Chapter 17.24
PUBLIC UTILITY RIGHT-OF-WAY PLACEMENT PERMIT

Sections:

17.24.010    Purpose.

17.24.020    Definitions.

17.24.030    Permit required.

17.24.040    Terms of use and occupancy.

17.24.050    Application.

17.24.060    Payment of fees and charges.

17.24.070    Review.

17.24.080    Deferment of construction.

17.24.090    Issuance of permit.

17.24.110    Specifications.

17.24.111    Permit exception.

17.24.112    Revocation of permits.

17.24.114    Performance deposits/insurance.

17.24.115    Hold harmless/indemnity.

17.24.117    Inspections.

17.24.118    Correction and discontinuance of unsafe, nonconforming or unauthorized conditions.

17.24.119    Displacement for public use.

17.24.120    Additional ducts or conduits.

17.24.130    Joint use poles.

17.24.140    City use for government communication.

17.24.150    Painting poles.

17.24.160    Accommodating moving of building(s) and/or equipment.

17.24.170    Removal.

17.24.180    Billings and collections.

17.24.190    Appeals.

17.24.200    Liability.

17.24.210    Tree trimming.

17.24.212    Underground electric power facilities.

17.24.214    Notice of tariff changes affecting permitted facilities.

17.24.216    Violation – Penalty.

17.24.010 Purpose.

The purpose of this chapter is to provide for the regulation of the use of the public right-of-way by any business or service which is engaged in regularly supplying the public with some commodity or service which is of public consequence and need, such as electricity, gas, water, sanitary sewer, or transportation service that does not have a current franchise or other agreement with the city of Bothell addressing the subject matters covered in this chapter. To the extent the provision of any current franchise or other written agreement with a public utility conflicts with any provision of this chapter, the applicable provision of the franchise or other written agreement shall prevail. (Ord. 1696 § 1, 1997).

17.24.020 Definitions.

A.    “Facilities,” as used herein, means all conduit, wires, lines, poles, pipes, cables, communication and signal lines, braces, guys, anchors, vault, and all other structures, equipment and appurtenances thereto owned, operated or maintained by a public utility.

B.    “Public improvement,” as used herein, means all work, construction, alterations, repair or improvements, executed at the cost or under contract of the city, or caused to be performed by any person or entity as a condition or requirement of an approval or permit for zoning, land use, construction, or development if dedicated or required to be dedicated to the public use, benefit or enjoyment.

C.    “Public utility,” as used herein, means a company or entity engaged in any business or service regularly supplying the public with some commodity or service which is a public need and consequence, such as gas, electricity, water, sanitary sewer, or transportation, including any business subject to regulation as to rates and service by the Utilities and Transportation Commission under the provisions of RCW Title 81; provided, that it shall not include any such company the issuance of stocks and securities of which is subject to regulation by the Interstate Commerce Commission; provided further, that it shall not include any “motor carrier” as that term is defined in RCW 81.80.010 or any “garbage and refuse collection company” subject to the provisions of Chapter 81.77 RCW; provided further, that it shall not include any company or entity otherwise meeting this definition of a public utility that is specifically regulated for use of the public right-of-way by any other chapter of this code exempting the company or entity from the provisions of this chapter. (Ord. 1696 § 1, 1997).

17.24.030 Permit required.

It is unlawful for anyone to construct, maintain or operate on, under or over the streets, alleys, or rights-of-way of the city (collectively referred to herein as “right-of-way”), any railroad tracks, pipes, ducts, utility tunnels, vaults, maintenance holes, poles, fixtures, wires, or any other appurtenances necessary for the purpose of conducting any public utility business, either public or private, or to go upon such public place to perform any work therein which will disturb the surface of the street, alley, planting strip or sidewalk, or to occupy area upon the surface or beneath the surface of the street, planting strip or sidewalk, without complying with all the provisions of any ordinance in relation thereto and obtaining and having a permit from the director for such purpose.

A.    A right-of-way permit shall expire two years from the date of issuance; except that permits issued through December 31, 2011, shall expire four years from the date of issuance. The director is authorized to approve a request for an extended expiration date where a construction schedule is provided by the applicant and approved prior to permit issuance.

B.    Every permit which has been expired for less than one year may be renewed for a period of one year for an additional fee, based on the valuation of the work remaining, as long as no changes have been made to the originally approved plans. For permits that have been expired for longer than one year, a new permit must be obtained and full new fees paid. No permit shall be renewed more than once. (Ord. 2043 § 2 (Exh. B), 2010; Ord. 1696 § 1, 1997).

17.24.040 Terms of use and occupancy.

A.    The terms and conditions of the use and occupancy of public streets and alleys in the city by anyone constructing, maintaining or operating a public utility or the facilities thereof shall be as provided in this chapter.

B.    Existing facilities installed or maintained by a public utility over, under or across public rights-of-way within the city in accordance with an expired franchise agreement or other issued permit may be maintained, repaired and operated by the public utility at the locations at which such facilities exist only by means of a permit issued by the director under the terms of this chapter within 45 days of the effective date of the ordinance codified in this chapter; provided, however, except as allowed by the provision of any existing franchise agreement between the city and a public utility, no such facilities may be enlarged, improved or expanded without further compliance with the standards and procedures set forth in this chapter.

C.    All work by a public utility in the right-of-way shall be in accordance with the Bothell Design and Construction Standards and Specifications (Bothell Standards) as adopted by city council ordinance and incorporated herein by reference, and as may later be amended. (Ord. 1696 § 1, 1997).

17.24.050 Application.

A.    To obtain a right-of-way placement permit the applicant shall file an application with the director. The applicant may request a blanket permit for the current calendar year to cover repetitive work or the repetitive installation of like facilities at different locations throughout the city, a blanket permit may be issued at the discretion of the director.

B.    Every application shall include the location of the proposed right-of-way use, a description of the use, the planned duration of the use, applicant contact information, and all other information which may be required as specified in procedures adopted under this chapter, and shall be accompanied by payment of the required fees.

C.    The director shall examine each application submitted for review and approval to determine if it complies with the applicable provisions of this chapter and procedures adopted under this chapter. Other departments that have authority over the proposed use or activity may be required to review and approve or disapprove the application. The director may inspect the right-of-way proposed for use to determine any facts which may aid in determining whether a permit should be granted. If the director finds that the application conforms to the requirements of this chapter and procedures adopted under this chapter, that the proposed use of such right-of-way will not unduly interfere with the rights and safety of the public, and if the application has not been disapproved by a department with authority, the director may approve the permit, and may impose such conditions thereon as are reasonably necessary to protect the public health, welfare, and safety and to mitigate any impacts resulting from the use.

D.     All applications for permits will be submitted 15 days or more before the planned need for the permit. If unforeseen conditions require expedited processing time the city will attempt to cooperate, but additional fees to cover additional costs to the city shall be charged.

E.     Upon submittal of a completed application, the director shall collect from the applicant an application fee and the estimated permit plan and development review fee in such amount as authorized by the fee schedule adopted by resolution of the city council. See BMC 17.24.060. (Ord. 1696 § 1, 1997).

17.24.060 Payment of fees and charges.

A.     The fees for each facility location covered by a permit shall be set forth in a fee resolution adopted, and from time to time amended, by the city council.

B.     Repair and Replacement Charges. If the city should incur any costs in repairing or replacing any property as the result of the permittee’s actions, the costs of repair and replacement will be charged to the permittee. These charges will be for the actual costs to the city. Such charges may be collected or taken by the city from any bond or other security required by the director as a requirement of the permit. (Ord. 1696 § 1, 1997).

17.24.070 Review.

Prior to the granting of any permit, the director may require such modifications or changes to the proposed work as the director deems necessary to properly protect the public in the use of the public place, and shall in the permit, if the same be granted, fix the time or times within and during which such work shall be done. The director shall have the power to regulate the construction and enforce permit and ordinance requirements. The director shall keep a record of the permit and the work done thereunder. (Ord. 1696 § 1, 1997).

17.24.080 Deferment of construction.

The director may, in such official’s reasonable discretion, defer construction or other activity under any permit provided for in this chapter, until such time as such official deems proper in all cases where the public place on which the work is desired to be done is occupied or about to be occupied in any work by the city, or by some other person having a right to use the same in such manner as to render it seriously inconvenient to the public to permit any further obstruction thereof at such time, and in granting such permit, may so regulate the manner of doing such work in order to cause the least inconvenience to the public in the use of such public place; and in all cases, any work of the city or its contractors or employees for municipal purposes shall have precedence over all work of every other kind. (Ord. 1696 § 1, 1997).

17.24.090 Issuance of permit.

All permits shall be issued by the director. The director may issue the permit to the applicant if all requirements deemed relevant by the director are met. Requirements shall include, but not be limited to, the following:

A.    Compliance with all applicable Bothell Standards;

B.    The duration of the permit shall be perpetual unless revoked, modified or expired under the provisions of this chapter and unless otherwise permitted by a current franchise agreement with the city; provided, however, all work authorized by the permit shall be completed within 90 days of its issue or such other time as authorized by the director in the permit;

C.    The applicant shall agree to sign an indemnification agreement as provided for in BMC 17.24.115;

D.    Such other conditions as are imposed by the director to reasonably assure that the requested use does not in any way create a likelihood of endangering those who are lawfully using the public place or right-of-way; and

E.    All conditions not specifically set forth in the Bothell Standards or in the provisions of this chapter shall be subscribed on, referenced, or attached to the permit. (Ord. 1696 § 1, 1997).

17.24.110 Specifications.

A.    All work to be performed under any permit issued under this chapter shall conform to all other applicable city codes and ordinances, the current development standards, and all other standards used by the city in the administration of this title. In case of any conflict, the most restrictive provision shall apply.

B.    No facilities or work related thereto shall protrude into or over any portion of a public place opened to vehicle or pedestrian travel in such a manner as to create a likelihood of endangering the use of such place by vehicles or pedestrian travel. In addition, in the event the requested permit involves encroachment or partial obstruction of a sidewalk or other walkway open to the public, a minimum of five feet of unobstructed sidewalk or other walkway shall be maintained at all times.

C.    During any period of any relocation, construction or maintenance of its facilities within the right-of-way, a public utility shall conduct its activities so as not to unreasonably interfere with the free passage of traffic or the use of adjoining property. The applicant shall, at all times, post and maintain proper barricades and comply with all applicable safety regulations during such period of construction as required by the ordinances of the city and the laws of the state of Washington, including RCW 39.04.180 for the construction of trench safety systems.

D.    Upon request by the city, the permittee shall, within 10 business days, submit to the city, at no cost to the city, the permittee’s most current and accurate as-built drawings in use by the permittee showing the location, specified by the city in its request. As-builts shall show all facilities including but not limited to power poles, guy poles and anchors, overhead transformers, pad-mounted transformers, submersible transformers, conduit, substation (with its name) pedestals, pad-mounted J boxes, vaults, switch cabinets, and meter boxes. (Ord. 1696 § 1, 1997).

17.24.111 Permit exception.

A.    A right-of-way placement permit shall not be required of franchised utilities or city contractors when responding to emergencies that require work in the right-of-way, such as water or sewer main breaks, gas leaks, downed power lines, or similar emergencies; provided, that the public works department shall be notified by the responding utility or city contractor verbally or in writing, as soon as practicable following onset of an emergency. Nothing in this chapter shall relieve a responding utility or city contractor from the requirement to obtain a right-of-way use permit after beginning emergency work in the right-of-way.

B.    Permits shall not be required for routine maintenance and construction work performed by city utilities and city maintenance crews. (Ord. 1696 § 1, 1997).

17.24.112 Revocation of permits.

A.    The director may revoke or suspend any permit issued under this chapter whenever:

1.    The work does not proceed in accordance with the plans as approved, or conditions of approval, or is not in compliance with the requirements of this chapter or procedures, or other city ordinances, resolutions, or state law; or

2.    The city has been denied access to investigate and inspect how the right of-way is being used; or

3.    The permittee has made a misrepresentation of a material fact in applying for a permit; or

4.    The progress of the approved activity indicates that it is or will be inadequate to protect the public and adjoining property or the street or utilities in the street, or any excavation or fill endangers or will endanger the public, the adjoining property or street, or utilities in the street; or

5.    The director has determined there are adequate grounds to revoke the permit as provided in BMC 17.24.119 and 17.24.216.

B.    Upon suspension or revocation of a permit, all use of the right-of-way shall cease, except as authorized or directed by the director. (Ord. 1696 § 1, 1997).

17.24.114 Performance deposits/insurance.

A.    The guarantees, bonds and insurance required by the Bothell standards shall be required for all permits issued under this chapter.

B.    If the director determines that there is a potential for injury, damage, or expense to the city as a result of damage to persons or property arising from an applicant’s proposed use of any right-of-way, the applicant shall be required to make a cash deposit with the director or to provide a security device or insurance in a form acceptable to the director for the activities described in the subject permit. The amount of the cash deposit, security device, or insurance shall be determined by the director and in addition to the requirements of any other applicable provision of the Bothell Standards or applicable provision of the Bothell Municipal Code.

C.    The requirements for any such special performance deposits and insurance are based on considerations of applicant’s prior performance, nature of the proposed use, cost of the activity, length of use, public safety, potential damage to right-of-way, and potential liability or expense to the city.

D.    When there is a need to ensure conformance with the city’s development standards, city or state construction standards, or other requirements, the applicant shall be required to provide a guarantee of workmanship and materials for the life of the permit or the underlying improvement or activity for which the permit was required, whichever is longer. Such guarantee may be in the form of a cash deposit or a security device in a form and amount approved by the director. (Ord. 1696 § 1, 1997).

17.24.115 Hold harmless/indemnity.

A.    Anyone accepting permits under the terms of this chapter shall agree to release, covenant not to bring suit, and agree to indemnify, defend and hold harmless the city, its officers, employees, agents, and representatives from any and all claims, costs, judgments, awards or liability to any person, including claims by the public utility’s own employees for which the public utility might otherwise be immune under RCW Title 51, for injury or death of any person or damage to property caused by or arising out of the acts or omissions of the public utility, its agents, servants, officers, or employees in the performance of any permit granted under this chapter, and any rights granted hereunder. Inspection or acceptance by the city of any work performed by a public utility during or at the time of completion of construction shall not be grounds for avoidance by the public utility of any of its obligations under this agreement. Such indemnification obligation shall extend to claims which are not reduced to a suit and any claims which may be compromised prior to the culmination of any litigation or the institution of any litigation. It shall be further specifically and expressly understood that the indemnification provision provided herein constitutes the public utility’s waiver of immunity under RCW Title 51, solely for the purposes of this indemnification, and it shall further provide that this waiver has been mutually negotiated by the parties. Such indemnity agreement is required until the facilities or any other appurtenances are removed from the public right-of-way, or, until the city furnishes a written release of the requirement to the public utility.

B.    In addition, the city may require that anyone accepting such a permit provide the city with additional indemnification, such as an indemnification from a parent company, and/or the city may require that the permittee provide proof of insurance acceptable to the city which covers potential exposure to the city.

C.    The indemnification provided for herein does not apply to injuries to persons or damage to property caused by or resulting from the sole negligence of the city, its agents or employees. (Ord. 1696 § 1, 1997).

17.24.117 Inspections.

As a condition of issuance of any permit or authorization which requires approval of the department, each applicant shall be required to consent to inspections by the public works department or any other appropriate city department. (Ord. 1696 § 1, 1997).

17.24.118 Correction and discontinuance of unsafe, nonconforming or unauthorized conditions.

A.    Whenever the director determines that any condition on any right-of-way is in violation of, or any right-of-way is being used contrary to any provision of this chapter or procedures adopted under this chapter or other applicable codes or standards, or without a right-of-way use permit, the director may order the correction or discontinuance of such condition or any activity causing such condition.

B.    The director is authorized to order correction or discontinuance of any such condition or activities following the methods specified in procedures adopted pursuant to this chapter.

C.    The director shall also have all powers and remedies which may be available under state law, this chapter, and procedures adopted under this chapter for securing the correction or discontinuance of any condition specified in this section.

D.    The director is authorized to use any or all of the following methods in ordering correction or discontinuance of any such conditions, or activities as the director determines appropriate:

1.    Service of oral or written directives to the permittee or other responsible person requesting immediate correction or discontinuance of the specified condition;

2.    Service of a written notice of violation, ordering correction or discontinuance of a specific condition or activity within five days of notice, or such other reasonable period as the director may determine;

3.    Revocation of previously granted permits where the permittee or other responsible person has failed or refused to comply with requirements imposed by the city related to such permits;

4.    Issuance of an order to immediately stop work until authorization is received from the city to proceed with such work;

5.    Service of summons and complaint certified by the city attorney or a citation and notice to appear by an arresting peace officer upon the permittee or other responsible person who is in violation of this chapter or other city ordinances.

E.    Any object or thing which shall occupy any right-of-way without a permit is a nuisance. The department may attach a notice to any such object or thing stating that if it is not removed from the right-of-way within 24 hours of the date and time stated on the notice, the object or thing may be taken into custody and stored at the owner’s expense. The notice shall provide an address and phone number where additional information may be obtained. If the object or thing is a hazard to public safety, it may be removed summarily by the city. Notice of such removal shall be thereafter given to the owner, if known. This section shall not apply to motor vehicles.

F.    All expenses incurred by the city in abating the condition or any portion thereof shall constitute a civil debt owing to the city jointly and severally by such persons who have been given notice or who own the object or thing or placed it in the right-of-way, which debt shall be collectible in the same manner as any other civil debt.

G.    The city shall also have all powers and remedies which may be available under law, this chapter, and procedures adopted under this chapter for securing the correction or discontinuance of any conditions specified by the city. (Ord. 1696 § 1, 1997).

17.24.119 Displacement for public use.

A public utility or permittee under order of the director shall, upon a minimum of 45 days’ notice at its own cost and expense, move any underground, service or overhead facilities which interfere with any local improvement district work or with any construction for street or transportation purposes or other public improvement authorized or ordered by the city. The actual number of days shall be specified by the director in the director’s order. (Ord. 1696 § 1, 1997).

17.24.120 Additional ducts or conduits.

For electric, communication and similar infrastructure, anyone constructing under authority of this chapter and ordinances amendatory thereof any underground ducts or conduits, shall:

A.    When the number of mainline ducts or conduits exceeds two, reserve free of cost to the city for the exclusive use of governmental communication, traffic signal, and other governmental signal purposes, additional ducts in the proportion of one duct for every five or less constructed; provided, the director may, in the director’s reasonable discretion, limit the number of ducts to be reserved; and

B.    Upon request, provide the city with additional duct or conduit space over and above the conduit or conduits planned to be constructed for the entity holding the permit or provided free to the city pursuant to subsection A of this section. Such additional ducts or conduits shall be of a size and configuration specified by the city and shall be dedicated to the city. The city shall have the right to use the ducts and conduits for any purpose, including but not limited to leasing them to other entities. The incremental costs of adding the specified ducts and conduits for the city shall be borne by the city. (Ord. 1696 § 1, 1997).

17.24.130 Joint use poles.

A.    Subject to applicable state and federal law, any public utility erecting or maintaining any privately owned poles installed under the authority of this chapter shall permit joint use of such pole to another who is authorized to construct and maintain such a pole or attachments thereto if directed to do so by the director and shall obey any order issued by the director relative to the joint use of such pole.

B.    Other than the city, anyone who, pursuant to subsection A of this section, makes a joint use of a privately owned pole or set of poles of another, shall pay to the owner a reasonable proportion of the cost of installing and maintaining the pole or set of poles, respectively; provided, by mutual agreement, the effective parties may adopt an alternative arrangement for compensation. BMC 17.24.212 denies compensation for use of a privately owned pole by the city for government communication. (Ord. 1696 § 1, 1997).

17.24.140 City use for government communication.

Anyone erecting or maintaining poles under authority of this section shall allow the city the right, free of charge, to attach, maintain and operate as governmental communication and signals wires and/or fixtures on cross-arms, or on the poles erected and so maintained. (Ord. 1696 § 1, 1997).

17.24.150 Painting poles.

Anyone erecting or maintaining poles under authority of this chapter shall, under order of the director, paint or repaint its poles to such height and in such colors and at such times as said official may direct. (Ord. 1696 § 1, 1997).

17.24.160 Accommodating moving of building(s) and/or equipment.

Anyone maintaining wires, cables, appurtenances in a public place under this chapter upon seven days’ notice from the director, shall disconnect or move his/her/its wires, cables or appurtenances to allow for the moving of building(s) and/or equipment across or along any such street, alley or other public place; provided, that the advance notice may be reduced to 24 hours if the wires, cables or appurtenances are below the minimum clearance set by law or regulation and in the case of an emergency. The cost of the franchise holders of moving the wire, cable or appurtenance shall be borne as follows: (a) by the franchise holder if the wires, cables or appurtenances are below the minimum vertical clearance required by state statutes, city ordinance, or rules of the director, above the surface of the public place, and no adjustment would be necessary if the minimum clearance had been maintained; and (b) by the person desiring to move the building(s) and/or equipment under other circumstances. (Ord. 1696 § 1, 1997).

17.24.170 Removal.

Anyone accepting permits under the terms of this chapter for the installation of any facilities shall remove such installation when it is no longer required or used, and the director orders its removal. (Ord. 1696 § 1, 1997).

17.24.180 Billings and collections.

The director, jointly with the finance director, may establish procedures pertaining to the billing and collection of fees and charges adopted pursuant to this chapter. (Ord. 1696 § 1, 1997).

17.24.190 Appeals.

A decision of the director made in accordance with this chapter shall be considered a final Type I (see BMC 11.04.003) administrative decision. (Ord. 1696 § 1, 1997).

17.24.200 Liability.

The director and other employees charged with the enforcement and administration of this chapter, acting for the city in good faith and without malice in the discharge of their duties, shall not thereby render themselves liable personally for damages that may accrue to persons or property as a result of an act required or by reason of an act or omission in the discharge of such duties. (Ord. 1696 § 1, 1997).

17.24.210 Tree trimming.

Any public utility required by state statute or regulation to trim or remove trees which may interfere with their facilities shall ensure that their tree trimming activities protect the appearance, integrity and health of the trees to the extent reasonably possible. The public utility shall prepare and maintain a tree trimming schedule to ensure compliance with this provision and to avoid exigent circumstances where tree cutting, trimming or removal is necessary to protect the public safety or continuity of service without the regard for the appearance, integrity or health of the trees that planned maintenance would otherwise allow. The public utility shall submit the schedule to the director. Except where exigent circumstances do not permit, the public utility shall give the owner the property on which the trees are located at least five days’ advance written notice of the tree trimming. (Ord. 1696 § 1, 1997).

17.24.212 Underground electric power facilities.

A.    Subject to and in accordance with any applicable rates and tariffs on file with the WUTC, the public utility shall cooperate with the city in promoting a policy of undergrounding facilities within the public right-of-way. If the city shall direct the public utility to underground theirs, such undergrounding shall be arranged and accomplished subject to and in accordance with applicable rates and tariffs on file with the WUTC (or such other regulatory agency having jurisdiction).

B.    In the event that the city undertakes any public improvement which would otherwise require in the discretion of the director the relocation of the public utility’s aboveground facilities, the director may, by written notice to the public utility, direct that any such facilities be converted to underground facilities. Any such conversion shall be done subject to and in accordance with applicable schedules and tariffs on file with the WUTC (or such other regulatory agency having jurisdiction). (Ord. 1696 § 1, 1997).

17.24.214 Notice of tariff changes affecting permitted facilities.

A permittee shall, when making application for any changes in tariffs affecting the provisions of this chapter or any permit issued hereunder, notify the city in writing of the application and provide the director with a copy of the submitted application. The permittee shall further provide the director with a copy of any actual approved tariff change affecting any permit issued pursuant to this chapter. (Ord. 1696 § 1, 1997).

17.24.216 Violation – Penalty.

A.    No person shall violate or fail to comply with this chapter.

B.    A violation of or failure to comply with any provision of this chapter shall constitute a civil infraction subject to the enforcement provisions of Chapter 11.20 BMC.

C.    A violation or failure to comply with any provision of this chapter, including any order of the director authorized by this chapter, shall, in addition to any other remedies, constitute grounds for the director to revoke the underlying permit issued to the permittee, if any, and grounds for the denial of any additional permits under this chapter until the permittee is in full compliance with the provisions of this chapter. (Ord. 1696 § 1, 1997).