Spokane Municipal Code

Title 12 Public Ways and Property

Chapter 12.09 Telecommunications, Cable – Municipal Authorization to Use Right-of-way

Section 12.09.080 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:

1. Users must comply with all applicable federal and state laws relating to operations in the City of Spokane, including safety laws and standards, as well as local ordinances, the City Charter, this chapter, and the policies and standards of the City, construction codes, regulations, and orders of the administering officer, compliance all being further subject to audit or verification by the City at the users’ expense.
    
2. 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 thirty days of billing or as otherwise specified by the administering officer.
    
3. 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.
    
4. 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 administering officer. Users must keep the administering officer fully informed of any changes to information required to be supplied with any master permit or franchise or any use permit.
    
5. 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 administering officer, 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.
    
6. 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. (See RCW 35.99.030(6))
    
7. 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 five hundred thousand dollars per occurrence and one million dollars aggregate, with the City of Spokane as an additional named insured or a otherwise ordered by the administering officer with the advice of the risk manager.
    
8. 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 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.
    
9. 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.
    
10. 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.
     
11. 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. (See RCW 35.99.080(c))
     
12. 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 administering officer 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.
     
13. 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, subject also to SMC 12.09.110. Minimum underground horizontal separation is five feet from City water facilities and ten feet from aboveground City water facilities, subject to the administering officer’s review and further determination.
     
14. 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.

Date Passed: Monday, June 25, 2007

Effective Date: Saturday, August 4, 2007

Recodification ORD C34053 Section 1

Section 12.09.080 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:

1. Users must comply with all applicable federal and state laws relating to operations in the City of Spokane, including safety laws and standards, as well as local ordinances, the City Charter, this chapter, and the policies and standards of the City, construction codes, regulations, and orders of the administering officer, compliance all being further subject to audit or verification by the City at the users’ expense.
    
2. 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 thirty days of billing or as otherwise specified by the administering officer.
    
3. 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.
    
4. 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 administering officer. Users must keep the administering officer fully informed of any changes to information required to be supplied with any master permit or franchise or any use permit.
    
5. 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 administering officer, 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.
    
6. 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. (See RCW 35.99.030(6))
    
7. 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 five hundred thousand dollars per occurrence and one million dollars aggregate, with the City of Spokane as an additional named insured or a otherwise ordered by the administering officer with the advice of the risk manager.
    
8. 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 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.
    
9. 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.
    
10. 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.
     
11. 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. (See RCW 35.99.080(c))
     
12. 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 administering officer 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.
     
13. 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, subject also to SMC 12.09.110. Minimum underground horizontal separation is five feet from City water facilities and ten feet from aboveground City water facilities, subject to the administering officer’s review and further determination.
     
14. 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.

Date Passed: Monday, June 25, 2007

Effective Date: Saturday, August 4, 2007

Recodification ORD C34053 Section 1