Chapter 12.55
UTILITIES ON CITY RIGHT-OF-WAY
Sections:
12.55.020 Utility permit – Required.
12.55.030 Utility permit – Application.
12.55.040 Utility permit – Fees.
12.55.060 Utility permit – Application – Review – Form.
12.55.065 Utility permit – Expiration/extension.
12.55.080 Policy on accommodation of utilities.
12.55.090 Coordination of right-of-way construction.
12.55.100 Performance guarantee required.
12.55.115 Insurance and indemnification.
12.55.120 Job start notification.
12.55.145 Working hours and road closures.
12.55.155 Aesthetic and scenic considerations.
12.55.160 Adjustments and relocations.
12.55.165 Facility security and safety.
12.55.175 Right-of-way vacations.
12.55.005 General provisions.
A. The requirements of this chapter shall apply to the installation, replacement, adjustment, relocation, repair, and maintenance of all above and below ground facilities within the right-of-way. The requirements of this chapter shall also apply to all traffic control devices placed within the right-of-way by utilities in conjunction with any work.
B. All utilities with facilities within the right-of-way shall comply with the requirements of this chapter and with all applicable federal, state, and local laws, codes, rules and regulations.
C. If a direct conflict exists between the requirements of this chapter and the requirements established in an effective franchise and/or utility permit, then the terms of the utility permit shall control first followed by the franchise agreement and lastly by this chapter. The city manager shall make any final decisions on whether a conflict exists.
D. Compliance with this chapter does not relieve the utility or its representatives from the responsibility of meeting other applicable codes, standards or regulations and does not preclude the need for obtaining any pertinent federal, state, or other local permits. Identification of and compliance with other required permits and applicable regulations is the sole responsibility of the utility or its representative.
E. It shall be the responsibility of any utility installing, relocating, adjusting, repairing, maintaining, or contracting for any of those activities to comply with the requirements of this chapter. The utility shall be responsible for the design, construction, operation, and maintenance of their facilities and for public safety during the installation, operation, and maintenance of their facilities. This responsibility shall include, in addition to ensuring the integrity of the proposed facility, provisions for public safety during the course of construction, maintenance, and operation for the life of the facility.
F. All facility design, construction, repair, maintenance, relocations, and removals shall comply with the most recently adopted Road Standards, the municipal code, and other codes and regulation applicable to the type of facility. The methods of installation and materials used shall conform to federal, state, City and industry codes and standards.
G. Definitions.
1. “Abandonment” means action by a utility to cease operation and/or maintenance of a facility in the right-of-way.
2. “Appurtenance” means equipment and/or accessories which are a necessary part of an operating system or subsystem.
3. “Construction” means the construction, maintenance, alteration, replacement, or repair of any facility.
4. “Job start” means the date and time the utility begins work within the right-of-way on an approved permit.
5. “Relocation” means removal of an existing facility and installation of that facility in an alternate location.
6. “Replacement” means removal of an existing element of a system or subsystem with a like or improved element of the system or subsystem in the same location in the right-of-way.
7. “Third-party utility” means a utility that has attached its facility to another facility owned by a different utility. [Ord. 23-0578 § 2 (Exh. 1).]
12.55.010 Purpose.
The purpose of this chapter is to regulate facilities within the public right-of-way and the granting of right-of-way utility permits, and to ensure that utility construction work undertaken pursuant to such permits is consistent with the applicant’s franchise with the City (if applicable), the Road Standards, the critical areas code, the City comprehensive plan, sound engineering and design standards, health and sanitation regulations, and City safety standards. [Ord. 23-0578 § 2 (Exh. 1).]
12.55.020 Utility permit – Required.
A. All construction performed by utilities or by their representatives within the right-of-way shall be required to obtain a right-of-way utility permit issued by the City. Construction undertaken as a direct result of a City project and where the utility has entered into a contract agreement with the City for said construction shall be exempt from this requirement.
B. Right-of-way utility permits for the construction of facilities within the right-of-way shall be applied for and given in the name of the utility, or the utility’s representative if authorized by the City. The utility shall be responsible for all work done under the permit, including, but not limited to, paving, patching, grading, and any other necessary repair or restoration to the right-of-way and any impacted private property. The utility shall be responsible for all work performed by the utility, its contractors or by other third parties.
C. Any work performed on private property or within a critical area may require additional permits, reviews, and/or approvals by the City or other agencies. Utilities shall be responsible for determining and obtaining all required permits/approvals prior to starting work.
D. An annual permit for all facility maintenance activities within the right-of-way which do not include ground disturbances may be approved for utilities with a franchise in lieu of a right-of-way utility permit to maintain each facility.
1. If an annual permit is not on file, utilities will be required to submit for a right-of-way utility permit for each and all maintenance activities within the right-of-way for every facility.
2. Failure to obtain a permit shall be subject to a fine as set forth in KMC 12.55.130 for each instance maintenance activities are performed in the right-of-way without a permit.
3. The city manager shall have the discretion to determine what activities qualify under an annual permit and has the authority to adopt rules identifying the activities and criteria for said permit. [Ord. 23-0578 § 2 (Exh. 1).]
12.55.030 Utility permit – Application.
A. Applications for all right-of-way utility permits shall be submitted, in writing, to the City on forms provided by the department. The application shall contain the information deemed necessary by the department, including, but not limited to, plans and specifications.
B. Applications for which no permit is issued within 12 months following the date of application submittal shall expire, and the plans and other data submitted for permit review may be returned to the applicant or destroyed in accordance with state law.
C. 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.
D. The city manager may extend the life of an application for any of the following reasons:
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 directly affect the application. [Ord. 23-0578 § 2 (Exh. 1).]
12.55.040 Utility permit – Fees.
A. Each application requires fees, imposed by the city council by resolution, payable to the City for the administrative costs and expenses of processing the application and for other functions necessary for the approval and use of the permit. These fees shall be equal to the administrative costs of approving the permit, including but not limited to preparing the permit, review, processing, coordinating review with other departments, preparing environmental documents, inspection, etc. Additional fees shall be imposed as noted below. All fees shall be paid as required in accordance with the most current fee schedule established by the city council. Fees shall be collected in accordance with the administrative procedures developed by the department.
B. Application Fee. This fee will be billed at the rate in effect at the time the application is received and covers all administrative costs necessary to receive, process, coordinate, and invoice for each application received. The fee shall cover up to three submittals (the original submittal and two revisions). Subsequent revisions may be subject to a new application fee in effect at the time the revision is received.
C. Review Fee. This fee will be billed at the hourly rate in effect at the time of the review and covers all costs necessary in the review of a permit.
D. Inspection Fee. This fee will be billed at the hourly rate in effect at the time of the inspection and covers all costs necessary in the inspection and approval of work for all approved applications.
E. Accelerated Job Start Fee. At the request of the utility, a job start request with less than the required notice may be approved. If approved, a fee shall be charged for each request and each permit. Any work performed after submission of a job start request but before written confirmation by the City shall be subject to an accelerated job start fee. Any work performed without written confirmation of a job start on an approved permit shall be subject to a job start fee.
F. After Hours Work Fee. Work on an approved permit performed within the right-of-way outside of regular work hours shall be subject to a fee of one and one-half times the inspection fee. Regular work hours are 7:00 a.m. to 4:00 p.m., Monday through Friday. Work performed on an approved permit on Saturday or Sunday or between the hours of 4:00 p.m. to 7:00 a.m., Monday through Friday, will be subject to a four-hour minimum charge. With the exception of an emergency, no work will be allowed on City observed holidays unless approved by the city manager.
G. Permit Extension Fee. Each extension of an active permit approved by the City. [Ord. 23-0578 § 2 (Exh. 1).]
12.55.050 Inspection fee.
Repealed by Ord. 23-0578. [Ord. 11-0330 § 1 (Exh. A); Ord. 03-0180 §§ 1, 2; Ord. 02-0141 § 1; Ord. 02-0139 § 1; Ord. 98-0024 §§ 1, 2 (KCC 14.44.045).]
12.55.060 Utility permit – Application – Review – Form.
A. The department shall review right-of-way utility permit applications and shall determine whether the proposed work is consistent with the applicant’s franchise with the City (if applicable), the KMC, and the Road Standards.
B. The department shall review and evaluate applications in respect to the hazard and risk of the proposed construction, location of the proposed construction in relation to other facilities in the right-of-way and the adequacy of the engineering and design of the proposed facility as it relates to the safety and operation of the right-of-way.
C. The utility shall submit traffic control plans as needed for review. The department shall review the plans for compliance with the most recent Manual on Uniform Traffic Control Devices, site safety, the Road Standards and applicability to existing site conditions.
D. The department shall determine if the application meets the requirements identified in this section. If the application meets the requirements the department may issue the utility permit, subject to conditions consistent with subsection E of this section, and if the work does not conflict with a City project as determined by the city manager. If the application is not consistent with the requirements identified in this section, the department may deny the utility permit.
E. The right-of-way utility permit granted shall be in a form approved by and be made subject to all terms and conditions imposed by the department and shall also include conditions of approval consistent with the requirements of Chapter 12.05 KMC, General Provisions. [Ord. 23-0578 § 2 (Exh. 1).]
12.55.065 Utility permit – Expiration/extension.
A. Right-of-way utility permits shall expire six 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. Permits that have been expired longer than six months will require a new permit application, review, and associated fees. At the city manager’s discretion, permits may be extended beyond the six-month extension period if one of the following circumstances applies:
1. Compliance with the State Environmental Policy Act is in progress;
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;
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 directly affect the application; or
5. At the sole discretion of the city manager that an extension would be in the interest of the public’s welfare.
B. Annual maintenance permits shall expire at midnight on the thirty-first day of December of the issuing year.
C. Thirty days after the expiration of a permit (or extensions as applicable), work that is not completed as required by the permit will be considered delinquent and restoration of the right-of-way may be completed by the City. Any cost associated with completing the permitted work shall be charged to and paid by the applicant. If no work has been performed under the permit, the permit shall be closed and the applicant will need to submit a new application. [Ord. 23-0578 § 2 (Exh. 1).]
12.55.070 Emergencies.
Work may be performed before a permit is issued in emergency situations. In these situations, the City will require the utility to submit for a right-of-way utility permit within one business day after work is performed or in the case of an extended emergency situation, as soon thereafter as practical. Emergency situations occur when:
A. The utility has determined, with City concurrence, that emergency work is necessary to address a public health or safety hazard;
B. The city manager has determined that the proposed work is necessary to address actual or imminent damage to the right-of-way, facilities, City property, or to address health or safety hazards to the public; or
C. When an outage has occurred due to forces outside of the utility’s control. [Ord. 23-0578 § 2 (Exh. 1).]
12.55.080 Policy on accommodation of utilities.
A. Standards of Installation. The Road Standards establishes the City standards for facility location, installation, maintenance, and relocations with the right-of-way. For installations on bridges, facilities shall be located so as to not impact existing operations above and below the bridge. [Ord. 23-0578 § 2 (Exh. 1).]
12.55.090 Coordination of right-of-way construction.
A. The applicant, at the time of submitting an application for a right-of-way utility permit, shall notify all other public and private utility entities known to be using or proposing to use the same right-of-way of the applicant’s proposed construction and the proposed timing of such construction. Any such entity so notified may, within seven days of such notification, request a delay in the commencement of such proposed construction for the purpose of coordinating other right-of-way construction with that proposed by the applicant.
B. The City shall coordinate the approval of right-of-way utility permits with City projects and may delay the commencement date for the applicant’s construction for 180 days or less, except in the case of emergencies, if it finds that such delay will reduce the inconvenience to road users from construction activities, if it finds that such delay will not create undue economic hardship on the applicant, or if it finds that such delay will allow the City to install conduit for future facility installations.
C. The utility shall coordinate with WSDOT on all utility work within the SR 522 right-of-way or if the work impacts a traffic signal within one City block of SR 522.
D. At the city manager’s discretion, the utility shall coordinate with Northshore School District on all work that will occur along any identified school walk routes, school bus routes, or student pick up/drop off locations.
E. The utility shall coordinate with King County Metro and Sound Transit on all right-of-way utility permits issued along bus routes.
F. The City shall review all right-of-way utility permit applications for underground projects 1,000 feet or longer to determine, within 15 business days, whether the installation of conduit may be needed for the future installation of fiber optic cable to connect City or other public facilities.
G. Failure to coordinate with the respective agencies identified in this section may result in a suspension or revocation of the approved permit. [Ord. 23-0578 § 2 (Exh. 1).]
12.55.100 Performance guarantee required.
Performance guarantees may be required for utilities for work in the right-of-way, at the discretion of the city manager. Prior to final approval of all right-of-way utility 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, City standards, and to assure proper restoration of the right-of-way and the health and safety of the users of the right-of-way. If required, the applicant shall submit the financial guarantee consistent with the provisions of KMC Title 21. [Ord. 23-0578 § 2 (Exh. 1).]
12.55.110 Construction permit – Form.
Repealed by Ord. 23-0578. [Ord. 18-0458 § 1 (Att. A); Ord. 11-0330 § 1 (Exh. A); Ord. 03-0180 §§ 1, 2; Ord. 02-0141 § 1; Ord. 98-0024 §§ 1, 2 (KCC 14.44.090).]
12.55.115 Insurance and indemnification.
Utilities without a franchise with the City shall be required to provide insurance and indemnification to the City. Insurance and indemnification requirements shall be consistent with the requirements of KMC 12.35.110. Coverage term of insurance shall be for a minimum of six months and shall cover all work performed within that coverage period. [Ord. 23-0578 § 2 (Exh. 1).]
12.55.120 Job start notification.
The permittee shall give written notice of the date of commencement of construction to the City per the department administrative policies. Additional notifications shall be given to the district fire marshal and Northshore Utility District for work that may interrupt water supply and to Northshore School District where work may impact school district activities. Failure to give such notice is grounds for the revocation or suspension of the permit. [Ord. 23-0578 § 2 (Exh. 1).]
12.55.130 Enforcement.
The city manager is authorized to enforce the provisions of this chapter, the ordinances codified in it, and any rules and regulations adopted hereunder pursuant to the following:
A. Activities performed in the right-of-way without a permit shall be fined $1,000 per day per each occurrence;
B. Lane/road closures that occur outside of the permitted closure hours or without prior approval from the city manager shall be fined $500.00 per day, per permit for each day a violation occurs. Repeat occurrences may result in revocation of the permit.
C. Where a relocation is required for a City project per KMC 12.55.160, daily penalties shall be determined by the City and shall include the daily financial impacts to the City project including but not limited to the total daily impact cost to the contractor, daily engineering and daily inspection services needed as determined by the City, and City staff cost (including overhead) as a result of a utility’s failure to meet the City’s relocation requirements.
D. Facility relocation required for a utility driven relocation shall be fined $500.00 per day per each individual location as a result of not relocating as required by this chapter. [Ord. 23-0578 § 2 (Exh. 1).]
12.55.135 Productivity and customer service report.
Repealed by Ord. 11-0330. [Ord. 03-0180 §§ 1, 2 (KCC 14.44.115).]
12.55.140 Severability.
Repealed by Ord. 11-0330. [Ord. 03-0180 §§ 1, 2; Ord. 02-0141 § 1; Ord. 98-0024 §§ 1, 2 (KCC 14.44.120).]
12.55.145 Working hours and road closures.
Working hours shall comply with Chapter 8.05 KMC unless otherwise approved by the city manager. Road closures, partial or otherwise, shall not be permitted unless otherwise approved by the city manager. [Ord. 23-0578 § 2 (Exh. 1).]
12.55.150 Utility locates.
All utilities shall be responsible, at no expense to the City, for locating their own facilities whether above ground or underground and whether active or abandoned. All underground facilities shall be located both horizontally and vertically in relation to the existing finished road elevation. Vertical locates shall be performed within 60 calendar days of notice by the City unless otherwise approved by the city manager. If vertical locates are not performed by the time prescribed by the City, the City shall assume the facilities are in conflict and will require relocation per KMC 12.55.160. [Ord. 23-0578 § 2 (Exh. 1).]
12.55.155 Aesthetic and scenic considerations.
A. Facility installations shall be designed and constructed to minimize the adverse effect on existing right-of-way, manmade or natural amenities. Special efforts shall be taken to minimize any potential negative impact on areas of scenic beauty such as viewpoints, recreation areas, public parks, and historic sites.
B. Overhead facilities shall be permitted in areas of scenic beauty only when underground locations are not technically feasible, unreasonably costly, or less desirable from the standpoint of aesthetics.
C. Overhead facilities shall take into consideration existing trees and future growth. Facilities shall be located to avoid or minimize branch trimming, root pruning, or other damage to existing trees.
D. Areas of scenic beauty shall be determined by the city manager. [Ord. 23-0578 § 2 (Exh. 1).]
12.55.160 Adjustments and relocations.
A. Utilities shall be responsible, at no expense to the City, to repair, remove or relocate all existing facilities within the right-of-way if such installation, repair, removal, or relocation is required by the City for any purpose, including, but not limited to, conflicts with a City project, City maintenance and operation, public safety, scenic beauty, utility-driven relocations or replacements.
B. Utility-Driven Relocations. In the event of a pole relocation or replacement, all utilities using the original pole shall transfer to the new pole within 30 calendar days of the notification to relocate. The utility pole owner shall be responsible for the coordination of and providing notice to any third-party utilities for the transfer of their respective facilities. The City may provide the 30-day relocation notice at the city manager’s discretion. Failure to relocate facilities as required by this section shall be enforced by the department by issuance of daily fines per KMC 12.55.130(D).
C. Facilities shall be relocated as directed by the City that conflict with City projects, as determined by the city engineer. The utility shall relocate its facilities within 120 calendar days from written notice by the City to relocate. Facilities shall be relocated in the time frame required under this section. The 120 days shall not be extended for any reason unless provided for in any written agreement. Failure to relocate facilities as required by this section shall be enforced by the department by issuance of daily fines per KMC 12.55.130(C). [Ord. 23-0578 § 2 (Exh. 1).]
12.55.165 Facility security and safety.
Notwithstanding reinforcement or protection otherwise provided, a utility shall be responsible for the security and safety of any facility within the right-of-way. Where there are construction hazards or where heavy construction equipment will be used, the utility shall provide adequate temporary protection as determined by the department. Construction of facilities shall be performed in such a manner as to provide a safe passage within the right-of-way. In restoring the right-of-way, the utility shall give due consideration to the protection of previously placed facilities in the right-of-way without impacting the safe and efficient operation of the right-of-way. [Ord. 23-0578 § 2 (Exh. 1).]
12.55.170 Abandonment.
In general, all abandoned facilities shall be removed from the right-of-way once decommissioned. All abandoned facilities shall be removed within 30 calendar days of abandonment. The city manager may approve a request to abandon facilities in place if deemed to be safe and consistent with the City’s future use of the right-of-way. The utility shall submit a plan to the City to ensure the safe decommissioning of the facility. The department may hire consultants to review the submitted plan and the utility shall pay all costs of said review. All facilities abandoned in-place shall remain the property of the utility and shall be maintained and/or removed at the request of the City. If, at any time, the City requires removal of the abandoned facility, the utility shall do so in accordance with KMC 12.55.160. [Ord. 23-0578 § 2 (Exh. 1).]
12.55.175 Right-of-way vacations.
If at any time the City, in accordance with Chapter 12.95 KMC, vacates the right-of-way or any portion therein, the City will not be liable for any damages or loss to a utility by reason of such vacation. When a right-of-way is vacated, it ceases to be a City right-of-way and the utility’s authority from the City to have its facilities within such right-of-way is extinguished. The City will use its best efforts to notify any utility that may have facilities within the right-of-way to be vacated to allow the utility an opportunity to negotiate an easement for its facilities. [Ord. 23-0578 § 2 (Exh. 1).]