Chapter 12.58
WIRELESS COMMUNICATION FACILITIES WITHIN CITY RIGHTS-OF-WAY
Sections:
12.58.040 Grant of authority – Right-of-way use agreement required.
12.58.050 Grant of authority – Effective period.
12.58.060 Application – Contents.
12.58.080 Application, review, and inspection fees.
12.58.090 Annual compensation for use of right-of-way.
12.58.100 Insurance requirements.
12.58.120 Liability and indemnification.
12.58.140 Aesthetic and scenic considerations.
12.58.150 Adjustments and relocations.
12.58.165 Facility security and safety.
12.58.010 Purpose.
The purpose of this chapter is to grant, through right-of-way use agreements, authority for the placement of wireless communication facilities within the rights-of-way and to establish standards for right-of-way use agreements which:
A. Compensate the City for the value of the use of the right-of-way by wireless communication providers; and
B. Reimburse the City for ongoing costs associated with those uses of the right-of-way; and
C. Encourage competition by establishing consistent terms and conditions under which wireless communication providers may use valuable public property to serve the public; and
D. Fully protect the public and the City from any harm that may flow from such private use of the right-of-way; and
E. Protect and carry out the authority of the City over activities in the right-of-way, while recovering costs; and
F. Allow the City to exercise its stewardship responsibilities with regard to the right-of-way in a manner consistent with all applicable City policies and codes, including but not limited to the zoning code, the City comprehensive plan, and the Road Standards; and
G. Otherwise protect the public interests in the development and use of the right-of-way infrastructure and in preserving and improving the aesthetics of the community. [Ord. 23-0578 § 2 (Exh. 1).]
12.58.020 Definitions.
Repealed by Ord. 23-0578. [Ord. 16-0426 § 9 (Att. G); Ord. 03-0180 §§ 1, 2; (KCC 14.45.020).]
12.58.030 Exemptions.
The following wireless communication facilities are not subject to the provisions of this chapter:
A. Facilities located or constructed by the City;
B. Facilities located or constructed by emergency services within the City as approved by the city manager. [Ord. 23-0578 § 2 (Exh. 1).]
12.58.040 Grant of authority – Right-of-way use agreement required.
Wireless communication facilities shall only be located or constructed within the right-of-way after a right-of-way use agreement is approved by the city manager. Prior to approving the agreement, the City shall ensure that the proposed facility is located, designed and proposed to be constructed in a manner that complies with all applicable City policies and codes, including but not limited to the provisions of KMC Title 18, Zoning, the City comprehensive plan, the Road Standards, and per Chapter 12.55 KMC. Furthermore, the right-of-way use agreement shall only allow placement of wireless communication facilities on improved and maintained rights-of-way. [Ord. 23-0578 § 2 (Exh. 1).]
12.58.050 Grant of authority – Effective period.
The right-of-way use agreement constitutes authorization for the applicant to use the right-of-way at the location specified in the agreement for no more than 10 years. One request for an extension may be approved for up to two years at the discretion of the city manager. Failure to comply with the terms and conditions of the right-of-way use agreement, including payment of required annual compensation, is cause for revoking the agreement. The agreement holder shall remove facilities authorized by the agreement from the right-of-way upon termination or expiration of the agreement, unless renewed, or upon revocation of the agreement for cause. [Ord. 23-0578 § 2 (Exh. 1).]
12.58.060 Application – Contents.
A. The City shall not commence review of any application set forth in this chapter until the applicant has submitted the following:
1. An application form provided by the City and completed by the applicant;
2. The name of the applicant and a designated contact person;
3. Plans and specifications for any structures, antenna or other equipment to be placed in the right-of-way or, if applicable, on abutting property;
4. A vicinity map showing the specific location of right-of-way subject to the application;
5. When structures and equipment are to be located on abutting properties:
a. A site plan illustrating the relationship to property lines and other structures on the site;
b. Legal description of the site abutting property; and
c. Proof that the abutting property is a legally recognized lot pursuant to KMC Title 17;
6. A critical areas affidavit if required by Chapter 18.55 KMC; and
7. A completed environmental checklist, if required by Chapter 19.35 KMC.
B. The applicant shall attest by written oath to the accuracy of all information submitted for an application. [Ord. 23-0578 § 2 (Exh. 1).]
12.58.070 Application review.
A. The department shall coordinate review and inspection of the application for a right-of-way use agreement and, to the extent required, any zoning approvals, building permits and environmental review under the State Environmental Policy Act, as follows:
B. The department shall review and evaluate applications with respect to the hazard and risk of the proposed construction and location of the proposed construction in relation to other facilities in the right-of-way.
C. The City shall review and evaluate all applications to determine consistency with respect to the standards and requirements of Chapter 18.60 KMC and KMC Title 21. The City shall also be the lead agency for purposes of any environmental review required under Chapter 19.35 KMC. [Ord. 23-0578 § 2 (Exh. 1).]
12.58.080 Application, review, and inspection fees.
The applicant shall pay the fees imposed by the city council by resolution, payable to the City for the administrative costs and expenses of processing the application and for other functions necessary for the approval and use of permits and the agreement. These fees shall be equal to the administrative costs of approving the agreement, including but not limited to preparing the permit for construction, review, processing, coordinating review with other departments, preparing environmental documents, inspection, agreement preparation, legal review, etc. [Ord. 23-0578 § 2 (Exh. 1).]
12.58.090 Annual compensation for use of right-of-way.
A. In consideration for continuing use of the rights-of-way, the agreement holder shall annually pay compensation to the City in an amount approved by the city council by resolution.
B. For the purpose of this section, “replacement pole” means a new pole replacing an existing pole in the right-of-way with no increase in the total number of poles in the right-of-way. Replacement poles provide extra capacity to support attached wireless communication facilities.
C. Payments of required compensation shall be paid to the City and are due upon the signing of the agreement, prorated to the end of the year, and the first of January every year thereafter.
D. All use payments prescribed by subsection A of this section shall be automatically escalated annually for the change in the U.S. Department of Labor, Bureau of Labor Statistics Consumer Price Index for All Urban Consumers (“CPI-U”) for the Seattle Tacoma-Bremerton Statistical Metropolitan Area for the preceding calendar year. In the event the CPI-U (or a successor or substitute index) is no longer published, a reliable government or other nonpartisan index of inflation selected by the county shall be used to calculate the adjusted amounts. [Ord. 23-0578 § 2 (Exh. 1).]
12.58.100 Insurance requirements.
A. For any right-of-way use agreement, the agreement holder must carry commercial general liability, automobile liability and stop gap or employers liability coverage, each in minimum limits of not less than $2,000,000, in an amount approved by the city manager. All policies must provide endorsements naming the City as an additional named insured.
B. All policies shall be placed with insurers having a Best’s rating of no less than A:VIII or, if not rated by Best, with surpluses equivalent to or greater than Best’s A:VIII rating. The agreement holder shall send copies of certificates, endorsements or other adequate evidence of compliance with this section to the City prior to the City’s execution of the agreement. [Ord. 23-0578 § 2 (Exh. 1).]
12.58.110 Liquidated damages.
All right-of-way use agreements may provide for liquidated damages to compensate the City for harm caused by violation of an agreement or this chapter, or any applicable law in an amount which is a reasonable forecast of just compensation for the harm caused by the violation but no less than $250.00 per day for each day the violation occurs. [Ord. 23-0578 § 2 (Exh. 1).]
12.58.120 Liability and indemnification.
A. All right-of-way use agreements shall contain the following provision: the holder of agreement shall have no recourse whatsoever against the City or its officials, boards, commissions, agents, or employees for any loss, costs, expenses, or damages arising out of any provision or requirement of the agreement, or KMC Title 21 because of the enforcement of the agreement, or KMC Title 21 except if such loss, costs, expenses or damages are the result of the sole negligence or misconduct on the part of the City or its agents.
B. All right-of-way use agreements shall contain the following provision: to the extent permitted by law, the holder of the agreement shall, at its sole cost and expense, indemnify, hold harmless, and defend the City and its officers, boards, commissions, agents and employees, against any and all claims, including but not limited to third-party claims, suits, causes of action, proceedings and judgments for damages or equitable relief arising out of the construction, repair, maintenance or operation of its wireless communication facilities, or in any way arising out of the agreement holder’s enjoyment or exercise of the right-of-way use agreement granted pursuant, or otherwise subject to KMC Title 21, regardless of whether the act or omission complained of is authorized, allowed or prohibited by KMC Title 21 or an agreement. This provision includes, but is not limited to, expenses for reasonable legal fees and for disbursements and liabilities assumed by the City as follows:
1. To persons or property, in any way arising out of or through the acts or omissions of the agreement, its officers, employees, or agents or to which the agreement holder’s negligence shall in any way contribute;
2. Arising out of an agreement holder’s failure to comply with the provisions of any federal, state or local statute, ordinance, rule, or regulation applicable to the agreement holder.
C. The City shall give the agreement holder 30 calendar days’ written notice of the making of any claim or the commencement of any action, suit or other proceeding covered by KMC Title 21. In the event any such claim arises, the City or any other indemnified party shall tender the defense thereof to the permit and the agreement holder shall have the right to defend, settle, or compromise any claims arising hereunder and the City shall cooperate fully therein. [Ord. 23-0578 § 2 (Exh. 1).]
12.58.130 Antenna and equipment cabinets/buildings abutting residential zones.
Repealed by Ord. 16-0426. [Ord. 03-0180 §§ 1, 2; (KCC 14.45.130).]
12.58.140 Aesthetic and scenic considerations.
A. Facility installations shall be designed and constructed to minimize the adverse effect on existing right-of-way, manmade or natural amenities. Special efforts shall be taken to minimize any potential negative impact on areas of scenic beauty such as viewpoints, recreation areas, public parks, and historic sites. Facility designs shall be in accordance with Chapter 18.60 KMC.
B. Overhead facilities shall take into consideration existing trees and future growth. Facilities shall be located to avoid or minimize branch trimming, root pruning, or other damage to existing trees. [Ord. 23-0578 § 2 (Exh. 1).]
12.58.150 Adjustments and relocations.
A. The utility shall be responsible, at no expense to the City, to repair, remove or relocate all existing facilities within the right-of-way if such installation, repair, removal, or relocation is required by the City for any purpose, including, but not limited, conflicts with a City project, City maintenance and operation, public safety, pole relocations or replacements.
B. Utility Driven Relocations. In the event of a relocation or replacement, all utilities using the original structure shall transfer to the new structure within 120 calendar days of the new structure installation. The utility initiating the relocation/replacement shall be responsible for the coordination of and providing a minimum of 90-calendar-day notice to any other third-party utilities for the transfer of their respective facilities.
C. Facilities that conflict with City projects shall be relocated as directed by the City. Facilities shall be relocated in the time frame required by the right-of-way use agreement.
D. Failure to relocate facilities as required by this section shall be considered a breach of agreement and may result in termination of the agreement and shall be subject to enforcement and the penalties set forth in KMC 12.55.130. [Ord. 23-0578 § 2 (Exh. 1).]
12.58.165 Facility security and safety.
Notwithstanding reinforcement or protection otherwise provided, a utility shall be responsible for the safety and security of any existing facility within the right-of-way. Where there are construction hazards or where heavy construction equipment will be used, the utility shall provide adequate temporary protection. Construction of facilities shall be performed in such a manner as to provide a safe passage within the right-of-way. In restoring the right-of-way, the utility shall protect existing facilities in the right-of-way without impacting the safe and efficient operation of the road. [Ord. 23-0578 § 2 (Exh. 1).]
12.58.170 Abandonment.
All abandoned facilities shall be removed by the agreement holder from the right-of-way within 30 days of being decommissioned by the utility. [Ord. 23-0578 § 2 (Exh. 1).]