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HomeMy WebLinkAboutR2026-123 Vantage WindBOARD OF' COLINTY COMMISSIONERS COIINTY OF KITTITAS STATE OF WASHINGTON RESOLUTION NO. 2026.I ,"9 AUTHORIZATION TO EXECUTE AN AMENDMENT TO A FRANCHISE AGREEMENT WITH VANTAGE WIND ENERGY LLC WIIEREAS: WHEREAS: WIIEREAS: WHEREAS: WIIEREAS: WHEREAS: The Board of County Commissioners has authority to grant franchise agreements to use the County right of rvoy in accordoncc with Chaptcr 36.55 RCW, ald The Board of County Commissioners granted a franchise agreement with Vantage Wind Energy LLC on August 18,2009; and The term of that franchise agreement is for twenty-five (25) years; and The parties wish to extend the term of the agreement for an additional six (6) years beyond the initial term with a new expiration year of 2041' and All other terms and conditions of the franchise agreement shall remain in fuIl force and effect; and The Board of County Commissioners finds it in the best interest of the citizens of Kittitas County to approve the amendment that is attached hereto and hereby incorporated by this reference. NOW THEREFORE, BE IT RESOLVED that the Board of County Commissioners of Kittitas County, Washington, in the best interest of the public, does hereby authorize the execution of an amendment extending the term of the franchise agreement with Vantage Wind Energy LLC. BE IT FIIRTHER RESOLVED that the amendment shall be recorded withthe Kittitas County Auditor. DATED 2026, at Ellensburg, Washington. BOARD OF COUNTY COMMISSIONERS KITTIT UNTY, WASHINGTON Chairman Attest: ABSENT tr X, Clerk of the Board- Clerk of the Julie Kiorsvik . lr fu, Lttt'.r,n Board- fui::.d+B*eh#o I z Brett Vice-Chairman NON.EXCLUSIVE ELECTRICAL FRANCHISE AMENDMENT BETWEEN KITTITAS COUNTY AI\D VANTAGE WIND EIYERGY. LLC This Franchise Amendment is made by and between Kittitas County (hereinafter "the County") and Vantage Wind Energy,LLC. The County and Vantage Wind Energy,LLC agree as follows: WHEREAS: Kittitas County and Vantage Wind Energy,LLC entered into Non-Exclusive Franchise Agreement in August of 2009; and WHEREAS: Tho County hoo tho outhority to amcnd said Franchise Agleeruuul antl has leueivetl written request by Vantage Wind Energy, LLC; and WHEREAS: Both the County and Vantage Wind Energy,LLC desire to amend the agreement to extend the term of agreement until 2041 per a renewed operational agreement between Vantage Wind Energy,LLC and Puget Sound Energy; and WHEREAS: All other terms and conditions of the Franchise Agreement shall remain in full force and effect. NOW THEREFORE, in mutual consideration of the terms and conditions hereinafter set forth and those contained in the Franchise Agreement, it is hereby agreed as follows: 1) The term of the Franchise Agreement is extended until December 31,204L DATED rrrir 2L day of 2026. COUNTY: BOARD OF COT]NTY COMMISSIONERS ASHINGTON Chairman Attest: A88ENT n Clerk of the Board- Julie Kjorsvik Brett Vice-Chairman Clerk of the Board- A4endyfluehhol" VAIITAGE WIND ENERGY, LLC: Jp'*tP4lo4 Vantage Wind Energy LLC Franchise Amendment Page I of I James Rafferty Vice President Leqal Reviewed KITTITAS COUNTY STATE OF WASHINGTON NON.EXCLUSIVE FRANCHISE TO USE COUNTY ROADS, RIGHTS-OF-WAY AND OTHER COUNTY PROPERTY WITHIN KITTITAS COUNTY Application of Vantage Wind Energy LLC for Electrical facilities over, along and under Kittitas County roads, rights-of-way and other County property in Kittitas County, Washington. WHEREAS: WHEREAS: WHEREAS: Vantage Wind Energy LLC hereinafter referred to as "vantage Wind Energy LLC" is a wind energy company providing electrical facilities in Ellensburg, WA; and Vantage Wind Energy LLC desired route through Kittitas County, hereinafter referred to as 'COUNTY" requires the use of certain portions of COUNTY rights-of-way for the installation, operation, and maintenance of its Facilities (as defined below); and the coUNTY also recognizes that the use of public rights-of-way must be restricted to allow for the construction of amenities necessary to serve the future needs of the citizens of Kittitas and that the coordination, planning, and management of the couNTY'S rights-of-way is necessary to ensure that the burden of costs for the o[erations of non-municipal interests are not borne by the citizenry; and WHEREAS: The public hearing Commissioners on came on regularly before the CountY 2009, under the Provi sions of RCW Chapter 36.55,it appeared to the Board that notice of said hearing had been duly given as required by law and that it is in the public interest to grant the franchise herein granted; and WHEREAS: having afforded the public adequate notice and oppodunity for commient, the COUNTY desires to enter into this Franchise with Vantage Wind Energy LLC for the construction and operation of its Facilities in the couNTY on the terms set forth herein; and wHEREAS: the CQUNTY and Vantage wind Energy LLC have complied with all Federal and State-mandated procedural and substantive requirements pertinent to this franchise; and Vantage Wind Energy LLC Franchise Agreement 1 NOW THEREFORE IT IS ORDERED Section 1 - Non-exclusive Franchise Granted. The COUNTY hereby grants to Vantage Wind Energy LLC, subject to the conditions prescribed in this Franchise Agreement, the franchise rights and authority to construct replace, repair, monitor, maintain, use and operate Facilities necessary for electrica.l transmission, with in the COUNTY-owned rights-of-way generalty described below, and shown in Exhibit A, and hereinafter referred to as the "Franchise Route". The franchise rights and authority granted herein is hereinafter callod the "Franchise". "Facilities" means all Of Vantage Wind Energy LLC'S eleCtriC transmission and distribution systems, including but not limited to poles (with or without cross arms), Wires, lines, conduits, cables, communication and Signal lines, braces, guys; anchors, vaults and meter-reading devices, and any other necessary or convenient equipment, attachments, appliances and other facilities and appurtenances thereto, whether the same be located over or under ground. Such Franchise shall not be deemed to be exclusive to Vantage Wind Energy LLC and shall in no way prohibit or limit the COUNTY's ability to grant other franchises, permits, or iights along, over, or under the Franchise Route to which this Franchise relates; piovided, that such other franchises do not unreasonably interfere with Vantage Wind Energy LLC's exercise of franchise rights granted herein as determined by the COUNTY. This Franchise shall in no way interfere with existing utilities or in any way limit, prohibit, or prevent, the COUNTY from using the Fianchise Route or affect the COUNTY's jurisdiction over such area in any ivay. The owners of all other franchises, public or private, installed prior in time to ihe work of Vantage Wind Energy LLC shall have preference as to the positioning and location ol such utilities. Such preference shall continue in the event of relocation or grade/elevation changes of any COUNTY right-of-way' Sectio.n 2. Authoritv. The Director of Public Works or his or her designee is @thoritytoadministerandenforcethetermsandprovisions of this Fianchise and may develop such rules, policies, and procedures as he or she deems necessary to carry out the provisions contained herein. Section 3. Construction Provisions and Standards. The following provisions iure to abide by any conditions described herein shall be deemed as non-compliance with the terms of this franchise and may result in some or all of the penalties specified in Section 4. See KCC 12'56. A. Permit Required - No construction, maintenance, or repairs (except for emergency repairs as determined reasonably by Vantage Wind Energy LLC, in wlrich case Vantage Wind Energy LLC will notify of such repairs as soon as practicable) slrall be undertaken in the franchise route without first obtaining a Construction Permit from the COUNTY Department of Public Worki. The parties recognize that time is of the essence for Vantage wind Energy LLC in completing these activities, and the Vantage Wind Energy LLC 2 Franchise Agreement COUNTY will therefore process the Construction Permit, or any other necessary authorization, in a timely fashion, and shall not unreasonably withhold or delay its approval of any Construction Permit or other authorization. B. Coordination - All capital construction projects performed by Vantage Wind Energy LLC within the Franchise Route shall be inspected by either an inspectoi employed by the COUNTY or an independent contractor inspector selected by Vantage Wind Energy LLC and apprwed by the COUNTY, such appioval nol to be unreasonably withheld. All work and inspection shall be'coordinated with the Engineering Division of the Public Works Department to ensure consistency with COUNTY infrastructure, future couNTY capital lmprovement Projects, all developer improvements, and pedinent codes and franchises' C. Construction Standards - Any construction, installation, maintenance, repair, and restoration activities performed by or for Vantage Wind Energy LLC within the Franchise Route shall be conducted and located so as to produce the least amount of interference with the free passage of pedestrian and vehicular traffic. All construction, installation, maintenance, trafficcontrol, repair and restoration activities shall be conducted such that they conform to the most current COUNTY standards in effect at the time that such activities take place, The COUNTY shall provide Vantage Wind Energy LLC with a copy of such standards upon the issuance of the Constiuction Permit from the Department of Public Works referred to in Paragraph A above, D. Underground lnstallation Required - All telecommunications cables and junction boxes or other vaulted system components shall be installed underground unless otherwise exempted from this requirement, in writing, by thJOirector of Public Works for the COUNTY. All trench construction shall comply with the Washington State Department of Transportation Standard'specifications for Road, Bridge and Municipal Construction to the extent they are adopted by and in effect in Kittitas County at the tirne of submittal by Vantage wind Energy LLC of trenching plans. E. Removal or Abandonment - Upon the removal from service of any transmission lines or other associated structures, facilities and amenities, Vantage Wind Energy LLC shall comply with all applicable. standards and requirements prescribed by the County of Kittitas Public Works Department for the removal or abandonment of said structures and transmission facilities. F. Performance Bond - Prior to any construction within the COUNTY rights-of-way pursuant hereto, Vantage Wind Energy LLC shall provide a performance UonO to the COUNTY in an amount equalto the estimated Vantage Wind EnergyLLC 3 Franchise Agreement cost of restoring the COUNTY rights-of-way to the pre-construction condition as required in Section 3(C) of this Agreement. Said bond shall insure performance of Vantage Wind Energy LLC's obligations under this Franchise, and shall remain in effect for a period of two years after the completion of construction of Vantage Wind Energy LLC Facilities in-the COdrufy rights-of-way in accordance with Section 12.56.30 of the Kittitas County Cod-e. Notwithitanding the foregoing, the amount of the bond shall in no event exceed $100,000'00 per mile of COUNTY right-of-way occupied by Vantage Wind Enerqy LLC facilities, G. ,'One-Call" Location & Liability - Vantage wind Energy LLC shall subscribe to and maintain membership in the regional "One-Call" utility location service and shall promptly locate all of its lines upon request. The COUNTY shall not be liable for any damages to Vantage Wind Energy LLC system components or for interruptions in service to Vantage Wind Energy LLC customers which are a direct result of work performed for any COUNjTy project for which Vantage Wind Energy LLC has failed to properly locaie its lines and facilities within the prescribed time limits and guidelines established by One-Call. The COUNTY shall also not be liable ior any damages to the Vantage Wind Energy LLC system components or for interruptions in service to Vantage Wind Energy LLC customers resulting from work that was performed under any franchise utility permit issued by the COUNTY. H. As-Built Plans Required - Vantage Wind Energy LLC shall maintain accurate engineering plans and details of all installations within the COUNTY limits and ihatl provide such information in both paper form and electronic form prior to close-out of any Construction Permit issued by the couNTY and any work undertaken by vantage wind Energy LLC pursuant to this Franchise. The COUNTY shall determine the acceptability of any as-built submittals provided under this section. Plans and as-builts will be provided to the COUNTY in pdf format. l. Protect Public lnterest - Vantage Wind Energy LLC understands and agrees that Kittitas County Code Chapter 12.56 incorporates provisions necessary to protect the public interest and investment with regard to utilization of iounty road right-of-way and further, that the provisions of Chapter 12.50 are in full foice and effect as if herein included or attached to or made a part of this franchise. J. Reference Monuments and Markers - before any work is performed under this Franchise which may affect any existing monuments or markers of any nature relating to subdivisions, plais, roads, and all other surveys, a licenied surveyor representing Vantage Wind Energy LLC shall reference all such monuments and markers. The reference points shall be so located that they will not be disturbed during Vantage Wind Energy LLC's Vantage Wind Energy LLC 4 Franchise Agreement operation 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 Vantage Wind Energy LLC. Sec-tion 4. Relocation of Facilities. Whenever the COUNTY determines that it @VantageWindEnergyLLCfacilitiesorothersystem components to be moved or relocated to accommodate the maintenance, construction, or enhancement of any COUNTY-owned public amenity in the franchise route, the COUNTY shall hotify Vantage Wind Energy LLC in writing of such determination, and shall provide Vantage Wind Energy LLC with a list of commercially reasonable alternative COUNTY rights-of-way for the relocation of the facilities, and Vantage Wind Energy LLC shall submit plans for such relocation within sixty (6b) days, The COUNTY agrees to act upon th,ese plans within sixty (60) days of their submittal, and within ninety (90) days of the approval 6y'thd CCjUrufy of the plans for relocation, Vantage Wind Elergy LLC shall relocite those facilities or structures designated by the COUNTY to such alternative rights-of-way suggested by the COUNTY, or to alternative rights-of- way suggesteo uy Vantage wind Energy LLC that are approved by the COUNiV. The CbUNTrshall use commercially reasonable efforts to permit Vantage Wind Energy LLC to construct new facilities prior to requiring Vantage Wind En"tgy LLC tdremove the existing facilities that are being relocated. All costs of moving or relocating such facilities or structures, including but not limited to costs for deJign, engineeiing and construction, shall be the sole responsibility of Vantage Wind'Energy LLC. Vantage Wind Energy LLC may propose to the COUNTV additional relocation alternatives to reduce or eliminate the need for relocation of its Facilities pursuant to this Section 4. Upon the COUNTY's receipt from Vantage Wind Energy LLC of such additional relocation alternatives in writing, tnebOUtrtTY shalievaluate such alternatives and shall advise Vantage WindEnergy LLC in writing if one or more of such alternatives are suitable to accommodate the work which would otherwise necessitate relocation of Vantage Wind Energy LLC Facilities. ln evaluating such alternatives, the COUNTY shall give each alternative proposed by Vantage Wind Energy LLC full and fair ionsiderations with due regard to all the facts and circumstances which bear upon the practicality of relocation and alternatives to relocation. ln the event the iOUrufy reasonably determines that such alternatives are not appropriate, Vantage Wind Energy LLC shall relocate its Facilities as othenruise provided in this Section 4. Section 5. Noninterference of Facilities. Facilities shall be maintained within e unreasonably with the free passage of traffic and in accordance with all applicable Washington State laws, rules and Vantage Wind Energy LLC 5 Franchise Agreement regulations. Whenever it shall be necessary for Vantage Wind Energy LLC, in the exercise of its rights under this Franchise, to make any excavation in the Franchise Route, Vintage Wind Energy LLC shall, upon completion of such excavation, restore the surface of the Franchise Route to the same or better condition it was in prior to such excavation. Section 6. lnsurance. Vantage Wind Energy LLC shall maintain liability insurance written on a per occurrence basis during the full term of this franchise for personal injuries and property damages; The policy shall name the County of Kittitas as additionally insured and shall contain coverage in the following minimum amounts per separate occurrence: Personal lnjury: $5,000,000 per person & $10,000,000 per occurrence. Property Damage: $5,000,000 per claimant & $10,000,000 per occurrence. The structure of such coverages required hereunder is to be at Vantage Wind Energy LLC's option so long as the total amount of insurance meets the r"qriier"nt specified herein. Such insurance policy shall also contain a policy provision that it cannot be revoked, canceled, or reduced below the above limits without thirly (30) days advance written notice to the COUNTY, and Vantage Wind Energy LtC rt'r"tt provide proof of such insurance to the COUNTY Clerk's Office ann,iitty upon request from the COUNTY. ln the event that Vantage Wind Energy LLC changes insurance carriers during the term of this Franchise, there shall-not be any g;p in the coverage stated above, ensuring that Vantage Wind Energy LLC is -continuousty insured in accordance with the terms hereof. Section 7. Other Permits & Approvals. Nothing in this agreement shall relieve @LCfromanyobligationtoobtainapprovalsorneceSsary permiis from applicable fed"tal, staie, and COUNTY authorities for all activities in the franchise area. Section 8. Franchise Compliance. A. Franchise Violations - The failure by Vantage Wind Energy LLC to comply fully with any of the provisions of this Franchise may result in a writtbn notice from the COUNTY which describes the violations of the Franchise and requests remedial action within thirty (30) days of receipt of such notice. lf Vantage Wind Energy LLC has not attained full compliance at the end of the thirty (30) day period following receipt of the violation notification, the COU-lrlTY may declare an immediate termination of all Franchise rights and privileges; provided that full compliance was reasonably fossible within fnat tfrirty (30) day period. The demonstration of due diligence on the part of Vantage Wind Energy LLC may be grounds for the grant of an extension in the period during which compliance is to be attained; provided that Vantage Wind Energy LLC continues to pursue correction of any violations of the Franchise noted by the COUNTY. Vantage Wind Energy LLC 6 Franchise Agreement B. Emergency Actions - lf any of Vantage Wind Energy LLC's actions, or any failure by Vantage Wind Energy LLC to act to correct a situation caused by Vintage WinO Energy LLC is deemed by the COUNTY to create a threat to life or property, the COUNTY may order Vantage Wind Energy LLC to immediately correct said situation threat or, at the COUtTiTY's discretion, the COUNTY may undeftake measures to correct said situation threat itself; provided that, when possible, the COUNTY shall notify Vantage Wind Fnergy I I C of said threat and give Vantage. Wind Energy LLCan opportunity to correct said threat before undertaking such measures itself. Vantage Wind Energy LLC shall be liable for all reasonable costs, expenses, and damages attributable to the correction of such an emergency situation as undertaken by the COUNTY to the extent that such situation was caused by Vantage Wind Energy LLC and shall further be liable for all reasonable costs, expenses, and damages resulting to the COUNTY from such situation and any reimbursement of any such undisputed costs to the COUNTY shall be made within thirty (30) days of receipt of written notice of the completion of such action or determination of damages by the COUNTY. Each invoice shall include verifiable detail as to thJnature of the costs incurred, ln the event that the COUNTY has not undertaken measures to correct said situation threat itself, the failure by Vantage Wind Energy LLC to take appropriate aclion to correct, a situation iaused by Vantage Wind Energy LLC and identified by the COUNTY as a threat to public or private safety or property shall be considered a violation of Franchise terms and each day that Such a situation continues to exist and Vantage Wind Energy LLC fails to take appropriate action to abate said situation shall be regarded as a separate violation. C. Other Remedies - Nothing contained in this Franchise shall limit the COUNTY's available remedies in the event of Vantage Wind Energy LLC's failure to comply with the provisions of this Franchise, to include but not limited to, the'COUNTY's right to sue for specific performance and/or damages. D. Removal of System - ln the event that this Franchise is terminated as a result of violations of the terms of this Franchise by Vantage Wind Energy LLC, Vantage Wind Energy LLC shall at its sole expense, promptly remove alltransmislion system components and facilities, provided that, the coUNTY, at its sole option, may allow or require Vantage Wind Energy LLC to abandon its underground facilities in place, in which case ttre CbUNTY shalltake title and ownership to the facilities and Vantage Wind Energy LLC shall have no further obligation and liability therefore. After removil, Vantage Wind Energy LLC shall restore the surface of the Franchise Route to the same or better condition it was in prior to removal. Vantage Wind Energy LLC Franchise Agreement Section 9. Transfer of Ownelship. The rights, privileges, benefits, title, or cniseshallnotbesold,transferred,assigned,or otherwise encumbered, without the prior written consent of the COUNTY' with such consent not being unreasonably withheld or delayed. No such consent shall be required, however, for a transfer in trust, by other hypothecation, or by assignment or any rights, title, or interest in Vantage Wind Energy LLC's elec[rical generating system in order to secure indebtedness. Furthermore, consent shall not be required if such transfer is from Vantage Wind Energy LLC to a parent company or affiliate of Vantage Wincl Energy LLC, or to an subsidiary or a*iliat" of such parent company, provided that Vantage Wind Energy LLC provides written notice to the COUNTY of such transfer. Vantage Wind Energy LLC may also assign this Franchise to an entity with or into which it may mJig" or coniolidate, oito a purchaser of all or substantially all of Vantage Wind eneigy LLC assets, without the consent of the COUNTY' providedlhat Vantage WinO Energy LLC shall provide the COUNTY with prior written notice of the proposed transaction. The COUNTY shall then have the option, within thirty (30) days of the receipt of the notice, to notify Vantage Wind Energy LLC of a fublic hearing to approve or deny theassignment, such apprJvat not to be unreasonably withheld or delayed. lf the COUNTY does not respond within such thirty (30) day period; then the assignment shall be deemed operative. ln any transfer of this Franchise which requires the approval of the COUNTY' Vantage Wind Energy LLC shall show that the recipient of such transfer has the techniial ability, financial capability, and any other legal or general qualifications as reasonably determined by the COUNTY to be necessary to ensure that the obligations and terms required under this Franchise can be met to the full satiJfaction of the COUNTY. The qualifications of any transferee shall be determined by hearing before the COUNTY and the approvalto such transfer shall be granted by Franchise of the COUNTY, such approval not to be unreasotiably with-held or delayed. Any administrative costs associated with a transfer of thls Franchise which requires the approval of the COUNTY, shall be reimbursed to the COUNTY within thirty (30) days of receipt of an invoice from COUNTY which shall include verifiable detail as to the nature of the administrative costs reasonably incurred and associated with such transfer. Section 10. Franchise Tern. This Franchise is and shall remain in fullforce and (25) years from and after the effective date of this Franchise, provided, however, Vantage Wind Energy LLC shall have no rights under this Franchise nor shall Vantage Wind Energy LLC be bould by the tJrms and conditions of this Franchise unless Vantage Wind Energy LLC shall, within thirty (30) days after the effective date of the Franchise, file with the County its written acceptance of the Franchise' Vantage Wind Energy LLC Franchise Agreement 8 Sectjon 11. Administrative Fees. The COUNTY shall be entitled to greasonableoverheadcosts,associatedwith the administration of this Franchise or costs incurred by the COUNTY for actions undertaken in accordance with Sections 3 & B B herein. These costs shall include Wages, benefits, equipment, and supplies for activities such as plan review, permit processing, and permit inspections. Such costs shall be billed to Vantage Wind Energy LLb on a quarterly basis and Vantage Wind Energy LLC shall ply such undiJputed costs within thirty (30) days of receipt of such bills. Each hili shall inclurcle verifiable cletail as to the natutre of the costs incLtrred. Failure by Vantage Wind Energy LLC to make full payment of undisputed portions of Uills viitf in the timelpecified shall be considered sufficient grounds ior the termination of all rights and privileges existing under this Franchise utilizing the procedures specified in Section 8 A of this Franchise. Section 12. lndemnification.ln the construction, installation, repair, operation, and maint,enance ffilructGes and Facilities in the Franchise Route, Vantage Wind Energy LLC shall use reasonable and appropriate precautions to av,oid damage to persons or property. Vantage Wind Energy LLC shall indemnify, defenl and hold harmless'the-COUNTV from all claims, actions or damages of every kind or description, including reasonable attorney's and expert witness fees, which may accrue to or be suffered by any person or persons, corporation or property to the extent caused in part or in whole by any negligent act or omission or willful misconduct of Vantage Wind Energy LLC, its officers, agents, servants or employees, carried on in the furtherance of the rights, benefits, and privileges graniedio Vantage Wind Energy LLC by thisfranchise. ln the event any ctlim 6r demand is preiented to or filed with the COUNTY which gives rise to Vantage Wind Energy LLC's obligation pursuant to this section, the COUNTY shall within a reasonadt-" tim" notifyVantage Wind Energy LLC thereof and Vantage Wind Energy LLC shall have a right, at its election, to settle or compiomise such claim or demand. In the event any claim or action is commenced in which the COUNTY is named a party, and which suit or action is based on a claim or demand which gives rise to Vantage Wind Energy LLC's obligation pursuant to this section, the COUNTY shall promptly notify Vantage win-o rnergy LLC thereof, and Vantage wind Energy LLC shall, at its sole cost and expense, defend such suit or action by attorneys of its own election' ln defense of such suit or action, Vantage Wind Energy LLC may at its election and at its sole cost and expense, settle or compromise such suit or action' This section shall not be construed to require Vantage Wind Energy LLC to: (i) protect and save the COUNTY harmless from any claims, actions, or damages; (ii) settle or compromise any claim, demand, suit, or action; (iii) appear in or defend any suit or action; or, (iv) pay any judgment or reimburse the COUNTY's costs and expenses (including reaioniOte ittorney's fees), to the extent such claim arises oui of the negligenie in part or in whole by any negtigent act or omission or willful misconduct of ttre COUNTY. To the extent of any concurrent negligence between Vantage Wind Energy LLC and the COUNTY, Vantage Wind Energy LLC's obligations under thls paragraph shall only extend to its share of negligence or Vantage Wind Energy LLC 9 Franchise Agreement \ fault. The COUNTY shall have the right at alltimes to participate through its own attorney in any suit or action which arises out of any right, privilege, and authority granted by or exercised pursuant to this Franchise when the COUNTY Jetermines that such participation is required to protect the interests of the COUNTY or the public. Such participation by the COUNTY shall be at the COUNTY's sole cost and exPense. -Section f S. Notices. All nOtices, demands, requests, consents and approvals W@uiredtobegivenbyanypartytoanyotherpartyhereunder, shall be in writing and shall be deemed to have been duly given if delivered personally, sent-by facsimile or other electronic transmission, sent by a nationally recognizeO overnight delivery service, or if mailed or deposited in the United States mail and sent by registered or certified mail, return receipt requested, postage prepaid to: Section 14. Severability. Should any provision of this Agreement be held, in a @cisionbyacourtofcompetentjurisdiction,tobeeither For the County:Director of Public Works Kittitas County Public Works 411 N Ruby Street, Suite 1 Ellensburg, WA 98926 Ph: Fax: Email: For Vantage Wind Energy LLC Vantage Wind EnergY LLC c/o lnvenergy LLC Kelly Duddy, Project Manager 1 S. Wacker Dr, Ste. 1900 Chicago, lL 60606 Ph: 312-582-1468 Fax: 312-244-1444 Email : kd uddy@ invenergYllc. com or to such other address as the foregoing parties hereto may from timetotime designate in writing and deliver in a like manner. All notices shall be deemed com[lete upon actual receipt or refusalto accept delivery. Facsimile transmission or other electronic transmission of any signed original document and retransmission of any signed facsimile transmission shall be the same as delivery of an original document. Either party mayihange the notice address listed above upon prior written notice to the other party. Vantage Wind Energy LLC Franchise Agreement 10 invalid, void or unenforceable, the remaining provisions hereof shall remain in full force and effect, unimpaired by the holding' Section 15. Venue and Chqice of LPw. lntheeventtnat@oariseconcemingtheconstructionor inteipretation of "ny oi the-terms of this Franchise, the venue of such action of litigaiion shall be in ttre superior court of the state of washington in and-for the Cdunty of Kittitas. This Agreement shall be governed by the law of the State of Washington. Section 16. Miscellaneous, 16.1 The headings of sections and paragraphs of this Franchise are for convenience of referencJonly and are not intended to restrict, affect or be of any weight in the interpretation orconstruction of the provisions of such sections or paragraphs, 16.2 This Franchise is subject to the provisions of any applicable tariff now or hereafter on file with the Washington Utilities and Transportation commission or its successor. ln the event of any conflict or inconsistency between the provisions of this Franchise and such tariff, the provisions of such tariff shall control. 16.3 Vantage Wind Energy LLC shall exercise its rights within the Franchise Route in iccordance with any applicable laws, rules, or regulations of the County governing use and occupancy of the Franchise Route; provided, however, in tf,e even-t of any conflict or inconsistency of such laws, rules or regulations with the terms and conditions of this Franchise, the terms and .o-nditionr of this Franchise shall govern and control; provide, further, nolhing herein shall be deemed to waive, prejudice or otherwise limit any right of appeal afforded Vantage Wind Energy LLC by such County laws, rules or regulations' 16.4 All the provisions, conditions, terms and requirements co,ntained herein shall be binding upon the Parties'successors and assigns. Allthe Parties' frivileges, obligationslunO liabilities shall inure to its successors and assigns bquafli as if th6y were spec6ically mentioned in the franchise wherever the Parties are so mentioned. 16.b No failure by any of the foregoing parties to insist upon the strict pefformance of any cov-"nant, duty, agreement, or condition of this Franchise or io exercise any right or remedy consequent upon a breach thereof shall constitute a waiver of any such breach or any other covenant, agreement, term or condition. No waiver ihall aff"ct or alter this Franchise, and each and every covenant, agreement, term and condition of this franchise shallcontinue in full force and effect with iespect to other then existing or subsequent breach thereof' Vantage Wind EnergY LLC Franchise Agreement 11 Section 17. Specific Performance. 17.1 The parties acknowledge that the covenants set forth herein are essential to this Franchise, and, but for the mutual agreements of the parties to comply with such covenants, the parties would not have entered into this Franchise. The parties further acknowledge that they may not have an adequate remedy at law if lhe other party violates such covenant, Therefore, the parties shall have the right as provided under applicable law, in addition to any other rlghts they rnay have, to seek in any court of competent jurisdiction injunctive re-lief to restrain any breach or threatened breach of, or otherwise to specifically enforce any of such covenants contained herein, should the other party failto peform them after notice is given as provided hereln ln Section 13. Section 18. Effectiye Date. This Franchise shalltake effect on Vantage Wind Energy LLC Franchise Agteement 12 PASSED by Kittitas County Commissioners this $l day of 2009. lilt erk of the rd APP Vantage Wind EnergY LLC Franchise Agreement .,,:i Alan Crankovich, Chairman BOARD OF COMMISSIONERS KITTITAS COUNTY, WASH INGTON Paul Jewell, Commi ssioner / Ma McClain, Commissioner Vantage Wind EnergY LLC 13 FRANCHISEAREA 14.499 {mi} >< - EE Grl +