a.m. and reschedule the public hearing to consider the rezone of several adjacent parcels from Multi-Family Residential(R-10) to Mixed Use (MU) within the Belfair Urban Growth Area to 9:15 a.m. on July 28. 9. Other Business (Department Heads and Elected Officials) 10. 9:15 a.m. Public Hearings and Items Set for a Certain Time -In response to the COVID-19 outbreak we will accept public comment via email —dlz@co.mason.wa.us ; or mail to Commissioners Office, 411 North 5th Street, Shelton, WA 98584; or call 360-427-9670 ext. 419 10.1 Public hearing to consider franchise agreement applications between Mason County and the following (Staff: Mike Collins): • Aquarius Utilities, LLC • Island Shores Water, LLC • Detroit Water Service • Oak Park Water Company, LLC Association • Mission Creek Tracts Water • Mason County Public Works U&W Mgmt. System • Little Mission Creek Water System 10.2 Public hearing to consider the 2019 Open Space application from Baidha Dominique Wallace. Staff: Diane Zoren 11. Board's Reports and Calendar 12. Adjournment J:\AGENDAS\2020\2020-07-14 REG.doc Nro- MASON COUNTY TO: BOARD OF MASON COUNTY COMMISSIONERS Reviewed: FROM: Ginger Kenyon Ext. 380 DEPARTMENT: Support Services Action Agenda DATE: July 14, 2020 No. 4.1 ITEM: Correspondence 4.1.1 The Secretary of the Interior sent in a letter re: 2020 payment in Lieu of Tax amount. 4.1.2 The North Mason Recreational Youth Sports Leagues sent in a letter re: access to the county parks. 4.1.3 Arlene Army, Bill and Bobbie Stady, Sherri Dysart, and Cheryl Williams sent in a letter on the Home Rule Charter. Attachments: Originals on file with the Clerk of the Board. Cc:CMMRS Neatherlin, Shutty, Trask Clerk `T`ofrtiF THE SECRETARY OF THE INTERIOR Q r m WASHINGTON A 7 A ,�q June 29, 2020 Mason County 411 N 5Th St Ste 1 Shelton,Washington 98584-3400 Dear County Official: I am pleased to notify you that on June 29, 2020,the Department of the Interior(Department)issued payments under the Payments in Lieu of Taxes (PILT)program. The PELT program compensates eligible local jurisdictions for Federal lands administered by agencies within the Department and on behalf of the U.S.Forest Service and the U.S.Army Corps of Engineers. Local governments may use the PELT payments for any governmental purpose, including emergency response,public schools, and roads. Since local governments cannot tax Federal lands, annual PELT payments help to defray costs associated with maintaining important community services. the Payments in Lieu of Taxes Act, 31 U.S.C. 6901-6907,as amended, authorized the program. The PILT Act prescribes the formula used to compute the annual payments based on annually adjusted per-acre and population variables.Prior year Federal payments under certain revenue sharing programs, as reported annually by States, are deducted in formulating the payment amounts. A provision in the PELT Act provides temporary compensation for recent additions to the National Park System and National Forest Wilderness Areas. The President signed the Further Consolidated Appropriations Act,2020(P.L.116-94) on December 20,2019,providing full funding for the 2020 PILT program. More than 1,900 local jurisdictions received a total of$514.7 million in PELT payments this year. For 2020,your County is receiving a PILT payment of$314,361. If you provided current bank routing and account numbers to our Interior Business Center office or to the System of Awards Management(SAM), an electronic funds transfer was posted to your account on or about June 29, 2020. If you did not receive a payment or require further information,please refer to www.doi.gov/pilt. The website includes information on how to register in SAM to expedite receipt of future PELT payments. If you have any questions,please contact the PELT Program Manager,Ms. Dionna Kiernan,at(202)513-7783. Sincerely, Secretary of the Interior Cc:CMMRS Neatherlin, Shutty, Trask Clerk County Commissioners, The North Mason Recreational Youth Sports Leagues would like to thank Randy Neatherlin for his efforts in getting our players the opportunity to return to play. We know this was a complex issue and thank Randy for your help and leadership in getting our children access to the county park. With the COVID 19 Little League and Fastpitch have been forced to cancel their seasons. Adding the schools being closed has been very hard on the kids without sports. Returning to play is such going to provide a great emotional and physical part in our children's lives. In closing we really appreciate all the effort Randy has done to help us get the parks re- opened for our leagues use Thank You, Erik Youngberg Megh�Ls North Mason Fastpitch President North Mason Little League President ason Hen en North Mason Youth Soccer President Mail- GKenyon&o.mason.wa.us Cc:CMMRS Neatherlin, Shutty, Trask Clerk FW: Home Rule Charter/Election of Freeholders Melissa Drewry Tue 7/7/2020 8:10 AM TaGinger Kenyon <GKenyon@co.mason.wa.us>; From: Arlene Army<a_army@q.com> Sent: Monday,July 6, 2020 10:01 PM To: Melissa Drewry<MDrewry@co.mason.wa.us> Subject: Home Rule Charter/Election of Freeholders Dear County Commissioners, The League of Women Voters of Mason County supports placing Home Rule Charter and the election of Freeholders on the November ballot. An important role of local government is to represent its constituents. With wider representation, home rule affords the opportunity to hear diverse points of view, allows citizens an equal chance to be part of the decision-making process, holds elected officials accountable through the system of initiative and referendum, and creates a shared responsibility for positive community outcomes. Sincerely, Arlene Army 754 SE Arcadia Shores Road Shelton, WA 98584 https://owa.co.mason.wa.us/owa/ 7/7/2020 Mail- GKenyon@co.mason.wa.us Cc:CMMRS Neatherlin, Shutty, Trask Clerk FW: Home Rule Charter and election of Freeholders Melissa Drewry Tue 7/7/2020 8:09 AM TaGinger Kenyon <GKenyon@co.mason.wa.us>; -----Original Message----- From: Bill and Bobbie Stady <wilstady@wavecable.com> Sent: Monday,July 6, 2020 9:37 PM To: Melissa Drewry <MDrewry@co.mason.wa.us> Subject: Home Rule Charter and election of Freeholders Dear County Commissioners, The League of Women Voters of Mason County supports placing Home Rule Charter and the election of Freeholders on the November ballot. An important role of local governments is to represent its constituents. With wider representation, home rule affords the opportunity to hear diverse points of view, allows citizens an equal chance to be part of the decision-making process, holds elected officials accountable through the system of initiative and referendum, and creates a shared responsibility for positive community outcomes. It seems appropriate for the citizens of Mason County to make this decision. Thank you, Bobbie Stady LWVMC https://owa.co.mason.wa.us/owa/ 7/7/2020 Mail - GKenyon@co.mason.wa.us Cc:CMMRS Neatherlin, Shutty, Trask Clerk FW: Home Rule Charter - Election of Freeholders on Nov 3 ballot Melissa Drewry Tue 7/7/2020 10:10 AM TaGinger Kenyon <G Kenyon @co.mason.wa.us>; From: Sherri Dysart<sherridysart@gmail.com> Sent:Tuesday,July 7, 2020 10:07 AM To: Melissa Drewry<MDrewry@co.mason.wa.us> Subject: Home Rule Charter- Election of Freeholders on Nov 3 ballot Dear County Commissioners, The League of Women Voters of Mason County supports placing Home Rule Charter and the election of Freeholders on the November ballot. An important role of local government is to represent its constituents. With wider representation, home rule affords the opportunity to hear diverse points of view, allows citizens an equal chance to be part of the decision-making process, holds elected officials accountable through the system of initiative and referendum, and creates a shared responsibility for positive community outcomes. Please make sure this action step is taken: Place the Home Rule Charter and the election of Freeholders on the November ballot. Sherri Dysart League of Women Voters Mason County https://owa.co.mason.wa.us/owa/ 7/7/2020 Mail - GKenyon@co.mason.wa.us Cc:CMMRS Neatherlin, Shutty, Trask Clerk FW: Home Rule Charter Melissa Drewry Wed 7/8/2020 8:04 AM TaGinger Kenyon <G Kenyon @co.mason.wa.us>; From: CHERYL WILLIAMS<gammwill@msn.com> Sent:Tuesday,July 7, 2020 9:33 PM To: Melissa Drewry<MDrewry@co.mason.wa.us> Subject: Home Rule Charter Dear County Commissioners, The League of Women Voters of Mason County supports placing Home Rule Charter and the election of Freeholders on the November ballot. An important role of local government is to represent its constituents. With wider representation, home rule affords the opportunity to hear diverse points of view, allows citizens an equal chance to be part of the decision-making process, holds elected officials accountable through the system of initiative and referendum, and creates a shared responsibility for positive community outcomes. Please place this on the ballot in November. Cheryl Williams, EA, MST, ACB Past President League of Women Voters https://owa.co.mason.wa.us/owa/ 7/8/2020 NEWS RELEASE July 14, 2020 MASON COUNTY COMMISSIONERS 411 NORTH 5T" ST SHELTON, WA 98584 (360) 427-9670 EXT. 419 TO: KMAS, KRXY, SHELTON-MASON COUNTY JOURNAL, THE OLYMPIAN, SHELTON CHAMBER OF COMMERCE, NORTH MASON CHAMBER OF COMMERCE, CITY OF SHELTON, ECONOMIC DEVELOPMENT COUNCIL, THE SUN RE: Extending Hours of Operation at each of the County Solid Waste Facilities Mason County will be extending the hours of operation at the Eells Hill Transfer Station and the Belfair, Hoodsport and Union Drop Box Stations. The new hours will take effect on August 1, 2020 at each facility as follows: The Eells Hill transfer station will be open Monday thru Saturday from 7:00am to 4:45pm. Belfair Drop Box Station will be open Tuesday thru Saturday from 8:30am to 4:00pm.; and The Hoodsport Drop Box Station will be open Friday thru Sunday and the Union Drop Box Station Sunday and Monday from 8:00am to 4:30pm. For more information about the County Solid Waste Program or the Eells Hill Transfer Station and Union, Belfair or Hoodsport drop off facilities, you can visit the Utilities and Waste Management webpage on the County website at www.co.mason.wa.us or call (360) 427-9670, Ext. 207 BOARD OF MASON COUNTY COMMISSIONERS Sharon Trask Randy Neatherlin Kevin Shutty Chair Vice Chair Commissioner BOARD OF MASON COUNTY COMMISSIONERS'BRIEFING MINUTES Mason County Commission Chambers,411 North 5th Street,Shelton,WA Week of July 6,2020 Monday,July 6,2020 9:00 A.M. Support Services—Frank Pinter Commissioners Trask,Shutty and Neatherlin were in attendance via Zoom. • 2020 Oath of Credit Card Inventory pursuant to RCW 43.09.2855 and Mason County Resolution 10-18 will be placed on the agenda for approval. • Seattle Shellfish amendment reduces the rent and Seattle Shellfish will pay the leasehold excise tax(LET). The County will receive the same amount through rent&LET as it would have received in the original contract. • Counter offer to purchase County property—410 Hillcrest,Shelton was submitted at$8,000 and will be moved forward. • Request to fill Clerk of the Board position was approved. • Pandemic Exposure Control,Mitigation and Recovery Plan was reviewed. Cmmr.Trask would prefer to hold off until we have solid information from the State. Frank will send the policy to legal for review. • Working with EDC Jennifer for proposal how to deal with funds for grants to businesses. After discussing with Leo in Auditor's Office,it is recommended the county grant a sum to EDC and let EDC,based on criteria established by County,disburse the money. Frank will bring forward a draft policy. • Restrictions,based on the Governor's Proclamation,to the Open Public Meetings Act were reviewed. The Commissioners agreed to continue using remote access and restrict in-person access. • Cmmr.Shutty will not be attending the briefing or meeting next week. • Cmmr.Trask brought up appointing Peter Jones and Dennis Neal to the Criminal Justice Treatment Panel. The appointments will be placed on tomorrow's agenda. will be rescheduled next week 10:00 A.M. Community Services—Dave Windom Commissioners Trask,Shutty and Neatherlin were in attendance via Zoom. • Coordinated Entry proposal to centralize coordinated entry into Crossroads Housing. • Amendment to the Consolidated Homeless Grant for HEN funding will be moved forward. • Request to fill a vacant position for Building Inspector/Plans Examiner/Code Enforcement position was approved to move forward. • Approval of contract amendment for Access to Baby and Child Dental(ABCD)Dental Services extending current contract for two more years to June 30,2022. • Approval of contract amendment and extension for Family Education Support Services(FESS). • Dave provided an update on the status of COVID in Mason County. • Dave will bring forward a reorganization plan for Community Development. 10:30 A.M. BREAK 10:35 A.M. Public Works—Loretta Swanson Utilities&Waste Management Commissioners Trask, Shutty and Neatherlin were in attendance via Zoom. • Request for Private Line Occupancy Permit to install a new underground waterline and power on North Shore Road. • WSAC agreement for grant to continue culvert inventory within county right-of-way and execute agreements with Mason Conservation District and Hood Canal Salmon Enhancement Group to complete the scope of work. • Review of Solid Waste hours of operation and booth attendant schedule changes to meet social distance requirements. Changing the schedule to 10-hour shifts will eliminate 10 hours of Mason County Commissioners'Briefing Meeting Minutes July 6,2020 scheduled overtime and 12 hours of scheduled extra help time weekly. The estimated annual savings is$19,800. • Hoodsport speed display signs have a cost of $34,000 from WSDOT,an option is to install portable signs. Meeting adjourned 10:35 a.m. Tuesday,July 7,2020 9:45 A.M. Executive Session-RCW 42.30.110(1)(i)Potential Litigation Commissioners Trask and Shutty met in Executive Session via Zoom with Tim Whitehead,Mike Dorcy,Nichole Wilston,Kell Rowen and Risk Pool staff Lynda Bishop and Ken Harper from 9:45 a.m.to 10:30 am. Respectfully submitted, Diane Zoren,Administrative Services Manager 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 5t' Street, Shelton, WA July 7, 2020 1. Call to Order—The Chairperson called the regular meeting to order at 9:02 a.m. 2. Pledge of Allegiance—Alex Paysee 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 for Wilber Industries; an approved liquor license for Maddy's Old Town Flowers; and an approved Marijuana Processor license for OGZ Fire Weed LLC. They also sent a Liquor License Application for The Ridge Motorsports Park, and a Marijuana License Application for Smooth Sailing Ventures. 4.1.2 Kevin Hoonan, Patricia Carpenter, Karen Herr, Barb Parsloe sent in a letter re: Home Rule Charter. 4.1.3 Constance Ibsen applied for the Onsite Sewage Advisory Committee; George Blush & Virginia Beech sent in applications for the Housing and Behavior Health Board; Kevin Frankeberger, and Brenda Hirschi sent in an application's for Mason County Board of Equalization. 4.1.4 Received a letter from Federal Energy Regulatory Commission on the subject of Preliminary Seismic Hazard Analysis for the Cushman Project. 4.1.5 Department of Fish and Wildlife sent in information on the Lower Union River Restoration Project. 4.1.6 Letter received from Jerry & Sue Brockmann on the subject of Gravel Pit Application Process. 4.1.7 Herb Gerhardt sent in a letter re: Mason County Garbage Recycling. 4.1.8 Received a letter from Robert Coble re: Grump Ventures LLC Proposed Gravel Mine in Belfair. 4.2 News Release - Onsite Sewage Advisory Committee Vacancy Staff: Alex Paysse 5. Open Forum for Citizen Input— 5.1 A letter from Herb Gerhardt was read in regards to executive and closed sessions. Cmmr. Trask spoke to the letter noting the Prosecutors office will hold a briefing on this subject during briefings July 20, 2020. 6. Adoption of Agenda - Cmmr. Shutty/Neatherlin moved and seconded to adopt the agenda as published. Motion carried unanimously. N-aye; S-aye; T-aye. 7. Approval of Minutes—June 15, June 22, June 29, 2020 Briefing Minutes; June 16 and June 23, 2020 Regular Meeting Minutes. Cmmr. Neatherlin/Shutty moved and seconded to approve the June 15, June 22,June 29, 2020 Briefing Minutes;June 16 and June 23, 2020 Regular Meeting Minutes. Motion carried unanimously. N-aye; S-aye; T-aye. 8. Approval of Action Agenda: 8.1 Approval of the resolution for the distribution of the Public Utility District Excise Tax, per RCW 54.28.090. The Mason County Current Expense Fund will receive $734,058.30 and the City of Shelton will receive $91,298.15. (Ex.A-Res. 2020-55) 8.2 Approval of amendment #5 to contract N21896-17-5 between Mason County Public Health and CHOICE Regional Health Network. BOARD OF MASON COUNTY COMMISSIONERS' PROCEEDINGS July 7, 2020 - PAGE 2 8.3 Approval to set a public hearing on July 28, 2020 at 6:15 p.m. to consider the rezone of several adjacent parcels from Multi-Family Residential (R-10) to Mixed Use (MU) within the Belfair Urban Growth Area. 8.4 Approval of Warrants &Treasure Electronic Remittances Claims Clearing Fund Warrant # 8073164-8073347 $ 1,896,486.67 Direct Deposit Fund Warrant # 69158-69547 $ 732,974.96 Salary Clearing Fund Warrant #s 7005252-7005275 $ 512,716.21 8.5 Approval to reclassify the Facilities Manager from salary range 29, Step 5 to Salary range 38, Step 0, effective July 1, 2020 and Juvenile Court Administrator from salary Range 37 to Range 40, Step 3 effective July 1, 2020. (Ex. B-Res. 2020-56) $ , 8.7 Approval to authorize the Chair to execute the Local Agency Federal Aid Project Prospectuses approved Federal Highway Administration funding for County Road Project 2028, E. Agate Road resurfacing project. 8.8 Approval to authorize Public Works to select a consultant for preliminary engineering work for Log Yard Road extension and SR 3 Freight Corridor and approval to authorize the Deputy Director/County Engineer to sign the agreement and any supplemental documents. Public Works will announce the consultant selection during a regular Commission meeting. 8.9 Approval to appoint Mike Ringgenberg to a two-year term on the Transportation Improvement Program Citizens Advisory Panel (TIP-CAP), representing transportation. 8.10 Approval to appoint the following to the Criminal Justice Treatment Account Panel: Peter Jones, member of the criminal defense bar and Dennis Neal, substance abuse treatment provider. Cmmr. Shutty/Neatherlin moved and seconded to approve action items 8.1 through 8.10. Motion carried unanimously. N-aye; S-aye; T-aye. 9. Other Business (Department Heads and Elected Officials) 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 9:21 a.m. BOARD OF MASON COUNTY COMMISSIONERS' PROCEEDINGS July 7, 2020 - PAGE 3 BOARD OF COUNTY COMMISSIONERS ATTEST: MASON COUNTY, WASHINGTON Melissa Drewry, Clerk of the Board Sharon Trask, Chair Kevin Shutty, Commissioner Randy Neatherlin, Commissioner MASON COUNTY AGENDA ITEM SUMMARY FORM TO: BOARD OF MASON COUNTY COMMISSIONERS From: Dave Windom &Todd Parker Action Agenda _X_ Public Hearing Other DEPARTMENT: Community Services EXT: _260_ COMMISSION MEETING DATE: 7/14/20 Agenda Item # . Commissioner staff to complete) BRIEFING DATE: 7/6/20 BRIEFING PRESENTED BY: Todd Parker [] ITEM WAS NOT PREVIOUSLY BRIEFED WITH THE BOARD Please provide explanation of urgency: ITEM: Amendment to the Consolidated Homeless Grant, contract number 20-46108-20 Background: Legislation approved increases to the HEN allocation prior to Covid-19. While there may be proposed budget cuts to the HEN FY21 funds due to state budget shortfalls from responding to COVID, the Housing Assistance Unit of Dept. of Commerce is still asking that we move forward with signing and returning the amendment. Commerce will then hold on to them so that they are ready to move fast if they still have the increase after the budget cut decisions are finalized. We plan to hold off on writing an amendment with Community Action Council, the agency we subcontract with to operate the HEN program until we hear from Commerce. RECOMMENDED ACTION: Approval to sign the Consolidated Homeless Grant Amendment A with the Department of Commerce for the Housing and Essential Needs Program Attachment(s): HEN Amendment I:\Community Services-Public Health\PH_07.14.20_C.Action FY21 HEN Amendment.doc Amendment Grant Number:20-46108-20 Amendment Number:A Washington State Department of Commerce Community Services and Housing Division Housing Assistance Unit Consolidated Homeless Grant(CHG) 1. Grantee 2.Grantee Doing Business As(optional) Mason County Health Services N/A 415N6THST SHELTON WA 98584 3.Grantee Representative 4.COMMERCE Representative Casey Bingham Kathryn Dodge 1011 Plum Street SE Fiscal Manager Grant Manager Olympia,Washington,98504- 360-427-9670 ext 562 (360)725-5072 2525 caseyb@co.mason.wa.us kathryn.dodge@commerce.wa.gov 5.Original Grant Amount 6.Amendment Amount 7.New Grant Amount (and any previous amendments) $1,847,722.00 $299,275.00 $2,146,997.00 8.Amendment Funding Source 9.Amendment Start Date 10.Amendment End Date Federal: State:X Other: N/A: July 1,2020 June 30,2021 11.Federal Funds(as applicable): Federal Agency: CFDA Number: N/A N/A N/A 12.Amendment Purpose: Adds HEN SFY 2021 additional funds. COMMERCE,defined as the Department of Commerce,and the Grantee,as defined above,acknowledge and accept the terms of this Grant As Amended and attachments and have executed this Grant Amendment on the date below to start as of the date and year referenced above. The rights and obligations of both parties to this Grant As Amended are governed by this Grant Amendment and the following other documents incorporated by reference: 2019-2021 Homeless Housing Funding Application,CHG Guidelines(as they may be revised from time to time),and Grant Terms and Conditions including Attachment"A"-Scope of Work,Attachment "B"—Budget.A copy of this Grant Amendment shall be attached to and made a part of the original Grant between COMMERCE and the Grantee. Any reference in the original Grant to the"Grant"shall mean the"Grant As Amended". FOR GRANTEE FOR COMMERCE Signature Diane Klontz,Assistant Director Community Services and Housing Division Print Name,Title Date APPROVED AS TO FORM ONLY Date Sandra Adix Assistant Attorney General 3/20/2014 Date Department of Commerce Amendment This Grant is amended as follows: Attachment B Budget Budget Categories Original Grant Amendment A New Total Amount (and any previous amendments CHG Standard Admin $67,230 $0 $67,230 Rent/Fac Support Lease $110,790 $0 $110,790 Other Rent/Fac Support Lease and $102,624 $0 $102,624 Housing Costs Operations $100,422 $0 $100,422 PSH CHF PSH CHF Rent/Fac Support Lease $50,562 $0 $50,562 PSH CHF Operations $16,572 $0 $16,572 HEN SFY 2020 (July 2019-June 2020 HEN Admin 2020 $48,900 $0 $48,900 HEN Rent/Fac Support and Housing $484,253 $0 $484,253 Costs 2020 HEN Operations 2020 $166,608 $0 $166,608 HEN SFY 2021 (July 2020-June 2021 HEN Admin 2021 $48,900 $10,475 $59,375 HEN Rent/Fac Support and Housing $484,253 $191,536 $675,789 Costs 2021 HEN Operations 2021 $166,608 $97,264 $263,872 Total Total $1,847,722 $299,275 $2,146,997 MASON COUNTY AGENDA ITEM SUMMARY FORM TO: BOARD OF MASON COUNTY COMMISSIONERS From: Kelly Bergh for Jennifer Beierle Action Agenda _X_ Public Hearing Other DEPARTMENT: Support Services EXT: 644 DATE: 7/14/2020 Agenda Item # g �- (Commissioner staff to complete) BRIEFING DATE: 7/6/2020 BRIEFING PRESENTED BY: Jennifer Beierle [ ] ITEM WAS NOT PREVIOUSLY BRIEFED WITH THE BOARD Please provide explanation of urgency Item: 2020 Oath of Credit Card Inventory Background: As required by RCW 43.09.2855 and Mason County Resolution 10.18, the Commissioners of Mason County approve the annual inventory of credit cards as part of the system of authorization and control adopted for the use of credit cards. Recommended Action: Request the Board approve and sign the 2020 Oath of Credit Card Inventory. Attachment(s): 2020 Oath of Credit Card Inventory RCW 43.09.2855 Resolution 10.18 J:I Credit Card12020 Annual Oath of Cr Card Inventory)Agenda Item Summary-2020.doc MASON COUNTY OATH OF CREDIT CARD INVENTORY 2020 As required by RCW 43.09.2855 and in compliance with Mason County Resolution 10.18, we, the Commissioners of Mason County, do solemnly swear that this is the full and complete inventory, of all credit cards with US Bank for Mason County as of June 1, 2020 DEPARTMENT BUDGET DEPARTMENT#(S) Limit Assessor 001-020-000 2,000.00 Auditors 001-030-000 4,000.00 Clerks 001-070-000 2,000.00 Commissioners 001-090-000 2,000.00 Human Resources 001-090-000 5,000.00 Commissioners 001-090-000 10,000.00 Mason County- IT 001-090-000 10,000,00 Commissioners 001-080-000 2,000.00 Coroners 001-190-000 5,000.00 DCD 001-125-000 2,000.00 District Court 001-100-000 4,000.00 Emergency Management 105-000-120 10,000.00 Health Department 150-000-000 7,000.00 Prosecutor 001-180-000 10,000.00 Facilities 001-055-000 10,000.00 Parks 001-146-000 4,000.00 Public Defense 001-240-000 3,000.00 Mason County 501-000-000 20,000.00 Public Works 105-000-000 10,000.00 Public Works 105-000-000 10,000.00 Sheriff 001-205-000 10,000.00 Sheriff 001-205-000 20,000.00 Sheriff 001-205-000 10,000.00 Sheriff- Boating 141-000-000 2,000.00 Sheriff- Boating 141-000-000 2,000.00 Sheriff- N&S Precincts 001-205-000 2,000.00 Treasurers 180-000-000 10,000.00 Utilities 402-000-000 5,000.00 403-100-020 406-000-000 411-100-000 411-200-000 412-000-000 480-000-000 Superior Court 250-000-000 5,000.00 Juvenile Probation 170-000-000 10,000.00 171-000-000 172-000-000 2020 Oath of Credit Card Inventory with US Bank Subscribed and sworn this day of 2020 BOARD OF MASON COUNTY COMMISSIONERS Sharon Trask, Chair Randy Neatherlin, Commissioner Kevin Shutty, Commissioner J:\Credit Card\2020 Annual Oath of Cr Card Inventory\Credit Card Annual BOCC Information.xls 3/12/2019 RCW 43.09.2855:Local governments—Use of credit cards. RCW 43.09.2855 Local governments—Use of credit cards. (1)Local governments,including counties,cities,towns,special purpose districts,municipal and quasi-municipal corporations,and political subdivisions,are authorized to use credit cards for official government purchases and acquisitions. (2)A local government may contract for issuance of the credit cards. (3)The legislative body shall adopt a system for: (a)The distribution of the credit cards; (b)The authorization and control of the use of credit card funds; (c)The credit limits available on the credit cards; (d)Payment of the bills;and (e)Any other rule necessary to implement or administer the system under this section. (4)As used in this section,"credit card"means a card or device issued under an arrangement pursuant to which the issuer gives to a card holder the privilege of obtaining credit from the issuer. (5)Any credit card system adopted under this section is subject to examination by the state auditor's office pursuant to chapter 43.09 RCW. (6)Cash advances on credit cards are prohibited. [1995 c 30§2.Formerly RCW 39.58.180.] NOTES: Findings-1995 c 30:"The legislature finds that(1)the use of credit cards is a customary and economical business practice to improve cash management,reduce costs,and increase efficiency;and(2)local governments should consider and use credit cards when appropriate."(1995 c 30§1.] hhps://apps.leg..a.gov/rm/defauIt.aspx?cite=43.09.2855 111 RESOLUTION NO.� A Resolution to update the Mason County Credit Card Policy&Procedures by amending Resolution 96-05. WHEREAS, RCW 42.24.115 authorizes counties to provide for the issuance and use of charge cards to employees for the purpose of covering expenses incident to authorized travel; and WHEREAS, RCW 43.09,2855 authorizes counties to use charge cards for official government purchases and acquisitions; and WHEREAS, the Mason County Board of Commissioners believe that the use of credit cards can improve cash management, reduce costs, and increase efficiency when used appropriately; and WHEREAS, it is necessary to provide proper controls over the distribution, authorization, and administration for the use of credit cards for transacting County business; NOW,THEREFORE, BE IT RESOLVED BY THE BOARD OF MASON COUNTY COMMISSIONERS to update the Mason County Credit Card Policy and Procedures as set forth in Attachment A. Dated this 20"'day of February, 2018. BOARD OF COUNTY COMMISSIONERS MASON COUNTY,WASHINGTON ATTEST: --- -- - ) MJJAY� Randf N her in, Chairperson M4skDm,kry, Clerl f the Board APPROVED AS TO FORM: Terri Drexler, Coninissioner Tun Whitehea , eputy Prosecuting Attorney Kevin utty Commissioner C: All Departments ]:\Credit Card\Resolution to update the Mason County Credit Card Policy&Procedures.doc Mason County Credit Card Policy & Procedures Resolution No. Mason County Credit Card Policy References: RCW 42.24.080 RCW 42.24.115 RCW 43.09.2855 Purposes: To comply with State Laws on the use of credit cards for travel,purchases and acquisitions. (RCW 43.09.2855 (1)) To provide opportunities for cost savings available only with the use of credit cards. To provide an economical business practice that will increase efficiency. 1. Issuance and Inventory of Credit Cards (a) The County authorizes the issuance of credit cards to departments for the purpose of covering authorized travel expenses incurred by government officials and employees as well as for official authorized government purchases or acquisitions. (RCW 43.09.2855) (b) Elected officials, department heads, and County administrators who feel their department's operations would benefit from having a credit card shall make a formal request to the County Commissioners, or their designee. The formal review of these requests implements a systems of controls, and allows for better tracking of the number of cards issued County-wide and by department, authorized credit and single purchase limits, and to ensure that bills are paid in accordance with the RCWs pertaining to credit card usage and County policy(RCW 42.24.080,RCW 42.24.115, RCW 43.09.2855). All requests for new credit cards will be submitted using the Mason County Credit Card Request Form(Exhibit A)and will include the following documents: a. A list detailing the specific types of transactions the department anticipates for the credit card. (RCW 43.09.2855 (3a)) b. A list of authorized users of the card. The decision as to whom will be authorized to use the card will be at the discretion of the elected official or department head. (RCW 43.09.2855 (3b)) c. A signed Mason County Credit Card Use Agreement(Exhibit B)by the authorized user(s) acknowledging that they have read the County's credit card policy and procedures and that they will use the card in accordance with this policy. These statements will be kept and maintained by each Issue Date: Page 1 of 7 Mason County Credit Card Policy & Procedures Resolution No. department's designated Card Custodian. The Card Custodian will also sign a statement acknowledging their understanding of the policy and their responsibilities as the Card Custodian(Exhibit Q. (RCW 43.09.2855 (3e)3 d. A request for the credit limit of each card that is being requested. (RCW 43.09.2855 (3c)) (c) The Commissioner's Office shall maintain an active listing of credit card users,cards issued, and credit limits. (RCW 43.09.2855 (3c)) (d) Departments that have credit cards with retailers(charge card/account cards)must adhere to the same credit card policies and procedures as with a bank credit card.No special permission is needed for these cards, except if a fee is charged to obtain the card. The Board of County Commissioners has approved vendor specific credit cards with no fees for use in all offices and departments. Charge cards with fees require permission from the Board of County Commissioners. A list of all active retailer credit cards and an active listing of authorized users must be on file with the County's Commissioner's office. (RCW 43.09.2855 (3e)) (e) Each Elected Official or Department Head is responsible for the distribution, retrieval, and tracking of each card issued within their office or department.Monthly reconciliations are the responsibility of the department that holds the credit card and is required for each department. (RCW 43.09.2855 (3e)) 2. Use of Credit Cards (a) All purchases made with these cards must be in compliance with the County's purchasing,contracting,vendor list and other applicable policies. (RCW 43.09.2855 (3e)) (b) When a County credit card is used for the purpose of covering expenses related to authorized travel,the government official or employee must submit a fully itemized travel expense voucher with original receipts attached. This is to be submitted within five(5)days of authorized travel. Charges against the credit card that are not properly identified on the travel expense voucher or are found to be not allowed following the County's purchasing, contracting,vendor list,and other applicable policies,as well as the audit required under RCW 42.24.080, shall be paid by the official or employee by check or salary deduction. (RCW 42.24.115) (c) If,for any reason,disallowed charges are not repaid by the official or employee before the credit card billing is due and payable,the County shall have a prior lien against and a right to withhold any and all funds payable or to become payable to the official or employee,up to an amount of the disallowed charges and any interest and/or late fees incurred, as charged by the issuing credit card company. (RCW 42.24.115) Issue Date: Page 2 of 7 Mason County Credit Card Policy & Procedures Resolution No. (d) Credit cards will be assigned in the name of the office or department, and not in the name of an individual. (RCW 43.09.2855 (3e)) (e) The County's Financial Services Auditors shall establish and implement a written procedure for the payment of all credit card bills. All departments must adhere to this written procedure in order to maintain efficiency, timeliness, consistency, and accuracy of the County's credit card payments. (RCW 42.24.080) See Exhibit E for the current credit card voucher procedures established by Financial Services. (f) Immediate surrender of a credit card(s)may be required if an elected official, employee, or department uses their credit card in a manner that is inconsistent with the County's code,policies, and procedures. (RCW 43.09.2855 (3e)) 3. Liability (a) The individual office or department is responsible for the liability incurred by the use of their credit cards. Payment is due immediately upon receipt of monthly statement. Balances on all cards must be paid so no late fee is incurred. (RCW 43.09.2855 (3d)) See Exhibit E 4. Spending Limits (a) Each Elected Official or Department Head will seek approval by the Board of Commissioners for their department's spending limits, and/or pre-authorization for credit cards issued in their office or department. Such limits will be consistent with office or department spending levels established by the Board of County Commissioners in the annual budget process. The Elected Official or Department Head is responsible for communicating the limit to each user. Subsequent requests for credit limit increases must be submitted to the Board of Commissioners, or their designee,via the Mason County Credit Card Request Form(Exhibit A). (RCW 43.09.2855 (3c)) 5. Unauthorized uses (a) Under no circumstances may an employee or elected official use a government credit card for personal expenses, even if they reimburse the County before the bill is due. (RCW 43.09.2855) (b) Cash advances on all County credit cards are prohibited. (RCW 43.09.2855 (6)) (c) Money orders/Travelers Checks/Gift Cards purchased with County credit cards are prohibited. (RCW 43.09.2855 (3e)) Issue Date: Page 3 of 7 Mason County Credit Card Policy & Procedures Resolution No. (d) Meal and beverage purchases on all County credit cards are prohibited, except under special circumstances as defined by the Mason County Travel Policy. (Exhibit F) (RCW 43.09.2855 (3e)) (e) If an authorized departmental official or employee has charges that are disallowed and are not repaid prior to the credit card billing date,the office or department shall have a prior lien on the employee's wages,including final pay. (RCW 42.24.115 (3)) (f) Failure to repay disallowed charges shall result in a penalty of ten percent per annum from the date of default until repaid. The interest will be computed as simple interest on the outstanding balance. This penalty is payable to the County and is in addition to interest and penalty charges imposed by the credit card company. (RCW 43.09.2855 (3e)) Mason County Credit Card Procedures Definitions: Credit Cards (Bank Cards): Mason County uses the credit card offered through the State of Washington contract. Departments may not use other bankcards. Charge Cards/Account Cards: Cards issued through specific vendors showing an established account. Not a credit card. No special permission is needed for these cards, except if a fee is charged. Charge cards with fees require permission from the Board of County Commissioners. For example, Costco charges a fee for their cards, and they can only be used at Costco stores. Credit Card System Administrator: An individual within the Commissioners' Office is responsible for providing training, advice, direction, consultation and assistance to Approving Managers and Card Custodians. Approving Manager: The Elected Official, Department Head or designee responsible for designating card custodians and requesting purchasing card limits. They will advise custodians of applicable limits and ensure that proper card usage, security, controls, timely bank statement reconciliation and approval,reception of transaction documentation and other related responsibilities are followed. Card Custodian: A Regular Employee, as defined in the Mason County Personnel Policy, within each office or department is responsible for card security and use. Custodians may designate employees within their office or department to use the credit card to purchase specific items or use a credit card for travel purposes. Approving Authority: A Commissioner or their designee Issue Date: Page 4 of 7 Mason County Credit Card Policy & Procedures Resolution No. I. Charge or Vendor Specific Cards: 1. Elected Official or Department Heads make arrangements with individual vendors for charge or vendor specific cards. 2. If a fee is charged for the card,prior permission must be obtained from the Board of Commissioners. Please contact the Commissioners' office. 3. Keep all cards and account numbers safe. 4. Report inventory of all charge and/or vendor specific cards to the Board of Commissioners' annually. A form,provided by the Commissioners' Office, will be submitted annually by each department, listing the inventory and custodian(s) of all charge and/or vendor credit cards(Exhibit D). U. Credit Cards Bank Cards) 1. Contact credit card system administrator Contact the Credit Card System Administrator in the Commissioners' Office. That person will help your office/department complete the Implementation Form and Letter of Request. The Administrator will establish an account through the Procurement Card contact through the State of Washington. 2. Designate a credit card custodian To designate a new credit card custodian, the Approving Manager completes the Mason County Credit Card Request Form(Exhibit A) and sends it to the Credit Card System Administrator in the Commissioners' Office, along with a signed Credit Card Custodian Agreement(Exhibit C). Custodians are responsible to: a. Pick up the credit cards from the Credit Card System Administrator in the Commissioners' Office. b. Keep all the credit cards safe and locked when not assigned to an employee. c. Maintain a log of credit cards checked out,to whom, date,purpose, date returned, sales slip returned, etc. d. Maintain the signed Mason County Credit Card Agreements(Exhibit B) from all authorized users of the department's credit card(s). Issue Date: Page 5 of 7 Mason County Credit Card Policy & Procedures Resolution No. e. Report Credit Card Fraud to the Credit Card System Administrator and file a claim with the credit card company. The credit card company will send a form to the department with reported fraud,which will be filled out and a copy submitted with the credit card statement to Financial Services. 3. Using the Credit Card(RCW 43.09.2855 (3)) a. The credit cards must be kept safe and secure at all times. When not in use by an individual, it is required that all credit cards be stored in a locked drawer or safe, with limited access. b. When needed for use,the custodian completes the information on the log and has the employee sign the log. If the custodian is the one to use the card,have another employee initial the log. c. The Approving Manager must set the boundaries for credit card use and must communicate this to the employee before they use the credit card. (Prohibited: meals, cash advances, and personal items.) Proof of communication may be done by a signature on a use agreement,etc. d. The card user must obtain and return all charge slips regardless what is purchased, to the custodian or departmental accountant. e. An itemized receipt must be obtained for all purchases when possible. f. Government officials and employees are expected to return the card to the card custodian promptly after each authorized us. Under no circumstances shall the card information be stored by a government official or employee. g. To raise or lower a spending limit on a credit card, complete the Mason County Credit Card Request Form(Exhibit A) and send it to the Credit Card System Administrator in the Commissioners' Office. 4. Credit Card Billing Statements (RCW 43.09.2855 (3)) a. The Credit Card Administrator will receive a master statement of all credit card accounts, for review and audit purposes only. b. The Credit Card Custodian in each department will receive a detailed bill each month for the cards they are responsible for. c. It is the Credit Card Custodian or departmental accountant's responsibility for submitting payment in the proper amount of time each month, pursuant to the Issue Date: Page 6 of 7 Mason County Credit Card Policy & Procedures Resolution No. procedures established by the Auditors in the Financial Services office. (RCW 42.24.080) d. For each purchase made by a charge card, a signed supplier sales receipt/charge slip that clearly describes the items purchased,price, and any applicable tax should be retained by the custodian and attached to the log during the reconciliation process. Documents: • Mason County Credit Card Request Form—see Exhibit A • Mason County Credit Card Agreement—see Exhibit B • Credit Card Custodian Agreement—see Exhibit C • Department Credit Card Inventory List—see Exhibit D • Credit Card Vouchers Procedures—See Exhibit E • Travel Policy—See Exhibit F Issue Date: Page 7 of 7 i MASON COUNTY CREDIT CARD REQUEST FORM Exhibit A Please forward request to: Mason County Support Services Type of Request: O New Card(Sections A,B,C,E) O Change or Add Credit Card Custodian(Sections A,E) O Increase/Decrease Credit Limit(Sections A,B,D,E) A.Department Information Department Name Department Physical Address Phone Number Ext Department Authorized Credit Card Custodian's Name(s) Phone q&Ext(if different from above) I B.Please provide a brief description of the reason for and a list of example transactions of the requested card. ( The list of required documents to be submitted with this request Is in Section 1.of the Credit Card Policy. 1 I I i I C.For New Credit Card Request: D.For Credit Limit Increase/Decrease: i Department's Credit Limit Request Departments Current Credit Limit Approved Credit Limit(to be determined by BOCC New Credit Limit Request or their designee Approved Credit Limit(to be determined by BOCC or their designee) I Q Request Approved E. Department Head Signature&Date Q Request Denied Reason(s)for denial of request: Approving Authority Signature&Date Mason County Credit Card Use Agreement Exhibit B I hereby acknowledge the receipt of my Mason County, US Bank Purchase Card. In consideration of Mason County obtaining the Card and providing it to me, I agree to the following: 1. The credit card is for Mason County business related purchases only; personal charges are not to be made. 2. Meals are not allowed to be charged to the credit card. You may submit for reimbursement after your travel to cover your meal allowance, based on per diem rates. 3. 1 will promptly submit travel expense reports covering amounts charged to the Card and will attach a detailed copy of each Card transaction. 4. Improper use of the Card is considered misappropriation of county funds, which may result in corrective action, up to and may include termination. 5. 1 will promptly return the Card to Mason County if requested to do so or if my employment with Mason County is terminated. 6. If Mason County pays US Bank any un-authorized amounts charged to the Card, I authorize Mason County to take such actions, as it deems necessary to recover the amounts paid, including withholding such amounts from my wages or from any other sums payable to me by Mason County. 7. A lost or stolen card should be reported immediately to the Card Custodian and by telephone to US Bank Customer Service at 1-877-846-9302. Your signature verifies that you understand and agree to comply with Mason County's charge card guidelines listed above. Employee Signature Card Custodian Date Date C:\Users\jsweet\Documents\GroupWise\Mason County Credit Card Use Agreement Form.doc Mason County Credit Card Custodian Agreement Exhibit C I hereby acknowledge the receipt of my Mason County, US Bank Credit Card. Account Number: (the "Card") In consideration of Mason County obtaining the Card and providing it to me, I agree to the following: 1. The credit card is provided to Mason County's employees based on their need to purchase business related goods and services. 2. Credit card custodians are expected to comply with internal control procedures in order to protect Mason County's assets. This includes keeping receipts, reconciling monthly statements, and following proper card security measures. 3. All charges are billed directly to and paid by Mason County. Personal charges can't be paid to the bank directly and therefore are considered misappropriation of county funds. 4. 1 understand that my department's card privileges may be suspended or cancelled if I am delinquent in paying US Bank. 5. A cardholder must surrender his or her Card upon termination of employment(i.e. retirement, voluntary or involuntary termination). At this point, no further use of the account is authorized. 6. A lost or stolen card should be reported immediately by telephone to US Bank Customer Service at 1-877-846-9302. The custodian will also report the lost or stolen card to the program administrator. Your signature verifies that you understand and agree to comply with Mason County's charge card guidelines listed above. Card Custodian Credit Card System Administrator Date Date C:\Users\jsweetWppData\Local\Temp\XPgrpwise\Mason County Credit Card Custodian agreement Form.doc Credit Card In ventory by Department Exhibit D DEPARTMENT: Elected Official/Department Head: NONE CREDIT CARDTYPE: CREDIT CARD TYPE: CREDIT CARD TYPE: CREDIT CARD TYPE: CREDIT CARD TYPE: CREDIT CARD TYPE: CREDIT CARD TYPE: CREDIT CARD TYPE: CREDIT CARD TYPE: CREDIT CARD TYPE: Person submitting this form: Date: C:\Users\jsweet\Documents\GroupWise\Department Credit Card Inventory form.doc Created on If2212018 9:45:00 AM Exhibit E Credit Card Vouchers: Within five (5) days receipt of your monthly credit card statement you need to enter your payment on a separate batch from your other accounts payable invoices in Munis. Financial Services will be doing special AP runs to accommodate the credit card payments should they not fall within the current published AP Run schedule. PURCHASE ORDER USERS: if you are one of the departments using a Munis PO entry, please continue to do so. The PO should have all entries for the entire credit card payment. If you have a credit on account on your current statement please contact Financial Services before entering this credit on a PO. INVOICE ENTRY SCREEN USERS: If you aren't using a Munis PO, please enter your total payment due on the Gross Amount line and utilizing separate lines in the account field on your entry screen, allocate your purchases by fund and BARS. If you have a credit on account on your ( current statement enter the credit on an account line as a negative number. The fund and BARS should be the same as the original purchase that was made for which you are receiving a credit or refund. ALL USERS: The batch must include: Payment in full amount as shown on the credit card. Include any late fees. Original US Bank statement and all detail with remit coupon. All original receipts and invoices noted on your credit card statement. All supporting documentation required for the purchase, such as a signed travel voucher and back up documents or capital asset form. If another department used your credit card and you don't have Munis permission to enter their fund information into a batch, we can assist you. After you have entered your fund expenditures on an invoice entry screen, contact Financial Services. We will enter the other department data for you on the same batch. You will then be able to print an edit showing a complete payment for all funds. You will be responsible for obtaining the proper signatures required on your batch I Exhibit E edit for all funds being used before turning the batch into Financial f Services. The goal is to produce one warrant showing a complete payment for that credit card, regardless of the fund using the card. For the data in the Invoice cell, please enter the following: Invoice cc#9s9s JuLY 2017 .This is the last four digits of the credit - card, the month and year. If you only use the last four digits and the month, next year you will receive a duplicate entry warning when you attempt to pay. Under no circumstances should you put in your full credit card number either in this field or the description field. In the Description cell, you may put as much as you can. Normally the place of purchase works well. You have limited space. If you are using a PO you have a great deal of space to capture detail for each purchase. DO NOT untick the Separate Check box. This is set in the vendor master default file. US Bank does not want multiple payments from different cards on the some warrant. n separate check Keep it like this. If you have a grant expenditure please remember to check the PA applied box. ✓ P,4 applied..] Please do not tick the Include Documentation box. I_] Include documentation This causes the warrant to print out of order. Attach your statement and credit card detail to a blank piece of paper with the Munis Top of Form imprint on the top. Attach your receipts, invoices and-back up documentation in the some order as noted on your credit card statement. Staple these together. Paperclip the remit coupon, with the amount filled in, to the back of this entire stack. Print your batch edit and have it signed. Place the batch in the green voucher box in Financial Services. CREDIT CARD TRANSACTION LOG All Auditor credit card purchases must be noted on the transaction log. When the credit card statement arrives, please enter your purchases in Munis and send to Financial Services. Your voucher must include the actual credit card statement and original remit coupon,all purchases and detailed original receipts/invoices and this transaction log. The transaction log must be signed by an authorized signer for the funds being used and included with your voucher. DATE DATE DATE EMPLOYEE USING CARD VENDOR NAME AMOUNT RETURNED VOUCHERED All purchases noted above have been authorized by the Auditor's department. All purchases are for official County use. All purchases have an original invoice or an emailed invoice attached. DATE AUTHORIZED SIGNATURE PLEASE ATTACH THIS TRANSACTION LOG TO YOUR CREDIT CARD VOUCHER Exhibit F TRAVEL POLICY Mason County recognizes that out of town travel and related business expenses can be an integral and necessary component of the operation of local government. This policy is intended to establish equitable standards and to provide consistent and fair treatment to all employees who incur such expenses. It is also intended to establish and maintain effective controls over those expenses. County officials (department heads and elected officials) and County employees are expected to exercise prudent judgment when incurring travel expenses on behalf of the County doing official County business. The failure of employees to follow this policy, or incur excessive expenses, may be cause for disciplinary action. Non business related expenses and/or expenses not made in accordance with this policy will not be approved or reimbursed. All travel and associated expenses must be approved in advance by the department head or elected official.. Employees will be reimbursed for reasonable and customary expenses actually incurred in connection with doing business on behalf of the County. These may include: meals, lodging, transportation and other necessary expenses while away from the office. These expenses may not include: alcoholic beverages; tobacco;tips exceeding 15%; meals, lodging or transportation provided for the employee by an outside entity as part of the employees participation;any expenses for a person(s)traveling with the employee; any expenses incurred that are not in connection with the business of the County Alt requests for payment of travel must be submitted to the Auditor's Financial Services department on forms approved and provided by the Auditor. All required documentation must also be submitted on the approved travel document form. Required travel documents include all itemized receipts, conference/seminar agendas, and all proof of costs incurred while doing business on behalf of the County. Travel documents should be presented to the Auditor's Financial Services department in the month the charges occur. If an employee chooses to travel to a destination in advance of the necessary time for arrival, or remain at the destination following the official closing of the event, there will be no additional per diem, lodging or miscellaneous expenses paid to the employee. All requests for payment must be signed by the department head or elected official and the employee that is requesting reimbursement. An employee may not request reimbursement on behalf of another employee. If an employee is compensated by an outside entity for any travel costs while traveling on behalf of Mason County,the employee will deposit those funds with the Mason County Treasurer. The employee will provide the Auditor's Financial Services department with a copy of the Treasurer's deposit receipt and a detail of the expenses covered. Any member of a board, committee or commission that is not a Mason County employee, but is an appointed member to do business on behalf of Mason County is subject to all travel rules and documentation noted herein. Exhibit F PER DIEM (meal reimbursement) All requested meal reimbursement must have a detailed receipt. Meals will be reimbursed, rninus any alcohol or a tip exceeding 15%, using the Washington State Office of Financial Management (OFM) per diem rates and,for out of state travel, the U.S. General Services Administration (GSA) per diem rates. Tile meals will be reimbursed up to the allowable rate for the area and meal on those rate maps. -Per diem will be reduced for any meals provided through conference registration,'seminars or similar events. Reimbursement will not be made if the employee chooses not to eat the meal provided and eats elsewhere. I Single Day Per Diem (meat reimbursement): Single day per diem occurs when no overnight stay is required. Single day meat reimbursements are considered to be taxable wages according to the IRS and will be included as gross taxable income of the employee. An employee must use the single day per diem form and include it with their payroll timesheet information. The department supervisor will forward the per diem form to the Auditor's Financial Services department. The meal will be added to their taxable gross wages and taxed accordingly. Per Diem (meat reimbursement) while in overnight travel status If an overnight stay is required, per diem will be based on either OFM (in state) or GSA (out of state) rates for each day the employee is in full travel status. The per diem rate will be based on the location the employee is in for that meal. On days of departure and return an employee will apply the Three Hour Rule (see rule below). Three Hour Rule forger diem (meal reimbursement): If an employee is in travel status for three hours beyond their regular work schedule for a single day,they may receive meat reirnbursement. The three hours may consist of hours occurring before, after or a combination of both before and after the employee's regular work schedule for the day. The employee may not stop for a mealjust to meet the three hour rule. Special Circumstances: During emergency situations such as, but not limited to, initial crime scene investigations, major crimes, emergency weather situation, natural disasters,etc,when employees are working extended hours and stopping for a meal break could worsen the emergency or increase costs to the County, departments may provide an on-scene meal of nominal cost. A detailed receipt, including names of all employees/volunteers involved, must be provided. All receipts and pertinent information involving the emergency situation must be included on the claim for payment voucher submitted to the Auditor's Financial Services department. An employee may not claim a per diem meal reimbursement if their County department is also submitting a claim for payment voucher for the same incident. LODGING All lodging is to be reserved using a government, or most economical, rate whenever possible. County credit cards may be used to secure lodging for a County employee. Exhibit F Reimbursement for lodging is allowed when the temporary duty station is located more than fifty (50) miles, using the most direct route;of the closer of either the traveler's official residence or official work station. Reimbursement will be made for the actual lodging expense and any applicable taxes. If there are additional charges for a person(s) traveling with the employee,who is not traveling on behalf of County business, the employee is responsible for all charges for that additional person(s)and it will not be reimbursed. An itemized statement is required for ail charges. If an employee shares an accommodation with another employee or an employee of another entity who is attending the same event, an equal share of the double room rate will be paid on behalf of the Mason County employee. Each employee must submit an original invoice showing the lodging charge for their portion of the room rate. Not eligible for reimbursement on a lodging receipt are, but not limited to: laundry services; valet service; entertainment expenses; athletic room (gym) charges, internet charges (unless required by their supervisor). TRANSPORTATION Any employee driving a vehicle (either County car or personal vehicle) must have and must be able to provide proof of valid car insurance. Employees are encouraged to reserve and use a pool car from ER&R as much as possible. All county vehicles shall be used in accordance with Mason County ER&R use policy. If a personal vehicle is used, the mileage will be based on the current IRS standard POV rate. Mileage will be prohibited for normal travel between the usual place of business and employee's main place of residence. When traveling on behalf of the County, mileage will be paid from either the official work station or the employee's main residence,whichever is the closer and most direct route of the two,to the travel destination. Mileage shall not exceed what the sum of a round trip coach airfare from a common carrier, any needed local ground transportation and other related costs for that destination. Airfare (coach rate), car rentals,trains, ferry, tolls, shuttle/taxi, etc will be reimbursed with a receipt and paid at actual costs. Personal travel insurance will not be reimbursed. Tickets purchased with an employee's individual frequent flyer miles wit[not be reimbursed. References: IRS, OFM SAAM rules, SAO BARS manual, County resolutions:#37-07 –-07 MASON COUNTY AGENDA ITEM SUMMARY FORM TO: BOARD OF MASON COUNTY COMMISSIONERS From: Mike Collins, PE, PLS, Deputy Director/County Engineer Action Agenda DEPARTMENT: Public Works EXT: 450 COMMISSION MEETING DATE: July 14, 2020 Agenda Item # BRIEFING DATE: July 6, 2020 BRIEFING PRESENTED BY: Loretta Swanson and Mike Collins [] ITEM WAS NOT PREVIOUSLY BRIEFED WITH THE BOARD Please provide explanation of urgency: ITEM: Private Line Occupancy Permit BACKGROUND: John Drake of the Drake Trustees have applied for a Private Line Occupancy Permit to install a new underground waterline and power that will replace their existing waterline that was installed in the 1960's. The property is located at 11451 North Shore Rd. (parcel number 32224-50-00104). The permit will cover the new water line and power that will run under North Shore Road. (see attached map). RECOMMENDED ACTION: Recommend the Board approve the Private Line Occupancy Permit granting permission to run the utility lines under and across North Shore Road for 11451 North Shore Road, parcel number 32224-50-00104. Attachments: 1. PLO 2. Vicinity Map IN THE MATTER OF THE APPLICATION OF JOHN M. DRAKE FOR A PRIVATE LINE UTILITY OCCUPANCY PERMIT TO CONSTRUCT, OPERATE,AND MAINTAIN A WATER AND ELECTRIC LINE ALONG AND UNDER NORTH SHORE ROAD, A COUNTY MAINTAINED ROAD LOCATED IN MASON COUNTY,WASHINGTON Application of JOHN M. DRAKE, with principal residence located at 11451 NE North Shore Road Belfair, WA 98528, for a private line utility occupancy permit to construct, operate and maintain a private waterline under county roads and highways in Mason County, Washington, as set forth in attached Exhibit"A",having come before the County Commissioners of Mason County,Washington during a regularly scheduled public meeting,on the_day of , 2020,and that it is in the public interest to allow the private line utility occupancy permit herein granted; NOW THEREFORE, IT IS ORDERED that a non-exclusive private line utility occupancy permit be,and the same is hereby given and granted to operator,and its successors and assigns, hereinafter referred to as the "Permittee", for a period commencing 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, and terminating as provided herein. I. DEFINITIONS For the purposes of this private line utility occupancy permit, 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(hereafter the"County")hereby grants to the Permittee a non-exclusive private line utility occupancy permit(hereinafter"Permit") which,once it becomes effective shall authorize the Permittee to enter upon the road rights-of-way located within the Permit Area for the purpose of maintaining,repairing,replacing, which grant shall be limited to the following described purpose(s): Provide water and electric a well between parcels 32224-50- 00104 and 32224-50-00077 . 1 Such grant is subject to and must be exercised in strict accordance with and subject to this Permit, Title 12 of the Mason County Code, the Manual and all applicable laws, rules, regulations and ordinances. Permittee's exercise of any rights granted pursuant to the Permit 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 Permittee by implication. This Permit 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 as (a)private line(s)or the impact of the utility facilities upon the road rights-of-way. III. UTILITY PERMIT REQUIRED Permittee shall not commence or perform work to install, construct, maintain repair, replace adjust, connect, disconnect, rebuild, or relocate its utility facilities within the road rights-of- way (hereafter collectively or individually the "Work"), 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. Permittee shall first file with the County Engineer its application for a utility permit to do such Work together with plans and specifications 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; 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 2 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 Permittee. All such Work shall be subject to the approval of and shall pass the inspection of the County Engineer. The Permittee 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 Permit, public or private property,the Permittee 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 Permittee 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 Permittee or its agents in a condition dangerous to life or property, and the Permittee,upon demand,shall pay to the County all costs of such work. V. PERMITTEE WORK IN RIGHT OF WAY Permittee expressly agrees and understands that,with regard to Work within the road rights-of- way: A. All of Permittee's utility facilities and Work within the road rights-of-way or other County property shall be performed 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 the Work the Permittee shall use the Manual. Prior to commencement of any Work, Permittee shall submit such plans and specifications to the County Engineer for review and approval together with the adequate exhibit depicting the existing or proposed location of the utility facility in relation to the road, 3 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 subject to this Permit 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 Permit Area or other county property prior in time to the utility facilities of the Permittee,shall have preference as to the alignment and location of such utilities so installed with respect to the Permittee. 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. Permittee 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 Permittee'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 or road right-of-way;may deny access if a Permittee 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 Permittee for all the costs associated with removal; and may require Permittee to cooperate with others to minimize adverse impacts on the road and 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 Permit and applicable law, including to ensure that the private line 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 perinitted under applicable law, may order the Permittee, 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 Licensee fails to do so, and to charge the Permttee therefor. 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 Permittee. 4 H. When required by the County, Permittee 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. PERMITTEE 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, Permittee 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 and road rights-of-way. In addition to the liability terms elsewhere in this Agreement, Permittee 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 Permittee, 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 Permittee,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). J. Permittee 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, Permittee and its agents may not enter upon the permit area to perform work for which a utility permit is 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,Permittee and its agents may enter the Permit 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,Permittee 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. Permittee shall promptly reimburse the County for its 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 Permittee's utility facilities in the road rights- of-way. 5 N. If, during any Work, Permittee or its agents discover scientific or historic artifacts, Permittee or its agents 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 Permit shall be done in a thorough and workman-like manner. In the performance of any Work, including without limitation, the opening of trenches and the tunneling under county roads, right-of way or other county property, the Permittee 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 Permittee shall place warning lights,barricades and other appropriate protective devices at such a position as to give adequate warning of such Work. The Permittee 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 Permittee. VII. POLICE POWERS The County,in granting this Permit,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 Permit 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,right-of-way and other county property covered by this Permit. The County retains the right to administer and regulate activities of the Permittee 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 Permittee. VIII. RELOCATION Permittee shall, in the course of any Work, comply with the following requirements: A. The Permittee 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, 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." 6 Permittee acknowledges and understands that any delay by Permittee in performing the above 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. Permittee shall cooperate with the County and its contractors and subcontractors to coordinate such Permittee work to accommodate the Public Work project and project schedules to avoid delay, hindrance of, or interference with the Public Work. The County shall make available to the Permittee 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 Permittee in planning construction programs. B. Permittee 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 Permittee herein do not preclude the County, its employees, contractors, subcontractors, and agents from blasting, grading, excavating, or doing other necessary road work contiguous to Permittee's utility facilities; providing that, the Permittee shall be given a minimum of forty-eight (48) hours notice of said blasting or other work in order that the Permittee 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 Permittee for costs incurred. D. If any Person that is authorized to place facilities in the road right of way requests the Permittee to protect, support, temporarily disconnect, remove, or relocate the Permittee's utility facilities to accommodate the construction, operation, or repair of the facilities of such other person,the Permittee 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 Permittee's service, or if the effect of such changes would be to permanently deprive Permittee of the beneficial enjoyment of this Permit for its intended purposes through interference with the operation of Permittee's utility facilities or otherwise, Permittee 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 Permittee'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 Permittee 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. 7 The County of Mason will accept liability for direct and actual damages to said Permittee 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 Section VIII,paragraph B. Direct and actual damages are specifically limited to physical damage to properly installed and located infrastructure of the Permittee 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 Permittee. Mason County shall in no way be liable for incidental damages claimed to arise from such actions. All Work to be performed by the Permittee under this section shall pass the inspection of the County Engineer. The Permittee 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 permit which may affect any existing monuments or markers of any nature relating to subdivisions,plats,roads and all other surveys,the Permittee shall reference all such monuments and markers. The reference points shall be so located that they will not be disturbed during the Permittee's Work and operations under this Permit. 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 in accordance with RCW 58.24 and WAC 332-120, 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 Permittee. 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 or right-of-way or other County Property which is subject to rights granted by this Permit and said vacation shall be for the purpose of acquiring the fee or other property interest in said road or right-of-way for the use of the 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 Permittee, terminate this Permit 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 Permittee 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 It is intended that the following insurance requirements shall apply to the person performing the Work in the road right-of-way. Permittee and Permittee's contractors shall not perform or cause to be performed any Work,unless and until Permittee(to the extent Permittee performs any of the Work in the road right-of-way) or its contractors (to the extent Permittee's contractor performs any of the Work in the road right-of-way) provide certificates of insurance evidencing that Permittee or Permittee's contractors are in compliance with the following requirements,including, maintaining insurance in 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 Permit 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 arising out of the Work. 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 by Permittee's contractor to comply with statutory limits for all employees,and in the case any work is sublet, the contractor shall require its subcontractors similarly to provide workers' compensation insurance for all the employees. 3. COMPREHENSIVE AUTO LIABILITY insurance shall include owned, hired, and non-owned vehicles on an occurrence basis with coverage of at least $500,000 per occurrence. The required insurance shall be maintained from the time that Work in the road right-of-way commences until the Work is complete and the utility permit issued for said Work has been released by the County Engineer, or his or her designee. If the Permittee or its contractors and subcontractors do not have the required insurance, the County may require such entities to stop operations until the insurance is obtained and approved. Permittee shall, or shall cause its contractors to, file with the application for a utility permit, certificates of insurance reflecting evidence of the required insurance in a form and content approved by the County's Risk Manager. All coverage shall be listed on one certificate with the same expiration dates. 9 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 Work, then, in that event, the Permittee 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 Permit. The County reserves the right, during the term of the Permit, 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 Permit 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 Permit 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, Permittee shall give or shall cause its contractors to 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 Permit 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 Permit 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 Pen-nit shall name the County as an additional insured without limitation,pursuant to an endorsement approved of by the County's Risk Manager or designee. Permittee or Permittee'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. 10 B. Contractor Bond. All contractors performing Work on behalf of Permittee shall be licensed and bonded. C. Limitation of Liability- to the fullest extent permitted by law, permittee shall, and shall cause its contractor(s) only as to subsection(9)below,to release, indemnify, defend and hold harmless the county and the county's legal representatives,officers(elected or appointed), employees and agents (collectively, "indemnitees") for, from and against any and all claims, liabilities, fines, penalties, costs, damages, losses, liens, causes of action, suits, demands, judgments and expenses (including, without limitation, 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 permit; 2. any rights or interests granted pursuant to this permit; 3. permittee's occupation and use of the road right of way; 4. permittee'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 permittee 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 permittee or permittee's agents;or 9. any act or omission of contractor or its employees, agents, or subcontractors when arising out of the work. Even if such liabilities arise from or are attributed to,in whole or in part,any negligence of any indemnitee. The only liabilities with respect to which permittee's obligation to indemnify the indemnitees does not apply are liabilities to the extent proximately caused by the sole negligence or intentional misconduct of an indemnitee or for liabilities that by law the indemniteees cannot be indemnified for. 11 Upon written notice from the county, permittee 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 permit for which permittee has an obligation to assume liability for and/or save and hold harmless any indemnitee. Permittee shall pay all costs 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. Permittee 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 permittee's failure to satisfy said judgment within the ninety(90) day period,this permit shall at once cease and terminate and the county of mason shall have a lien upon permittee's utility facilities and all other facilities used in the construction, operation and maintenance of the pernuttee's utility system which may be enforced against the property for the full amount of any such judgment so taken against any of the indemnitees Acceptance by the County of any Work performed by the Penn ittee at the time of completion shall not be grounds for avoidance of this covenant. XH. PERMIT NONEXCLUSIVE This Permit shall not be deemed to be an exclusive Permit. It shall in no manner prohibit the County of Mason from granting rights to other utilities under,along,across,over and upon any of the County roads, rights-of-way or other County property subject to this Permit 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 All the provisions, conditions, regulations and requirements herein contained shall be binding upon the successors and assigns of the Permittee and all privileges, as well as all obligations and liability of the Permittee, shall inure to its successors and assigns equally as if they were specifically mentioned wherever the Permittee is mentioned. Any reference in this Permit 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 Permit or under law. XIV. TRANSFERIASSIGNMENT Permittee may assign or transfer this Permit by contacting the County of Mason to obtain an Assignment Agreement. The Agreement must be signed and delivered back to the County of Mason. Assignees shall thereafter be responsible for all obligations of Permittee with respect to the Permit and guaranteeing performance under the terms and conditions of the Permit and that transferee will be bound by all the conditions of the Permit and will assume all the obligations of its predecessor. Such an assignment shall relieve the Permittee of any further 12 obligations under the Permit, including any obligations not fulfilled by Permittee's assignee; provided that, the assignment shall not in any respect relieve the Permittee, 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 Permit may be assigned or transferred without filing or establishing with the county the insurance certificates, security fund and performance bond as may be required pursuant to this Permit. XV. ANNEXATION Whenever any of the County road rights-of-way or other county property as designated in this Permit,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; then,except to the extent allowed by law, this Permit shall terminate in respect to the said roads, rights-of-way or other county property so included with city or town limits;but this Permit shall continue in force and effect to all county road rights-of-way or other county property not so included in city or town limits. XVI. TERM/TERMINATION/REMEDIES A. Term. This Permit shall commence upon acceptance by the Permittee as provided at Section XVIII herein and continue in PERPETUITY until terminated or otherwise superseded by a subsequent franchise, private line utility occupancy permit, master road use permit or other agreement of the Parties. In the event that it is determined by a court of competent jurisdiction that, as a matter or law, the term provided for herein is unlawful, this Permit shall be deemed to have a term for the maximum period allowed by law, and if no such maximum period is readily and easily capable of being identified, for a term of no longer than fifty(50) years. B. Termination by County. Permittee has elected to obtain a Permit in lieu of a franchise agreement. Pennittee understands and agrees that,unlike a franchise,this Permit may be terminated by the County with or without cause. This means that the County is not required to have or provide a reason for the termination and that the County may terminate this Permit in its sole discretion without penalty to the County and regardless of whether or not Permittee is or is not in default;provided that,the County may not terminate this Permit for a reason that is unlawful. The Parties agree that the only condition of termination by the County of this Permit is that the County must give not less than ninety(90)days written notice to the Permittee of termination. The County Engineer is authorized to exercise the right of the County to terminate this Permit. C. Termination upon Transfer/Assignment/Conveyance. This Permit shall automatically terminate upon: (1)assignment of the Permit without the prior written consent of the County in substantially the form of an Assignment Agreement(obtained by request), (2)transfer of the utility facilities located with the Permit Area without prior written notice to the County and mutual acceptance of an assignment of the Permit, (3)conveyance of the real property or any part thereof benefited by the installation and operation of the utility facilities without 13 prior written notice to the County and mutual acceptance of an assignment of the Permit, or (4) use of the utility facilities for the benefit of persons other than the owner/operator in a manner that no longer constitutes a de-minimis use of the road right-of-way. D. Termination upon Removal of Utility Facilities. This Permit and all of the rights, duties and obligations contained herein, shall terminate upon removal of all Permittee utility facilities from the road right-of-way or abandonment and de-commissioning in place to the reasonable satisfaction of and in the manner approved by the County Engineer and restoration of the road right-of way to the satisfaction of the County Engineer. E. Effect of Termination. On or before the effective date of termination or as otherwise mutually agreed to by the Parties, Permittee shall remove its utility facilities from the road rights-of-way and restore the road rights-of-way to the reasonable satisfaction of the County Engineer. In lieu of removal, the County Engineer may authorize abandonment in place and de-commissioning of the utility facilities in the manner approved by and to the reasonable satisfaction of the County Engineer. In the event that the Permittee fails to timely and completely perform such work, the County may perform or complete such work at the cost of the Permittee and Permittee shall be obligated to reimburse the County for such work within 30 days of invoice by the County. F. Remedies. In addition to the right of the County to terminate this Permit,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 Permittee or its agents to keep, observe or perform any of Permittee's or its agent's duties or obligations under this Permit: 1. Damages. Permittee 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 Permittee under this Permit without any requirement to prove or establish that County does not have an adequate remedy at law. Permittee hereby waives the requirement of any such proof and acknowledges that County would not have an adequate remedy at law for Permittee'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 Permit agreement without, in either case, being required to prove or establish that County does not have an adequate remedy at law. Permittee hereby waives the requirement of any such proof and acknowledges that County would not have an adequate remedy at law for Permittee's commission of an Event of Default hereunder. 4. Alternative Remedies. Neither the existence of other remedies identified in this Permit 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 Permittee 14 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. XVH. SUBSEQUENT ACTION The County reserves for itself the right at any time upon ninety (90) days written notice to the Permittee, 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. XVIII. ACCEPTANCE Permittee shall execute and return to County a signed acceptance of the Permit granted hereunder. The acceptance shall be in the form of the acceptance attached hereto as Exhibit "A", and in accepting the Permit, Permittee warrants that it has carefully read the terms and conditions of this Permit and accepts all of the terms and conditions of this Permit 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 or an opportunity to have assistance of counsel, that it was not induced to accept a Permit, that this Permit represents the entire agreement between the Permittee and the County. In the event the Permittee fails to submit the 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. RECORDING OF MEMORANDUM OF PERMIT The Parties agree that a"Memorandum of Permit" in substantially the form attached hereto as Exhibit"A",shall be filed for record with the Office of the Mason County Auditor upon written acceptance by the Permittee. The cost and expense of such filing shall be borne by the Permittee if not already included in the fee for issuance of this Permit. Notwithstanding the foregoing, this Permit is not intended nor shall it be construed to create an interest in land or constitute the grant or conveyance of a real property interest by the County to the Permittee. The requirements of this Section XIX are intended solely to provide notice of the existence of this Permit and the terms and conditions there under, including inter-alia, the limitations upon assignment of the Permit. Permittee shall at the time of its acceptance of this Permit identify the assessor's tax identification number of the parcel or parcels benefited by this Permit and a legal description of each such parcel to be included in the Memorandum of Permit. XX. MISCELLANEOUS PROVISIONS A. Controlling Law/Venue. Any disputes concerning the application or interpretation of any of the provisions of this Permit shall be governed by the laws of the State of Washington. Venue of any action or arbitration brought under this Permit shall be in Mason County, 15 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. Perinittee shall promptly pay and discharge any and all liens arising out of any Work done, suffered or permitted to be done by Permittee on any Permit area. C. Waiver. No waiver by either party of any provision of this Permit shall in any way impair the right of such party to enforce that provision for any subsequent breach, or either parry's right to enforce all other provisions of this Permit. D. Attorney's Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Permit, 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 Permit may be amended only by a written contract signed by authorized representatives of Permittee and County of Mason. F. Severability. If any provision of this Permit is held to be illegal, invalid or unenforceable under present or future laws, such provision will be fully severable and this Permit 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 Permit, 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. Permittee acknowledges that, in any case in which Permittee and Permittee's contractors are responsible under the terms of this Permit, such responsibility is joint and several as between Permittee and any such Permittee's contractors; provided that, the Permittee 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 Permit 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 no less than thirty (30)days'advance written notice of such change in address. Permittee: John M. Drake 12323 42❑d Drive SE Road Everett, WA 98208 Grantor: Mason County Public Works 100 W Public Works Drive Shelton, WA 98584 16 I. Approvals. Nothing in this Permit shall be deemed to impose any duty or obligation upon the County to determine the adequacy or sufficiency of Permittee's plans and specifications or to ascertain whether Permittee's proposed or actual construction, installation, testing, maintenance, repairs, replacement, relocation, adjustment or removal is adequate or sufficient or in conformance with the plans and specifications reviewed by the County. No approval given, inspection made, review or supervision performed by the County pursuant to this Permit shall constitute or be construed as a representation or warranty express or implied by County that such item approved, inspected, or supervised, complies with laws, rules regulations or ordinances or this Permit 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's rights as the owner and 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 permit area for construction, maintenance, or repair of the utility facilities, or any obligation on the part of the County to insure that work or materials are in compliance with any requirements imposed by a governmental entity. County 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 Permit 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 Permit. L. Incorporation by Reference. All exhibits annexed hereto at the time of execution of this Permit 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. 17 N. Entire Agreement. This Permit is the full and complete agreement of County and Permittee with respect to all matters covered herein and all matters related to the use of the Permit Area by Permittee and Permittee's Contractors, and this Permit supersedes any and all other agreements of the Parties hereto with respect to all such matters, including,without limitation, all agreements evidencing the Permit. O. No Recourse. Without limiting such immunities as the County or other persons may have under applicable law, Permittee 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 Permit or other applicable law. P. Responsibility for Costs. Except as expressly provided otherwise, any act that Permittee is required to perform under this Permit shall be performed at its cost. If Permittee 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 Permittee. The Permittee shall pay the amounts billed within 30 days. Q. Work of Contractors and Subcontractors. Work by contractors and subcontractors are subject to the same restrictions, limitations, and conditions as if the Work was performed by the Permittee. The Permittee 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 Permit, 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 Permittee's responsibility to ensure that contractors, subcontractors, or other Persons performing work on the Permittee's behalf are familiar with the requirements of the Permit,Title 12 MCC,the Manual,and other applicable laws governing the work performed by them and further, for ensuring that such contractors and subcontractors maintain insurance as required herein. R. Survival of Terms. Upon the termination of the Permit,the Permittee shall no longer have the right to occupy the Permit area. However, the Permittee's obligations under this Permit to the County shall survive the termination of these rights according to its terms for so long as the Permittee's utility facilities shall remain in whole or in part in the road rights-of- way,except to the extent the County Engineer has approved abandonment in place. By way of illustration and not limitation, Permittee's obligations to indemnify, defend and hold harmless the County, provide insurance and a performance/payment bond pursuant to Section XI and Permittee's obligation to relocate its utility facilities pursuant to Section VIII, shall continue in effect as to the Permittee, notwithstanding any termination of the Permit, 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 facilities or for the relevant acts or omissions. 18 DATED at Shelton,Washington this day of 22020. APPROVED: BOARD OF COMMISSIONERS MASON COUNTY,WASHINGTON C my Engine Chair Approved as to form: Vice Chair Chief D.P.A. Commissioner 19 RECORDED AT THE REQUEST OF AND AFTER RECORDING RETURN TO: County of Mason 100 West Public Works Drive Shelton WA 98584 Attn: County Engineer EXHIBIT"A" MEMORANDUM OF PERMIT Title: John M.Drake Private Line Occupancy Permit Grantor: COUNTY OF MASON, a legal subdivision of the state of Washington Grantee: John M.Drake Description of Franchise Area: SEE EXHIBIT A-3 A EXHIBIT "A" ACCEPTANCE OF PERMIT Private Line Utility Occupancy Permit effective , 2tD19. D _ U 0 DtI/We�, /ourthe � ofparcel(s)duw� 3 yl-1j S ti •— 0 0-b `7 2 and I/we am/are the (Operator and) or(representative authorized to) accept Permit on behalf of TD in r,• b4_--Q I/we certify that this Permit and all terms and conditions thereof are accepted by S if without qualification or reservation and guarantee performance hereunder. I/We certify that,to the best of my/our knowledge, the assessor's tax identification number of the parcel or parcels benefited by this Permit and a legal description of each such parcel are as described in the attached under Permit Exhibit "'B". DATED thisday of PERMI TEE(S) 4l Yr, �.A-4 tQ Title: Y�-✓ STATE OF_�i " �^`'�^`�� � ) COUNTY OF q'^"Vn 01 u SIB ) I certify that I know or have satisfactory evidence that -O4" is the person who appeared before me, and said person acknowledged that he/she signed this instrument,on oath stated that he/she was authorize to exe to the instrument and acknowledged it as the 742L✓"(- of the 'r^ ^ to be the free and voluntary act of such party for the uses and purp9ses n4britione/I in the instrument. Dated: Lb/22- wt2 ngh.. 10 Notary Public o° NOTARY��N': Print Name i - My commission expires - • r — PUBLIC A- 1 MEMORANDUM OF PRIVATE LINE UTILITY OCCUPANCY PERMIT THIS MEMORANDUM OF PERMIT is dated as of the_day of ,2020 between the County of Mason,a legal subdivision of the state of Washington("County")and John M. Drake(Permittee"). 1. PropeLly. County has, pursuant to Private Line Utility Occupancy Permit granted to Permittee, the right, revocable at the will of the County, to use and occupy certain road rights-of-way for the construction,installation,adjustment,maintenance,removal,repair, relocation and operation of Permittee's utility facilities for the benefit of the herein described Property, upon the terms and conditions of that certain permit agreement between the parties accepted the day of ,2020 (the"Permit"),which terms and conditions are incorporated herein by this reference. The property to be benefited by this permit is situated in the Mason County, Washington, legally described in Exhibit A attached hereto (herein called the"Property"). The road right-of-way permit area("Permit Area")is also described in attached Exhibit A. 2. Term. The term of the Permit is in perpetuity unless terminated. 3. Termination. County in its sole discretion may terminate all or part of the Permit with or without cause upon no less than ninety (90) days written notice to the Permittee. Further, this Permit will automatically terminate upon assignment without the prior written consent of the County, or upon transfer of the Property without the prior written consent of the County to an assignment of the Permit or upon transfer of all or part of the utility facilities located in the Permit Area without the prior written consent of the County to an assignment of the Permit. 4. Purpose of Memorandum of Permit. This memorandum of permit is prepared for the purpose of recordation and notice and in no way modifies the Permit and is in no way intended to or should be construed to create or convey an interest in land or the road right-of- way. DATED this day of 12020 ;ZCOTYOFMASON , ounty Engine _ Approved as to form: Chief D.P.A. A-2 FORM OF MEMORANDUM Permit Area Map - ��� �I i �, i�.'U ,-� -^�r�!�-"'fit'� ir��•.1� ;y . I Private Occupancy Vicinity Map: Drake's Private Line Occupancy 11451 NE North Shore Rd. t r i i off/ rah rr?o o� 32224500 2245000 4 as � Qo -� rr 30 Legend / County Mileposts Parcel , N N w" 1 0 50 100 200 300 s Feet ©OpenStreetMap(and) contributors.CC-BY-SA MASON COUNTY AGENDA ITEM SUMMARY FORM TO: BOARD OF MASON COUNTY COMMISSIONERS From: Mike Collins, PE, PLS, Deputy Director/County Engineer Action Agenda DEPARTMENT: Public Works EXT: 450 COMMISSION MEETING DATE: July 14, 2020 Agenda Item # BRIEFING DATE: July 6, 2020 BRIEFING PRESENTED BY: Loretta Swanson and Mike Collins [] ITEM WAS NOT PREVIOUSLY BRIEFED WITH THE BOARD Please provide explanation of urgency: ITEM: Execute Agreements with Washington State Association of Counties and Contract Services to Continue Culvert Inventory BACKGROUND: The Washington State Association of Counties (WSAC) has made available, $40,878 for Mason County to complete fish passage culvert assessments within Mason County road rights-of-way. The assessments and inventory began in 2017 under a similar agreement but funding was insufficient to complete the work. Public Works previously contracted with Mason Conservation District (MCD) to conduct the assessments in 2017 and has contacted MCD and Hood Canal Salmon Enhancement Group to gage interest and availability to assist with the remaining assessments and inventory. Adequate resources are available to perform the work and we anticipate separate agreements for that purpose. BUDGET IMPACTS: The WSAC grant of $40,878 will be the sole source of funding and will cover all expenditures. Mason County has no match requirement. The Scope of Work and budget are included Exhibit B of the draft agreement (attached). RECOMMENDED ACTION: Recommend the Board authorize Public Works County Engineer to execute the agreement with WSAC for the purpose of conducting fish passage assessments within Mason County road rights-of-way and to develop and execute agreements with Mason Conservation District and Hood Canal Salmon Enhancement Group necessary to complete the scope of work. ATTACHMENTS: 1. Agreement 2. Grant Questionnaire Briefing Summary CONTRACT for SERVICES between WASHINGTON STATE ASSOCIATION OF COUNTIES and Mason County This Contract is made and entered into by and between the Washington State Association of Counties(WSAC), hereinafter referred to as the"ASSOCIATION," and Mason County hereinafter referred to as the "CONTRACTOR,"the express purpose set forth in the following provisions of this Contract. PURPOSE To conduct an inventory of fish-bearing stream culvert crossings in public right-of-ways along county roads that were not surveyed during an inventory conducted by the County and Mason Conservation District in 2017. The parties mutually agree to the terms, conditions and covenants described below, attached, or incorporated by reference as follows: TERMS 1. Description of Work. The CONTRACTOR shall perform work as described in Exhibit B, "Scope of Work," which is attached hereto and incorporated herein by this reference, according to the existing standard of care for such services. CONTRACTOR shall not perform any additional services without the expressed permission of the ASSOCIATION. 2. Payment. A. The ASSOCIATION shall pay CONTRACTOR for actual expenses related to this project and according to the attached budget through June 30,2021. The ASSSOCIATION shall pay a total contract value not to exceed forty thousand eight hundred and seventy eight dollars ($40,878)for the services described in this Contract and Exhibits contained herein. This is the maximum amount to be paid under this Agreement, and shall not be exceeded without prior written authorization from the ASSOCIATION in the form of a negotiated and executed supplemental agreement. a. The CONTRACTOR shall receive$40,878 for services as described in the Scope of Work. Reimbursement shall be made upon successful progress and completion of work to meet the deliverables and tasks detailed. B. The ASSOCIATION shall pay CONTRACTOR upon receipt of properly completed invoices,which shall be submitted to the ASSOCIATION not more often than monthly. If expenses are invoiced,the CONTRACTOR must provide a detailed breakdown of authorized expenses identifying this project, according to the instructions set forth in Exhibit C, "Invoicing Instructions." The ASSOCIATION may, in its sole discretion,terminate the Contract or withhold payments claimed by the CONTRACTOR for services rendered or expenses claimed if the CONTRACTOR fails to satisfactorily comply with any term or condition of the contract. The ASSOCIATION shall make no payments in advance or in anticipation of services or supplies to be provided under this contract. 3. Duration of Work. The period of performance under this contract will be from July 1, 2020 through June 30, 2021. The contract may be extended by the mutual agreement of the parties. 4. Relationship of Parties. The parties intend that an independent contractor-client relationship will be created by this Contract. As CONTRACTOR is customarily engaged in an independently established profession which encompasses the specific service provided to the ASSOCIATION hereunder, no agent, employee, representative or subcontractor of CONTRACTOR shall be or shall be deemed to be the employee, agent, representative or subcontractor of the ASSOCIATION. None of the benefits provided by the ASSOCIATION to its employees, including, but not limited to, compensation, insurance and unemployment insurance, are available from the ASSOCIATION to the CONTRACTOR or his employees, agents, representatives or subcontractors. CONTRACTOR will be solely and entirely responsible for his acts, conduct and control of the work and for the acts, conduct and control of the work of CONTRACTOR's agents, employees, representatives and subcontractors during the performance of this Contract. The Washington State Association of Counties Page 1 of 2 CONTRACT for SERVICES between WASHINGTON STATE ASSOCIATION OF COUNTIES and Mason County ASSOCIATION may, during the term of this Contract, engage other independent contractors to perform the same or similar work that CONTRACTOR performs hereunder. 5. Termination. A. Termination Upon the ASSOCIATION'S Option. The ASSOCIATION shall have the option to terminate this Agreement at any time. Termination shall be effective upon thirty(30)days written notice to the CONTRACTOR. In the event funding from state, federal, or other sources is withdrawn, reduced, or limited in any way after the effective date of this Agreement and prior to normal completion, the ASSOCIATION may terminate the Agreement,without the 30 day notice requirement, subject to renegotiation on the ASSOCIATION'S discretion under those new funding limitations or conditions. B. Termination Upon Request of Contractor. The CONTRACTOR shall have the option to terminate this Agreement upon thirty (30)days written notice to the ASSOCIATION. CONTRACTOR is responsible for completion of services up to the termination date C. Rights Upon Termination. In the event of termination, the ASSOCIATION shall only be responsible to pay for all services satisfactorily performed by CONTRACTOR to the effective date of termination, as described in the final invoice to the ASSOCIATION. 6. Assignment. Any assignment of this Contract by CONTRACTOR without the written consent of the ASSOCIATION shall be void. 7. Non-Waiver of Breach. The failure of the ASSOCIATION to insist upon strict performance of any of the covenants and agreements contained herein, or to exercise any option herein conferred in one or more instances shall not be construed to be a waiver or relinquishment of said covenants, agreements or options, and the same shall be and remain in full force and effect. 8. All Writings Contained Herein. This Contract, Exhibit A, Exhibit B, and Exhibit C contain all the terms and conditions agreed upon by the parties. No other understandings, oral or otherwise, regarding the subject matter of this Contract shall be deemed to exist or to bind any of the parties hereto. IN WITNESS WHEREOF,the parties execute this Contract. Washington State Association of Counties(WSAC) Mason County By By Eric Johnson Mike Collins Executive Director Contractor Title County Engineer Date Date ASSOCIATION CONTACT: CONTRACTOR CONTACT: Eric Johnson Mason County 206 Tenth Av SE, Olympia, WA 98501-1333 411 N 5'h St Ste 1 Shelton, WA 98584 Phone: (360) 753-1886/Fax: (360) 753-2842 Phone: 360-427-9670 Email: eiohnson(cDwsac.org Email: eschwartz@co.mason.wa.us Approve as to Form Tim Whitehead, Ch. DPA Washington State Association of Counties Page 2 of 2 EXHIBIT A: General Terms and Conditions A. Assurances The ASSOCIATION and CONTRACTOR agree that all activity pursuant to this Contract shall be in accordance with all applicable federal, state and local laws, rules and regulations. B. CONTRACTOR Performance. Even though CONTRACTOR works as an independent contractor in the performance of his duties under this Agreement,the work must meet the approval of the ASSOCIATION and be subject to the ASSOCIATION's intervention and recommendation to secure the satisfactory completion thereof. In the performance of work under this Agreement, CONTRACTOR shall comply with all federal, state and municipal laws, ordinances, rules and regulations that are applicable to CONTRACTOR's business, equipment, and personnel engaged in operations covered by this Agreement or accruing out of the performance of such operations. In the event of the CONTRACTOR's noncompliance or refusal to comply with any law or policy, the ASSOCIATION may rescind, cancel, or terminate the Agreement in whole or in part. The CONTRACTOR is responsible for any and all costs or liability arising from the CONTRACTOR's failure to so comply with applicable law. C. Audit and Monitoring The CONTRACTOR shall cooperate with and freely participate in any auditing, monitoring or evaluation activities conducted by the ASSOCIATION that are pertinent to the intent of this contract. The ASSOCIATION or the State Auditor or Agency or any of their representatives shall have full access to and the right to examine during normal business hours and as often as the ASSOCIATION or the State Auditor may deem necessary, all of the CONTRACTOR's records with respect to all matters covered in this contract. Such representatives shall be permitted to audit, examine, and make excerpts or transcripts from such records and to make audits of all contracts, invoices, materials, payrolls, and records of matters covered by this contract. Such rights last for six(6)years from the date final payment is made hereunder. D. Recapture Provisions In the event that the CONTRACTOR fails to expend funds under this Agreement in accordance with state laws and/or the provisions of this contract,the ASSOCIATION reserves the right to recapture state funds in an amount equivalent to the extent of the noncompliance. Such right of recapture shall exist for a period not to exceed six years following contract termination or audit resolution,whichever is later. Repayment by the CONTRACTOR of funds under this recapture provision shall occur within 30 days of demand. In the event that the ASSOCIATION is required to institute legal proceedings to enforce the recapture provision,the ASSOCIATION shall be entitled to its costs thereof, including reasonable attorney's fees. E. Disputes Should any dispute, misunderstanding or conflict arise as to the terms and conditions contained in this Contract, the matter may be referred by either party to a mutually acceptable mediator. Both parties agree that this disputes process shall precede any action in a judicial or quasi-judicial tribunal. Cost of mediation shall be shared equally by the parties of the dispute. In the event of any litigation arising out of this Agreement,the prevailing party shall be reimbursed for its reasonable attorney fees from the other party. F. Indemnification The CONTRACTOR agrees to hold harmless, indemnify and defend the ASSOCIATION, its officers, officials, agents, employees and representatives from and against any and all claims, costs, judgments, losses, liability or suits including attorney's fees or awards for damage to property and/or for injuries, sickness or death of persons, including claims by CONTRACTOR's own employees to which CONTRACTOR might otherwise be immune under Title 51 RCW, arising out of or in connection with any willful misconduct of the CONTRACTORs, their officers, agents, subcontractors or employees, in connection with the services required by this Contract, provided, however that the Washington State Association of Counties Exhibit A Page 1 of 3 EXHIBIT A: General Terms and Conditions CONTRACTOR's obligations to indemnify, defend and hold harmless shall not extend to injuries, sickness, death or damage caused by or resulting from the sole willful misconduct or negligence of the ASSOCIATION, its officers, agents or employees. It is specifically and expressly understood that the indemnification provided herein constitutes CONTRACTOR's waiver of immunity under Title 51 RCW, solely for purposes of this indemnification. This waiver has been mutually negotiated by the parties. The ASSOCIATION's inspection or acceptance of any of the CONTRACTOR's work,when completed, shall not be grounds to avoid any of these covenants of indemnification. This clause shall survive the termination or expiration of the Contract and shall continue to be in effect for any claims or causes of action arising hereunder. G. Ownership of Products and Premises Security All supporting documentation, raw data and collection tools collected or developed by the CONTRACTOR in the performance of services under this Contract, shall be released to the ASSOCIATION upon completion of the project. While working on the ASSOCIATION's premises, the CONTRACTOR agrees to observe and support the ASSOCIATION's rules and policies relating to maintaining physical security of the ASSOCIATION's premises. H. Modifications The ASSOCIATION and the CONTRACTOR may, from time to time, request changes in services to be performed with the funds. Any such changes that are mutually agreed upon by the ASSOCIATION and the CONTRACTOR shall be incorporated herein by written amendment to this contract. It is mutually agreed and understood that no alteration or variation of the terms of this Contract shall be valid unless made in writing and signed by the parties hereto, and that any oral understanding or agreements not incorporated herein, unless made in writing and signed by the parties hereto, shall not be binding. I. Subcontracting The CONTRACTOR shall not enter into subcontracts for any of the work contemplated under this Contract without obtaining prior written approval of the ASSOCIATION. In no event shall the existence of a subcontract operate to release or reduce the liability of the CONTRACTOR to the ASSOCIATION for any breach in the performance of the CONTRACTOR's duties. This clause does not include contracts of employment between the CONTRACTOR and personnel assigned to work under this Contract. J. Work Performed at Contractor's Risk CONTRACTOR shall be responsible for the safety of its employees, agents and subcontractors in the performance of the work hereunder and shall take all protections reasonably necessary for that purpose. All work shall be done at CONTRACTOR's own risk, and CONTRACTOR shall be responsible for any loss of or damage to materials, tools, or other articles used or held for use in connection with the work. K. Ownership of Products and Premises Security All supporting documentation, raw data and collection tools collected or developed by the CONTRACTOR in the performance of services under this Agreement, shall be released to the ASSOCIATION upon completion of the project. While working on the ASSOCIATION's premises, the CONTRACTOR agrees to observe and support the ASSOCIATION's rules and policies relating to maintaining physical security of the ASSOCIATION's premises. Washington State Association of Counties Exhibit A Page 2 of 3 EXHIBIT A: General Terms and Conditions L. 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 the Contract which can be given effect without the invalid provision, if such remainder conforms to the requirements of applicable law and the fundamental purpose of this Contract, and to this end the provisions of this Contract are declared to be severable. M. Insurance The CONTRACTOR shall provide insurance coverage as set out in this Contract. The intent of the required insurance is to protect the ASSOCIATION should there be any claims, suits, actions, costs, damages or expenses arising from any negligent or intentional act or omission of the CONTRACTOR or subcontractor, or agents of either, while performing under the terms of this Contract. The CONTRACTOR shall provide insurance coverage which shall be maintained in full force and effect during the term of this Contract, as follows: 1. Automobile Liability. In the event that services delivered pursuant to this Agreement involve the use of vehicles, either owned or unowned by the CONTRACTOR, automobile liability insurance shall be required. The minimum limit for automobile liability is$1,000,000 per occurrence, using a Combined Single Limit for bodily injury and property damage. 2. The insurance required shall be issued by an insurance company authorized to do business within the State of Washington. All policies shall be primary to any other valid and collectable insurance. CONTRACTOR shall instruct the insurers to give the ASSOCIATION 15 dafs advance notice of any insurance cancellation. CONTRACTOR shall submit to the ASSOCIATION within 15 days of the Agreement effective date, a certificate of insurance which outlines the coverage and limits defined in the insurance section. CONTRACTOR shall submit renewal certificates as appropriate during the term of the Agreement. N. Compliance with Applicable Law The CONTRACTOR and all subcontractors shall comply with, and the ASSOCIATION is not responsible for determining compliance with, any and all applicable federal, state, and local laws, regulations,and/or policies. This obligation includes,but is not limited to,nondiscrimination laws and/or policies; the Americans with Disabilities Act (ADA); Title VI of the Civil Rights Act of 1964; Age Discrimination Act of 1975; and the Civil rights Restoration Act of 1987. In the event of the CONTRACTOR'S or subcontractor's noncompliance or refusal to comply with any law or policy,the ASSOCIATION may rescind, cancel, or terminate the Contract in whole or in part. The CONTRACTOR is responsible for any and all costs or liability arising from the CONTRACTOR'S failure to so comply with applicable law. O. Lobbying activity is prohibited under this contract. Washington State Association of Counties Exhibit A Page 3 of 3 EXHIBIT B: Scope of Work BUDGET AND SCOPE OF WORK Fish Bearing Stream Culvert Inventory July 1, 2020—June 30, 2021 TASK 1 —PROJECT MANAGEMENT Project management includes planning and coordinating activities, administering contract and billings, and reporting results to Washington State Department of Fish and Wildlife(WDFW)and Washington State Association of Counties(WSAC) grant administrators. Team members(contractors)will be identified to ensure Crews are trained in WDFW methodology and equipped with appropriate data collection equipment, safety protocols, and field location assignments. Task 1 Deliverables: Project Invoices Project Closeout Report TASK 2—DATA COLLECTION Culverts will be surveyed in the field according to WDFW fish barrier inventory fields and criteria, and assessed for fish passage according to WDFW protocols. At least 150 culverts should be surveyed for this project. Task 2 Deliverables: Data in tabular format(Microsoft Excel) suitable for inclusion in Washington State's fish barrier assessment inventory dataset maintained by WDFW. This will include Level A or Level B assessments as applicable to each culvert inventoried. Photographs in electronic(JPEG)format for each culvert. TASK 3—GIS ANALYSIS, MAPPING, AND DATA MANAGEMENT GIS analysis of existing data sets to identify potential and likely culvert crossings within fish-bearing streams that have not previously been identified, and which should be included in the inventory. Preliminary GIS analysis and mapping will be conducted to support planning field survey activities. Data management(data entry, formatting, manipulation, QA/QC, and transfer)of survey data for inclusion in WDFW fish barrier assessment and Mason County culvert inventory GIS data sets. Data will be formatted to allow cross-referencing individual culverts between data sets. Task 3 Deliverables: None BUDGET BUDGET Task 1 — Project Management $5,332 Task 2— Data Collection $27,546 Task 3—GIS Analysis, Mapping, & Data Management $8,000 Total $40,878 Washington State Association of Counties Exhibit B Page 1 of 1 EXHIBIT C: Invoicing Instructions Following the instructions below will help to ensure timely payments of your monthly invoices. Washington State Association of Counties (WSAC) reserves the right to reject any invoice that does not include the following information or meet the following criteria. 1. Organization's name and remittance address. 2. Contact name and phone number to direct questions regarding the invoice. 3. Organization's Federal Tax ID Number or Social Security Number(whichever is applicable). 4. Invoice number. 5. Period of performance. 6. Expense report. Show total expenses for the invoice period according to task/deliverable as described in Exhibit B of the contract. 7. Total amount of invoice. Payment terms are net 30 from date of invoice, unless otherwise agreed in writing. Monthly invoices should be received no later than the 8"'of each month and be sent via email to finance(cDwsac.org or at the following address: Washington State Association of Counties Attention:A/P Dept 206 Tenth Avenue SE Olympia, WA 98501-1333 Questions regarding these instructions should be directed to Bridget Lockling at blockling(u.wsac.org or at (360)489-3017. As a private non-profit, Washington States Association of Counties is tax exempt. Please contact us if you require further information on our status. Washington State Association of Counties Exhibit C Page 1 of 1 Mason County GRANT QUESTIONNAIRE Date: July 6, 2020 Office/Department: Public Works Contact Person: Erik Schwartz 1. Name of Grant/Program WSAC Fish Passage Culvert Assessment Project 2. New Grant X Renewing Grant _ Term (# of years) 1 3. Is the grant unchanged, and does not require Current Expense funding? (If Y, please skip to number 24) Y N X 4. How will this grant benefit the County's citizens? The grant will provide funding to complete fish passage culvert assessments within the County road rights-of-way. This project started back in 2017 with the participation of Mason Conservation District, but funding was insufficient to complete the project. 5) Is this a program grant or an equipment grant? Program grant, funded through the Washington State Association of Counties (WSAC . 6) Is this a "one-time only grant" or is it renewable? If renewable, how long is grant anticipated to last? One-time grant. 7) If this is a new grant how will the grant support a current program OR how will the program change? The project will assist with the cost of culvert assessing and conducting an inventory of fish-bearing stream culvert crossings in the public right-of-way along county roads that were not surveyed during an inventory conducting by the County and Mason County Conservation District in 2017. 8) Does this grant require up front funds? Y _ N X If so, what is the source of the up-front funds needed to cover costs prior to initial and continuing reimbursements being received? 9) How many employees (new or current) will be paid by the grant? New None Current None a. If this grant requires new hire(s) and grant ends, how will unemployment costs be funded? N/A. Page 1 10) Will the grant require matching funds; i.e., in-kind, cash, Employment Security, Social Security, FICA, PERS, etc? Y _ N X If so, what? Would the grant allow for an annual COLA in salary, increase in medical insurance premiums or increases in any personnel benefits? N/A. 11) What fund would support a cash match (if required)? N/A. 12) If required what is the TOTAL cost of the match over the life of the grant? No grant match is required. Task 1 - Project Management $ 5,332 Task 2 - Data Collection $27,546 Task 3 - GIS $ 8,000 Total $40,878 Grant Total $40,878 13) What fund would support the administration of the grant? Road Fund. 14) Will the grant allow for the County cost allocation plan to be funded? No 15) Would the grant require the county to provide office space and/or additional equipment to administer the program? If so, what are the requirements? No 16) Would the program require use of a county vehicle or personal vehicle? Y _ N X 17) If so, would the grant provide for the cost of the automobile and/or liability insurance? Y N X 18) Would the grant require activities by other county offices/departments? (i.e. legal review, technology services assistance, new BARS numbers.) Y N X If so, what activities? 19) Would acceptance and completion of the grant project in any way OBLIGATE the County to create/enact new ordinance or policies? Y _ N X If so, what obligations? 20) Does this grant project include any activities that may fall outside the county's standard policies (personnel policies on travel, hours of work, training required, reimbursement for meeting refreshments, paying for meeting space, etc.?) No Page 2 21) Will outside consultants be solicited to work on the grant and if so, is a process in place for appropriate selection and oversight of consultant activities? Y _ N X If so, what is the funding source for consultant fees? 22) For a program grant, how would the program be funded after the grant expires? (It should be understood that once grant funding ends, either the program ceases OR the funding for the program needs to be absorbed within the department's or office's existing budget) OR justification must be provided that the program has been and will continue to save or benefit taxpayers. A complete inventory of fish- bearing stream culverts will reduce future assessments and provide valuable information to the county and WDFW for future road projects involving streams. 23) Please provide (attached to questionnaire) a synopsis of the grant or a copy of the fact sheet. Please feel free to submit additional information as needed. Official signature of requesting office/department: Elected Official/Department Head Date Approved by: Chair, Board of County Commissioners Date Page 3 MASON COUNTY AGENDA ITEM SUMMARY FORM TO: BOARD OF MASON COUNTY COMMISSIONERS From: Mike Collins, P.E, PLS, Deputy Director/County Engineer Action Agenda DEPARTMENT: Public Works EXT: 450 COMMISSION MEETING DATE: July 14, 2020 Agenda Item # BRIEFING DATE: July 6, 2020 BRIEFING PRESENTED BY: Mike Collins and Loretta Swanson [] ITEM WAS NOT PREVIOUSLY BRIEFED WITH THE BOARD Please provide explanation of urgency: ITEM: WDOT and Mason County Agreements for Hoodsport"Your Speed is XX" signing on US 101 BACKGROUND: Mason County Board of Commissioners have requested Public Works work with WSDOT, as a result of the 2019 Hoodsport Pedestrian Study to request WSDOT install two (2) "Your Speed is XX" radar speed signs that would be near the sets of solar powered Rapid Flashing Beacon pedestrian crossing areas that was also a partnership project between WSDOT and Mason County on US 101 in Hoodsport, WA. Public Works has an agreement with WSDOT drafted and if the Commission has no comments we will move forward with the agreement for WSDOT to install these facilities, which are beneficial to alert vehicle traffic to yield in areas with heavy pedestrian traffic. BUDGET IMPACTS: WSDOT will purchase and install with the agreement that Public Works will pay all cost to establish the radar speed signs, estimated to cost $34,000 and the annual maintenance, under a Maintenance and Operation Agreement, estimated to cost $500. RECOMMENDED ACTION: Recommending the Board approve the following agreement related to the "Your Speed is XX" radar speed signs on US 101 in Hoodsport at approximately MP 331.5 to 332.5: 1. Authorize the County Engineer to execute the Project Review Reimbursable Agreement, WSDOT Agreement No. 11455, to reimburse WSDOT for the purchase, labor, equipment and all associated incidental cost to install radar speed signs on US 101 in Hoodsport, WA. 2 .Authorize the County Engineer to execute the Maintenance and Operation Agreement after equipment is installed to reimburse WSDOT for all future costs association with yearly preventative maintenance and/or repair/replacement costs due to damage, vandalism and/or failure of equipment. Attachment: 1. Agreement 2. Cost Estimate 3. Draft 2019 Hoodsport Pedestrian Study Mrwo Washington state Project Review Department of Transportation Reimbursable Agreement Project Review Applicant or Local Agency Reimbursable Mason County Department of Public Works Agreement Agreement Number Billing Address ,J 1455 100 W. Public Works Drive Shelton,WA 98584 Region Contact Email Olympic DNSmith@co.mason.wa.us Contact Name Contact Phone David Smith, PE (360)427-9670 Ext 523 Estimated Costs Surety Amount This estimate is based on the best available information to date and includes VVSDOT's Indirect Cost Rate $ 0 $34,000 Z Not Applicable SR MP Project Name 101 331.5 to 332.5+/- Hoodsport Your Speed is XX signing Detailed Description of Work by WSDOT ❑Project Review WSDOT will install two"Your Speed is XX"radar speed signs in Hoodsport one each direction on US ❑Inspection 101. Mason County agrees to reimburse WSDOT for all direct and indirect costs to purchase and install the two signs, including all associated incidental equipment, labor, and direct electrical power ❑✓ Other(see description of work) hookup. Once installed and operational, Mason County will have ownership and responsibility of the signs, including paying the power bills with the local PUD. Unless agreed to in a WSDOT Maintenance Agreement at Mason County cost, Mason County will be solely responsible for all future costs for preventive maintenance, repair, any vandalism, and/or failure of the equipment. This AGREEMENT is entered into by and between the Washington State Department of Transportation, hereinafter "WSDOT," and the above named "APPLICANT OR LOCAL AGENCY," hereinafter the"ENTITY;" herein after referred to individually as the"Party" and collectively as the"Parties." Recitals 1. The ENTITY has requested WSDOT to perform the above described work, and WSDOT is authorized and willing to perform the work. 2. The ENTITY is responsible for the costs associated with the work. NOW THEREFORE, pursuant to the terms, conditions and performances contained herein and/or attached hereto, and by this reference made a part of this Agreement, It Is Mutually Agreed to As Follows: 1. GENERAL 1.1 The WSDOT agrees to perform the above described work requested by the ENTITY, using state labor, equipment and materials. 1.2 To secure payment of the potential costs incurred in the review process, WSDOT requests that a Surety Amount in the form of Bond,Assignment of Escrow, Certificate of Deposit, Irrevocable Letter of Credit, Check or Money Order in the amount listed above accompany the endorsed original copy of this Agreement. 1.3 All WSDOT reviews, and/or inspections provided by WSDOT are solely for the benefit of WSDOT and not for the ENTITY or any other third party. DOT Form 224-102 Revised 06/2019 2. PAYMENT 2.1 The ENTITY, in consideration of the faithful performance of the work by WSDOT, agrees to reimburse WSDOT for the actual direct and related indirect costs associated with the work, including WSDOT's current administrative indirect cost rate. 2.2 The ENTITY agrees to make payment for the work by WSDOT within thirty (30) calendar days from the date of a state invoice. 2.3 The ENTITY agrees that if it fails to make payment within thirty(30)calendar days of the invoice, the WSDOT may charge interest in accordance with RCW 43.17.240 and may elect to send the outstanding invoice(s)to a WSDOT contracted collection agency resulting in the assessment of additional fees and/or penalties. 2.4 Upon payment of all WSDOT invoices by ENTITY, WSDOT will release rights of remaining Surety Amount. 3. INCREASE IN COST 3.1 The Parties agree that the estimated cost of the work may be exceeded by up to twenty-five(25) percent. In the event costs exceed the estimated costs by more than twenty-five (25) percent the Parties agree to modify the estimated cost of work by written amendment, signed by both Parties. 4. ASSIGNMENT 4.1 This Agreement, and any claim arising under this Agreement, shall not be assignable or delegable by either Party, either in whole or in part. 5. INDEMNIFICATION 5.1 The ENTITY shall defend, protect and hold harmless WSDOT, its officers, officials, employees, and/or agents from and against all claims, suits or actions arising from the negligent acts or omissions of ENTITY, its officers, officials, employees, assigns, contractors, sub-contractors, tenants, sub-tenants, licensees, invitees and/or agents while performing under the terms of this Agreement. This defense and indemnity obligation shall not include such claims, actions, costs, damages, or expenses which may be caused by the sole negligence of WSDOT, its officers, officials, employees, contractors, sub-contractors and/or agents; provided, however, that if the claims, suits or actions are caused by or result from the concurrent negligence of(a)WSDOT, its officers, officials, agents, contractors, sub-contractors or employees and (b)the ENTITY, its officers, officials, employees, assigns, contractors, sub-contractors, tenants, sub-tenants, licensees, invitees and/or agents, or involves those actions covered by RCW 4.24.115, this indemnity provision shall be valid and enforceable only to the extent of the negligence of the ENTITY or its officers, officials, employees, assigns, contractors, sub-contractors, tenants, sub-tenants, licensees, invitees and/or agents. ENTITY specifically assumes potential liability for the actions brought by ENTITY'S employees and solely for the purposes of this indemnification and defense, ENTITY specifically waives any immunity it may be afforded in connection with such claims under the State industrial insurance law, Title 51 RCW. ENTITY recognizes that this waiver was the subject of mutual negotiations. This indemnification and waiver shall survive the termination of this Agreement. 6. AMENDMENT 6.1 This Agreement may be amended by the mutual agreement of the Parties. Such amendments shall not be binding unless they are in writing and signed by persons authorized to bind each of the Parties. 7. TERMINATION 7.1 Either Party may terminate this Agreement, with or without cause, by providing written notice to the other of such termination and specifying the effective date thereof at least thirty(30) calendar days before the effective date of such termination. The ENTITY will reimburse WSDOT for all charges up to the date of termination. 8. DISPUTES 8.1 The Parties shall work collaboratively to resolve disputes and issues arising out of, or related to this Agreement. Disagreements shall be resolved promptly and at the lowest level of hierarchy. DOT Form 224-102 Revised 06/2019 8.2 In the event that a dispute arises under this Agreement which cannot be resolved by the parties as outlined in Section 8.1, the dispute will be settled in the following manner: Each Party will appoint a member to a dispute board. The members so appointed will jointly appoint a third member to the dispute board who is not employed by or affiliated in any way with either Party.The dispute board will evaluate the facts, contract terms, and applicable statutes and rules and make a determination of the dispute. The determination of the dispute board will be final and binding on the Parties.Any costs associated with appointing the third member will be equally shared between the Parties. Each Party shall be responsible for its own costs, including attorneys fees. 8.3 The Parties agree that any legal action to enforce any right or obligation under this Agreement may only be brought in Thurston County Superior Court. 9. TERM OF AGREEMENT 9.1 The term of the Agreement shall begin upon the date of execution and shall remain in effect until WSDOT has completed the above described work and the ENTITY has made full payment,whichever comes last, unless modified according to Section 6, "AMENDMENT,"above. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date last signed by the PARTIES below. REQUESTING ENTITY WASHINGTON STATE DEPARTMENT OF TRANSPORTATION By: By: Printed: Printed: Title: Title: Date: Date: TIN or Social Security Number of Requesting Entity: DOT Form 224-102 Revised 06/2019 Cost Estimate for: US 101 Hoodsport, Install two Radar Speed Signs 5/20/2020 Provider Item Cost Traffic Safety Supply Co. 2 A/C powered Radar Speed Signs $ 7,517.78 Mason County PUD#1 2 service drops, meters, breakers, etc. $ 2,224.00 OR Area 2 Maintenance Install maintenance access for SB sign at MP 331.56 $ 6,402.00 OR Signal Shop Electrical connection, install conduit, conductor, riser, etc. $ 9,000.00 OR Region-Wide Sign Crew Sign build/install, programming, etc $ 3,083.00 $ 28,226.78 sub total OR Traffic Ops Engineering& Contingencies (20%) $ 5,645.36 $ 33,872.14 TOTAL 2019 Hoodsport Pedestrian Stur' v �- tip.' IWO r Prepared by:WSDOT Olympic Region Multimodal Planning August 2019 Introduction Hoodsport is an unincorporated community in Mason County situated near the intersection of US 101 and State Route 119 between Potlatch and Lilliwaup.The seaside community has roughly 400 residents and is perched on the western shores of the Hood Canal beneath the shadow of the Olympic Mountain Range that offers beautiful views and public waterfront access. Hoodsport is designated as one of the three Rural Activity Centers in Mason County, which are small established rural places designated by the County for special land use policies. The Port of Hoodsport maintains a Public Beachfront, Pier, 6 slip Dock, Waterfront Park, and Public Restrooms located in downtown Hoodsport and an 80 Acre Trail Park on State Route 119. Their mission statement is to 'create, promote and support economic development that supports the preservation and public enjoyment of local, cultural, and natural resources, provides family wage jobs, local services, and promotes the development of cottage industries, tourism, and family-related activities.' Backgroura The Port of Hoodsport, at their regular meeting on April 25, 2018, had a discussion on behalf of concerned citizens and business owners about traffic concerns affecting the downtown Hoodsport US 101 thoroughfare. ° Attendees included the Port of Hoodsport Commission, County Commissioner, County F� �� ' ` �• Engineer, WSDOT Assistant Regional Administrator, WSDOT Multimodal Planning Manager, Washington State Patrol, and local community citizens and business owners. -� Concerns about US 101 in Hoodsport were originally brought to the attention of the Mason County Commission and Public Works ' Department who were contacted by Hoodsport businesses with concerns regarding traffic speed and pedestrian safety. Mason * y County contacted WSDOT which coordinated with the Port of Hoodsport to arrange a forum for working with Mason County, Washington State Patrol, local business owners, and the 101 public to discuss concerns and potential solutions. The discussions revolved around the need for speed calming strategies and pedestrian crosswalk devices. 1 At the time, the absence of traffic data related to the Hoodsport area was discussed, and during the meeting the community mentioned improvements done in other towns that have similar traffic patterns. Consensus from community members at the meeting was for drivers to be more aware and to stop for pedestrians in crosswalks.There is a need to change driver behavior with a conscious reduction of speed through the highway 101 corridor in Hoodsport.The conclusion was WSDOT would conduct a traffic speed study as well as a community charrette to look at the problems and build collaborative solutions. Roadway Context US 101 is functionally classified as a rural principle arterial that has one lane in each direction through Hoodsport(Milepost 331.59-332.21).The posted speed within the Hoodsport area reduces from 40 mph to 30 mph at the northern entrance to town, remains at 30 mph throughout, and then increases to 35 and 45 mph upon exiting the southern end of town. In 2017, US 101 had an Annual Average Daily Traffic (AADT) of 5,900 vehicles south of SR 119 and 4,200 vehicles north of SR 119. State Route 119 had an AADT of 2,700 vehicles.SR 119 is a gateway to the Olympic National Park. Crash History' The section of US 101 through Hoodsport had 25 total crashes between 2014 and 2018. Of the 25 crashes, 2 resulted in serious injuries; one was intersection related at SR 119 and US 101 where a vehicle hit a pedestrian on December 26, 2018. The other was at a driveway on US 101 south of Schoolhouse Hill Rd where a motorcycle and vehicle collided on July 19, 2015. Of the 25 total, 5 crashes occurred at the US 101/SR 119 intersection at milepost 331.74. The most common types of crashes were vehicles hitting fixed objects followed by rear end collisions. Planning Context The Mason County Transportation Plan states that the small urban community of Hoodsport provides a rare opportunity to create a walkable,transit oriented center in rural Mason County. As the county grows over time, more of its growth will locate in these small centers as well as in Shelton and its urban growth area. Mason County will relieve growth pressures on its rural and resource lands by creating a few distinctive places, Hoodsport included, where people have more opportunities to use transit and other alternatives to driving. The County is working to improve the walkability of small community destinations like H,�odsport specifically, where residents and tourists alike must navigate US 101 on foot to reach the many local establishments. Under Practical Solutions, WSDOT has completed the Corridor Sketch Initiative which identifies corridor performance and assesses alternative strategies to improve the quality, effectiveness, and efficiency of the transportation system.The Corridor Sketch Initiative captures and documents consistent baseline information about each state transportation corridor to inform future investment decisions. US 101's completed corridor sketch shows that the corridor passes through rural areas, providing the only reasonable access to both regional destinations and local communities on the Olympic Peninsula, and plays a vital role in the corridor's economic and commercial prosperity.The primary land use along the corridor is undeveloped forestland. Businesses along the corridor are primarily recreational aquaculture 1 Under 23 U.S.Code§409,safety data,reports,surveys,schedules,lists compiled or collected for the purpose of identifying,evaluating,or planning the safety enhancement of potential crash sites,hazardous roadway conditions,or railway-highway crossings are not subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports,surveys,schedules,lists,or data. 2 (oyster,geoduck, etc.) related. The corridor traverses rolling terrain as it passes through the small communities of Skokomish, Potlatch, Quilcene, Brinnon, Eldon, Lilliwaup, and Hoodsport, as well as Potlatch State Park and the Skokomish Indian Reservation.The corridor passes the Olympic National Park and the Olympic National Forest, and crosses over numerous creeks that empty into the Hood Canal. The corridor sketch for SR 119 shows a primarily rural residential and recreational corridor, providing access to traffic moving northwest-southeast. The corridor is known locally as Lake Cushman Road. The corridor serves the Lake Cushman community and recreational area, and provides access into the Olympic National Forest. The SR 119 corridor also provides access to the multiple campgrounds surrounding the route. The Hoodsport Visitors Center near the US 101/SR 119 intersection is a key transit stop. Bicycle and pedestrian use is permitted along both corridors. Existing Conditions Streets:The primary roadway serving Hoodsport is US 101, which runs north-south along Hood Canal. Commercial activity is located on either side of US 101, making it Hoodsport's 'Main Street'.The corridor has 12-foot lanes in each direction with a 2 foot shoulder on either side,from milepost 331.39 to milepost 331.72 and larger 5-10 foot shoulders south of the US 101/SR 119 intersection, milepost 331.72 to milepost 331.84. Between milepost 331.84 to the south end of the community at milepost 332.20, the shoulders return to 2 feet on either side. Near Finch Creek, on the north end of Hoodsport's community center, is SR 119, also known as Lake Cushman Road, which connects with US 101 at a T-intersection. With limited options for people traveling in and out of Hoodsport, the SR 119 intersection has more traffic than other intersections within the community. SR 119 is popular for recreation and increases in use and popularity during the summer months.The businesses on US) 101 within Hoodsport are very close to the roadway. Commercial development is somewhat constrained because of a steep hillside on the west side of US 101 and Hood Canal on the east side of US 101. Transit: Mason Transit Authority (MTA) runs local bus service on US 101.There are two designated routes that stop in Hoodsport.The Route 11 has a scheduled stop on Hwy 119 in front of the Hoodsport Visitors Center and continues up Hwy 119 to the maintenance office. The Route 8 also has a scheduled stop on Hwy 119 in front of the Hoodsport Visitors Center and continues on to Triton Cove State park. Both buses accept fiac,stops at the IGA market located on US 101. Non-Motorised Facilities: By and large, the community of Hoodsport lacks dedicated pedestrian and bicycle facilities. 'Except for an approximately 400 foot stretch of sidewalk on the east side of US 101 bordering the v;ater, the state and county roads do not include bike lanes or grade separated sidewalks. A shoulder of varying width is provided on either side of US 101 and SR 119, delineated by an edge line. Pedestrians and bicyclists can and do use the shoulder along the highway to get from place to place. Opportunities for Travel Demand Management strategies like high occupancy commute options, bicycle and pedestrian friendly facilities, and improving public transportation options should be taken into consideration as future improvements in the community are considered. Parking: Free vehicle parking is available in Downtown Hoodsport at a few key locations. The community has commented that improvements to the corridor must not hinder the limited number of vehicle parking that is currently available. However, per State law, WSDOT may revise or prohibit parking along 3 US 101, either angle or parallel, if parking becomes a safety or operational issue on the highway. There are currently no locked bicycle parking or bike rack facilities on state right-of-way. Open Space:There is one public park along the shoreline directly off of US 101 that is maintained and operated by the Port of Hoodsport. Speed Study Due to the lack of traffic data for Hoodsport, WSDOT conducted a speed study across from the Independent Grocers Alliance/Hood Canal Grocery gas station that is located near the middle of the US 101 corridor going through Hoodsport. Two hundred forty-six vehicles were observed traveling northbound, and 275 were observed travelling southbound. The posted speed limit in this 24 26 28 36 38 40 �Mi er Hour area is 30 mph.The minimum recorded speed was 24 Nirthbound 5ou,hbound mph increasing northbound, and 23 mph decreasing southbound.The recorded maximum speed was 40 mph increasing northbound, and 40 mph decreasing southbound.The 85`h percentile speed, which means the result of 85 percent of all vehicles observed, was approximately 32 mph. However, the public has since expressed concerns that the traffic counts occurred when there was existing construction and during slow season rather than peak summer season when most issues occur.The Port of Hoodsport would like to see the speed study conducted either during the morning, or between Friday and Sundav afternoons when most of the congestion occurs. WSDOT, looking at available data determined speed studies were conducted in May and September of 2015 with similar results. Charrette Public engagement is a critical component of any planning project that makes the exchange of information between the project team and the sta"'eholders throughout the process possible.An effective plan must be informed by the people who will be most affected by its implementation and aim to accurately reflect their values and priorities. For this project, outreach efforts included a charrette that was led by WSDOT where stakeholders were present and traffic solutions were explored collaboratively. The charrette was held on May 22, 2019, at the local library. Eight community members,two Port of Hoodsport Commissioners, one Mason County Commissioner, one Port of Hoodsport staff member, three Mason County Public Works staff members and four WSDO T staff members attended. WSDOT staff guided members through a brainstorming activity to gather what they considered the problems they saw and experienced along US 101 in Hoodsport.The community was then asked to narrow their initial list into the main issues.After main issues were agreed upon, the group was then asked to suggest possible solutions. Before closing the Charrette, Loretta Swanson from Mason County asked the group what their number one priority solution is from the list that was developed below. The group responded that one new crosswalk would be a good start for the community. 4 Main issue Stakeholdersuggestions Planning level cost estimate Lack of a Gateway at north and Construct a gateway to Hoodsport $1,000 south ends of town to slow traffic/inform traveler they are WSDOTreWmw entering a town Per WSDOT Traffic Manual, 2.20(3) Entrance markers Lack of a gateway into for unincorporated communities may be considered Hoodsport, the Olympic for placement on state highway right of way. The Peninsula and the marker must be located beyond the clear zone if it Olympic National Park does not meet break-away standards. - Not enough signage Stakeholder suggestion and delineation entering town from the Installation of landscaping and plantings for traffic north to south direction calming purposes. SR 119 signage on US 101 needs replacing WSDOTresponse When the hi wa, s a community's main street, outside the curb, the community is responsible for design, installation and maintenance of its roadside vegetation. In areas where there is no curb, all plantings need to be outside the clear zone as determined by WSDOT. Stakeholder.�,gggestion $570(per sign) dditional installation of"Congestion Ahead"signage without flashing beacons. WSDOTresponse The addition of"Congestion Ahead" signage is being considered.The relocation of the existing signs to more effective locations will also be considered. Main issue Stakeholdersuggesdon $8,500 Not enough crosswalks New crosswalks at key locations. Discussed locations; US 101 and N Schoolhouse Hill Road US 101 mid-block between N Schoolhouse Hill Road and N Lake Cushman Road WSDOTresponse 5 - Not enough crosswalks New crosswalk at US 101/Schoolhouse Hill Road is along US 101 in being planned by WSDOT Traffic. WSDOT Traffic does Hoodsport not recommend a mid-block crosswalk. - Crosswalks are too far However, a new crosswalk at US 101/Schoolhouse Hill Road will eliminate some area parking. Per RCW apart from each other. 46:61.5701.b.111, a crosswalk has to be twenty feet It promotes j-walking, away from parking for sight distance.To install a especially through crosswalk at Schoolhouse Hill Road, a small portion of middle of town the parking area located in front of M4 Realty, Stottle (between the existing Winery Tasting Room, and Octopus Garden Jewelry sidewalks) would be eliminated/shifted to the south. Main Issue Stakeho✓derstggesd�n :f: $11,000 Existing crosswalk safety Install rectangular rapid flashing bs at crosswalks - Too much traffic WSDOTieW"e through town - Traffic increases in the Solar powered Rectangular Rapid Flash Beacon (RRFB) summer along with located at the crosswalks.WSDOT may work with the pedestrian activity community if funding is provided. - Hinders the goal of Stakeholder suggestion $1,800 having a pedestrian friendly town Have flags at crosswalks—local businesses are willing - Left turns coming out to share the cost. of Schoolhouse Hill Road onto US 101 as WSDOTresponse well as US 101 onto SR Local businesses may obtain and install. A permit for 119 are challenging the posts is required from WSDOT Development with traffic paired with .Services. pedestrians crossing, especially in the StakeWdersuffgestkV7 summer - Crosswalk near Real Signage labeled "Stop for Pedestrians, it's the Law" Estate office is difficult for northbound WSDOTA"wse vehicles to see WSDOT only uses advanced pedestrian crossing warning signs. pedestrians crossing Based on experience and federal policy, excessive use of signs is due to parked cars discouraged because if there is too much signage they lose their effectiveness and become "background noise" to the driver. 6 Main Law Sta keholder suggestions $8,400(for 2 solar Speed limit transitioningand Temporary or permanent radar speed signs permanent placement of existing speed radar signs WSDOTresponse speed Speed limit Mason County is looking into temporary radar speed signs) transitioning is sign from the County Sheriff. Local agency or confusing and causes businesses may obtain and install permanent radar vehicles to speed speeds signs.A permit for the posts is required from coming into town WSDOT Development Services. Placement/location/ Stakeholdersuggestion visibility of 30 MPH signs is inefficient Addition of speed limit signs. Additional speed limit sign needed WSDOTresponse An additional speed limit sign has been installed as vehicles enter the commur from the north. Stakeholder_ •ge5.:gin .!I "Conge. )n ° ,d" "r destrians" signage with flashing lights W` )Trespons Conge, -�u signage is installed on US 101 entering Hoodsport from the south. If the lights are constantly flashing, they lose their effectiveness. Plus there is a significant cost for the lighting installation and maintenance. Sta keholder suggestion Rumble strips across US 101 to slow traffic or install a roundabout at US 101 and SR 119 WSDOTresponse Rumble strips would be a source of noise pollution for surrounding community and businesses.A roundabout would effectively slow traffic, but there is no budget for the roundabout design and installation or potential right-of-way costs. 7 Maln issue Stakeh&ders4ggest1w Lack of available parking Do not interfere with existing parking when installing improvements - No community public parking N/50OTA�Spovxse - J-walking(both locals Parking will be minimally effected by route improvements. However, and tourists) occurs if a crosswalk is installed a small amount parking area will be due to lack of parking eliminated due to RCW requirements referred to in response for options and businesses "Not enough crosswalks". However, per State law, WSDOT may on both sides of revise or prohibit parking along US 101, either angle or parallel, if highway parking becomes a safety or operational issue on the highway. - Backing out of the front in parking is a challenge Funding Opportunities Finding funding is one of the largest hurdles to overcome when it comes to implementing corridor improvements.As an unincorporated community, Hoodsport is heavily reliant on Mason County, WSDOT, and grant funding to help them achieve their vision. Below is a list of transportation grants that fund the types of projects needed in Hoodsport. ❖ Surface Transportation Block Grant Program—Provided by Federal Highway Administration (FHWA) and administered by Mason County,these grants can be used to fund roadway projects including the construction of pedestrian and bicycle facilities. FAST Act Transportation Alternatives Set-Aside Funding—Provided by the FHWA and administered by PenIHSUla Regional Transportation Planning Organization, this funding source replaces the previous Transportation Alternative Program (TAP) to fund projects with multimodal transportation and access to transit elements. ❖ Regional Mobility Grant Program—Provided by WSDOT, these funds are awarded to local transit agencies to support projects that improve access to transit and reduce congestion on Washington's heavily traveled roadways including park-and-ride lots. ❖ Formula Grants for Rural Areas—Provided by the Federal Transit Administration (FTA), these grants are specifically awarded to rural communities trying to improve public transportation services. People for Bikes Community Grant Program—Provided by the non-profit organization, People for Bikes,these funds are awarded to local agencies and advocacy organizations for bicycle projects including trails, programs, and other amenities, such as bicycle parking. ❖ Aquatic Lands Enhancement Account—Provided by Washington State Recreation and Conservation Office(RCO), these funds can be used for the development of a waterfront park area. 8 Recommendations & Next Steps The recommendations in this report are based on input from the Port of Hoodsport, Mason County, local community and business owners, and WSDOT. The aim of these recommendations is to help make Hoodsport a more vibrant, rural community with a walkable town center that celebrates its close connection to the water. This report builds on previous work and advances locally identified priorities. The recommended improvements are to encourage walking and biking trips in the commercial core, improve access to the waterfront and other community assets, and develop a greater sense of place in Hoodsport. Limited parking or the perception of limited parking can discourage activity in the commercial core of Hoodsport.The purpose of these recommendations is to provide better parking efficiency in Downtown Hoodsport, encourage high-occupancy commute options, and provide business-supportive amenities for cyclists. Making progress on any one of these recommendations or projects will require time, energy, and coordination from many different players within the community and region. Next steps will include collaboration between WSDOT, the Port of Hoodsport, and Mason County to seek funding for the transportation improvements needed in the community. WSDOT is making arrangements for staff to install a crosswalk at US 101 Schoolhouse Hill Road, and the work is planned for 2019. Mason County is working with the Sheriff's Department to see if there is a temporary radar speed feedback sign available. WSDOT is working with the Port of Hoodsport to implement other recommendations from the charrette. 9 clerk 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: ]uly 14, 2020 Agenda Item # (Commissioner staff lo4nplete) 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 #8073348-8073470 $ 1,068,105.31 Direct Deposit Fund Warrant # $ Salary Clearing Fund Warrant #s $ Treasurer Electronic Remittance for June 2020 $ 1,341,757.41 Macecom 6/4/2020 $ 117,452.15 Mental Health 6/10/2020 $ 26,000.31 Dispute Resolution Center 6/10/2020 $ 385.00 Mental Health to Juvenile Probation 6/26/2020 $ 12,241.92 Mason Co Public Wks Local Bd-Principal 6/1/2020 $ 690,000.00 Mason Co Public Wks Local Bd-Interest 6/1/2020 $ 164,125.00 Mason Co LTGO 08 Interest 6/1/2020 $ 35,433.75 2013 LTGO Bond B Interest 6/1/2020 $ 32,567.18 Mason County 2011 BWWR-Interest 6/1/2020 $ 57,651.88 Reet 1/Interfund Loan Principal Bldg 8 6/1/2020 $ 29,860.45 Reet 1/Interfund Loan Interest Bldg 8 6/1/2020 $ 8,063.52 North Bay/Case Inlet LGO Ref Bd 17 6/1/2020 $ 73,912.50 Current Expense to Public Health 6/25/2020 $ 94,063.75 Refund Interest Earned 6/25/2020 $ 360.51 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 $ 14,080,446.99 Direct Deposit YTD Total $ 8,752,172.62 Salary Clearing YTD Total $ 9,186,675.23 Approval of Treasure Electronic Remittances YTD Total $ 5,269,286.43 RECOMMENDED ACTION: Approval to: Move to approve the following warrants Claims Clearing Fund Warrant # 8073348-8073470 $ 1,068,105.31 Direct Deposit Fund Warrant #s $ Salary Clearing Fund Warrant #s $ Treasurer Electronic Remittance for June 2020 $ 1,341,757.41 Attachment(s): Originals on file with Auditor/Financial Services (Copies on file with Clerk of the Board) ,G�SoNN�o�o Office of the Treasurer _ Al �l 411 N. 5th, Bldg. w E= P.O. Box 429 Shelton, Washington 98584-0429 JAL !' I ?Q?� (360) 427-9670, ext. 475 - Fax (360) 427-7267 Belfair (360) 275-4467 • Elma (360) 482-5269 Mason County Elisabeth (Lisa) Frazier, Treasurer Commissioners Payment approval of Macecom: FUND Account# Remittance 'ECEIPTr'#'�' Macecom 001.000000.300.300 $ 117,452.15 M-65541 $ - kTiW 012020' Payment approval of Mental Health: FUND Account# Remittance MENTAL HEALTH 164.000000.000.000 $ 26,000.31 M-65662 $ - M- 6/10/2020 FUND Account# Remittance _RECEIPT # DISPUTE RESOLUTION CENTER 1001.000000.100.000 is 385.00 M-65657 $ - 626/2020 FUND Account# Remiittance s'RECEfPT -- Mental Health-Budgeted Transfer 164.000000.100.000 $ 12,241.92 M-66103 Juvenile Probation 001.000000.170.000 $12,241.92 M-66104 f- ` ' 77 FUND Account# Pay Bonds Remittance ;.RECEIPT:#` Mason Co Public Wks Local Bd-Principal 205.000000.000.000 $ 690,000.00 M-65411 Mason Co Public Wks local Bd-Interest 205.000000.000.000 $ 164,125.00 M-65411 $ — M— $ - M— 03-0. ..�AM A MOP -- FUND Account# Remittance 'RECEIPT Mason Co LTGO '08 Principal 250.000000.000.000 $ - Mason Co LTGO '08 Interest 250.000000.000.000 $ 35,433.75 M-65411 $ - M- $ - M- 6/1/2020 FUND Account# Remittance EEC 2013 LTGO Bond A Principal 215.000000.000.000 $ - 2013 LTGO Bond A Interest 215.000000.000.000 $ - 2013 LTGO Bond B Principal 215.000000.000.000 $ - 2013 LTGO Bond B Interest 215.000000.000.000 $ 32,567.18 M-65411 FUND Account# Remittance .111- 15GI:IPT :# Mason County 2011 BWWR-Principal 413.000000.000.000 $ - M- Mason County 2011 BWWR-Interest 413.000000.000.000 $ 57,651.88 M49831 FUND _ Account# Remittance 1tIEI=1;'r_p Voip Principal 119.000000.000.000 $ - M- Voip Interest 119.000000,000.000 $ - M-65411 FUND Account# Remittance Reet 1/Interfund Loan Principal Bldg 8 350.000000.900,000 $ 29,860.45 M-65404 Reet 1/Interfund Loan Interest Bldg 8 350.000000.900.000 $ 8,063.52 M-65405 FUND Account# Remiittance `REGEIRT- sf North Bay/ Case Inlet BOND FUND-PRINC 403.000000.100.020 Is - M North Bay/Case Inlet LTGO Ref Bd '17 403.000000-100.020 $ 73,912.50 M-65411 REFUND INTEREST EARNED FUND Account# Remiittance RECEIPT #: CURRENT EXPENSE 001.000000.260.000 $ 167.37 Multiple Rec ROAD DIV-CURRENT EXPENSE 001,000000.260.010 $36.42 Multiple Rec Veterans Assistance 190.000000.000.000 $ 2.27 Multiple Rec COUNTY ROAD 105.000000.000.000 $150.80 Multiple Rec Respectfully:Julie Richert,Chief Deputy 6/30/2020 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: July 14, 2020 Agenda Item # Z. Commissioner staff com lete BRIEFING DATE: July 6, 2020 and October 7, 2019 BRIEFING PRESENTED BY: Jennifer Beierle, Budget Manager [ ] ITEM WAS NOT PREVIOUSLY BRIEFED WITH THE BOARD Please provide explanation of urgency ITEM: Resolution Amending Resolution No. 79-17 for the Tidelands Lease Agreement with Seattle Shellfish and permission for the Board to sign the Tidelands Lease Agreement Amendment No. 2 adjusting the amount of rent the county receives from Seattle Shellfish upon harvest from 15% to 14.17% and adding a provision for Leasehold Excise Tax to be paid by Seattle Shellfish to Mason County EXECUTIVE SUMMARY: In 2013, Mason County entered into a Tidelands Lease Agreement with Seattle Shellfish to lease tidelands adjacent to Harstine Island. The agreement specifies that the Lessee will pay 15% of gross sales of harvests to the County. The agreement does not consider leasehold excise tax. RCW 82.29A, Leasehold Excise Tax, describes when the tax is due and how it is to be collected and disbursed. In discussions with Department of Revenue (DOR), it has been confirmed that leasehold excise tax (LET) of 12.84% is due from Seattle Shellfish on all rent received through the contract. The tax is paid by the lessee to the County, and the County collects the tax and remits to DOR. The County in turn will receive 46% of the tax back from the state within two months. Seattle Shellfish has asked to reduce the amount of rent the County receives upon harvest from 15% to 14.17% in order to reduce potential financial harm to the company in light of the unforeseen LET due. This will ensure that the County ultimately receives the full 15% between the rent and LET, and will work to minimize financial harm to the shellfish company. BUDGET IMPACTS: None —the contract change will result in the County receiving the same amount through rent & LET as it would have received in the original contract RECOMMENDED ACTION: Approval for the Board to sign a Resolution amending Resolution No. 79-17 for the Tidelands Lease Agreement with Seattle Shellfish and permission for the Board to sign the Tidelands Lease Agreement Amendment No. 2 J:\Budget Office\Briefmg, Agenda,&Public Hearing Items\2020\Action Agenda- Seattle Shellfish Contract Amendment#2 7.14.20.doc adjusting the amount of rent the county receives from Seattle Shellfish upon harvest from 15% to 14.17% and adding a provision for Leasehold Excise Tax to be paid by Seattle Shellfish to Mason County J:\Budget Office\Briefmg,Agenda,&Public Hearing Items\20MAction Agenda- Seattle Shellfish Contract Amendment#2 7.14.20.doc RESOLUTION NO. AMENDING RESOLUTION 79-17, LEASE OF COUNTY OWNED TIDELANDS WHEREAS, Mason County owns tideland adjacent to Harstine Island, parcel #22001-44- 60570; and WHEREAS, this parcel is 19.14 acres and the County entered into a lease agreement with Seattle Shellfish, LLC on April 1, 2014; WHEREAS, Seattle Shellfish has requested the lease agreement be modified to reduce the amount of rent the County receives from the lessee to $1,000 per year for each acre actively farmed by the lessee plus 14.17%of gross proceeds realized by Seattle Shellfish upon each harvest of geoduck clams and other shellfish species to be paid by percentage at the time of sale in lieu of an annual fee; WHEREAS, Seattle Shellfish agrees to pay to the County any leasehold excise tax due at the time of payment of rent to the County as required by RCW 82.29A; NOW, THEREFORE, BE IT FURTHER RESOLVED by the Mason County Board of County Commissioners the County will amend the lease agreement with Seattle Shellfish for the lease of the County owned tidelands, parcel #22001-44-60570 for a minimum duration of 16 years and a renewal clause to be determined by negotiation with Mason County receiving$1,000 per year for each acre actively being farmed by the lessee plus 14.17% of gross proceeds realized by Seattle Shellfish upon each harvest of geoduck clams and other shellfish species will be paid by percentage at the time of sale in lieu of an annual fee; and BE IT FURTHER RESOLVED, that Seattle Shellfish will pay to the County any leasehold excise tax due at the time of payment of rent to the County as required by RCW 82.29A; and BE IT FURTHER RESOLVED, that the proceeds from this lease are to be dedicated first to any expenses incurred by Mason County Current Expense to create and administer the lease and finally to County Government as the Board of County Commissioners desire; and BE IT FURTHER RESOLVED, that the chairperson of the Commission is authorized to sign the amended lease agreement with the lessee. DATED this day of July, 2020. BOARD OF COUNTY COMMISSIONERS ATTEST: MASON COUNTY, WASHINGTON Clerk of the Board Sharon Trask, Chair APPROVED AS TO FORM: Randy Neatherlin, Commissioner Tim Whitehead Chief Deputy Prosecuting Attorney Kevin Shutty, Commissioner Filed at the Request of and to be Returned to: Seattle Shellfish,LLC 2101 41"Ave E STE 201 Olympia, WA 98506 TIDELANDS LEASE AGREEMENT AMENDMENT NO. 2 Grantor MASON COUNTY, WASHINGTON (Lessor) Grantee SEATTLE SHELLFISH LLC, a Washington limited liability (Lessee) company Legal Description Additional Legal on Page 1. (Abbreviated) Assessor's Tax 22001-44-60570 Parcel ID No. _ Reference Nos. of AF 4 2028115 Related Documents THIS AMENDED TIDELANDS LEASE AGREEMENT ("Lease"), is made and entered into this day of , 2019, by and between Mason County, Washington, ("Mason County"or "Lessor") and Seattle Shellfish LLC, a Washington limited liability company("Seattle Shellfish" or"Lessee"). RECITALS A. Mason County owns tidelands adjacent to Harstine Island, which are generally described as Mason County Assessor Tax Parcel No. 22001-44-60570 and that are excess to of the needs of Mason County; B. Mason County requested and received proposals for the tidelands and held a public hearing and approved a proposed lease with Lessee; C. The Board of County Commissioners of Mason County adopted Resolution 68-13 on December 10, 2013, approving a lease agreement with Lessee for the purpose of cultivating and harvesting geoduck clams on the tidelands known as Tax Parcel No. 22001- 44-60570. A copy of Resolution No. 68-13 is attached hereto as Exhibit A; and Page 1 Z I abed AowollV 2upnoosoad f,4nd2(l`pu9galigm tuty :W-HOd OL Sty GaAO2iddV pauog alli jo xaa10`xima Q essllow �.LS3,LLV aotipnd,�luno0 uosujN`aainrJoW 4ppud :AU io2mm j l`suoggjt) ,I sourtp uosaadaititl0 °�„n,- s'—L& :AS :AS Jr 'I HSI,4rlrlaHS a'IJUVaS AJLN lOa NOWN MSS21TH3,LAIvH9 HOSST"O.LN"D •ua11LIM aAoqu 15ag aT;atf put Aup at{l soumu ,Iiagl pauSis anuq olaaatl sa1l,Tud atll `,gogHaflM SSaN.LIA� NI -joaaagl luotupuouzl,is ig otp pun loualuoo Ituigtao oql aad st looga ul UIPLUaa saotlipuoo put suzial aaglo IIV 'H 'V6Z'Z8 A%Lo-d Xq pa Ynbw se Aluno:)aql of luaa jo luawktd ,lo owil oql 1B onp xul osioxa plogosual Aut aossa-I aql of Xud of sow t a3ssa7 •xul astaxa plogasual applout of pagipow aq luawooau osual all palsonbw suT4 aossa-I .O put`.suitlo,lanpoat palsanaug atllJo Plus JOJ POAla-01 aaiad salts ssoa8 otp Io%L I'tr I °l%5 I Woo saniaaai AILMOD Pell lu02l a'StluaoJad IO lunowt atll aonpaa of pagtpoui aq luamaa4u ospal oql polsanbaz stq oassa-1 .A `•put `•OL909,tttr I00ZZ 'ON loond xt.L st mmml spuulapp otp utoal palsanattl tlsgllatls jo alus aql tuoij paAiaoai salts ssoA atll3o luooaad t uo pasuq luaa 2uipasaadUs u pue spuulap!l poltnillno aoI wou Pad lunoum paxg t ked Ipm iT pxOly stq oossa7 'g !put .Q ligigxg su olaaaq patlaulle sz L l-6L 'ON uollnlosa�l Io Xdoo V qs gllags apnloul of popuouiu aq liTaivaaaV aql paisanbaa aasso I aril `L I OZ uI Q HSI3'I'IaHS 9'I.L.LVgS HIM JNHWFIFI'HDV USVR'I (1'J-U :'IWV AMENDED LEASE AGREEMENT WITH SEATTLE SHELLFISH ) :ss COUNTY MASON ) On this day personally appeared before me ,to me known to be the of Mason County, the limited liability company that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said limited liability company, for the uses and purposes therein mentioned, and on oath stated that he is authorized to execute said instrument. IN WITNESS WHEREOF I have hereunto set my hand and affixed my official seal the day and year first above written. Print Name: NOTARY PUBLIC in and for the State of WA, residing at Commission expires: STATE OF WASHINGTON ) ) :ss COUNTY OF THURSTON ) On this day personally appeared before me James L. Gibbons, to me known to be the Manager of Seattle Shellfish LLC, the limited liability company that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said limited liability company, for the uses and purposes therein mentioned, and on oath stated that he is authorized to execute said instrument. IN WITNESS WHEREOF I have hereunto set my hand and affixed my official seal the day and year first above written. Print Name: NOTARY PUBLIC in and for the State of WA, residing at Commission expires: Page 13 MASON COUNTY AGENDA ITEM SUMMARY FORM TO: BOARD OF MASON COUNTY COMMISSIONERS From: Dave Windom-Lydia Buchheit Action Agenda _X_ Public Hearing Other DEPARTMENT: Community Services EXT: _404_ COMMISSION MEETING DATE: 7/14/20 Agenda Item # Commissioner staff to co lete BRIEFING DATE: 7/6/20 BRIEFING PRESENTED BY: Lydia Buchheit [] ITEM WAS NOT PREVIOUSLY BRIEFED WITH THE BOARD Please provide explanation of urgency: ITEM: Contract Amendment for Access to Baby and Child Dental (ABCD) Services with Washington Health Care Authority (HCA) to extend current contract 2 more years through June 30, 2022. Background: This contract supports a long standing prevention program where staff organize events and activities related to the ABCD program and who acts as a liaison/advocate between providers and families of ABCD eligible children birth up to six years old. RECOMMENDED ACTION: Approval of contract amendment #2 for HCA ABCD Services Attachment(s): HCA contractK2751 Amendment #2 L Community Services- Public Health\PH 07.14.20 Action ABCD contract.doc CONTRACT HCA Contract No.: K2751 Washington State AMENDMENT Amendment No.: 02 Health Care uthority For ABCD DENTAL SERVICES THIS AMENDMENT TO THE CONTRACT is between the Washington State Health Care Authority and the party whose name appears below, and is effective as of the date set forth below. CONTRACTOR NAME CONTRACTOR doing business as (DBA) Mason County Public Health CONTRACTOR ADDRESS WASHINGTON UNIFORM BUSINESS IDENTIFIER 415 N. 6th Street Shelton, WA 98564 WHEREAS, HCA and Contractor previo Access to Baby and Child Dentistry' (ABCD) services to dete y by engaging dentists in seeing birth to six (6) year olc )cal public health departments in outreach and case mans WHEREAS, HCA and Contractor wish tc �.3 to increase funds, add definitions, extend term, upde NOW THEREFORE, the parties agree th 1 . The maximum contract amount is -naximum contract total of $76,400.00. 2. Section 3 Special Terms and Conditions, two new subsections are added as follows: h) "Coordinator" means the individual hired to organize events and activities related to the ABCD program and who also acts as a liaison/advocate between providers and families of ABCD eligible children birth up to six (6) years old. i) "DentistLink" means a free referral service for anyone in Washington (Sponsored by Arcora Foundation), connecting clients with dental providers. All remaining subsections are subsequently re lettered and internal references updated accordingly. 3. Section 3.2 Term, subsection 3.2.1 is deleted and replaced in its entirety as follows: 3.2.1 The initial start date of the Contract was on July 1 , 2018, the term has been extended for an additional two (2) year term, and set to continue through June 30, 2022, unless terminated sooner as provided herein. 4. Section 3.3 Compensation, subsection 3.3.1 is deleted and replaced in its entirety as follows: HCA Contract No. K2751-02 Page 1 of 20 3.3.1 The Maximum Compensation payable to the Contractor for the performance of all things necessary for or incident to the performance of the work as set forth in Schedule A-1 : Statement of Work has increased by $ 38,200.00, for a new Contract Maximum Compensation of $76,400.00, and includes any allowable expenses. 5. Section 3.8 Incorporation of Documents and Order of Precedence is deleted and replaced in its entirety as follows: 3.8 INCORPORATION OF DOCUMENTS AND ORDER OF PRECEDENCE Each of the documents listed below is by this reference incorporated into this Contract. In the event of an inconsistency, the inconsistency will be resolved in the following order of precedence: 3.8.1 Applicable Federal and State of Washington statutes and regulations; 3.8.2 Recitals; 3.8.3 Special Terms and Conditions; 3.8.4 General Terms and Conditions; 3.8.5 Attachment 1: Federal Compliance, Certifications and Assurances; 3.8.6 Attachment 2; Federal funding Accountability and Transparency Act (FFATA) Data Collection Form; 3.8.7 Schedule A-1 : Statement of Work; 3.8.8 Exhibits A-1: ABCD Quarterly Community and Provider Outreach and Case Management Report; 3.8.9 Exhibit B: ABCD Quarterly Outreach and Coordination of Care Report; 3.8.10 Exhibit C-1 : ABCD Yearly Budget Tool; 3.8.11 Exhibit D: ABCD Coordinator Performance Expectations and Abilities; and 3.8.12 Any other provision, term or material incorporated herein by reference or otherwise incorporated. 6. Schedule A: Statement of Work, is replaced in its entirety with Schedule A-1 : Statement of Work, attached hereto and incorporated herein. 7. Exhibit A: ABCD Quarterly Outreach and Case Management Report, is renamed and replaced in its entirety with Exhibit A-1 : ABCD Quarterly Community and Provider Outreach and Case Management Report, attached hereto and incorporated herein. 8. Exhibit B: ABCD Quarterly Outreach and Coordination of Care Report is replaced in its entirety with Exhibit B-1 : ABCD Quarterly Outreach and Coordination of Care Report, attached hereto and incorporated herein. HCA Contract No. K2751-02 Page 2 of 20 9. Exhibit C: ABCD Yearly Budget Tool is replaced in its entirety with Exhibit C-1 : ABCD Yearly Budget Tool, attached hereto and incorporated herein. 10.Exhibit D: ABCD Coordinator Performance Expectations and Abilities is incorporated into the Contract, attached hereto and incorporated herein. 11.This Amendment will be effective July 1 , 2020 ("Effective Date"). 12.All capitalized terms not otherwise defined herein have the meaning ascribed to them in the Contract. 13.All other terms and conditions of the Contract remain unchanged and in full force and effect. The parties signing below warrant that they have read and understand this Amendment and have authority to execute the Amendment. This Amendment will be binding on HCA only upon signature by both parties. CONTRACTOR SIGNATURE PRINTED NAME AND TITLE DATE SIGNED HCA SIGNATURE PRINTED NAME AND TITLE DATE SIGNED HCA Contract No. K2751-02 Page 3 of 20 Schedule A-1 : Statement of Work (SOW) The Contractor shall provide the services and staff, and otherwise do all things necessary for or incidental to the performance of work, as set forth below: A. In accordance with deadlines in Exhibit A-1, ABCD Quarterly Community and Provider Outreach and Case Management Report, develop and implement an ABCD action plan in accordance with the ABCD program principles and submit corresponding budget, using Exhibit C, ABCD Yearly Budget Tool. The ABCD program principles are outlined below. 1. Provide outreach and linkage of Apple Health/Medicaid-eligible Clients, ages birth to six (6), with an emphasis on children of color, children 0-2, and other eligible but underserved children in the service area in collaboration with other organizations, including, but not limited to: a) Provide outreach by attending, visiting or working with the below, but not limited to the following: i. Outreach and marketing events and activities such as health fairs, use of social media (ie; Facebook, Twitter, Instagram, Constant Contact, etc) to perform targeted outreach activities that effectively connect with families of eligible children. ii. SmileMobile (sponsored by the Arcora Foundation) locations (a mobile dental clinic providing dental services to children, pregnant women, and others iii. Women, Infants, and Children WIC offices (a federal assistance program of the Food and Nutrition Services of the United States Department of Agriculture; iv. Head Start and Early Head Start facilities (a federal program that promotes the school readiness of children under five from low-income families); v. Early Learning Regional Coalitions (that are a not-for-profit alliance of employers and community subsidized before and after school child care); and vi. Day Care facilities throughout the state of Washington. b) Provide care coordination, including: i. Provide family orientation; including but not limited to, sharing information about the value of an infant, toddler, or young child going to the dentist, what activities to expect at the dentist's office, and the importance of oral health care at home. ii. Connect families with an ABCD certified dentist who accepts Apple Health/Medicaid, and providing information including, but not limited to, names and referrals to dentists, sharing information about interpreters and transportation benefits, and following up after an appointment, if appropriate; iii. Assist, as needed, in scheduling dental appointments for eligible children and counsel on the importance of keeping the appointment; and c) Work with the DentistLink team to align DentistLink tool with local program's referral processes to ensure ABCD clients have a variety of complementary avenues for referral and linkage to ABCD providers. i. Coordinate ABCD program's dentist recruitment and support efforts with DentistLink's by assuring both programs have the same updated information: HCA Contract No. K2751-02 Page 4 of 20 ii. Contact each practice to update participating-ABCD dentist roster: 1. number and frequency of clients accepted; 2. appointment times/days; 3. translation availability times/days; 4. change business status of practice (not accepting new ABCD clients, accepting more clients, etc.); 5. new providers, Phase I, Phase II; and 6. other. iii. Submit updated ABCD provider roster to DentistLink electronically via one shared file iv. Identify and address family barriers to accessing oral health care. d) Bi-annually convene or participate in a county-wide or regional oral health coalition or ABCD steering committee or other groups which focuses on health care, access or early learning in order to build awareness of the ABCD program and solicit input on process improvements i. Invite to participate in the meeting with the ABCD state managing director, the Arcora Foundation, and the Health Care Authority dental program administrator. e) Continuously coordinate with the local ABCD Dental Champion(s) to: i. Identify and recruit dental providers to accept and provide care to Apple Health/Medicaid clients birth to six (6) years through the ABCD Program; ii. Maintain a list of active ABCD dental providers who accept Apple Health/Medicaid Clients birth to six (6) years and monitor provider availability to accept new Clients birth to six (6) years into their practice; iii. Support current ABCD providers by communicating program changes and policy updates through in-person meetings and written communication; iv. Plan and implement, in coordination with the UW School of Dentistry, timely ABCD provider trainings (Phase I, II and refresher training) leading to certification of providers and onboarding of their staff; v. Assure provider ABCD certification process is completed; vi. Provide or arrange for, timely Apple Health/Medicaid billing training assistance to ABCD office staff and providers, as needed, vii. At minimum annually update dental society (or local dentists/study clubs in counties without a society) on the ABCD Program and support their continued participation in the program and encourage recruitment of new Apple Health/Medicaid providers; and viii. Support the Dental Champion(s) participation in meetings and activities necessary to effectively conduct Apple Health/Medicaid provider outreach, recruitment and training, including financial support of attendance (travel, lodging, etc.) in Development Day. HCA Contract No. K2751-02 Page 5 of 20 ix. Identify and recruit primary care medical providers to participate in Apple Health/Medicaid as ABCD certified providers, secure their training through Arcora Foundation in preventive oral health care techniques (Family Oral Health Education, fluoride varnish, etc.) and build their role in referring Apple Health/Medicaid-eligible children to the ABCD Program. x. Participate in all three (3) statewide ABCD Coordinators group meetings to remain current with ABCD policies, practices and opportunities. Programs which do not meet this annual contract requirement will be subject to contract review by HCA and potentially, to loss of this contract. A. Participate in the annual statewide ABCD Champion Development Day meeting to remain current with a4W new clinical practices and opportunities. Meet, network, and share knowledge with other champions regarding program roadblocks and successes. With HCA permission, attendance at Development Day may be counted in lieu of participation at one missed ABCD Coordinators meeting. xii. Identify an ABCD Coordinator within the contracting organization who will develop and maintain a desk manual that outlines the expected ABCD contractual deliverables and how the contractor meets each deliverable. The Coordinator will utilize this manual to fulfill the contractual requirements and to orient new lead staff within the organization to the ABCD program. f) If the Contractor's Coordinator vacates the position, the contractor must notify the Health Care Authority within two weeks, of the coordinators departure, and; i. Share the Contractor's developed work plan that outlines how the expected contract deliverables will be met; ii. Share with HCA the contact information of the newly hired or appointed Coordinator and; iii. Coordinate with HCA to assure a smooth transition of the expected contracted work deliverables, including participation in program orientation with HCA and other state partners. iv. ABCD Coordinator new hire must reasonably meet the expectations as identified in Exhibit D ABCD Coordinator Performance Expectations and Abilities. g) If the Contractor determines that it can no longer serve as the ABCD Contractor, reasonable notice 90 days must be given to HCA in order to assure uninterrupted service to clients and work with providers and: i. Work with HCA and other state partners to identify potential new ABCD-lead agencies. 2. Each quarter, the contractor must complete and submit the following via email: a) Community and Provider Outreach and Coordination Care summary which shall include; i. Exhibit A-1, ABCD Quarterly Community and Provider Outreach and Case Management Report for the specific quarter; and ii. Exhibit B, ABCD Quarterly Outreach and Coordination of Care Report. 3. Each year, the contractor must complete and submit via email the Exhibit C, ABCD Yearly Budget HCA Contract No. K2751-02 Page 6 of 20 Tool, as applicable to the requirements, contained in Exhibit A-1. 4. Each quarter the contractor must submit a fully completed invoice that correlates with dollar values for completed deliverables outlined in Exhibit A-1: a) Exhibit templates are available on the ABCD website hfti)://abcd-dental.org/for-coordinators/- and b) Reports and billing must be submitted no later than one month after each quarter end date, unless otherwise mutually agreed by both parties. HCA Contract No. K2751-02 Page 7 of 20 MASON COUNTY AGENDA ITEM SUMMARY FORM TO: BOARD OF MASON COUNTY COMMISSIONERS From: Dave Windom-Lydia Buchheit Action Agenda _X_ Public Hearing Other DEPARTMENT: Community Services EXT: _404 COMMISSION MEETING DATE: 7/14/20 Agenda Item # ` Commissioner staff to complete) BRIEFING DATE: 7/6/20 BRIEFING PRESENTED BY: Lydia Buchheit [] ITEM WAS NOT PREVIOUSLY BRIEFED WITH THE BOARD Please provide explanation of urgency: ITEM: Contract amendment and extension for Family Education Support Services (FESS) contract #2019-2020 #SA1 from June 1, 2020- September 30, 2021 for an amount of $39,600. Background: FESS will continue to provide two parenting programs two each in Shelton and in North Mason. (4 classes) Additional services are to provide one parenting class for Spanish speaking in Shelton and one in North Mason. (2 classes) This proposal will continue to provide Mason County with vital Substance Abuse Prevention Programming for families through September 2021. RECOMMENDED ACTION: Approval of Amendment 1 Attachment(s)• FESS contract #2019-2020 SA1 Amendment #1 I:\Community Services- Public Health\CA 7.14.20. FESS Ammendment 1.doc Contract Between Mason County Community Services Department of Public Health and Family Education Support Services Contract number 2019-2020#SA1 Amendment#1 The purpose of this amendment is to revise the Scope of Service and invoice process. IT IS MUTUALLY AGREED THEREFORE:That the Original Contract is hereby amended as follows: • EXHIBIT A: SCOPE OF SERVICE • Extend the FESS contract from June 1, 2020-September 30, 2021 • Increase funds for work to$39,600 • One Guiding Good Choices Parenting Class in Shelton and one in North Mason • One Strengthening Families Class in Shelton and one in North Mason. • One Parenting Class in Spanish in Shelton and one in North Mason Billing and Reporting Procedures are amended as follows: • The Subcontractor must submit their own invoice request document and ledger. Submit monthly payment request and ledger electronically to Stacey Ells at staceye@co.mason.wa.us and cc. to Ben Johnson at beni@co.mason.wa.us as close to the first(1st)of each month as possible. ALL OTHER TERMS AND CONDITIONS of the original Contract and any subsequent amendments hereto remain in full force and effect. IN WITNESS WHEREOF,the undersigned has affixed his/her signature in execution thereof on the _2 day of July 2020. FAMILY EDUCATION SUPPORT SERVICES BOARD OF COUNTY COMMISSIONERS MASON COUNTY,WASHINGTON W S elly Wil s, Director Sharon Trask,Chair Randy Neatherlin, Commissioner Kevin Shutty,Commissioner MASON COUNTY AGENDA ITEM SUMMARY FORM TO: BOARD OF MASON COUNTY COMMISSIONERS From: Dave Windom Action Agenda X_ Public Hearing Other DEPARTMENT: Community Services EXT: _260_ COMMISSION MEETING DATE: 7/14/20 Agenda Item # Commissioner staff to complete) BRIEFING DATE: 6/29/20 and 7/6/20 BRIEFING PRESENTED BY: Dave Windom and Todd Parker [] ITEM WAS NOT PREVIOUSLY BRIEFED WITH THE BOARD Please provide explanation of urgency: ITEM: Coordinated Entry Proposal and North Mason Resources Contract Background: The proposal is to centralize coordinated entry services into Crossroads Housing to better leverage staffing to enhance service throughout Mason County and improve program outcomes. RECOMMENDED ACTION: Approval of contract amendment with Crossroads Housing and discontinue contract with North Mason Resources Attachment(s): Contract Amendment I Tommunity Services-Public Health\PH_07.14.20_C.Action CE Proposal.doc Contract Between Mason County and Crossroads Housing Professional Services Contract#CH:2019-2021.4 Amendment# 3 The purpose of this amendment is to increase the total award of the contract for expanded Coordinated Entry Services IT IS MUTUALLY AGREED THEREFORE: That the Original Contract is hereby amended as follows: 1. FUNDING SOURCE: 2163 Local Document Recording Fees 2. AMENDMENT TERM: September 1, 2020— June 30, 2021 3. TOTAL AWARD: $29,167 4. APPENDIX A— SCOPE OF WORK The award goes to the Coordinated Entry program with the purpose to expand Coordinated Entry services and outreach throughout the northern part of Mason County to improve positive housing outcomes to households experiencing homelessness in such places as Matlock, Hoodsport, Union, Belfair, and the federally recognized tribes. CONTRACTOR agrees to partner with food banks, Park Rangers, Sherriff's Office, Fire Districts, the Overton Family, Tribes, and any other entity that may encounter households experiencing homelessness. 5. REPORTING: CONTRACTOR will use the Coordinated Entry report with a separate tracking sheet for this area. ALL OTHER TERMS AND CONDITIONS of the original Contract and any subsequent amendments hereto remain in full force and effect. IN WITNESS WHEREOF, the undersigned has affixed his/her signature in execution thereof on the day of 2020. CONTRACTOR MASON COUNTY Tanya Strozyk-Frazier Sharon Trask, Chair Executive Director, Crossroads Housing Board of County Commissioners 1 MASON COUNTY AGENDA ITEM SUMMARY FORM TO: BOARD OF MASON COUNTY COMMISSIONERS From: Mike Collins, PE, PLS, Deputy Director/County Engineer Action Agenda DEPARTMENT: Public Works EXT: 450 COMMISSION MEETING DATE: July 14, 2020 Agenda Item # BRIEFING DATE: June 1, 2020, March 9, 2020 and March 2, 2020 BRIEFING PRESENTED BY: Loretta Swanson and Mike Collins [] 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 fourth 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 fourth set of water systems that have re-applied for franchise agreements and to be considered include: Aquarius Utilities, LLC Island Shores Water, LLC Detroit Water Service Association Oak Park Water Company, LLC Mission Creek Tracts Water System Mason County Public Works U&W Mgmt. Little Mission Creek Water System 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 Aquarius Utilities, LLC, Island Shores Water, LLC, Detroit Water Service Association, Oak Park Water Company, LLC, Mission Creek Tracts Water System, Mason County Public Works Utilities &Waste Management Division and Little Mission Creek Water System, 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 Aquarius Utilities, LLC FOR A FRANCHISE PERMIT TO CONSTRUCT, OPERATE, AND MAINTAIN A water System and Appenditures _UTILITY FACILITIES, OVER, ALONG AND UNDER COUNTY ROADS AND HIGHWAYS LOCATED IN MASON COUNTY, WASHINGTON Application of(Name of Operator) Aquarius Utilities, LLC doing business in Washington as Aquarius Utilities, LLC with its principal offices located at 23411 Rhododendron Ln. HW Poulsbo,WA 98370, by and through (person authorized to act for and on behalf of applicant)Greggry Roats , for a franchise to construct, operate and maintain (description oftype)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 within the Franchise Area identified in attached Exhibit`B", for the purpose of installing, I 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 Appenditures. 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, 3 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 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 5 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 resurfacing or widening); change of road right-of-way grade; construction,installation,or repair of 6 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. E. The Franchisee shall, on the request of any person holding a valid permit issued by a 7 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 utilities at the time of road vacation,and will continue to be the practice until such time the Board of 8 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 County as an additional insured without limitation,pursuant to an endorsement approved of by the 10 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 Risk Manager for the GENERAL LIABILITY policies described above,shall be sent to the County's 9 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 Franchisee thirty(30)days from the date of such notice to cure any such default. In the event that the 11 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. 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 15 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 Mason's right to enforce all other provisions of this franchise. 16 D. Attorneys 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 attorneys 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: Aquarius Utilities, LLC 23411 Rhododenron Ln.HW Poulsbo, WA 98370 Attn: Gregory Roats 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 s 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 APPROVED: MASON COUNTY, WASHINGTON Co ty 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. M��� I, i.�fl,w Da�� , am the of r,` NO L LG 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 day of ,j , 20 ZO. FRANCHISEE By: _'A -Z Its: Tax Id. No. STATE OF WaSK j rut�on ) ss. COUNTY OF j Sap ) I certify that I know or have satisfactory evidence that GC o r CrCO-- !-G 2ncasts 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 tl kn-bw I C,&UTAl M A!.Kof the Aauaias L Ij►hies, LLC, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: 04P JQnu m" 2462_O Notary Public DAWN N ANDREN Print Name -DOwwn. N . AnckMn NOTARY PUBLIC My commission expires CAI/ 29 111 (SEPTEMBER TATE OF WASHINGTON COMMISSION EXPIRES 29,2021 A EXHIBIT B Description of Franchise Area In Section 36, Township 23 N., Range 2 W., W.M. Mason County, WA; Lynch Cove 2. Bk.7 pp. 114-115; Lynch Cove 3, Bk 8, pp. 25-26; Lynch Cove 4, Bk. 8, pp. 42-43; Beards Cove 1 , Bk 8, p. 69, Gladwins Subdivision, Bk. A, pp. 27-29; Remainder of East half of Section 36 lying east of Mission Creek. In Section 31 , Township 23 N., Range 1 W., W.M., Mason County, WA; Beard's Cove 2, Bk. 8, pp. 70-71 ;- Remainder of West half of Section 31 , except Beards Cove 8, Bk. 9, pp. 45-48. B i 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: Aquarius Utilities, LLC Franchise Agreement Grantor: COUNTY OF MASON, a legal subdivision of the state of Washington Grantee: Aquarius Utilities, LLC Description of Franchise Area: SEE EXHIBIT B IN THE MATTER OF THE APPLICATION OF DETROIT WATER SERVICE ASSOCIATION 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)Detroit Water Service Association, doing business in Washington as The Detroit Water Service Association, with its principal offices located at PO BOX 484 Allyn, WA 98524, by and through (person authorized to act for and on behalf of applicant) David Shurtleff, 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 I 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): Construct, maintain,repair, upgrade and operate a water utility. 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 X" 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 XI11. 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: Detroit Water Service 221 E Detroit Drive Allyn, WA 98524 Attn: Tom Kennedy 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 / /Z1 1/J I ,'�4 EoW9ngine&r 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. the and am the authorized representative to accept the above-referenced franchise on behalf of ce hat t ranchise d all terms and conditions thereof are accepted by without qualification or reservation. DATED is day of J,&l , 202Z' FRANCHISEE By: Its: Tax Id. No. j STATE OF ) ss. main ) COUNTY OF ����\ 1 T I certify that I know or have satisfactory evidence that d ) V 1• ��� �T is the person who appeared before me,and said person acknowledged that he/she signed is instru ent, n oath stated that he/ w authorized t execute the instrument and acknowledged it as the Z f S 1 � of the of \k yy i Cj to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: \0LA00L/V \V 0..KIE-N/O� `�� ••s•••o• R��''.� oCame li ' Q,{1 14U •• • Pr �SPk" = Myssion ex ires 1UL coots EXPIRES e = . NNE 19 2p21 _ i o Z ••• ° `O OF'W`P A EXHIBIT B Description of Franchise Area N Detroit Com ni 13 o + a � Ooi E CO NT ME K A O i w 000 a O� w i w �� i p w J� t 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: Detroit Water Service Association Franchise Agreement Grantor: COUNTY OF MASON, a legal subdivision of the state of Washington Grantee: Detroit Water Service Association Description of Franchise Area: SEE EXHIBIT B IN THE MATTER OF THE APPLICATION OF Mission Creek Tracts Water System 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) Mission Creek Tracts Water System, doing business in Washington as Mission Creek Tracts with its principal offices located at PO Box 71 Belfair, WA 98528, by and through(person authorized to act for and on behalf of applicant) Dee Geisler, 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; 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, 3 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 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.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. M. Franchisee shall promptly reimburse the County for their reasonable and direct costs 5 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 resurfacing or widening);change of road right-of-way grade;construction,installation,or repair of 6 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. E. The Franchisee shall, on the request of any person holding a valid permit issued by a 7 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 utilities at the time of road vacation,and will continue to be the practice until such time the Board of 8 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 Dory&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 9 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 County as an additional insured without limitation,pursuant to an endorsement approved of by the 10 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 Franchisee thirty(30)days from the date of such notice to cure any such default. In the event that the 11 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. 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 15 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. XVIH. 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: Mission Creek Tracts Water System PO Box 71 Belfair WA 98528 Attn: Dee Geisler 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, 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 APPROVED: MASON COUNTY, WASHINGTON C Engineer Chair Approve as to form: Vice Chair Chief D.P. . Commissioner 20 Exhibit A ACCEPTANCE OF FRANCHISE Ordinance No. 115-06, effective November 14, 2006. I, -b e E 6 El S L_tZ- , am th 4.G775, and am the authorized representative to accept the above-referenced franchise on behalf of 45,S1e16 d4akIk" &141'E� ;s 4&*- I certify that this franchise and all terms and conditions thereof are accepted by jj, �;Q ft without qualification or reservation. DATED this Al day of {'� , 20_�O. FRANCHISEE By: Its: 1 Bw ee,k-T 1 1 Tax Id. No. 4 7 s 3g2 o STATE OF W w4%,vt5-j�yn ) ss. COUNTY OF k4'L+J4-P ) I certify that I know or have satisfactory evidence that « sl G r 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: ;m v-kx) Notary Public Print Name LANDA C ROSE-FUCHS,NOTARY PUBLIC My commission expires MY APPOINTMENT EXFW3.'4-1 A EXHIBIT B Description of Franchise Area Mission Creek " m rn x D v x Y W W Z N N 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: Mission Creek Tracts Franchise Agreement Grantor: COUNTY OF MASON, a legal subdivision of the state of Washington Grantee: MISSION CREEK TRACTS Description of Franchise Area: SEE EXHIBIT B IN THE MATTER OF THE APPLICATION OF LITTLE MISSION CREEK 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)Little Mission Creek Water System, doing business in Washington as Little Mission Creek Water System, with its principal offices located at 630 E Wilson Way Grapeview, WA 98546, by and through(person authorized to act for and on behalf of applicant)Richard Jarrett, for a franchise to construct, operate and maintain (description of type) water utility j 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 I 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 i 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 II 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. XVH. 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: Little Mission Creek Water System 630 E Wilson Way Grapeview, WA 98546 Attn: Richard Jarrett 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 APPROVED: MASON COUNTY, WASHINGTON C ngin er 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. am the 1,4t Lw S of L1"�c�-✓S 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 Z_—/'''1 `�, ,without qualification or reservation. DATED this 2$day of/C__ff6 , 20 Z Q FRANCHISEE ' . By: Its: it a Tax Id.No. STATE OF u c l\ ) )ss. COUNTY OF 'M 0.5� ) I certify that I know or have satisfactory evidence that ?-\\C Vla� (P_t4- 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 r t nc_rNC�_X '5cc . of the L_ VyA C.1.,-�5 to be the free and voluntary act of such party for the uses and purposes mentioned in/the instrument. Dated: r� Notary Public��1� Cam` Notary Public nt Name 1— of Washington commission expires —15—ZZ KELLE MEDCALF rState Y CONMSSION EXPIRES APRIL 15,2022 A EXHIBIT B Description of Franchise Area Little Mission Creek " , m ' v �o 0 jz ,i 0 OR�H SORE R 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: Little Mission Creek Water System Franchise Agreement Grantor: COUNTY OF MASON, a legal subdivision of the state of Washington Grantee: LITTLE MISSION CREEK WATER SYSTEM Description of Franchise Area: SEE EXHIBIT B IN THE MATTER OF THE APPLICATION OF Oak Park Water Co Inc. FOR A FRANCHISE PERMIT TO CONSTRUCT, OPERATE, AND MAINTAIN Water SystemUTILITY FACILITIES, OVER,ALONG AND UNDER COUNTY ROADS AND HIGHWAYS LOCATED IN MASON COUNTY, WASHINGTON Application of(Name of operator) Oak Park Water Co Inc., doing business in Washington as Oak Park Water Co Inc., with its principal offices located at PO BOX 2026 Shelton, WA 98584, by and through (person authorized to act for and on behalf of applicant) Esther Cunningham, Owner, 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.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. 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 an Person that is authorized to lace facilities in the road right of wa requests the Y pY q 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. XVH. 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: Oak Park Water Co. Inc. PO BOX 2026 Shelton, WA 98584-5034 Attn: Esther Cunningham 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 //-."///t"e q14 � Co gineer - Chair Approve as to form: Vice Chair Chief D.P.A. Commissioner 20 Exhibit A ACCEPTANCE OF FRANCHISE Ordinance No. 115-06, effective Novetnber 14 2006. I, � f�er CU#%"I n v lyc�'k-- , am the o t_u of -[�e- o'Lk �,t),-{ry' ce 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 L . without qualification or reservation. DATED this 4 day of Fr-b fr!:,oq 2011). FRANCHISEE By: 14ZL,Its: Tax Id. No. `i 1 -d q`1'{ 2a 9 STATE OF ss. COUNTY OF I certify that I know or have satisfactory evidence that C�Yh1- C-1-1 is the person who appeared before me,and said person acknowledged that he/she signed th s instrument,on oath stated that he/she was authorized to execute the instrument and acknowledged it as the i of thelS�L,71, c4 P e C— , C<, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: _ p °��, Notary Public Print Name OTgR� �'; My commission expires i 0�� y �y. o UB LtC =+�A Op 8; U A EXHIBIT B Description of Franchise Area Oak Park " W J C.1 Q' T 6.1t: 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: Oak Park Water Co.Inc.Franchise Agreement Grantor: COUNTY OF MASON, a legal subdivision of the state of Washington Grantee: Oak Park Water Co. Inc. Description of Franchise Area: SEE EXHIBIT B IN THE MATTER OF THE APPLICATION OF Island Shores Water 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 Community Water Service, LLC, doing business in Washington as, Island Shores Water, with its principal offices located at 302 Manning Road Colfax, WA 99111, by and through (person authorized to act for and on behalf of applicant) Todd Krause, 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 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): 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. VIR. 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 Injga& 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"V 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 XHI. 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 parry 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 Parry 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: Community Water Services, LLC Island Shores Water 302 Manning Road Colfax, WA 99111 Attn: Todd Krause 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. Byway 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 d/7/c4ok County Engi er 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,_Todd Krause , am the_President_of_Community Water Services, LLC and am the authorized representative to accept the above-referenced franchise on behalf of_Island Shores Water System_. I certify that this franchise and all terms and conditions thereof are accepted by _Community Water Services, LLC, Todd Krause, President , without qualification or reservation. DATED this /3�'day of , 20ZE:> FRANCHISEE By. Its: V e -C-, LL L Tax Id. No. 604-111-56 STATE OF_Washington_ ) ss. COUNTY OF_Whitman ) 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 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: A 3/ Notary Public +• y CD Print Name S� C �% r'4 k"s SEE, J �•.••••.���/�,�c��� My commission expires - ` a 561 75 f NOTA�gy G iv $f _pC/BLIG IDS I Optt ES 1 • A EXHIBIT B Island Shores ry Puget Sound Z J a Z W } 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: Island Shores Water Franchise Agreement Grantor: COUNTY OF MASON, a legal subdivision of the state of Washington Grantee: Island Shores Water Description of Franchise Area: SEE EXHIBIT B IN THE MATTER OF THE APPLICATION OF Mason County Public Works Utilities& Waste Management FOR A FRANCHISE PERMIT TO CONSTRUCT, OPERATE,AND MAINTAIN Water& Sewer Systems UTILITY FACILITIES, OVER,ALONG AND UNDER COUNTY ROADS AND HIGHWAYS LOCATED IN MASON COUNTY, WASHINGTON Application of(Name of Operator) Mason County Public Works Utilities& Waste Management, doing business in Washington as Mason County Public Works Utilities& Waste Management, with its principal offices located at 100 W Public Works Drive Shelton, WA 98584, by and through(person authorized to act for and on behalf of applicant) Richard Dickinson, for a franchise to construct, operate and maintain(description of type) Water& Sewer S. ste 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 April, 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& Sewer Systems. 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- way the Franchisee shall use the Manual. Prior to commencement of work in the road rights-of- 3 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 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.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. 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 5 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, 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 6 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 other objects. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same. 7 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 Iniury& 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 thereafter, and as provided below. All coverage shall be listed all on one certificate with the same expiration dates. 9 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. 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. 10 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 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 11 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; 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 12 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. 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. 13 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. 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, 14 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 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, 15 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. 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 16 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: Mason County Public Works Utilities& Waste Manalzement 100 W Public Works Drive Shelton, WA 98584-5034 Attn: Richard Dickinson 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 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. 17 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 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, 18 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 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. 19 DATED at Shelton, Washington this day of 20_. BOARD OF COMMISSIONERS APPROVED: MASON COUNTY, WASHINGTON Co ty En ineer 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, Richard Dickinson, am the Deputy Director of Mason County Public Works Utilities & Waste Management and am the authorized representative to accept the above-referenced franchise on behalf of Mason County Public Work Utilities & Waste Management. I certify that this franchise and all terms and conditions thereof are accepted by Mason County Public Work Utilities & Waste Mana ems, without qualification or reservation. DATED this 3 day of 00 a�V'1 , 2020. FRANCHISEE By. Its: Tax Id. No. STATE OF lhSh ) )ss. COUNTY OF 0)a�a-) ) I certify that I know or have satisfactory evidence that Richard Dickinson 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 Deputy Director of the Mason County Public Work Utilities&Waste Management to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. II Dated: Notary Public Print Name l My commission expires FState ary Public f Washington LE MEDCALF yflSSION EXPIRESRIL 15,202 A p; �:� 1 y - � el` `..1�.�L.�`r.4 �. /. �� '. .. Mason County Public Works U&W Management EXHIBIT B Description of Franchise Area All County Roads,right of way and real property in Mason County. 13 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: Mason County Public Works Utilities & Waste Management Franchise Agreement Grantor: COUNTY OF MASON, a legal subdivision of the state of Washington Grantee: MASON COUNTY PUBLIC WORKS UTILITIES & WASTE MANAGEMENT Description of Franchise Area: SEE EXHIBIT B 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: July 14, 2020 Agenda Item # Commissioner staff to complete) BRIEFING DATE: March 16, 2020 BRIEFING PRESENTED BY: Assessor [ ] ITEM WAS NOT PREVIOUSLY BRIEFED WITH THE BOARD Please provide explanation of urgency ITEM: Public hearing to consider the 2019 Open Space application from Baidha Dominique Wallace . Background: The Open Space Taxation Act, enacted in 1970, allows property owners to have their open space, farm and agricultural, and timberlands valued at their current use rather than their highest and best use. RCW 84.34 governs this Act. There is one application to consider for Current Use Open Space designation. This is a 5-acre parcel classified in designated forest land and the request is to transfer 4 acres to Open Space. The Assessor recommends approval. RECOMMENDED ACTION: Move to approve the 2019 Open Space application from Baidha Dominique Wallace as recommended by the Assessor. Attachment: Application Info MASON COUNTY ASSESSOR CURRENT2019 APPLICATION NUMBER: CUOS01-2019 Parcel Number: 12oi8-76-00020 Applicant's Name: Baidha Dominique Wallace Property Address: lol E Mandy Lane, Shelton, WA Discussion: This is a S.00-acre parcel classified in designated forest land and they would like to transfer 4.00 acres to current use open space and remove 1.00 for a building site. RECOMMENDATION ..........................._.......................................................................................................................................................................................................................................... The Assessor recommends approve the 4.00 into current use open space. A removal has been processed for the i.00 acre building site that will remain at market value due to the residence. PHOTO ATTACHED When Recorded Return to: Mason County Commissioners 411 North Fifth Street Shelton,WA 98584 Open Space Taxation Agreement Chapter 84.34 RCW (To be used for"Open Space"and"Timber Land"Classification or Reclassification Only) Property Owner Baidha Dominique Wallace Property Address 101 East Mandy Lane Shelton,Wa 98584 Legal Description Section 18,Twn 20,Rng 1 TR 2 of survey 14/140 Assessor's Property Tax Parcel or Account Number 12018-76-00020 Reference Numbers of Documents Assigned or Released This agreement between Baidha Dominique Wallace hereinafter called the"Owner",and Mason County hereinafter called the"Granting Authority". Whereas,the owner of the above described real property having made application for classification of that property under the provisions of Chapter 84.34 RCW.And whereas,both the owner and granting authority agree to limit the use of said property,recognizing that such land has substantial public value as open space and that the preservation of such land constitutes an important physical,social,esthetic,and economic asset to the public,and both parties agree that the classification of the property during the life of this agreement shall be for: ® Open Space Land—RCW 84.34.020(1)(a)or(b) ❑ Farm and Agricultural Conservation Land(a sub classification of open space land)—RCW 84.34.020(1)(c) ❑ Timber Land—RCW 84.34.020(3) Now,therefore,the parties,in consideration of the mutual covenants and conditions set forth herein,do agree as follows: 1. During the term of this agreement,the land shall be used only in accordance with its classified use. 2. No structures shall be built upon such land except those directly related to,and compatible with,the classified use of the land. 3. This agreement shall be effective commencing on the date the legislative body receives the signed agreement from the property owner and shall remain in effect until the property is withdrawn or removed from classification. 4. This agreement shall apply to the parcels of land described herein and shall be binding upon the heirs,successors and assignees of the parties hereto. 5. A request may be filed with the assessor to withdraw from the program after the land has been classified for 10 or more years.No 20%penalty will be imposed.The applicable taxes and interest shall be imposed as provided in RCW 84.34.070. REV 64 0022(07/05/19) 1 6. After the effective date of this agreement,any change in use of the land,except through compliance with items (5),(7),(9),or(10),shall be considered a breach of this agreement,and shall be subject to removal of classification and liable for additional tax,interest,and penalty as provided in RCW 84.34.080 and RCW 84.34.108. 7. A breach of agreement shall not have occurred and the additional tax shall not be imposed if removal of classification resulted solely from: a) Transfer to a governmental entity in exchange for other land located within the State of Washington; b) A taking through the exercise of the power of eminent domain,or sale or transfer to an entity having the power in anticipation of the exercise of such power and having manifested its intent in writing or by other official action; c) A natural disaster such as a flood,windstorm,earthquake,wildfire or other such calamity rather than by virtue of the act of the landowner changing the use of such property; d) Official action by an agency of the State of Washington or by the county or city where the land is located disallowing the present use of such land e) Transfer of land to a church when such land would qualify for exemption pursuant to RCW 84.36.020; f) Acquisition of property interests by state agencies or agencies or organizations qualified under RCW 84.34.210 and 64.04.130 for the purposes enumerated in those sections(see RCW 84.34.108(6xf)); g) Removal of land classified as farm and agricultural land under RCW 84.34.020(2)(f); h) Removal of land from classification after enactment of a statutory exemption that qualifies the land for exemption and receipt of notice from the owner to remove the land from classification; i) The creation,sale,or transfer of forestry riparian easements under RCW 76.13.120; j) The creation,sale,or transfer of a fee interest or a conservation easement of private forest lands within unconfined channel migration zones or containing critical habitat for threatened or endangered species under RCW 76.09.040; k) The sale or transfer of land within two years after the death of the owner of at least a fifty percent interest in the land if the land has been assessed and valued as forest land under chapter 84.33 RCW,or under chapter 84.34 RCW continuously since 1993.The date of death shown on the death certificate is the date used;or 1) The discovery that the land was classified in error through no fault of the owner. 8. The county assessor may require an owner to submit data relevant to continuing the eligibility of any parcel of land described in this agreement. 9. The owner may apply for reclassification of the land if reclassification is permissible under RCW 84.34.070. 10. Changes to the conditions of this agreement could result in the re-rating of the parcel by the granting authority, subject to a public hearing,and may result in a change in assessed value.If the granting authority approves the changes in conditions,a revised agreement may be required. REV 64 0022(07/05/19) 2 The parcel(s)of land described in this agreement is subject to the following conditions: The Assessor recommends approve 4.00 into current use open space.A removal has been processed for the 1.00 acre building site that will remain at market value due to the residence. The parcel(s)of land described in this agreement may be used in the following manner: The parcel(s)of land described in this agreement may be removed if the land is used in the following manner: It is declared that this agreement specifies the classification and conditions as provided for in Chapter 84.34 RCW and the conditions imposed by this Granting Authority.This agreement to tax according to the use of the property is not a contract and can be annulled or canceled at any time by the Legislature(RCW 84.34.070). Dated Signature(s)of County and/or City Legislative Authority Title Dated Signature(s)of County and/or City Legislative Authority Title Dated Signature(s)of County and/or City Legislative Authority Title As owner(s)of the herein-described land I/we indicated by my/our signature(s)that I am/we are aware of the potential tax liability and hereby accept the classification and conditions of this agreement. Owner(s) Dated (Must be signed by all owners) Date signed agreement received by Legislative Authority Prepare in triplicate with one copy to each of the following:Owner,Granting Authority,and County Assessor To ask about the availability of this publication in an alternate format for the visually impaired,please call 360-705-6705.Teletype(17M users may use the Washington Relay Service by calling 711.For assistance,contact your local county assessor's office. REV 64 0022(08/02/17) 3