Chapter 26.36
WORK IN RIGHTS-OF-WAY
Sections:
26.36.010 Placement of facilities.
26.36.020 Obstructions in rights-of-way.
26.36.030 Completion of make-ready work.
26.36.040 Restoration.
26.36.050 Relocation of facilities.
26.36.060 Underground conversions.
26.36.070 Maintenance.
26.36.080 Compliance with applicable laws and standards.
26.36.090 Traffic control plan.
26.36.100 Coordination of right-of-way work.
26.36.110 Damage to facilities.
26.36.120 Obligations of developers.
26.36.010 Placement of facilities.
(1) All facilities placed by a grantee in rights-of-way within the city shall be so located as to minimize interference with the proper use of rights-of-way, and to minimize interference with the rights of property owners who adjoin any of the rights-of-way.
(2) A grantee with written authorization from the city to install overhead facilities shall install its facilities on pole attachments to existing utility poles only unless a specific pole is needed due to the technology employed in the facilities, and then only if surplus space is available. Locations for placement of WSF are subject to Chapter 117 KZC.
(3) Whenever existing telephone, electric utilities, or telecommunications facilities are located or relocated underground within rights-of-way, a grantee with written authorization to occupy the same rights-of-way must also locate or relocate its facilities underground unless such location is not feasible due to the technology employed in the facility.
(4) Whenever new electric utilities or telecommunications facilities are located underground within the city’s rights-of-way, a grantee that currently occupies or will occupy the same rights-of-way shall concurrently place its facilities underground, to the extent technically feasible, at its expense.
(5) A grantee shall utilize existing poles and conduit wherever possible. New poles (other than replacement poles) shall not be allowed without specific written authorization from the director or approval pursuant to Chapter 117 KZC. (Ord. 4853 § 2, 2023)
26.36.020 Obstructions in rights-of-way.
(1) A person who places or maintains an obstruction in, on, over, under or through the city’s rights-of-way shall promptly shift, adjust, accommodate, or remove the obstruction on reasonable notice from the city at such person’s expense.
(2) If a person fails or refuses to shift, adjust, accommodate, or remove an obstruction after reasonable notice, the department may shift, adjust, accommodate, or remove the obstruction, and the director may charge the person having or maintaining the obstruction for the cost of performing the work.
(3) Any opening or obstruction in the rights-of-way made by a grantee in the course of its operation shall be guarded and protected at all times by the placement of adequate barriers, fences or boardings, the bounds of which, during periods of dusk and darkness, shall be clearly designated by warning lights.
(4) No grantee may locate or maintain its facilities so as to unreasonably interfere with the use of the rights-of-way by the city, by the general public or other persons, or other persons authorized to use or be present in or upon the rights-of-way. All such facilities shall be moved by and at the expense of the grantee, temporarily or permanently, as determined by the city. (Ord. 4853 § 2, 2023)
26.36.030 Completion of make-ready work.
To the extent consistent with state law, a grantee shall have thirty days to perform any requested “make-ready” work (work required to prepare the grantee’s poles or other facilities for attachment by another party) or alterations to its facilities upon request by persons authorized to use or be present in or upon the rights-of-way. If an owner fails to perform such work within thirty days, then the authorized persons may perform such “make-ready” work or alterations at their own cost. (Ord. 4853 § 2, 2023)
26.36.040 Restoration.
(1) No grantee shall take any action or allow any action to be done that may permanently impair or damage any rights-of-way or other property located in, on or adjacent thereto.
(2) In case of any disturbance of pavement, sidewalk, driveway or other surfacing, or any public or private property, the grantee shall, in a manner acceptable to the city, replace, repair, and restore all paving, sidewalk, utility covers, survey monuments, driveway or surface of any rights-of-way, or other public or private property, that has been disturbed by the grantee’s activities in as good condition as before said work was commenced and in compliance with any then-current legal standards, including but not limited to requirements established by the Americans with Disabilities Act.
(3) In particular, and without limitation, all trees, landscaping and grounds removed, damaged or disturbed as a result of right-of-way work by grantees shall, at a minimum, be replaced or restored to the condition existing prior to performance of the work. In addition, a grantee shall comply with all applicable provisions of Chapter 95 KZC and the public works preapproved plans regarding all trees, landscaping and grounds.
(4) If weather or other conditions do not allow for the complete restoration required hereunder, the grantee shall temporarily restore the affected rights-of-way or property. Such temporary restoration shall be at the grantee’s sole expense, and the owner shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration.
(5) All restoration work within the rights-of-way shall be done in accordance with landscape plans approved by the director.
(6) Restoration pursuant to this section shall be at the grantee’s cost and expense, except to the extent otherwise required by applicable law.
(7) In the event that the grantee fails to complete any work required for the repair, protection, or restoration of the rights-of-way or private property, or any other work required by law or ordinance, within the time specified by and to the reasonable satisfaction of the city, the city, following notice and an opportunity to cure, may cause such work to be done. In such a case, the grantee shall reimburse the city the cost thereof within thirty days after receipt of an itemized list of such costs, or the city may recover such costs through any bond or other security instrument provided by the grantee, except to the extent otherwise required by applicable law. (Ord. 4853 § 2, 2023)
26.36.050 Relocation of facilities.
(1) The city may require a grantee to relocate authorized facilities within the right-of-way when reasonably necessary for construction, alteration, repair or improvement of the right-of-way for the purpose of public health, welfare and safety, at no cost to the city, except to the extent otherwise required by applicable law.
(2) The city shall notify the grantee as soon as practicable of the need for relocation and shall specify the date by which relocation shall be completed. In calculating the date by which relocation must be completed, the city shall consult with the grantee and consider the extent of the facilities to be relocated, the grantee’s service requirements, and the construction sequence required, within the city’s overall project construction sequence and constraints, to safely complete the relocation. Grantees shall complete the relocation by the date specified unless the city or a reviewing court establishes a later date for completion, after showing by the grantee that the relocation cannot be completed by the date specified, using best efforts and meeting safety and service requirements.
(3) Subject to subsection (4) of this section, whenever any person, other than the city, requires the relocation of a grantee’s facilities to accommodate work of such person within the franchise area, then the grantee shall have the right as a condition of any such relocation to require payment to grantee, at a time and upon terms acceptable to the grantee, for any and all costs and expenses incurred by the grantee in the relocation of the grantee’s facilities.
(4) Notwithstanding the provisions of subsection (3) of this section, if the city reasonably determines and notifies the grantee that the primary purpose of imposing such condition or requirement upon such person is to cause or facilitate the construction of a public works project to be undertaken within a segment of the franchise area on the city’s behalf and consistent with the city’s capital improvement plan, transportation improvement program or the transportation facilities program, then only those costs and expenses incurred by the grantee in reconnecting such relocated facilities with the grantee’s other facilities shall be paid to grantee by such person, and the grantee shall otherwise relocate its facilities within such segment of the franchise area in accordance with subsection (1) of this section.
(5) The city may require relocation of facilities at no cost to the city in the event of an unforeseen emergency that creates an immediate threat to public health, welfare and safety.
(6) If a grantee is required to relocate, change or alter facilities hereunder and fails to do so, the city may cause such to occur and charge the owner for the costs incurred. (Ord. 4853 § 2, 2023)
26.36.060 Underground conversions.
(1) In the event that conversion of a grantee’s overhead facilities to underground is required or reasonably necessary for construction, alteration, repair, or improvement of the rights-of-way for purposes of public welfare, health, or safety (such as projects that may include, without limitation, road widening, surface grade changes or sidewalk installation), a grantee, to the extent permitted by applicable law, shall bear the costs of converting the grantee’s facilities from an overhead system to an underground system as follows:
(a) To ensure proper space and availability in the supplied joint trench, a grantee shall pay for the work (time and materials) necessary to complete related engineering and coordination with the other utilities involved in the project.
(b) A grantee shall pay its proportionate share of the cost of labor and materials necessary to place its cables, conduits and vaults/pedestals in the supplied joint trench and/or stand-alone cable trench. If, however, the city’s costs for the grantee are not agreeable to the grantee, then the grantee shall have the right to hire its own contractor(s) to complete its work within the joint trench.
(c) If a grantee decides to use its own contractor(s) to complete its portion of the work, then the grantee and its contractor(s) are responsible for coordinating with the city to provide reasonable notice and time to complete the placement of the grantee’s cables, conduits and vaults/pedestals in the trench. If the grantee fails to complete the above work within the time prescribed and to the city’s reasonable satisfaction, the city may cause such work to be done and bill the reasonable cost of the work to the grantee, including all reasonable costs and expenses incurred by the city due to the grantee’s delay. In such an event, the city shall not be liable for any damage to any portion of the grantee’s facilities. Within forty-five days of receipt of an itemized list of those costs, the grantee shall pay the city.
(d) Within the underground conversion area, a grantee shall cooperate with the city and its contractor on any on-site coordination. The city shall be responsible for traffic control, trenching, backfill, and restoration of all work performed by its contractor. A grantee shall be responsible for traffic control, trenching, backfill, and restoration of all work performed by its contractor for stand-alone cable trenches.
(2) In the event a local improvement district (LID) has been created to fund a relocation or conversion project, a grantee shall be reimbursed by the LID for all expenses incurred as a result of the project. (Ord. 4853 § 2, 2023)
26.36.070 Maintenance.
A grantee of aerial facilities shall be required to trim trees upon and overhanging rights-of-way and other public places of the city so as to prevent the branches of such trees from coming in contact with the facilities of the grantee, all trimmings to be done at the expense of the grantee, except to the extent otherwise required by applicable law. A grantee shall comply with all provisions of KZC 95.20 and 95.21 (tree pruning). (Ord. 4853 § 2, 2023)
26.36.080 Compliance with applicable laws and standards.
(1) All right-of-way work shall be performed in accordance with all applicable law and regulations, including, where applicable, the Occupational Safety and Health Act of 1970, as amended; the National Electrical Safety Code, prepared by the National Bureau of Standards; and the National Electrical Code of the National Board of Fire Underwriters.
(2) All right-of-way work shall comply with the requirements of the most recently adopted city preapproved plans and policies, and in the event of a conflict between the aforesaid preapproved plans and policies and this title, the standards of the preapproved plans and policies shall control.
(3) All of a grantee’s facilities shall be installed in accordance with good engineering practice. All of a grantee’s facilities shall be maintained in a safe condition, in good order and repair, and in compliance with all applicable federal, state and local requirements.
(4) All safety practices required by law shall be used during construction, maintenance, and repair of a grantee’s facilities.
(5) A grantee shall at all times employ ordinary care and shall use commonly accepted methods and devices for preventing failures and accidents that are likely to cause damage, injury, or nuisance to the public.
(6) If applicable, a grantee shall maintain membership in good standing with the Utilities Underground Location Center or other similar or successor organization which is designated to coordinate underground equipment locations and installations. A grantee shall abide by the state’s “Underground Utilities” statutes (Chapter 19.122 RCW) and will further comply with and adhere to city regulations related to the One Call locator service program. (Ord. 4853 § 2, 2023)
26.36.090 Traffic control plan.
(1) All grantees shall comply with the Manual on Uniform Traffic Control Devices with respect to traffic control. The city may require a traffic control plan demonstrating the protective measures and devices that will be employed.
(2) A grantee shall use suitable barricades, flags, flagmen, 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 its right-of-way work. (Ord. 4853 § 2, 2023)
26.36.100 Coordination of right-of-way work.
(1) A grantee shall joint trench or share bores or cuts and work with other grantees so as to reduce the number of right-of-way cuts within the city, to the extent such joint work would not impose undue economic burdens or delay upon the grantee.
(2) The city shall provide as much advance notice as reasonable of plans to open the rights-of-way to those providers who are current users of the rights-of-way or who have filed notice with the clerk of the city within the past twelve months of their intent to place facilities in the city.
(3) If applicable law allows the city to keep electronic copies confidential, then by the first day of February each year, each grantee shall prepare and submit to the department a plan, in a format specified by the department, that shows all reasonably foreseeable right-of-way work in the paved portion of the rights-of-way anticipated to be done in the next year, or a statement that no right-of-way work is proposed. The grantee shall report to the department promptly any changes in the plan as soon as those changes become reasonably foreseeable.
(4) The department may disclose information contained in such a plan to another party only on a need-to-know basis in order to facilitate coordination and avoid unnecessary right-of-way work, or as otherwise required by law. If a grantee clearly and appropriately identifies information contained in the plan as proprietary, a trade secret, or otherwise protected from disclosure, then, to the maximum extent permissible under federal, state, and local laws applicable to public records, the department may not disclose that information to the public. If the department determines that information is not clearly or appropriately identified, the department shall notify the grantee that the department intends to disclose the requested information unless ordered otherwise by a court.
(5) The department shall review the annual plans submitted by grantees and identify conflicts and opportunities for coordination of right-of-way work in the paved rights-of-way. Each applicant shall coordinate, to the extent practicable, with the city and with each potentially affected grantee to minimize disruption in the rights-of-way.
(6) If communication facilities are to be placed underground in a new subdivision, the communication provider shall give written notice to other known providers in the area within which the property is located. Such notice shall be given at least forty-eight hours before commencement of trenching construction.
(7) The city may facilitate joint use of the property, structures, and appurtenances of each grantee located in the rights-of-way and other public places, insofar as such joint use may be reasonable and practicable. (Ord. 4853 § 2, 2023)
26.36.110 Damage to facilities.
To the extent permitted by applicable law, the city shall not be liable for any damage to or loss of any facilities within the rights-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 rights-of-way by or on behalf of the city. (Ord. 4853 § 2, 2023)
26.36.120 Obligations of developers.
A developer shall provide for underground facilities for providers to serve a development in accordance with applicable law for underground facilities. The developer shall execute all required agreements relating to the underground facilities, including easements, and provide proof to the city that the agreements have been executed. (Ord. 4853 § 2, 2023)