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HomeMy WebLinkAboutCity of Shelton i t i f I FRANCHISE AGREEMENT FOR I WATER,SEWER,RECLAIMED WATER,AND STORMWATER UTILITIES BETWEEN MASON COUNTY AND THE CITY OF SHELTON WHEREAS,the City of Shelton operates a water,sewer,reclaimed water and stormwater utilities, and has infrastructure related to these utilities outside city limits underneath Mason County rights-of-way; and I j WHEREAS,the County finds that it is in the public interest to grant the City a franchise to continue operating and maintaining its utility infrastructure within the County. NOW THEREFORE,the Parties agree to the following terns of a water, sewer, reclaimed, and stormwater system franchise agreement: I. DEFINITIONS j f 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"), I 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 I refers to the same as may be amended, revised, updated, re=enacted or re-codified from.time to time. II. GRANT OF FRANCHISE The County hereby grants to the City a non-exclusive franchise to construct, operate and maintain water,sewer,reclaimed water,and stormwater system utility facilities in,over,along and under county rights-of-way in Mason County, Washington, as set forth in attached Exhibit `B" (Franchise Area). i The County's grant of Franchise shall authorize the City to enter upon the rights-of-way located within the Franchise Area for the purpose of installing, constructing,maintaining, repairing,replacing, adjusting,relocating and operating the water system utility facilities. 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. The City'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 City by implication. This franchise does not include permission to disturb or perform construction in the road rights-of-way for any purposes others than the purposes expressly described herein.The City shall 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. 1 i f I III. UTILITY PERMIT REQUIRED f f The City shall not commence or perform work (hereafter "Work") to install, construct, f maintain,repair,replace,adjust,connect,disconnect,rebuild,or relocate its utility facilities within Ithe rights-of-way, without first applying for, paying all associated fees, and obtaining a utility I permit as required pursuant to Title 12 of the Mason County Code. In any utility permit so issued., i 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 rights-of-way,including, by way of example and not Invitation, for the purpose of protecting any ' ' structures in the rights-of-way, maintaining proper distance from other utilities, ensuring the proper restoration of such rights-of-way and structures, and for the protection of the County and the public and the continuity of pedestrian and vehicular traffic. The City shall first file with the County Engineer or designee 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, Ilaid,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; i B. The class and type of material and equipment to be used, manner of excavation, construction, installation, backfrll, erection of temporary structures, erection of permanent structures,traffic control,traffic turnouts and road obstructions; C. The manner in which the utility facility is installed; D. Measures 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 G. Provision for ease of fitture 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 City. All such Work shall be subject to the approval of and shall pass the inspection of the County 2 i I i i .. i i Engineer or designee. The City 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 RIGHT OF WAY In any Work which disturbs or causes damage to the rights-of-way subject to this franchise, public or private property,the City shall at its own expense and with all convenient speed,complete the work to repair and restore the 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 City shall pay all costs of and expenses i incurred in the examination,inspection and approval of such restoration or repair. j i i 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 City or its agents in a condition dangerous to life or property,and the City,upon demand,shall pay to the County all costs of such work. j V. CITY WORD IN RIGHT OF WAY City expressly agrees and understands that,with regard to Work within-the rights-of--way: i A. All of City'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 rights-of-way the City shall use the Manual. Prior to commencement of work in the rights-of-way, City 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 constriction,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 irnprovements 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 City,shall have preference as to the alignment and location of such utilities so installed with respect to the City. 3 i i i I i I � I i 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; i E. The City shall perform the Work and operate its utility facilities in a manner that minimizes interference with the use of the rights-of-way by others,including others that may be installing utility facilities; and F. The County may require that City'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 right-of-way;may deny access if a City 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 j established by the County, or which is installed without prior County approval of the time,place, j or manner of installation and charge the City for all the costs associated with removal; and may require City to cooperate with others to minimize adverse impacts on the rights-of-way through j joint trenching and other arrangements. r G. The County may inspect the utility facilities at any time reasonable under the E 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 City, in writing, to matte the necessary repairs and alterations specified therein j 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 City fails to do so,and to charge the City 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 constrict and maintain its utility facilities in a safe condition shall at all times remain the sole obligation of the City. H. When required by the County,the City 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. The City 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, the City will contact the appropriate personnel to have such facilities located and snake arrangements as to protective measures that must be adhered to prior to the commencement of any work within the rights-of-way. In addition to the liability terns elsewhere in this Agreement, the City 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 the City, 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 the City, 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 4 i I its contractor, agents and/or employees, on the rights-of-way, and/or (3) any claim or cause of action for alleged loss of profits or revenue,or loss ofservice,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 the City'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. The City shall continuously be a member of the State of Washington one number locator service under RCW l 9.122;or an approved equivalent, and shall comply with all such applicable rules and regulations. I K. Except in the event of emergency as described below, the City 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, the City and its agents may disturb or perform and maintenance activities in 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, the City 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 disturbing the right-of-way or as soon as practicable after entry upon the right-of-Way. M. The City 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 the City's utility facilities in the rights-of-way. N. If, during installation, construction,relocation,realignment, adjustment, maintenance, or repair of the City's utility facilities in the rights-of-way, the City or its agents discover cultural or historic artifacts,the City shall immediately notify the County of said discovery and shall protect such artifacts in a mamier as specified by the County. VI. PROTECTION OF PUBLIC All work done under this franchise shall.be done in a thorough and worlunan-like manner. In the performance of Work within or near the rights-of-way, including without limitation, the opening of trenches and the tunneling under county roads,rights-of way or other county property, the City 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 I that damage or injury shall not occur or arise by reason of such Work; and where any of such 5 I I i I trenches, ditches and tunnels are left open at night, the City shall place warning lights,barricades and other appropriate protective devices at such a position as to give adequate warning of such Work. The City shall be defend, indemnify, and hold the County harmless against any claim for injury to person or persons or damage to property sustained arising out of its carelessness or i neglect,or through any failure or neglect to properly guard or give warning of any trenches,ditches or tunnels dug or maintained by the City. VII. POLICE POWERS I The County,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 City tip 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 City. VIII. RELOCATION i City shall,in the course of any Work, comply with the following requirements: A. The City 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 constriction by the County; road right-of-way repair (including resurfacing or widening); change of right-of-way grade by the County; the County's 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;or for any other purpose where the County work involved would be aided by the removal or relocation of the utility facilities. Collectively, such imatters are referred to below as the"Public Work." The City acknowledges and understands that any delay by the City in performing the herein described work may delay, lender, 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. The City shall cooperate with the County and its contractors and subcontractors to coordinate such City work to accommodate the Public Work project schedules to avoid delay, hindrance of, or interference with the Public Work. The County shall make available to the City a copy of the Six Year Transportation Program and the County's annual constriction program after adoption each year. It is anticipated these programs will aid the City in planning construction programs. B. The City has a duty to protect its utility facilities fiom work performed by the County within the road rights-of-way. The rights granted to the City herein do not preclude the County, its employees,contractors,subcontractors,and agents from blasting,grading,excavating,or doing 6 i i I i I I I other necessary road work contiguous to the City's utility facilities;providing that, the City shall be given a minimum of forty-eight (48) hours notice of said blasting or other work in order that ! the City 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 City for costs incurred. D. If any Person or entity that is authorized to place facilities in the road right of way requests the City to protect,support,temporarily disconnect,remove, or relocate the City's utility facilities to accommodate the construction, operation, or repair of the facilities of such other person,the City shall, after 30 days'advance written notice,or within such other length of time as is desired and reasonable under the circumstances, take action to effect the necessary changes requested; provided that, if such project is related to or.competes with City's service, or if the effect of such changes would be to permanently deprive City of the beneficial enjoyment of this franchise for its intended purposes through interference with the operation of City's utility facilities I or otherwise, City 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 City'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 City or County, even if the County makes the request for such action. The County will accept liability for direct and actual damages to the City that are the result of the negligence of Mason Comity, its trustees, officers, employees, contractors, subcontractors or agents while performing County improvement or Public Works projects enumerated in this franchise agreement under Section VIII. Direct and actual damages are specifically limited to physical damage to properly installed and located infrastructure of the City and the cost to repair such physical damage. The County retains-the right to-assert'all applicable defenses in the event of a dispute including contributory negligence on the part of the City. The County shall in no way j be liable for incidental damages claimed to arise from such actions. All Work to be performed by the City under this section shall pass the inspection of the County Engineer. The City shall pay all costs of and expenses incurred in the examination, inspection and approval of such work. I.X. 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 City shall reference all such monuments and markers. The reference points shall be so located that they will not be disturbed during the City's operations under this francluise. 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 i I I i approved monuments shall be borne by the City. A complete set of reference notes for monument and other ties shall be filed with the office j of the Mason County Engineer. i j X. VACATION OF ROAD RIGHT-OF-WAY i 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 City, 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 I loss to the City by reason of such teimmi ation. Provided, however,that the County shall reserve an easement for the City facility in the property being vacated, which easement shall preserve the i City's ability to maintain, construct, and replace its facilities as needed. If City facilities must.be disconnected, relocated, or removed due to the vacation of a County right-of-way for the benefit of a private property owner, the County shall ensure that any benefitted private property owners pay the.full cost,of relocating the facilities and finish sufficient easements to accommodate the relocated utilities. I i XI.FINANCIAL SECURITY i i A. Insurance Except as otherwise provided herein, the City shall maintain for itself throughout the entire period any part of the City'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 liability arising out of City's use and occupancy of the Franchise Area or any part thereof This obligation shall require the City to maintain insurance at least in the following amounts: i 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 indernnity 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 i 2. WORKERS' COMPENSATION insurance shall be maintained to comply with 8 i i I { t i i t statutory limits for all employees, and in the case any work is sublet, the City shall require its contractors and subcontractors similarly to provide workers' compensation insurance for all the employees. The City 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 City has no employees. The following minimum limits must be maintained: 4 Workers'Compensation Statutory Employer's Liability $ 1,000,000 each occurrence 3. COMPREHENSIVE AUTO LIABILITY insurance shall include owned,hued, and non-owned vehicles operated by City employees on an occurrence basis with coverage of at least$2,000,000 per occurrence. If the City, 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. 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 City shall fiirnish, 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 9 i l 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, City 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. i Insurance policies required pursuant to this franchise shall have no non-standard exclusions unless j approved of by the County Risk Manager or designee. City and City's Contractors' insurers, through policy endorsement, shall waive their tights 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 City elects to include any deductible or ` self-insured retention, City shall itself directly cover, in lieu of insurance, any and all County . liabilities that would otherwise in accordance with the provisiotls of this Franchise be covered by City's insurance if City elected not to include a deductible or self-insured retention. Such direct coverage by City shall be in an amount equal to the amount of City's actual deductible or self-insured retention. City 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. For any construction or maintenance work that is let by contract, the City may satisfy the performance bond requirement of this Section by demonstrating that the project is appropriately bonded in accordance with State law prior to work commencing C. Limitation of Liability. To the fullest extent permitted by law, the City 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 govermnental 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 the City's performance of its rights and duties 10 i i 1 I i under this.franchise,or from the presence of the City's utilities in the right-of-way. 3 Upon written notice from the county, City 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 City has an obligation to assume liability for and/or save and hold harmless any indemnitee. City 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. City 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 City'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 City at the time of completion shall not j be grounds for avoidance of this covenant. i XII. FRANCHISE NONEXCLUSIVE i Thus franchise shall not be deemed to be an exclusive franchise. It shall in no manner prohibit the County 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 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 sarne as the county may deem fit. XIII. 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 city, or extension of the limits of any city, shall fall within the city limits and shall by operation of law or otherwise tenminate 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. XIV. REMEDIES FOR DEFAULT A. 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 City or its agents to keep, observe, or perform any of City's or its agent's duties or obligations under this franchise and continue in this failure after receiving notice of default from the County and a reasonable time to cure the default: 1. Damages. City shall be liable for any and all damages incurred by County as a result of the City's Default. 11 i i i I i i i i I 2. Specific Performance. County shall be entitled to specific performance of each and every obligation of City under this franchise without any requirement to prove or establish that County does not have an adequate remedy at law. The City hereby waives the requirement of any such proof and acknowledges that County would not have an adequate remedy at law for City'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 j required to prove or establish that County does not have an adequate remedy at law. The City hereby waives the requirement of any such proof and acknowledges that County would not have an adequate remedy at law for the City's commission of an Event of Default hereunder. I j 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 the City 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. XV. SUBSEQUENT ACTION i j In the event that after this franchise becomes effective, (a) there is a change in the law which broadens the authority of the County or the City with respect to any act permitted or authorized under this franchise; or (b)the County or the City believe that amendments to this franchise are necessary or appropriate, then the County of Mason and the City 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 City, 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. This franchise may be terminated at such time a public hearing is held by the Board of County Commissioners, and the City's utility facilities are found not to be operated or maintained in accordance with such statute or regulation, after providing the City a reasonable amount of time, which may exceed 90 days depending on the circumstances, to conform its facilities to the statute or regulation. XVI. ACCEPTANCE The City shall execute and return to the County a signed acceptance of the franchise granted 1.2 i hereunder. The acceptance shall be in the form of the acceptance attached hereto as Exhibit"A", and in accepting the franchise, the City warrants that it has carefully read the terms and conditions of this franchise and accepts all of the terns 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 City and the County. In the event the City j 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. i I XVII. 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. I Venue of any action or arbitration brought under this franchise shall be consistent with RCW 36.01.050. 4 B. Liens. Cityshall promptly a and discharge an and all liens arising out of an Work P P Yp Y g Y g Y I done,suffered or permitted to be done by City on any Franchise Area. i 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's right to enforce all other provisions of this franchise. D.Attorney's Fees. If any action at law of in equity is necessary to enforce or interpret the terns of this franchise,the Parties shall bear their own costs,including attorney fees. i E. Amendment. This.franchise may be amended only by a written contract signed by authorized representatives of City and County. F. Severability. If any provision of this franchise is held to be illegal, invalid or unenforceable under present or fixture laws, such provision will be fiilly 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 terns to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable. 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 oven-light 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. 13 I i i City: City of Shelton 525 West Cota Street j Shelton WA 98584-5034 I Attn: City Manager and Public Works Director j I . Grantor: County of Mason Public Works 100 Public Works Drive Shelton, WA 98584 I l I. Approvals. Nothing in this franchise shall be deemed to impose any duty or obligation upon the County to determine the adequacy or sufficiency of the City's plans and specifications or i to ascertain whether the City'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. No approval given,inspection made,review " or supervision performed by the County pursuant to this franchise shall constitute or be construed as a representation or warranty express or implied by the County 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's rights as the owner or manager of the j road rights-of-way and shall not constitute any representation or warranty, express or implied, as I 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 to insure that work,or materials are in compliance with any requirements imposed by a governmental entity. The 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 franchise shall be construed as a whole according to their common meaning, i 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. I 14 I i I i I ( I i I M. Calculation of Time. All. periods of time referred to herein shall.include Saturdays, I Sundays, and legal holidays in the State of Washington, except that if the last day of any period i 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 and City with respect to all matters covered herein and all matters related to the.use of the Franchise Area by the City and the City'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, the City 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 the City is required to perform under this franchise shall be performed at its cost. If the City fails to perform work that it is required to perform within the time provided for performance, the County may perfonn the work and bill the City. The City 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 City. The City shall be responsible for all work performed by its contractors and subcontractors, and others performing work on its behalf,under its control,or tinder 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 City's I responsibility to ensure that contractors, subcontractors, or other Persons performing work on the City'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. i R. Term of Franchise and Survival of Terns. The tern of this Franchise shall be for a period of 10 years with automatic renewal at the end of the 10-year tern unless either party gives the other written notice of termination at least 30 days prior to the end of the relevant term 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. Upon the expiration,termination,revocation or forfeiture of the franchise,the City shall no longer: have the right to occupy the franchise area for the purpose of providing services authorized herein. However, the City's obligations under this franchise to the County shall survive the expiration, tenination,revocation or forfeiture of these rights according to its terms for so long as the City's utility facilities shall remain in whole or in part in the road rights of way. By way of illustration and not limitation,City's obligations to indemnify,defend and hold harmless the County,provide 15 i i i 1i I insurance and a performance/payment bond pursuant to Section XI and City's obligation to relocate its utility facilities pursuant to Section VIII, shall continue in effect as to the City, notwithstanding any expiration,termination,revocation or forfeiture of the franchise,except to the f extent that a County-approved transfer, sale, or assigiunent 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, City warrants: 1. That City has hill right and authority to enter into and perform this Franchise in accordance with the terns hereof, and by entering into or performing this Franchise,City 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 City has been duly authorized by all requisite City Council action,that the signatories for City of the acceptance hereof are authorized to sign this Franchise. A hearing before the County Commissioners of Mason County, Washington was held, on the,2"d I day of 20 21 ,at the hour of 9:t 5am, 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 DATED at Shelton,Washington this day of 2011. i i BOARD OF COMMISSIONERS APPROVED: MASON COUNTY, WASHINGTON i i C nty�rigineO Chai Approve as to form: Vice Chair Chief D. . Commissioner 16 1 i i i I Exhibit A ACCEPTANCE OF FRANCHISE i County Ordinance No. 115-06, effective November 14,2006. am the CL of I and am the authorized representative to accept the above-referenced franchise on behalf of i I certify that this franchise and all terms and conditions thereof are accepted by without qualification or reservation. DATED this acs—_day of , ,20 a-1. i CITY By: Its: T Tax Id.No. STATE OF L/� ) )ss. COUNTY OF I certify that I know or have satisfactory evidence that is the person who appeared before tne,and said person acknowledged.that he/she signed t is trument,on oath stated that he/Aha Was authorized.tn execute the instrument and acknowledged it as the.�j (AXn �� of the��}' D I J to be the free and voluntary act of such party fomhe uses and purpOe mt h ed in h strumenr. Dated: . � Notary Public Y1I�1���r,� Il\I/�f� FDONNA D NAULT �al!IV i V, J '�.t.i�t/Lary Publicf Washington My colmni5Si0n expiression N 208736xpires Jul 18,2023 I i A i i i i EXHIBIT B Description of Franchise Area j All Mason County maintained roads and right-of-way within City of Shelton city limits and within the City Urban Growth Area. I i i f i ( i I i I i i B ! I ' i I 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 i I j Grantor: COUNTY OF MASON, a legal subdivision of the state of Washington I Grantee: City of Shelton Legal Description of Benefited Property � Legal Description: All Mason County maintained roads and rights-of--way within the City of Shelton city limits and the City Urban Growth Area { i i I I i I i i i i i i i - -- - County-Roads within Shelton City limits & UGA --N----- v E OAK O 1. :E MADRONA WAY p PgRK J 2. E ROCKWOOD DR �� W 3.1E FAIRFIELD CT L �F�R' ��Yfl 21. E SYCAMORE CT 4...E BLEVINS RD SOUTH f�0 - 9}f ,R21 22.;E FIR CT .5. .E WESTWOOD DR 8 22 6. E HAVEN CT NORTH 23.:E MCRA'RD = o m yNS p coz t- _3 w z; RA�R/F iy- ,. = 6 Q�.v ��z F -5 2. ISLAND ° — .23 mFp. Sp SyF v � S LQKE�pR- - w !4iN STD/ 10 , _J 7-&WOODLAND.DR I'Lu 8. E MAPLE DR 9. E NOBLE PL 10. 'E ISLAND LAKE Y DR. 11. W SHELTON VALLEY RD 12. WEST G ST 13. W HULBERT RD 14. W HULBERT RD EAST - WESTHS NAA ! _ 12 m WEST - C ST QOPO 14� ��/`�/ - Shelf-in , W SHELTON 13 MATLOCK RD a m 11 ,."N 20 15 i6 8 C q RO W --®..J 15-SE SPRING RD p 16. SE ARCADIA Y RD 17. SE RIDGE RD 18. SE VALLEY RD 19. SE STEWART ST Legend 20. E DELANTY RD County Road Shelton UGA i-�- Shelton City Boundary Esri,HERE,Garmin,(c)OpenStreetMap contributors,and the GIS user community i I ORDINANCE NO. 1959-1120 i I AN ORDINANCE OF THE CITY OF SHELTON,WASHINGTON, { ACCEPTING A NON-EXCLUSIVE FRANCHISE AGREEMENT BETWEEN I MASON COUNTY AND THE CITY OF SHELTON FOR THE. OPERATIONS AND MAINTENANCE OF WATER SEWER RECLAIMED I > i WATER,AND STORMWATER UTILITIES f WHEREAS,the City of Shelton operates water,sewer,reclaimed water,and } storrawater utilities,and.has infrastructure related to these utilities outside city limits and •` within Mason County rights-of-way;and WHEREAS,the City finds that.it is in the public interest to.have the ability to j operate and maintain its utility infrastructures within the County; and I WHEREAS, the previous franchise agreement with Mason County,accepted by the City on April 2,2007,expired in 2017; and WHEREAS,the Parties have come to terms on a new Franchise Agreement. i NOW,THEREFORE,the City Council of the City of Shelton,Washington,ordains ' as follows: r. I Section 1.Acceptance of Franchise Agreement.A nonexclusive franchise for operations and maintenance of city utilities within Mason County rights-of way is hereby accepted under the terms and conditions set:forth substantially in the form of Exhibit A attached hereto and incorporated herein by'reference.The City Manager is authorized to sign the.final Agreement. Section 2.This Ordinance shall take effect and be in force five days after passage and publication as required by law. I ' Passed by Shelton City Council this 19th of January 2021. I �-�W ,�/ Mayor Kevin orc�y 9 f AUTHENTICATED: l Donna Nault,City Clerk I j