HomeMy WebLinkAboutord2020-057File ID: AB2020-310
File Created: 07/21/2020
Department: Public Works
Department
Assigned to: Council
Agenda Date: 11/10/2020
Whatcom County
Agenda Bill Master Report
File Number: AB2020-310
COUNTY COURTHOUSE
311 Grand Avenue, Ste #105
Bellingham, WA 98225-4038
(360) 778-5010
Version: 1 Status: Substitute Adopted
Entered by: AHester@co.whatcom.wa.us
File Type: Ordinance Requiring a Public Hearing
Primary Contact Email: Sdraper@co.whatcom.wa.us
TITLE FOR AGENDA ITEM:
Final Action: 11/10/2020
Enactment #: ORD 2020-057
Ordinance granting Gordon Montgomery and John Milobar, a non-exclusive franchise for the provision
of sewer 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 and presence in County Rights -of -Way for
the provision of sewer services
HISTORY OF LEGISLATIVE FILE
Date: Acting Body:
Action:
Sent To:
08/05/2020 Council INTRODUCED FOR PUBLIC Council
HEARING
Aye: 6 Browne, Buchanan, Byrd, Donovan, Frazey, and Elenbaas
Nay: 1 Kershner
Absent: 0
10/27/2020 Council HEARD PUBLIC Council
TESTIMONY AND HELD IN
COUNCIL
Aye: 7 Browne, Buchanan, Byrd, Donovan, Frazey, Elenbaas, and Kershner
Nay: 0
Absent: 0
Whatcom County Page 1 Printed on 1111212020
Agenda Bill Master Report Continued (AB2020-310)
11/10/2020 Council SUBSTITUTE ADOPTED
Aye: 7 Browne, Buchanan, Byrd, Donovan, Frazey, Elenbaas, and Kershner
Nay: 0
Absent: 0
Attachments: Staff Memo, Proposed ordinance, Substitute Ordinance for 11-10, Substitute Ordinance for 11-10
tracked changes
Whatcom County Page 2 Printed on 1111212020
Whatcom County, WA 2020-1202777
Total:$119.50 Pgs=17
FRAN 12/15/2020 03:19 PM
Request of: WHATCOM COUNTY COUNCIL
IIIIIIIIII 1111111111111111111111 III11111 IN 11111
00257348202012027770170178
RETURN DOCUMENT TO:
CATHY HALKA
WHATCOM COUNTY
COUNCIL OFFICE
DOCUMENT TITLE(S): FRANCHISE
Ordinance No. 2020-057 granting Gordon Montgomery and John Milobar a franchise,
and the right, privilege, and authority thereunder, to construct, operate, maintain,
replace, and use all necessary equipment and facilities for a sanitary sewer main, in,
under, on, across, over, through, along, or below the public rights -of -way located in
the Franchise Area. (AB2020-310)
REFERENCE NUMBER(S) OF DOCUMENTS ASSIGNED OR RELEASED:
Ordinance Number: 2020-057
Additional reference numbers found on page _ of document.
GRANTOR(S):
Whatcom County
Additional grantors found on page _ of document.
GRANTEE(S):
GORDON MONTGOMERY AND JOHN MILOBAR
Additional grantees found on page of document.
ABBREVIATED LEGAL DESCRIPTION (Lot, block, plat, or section, township, range)
That portion of Semiahmoo Drive extending southerly from Shearwater Road 2,000
feet and located in Township 40 North, Range 1 West, Sections 10 and 15.
Additional legal description can be found on page ___ of document.
ASSESSOR'S PARCEL NUMBER:
None - roads
SPONSORED BY:
PROPOSED BY: Executive
INTRODUCTION DATE:
ORDINANCE NO. 2020-057
GRANTING GORDON MONTGOMERY AND JOHN MILOBAR 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 SEWER SERVICES.
WHEREAS, Gordon Montgomery and John Milobar ("Applicants") have 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, Applicants seek a non-exclusive twenty-five (25) year franchise to
construct, erect, alter, lay, support, connect, improve, renew, replace, repair, operate and
maintain a sanitary sewer main upon, under, over, across and along certain roads and other
areas in Whatcom County, Washington; and
WHEREAS, Applicants seek this franchise to facilitate compliance with Whatcom County
Development requirements related to their proposed development of the Ridge at Semiahmoo
("Project"); and
WHEREAS, Whatcom County Public Works has consider the appropriateness of
granting a franchise based upon the express understanding that Applicants, or their assignees,
will pursue final plat approval related to the Ridge at Semiahmoo prior to the County Planning
deadlines for currently set for such approval;
WHEREAS, Gordon Montgomery and John Milobar and Whatcom County agree that any
rights granted under a franchise granted herein would not extend past January 18, 2023 unless
and until the Project has received final plat approval from Whatcom County; and
WHEREAS, the application of Gordon Montgomery and John Milobar having come on
regularly to be heard by the County Council on the 10thday of November , 2020, and notice of
this hearing having been duly published on the iith day of October , 2020, and the lath day
of October , 2020, 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
Page 1
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
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 Gordon Montgomery and John Milobar (hereinafter "Grantees"),
which shall be and become effective as set forth in Section 13 of this agreement:
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 "Franchise Area" means that portion of Semiahmoo Drive extending
southerly from Shearwater Road 2,000 feet more or less as depicted on Figure 1.
1.1. 3 "Facilities" means, collectively, any and all sewer 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.
1.1.4 "Grantees" means Gordon Montgomery and John Milobar, and their
successors and assigns.
1.1.5 "Ordinance" means Ordinance No. 2020-057 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 Grantees' facilities within or from within the County
right-of-way.
Section 2. Facilities Within Franchise Area.
2.1 The County does hereby grant to Grantees a Franchise, and the right, privilege, and
authority thereunder, to construct, operate, maintain, replace, and use all necessary equipment
and facilities for a sanitary sewer main, in, under, on, across, over, through, along, or below the
public rights -of -way located in the Franchise Area.
Page 2
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, Grantees' 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, Grantees 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 Grantees proceed 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 Grantees which shall, at its own expense, act promptly to rectify the problem in
consultation with the County. Grantees 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 Applicant by such County codes and ordinances.
4.2 Grantees' 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 a determination by the County that the placement of particular
Facilities unreasonably interferes with free or safe passage of traffic, the County shall notify
Grantees which shall, at its own expense, act promptly to rectify the problem in consultation with
the County. Grantees 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
Grantees by such County codes and ordinances.
Page 3
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 Grantees shall have preference as to the positioning and location of such utilities so
installed with respect to Grantees. Such preference shall continue in the event of the necessity
of relocating or changing the grade of the Franchise Area. Grantees shall have such preference
as to owners of all utilities, public or private, initially installed in the Franchise Area subsequent in
time to Grantees' Facilities.
4.4 The locating, laying, construction, operation and maintenance of Grantees' 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 Grantees'
Facilities, provided that Grantees' and the County shall first check with the locator service to
determine whether or not any of Grantees' lines are located in the proposed work area. Upon
finding from the locator service that Grantees do have lines located within the proposed work
area, the County shall provide Grantees with seventy-two (72) hours notice of proposed work,
except if a lesser time for notice is warranted by emergency, in order that the Grantees may
protect its Facilities. Failure of Grantees to properly notify the locator service of the location of
its lines and Facilities shall relieve County of its duty to provide Grantees the otherwise -required
advance notice of proposed work.
4.5 Grantees 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,
Grantees shall provide a clear zone of five (5) feet on all sides of such above -ground Facilities. If
Grantees fail to comply with this provision, and by its failure, property is damaged, then
Grantees 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, Grantees shall 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
Page 4
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 Grantees first securing a
written permit from the County Engineer, including approval endorsed on one set of plans and
specifications returned to Grantees. All such work shall be subject to the approval of and shall
pass the inspection of the County Engineer. Grantees 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 Grantees'
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, Grantees
shall be governed by and conform to the general rules adopted by the County Engineer; and
Grantees 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. Grantees 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 Grantees or its agents in a
condition dangerous to life or property, and Grantees shall, upon demand, pay to the County all
costs of such work, the County having first provided notice of such condition to Grantees and
allowing Grantees a reasonable time to cure such unsafe condition, provided however, in the
event of damage to the Franchise Area caused by Grantees that necessitates immediate repair
by the County or its agents on an emergency basis where notice to Grantees 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 Grantees .
5.4 In preparing plans and specifications for the installation of Facilities within the
Franchise Area, Grantees shall reasonably conform to the standards and specifications
established by the County Engineer. Grantees shall consult with the County Engineer if
Grantees plan to deviate from the established standards and specifications in the course of
installing Facilities within the Franchise Area and shall 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 Grantees 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, Grantees 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
Page 5
precautions to guard against 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,
Grantees 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). Grantees
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 Grantees .
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,
Grantees shall reference all such monuments and markers. The reference points shall be so
located that they will not be disturbed during Grantees' 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 Grantees. 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 Grantees shall, at their 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
reasonably necessary for safety purposes. Grantees 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 Grantees, such relocation or adjustment of
Grantees' Facilities will not impede or delay pending changes to the Franchise Area.
6.2 Grantees 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 Grantees of
such alternatives in writing, the County shall evaluate such alternatives and shall advise
Grantees in writing if one or more of such alternatives are suitable to accommodate the work
that would otherwise necessitate relocation of Grantees' Facilities. In evaluating such
alternatives, the County shall give each alternative proposed by Grantees 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, Grantees shall 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) Grantees from future relocation or adjustment of Grantees' 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 Grantees' Facilities to
accommodate the work of such person or entity within the Franchise Area, or whenever the
County requires the relocation of Grantees' Facilities within the Franchise Area for the benefit of
Page 6
any person or entity other than the County, then Grantees shall have the right as a condition of
such relocation to require such person or entity to:
6.3.1 Make payment to Grantees , at a time and upon terms acceptable to
Grantees , which acceptance shall not be unreasonably withheld, for any and all costs and
expenses incurred by Grantees in the relocation of Grantees' Facilities; and
6.3.2 Indemnify and save Grantees 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 Grantees' Facilities, to the extent such
injury or damage is caused by the negligence of the person or entity requesting the relocation of
Grantees' Facilities or the negligence of the agents, servants or employees of the person or
entity requesting the relocation of Grantees' Facilities.
6.4 Any condition or requirement imposed by the County upon any person or entity,
other than Grantees 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 Grantees' Facilities shall be
a required relocation for purposes of Section 6.3; provided, however:
6.4.1 If the County notifies Grantees 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 Grantees shall relocate its Facilities within the Franchise Area
in accordance with Section 6.1.
6.4.2 If the County notifies Grantees 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 Grantees agree to bear a portion of its costs and expenses to relocate its
Facilities to accommodate such grading or widening, such portion borne by Grantees 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 Grantees
exceed the dollar amount of such County Contribution. "Project" shall mean that work directly
bearing on the area that necessitates relocation by Grantees, 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,
Grantees shall have the right as a condition of such relocation to require such person or entity
to pay to Grantees all relocation costs and expenses in excess of the portion borne by Grantees
under this Section 6.4.2.
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 Grantees 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 Grantees shall be kept in conjunction with the encroachment permit issued by
the County for the work of relocation.
Page 7
6.5 Nothing in this Section 6 shall require Grantees 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, Grantees 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 Grantees , its agents, servants or employees in exercising the rights
granted to Grantees 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 Grantees
thereof, and Grantees 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 Grantees thereof, and Grantees 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 Grantees and the County,
Grantees 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, Grantees shall fully satisfy said judgment within ninety (90) days after said suit or action
shall have finally been determined. Upon Grantees' 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 Grantees at the time of
completion shall not be grounds for avoidance of the covenant in Section 7.1 above.
Section 8. Acquisition of Right -of -Way.
8.1 In the event that Grantees propose to acquire easements for the location or
relocation of its Facilities outside of, and adjacent to the Franchise Area, Grantees shall notify
the County of the same and the County shall have the option, with the concurrence of Grantees,
to acquire in place of such Grantees proposed easements, additional public rights -of -way or
equivalent public utility easements for use by Grantees . 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 Grantees' use of such public utility easements shall be subject to the terms
and conditions of such public utility easements.
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 use by the County, in either its proprietary or governmental
E
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 Grantees , 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 Grantees allegedly incurred by reason of such
termination. Nothing herein shall limit or prevent Grantees from exercising its powers of eminent
domain. Should Grantees 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
Grantees , reserve an easement to Grantees for Grantees' 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 Grantees for the temporary
adjustment of Grantees' 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 Grantees, not less than fourteen (14) days prior to the moving or
removal of such building or other object. In such event, Grantees 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.
11.1 Grantees and the County acknowledge and commit to full compliance 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 shal
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.
Page 9
13.1 Except as otherwise provided herein, the Franchise 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, that any rights granted under the Franchise shall automatically terminate on January
18, 2023 unless Grantees, or Grantees' assignees, have received final plat approval for the
Ridge at Semiahmoo Long Subdivision (LSS2010-00001, SEP 2010-00019) and provided
written proof of said plat approval to Whatcom County no later than January 18, 2023.
13.1.1 Grantees shall have no rights under this Franchise nor shall Grantees be bound
by the terms and conditions of this Franchise unless Grantees have, within thirty (30)
days after the effective date of the Ordinance, filed 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 Grantees 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, Grantees shall be deemed to have rejected the
same. In case of Grantees' tardy acceptance of franchise, the County's recognition thereof shall
be strictly at its discretion.
13.2 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.
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 Grantees 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 Grantees , 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 Grantees 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
Page 10
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 Grantees 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
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 Grantees, 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.
Page 11
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 Grantee: Gordon and Doreen Montgomery
8741 Semiahmoo Dr.
Blaine, WA 98230
John Milobar
415-2366 Wall St.
Vancouver, B.C. V5L4Y1
Canada
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.
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.
Page 12
18.1 During the term of this Franchise Grantees, its successors and assigns, shall
maintain and keep in effect, a liability insurance policy covering all liability of Grantees to the
County, including any assumed by contract between Grantees and any other party, with limits at
least in the amount of $2,000,000. In lieu of the insurance requirement of this Section, Grantees
may self -insure against such risks. At the time of Grantees' acceptance of this Franchise and
otherwise upon the County's request, Grantees 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 Grantees 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 Grantees'
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 Grantees
cannot be corrected with due diligence within said sixty (60) day period (Grantees' obligation to
comply and to proceed with due diligence being subject to unavoidable delays and events
beyond its control), then the time within which Grantees may so comply shall be extended for
such time as may be reasonably necessary and so long as Grantees 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
vote of at least 7 - 0 members of the County Council on November loth 2020.
�e�tgo�ss6rr®�d
10th day of November
:,DanayBrcawn �lav�s, ClerkLof the Council
3 �E �
A11 PROVED A$ TO ,FORM:
Christopher Quinn
Civil Deputy Prosecutor
(authorized via email: 11/4/2020)
, 2020.
WHATCOM COUNTY COUNCIL
Approved
( ) Denied
Satpal Singh S hu, County Executive
Page 13
Date Signed 11/16/2020
Exhibit A
ACCEPTANCE OF FRANCHISE
Gordon Montgomery and John Milobar
The Whatcom County Council at its meeting of November 10, 2020, adopted Ordinance -
2019-057 approving the application for franchise filed by Gordon Montgomery and
John Milobar. The petition and all related documents are available for review in the
Council Office as file number AB2020-310.
Gordon Montgomery and John Milobar hereby accepts, subject to all the conditions
contained in Ordinance 2020-057, that certain non-exclusive franchise to
construct, erect, alter, lay, support, connect, improve, renew, replace, repair, operate
and maintain a sanitary sewer main upon, under, over, across and along certain roads
and other areas in Whatcom County, Washington.
This ordinance of Whatcom County grants to Gordon Montgomery and John Milobar
a franchise, and the right, privilege, and authority thereunder, to construct, operate,
maintain, replace, and use all necessary equipment and facilities for a sanitary sewer
main, in, under, on, across, over, through, along, or below the
public rights -of -way located in the Franchise Area. The Franchise Area means that
portion of Semiahmoo Drive extending southerly from Shearwater Road 2,000 feet
more or less as depicted on Figure 1 of Ordinance 2020-057.
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, zwhofro granted, shall be in effect for a period not to exceed twenty-five
(25) years, a`nd subji 'to all terms, conditions, and limitations of the franchise.
e �s
WHATCOM COUNTY COUNCIL
ATT HATCOM COUNTY, WA INGTON
Dana���rown�pauiip_�
BarrO'hanan
Clerk of the Council CouChair
o<.
Agent for the petitioner, Gordon Montgomery and John Milobar:
Date:L1'1�1 {:I i7� 2-0
State of Washington )
ss.
County of Whatcom )
20
Signed and sworn to before me on this fast day of lfpl ccr,,�:r _, by
Dannon Traxler
(Agent for, OtRmq��
1.0
tp
444"
vie®1%
Antonia Oliver
Notary Public in and for the State of Washington,
residing at Bellingham
My notary commission expires 11-19-24
Effective Date of this franchise: November 26, 2020