HomeMy WebLinkAboutord2005-070HIM TCOM COUNTY COUNCIL AGENDA BILL NO, 7005-161
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T'IT'LE' OF Z4NXUMT. Lake "atcom Water & Sewer District Franchise Ordinance [proposed]
AITTACHMEN7S.- Ordinance A Memorandum
SEPA review required? ) Yes ) NO
Should Clerk schedule a hearing ? (X) Yes NO
S"A review completed? ) yes ) NO
Requested Date: September 27, 2005
SVAM4RYSTATEMENT OR LEGAL NOTICE LANGUAGE: (If this nerve Isom ordinance or requiresapablic hearing, yov
mnstpromW dw language for use in the required public nodre. Be specifte and eke RCWor WCCas appropriate. Be dear in
gyphdahvs the intient of the action.)
Pam want to RC W 3651040 and ff*atcom County Code 12.24.051, notice Is hereby given of public hearing &-fare the County
Co u" ox a proposed ordinance tha4 #'adopled, would grant a franchise for a period of twenty -/ ve (25) years to the Lake
R%mk.vm Water & Sewer District to use County right-of-way in certain locations generally within its service area for purposes of
p1wiNg water and sewer lines and associatedfacifides, those locations more fully described within (keproposed ordinance on file
*ft the County CounciL The public hearing WR be held during the County Council meeting schodukd for 7 :06A m., September
27, 3005, In Council Chambers of the "atcom County Courthouse, 311 Grand Avenue, Bellingham, Washington. Pursuant to
RCW3&55.05A the hearing may be adjourned from time to time by order of the County Council until action is taken by the
Ca mwil qwx Ake proposed ordimmc&
COADJUTEE ACTION. •
COUNCLLACTION:
9/13/2005-. Introduced
9/27/05: Adopted 6-0 Brenner absent
Ordinance 2005-070
Refiged Caum(y Contract
Related File Numbers:
Ordinance or Resolution Numbm-
Ordinance 2005-070
PleawNote.- Once adopted and signed, ordinances and resolutions are avallablefor viewing and printing on the County's webske
aL. WWKc0.Whff0m.WauS1CouncX
INTRODUCED BY: Cosent
PROPOSED BY: PUBLIC WORKS
DATE INTRODUCED: 9113105
ORDINANCE NO: 2005 -070
AN ORDINANCE IN THE MATTER OF GRANTING A NON -
EXCLUSIVE FRANCHISE TO LAKE WHATCOM WATER &
SEWER DISTRICT FOR A PERIOD OF 25 YEARS PURSUANT TO
STATE LAW AND SECTION 9.30 OF THE WHATCOM COUNTY
HOME RULE CHARTER, TO OPERATE AND MAINTAIN WATER
MAINS, WATER DISTRIBUTION LINES, SEWER MAINS, SEWER
COLLECTION LINES, AND ALL ELECTRICAL AND
COMMUNICATIONS UTILITIES (OWNED AND OPERATED BY
THE DISTRICT) FOR OPERATION OF THE WATER AND SEWER
UTILITIES, 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;
WHEREAS, R.C.W. 36.55.010 provides that the county legislative authority may grant
franchises to persons or private or municipal corporations to use the right -of -way of County
roads in their respective counties for the construction and maintenance of water works, gas pipes,
telephones, telegraph and electrical light lines, sewers and other such facilities and including
cable television wires and other cable television facilities; and
WHEREAS, Lake Whatcom Water & Sewer District, formerly Whatcom County Water
District No. 10, has operated a system of water mains and water distribution lines and other
facilities within a portion of Whatcom County under a previous twenty -five year franchise
ordinance, adopted by the County Council on July 5, 1979 and approved by the County
Executive on August 13, 1979; and
WHEREAS, said District has operated a system of sewer force and gravity mains,
collector sewers, and pump stations within a portion of Whatcom County under a previous fifty
year franchise ordinance, adopted by the Board of County Commissioners on October 7, 1971;
and
WHEREAS, the twenty -five year water franchise ordinance states that, if the grantee
seeks renewal of this franchise at the end of the twenty -five year term and has observed the
material terms of the franchise, renewal shall not be unreasonably withheld;
Page 1 of 9
WHEREAS, Lake Whatcom Water & Sewer District has applied for a 25 -year
nonexclusive franchise for installation, operation, maintenance, repair and replacement of water
mains and water distribution lines, sewer force and gravity mains, collector sewers and sewer
pump stations, and related facilities in and along certain roads in Whatcom County, Washington,
and notice of this hearing having been duly published on S,p t , 17. , 2005 and Se terqbe �4
2005 in the Bellingham Herald, the official newspaper for Whatcom County, and it appearing to
the County Council that notice of said hearing has been given as required by law and that it is in
the public interest to renew the franchise for a period of 25 years; and
W:11F.REAS, this matter has come on regularly for hearing before the Whatcom County
Council at 7:00 p.m. on the ,?t day of ,�„ , 2005 In accord with the notice
ggiven; and ,Opt;
WHEREAS, Lake Whatcom Water & Sewer District 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 non- exclusive franchise for Lake Whatcom Water chi Sewer District, together with any
successor's and assigns, referred to herein as the ,grantee, is hereby granted for a period. of 25
years, the non - exclusive right and privilege to construct, erect, operate, maintain, repair and
replace water mains and water- distribution lines, sewer force and gravity mains, collector sewers
and pump stations, and electrical and communications utilities, and related facilities (hereafter
collectively referred to as "facilities ") in, along and across public county roads and county
property within the boundaries of the Lake Whatcom. Water & Sewer District, within an area
generally described as follows;
Sections 23, 24, 25, 26, 27, 34, 35, and 36, Township 38 North, Range 3 East; Sections
19, 29, 34, 32 and 33, Township 38 North, Range 4 East, Sections 1, 2, and 3, Township 37
North, Range 3 East, Sections 4, 5, 6, 7, 8, 9, 15, 16, 17, 20, 21, 22, 23, 25, 26, 27, 28, and 29,
Township 37 North, Range 4 East, and Section 30, Township 37 North, Range 5 East of the
Willamette meridian, in Whatcom County, Washington.
The rights and privileges shall also apply to the portions of roads and rights-of-way that
are part of or that abut those portions of roads that lie just over the section lines that bisect or
intenect the roads in the above -listed areas.
Section 2. Acceptance of Franchise.
(a) No franchise hereunder shall become effective for any purpose unless and until
written acceptance therefor 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 in this ordinance, and in such franchise,
(b) Such written acceptance shall be filed by Grantee not later than the thirtieth day
Page 2 of 9
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 Ri9jits of Way.
The Grantee, its successors and assigns, shall., subject to the requirements of Section
below, have the right and authority to enter upon the above - mentioned county roads, rights-of-
way and other county property as designated hereinbefore, for the purposes of constructing,
operating, maintaining, repairing, and replacing water and sewer 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 cedes or regulations, and the County expressly reserves the right to
prescribe how and where the facilities shall he installed and may from time to time, upon six
months or otherwise reasonable notice, whichever is longer, I require the removal and
replacement thereof in the public interest, at the expense of the franchise holder.
Section 5. Construction A lication.
(a) Prier to commencement of construction of said water and sewer mains, lines and other
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 and sewer lines and related facilities shall be laid in exact conformity with
said reap 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., the 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 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 cosh
of and expenses incurred in the examination, inspection and approval of such work on account of
granting said permits.
• • • # • 4 . # # I # #'
9 While the period of time is stated as "six months or otherwise reasonable notice, whichever is longer", the parties
are generaUy willing to work to acconuno&te each other.
Page 3 of 9
(a) In any work which requires the breaking of soil of 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 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
reads, 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 ether county property and
leave the same in as good condition as before the work was commenced.
b) Applications for permits referred to in Section S above shall be accompanied by
specifications for the restoration of the county road, rights-of-way or other county property to the
same condition it was prior to such breaking of the soil, and such specifications must be
approved by the Director of Public Works before such breaking of the soil is commenced.
Provided, that the Director of public Works may require a performance bond in the sum
sufficient to guarantee that such county roads, rights -of -way or other county property shall be
restored to the same condition as they were prior to the breaking of the soil. Said bland 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; provided
that, where reasonably feasible, the Grantee shall be provided prior notice of the condition and
allowed seventy -two (7 2) hours to complete the necessary restoration work itself.
Section 7. Construction— {ether Lines and Facilities.
(a) All construction or installation of such mains, lines or other facilities, service, repair
or relocation of same, pformaed 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 change the drainage flow
therein, nor interfere 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 water and sewer lines and the construction of facilities within rights -of- -way or
other county property, the Grantee shall leave such trenches, ditches and tunnels in such a way as
Page 4 of 9
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 per the
MUTCD (Manual on Uniform Traffic Control Devices). The Grantee shall be liable for any
injury to person or persons or damage to property sustained through its carelessness or neglect,
or through any failure or neglect to properly guard or give warning of any trenches, ditches or
tunnels dug or maintained by the Grantee.
{ ■ M ■
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 roans, rights -of- -way or ether county
property and this franchise shah 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 and within six months or a reasonable time, whichever is
longer,z change the location or readjust the elevation of its lines and other facilities so that the
same shall not interfere with such County work and so that such lines and facilities shall conform
to such new grades or routes as may be established, The County of Whatcom shall in no way be
held liable for any damage to said Grantee that may occur by rein 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 actin 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 lines and facilities
authorized by this franchise shall not preclude the County of Whatcom, its agents or its
contractors finorn 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 sines and
2 See footnote 1.
Page 5 of 9
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 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 or other property interest in said road, rights-of-way or other
county property for the use of Whatcom County, in either its proprietary or governmental
capacity, then the Council of Whatcom County may at its option and by giving thirty (30) days
written notice to the Grantee, terminate this franchise with reference to such county road, right-
of-way or other county property so vacated and the County of Whatcom shall not be liable for
any damages or loss to the Grantee by ream of such termination. Prior to vacation, the County
of Whatcom shall reserve for use by the Grantee a minimum twenty -five foot (') wide
permanent easement for the existing water and/or sewer line and facilities in the subject right-of-
way or County property.
S,epdon 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, demands or
judgments of whatsoever kind or nature, whether to persons or property, arising wholly or
partially out of any mot, action, neglect, omissions or default on the part of the Grantee, its
subcontractors and/or employees which may occur by reason of the construction, operation and
maintenance of the Grantee's said lines and facilities. In case that suit or action is brought
against the County of Whatcotn for damages arising out of or by reason of the above - mentioned
causes, the Grantee will upon notice to it of the filing of a claim or the commencement of said
action, spur and defend the same at its sole east and expense, and in case j udgment 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
Page 6 of 9
within a ninety ( ) day period, this franchise shall at once cease and temninate and the County
of Whatcom shall have a lien upon the lines and all other facilities used in the construction,
operation and maintenance of the Grantee's system, which may be enforced against the property
for the full amount of any such unsatisfied 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 ether franchises of a like nature or franchises for
other public or private utilities under, along, across, over and upon any of the county road,
rights-of-way, or rather County property subject to franchise, and shall in no way pent 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, and maintenance as the County may deem ht.
Section 16. Successors and Assigns.
All the provisions, conditions, regulations and requirements herein contained shall be
binding upon the successors and assigns of the Grantee, and all privileges, as well as all
obligations and liabilities of the Grantee shall inure to its successors and assigns 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 prior written consent of the Whatcom County Council, which consent shall not be
unreasonably withheld.
Stion 18. Incorporation.
Whenever any of the county roads, rights- of-way or other county property as designated
in this franchises 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. Enforcerneni/temedics.
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 hereby, 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, or any lawful order, statute, or regulation, and this franchise may be
Page 7 of 9
terminated at any time if the Grantee's lines and facilities are not operated or maintained in
accordance with such ordinance, order, statute, or regulation.
Section 20. Reservation of Home Rule Charter Rights.
This franchise is subject to the provisions of the Name 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 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.
Section 22. Insurance.
(a) Upon acceptance of this franchise, the Grantee shall file with the Whatcorn County
Council, and shall thereafter, during the entire term of such franchise, maintain in full farce and
eft a corporate insurance policy or other adequate surety anent in the amount of ONE
MR -LION DOLLARS ($1,000,000.00) for property damage coverage, and GENE MILLION
DOLLARS ($1,000,000.00) for public liability coverage, so as to protect the County against
damages or costs as set forth in Section 14 above, and there shall be recoverable, jointly and
separately from the principal and surety, any such damages or costs suffered or incurred by the
County, including attorneys' fees and costs of any action, or proceedings, and including the full
amount of any compensation, indemnification, cost of removal of any property or other costs
which may be incurred up to the full principal amount of such insurance policy; and said
oondition shall be a continuing obligation during the entire term of such franchise and thereafter
until Grantee shall have satisfied in full any and all obligations to the County and any user which
arise out of or pertain to said franchise. Neither the provisions of this section, nor any insurance
policy accepted by the County pursuant hereto, nor any damages recovered by the County
thereunder, shall be construed to excuse faithful performance by the Grantee, or limit the liability
of the Grantee under any franchise issued pursuant to this ordinance.
(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 care for forfeiture of rights hereunder.
Page 8 of
Section 24. Repealer.
All other prior existing franchises granted to Lake Whatcom Water & Sewer District
shall be repealed, and the terms of the franchise granted hereunder shall become effective at such
time as an acceptance of franchise is filed by the Grantee with the County in accordance with
Section 2 herein.
Section 25. Severability.
If any portion of this ordinance is deemed invalid, the remainder shall 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 27th day of September —1 2005.
- CO
A
Or A M. C1
0 0
APPROVED AS TO FORM:
DANIEL L. GIBSON
Deputy Prosecuting Attorney
UMM.4
Published on rl and
This ordinance shall become effective on
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PROVED VETOED