Chapter 12.10
RIGHTS-OF-WAY
Sections:
12.10.010 Findings and purpose.
12.10.010 Findings and purpose.
The city council finds that it is in the public interest to establish standards for use of the rights-of-way and/or easements for service providers and other owners and operators of utility systems, in a manner which:
A. Provides terms, conditions and cost under which service providers and other operators of utility systems may use valuable public property to serve the public.
B. Protects the public interest in the use of the limited physical capacity of the public rights-of-way and/or easements.
C. Protects the public and the city from any harm resulting from such private use of rights-of-way and/or easements and preserves and improves the aesthetics of the community.
D. Protects and carries out the regulatory authority of the city and recovers costs. (Ord. 2006-002 § 1)
12.10.020 City property.
The city council finds that the city’s rights-of-way, other city property, and utility facilities such as water conduits, sewer conduits, poles and other conduits within the city constitute valuable public property:
A. That can be partially occupied by private companies and other entities for facilities used in the delivery, conveyance, and transmission of telecommunications, utility and public services rendered for profit, to the enhancement of the health, welfare, and general economic well being of the city and its citizens.
B. That are a unique resource so that proper management by the city is necessary, to maximize the efficiency and minimize the costs to the taxpayers of the foregoing uses and to minimize the inconvenience and negative effects, including degradation, upon the public from such facilities’ construction, emplacement, relocation, and maintenance in the rights-of-way.
C. Encourage proper development while preserving aesthetic and other community values and preventing proliferation of aboveground facilities and damaged rights-of-way and/or easements.
D. Recover the city’s current and ongoing costs of granting and regulating access to and use of the public rights-of-way and/or easements from the persons and businesses seeking such access and causing such costs.
E. Fees, insurance, warranties, repair and construction and excavation requirements shall include the following:
1. Repair of Damages. A franchisee, its successors and assigns shall promptly repair any damage of every type and nature to city property or city improvements caused by the failure or workmanship of the franchisee’s work during the life of a franchise. Patches in the public right-of-way must be restored or maintained by franchisee to the satisfaction of the city engineer until the area is repaved.
2. Public Ways and Property – Telecommunications, Cable – Municipal Authorization to Use Right-of-Way – Conditions of Occupancy or Use of the Right-of-Way. The following requirements apply as minimum conditions of installing, locating, using, maintaining, abandoning or removing facilities in the right-of-way or other permitted areas, whether by a service provider or any other user. They are a basis of negotiation of any franchise or master permit. Service providers or other users must accept the requirements, so long as any use or occupancy continues, regardless of whether a master or use permit or franchise has been issued, revoked or expired:
a. Users must comply with all applicable federal and state laws relating to operations in the city of Sequim, including safety laws and standards, as well as local ordinances, this chapter, and the policies and standards of the city, construction codes, regulations, and orders of the public works department, compliance all being further subject to audit or verification by the city at the users’ expense.
b. Users must obtain all permits required by the city for the installation, maintenance, repair, or removal of facilities in the right-of-way and pay all permit and filing fees, costs, charges and penalties within 30 days of billing or as otherwise specified by the public works department.
c. Users must always act in good faith and fair dealings with the public and must provide safe, reliable service to the public. Users must cooperate with the city to ensure their facilities are installed, maintained, repaired, and removed within the right-of-way or other permitted areas in compliance with the purposes of this chapter and in such a manner and at such points so as not to inconvenience the public use or to adversely affect the public health, safety, and welfare.
d. Users must provide information and plans the city requires to enable the city to comply with and enforce this chapter, including provision of advance planning information pursuant to the procedures established by the public works department. Users must keep the public works department fully informed of any changes to information required to be supplied with any master permit or franchise or any use permit.
e. Users must provide advance notice of long and short range needs for access to the right-of-way or other permitted areas as may be ordered by the public works department, and otherwise, as much as reasonable in order to facilitate the scheduling and coordination of work in the right-of-way or other permitted areas.
f. Users must obtain the written approval of the facility or structure owner, if they do not own it, prior to attaching to or otherwise using a facility or structure in the right-of-way or other permitted areas, and construct, install, operate, and maintain their facilities at their sole expense and liability except as otherwise provided by law or agreement. (Cross-reference: RCW 35.99.030(6).)
g. The city must not be exposed to any loss, liability or expense because of another’s use or occupancy of the right-of-way or other permitted areas. Users must fully indemnify and hold harmless the city, its officers, agents and employees, from all loss or liability in connection with their use or occupancy of such areas. Operations in or near the right-of-way or other permitted areas should be conducted to minimize or avoid hazard to the public or interfere with the priority of municipal infrastructure needs. Users must further pay for loss or damage to municipal assets or injury to municipal personnel. If the city nonetheless is exposed to risk or loss, users must protect and defend the city to the maximum extent permitted by law. Minimum insurance requirements pending any use or occupancy of the right-of-way or other permitted area are $500,000 per occurrence and $1,000,000 aggregate, with the city of Sequim as an additional named insured or as otherwise ordered by the administering officer with the advice of the risk manager.
h. The city is not responsible for construction or maintenance of any facilities placed and has no duty to modify the right-of-way or other permitted areas to accommodate such facilities. All areas utilized must be accepted “as is,” without express or implied assurances of suitability of any area for facilities placed. Users must assume all risk of facility placement and occupancy, including risks now or hereafter arising because of lack of municipal resources to maintain the municipal infrastructure or any component in current or better condition. Users must waive any claim against the city for loss or liability arising from acts or omissions of other users, occupants or the public, because of unstable earth or roadbed, changes in groundwater conditions or other natural or artificial conditions rendering the right-of-way or other permitted areas unsuitable for use for facilities placed or any other problem. This does not affect the applicability of Chapter 19.122 RCW, Washington State’s underground utilities statute.
i. There is no warranty of any municipal title or interest to confer permission to use or access any area. Permission is in the nature of a quitclaim authorization, subject to any other underlying interests as may be established. The city further reserves the right to vacate or abandon any permitted area at no cost or liability to the city. Municipal infrastructure needs have first priority in all cases except and only so far as shown to be otherwise required by a preemptive right.
j. There is no duty or liability of the city to any third-party tenant in or on a user’s facilities in the right-of-way or other permitted areas, or to any direct or indirect customers or third-party beneficiaries of a user. The city disclaims any such duty or responsibility. Users must accept sole responsibly for claims of their direct or indirect third-party tenants, customers or third-party beneficiaries.
k. Nothing in this chapter limits or restricts any requirement, duty or obligation heretofore arising to the benefit of the city as a result of any municipal contract, permit, or franchise, but such provisions are supplemental and in addition to this chapter. The provisions of this chapter are supplemental and in addition to other applicable municipal ordinances, standards, and requirements. Nothing in this chapter impairs any obligation of contract in violation of the Constitution of the State of Washington or the United States. (Cross-reference: RCW 35.99.080(c).)
l. Any damage or disturbance to the right-of-way or other permitted or surrounding areas must be promptly restored. A patch must be thereafter maintained by the responsible party as determined by the administering officer until the area is repaved. The public works department may require the responsible party to repave an entire lane within a cut or disturbed location, or greater area, if deemed affected. Common trenching and coordination of access needs by the user is required to avoid unnecessary cuts or damage to the right-of-way or other permitted areas. In addition, all patching and or paving shall be warranted against defects or failure for a period of two years from the date of completion of the work.
m. Access may be limited by the administering officer at a location, considering the purpose of this chapter, where there is inadequate space or other special limitations in an area. Minimum underground horizontal separation is five feet from city water facilities and 10 feet from above-ground city water facilities, subject to the public works department’s review and further determination.
n. Any assignment of use or occupancy privileges requires consent of the city in the manner originally granted. This does not apply to minor stock transfers. No capital stock may ever be issued based on any permission to use or occupy the right-of-way or other permitted areas or the value thereof. In any condemnation proceeding brought by the city, no grantee of any permission, permit or franchise under this chapter or otherwise shall ever be entitled to receive any return thereon, or its value.
o. Fees for all such services shall be set by resolution by the city council. (Ord. 2006-002 § 2)