HomeMy WebLinkAboutord2011-020 WHATCOM COUNTY COUNCIL AGENDA BILL NO. 2010-327
CLEARANCES Initial Date Date Received in Council Office Agenda Date Assigned to:
DLG 5/24111 INTRO
Ori: 'nator: ([ C I I p v q E 1
Division Head: (� 6 / 21 / 2011 Hearing
De , Head: FMA
t. MAY 17 2011
Prosecutor:
DLG of i3 II WHATCOM COUNTY
Purchasin:/Bud: et: �'ra';-�_ COUNCIL
Executive:
TITLE OF DOCUMENT: Ordinance granting a non-exclusive franchise to the Public Utility District No. 1 of Whatcom County to
allow for the provision of electricity services, application for same having been filed by Stephan .1Hk, General Manager. Application
received by Council 9/10/10, fee deposited 9/14/10 into Council revenue account 1100.4369.9001.
ATTACHMENTS:
Ordinance
Memo
SEPA review required? ( ) Yes ( XX ) NO Should Clerk schedule a hearing ? ( XX ) Yes ( ) NO
SEPA review completed? ( ) Yes ( ) NO Requested Date: June 21, 2011
SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE: (If this item is an ordinance or requires a public hearing, you must
provide the language for use in the required public notice. Be specific and cite RCW or WCC as appropriate. Be clear in explaining
the intent of the action.)
RCW 36.55 and § 9.30 of the Home Rule Charter provides for the granting of franchises to public and private utility companies for
use of County rights of way. This is a new franchise allowing for use of and presence in County Rights-of-Way in order to place
facilities necessary to provide electricity services.
COMMITTEE ACTION: COUNCIL ACTION::
5 / 24 / 2011 : Introduced
6 / 21 / 2011 : Council Adopted 7 -0
Ord . 2011 -020
Related County Contract #: Related File Numbers: Ordinance or Resolution Number:
Ord . 2011 -020
Please Note: Once adopted and signed, ordinances and resolutions are available for viewing and printing on the County 's website
at: www.co.whatcom. wa.us/council
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6/29/2011 3 : M
FRAN $76 . 00
W om County , WA
Request of : WHATC UNTY COUNCIL
RETURN DOCUMENT TO : 11111111 2110700120
Page : 1 of 17
7/06/2011 9 : 10 AM
FRAN $78 . 00
MARINA E N G E LS Whatcom County , WA
WHATCOM COUNTY Request. of : WHATCOM COUNTY COUNCIL
COUNCIL OFFICE
D OCUMENT TITLE ( S ) : FRANCHISE
Rerecord to correct date on page 14 ( ii )
REFERENCE NUMBER( S ) OF DOCUMENTS ASSIGNED OR RELEASED :
Ordinance Number: 2011 -020
Additional reference numbers found on page of document.
G RANTOR( S ) :
Whatcom County
Additional grantors found on page of document.
G RANTEE ( S ) :
PUD No 1 of Whatcom County
Additional grantees found on page of document.
ABBREVIATED LEGAL DESCRIPTION ( Lot, block, plat, or section , township, range )
Any, every, and all public roads of the county.
Additional legal description can be found on page of document.
ASSESSOR'S PARCEL NUMBER :
None - roads
SPONSORED BY: Consent
PROPOSED BY: Executive
INTRODUCTION DATE : 5 / 24 / 2011
ORDINANCE NO. 2011 -020
GRANTING PUBLIC UTILITY DISTRICT NO. 1 OF WHATCOM COUNTY, A WASHINGTON
MUNICIPAL CORPORATION , A FRANCHISE AND THE RIGHT, PRIVILEGE, AND
AUTHORITY THEREUNDER TO LOCATE, SET, ERECT, LAY, CONSTRUCT, EXTEND,
SUPPORT, ATTACH , CONNECT, MAINTAIN , REPAIR, REPLACE, ENLARGE, OPERATE
AND USE FACILITIES IN , UPON , OVER, UNDER, ALONG, ACROSS AND THROUGH THE
FRANCHISE AREA TO ALLOW FOR THE PROVISION OF ELECTRICITY SERVICES.
WHEREAS, Public Utility District No . 1 of Whatcom County (hereinafter referred to as
"Whatcom PUD") , a Washington municipal corporation , has applied for a twenty-five (25) year
franchise ; and
WHEREAS, RCW 36 . 55. 010, Whatcom County Charter Section 9 . 30 , and Whatcom
County Code Chapter 12 . 24 address the requirements pertaining to the granting of franchises
by the County; and
WHEREAS, Whatcom PUD desires a non-exclusive franchise to construct, erect, alter,
lay, support, connect, improve, renew, replace, repair, operate and maintain electricity
transmission and distribution lines upon , under, over, across and along certain roads and
other areas in Whatcom County, Washington ; and
WHEREAS, said application has come on regularly to be heard by the County Council
on the 21 day of June , 2011 , and notice of this hearing having been duly published on the
4th day of June , 2011 , and the 1 1 th day of June , 2011 , in the Bellingham Herald ,
a daily newspaper published in Whatcom County havhg county-wide circulation ; and
WHEREAS, it appears to the Council that notice of said application and hearing
thereon has been given as required by law in RCW 36 . 55 . 040 ; and
WHEREAS, this Council finds , after having considered said application and being
otherwise fully advised in the premises , that it is in the public interest for this Council to grant
the franchise ;
NOW, THEREFORE , BE IT ORDAINED by the Whatcom County Council that the
language set forth hereinbelow, Sections 1 through 21 , shall constitute the franchise
agreement between Whatcom County and Whatcom PUD , which shall be and become
effective as set forth in Section 14 thereof
Page 1
Section 1 . Definitions .
1 . 1 Where used in this franchise agreement (" Franchise"), the following terms
shall mean :
1 . 1 . 1 "County" means the County of Whatcom , a political subdivision of the
State of Washington , and its successors and assigns .
1 . 1 . 2 "Whatcom PUD" means Public Utility District No . 1 of Whatcom
County, a Washington municipal corporation , and its successors and assigns .
1 . 1 . 3 " Franchise Area" means any, every and all of the public roads ,
streets , avenues , alleys , highways , grounds, and other public places of the County as now
laid out, platted , dedicated , or improved ; and any, every and all of the public roads , streets ,
avenues , alleys , highways , grounds and other public places that may hereafter be laid out,
platted , dedicated or improved within the present limits of the County and as such limits
may be hereafter extended .
1 . 1 .4 " Facilities" means , collectively, any and all electrical transmission and
distribution systems , including but not limited to , poles (with or without crossarms ) , wires ,
lines , conduits , cables , braces , guys , anchors , vaults , meter-reading devices , fixtures ,
communication systems services , meter stations , and any and all other equipment,
appliances , attachments , appurtenances , and other items necessary, convenient, or in any
way appertaining to any and all of the foregoing , whether the same be located over or
under ground .
1 . 1 . 5 "Ordinance" means Ordinance No . 2oii -o2o *hich sets forth the
terms and conditions of this Franchise .
Section 2 . Facilities Within Franchise Area .
2 . 1 The County does hereby grant to Whatcom PUD the Franchise , and the right,
privilege , and authority thereunder, to locate , set, erect, lay, construct, extend , support,
attach , connect, maintain , repair, replace , enlarge , operate and use Facilities in , upon ,
over, under, along , across and through the Franchise Area to provide for the transmission ,
distribution and sale of energy for power, heat, light and such other lawful purposes for
which energy and/or electricity may be used .
Section 3. County Authority.
3 . 1 The County, in granting this Franchise , does not waive any rights which it now
has or may hereafter acquire with respect to the Franchise Area , 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 Franchise Area .
Section 4. Noninterference of Facilities .
4 . 1 Prior to the installation of Facilities within the Franchise Area , Whatcom PUD
may request that the County determine whether the proposed placement of the Facilities
Page 2
will unreasonably interfere with the free and safe passage of traffic. The County Engineer
may respond in writing advising without undertaking any type of representation or
commitment by the County as to what modifications to the proposed location of the
Facilities may be necessary to the proposed location of the Facilities to minimize the
potential that the location will not unreasonably interfere with the free and safe passage of
traffic. Notwithstanding the foregoing , Whatcom PUD may proceed to install Facilities
without first obtaining the County Engineer's response to the foregoing inquiry, having
received all other necessary approvals .
4. 2 Whatcom PUD's Facilities shall be placed and maintained within the Franchise
Area so as not to unreasonably interfere with the free passage of traffic and in accordance
with all applicable laws , rules , and regulations . Upon determination by the County that
current placement of particular Facilities unreasonably interferes with free or safe passage
of traffic, the County shall notify Whatcom PUD which shall , at its own expense , act
promptly to rectify the problem in consultation with the County. Whatcom PUD shall
exercise its rights under this Franchise and within the Franchise Area in accordance with
all County codes and ordinances governing use and occupancy of the Franchise Area ;
provided , however, in the event of any conflict or inconsistency of such codes and
ordinances with the terms and conditions of this Franchise , the terms and conditions of
this Franchise shall govern and control to the extent authorized by law; provided , further,
nothing herein shall be deemed to waive , prejudice or otherwise limit any right of appeal
afforded Whatcom PUD by such County codes and ordinances .
4. 3 All construction or installation of such Facilities , service , repair, or relocation of
the same , performed over, above , along or under the Franchise Area shall be done in
such a manner as not to interfere unreasonably with the construction and maintenance of
other existing utilities , lines , public or private , drains , drainage ditches and structures ,
irrigation ditches and structures , located therein , nor with the grading or improvement of
the Franchise Area . The owners of all utilities , public or private , installed in the Franchise
Area prior in time to the Facilities of Whatcom PUD shall have preference as to the
positioning and location of such utilities so installed with respect to Whatcom PUD . Such
preference shall continue in the event of the necessity of relocating or changing the grade
of the Franchise Area . Whatcom PUD shall have such preference as to owners of all
utilities , public or private , initially installed in the Franchise Area subsequent in time to
Whatcom PUD's Facilities .
4 . 4 The locating , laying , construction , operation and maintenance of Whatcom
P UD's Facilities authorized by this Franchise shall not preclude the County, its agents or
its contractors from blasting , grading , excavating , or doing other necessary road work
contiguous to Whatcom PUD's Facilities, provided that Whatcom PUD and the County
shall first check with the locator service to determine whether or not any of Whatcom
P UD' s lines are located in the proposed work area . Upon finding from the locator service
that Whatcom PUD does have lines located within the proposed work area , the County
shall provide Whatcom PUD with seventy-two (72 ) hours' notice of proposed work , except
if a lesser time for notice is warranted by emergency, in order that the Whatcom PUD may
protect its Facilities . Failure of Whatcom PUD to properly notify the locator service of the
location of its lines and Facilities shall relieve the County of its duty to provide Whatcom
P UD the otherwise-required advance notice of proposed work . The County acknowledges
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that the Facilities may include high voltage electrical transmission lines. As such , the
County acknowledges that any work in , around or near such Facilities require the exercise
of reasonable standard professional engineering and construction caution and practices
in , around or near such facilities . Accordingly, the County acknowledges that upon receipt
of notice of the location of such Facilities , the County shall undertake all reasonable
standard professional engineering and construction caution practices and/or requirements
when conducting or permitting any work in , around or near such Facilities .
4 . 5 Whatcom PUD shall maintain all above-ground Facilities that it places in the
Franchise Area . In order to avoid interference with the County's ability to maintain the
Franchise Area , Whatcom PUD shall provide a clear zone of five (5 ) feet on all sides of
such above-ground Facilities . If Whatcom PUD fails to comply with this provision , and by
its failure , property is damaged , then Whatcom PUD shall be deemed responsible for all
damages caused thereby and the County shall be released from any responsibility
therefore . For these purposes , "clear zone" means an area that is mowed or otherwise
maintained so that the Facilities are readily visible to County maintenance operations .
Section 5 . Construction Within the Franchise Area .
5 . 1 All construction and installation work within the Franchise Area shall be subject
to the approval and pass the inspection of the County Engineer, and shall conform to all
applicable local , state and federal standards , codes or regulations , and the County
expressly reserves the right to prescribe standards as to how and where poles , lines , wires
and Facilities shall be installed . The standards will be consistent with reasonable
standards and standard engineering practices in the applicable industry. The County may
from time to time , upon reasonable notice , require the removal and replacement thereof in
the public interest subject to Section 6 of this Franchise .
5 .2 Prior to commencement of construction of any new Facilities , Whatcom PUD
shall first file with the County Engineer its application for permits to do such work , together
with plans and specifications in duplicate showing the position and location of all such
Facilities sought to be constructed , laid , installed or erected at that time showing their
position relative to existing County roads , rights-of-way, or other County property within the
Franchise Area upon plans drawn to scale . The Facilities shall be laid in conformity with
said plans and specifications of definite location , except in instances in which deviation
may be allowed thereafter in writing by the County Engineer. The plans and specifications
shall specify 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 , etc. No such
construction shall be commenced without Whatcom PUD first securing a written permit
from the County Engineer, including approval endorsed on one set of plans and
specifications returned to Whatcom PUD . All such work shall be subject to the approval of
and shall pass the inspection of the County Engineer. Whatcom PUD shall pay all costs of
and expenses incurred in the examination , inspection and approval of such work on
account of granting the said permits .
5 . 3 In any work which requires breaking of soil within the Franchise Area for the
purpose of laying , relaying , connecting , disconnecting , constructing , maintaining and
Page 4
repairing Whatcom PUD's Facilities , and making connections between the same to
structures and buildings of consumers or making connections to other Facilities now in
existence or hereafter constructed , Whatcom PUD shall be governed by and conform to
the general rules adopted by the County Engineer; and Whatcom PUD at its own expense
and with due diligence shall complete the work for which the soil has been broken and
forthwith replace the work and make good the Franchise Area and leave the same in as
good condition as before the work was commenced ; provided , however, that no such
breaking of the soil within the Franchise Area shall be done prior to the obtaining of a
permit issued by the County Engineer. Applications for such a permit shall be
accompanied by specifications for the restoration of the Franchise Area to the same
condition as it was in prior to such breaking , and such specifications must be approved by
the County Engineer before such breaking of the soil is commenced ; provided further, that
the County Engineer may require a performance bond in a reasonable sum sufficient to
guarantee that such Franchise Area shall be restored to the same condition as it was in
prior to such breaking of the soil , the amount of said bond to be fixed by the County
Engineer. Whatcom PUD shall pay all costs of and expenses incurred in the examination ,
inspection and approval of such restoration . The County Engineer may at any time do ,
order, or have done , any and all work that he considers necessary to restore to a safe
condition any Franchise Area left by Whatcom PUD or its agents in a condition dangerous
to life or property, and Whatcom PUD upon demand shall pay to the County all costs of
such work.
5 .4 In preparing plans and specifications for the installation of Facilities within the
Franchise Area , Whatcom PUD shall reasonably conform to the standards and
specifications established by the County Engineer. Whatcom PUD shall consult with the
County Engineer in case it plans to deviate from the established standards and
specifications in the course of installing Facilities within the Franchise Area and must
demonstrate to the satisfaction of the County Engineer that its plans will achieve a legal
and functionally equivalent result.
5 . 5 All work done by and for Whatcom PUD under this Franchise shall be done in
a thorough and workmanlike manner. In the construction of Facilities and the opening of
trenches within and the tunneling under the Franchise Area , Whatcom PUD shall leave
such trenches 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. Where any of such
trenches , ditches , or tunnels are left open at night, the Whatcom PUD shall place warning
lights and barricades at such a position as to give adequate warning of such work, per the
MUTCD ( Manual on Uniform Traffic Control Devices ). Whatcom PUD shall be liable for
any injury to person or persons or damage to property to the extent proximately caused by
its carelessness or neglect, or to the extent proximately caused by any failure or neglect to
properly guard or give warning of any trenches , ditches or tunnels dug or maintained by
Whatcom PUD .
5 . 6 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 , Whatcom PUD shall reference all such monuments and markers . The
reference points shall be so located that they will not be disturbed during Whatcom PUD's
Page 5
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 Whatcom PUD . A complete set of reference notes for
monuments and other ties shall be filed with the County Engineer's Office .
Section 6 . Relocation of Facilities .
6 . 1 Whatcom PUD shall , at its sole expense and with due diligence , relocate or
adjust the elevation of any of its Facilities upon receipt of written request from the County
Engineer when determined reasonably necessary based upon sound engineering
principles by the County Engineer, provided that the elevations required by the County are
not in violation of local , state or federal law and are reasonably necessary for safety
purposes . Whatcom PUD shall coordinate such relocation or adjustment of its Facilities
with the County and shall perform the same in a timely fashion so that, absent conditions
beyond the control of Whatcom PUD , such relocation or adjustment of Whatcom PUD's
Facilities will not impede or delay pending changes to the Franchise Area .
6 . 2 Whatcom PUD may propose to the County alternatives to reduce or eliminate
the need for relocation of its Facilities pursuant to Section 6 . 1 . Upon the County's receipt
from Whatcom PUD of such alternatives in writing , the County shall evaluate such
alternatives and shall advise Whatcom PUD in writing if one or more of such alternatives
are suitable to accommodate the work that would otherwise necessitate relocation of
Whatcom PUD's Facilities . In evaluating such alternatives , the County shall give each
alternative proposed by Whatcom PUD full and fair consideration with due regard to all the
facts and circumstances which bear upon the practicality of relocation and alternatives to
relocation . In the event the County reasonably determines that such alternatives are not
appropriate , Whatcom PUD shall relocate its Facilities as otherwise provided in Section
6 . 1 . Any acceptance by the County of such alternatives shall not excuse ( nor shall be
construed to excuse ) Whatcom PUD from future relocation or adjustment of Whatcom
PUD' s Facilities pursuant to this Section 6 .
6 . 3 As qualified in Section 6 . 2 above and 6 . 4 below, whenever any person or
entity, other than the County, requires the relocation of Whatcom PUD' s Facilities to
accommodate the work of such person or entity within the Franchise Area , or whenever
the County requires the relocation of Whatcom PUD's Facilities within the Franchise Area
for the benefit of any person or entity other than the County, then Whatcom PUD shall
have the right as a condition of such relocation to require such person or entity to :
6 . 3 . 1 Make payment to Whatcom PUD , at a time and upon terms
acceptable to Whatcom PUD , which acceptance shall not be unreasonably withheld , for
any and all costs and expenses incurred by Whatcom PUD in the relocation of Whatcom
PUD' s Facilities ; and
6 . 3 . 2 Indemnify and save Whatcom PUD harmless from any and all claims
and demands made against it on account of injury or damage to the person or property of
Page 6
another arising out of or in conjunction with the relocation of Whatcom PUD's Facilities , to
the extent such injury or damage is caused by the negligence of the person or entity
requesting the relocation of Whatcom PUD's Facilities or the negligence of the agents,
servants or employees of the person or entity requesting the relocation of Whatcom PUD's
Facilities.
6 .4 Any condition or requirement imposed by the County upon any person or
entity, other than Whatcom PUD or the County ( including , without limitation , any condition
or requirement imposed pursuant to any contract or in conjunction with approvals or
permits for zoning , land use , construction or development) which requires the relocation of
Whatcom PUD's Facilities shall be a required relocation for purposes of Section 6 . 3 ;
provided , however:
6 . 4 . 1 If the County notifies Whatcom PUD in writing that the primary
purpose of imposing such condition or requirement upon such person or entity is to cause
the grading or widening of the Franchise Area on the County's behalf consistent with the
County' s Six-Year Road Construction Program , then Whatcom PUD shall relocate its
Facilities within the Franchise Area in accordance with Section 6 . 1 .
6 . 4 . 2 If the County notifies Whatcom PUD in writing that the County will
bear a portion of the costs of, or will provide funding towards , a project that includes
grading or widening of the Franchise Area resulting from the imposition of such condition
or requirement upon such person or entity, then Whatcom PUD agrees to bear a portion of
its costs and expenses to relocate its Facilities to accommodate such grading or widening ,
such portion borne by Whatcom PUD being a percentage equal to that percentage of such
project' s costs borne or funded by the County (the "County Contribution" ); provided ,
however, in no event shall such portion borne by Whatcom PUD exceed the dollar amount
of such County Contribution . " Project" shall mean that work directly bearing on the area
that necessitates relocation by Whatcom PUD , and shall not include other off-site
improvements that may be performed at the same time . In all other respects such
relocation shall be a required relocation for the purposes of Section 6 . 3 and without
limiting the foregoing , Whatcom PUD shall have the right as a condition of such relocation
to require such person or entity to pay to Whatcom PUD all relocation costs and expenses
in excess of the portion borne by Whatcom PUD under this Section 6 . 4 . 2 .
6 .4. 3 If the Facilities to be relocated pursuant to this subsection 6 . 4 have
been located at or relocated within the preceding five ( 5 ) years to a location upon which
the County had agreed at the time without reservation , then Whatcom PUD shall be
entitled to recovery of all its costs and expenses incurred in the relocation of its Facilities
from the party on whom the condition for road improvements was placed . Documentation
of any such agreement between the County and Whatcom PUD shall be kept in
conjunction with the encroachment permit issued by the County for the work of relocation .
6 . 5 Nothing in this Section 6 shall require Whatcom PUD to bear any cost or
expense in connection with the location or relocation of any Facilities then existing
pursuant to easement or such other rights not derived from or addressed by this
Franchise .
Page 7
Section 7 . Indemnification .
7 . 1 . To the extent permitted by law, Whatcom PUD shall defend , indemnify and
hold the County harmless from any and all claims, demands , suits , actions , costs and
expenses , including but not limited to attorneys' fees , made against it on account of injury
or damage to the person or property of another, but only to the extent such injury or
damage is caused by the actions or failure to act of Whatcom PUD , its agents , servants or
employees in exercising the rights granted to Whatcom PUD in this Franchise ; provided ,
however, that in the event any such claim or demand be presented to or filed with the
County, the County shall promptly notify Whatcom PUD thereof, and Whatcom PUD shall
have the right, at its election and at its sole cost and expense , to settle and compromise
such claim or demand ; provided further, that in the event any suit or action is begun
against the County based upon any such claim or demand , the County shall likewise
promptly notify Whatcom PUD thereof, and Whatcom PUD shall have the right, at its
election and its sole cost and expense , to settle and compromise such suit or action , or
defend the same at its sole cost and expense , by attorneys of its own election .
Notwithstanding the foregoing , if damages to another or others result from concurrent
negligence of Whatcom PUD and the County, Whatcom PUD and the County shall each
be responsible for, and this indemnification provision shall be operative so that each party
bears , the proportionate share attributable to its own negligence . In case judgment which
is not appealed shall be rendered against the County in such suit or action , Whatcom PUD
shall fully satisfy said judgment within ninety ( 90 ) days after said suit or action shall have
finally been determined . Upon Whatcom PUD's failure to satisfy said judgment within
ninety ( 90 ) days , the County may elect to terminate this Franchise pursuant to the terms of
Section 20 herein . The provision for reimbursement of the County shall survive the
termination of this Franchise .
7 . 2 Acceptance by the County of any work performed by Whatcom PUD at the
time of completion shall not be grounds for avoidance of the covenant in Section 7 . 1
above .
Section 8 . Acquisition of Right-of-Way.
8 . 1 In the event that Whatcom PUD proposes to acquire easements for the
location or relocation of its Facilities outside of, and adjacent to the Franchise Area ,
Whatcom PUD shall notify the County of the same and the County shall have the option ,
with the concurrence of Whatcom PUD , to acquire in place of such Whatcom PUD
proposed easements , additional public rights-of-way or equivalent public utility easements
for use by Whatcom PUD . Any such public rights-of-way acquired by the County shall
become Franchise Area . Any such public utility easements so acquired by the County
shall not be Franchise Area (and shall not be subject to the terms and conditions of this
Franchise ) and Whatcom PUD's use of such public utility easements shall be subject to
the terms and conditions of such public utility easements . '
1 A distinction is drawn here between public rights-of-way which are or shall become Franchise
Area and thus governed by the terms of the franchise ordinance, and public utility easements which
shall not become Franchise Area , the use of which shall be governed by the terms and conditions
of the easements themselves and not by the franchise ordinance.
Page 8
Section 9 . Vacation of the Franchise Area.
9. 1 If at any time the County shall seek to vacate any portion of the Franchise Area
and said vacation shall be for the purpose of acquiring the fee or other property interest in
said portion of the Franchise Area for the use of the County, in either its proprietary or
governmental capacity, and there are no Facilities located in the Franchise Area , then the
County Engineer may at his option and by giving thirty (30 ) days' written notice to
Whatcom PUD , terminate this Franchise with reference to such portion of the Franchise
Area so vacated , and the County shall not be liable for any damages or loss to Whatcom
PUD allegedly incurred by reason of such termination .
9 .2 If at any time the County shall vacate any portion of the Franchise Area in
which Facilities are installed at the time of said vacation , and said vacation shall be for the
purpose of acquiring the fee or other property interest in said portion of the Franchise Area
by an entity other than the County, then the County shall , in its vacation procedure , unless
otherwise waived in writing by Whatcom PUD , reserve an easement to Whatcom PUD for
Whatcom PUD' s Facilities as reasonably necessary for the continued use , operation ,
maintenance and repair of the Facilities as located in the portion of the Franchise Area to
be vacated .
Section 10 . Moving Buildings within the Franchise Area .
10 . 1 If any person or entity obtains permission from the County to use the
Franchise Area for the moving or removal of any building or other object, the County shall ,
prior to granting such permission , direct such person or entity to arrange with Whatcom
PUD for the temporary adjustment of Whatcom PUD's Facilities necessary to
accommodate the moving or removal of such building or other object. Such person or
entity shall make such arrangements , upon terms and conditions acceptable to Whatcom
PUD , not less than fourteen ( 14) days prior to the moving or removal of such building or
other object. In such event, Whatcom PUD shall , at the sole cost and expense of the
person or entity desiring to move or remove such building or other object, adjust any of its
Facilities which may obstruct the moving or removal of such building or object.
Section 11 . County Use of Facilities .
11 . 1 During the term of this Franchise , and with respect to poles which are
Facilities and which are ( i ) wholly owned by Whatcom PUD and ( ii ) within the Franchise
Area , the County, subject to Whatcom PUD's prior written consent which shall not be
unreasonably withheld , may install and maintain County-owned overhead wires and cables
upon such poles for police , fire , traffic control and other noncommercial municipal .
communications purposes . The foregoing rights of the County to install and maintain such
wires and cables are further subject to the following :
11 . 1 . 1 Such installation and maintenance shall be done by the County at
its sole risk and expense , in accordance with all applicable laws , and subject to such
reasonable requirements as Whatcom PUD may specify from time to time ( including ,
without limitation , requirements accommodating Whatcom PUD's Facilities or the facilities
of other parties having the right to use Whatcom PUD's Facilities);
Page 9
11 . 1 .2 Whatcom PUD shall have no obligation arising under the indemnity
provisions in Section 7 of this Franchise as to any circumstances directly or indirectly
caused by or related to such County-owned wires and cables or the installation or
maintenance thereof; provided , however, that the County shall be subject to the applicable
provisions of Section 7 of this Franchise ; and
11 . 1 . 3 The parties acknowledge that Whatcom PUD is required to comply
with RCW 54 . 04. 045 in adopting its rates and fees . As such , the parties acknowledge and
agree that Whatcom PUD may include in its fee schedule a credit that is the equivalent
amount of any fee charged for any attachment to a pole that is located within a Franchise
or easement area of another party in order to satisfy this provision ; provided , further, that
nothing herein shall require Whatcom PUD to bear any cost or expense in connection with
such installation and maintenance by the County, including any costs or expense incurred
by Whatcom PUD to make Whatcom PUD's poles ready for County use and/or review of
County plans and specifications for such County use of Whatcom PUD 's poles .
Section 12 . Locating Facilities.
12 . 1 Whatcom PUD and the County acknowledge and commit to fully comply with
their respective obligations , as the same may arise from time to time , under Chapter
19 . 122 RCW ( Underground Utilities Locator Statute) or any other law applicable to
determining the location of utility facilities .
Section 13. Nonexclusive Franchise.
13 . 1 This Franchise is not and shall not be deemed to be an exclusive franchise .
It shall not in any manner prohibit the County from granting other franchises of a like
nature or franchises for other public or private utilities under, along , across , over, and upon
any part of the Franchise Area , and shall in no way prevent or prohibit the County from
constructing , altering , maintaining , using , or vacating any part thereof, or affect its
jurisdiction over any part thereof with full power to make all necessary changes ,
relocations , repairs , maintenance , etc. , the same as the County may deem fit.
Section 14. Franchise Term .
14. 1 This Franchise is and shall remain in full force and effect fora period of
twenty-five (25 ) years from and after the effective date of the Ordinance ; provided ,
however, Whatcom PUD shall have no rights under this Franchise nor shall Whatcom
PUD be bound by the terms and conditions of this Franchise unless Whatcom PUD shall ,
within thirty (30 ) days after the effective date of the Ordinance , file with the County its
written acceptance of the franchise agreement contained within the Ordinance .
14 . 2 (a ) No franchise hereunder shall become effective for any purpose unless and
until written acceptance therefore shall have been filed with the Whatcom County Council
and County Director of Public Works and such written acceptance shall be in the form and
substance as shall be prescribed and approved by the County Prosecuting Attorney and
operate as an acceptance of each and every term and condition and limitation contained in
Page 10
this ordinance , and in such franchise; and ( b ) such written acceptance shall be filed by
Whatcom PUD not later than the thirtieth (30th ) day following the effective date of the
ordinance granting such franchise ; and in default of the filing of such written acceptance
as herein required , Whatcom PUD shall be deemed to have rejected the same . In case of
Whatcom PUD's tardy acceptance of franchise , the County's recognition thereof shall be
strictly at its discretion .
Section 15. Assignment.
15 . 1 Neither this Franchise nor any interest herein shall be sold , transferred , or
assigned without the prior consent in writing of the County Council , which consent shall not
be unreasonably withheld , except that the grantee may mortgage this Franchise to the
trustee for its bond holders . Any approved assignee shall , within thirty (30 ) days of the
date of any assignment, file written notice of the assignment with the County, together with
its written acceptance of all terms and conditions of this Franchise .
15 . 2 All the provisions , conditions , and requirements herein contained shall be
binding upon the successors and assigns of Whatcom PUD, and all privileges , as well as
all obligations and liabilities of the grantee shall inure to its successors and assigns equally
as if they were specifically mentioned wherever Whatcom PUD is mentioned .
Section 16. Amendment.
16 . 1 Except as addressed in and through Section 16 . 3 below, this Franchise may
be amended only by written instrument, signed by both parties , which specifically states
that it is an amendment to this Franchise and is approved and executed in accordance
with the laws of the State of Washington . Without limiting the generality of the foregoing ,
this Franchise ( including , without limitation , Section 5 above ) shall govern and supersede
and shall not be changed , modified , deleted , added to , supplemented or otherwise
amended by any permit, approval , license , agreement or other document required by or
obtained from the County in conjunction with the exercise (or failure to exercise ) by
Whatcom PUD any and all rights , benefits , privileges , obligations or duties in and under
this Franchise , unless such permit, approval , license , agreement or other document
specifically:
16 . 1 . 1 References this Franchise ; and
16 . 1 . 2 States that it supersedes this Franchise to the extent it contains
terms and conditions that change , modify, delete , add to , supplement or otherwise amend
the terms and conditions of this Franchise . In the event of any conflict or inconsistency
between the provisions of this Franchise and the provisions of any such permit, approval ,
license , agreement or other document, the provisions of this Franchise shall control .
e
16 .2 If, during the term of this Franchise , there becomes effective any change in
federal or state law ( including changes approved by the Washington Utilities and
Transportation Commission ) which :
16 . 2 . 1 Affords either party the opportunity to negotiate in good faith a term
Page 11
or condition of this Franchise which term or condition would not have , prior to such
change, been consistent with federal or state law; or
16 . 2 . 2 Pre-empts or otherwise renders null and void any term or condition
of this Franchise which has there-to-fore been negotiated in good faith ; then , in such
event, either party may notify the other party in writing that such party desires to
commence negotiations to amend this Franchise . Such negotiations shall encompass
only the specific term or condition affected by such change in federal or state law and
neither party shall be obligated to re-open negotiation on any other term or condition of this
Franchise . Within thirty (30 ) days from and after the other party's receipt of such written
notice , the parties shall , at a mutually agreeable time and place , commence such
negotiations . Pending completion of such negotiations resulting in mutually agreeable
amendment of this Franchise , adoption of such amendment by Ordinance by the County
and acceptance of such Ordinance by Whatcom PUD , and except as to any portion
thereof which has been pre-empted or otherwise rendered null and void by such change in
federal or state law, this Franchise shall remain in full force and effect.
16 . 3 Notwithstanding any language to the contrary contained herein , this
Franchise is subject to the provisions of the Whatcom County Charter, Section 9 . 30 , and
all rights belonging to the County and its people as set forth therein are hereby reserved
thereto .
Section 17. Miscellaneous .
17 . 1 If any term , provision , condition , or portion of this Franchise shall be held to
be invalid , such invalidity shall not affect the validity of the remaining portions of this
Franchise , which shall continue in full force and effect. The headings of sections and
paragraphs of this Franchise are for convenience of reference only and are not intended to
restrict, affect or be of any weight in the interpretation or construction of the provisions of
such sections or paragraphs .
17 . 2 This Franchise is subject to the requirements of any and all applicable laws ,
rules , and regulations , including the Whatcom County Code , as currently enacted or
hereafter modified . In the event of any actual conflict between the provisions of this
Franchise and the requirements of the Whatcom County Code or County-enacted rules or
regulations , the provisions of this Franchise shall control , to the extent authorized by law.
17 . 3 All notices , demands , requests , consents and approvals which may, or are
required to be given by any party to any other party hereunder, shall be in writing and shall
be deemed to have been duly given if delivered personally, sent by facsimile , sent by a
nationally recognized 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 :
For County: County Executive
Whatcom County Courthouse
311 Grand Ave .
Bellingham , WA 98225
Page 12
For Whatcom PUD : General Manager
Whatcom PUD
1705 Trigg Rd .
Ferndale , WA 98248
or to such other address as the foregoing parties hereto may from time-to-time designate
in writing and deliver in a like manner. All notices shall be deemed complete upon actual
receipt or refusal to accept delivery. Facsimile transmission of any signed original
document, and retransmission of any signed facsimile transmission shall be the same as
delivery of an original document.
17 .4 No failure by any of the foregoing parties to insist upon the strict performance
of any covenant, duty, agreement, or condition of this Franchise or to 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 shall affect or alter this
Franchise , and each and every covenant, agreement, term and condition of this Franchise
shall continue in full force and effect with respect to any other then existing or subsequent
breach thereof.
17 . 5 In the event that the County receives a public records request pursuant to the
State of Washington Public Records Act ( RCW 42 . 56 ) regarding the Facilities , including
without limitation the location of the Facilities , the County shall make good faith efforts to
timely notify Whatcom PUD of such request.
Section 18. Incorporation and Annexation .
18 . 1 Whenever any part of the Franchise Area , 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 , this Franchise shall continue in force and effect as to all of the
Franchise Area not so included in city or town limits .
Section 19 . Insurance .
19. 1 During the term of this Franchise Whatcom PUD shall keep in effect, a
liability insurance policy covering all liability of Whatcom PUD to the County, including any
assumed by contract between Whatcom PUD and any other party, with limits at least in
the amount of $ 1 , 000 , 000 . In lieu of the insurance requirement of this Section , Whatcom
PUD may self-insure against such risks . At the time of Whatcom PUD's acceptance of
this Franchise and otherwise upon the County's request, Whatcom PUD shall provide the
County with certificate( s ) of insurance or evidence of self-insurance reflecting the
requirements of this Section .
Section 20 . Forfeiture and Termination of Franchise .
20 . 1 If Whatcom PUD shall willfully violate or fail , through willful or unreasonable
neglect, to comply with any of the provisions of this Franchise for sixty (60 ) days after
receipt of written notice from the County, then the County shall have the right by ordinance
to declare Whatcom PUD's forfeiture of all rights hereunder and to declare this Franchise
Page 13
terminated and of no further force or effect thereafter; provided , however, if any failure to
comply with this Franchise by Whatcom PUD cannot be corrected with due diligence within
said sixty (60 ) day period (Whatcom PUD's obligation to comply and to proceed with due
diligence being subject to unavoidable delays and events beyond its control ), then the time
within which Whatcom PUD may so comply shall be extended for such time as may be
reasonably necessary and so long as Whatcom PUD commences promptly and diligently
to effect such compliance .
Section 21 . Effective Date.
21 . 1 This Ordinance shall be effective ten ( 10 ) days after being signed by the
County Executive , with the Franchise granted hereunder finally effective pursuant to the
terms of Section 14 , having been : (i ) introduced to the County Council not less than
thirteen ( 13 ) days before its passaae ; ( ii ) first submitted to the Prosecuting Attorney on
September 14 , 2010 (iii ) brought to public notice by such notice having
been posted in three (3) public places in Bellingham at least fifteen ( 15 ) days before the
day fixed for the public hearing ; ( iv) published at least twice in the official newspaper for
the County and no later than five (5 ) days prior to the day fixed for the hearing and as
otherwise required by law; and (v) passed at a regular meeting of the legislative body of
the County of Whatcom by a vote of at least 7 members of the County Council
on June 21 , 2011 .
````��u ► i ► ► ► ► ► ►,iii
,\\*P,TECf°r i i, day of June 2011 .
o ° Ok COUNTYO� °° ®
AT ° C = WHATCOM COUNTY COUNCIL
`° _- WHATCOM COUNTY, WASHINGTON
:I % ATE OF * ° S
° Sez
era *WAS
eat 4.61•F Klanna
Dana : .wn .1;).a4 , Gie`icv the Council Sam Crawford , Cou cil Chair
APPROVED AS TO FORM : WHATCOM COUNTY EXECUTIVE
WHATCOM COUNTY, WASHINGTON
aamiex Mion,
Civil Deputy Prosecutor ' e e , County Executive
( pproved ( ) Denied
Date Signed : 6 -092 .3 -//
F:\PUD #1 OF WHATCOM COUNTY\OPERATIONS\County Franchise Application - 2010\Electric\Franchise Draft Electrical 04.28.11 Clean.doc
Page 14
Exhibit A
ACCEPTANCE OF FRANCHISE
Public Utility District No . 1
r
The Whatcom County Council at its meeting of June 21 , 2011 , adopted Ordinance 2011 -020
approving the application for franchise filed by Public Utility District No . 1 . The petition and
all related documents are available for review in the Council Office as file number AB2010-
327 .
Public Utility District No . 1 hereby accepts, subject to all the conditions contained in
Ordinance 2011 - 020 , that certain non - exclusive franchise , to locate, set, erect, lay,
construct, extend , support, attach , connect, maintain , repair, replace, enlarge, operate and
use facilities in , upon , over, under, along , across and through the franchise area to provide
for the transmission , distribution and sale of energy for power, heat, light and such other
lawful purposes for which energy and/or electricity may be used . The franchise area means
any, every and all of the public roads, streets, avenues, alleys, highways, grounds , and
other public places of the County as now laid out, platted , dedicated , or improved ; and any,
every and all of the public roads, streets, avenues, alleys, highways , grounds and other
public places that may hereafter be laid out, platted , dedicated or improved within the
present limits of the County and as such limits may be hereafter extended .
Granting of this franchise becomes official upon receipt from the petitioner of this signed
and notarized document, and payment by petitioner of publication costs incurred by the
County Council Office .
This fra$LOe,�JTeYi cQ3$wJ , shall be in effect for a period of twenty-five ( 25 ) years .
0 •• oC H4r .• G e.
• re, O • I. % WHATCOM COUNTY COUNCIL
ATTEST : , - 7Y O _ WHATCOM COUNTY, WASHINGTON
: �zSrq , . • L • r- `
• �— sAirldr .
Dana Br6yyn - li avis ‘s. am Crawford
Clerk of th&&QQI,ifl�i1l1nnfl" ouncil Chair
I : \FRANCHISES\2010\PUD # 1 of Whatcom Co . - electric\Acceptance of Franchise Exhibit A. doc
Agent for the petitioner, Public Utility District No . 1 :
'sr lc /
/ Date :
State of Washington )
) ss .
County of Whatcom )
Signed and sworn to before me on this 29day of cas4 20 (1 I , by
Przkn, v, I'\ 6r ► ►M w, .
(Agent for petitioner)
ott■riiigo Anil Y1/4..." Ar(.. .6tA,
ut* It��o` ��'41y 0• Notary Public in and for the State of Washington ,le w / oTMy 0 residing at j. 1 I � ka, w-N
w •
• S
a
rgi
s Aost fa t
My notary commission expires Jt�tr..L1, 2b11-
Effective Date of this franchise : tJUAL 2-9 AO I /
I : \FRANCHISES\2010\PUD # 1 of Whatcom Co . - electric\Acceptance of Franchise Exhibit A . doc