Chapter 12.06 RIGHT-OF-WAY FRANCHISES AND PERMITS FOR PUBLIC AND PRIVATE UTILITIES

The purpose of this chapter is to regulate the use of the public right-of-way, to establish standards for the granting of city right-of-way franchises for public and private utilities, and to ensure consistency of such franchises with the city comprehensive plan, sound engineering and design standards, health and sanitation regulations, and the public interest. The provisions of this chapter shall apply to all franchisees unless otherwise specified; provided, that should the provisions of a specific franchise conflict with the provisions of this chapter, the provisions of the franchise shall control. (Ord. 17-488 § 2; Ord. 05-245 § 2).

12.06.020 Franchises required.

Persons and private or municipal corporations are required to obtain a right-of-way franchise approved by the Edgewood city council in order to use the right-of-way for the construction and maintenance of waterworks, gas pipes, telephone, telegraph, and electric lines, sewers, petroleum products, and any other such public and private utilities, except that:

A. The Edgewood department of public works and any entity under contract with Edgewood shall be exempt from this requirement.

B. The waterworks, specifically including without limitation any pipelines owned and/or operated by any municipal utility for which a valid recorded easement or use right has been granted by the city council, shall be exempt from this requirement.

C. A service provider of “cable television service,” “personal wireless services,” and “telecommunications service,” as these services are defined in Chapter 35.99 RCW, shall be required to follow the procedures adopted by the city for franchises, master use permits and/or the issuance of use permits for these services in the city’s right-of-way, as required by Chapter 35.99 RCW.

D. In lieu of a franchise, site-specific facilities may be authorized through a right-of-way use agreement approved by the city council. (Ord. 17-488 § 3; Ord. 09-315 § 2; Ord. 05-245 § 2).

12.06.030 Nonexclusive grant.

No franchise granted hereunder shall confer any exclusive right or authorization to occupy or use the right-of-way. (Ord. 05-245 § 2).

12.06.040 Term of grant.

Unless otherwise specified in the franchise, or unless otherwise renewed, a franchise granted hereunder shall be in effect for a term of not more than five years. (Ord. 05-245 § 2).

12.06.050 Eminent domain.

Nothing herein shall be deemed or construed to impair or affect, in any way or to any extent, the city’s power of eminent domain. (Ord. 05-245 § 2).

12.06.060 Application.

Applications for right-of-way franchises shall be submitted in the form approved by the public works director to the Edgewood department of public works. (Ord. 17-488 § 4; Ord. 05-245 § 2).

12.06.070 Franchise fees.

There is established a fee for each franchise application, as set forth in the city of Edgewood fee schedule. Said fee will provide reimbursement to the city of Edgewood for the administrative costs and expenses associated with processing the application, including the cost for public notice advertising and publication. The fee shall be payable in its entirety at the time each separate application for a new franchise or franchise renewal, amendment, supplement, or assignment is filed with the department of public works. Further, to the fullest extent allowed by law, all grantees shall reimburse the city for all direct and indirect costs and expenses over and above the established fee incurred by the city in connection with any grant, modification, amendment, renewal, or transfer of any franchise, within 30 days after written demand thereof. (Ord. 23-652 § 23 (Exh. A); Ord. 17-488 § 5; Ord. 05-245 § 2).

12.06.080 Review of applications.

The Edgewood department of public works shall be responsible for the administration and enforcement of franchises, right-of-way permits and alternative annual utility right-of-way permits. (Ord. 17-488 § 6; Ord. 05-245 § 2).

12.06.090 Utility right-of-way permit or alternative annual utility right-of-way permit required.

Persons and private or municipal corporations are required to obtain a utility right-of-way permit or an alternative annual utility right-of-way permit approved by the Edgewood public works director for construction and maintenance of utility facilities in the public right-of-way of city roads, as outlined in EMC 12.06.020, except as noted in EMC 12.06.120 and 12.06.160. (Ord. 17-488 § 7; Ord. 05-245 § 2).

12.06.095 Alternative, annual utility right-of-way permit.

A. Purpose. It is the intent of this section to establish an alternative, streamlined permitting process under which franchisee may obtain a single, annual permit collectively authorizing repetitive, marginally intrusive activities by utilities within the city right-of-way that individually are of very short duration, do not entail disruption to traffic or pedestrian flows, and are objectively minor in nature. Such activities include:

1. Minor utility service adjustments or repair located within the right-of-way, but outside the paved roadway, shoulder, sidewalk and/or ditchlines.

2. Other, similarly minor and marginally-intrusive activities within the right-of-way, as may be approved by the public works director.

B. Duration. An alternative annual utility right-of-way permit will be valid for a maximum of one calendar year and will serve as a blanket, collective authorization for all of the activities referenced above and as further approved by the public works director.

C. Cost Reimbursement. The permittee shall reimburse the city for all of the city’s direct and indirect costs and expenses in review, inspection and documentation of activities with this permit, establishing an initial cash reserve balance in the amount of $1,000, to be drawn upon as staff, consultant and/or legal expenses are for these activities, at hourly rates established within the city of Edgewood’s adopted fee schedule. Said cash reserve balance shall be replenished when the balance reaches a level below $200.00, within 30 days after written notice thereof by the finance director.

D. Notice. The permittee shall provide no less than two business working days’ written notice to the public works director before performing any of the activities authorized under an alternative annual utility right-of-way permit. Said notice shall include the nature, commencement date, location, duration and anticipated completion date of the activities. Once the activity is completed, the permittee shall notify the city of work completion and readiness for final inspection by the city.

E. Requirements – Conditions. Except as otherwise provided under this section, all other applicable requirements of this chapter shall apply with respect to alternative annual utility right-of-way permits. Without limitation of the foregoing, the public works director may impose such reasonable conditions of approval upon any such permit as deemed necessary or appropriate by the director in order to protect the public health, safety and welfare. (Ord. 17-488 § 8).

12.06.100 Application.

Applications for utility right-of-way permits and alternative annual utility right-of-way permits shall be submitted to the Edgewood department of public works in the form approved by the public works director. (Ord. 17-488 § 9; Ord. 05-245 § 2).

12.06.110 Utility right-of-way permit fees.

All permit applications to perform work on any city-owned and maintained public road surface shall be accompanied by an application fee, as indicated within the most current version of the city’s fee schedule. In addition, any excavation work on any city-owned and maintained public road surface shall be accompanied with a cash deposit as identified below:

On chip sealed surfaces where estimated pavement cuts are less than 180 square feet, a cash deposit toward the final fee of a sum equal to $4.60 per square foot, times the estimated paved surface on each excavation to be made is required. For estimated pavement cuts greater than 180 square feet on chip sealed surfaces, the cash deposit shall be the sum equal to $828.00, plus an additional $828.00 per 100 lineal feet, or portion of trench length exceeding the first 100 feet.

On full depth asphalt or concrete surfaces where estimated pavement cuts are less than 960 square feet, a cash deposit is required toward the final fee of a sum equal to $4.00 per square foot, times the estimated paved surface on each excavation to be made. For estimated pavement cuts greater than 960 square feet, the cash deposit shall be the sum equal to $3,840 per 100 lineal feet or portion of the trench length exceeding the first 100 feet. (Ord. 17-488 § 10; Ord. 05-245 § 2).

12.06.120 Permit exception.

A. Any utility performing work as a result of a city construction or maintenance project shall be exempt from any applicable permit fee.

B. A right-of-way use permit shall not be required of utilities or franchised utilities when responding to emergencies that require work in the right-of-way, including without limitation water or sewer main breaks, gas leaks, downed power lines or similar emergencies; provided, that the 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 herein shall relieve a responding utility or city contractor from the requirement to apply for a right-of-way use permit within 48 hours after beginning emergency work in the right-of-way. (Ord. 17-488 § 11; Ord. 05-245 § 2).

12.06.130 Interference with the right-of-way.

No utility may locate or maintain its facilities so as to unreasonably interfere with the use of the right-of-way by the city, by the general public or other persons authorized to use or be present in or upon the right-of-way. All such facilities shall be moved by and at the expense of the utility, temporarily or permanently, as determined by the city.

The city of Edgewood promotes a coordinated planning effort between the department of public works and the franchised utility to minimize the need for cutting pavement that is less than 36 months old. Except as exempted in EMC 12.06.120, the fee for permission to cut pavement that is less than 36 months old is established at an additional $2.00 per square foot of disturbed pavement. (Ord. 05-245 § 2).

12.06.140 Damage to property.

No utility or any person acting on a utility’s behalf shall take any action or permit any action to be done that may impair or damage any right-of-way, specifically including city property, real or personal, or other property located in, on or adjacent thereto. (Ord. 05-245 § 2).

12.06.150 Relocation or removal of facilities.

Within 30 days from the date of written notice from the city engineer, or such longer period as may be specified following written notice from the city engineer, a utility shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any facilities within the right-of-way whenever the city engineer shall have determined that such removal, relocation, change or alteration is reasonably necessary for:

A. The construction, repair, maintenance or installation of any city or other public improvement in or upon the right-of-way.

B. The operations of the city or other governmental entity in or upon the right-of-way. (Ord. 05-245 § 2).

12.06.160 Removal of unauthorized facilities.

Within 30 days from the date of written notice from the city engineer, any utility, or other person that owns, controls or maintains any unauthorized facility or related appurtenances within the rights-of-way shall, at its own expense, remove such facilities or appurtenances from the right-of-way. If such utility fails to remove such facilities or appurtenances, the city may cause the removal and charge the utility for the costs incurred. A facility is unauthorized and subject to removal in the following circumstances:

A. Upon expiration or termination of the grantee’s franchise.

B. Upon abandonment of a facility within the right-of-way.

C. If the system or facility was constructed or installed without the prior grant of a franchise.

D. If the system or facility was constructed or installed without the prior issuance of a required utility right-of-way permit.

E. If the system or facility was constructed or installed at a location not permitted by the utility’s franchise.

F. Any such other reasonable circumstances deemed necessary by the city engineer. (Ord. 05-245 § 2).

12.06.170 Failure to relocate.

If a utility is required to relocate, change or alter the facilities constructed, operated and/or maintained hereunder and fails to do so, the city may cause such to occur and charge the utility for the costs incurred. (Ord. 05-245 § 2).

12.06.180 Emergency removal or relocation of facilities.

The city retains the right and privilege to cut or move any facilities located within the right-of-way as the city may determine to be necessary, appropriate or useful in response to any public health or safety emergency. (Ord. 05-245 § 2).

12.06.190 Damage to utility’s facilities.

Unless directly and proximately caused by the willful, intentional or malicious acts of the city, the city shall not be liable for any damage to or loss of any facility within right-of-way as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling, or work of any kind in the right-of-way by or on behalf of the city. (Ord. 05-245 § 2).

12.06.200 Restoration of right-of-way or other private property.

A. When a utility, or any person acting on its behalf, does any work in or affecting any right-of-way, or any other property, it shall, at its own expense, promptly remove any obstructions from the area and restore such ways or property to the same condition that existed before the work was undertaken.

B. If weather or other conditions do not permit the complete restoration required hereunder, the utility shall temporarily restore the affected right-of-way or other property. Such temporary restoration shall be at the utility’s sole expense and the utility shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration.

C. A utility or person acting on its behalf shall use suitable barricades, flags, flaggers, lights, flares and other measures as required for the safety of all members of the general public and to prevent injury or damage to any person, vehicle or property by reason of such work in or affecting right-of-way or any other property. (Ord. 05-245 § 2).

12.06.210 Duty to provide information.

Within 10 days of completion of the work, each utility shall furnish the city engineer with information sufficient to demonstrate:

A. That the utility has complied with all requirements of this chapter.

B. That all fees due the city in connection with the facilities provided by the utility have been properly collected and paid by the utility.

C. That all books, records, maps and other documents maintained by the utility with respect to its facilities within right-of-way shall be made available for inspection by the city engineer at reasonable times and intervals.

D. That “as-built” drawings of the work have been completed and are on file with the grantee. (Ord. 05-245 § 2).

12.06.215 Grantee insurance.

Unless otherwise conditioned, each utility or contractor shall, as a condition of the grant, secure and maintain the following liability insurance policies, insuring both the grantee and the city, and its elected and appointed officers, officials, agents, representatives, and employees as additional insureds:

A. Comprehensive general liability insurance with limits not less than:

1. Two million dollars for bodily injury or death to each person;

2. Two million dollars for property damage resulting from any one accident; and

3. Two million dollars for all other types of liability.

B. Automobile liability for owned, nonowned and hired vehicles with a limit of $1,000,000 for each person and $3,000,000 for each accident.

C. Worker’s compensation within statutory limits and employer’s liability insurance with limits of not less than $1,000,000.

D. Comprehensive form premises-operations, explosions and collapse hazard, underground hazard and products completed operation hazard policies with limits of not less than $2,000,000.

E. The liability insurance policies required by this section shall be maintained at all times by the grantee. Each such insurance policy shall contain the following endorsement:

It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew be stated until 90 days after receipt by the City, by registered mail, of a written notice addressed to the City Risk Manager of such intent to cancel or not to renew.

F. Within 60 days after receipt by the city of said notice, and in no event later than 30 days prior to said cancellation, the grantee shall obtain and furnish to the city replacement insurance policies meeting the requirements of this chapter.

G. If the grantee can show to the city risk manager’s satisfaction that an entity is financially able to self-insure the exposures, a substitution for insurance will be considered. (Ord. 05-245 § 2).

12.06.216 General indemnification.

In addition to and distinct from the insurance requirements of this chapter, each grantee shall agree in writing to defend, indemnify, and hold the city and its officers, officials, employees, agents, and representatives harmless from and against any and all damages, losses and expenses, including reasonable attorneys’ fees and costs of suit or defense, arising out of, resulting from, or alleged to arise out of or result from the acts, omissions, failure to act, or misconduct of the grantee or its affiliates, officers, employees, agents, contractors, or subcontractors in the construction, operation, maintenance, repair, or removal of its facilities and in providing or offering services over the facilities or network, whether such acts or omissions are authorized, allowed, or prohibited by this chapter or by a grant agreement made or entered into pursuant to this chapter. (Ord. 05-245 § 2).

12.06.217 Performance and restoration surety.

Before a franchise granted pursuant to this chapter is effective, and as necessary thereafter, the grantee shall provide and deposit such monies, bonds, letters of credit, or other instruments in form and substance acceptable to the city as may be required by this chapter, or by an applicable franchise or other applicable code, ordinance, or rules and regulations of the city. (Ord. 05-245 § 2).

12.06.218 Restoration bond.

Unless otherwise provided in a franchise, each utility or contractor shall provide a restoration bond, written by a surety acceptable to the city, equal to at least 100 percent of the estimated cost of restoration as required as a result of constructing the grantee’s facilities within rights-of-way, shall be deposited before construction commences.

A. The restoration bond shall remain in force until 60 days after substantial completion of the work, as determined by the city engineer or designee, including restoration of all rights-of-way and other property affected by the construction.

B. The restoration bond shall guarantee, to the satisfaction of the city:

1. Timely completion of restoration;

2. Restoration in compliance with applicable plans, permits, technical codes, and standards;

3. Proper restoration of the facilities as specified by the city; and

4. Restoration of the rights-of-way and any other property affected by the construction. (Ord. 05-245 § 2).

12.06.220 Penalties.

Any person found violating, disobeying, omitting, neglecting or refusing to comply with any of the provisions of this chapter is subject to a civil penalty pursuant to Chapter 1.10 EMC for each act. Each day constitutes a separate act. (Ord. 05-245 § 2).

12.06.230 Other remedies.

Nothing in this chapter shall be construed as limiting any judicial remedies that the city may have, at law or in equity, for enforcement of this chapter. (Ord. 05-245 § 2).

12.06.240 Severability.

If any section, subsection, sentence, clause, phrase, or other portion of this chapter, or its application to any person is, for any reason, declared invalid, in whole or in part by any court or agency of competent jurisdiction, said decision shall not affect the validity of the remaining portions hereof. (Ord. 05-245 § 2).