HomeMy WebLinkAboutord1988-0181
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DRAFT No. 2 INTRODUCED BY: CONSENT
PROPOSED BY: Public Works Dept.
DATE INTRODUCED: FEBRUARY 18, 19
ORDINANCE NO. 88 -18
AN ORDINANCE IN THE MATTER OF GRANTING A NON-
EXCLUSIVE FRANCHISE TO WHIDBEY TELEPHONE COMPANY
PURSUANT TO STATE LAW FOR A PERIOD OF TWENTY -
FIVE YEARS TO USE THE RIGHT -OF -WAY OF COUNTY
ROADS FOR THE CONSTRUCTION, OPERATION AND
MAINTENANCE OF TELEPHONE, TELEGRAPH AND OTHER
TELECOMMUNICATIONS FACILITIES
WHEREAS, RCW 80.36.040 confers upon telecommunications companies the
right to construct and maintain all necessary telecommunications lines for
public traffic along and upon any road, street or highway and to erect any other
necessary fixtures of their lines in such manner and at such points as not to
incommode the public use of such highway; and
WHEREAS, RCW Chapter 36.55 authorizes the County Council to grant non-
exclusive franchises for a period not exceeding fifty (50) years to private
corporations to use the right -of -way of county roads for the construction and
maintenance of waterworks, gas pipes, telephone, telegraph and electric light
lines, sewers and any other such facilities including telecommunication facili-
ties; and
WHEREAS, Section 9.30 of the Home Rule Charter for Whatcom County
authorizes the County Council to grant non - exclusive franchises for a fixed
term not to exceed twenty -five (25) years for the use of any street, road or
public place; and
WHEREAS, Whidbey Telephone Company has applied for a non - exclusive
twenty -five year franchise to lay, construct, erect, install, operate, maintain,
repair and /or replace telephone, telegraph and other telecommunications lines,
equipment, facilities and apparatus, and all necessary appurtenances thereto,
along, in, over, under and across certain public roads, streets, highways and
rights -of -way in Whatcom County, Washington; and
WHEREAS, it appearing and the County Council finding from the affidavit
of posting and affidavit of publication, both filed herein, that due and legal
notice of the time and place for hearing said petition has been given, including
publication of due and legal notice of this hearing having been duly published
ORDINANCE - 1.
Date drafted: 2/8/88
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on February 24, 1988 and March 2, 1988, in the Westside Record Journal, the
official newspaper for Whatcom County, and the County Council having fully con-
sidered the matter and finding that it is in the public interest to grant the
said Franchise;
NOW, THEREFORE, BE IT ORDAINED by the Council of Whatcom County,
Washington as follows:
Section 1. Franchise Granted.
Whidbey Telephone Company and its successors and assigns are
hereby granted a Franchise for a period of twenty -five (25) years from and after
the effective date of this ordinance, to lay, construct, erect, install,
operate, maintain, repair and /or replace telephone, telegraph and other tele-
communications lines, equipment, facilities and apparatus, and all necessary
appurtenances thereto, along, in, over, under and across all public roads,
streets, highways and rights -of -way now existing or hereafter established,
within Sections 1, 2, 3, 4, 9, 10, 11 and 12 of Township 40 North, Range 3 West,
W.M., and Sections 33, 34, 35 and 36 of Township 41 North, Range 3 West, W.M.,
Whatcom County, Washington.
Section 2. Entering Rights of Way.
The said Whidbey Telephone Company, its successors and assignees,
shall 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 purpose of exercising the rights conferred in Section 1 of this Franchise.
Section 3. 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 said tele-
communications lines and facilities, and making connections between the same and
structures and buildings of consumers or making connections to other facilities
of the Grantee now in existence or hereafter constructed, Grantee shall at its
own expense and with all convenient speed 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.
ORDINANCE - 2.
Date drafted: 2/8/88
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(b) All underground or buried, main distribution cables designed)
to provide service to multiple premises consumers and installed by Grantee upon,
along or under the aforesaid roads and rights -of -way shall be installed to a
depth of not less than thirty (30) inches below the surface grade of the soil
immediately following the completion of such installation; and all underground
or buried service drop wires connecting said main distribution cables with the
buildings or structures of consumers and installed by Grantee upon, along or
under the aforesaid roads and rights -of -way shall be installed to a depth of not
less than eighteen (18) inches below the surface grade of the soil immediately
following the completion of such installation.
(c) Prior to each installation of its facilities on County roads,
rights -of -way or other County property subject to this Franchise, the Grantee
shall, in compliance with Whatcom County Ordinance No. 79 -70 (an ordinance pro-
viding for the issuance of "Revocable Encroacment Permits" for work in County
roads and rights -of -way), submit to the Director of Public Works a drawing
showing the approximate location, nature and extent of the faciilties to be
installed, and shall, in accordance with said ordinance, pay all permit fees
required thereby as a condition precedent to issuance of a "Revocable
Encroachment Permit." The Whatcom County Department of Public Works shall not
unreasonably refuse to grant any such "Revocable Encroacment Permit" to Grantee,
and no approval required thereunder shall be unreasonably withheld.
Section 4. Construction - Other Lines and Facilities.
(a) All construction or installation of such lines and facili-
ties, service repair or relocation of same, performed over, above, along or
under the County roads, rights -of -way or other County property subject to this
Franchise shall be done in such a manner as not to interfere with the construc-
tion and maintenance of pre - existing, lawfully constructed lines, public or pri-
vate, and pre- existing, lawfully constructed drains, drainage ditches and struc-
tures, irrigation ditches and structures located therein, provided, however,
that the protection afforded by this subsection to pre- existing facilities shall
not apply to pre- existing facilities constructed pursuant to any Franchise
granted by Whatcom County or other governmental authority, where such Franchise
ORDINANCE - 3
date drafted: 2/8/88
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has been revoked, terminated, annulled, forfeited or cancelled or has expired
without immediate and uninterrupted renewal.
(b) The owners of all utilities, public or private, lawfully
installed upon County roads and /or rights -of -way prior in time to the lines and
facilities of the Grantee shall have preference as to the positioning and loca-
tion of such utilities so installed with respect to the Grantee, provided that
where such prior utilities have been installed pursuant to a Franchise granted
by Whatcom County or other governmental authority, said Franchise shall not have
been subsequently revoked, terminated, annulled, forfeited or cancelled and
shall not have expired without immediate and uninterrupted renewal. Such pre-
ference, if any, shall continue in the event of the necessity of relocating or
changing the grade of any such County road or right -of -way.
(c) The Grantee shall have preference as to the positioning and
location of its lines and facilities upon County roads and rights -of -way with
respect to the location of utilities, public or private, installed after the
initial installation of Grantee's said lines and facilities. 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 5. 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
other facilities and the opening of trenches, the tunneling under County roads,
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.
The facilities of the Grantee placed upon any County road pursuant
to this Franchise shall be removed at the expense of the Grantee, to some other
location on such County road in the event such road is to be constructed,
altered, or improved or becomes a primary state highway and such removal is
ORDINANCE - 4.
Date drafted: 2/8/88
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reasonably necessary for the construction, alteration, or improvement thereof;
provided, however, that nothing contained in this Section 6 shall be construed
to require Grantee to install or reinstall any of its facilities on any County
road or right -of -way.
Section 7. 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 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 wise 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 structures or
facilities, or any other County property or affect its jurisdiction over them
with full power to make all necessary changes, relocations, repairs, or main-
tenance thereof or thereto, as the County may deem fit.
Section 8. 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 herein conferred shall inure to its successors and assignees equally as
if they were specifically mentioned wherever the Grantee is mentioned herein.
Section 9. Incorporation.
Whenever any of the County roads, rights -of -way or other County
property as designated in this Franchise, by reason of the subsequent incor-
poration of any town or city, or extension of the limits of any town or city,
shall fall within the city or town limits, regardless of the effect thereof, if
any, this Franchise shall, at the very least, continue in force and effect as to
all County roads, rights -of -way and other County property not so included in
city or town limits and shall, to the maximum extent permitted by law, continue
in force and effect with respect to the said County roads, rights -of -way and
other County property falling within the said city or town limits.
ORDINANCE - 5.
Date drafted: 2/8/88
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Section 10. Severability.
If any portion of the ordinance is deemed invalid, the remainder
will remain in effect.
Section 11. Titles.
The section titles used herein are for reference only and should
not be used for the purpose of interpreting this ordinance.
Section 12. Force Majeure Clause.
The Grantee shall oot be deemed in default of any provisions of
this franchise or subjected to any penalties hereunder where performance or
compliance is prevented by Acts of God, civil emergencies, national disasters or
acts of third parties that are neither agents, employees, nor affiliates of the
Grantee which are beyond the Grantee's reasonable abilities to control.
Section 13. 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; provided,
however, that nothing herein shall be construed as requiring the consent of the
Whatcom County Council to the granting by Grantee of any mortgage or other
security interest in this Franchise.
Section 14. Responsibilities Under Law.
(a) The granting of these rights shall not be construed as
relieving the Grantee from the responsibilities imposed by law and the Grantee
shall observe and adhere to Whatcom County Code Chapter 12.24.
(b) Neither acceptance of this Franchise by Grantee, nor perfor-
mance of any activity by Grantee pursuant to this Franchise, nor acceptance by
Grantee of any benefit or privilege conferred by this Franchise, shall consti-
tute, or be construed as,
(1) a waiver by Grantee of any right, privilege or immunity
conferred upon Grantee by the Constitution or laws of the United States or by
the Constitution or laws of the State of Washington, or
(2) an acquiesence by Grantee in any provision of the
Whatcom County Charter, or in any ordinance of Whatcom County, or in the reser-
ORDINANCE - 6
Date drafted: 2/8/88
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vations of rights and powers - or the exercise thereof - set forth in subsec-
tion 17(b) of this Franchise, if, without such acquiesence, said provision,
ordinance, reservation, or exercise would violate any right, privilege or immu-
nity conferred upon Grantee by the Constitution or laws of the United States or
by the Constitution or laws of the State of Washington.
Section 15. Commencement.
The Grantee shall commence construction under this Franchise not
later than twelve (12) months after the effective date hereof, after first
securing such approvals and permits from the Whatcom County Engineer as may be
necessary. If the Grantee has not begun construction prior to expiration of
this period, then the Grantee shall forfeit all rights hereunder and this
Franchise may be revoked or annulled by the Whatcom County Council, provided,
that the Whatcom County Council shall give to the Grantee thirty (30) days
written notice of its intention to revoke or annul this Franchise during which
period the Grantee shall have the opportunity to remedy the situation.
Section 16. Acceptance of Franchise.
This Franchise shall become effective upon written acceptance and
filing with the County Council and County Director of Public Works in the form
set forth in Appendix A to this ordinance. Acceptance shall be filed by the
Grantee not later than the thirtieth day following the effective date of this
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 17. County Rights Reserved.
(a) 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 the 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 control of the
County roads, rights -of -way or other County property covered by this Franchise.
(b) This Franchise shall be subject to the power of eminent
domain and the right of the Council or the people acting for themselves through)
ORDINANCE - 7
Date drafted: 2/8/88
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the initiative or referendum to repeal, amend or modify this Franchise in the
interest of the public. In any proceeding under eminent domain, the Franchise
itself shall have no value.
Section 18. Indemnification.
The Grantee by acceptance of the privileges granted hereunder does
hereby agree and covenant to indemnify and save harmless Whatcom County, its
members, officials, agents and employees for any loss, damage, cost, charge,
expense, claim, demand, liability or judgment of whatever kind or nature.whether
to persons or property, which arises solely out of any act, neglect, omission or
default on the part of the Grantee, his subcontractors and the agents and
employees of either which may occur by reason of construction, operation and
maintenance of Grantee's transmission lines and facilities pursuant to this
Franchise. The agreement and covenant set forth in the immediately preceding
sentence of this section shall not apply where the act, neglect, omission or
default has occurred as a direct result of any request, requirement or demand by
Whatcom County or any of its officers, employees or agents.
Section 19. AUTHORITY.
Prior to beginning construction under this Franchise, the Grantee shall
have been designated by the Washington Utilities and Transportation Commission
to provide exchange telecommunications service within the geographic area
covered by this Franchise.
Section 20. TERMINATION BY GRANTEE
In the event that this Franchise were to be amended or modified by the
Whatcom County Council or by the people acting for themselves through the ini-
tiative or referendum, then the Grantee, without penalty or liability of any
nature whatsoever, may terminate this Franchise at any time by filing written
notice thereof with the Clerk of the Whatcom County Council and with the Whatcom
County Director of Public Works, which termination shall become effective upon
the expiration of thirty days after the filing thereof.
ORDINANCE - 8
Date Drafted: 2/8/88
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APPROVED this 17th
ATTEST:
arol Ebergson
Clerk of the Council
APPROVED AS TO FORM:
day of MARCH 1988
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
WILLIAM P. ROEHL
Chairperson
( ✓f APPROVED ( ) VETOED
" L
SHIRLEY VAN KANTENCJ
County Executive
Date: MARCH 18, 1988
David C. Cottingham,
Civil Deputy Prosecuting Attorney
Published on 2/24 & 3/2 and March 23, 1988
This ordinance becomes effective on March 28. 1988
ORDINANCE - 9
Date drafted 2/8/88
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APPENDIX "A"
IN THE MATTER OF FRANCHISE ) ACCEPTANCE OF FRANCHISE
WHIDBEY TELEPHONE COMPANY )
WHIDBEY TELEPHONE COMPANY hereby accepts, subject to all the conditions
therein contained, that certain Franchise to lay, construct, erect, install,
operate, maintain, repair and /or replace telephone, telegraph and other telecom-
munications lines, equipment, facilities and apparatus, and all necessary appur-
tenances thereto, along, in, over, under and across all public roads, streets,
highways and rights -of -way, now existing or hereafter established, within
Sections 1, 2, 3, 4, 9, 10, 11 and 12, Township 40 North, Range 3 West, W.M.,
and Sections 33, 34, 35 and 36 of Township 41 North, Range 3 West, W.M., Whatcom
County, Washington.
FRANCHISE granted on the day of 19 ,
is for a period of twenty -five (25 years.
ORDINANCE - 10.
Date drafted: 2/8/88
WHIDBEY TELEPHONE COMPANY
By:
DAVID C. HENNY
President