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HomeMy WebLinkAboutord2025-033wli;ttcom County, WA ZOZJ-0900077 ToI31 $121.50 Pgs=19 FRAN 09/02/2025 01:59 PM Request of: WHATCOM COUNTY REAL ESTATE 111111111II II111111111111111111111111111111111111 00460490202609000770190196 RETURN DOCUMENT TO: WHATCOM COUNTY COUNCIL OFFICE 311 GRAND AVE SUITE 105 BELLINGHAM, WA 98225 DOCUMENT TITLE(S): FRANCHISE Ordinance No. 2025-033 granting Whatcom County Water District #2 a franchise and the right, privilege, and authority thereunder to locate, set, erect, lay, construct, extend, support, attach, connect, maintain, repair, replace, enlarge, operate and use facilities in, upon, over, under, along, across and through the franchise area to allow for the provision of water services. REFERENCE NUMBER(S) OF DOCUMENTS ASSIGNED OR RELEASED: Ordinance Number: 2025-033 Additional reference numbers found on page of document. GRANTOR(S): Whatcom County Additional grantors found on page of document. GRANTEE(S): Whatcom County Water District #2 Additional grantees found on page of document. ABBREVIATED LEGAL DESCRIPTION (Lot, block, plat, or section, township, range) The following public county roads, and county public ways: Alderwood Avenue, Bamboo Lane, Bancroft Road, Bayon Road, Boxwood Avenue, Cliffside Drive, Country Lane, Curtis Road, Cyclone Drive, Davis Street, Ft. Bellingham Road, Griffith Avenue, Howard Avenue, Hoff Road, Irving Road, Island View Drive, Jones Lane, Locust Road, Marine Drive, McAlpine Road, Mercer Avenue, Old Marine Drive, Olympic Avenue, Pence Avenue, Rural Avenue, Skagit Street, Van Horn Lane, Wynn Road in Whatcom County, Washington. Additional legal description can be found on page of document. ASSESSOR'S PARCEL NUMBER: None P�GpM Cq4 A H I N G�G� File ID: AB2025-420 File Created: 05/22/2025 Department: Public Works Department Assigned to: Council Agenda Date: 07/08/2025 Related Files: Whatcom County Agenda Bill Master Report File Number: AB2025-420 COUNTY COURTHOUSE 311 Grand Avenue, Ste #105 Bellingham, WA 98225-4038 (360) 778-5010 Version: 1 Status: 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: 07/08/2025 Enactment #: ORD 2025-033 Ordinance granting Whatcom County Water District #2 a franchise and the right, privilege, and authority thereunder to locate, set, erect, lay, construct, extend, support, attach, connect, maintain, repair, replace, enlarge, operate and use facilities in, upon, over, under, along, across and through the franchise area to allow for the provision of water services SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE: RCW 36.55.040, Whatcom County Charter Section 9.30, and Whatcom County Code 12.24 provides for the granting of franchise to public and private utility companies for use of County Rights -of -Way. This is a franchise allowing for the use and presence in County Rights -of -Way to allow for the provision of water services in Whatcom County HISTORY OF LEGISLATIVE FILE Date: Acting Body: Action: Sent To: 06/10/2025 Council INTRODUCED FOR PUBLIC Council HEARING Aye: 7 Buchanan, Byrd, Donovan, Elenbaas, Galloway, Scanlon, and Stremler Nay 0 07/08/2025 Council ADOPTED Aye 7 Buchanan, Byrd, Donovan, Elenbaas, Galloway, Scanlon, and Stremler Nay 0 Whatcom County Page 1 Printed on 71912025 Agenda Bill Master Report Continued (AB2025420) Attachments: Memo, Proposed Ordinance, Fact Sheet, Notice of Hearing 1 DISTRICT 2 After 6.10.2025 Whatcom County Page 2 Printed on 71912025 SPONSORED BY: PROPOSED BY: Executive INTRODUCTION DATE: ORDINANCE NO.2025-033 GRANTING WHATCOM COUNTY WATER DISTRICT #2 A FRANCHISE AND THE RIGHT, PRIVILEGE, AND AUTHORITY THEREUNDER TO LOCATE, SET, ERECT, LAY, CONSTRUCT, EXTEND, SUPPORT, ATTACH, CONNECT, MAINTAIN, REPAIR, REPLACE, ENLARGE, OPERATE AND USE FACILITIES IN, UPON, OVER, UNDER, ALONG, ACROSS AND THROUGH THE FRANCHISE AREA TO ALLOW FOR THE PROVISION OF WATER SERVICES. WHEREAS, Whatcom County Water District #2 (hereinafter referred to as "Water District #2"), 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, Water District #2 has operated a system of water mains and water distribution lines and other facilities within a portion of Whatcom County under a previous now expired franchise ordinance; WHEREAS, Water District #2 seeks a non-exclusive twenty-five (25) year franchise to construct, erect, alter, lay, support, connect, improve, renew, replace, repair, operate and maintain water transmission and distribution facilities upon, under, over, across and along certain roads and other areas in Whatcom County, Washington; and WHEREAS, the application of Water District #2 has come on regularly to be heard by the County Council on the 8th day of July 2025, and notice of this hearing having been duly published on the 15th day of June , 2025, and the 22nd day of June 2025, 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 Page 1 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 Water District #2, which shall be and become effective as set forth in Section 13 thereof: Section 1. Definitions. 1.1 Where used in this franchise agreement ("Franchise"), the following terms shall mean: 1.1.1 "County" means the County of Whatcom, apolitical subdivision of the State of Washington, and its successors and assigns. 1.1.2 "Water District #2" means Whatcom County Water District #2, and its successors and assigns. 1.1.3 "Franchise Area" means the following public county roads, and county public ways: Alderwood Avenue, Bamboo Lane, Bancroft Road, Bayon Road, Boxwood Avenue, Cliffside Drive, Country Lane, Curtis Road, Cyclone Drive, Davis Street, Ft. Bellingham Road, Griffith Avenue, Howard Avenue, Hoff Road, Irving Road, Island View Drive, Jones Lane, Locust Road, Marine Drive, McAlpine Road, Mercer Avenue, Old Marine Drive, Olympic Avenue, Pence Avenue, Rural Avenue, Skagit Street, Van Horn Lane, Wynn Road in Whatcom County, Washington or as may hereafter be amended and attached hereto. 1.1.4 "Facilities" means, collectively, any and all water transmission and distribution systems, including but not limited to tanks, meters, pipes, mains, services, valves, manholes, pressure reducing valves ("PRVs"), pump stations, meter stations and any and all other equipment, appliances, attachments, appurtenances and other items necessary, convenient, or in any way appertaining to any and all of the foregoing, whether the same be located over or under ground. 1.1.5 "Ordinance" means Ordinance No. 2025-033which 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 Water District #2 facilities within or from within the County right-of-way. Page 2 Section 2. Facilities Within Franchise Area. 2.1 The County does hereby grant to Water District #2 a Franchise, and the right, privilege, and authority thereunder, to construct, operate, maintain, replace, and use all necessary equipment and facilities for a public water system, in, under, on, across, over, through, along, or below the public rights -of -way located in the Franchise Area. 2.2 This Franchise is subject to the terms and conditions hereinafter set forth. Section 3. County Authority. 3.1 The County, in granting this Franchise, does not waive any rights which it now has or may hereafter acquire with respect to the Franchise Area, and this Franchise shall not be construed to deprive the County of any powers, rights, or privileges which it now has, or may hereafter acquire, to regulate the use of and to control the Franchise Area. Section 4. Noninterference of Facilities. 4.1 As to new Facilities, Water District #2's Facilities shall be placed and maintained within the Franchise Area so as not to unreasonably interfere with the free passage of traffic and in accordance with all applicable laws, rules, and regulations. Prior to the installation of new Facilities within the Franchise Area, Water District #2 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 Water District #2 proceeds to install new Facilities without first obtaining the County Engineer's determination that the proposed location of the Facilities will then unreasonably interfere with the free and safe passage of traffic then, upon determination by the County that current placement of particular Facilities unreasonably interferes with free or safe passage of traffic, the County shall notify Water District #2 which shall, at its own expense, act promptly to rectify the problem in consultation with the County. Water District #2 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 Water District #2 by such County codes and ordinances. Page 3 4.2 Water District #2'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 Water District #2 which shall, at its own expense, act promptly to rectify the problem in consultation with the County. Water District #2 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 Water District #2 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 Water District #2 shall have preference as to the positioning and location of such utilities so installed with respect to Water District #2. Such preference shall continue in the event of the necessity of relocating or changing the grade of the Franchise Area. Water District #2 shall have such preference as to owners of all utilities, public or private, initially installed in the Franchise Area subsequent in time to Water District #2's Facilities. 4.4 The locating, laying, construction, operation and maintenance of Water District #2'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 Water District #2's Facilities, provided that Water District #2 and the County shall first check with the locator service to determine whether or not any of Water District #2's lines are located in the proposed work area. Upon finding from the locator service that Water District #2 does have lines located within the proposed work area, the County shall provide Water District #2 with seventy-two (72) hours notice of proposed work, except if a lesser time for notice is warranted by emergency, in order that the Water District #2 may protect its Facilities. Failure of Water District #2 to properly notify the locator service of the location of its lines and Facilities shall relieve County of its duty to provide Water District #2 the otherwise -required advance notice of proposed work. 4.5 Water District #2 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, Water District #2 shall provide a clear zone of five (5) feet on all sides of such above- ground Facilities. If Water District #2 fails to comply with this provision, and by its failure, property is damaged, then Water District #2 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 Page 4 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, Water District #2 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 Water District #2 first securing a written permit from the County Engineer, including approval endorsed on one set of plans and specifications returned to Water District #2. All such work shall be subject to the approval of and shall pass the inspection of the County Engineer. Water District #2 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 Water District #2'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, Water District #2 shall be governed by and conform to the general rules adopted by the County Engineer; and Water District #2 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. Water District #2 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 Water District #2 or its agents in a condition dangerous to life or property, and Water Page 5 District #2 upon demand shall pay to the County all costs of such work, the County having first provided notice of such condition to Water District #2 and a reasonable time to cure such unsafe condition, provided however, in the event of damage to the Franchise Area caused by Water District #2 that necessitates immediate repair by the County or its agents on an emergency basis where notice to Water District #2 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 Water District #2. 5.4 In preparing plans and specifications for the installation of Facilities within the Franchise Area, Water District #2 shall reasonably conform to the standards and specifications established by the County Engineer. Water District #2 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 Water District #2 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, Water District #2 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, Water District #2 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). Water District #2 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 Water District #2. 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, Water District #2 shall reference all such monuments and markers. The reference points shall be so located that they will not be disturbed during Water District #2's operations under this Franchise. The method of referencing these monuments or other points to be referenced shall be approved by the County Engineer. The replacement of all such monuments or markers disturbed during construction shall be made as expeditiously as conditions permit, and as directed by the County Engineer. The cost of monuments or other markers lost, destroyed, or disturbed, and the expense of replacement by approved monuments shall be borne by Water District #2. 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 Water District #2 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. Water District #2 shall coordinate such relocation or Page 6 adjustment of its Facilities with the County and shall perform the same in a timely fashion so that, absent conditions beyond the control of Water District #2, such relocation or adjustment of Water District #2's Facilities will not impede or delay pending changes to the Franchise Area. 6.2 Water District #2 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 Water District #2 of such alternatives in writing, the County shall evaluate such alternatives and shall advise Water District #2 in writing if one or more of such alternatives are suitable to accommodate the work that would otherwise necessitate relocation of Water District #2's Facilities. In evaluating such alternatives, the County shall give each alternative proposed by Water District #2 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, Water District #2 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) Water District #2 from future relocation or adjustment of Water District #2'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 Water District #2's Facilities to accommodate the work of such person or entity within the Franchise Area, or whenever the County requires the relocation of Water District #2's Facilities within the Franchise Area for the benefit of any person or entity other than the County, then Water District #2 shall have the right as a condition of such relocation to require such person or entity to: 6.3.1 Make payment to Water District #2, at a time and upon terms acceptable to Water District #2, which acceptance shall not be unreasonably withheld, for any and all costs and expenses incurred by Water District #2 in the relocation of Water District #2's Facilities; and 6.3.2 Indemnify and save Water District #2 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 Water District #2's Facilities, to the extent such injury or damage is caused by the negligence of the person or entity requesting the relocation of Water District #2's Facilities or the negligence of the agents, servants or employees of the person or entity requesting the relocation of Water District #2's Facilities. 6.4 Any condition or requirement imposed by the County upon any person or entity, other than Water District #2 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 Water District #2's Facilities shall be a required relocation for purposes of Section 6.3; provided, however: 6.4.1 If the County notifies Water District #2 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 Water District #2 shall relocate its Facilities within the Franchise Area in accordance with Section 6.1. 6.4.2 If the County notifies Water District #2 in writing that the County will bear a portion of the costs of, or will provide funding towards, a project that includes grading or Page 7 widening of the Franchise Area resulting from the imposition of such condition or requirement upon such person or entity, then Water District #2 agrees to bear a portion of its costs and expenses to relocate its Facilities to accommodate such grading or widening, such portion borne by Water District #2 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 Water District #2 exceed the dollar amount of such County Contribution. "Project" shall mean that work directly bearing on the area that necessitates relocation by Water District #2, 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, Water District #2 shall have the right as a condition of such relocation to require such person or entity to pay to Water District #2 all relocation costs and expenses in excess of the portion borne by Water District #2 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 Water District #2 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 Water District #2 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 Water District #2 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, Water District #2 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 Water District #2, its agents, servants or employees in exercising the rights granted to Water District #2 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 Water District #2 thereof, and Water District #2 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 Water District #2 thereof, and Water District #2 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 Water District #2 and the County, Water District #2 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, Water District #2 shall fully satisfy said judgment within ninety (90) days after said suit or action shall have finally been determined. Upon Water District #2'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 Page 8 provision for reimbursement of the County shall survive the termination of this Franchise. 7. 2 Acceptance by the County of any work performed by Water District #2 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 Water District #2 proposes to acquire easements for the location or relocation of its Facilities outside of, and adjacent to the Franchise Area, Water District #2 shall notify the County of the same and the County shall have the option, with the concurrence of Water District #2, to acquire in place of such Water District #2 proposed easements, additional public rights -of -way or equivalent public utility easements for use by Water District #2. 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 Water District #2's use of such public utility easements shall be subject to the terms and conditions of such public utility easements. Provided the above section does not apply to Water District #2's customer service lines and only to easements related to new transmission water pipelines.1 Section 9. Vacation of the Franchise Area. 9.1 If at any time the County shall seek to vacate any portion of the Franchise Area and said vacation shall be for the purpose of acquiring the fee or other property interest in said portion of the Franchise Area for the use of the County, in either its proprietary or governmental capacity, and there are no Facilities located in the Franchise Area. then the County Engineer may at his option and by giving thirty (30) days written notice to Water District #2, 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 Water District #2 allegedly incurred by reason of such termination. Nothing herein shall limit or prevent Water District #2 from exercising its powers of eminent domain. Should Water District #2 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 Water District #2, reserve an easement to Water District #2 for Water District #2'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. 1 A distinction is drawn here between public rights -of -way which are or shall become Franchise Area and thus governed by the terms of the franchise ordinance, and public uti I ity easements which shal I not become Franchise Area, the use of which shal I be governed by the terms and conditions of the easements themselves and not by the franchi se ordinance. Page 9 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 Water District #2 for the temporary adjustment of Water District #2'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 Water District #2, not less than fourteen (14) days prior to the moving or removal of such building or other object. In such event, Water District #2 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 Water District #2 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, Water District #2 shall have no rights under this Franchise nor shall Water District #2 be bound by the terms and conditions of this Franchise unless Water District #2 shall, within thirty (30) days after the effective date of the Ordinance, file with the County its written acceptance of the franchise agreement contained within the Ordinance. 13.1.1 No franchise hereunder shall become effective for any purpose unless and until written acceptance therefore shall have been filed with the Whatcom County Council and County Director of Public Works and such written acceptance shall be in the form and substance as shall be prescribed and approved by the County Prosecuting Attorney and operate as an acceptance of each and every term and condition and limitation contained in this ordinance, and in such franchise; and 13.1.2 Such written acceptance shall be filed by Water District #2 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, Water District #2 shall be deemed to have rejected the same. In case of Water District #2's tardy acceptance of franchise, the County's recognition thereof shall be strictly at its discretion. Page 10 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 Water District #2 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 Water District #2, 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 Water District #2 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 Water District #2 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 Page 11 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 Water District #2, and except as to any portion thereof which has been pre-empted or otherwise rendered null and void by such change in federal or state law, this Franchise shall remain in full force and effect. 15.3 Notwithstanding any language to the contrary contained herein, this Franchise is subject to the provisions of the Whatcom County Charter, Section 9.30, and all rights belonging to the County and its people as set forth therein are hereby reserved thereto. Section 16. Miscellaneous 16.1 If any term, provision, condition, or portion of this Franchise shall be held to be invalid, such invalidity shall not affect the validity of the remaining portions of this Franchise, which shall continue in full force and effect. The headings of sections and paragraphs of this Franchise are for convenience of reference only and are not intended to restrict, affect or be of any weight in the interpretation or construction of the provisions of such sections or paragraphs. 16.2 This Franchise is subject to the requirements of any and all applicable laws, rules, and regulations, including the Whatcom County Code, as currently enacted or hereafter modified. In the event of any actual conflict between the provisions of this Franchise and the requirements of the Whatcom County Code or County -enacted rules or regulations, the provisions of this Franchise shall control, to the extent authorized by law. 16.3 All notices, demands, requests, consents and approvals which may, or are required to be given by any party to any other party hereunder, shall be in writing and shall be deemed to have been duly given if delivered personally, sent by facsimile, sent by a nationally recognized overnight delivery service, or if mailed or deposited in the United States mail and sent by registered or certified mail, return receipt requested, postage prepaid to: For County: County Executive Whatcom County Courthouse. 311 Grand Ave. Bellingham, WA 98225 For Water District #2: Manager Whatcom County Water District #2 1615 Bayon Road Bellingham, WA 98225 Page 12 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 Water District #2 shall keep in effect, a liability insurance policy covering all liability of Water District #2 to the County, including any assumed by contract between Water District #2 and any other party, with limits at least in the amount of $1,000,000. In lieu of the insurance requirement of this Section, Water District #2 may self - insure against such risks. At the time of Water District #2's acceptance of this Franchise and otherwise upon the County's request, Water District #2 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 Water District #2 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 Water District #2'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 Water District #2 cannot be corrected with due diligence within said sixty (60) day period (Water District #2's obligation to comply and to proceed with due diligence being subject to unavoidable delays and events beyond its control), then the time within which Water District #2 may so comply shall be extended for such time as may be reasonably necessary and so long as Water District #2 commences promptly and diligently to effect such compliance. Page 13 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 members of the County Council on July 8 , 2025. ADOPTED this 8th day of July , 2025. ATTEST: • V� l C'alry Halk, Clerk of >h�y�ouncil APPROVED R'M: Christopher Quinn Civil Deputy Prosecutor (approved electronically 5/22/2025) WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON _�k�z�q 64?� Ka iee G oway, Council Chair Approved (} Denied s w Satpal S gh Sidhu, County Executive DATE: 7/14/2025 Page 14 Exhibit A ACCEPTANCE OF FRANCHISE Whatcom County Water District #2 The Whatcom County Council at its meeting of July 8, 2025, adopted Ordinance 2025-033 approving the application for franchise filed by Whatcom County Water District #2. The petition and all related documents are available for review in the Council Office as file number A132025-420. Whatcom County Water District #2 hereby accepts, subject to all the conditions contained in Ordinance 2025-033, that certain non-exclusive franchise to locate, set, erect, lay, construct, extend, support, attach, connect, maintain, repair, replace, enlarge, operate and use facilities in, upon, over, under, along, across and through the franchise area to allow for the provision of water services, along, in, over, under and across certain public roads, streets, highway and rights -of -way, now existing or hereafter established, as follows: Alderwood Avenue, Bamboo Lane, Bancroft Road, Bayon Road, Boxwood Avenue, Cliffside Drive, Country Lane, Curtis Road, Cyclone Drive, Davis Street, Ft. Bellingham Road, Griffith Avenue, Howard Avenue, Hoff Road, Irving Road, Island View Drive, Jones Lane, Locust Road, Marine Drive, McAlpine Road, Mercer Avenue, Old Marine Drive, Olympic Avenue, Pence Avenue, Rural Avenue, Skagit Street, Van Horn Lane, Wynn Road 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 not to exceed twenty-five (25) years and subject to all terms, conditions, and limitations of the franchise. ATTEST�A•``�"�� �cQCIf�•"ff CO N ay Hal�Cc� STATE oF,� Clerk of thZ3 :.flf{•,fir, WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON Kayieetdaiioway Council Chair Agent for the petitioner, Whatcom County Water District #2: Pete Rittmueller ei �2� Date: o State of Washington ) ss. County of ) e Si d and sworn to before me on this day of 2 by yt Pete Rittmueller 01111iM1111 1111 0RAIE WH//*, ME = p Notary Public in and for t. State o KorAf Washington, v' residing at PUBLIC i s�9A��'•,.��,��'!A My notary commission expires Effective Date of this franchise: -7 ca7 O