Chapter 12.26
FRANCHISES IN RIGHTS-OF-WAY
Sections.
12.26.070 Expense of proceeding.
12.26.075 Installation of utilities on county roads.
12.26.090 Special conditions for pipelines.
12.26.100 Acceptance, recording.
12.26.115 Revocation or termination of franchise.
12.26.116 Notice and duty to cure.
12.26.117 Violations and failure to comply.
12.26.120 Unlawful connections.
12.26.005 Definitions.
Except as otherwise defined herein, the definitions in CCC 12.21.020 shall apply. [Ord. 17-036 § 2, 4-25-17.]
12.26.010 Franchise required.
A franchise shall be required by the Engineer as provided in this chapter for any utility purveyor using any real property, easement, rights-of-way, bridge, trestle or other property of the county for the placement, construction and maintenance of one or more utility, unless exempted by law. A franchise shall also be required where a utility easement is reserved as provided by RCW 36.87.140. A franchise is not required for the installation of a utility facility within a county right-of-way where the only utility use of such right-of-way consists of a single, sole-use perpendicular crossing, provided all other applicable provisions of this chapter shall apply. All utility providers who do not currently possess a valid county franchise or permit shall be required to apply for a franchise as required under this section within 120 days of the effective date of this chapter. Except for those franchises and permits which were previously approved after public hearing under Chapter 36.55 RCW, or which by county ordinance or state or federal law are exempt from this chapter, all existing utility franchisees and permittees shall also apply for a franchise as required under this section within 120 days of the effective date of this chapter. [Ord. 17-036 § 2, 4-25-17.]
12.26.020 Application.
An application, with requisite attachments, and an application fee in the amount specified in fee schedules, established by the Board, shall be filed with the Department. The County Engineer (Engineer) will review such application and submit a report and recommendations thereon to the Cowlitz County Board of Commissioners (Board); such recommendations to be made within 30 days of the filing of a complete application. An application shall be deemed incomplete if no activity has occurred by the applicant for a period of three months. [Ord. 17-036 § 2, 4-25-17.]
12.26.030 Process.
When the Engineer has determined that an application for a franchise is complete, he/she shall prepare an ordinance for consideration by the Board granting such franchise. The ordinance shall be accompanied by supporting exhibits consisting of:
A. A complete franchise application.
B. An Engineer’s report with contents as specified in CCC 12.26.040.
C. A notice of public hearing as specified in CCC 12.26.050.
D. An itemized list of costs and expenses incurred in the examination and report of the proposed franchise, including the reasonable value of the engineering and legal reviews thereof.
E. Proof of insurance when required by the Engineer.
F. Any exhibits and other documentation deemed necessary by the Engineer to adequately explain the proposed franchise. [Ord. 17-036 § 2, 4-25-17.]
12.26.040 Engineer’s report.
The Engineer shall examine the proposed application for franchise and shall report to the Board on the following:
A. The name or names of the applicant or applicants.
B. A description of the county roads or other property by reference to section, township and range, in which the existing or future county roads or portions thereof or other property to be included in the proposed franchise are physically located.
C. A description of the types and extent of facilities owned by the company seeking the franchise.
D. A statement addressing how the applicant intends to meet the insurance requirements of this title.
E. A recommendation on whether the franchise should be granted or not.
F. A recommendation on the length of time of the franchise if approved.
G. Any exhibits and other documentation deemed necessary by the Engineer to adequately explain the proposed franchise. [Ord. 17-036 § 2, 4-25-17.]
12.26.050 Notice of hearing.
The Board, after reviewing the report of the Engineer, may at regular Board work session modify and/or introduce the franchise and set a public hearing for action on the report and proposed franchise. Notice of the hearing shall be posted in three public places in the county seat of the county at least 15 days before the day fixed for the hearing, as required by RCW 36.55.040. The Board shall publish a like notice two times in the county official newspaper, the last publication to be not less than five days before the day fixed for the hearing. The notice shall state the name or names of the applicant or applicants, a description of the county roads or other property by reference to section, township and range in which the existing or future county roads or portions thereof or other property to be included in the proposed franchise are physically located, and the time and place fixed for the hearing. The applicant for franchise shall be responsible for all administrative and hearings costs thereof. [Ord. 17-036 § 2, 4-25-17.]
12.26.060 Hearing.
On the day fixed for the hearing, the Board shall proceed to consider the report of the Engineer, together with any evidence for or any objection against granting the proposed franchise. If, after the hearing, the Board deems it to be for the public interest to grant the franchise in whole or in part, it shall pass an ordinance to that effect and may require the applicant to place his utility and its appurtenances in such locations over, under, along, across, and upon the county land or rights-of-way as the Board finds will cause the least interference with other uses of the road or other county property involved. [Ord. 17-036 § 2, 4-25-17.]
12.26.070 Expense of proceeding.
Regardless of the Board’s decision to grant or not to grant the franchise, the applicant shall pay to the county road fund, upon request, the itemized costs and expenses detailed in CCC 12.26.030(D) and 12.26.050. Payment shall be made prior to any franchise being effective, and prior to recording of any franchise in accordance with CCC 12.26.100. [Ord. 17-036 § 2, 4-25-17.]
12.26.075 Installation of utilities on county roads.
The restricted use of county roads provisions of Chapter 12.20 CCC, the utility installation requirements of Chapter 12.21 CCC, and the unopened road requirements of Chapter 12.30 CCC are hereby incorporated into this chapter. [Ord. 17-036 § 2, 4-25-17.]
12.26.080 Conditions.
Franchises are subject to the following:
A. The conditions contained in Chapter 36.55 RCW, including:
1. Any person constructing or operating any utility on or along a county road shall be liable to the county for all necessary expense incurred in restoring the county road to a suitable condition for travel as determined by the Engineer.
2. No exclusive franchise or privilege shall be granted.
3. The facilities of the holder of any such franchise shall be removed at the expense of the holder thereof, to some other location on such county road in the event said road is to be constructed, altered, or improved or becomes a primary state highway and such removal is reasonably necessary for the construction, alteration, or improvement thereof.
B. Applicable sections of this title, including Chapter 12.21 CCC, hold harmless, and the county utility policy per Chapter 12.21 CCC.
C. All construction or installation of poles, cables, or other improvements, or the service, repair or relocation of the same, performed along, over and/or under the county roads, rights-of-way, or other county property subject to said franchise shall be done in such manner so as to not interfere with the construction and maintenance of other facilities, public or private, drains, drainage ditches and structures located there, nor the maintenance or improvement of such county roads, rights-of-way, or other county properties.
D. Such other conditions as the Board deems to be in the public interest and appropriate to protect county property and the public and facilitate its use of the right-of-way for transportation.
E. All terms and conditions of the franchise are burdens upon the successors and assigns of the franchisee, and all privileges as well as all obligations and liabilities of the franchisee inure to its successors and assigns equally as if they were specifically mentioned wherever the franchisee is mentioned. Neither the franchise nor any interest therein shall be leased, sold, transferred, assigned, disposed of, or subject to a change of control, in whole or part, either by forced or involuntary action, or by voluntary action, without the prior written consent of the Board.
F. Applicable local, state, and federal laws, including applicable sections of the Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992, the Telecommunication Act of 1996, and any future amendments shall apply. Conditions contained within this chapter, as applicable to cable television, may also apply to the use of other television or voice, video, data communication devices, where consistent with applicable laws.
G. Franchisee shall continuously be a member of the state of Washington one-number locator service under Chapter 19.122 RCW, or a county-approved equivalent, and shall comply with all such applicable rules and regulations. Franchisee shall provide reasonable notice to the county prior to commencing any maintenance or construction under any franchise and additionally to those owners or other persons in control of property in the franchise area when the maintenance or construction will affect access or otherwise impact the property.
H. Upon acceptance of the county’s franchise by franchisee, the franchisee shall file with the Engineer and thereafter maintain at all times with the county a map depicting the location of the franchisee’s utility within the franchise area. Any extension or removal of the franchisee’s system shall require a revised map to be filed with the Engineer within 30 days. [Ord. 17-036 § 2, 4-25-17.]
12.26.090 Special conditions for pipelines.
All hazardous liquid pipeline construction, maintenance or operation shall be subject to the following additional, special conditions:
A. Hazardous liquid pipeline means any pipeline carrying hazardous, toxic, or dangerous substance, material, waste, pollutant, or contaminant. The term shall specifically include petroleum and petroleum products and their by-products, residue, and remainder in whatever form or state. The term shall also be interpreted to include a pipeline carrying any substance which, after release into the environment, will or may reasonably be anticipated to cause death, disease, injury, illness, behavior abnormalities or genetic abnormalities.
B. Markers demarcating the pipeline’s location shall be placed on the surface at least every 100 yards so as to provide clear warning of the presence of the pipeline but in a manner that does not interfere with trails or other public uses in that area. Additionally, franchisee shall place continuous underground markers demarcating the pipeline’s location each time franchisee digs to the pipeline for any reason.
C. Upon acceptance of the county’s franchise by franchisee, the franchisee shall file and thereafter maintain at all times with the county a survey depicting the location of the pipeline corridor within the franchise area as well as the approximate location of franchisee’s pipeline(s) and facilities within the pipeline corridor along with all other known utilities, landmarks, and physical features. When the county or county-authorized third-parties are engaged in work within the pipeline corridor, or within 50 feet of the pipeline corridor, franchisee shall promptly respond to requests to locate the precise position of its facilities. If the work is for a county-related project, franchisee shall bear any costs associated with locating its facilities.
D. Franchisee shall also provide detailed as-built design drawings showing the size, depth and location of all pipes, valves, gauges, other service appurtenances and facilities within the franchise area. It is understood that the location of the facilities shall be verified by excavating if exact alignment is required. County agrees that it will comply with all state and federal laws prohibiting disclosure of franchisees drawings, maps, etc., to any third party.
E. Within 30 days of completing any maintenance or construction, or any other substantial activity within the franchise area, the franchisee shall provide updated and corrected as-built drawings and a survey showing the location, depth and other characteristics of the facilities within the franchise area.
F. Nothing in this section shall be deemed to impose any duty or obligation upon the county to determine the adequacy or sufficiency of franchisee’s plans and designs or to ascertain whether franchisee’s proposed or actual construction, testing, maintenance, repairs, replacement or removal is adequate or sufficient or in conformance with the plans and specifications reviewed by the county.
G. Franchisee shall be solely and completely responsible for workplace safety and safe working practices on its job sites within the franchise area, including safety of all persons and property during the performance of any work.
H. Franchisee shall be solely responsible for all necessary costs incurred by the county, and any city, special district or state agencies in responding to any rupture, spill, or leak from franchisee’s pipeline(s) and/or facilities, including, but not limited to, detection and removal of any contaminants from air, earth or water, and all actual remediation costs. This section shall not limit franchisee’s rights or causes of action against any third party or parties who may be responsible for a leak, spill or other release of hazardous liquid from franchisee’s pipeline, including such third-party insurers. [Ord. 17-036 § 2, 4-25-17.]
12.26.100 Acceptance, recording.
No franchise shall be effective until accepted by the franchisee, acceptance evidenced by the franchisee so indicating on a copy of such franchise and returning it to the Board. The Board shall submit the franchise to the County Auditor for recording as required by RCW 36.55.080. [Ord. 17-036 § 2, 4-25-17.]
12.26.110 Inspections.
In order to ensure that franchisees restore and repair county rights-of-way and county property thereon, the following examinations and inspections will be performed by the Department of Public Works and/or other affected county departments:
A. Examinations, inspection and approval of plans and specifications submitted by the franchisee;
B. Examination, inspection and approval of construction and restoration work consequent to breaking of soil of the county roads or rights-of-way for the purpose of laying, relaying, connecting, disconnecting and repairing utilities transmission lines, conduits and other facilities;
C. Permits may be issued in accordance with Chapter 12.21 CCC for the franchisee’s activities within the right-of-way and a reasonable fee may be charged for the performance of necessary examinations and inspections in accordance with the fee established by the Board. [Ord. 17-036 § 2, 4-25-17.]
12.26.115 Revocation or termination of franchise.
A franchise granted by the county to use or occupy rights-of-way may be revoked for any one or more of the following reasons:
A. Construction or operation at an unauthorized location.
B. Unauthorized transfer of control of the franchisee.
C. Unauthorized assignment.
D. Unauthorized sale, assignment or transfer of the franchisee’s franchise assets or an interest therein.
E. Misrepresentation by or on behalf of a franchisee in any application to the county.
F. Abandonment of telecommunications facilities in the rights-of-way.
G. Failure to relocate or remove facilities as required in this chapter.
H. Failure to pay taxes, compensation, fees or costs when and as due the county.
I. Insolvency or bankruptcy of the franchisee.
J. Violation of a material provision of this chapter.
K. Violation of a material term of a franchise. [Ord. 17-036 § 2, 4-25-17.]
12.26.116 Notice and duty to cure.
In the event that the Board believes that grounds exist for revocation of a franchise, the franchisee shall be given written notice of the apparent violation or noncompliance, be provided a short and concise statement of the nature and general facts of the violation or noncompliance, and be given a reasonable period of time not exceeding 30 days to furnish evidence:
A. That corrective action has been, or is being actively and expeditiously pursued, to remedy the violation or noncompliance.
B. That rebuts the alleged violation or noncompliance.
C. That it would be in the public interest to impose some monetary damages, penalty or sanction less than revocation. [Ord. 17-036 § 2, 4-25-17.]
12.26.117 Violations and failure to comply.
A. In the event that a franchisee fails to provide evidence reasonably satisfactory to the Board as provided hereunder, the Board shall provide the franchisee with notice and a reasonable opportunity to be heard concerning the matter.
B. If persuaded that the franchisee has violated or failed to comply with a material provision of this chapter or of a franchise or applicable codes, ordinances, statutes, rules, or regulations, the Board shall determine whether to revoke the franchise, and issue a written decision relating thereto, or to establish some monetary damages, penalty, lesser sanction and cure, considering the nature, circumstances, extent and gravity of the violation as reflected by one or more of the following factors: whether the misconduct was egregious; whether substantial harm resulted; whether the violation was intentional; whether there is a history of prior violations of the same or other requirements; whether there is a history of overall compliance; and whether the violation was voluntarily disclosed, admitted or cured.
C. Upon a Board determination of revocation, or the franchisee’s failure to pay damages or otherwise cure any Board penalty or sanction, the continued use county real property, easements, roadways, rights-of-way, bridges, trestles or other property under the franchise shall be considered a public nuisance pursuant to CCC 12.55.060, and subject to abatement thereunder.
D. Nothing in this section, however, shall be construed as limiting any remedies that the county may have, at law or in equity, for enforcement of this chapter. [Ord. 17-036 § 2, 4-25-17.]
12.26.120 Unlawful connections.
A. It shall be unlawful for any utility purveyor, single user utility purveyor, or other person to make or use any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with a part of a franchise system within this county for the purpose of enabling such utility purveyor, single user purveyor, or other person to receive or use any service without payment to the owner of said system.
B. It shall be unlawful for any utility purveyor, single user purveyor, or other person, without the consent of the owner, to willfully tamper with, remove or injure any equipment or facilities used for the distribution of the franchisee’s services.
C. It shall be unlawful for any utility purveyor, single user utility purveyor, or other person to make or use any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with a part of a franchise system within this county in violation of the provisions of Chapter 10.25 CCC and CCC Titles 16, 18 and 19. [Ord. 17-036 § 2, 4-25-17.]
12.26.125 Fees.
The Board of County Commissioners (Board) shall, from time to time by resolution, to be kept on file with both County Engineer and the Clerk of the Board, establish the fees and costs to be charged for the application, processing, review and approval, and ongoing administration of any public or private franchise, permit or permission approved hereunder, as the reasonably associated and determined value of county services tendered and received by such franchisee or permittee. Fees and any associated costs shall be due and owing from the franchisee or permittee within 60 days of county invoicing, and failure to pay shall constitute cause for revocation under CCC 12.26.115. [Ord. 17-036 § 2, 4-25-17.]