HomeMy WebLinkAboutord2005-071WIMTCOM COUNTY COUNCIL AGENDA BILL NO. 2005 -362
CLEARANCES
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TITLE OFDOCUtNT: to p Water Owners Association Franchise Ordinance [proposed]
ATTACHMENTS: Ordinance & Memorandum
SEPA review required? ( ) Yes ( ) NO
Should Clerk schedule a hearing ? (X) Yes ( ) NO
SEPA review completed? ( ) Yes ( ) NO
Requested Date: September 27, 2005
SUlf(ARYSTATEMENT OR LEGAL NOTICE LANGUAGE: (If this item is an ordinance or requires a public hearing, you
wum?prepvide the language for use in the required public notice Be specific and cite RCW or WCC as appropriates Be clear in
cqdisilirg the intent of the action.)
Pwnwxt to RCW 36.55.040 and Whatcom County Code 12.24.051, notice is hereby given of public hearing before the County
Canned/ on a proposed ordinance that, if adopted, would grant a franchise for a period of twenty -five (25) years to the Hilltop
Wooer Owners Association to use County right -of -way in certain locations generally within its service area for purposes of placiwg
won ►&W sewer lines and associated facilities, those locations more fully described within the proposed ordinance on Jile with the
Qav q+ CounciL The public hearing will be held during the County Council meeting scheduled for 7:00 p.m., September 27, 2005,
In CderaW Chambers of the Whatcom County Courthouse, 311 Grand Avenue, Bellingham, Washington. Pursuant todRCW
A51050, the hearing may be adjourned from time to time by order of the County Council until action is taken by the Council
qa &*proposed ordinance.
00100 PEE ACTION:
COUNCIL ACTION.
9/13/2005: introduced
9/27/05: Adopted 6 -0, Brenner absent
Ordinance 2005 -071
Related County Contract #:
Related File Numbers:
Ordinance or Resolution Number.
Ord. 2005 -071
Xerae Nete: Once adopted and signed, ordinances and resolutions are avallable for viewing and printing on the County's webske
at wwmcawhatcom.wa.us/counciL
a
INTRODUCED BY: CONSENT
PROPOSED BY: Consent
DATE INTRODUCED: 9.113x105
ORDINANCE NO. 2005 -071
AN ORDINANCE IN THE MATTER OF GRANTING A NON-
EXCLUSIVE FRANCHISE TO HILLTOP WATER OWNERS
ASSOCIATION FOR A PERIOD OF 25 YEARS PURSUANT TO
STATE LAW AND SECTION 9.30 OF THE WHATCOM
COUNTY HOME RULE CHARTER, AND TO OPERATE AND
MAINTAIN WATER LINES AND FACILITIES ALONG
CERTAIN ROADS AND HIGHWAYS WITHIN THE
UNINCORPORATED AREAS OF WHATCOM COUNTY
WHEREAS, the Home Rule Charter for Whatcom County authorizes the County
Council to grant non - exclusive franchises for a fixed term not to exceed 25 years for the use of
any street, road or public place; and
WHEREAS, R.C.W. 36.55.010 provides that the County Council may grant franchises
to persons or private or municipal corporations to use the right -of -way of County roads in their
respective counties for the construction and maintenance of water works, gas pipes, telephones,
telegraph and electrical light lines, sewers and other such facilities and including cable television
wires and other cable television facilities; and
WHEREAS, the Hilltop Water Owners Association operates a system of water lines and
facilities within a portion of Whatcom County (Lummi Island) and the District desires and needs
a franchise for its use of the County's right -of -way; and
WHEREAS, the Hilltop Water Owners Association has applied for a 25 -year
nonexclusive franchise for installation, operation, maintenance, repair and replacement of water
mains and water distribution lines, fire hydrants, and associated equipment and facilities in and
along certain roads in Whatcom County, Washington, and notice of this hearing having been
duly published on Sept. 17 , 2005 and Sept. 24 , 2005 in the Bellingham Herald, the
official newspaper for Whatcom County, and it appearing to the County Council that notice of
Page 1 of 12
said hearing has been given as required by law and that it is in the public interest to grant the
franchise for a period of 25 years; and
WHEREAS, this matter has come on regularly for hearing before the Whatcom County Council
at 7:00 p.m. on the _21&ay of Sepfembpr , 2005 in accord with the notice given; and
WHEREAS, the Hilltop Water Owners Association has agreed to the various
administrative provisions of the franchise as provided herein;
NOW, THEREFORE, BE IT ORDAINED by the Council of Whatcom County,
Washington:
Section 1. Franchise Granted
(a) A non - exclusive franchise for the Hilltop Water Owners Association, operating as a
private association for the purpose of purveying water within the county of Whatcom, together
with any successors and assignees, referred to herein as the grantee, is hereby granted for a
period of 25 years, the non - exclusive right and privilege to construct, erect, operate, maintain,
repair, and replace water lines and related facilities in, along and across county roads or portions
thereof as named herein.
(b) The rights and privileges granted herein shall apply to all roads and public ways
listed, including all portions of rights -of -way abutting said roads and public ways, as follows:
Within Sections 4, 5, 9, and 10, Township 37 North, Range 1 East, W.M., in Whatcom
County, Washington.
The rights and privileges shall also apply to the portions of roads and rights -of -way that
are part of or that abut those portions of roads that lie just over the section lines that bisect or
intersect the listed roads.
Section 2. Acceptance of Franchise
(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 form and substance as shall be
Page 2 of 12
prescribed and approved by the County Prosecuting Attorney and operate as an acceptance of
each and every term and condition and limitation contained in this ordinance, and in such
franchise;
(b) Such written acceptance shall be filed by Grantee not later than the thirtieth day
following the effective date of the ordinance granting such franchise; and in default of the filing
of such written acceptance as herein required, Grantee shall be deemed to have rejected the
same.
Section 3. Entering Rights of Way.
The Grantee, its successors and assignees, shall, subject to the requirements of Section 5
below, have the right and authority to enter upon the above - mentioned county roads, rights -of-
way and other county property as designated hereinbefore, for the purposes of constructing,
operating, maintaining, repairing, and replacing water lines and facilities.
Section 4. Construction Standards.
All construction and installation work along and under county roads or rights -of -way or
other County property outside the corporate limits of any incorporated town shall be subject to
the approval and pass the inspection of the Director of Public Works and shall conform to all
applicable County and State codes or regulations. [The County expressly reserves the right to
prescribe how and where the facilities shall be installed, and from time to time, upon six months
or otherwise reasonable notice, whichever is longer', the County may require the removal and
replacement of water lines when in the public interest, at the expense of the franchise holder.
Section 5. Construction Application.
(a) Prior to commencement of construction of said water lines and facilities, Grantee
shall first file with the Director of Public Works its application for permit to do such work,
together with plans and specifications in duplicate showing the position and location of all such
lines and facilities sought to be constructed, laid, installed or erected at that time, showing their
1 While the period of time is stated as "six months or otherwise reasonable notice, whichever is longer", the parties
are generally willing to work to accommodate each other.
Page 3 of 12
relative position to existing county roads, rights -of -way or other county property upon plans
drawn to scale, hereinafter collectively referred to as the "map of definite location."
(b) The water lines and facilities shall be laid in conformity with said map of definite
location, or in conformity with design drawings by an engineer, except in instances in which
deviation may be allowed thereafter in writing by the Director of Public Works pursuant to
application by Grantee. 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 turn -outs and road
obstruction, etc. No such construction shall be commenced without the Grantee first securing a
written permit from the Director of Public Works, including approval endorsed on one set of
plans and specifications returned to the Grantee. All such work shall be subject to the approval of
and shall pass the inspection of the Director of Public Works. The Grantee shall pay all actual
and necessary costs of and expenses incurred in the examination, inspection and approval of such
work on account of granting said permits.
Section 6. Construction on Roadways /Other County Property.
(a) In any work which requires breaking of soil of the county roads, rights -of -way or
other county property subject to this franchise for the purpose of laying, relaying, connecting,
disconnecting and repairing the said water lines and facilities, and making connections between
the same to structures and buildings of consumers or making connections to other facilities of the
Grantee now in existence or hereafter constructed, the Grantee shall be governed by and conform
to the general rules adopted by the officers charged with the supervision and care of such county
roads, rights -of -way, and other county property; and the Grantee at its own expense and with all
convenient speed shall complete the work for which the soil has been broken and forthwith
replace the work and make good the county road, rights -of -way or other county property and
leave the same in as good condition as before the work was commenced.
(b) Applications for permits referred to in Section 5 above shall be accompanied by
specifications for the restoration of the county road, rights -of -way or other county property to the
same condition it was prior to such breaking of the soil, and such specifications must be
approved by the Director of Public Works before such breaking of the soil is commenced.
Page 4 of 12
Provided, that the Director of Public Works may require a performance bond in a sum sufficient
to guarantee that such county roads, rights -of -way or other county property shall be restored to
the same condition as they were prior to the breaking of the soil. Said bond shall be in addition to
any other such requirements contained herein.
(c) The Director of Public Works may at any time order, or have done, any and all work
that it considers necessary to restore to a safe condition any such county road, rights -of -way or
other county property left by the Grantee or its agents in a condition dangerous to life or
property, and the Grantee upon demand shall pay to the County all costs of such work; provided
that, where reasonably feasible, the Grantee shall be provided prior notice of the condition and
allowed seventy -two (72) hours to complete the necessary restoration work itself.
Section 7. Construction — Other Lines and Facilities.
(a) All construction or installation of such water lines and facilities, service, repair or
relocation of same, performed above, along or within the county rights -of -way or other county
property subject to this franchise shall be done in such a manner as not to interfere with the
construction and maintenance of other utilities' lines, public or private, drains, drainage ditches
and structures, irrigation ditches and structures located therein, nor change the drainage flow
therein, nor interfere with the grading or improvement of such county roads, rights -of -way or
other county property.
(b) The owners of all utilities, public or private, installed prior in time to the line and
facilities of the Grantee shall have preference as to the positioning and location of such utilities
so installed with respect to the Grantee. 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.
Section 8. Construction - Public Safety and Inconvenience.
All work done under this franchise shall be done in a thorough and workmanlike
manner. In the laying of water lines and the construction of facilities within rights -of -way or
other county property, the Grantee shall leave such trenches, ditches and tunnels in such a way as
to interfere as little as possible with public travel and shall take all due and necessary precautions
to guard the same, so that damage or injury shall not occur or arise by reason of such work; and
Page 5 of 12
M
where any of such trenches, ditches, or tunnels are left open at night, the Grantee shall place
wanting lights and barricades at such a position as to give adequate warning of such work, per
the MUTCD (Manual on Uniform Traffic Control Devices). The Grantee shall be liable for any
injury to person or persons or damage to property sustained through its carelessness or neglect,
or through any failure or neglect to properly guard or give warning of any trenches, ditches or
tunnels dug or maintained by the Grantee.
Section 9. CoInty Rights Reserved.
The County of Whatcom in granting this franchise, does not waive any rights which it
has now 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 or other County property covered by this franchise. This franchise
shall be subject to the power of eminent domain, and in any proceeding under eminent domain,
the franchise itself shall have no value.
Section 10. Relocation of Lines and Facilities.
(a) If the County of Whatcom shall improve or change any county road, right -of -way or
other county property subject to this franchise by grading or regrading, planking or paving the
same, changing the grade, altering, changing, repairing or relocating the same or by constructing
drainage facilities, or in the event that such county road, right -of -way or other county property
subject to this franchise shall become a Primary State Highway as provided by law, the Grantee
shall, at its sole expense and within six months or a reasonable time, whichever is longer,2
following written notice from the Director of Public Works or the Director of Highways, change
the location or readjust the elevation of its water lines and facilities so that the same shall not
interfere with such County work and so that such lines and facilities shall conform to such new
grades or routes as may be established. The County of Whatcom shall not be liable for damage
to said Grantee that may occur by reason of any of the County's improvements, changes or
works above enumerated; except in the event said damage is caused by the sole gross negligence
or intentionally wrongful acts of the County or its agents.
Page 6 of 12
(b) All work to be performed by the Grantee under this section shall be under the
direction and approval, and shall pass the inspection of the Director of Public Works. The
Grantee shall pay all actual and necessary costs and expenses incurred in the examination,
inspection and approval of such work.
Section 11. County Road Work Permitted.
The laying, construction, operation and maintenance of the Grantee's water lines and
facilities authorized by this franchise shall not preclude the County of Whatcom, its agents or its
contractors from blasting, grading, excavating or doing other necessary road work contiguous to
the said lines and facilities of the Grantee provided that the Grantee shall be given seventy -two
(72) hours notice of said blasting or other work in order that the Grantee may protect its lines and
facilities.
Section 12. Monuments and Survey Markers.
(a) 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 Grantee shall reference all such monuments and markers. The reference points shall be so
located that they will not be disturbed during the Grantee's operations under this franchise. The
method of referencing these monuments or other points to be referenced shall be approved by the
Director of Public Works. The replacement of all such monuments or other points to be
referenced shall be approved by the Director of Public Works. The replacement of all such
monuments or markers disturbed during construction shall be made as expeditiously as
conditions permit, and as directed by the Director of Public Works. The cost of monuments or
other markers lost, destroyed or disturbed, and the expense of replacement by approved
monuments shall be borne by the Grantee.
(b) A complete set of reference notes for monuments and other ties shall be filed with
the Whatcom County Director of Public Works.
Section 13. Vacations.
2 See footnote 1.
Page 7 of 12
If at any time the County of Whatcom shall vacate any county road, right -of -way or
other county property which is subject to the rights granted by this franchise, then the Council of
Whatcom County may at its option and by giving thirty (30) days written notice to the Grantee,
terminate this franchise with reference to such county road, right -of -way or other county
property so vacated and the County of Whatcom shall not be liable for any damages or loss to the
Grantee by reason of such termination. Prior to vacation, the County of Whatcom shall, at the
request of franchisee, reserve for the benefit of Grantee an easement for the water lines and
facilities in the subject right of way or county property.
Section 14. Indemnification.
(a) The Grantee by acceptance of the privileges granted hereunder, does hereby agree
and covenant to indemnify, defend, and save harmless Whatcom County and those persons who
were, are now, or shall be duly elected or appointed officials or members or employees thereof,
against and from any loss, damage, costs, charges, expenses, liability, claims, demands or
judgments of whatsoever kind or nature, whether to persons or property, arising wholly or
partially out of any act, action, neglect, omissions or default on the part of the Grantee, its
subcontractors and/or employees which may occur by reason of construction, operation and
maintenance of the Grantee's said water lines and facilities. In case that suit or action is brought
against the County of Whatcom for damages arising out of or by reason of the above - mentioned
causes, the Grantee will upon notice to it of the filing of a claim or the commencement of said
action, appear and defend the same at its sole cost and expense, and in case judgment shall be
rendered against the County of Whatcom in suit or action, the Grantee will fully satisfy said
judgment within ninety (90) days after said suit or action shall have finally been determined, if
determined adversely to Whatcom County. Upon the Grantee's failure to satisfy said judgment
within a ninety (90) day period, this franchise shall at once cease and terminate and the County
of Whatcom shall have a lien upon the water lines and all other facilities used in the construction,
operation and maintenance of the Grantee's water system, which may be enforced against the
property for the full amount of any such judgment so taken against Whatcom County.
(b) Acceptance by the County of any work performed by the Grantee at the time of
completion shall not be grounds for avoidance of this covenant.
Page 8 of 12
Section 15. Non - Exclusive Franchise.
This franchise shall not be deemed to be an exclusive franchise. It shall in no manner
prohibit the County of Whatcom from granting other franchises of a like nature or franchises for
other public or private utilities under, along, across, over and upon any of the county roads,
rights -of -way, or other County property subject to franchise, and shall in no way prevent or
prohibit the County of Whatcom from constructing, altering, maintaining, using or vacating any
of said roads, rights -of -way, drainage structures or facilities, irrigation structure or facilities, or
any other County property or affect its jurisdiction over them with full power to make all
necessary changes, relocations, repairs, and maintenance as the County may deem fit.
Section 16. Successors and Assignees.
All the provisions, conditions, regulations and requirements herein contained shall be
binding upon the successors and assignees of the Grantee, 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 the Grantee is mentioned herein.
Section 17. Transferability.
Neither this franchise nor any interest therein shall be sold, transferred or assigned
without prior consent in writing of the Council of Whatcom County, such consent not to be
unreasonably withheld.
Section 18. Incorporation.
Whenever any of the county roads, rights -of -way or other county property as designated
in this franchise, by reason of the subsequent incorporation of any town or city, or extension of
the limits of any town or city, shall fall within the city or town limits, this franchise shall
continue in force and affect as to all county roads, rights -of -way or other county property not so
included in city or town limits.
Section 19. Enforcement/Remedies.
If the Grantee shall willfully violate, or fail to comply with any of the provisions of this
Page 9 of 12
franchise through willful or unreasonable neglect, or fail to heed or comply with any notice given
the Grantee under the provisions of this franchise, then the said Grantee shall forfeit all rights
conferred hereby, and this franchise may be revoked or annulled by the Council of Whatcom
County. In addition to any rights implied or set out elsewhere in this ordinance, the Council
reserves the right to require the Grantee to specifically comply with the terms and conditions of
the franchise ordinance, or any lawful order, statute, or regulation, and this franchise may be
terminated at any time if the Grantee's lines and facilities are not operated or maintained in
accordance with such ordinance, statute, order or regulation.
Section 20. Reservation of Home Rule Charter Rights.
This franchise is subject to the provisions of the Home Rule Charter for Whatcom
County and, in particular, Section 9.30 thereof which provides as follows: All franchises granted
by the County Council shall be for a fixed term not to exceed twenty -five (25) years and no
exclusive fianchise shall be granted for the use of any street, road, or public place. All franchises
shall be subject to the power of eminent domain and the right of the Council or the people acting
for themselves through initiative or referendum to repeal, amend or modify the franchise in the
interest of the public; and every ordinance granting a franchise shall contain a reservation of
these rights. In any proceeding under eminent domain the franchise itself shall have no value.
Section 21. Compliance with Laws and Regulations.
This franchise is subject to, and the Grantee shall comply with all applicable Federal,
State, County or municipal laws, regulations and policies affecting performance under this
franchise.
Section 22. Insurance.
(a) Upon acceptance of this franchise, the Grantee shall, at the discretion and request of
the County, file with the Whatcom County Council, and shall thereafter, during the entire term of
such franchise, maintain in full force and effect, a corporate insurance policy or other adequate
surety agreement in the amount of ONE MILLION DOLLARS ($1,000,000.00) for property
damage coverage, and ONE MILLION DOLLARS ($1,000,000.00) for general liability
coverage, so as to protect the County against damages or costs as set forth in Section 14 above,
Page 10 of 12
and there shall be recoverable, jointly and separately from the principal and surety, any such
damages or costs suffered or incurred by the County, including attorneys' fees and costs of any
action, or proceedings, and including the full amount of any compensation, indemnification, cost
of removal of any property or other costs which may be incurred up to the full principal amount
of such insurance policy; and said condition shall be a continuing obligation during the entire
term of such franchise and thereafter until Grantee shall have satisfied in full any and all
obligations to the County and any user which arise out of or pertain to said franchise. Neither
the provisions of this section, nor any insurance policy accepted by the County pursuant hereto,
nor any damages recovered by the County thereunder, shall be construed to excuse faithful
performance by the Grantee, or limit the liability of the Grantee under any franchise issued
pursuant to this ordinance.
(b) The County reserves the right to have its legislative body review the dollar amount of said insurance policy and
adjust the amount of coverage as deemed appropriate upon an annual basis.
Section 23. License, Tax and Other Charges.
No privileges or rights granted hereunder shall exempt Grantee from any future uniform
rent, license, tax charge or impost which may hereafter be required by the Grantor, for revenue
or as reimbursement for use and occupancy of public ways, and failure to timely remit any sums
properly due thereby, shall be cause for forfeiture of rights hereunder.
Section 24. Repealer.
All other prior existing franchises granted by Whatcom County to the Hilltop Water
Owners Association shall be repealed, and, the terms of the franchise granted hereunder shall
become effective at such time as an acceptance of franchise is filed by the Grantee with the
County in accordance with Section 2 herein.
Section 25. Severabilitv.
If any portion of the ordinance is deemed invalid the remainder will remain in effect.
Section 26. Titles.
Page 11 of 12
The section titles used herein are for reference only and should not be used for the
purpose of interpreting this ordinance.
Adopted this 27th day of September
i
OOUKTY : r
ram i � •
APPROVED AS TO FORM:
Daniel L. Gibson, Senior Civil
Deputy Prosecuting Attorney
2005.
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
'e' ( -
CHAIRPERSON
COUNTY EXECUTIVE
'27. .2-avc
DATE
Published on _ . 17 and aJ� . A!kl o2 &VS.
This ordinance shall become effective on OdQL ,1- ! % aens-
Page 12 of 12
Exhibit B
ACCEPTANCE OF FRANCHISE
Hilltop Water Owners Association
The Whatcom County Council at its meeting of September 27, 2005, adopted Ordinance
2005 -071 approving the petition for franchise filed by Hilltop Water Owners Association.
The petition and all related documents are available for review in the Council Office as file
number 2005 -362.
Hilltop Water Owners Association hereby accepts, subject to all the conditions contained in
Ordinance 2005 -071, that certain non - exclusive franchise to construct, erect, operate,
maintain, repair and replace water lines and related facilities in, along, and across county
roads, or portions thereof. The rights and privileges granted herein shall apply to all roads
and public ways listed, including all portions of rights -of -way abutting said roads and public
ways, as follows:
Within Sections 4, 5, 9, and 10, Township 37 North, Range 1 East, W.M., in
Whatcom County Washington.
The rights and privileges shall also apply to the portions of roads and rights -of -way that are
part of or that abut those portions of roads that lie just over the section lines that bisect or
intersect the listed roads.
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
A
T ,'k�, , shall be in effect for a period of twenty -five (25) years.
J .'wHA •QE,' %�
O:
Dana BjownM bVJI,'7
Clerk oT4 e•eo*n%l
1t111111111"IM
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
`� curie Caskey -Sch eiber
Council Chair
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for thq petitioner, Hilltop Water Owners Association:
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Page: 1 of 15
10/19/2005 9 %42 AM
FRAN $46.00
Whateom County, WA
Request of= WHATCOM COUNTY COUNCIL
RETURN DOCUMENT TO:
MARINA ENGELS
WHATCOM COUNTY
COUNCIL OFFICE
DOCUMENT TITLE:
ORDINANCE 2005 -071 GRANTING A NON - EXCLUSIVE FRANCHISE TO
HILLTOP WATER OWNERS ASSOCIATION FOR A PERIOD OF 25 YEARS
PURSUANT TO STATE LAW AND SECTION 9.30 OF THE WHATCOM COUNTY
HOME RULE CHARTER, AND TO OPERATE AND MAINTAIN WATER LINES AND
FACILITIES ALONG CERTAIN ROADS AND HIGHWAYS WITHIN THE
UNINCORPORATED AREAS OF WHATCOM COUNTY
REFERENCE NUMBER(S) OF DOCUMENTS ASSIGNED OR RELEASED:
ORDINANCE NUMBER 2005 -071
GRANTOR(S):
Whatcom County
GRANTEE(S):
HILLTOP WATER OWNERS ASSOCIATION
ABBREVIATED LEGAL DESCRIPTION (Lot, block, plat, or section, township, range)
None
Additional legal description can be found on page of document.
ASSESSOR'S PARCEL NUMBER:
None