HomeMy WebLinkAboutord2025-041Whatcom County COUNTY COURTHOUSE
311 Grand Avenue, Ste #105
<- Bellingham, WA 98225-4038
(360) 778-5010
Agenda Bill Master Report
File Number: AB2025-485
File ID: AB2025-485 Version: 1 Status: Adopted
File Created: 06/23/2025 Entered by: AHester@co.whatcom.wa.us
Department: Public Works File Type: Ordinance Requiring a Public Hearing
Department
Assigned to: Council Final Action: 08/06/2025
Agenda Date: 08/06/2025 Enactment #: ORD 2025-041
Related Files:
Primary Contact Email: sdraper@co.whatcom.wa.us
TITLE FOR AGENDA ITEM:
Ordinance granting Percie Road Water Association a franchise and the right, privilege, and authority
thereunder to locate, set, erect, lay, construct, extend, support, attach, connect, maintain, repair,
replace, enlarge, operate and use facilities in, upon, over, under, along, across and through the franchise
area to allow for the provision of water services
SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE:
RCW 36.55.040, Whatcom County Charter Section 9.30, and Whatcom County Code 12.24
provides for the granting of franchises to public and private utility companies for use of County
Rights -of -Way. This is a 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:
07/08/2025 Council INTRODUCED FOR PUBLIC Council
HEARING
Aye: 7 Buchanan, Byrd, Donovan, Elenbaas, Galloway, Scanlon, and Stremler
Nay: 0
08/06/2025 Council ADOPTED
Aye: 6 Buchanan, Byrd, Elenbaas, Galloway, Scanlon, and Stremler
Nay: 0
Whatcom County Page 1 Printed on 81812025
Agenda Bill Master Report Continued (AB2025.485)
emp Absent: 1 Donovan
Attachments: Staff Memo, Proposed Ordinance, Fact Sheet, Notice of Hearing Percie Road after 7.8.2025
Whatcom County Page 2 Printed on 81812025
RETURN DOCUMENT TO:
WHATCOM COUNTY
COUNCIL OFFICE
311 GRAND AVE, SUITE 105
BELLINGHAM, WA 98225
DOCUMENT TITLE(S): FRANCHISE
Whatcorn County, WA
Total:$321 50 Pgs= 9 2025-0901065
FRAN 09/12/2025 11:35 AM
Request of: WHATCOM COUNTY REAL ESTATE
IIIIIIIIIIII IN11111111IIIIII1IIIIIIII1111111III
00451588202609010660190191
Ordinance No. 2025-041 granting Percie Road Water Association a franchise and the right,
privilege, and authority thereunder to locate, set, erect, lay, construct, extend, support,
attach, connect, maintain, repair, replace, enlarge, operate and use facilities in, upon, over,
under, along, across and through the franchise area to allow for the provision of water
services.
REFERENCE NUMBER(S) OF DOCUMENTS ASSIGNED OR RELEASED:
Ordinance Number: 2025-041
Additional reference numbers found on page of document.
GRANTOR(S):
Whatcom County
Additional grantors found on page of document.
GRANTEE(S):
Percie Road Water Association
Additional grantees found on page of document.
ABBREVIATED LEGAL DESCRIPTION (Lot, block, plat, or section, township, range)
All public county roads, county public ways, and county property now owned or
hereafter dedicated to the County within the boundaries of Sections 26, 27, 28 and
21, 22, and 23, Township 40 North, Range 1 East of W.M., including but not
exclusive thereof, County Road Nos. 559; 41; 74; 441; 578 and 54. County Road
#559 and #41 are commonly known as the Birch Bay — Lynden Road; County Road
#74 is commonly known as the Ham Road; County Road #441 is commonly known
as the Percie Road; County Road #578 is commonly known as Portal Way; County
Road #54 is commonly known as the Valley View Road, all of which are situated in
Whatcom County, Washington.
Additional legal description can be found on page of document.
ASSESSOR'S PARCEL NUMBER:
None
PROPOSED BY: Executive
INTRODUCTION DATE:
ORDINANCE NO. 2025-041
GRANTING PERCIE ROAD WATER ASSOCIATION A FRANCHISE AND THE RIGHT,
PRIVILEGE, AND AUTHORITY THEREUNDER TO LOCATE, SET, ERECT, LAY, CONSTRUCT,
EXTEND, SUPPORT, ATTACH, CONNECT, MAINTAIN, REPAIR, REPLACE, ENLARGE,
OPERATE AND USE FACILITIES IN, UPON, OVER, UNDER, ALONG, ACROSS AND THROUGH
THE FRANCHISE AREA TO ALLOW FOR THE PROVISION OF WATER SERVICES.
WHEREAS, Percie Road Water Association (hereinafter referred to as "Percie Water"),
has applied for a twenty-five (25) year franchise; and
WHEREAS, the Home Rule Charter for Whatcom County authorizes the County Council
to grant non-exclusive franchises for a fixed term not to exceed 25 years for the use of any
street, road, or public place;
WHEREAS, RCW 36.55.010, Whatcom County Charter Section 9.30, and Whatcom
County Code Chapter 12.24 address the requirements pertaining to the granting of franchises by
the County; and
WHEREAS, Percie Water 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, Percie Water seeks a non-exclusive twenty-five (25) year franchise to
construct, erect, alter, lay, support, connect, improve, renew, replace, repair, operate and
maintain water transmission and distribution facilities upon, under, over, across and along
certain roads and other areas in Whatcom County, Washington; and
WHEREAS, the application of Percie Water has come on regularly to be heard by the
County Council on the 6th day of August , 2025, and notice of this hearing having been
duly published on the 13th day of .July 2025, and the 20th day of July , 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 Percie Water, which shall be and become effective as set forth in
Section 13 thereof:
Section 1. Definitions.
1.1 Where used in this franchise agreement ("Franchise"), the following terms shall
mean:
1.1.1 "County" means the County of Whatcom, apolitical subdivision of the
State of Washington, and its successors and assigns.
1.1.2 "Percie Water" means Percie Road Water Association, and its successors
and assigns.
1.1.3 "Franchise Area" means all public county roads, county public ways, and
county property now owned or hereafter dedicated to the County within the boundaries of
Sections 26, 27, 28 and 21, 22, and 23, Township 40 North, Range 1 East of W.M., including but
not exclusive thereof, County Road Nos. 559; 41; 74; 441; 578 and 54. County Road #559 and
#41 are commonly known as the Birch Bay — Lynden Road; County Road #74 is commonly
known as the Ham Road; County Road #441 is commonly known as the Percie Road; County
Road #578 is commonly known as Portal Way; County Road #54 is commonly known as the
Valley View Road, all of which are situated 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. 2025-041 which sets forth the terms and
conditions of this Franchise.
1.1.6 "Right -of -Way": As used herein shall refer to the surface of and space
along, above, and below any public street, road, way, lane, drive, alley or easement
within the Franchise Area;
1.1.7 "Relocation": As used herein shall mean to protect, support, temporarily
disconnect, relocate and/or remove Percie Water 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 Percie Water 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, Percie Water's Facilities shall be placed and maintained within
the Franchise Area so as not to unreasonably interfere with the free passage of traffic and in
accordance with all applicable laws, rules, and regulations. Prior to the installation of new
Facilities within the Franchise Area, Percie Water may request that the County determine
whether the proposed placement of the Facilities will unreasonably interfere with the free and
safe passage of traffic, and the County shall make such determination in writing within a
reasonable period of time. If the proposed location is not approved by the County Engineer, the
County Engineer shall advise in writing what reasonable modifications to the proposed location
of the Facilities are necessary for the County Engineer to issue a determination that the
proposed location of the Facilities will not unreasonably interfere with the free and safe passage
of traffic.
If Percie Water proceeds to install new Facilities without first obtaining the County
Engineer's determination that the proposed location of the Facilities will then unreasonably
interfere with the free and safe passage of traffic then, upon determination by the County that
current placement of particular Facilities unreasonably interferes with free or safe passage of
traffic, the County shall notify Percie Water which shall, at its own expense, act promptly to
rectify the problem in consultation with the County. Percie Water shall exercise its rights under
this Franchise and within the Franchise Area in accordance with all County codes and
ordinances governing use and occupancy of the Franchise Area; provided, however, in the event
of any conflict or inconsistency of such codes and ordinances with the terms and conditions of
this Franchise, the terms and conditions of this Franchise shall govern and control to the extent
authorized by law; provided, further, nothing herein shall be deemed to waive, prejudice or
otherwise limit any right of appeal afforded Percie Water by such County codes and ordinances.
Page 3
4.2 Percie Water's existing Facilities shall be maintained within the Franchise Area so
as not to unreasonably interfere with the free passage of traffic and in accordance with all
applicable laws, rules, and regulations. Upon determination by the County that current
placement of particular Facilities unreasonably interferes with free or safe passage of traffic, the
County shall notify Percie Water which shall, at its own expense, act promptly to rectify the
problem in consultation with the County. Percie Water shall exercise its rights under this
Franchise and within the Franchise Area in accordance with all County codes and ordinances
governing use and occupancy of the Franchise Area; provided, however, in the event of any
conflict or inconsistency of such codes and ordinances with the terms and conditions of this
Franchise, the terms and conditions of this Franchise shall govern and control to the extent
authorized by law; provided, further, nothing herein shall be deemed to waive, prejudice or
otherwise limit any right of appeal afforded Percie Water by such County codes and ordinances.
4.3 All construction or installation of such Facilities, service, repair, or relocation of the
same, performed over, above, along or under the Franchise Area shall be done in such a
manner as not to interfere unreasonably with the construction and maintenance of other existing
utilities, lines, public or private, drains, drainage ditches and structures, irrigation ditches and
structures, located therein, nor with the grading or improvement of the Franchise Area. The
owners of all utilities, public or private, installed in the Franchise Area prior in time to the
Facilities of Percie Water shall have preference as to the positioning and location of such utilities
so installed with respect to Percie Water. Such preference shall continue in the event of the
necessity of relocating or changing the grade of the Franchise Area. Percie Water shall have
such preference as to owners of all utilities, public or private, initially installed in the Franchise
Area subsequent in time to Percie Water's Facilities.
4.4 The locating, laying, construction, operation and maintenance of Percie Water's
Facilities authorized by this Franchise shall not preclude the County, its agents or its contractors
from blasting, grading, excavating, or doing other necessary road work contiguous to Percie
Water's Facilities, provided that Percie Water and the County shall first check with the locator
service to determine whether or not any of Percie Water's lines are located in the proposed work
area. Upon finding from the locator service that Percie Water does have lines located within the
proposed work area, the County shall provide Percie Water with seventy-two (72) hours notice of
proposed work, except if a lesser time for notice is warranted by emergency, in order that the
Percie Water may protect its Facilities. Failure of Percie Water to properly notify the locator
service of the location of its lines and Facilities shall relieve County of its duty to provide Percie
Water the otherwise -required advance notice of proposed work.
4.5 Percie Water shall maintain all above -ground Facilities that it places in the
Franchise Area. In order to avoid interference with the County's ability to maintain the Franchise
Area, Percie Water shall provide a clear zone of five (5) feet on all sides of such above -ground
Facilities. If Percie Water fails to comply with this provision, and by its failure, property is
damaged, then Percie Water shall be deemed responsible for all damages caused thereby and
the County shall be released from any responsibility therefore. For these purposes, "clear zone"
means an area that is mowed or otherwise maintained so that the Facilities are readily visible to
County maintenance operations.
Page 4
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, Percie Water 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 Percie Water. All such work shall be subject to the approval
of and shall pass the inspection of the County Engineer. Percie Water shall pay all costs of and
expenses incurred in the examination, inspection and approval of such work on account of
granting the said permits.
5.3 In any work which requires breaking of soil within the Franchise Area for the purpose
of laying, relaying, connecting, disconnecting, constructing, maintaining and repairing Percie
Water's Facilities, and making connections between the same to structures and buildings of
consumers or making connections to other Facilities now in existence or hereafter constructed,
Percie Water shall be governed by and conform to the general rules adopted by the County
Engineer; and Percie Water at its own expense and with due diligence shall complete the work
for which the soil has been broken and forthwith replace the work and make good the Franchise
Area and leave the same in as good condition as before the work was commenced; provided,
however, that no such breaking of the soil within the Franchise Area shall be done prior to the
obtaining of a permit issued by the County Engineer. Applications for such a permit shall be
accompanied by specifications for the restoration of the Franchise Area to the same condition as
it was in prior to such breaking, and such specifications must be approved by the County
Engineer before such breaking of the soil is commenced; provided further, that the County
Engineer may require a performance bond in a reasonable sum sufficient to guarantee that such
Franchise Area shall be restored to the same condition as it was in prior to such breaking of the
soil, the amount of said bond to be fixed by the County Engineer. 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 Percie
Water or its agents in a condition dangerous to life or property, and Percie Water upon demand
shall pay to the County all costs of such work, the County having first provided notice of such
Page 5
condition to Percie Water and a reasonable time to cure such unsafe condition, provided
however, in the event of damage to the Franchise Area caused by Percie Water that
necessitates immediate repair by the County or its agents on an emergency basis where notice
to Percie Water or providing an opportunity to cure is not feasible considering nature of the
emergency and necessary repair, as determined by the County Engineer using professional
engineering standards, no such notice and reasonable time to cure shall be required as a
condition of repayment by Percie Water.
5.4 In preparing plans and specifications for the installation of Facilities within the
Franchise Area, Percie Water shall reasonably conform to the standards and specifications
established by the County Engineer. Percie Water 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 Percie Water under this Franchise shall be done in a
thorough and workmanlike manner. In the construction of Facilities and the opening of trenches
within and the tunneling under the Franchise Area, Percie Water shall leave such trenches and
tunnels in such a way as to interfere as little as possible with public travel, and shall take all due
and necessary precautions to guard the same, so that damage or injury shall not occur or arise
by reason of such work. Where any of such trenches, ditches, or tunnels are left open at night,
Percie Water shall place warning lights and barricades at such a position as to give adequate
warning of such work, per the MUTCD (Manual on Uniform Traffic Control Devices). Percie
Water shall be liable for any injury to person or persons or damage to property to the extent
proximately caused by its carelessness or neglect, or to the extent proximately caused by any
failure or neglect to properly guard or give warning of any trenches, ditches or tunnels dug or
maintained by Percie Water.
5.6 Before any work is performed under this Franchise which may affect any existing
monuments or markers of any nature relating to subdivisions, plats, roads and all other surveys,
Percie Water shall reference all such monuments and markers. The reference points shall be
so located that they will not be disturbed during Percie Water's operations under this Franchise.
The method of referencing these monuments or other points to be referenced shall be approved
by the County Engineer. The replacement of all such monuments or markers disturbed during
construction shall be made as expeditiously as conditions permit, and as directed by the County
Engineer. The cost of monuments or other markers lost, destroyed, or disturbed, and the
expense of replacement by approved monuments shall be borne by Percie Water. A complete
set of reference notes for monuments and other ties shall be filed with the County Engineer's
Office.
Section 6. Relocation of Facilities.
6.1 Percie Water shall, at its sole expense and with due diligence, relocate or adjust the
elevation of any of its Facilities upon receipt of written request from the County Engineer when
determined reasonably necessary based upon sound engineering principles by the County
Engineer for improvement to the County facilities in the Franchise Area, provided that the
elevations required by the County are not in violation of local, state or federal law and are
reasonable necessary for safety purposes. Percie Water shall coordinate such relocation or
adjustment of its Facilities with the County and shall perform the same in a timely fashion so
Page 6
that, absent conditions beyond the control of Percie Water, such relocation or adjustment of
Percie Water's Facilities will not impede or delay pending changes to the Franchise Area.
6.2 Percie Water may propose to the County alternatives to reduce or eliminate the need
for relocation of its Facilities pursuant to Section 6.1. Upon the County's receipt from Percie
Water of such alternatives in writing, the County shall evaluate such alternatives and shall
advise Percie Water in writing if one or more of such alternatives are suitable to accommodate
the work that would otherwise necessitate relocation of Percie Water's Facilities. In evaluating
such alternatives, the County shall give each alternative proposed by Percie Water full and fair
consideration with due regard to all the facts and circumstances which bear upon the practicality
of relocation and alternatives to relocation. In the event the County reasonably determines that
such alternatives are not appropriate, Percie Water 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) Percie Water from future relocation or adjustment of Percie
Water's Facilities pursuant to this Section 6.
6.3 As qualified in Sections 6.1 and 6.2 above, and in Section 6.4 below, whenever any
person or entity, other than the County, requires the relocation of Percie Water's Facilities to
accommodate the work of such person or entity within the Franchise Area, or whenever the
County requires the relocation of Percie Water's Facilities within the Franchise Area for the
benefit of any person or entity other than the County, then Percie Water shall have the right as a
condition of such relocation to require such person or entity to:
6.3.1 Make payment to Percie Water, at a time and upon terms acceptable to
Percie Water, which acceptance shall not be unreasonably withheld, for any and all costs and
expenses incurred by Percie Water in the relocation of Percie Water's Facilities; and
6.3.2 Indemnify and save Percie Water harmless from any and all claims and
demands made against it on account of injury or damage to the person or property of another
arising out of or in conjunction with the relocation of Percie Water's Facilities, to the extent such
injury or damage is caused by the negligence of the person or entity requesting the relocation of
Percie Water's Facilities or the negligence of the agents, servants or employees of the person or
entity requesting the relocation of Percie Water's Facilities.
6.4 Any condition or requirement imposed by the County upon any person or entity,
other than Percie Water or the County (including, without limitation, any condition or requirement
imposed pursuant to any contract or in conjunction with approvals or permits for zoning, land
use, construction or development) which requires the relocation of Percie Water's Facilities shall
be a required relocation for purposes of Section 6.3; provided, however:
6.4.1 If the County notifies Percie Water in writing that the primary purpose of
imposing such condition or requirement upon such person or entity is to cause the grading or
widening of the Franchise Area on the County's behalf consistent with the County's Six -Year
Road Construction Program, then Percie Water shall relocate its Facilities within the Franchise
Area in accordance with Section 6.1.
6.4.2 If the County notifies Percie Water in writing that the County will bear a
portion of the costs of, or will provide funding towards, a project that includes grading or
widening of the Franchise Area resulting from the imposition of such condition or requirement
Page 7
upon such person or entity, then Percie Water agrees to bear a portion of its costs and
expenses to relocate its Facilities to accommodate such grading or widening, such portion borne
by Percie Water being a percentage equal to that percentage of such project's costs borne or
funded by the County (the "County Contribution"); provided, however, in no event shall such
portion borne by Percie Water exceed the dollar amount of such County Contribution. "Project"
shall mean that work directly bearing on the area that necessitates relocation by Percie Water,
and shall not include other off -site improvements that may be performed at the same time. In all
other respects such relocation shall be a required relocation for the purposes of Section 6.3 and
without limiting the foregoing, Percie Water shall have the right as a condition of such relocation
to require such person or entity to pay to Percie Water all relocation costs and expenses in
excess of the portion borne by Percie Water 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 Percie Water shall be entitled to recovery of all
its costs and expenses incurred in the relocation of its Facilities from the party on whom the
condition for road improvements was placed. Documentation of any such agreement between
the County and Percie Water shall be kept in conjunction with the encroachment permit issued
by the County for the work of relocation.
6.5 Nothing in this Section 6 shall require Percie Water to bear any cost or expense in
connection with the location or relocation of any Facilities then existing pursuant to easement or
such other rights not derived from or addressed by this Franchise.
Section 7. Indemnification.
7.1 To the extent permitted by law, Percie Water shall defend, indemnify and hold the
County harmless from any and all claims, demands, suits, actions, costs and expenses,
including but not limited to attorney's fees, made against it on account of injury or damage to the
person or property of another, but only to the extent such injury or damage is caused by the
actions or failure to act of Percie Water, its agents, servants or employees in exercising the
rights granted to Percie Water in this Franchise; provided, however, that in the event any such
claim or demand be presented to or filed with the County, the County shall promptly notify Percie
Water thereof, and Percie Water shall have the right, at its election and at its sole cost and
expense, to settle and compromise such claim or demand; provided further, that in the event any
suit or action is begun against the County based upon any such claim or demand, the County
shall likewise promptly notify Percie Water thereof, and Percie Water shall have the right, at its
election and its sole cost and expense, to settle and compromise such suit or action, or defend
the same at its sole cost and expense, by attorneys of its own election. Notwithstanding the
foregoing, if damages to another or others result from concurrent negligence of Percie Water
and the County, Percie Water and the County shall each be responsible for, and this
indemnification provision shall be operative so that each party bears, the proportionate share
attributable to its own negligence. In case judgment which is not appealed shall be rendered
against the County in such suit or action, Percie Water shall fully satisfy said judgment within
ninety (90) days after said suit or action shall have finally been determined. Upon Percie
Water's failure to satisfy said judgment within ninety (90) days, the County may elect to terminate
this Franchise pursuant to the terms of Section 19 herein. The provision for reimbursement of
the County shall survive the termination of this Franchise.
Page 8
7. 2 Acceptance by the County of any work performed by Percie Water 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 Percie Water proposes to acquire easements for the location or
relocation of its Facilities outside of, and adjacent to the Franchise Area, Percie Water shall
notify the County of the same and the County shall have the option, with the concurrence of
Percie Water, to acquire in place of such Percie Water proposed easements, additional public
rights -of -way or equivalent public utility easements for use by Percie Water. Any such public
rights -of -way acquired by the County shall become Franchise Area. Any such public utility
easements so acquired by the County shall not be Franchise Area (and shall not be subject to
the terms and conditions of this Franchise) and Percie Water's use of such public utility
easements shall be subject to the terms and conditions of such public utility easements.
Provided the above section does not apply to Percie Water's customer service lines and only to
easements related to new transmission water pipelines.1
Section 9. Vacation of the Franchise Area.
9.1 If at any time the County shall seek to vacate any portion of the Franchise Area and
said vacation shall be for the purpose of acquiring the fee or other property interest in said
portion of the Franchise Area for the use of the County, in either its proprietary or governmental
capacity, and there are no Facilities located in the Franchise Area. then the County Engineer
may at his option and by giving thirty (30) days written notice to Percie Water, terminate this
franchise with reference to such portion of the Franchise Area so vacated, and the County shall
not be liable for any damages or loss to Percie Water allegedly incurred by reason of such
termination. Nothing herein shall limit or prevent Percie Water from exercising its powers of
eminent domain. Should Percie Water notify the County of its intent to consider exercising its
power of eminent domain to obtain an easement for the Facilities located within the area of the
Franchise to be terminated, the termination of the Franchise shall be tolled for a period of no
less than one hundred and twenty (120) days from the date of notice.
9.2 If at any time the County shall vacate any portion of the Franchise Area in which
Facilities are installed at the time of said vacation, and said vacation shall be for the purpose of
acquiring the fee or other property interest in said portion of the Franchise Area by other than the
County, then the County shall, in its vacation procedure, unless otherwise waived in writing by
Percie Water, reserve an easement to Percie Water for Percie Water's Facilities as reasonably
necessary for the continued use, operation, maintenance and repair of the Facilities as located
in the portion of the Franchise Area to be vacated.
Section 10. Moving Buildings within the Franchise Area.
10.1 If any person or entity obtains permission from the County to use the Franchise
Area for the moving or removal of any building or other object, the County shall, prior to granting
1 A distinction is drawn here between public rights -of -way which are or shall become Franchise Area and thus
governed by the terms of the franchise ordinance, and public utility easements which shall not become Franchise
Area, the use of which shall be governed by the terms and conditions of the easements themselves and not by the
franchise ordinance.
Page 9
such permission, direct such person or entity to arrange with Percie Water for the temporary
adjustment of Percie Water's Facilities necessary to accommodate the moving or removal of
such building or other object. Such person or entity shall make such arrangements, upon terms
and conditions acceptable to Percie Water, not less than fourteen (14) days prior to the moving
or removal of such building or other object. In such event, Percie Water shall, at the sole cost
and expense of the person or entity desiring to move or remove such building or other object,
adjust any of its Facilities which may obstruct the moving or removal of such building or object.
Section 11. Locating Facilities.
11.1 Percie Water and the County acknowledge and commit to fully comply with their
respective obligations, as the same may arise from time to time, under Chapter 19.122 RCW
(Underground Utilities Locator Statute) or any other law applicable to determining the location of
utility facilities.
Section 12. Nonexclusive Franchise.
12.1 This Franchise is not and shall not be deemed to be an exclusive franchise. It shall
not in any manner prohibit the County from granting other franchises of a like nature or
franchises for other public or private utilities under, along, across, over, and upon any part of the
Franchise Area, and shall in no way prevent or prohibit the County from constructing, altering,
maintaining, using, or vacating any part thereof , or affect its jurisdiction over any part thereof
with full power to make all necessary changes, relocations, repairs, maintenance, etc., the same
as the County may deem fit.
Section 13. Franchise Term; Effect on Existing Franchises for Same Purpose.
13.1 This Franchise is and shall remain in full force and effect for a period of twenty-five
(25) years from and after the effective date of the Ordinance; provided, however, Percie Water
shall have no rights under this Franchise nor shall Percie Water be bound by the terms and
conditions of this Franchise unless Percie Water shall, within thirty (30) days after the effective
date of the Ordinance, file with the County its written acceptance of the franchise agreement
contained within the Ordinance.
13.1.1 No franchise hereunder shall become effective for any purpose unless and
until written acceptance therefore shall have been filed with the Whatcom County Council and
County Director of Public Works and such written acceptance shall be in the form and substance as
shall be prescribed and approved by the County Prosecuting Attorney and operate as an
acceptance of each and every term and condition and limitation contained in this ordinance, and in
such franchise; and
13.1.2 Such written acceptance shall be filed by Percie Water not later than the thirtieth
(30th) dayfollowing the effective date of the Ordinance granting such franchise; and in default of the
filing of such written acceptance as herein required, Percie Water shall be deemed to have rejected
the same. In case of Percie Water'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
Page 10
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 Percie Water may mortgage this Franchise to the trustee
for its bond holders. Any approved assignee shall, within thirty (30) days of the date of any
assignment, file written notice of the assignment with the County, together with its written
acceptance of all terms and conditions of this Franchise.
14.2 All the provisions, conditions, and requirements herein contained shall be binding
upon the successors and assigns of Percie Water, and all privileges, as well as all obligations
and liabilities of the grantee shall inure to its successors and assigns equally as if they were
specifically mentioned wherever Percie Water is mentioned.
Section 15. Amendment.
15.1 Except as addressed in and through Section 15.3 below, this Franchise may be
amended only by written instrument, signed by both parties, which specifically states that it is an
amendment to this Franchise and is approved and executed in accordance with the laws of the
State of Washington. Without limiting the generality of the foregoing, this Franchise (including,
without limitation, Section 5 above) shall govern and supersede and shall not be changed,
modified, deleted, added to, supplemented or otherwise amended by any permit, approval,
license, agreement or other document required by or obtained from the County in conjunction
with the exercise (or failure to exercise) by Percie Water any and all rights, benefits, privileges,
obligations or duties in and under this Franchise, unless such permit, approval, license,
agreement or other document specifically:
15.1.1 References this Franchise; and
15.1.2 States that it supersedes this Franchise to the extent it contains terms and
conditions that change, modify, delete, add to, supplement or otherwise amend the terms and
conditions of this Franchise. In the event of any conflict or inconsistency between the provisions
of this Franchise and the provisions of any such permit, approval, license, agreement or other
document, the provisions of this Franchise shall control.
15.2 If, during the term of this Franchise, there becomes effective any change in federal
or state law (including changes approved by the Washington Utilities and Transportation
Commission) which:
15.2.1 Affords either party the opportunity to negotiate in good faith a term or
condition of this Franchise which term or condition would not have, prior to such change, been
consistent with federal or state law; or
15.2.2 Pre-empts or otherwise renders null and void any term or condition of this
Franchise which has there -to -fore been negotiated in good faith; then, in such event, either party
Page 11
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 Percie Water, and except as to any portion
thereof which has been pre-empted or otherwise rendered null and void by such change in
federal or state law, this Franchise shall remain in full force and effect.
15.3 Notwithstanding any language to the contrary contained herein, this Franchise is
subject to the provisions of the Whatcom County Charter, Section 9.30, and all rights belonging
to the County and its people as set forth therein are hereby reserved thereto.
Section 16. Miscellaneous
16.1 If any term, provision, condition, or portion of this Franchise shall be held to be
invalid, such invalidity shall not affect the validity of the remaining portions of this Franchise,
which shall continue in full force and effect. The headings of sections and paragraphs of this
Franchise are for convenience of reference only and are not intended to restrict, affect or be of
any weight in the interpretation or construction of the provisions of such sections or paragraphs.
16.2 This Franchise is subject to the requirements of any and all applicable laws, rules,
and regulations, including the Whatcom County Code, as currently enacted or hereafter
modified. In the event of any actual conflict between the provisions of this Franchise and the
requirements of the Whatcom County Code or County -enacted rules or regulations, the
provisions of this Franchise shall control, to the extent authorized by law.
16.3 All notices, demands, requests, consents and approvals which may, or are required
to be given by any party to any other party hereunder, shall be in writing and shall be deemed to
have been duly given if delivered personally, sent by facsimile, sent by a nationally recognized
overnight delivery service, or if mailed or deposited in the United States mail and sent by
registered or certified mail, return receipt requested, postage prepaid to:
For County: County Executive
Whatcom County Courthouse.
311 Grand Ave.
Bellingham, WA 98225
For Percie Water:
Percie Road Water Association
PO Box 285
Custer, WA 98240
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 Percie Water shall keep in effect, a liability
insurance policy covering all liability of Percie Water to the County, including any assumed by
contract between Percie Water and any other party, with limits at least in the amount of
$1,000,000. In lieu of the insurance requirement of this Section, Percie Water may self -insure
against such risks. At the time of Percie Water's acceptance of this Franchise and otherwise
upon the County's request, Percie Water shall provide the County with certificate(s) of insurance
or evidence of self-insurance reflecting the requirements of this section.
Section 19. Forfeiture and Termination of Franchise.
19.1 If Percie Water shall willfully violate or fail, through willful or unreasonable neglect,
to comply with any of the provisions of this Franchise for sixty (60) days after receipt of written
notice from the County, then the County shall have the right by ordinance to declare Percie
Water's forfeiture of all rights hereunder and to declare this Franchise terminated and of no
further force or effect thereafter; provided, however, if any failure to comply with this Franchise
by Percie Water cannot be corrected with due diligence within said sixty (60) day period (Percie
Water's obligation to comply and to proceed with due diligence being subject to unavoidable
delays and events beyond its control), then the time within which Percie Water may so comply
shall be extended for such time as may be reasonably necessary and so long as Percie Water
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 least a majority of members of the County Council on August 6 2025.
03 ;%"J0. I'I1
� � 0 ".1'1�
AD �T, t i 6 � � August 2025.
WHATCOM COUNTY COUNCIL
ATTEST:;,®W WHATCOM COUNTY, WASHINGTON
'
Cathy Halka; `,C,,Ierk of. the Council K lee GqWway, Council Chair
APPROVED AS TO FORM:
Christopher Quinn
Civil Deputy Prosecutor
(approved electronically 6/6/2025)
Page 14
Exhibit A
ACCEPTANCE OF FRANCHISE
Percie Road Water Association
The Whatcom County Council at its meeting of August 6, 2025, adopted Ordinance
2025-041 approving the application for franchise filed by Percie Road Water
Association. The petition and all related documents are available for review in the
Council Office as file number AB2025-485.
Percie Road Water Association hereby accepts, subject to all the conditions contained
in Ordinance 2025-041, 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:
All public county roads, county public ways, and county property now owned or hereafter
dedicated to the County within the boundaries of Sections 26, 27, 28 and 21, 22, and 23,
Township 40 North, Range 1 East of W.M., including but not exclusive thereof, County
Road Nos. 559; 41; 74; 441; 578 and 54. County Road #559 and #41 are commonly
known as the Birch Bay — Lynden Road; County Road #74 is commonly known as the
Ham Road; County Road #441 is commonly known as the Percie Road; County Road
#578 is commonly known as Portal Way; County Road #54 is commonly known as the
Valley View Road, all of which are situated 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.
ATTES„�
Cathy Kall.�a',TATE OF
Clem of 5h q"GG KIN
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
CouncilKavyleettalloway
Agent for the petitioner, Percie Road Water Association: Pat Zender
Date:
State of Washington )
ss.
County of 11l L )
Signed and sworn to before me on this l 0'_"day of
ti�Q i L 2&1)d e=z
(Agent for petitioner)
,d /
Notary Public in and for the State of ashington,
residing at
NOTARY PUBLIC
STATE OF WASHINGTON
SHAWNA BRADLEY
License # 158902
Commission Expires
Apr# 26th, 2028
Effective Date of this franchise
2p-!'X by
My notary commission expires 2 ZW O