HomeMy WebLinkAboutord2019-052• Whatcom County COUNTY COURTHOUSE
311 Grand Avenue, Ste #105
` Bellingham, WA 98225-4038
(360) 778-5010
Agenda Bill Master Report
File Number: AB2019-347
File ID: AB2019-347 Version: 1 Status: Adopted
File Created: 06/04/2019 Entered by: AHester@co.whatcom.wa.us
Department: Public Works File Type: Ordinance
Department
Assigned to: Council Final Action: 07/23/2019
Agenda Date: 07/23/2019 Enactment #: ORD 2019-052
Primary Contact Email: sdraper@co.whatcom.wa.us
TITLE FOR AGENDA ITEM:
Ordinance granting Northwest Water Association a franchise and the right, privilege, and authority
thereunder to locate, set, erect, lay, construct, extend, support, attach, connect, maintain, repair,
replace, enlarge, operate and use facilities in, upon, over, under, along, across and through the franchise
area to allow for the provision of water services
SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE:
RCW 36.55.040, Whatcom County Charter Section 9.30, and Whatcom County Code 12.24
provides for the granting of franchises to public and private utility companies for use of County
Rights -of -Way. This is a new franchise allowing for the use of and presence in County Rights -of -Way
to allow for the provision of water services
HISTORY OF LEGISLATIVE FILE
Date: Acting Body: Action: Sent To:
06/18/2019 Council INTRODUCED FOR PUBLIC Council
HEARING
Notes: Vote: 5-1, Brenner opposed, Buchanan absent
07/23/2019 Council ADOPTED
Notes: Vote: 6-0, Brenner abstained, Ordinance 2019-052
Whatcom County Page 1 Printed on 712412019
Agenda Bill Master Report Continued (AB2019-347)
Attachments: Agenda Bill Master Report, Memo -June 5, 2019, Proposed Ordinance
Whatcom County Page 2 Printed on 712412019
Whatcom County, WA
2019-0803793
Total:$119.50 Pgs=17
FRAN 08/29/2019 03:12 PM
Request of: WHATCOM COUNTY COUNCIL
1111111111111111111111111111111111111111111111111
00181391201908037930170171
RETURN DOCUMENT TO:
CATHY HALKA
WHATCOM COUNTY
COUNCIL OFFICE
DOCUMENT TITLE(S): FRANCHISE
Ordinance No. 2019-052 granting Northwest Water Association a franchise and the
right, privilege, and authority thereunder to locate, set, erect, lay, construct, extend,
support, attach, connect, maintain, repair, replace, enlarge, operate and use facilities
in, upon, over, under, along, across and through the franchise area to allow for the
provision of water services.
REFERENCE NUMBER(S) OF DOCUMENTS ASSIGNED OR RELEASED:
Ordinance Number: 2019-052
Additional reference numbers found on page of document.
GRANTOR(S): Whatcom County
Additional grantors found on page of document.
GRANTEE(S): Northwest Water Association
Additional grantees found on page of document.
ABBREVIATED LEGAL DESCRIPTION (Lot, block, plat, or section, township, range)
All public county roads, county public ways, and county property now owned or
hereafter dedicated to the County within Sections 33, 34, and 35, Township 39
North, Range 2 East of W.M., and Sections 2 and 3, Township 38 North, Range 2
East of W.M. in Whatcom County, Washington as may hereafter be amended and
attached hereto. In addition, any portion of Smith Road, Northwest Drive, Waschke
Road, Aldrich Road, Slater Road, and Pacific Highway outside of the previous
described area.
Additional legal description can be found on page of document.
ASSESSOR'S PARCEL NUMBER:
None - roads
PROPOSED BY: Executive
INTRODUCTION DATE: 6-18-2019
ORDINANCE NO. 2019-052
GRANTING NORTHWEST WATER ASSOCIATION A FRANCHISE AND THE RIGHT, PRIVILEGE,
AND AUTHORITY THEREUNDER TO LOCATE, SET, ERECT, LAY, CONSTRUCT, EXTEND,
SUPPORT, ATTACH, CONNECT, MAINTAIN, REPAIR, REPLACE, ENLARGE, OPERATE AND
USE FACILITIES IN, UPON, OVER, UNDER, ALONG, ACROSS AND THROUGH THE
FRANCHISE AREA TO ALLOW FOR THE PROVISION OF WATER SERVICES.
WHEREAS, Northwest Water Association (hereinafter referred to as "Northwest Water"),
has applied for a twenty-five (25) year franchise; and
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, RCW 36.55.010, Whatcom County Charter Section 9.30, and Whatcom
County Code Chapter 12.24 address the requirements pertaining to the granting of franchises by
the County; and
WHEREAS, Northwest Water 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 October 5, 1993 and approved
by the County Executive;
WHEREAS, Northwest Water seeks a non-exclusive twenty-five (25) year franchise to
construct, erect, alter, lay, support, connect, improve, renew, replace, repair, operate and
maintain water transmission and distribution facilities upon, under, over, across and along
certain roads and other areas in Whatcom County, Washington; and
WHEREAS, the application of Northwest Water has come on regularly to be heard by the
County Council on the23ra day of July , 2019, and notice of this hearing having been
duly published on the 5th day of July 2019, and the l2th day of J„1 , , 2019, in the
Bellingham Herald, a daily newspaper published in Whatcom County having county -wide
circulation; and
WHEREAS, it appears to the Council that notice of said application and hearing thereon
has been given as required by law in RCW 36.55.040; and
WHEREAS, this Council finds, after having considered said application and being
otherwise fully advised in the premises, that it is in the public interest for this Council to grant the
franchise for a period of twenty-five (25) years; and
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WHEREAS, Whatcom County and Northwest Water intend that the previous franchises
granted to Northwest Water that pertain to water lines for the provision of water services shall be
terminated and be replaced by this Franchise;
NOW, THEREFORE, BE IT ORDAINED by the Whatcom County Council that the
language set forth below, in Sections 1 through 20, shall constitute the franchise agreement
between Whatcom County and Northwest Water, which shall be and become effective as set
forth in Section 13 thereof:
Section 1. Definitions.
1.1 Where used in this franchise agreement ("Franchise"), the following terms shall
mean:
1.1.1 "County' means the County of Whatcom, apolitical subdivision of the
State of Washington, and its successors and assigns.
1.1.2 "Northwest Water" means Northwest Water Association, and its
successors and assigns.
1.1.3 "Franchise Area" means all public county roads, county public ways, and
county property now owned or hereafter dedicated to the County within Sections 33, 34, and 35,
Township 39 North, Range 2 East of W.M., and Sections 2 and 3, Township 38 North, Range 2
East of W.M. in Whatcom County, Washington as may hereafter be amended and attached
hereto.. In addition any portion of Smith Road, Northwest Drive, Waschke Road, Aldrich Road,
Slater Road, and Pacific Highway outside of the previous described area.
1.1.4 "Facilities" means, collectively, any and all water transmission and
distribution systems, including but not limited to tanks, meters, pipes, mains, services, valves,
manholes, pressure reducing valves ("PRVs"), pump stations, meter stations and any and all
other equipment, appliances, attachments, appurtenances and other items necessary,
convenient, or in any way appertaining to any and all of the foregoing, whether the same be
located over or under ground.
1.1.5 "Ordinance" means Ordinance No.2019-052 , which sets forth the terms and
conditions of this Franchise.
1.1.6 "Right -of -Way": As used herein shall refer to the surface of and space
along, above, and below any public street, road, way, lane, drive, alley or easement
within the Franchise Area;
1.1.7 "Relocation": As used herein shall mean to protect, support, temporarily
disconnect relocate and/or remove Northwest Water facilities within or from within the
County right-of-way.
Section 2. Facilities Within Franchise Area.
2.1 The County does hereby grant to Northwest Water a Franchise, and the right,
privilege, and authority thereunder, to construct, operate, maintain, replace, and use all
Page 2
necessary equipment and facilities for a public water system, in, under, on, across, over,
through, along, or below the public rights -of -way located in the Franchise Area.
2.2 This Franchise is subject to the terms and conditions hereinafter set forth.
Section 3. County Authority.
3.1 The County, in granting this Franchise, does not waive any rights which it now has
or may hereafter acquire with respect to the Franchise Area, 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 Franchise Area.
Section 4. Noninterference of Facilities.
4.1 As to new Facilities, Northwest Water's Facilities shall be placed and maintained
within the Franchise Area so as not to unreasonably interfere with the free passage of traffic and
in accordance with all applicable laws, rules, and regulations. Prior to the installation of new
Facilities within the Franchise Area, Northwest Water may request that the County determine
whether the proposed placement of the Facilities will unreasonably interfere with the free and
safe passage of traffic, and the County shall make such determination in writing within a
reasonable period of time. If the proposed location is not approved by the County Engineer, the
County Engineer shall advise in writing what reasonable modifications to the proposed location
of the Facilities are necessary for the County Engineer to issue a determination that the
proposed location of the Facilities will not unreasonably interfere with the free and safe passage
of traffic.
If Northwest Water proceeds to install new Facilities without first obtaining the County
Engineer's determination that the proposed location of the Facilities will then unreasonably
interfere with the free and safe passage of traffic then, upon determination by the County that
current placement of particular Facilities unreasonably interferes with free or safe passage of
traffic, the County shall notify Northwest Water which shall, at its own expense, act promptly to
rectify the problem in consultation with the County. Northwest Water shall exercise its rights
under this Franchise and within the Franchise Area in accordance with all County codes and
ordinances governing use and occupancy of the Franchise Area; provided, however, in the event
of any conflict or inconsistency of such codes and ordinances with the terms and conditions of
this Franchise, the terms and conditions of this Franchise shall govern and control to the extent
authorized by law; provided, further, nothing herein shall be deemed to waive, prejudice or
otherwise limit any right of appeal afforded Northwest Water by such County codes and
ordinances.
4.2 Northwest Water's existing Facilities shall be maintained within the Franchise Area
so as not to unreasonably interfere with the free passage of traffic and in accordance with all
applicable laws, rules, and regulations. Upon determination by the County that current
placement of particular Facilities unreasonably interferes with free or safe passage of traffic, the
County shall notify Northwest Water which shall, at its own expense, act promptly to rectify the
problem in consultation with the County. Northwest Water shall exercise its rights under this
Franchise and within the Franchise Area in accordance with all County codes and ordinances
governing use and occupancy of the Franchise Area; provided, however, in the event of any
conflict or inconsistency of such codes and ordinances with the terms and conditions of this
Page 3
Franchise, the terms and conditions of this Franchise shall govern and control to the extent
authorized by law; provided, further, nothing herein shall be deemed to waive, prejudice or
otherwise limit any right of appeal afforded Northwest Water by such County codes and
ordinances.
4.3 All construction or installation of such Facilities, service, repair, or relocation of the
same, performed over, above, along or under the Franchise Area shall be done in such a
manner as not to interfere unreasonably with the construction and maintenance of other existing
utilities, lines, public or private, drains, drainage ditches and structures, irrigation ditches and
structures, located therein, nor with the grading or improvement of the Franchise Area. The
owners of all utilities, public or private, installed in the Franchise Area prior in time to the
Facilities of Northwest Water shall have preference as to the positioning and location of such
utilities so installed with respect to Northwest Water. Such preference shall continue in the
event of the necessity of relocating or changing the grade of the Franchise Area. Northwest
Water shall have such preference as to owners of all utilities, public or private, initially installed in
the Franchise Area subsequent in time to Northwest Water's Facilities.
4.4 The locating, laying, construction, operation and maintenance of Northwest Water's
Facilities authorized by this Franchise shall not preclude the County, its agents or its contractors
from blasting, grading, excavating, or doing other necessary road work contiguous to Northwest
Water's Facilities, provided that Northwest Water and the County shall first check with the
locator service to determine whether or not any of Northwest Water's lines are located in the
proposed work area. Upon finding from the locator service that Northwest Water does have
lines located within the proposed work area, the County shall provide Northwest Water with
seventy-two (72) hours notice of proposed work, except if a lesser time for notice is warranted by
emergency, in order that the Northwest Water may protect its Facilities. Failure of Northwest
Water to properly notify the locator service of the location of its lines and Facilities shall relieve
County of its duty to provide Northwest Water the otherwise -required advance notice of
proposed work.
4.5 Northwest Water shall maintain all above -ground Facilities that it places in the
Franchise Area. In order to avoid interference with the County's ability to maintain the Franchise
Area, Northwest Water shall provide a clear zone of five (5) feet on all sides of such above-
ground Facilities. If Northwest Water fails to comply with this provision, and by its failure,
property is damaged, then Northwest Water shall be deemed responsible for all damages
caused thereby and the County shall be released from any responsibility therefore. For these
purposes, "clear zone" means an area that is mowed or otherwise maintained so that the
Facilities are readily visible to County maintenance operations.
Section 5. Construction Within the Franchise Area.
5.1 All construction and installation work within the Franchise Area shall be subject to
the approval and pass the inspection of the County Engineer, and shall conform to all applicable
local, state and federal standards, codes or regulations, and the County expressly reserves the
right to prescribe standards as to how and where Facilities shall be installed. The standards
shall be consistent with reasonable standards and standard engineering practices in the
applicable industries.
5.2 Prior to commencement of construction of any new Facilities, Northwest Water shall
Page 4
first file with the County Engineer its application for permits to do such work, together with plans
and specifications in duplicate showing the position and location of all such Facilities sought to
be constructed, laid, installed or erected at that time showing their position relative to existing
County roads, rights -of -way, or other County property within the Franchise Area upon plans
drawn to scale. The Facilities shall be laid in conformity with said plans and specifications of
definite location, except in instances in which deviation may be allowed thereafter in writing by
the County Engineer. 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 turnouts and road
obstructions, etc. No such construction shall be commenced without Northwest Water first
securing a written permit from the County Engineer, including approval endorsed on one set of
plans and specifications returned to Northwest Water. All such work shall be subject to the
approval of and shall pass the inspection of the County Engineer. Northwest Water shall pay all
costs of and expenses incurred in the examination, inspection and approval of such work on
account of granting the said permits.
5.3 In any work which requires breaking of soil within the Franchise Area for the purpose
of laying, relaying, connecting, disconnecting, constructing, maintaining and repairing Northwest
Water's Facilities, and making connections between the same to structures and buildings of
consumers or making connections to other Facilities now in existence or hereafter constructed,
Northwest Water shall be governed by and conform to the general rules adopted by the County
Engineer; and Northwest Water at its own expense and with due diligence shall complete the
work for which the soil has been broken and forthwith replace the work and make good the
Franchise Area and leave the same in as good condition as before the work was commenced;
provided, however, that no such breaking of the soil within the Franchise Area shall be done
prior to the obtaining of a permit issued by the County Engineer. Applications for such a permit
shall be accompanied by specifications for the restoration of the Franchise Area to the same
condition as it was in prior to such breaking, and such specifications must be approved by the
County Engineer before such breaking of the soil is commenced; provided further, that the
County Engineer may require a performance bond in a reasonable sum sufficient to guarantee
that such Franchise Area shall be restored to the same condition as it was in prior to such
breaking of the soil, the amount of said bond to be fixed by the County Engineer. Northwest
Water shall pay all costs of and expenses incurred in the examination, inspection and approval
of such restoration. The County Engineer may at any time do, order, or have done, any and all
work that the County Engineer considers necessary to restore to a safe condition any Franchise
Area left by Northwest Water or its agents in a condition dangerous to life orYproperty, and
Northwest Water upon demand shall pay to the County all costs of such work, the County having
first provided notice of such condition to Northwest Water and a reasonable time to cure such
unsafe condition, provided however, in the event of damage to the Franchise Area caused by
Northwest Water that necessitates immediate repair by the County or its agents on an
emergency basis where notice to Northwest Water or providing an opportunity to cure is not
feasible considering nature of the emergency and necessary repair, as determined by the
County Engineer using professional engineering standards, no such notice and reasonable time
to cure shall be required as a condition of repayment by Northwest Water.
5.4 In preparing plans and specifications for the installation of Facilities within the
Franchise Area, Northwest Water shall reasonably conform to the standards and specifications
established by the County Engineer. Northwest Water shall consult with the County Engineer in
case it plans to deviate from the established standards and specifications in the course of
Page 5
installing Facilities within the Franchise Area and must demonstrate to the satisfaction of the
County Engineer that its plans will achieve a legal and functionally equivalent result.
5.5 All work done by and for Northwest Water under this Franchise shall be done in a
thorough and workmanlike manner. In the construction of Facilities and the opening of trenches
within and the tunneling under the Franchise Area, Northwest Water shall leave such trenches
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. Where any of such trenches, ditches, or tunnels are left open at
night, Northwest Water 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).
Northwest Water shall be liable for any injury to person or persons or damage to property to the
extent proximately caused by its carelessness or neglect, or to the extent proximately caused by
any failure or neglect to properly guard or give warning of any trenches, ditches or tunnels dug or
maintained by Northwest Water.
5.6 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,
Northwest Water shall reference all such monuments and markers. The reference points shall
be so located that they will not be disturbed during Northwest Water's operations under this
Franchise. The method of referencing these monuments or other points to be referenced shall
be approved by the County Engineer. The replacement of all such monuments or markers
disturbed during construction shall be made as expeditiously as conditions permit, and as
directed by the County Engineer. The cost of monuments or other markers lost, destroyed, or
disturbed, and the expense of replacement by approved monuments shall be borne by
Northwest Water. A complete set of reference notes for monuments and other ties shall be filed
with the County Engineer's Office.
Section 6. Relocation of Facilities.
6.1 Northwest Water shall, at its sole expense and with due diligence, relocate or adjust
the elevation of any of its Facilities upon receipt of written request from the County Engineer
when determined reasonably necessary based upon sound engineering principles by the County
Engineer for improvement to the County facilities in the Franchise Area, provided that the
elevations required by the County are not in violation of local, state or federal law and are
reasonable necessary for safety purposes. Northwest Water shall coordinate such relocation or
adjustment of its Facilities with the County and shall perform the same in a timely fashion so
that, absent conditions beyond the control of Northwest Water, such relocation or adjustment of
Northwest Water's Facilities will not impede or delay pending changes to the Franchise Area.
6.2 Northwest Water may propose to the County alternatives to reduce or eliminate the
need for relocation of its Facilities pursuant to Section 6.1. Upon the County's receipt from
Northwest Water of such alternatives in writing, the County shall evaluate such alternatives and
shall advise Northwest Water in writing if one or more of such alternatives are suitable to
accommodate the work that would otherwise necessitate relocation of Northwest Water's
Facilities. In evaluating such alternatives, the County shall give each alternative proposed by
Northwest Water full and fair consideration with due regard to all the facts and circumstances
which bear upon the practicality of relocation and alternatives to relocation. In the event the
County reasonably determines that such alternatives are not appropriate, Northwest Water shall
Page 6
relocate its Facilities as otherwise provided in Section 6.1. Any acceptance by the County of
such alternatives shall not excuse (nor shall be construed to excuse) Northwest Water from
future relocation or adjustment of Northwest Water's Facilities pursuant to this Section 6.
6.3 As qualified in Sections 6.1 and 6.2 above, and in Section 6.4 below, whenever any
person or entity, other than the County, requires the relocation of Northwest Water's Facilities to
accommodate the work of such person or entity within the Franchise Area, or whenever the
County requires the relocation of Northwest Water's Facilities within the Franchise Area for the
benefit of any person or entity other than the County, then Northwest Water shall have the right
as a condition of such relocation to require such person or entity to:
6.3.1 Make payment to Northwest Water, at a time and upon terms acceptable to
Northwest Water, which acceptance shall not be unreasonably withheld, for any and all costs
and expenses incurred by Northwest Water in the relocation of Northwest Water's Facilities; and
6.3.2 Indemnify and save Northwest Water harmless from any and all claims and
demands made against it on account of injury or damage to the person or property of another
arising out of or in conjunction with the relocation of Northwest Water's Facilities, to the extent
such injury or damage is caused by the negligence of the person or entity requesting the
relocation of Northwest Water's Facilities or the negligence of the agents, servants or employees
of the person or entity requesting the relocation of Northwest Water's Facilities.
6.4 Any condition or requirement imposed by the County upon any person or entity,
other than Northwest Water or the County (including, without limitation, any condition or
requirement imposed pursuant to any contract or in conjunction with approvals or permits for
zoning, land use, construction or development) which requires the relocation of Northwest
Water's Facilities shall be a required relocation for purposes of Section 6.3; provided, however:
6.4.1 If the County notifies Northwest Water in writing that the primary purpose of
imposing such condition or requirement upon such person or entity is to cause the grading or
widening of the Franchise Area on the County's behalf consistent with the County's Six -Year
Road Construction Program, then Northwest Water shall relocate its Facilities within the
Franchise Area in accordance with Section 6.1.
6.4.2 If the County notifies Northwest Water in writing that the County will bear a
portion of the costs of, or will provide funding towards, a project that includes grading or
widening of the Franchise Area resulting from the imposition of such condition or requirement
upon such person or entity, then Northwest Water agrees to bear a portion of its costs and
expenses to relocate its Facilities to accommodate such grading or widening, such portion borne
by Northwest Water being a percentage equal to that percentage of such project's costs borne
or funded by the County (the "County Contribution"); provided, however, in no event shall such
portion borne by Northwest Water exceed the dollar amount of such County Contribution.
"Project" shall mean that work directly bearing on the area that necessitates relocation by
Northwest Water, and shall not include other off -site improvements that may be performed at the
same time. In all other respects such relocation shall be a required relocation for the purposes
of Section 6.3 and without limiting the foregoing, Northwest Water shall have the right as a
condition of such relocation to require such person or entity to pay to Northwest Water all
relocation costs and expenses in excess of the portion borne by Northwest Water under this
Section 6.4.2.
Page 7
6.4.3 If the Facilities to be relocated pursuant to this subsection 6.4 have been
located at or relocated within the preceding five (5) years to a location upon which the County
had agreed at the time without reservation, then Northwest Water shall be entitled to recovery of
all its costs and expenses incurred in the relocation of its Facilities from the party on whom the
condition for road improvements was placed. Documentation of any such agreement between
the County and Northwest Water shall be kept in conjunction with the encroachment permit
issued by the County for the work of relocation.
6.5 Nothing in this Section 6 shall require Northwest Water to bear any cost or expense in
connection with the location or relocation of any Facilities then existing pursuant to easement or
such other rights not derived from or addressed by this Franchise.
Section 7. Indemnification.
7.1 To the extent permitted by law, Northwest Water shall defend, indemnify and hold the
County harmless from any and all claims, demands, suits, actions, costs and expenses,
including but not limited to attorney's fees, made against it on account of injury or damage to the
person or property of another, but only to the extent such injury or damage is caused by the
actions or failure to act of Northwest Water, its agents, servants or employees in exercising the
rights granted to Northwest Water in this Franchise; provided, however, that in the event any
such claim or demand be presented to or filed with the County, the County shall promptly notify
Northwest Water thereof, and Northwest Water shall have the right, at its election and at its sole
cost and expense, to settle and compromise such claim or demand; provided further, that in the
event any suit or action is begun against the County based upon any such claim or demand, the
County shall likewise promptly notify Northwest Water thereof, and Northwest Water shall have
the right, at its election and its sole cost and expense, to settle and compromise such suit or
action, or defend the same at its sole cost and expense, by attorneys of its own election.
Notwithstanding the foregoing, if damages to another or others result from concurrent
negligence of Northwest Water and the County, Northwest Water and the County shall each be
responsible for, and this indemnification provision shall be operative so that each party bears,
the proportionate share attributable to its own negligence. In case judgment which is not
appealed shall be rendered against the County in such suit or action, Northwest Water shall fully
satisfy said judgment within ninety (90) days after said suit or action shall have finally been
determined. Upon Northwest Water's failure to satisfy said judgment within ninety (90) days, the
County may elect to terminate this Franchise pursuant to the terms of Section 19 herein. The
provision for reimbursement of the County shall survive the termination of this Franchise.
7. 2 Acceptance by the County of any work performed by Northwest Water at the time of
completion shall not be grounds for avoidance of the covenant in Section 7.1 above.
Section B. Acquisition of Right -of -Way.
8.1 In the event that Northwest Water proposes to acquire easements for the location or
relocation of its Facilities outside of, and adjacent to the Franchise Area, Northwest Water shall
notify the County of the same and the County shall have the option, with the concurrence of
Northwest Water, to acquire in place of such Northwest Water proposed easements, additional
public rights -of -way or equivalent public utility easements for use by Northwest Water. Any such
public rights -of -way acquired by the County shall become Franchise Area. Any such public utility
easements so acquired by the County shall not be Franchise Area (and shall not be subject to
the terms and conditions of this Franchise) and Northwest Water's use of such public utility
easements shall be subject to the terms and conditions of such public utility easements.
Provided the above section does not apply to Northwest Water's customer service lines and only
to easements related to new transmission water pipelines.1
Section 9. Vacation of the Franchise Area.
9.1 If at any time the County shall seek to vacate any portion of the Franchise Area and
said vacation shall be for the purpose of acquiring the fee or other property interest in said
portion of the Franchise Area for the use of the County, in either its proprietary or governmental
capacity, and there are no Facilities located in the Franchise Area. then the County Engineer
may at his option and by giving thirty (30) days written notice to Northwest Water, terminate this
franchise with reference to such portion of the Franchise Area so vacated, and the County shall
not be liable for any damages or loss to Northwest Water allegedly incurred by reason of such
termination. Nothing herein shall limit or prevent Northwest Water from exercising its powers of
eminent domain. Should Northwest Water notify the County of its intent to consider exercising its
power of eminent domain to obtain an easement for the Facilities located within the area of the
Franchise to be terminated, the termination of the Franchise shall be tolled for a period of no
less than one hundred and twenty (120) days from the date of notice.
9.2 If at any time the County shall vacate any portion of the Franchise Area in which
Facilities are installed at the time of said vacation, and said vacation shall be for the purpose of
acquiring the fee or other property interest in said portion of the Franchise Area by other than the
County, then the County shall, in its vacation procedure, unless otherwise waived in writing by
Northwest Water, reserve an easement to Northwest Water for Northwest Water's Facilities as
reasonably necessary for the continued use, operation, maintenance and repair of the Facilities
as located in the portion of the Franchise Area to be vacated.
Section 10. Moving Buildings within the Franchise Area.
10.1 If any person or entity obtains permission from the County to use the Franchise
Area for the moving or removal of any building or other object, the County shall, prior to granting
such permission, direct such person or entity to arrange with Northwest Water for the temporary
adjustment of Northwest Water's Facilities necessary to accommodate the moving or removal of
such building or other object. Such person or entity shall make such arrangements, upon terms
and conditions acceptable to Northwest Water, not less than fourteen (14) days prior to the
moving or removal of such building or other object. In such event, Northwest Water shall, at the
sole cost and expense of the person or entity desiring to move or remove such building or other
object, adjust any of its Facilities which may obstruct the moving or removal of such building or
object.
Section 11. Locating Facilities.
1 A distinction is drawn here between public rights -of -way which are or shall become Franchise Area and thus
governed by the terms of the franchise ordinance, and public utility easements which shall not become Franchise
Area, the use of which shall be governed by the terms and conditions of the easements themselves and not by the
franchise ordinance.
Page 9
11.1 Northwest Water and the County acknowledge and commit to fully comply with their
respective obligations, as the same may arise from time to time, under Chapter 19.122 RCW
(Underground Utilities Locator Statute) or any other law applicable to determining the location of
utility facilities.
Section 12. Nonexclusive Franchise.
12.1 This Franchise is not and shall not be deemed to be an exclusive franchise. It shall
not in any manner prohibit the County from granting other franchises of a like nature or
franchises for other public or private utilities under, along, across, over, and upon any part of the
Franchise Area, and shall in no way prevent or prohibit the County from constructing, altering,
maintaining, using, or vacating any part thereof , or affect its jurisdiction over any part thereof
with full power to make all necessary changes, relocations, repairs, maintenance, etc., the same
as the County may deem fit.
Section 13. Franchise Term; Effect on Existing Franchises for Same Purpose.
13.1 This Franchise is and shall remain in full force and effect for a period of twenty-five
(25) years from and after the effective date of the Ordinance; provided, however, Northwest
Water shall have no rights under this Franchise nor shall Northwest Water be bound by the
terms and conditions of this Franchise unless Northwest Water shall, within thirty (30) days after
the effective date of the Ordinance, file with the County its written acceptance of the franchise
agreement contained within the Ordinance.
13.1.1 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 the 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; and
13.1.2 Such written acceptance shall be filed by Northwest Water not later than the thirtieth
(30th) day following the effective date of the Ordinance granting such franchise; and in default of the
filing of such written acceptance as herein required, Northwest Water shall be deemed to have
rejected the same. In case of Northwest Water's tardy acceptance of franchise, the County's
recognition thereof shall be strictly at its discretion.
13.2 The existing franchise between the Parties pertaining to the same subject matter,
i.e., Northwest Water's Facilities, which was granted by the County and accepted by Northwest
Water on May 31, 1978, shall be superseded and replaced by this franchise upon the effective
date of this franchise as provided above.
13.3 This Franchise agreement sets forth and constitutes the entire agreement and
understanding of the parties with respect to the subject matter hereof. This Franchise agreement
supersedes any and all prior agreements, negotiations, correspondence, undertakings,
promises, covenants, arrangements, communications, representations, and warranties, whether
oral or written, of any party to this agreement.
Page 10
Section 14. Assignment.
14.1 Neither this Franchise nor any interest herein shall be sold, transferred, or assigned
without the prior consent in writing of the County Council, which consent shall not be
unreasonably withheld, except that the Northwest Water may mortgage this Franchise to the
trustee for its bond holders. Any approved assignee shall, within thirty (30) days of the date of
any assignment, file written notice of the assignment with the County, together with its written
acceptance of all terms and conditions of this Franchise.
14.2 All the provisions, conditions, and requirements herein contained shall be binding
upon the successors and assigns of Northwest Water, 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 Northwest Water is mentioned.
Section 15. Amendment.
15.1 Except as addressed in and through Section 15.3 below, this Franchise may be
amended only by written instrument, signed by both parties, which specifically states that it is an
amendment to this Franchise and is approved and executed in accordance with the laws of the
State of Washington. Without limiting the generality of the foregoing, this Franchise (including,
without limitation, Section 5 above) shall govern and supersede and shall not be changed,
modified, deleted, added to, supplemented or otherwise amended by any permit, approval,
license, agreement or other document required by or obtained from the County in conjunction
with the exercise (or failure to exercise) by Northwest Water any and all rights, benefits,
privileges, obligations or duties in and under this Franchise, unless such permit, approval,
license, agreement or other document specifically:
15.1.1 References this Franchise; and
15.1.2 States that it supersedes this Franchise to the extent it contains terms and
conditions that change, modify, delete, add to, supplement or otherwise amend the terms and
conditions of this Franchise. In the event of any conflict or inconsistency between the provisions
of this Franchise and the provisions of any such permit, approval, license, agreement or other
document, the provisions of this Franchise shall control.
15.2 If, during the term of this Franchise, there becomes effective any change in federal
or state law (including changes approved by the Washington Utilities and Transportation
Commission) which:
15.2.1 Affords either party the opportunity to negotiate in good faith a term or
condition of this Franchise which term or condition would not have, prior to such change, been
consistent with federal or state law; or
15.2.2 Pre-empts or otherwise renders null and void any term or condition of this
Franchise which has there -to -fore been negotiated in good faith; then, in such event, either party
may notify the other party in writing that such party desires to commence negotiations to amend
Page 11
this Franchise. Such negotiations shall encompass only the specific term or condition affected
by such change in federal or state law and neither party shall be obligated to re -open negotiation
on any other term or condition of this Franchise. Within thirty (30) days from and after the other
party's receipt of such written notice, the parties shall, at a mutually agreeable time and place,
commence such negotiations. Pending completion of such negotiations resulting in mutually
agreeable amendment of this Franchise, adoption of such amendment by Ordinance by the
County and acceptance of such Ordinance by Northwest Water, and except as to any portion
thereof which has been pre-empted or otherwise rendered null and void by such change in
federal or state law, this Franchise shall remain in full force and effect.
15.3 Notwithstanding any language to the contrary contained herein, this Franchise is
subject to the provisions of the Whatcom County Charter, Section 9.30, and all rights belonging
to the County and its people as set forth therein are hereby reserved thereto.
Section 16. Miscellaneous
16.1 If any term, provision, condition, or portion of this Franchise shall be held to be
invalid, such invalidity shall not affect the validity of the remaining portions of this Franchise,
which shall continue in full force and effect. The headings of sections and paragraphs of this
Franchise are for convenience of reference only and are not intended to restrict, affect or be of
any weight in the interpretation or construction of the provisions of such sections or paragraphs.
16.2 This Franchise is subject to the requirements of any and all applicable laws, rules,
and regulations, including the Whatcom County Code, as currently enacted or hereafter
modified. In the event of any actual conflict between the provisions of this Franchise and the
requirements of the Whatcom County Code or County -enacted rules or regulations, the
provisions of this Franchise shall control, to the extent authorized by law.
16.3 All notices, demands, requests, consents and approvals which may, or are required
to be given by any party to any other party hereunder, shall be in writing and shall be deemed to
have been duly given if delivered personally, sent by facsimile, sent by a nationally recognized
overnight delivery service, or if mailed or deposited in the United States mail and sent by
registered or certified mail, return receipt requested, postage prepaid to:
For County: County Executive
Whatcom County Courthouse.
311 Grand Ave.
Bellingham, WA 98225
For Northwest Water: President
Northwest Water Association
5168 Graveline Road
Bellingham, WA 98226
or to such other address as the foregoing parties hereto may from time -to -time designate in
writing and deliver in a like manner. All notices shall be deemed complete upon actual receipt or
refusal to accept delivery. Facsimile transmission of any signed original document, and
retransmission of any signed facsimile transmission shall be the same as delivery of an original
document.
Page 12
16.4 No failure by any of the foregoing parties to insist upon the strict performance of
any covenant, duty, agreement, or condition of this Franchise or to exercise any right or remedy
consequent upon a breach thereof shall constitute a waiver of any such breach or any other
covenant, agreement, term or condition. No waiver shall affect or alter this Franchise, and each
and every covenant, agreement, term and condition of this franchise shall continue in full force
and effect with respect to other then existing or subsequent breach thereof.
Section 17. Incorporation and Annexation.
17.1 Whenever any part of the Franchise Area, 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 of the Franchise Area
not so included in city or town limits.
Section 18. Insurance.
18.1 During the term of this Franchise Northwest Water shall keep in effect, a liability
insurance policy covering all liability of Northwest Water to the County, including any assumed
by contract between Northwest Water and any other party, with limits at least in the amount of
$1,000,000. In lieu of the insurance requirement of this Section, Northwest Water may self -
insure against such risks. At the time of Northwest Water's acceptance of this Franchise and
otherwise upon the County's request, Northwest Water shall provide the County with
certificate(s) of insurance or evidence of self-insurance reflecting the requirements of this
section.
Section 19. Forfeiture and Termination of Franchise.
19.1 If Northwest Water shall willfully violate or fail, through willful or unreasonable
neglect, to comply with any of the provisions of this Franchise for sixty (60) days after receipt of
written notice from the County, then the County shall have the right by ordinance to declare
Northwest Water's forfeiture of all rights hereunder and to declare this Franchise terminated and
of no further force or effect thereafter; provided, however, if any failure to comply with this
Franchise by Northwest Water cannot be corrected with due diligence within said sixty (60) day
period (Northwest Water's obligation to comply and to proceed with due diligence being subject
to unavoidable delays and events beyond its control), then the time within which Northwest
Water may so comply shall be extended for such time as may be reasonably necessary and so
long as Northwest Water commences promptly and diligently to effect such compliance.
Section 20. Effective Date.
20.1 This Ordinance shall be effective ten (10) days after being signed by the County
Executive, with the Franchise granted hereunder finally effective pursuant to the terms of
Sections 13.1, 13.1.1, and 13.1.2, having been: (i) introduced to the County Council not less
than thirteen (13) days before its passage; (ii) brought to public notice by such notice having
been posted in three (3) public places in Bellingham at least fifteen (15) days before the day
fixed for the public hearing; (iii) published at least twice in the official newspaper for the County
and no later than five (5) days prior to the day fixed for the hearing and as otherwise required by
law; and (iv) passed at a regular meeting of the legislative body of the County of Whatcom by a
Page 13
vote of at least 6 members of the County Council on July 23 , 2019.
ADOPT , q,t�j�,23� day of July , 2019.
ATTEST;
a� Aw
Dana Browri�[7 y s, i 14k of the- ouncil
WHATCW COUNTY COUNCIL
WHATGMACOUATY, WASHINGTON
Rud
APPROVED AS,TO=FORM: ,Approved
Civil Deputy Prosecutor Jack Louws,
Page 14
Council Chair
N
Denied
Exhibit A
ACCEPTANCE OF FRANCHISE
Northwest Water Association.
The Whatcom County Council at its meeting of July 23, 2019, adopted Ordinance
2019-052 approving the application for franchise filed by Northwest Water
Association. The petition and all related documents are available for review in the
Council Office as file number AB2019-347.
Northwest Water Association hereby accepts, subject to all the conditions contained
in Ordinance 2019-052, that certain non-exclusive franchise to construct, erect,
alter, lay, support, connect, improve, renew, replace, repair, operate and maintain
water transmission and distribution facilities upon, under, over, across and along
certain roads and other areas in Whatcom County, Washington. The previous
franchises granted to Northwest Water Association that pertain to water lines for
the provision of water services shall be terminated and be replaced by this
franchise.
This ordinance of Whatcom County grants to Northwest Water Association a
franchise, and the right, privilege, and authority thereunder, to locate, set, erect,
lay, construct, extend, support, attach, connect, maintain, repair, replace, enlarge,
operate and use facilities in, upon, over, under, along, across and through the
franchise area to allow for the provision of water services. The Franchise Area
means all public county roads, county public ways, and county property now owned
or hereafter dedicated to the County within Sections 33, 34, and 35, Township 39
North, Range 2 East of W.M., and Sections 2 and 3, Township 38 North, Range 2
East of W.M. in Whatcom County, Washington as may hereafter be amended and
attached hereto. In addition any portion of Smith Road, Northwest Drive, Waschke
Road, Aldrich Road, Slater Road, and Pacific Highway outside of the previous
described area.
Granting of this franchise becomes official upon receipt from the petitioner of this
signed and notarized document, and payment by petitioner of publication costs
incurred by the County Council Office.
This franchise, when granted, shall be in effect for a period of twenty-five (25)
years.
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WHATCMCOUN�PNOL
WHATCCOUN,CSHINGTON
Rud Bvbwne
Council Chair
Agent for the petitioner, Northwest Water Association, Inc.:
Date:
State of Washington )
) ss.
County of Whatcom )
Signed and sworn to before me on this 2_Ohday of 1 1011,i.�'i 2019, by
(Agent fp,�ner)
Ni 1i
—v'i � •0 �,®�,� � to
IC
GygSHING�O
Notary Public in and for the State of Washington,
resi d i n g at \AC/1�T,�
My notary commission expires Q It -�5 1=1
Effective Date of this franchise: P/ q 1 "?Olq