Public Utilities in County Rights-of-Way

1
Public Utilities in County Rights-of-Way

• CHRIS MUDGETT, P.E.
• County Road Administration Board
• MARYA SILVERNALE, J.D.
• Municipal Research Services Center
• The 1997 Washington Public Works Design
  Conference
• October 16, 1997

2
Introduction

• Overview of issues
• Group discussion

3
Topics of Discussion

• Maps of Definite Locations
• Utility Accommodation Policy
• Franchises on County Rights-of-Way
• Utility Relocations to Accommodate Road
  Construction and Improvements
• Factors in Cost Responsibility
• Avoiding Utility Relocation Delays in County
  Public Works Contracts

4
Maps of Definite Locations

• Who is responsible for locating utilities?
• Where is the information?

5
Utility Accommodation Policy

• Does your agency have one?
• Status of county compliance with WAC 136-40

6
Utility Accommodation Policy

• Issues to consider addressing in the policy
• No release of hazardous substances
• No abandonment in place
• Maintenance of clear zone
• County not responsible for damage of obscured
  structures
• Notification policies and practices

7
Utility Accommodation Policy

• Sample Utility Accommodation Policy
• Other joint use agreements

8
Franchises on County Rights-of-Way

• Authority per RCW 36.55
• Sample Utility Franchise Agreement
• Including terms and conditions for use of the
  public right-of-way
• Watch for new federal and state laws
• Especially related to new technologies

9
Utility Relocations to Accommodate Road
Construction and Improvements

• Responsibility for cost of relocations
• Generally, the utility is responsible for the
  costs of relocation (RCW 36.55.060)

10
Utility Relocations to Accommodate Road
Construction and Improvements

• Case law and recent legal developments
• Sundquist Homes v. PUD No. 1 of Snohomish County
• Clark County v. PUD of Clark County
• Pierce County, et al, v. U.S. West Communications
• GTE v. City of Bothell

11
Factors in Cost Responsibility

• Easement rights
• Franchise language
• Local ordinances regulating public right-of-way
• Local utility accommodation policy
• Utility tariffs filed with WUTC
• State and federal law

12
Avoiding Utility Relocation Delays in County
Public Works Projects

• Early notice programs
• Design solutions
• Jointly bid projects with interlocal agreements
  for inclusion of utility relocation work
• Sample interlocal agreement for utility
  relocation (at utility expense) in connection
  with county road project

13
Avoiding Utility Relocation Delays in County
Public Works Projects

• Contractual allocation of responsibility --
  special provisions
• Limitations of ability to contractually allocate
  liability for damages (RCW 4.24.115)

14
Avoiding Utility Relocation Delays in County
Public Works Projects

• Limitations of ability to contractually allocate
  liability for damages (RCW 4.24.115)
• Sample bid specifications language to supplement
  WSDOT/APWA standard Specification 1-07.17

15
What If There Are Problems?

• Practical advice on dealing with your attorney

16
Questions - Comments - Discussion
17
Summary

• Careful planning and attention to details can
  avoid or minimize utility conflicts and/or delays
  in county public works projects
• On-going communication with utility purveyors can
  strengthen relationships necessary to deal with
  construction project issues

18
Summary

• Draft contract language to anticipate potential
  problems and clearly assign responsibility
• Provide all available information to contractors