HomeMy WebLinkAboutord2003-001WHATCOM COUNTY COUNCIL AGENDA BILL NO. 2002 -418
CLEARANCES
Initial
Date
Date Received in Council Office
Agenda Date
Assigned tit:
Originator: Daniel L Gibson
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NOV LUUL
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11126/02
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Division Head:.
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Hearing
Deft Head: Jeffrey M. Mouser: RE
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Prosecutor Randall J. Wens
Parehasing /Budget:
aecutive.
SUBJECT: Ordinance granting franchise to Peace Arch Factory Outlet for already - existing water main along
short portion of Portal Way. . f°
to
. •LPSS'!2.
ATTACHMENTS: Memo to Executive and proposed ordinance granting franchise. 4
SEPA review required? ( ) Yes ( X ) NO
SEPA review completed? ( ) Yes ( ) NO
Should Clerk schedule a hearing 1 ( X ) Yes ( ) NO
Requested Date: Per provisions ofRCW 3&55.040
SUMMARYSTATEMENT:
A proposed ordinance granting a franchise to Peach Arch Factory
Outlet or an existin water line installed approximately 10 ears
.l g PP Y years
ago along Portal Way, a short distance north of its intersection with
Birch Bay- Lynden Road.
Distribution Request
Indicate those who should receive a copy after Council action.
speck names to the right.
ADS Facilities Management
ADS Finance
ADS Human Resources
ADSInft Services
Assessor
Auditor
Coapemave Extends"
District Court
Hrecutive
Health
Hearing Examiner
Jail
COUNCIL ACTION TAKEN:
2002 -418 11/2612002: Introduced
111412003: Adoptedtlopted ] -0, Ortl. #2003 -001
Related County Contract #:
Juvenile
Parks
P1 ^ ^ ^i ^8
Prosecutor
Public Works
Penny Harrison
she.07
Superior Court
Treasurer
other
Related File Numbers:
Ordinance or esol uo Number
(this it 1
INTRODUCED BY: CONSENT
PROPOSED BY: PUBLIC WORKS
DATE INTRODUCED: 11/26/2002
ORDINANCE NO. 2003 -001
AN ORDINANCE IN THE MATTER OF GRANTING A NON-
EXCLUSIVE FRANCHISE TO PEACE ARCH
FACTORY OUTLET FOR A PERIOD OF 25 YEARS
PURSUANT TO STATE LAW AND SECTION 9.30 OF THE
WHATCOM COUNTY HOME RULE CHARTER, TO OPERATE
AND MAINTAIN WATER MAINS AND WATER
DISTRIBUTION LINES ALONG CERTAIN ROADS 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. Chapter 36.55 and Section 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, Gateway Factory Outlet Center Limited Partnership, Peace Arch Factory
Outlet LLC, and/or the Testamentary Trust Of Raul Marquis (collectively "Peace Arch Factory
Outlet") has applied for a 25 -year nonexclusive franchise for installation, operation,
maintenance, and repair of water mains and water distribution lines in and along certain roads in
Whatcom County, Washington, and notice of this hearing having been duly published on
December 14, 2002, and January 4, 2003 in the Bellingham Herald, the official newspaper for
Whatcom County, and that it appearing to the County Council that notice of said hearing having
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
Page 1 of 12
WHEREAS, Peace Arch Factory Outlet has agreed to the addition of certain
administrative provisions to 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 Peace Arch Factory Outlet, doing business in the
county of Whatcom, its successors and assignees, referred to as the grantee, is hereby granted for
a period of 25 years, the non - exclusive rights and privilege to construct, erect, operate, maintain,
and repair water mains and water distribution lines 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 as follows:
Section 21, Township 40 North, Range 1 East, W.M.
Portal Way, commencing approximately 1100 feet south of the centerline of
Loomis Trail Road and continuing Southeasterly to the East Line of said Section
21
Section 22, Township 40 North, Range 1 East, W.M.
Portal Way, commencing at the West line of said Section 22, and continuing
Southeasterly to the intersection of Birch Bay Lynden Road
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
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
Page 2 of 12
(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 and repairing water mains and water distribution lines and facilities and
operating and maintaining such 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, and the County expressly reserves the right to
prescribe how and where water mains and water distribution lines shall be installed and may
from time to time, upon reasonable notice, require the removal and replacement thereof in the
public interest, at the expense of the franchise holder.
Section 5. Construction Application.
(a) Prior to commencement of construction of said water mains and water distribution
lines, 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 It such lines and facilities sought to be constructed, laid, installed or erected at that time,
showing their relative position to existing county roads, rights -of -way or other county property
upon plans drawn to scale, hereinafter collectively referred to as the "map of definite location."
(b) The water lines and appurtenant facilities shall be laid in exact conformity with said
map of definite location, except in instances in which deviation may be allowed thereafter in
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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 o f P ublic Works, including approval endorsed on one set of plans and specifications
returned to the Grantee. All such work shall b e s ubj ect t o t he a pproval o f and s hall p ass t he
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 Propert y.
(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 transmission 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 and
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.
Provided, that the Director of Public Works may require a performance bond in the 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.
Page 4 of 12
(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.
Section 7. Construction — Other Lines and Facilities.
(a) All construction or installation of such water lines or water distributing systems,
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 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 transmission lines and the construction of 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 where
any of such trenches, ditches, or tunnels are left open at night, the Grantee shall place warning
lights and barricades at such a position as to give adequate warning of such work. 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. County Rights Reserved.
Page 5 of 12
The County of Whatcom in granting this franchise, does not waive any rights which it
has now o r 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 at any time the County of Whatcom shall improve or c hange any c ounty r oad,
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 upon written notice from the Director of Public Works or the Director of
Highways, shall at its sole expense, immediately change the location or readjust the elevation of
its transmission lines and other 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 in no way b e h eld l iable for a ny damage to said
Grantee that may occur by reason of any of the County's improvements, changes or works above
enumerated.
(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 transmission 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
Page 6 of 12
contiguous to the said lines and facilities of the Grantee provided that the Grantee shall be given
forty -eight (48) 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) B efore a ny w ork i s p erformed u rider t his f ranchise w hich in ay a flect 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 bome 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.
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 and said vacation
shall be for the purpose of acquiring the fee of other property interest in said road, rights -of -way
or other county property for the use of Whatcom County, in either its proprietary or
governmental capacity, 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.
Section 14. Indemnification.
Page 7 of 12
(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 whatsoever kind or nature whether to persons or property, arising wholly or partially
out of any act, action, neglect, emissions or default on the part of the Grantee, his subcontractors
and/or employees which may occur by reason of construction, operation and maintenance of the
Grantee's said transmission 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 him 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 transmission lines and all other facilities used in its
construction, operation and maintenance of the Grantee's transmission 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.
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 franchisee 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 construction, 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
Page 8 of 12
necessary changes, relocations, repairs, 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 assignees 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 the previous 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
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 hereunder, 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, 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 statute, order or regulation.
Section 20. Reservation of Home Rule Charter Rights.
Page 9 of 12
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 s hall b e for a fixed t erm n of to e xceed twenty -five (25) yews and n o
exclusive franchise 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 the 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 i s s object t o, and t he Grantee s hall c omply w ith all applicable Federal,
State, County or municipal laws, regulations and policies affecting performance under this
franchise.
Section 22. Insurance.
(a) Upon acceptance of such franchise, the Grantee shall 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 the property damage coverage, and ONE MILLION
DOLLARS ($1,000,000.00) for public liability coverage, so as to protect the County against
damages or costs as set forth in Section 14 above, 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 o f a ny c ompensation, indemnification, c ost o f r emoval o f any p roperty o r o ther c osts
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.
Page 10 of 12
/AVK OV ( ) VETOED
COUNTY EXECUTW E
APPROVED AS TO FORM:
i�
Randall J. Watts, Chief Civil
Deputy Prosecuting Attorney
Published on December 14, 2002 and January 4, 2003
This ordinance shall become effective on
Page 12 of 12
(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 unifomt
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 to Peace Arch Factory Outlet shall be repealed,
and the terms of the franchise granted hereunder shall become effective at such time as an
acceptance off ranchise 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.
The section titles used herein are for reference only and should not be used for the
purpose of interpreting this ordinance.
PASSED this 14 day of January 92003
WHATCOM COUNTY COUNCIL
W TCOM COUN TY,'�!;N�A /SHIN �GTON
__. CHAIRPERSON
AT TE T, -- -, -� _
--
Clerk of the Council
Page 11 of 12