Chapter 12.35 RIGHTS-OF-WAY

3. Exceptions. Utility construction work, City projects, and special events shall be exempt from this chapter. Utility construction work shall be authorized pursuant to Chapter 12.55 KMC and special events approved and permitted in accordance with Chapter 8.40 KMC.

B. General Procedures.

1. Upon receipt of an application for right-of-way use permit, limited, access, or encroachment, the city manager shall determine whether the proposed activity is within City-owned right-of-way.

2. The City shall be the lead agency for compliance with the State Environmental Policy Act. In addition, the city manager shall review applications for compliance with applicable City plans, policies, regulations and standards. Prior to issuing a right-of-way use permit, the city manager may require an appropriate financial guarantee consistent with the provisions of KMC Title 21 be secured by the applicant and submitted to the City.

3. The city manager may, when feasible, utilize an engineering permit in lieu of right-of-way use permits to prevent duplication and increase efficiency. All requirements of this chapter shall apply to any engineering permit used in lieu of a right-of-way use permit. The fees shall be reduced to the extent separate fees would be duplicative. [Ord. 23-0578 § 2 (Exh. 1).]

12.35.025 Time limitation of application.

A. Applications for which no permit is issued within 18 months following the date of application submittal shall expire by limitation and plans and other data submitted for review may thereafter be returned to the applicant or destroyed in accordance with state law.

B. Applications may be canceled for inactivity, if an applicant fails to respond to the department’s written request for revisions, corrections, actions or additional information within 90 days of the date of request. The city manager may extend the response period beyond 90 days if within the original 90-day time period the applicant provides and subsequently adheres to an approved schedule with specific target dates for submitting the full revisions, corrections or other information needed by the department.

C. The city manager may extend the life of an application if any of the following conditions exist:

1. Compliance with the State Environmental Policy Act is in progress; or

2. Any other City review is in progress; provided, that the applicant has submitted a complete response to City requests, or the city manager determines that unique or unusual circumstances exist that warrant additional time for such response, and the city manager determines that the review is proceeding in a timely manner toward final City decision; or

3. Litigation against the City or applicant is in progress, the outcome of which may affect the validity, or the provisions of any permit issued pursuant to such application.

4. At the sole discretion of the city manager when there have been newly adopted codes, fees, ordinances, standards, or laws which affect the application. [Ord. 23-0578 § 2 (Exh. 1).]

12.35.030 Permit – Additional requirements.

A. Plans. Detailed engineering and restoration plans and/or drainage plans may be required when determined necessary by the city manager. Costs for the preparation of such plans and any required studies shall be borne by the applicant.

B. Survey. When determined necessary by the city manager to adequately define the limits of right-of-way and the existing improvements therein, the applicant shall cause the right-of-way to be surveyed by a Washington State licensed land surveyor. Such survey shall be recorded in accordance with the Survey Recording Act. The cost for the preparation of such survey shall be borne by the applicant.

C. Dedication. An applicant may be required to deed additional right-of-way across the property owner’s property when necessary to fulfill the minimum road and right-of-way widths prescribed in Chapter 12.50 KMC.

D. Illegal Subdivision. A permit shall not be issued to provide access to a lot or parcel created in violation of state and/or City subdivision regulations.

E. Every permit granted under this chapter shall also condition approval consistent with the requirements of Chapter 12.05 KMC, General Provisions. [Ord. 23-0578 § 2 (Exh. 1).]

12.35.035 Application – Fees.

A. Each application requires a fee, imposed by city council by resolution, payable to the City for the administrative costs and expenses of processing the application.

B. The purpose of this subsection B is to foster the public benefit by encouraging citizens to beautify publicly owned right-of-way, without compromising the public’s safety. For purposes of maintaining a record of all beautification projects, a permit shall be required prior to commencement of a beautification activity. A permit may be issued without charge for projects that satisfy the following criteria:

1. The project involves the planting of flowers or other vegetation that does not hinder the safe use of the right-of-way by drivers or others within 10 feet of the fog line or the edge of the pavement, if there is no fog line;

2. The project involves planting adjacent to the applicant’s property;

3. No shrubs, trees, or structures (such as but not limited to landscape blocks, lawn or yard decorations) are installed within two feet of a curb line or, where no curb exists, within 10 feet of the edge of pavement. Certain restrictions shall apply to the installation of trees or shrubs. In any case, trees and shrubs shall not be installed that will interfere with sight distance.

4. Improvements that are a hazard to the public or impact City maintenance and operation of the right-of-way as determined by the city manager are prohibited. [Ord. 23-0578 § 2 (Exh. 1).]

12.35.037 Permit – Fees.

A. The permittee shall pay fees for use of the right-of-way at the rates imposed by the city council by resolution.

B. The fees shall be collected in accordance with administrative procedures developed by the department. [Ord. 23-0578 § 2 (Exh. 1).]

12.35.040 Permit – Limited.

A. Upon filing of a complete application, payment of the fee(s), and posting of the financial guarantee for construction, maintenance, and restoration of the right-of-way consistent with the provisions of KMC Title 21 (as needed), the city manager may issue a permit authorizing the limited use of right-of-way, for use by designated private parties for a specific use.

B. The permit may require construction and restoration of the right-of-way to adopted City standards based on the nature and duration of the specific use, and subject to inspection. In addition, conditions may be set to assure compliance with City plans, policies, standards and regulations. Such conditions may require performance in excess of adopted Road Standards.

C. The applicant shall assume sole responsibility for the safe and adequate operation and maintenance of any improvements or work performed by the applicant or the applicant’s representative in the right-of-way.

D. The applicant may apply for an extension to the permit – upon written application for an extension, payment of the applicable fee(s), and being found to be in compliance with the conditions and requirements of the original permit. Permits shall be limited to one six-month extension, unless otherwise approved by the city manager. Permit extensions must be applied for no later than 30 days from the permit expiration date. Permit extension is at the sole discretion of the city manager.

E. Types of Right-of-Way Use Permits, Limited.

1. Type A. Activity which will alter the surface or subsurface of the right-of-way. Examples are:

a. Paving operations;

b. Driveway installation/removal;

c. Sidewalk installation/removal;

d. Open-cut trenching;

e. Tree removal/installation;

f. Storm drainage installation/removal;

g. Shoulder improvements;

h. Mailbox installation/removal;

i. Beautification.

2. Type B. Temporary use of the right-of-way which does not change the right-of-way surface or subsurface. Examples are:

a. Temporary storage of material/equipment outside of the pedestrian or vehicle traveled way;

b. Temporary parking;

c. Lane/shoulder/pedestrian travel way closures;

d. Commercial activities in the right-of-way;

e. Investigative activities;

3. Type C. Temporary use of the right-of-way which does not change the right-of-way surface or subsurface and requires a road closure. Examples are:

a. Fair or carnival;

b. Farmer’s market;

c. Parade;

d. Block party.

F. Permit Expiration. Permits shall expire as noted below. If the permit is approved in conjunction with another City issued permit, the permit may be allowed to expire with the other City permit.

1. Type A and B. Type A and B permits shall expire 12 months from the date of issuance. Permits may be extended an additional six months from the date of expiration at the discretion of the city manager as long as no changes have been made to the originally approved plans and no new development standards have been adopted.

2. Type C. Type C permits shall expire three months from the date of issuance or upon completion of the permitted activity, whichever is shorter. The permit may be extended at the city manager’s discretion.

3. Permits that have expired beyond the dates noted above, including any extensions, may be extended up to 12 months at the discretion of the city manager if any of the following conditions exist:

a. Compliance with the State Environmental Policy Act is in progress; or

b. Any other City review is in progress; provided, that the applicant has submitted a complete response to City requests, or the city manager determines that unique or unusual circumstances exist that warrant additional time for such response, and the city manager determines that the review is proceeding in a timely manner toward final City decision; or

c. Litigation against the City or applicant is in progress, the outcome of which may affect the validity or the provisions of any permit issued pursuant to such application; or

d. At the sole discretion of the city manager when there have been newly adopted codes, fees, ordinances, rules, standards or laws which directly affect the application; or

e. At the sole discretion of the city manager that an extension would be in the interest of the public’s welfare.

G. Exemptions. The following activities are exempt from permitting:

1. United States Postal Service mailbox installations are exempt from permitting if replacing in-kind with only de minimis alterations in location or to hard surfaces and no impacts to vehicle or bicycle travel lanes.

2. Maintenance activities such as sweeping, shoveling, landscaping, tree trimming, etc., that have no impacts to vehicle or bicycle travel lanes or close pedestrian access.

3. Other temporary activities as determined by the city manager. [Ord. 23-0578 § 2 (Exh. 1).]

12.35.050 Permit – Access.

A. Upon filing of a complete application and payment of the fee, the city manager may issue a right-of-way use permit, access authorizing the use of unimproved right-of-way for property access.

B. The applicant may be required to construct road improvements to the adopted Road Standards and may be required to post financial guarantees consistent with the provisions of KMC Title 21 for construction, restoration and maintenance. Construction work and all restoration work required by the permit shall be completed within one year of the permit’s issuance. In addition, the city manager may set conditions to assure compliance of the permit with other adopted plans, City policies, and regulations.

C. The city manager may place and maintain permanent sign(s) denoting the end of the City-maintained road.

D. The applicant shall have sole responsibility for the safe construction, operation and maintenance of any work in the right-of-way pursuant to the permit until such time as the work is officially accepted for maintenance by the City.

E. Unless earlier revoked by the city manager, any permit shall be valid for a term of one year and shall be automatically renewable for successive one-year terms unless otherwise terminated by either party. [Ord. 23-0578 § 2 (Exh. 1).]

12.35.055 Permit – Encroachment.

A. Upon filing of a complete application and payment of the fee, the city manager may issue a right-of-way use permit, encroachment authorizing the use of the right-of-way for an encroachment.

B. An encroachment permit may be issued to authorize private construction in unimproved right-of-way when it is unlikely in the judgment of the city manager that such right-of-way will be substantially improved by the City or other public agency within the foreseeable future.

In exercising such judgment, the city manager may consider existing traffic data in and around the site of the permit application, the City’s adopted transportation improvement plan, and any other plans, studies, data, or other information deemed relevant to the determination.

C. The applicant shall have sole responsibility for the safe construction, operation and maintenance of any work within the right-of-way pursuant to the permit.

D. Unless earlier revoked by the city manager, any such permit issued shall be valid for a term of one year and shall be automatically renewable for successive one-year terms until such time as the permit is revoked. [Ord. 23-0578 § 2 (Exh. 1).]

12.35.060 Permit – Application.

An applicant for a right-of-way use permit issued pursuant to this chapter shall complete an application in a form prescribed by the city manager. The city manager may reject incomplete application forms. Such application forms shall require an applicant to identify the right-of-way to be used, the nature of the related development on the adjacent private property, and such other information as the city manager reasonably determines to be necessary, in relation to the specific project proposed. Such other information may include geotechnical studies, proof of liability insurance, performance bonding, and other measures designed to protect the public health, safety, and welfare. [Ord. 23-0578 § 2 (Exh. 1).]

12.35.065 Obligation – Revocation.

This chapter authorizes the city manager to engage in discretionary acts and does not create any obligation on the part of the City to issue any such right-of-way use permit, nor does it create any right on the part of an applicant to initially obtain or subsequently retain any such right-of-way permit. Any such permit actually issued shall be revocable at any time after 90 days’ written notice from the city manager to the permit holder. The city manager’s revocation notice shall include a date by which the private use of the right-of-way must be discontinued and removed, all at the sole expense of the permit holder. Any private use of the right-of-way remaining after such date shall constitute a public nuisance and shall be abated as such. The cost of abatement, including the City’s attorney fees, shall be borne by the permit holder. There shall be no administrative appeal from any such decision by the city manager to revoke any such permit. [Ord. 23-0578 § 2 (Exh. 1).]

12.35.070 Conformance.

Any requirement imposed by this chapter shall be in addition to any other requirement imposed by any other ordinance or other law regulating or controlling the use and development of private or public property. Such additional requirements include but are not limited to any necessary setback variances. A permit issued pursuant to this chapter may not authorize any use or development otherwise not allowed or permitted under any other ordinance. [Ord. 23-0578 § 2 (Exh. 1).]

12.35.075 Covenant.

The applicant for a right-of-way use permit, limited, access or encroachment, may be required to record a covenant running with the land and for the benefit of the City, which contains:

A. A legal description of the lot or parcel benefiting from the right-of-way use permit;

B. If the permit is for access, a statement indicating the following:

1. Access to such parcel is across an unmaintained right-of-way; the City is not responsible for maintenance of the unimproved right-of-way; and responsibility for maintenance of the permitted work rests jointly and equitably upon all permit holders;

2. The owner(s) of the parcel will not oppose participation in a City street improvement district, if formation of such a district is deemed necessary by the City;

3. Subdivision of such parcel is prohibited without obtaining either plat or short plat approval; and

4. Acknowledgement that any improvement made within the access area must be removed by the property owner within 90 days at the request of the city manager;

C. If the permit is for an encroachment, a statement indicating the following:

1. Maintenance of the encroachment is the responsibility of the property owner; and

2. Acknowledgement that the encroachment must be removed by the property owner within 90 days at the request of the city manager;

D. A statement that any right-of-way use permit covenant is binding on the successors and assigns of the owner(s);

E. The notarized signature(s) of acknowledgement of the owner(s) of such parcel; and

F. The right-of-way use permit may be revocable with 90 days’ written notice and that removal of any encroachments and/or access improvements shall be at the property owner’s expense. [Ord. 23-0578 § 2 (Exh. 1).]

12.35.077 Permit – Interpretation.

Permits issued pursuant to this chapter shall not be construed to convey any vested right or ownership interest in any right-of-way. Every right-of-way use permit shall state on its face that any right-of-way opened pursuant to this chapter shall be open to use by the general public except in those cases where specific conditions in a right-of-way use permit restrict the use of the right-of-way for safety reasons. [Ord. 23-0578 § 2 (Exh. 1).]

12.35.080 Enforcement.

The city manager is authorized to enforce the provisions of this chapter, and any rules and regulations promulgated thereunder, pursuant to Chapter 1.20 KMC. [Ord. 23-0578 § 2 (Exh. 1).]

12.35.090 Retroactivity.

All right-of-way use permits issued by the City prior to the effective date of this chapter shall not be affected by the provisions of this chapter. [Ord. 23-0578 § 2 (Exh. 1).]

12.35.100 Effective date.

Repealed by Ord. 11-0330. [Ord. 03-0180 §§ 1, 2; Ord. 02-0141 § 1; Ord. 98-0024 §§ 1, 2 (KCC 14.28.110).]

12.35.110 Insurance and indemnification.

Insurance and indemnity provisions as set forth below shall be included in all permits. Insurance and indemnity requirements for all permits may be revised at the city manager’s discretion on a case-by-case basis:

A. Insurance Required. The permittee shall procure and maintain insurance for permits. Insurance shall provide coverage against claims for injuries to persons or damage to property which may arise from or in connection with operations or activities performed by or on the permittee’s behalf with the issuance of any permit.

B. The permittee’s maintenance of insurance as required by the permit shall not be construed to limit the liability of the permittee to the coverage provided by such insurance, or otherwise limit the City’s recourse to any remedy available at law or in equity.

C. The permittee shall obtain insurance of the types and coverage described below:

1. Commercial general liability insurance shall be at least as broad as Insurance Services Office (ISO) occurrence form CG 00 01 and shall cover liability arising from operations, products-completed operations, and stop-gap liability. There shall be no exclusion for liability arising from explosion, collapse or underground property damage. The City shall be named as an additional insured under the permittee’s commercial general liability insurance policy using ISO Additional Insured – State or Political Subdivisions – Permits CG 20 12 or a substitute endorsement providing at least as broad coverage.

2. Automobile liability insurance covering all owned, nonowned, hired and leased vehicles. Coverage shall be at least as broad as Insurance Services Office (ISO) form CA 00 01.

D. Minimum Amounts of Insurance. The permittee shall maintain the following insurance limits:

1. Commercial general liability insurance shall be written with limits no less than $2,000,000 each occurrence, $2,000,000 general aggregate and $2,000,000 products completed operations aggregate limit.

2. Automobile liability insurance with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident.

E. Other Insurance Provision. The permittee’s commercial general liability insurance policy or policies are to contain or be endorsed to contain that they shall be primary insurance as respect to the City. Any insurance, self-insurance, or self-insured pool coverage maintained by the City shall be excess of the permittee’s insurance and shall not contribute with it.

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

G. Verification of Coverage. The permittee shall furnish the City with original certificates and a copy of the amendatory endorsements, including the additional insured endorsement, evidencing the insurance requirements of the permittee before issuance of the permit.

H. Notice of Cancellation. The permittee shall provide the City with written notice of any policy cancellation within two business days of their receipt of such notice.

I. Failure to Maintain Insurance. Failure on the part of the permittee to maintain the insurance as required shall constitute a material breach of the permit, upon which the City may, after giving five business days’ notice to the permittee to correct the breach, immediately terminate the permit or, at its discretion, procure or renew such insurance and pay any and all premiums in connection therewith, with any sums so expended to be repaid to the City on demand.

J. City Full Availability of Permittee Limits. If the permittee maintains higher insurance limits than the minimums shown above, the City shall be insured for the full available limits of commercial general and excess or umbrella liability maintained by the permittee, irrespective of whether such limits maintained by the permittee are greater than those required by this permit or whether any certificate of insurance furnished to the City evidences limits of liability lower than those maintained by the permittee.

K. Indemnification. The permittee shall defend, indemnify, and hold the City, its officers, officials, employees and volunteers harmless from any and all claims, injuries, damages, losses, or suits including attorney fees, arising out of or in connection with activities or operation performed by the permittee in the right-of-way and/or the performance of any permit, except for injuries and damages caused by the sole negligence of the City.

However, should a court of competent jurisdiction determine that RCW 4.24.115 applies, then the permittee agrees to defend, indemnify and hold the City, its officers, officials, employees and volunteers harmless to the maximum extent permitted thereunder. It is further specifically and expressly understood that the indemnification provided herein constitutes the permittee’s waiver of immunity under Industrial Insurance, RCW Title 51, 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 the permit. [Ord. 23-0578 § 2 (Exh. 1).]

12.35.120 Performance guarantee required.

Performance guarantees such as performance bonds or other security devices shall be required for all right-of-way use permits. Prior to final approval of all right-of-way use permits, the department shall determine the amount of the performance guarantee necessary to assure compliance with the approved construction plans, applicable state and local health and sanitation regulations, and City standards and to assure proper restoration of the street and the health and safety of the users of the street. Financial guarantees shall be consistent with the provisions of KMC Title 21. The city manager may waive the performance guarantee for some activities on a case-by-case basis. [Ord. 23-0578 § 2 (Exh. 1).]