Chapter 12.32
RIGHT-OF-WAY FRANCHISES FOR PUBLIC AND PRIVATE UTILITIES Revised 3/18

Sections:

12.32.010    Purpose.

12.32.012    Compliance.

12.32.014    Definitions.

12.32.020    Franchises Required. Revised 3/18

12.32.030    Nonexclusive Grant.

12.32.040    Term of Grant.

12.32.050    Eminent Domain.

12.32.060    Application. Revised 3/18

12.32.070    Franchise Fees. Revised 3/18

12.32.080    Review of Applications – Hearing. Revised 3/18

12.32.090    Criteria For Approval – Sewer Districts.

12.32.100    Criteria for Approval – All Other Franchise Applicants.

12.32.105    Standards Adopted.

12.32.110    Utility Right-of-Way Permit Required.

12.32.120    Application. Revised 3/18

12.32.130    Utility Right-of-Way Permit Fees. Revised 3/18

12.32.140    Utility in Good Standing (UGS) – Criteria and Procedure for Determination.

12.32.150    Performance Records – Utility in Good Standing.

12.32.160    Exemption from Permit Fees.

12.32.162    Notice of Work.

12.32.164    Repair and Emergency Work.

12.32.170    Interference with the Right-of-Way.

12.32.180    Damage to Property.

12.32.190    Relocation or Removal of Facilities.

12.32.200    Removal of Unauthorized Facilities.

12.32.210    Failure to Relocate.

12.32.220    Emergency Removal or Relocation of Facilities.

12.32.230    Damage to Utility's Facilities.

12.32.240    Restoration of Right-of-Way or Other Private Property.

12.32.250    Duty to Provide Information.

12.32.255    Grantee Insurance.

12.32.256    General Indemnification.

12.32.257    Performance and Restoration Surety.

12.32.258    Restoration Bond.

12.32.260    Penalties.

12.32.265    Revocation or Termination of Grant.

12.32.270    Other Remedies.

12.32.275    Applicability.

12.32.280    Severability.

Cross-reference:    Chapter 36.55 RCW

12.32.010 Purpose.

The purpose of this Chapter is to regulate the granting of County right-of-way franchises for public and private utilities, and to insure consistency of such franchises with the applicable district comprehensive plan, the County Comprehensive Plan, sound engineering and design standards, health and sanitation regulations, and the public interest. (Prior Code § 81.08.010)

12.32.012 Compliance.

All utilities with facilities within Pierce County road rights-of-way, whether or not the utility holds a franchise from Pierce County, shall comply with the provisions of this Chapter and with all applicable federal, state, and local laws, codes, rules and regulations. (Ord. 2016-9 § 1 (part), 2016)

12.32.014 Definitions.

Terms used in this Chapter shall have the following meanings:

"County" means the County of Pierce, State of Washington.

"County Property" means any real property owned by the County, whether in fee or other ownership estate of interest.

"Emergency" means any event which may threaten public health or safety, or that results in an interruption in the provision of services including, but not limited to, damaged or leaking water or gas conduit systems; damaged, plugged, or leaking sewer or storm drain conduit systems; damaged electrical and communications facilities, and advanced notice of needed repairs is impracticable under the circumstances.

"Emergency Repair" means repair undertaken in the case of an emergency as defined above.

"Facility or Facilities" means a privately, publicly, or cooperatively owned line, equipment, or system for producing, transmitting, or distributing communications, cable television, power, electricity, light, heat, gas, oil, crude products, water, steam, waste, sanitary sewer, storm drainage, surface water drainage or any other similar system which directly or indirectly serves the public.

"Franchise" means an occupancy and use document granted by the County and required for occupancy of road rights-of-way in accordance with Chapters 36.55 and 80.32 RCW.

"Franchisee" refers to a person holding a franchise granted by County ordinance.

"Person" includes corporations, companies, associations, joint stock companies, firms, partnerships, limited liability companies, municipal corporations, government agencies or departments, other entities, and natural persons.

"Public Ways" includes the surface of and space above and below any real property in the County in which the County holds a real property interest, or interest as a trustee for the public including, but not limited to, all public streets, highways, roads, alleys, sidewalks, tunnels, viaducts, bridges, skyways, or any other public place, area, or property under control of the County, and any public or utility easements established, dedicated or devoted for public utility purposes.

"RCW" refers to the Revised Code of Washington.

"Right-of-Way" means all County property and public ways, collectively, within the County.

"Utility or Utilities" means any person that owns, controls, constructs, operates, or manages facilities.

"Work" means any non-emergency labor performed in connection with construction, maintenance or repair of facilities impacting the rights-of-way and all related appurtenances, fixtures, improvements, sidewalks, driveway openings, bus shelters, bus-loading pads, streetlights, and traffic signal devices. It shall also mean construction, maintenance, and repair of all underground facilities such as pipes, conduits, ducts, tunnels, manholes, vaults, buried cable, wire, or any other similar facility located below surface, and installation of overhead poles used for any purpose. (Ord. 2016-9 § 1 (part), 2016)

12.32.020 Franchises Required. Revised 3/18

Utilities are required, in accordance with RCW 36.55.010, to obtain a right-of-way franchise approved by the Pierce County Council in order to use the right-of-way of County roads for the construction and maintenance of facilities, except that the Pierce County Department of Planning and Public Works and any entity under contract with Pierce County shall be exempted from this requirement. (Ord. 2017-12s § 2 (part), 2017; Ord. 2016-9 § 1 (part), 2016; Ord. 2015-25s § 2 (part), 2015; Ord. 96-128S § 2 (part), 1997; Ord. 89-146 § 1 (part), 1989; prior Code § 81.08.020)

12.32.030 Nonexclusive Grant.

No franchise granted hereunder shall confer any exclusive right, or authorization to occupy or use the right-of-way. (Ord. 96-128S § 2 (part), 1997)

12.32.040 Term of Grant.

Unless otherwise specified in the franchise, or unless otherwise renewed, a franchise granted hereunder shall be in effect for a term of not more than five years. (Ord. 96-128S § 2 (part), 1997)

12.32.050 Eminent Domain.

Nothing herein shall be deemed or construed to impair or affect, in any way or to any extent, the County's power of eminent domain. (Ord. 96-128S § 2 (part), 1997)

12.32.060 Application. Revised 3/18

Applications for right-of-way franchises shall be submitted in the form approved by the County Engineer to the Pierce County Department of Planning and Public Works. (Ord. 2017-12s § 2 (part), 2017; Ord. 2015-25s § 2 (part), 2015; Ord. 96-128S § 2 (part), 1997; Ord. 89-146 § 1 (part), 1989; prior Code § 81.08.030)

12.32.070 Franchise Fees. Revised 3/18

There is established a $1,000.00 fee for each franchise application, said fee to provide reimbursement to the Pierce County Department of Planning and Public Works for the administrative costs and expenses of processing the application. The fee shall be payable in its entirety at the time each separate application for a new franchise or for a franchise renewal, amendment, supplement, or assignment is filed with the Department of Planning and Public Works and shall be non-refundable. In addition to the $1,000.00 fee, each applicant shall also reimburse Pierce County for public notice advertising and publication costs incurred in respect to each application. Further, all franchisees, except Telecommunications Grantees, shall, within 30 days after written demand thereof, reimburse Pierce County for all direct and indirect costs and expenses, over and above $1,000.00, incurred by the County in connection with any grant, modification, amendment, renewal, or transfer of any franchise. (Ord. 2017-12s § 2 (part), 2017; Ord. 2016-9 § 1 (part), 2016; Ord. 2015-25s § 2 (part), 2015; Ord. 2002-59 § 1 (part), 2002; Ord. 2000-57s § 1 (part), 2001; Ord. 96-128S § 2 (part), 1997; Ord. 89-146 § 1 (part), 1989; Res. 21898 §§ 1, 2, 1979; prior Code § 81.08.040)

12.32.080 Review of Applications – Hearing. Revised 3/18

A.    The Pierce County Department of Planning and Public Works shall be responsible for the administration and enforcement of franchises and Right-of-Way Permits.

B.    In accordance with RCW 36.55.040, the Pierce County Council shall set a time and place for a public hearing on each franchise application. The Council shall post notice of such hearing in three public places 15 days before the hearing and publish notice twice in the official County newspaper at least 5 days prior to the hearing date pursuant to the provisions of RCW 36.55.040.

(Ord. 2017-12s § 2 (part), 2017; Ord. 2015-25s § 2 (part), 2015; Ord. 2000-57s § 1 (part), 2001; Ord. 96-128S § 2 (part), 1997; Ord. 89-146 § 1 (part), 1989; prior Code § 81.08.050)

12.32.090 Criteria For Approval – Sewer Districts.

The following criteria shall be considered in determining whether to grant a County franchise to a sewer district:

A.    A previously County/State approved comprehensive plan for the sewer district;

B.    The Comprehensive Land Use, Sewer General Plan, and any applicable basinwide plan for Pierce County, as amended;

C.    The Pierce County "Manual on Accommodating Utilities in Pierce County Rights-of-Way";

D.    Health and sanitation regulations of the Tacoma-Pierce County Health Department and the State Department of Social and Health Services.

(Ord. 2016-9 § 1 (part), 2016; Ord. 96-128S § 2 (part), 1997; Ord. 89-146 § 1 (part), 1989; prior Code § 81.08.060)

12.32.100 Criteria for Approval – All Other Franchise Applicants.

Prior to granting any County franchise, the criteria stated in PCC 12.32.090 and 12.34.410, where applicable, shall be considered. In addition, the following criteria shall also be considered:

A.    The financial capability of the franchise applicant, except a telecommunications applicant, to adequately install and maintain the proposed facility;

B.    The adequacy of the franchise applicant's expertise to install and maintain the proposed facility; and

C.    Any potential hazards and risks which would be created by the installation of the proposed facility.

(Ord. 2002-59 § 1 (part), 2002; Ord. 2000-57s § 1 (part), 2001; Ord. 96-128S § 2 (part), 1997; Ord. 89-146 § 1 (part), 1989; prior Code § 81.08.080)

12.32.105 Standards Adopted.

The edition most recently approved by the Pierce County Council of the "Manual on Accommodating Utilities in Pierce County Rights-of-Way," as published by the Pierce County Engineer, is adopted as Pierce County's policy for the construction, installation, maintenance, and operation of all utilities in Pierce County rights-of-way. All references to the "Manual on Accommodating Utilities in Pierce County Rights-of-Way" in this Chapter are to the current Council-approved edition. (Ord. 2016-9 § 1 (part), 2016; Ord. 2004-71 § 1 (part), 2004)

12.32.110 Utility Right-of-Way Permit Required.

In addition to a valid franchise, utilities are required to obtain a Utility Right-of-Way Permit approved by the Pierce County Engineer in order to work in the right-of-way of County roads for the construction or maintenance of facilities as outlined in PCC 12.32.020 and the "Manual on Accommodating Utilities in Pierce County Rights-of-Way." (Ord. 2016-9 § 1 (part), 2016; Ord. 2000-57s § 1 (part), 2001; Ord. 96-128S § 2 (part), 1997)

12.32.120 Application. Revised 3/18

Applications for Utility Right-of-Way Permits shall be submitted in the form approved by the County Engineer to the Pierce County Department of Planning and Public Works. (Ord. 2017-12s § 2 (part), 2017; Ord. 2015-25s § 2 (part), 2015; Ord. 96-128S § 2 (part), 1997)

12.32.130 Utility Right-of-Way Permit Fees. Revised 3/18

For the purpose of permitting and allocating fees, utility work is divided into four classifications. Permit fees and classifications are provided in Schedule A of the most recent edition of the "Manual on Accommodating Utilities in Pierce County Rights-of-Way" except as noted in PCC 12.32.160.

Any Utility Right-of-Way Permit fee shall be payable to the Department of Planning and Public Works – Road Fund in accordance with administrative procedures developed by the Department. (Ord. 2017-12s § 2 (part), 2017; Ord. 2016-9 § 1 (part), 2016; Ord. 2015-25s § 2 (part), 2015; Ord. 2004-71 § 1 (part), 2004; Ord. 2000-57s § 1 (part), 2001; Ord. 96-128S § 2 (part), 1997)

12.32.140 Utility in Good Standing (UGS) – Criteria and Procedure for Determination.

In order to facilitate installation of utilities within road rights-of-way and in order to ensure that the County's program for capital improvements, operation, and maintenance is enhanced, Pierce County establishes the designation of "Utility in Good Standing" (UGS). A UGS Certification will certify that the utility is substantially complying with the "Manual on Accommodating Utilities in Pierce County Rights-of-Way" and may be eligible for streamlined permitting. All utilities that are franchise holders and have less than three violations of the provisions of this Chapter or the Pierce County "Manual on Accommodating Utilities in Pierce County Rights-of-Way" during any preceding 12-month period will be eligible to receive a designation of "Utility in Good Standing" if certified by the County Engineer upon written request. (Ord. 2016-9 § 1 (part), 2016; Ord. 2000-57s § 1 (part), 2001; Ord. 96-128S § 2 (part), 1997)

12.32.150 Performance Records – Utility in Good Standing.

The County Engineer shall keep and review records of performance for each utility to monitor compliance to Pierce County Code and the most recent edition of the "Manual for Accommodating Utilities in Pierce County Rights-of-Way." Based on such review, the County Engineer may take appropriate action, including revoking a UGS certification or designation if the utility no longer meets the standards specified in PCC 12.32.140. (Ord. 2016-9 § 1 (part), 2016; Ord. 2004-71 § 1 (part), 2004; Ord. 96-128S § 2 (part), 1997)

12.32.160 Exemption from Permit Fees.

Any utility having a valid designation of "Utility in Good Standing" as certified by the County Engineer shall be exempt from the permit application fee for Class "B" work as stated in the "Manual on Accommodating Utilities in Pierce County Rights-of-Way."

Any utility performing work as a result of a County construction or maintenance project shall be exempt from any applicable permit fee. (Ord. 2016-9 § 1 (part), 2016; Ord. 96-128S § 2 (part), 1997)

12.32.162 Notice of Work.

Unless otherwise provided in a franchise agreement, no utility, or any person acting on the utility's behalf, shall commence any non-emergency work in rights-of-way unless work is conducted in accordance with PCC 12.32.110. A utility must provide ten days advance written notice to any private property owner whose property will be affected by a utility's work, except for work performed as a result of an emergency or emergency repair, as specified in PCC 12.32.164. (Ord. 2016-9 § 1 (part), 2016)

12.32.164 Repair and Emergency Work.

In the event of an emergency or an emergency repair, a utility may commence such repair and emergency response work as required under the circumstances, provided the utility shall notify the County Engineer or designee as promptly as possible, in accordance with the "Manual on Accommodating Utilities in Pierce County Rights-of-Way." (Ord. 2016-9 § 1 (part), 2016)

12.32.170 Interference with the Right-of-Way.

No utility may locate or maintain its facilities so as to unreasonably interfere with the use of the right-of-way by the County, by the general public or other persons authorized to use or be present in or upon the right-of-way. All such facilities shall be moved by and at the expense of the utility, temporarily or permanently, as determined by the County. (Ord. 96-128S § 2 (part), 1997)

12.32.180 Damage to Property.

No utility shall take any action or permit any action to be done which may impair or damage any right-of-way, including specifically County Property, real or personal, or other property located in, on or adjacent thereto. (Ord. 2016-9 § 1 (part), 2016; Ord. 96-128S § 2 (part), 1997)

12.32.190 Relocation or Removal of Facilities.

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

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

B.    The operations of the County or other governmental entity in or upon the right-of-way.

(Ord. 2016-9 § 1 (part), 2016; Ord. 2000-57s § 1 (part), 2001; Ord. 96-128S § 2 (part), 1997)

12.32.200 Removal of Unauthorized Facilities.

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

A.    Upon expiration or termination of the utility's franchise.

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

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

D.    If the system or facility was constructed or installed without the prior issuance of a required Utility Right-of-Way Permit.

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

F.    Any such other reasonable circumstances deemed necessary by the County Engineer.

(Ord. 2016-9 § 1 (part), 2016; Ord. 2001-57s § 1 (part), 2001; Ord. 96-128S § 2 (part), 1997)

12.32.210 Failure to Relocate.

If a utility is required to relocate, change or alter the facilities constructed, operated and/or maintained hereunder and fails to do so, the County may cause such to occur and charge the utility for the costs incurred. (Ord. 96-128S § 2 (part), 1997)

12.32.220 Emergency Removal or Relocation of Facilities.

The County retains the right and privilege to cut or move any facilities located within the right-of-way as the County may determine to be necessary, appropriate or useful in response to any public health or safety emergency. (Ord. 96-128S § 2 (part), 1997)

12.32.230 Damage to Utility's Facilities.

Unless directly and proximately caused by the willful or malicious acts of the County, the County shall not be liable for any damage to or loss of any facility within right-of-way as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling, or work of any kind in the right-of-way by or on behalf of the County. (Ord. 2016-9 § 1 (part), 2016; Ord. 96-128S § 2 (part), 1997)

12.32.240 Restoration of Right-of-Way or Other Private Property.

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

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

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

(Ord. 2000-57s § 1 (part), 2001; Ord. 96-128S § 2 (part), 1997)

12.32.250 Duty to Provide Information.

Within ten days of a written request from the County Engineer, each utility shall furnish the County Engineer with information sufficient to demonstrate:

A.    That utility has complied with all requirements of this Chapter and with the "Manual on Accommodating Utilities in Pierce County Rights-of-Way."

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

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

D.    That "as-built" drawings of the utility's facilities have been completed and are on file with the utility.

(Ord. 2016-9 § 1 (part), 2016; Ord. 2000-57s § 1 (part), 2001; Ord. 96-128S § 2 (part), 1997)

12.32.255 Grantee Insurance.

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

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

1.    $2,000,000 for bodily injury or death to each person;

2.    $2,000,000 for property damage resulting from any one accident; and

3.    $2,000,000 for all other types of liability.

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

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

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

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

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

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

G.    If grantee can show to the County Risk Manager's satisfaction that an entity is financially able to self insure the exposures, a substitution for insurance will be considered.

(Ord. 2016-9 § 1 (part), 2016; Ord. 2000-57s § 1 (part), 2001)

12.32.256 General Indemnification.

In addition to and distinct from the insurance requirements of this Chapter, each utility shall agree in writing to a provision requiring the utility to defend, indemnify, and hold harmless Pierce County on terms approved by the County Prosecuting Attorney. (Ord. 2016-9 § 1 (part), 2016; Ord. 2000-57s § 1 (part), 2001)

12.32.257 Performance and Restoration Surety.

Before a franchise granted pursuant to this Chapter is effective, and as necessary thereafter, the grantee shall provide and deposit such monies, bonds, letters of credit, or other instruments in form and substance acceptable to the County as may be required by this Chapter, or by an applicable franchise or other applicable code, ordinance, or rules and regulations of the County. (Ord. 2016-9 § 1 (part), 2016; Ord. 2000-57s § 1 (part), 2001)

12.32.258 Restoration Bond.

Unless otherwise provided in a franchise, a restoration bond, written by a surety acceptable to the County equal to at least 100 percent of the estimated cost of restoration as required as a result of constructing the utility’s facilities within rights-of-way shall be deposited before construction is commenced. An applicant's status as a "Utility in Good Standing" pursuant to PCC 12.32.140 and the "Manual on Accommodating Utilities in Pierce County Rights-of-Way" may be considered in setting the appropriate restoration bond amount, including any reduction below 100 percent of the estimated cost of restoration.

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

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

1.    timely completion of restoration;

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

3.    proper restoration of the facilities as specified by the County; and

4.    restoration of the rights-of-way and any other property affected by the construction.

(Ord. 2016-9 § 1 (part), 2016; Ord. 2000-57s § 1 (part), 2001)

12.32.260 Penalties.

Any person found violating, disobeying, omitting, neglecting, or refusing to comply with any of the provisions of this Chapter has committed a class one civil infraction enforceable under Chapter 1.16 PCC for each act. Each day constitutes a separate act. (Ord. 2016-9 § 1 (part), 2016; Ord. 2000-57s § 1 (part), 2001; Ord. 96-128S § 2 (part), 1997)

12.32.265 Revocation or Termination of Grant.

A franchise granted by the County to use or occupy rights-of-way may be revoked for any one or more of the following reasons:

A.    Construction or operation at an unauthorized location.

B.    Misrepresentation by or on behalf of a grantee in any application to the County.

C.    Failure to relocate or remove facilities as required in this Chapter.

D.    Failure to pay taxes, compensation, fees, or costs when and as due the County.

E.    Insolvency or bankruptcy of the grantee.

F.    Violation of a material provision of this Chapter.

G.    Violation of a material term of a franchise.

(Ord. 2016-9 § 1 (part), 2016)

12.32.270 Other Remedies.

Nothing in this Ordinance shall be construed as limiting any judicial remedies that the County may have, at law or in equity, for enforcement of this Chapter. (Ord. 96-128S § 2 (part), 1997)

12.32.275 Applicability.

Where the requirements of this Title are also covered in any other law, ordinance, resolution, rule, or regulation of any kind, the more restrictive shall govern. (Ord. 2016-9 § 1 (part), 2016)

12.32.280 Severability.

If any Section, subsection, sentence, clause, phrase, or other portion of this Chapter, or its application to any person is, for any reason, declared invalid, in whole or in part by any court or agency of competent jurisdiction, said decision shall not affect the validity of the remaining portions hereof. (Ord. 96-128S § 2 (part), 1997)