Chapter 12.15
USE OF PUBLIC RIGHTS-OF-WAY

Sections:

12.15.005    Definitions.

Article I. Right-of-Way Use Authorizations

12.15.010    Right-of-way use authorization required.

12.15.020    Facilities lease required.

12.15.030    Right-of-way construction permit required.

12.15.040    Application to existing franchise ordinances, agreements, leases, and permits – Effect of other laws.

12.15.050    General penalties.

12.15.060    Other remedies.

12.15.070    Fees and compensation not a tax.

12.15.080    Right-of-way use authorization application.

12.15.090    Issuance/denial of right-of-way use authorization.

12.15.100    Appeal of City Manager’s decision.

12.15.110    Agreement.

12.15.120    Nonexclusive grant.

12.15.130    Rights granted.

12.15.140    Term of right-of-way use authorization.

12.15.150    Specified route.

12.15.160    Compensation to the City.

12.15.170    Amendment of authorization.

12.15.180    Renewal of right-of-way use authorization.

12.15.190    Standards for renewal of authorization.

12.15.200    Obligation to cure as a condition of renewal.

12.15.210    Annual fee for recovery of City costs.

12.15.220    Other City costs.

Article II. Facilities Lease

12.15.230    Facilities lease.

12.15.240    Lease application.

12.15.250    Determination by the City.

12.15.260    Agreement.

12.15.270    Nonexclusive lease.

12.15.280    Term of facilities lease.

12.15.290    Rights granted.

12.15.300    Interference with other users.

12.15.310    Ownership and removal of improvements.

12.15.320    Cancellation of lease by lessee.

12.15.330    Compensation to the City.

12.15.340    Amendment of facilities lease.

12.15.350    Renewal application.

12.15.360    Renewal determination.

12.15.370    Obligation to cure as a condition of renewal.

Article III. Conditions of Right-of-Way Use Authorizations and Facilities Leases

12.15.380    Purpose.

12.15.390    Police power.

12.15.400    Rules and regulations by the City.

12.15.410    Provision and location of facilities.

12.15.420    Compliance with One Number Locator service.

12.15.430    Right-of-way construction permits.

12.15.440    Interference with the public rights-of-way.

12.15.450    Damage to property.

12.15.460    Notice of work.

12.15.470    Repair and emergency work.

12.15.480    Maintenance of facilities.

12.15.490    Relocation or removal of facilities.

12.15.500    Building moving.

12.15.510    Removal of unauthorized facilities.

12.15.520    Emergency removal or relocation of facilities.

12.15.530    Damage to facilities.

12.15.540    Restoration of public rights-of-way, other ways and City property.

12.15.550    Facilities maps.

12.15.560    Repealed.

12.15.565    Insurance.

12.15.570    General indemnification.

12.15.580    Performance and construction surety.

12.15.590    Construction and completion bond.

Article IV. Right-of-Way Work Standards

12.15.600    General construction standards.

12.15.610    Construction codes.

12.15.620    Right-of-way construction permits.

12.15.630    Applications.

12.15.640    Engineer’s certification.

12.15.650    Traffic control plan.

12.15.660    Issuance of permit.

12.15.670    Appeal of Director’s decision.

12.15.680    Compliance with permit.

12.15.690    Display of permit.

12.15.700    Survey of facilities.

12.15.710    Noncomplying work.

12.15.720    Completion of construction.

12.15.730    As-built drawings.

12.15.740    Restoration after construction.

12.15.750    Landscape restoration.

12.15.760    Construction surety.

12.15.770    Responsibilities of the owner.

Article V. Fees

12.15.780    Fees.

12.15.005 Definitions.

For the purpose of this chapter, and the interpretation and enforcement thereof, the following words and phrases shall have the following meanings, unless the context of the sentence in which they are used shall indicate otherwise:

“Affiliate” means a person who (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with another person.

“Applicant” means any person, firm, or entity that applies for any authorization, lease, or permit pursuant to this chapter.

“City” means the City of Maple Valley, Washington.

“City property” means and includes all real property owned by the City, other than public streets and utility easements as those terms are defined herein, and all property held in a proprietary capacity by the City, which is not subject to right-of-way licensing and franchising as provided in this chapter.

“Council” means the City Council of the City of Maple Valley, Washington, acting in its official capacity.

“Days” means calendar days.

“Emergency” means a condition of imminent danger to the health, safety, and welfare of property or persons located within the City including, without limitation, damage to persons or property from natural consequences, such as storms, earthquakes, riots or wars.

“Franchise” shall mean the initial authorization, or renewal thereof, approved by an ordinance of the City, which authorizes the franchisee to construct, install, operate, or maintain facilities in, under, over, or across public rights-of-way of the City and/or to also provide service to persons or areas in the City.

“Franchisee” means the person, firm or corporation to whom or which, as defined in this chapter, is granted by the Council under this chapter and the lawful successor, transferee or assignee of said person, firm or corporation subject to such conditions as may be defined in this chapter.

“Office” means the person or entity designated by the City as being responsible for the administration of a franchise for the City.

“Operator” means:

A. The person, firm or corporation to whom a franchise is granted pursuant to the provisions of this chapter.

B. The person, firm or corporation to whom a right-of-way use authorization, work permit, or facilities lease is granted pursuant to any provisions of the Maple Valley Municipal Code.

“Other ways” means the highways, streets, alleys, utility easements or other rights-of-way within the City, but under the jurisdiction and control of a governmental entity other than the City.

“Overhead facilities” means utility poles, utility facilities and telecommunications facilities located above the surface of the ground, including the underground supports and foundations for such facilities.

“Person” means and includes corporations, companies, associations, joint stock companies or associations, firms, partnerships, limited liability companies and individuals and includes their lessors, trustees and receivers.

“Property of franchisee” means all property owned, installed or used by a franchisee in the conduct of its business in the City under the authority of a franchise granted pursuant to this chapter.

“Proposal” means the response, by an individual or organization, to a request by the City regarding the provision of services; or an unsolicited plan submitted by an individual or organization seeking to provide services in the City.

“Public street” means any highway, street, alley or other public right-of-way for motor vehicle travel under the jurisdiction and control of the City which has been acquired, established, dedicated or devoted to highway or street purposes.

“Public way” means and includes all public streets and utility easements, as those terms are defined herein, now or hereafter owned by the City, but only to the extent of the City’s right, title, interest or authority to grant a license to occupy and use such streets and easements for facilities.

“State” means the State of Washington.

“Underground facilities” means utility and telecommunications facilities located under the surface of the ground, excluding the underground foundations or supports for overhead facilities.

“Utility easement” means any easement owned by the City and acquired, established, dedicated or devoted for public utility purposes not inconsistent with facilities.

“Utility facilities” means the plant, equipment and property, including but not limited to the poles, pipes, mains, conduits, ducts, cables, wires, plant and equipment located under, on or above the surface of the ground within the public rights-of-way of the City and used or to be used for the purpose of providing utility or telecommunications services. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1).

Article I. Right-of-Way Use Authorizations

12.15.010 Right-of-way use authorization required.

Except as otherwise provided herein, any applicant who desires to construct, install, operate, maintain, or otherwise locate facilities in, under, over or across any public way of the City for the purpose of providing service to persons and areas or the general public, shall first obtain a franchise or right-of-way use authorization from the City granting the use of such public rights-of-way from the City pursuant to Article II of this chapter. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(1.1)).

12.15.020 Facilities lease required.

No entity that desires to locate equipment on City property shall locate such facilities or equipment on City property unless granted a facilities lease from the City pursuant to Article IV of this chapter. The City Council reserves the sole discretion to lease City property and other facilities, and no vested or other right shall be created by this section or any provision of this chapter applicable to such facilities leases. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(1.2)).

12.15.030 Right-of-way construction permit required.

Except as otherwise provided herein, the holder of a franchise, authorization or lease granted pursuant to this chapter shall, in addition to said franchise, authorization or lease, be required to obtain a Right-of-Way Construction Permit from the City pursuant to Article IV of this chapter. No work, construction, development, excavation, or installation of any equipment or facilities shall take place within the public rights-of-way or upon City property until such time as the Right-of-Way Construction Permit is issued. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(1.3)).

12.15.040 Application to existing franchise ordinances, agreements, leases, and permits – Effect of other laws.

A. Except as provided in subsection (B) of this section, this chapter shall have no effect on any existing franchise ordinance agreement, lease, permit, or other authorization to use or occupy a public way in the City until:

1. The expiration of said franchise ordinance, agreement, lease, permit, or authorization; or

2. The amendment to an unexpired franchise ordinance agreement, lease, permit, or authorization, unless both parties agree to defer full compliance to a specific date not later than the established expiration date.

B. Nothing in this chapter shall be deemed to create an obligation upon any person, entity, firm or corporation for which the City is forbidden to require pursuant to federal, State, or other law. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(1.4)).

12.15.050 General penalties.

A. Civil Penalty.

1. Any person violating or failing to comply with any of the provisions of this chapter shall be subject to a penalty in an amount not less than $100.00 nor more than $1,000 per day for each violation from the date set for compliance until compliance with the order is achieved.

2. In addition to any penalty that may be imposed by the City, any person violating or failing to comply with any of the provisions of this chapter shall be liable for all damage to public or private property arising from such violation, including the cost of restoring the affected area to its condition prior to the violation.

3. The penalty imposed by this section shall be collected by civil action brought by the City. The City Manager or designee shall notify the City Attorney in writing of the name of any person subject to the penalty, and the City Attorney shall, with the assistance of the City Manager or designee, take appropriate action to collect the penalty.

4. The violator may show as full or partial mitigation of liability:

a. That the violation giving rise to the action was caused by the willful act, or neglect, or abuse of another; or

b. That correction of the violation was commenced promptly upon receipt of the notice thereof, but that full compliance within the time specified was prevented by inability to obtain necessary materials or labor, inability to gain access to the subject structure, or other condition or circumstance beyond the reasonable control of the violator.

B. Additional Relief. The City may seek legal or equitable relief to enjoin any acts or practices and abate any condition that constitutes or will constitute a violation of the applicable provisions of this chapter when civil or criminal penalties are inadequate to effect compliance. In addition to the penalties set forth in this section, violation of the terms of this chapter also may result in the revocation of any authorization approval, lease, or permit issued or granted. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(1.5)).

12.15.060 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. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(1.6)).

12.15.070 Fees and compensation not a tax.

The fees, charges and fines provided for in this chapter and any compensation charged and paid for the public rights-of-way provided for herein, whether fiduciary or in-kind, are separate from, and additional to, any and all federal, State, local, and City taxes as may be levied, imposed or due from an applicant. A right-of-way use authorization shall be required of any applicant who desires to occupy specific public rights-of-way of the City for the sole purpose of providing services to persons or areas outside the City. The City shall also have the authority to require an applicant who applies for a right-of-way use authorization to obtain a conditional use permit pursuant to the Maple Valley development regulations. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(1.7)).

12.15.080 Right-of-way use authorization application.

Any person, entity, firm or corporation that desires a right-of-way use authorization pursuant to this chapter shall file an application with the City, which shall include the following information:

A. The identity of the applicant, including all affiliates of the applicant.

B. A description of the services that are or will be offered or provided by the applicant.

C. All design work shall be carried out under the general direction of a registered professional engineer. At the direction of the Public Works Director preliminary engineering plans and specifications shall be stamped by a registered professional engineer, and a map of the facilities to be located within the City, all in sufficient detail to identify:

1. The location and route requested for applicant’s proposed facilities;

2. The location of all overhead and underground public utility, telecommunication, cable, water, sewer, drainage and other facilities in the public way along the proposed route;

3. The location(s), if any, for interconnection with the facilities of other entities; and

4. The specific trees, structures, improvements, facilities and obstructions, if any, that applicant proposes to temporarily or permanently remove or relocate.

D. If applicant is proposing to install overhead facilities, evidence that surplus space is available for locating its facilities on existing utility poles along the proposed route, including evidence that such facilities will conform to this title, and any conditional use permit issued by the City.

E. If applicant is proposing an underground installation in existing ducts or conduits within the public rights-of-way, information in sufficient detail to identify:

1. The excess capacity currently available in such ducts or conduits before installation of applicant’s facilities;

2. The excess capacity, if any, that will exist in such ducts or conduits after installation of applicant’s facilities; and

3. Evidence of ownership or a right to use such ducts or conduits.

F. If applicant is proposing an underground installation within new ducts or conduits to be constructed within the public rights-of-way:

1. The location proposed for the new ducts or conduits; and

2. The excess capacity that will exist in such ducts or conduits after installation of applicant’s facilities.

G. A preliminary construction schedule and completion date.

H. If deemed necessary by the Public Works Director financial statements prepared in accordance with generally accepted accounting principles demonstrating the applicant’s financial ability to construct, operate, maintain, relocate and remove the facilities.

I. Information in sufficient detail to establish the applicant’s technical qualifications, experience and expertise regarding the facilities described in the application.

J. Information to establish that the applicant has obtained all other governmental approvals and permits to construct and operate the facilities.

K. All deposits or charges required pursuant to this chapter.

L. An application fee that shall be set by the City Council by ordinance. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(1.8)).

12.15.090 Issuance/denial of right-of-way use authorization.

Within a timeline that is in accordance with federal, State or local laws after receiving a complete application under MVMC 12.15.240, the City Manager, or her or his designee, shall issue a written determination granting or denying the authorization in whole or in part. If the authorization is denied, the written determination shall include the reason(s) for denial. The decision to grant or deny an application for a right-of-way use authorization shall be based upon the following standards:

A. The financial and technical ability of the applicant;

B. The legal ability of the applicant;

C. The capacity of the public rights-of-way to accommodate the applicant’s proposed facilities;

D. The capacity of the public rights-of-way to accommodate additional utility, cable, and telecommunications facilities if the authorization is granted;

E. The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the authorization is granted;

F. The public interest in minimizing the cost and disruption of construction within the public rights-of-way;

G. The service that applicant will provide to the community and region;

H. The effect, if any, on public health, safety and welfare if the authorization is granted;

I. The availability of alternate routes and/or locations for the proposed facilities;

J. Applicable federal and State laws, regulations and policies; and

K. Such other factors as may demonstrate that the grant to use the public rights-of-way will serve the community interest. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(1.9)).

12.15.100 Appeal of City Manager’s decision.

Any applicant aggrieved by the granting or denying of a right-of-way use authorization shall have the right to appeal to the City Council as follows:

A. All appeals filed pursuant to this section must be filed in writing with the City Manager within 15 days of the date of the decision appealed from;

B. All appeals filed pursuant to this section shall specify the error of law or fact, or new evidence that could not have been reasonably available at the time of the City Manager’s decision, which shall constitute the basis of the appeal;

C. Upon receipt of a timely written notice of appeal, the City Manager shall advise the City Council of the pendency of the appeal and request that a date for considering the appeal be established;

D. All relevant evidence shall be received during the hearing on the appeal;

E. Unless substantial relevant information is presented that was not considered by the City Manager, such decision shall be accorded substantial weight, but may be reversed or modified by the City Council if, after considering all of the evidence in light of the applicable goals, policies, and provisions of this chapter, the City Council determines that a mistake was made. Where substantial new relevant information that was not considered in the making of the decision appealed from has been presented, the City Council shall make its decision only upon the basis of the facts presented at the hearing of the appeal, or may elect to remand the matter for reconsideration by the City Manager in light of the additional information;

F. For all appeals decided pursuant to this section, the City shall provide for a record that shall consist of written findings and conclusions and a taped transcript;

G. Unless otherwise provided by State statute or other law, all actions seeking review of a final action of the City, whether in the form of an appeal, declaratory judgment action, petition for writ of review, or other extraordinary writ, or in any other form, shall be filed with a court having jurisdiction over such action within 15 days of the decision, or the expiration of the reconsideration period, whichever is later, and otherwise shall be barred; and

H. No action to obtain judicial review shall be commenced unless all rights of appeal provided by this section are fully exhausted. The cost of transcription of all records ordered certified by the court for such review shall be borne by the party seeking such review, and shall be paid in advance to the City Clerk. If a transcript is prepared by such party from the City’s tapes, each copy shall be submitted to the City for confirmation of its accuracy. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(1.10)).

12.15.110 Agreement.

No authorization shall be deemed to have been granted hereunder until the applicant and the City have executed a written agreement setting forth the particular terms and provisions under which the applicant has been granted the right to occupy and use public rights-of-way of the City. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(1.11)).

12.15.120 Nonexclusive grant.

No authorization granted under this article should confer any exclusive right, privilege, or license to occupy or use public rights-of-way of the City for delivery of services or any other purposes. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(1.12)).

12.15.130 Rights granted.

No authorization granted under this article shall convey any right, title or interest in the public rights-of-way, but shall be deemed an authorization only to use and occupy the public rights-of-way for the limited purposes and term stated in the authorization. Further, no authorization shall be construed as any warranty of title. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(1.13)).

12.15.140 Term of right-of-way use authorization.

Unless otherwise specified in an authorization, an authorization granted hereunder shall be in effect for a term as determined by the Public Works Director, which shall be revocable upon 30 days’ notice by the City to the applicant. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(1.14)).

12.15.150 Specified route.

A right-of-way use authorization granted under this article shall be limited to a grant of specific public rights-of-way and defined portions thereof. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(1.15)).

12.15.160 Compensation to the City.

Each authorization granted pursuant to this article is subject to the City’s right, which is expressly reserved, to annually fix a fair and reasonable compensation to be paid for the right to occupy and use the public rights-of-way of the City granted under such authorization; provided, nothing in this chapter shall prohibit the City and an applicant from agreeing to the compensation to be paid; provided further, that the compensation required from any telecommunications provider or carrier engaged in the “telephone business,” as defined in RCW 82.04.065, shall be consistent with RCW 35.21.860. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(1.16)).

12.15.170 Amendment of authorization.

A new application shall be required of any applicant who desires to extend or locate its facilities in public rights-of-way of the City that are not included in an authorization previously granted under this chapter. If ordered by the City to locate or relocate its facilities in public rights-of-way not included in a previously granted authorization, the City shall grant an amendment to the authorization without further application. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(1.17)).

12.15.180 Renewal of right-of-way use authorization.

An applicant desiring to renew authorization under this article for an additional term shall file an application with the City for renewal, which shall include the following:

A. The information required pursuant to MVMC 12.15.080; and

B. All deposits or charges required pursuant to this chapter. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(1.18)).

12.15.190 Standards for renewal of authorization.

Within a reasonable time after receiving a complete application for renewal, the City Manager, or her or his designee, shall issue a written determination granting or denying the renewal application in whole or in part. If the renewal application is denied, the written determination shall include the reason(s) for denial. The decision to grant or deny an application for the renewal of a right-of-way use authorization shall, in addition to the standards set forth in MVMC 12.15.090, be based upon the following standards:

A. The continuing capacity of the public rights-of-way to accommodate the applicant’s existing facilities; and

B. The applicant’s compliance with the requirements of this chapter and the authorization. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(1.19)).

12.15.200 Obligation to cure as a condition of renewal.

No authorization shall be renewed until any ongoing violations or defaults in the applicant’s performance under the authorization, or of the requirements of this chapter, have been cured, or a plan detailing the corrective action to be taken by the applicant has been approved by the City. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(1.20)).

12.15.210 Annual fee for recovery of City costs.

Each authorization granted under this article is subject to the City’s right, which is expressly reserved, to annually fix a fair and reasonable compensation to be paid as reimbursement for the City’s costs in connection with reviewing, inspecting and supervising the use and occupancy of the public rights-of-way on behalf of the public and existing or future users. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(1.21)).

12.15.220 Other City costs.

All applicants shall, within 30 days after written demand, reimburse the City for all direct and indirect costs and expenses incurred by the City in connection with any modification, amendment, renewal or transfer of any authorization. In addition, all applicants shall, within 30 days after written demand, reimburse the City for any and all costs the City reasonably incurs in response to any emergency involving the applicant’s facilities. All applicants shall, within 30 days after written demand, reimburse the City for the applicant’s proportionate share of all actual, identified expenses incurred by the City in planning, constructing, installing, repairing or altering any City facility as a result of the construction or the presence in the right-of-way of the applicant’s facilities. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(1.22)).

Article II. Facilities Lease

12.15.230 Facilities lease.

The City Council may, in its sole discretion, approve facilities leases for the location of private facilities upon City property, as that term is defined in this chapter. Neither this section, nor any other provision of this chapter, shall be construed to create an entitlement or vested right in any person or entity of any type. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(2.1)).

12.15.240 Lease application.

Any person desiring to solicit the City’s approval of a facilities lease pursuant to this article shall file a lease proposal with the City Manager, or his or her designee, which, in addition to the information required by MVMC 12.15.080, shall include the following:

A. A description of the facilities or other equipment proposed to be located upon City property;

B. A description of the City property upon which the applicant proposes to locate these facilities or other equipment;

C. Preliminary plans in sufficient detail to identify:

1. The location(s) of existing facilities or other equipment upon the City property, whether publicly or privately owned;

2. The location and source of electric and other utilities required for the installation and operation of the proposed facilities;

D. Such other and further information as may be requested by the City; and

E. An application fee which shall be set by the City Council by ordinance. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(2.2)).

12.15.250 Determination by the City.

Recognizing that the City is under no obligation to grant a lease for the use of City property, the City shall strive to consider and take action on applications for facilities leases within a reasonable time after receiving a complete application for such a lease. When such action is taken, the City shall issue a written determination granting or denying the lease in whole or in part, applying the standards set forth below, or any other such criteria as the City Council may choose to apply. If the lease application is denied, the written determination shall include the reason for denial, if any.

A. The financial and technical ability of the applicant.

B. The legal ability of the applicant.

C. The capacity of the City property and public rights-of-way to accommodate the applicant’s proposed facilities.

D. The capacity of the City property and public rights-of-way to accommodate existing and/or additional utility and telecommunications facilities if the lease is granted.

E. The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the lease is granted.

F. The public interest in minimizing the cost and disruption of construction upon City property and within the public rights-of-way.

G. The effect, if any, on public health, safety and welfare if the lease requested is approved.

H. The availability of alternate routes and/or locations for the proposed facilities.

I. Applicable federal and State laws, regulations and policies.

J. Such other factors as may demonstrate that the lease to use the City property will serve the community interest. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(2.3)).

12.15.260 Agreement.

No facilities lease shall be deemed to have been granted hereunder until the applicant and the City have executed a written agreement setting forth the particular terms and provisions under which the lessee has been granted the right to occupy and use the City property. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(2.4)).

12.15.270 Nonexclusive lease.

No facilities lease granted under this article shall confer any exclusive right, privilege, license to occupy, or use City property. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(2.5)).

12.15.280 Term of facilities lease.

Unless otherwise specified in a lease agreement, a facilities lease granted hereunder shall be valid for a term of one year, subject to annual renewal as provided in this article. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(2.6)).

12.15.290 Rights granted.

No facilities lease granted under this article shall convey any right, title or interest in the City property, but shall be deemed a license only to use and occupy the City property for the limited purposes and term stated in the lease agreement. Further, no facilities lease shall be construed as any warranty of title. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(2.7)).

12.15.300 Interference with other users.

No facilities lease shall be granted under this article unless it contains a provision that is substantially similar to the following:

The City has previously entered into leases with other private property owners for their equipment and facilities. Lessee acknowledges that the City is also leasing City property for the purposes of... The City, however, is not in any way responsible or liable for any interference with Lessee’s use of the City property that may be caused by the use and operation of any other property owner’s facilities or equipment, even if caused by new technology. In the event that any other tenant’s activities interfere with the Lessee’s use of the City property, and the Lessee cannot work out this interference with the other tenants, the Lessee may, upon 30 days notice to the City, terminate this lease and restore the City property to its original condition, reasonable wear and tear excepted.

The Lessee shall cooperate with all other tenants to identify the causes of and work towards the resolution of any problem. In addition, the Lessee agrees to eliminate interference caused to City-owned facilities or surrounding residences at Lessee’s own expense. Lessee further agrees to accept such interference as may be received from City-operated facilities or equipment located upon the City property subject to this lease.

(Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(2.8)).

12.15.310 Ownership and removal of improvements.

No facilities lease shall be granted under this article unless it contains a provision that states that all buildings, landscaping, and all other improvements, except equipment, shall become the property of the City upon expiration or termination of the lease. In the event the City requires removal of such improvements, such removal shall be accomplished at the sole expense of the lessee and completed within 30 days after receiving notice from the City requiring removal of the improvements. In the event that facilities or equipment are left upon City property after expiration or termination of the lease, they shall become the property of the City if not removed by the lessee upon 30 days’ written notice from the City. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(2.9)).

12.15.320 Cancellation of lease by lessee.

A. All facilities leases are contingent upon the prospective lessee obtaining all necessary permits, approvals, and licenses for the proposed facilities. In the event that the prospective lessee is unable to obtain all such permits, approvals, and licenses, it may cancel its lease, and obtain a pro rata refund in any rents paid, without further obligation by giving 30 days’ prior written notice to the City.

B. In the event that the holder of a facilities lease determines that the City property is unsuitable for its intended purpose, the lessee shall have the right to cancel the lease upon 120 days’ written notice to the City. However, no prepaid rent shall be refundable. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(2.10)).

12.15.330 Compensation to the City.

Each facilities lease granted under this article is subject to the City’s right, which is expressly reserved, to annually fix a fair and reasonable compensation to be paid for the rights granted to the lessee; provided, nothing in this chapter shall prohibit the City and a lessee from agreeing to the compensation to be paid. Such compensation shall be payable in advance of the effective date of the lease and on or before January 31st of each calendar year. Any payments received after the due date shall include a late payment penalty of two percent of the annual rental fee for each day or part thereof past the due date. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(2.11)).

12.15.340 Amendment of facilities lease.

Except as provided within an existing lease agreement, a new lease application and lease agreement shall be required of any applicant desiring to expand, modify, or relocate its facilities or other equipment located upon City property. If ordered by the City to locate or relocate its facilities or other equipment on the City property, the City shall grant a lease amendment without further application. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(2.12)).

12.15.350 Renewal application.

A lessee desiring to renew a facilities lease under this article shall, not more than 120 days nor less than 60 days before expiration of the current facilities lease, file an application with the City Manager, or his or her designee, for renewal of the facilities lease which shall include the following:

A. The information required pursuant to MVMC 12.15.360;

B. Any information required pursuant to the facilities lease agreement between the City and the lessee;

C. All deposits or charges required pursuant to this chapter; and

D. An application fee which shall be set by the City Council by ordinance. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(2.13)).

12.15.360 Renewal determination.

Recognizing that the City is under no obligation to grant a renewal of a facilities lease for the use of City property, the City Manager, or his or her designee, shall strive to consider and take action on applications for renewal of such leases within a reasonable time after receiving a complete application for such a lease renewal. When such action is taken, the City Manager, or his or her designee, shall issue a written determination granting or denying the lease renewal in whole or in part, applying the standards set forth below, or any other such criteria as the City Council may choose to apply. If the renewal application is denied, the written determination shall include the reason for denial, if any.

A. The financial and technical ability of the applicant.

B. The legal ability of the applicant.

C. The continuing capacity of the City property to accommodate the applicant’s existing facilities.

D. The applicant’s compliance with the requirements of this chapter and the lease agreement.

E. Applicable federal, State and local laws, rules and policies.

F. Such other factors as may demonstrate that the continued grant to use the City property ways will serve the community interest. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(2.14)).

12.15.370 Obligation to cure as a condition of renewal.

No facilities lease shall be renewed until any ongoing violations or defaults in the lessee’s performance of the lease agreement, or of the requirements of this chapter, have been cured, or a plan detailing the corrective action to be taken by the lessee has been approved by the City. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(2.15)).

Article III. Conditions of Right-of-Way Use Authorizations and Facilities Leases

12.15.380 Purpose.

The purpose of this article is to set forth certain terms and conditions which are common to all right-of-way use authorizations and facilities leases. Except as otherwise provided in this chapter or in such an authorization or lease, the provisions of this article apply to all such authorizations and leases approved or granted by the City. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(3.1)).

12.15.390 Police power.

In accepting any authorization or lease, the applicant or lessee acknowledges that its rights hereunder are subject to the legitimate rights of the police power of the City to adopt and enforce general ordinances necessary to protect the safety and welfare of the public and it agrees to comply with all applicable general laws enacted by the City pursuant to such power. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(3.2)).

12.15.400 Rules and regulations by the City.

In addition to the inherent powers of the City to regulate and control any authorization or lease it issues, and those powers expressly reserved by the City, or agreed to and provided for in any authorization or lease, the right and power is hereby reserved by the City to promulgate such additional regulations as it may find necessary in the exercise of its lawful powers giving due regard to the rights of applicants and lessees. Except as provided in this chapter, the foregoing does not allow for amendment by the City of material terms of any authorization or lease it issues without the consent of the applicant or lessee. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(3.3)).

12.15.410 Provision and location of facilities.

All facilities shall be constructed, installed and located in accordance with the following terms and conditions, unless otherwise specified in an authorization or lease agreement.

A. Absent extraordinary circumstances or undue hardship as determined by the City, such construction, installation and location should be made concurrently to minimize the disruption of the public rights-of-way, at no expense to the City. The final determination shall be made by the Public Works Director. No extension granted by the City under this subsection shall exceed a period of 12 months.

B. Whenever new facilities will exhaust the capacity of a public street or right-of-way to reasonably accommodate future facilities, the applicant or lessee and all other occupants of the public way shall, at their own expense, locate and provide additional poles, ducts, conduits, manholes and other facilities for nondiscriminatory access to future operators and carriers. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(3.4)).

12.15.420 Compliance with One Number Locator service.

All applicants and lessees shall, before commencing any construction in the public rights-of-way or on City property, comply with all regulations of Chapter 19.122 RCW, i.e., the One Number Locator Service. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(3.5)).

12.15.430 Right-of-way construction permits.

All applicants and lessees are required to obtain right-of-way construction permits for facilities as required in Article IV of this chapter. However, nothing in this chapter shall prohibit the City and an applicant or lessee from agreeing to alternative plan review, permit, and construction procedures for an authorization or lease granted under this chapter, provided such alternative procedures provide substantially equivalent safeguards for responsible construction practices. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(3.6)).

12.15.440 Interference with the public rights-of-way.

No applicant may locate or maintain its facilities so as to unreasonably interfere with the use of public rights-of-way by the City, by the general public or by other persons authorized to use or be present in or upon the public rights-of-way. All such facilities shall be moved by the applicant or lessee, at the applicant or lessee’s sole cost, temporarily or permanently, as determined by the Public Works Director. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(3.7)).

12.15.450 Damage to property.

No applicant or lessee, nor any person acting on behalf of an applicant or lessee, shall take any action or permit any action to be done that may impair or damage any City property, public rights-of-way of the City, other ways or other property, whether publicly or privately owned, located in, on or adjacent thereto. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(3.8)).

12.15.460 Notice of work.

Unless otherwise provided in an authorization or lease agreement, no applicant or lessee, nor any person acting on behalf of the applicant or lessee, shall commence any nonemergency work, requiring an approval of right-of-way use authorization or right-of-way permit, in or about the public rights-of-way of the City, other ways, or upon City property without 10 days’ advance notice to the City. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(3.9)).

12.15.470 Repair and emergency work.

In the event of an unexpected repair or emergency, an applicant or lessee may commence such repair and emergency response work as required under the circumstances, provided the City is notified as promptly as possible, before such repair or emergency work commences or as soon thereafter as possible if advance notice is not practicable. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(3.10)).

12.15.480 Maintenance of facilities.

Each applicant or lessee shall maintain its utility and telecommunication facilities in good and safe condition and in a manner that complies with all applicable federal, State and local requirements. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(3.11)).

12.15.490 Relocation or removal of facilities.

Within 30 days following written notice from the City, or a time agreed upon between the City and the applicant or lessee, an applicant or lessee shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any facilities within the public rights-of-way or upon City property whenever the Public Works Director 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 public rights-of-way; or

B. The operations of the City or other governmental entity in or upon the public rights-of-way. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(3.12)).

12.15.500 Building moving.

Whenever any person shall have obtained permission from the City to use any street or public way for the purpose of moving any building, such applicant or lessee, within 30 days of written notice from the City or a time agreed upon between the City and the applicant or lessee, shall cause to be raised or removed any facility in the public right-of-way that may obstruct the moving of such building, at the expense of the person desiring to move the building; provided, that the person desiring to move the building shall comply with all requirements of the City for the movement of buildings. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(3.13)).

12.15.510 Removal of unauthorized facilities.

Within 30 days following written notice from the City, any provider or other person who owns, controls or maintains any unauthorized system, facility or related appurtenances within the public rights-of-way of the City shall, at its own expense, remove such facilities or appurtenances from the public rights-of-way of the City. A system or facility is unauthorized and subject to removal in any of the following circumstances:

A. Upon expiration or termination of the authorization.

B. Upon abandonment of a facility within the public rights-of-way of the City, if left in place 90 days after expiration or termination of an authorization.

C. If the system or facility was constructed or installed without the prior grant of an authorization.

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

E. If the system or facility was constructed or installed at a location not permitted by the authorization.

Provided, however, that the City may, in its sole discretion, allow persons who may own, control, or maintain facilities within the public rights-of-way of the City to abandon such facilities in place. No facilities of any type may be abandoned in place without the express written consent of the City. Any plan for abandonment or removal of facilities must be first approved by the Public Works Director, and all necessary permits must be obtained prior to such work. Upon permanent abandonment in place of the property of such persons, the property shall if desired by the City become the property of the City, and such persons shall submit to the City an instrument in writing, approved by the City Attorney, transferring to the City the ownership of such property, free and clear of any lien or encumbrance. The provisions of this section shall survive the expiration, revocation, or termination of an authorization granted under this chapter. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(3.14)).

12.15.520 Emergency removal or relocation of facilities.

The City retains the right and privilege to cut or move any facilities located within the public rights-of-way of the City and upon City property, as the City may determine to be necessary, appropriate or useful in response to any public health or safety emergency. The City will notify the applicant of an emergency affecting or regarding their facilities as soon as possible. Said applicant shall respond within 30 minutes to any emergency situation. The City shall not be liable for any direct, indirect, or any other such damages suffered by any person or entity of any type as a direct or indirect result of the City’s actions under this section. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(3.15)).

12.15.530 Damage to facilities.

Unless directly and proximately caused by the willful, intentional or malicious acts by the City, the City shall not be liable for any damage to or loss of any facility upon City property or within public rights-of-way of the City as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling, or work of any kind on such City property or within public rights-of-way by or on behalf of the City. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(3.16)).

12.15.540 Restoration of public rights-of-way, other ways and City property.

A. When any person does any work in or affecting any public rights-of-way, other ways or City property, they shall, at their own expense, promptly remove any obstructions therefrom; protect existing soils, stormwater facilities, and vegetation during work; and restore such ways or property to as good a condition as existed before the work was undertaken, unless otherwise directed or authorized by the City. If the City determines that complete or satisfactory restoration is not obtainable, the City shall have the right to require compensation for the less than complete or satisfactory condition of the ways or property.

B. If weather or other conditions do not permit the complete restoration required by this section, the applicant or lessee shall temporarily restore the affected ways or property. Such temporary restoration shall be at the applicant or lessee’s sole expense and the applicant or lessee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration.

C. An applicant, lessee or other person acting in 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 such ways or property.

D. The Public Works Director shall be responsible for observation and final approval of the condition of the public rights-of-way, other ways, and City property following any construction and restoration activities therein. The applicant, lessee, or other person acting in its behalf, is responsible for all testing and monitoring, and the costs thereof, of construction and restoration activities. Further, the provisions of this section shall survive the expiration, revocation, or termination of an authorization, lease, or other agreement granted pursuant to this chapter. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(3.17)).

12.15.550 Facilities maps.

Each applicant and lessee shall provide the City with a map or maps accurately reflecting the location and configuration of all of their facilities, including abandoned facilities, within the public rights-of-way and upon City property. Each applicant and lessee shall provide the City with actual as-built plans upon request of the City. Please refer to MVMC 12.15.730, As-built drawings. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(3.18)).

12.15.560 Insurance.

Repealed by Ord. O-09-400. (Ord. O-99-98 § 1(3.19)).

12.15.565 Insurance.

Unless otherwise provided in an authorization or lease agreement, each applicant or lessee shall, as a condition of the permit or grant, secure and maintain the following liability insurance policies insuring both the applicant or lessee and the City against claims for injuries to persons or damages to property which may arise from or in connection with the exercise of the rights, privileges, and authority granted to the applicant or lessee. Applicant’s or lessee’s maintenance of insurance as required by the agreement shall not be construed to limit the liability of the applicant or lessee to the coverage provided by such insurance, or otherwise limit the City’s recourse to any remedy available at law or in equity. The insurance policies are to contain, or be endorsed to contain, the following provisions for automobile liability and commercial general liability insurance:

A. The applicant’s insurance coverage shall be primary insurance as respects the City. Any insurance, self-insurance, or insurance pool coverage maintained by the City shall be in excess of the applicant’s insurance and shall not contribute with it.

B. The applicant’s insurance shall be endorsed to state that coverage shall not be cancelled by either party, except after 30 days’ prior written notice by certified mail, return receipt requested, has been given to the City.

C. The applicant shall obtain insurance of the type described below:

1. Commercial general liability insurance shall be written on ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, independent contractors, products-completed operations, stopgap liability, personal injury and advertising injury, and liability assumed under an insured contract. The commercial general liability insurance shall be endorsed to provide the aggregate per project endorsement ISO form CG 25 03 11 85. There shall be no endorsement or modification of the commercial general liability insurance for liability arising from explosion, collapse or underground property damage. The City shall be named as an insured under the applicant’s commercial general liability insurance policy with respect to the work performed for the City using ISO additional insured endorsement CG 20 10 10 01 and additional insured-completed operations endorsement CG 20 37 10 01 or substitute endorsements providing equivalent coverage. Commercial general liability insurance shall be written for the following limits:

a. One million dollars each occurrence;

b. Two million dollars general aggregate; and

c. Two million dollars products-completed operations aggregate limit.

2. Automobile liability insurance covering all owned, non-owned, hired and leased vehicles. Coverage shall be written on Insurance Services Office (ISO) form CA 00 01 or a substitute form providing equivalent liability coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage. Automobile liability insurance shall be written for the following limits:

a. A minimum combined single limit for bodily injury and property damage of $1,000,000 per accident.

3. Workers’ compensation within statutory limits.

D. The liability insurance policies required by this section shall be maintained by the applicant throughout the term of the authorization or lease, and such other period of time during which the applicant or lessee is operating without an authorization or lease hereunder, or is engaged in the removal of its facilities. The applicant shall provide to the City an insurance certificate, together with an endorsement naming the City as additional insureds, prior to the commencement of any work or installation of any facilities pursuant to said authorization or lease. The applicant’s insurance shall be primary insurance as respects the City, its officers, officials, employees, agents, consultants, and volunteers. Any insurance maintained by the City, its officers, officials, employees, consultants, agents, and volunteers shall be in excess of the insurance maintained by applicant or lessee and shall not contribute with it.

E. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII.

F. Applicant shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the applicant before commencement of the work. (Ord. O-17-616 § 2 (Att. A); Ord. O-09-400 § 2).

12.15.570 General indemnification.

No authorization or lease shall be deemed to be granted under this chapter unless it includes an indemnity clause substantially conforming to the following:

The applicant or lessee hereby releases, covenants not to bring suit and agrees to indemnify, defend and hold harmless the City, its elected and appointed officials, officers, employees, agents, representatives, engineers, and consultants from any and all claims, costs, judgments, awards, or liability to any person, including claims by the applicant or lessee’s own employees to which the applicant or lessee might otherwise be immune under Title 51 RCW, arising from injury or death of any person or damage to property of which the acts or omissions of the applicant or lessee, its agents, servants, officers, or employees in performing under this authorization or lease are the proximate cause. The applicant or lessee further releases, covenants not to bring suit and agrees to indemnify, defend and hold harmless the City, its elected and appointed officials, officers, employees, agents, representatives, engineers, and consultants from any and all claims, costs, judgments, awards, or liability to any person including claims by the applicant or lessee’s own employees, including those claims to which the applicant or lessee might otherwise have immunity under Title 51 RCW, arising against the City solely by virtue of (1) the City’s ownership or control of the rights-of-way or other public properties, (2) the applicant or lessee’s exercise of the rights granted herein, or (3) the City’s permitting the applicant or lessee’s use of the City’s rights-of-way or other public property, or (4) based upon the City’s inspection or lack of inspection of work performed by the applicant or lessee, its agents and servants, officers or employees in connection with work authorized on the City’s property or property over which the City has control, pursuant to this authorization or lease, or pursuant to any other permit or approval issued in connection with this authorization or lease. This covenant of indemnification shall include, but not be limited by this reference, claims against the City arising as a result of the negligent acts or omissions of the applicant or lessee, its agents, servants, officers, or employees in barricading, instituting trench safety systems or providing other adequate warnings of any excavation, construction, or work in any public right-of-way or other public place in performance of work or services permitted under this authorization or lease.

Inspection or acceptance by the City of any work performed by the applicant or lessee at the time of completion of construction shall not be grounds for avoidance of any of these covenants of indemnification. Said indemnification obligations shall extend to claims that 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.

In the event that the applicant or lessee refuses the tender of defense in any suit or any claim, said tender having been made pursuant to the indemnification clauses contained herein, and said refusal is subsequently determined by a court having jurisdiction (or such other tribunal that the parties shall agree to decide the matter), to have been a wrongful refusal on the part of the applicant or lessee, then the applicant or lessee shall pay all of the City’s costs for defense of the action, including all reasonable expert witness fees and reasonable attorneys’ fees and the reasonable costs of the City, including reasonable attorneys’ fees of recovering under this indemnification clause.

In the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the applicant or lessee, and the City, its officers, employees and agents, the applicant or lessee’s liability hereunder shall be only to the extent of the applicant or lessee’s negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes the applicant or lessee’s waiver of immunity under Title 51 RCW, solely for the purposes of this indemnification. This waiver has been mutually negotiated by the parties.

The provisions of this section shall survive the expiration or termination of this authorization or lease agreement.

Notwithstanding any other provisions of this section, the applicant or lessee assumes the risk of damage to its facilities located in the City’s public rights-of-way, easements, and property from activities conducted by the City, its officers, agents, employees, and contractors. The applicant or lessee releases and waives any and all claims against the City, its officers, agents, employees, or contractors for damage to or destruction of the applicant or lessee’s facilities caused by or arising out of activities conducted by the City, its officers, agents, employees, and contractors, in the public rights-of-way, easements, or property subject to this authorization or lease, except to the extent any such damage or destruction is caused by or arises from the sole negligence or willful or malicious action on the part of the City, its officers, agents, employees, or contractors. The applicant or lessee further agrees to indemnify, hold harmless and defend the City against any claims for damages, including, but not limited to, business interruption damages and lost profits, brought by or under users of the applicant or lessee’s facilities as the result of any interruption of service due to damage or destruction of the user’s facilities caused by or arising out of activities conducted by the City, its officers, agents, employees, or contractors, except to the extent any such damage or destruction is caused by or arises from the sole negligence or willful or malicious actions on the part of the City, its officers, agents, employees, or contractors.

(Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(3.20)).

12.15.580 Performance and construction surety.

Unless otherwise prohibited by law, before an authorization or lease granted pursuant to this chapter is effective, and as necessary thereafter, the applicant or lessee shall provide and deposit such moneys, bonds, letters of credit, or other instruments in form and substance acceptable to the City as may be required by this chapter, the Maple Valley Municipal Code, or by an applicable authorization or lease agreement. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(3.21)).

12.15.590 Construction and completion bond.

A. Unless otherwise provided in an authorization or lease agreement, or unless otherwise prohibited by law, a performance agreement secured by a performance bond written by a corporate surety acceptable to the City equal to at least 125 percent of the estimated cost of constructing the applicant or lessee’s facilities within the public rights-of-way of the City or upon City property shall be deposited before construction is commenced.

B. The performance bond shall remain in force until satisfactory completion of the authorized work as determined by the City, including restoration of public rights-of-way and other property affected by the construction. At such time a maintenance bond for 25 percent of the construction cost shall be secured and remain in place for an additional two years.

The performance agreement shall guarantee, to the satisfaction of the City:

1. Timely completion of construction;

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

3. Proper location of the facilities as approved by the City;

4. Restoration of the public rights-of-way and other public or private property disrupted, damaged, or otherwise affected by the construction. The performance agreement shall warrant said restoration work for a period of two years;

5. The submission of “as-built” drawings after completion of the work as required by this chapter; and

6. Timely payment and satisfaction of all claims, demands or liens for labor, material or services provided in connection with the work. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(3.22)).

Article IV. Right-of-Way Work Standards

12.15.600 General construction standards.

Notwithstanding any provision of MVMC Title 12, no person shall commence or continue with the construction, installation, maintenance, or repair of facilities within public rights-of-way of the City or upon City-owned property, except as provided in this chapter. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(4.1)).

12.15.610 Construction codes.

Facilities shall be constructed, installed, operated, and maintained in accordance with all applicable federal, State and local codes, rules and regulations. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(4.2)).

12.15.620 Right-of-way construction permits.

No person, operator, or applicant shall construct or install any facilities within the public rights-of-way of the City or upon City property without first obtaining the appropriate right-of-way construction permit therefor, provided, however:

A. No right-of-way construction permit shall be issued for the construction or installation of facilities without payment of any applicable right-of-way permit fee; and

B. No right-of-way construction permit shall be issued for the construction or installation of other equipment on City property unless the person, operator, or applicant has applied for and received a facilities lease from the City. The City Council reserves unto itself the sole discretion to lease City property for facilities, and no vested or other rights shall be created by this section or any provision of this chapter applicable to such facilities leases. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(4.3)).

12.15.630 Applications.

Applications for right-of-way construction permits to construct or install facilities shall be submitted to the Public Works Director upon forms to be provided by the City, and shall be accompanied by the appropriate fee as established by the City Council and by drawings, plans and specifications in sufficient detail to demonstrate:

A. That the facilities will be constructed in accordance with all applicable codes, rules and regulations;

B. The location and route of all facilities to be installed;

C. The location, route, and configuration of all facilities to be located above or under the surface of the ground, including the line and grade proposed at all points along the route which are within public rights-of-way;

D. The location of all existing underground utilities, conduits, ducts, pipes, mains, and installations which are within public rights-of-way along the route proposed by the applicant;

E. The location of all other facilities to be constructed by the applicant within the City, but not within public rights-of-way;

F. The construction methods to be employed for protection of existing structures, fixtures, and facilities within or adjacent to the public rights-of-way;

G. The location, dimension and types of all trees within or adjacent to the public rights-of-way along the route proposed by the applicant, together with a landscape plan for protecting, trimming, removing, replacing and restoring any trees or areas to be disturbed during construction;

H. Proposed construction schedule and work hours; and

I. The location of all survey monuments which may be displaced or disturbed by the proposed construction or installation. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(4.4)).

12.15.640 Engineer’s certification.

Where required by the Public Works Director, right-of-way construction permit applications shall be accompanied by drawings, plans and specifications bearing the certification of a registered professional engineer. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(4.5)).

12.15.650 Traffic control plan.

All right-of-way construction permit applications which involve work on, in, under, across, or along any public rights-of-way shall be accompanied by a traffic control plan demonstrating the protective measures and devices that will be employed, consistent with Uniform Manual of Traffic Control Devices, to prevent injury or damage to persons or property and to minimize disruptions to efficient pedestrian and vehicular traffic. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(4.6)).

12.15.660 Issuance of permit.

After submission of all plans and documents required of the applicant and payment of the permit fees required by this article, the Public Works Director, if satisfied that the applications, plans and documents comply with all requirements of this chapter, shall issue a right-of-way construction permit authorizing construction of the facilities, subject to such further conditions, restrictions or regulations affecting the time, place and manner of performing the work as he or she may deem necessary or appropriate. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(4.7)).

12.15.670 Appeal of Director’s decision.

Any person aggrieved by the granting or denying of a right-of-way construction permit pursuant to this article shall have the right to appeal to the City Manager as follows:

A. All appeals filed pursuant to this section must be filed in writing with the City Manager within 30 days of the date of the decision appealed from;

B. All appeals filed pursuant to this section shall specify the error of law or fact, or new evidence which could not have been reasonably available at the time of the Public Works Director’s decision, which shall constitute the basis of the appeal;

C. Upon receipt of a timely written notice of appeal, the City Manager shall establish a date for considering the appeal;

D. All relevant evidence shall be received during the hearing on the appeal;

E. Unless substantial relevant information is presented which was not considered by the Public Works Director, such decision shall be accorded substantial weight, but may be reversed or modified by the City Manager if, after considering all of the evidence in light of the applicable goals, policies, and provisions of this chapter, the City Manager determines that a mistake has been made. Where substantial new relevant information which was not considered in the making of the decision appealed from has been presented, the City Manager shall make his/her decision only upon the basis of the facts presented at the hearing of the appeal, or may elect to remand the matter for reconsideration by the Public Works Director in light of the additional information;

F. For all appeals decided pursuant to this section, the City shall provide for a record that shall consist of written findings and conclusions;

G. Unless otherwise provided by State statute or other law, all actions seeking review of a final action of the City, whether in the form of an appeal, declaratory judgment action, petition for writ of review or other extraordinary writ, or in any other form, shall be filed with a court having jurisdiction over such action within 15 days of the decision, or the expiration of the reconsideration period, whichever is later, and otherwise shall be barred; and

H. No action to obtain judicial review shall be commenced unless all rights of appeal provided by this section are fully exhausted. The cost of transcription of all records ordered certified by the court for such review shall be borne by the party seeking such review and shall be paid in advance to the City Clerk. If a transcript is prepared by such party, it shall be submitted to the City for confirmation of its accuracy. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(4.8)).

12.15.680 Compliance with permit.

All construction practices and activities shall be in accordance with the right-of-way permit and approved final plans and specifications for the facilities. The Public Works Director and his or her representatives shall be provided access to the work and such further information as he or she may require to ensure compliance with such requirements. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(4.9)).

12.15.690 Display of permit.

The permittee shall maintain a copy of the right-of-way construction permit and approved plans at the construction site, which shall be displayed and made available for inspection by the Public Works Director or his or her representatives at all times when construction work is occurring. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(4.10)).

12.15.700 Survey of facilities.

If the right-of-way permit specifies the location of facilities by depth, line, grade, proximity to other facilities or other standard, the permittee shall cause the location of such facilities to be verified by a State-registered land surveyor. The permittee may be required to relocate any facilities that are not located in compliance with permit requirements. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(4.11)).

12.15.710 Noncomplying work.

Upon order of the Public Works Director, all work that does not comply with the permit, the approved plans and specifications for the work, or the requirements of this chapter shall be remedied or removed. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(4.12)).

12.15.720 Completion of construction.

The permittee shall promptly complete all construction activities so as to minimize disruption of the public and other ways and other public and private property. All construction work authorized by a right-of-way permit within public and other ways, including restoration, must be completed within 120 days of the date of issuance, unless a specific alternate number of days is approved by the Public Works Director at the time the right-of-way permit is issued. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(4.13)).

12.15.730 As-built drawings.

Within 60 days after completion of construction, the permittee shall furnish the City with two complete sets of plans, drawn to scale and certified to the City as accurately depicting the horizontal and vertical location and configuration of those facilities that are the responsibility of the City and constructed pursuant to the permit. As-builts of other facilities will be provided if and when the City needs them to complete the design of a specific project. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(4.14)).

12.15.740 Restoration after construction.

Upon completion of any construction, maintenance, or repair work, the permittee shall promptly repair any and all public and private property improvements, fixtures, structures, and facilities in the public or other ways or otherwise damaged during the course of construction, restoring the same as nearly as practicable to its condition before the start of construction. All survey monuments disturbed or displaced shall be referenced and replaced as required by Chapter 332-120 WAC and/or other applicable local, State or federal standards and requirements. The referencing and replacement of survey monuments shall be performed by a licensed land surveyor. The Public Works Director shall have final approval of the completeness of all restoration work and all permittees shall warrant said restoration work for a period of two years. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(4.15)).

12.15.750 Landscape restoration.

A. All trees, landscaping and grounds removed, damaged or disturbed as a result of the construction, installation, maintenance, repair, or replacement of facilities shall be replaced or restored as nearly as may be practicable, to the condition existing prior to performance of work.

B. All landscape restoration work within public rights-of-way shall be done in accordance with landscape plans approved by the Public Works Director. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(4.16)).

12.15.760 Construction surety.

Prior to issuance of a construction permit, the permittee shall provide a secured performance agreement, as provided in MVMC 12.15.590. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(4.17)).

12.15.770 Responsibilities of the owner.

The owner of the facilities to be constructed and, if different, the applicant or lessee, are responsible for performance of and compliance with all provisions of this article. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 1(4.18)).

Article V. Fees

12.15.780 Fees.

The following fees shall apply to this chapter; in the event of a conflict with this chapter and any other ordinance regarding fees associated with right-of-way activity, these fees shall apply:

A. Right-of-way construction permit for trenching in streets or rights-of-way: $35.00.

B. Right-of-way construction permit for surface improvements: $35.00.

C. Hourly inspection fee: up to $65.00.

D. Appeal of Director’s decision: $250.00.

The plan review fee for right-of-way permits shall be as set in the City’s fee ordinance. (Ord. O-17-616 § 2 (Att. A); Ord. O-99-98 § 2).