HomeMy WebLinkAboutord2021-001Whatcom County COUNTY COURTHOUSE
311 Grand Avenue, Ste #105
` Bellingham, WA 98225-4038
(360) 778-5010
Agenda Bill Master Report
File Number: AB2020-553
File ID: AB2020-553 Version: 1 Status: Adopted
File Created: 11/18/2020 Entered by: AHester@co.whatcom.wa.us
Department: Public Works File Type: Ordinance Requiring a Public Hearing
Department
Assigned to: Council Final Action: 01/12/2021
Agenda Date: 01/12/2021 Enactment #: ORD 2021-001
Primary Contact Email: Sdraper@co.whatcom.wa.us
TITLE FOR AGENDA ITEM:
Ordinance granting City of Lynden a non-exclusive franchise for an industrial condensate pipeline
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
an industrial condensate pipeline
HISTORY OF LEGISLATIVE FILE
Date: Acting Body:
Action:
Sent To:
12/08/2020 Council INTRODUCED FOR PUBLIC Council
HEARING
Aye: 7 Browne, Buchanan, Byrd, Donovan, Frazey, Elenbaas, and Kershner
Nay: 0
Absent: 0
01/12/2021 Council ADOPTED
Aye: 6 Browne, Buchanan, Byrd, Frazey, Elenbaas, and Kershner
Nay: 0
Absent: 0
Abstain: 1 Donovan
Whatcom County Page 1 Printed on 111312021
Agenda Bill Master Report Continued (AB2020-553)
Attachments: Memo, Ordinance.pdf
Whatcom County Page 2 Printed on 111312021
Whatcom County, WA 2021.0204845
Total:$118.50 Pgs=16
ORD 02/26/2021 09:09 AM
Request of: WHATCOM COUNTY COUNCIL
'I'II"III) I'I�II'I'lII'll (I'I� I'I'I���' III'�"II
00270724202102048460160162
RETURN DOCUMENT TO:
CATHY HALKA
WHATCOM COUNTY
COUNCIL OFFICE
DOCUMENT TITLE(S): FRANCHISE
Ordinance No. 2021-001 granting the City of Lynden a non-exclusive franchise to locate, set,
erect, lay, construct, extend, support, attach, connect, maintain, repair, replace, enlarge,
operate and use an industrial condensate pipeline.
REFERENCE NUMBER(S) OF DOCUMENTS ASSIGNED OR RELEASED:
Ordinance Number; 2021-001
Additional reference numbers found on page of document.
GRANTOR(S):
Whatcom County
Additional grantors found on page of document.
GRANTEE(S):
City of Lynden
Additional grantees found on page of document.
ABBREVIATED LEGAL DESCRIPTION (Lot, block, plat, or section, township, range)
Hannegan Road between Nooksack River and Riverview Road within Section 20,
Township 40 North, Range 3 East of W.M. in Whatcom County, WA
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. 2021-001
GRANTING THE CITY OF LYNDEN 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 AN INDUSTRIAL CONDENSATE PIPELINE IN, UPON, OVER, UNDER, ALONG, ACROSS
AND THROUGH THE FRANCHISE AREA.
WHEREAS, The City of Lynden (hereinafter referred to as "Lynden"), 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, Lynden seeks a non-exclusive twenty-five (25) year franchise to construct,
erect, alter, lay, support, connect, improve, renew, replace, repair, operate and maintain an
industrial condensate pipeline upon, under, over, across and along certain roads and other
areas in Whatcom County, Washington; and
WHEREAS, the application of Lynden has come on regularly to be heard by the County
Council on thel2th day of January , 2021 and notice of this hearing having been duly
published on the 20th day of December, 2020 and the 3rd day of January , 2021 , 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
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 Lynden, which shall be and become effective as set forth in
Section 13 thereof:
Page 1
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 "Lynden" means the City of Lynden, and its successors and assigns.
1.1.3 "Franchise Area" means Hannegan Road between Nooksack River and
Riverview Road within Section 20, Township 40 North, Range 3 East of W.M. in Whatcom
County, Washington as may hereafter be amended and attached hereto.
1.1.4 "Facilities" means, collectively, an industrial condensate pipeline 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?021-001, which sets forth the terms and
conditions of this Franchise.
1.1.6 "Right -of -Way" means 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" means to protect, support, temporarily disconnect, relocate
and/or remove Lynden Facilities within or from within the County right-of-way.
Section 2. Facilities Within Franchise Area.
2.1 The County does hereby grant to Lynden a Franchise, and the right, privilege, and
authority thereunder, to construct, erect, alter, lay, support, connect, improve, renew, replace,
repair, operate and maintain all necessary equipment and Facilities, 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, Lynden'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
Page 2
Facilities within the Franchise Area, Lynden 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 Lynden proceeds to install new Facilities without first obtaining the County Engineer's
determination that the proposed location of the Facilities will not 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 Lynden which shall, at its own expense, act promptly to rectify the problem in
consultation with the County. Lynden 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 Lynden by such County codes and ordinances.
4.2 Lynden'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 Lynden which shall, at its own expense, act promptly to rectify the problem in consultation
with the County. Lynden 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 Lynden
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 Lynden shall have preference as to the positioning and location of such utilities so
installed with respect to Lynden. Such preference shall continue in the event of the necessity of
relocating or changing the grade of the Franchise Area. Lynden shall have such preference as
to owners of all utilities, public or private, initially installed in the Franchise Area subsequent in
time to Lynden's Facilities.
4.4 The locating, laying, construction, operation and maintenance of Lynden'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 Lynden's
Page 3
Facilities, provided that Lynden and the County shall first check with the locator service to
determine whether or not any of Lynden's lines are located in the proposed work area. Upon
finding from the locator service that Lynden does have lines located within the proposed work
area, the County shall provide Lynden with seventy-two (72) hours notice of proposed work,
except if a lesser time for notice is warranted by emergency, in order that the Lynden may
protect its Facilities. Failure of Lynden to properly notify the locator service of the location of its
lines and Facilities shall relieve County of its duty to provide Lynden the otherwise -required
advance notice of proposed work.
4.5 Lynden 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,
Lynden shall provide a clear zone of five (5) feet on all sides of such above -ground Facilities. If
Lynden fails to comply with this provision, and by its failure, property is damaged, then Lynden
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, Lynden 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
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 Lynden first securing a
written permit from the County Engineer, including approval endorsed on one set of plans and
specifications returned to Lynden. All such work shall be subject to the approval of and shall
pass the inspection of the County Engineer. Lynden 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 Lynden'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, Lynden shall
be governed by and conform to the general rules adopted by the County Engineer; and Lynden
Page 4
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. Lynden 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 Lynden or its agents in a condition
dangerous to life or property, and Lynden upon demand shall pay to the County all costs of such
work, the County having first provided notice of such condition to Lynden and a reasonable time
to cure such unsafe condition, provided however, in the event of damage to the Franchise Area
caused by Lynden that necessitates immediate repair by the County or its agents on an
emergency basis where notice to Lynden 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 Lynden.
5.4 In preparing plans and specifications for the installation of Facilities within the
Franchise Area, Lynden shall reasonably conform to the standards and specifications
established by the County Engineer. Lynden shall consult with the County Engineer in case it
plans to deviate from the established standards and specifications in the course of 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 Lynden 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, Lynden 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, Lynden 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). Lynden 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 Lynden.
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,
Lynden shall reference all such monuments and markers. The reference points shall be so
located that they will not be disturbed during Lynden'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
Page 5
Engineer. The cost of monuments or other markers lost, destroyed, or disturbed, and the
expense of replacement by approved monuments shall be borne by Lynden. 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 Lynden 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. Lynden 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 Lynden, such relocation or adjustment of Lynden's
Facilities will not impede or delay pending changes to the Franchise Area.
6.2 Lynden 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 Lynden of
such alternatives in writing, the County shall evaluate such alternatives and shall advise Lynden
in writing if one or more of such alternatives are suitable to accommodate the work that would
otherwise necessitate relocation of Lynden's Facilities. In evaluating such alternatives, the
County shall give each alternative proposed by Lynden 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, Lynden 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) Lynden from future relocation or adjustment of Lynden'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 Lynden's Facilities to
accommodate the work of such person or entity within the Franchise Area, or whenever the
County requires the relocation of Lynden's Facilities within the Franchise Area for the benefit of
any person or entity other than the County, then Lynden shall have the right as a condition of
such relocation to require such person or entity to:
6.3.1 Make payment to Lynden, at a time and upon terms acceptable to Lynden,
which acceptance shall not be unreasonably withheld, for any and all costs and expenses
incurred by Lynden in the relocation of Lynden's Facilities; and
6.3.2 Indemnify and save Lynden 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 Lynden's Facilities, to the extent such injury or damage
is caused by the negligence of the person or entity requesting the relocation of Lynden's
Facilities or the negligence of the agents, servants or employees of the person or entity
requesting the relocation of Lynden's Facilities.
6.4 Any condition or requirement imposed by the County upon any person or entity,
other than Lynden or the County (including, without limitation, any condition or requirement
Page 6
imposed pursuant to any contract or in conjunction with approvals or permits for zoning, land
use, construction or development) which requires the relocation of Lynden's Facilities shall be a
required relocation for purposes of Section 6.3; provided, however:
6.4.1 If the County notifies Lynden 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 Lynden shall relocate its Facilities within the Franchise Area in
accordance with Section 6.1.
6.4.2 If the County notifies Lynden 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 Lynden agrees to bear a portion of its costs and expenses to relocate its Facilities
to accommodate such grading or widening, such portion borne by Lynden 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 Lynden exceed the
dollar amount of such County Contribution. "Project" shall mean that work directly bearing on
the area that necessitates relocation by Lynden, 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,
Lynden shall have the right as a condition of such relocation to require such person or entity to
pay to Lynden all relocation costs and expenses in excess of the portion borne by Lynden 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 Lynden 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 Lynden 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 Lynden 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, Lynden shall defend, indemnify and hold the County
harmless from any and all claims, demands, suits, actions, costs and expenses, including but
not limited to reasonable 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 Lynden, its agents, servants or employees in exercising the rights
granted to Lynden 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 Lynden
thereof, and Lynden 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
Page 7
begun against the County based upon any such claim or demand, the County shall likewise
promptly notify Lynden thereof, and Lynden 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 Lynden and the County, Lynden 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,
Lynden shall fully satisfy said judgment within ninety (90) days after said suit or action shall have
finally been determined. Upon Lynden'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 Lynden 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 Lynden proposes to acquire easements for the location or
relocation of its Facilities outside of, and adjacent to the Franchise Area, Lynden shall notify the
County of the same and the County shall have the option, with the concurrence of Lynden, to
acquire in place of such Lynden proposed easements, additional public rights -of -way or
equivalent public utility easements for use by Lynden. 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 Lynden's use of such public utility easements shall be subject to the terms and
conditions of such public utility easements.1 This section applies only to easement granted to
transmission lines; it does not apply to easements granted for new customer service lines.
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 Lynden, 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 Lynden allegedly incurred by reason of such termination.
Nothing herein shall limit or prevent Lynden from exercising its powers of eminent domain.
Should Lynden 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.
1 A distinction is drawn here between public rights -of -way which are or shad I become Franchise Area and thus
governed by the terms of the franchise ordinance, and public uti I i ty easements which shad I not become Franchise
Area, the use of which shai I be governed by the terms and conditions of the easements themselves and not by the
franchi se ordinance.
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
Lynden, reserve an easement to Lynden for Lynden'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 Lynden for the temporary
adjustment of Lynden'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 Lynden, not less than fourteen (14) days prior to the moving or removal
of such building or other object. In such event, Lynden 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 Lynden 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, Lynden shall
have no rights under this Franchise nor shall Lynden be bound by the terms and conditions of
this Franchise unless Lynden 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
Page 9
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 Lynden 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, Lynden shall be deemed to have rejected the same.
In case of Lynden's 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 Lynden 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 Lynden, 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 Lynden 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 Lynden 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
Page 10
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 Lynden, 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:
Page 11
For County: County Executive
Whatcom County Courthouse.
311 Grand Ave.
Bellingham, WA 98225
For Lynden Mayor
City of Lynden
300 4t" Street
Lynden, WA 98264
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.
18.1 During the term of this Franchise Lynden shall keep in effect, a liability insurance
policy covering all liability of Lynden to the County, including any assumed by contract between
Lynden and any other party, with limits at least in the amount of $2,000,000. In lieu of the
insurance requirement of this Section, Lynden may self -insure against such risks. At the time of
Lynden's acceptance of this Franchise and otherwise upon the County's request, Lynden 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 Lynden 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 Lynden'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 Lynden
cannot be corrected with due diligence within said sixty (60) day period (Lynden's obligation to
Page 12
comply and to proceed with due diligence being subject to unavoidable delays and events
beyond its control), then the time within which Lynden may so comply shall be extended for such
time as may be reasonably necessary and so long as Lynden 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 leasta majority of members of the County Council on January 12th , 20ML
�REQT AD.�
toi.s 12th day of January 2p28.21
A,_ v _
WHATCOM COUNTY COUNCIL
A T TT T �ti a �, f WHATCOM COUNTY, WASHINGTON
Dana Brown Davis, G1erk of the Council iB achanan, Council Chair
APPROVED AS TO FORM: Approved
Satpal Singh Sidhu, County Executive
Christopher Quinn
Civil Deputy Prosecutor
(authorized via email 11/10/2020
Page 13
( ) Denied
Exhibit A
ACCEPTANCE OF FRANCHISE
Citv of Lynden
The Whatcom County Council at its meeting of January 12, 2021, adopted
Ordinance 2021-001 approving the application for franchise filed by the City of
Lynden. The petition and all related documents are available for review in the
Council Office as file number AB2020-553.
The City of Lynden hereby accepts, subject to all the conditions contained in
Ordinance 2021-001, that certain non-exclusive franchise to locate, set, erect, lay,
construct, extend, support, attach, connect, maintain, repair, replace, enlarge,
operate and use an industrial condensate pipeline. The franchise area is Hannegan
Road between Nooksack River and Riverview Road within Section 20, Township 40
North, Range 3 East of W.M. in Whatcom County, Washington.
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.
'cGz��isFa�f
/ U �
ATTtST '`' \'
G t"'���� ate=
b ��
Dana.,Brown b`aivis
�
Clerk"Of. the Cou�" ncil'`
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
'Barry �uchanan
Chair Couh1
Agent for the petitioner, Catherine Moore:
T� f 2 l 22-o 2
Date:
State of Washington )
ss.
County of Whatcom )
Signed and sworn to before me on this day of 2021, by
� Paz'
(Agent for petitioner)
Notary Public in and for the 5fAta of Washington,
residing at Zejlln a r, "yq ,
My notary commission expires _�-q Q-9
Effective Date of this franchise: January 22, 2021