Chapter 11.18 UTILITIES AND TELECOMMUNICATIONS FACILITIES LOCATED WITHIN CITY RIGHT-OF-WAY

No person shall install, construct or otherwise place within city right-of-way utility or telecommunications facilities as herein defined except pursuant to the provisions of this chapter. Those persons who are granted franchises by the city or who enter into lease agreements with the city shall be required in those instruments to comply with the provisions of this chapter. Further, all persons subject to this chapter shall:

(a) At all times comply with all applicable statutes, laws, ordinances, policies and regulations;

(b) Upon reasonable request, timely provide written confirmation sufficient for customary land survey and title insurance purposes concerning location of facilities;

(c) Upon reasonable request, timely provide the city with accurate as-built maps and plans certifying location of facilities; and

(d) Upon request, timely make available books, re cords, maps and other documents maintained with respect to facilities for inspection at reasonable times and places.

Except to the extent clearly inconsistent herewith, the definitions set forth in Section 4.90.020, as they now exist or as hereafter enacted or amended, shall apply to this chapter. (Ord. 1272 § 3 (part), 1999)

11.18.020 Application for permit.

A person seeking a permit under this chapter shall pro vide to the city on an application form sufficient information to enable the city to make its determination regarding such permit including but not limited to the following:

(a) The financial and technical ability and legal capacity of the applicant;

(b) A complete description of applicant’s proposed facilities;

(d) The capacity of the right-of-way to accommodate additional utility or telecommunications facilities;

(e) The extent of damage to or disruption of any public or private facilities, improvements, services, travel or landscaping and any plans by applicant to mitigate or repair the same; and

(f) The availability or unavailability of alternate routes or sites to those proposed by the applicant. (Ord. 1272 § 3 (part)), 1999)

11.18.030 Notice of permit application.

Notice of application for a permit pursuant to this chapter shall be published at least once per week for two weeks prior to the granting of such permit. The notice shall briefly describe the nature of the application, and the cost of publication thereof shall be borne by the applicant. If at any time prior to granting of the permit the city receives a signed request in writing for a hearing on the permit, the city council shall set the matter for timely hearing and take whatever action thereon it deems appropriate. (Ord. 1272 § 3 (part), 1999)

11.18.040 Interference with right-of-way.

No person may locate or maintain its facilities so as to unreasonably interfere with the use the rights-of-way by the city, by the general public, or by any persons authorized to use or be present in such rights-of-way. (Ord. 1272 § 3 (part), 1999)

11.18.050 Damage to property.

No person or anyone acting on such person’s behalf shall take any action or permit any action to take place which may impair or damage any right-of-way or other property located in, on, or adjacent thereto. (Ord. 1272 § 3 (part), 1999)

11.18.060 Notice of work.

Unless otherwise provided in a permit or franchise, no person or anyone acting on such person’s behalf shall commence any non-emergency work in or about the right-of-way without ten days’ written notice to the city of intent to do so. Owners of property adjacent to and potentially affected by such work shall also be notified in this way. However, the utilities superintendent may develop a procedure for dispensing with this notice procedure in situations where the impact of the work to be performed is not substantial. (Ord. 1272 § 3 (part), 1999)

11.18.070 Repair and emergency work.

In the event of an unexpected repair or emergency, a person may commence repair or emergency work as reasonably required under the circumstances, provided notice is given to the city and affected property owners as completely and promptly as possible. (Ord. 1272 § 3 (part), 1999)

11.18.080 Maintenance of facilities.

Each person shall maintain its facilities in good and safe condition and in compliance with all applicable laws and like requirements. (Ord. 1272 § 3 (part), 1999)

11.18.090 Location of facilities.

All facilities shall be constructed, installed and located in accordance with the following terms and conditions:

(a) Facilities shall be installed within underground duct or conduit wherever possible. Whenever capacity permits, facilities shall be installed within an existing underground duct or conduit.

(b) A person with permission to install overhead facilities shall install its facilities on pole attachments to existing utility poles only, and then only if surplus space is available, except where the utilities superintendent has determined that due to the proposed location of the facilities the installation of new utility poles is reasonably necessary in order to practicably construct, install and locate the proposed facilities.

(c) Whenever any existing facilities are located or relocated underground within a right-of-way, a person with permission to use the same right-of-way shall also locate or relocate, as the case may be, its facilities under ground wherever possible. In the case of relocation, this shall be accomplished within a reasonable period of time and in no event longer than the existing permit or franchise term. Wherever possible, location or relocation shall be accomplished concurrently with other users of the right-of-way in order to minimize disruption.

(d) Whenever new facilities will exhaust the capacity of a public street, right-of-way or utility easement to accommodate future facilities, a person subject to this chapter shall provide additional ducts, conduits, manholes and other facilities for nondiscriminatory access by future carriers in accordance with policies to this effect promulgated by the utilities superintendent.

(e) Except for the calendar year 1999, each person subject to this chapter is required to provide the city by February 1st of each year a schedule of its proposed construction activities for that year which may affect the right-of-way. All such persons shall cooperate to the extent reasonably required by the city with other users of the right-of-way and with the city to coordinate construction activities. (Ord. 1272 § 3 (part), 1999)

11.18.100 Relocation or removal of facilities.

Within thirty days of written notice by the city, a person subject to this chapter shall at its own expense temporarily or permanently remove, relocate, alter or change the position of any facilities within the right-of way whenever the city, in its sole discretion, determines that such is reasonably necessary for (a) construction, repair, maintenance or installation of any city or other public improvement in or upon the right-of-way, (b) operations in or upon the right-of-way by the city, or by persons acting for or present in the right-of-way with the city’s permission, or by other governmental entity, or (c) the vacation of a public street or release of a utility easement. (Ord. 1272 § 3 (part), 1999)

11.18.110 Removal of unauthorized facilities.

Within thirty days of written notice by the city, a person subject to this chapter shall, at its sole expense remove any facilities from the right-of-way. Facilities are subject to removal upon any of the following:

(a) Termination or expiration of such persons franchise or permit;

(b) Abandonment of a facility within the right-of way;

(c) The facility having been constructed or located without the prior grant of franchise, execution of a lease, or issuance of a construction permit, or constricted or located at a location not so permitted;

(d) Circumstances reasonably determined by the city to be inconsistent with public health, safety or welfare. (Ord. 1272 § 3 (part), 1999)

11.18.120 Failure to remove or relocate.

If any person subject to this chapter who owns, controls or maintains any unauthorized facilities within the right-of-way fails to remove or relocate any facilities as required in chapter, the city may cause such removal or relocation and charge the responsible party for the costs incurred. (Ord. 1272 § 3 (part), 1999)

11.18.130 Emergency removal or relocation of facilities.

The city reserves the right to cut, alter, remove or relocate any facilities located within the right-of-way as necessary on account of a public health or safety emergency. (Ord. 1272 § 3 (part), 1999)

11.18.140 Damage to facilities.

Unless directly and proximately caused by the wilful, intentional or malicious acts of the city or its sole and gross negligence, the city shall not be liable for any damage to or loss of facilities within the right-of-way as a result of any public works or improvements, construction, excavation, grading, filling or work of any kind either by or on behalf of the city, including actions taken by the city to remove, relocate or alter any facilities. (Ord. 1272 § 3 (part), 1999)

11.18.150 Work in and restoration of right-of way.

When a person subject to this chapter or someone acting on such person’s behalf does any work within a right-of-way, such person shall at its own expense promptly remove any obstructions therefrom and restore such ways or adjacent property to the same condition as existed prior to such work. All persons subject to this chapter shall conduct all work in accordance with state of Washington “locate laws” and with Department of Transportation Standard Specifications for Road, Bridge, and Municipal Construction as most recently promulgated. (Ord. 1272 § 3 (part), 1999)

11.18.160 Insurance.

(a) Unless specifically agreed to by the city after evaluating the risk, a person subject to this chapter shall secure and maintain in force the following liability insurance policies:

(1) One million dollars for personal injury or death to any one person and three million dollars aggregate for personal injury or death per single accident or occurrence;

(2) One million dollars for property damage to any one person and three million aggregate for property dam age per single accident or occurrence;

(3) One million dollars for all other types of liability including claims for damages for invasion of the right of privacy; for defamation of any person, firm or corporation; for the violation or infringement of any copyright, trademark, trade name, service mark or patent; or, for damage to any other person, firm or corporation arising out of or alleged to arise out of failure to comply with the provisions of any statute, regulation or resolution of the United States, state of Washington, or any local agency with jurisdiction.

(b) Such insurance shall specifically name as additional insured the city of Sumas, its officers and employees, and shall further provide that the policy shall not be modified or canceled during the life of the permit or franchise without giving thirty days’ written notice to the city.

(c) A person subject to this chapter shall file with the city copies of all certificates of insurance showing up to-date coverage, additional insured coverage and evidence of payment of premiums as set forth above. Cover age shall not be changed or canceled without approval of the city, and failure to maintain required insurance may be considered a violation of material provisions of this chapter. The city may at its option review all insurance coverage. If it is determined by the city attorney that circumstances require and that it is reasonable and necessary to increase insurance coverage and liability limits to adequately cover the risks of the city, the city may require additional insurance to be acquired. The city shall provide written notice should the city exercise its right to require additional insurance. All insurance shall pro vide thirty days’ prior written notice to the city in the event of modification or cancellation. The city shall be provided written notice within thirty days after any approved reduction in the general annual aggregate limit. (Ord. 1272 § 3 (part), 1999)

11.18.170 Indemnification.

A person subject to this chapter shall, at its sole expense, fully indemnify, defend and hold harmless the city, and in its capacity as such, the officers and employees thereof from and against any and all claims, suits, actions, liability and judgments for damage or otherwise (except those arising wholly from negligence on the part of the city or its employees) (a) for actual or alleged injury to persons or property, including loss of use of property due to an occurrence, whether or not such property is physically damaged or destroyed, in any way arising out of or through, or alleged to arise out of or through, the acts or omissions of such person or its officers, agents, employees or contractors or to which such person or its officers’, agents’, employees or contractors’ acts or omissions in any way contribute, and whether or not such acts or omissions were authorized or contemplated by the permit or franchise or applicable law; (b) arising out of, or alleged to arise out of, any claim for dam ages for such person’s invasion of the right of privacy, defamation of any person, firm or corporation, or the violation of infringement of any copyright, trademark, trade name, service mark or patent, or of any other right of any person, firm or corporation; and/or (c) arising out of or alleged to arise out of such person’s failure to comply with the provisions of any statute, regulation or applicable policy of the United States, state of Washing ton or any local agency applicable to such person in its business. Nothing herein shall be deemed to prevent the city, its officers or its employees from participating in the defense of any litigation by their own counsel at such parties’ expense. Such participation shall not under any circumstances relieve a person subject to this chapter from its duty of defense against liability or of paying any judgment entered against the city, its officers or its employees. (Ord. 1272 § 3 (part), 1999)

11.18.180 Performance bond.

Within thirty days after a grant herein, a person subject to this chapter shall submit to the city attorney, which shall be filed with the city clerk and maintained at all times in full force and effect, a performance bond running to the city, with good and sufficient surety licensed to do business in the state of Washington and approved by the city in an amount reasonably determined by the city, conditioned that such person shall well and truly observe, fulfill and perform each term and condition of its permit or franchise. This bond shall be conditioned that in the event such person shall fail to comply with any one or more of the provisions of its permit or franchise, then there shall be recoverable jointly and severally from the principal and surety of such bond, any damages suffered by the city as a result thereof including the full amount of any compensation, indemnification or cost of removal or abandonment of property as prescribed; such condition to be a continuing obligation for the duration of the permit or franchise and thereafter until such person has liquidated all of its obligations with the city that may have arisen from the acceptance of a franchise or issuance of a permit or from such person’s exercise of any privilege herein granted; provided that, upon completion of any construction called for in a franchise or permit, the amount of this bond may be reduced to an amount reasonably determined by the city to be adequate to protect its interests. Written evidence of payment of required premiums shall be provided to the city upon request. (Ord. 1272 § 3 (part), 1999).

11.18.190 Security fund.

(a) The city reserves the right to require of any person subject to this chapter that such person deposit into a bank account, established by the city, and maintain for such term as is reasonable under the circumstances with interest running to such person, a sum of money in an amount reasonably determined by the city as security for the faithful performance by such person of all the provisions of its franchise or permit, and compliance with all orders, permits and directions of any agency of the city, and for the payment of any claims, liens and taxes due the city or liquidated damages imposed by the city which arise by reason of the construction, operation or maintenance of such person’s system. Within thirty days after notice to it that any amount has been withdrawn by the city from the security fund pursuant to the foregoing, such person shall deposit a sum of money sufficient to restore such security fund to the original amount in the account at the time of withdrawal.

(b) If such person fails after ten days’ notice to pay the city any delinquent fees, taxes or other amounts due and unpaid; or, fails to repay to the city, after such ten days’ notice, any damages, costs or expenses which the city shall be compelled to pay by reason of any act or default of such person; or fails after forty-five days’ notice of such failure by the city to comply with any provision of its franchise or permit which the city reason ably determines can be remedied by an expenditure of the security, the city may immediately withdraw the amount thereof with interest and any penalties, from the security fund. Upon such withdrawal, the city shall notify such person of the amount and date thereof.

(c) The security fund deposited pursuant to this section shall become the property of the city in the event that a franchise or permit is canceled by reason of the default of the person subject to this chapter or revoked for cause. Such person, however, shall be entitled to the return of such security fund or portion thereof which remains on deposit at the expiration of the term of the permit or franchise, or upon termination of the permit or franchise at an earlier date, upon payment of all sums then due to the city. (Ord. 1272 § 3 (part), 1999)

11.18.200 Assignments or transfers of franchise or permit.

The city reserves the right to require in any franchise or permit that ownership or control of a person subject to this chapter shall not, directly or indirectly, be transferred, assigned or disposed of by sale, lease, merger, consolidation or other act of such person, by operation of law or otherwise, without the prior written consent of the city, which consent shall not be unreasonably withheld or delayed.

(a) No franchise shall be assigned or transferred in any manner within twelve months of its initial issuance, unless otherwise provided.

(b) Absent extraordinary and unforeseeable circumstances, no franchise shall be assigned or transferred before construction of the facilities has been completed.

(c) A franchisee and the proposed assignee or transferee shall provide and certify the following to the city not less that one hundred twenty days prior to the pro posed date of transfer:

(1) Complete information setting forth the nature, terms and conditions of the proposed assignment or transfer,

(2) All information otherwise reasonably required by the city of a franchise applicant under this chapter with respect to the proposed assignee or transferee;

(3) Any other information reasonably required by the city; and

(4) An application fee which shall be set by the city, plus any other costs actually and reasonably incurred by the city in processing and investigating the proposed assignment or transfer.

(d) No transfer shall be approved unless the assignee or transferee has at least the legal, technical, financial and other requisite qualifications to carry on the activities of the franchisee or permit granted hereunder.

(e) Any transfer or assignment of a permit or franchise without the prior written consent of the city as set forth herein shall be void and shall result in revocation of the existing permit or franchise. (Ord. 1272 § 3 (part), 1999)

11.18.210 Transfers affecting control.

Any transactions which singularly or collectively result in a change of fifty percent or more of the ownership or working control of the franchisee, of the ownership or control of affiliated entities have ownership or working control of the franchisee, or of control of the capacity or the facilities or substantial parts thereof of the franchisee shall be considered an assignment or transfer requiring city approval pursuant to Section 11. 18.200. Transactions between affiliated entities are not exempt from city approval; however, a transfer by a franchisee to another person or entity controlling, controlled by, or under common control with franchisee shall not require city approval, provided notice thereof is timely provided to the city. Approval shall not be required for mortgaging purposes. (Ord. 1272 § 3 (part), 1999)

11.18.220 Revocation or termination.

A franchise or permit granted hereunder may be revoked for the following reasons:

(a) Construction or operation in the city without a franchise or permit;

(b) Construction or operation at an unauthorized location;

(d) Unauthorized assignment of a franchise or permit;

(e) Unauthorized sale, assignment or transfer of all of a franchisee’s or permittee’s assets, or a substantial interest therein;

(f) Misrepresentation or lack of candor by or on behalf of a person in any application upon which the city relies in making any decision herein;

(g) Abandonment of facilities in the public ways;

(h) Failure to relocate or remove facilities as required in this chapter,

(i) Failure to pay taxes, compensation, fees or costs when and as due;

(j) Insolvency or bankruptcy of the franchisee or permittee;

(k) Violation of material provisions of this chapter;

(l) Violation of the material terms of a permit or franchise agreement. (Ord. 1272 § 3 (part), 1999)

11.18.230 Notice and duty to cure.

In the event that the city believes that grounds exist for revocation of a franchise or permit, the city shall give the person subject to this chapter written notice of the apparent violation or noncompliance, providing a short and concise statement of the nature and general facts of the violation or noncompliance, and providing such per son a reasonable period of time not exceeding thirty days to furnish evidence:

(a) That corrective action has been, or is being actively and expeditiously pursued, to remedy the violation or noncompliance;

(b) That rebuts the alleged violation or noncompliance;

(c) That it would be in the public interest to impose some penalty or sanction less than revocation. (Ord. 1272 § 3 (part), 1999)

11.18.240 Department action and hearing.

(a) In the event that a person who holds a permit fails to provide evidence reasonably satisfactory to the city, the city department which issued the permit may terminate it or take other reasonably necessary action based on the criteria and goals set out in this chapter.

(b) In the event that a person holding a franchise fails to provide evidence reasonably satisfactory to the city department responsible for administration of the franchise shall refer the apparent violation or noncompliance to the city council. The city council shall provide such person with notice and a reasonable opportunity to be heard concerning the matter. (Ord. 1272 § 3 (part), 1999)

11.18.250 Standards for revocation or lesser sanctions.

In determining whether a person subject to this chapter has violated or failed to comply with material provisions of this chapter or of a franchise or permit, the appropriate authority shall determine the appropriate action to take considering the nature, circumstances, extent and gravity of the violation as reflected by one or more of the following factors:

(a) Whether the misconduct was egregious;

(b) Whether substantial harm resulted;

(d) Whether there is a history of prior violations of the same or other requirements;

(e) Whether there is a history of overall compliance;

(f) Whether the violation was voluntarily disclosed, admitted or cured. (Ord. 1272 § 3 (part), 1999)

Article II. Construction Standards

11.18.400 General.

No person shall commence or continue with the construction, installation or operation of facilities within the city except as provided herein. (Ord. 1272 § 3 (part), 1999)

11.18.410 Applicable laws.

Facilities shall be constructed, installed, operated and maintained in accordance with all applicable federal, state and local codes, rules and regulations. (Ord. 1272 § 3 (part), 1999)

11.18.420 Construction permits.

(a) The utilities superintendent is authorized to establish a reasonable fee for permission to cut any public street or alley, provided such fee is reasonably related to recovering costs, if any, to the general public caused by such activity. The utilities superintendent shall have the authority to require that any street crossings be bored underneath the street.

(b) Other than as exempted by applicable law, no person shall construct or install any facilities within the city without first obtaining a construction permit therefor.

The applicant shall provide the following:

(1) The location and route of all facilities to be in stalled on existing utility poles;

(2) The location and route of all facilities to be located under the surface of the ground, including the line and grade proposed for the burial at all points along the route which are within the public ways;

(3) The location of all existing underground utilities, conduits, ducts, pipes, mains and installations which are within the public ways along the underground route pro posed by the applicant;

(4) The location of all facilities within the city which are not located within right-of-way;

(5) Construction methods to be employed for protection of existing structures, fixtures, and facilities within and adjacent to the right-of-way;

(6) The location, dimensions and type of trees and significant vegetation within or adjacent to the right-of way along the route proposed by the applicant, together with a landscape plan for protecting, trimming, removing, replacing and restoring any trees or significant vegetation or areas disturbed by the construction. (Ord. 1272 § 3 (part), 1999)

11.18.430 Engineer’s certification.

Upon request by the city, permit applications shall be accompanied by the certification of a registered professional engineer that the drawings, plans and specifications submitted with the application comply with applicable technical codes, rules and regulations. (Ord. 1272 § 3 (part), 1999)

11.18.440 Traffic control plan.

All permit applications which involve work on, in, under, across or along any public ways 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. 1272 § 3 (part), 1999)

11.18.450 Issuance of permit.

Within forty-five days after submission of all plans and documents required of the applicant and payment of the permit fees required by this chapter, the city, if satisfied that the applications, plans and documents comply with all requirements of this chapter, shall issue a 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 are deemed necessary or appropriate. (Ord. 1272 § 3 (part), 1999)

11.18.460 Notice of construction.

Other than for routine, individual service installations, the permittee shall notify the city not less than five working days in advance of any excavation or work in the public ways. (Ord. 1272 § 3 (part), 1999)

11.18.470 Compliance with permit.

All construction practices and activities shall be in accordance with the permit and approved final plans and specifications for the facilities. Authorized representatives of the city shall be provided access to the work and such further information is required to ensure compliance with such requirements. (Ord. 1272 § 3 (part), 1999)

11.18.480 Display of permit.

The permittee shall maintain a copy of the construction permit and approved plans at the construction site, which shall be displayed and made available for inspection by representatives of the city at all times when construction work is occurring. (Ord. 1272 § 3 (part), 1999)

11.18.490 Survey of underground facilities.

If the construction 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 registered land surveyor. The permittee shall relocate any facilities which are not located in compliance with permit requirements. (Ord. 1272 § 3 (part), 1999)

11.18.500 Noncomplying work.

Upon order of an authorized representative of the city, all work which does not comply with the permit, the approved plans and specifications for the work, or the requirements of this chapter, shall be removed. (Ord. 1272 § 3 (part), 1999)

11.18.510 Completion of construction.

The permittee shall promptly complete all construction activities so as to minimize disruption of right-of-way and other public and private property. All construction work authorized by a permit within the right-of-way, including restoration, must be completed within one hundred twenty days of the date of issuance. (Ord. 1272 § 3 (part), 1999)

11.18.520 Restoration of improvements.

Upon completion of any construction work, the permittee shall promptly repair any and all public and pro vide property improvements, fixtures, structures and facilities in the public ways or otherwise damaged during the course of construction, restoring the same as nearly as practicable to its condition before the start of construction. (Ord. 1272 § 3 (part), 1999)

11.18.530 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, whether such work is done pursuant to a franchise or permit, shall be replaced or restored as nearly as may be practicable, to the condition existing prior to performance of work.

(b) All restoration work within the public ways shall be done is accordance with landscape plans approved by the city. (Ord. 1272 § 3 (part), 1999)