HomeMy WebLinkAboutord2014-087WHATCOM COUNTY COUNCIL AGENDA BILL NO.
2014 -180
CLEARANCES
Initial
Date
Date Received in Council Office
Agenda Date
Assigned to:
Originator:
AH
_ ZZ
Q�
O I.
APR 29 2014
5 -6 -14
rails
Division Head:
6/3/14
Introduction
yfOVIAD1
7/8/14
Hearing
Dept. Head:
WHATCOM COUNTY
O
L2/9/2m14
Council
Prosecutor.'
COUNCIL
Purchasing/Budget:
AA
Executive.' 1.
TITLE OF DOCU NT: Granting Public Utility District No. I 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 water
services.
ATTACHMENTS. 1. Cover Memo
2. Ordinance
SEPA review required? ( ) Yes (X) NO
Should Clerk schedule a hearing ? ( X ) Yes ( ) NO
SEPA review completed? ( ) Yes ( ) NO
Requested Date:
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 36.55.040, Whatcom County Charter Section 9.30, and Whatcom County Code 12.24 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 and presence in County Rights -of -Way to allow for the provision of water
services.
COMMITTEE ACTION.•
COUNCIL ACTION.
5/1/14: This ordinance was withdrawn from
introduction on 5/6 at the request
of the attorney for the PUD. To be
rescheduled at a later date.
6/3/2014: Introduced 7 -0 -
7/8/2014: Held in Council pending additional
information from PUD #1
12/9/2014: Adopted 6 -1, Brenner opposed, Ord. 2014 -087
1/7/2015: Franchise process completed
Related County Contract #:
Related File Numbers:
Ordinance or Resolution
Number: Ord- 2014 -087
Please Note: Once adopted and signed, ordinances and resolutions are available for viewing and printing
on the County's website at. www.co.whatcom.waus/council.
2150100556
Page: 1 of 17
1/07/2015 3:46 PM
FRAN $86.00
Whatcom COUntg, WA
Request of: WHATCOM COUNTY COUNCIL
RETURN DOCUMENT TO:
MARINA ENGELS
WHATCOM COUNTY
COUNCIL OFFICE
DOCUMENT TITLE(S): FRANCHISE
Ordinance No. 2014 -087 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 water
services
REFERENCE NUMBER(S) OF DOCUMENTS ASSIGNED OR RELEASED:
Ordinance Number. 2014 -087
Additional reference numbers found on page of document.
GRANTOR(S):
Whatcom County
Additional grantors found on page of document.
GRANTEE(S):
Public Utility District No. 1 of Whatcom County
Additional grantees found on page of document.
ABBREVIATED LEGAL DESCRIPTION (Lot, block, plat, or section, township, range)
All roads and public ways and county property in Whatcom County, Washington.
Additional legal description can be found on page 2, Section 1.1.3 of document.
ASSESSOR'S PARCEL NUMBER:
None - roads
SPONSORED BY: Consent
PROPOSED BY: Executive
INTRODUCTION DATE: 6/3/2014
ORDINANCE NO. 2014 -087
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 WATER 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 water transmission
and distribution facilities 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 9th day of December , 2014, and notice of this hearing having been duly published on the
21st day of June , 2014, and the 28th day of June , 2014, in the Bellingham Herald, a
daily newspaper published in Whatcom County having 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; and
WHEREAS, Whatcom County and PUD #1 intend that the previous franchises granted to
Whatcom PUD that pertain to water lines for the provision of water services shall be terminated
and be replaced by this Franchise;
NOW, THEREFORE, BE IT ORDAINED by the Whatcom County Council that the
language set forth hereinbelow, Sections 1 through 20, shall constitute the franchise agreement
between Whatcom County and Whatcom PUD, which shall be and become effective as set forth
in Section 13 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, apolitical 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 water transmission and
distribution systems, including but not limited to tanks, meters, pipes, mains, services, valves,
manholes, pressure reducing valves ( "PRVs "), pump stations, 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.2014 -087, which 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 water for agricultural, municipal, domestic, commercial, industrial and any other lawful
purpose for which water 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 As to new Facilities, 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. Prior to the installation of new
Page 2
Facilities within the Franchise Area, Whatcom PUD may request that the County determine
whether the proposed placement of the Facilities will unreasonably interfere with the free and
safe passage of traffic, and the County shall make such determination in writing within a
reasonable period of time. If the proposed location is not approved by the County Engineer, the
County Engineer shall advise in writing what reasonable modifications to the proposed location
of the Facilities are necessary for the County Engineer to issue a determination that the
proposed location of the Facilities will not unreasonably interfere with the free and safe passage
of traffic.
If Whatcom PUD proceeds to install new Facilities without first obtaining the County
Engineer's determination that the proposed location of the Facilities will then unreasonably
interfere with the free and safe passage of traffic then, 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.
4.2 Except as provided in Section 6 below, Whatcom PUD's existing Facilities shall be
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. Except as provided
in Section 6 below, 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.
Page 3
4.4 The locating, laying, construction, operation and maintenance of Whatcom PUD'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 PUD'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 County of its duty to
provide Whatcom PUD the otherwise- required advance notice of proposed work. The County
acknowledges that the Facilities may include high pressure water 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 Facilities shall be installed. The standards
shall be consistent with reasonable standards and standard engineering practices in the
applicable industries.
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
Page 4
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 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 the County
Engineer 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,the County having first provided notice of such
condition to Whatcom PUD and a reasonable time to cure such unsafe condition, provided
however, in the event of damage to the Franchise Area caused by Whatcom PUD that
necessitates immediate repair by the County or its agents on an emergency basis where notice
to Whatcom PUD or providing an opportunity to cure is not feasible considering nature of the
emergency and necessary repair, as determined by the County Engineer using professional
engineering standards, no such notice and reasonable time to cure shall be required as a
condition of repayment by the PUD.
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
Page 5
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 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 for improvement to the County facilities in the Franchise Area, provided that the
elevations required by the County are not in violation of local, state or federal law and are
reasonable 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.
6.1.1 Notwithstanding the foregoing, except where no other reasonable
engineering alternative exists, the County shall not require Whatcom PUD to relocate or adjust
the elevations of any water lines measuring twelve inches (12 ") or larger in diameter located in
the following areas with pressure of at least 100 psi (referred to herein as the "High Pressure
Water Lines ") (copies of the as -built drawings were provided by Whatcom PUD to the County on
May 29, 2013 and August 22, 2013 with said copies to be retained in the Whatcom County
Public Works Engineering Services Records Vault):
A. Along, under or within the Douglas Road right of way
B. Along, under or within the Aldergrove Road Right of Way
C. Along, under or within the Rainbow Road Right of Way.
D. Along, under, or within the Lake Terrell Road Right of Way
E. Along, under, or within the Trigg Road Right of Way
6.1.2 In the event the County constructs or extends any roadway over any High
Pressure Water Lines, the County does so at its own risk and expense. Pursuant to the terms
and conditions set forth in Section 7, below and to the extent permitted by law, and to the extent
consistent with all reasonable standard professional engineering and construction practices
Page 6
and /or requirements when conducting or permitting any work in, around or near such Facilities
the County shall defend, indemnify and hold Whatcom PUD harmless from any and all claims
arising out of or resulting from the County's or its employees, agents and /or contractor's
negligent acts or omissions that proximately cause damage to or interruption to the operation of
the High Pressure Water Lines..
6.1.3 The County may, at its sole cost and risk, and with Whatcom PUD's prior
written consent, which consent shall not be unreasonably conditioned nor withheld, relocate or
adjust the elevations of the High Pressure Water Lines, provided that service to Whatcom PUD's
customers is not interrupted.
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 Sections 6.1 and 6.2 above, and in Section 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 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
Page 7
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 unless such Facility is otherwise exempt from relocation
pursuant to Section 6.1.1 through 6.1.3.
6.4.2 Unless the relevant Facility is exempt from relocation pursuant to Section
6.1.1 through 6.1.3, 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.
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 attorney's 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
Page 8
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 19 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
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. Nothing herein shall limit or prevent Whatcom PUD from exercising its powers of
eminent domain. Should Whatcom PUD notify the County of its intent to consider exercising its
power of eminent domain to obtain an easement for the Facilities located within the area of the
Franchise to be terminated, the termination of the Franchise shall be tolled for a period of no
less than one hundred and twenty (120) days from the date of notice.
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 9
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 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. Locating Facilities.
11.1 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 12. Nonexclusive Franchise.
12.1 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 13. Franchise Term; Effect on Existing Franchises for Same Purpose.
13.1 This Franchise is and shall remain in full force and effect for a 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.
13.1.1 No franchise hereunder shall become effective for any purpose unless and
Page 10
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 this ordinance, and in
such franchise; and
13.1.2 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.
13.2 The existing franchises between the Parties pertaining to the same subject matter,
i.e., PUD #1's water lines, which were granted by the County and accepted by PUD #1 on June
17, 1965, and January 29, 1970, shall be superseded and replaced by this franchise upon the
effective date of this franchise as provided above.
Section 14. Assignment.
14.1 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 Whatcom PUD 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.
14.2 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 15. Amendment.
15.1 Except as addressed in and through Section 15.3 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:
15.1.1 References this Franchise; and
15.1.2 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
Page 11
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.
15.2 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:
15.2.1 Affords either party the opportunity to negotiate in good faith a term or
condition of this Franchise which term or condition would not have, prior to such change, been
consistent with federal or state law; or
15.2.2 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.
15.3 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 16. Miscellaneous
16.1 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.
16.2 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.
16.3 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
Page 12
registered or certified mail, return receipt requested, postage prepaid to:
For County: County Executive
Whatcom County Courthouse
311 Grand Ave.
Bellingham, WA 98225
For Whatcom PUD: General Manager
PUD # 1 of Whatcom County
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.
16.4 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 other then existing or subsequent breach thereof.
Section 17. Incorporation and Annexation.
17.1 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 18. Insurance.
18.1 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 19. Forfeiture and Termination of Franchise.
19.1 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
Page 13
Whatcom PUD's forfeiture of all rights hereunder and to declare this Franchise 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 20. Effective Date.
20.1 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 13.1, 13.1.1, and 13.1.2, having been: (i) introduced to the County Council not less than
thirteen (13) days before its passage; (ii) 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; (iii) 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 (iv) passed at a regular meeting of the legislative body of the County of Whatcom by a vote
of at least Six members of the County Council on December 9th
2014.
ADOPTED this 9th day of December 2014
,�••`' r Q 0 iv
CI'f,,
ATTCS • °A 0 p X� �''•.
41— FD
Dank_. Brown, �vM `� rWof t4� Council
APPROV�b1ASsT,A,F06M:
h'i
Chief Civil Deputy Prosecutor
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Carl eimer, Council Chair
A pproved Denied
Jack LOLIVIS, County Exe Wtive
Page 14
Exhibit A
To Ordinance 2014 -087
ACCEPTANCE OF FRANCHISE
Public Utility District No. 1 of Whatcom County
The Whatcom County Council at its meeting of December 9, 2014, adopted
Ordinance 2014 -087 approving the application for franchise filed by Public Utility
District No. 1 of Whatcom County. The petition and all related documents are
available for review in the Council Office as file number A132014 -180.
Public Utility District No. 1 of Whatcom County hereby accepts, subject to all the
conditions contained in Ordinance 2014 -087, 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 water for agricultural, municipal, domestic, commercial, industrial and any
other lawful purpose for which water may be used.
"Facilities" means, collectively, any and all water transmission and distribution
systems, including but not limited to tanks, meter, pipes, mains, services, valves,
manholes, pressure reducing valves ( "PRVs "), pump stations, 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.
"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 franchise, when granted, shall be in effect for a period of twenty -five (25)
years.
%�` i 11 fC �0 �r Jrf
ATTEST., J�. �a x A
Dana Brown_ -D,
Clerk of the Corr. •'
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Carl Weimer ^
Council Chair
Agent for the petitioner, Public Utility District No. 1 of Whatcom County:
State of Washington )
ss.
County of Whatcom )
Signed and sworn to before me o \'
(Agent for petitioner)
Date:
f 2014, by
°�.�4,0 TA,Q� M:
Z
•
.o800
+ +Ru'1n and fq9the state of Was ington,
siding at
My notary commission expires /--15 - 2U"/,5
Effective Date of this franchise 1' 7 - /S