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HomeMy WebLinkAboutord1984-074I FA 3 4 5 6 7 8 91 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 INTRODUCED BY ('nncant PROPOSED BY Public Works Department DATE June 21, 1984 ORDINANCE NO. 84 -74 AN ORDINANCE IN THE MATTER OF GRANTING A NON- EXCLUSIVE FRANCHISE TO SANDY POINT IMPROVEMENT COMPANY FOR A PERIOD OF 25 YEARS PURSUANT TO STATE LAW, 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 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 faci- lities and including cable television wires and other cable television facilities; and WHEREAS, Sandy Point Improvement Company has applied for a 25 -year non - exclusive 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 the 18th and 25th days of July , 1984, 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, Sandy Point Improvement Company 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 Sandy Point Improvement Company ORDINANCE - 1. V v I located in the county of Whatcom, its successors and assignees, referred to as 2 the grantee, is hereby granted for a period of 25 years, the non - exclusive 3 rights and privilege to construct, erect, operate, maintain, and repair 4 water mains and water distribution lines in, along and across county roads or. 5 portions thereof as named herein. 6 (b) The rights and privileges granted herein shall apply to all 7 roads and public ways listed as follows: 8 ROADS WITHIN SERVICE AREA 9 Section 3, Township 38 North, Range 1 East Lake Terrel Road south of Slater Road 10 Galliono Drive Guemes Way 11 Waldron Drive Waldron Place 12 Shaw Court Red River Road /Lake Terrel Road east 1/3 mile 13 Section 4, Township 38 North, Range 1 East 14 Sandy Point Heights Orcas Way 15 Lopez Drive Saanich Avenue 16 Pender Drive Decatur Drive 17 Prevost Way Cyprus Way 18 Sinclair Drive Moresby Way 19 Neptune Heights 20 Beach Lane Cobble Way 21 Neptune Circle Germaine Road 22 Sections 8 and 9, Township 38 North, Range 1 East 23 Sandy Point Shores Sucia Drive /Germaine Road south 24 Thetis Road Salt Spring Drive 25 Stuart Circle Mayne Lane 26 Patos Drive Puffin Road 27 Matia Drive 28 Section 2. Acceptance of Franchise. 29 (a) No franchise hereunder shall become effective for any purpose 30 unless and until written acceptance therefore shall have been filed with the 31 Whatcom County Council and County Director of Public Works and such written 32 acceptance shall be in form and substance as shall be prescribed and approved ORDINANCE - 2. �n� 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 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, 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 remo- val and replacement thereof in the public interest. 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 spe- cifications 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 definite location." ORDINANCE - 3 l�U� 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 (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 writing by the Director of Public Works pursuant to application by Grantee. The plans and specifications shall specify the class and type of material and equipment to be used, manner of excavation, construction, installation, backfill, erection of temporary structures, erection of .permanent structures, traffic control, traffic turn- outs and road obstruction, etc. No such construction shall be commenced without the Grantee first securing a written permit from the Director of Public Works, including approval endorsed on one set of plans and specifica- tions 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 exa- mination, inspection and approval of such work on account of granting said permits. Section 6. Construction on Roadways /Other County Propert (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 pur- pose 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 facili- ties 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 con- venient 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 ORDINANCE - 4 V� 1 2 3 4 5 6 7 8' 91 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 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 con- tained 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 con- dition 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 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 ORDINANCE - 5. J J 1 2 3 4 5 6 7 8 9 10 11 12 13 w 14 15 16 17 18 19 20 21 22 23 i 24 25 26 27 28 29 30 31 32 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 pro- perly guard or give warning of any trenches, ditches or tunnels dug or main- tained by the Grantee. Section 9. County Rights Reserved. The County of Whatcom in granting this franchise, does not waive any rights which it has now or may hereafter acquire with respect to county roads, rights -of -way or other county property and this franchise shall not be construed to deprive the County of any powers, rights or privileges which it now has or may hereafter acquire to regulate the use of and to control the county roads, rights -of -way or other County property covered by this franchise. This franchise shall be subject to the power of eminent domain, and in any proceeding under eminent domain, the franchise itself shall have no value. Section 10. Relocation of Lines and Facilities. (a) If 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 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, imme- diately 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 ORDINANCE - 6. l� 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 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 sub- divisions, 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 con- ditions 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. ORDINANCE - 7 i 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Ka 22 23 24 25 26 27 28 29 30 31 32 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 govern- mental capacity, then the Council of Whatcom County may at its option and by giving thirty (30) days written notice to the Grantee, terminate this frnchise 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 officials or members or employees thereof, against and from any loss, damage, costs, chrges, 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 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 deter- mined, 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, ORDINANCE - 8. V I operation and maintenance of the Grantee's transmission system which may be 2 enforced against the property for the full amount of any such judgment so 3 taken against Whatcom County. 4 (b) Acceptance by the County of any work performed by the Grantee at 5 the time of completion shall not be grounds for avoidance of this covenant. 6 Section 15. Non - Exclusive Franchise. 7 This franchise shall not be deemed to be an exclusive franchise. It 8 shall in no manner prohibit the County of Whatcom from granting other franchi- 9 ses of a like nature or franchises for other public or private utilities 10 under, along, across, over and upon any of the county roads, rights -of -way, or 11 other County property subject to franchise, and shall in no wise prevent or 12 prohibit the County of Whatcom from construction, altering, maintaining, using 13 or vacating any of said roads, rights -of -way, drainage structures or facili- 14 ties, irrigation structure or facilities, or any other County property or 15 affect is jurisdiction over them with full power to make all necessary 16 changes, relocations, repairs, maintenance as the County may deem fit. 17 Section 16. Successors and Assignees. 18 All the provisions, conditions, regulations and requirements herein 19 contained shall be binding upon the successors and assignees of the Grantee, 20 and all privileges, as well as all obligations and liabilities of the Grantee 21 shall inure to its successors and assignees equally as if they were specifi- 22 cally mentioned wherever the Grantee is mentioned herein. 23 Section 17. Transferability. 24 Neither this franchise nor any interest therein shall be sold, 25 transferred or assigned without the previous consent in writing of the Council 26 of Whatcom County, such consent not to be unreasonably withheld. 27 Section 18. Incorporation. 28 Whenever any of the county roads, rights -of -way or other county pro - 29 perty as designated in this franchise, by reason of the subsequent incor- 30 poration of any town or city, or extension of the limits of any town or city 31 shall fall within the city or town limits this franchise shall continue in 32 force and affect as to all county roads, rights -of -way or other county pro- perty not so included in city or town limits. ORDINANCE - 9 r� I w 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 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 provi- sions of this franchise, then the said Grantee shall forfeit all rights con- ferred 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 spe- cifically 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 faci- lities are not operated or maintained in accordance with such statute, order or regulation. Section 20. Reservation of Home Rule Charter Rights. This franchise is subject to the provisions of the Home Rule Charter for Whatcom County and, in particular, Section 9.30 thereof which provides as follows: All franchises granted by the County Council shall be for a fixed term not to exceed twenty -five (25) years and no exclusive 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 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. Cn,+inn 99 Tncuv nnno (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 ORDINANCE - 10. L� 1 PA 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 policy or other adequate surety agreement in the amount of THREE HUNDRED THOUSAND DOLLARS ($3002000.00) for the property damage coverage, and ONE HUNDRED THOUSAND DOLLARS ($1002000.00) 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 seperately from the principal and surety, any such damages or costs suffered or incurred by the County, including attorneys' fees and costs of any action, or proceedings, and including the full amount of any compensation, indemnification, cost of remo- val of any property or other costs which may be incurred up to the full prin- cipal 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`fUl'l any and all obligations to the County and any user which arise out of or pertain to said franchise. Neither the provisions of this section, nor any insurance policy accepted by the County pursuant hereto, nor any damages recovered by the County thereunder, shall be construed to excuse faithful performance by the Grantee, or limit the liability of the Grantee under any franchise issued pursuant to this ordinance. (b) The County reserves the right to have its legislative body review the dollar amount of said insurance policy and adjust the amount of coverage as deemed appropriate upon an annual basis. Section 23. License, Tax and Other Charges. No privileges or rights granted hereunder shall exempt Grantee from any future uniform rent, license, tax charge or impost which may hereafter be required by the Grantor, for revenue or as reimbursement for use.and occupancy of public ways, and failure to timely remit any sums properly due thereby, shall be cause for forfeiture of rights hereunder. Section 24. Repealers. All prior existing franchises granted to Sandy Point Improvement Company are hereby terminated. Section 25. Severability. If any portion of the ordinance is deemed invalid the remainder will remain in effect. ORDINANCE - 11. _Y. .. 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 —31 32 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 2nd day of Auizust 19• WHATCOM COUNTY COUNCIL WH CO COUNTY, WASHI*TON CHAIRPERSON A ?TEST Clerk of 'the Council ( ✓ ) APPROVED ( ) VETOED U C� SHIRLEY VAN AN EN COUNTY EXECUTIVE APPROVED AS TO FORM: L August 8, 1984 Date Civil--Deputy Vrosecuting Attorney Published on July 18 & 25 and August 8, 1984 This Ordinance shall become effective on August 20, 1984 ORDINANCE - 12.