HomeMy WebLinkAboutord1988-0271
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INTRODUCED BY: Consent
PROPOSED BY: Public Works Dept.
DATE INTRODUCED: March 17, 1988
ORDINANCE NO. 88 -27
AN ORDINANCE IN THE MATTER OF GRANTING A NON-
EXCLUSIVE FRANCHISE TO THE CITY OF FERNDALE
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 A FORCE
MAIN SEWER LINE 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 cor-
porations to use that right -of -way of County roads in their respective counties
for the construction and maintenance of water works, gas pipes, telephones,
telegraph and electrical light lines, sewers and other such facilities and
including cable television wires and other cable television facilities; and
WHEREAS, The City of Ferndale has applied for a 25 -year nonexclusive
franchise for installation, operation, maintenance, and repair of a force main
sewer line in and along certain roads in Whatcom County, Washington, and notice
of this hearing having been duly published on the 30th and 6th days of
March & April-, 1988, in the Westside Record - Journal, 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
WHEREAS, The City of Ferndale 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:
ORDINANCE - 1.
Date drafted: 2/18/88
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Section 1. Franchise Granted
(a) A non - exclusive franchise for the City of Ferndale, located 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 a force main sewer line in,
along and across county roads or por tions thereof as named herein.
(b) The rights and privileges granted herein shall apply to all roads
and public ways listed as follows:
From the intersection of Northwest and East Smith roads to the
intersection of Barrett and Smith roads, and from the intersection of Northwest
and East Smith roads southerly along Northwest Road approximately 975 feet more
or less.
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 that
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 have the right and
authority to enter upon the above - mentioned county roads, riyhts -of -way and
other county property as designated hereinbefore, for the purposes of
constructing, operating, maintaining and repairing a force main sewer line and
facilities and operating and maintaining such line and facilities.
ORDINANCE - 2.
Date drafted: 2/18/88
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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 force main sewer 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 force main sewer 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 all 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 defi-
nite location."
(b) The force main sewer 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 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 exca-
vation, construction, installation, backfill, erection of temporary structures,
erection of permanent structures, traffic control, traffic turn -outs and road
obstruction, etc. No such construction shall be commenced without the Grantee
first securing a written permit from the Director of Public Works, including
approval endorsed on one set of plans and specifications returned to the
Grantee. All such work shall be subject to the approval of and shall pass the
inspection of the Director of Public Works. The Grantee shall pay all actual
and necessary costs of and expenses incurred in the examination, inspection and
approval of such work on account of granting said permits.
ORDINANCE - 3.
Date drafted: 2/18/88
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Section 6. Construction on Roadways /Other County Property.
(a) In any work which requires breaking of soil of the county roads,
rights -of -way or other county property subject to this franchise for the purpose
of laying, relaying, connecting, disconnecting and repairing the said
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 com-
menced.
(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, 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.
(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.
(a) All construction or installation of such force main sewer lines,
service, repair or relocation of same, performed above, along or within the
ORDINANCE - 4.
Date drafted: 2/18/88
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county rights -of -way or other county property subject to this franchise shall b
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done in such a manner as not to interfere with the construction and maintenance
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of other utilities' lines, public or private, drains, drainage ditches and
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structures, irrigation ditches and structures located therein, nor with the
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grading or improvement of such county roads, rights -of -way or other county pro -
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perty.
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(b) The owners of all utilities, public or private, installed prior in
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time to the line and facilities of the Grantee shall have preference as to the
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positioning and location of such utilities so installed with respect to the
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Grantee. Such preference shall continue in the event of the necessity of relo-
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cating or changing the grade of any such county road or right -of -way.
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Section 8. Construction - Public Safety and Inconvenience.
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All work done under this franchise shall be done in a thorough and
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workmanlike manner. In the laying of transmission lines and the construction o
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rights -of -way or other county property, the Grantee shall leave such trenches,
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ditches and tunnels in such a way as to interfere as little as possible with
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public travel and shall take all due and necessary precautions to guard the
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same, so that damage or injury shall not occur or arise by reason of such work;
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and where any of such trenches, ditches, or tunnels are left open at night, the
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Grantee shall place warning lights and barricades at such a position as to give
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adequate warning of such work. The Grantee shall be liable for any injury to
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person or persons or damage to property sustained through its carelessness or
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neglect, or through any failure or neglect to properly guard or give warning of
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any trenches, ditches or tunnels dug or maintained by the Grantee.
24 ! Section 9. County Rights Reserved.
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The County of Whatcom in granting this franchise, does not waive any
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rights which it has now or may hereafter acquire with respect to county roads,
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rights -of -way or other county property and this franchise shall not be construe,
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to deprive the County of any powers, rights or privileges which it now has or
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may hereafter acquire to regulate the use of and to control the county roads,
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rights -of -way or other County property covered by this franchise. This
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franchise shall be subject to the power of eminent domain, and in any proceedini
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under eminent domain, the franchise itself shall have no value.
ORDINANCE - 5
Date drafted: 2/18/88
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Section 10. Relocation of Lines and Facilities.
(a) If at any time the County of Whatcom shall improve or change any
county road, right -of -way or other county property subject to this franchise by
grading or regrading, planking or paving the same, changing the grade, altering,
changing, repairing or relocating the same or by constructing drainage facili-
ties, or in the event that such county road, right -of -way or other county pro-
perty 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 wise be held liable for any 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 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) Before any work is performed under this franchise which may affect
any existing monuments or markers of any nature relating to subdivisions, plats,
roads and all other surveys, the Grantee shall reference all such monuments and
ORDINANCE - 6.
Date drafted: 2/18/88
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markers. The reference points shall be so located that they will not be
disturbed during the Grantee's operations under this franchise. The method of
referencing these monuments or other points to be referenced shall be approved
by the Director of Public Works. The replacement of all such monuments or other
points to be referenced shall be approved by the Director of Public Works. The
replacement of all such monuments or markers disturbed during construction shall
be made as expeditiously as conditions permit, and as directed by the Director
of Public Works. The cost of monuments or other markers lost, destroyed or
disturbed, and the expense of replacement by approved monuments shall be borne
by the Grantee.
(b) A complete set of reference notes for monuments and other ties
shall be filed with the Whatcom County Director of Public Works.
Section 13. Vacations.
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 pro-
perty 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 giviny
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.
(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 offi-
cials 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, omissions or default on the part of the Grantee, his sub-
contractors and /or employees which may occur by reason of construction, opera -
ORDINANCE - 7.
Date drafted: 2/18/88
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tion 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 facili-
ities 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.
C,.., +:.... tC AI.... C.. 1.., 4. C......L. inn
This franchise shall not be deemed to be an exclusive franchise. It
shall in no manner prohibit the County of Whatcom from granting other franchises
of a like nature or franchises for other public or private utilities under,
along, across, over and upon any of the county roads, rights -of -way, or other
County property subject to franchise, and shall in no wise 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 is
jurisdiction over them with full power to make all necessary changes, reloca-
tions, 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 men-
tioned wherever the Grantee is mentioned herein.
ORDINANCE - 8.
Date drafted: 2/18/88
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Section 17. Transferability.
Neither this franchise nor any interest therein shall be sold, trans-
ferred 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 pro-
perty 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 regula-
tion.
Section 20. Reservation of Home Rule Charter Rights.
This franchise is subject to the provisions of the Home Rule Charter
for Whatcom County and, in particular, Section 9.30 thereof which provides as
follows: All franchises granted by the County Council shall be for a fixed term
not to exceed twenty -five (25) years and no exclusive franchise shall be granted
for the use of any street, road, or public place. All franchises shall be sub-
ject 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
ORDINANCE - 9.
Date drafted: 2/18/88
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modify the franchise in the interest of the public; and every ordinance granting
a franchise shall contain a reservation of these rights. In any proceeding
under eminent domain the franchise itself shall have no value.
Section 21. Compliance with Laws and Regulations.
This franchise is subject to, and the Grantee shall comply with all
applicable Federal, State, County or municipal laws, regulations and policies
affecting performance under this franchise.
(a) Upon acceptance of such franchise, the Grantee shall file with the
Whatcom County Council proof that the required adequate security, for property
damage coverage and public liability coverage to protect the County against
damages or costs as set forth in Section 14 above, has been added to their
insurance policies for existing franchises they have presently in effect with
Whatcom County.
(b) The County reserves the right to have its legislative body review
the dollar amount of said insurance policy and adjust the amount of coverage as
deemed appropriate upon an annual basis.
Section 23. License, Tax and Other Charges.
No privileges or rights granted hereunder shall exempt Grantee from any
future uniform rent, license, tax charge or impost which may hereafter be
required by the Grantor, for revenue or as reimbursement for use and occupancy
of public ways, and failure to timely remit any sums properly due thereby, shall
be cause for forfeiture of.rights hereunder.
Section 24. Severability.
If any portion of the ordinance is deemed invalid the remainder will
remain in effect.
The section titles used herein are for reference only and should not be
used for the purpose of interpreting this ordinance.
ORDINANCE - 10
Date drafted: 2/18/88
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APPROVED this 21st
ATTEST:
Carol Ebergson
Clerk of the Council
APPROVED AS TO FORM:
day of April
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Kanaaii J. S, unrer civii
Deputy Pros ting Attorney
Published on March 30, 1988
This ordinance becomes effective on
ORDINANCE - 11.
Date drafted: 2/18/88
William P. Roehl
Chairperson
( APPROVED ( ) VETOED
L
SHIRLEY VAN ZANTEN
County Executive
Date: April 22, 1988
and April 6 and 27, 1988
2. 1988
1988
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APPENDIX "A"
IN THE MATTER OF FRANCHISE )
CITY OF FERNDALE )
ACCEPTANCE OF FRANCHISE
CITY OF FERNDALE hereby accepts, subject to all the conditions therein
contained, that certain Franchise for installation, operation, maintenance, and
repair of a force main sewer line from the intersection of Northwest and East
Smith roads to the intersection of Barrett and Smith roads, and from the inter-
section of Northwest and East Smith roads southerly along Northwest Road
approximately 975 feet more or less, in Whatcom County, Washington.
FRANCHISE granted on the day of 19 ,
is for a period of twenty -five (25 years.
ORDINANCE - 12.
Date drafted: 2/18/88
CITY OF FERNDALE
By:
Ronald S. Peterson
City Manager