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DATE: March 17, 1983 INTRODUCED BY: Van Zanten
PROPOSED BY: Public Services Comm
ORDINANCE NO. 83 -35
AN ORDINANCE IN THE MATTER OF GRANTING A NON- EXCLUSIVE
FRANCHISE TO JOE LOUIE WATER ASSOCIATION, INC., 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
facilities and including cable television wires and other cable
television facilities; and
WHEREAS, Joe Louie Water Association has applied for a a 25
year non - exclusive franchise for installation, operation,
maintenance, and repair of water pipe lines, water mains, and
all necessary laterals and water distribution systems in and
along certain roads in Whatcom County, Washington, and notice
of this hearing having been duly published on the 9th and 14th
days of April, 1983, 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
ORDINANCE - 1
May 5, 1983
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WHEREAS, the Joe Louie Water Association 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 nonexclusive franchise for Joe Louie Water Association,
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 pipe lines, water mains,
and water distributing systems 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 6 Township 39 North Range 4 East
Mission Road
Sectin 7 Township 39 North Range 4 East
Mission Road
Central Road
Section 18 Township 39 North Range 4 East
Mission Road
Central Road
Section 13 Township 39 North Range 3 East
Mission Road
Central Road
Section 12 Township 39 North Range 3 East
Mission Road
Central Road
Pole Road
Section 1 Township 39 North Range 3 East
Mission Road
Pole 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
ORDINANCE - 2
May 5, 1983
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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 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 pipe lines, transmission lines,
laterals and water distributing systems connected therewith and
for repairing of such 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 lines and water
distributing systems shall be installed and may from time to
time, upon reasonable notice, require the removal and
replacement thereof in the public interest.
Section 5. Construction Application.
(a) Prior to commencement of construction of said water lines
ORDINANCE - 3
May 5, 1983
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I or distribution facilities, 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 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
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
a
control, traffic turnouts 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.
Section 6. Construction on Roadways /Other Countv Proaerty
(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,
ORDINANCE - 4
May 5, 1983
1 disconnecting and repairing the said transmission lines and
2 facilities, and making connections between the same to
3 structures and buildings of consumers or making connections to
4 other facilities of the Grantee now in existence or hereafter
5 constructed the Grantee shall be
governed by and conform to
6 the general rules adopted by the officers charged with the
7 supervision and care of such County roads, rights -of -way, and
8 other County property; and the Grantee at its own expense and
9 with all convenient speed shall complete the work for which the
10.. soil has been broken and forthwith replace the work and make
11 good the County road, rights -of -way or other County property
12 and leave the same in as
good condition as before the work was
13 commenced.
14 (b) Applications for permits referred to in Section 5 above
15 shall be accompanied by specifications for the restoration of
16 the County road, rights -of -way or other County property and to
17 the same condition as it was prior to such breaking, and such
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18 specifications must be approved by the Director of Public Works
19 before such breaking of the soil is commenced. Provided, that
20 the Director of Public Works may re a
y uire q performance bond in
21 the sum sufficient to guarantee that such County roads, rights -
22 of -way or other County property shall be restored to the same
23 condition as they were prior to the breaking of the soil. Said
24 bond shall be in addition to any other such requirements
25 contained herein.
26 (c) The Director of Public Works may at any time, order, or
27 have done any and all work that it considers necessary to
28 restore to a safe condition any such County road, rights -of -way
29 or other County property left by the Grantee or its agents in a
30 condition dangerous to life or property, and the Grantee upon
31 demand shall pay to the County all costs of such work.
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ORDINANCE - 5
May 5, 1983
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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
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
ORDINANCE - 6
May 5, 1983
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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.
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
a
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, 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
ORDINANCE - 7
May 5, 1983
1 liable for any damages to said Grantee that may occur by reason
2 of any of the County's improvements, changes or works above
3 enumerated.
4 (b) All work to be performed by the Grantee under this section
5 shall be under the direction and approval, and shall pass the
6 inspection of the Director of Public Works. The Grantee shall
7 pay all actual and necessary costs and expenses incurred in the
8 examination, inspection and approval of such work.
9 Section 11. County Road Work Permitted.
10 The laying, construction, operation and maintenance of the
11 Grantee's transmission lines and facilities authorized by this
12 Franchise shall not preclude the County of Whatcom, its agents
13 or its contractors from blasting, grading, excavating or doing
14 other necessary road work contiguous to the said lines and
15 facilities of the Grantee provided that the Grantee shall be
16 given forty -eight (48) hours notice of said blasting or other
17 work in order that the Grantee may protect its lines and
18 facilities.
19 Section 12. Monuments and Survey Markers.
20 (a) Before any work is performed under this Franchise which may
21 affect any existing monuments or markers of any nature relating
22 to subdivisions, plats, roads and all other surveys, the
23 Grantee shall reference all such monuments and markers. The
24 reference points shall be so located that they will not be
25 disturbed during the Grantee's operations under this
26 Franchise. The method of referencing these monuments or other
27 points to be referenced shall be approved by the Director of
28 Public Works. The replacement of all such monuments or or
29 other points to be referenced shall be approved by the Director
30 of Public Works. The replacement of all such monuments or
31 markers disturbed during construction shall be made as
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ORDINANCE - 8
May 5, 1983
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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 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, rights -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, charges, expenses, liability, claims, damands 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
ORDINANCE - 9
May 5, 1983
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11 sub - contractors and /or employees which may occur by reason of
11 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
I 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 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
ORDINANCE - 10
May 5, 1983
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said roads, rights -of -way, drainage structures or facilities,
irrigation structures or facilities, or any other County
property or affect is jurisdiction over them with full power to
make all necessary changes, relocations, repairs maintenance,
as the County may deem fit.
Section 16. Successors and Assignees.
All the provisins, 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 ensent not to be
unreasonably withheld.
a
Section 18. Incorporation.
Whenever any of the County roads, rights -of -ways 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 effect
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,
ORDINANCE - 11
May 5, 1983
1 and this Franchise may be revoked or annulled by the Council of
2 Whatcom County. In addition to any rights implied or set out
3 elsewhere in this ordinance, the Council reserves the right to
4 require the Grantee to specifically comply with the terms and
5 conditions of the franchise ordinance, and this franchise may
6 be terminated at any time if the grantee's lines and facilities
7 are not operated or maintained in accordance with such statute,
8 order or regulation.
9 Section 20. Reservation of Home Rule Charter Rights.
10 This franchise is subject to the provisions of the Home Rule
11 Charter for Whatcom County and, in particular, Section 9.30
12 thereof which provides as follows: All franchises granted by
13 the County Council shall be for a fixed term not to exceed
14 twenty -five (25) years and no exclusive franchise shall be
15 granted for the use of any street,'road, or public place. All
16 franchises shall be subject to the power of eminent domain and
17 the.right of the Council or the people acting for themselves
18 through the initiative or referendum to repeal, amend or modify
19 the franchise in the interest of the public; and every
20 ordinance granting a franchise shall contain a reservation of
21 these rights. In any proceeding under eminent domain the
22 franchise itself shall have no value.
23 Section 21. Compliance with Laws and Regulations.
24 This Franchise is subject to, and the Grantee shall comply with
25 all applicable Federal, State, County or municipal laws,
26 regulations and policies affecting performance under this
27 franchise.
28 Section 22. Insurance.
29 (a) Upon acceptance of such franchise, the Grantee shall file
30 with the Whatcom County Council, and shall thereafter, during
31 the entire term of such franchise, maintain in full force and
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ORDINANCE - 12
May 5, 1983
I effect, a corporate insurance policy or other adequate surety
2 agreement in the amount of THREE HUNDRED THOUSAND DOLLARS
3 ($300,000-00) for
property damage coverage, and ONE HUNDRED
4 THOUSAND DOLLARS ($100,000.00) for
public liability coverage,
5 so as to protect the County against damages or costs as set
6 forth in Section 14, above, and there shall be recoverable,
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jointly and seperatly from the principal and surety, any such
8 damages or costs suffered or incurred by the County, including
9 attorneys' fees and costs of any action, or proceedings, and
10 including the'full amount of any compensation, indemnification,
11 cost of removal of any property or other ,costs which may be
12 incurred up to the full principal amount of such insurance
13
policy; and said condition shall be a continuing obligation
14 during the entire term of such franchise and thereafter until
15 Grantee shall have satisfied in full any and all obligations to
16 the Count and an user which arise out of or
County y pertain to said
17 franchise. Neither the provisions of this section, nor any
18 insurance
policy accepted by the County pursuant hereto, nor
19 any damages recovered by the County thereunder, shall be
20 construed to excuse faithful
performance by the Grantee, or
21 limit the liability of the Grantee under any franchise issued
22 pursuant to this ordinance.
23 (b) The County reserves the right to have its legislative body
24 review the dollar amount of said insurance policy and adjust
25 the amount of cover a as deemed a upon an annual
g appropriate u
26 basis.
27 Section 23. License, Tax, and Other Charges
28 No privileges or rights granted hereunder shall exempt grantee
29 from any future uniform rent, license, tax charge, or impost
30 which may hereafter be required by the grantor, for revenue or
31 as reimbursement for use and occupancy of public ways, and
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ORDINANCE - 13
May 5, 1983
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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 Joe Louie Water
Association are hereby terminated.
Section 25. Severability.
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 5th day of May, 1983.
ATTEST:
Clerk of the Council
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
William P. Roehl
Vice - Chairman
(3t) APPROVED ( ) VETOED
Joh Louws, County Executive
May 6, 1983
Date
Published on: April 9, April 14, and May 13, 1983
This ordinance shall become effective: May 16, 1983
ORDINANCE - 14
May 5, 1983