Chapter 12.125 FRANCHISES

B. Establish clear and nondiscriminatory local guidelines, standards, and time frames which use federal guidelines for the exercise of local authority with respect to the regulation of right-of-way use;

C. Encourage the provision of advanced and competitive telecommunications services on the widest possible basis to the businesses, institutions, and residents of the city;

D. Conserve the limited physical capacity of the public rights-of-way held in public trust by the city;

E. Ensure that the city’s current and ongoing costs of granting and regulating private access to and use of the public rights-of-way are fully paid by the persons seeking such access and causing such costs;

F. Ensure that all service providers maintaining facilities or providing services within the city comply with the ordinances, rules, and regulations of the city;

G. Ensure that the city can continue to fairly and responsibly protect the public health, safety, and welfare; and

H. Enable the city to discharge its public trust consistent with rapidly evolving federal and state regulatory policies, industry competition, and technological development. (Ord. 19-04 § 1 (part), 2019)

12.125.020 Definitions.

For the purpose of this chapter, the following terms, phrases, words, and abbreviations shall have the meanings given herein, unless otherwise expressly stated. Words not defined herein shall be given the meaning set forth in Title 47 of the United States Code, as amended. Words not otherwise defined shall have their common and ordinary meaning:

A. “Affiliate” means a person that (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with another person.

B. “Applicant” means any person or corporation submitting an application for a franchise.

C. “Base station” means a structure or equipment at a fixed location that enables FCC-licensed or FCC-authorized communications between user equipment and a communications network. The term does not encompass a tower as defined herein or any equipment associated with a tower. Base station includes, without limitation:

1. Equipment associated with wireless communications services such as private, broadcast, and public safety services as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.

2. Radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including distributed antenna systems (“DAS”) and small wireless networks).

3. Any structure other than a tower that, at the time the relevant application is filed with the city under this chapter, supports or houses equipment described in subsections (C)(1) and (2) of this section that has been reviewed and approved under the applicable zoning or siting process or under another state or local regulatory review process, even if the structure was not built for the sole or primary purpose of providing that support.

D. “Basic service” means that service regularly provided to all subscribers at a basic monthly rate including, but not limited to, the retransmission of local and distant broadcast signals, nonpay satellite services, automated services, local origination and access services.

E. “Cable communications system” or “CATV system” means a system employing antennas, microwave, wire, wave guides, coaxial cables, or other conductors, equipment or facilities in the public rights-of-way and designed, constructed or used for the purpose of:

1. Collecting and amplifying local and distant broadcast television or radio signals and transmitting and distributing them;

2. Transmitting original cablecast programming not received through television broadcast signals;

3. Transmitting television pictures, film and videotape programs not received through broadcast television signals, whether or not encoded or processed to permit reception by only selected receivers;

4. Transmitting and receiving all other signals, digital, voice, audio-visual, or other forms of electromagnetic signals.

F. “Channel” means a six megahertz (MHz) frequency band, which is capable of carrying either one standard audio-visual television signal, or a number of audio, digital or other nonvideo signals.

G. “City” means the city of Battle Ground, a municipal corporation of the state of Washington in its present incorporated form or in any later recognized, consolidated, enlarged or reincorporated form.

H. “City council” means the present governing body of the city of Battle Ground or any future board constituting the legislative body of the city of Battle Ground.

I. “City property” means any real property owned by city, whether in fee or other ownership estate of interest.

J. “Collocation” means the location of WCF antenna(s) serving more than one wireless communication service provider on a single support structure or attachment support structure. When used in the context of an eligible facilities request, “collocation” means the mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes.

K. “Community access channel” or “access channel” means any channel or portion of a channel utilized for programming on a nonprofit basis.

L. “Design zone” means the downtown commercial zone and any undergrounded area of the city.

M. “Director” means the public works director, his or her designee, or other department head as the city manager may designate.

N. “Eligible facilities request” means any request for modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station, involving:

1. Collocation of new transmission equipment;

2. Removal of transmission equipment; or

3. Replacement of transmission equipment.

O. “Eligible support structure” means any tower or base station as defined in this section; provided, that it is existing at the time the relevant application is filed with the city.

P. “Existing” means a constructed tower or base station is existing if it has been reviewed and approved under the applicable zoning or siting process, or under another state or local regulatory review process; provided, that a tower that has not been reviewed and approved because it was not in a zoned area when it was built, but was lawfully constructed, is existing for the purposes of this definition.

Q. “Excess capacity” means the volume or capacity in any existing or future duct, conduit, manhole, hand hole or other utility facility within the right-of-way that is or will be available for use for additional telecommunications facilities.

R. “FCC” or “Federal Communications Commission” means the federal administrative agency, or lawful successor, authorized to regulate and oversee telecommunications carriers, services and providers on a national level.

S. “Franchise” or “franchise agreement” is a contract by which a grantee is allowed to use city right-of-way for the purpose of carrying on the business in which it is generally engaged, including furnishing service to members of the public.

T. “Grantee” means the person, firm, or corporation to whom or which a franchise, as defined in this section, is granted by the council under this chapter and the lawful successor, transferee or assignee of such person, firm or corporation.

U. “Grantor” means the city of Battle Ground acting through its city council.

V. “Gross receipts” means any and all compensation in whatever form, directly or indirectly received by grantee, from its city of Battle Ground cable communications system, not including any taxes on services furnished by the grantee, which taxes are imposed directly on a subscriber or user by a city, county, state or other governmental unit, and collected by the grantee for such entity.

W. “Institution” means a building or buildings where service may be utilized in connection with business, trade, profession, public agency or service, school or nonprofit organization.

X. “Institutional network” means a cable communications network designed principally for the provision of nonentertainment interactive services to businesses, schools, public agencies, or other nonprofit agencies for use in connection with the ongoing operations of such institutions.

Y. “Institutional services” means services delivered on the institutional network.

Z. “Institutional subscriber” means a place of business, public agency, school or nonprofit corporation receiving institutional services on the institutional subscriber network.

AA. “Interactive services” means services provided to subscribers where the subscriber either (1) both receives information consisting of either television or other signal and transmits signals generated by the subscriber or equipment under his/her control for the purpose of selecting what information shall be transmitted to the subscriber or for any other purpose, or (2) transmits signals to any other location for any purpose.

BB. “Leased access channel” means any channel or portion of a channel available for programming for a fee or charge by persons or entities other than the grantee.

CC. “Light pole” means a pole owned by the city and used primarily for lighting streets, parking areas, parks, or pedestrian paths.

DD. “Local origination channel” means any channel or portion of a channel where the grantee is the only designated programmer, and which is utilized to provide television programs to subscribers.

EE. “Nonbasic service” means any cable service in addition to basic service.

FF. “Overhead facilities” means utility facilities and telecommunications facilities located above the surface of the ground, including the underground supports and foundations for such facilities.

GG. “Person” includes corporations, companies, associations, joint stock companies, firms, partnerships, limited liability companies, other entities, and individuals.

HH. “Premium or pay-TV service” means pay-per-program, pay-per-channel or subscription service, i.e., delivered to subscribers for a fee or charge over and above the regular charges for basic service.

II. “Public access channel” means any channel or portion of a channel where any member of the general public may be a programmer on a first come, first served basis, subject to appropriate rules formulated by the city and/or the grantee.

JJ. “Public right-of-way” or “right-of-way” means land acquired or dedicated for public roads and streets but does not include:

1. State highways;

2. Land dedicated for road, streets, and highways not opened and not improved for motor vehicle use by the public;

3. Structures, including poles and conduits, located within the right-of-way;

4. Federally granted trust lands or forest board trust lands;

5. Lands owned or managed by the State Parks and Recreation Commission; or

6. Federally granted railroad rights-of-way acquired under 43 USC 912 and related provisions of federal law that are not open for motor vehicle use.

KK. “Residential network” means a cable communications system designed principally for the delivery of entertainment, community access and interactive services to individual dwelling units.

LL. “Residential services” means services delivered on the residential network.

MM. “Residential subscriber” means a subscriber who receives residential services on the residential network.

NN. “Service provider” is defined in accordance with RCW 35.99.010(6). Service provider shall include those infrastructure companies that provide telecommunications services or equipment to enable the deployment of personal wireless services.

OO. “Small wireless” and “small wireless facility” shall have the same meaning as a “small wireless facility” as set forth in 47 CFR 1.6002.

PP. “State” means the state of Washington.

QQ. “Structure” means a pole, tower, base station, or other building, whether or not it has an existing antenna facility, that is used or to be used for the provision of personal wireless service (whether on its own or commingled with other types of services).

RR. “Subscriber” means any person or institution that elects to subscribe to, for any purpose, a service provided by the grantee by means of or in connection with the cable communications system whether or not a fee is paid for such service.

SS. “Substantial change” means a modification substantially changes the physical dimensions of an eligible support structure if it meets any of the following criteria:

1. For towers other than towers in the public rights-of-way, it increases the height of the tower by more than ten percent or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater; for other eligible support structures, it increases the height of the structure by more than ten percent or more than ten feet, whichever is greater;

2. For towers other than towers in the public rights-of-way, it involves adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than twenty feet, or more than the width of the tower structure at the level of the appurtenance, whichever is greater; for other eligible support structures, it involves adding an appurtenance to the body of the structure that would protrude from the edge of the structure by more than six feet;

3. For any eligible support structure, it involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four cabinets; or, for towers in the public rights-of-way and base stations, it involves installation of any new equipment cabinets on the ground if there are no preexisting ground cabinets that are more than ten percent larger in height or overall volume than any other ground cabinets associated with the structure;

4. It entails any excavation or deployment outside the current site;

5. It would defeat the concealment elements of the eligible support structure; or

6. It does not comply with conditions associated with the siting approval of the construction or modification of the eligible support structure or base station equipment; provided, however, that this limitation does not apply to any modification that is noncompliant only in a manner that would not exceed the thresholds identified above.

TT. “Surplus space” means that portion of the usable space on a utility pole, which has the necessary clearance from other pole users, as required by the orders and regulations of the WUTC, the pole owner and applicable electrical codes to allow its use by a service provider for a pole attachment.

UU. “Tapping” means the observing of a communications signal exchange where the observer is neither of the communicating parties, whether the exchange is observed by visual or electronic means, for any purpose whatsoever.

VV. “Telecommunications facilities” means the plant, equipment and property including, but not limited to, cables, wires, conduits, ducts, pedestals, electronics, and other appurtenances used or to be used to transmit, receive, distribute, provide or offer wireline telecommunications service.

WW. “Telecommunications service” means the transmission of information by wire, radio, optical cable, electromagnetic, or other similar means for hire, sale, or resale to the general public. For the purpose of this subsection, “information” means knowledge or intelligence represented by any form of writing, signs, signals, pictures, sounds, or any other symbols. For the purpose of this chapter, telecommunications service excludes the over-the-air transmission of broadcast television or broadcast radio signals.

XX. “Tower” means any structure built for the sole or primary purpose of supporting any FCC-licensed or FCC-authorized antennas and their associated facilities, including structures that are constructed for wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul and the associated site.

YY. “Underground facilities” means utility and telecommunications facilities located under the surface of the ground, excluding the underground foundations or supports for overhead facilities.

ZZ. “Utility facilities” means the plant, equipment, and property including, but not limited to, the poles, pipes, mains, conduits, ducts, cables, wires, plant and equipment located under, on or above the surface of the ground within rights-of-way and used or to be used for the purpose of providing utility services or telecommunications services including telecommunications facilities.

AAA. “Traffic signal poles” means a pole that supports equipment used for controlling traffic, including but not limited to traffic lights, rapid flashing beacons, speed radar, and school zone flashers.

BBB. “Washington Utilities and Transportation Commission” or “WUTC” means the state administrative agency, or lawful successor, authorized to regulate and oversee telecommunications carriers, services and providers in the state of Washington to the extent prescribed by law.

CCC. “Wireline” means communications using conducted electromagnetic or optical emissions by, over, or within a physically tangible means of transmission, including without limitation wire or cable, and the apparatus used for such transmission. (Ord. 19-04 § 1 (part), 2019)

12.125.030 Registration and fees.

Except as otherwise provided herein, all service providers engaged in the business of the transmitting, supplying, or furnishing of telecommunications service originating, terminating, or existing within the city shall register with the city pursuant to Chapter 5.03 BGMC and pay all the fees as provided herein or as may be set by resolution. (Ord. 19-04 § 1 (part), 2019)

12.125.040 Application to existing franchise ordinances and agreements.

The enactment of this chapter shall have no effect on any existing franchise agreement until:

A. The expiration of said franchise agreement; or

B. An amendment to an unexpired franchise agreement, unless both parties agree to defer full compliance to a specific date not later than the present expiration date. (Ord. 19-04 § 1 (part), 2019)

12.125.050 Penalties.

Any person found violating, disobeying, omitting, neglecting, or refusing to comply with any of the provisions of this chapter shall be fined not less than two hundred fifty dollars nor more than seven hundred fifty dollars for each offense. A separate and distinct offense shall be deemed committed each day on which a violation occurs or continues. (Ord. 19-04 § 1 (part), 2019)

12.125.060 Other remedies.

Nothing in this chapter shall be construed as limiting any judicial remedies that the city may have, at law or in equity, for enforcement of this chapter. (Ord. 19-04 § 1 (part), 2019)

Article II. Franchise Agreement

12.125.070 Franchise – Required.

A franchise shall be required of any telecommunications provider who desires to make use of telecommunications facilities, which occupy rights-of-way, and to provide telecommunications services to any person or area in the city. The franchise is a “master permit” within the meaning of RCW 35.99.010(3). (Ord. 19-04 § 1 (part), 2019)

12.125.080 Franchise application.

Any person that desires a franchise hereunder shall file an application in accordance with this chapter, which shall include the applicable portions of the required franchise application information. (Ord. 19-04 § 1 (part), 2019)

12.125.090 Determination by the city.

Within the time periods or presumptive safe harbors established by state or federal law, the director shall make a recommendation to the city council on whether to grant or deny the application in whole or in part. A recommendation to deny an application may be based on any of the following:

A. The financial and technical ability of the applicant;

B. The legal ability of the applicant to provide the service or use proposed for franchise authorization;

C. The capacity of the rights-of-way to accommodate the applicant’s facilities;

D. The capacity of the rights-of-way to accommodate additional utility and telecommunications facilities if the application is granted;

E. The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the application is granted, giving consideration to an applicant’s willingness and ability to mitigate and/or repair same;

F. The public interest in minimizing the cost and disruption of construction with the rights-of-way;

G. The service that the applicant will provide to the region;

H. The effect, if any, on general public health, safety and welfare in city’s sole opinion if the application is granted;

I. The availability of alternate routes or locations for the proposed facilities;

J. Applicable federal, state and local laws, regulations, rules and policies; or

K. Such other factors as may demonstrate that the grant to use the rights-of-way will serve the community interest. (Ord. 19-04 § 1 (part), 2019)

12.125.100 Franchise agreement.

No franchise shall be granted hereunder unless the applicant and the city have executed a written agreement setting forth the particular terms and provisions under which the franchise to occupy and use rights-of-way will be granted. All franchises granted pursuant to this article shall contain substantially similar terms and conditions. (Ord. 19-04 § 1 (part), 2019)

12.125.110 Nonexclusive grant.

No franchise granted hereunder shall confer any exclusive right, privilege or franchise to occupy or use the rights-of-way for delivery of telecommunications services or any other purposes. (Ord. 19-04 § 1 (part), 2019)

12.125.120 Rights granted.

A. No franchise granted hereunder shall convey any right, title or interest in the rights-of-way but shall be deemed a franchise only to use and occupy the rights-of-way for the limited purposes and term stated in the grant.

B. No franchise granted hereunder shall authorize or excuse a grantee from securing such further easements, leases, permits or other approvals as may be required to lawfully occupy and use rights-of-way excess capacity in an underground facility or surplus space in an overhead facility. Grantee shall obtain the written approval of the facility or structure owner, if the grantee does not own it, prior to attaching to or otherwise using a facility or structure in the right-of-way.

C. No franchise granted hereunder shall be construed as any warranty of title. (Ord. 19-04 § 1 (part), 2019)

12.125.130 Term of grant.

Unless otherwise specified in Article III, or unless otherwise renewed, a franchise granted hereunder shall be valid for a term of not more than ten years. (Ord. 19-04 § 1 (part), 2019)

12.125.140 Franchise territory.

A franchise granted hereunder shall be issued for all of the rights-of-way within the city. (Ord. 19-04 § 1 (part), 2019)

12.125.150 Location of facilities.

Unless otherwise specified in a franchise, all facilities shall be constructed, installed, and located in accordance with the following terms and conditions:

A. Telecommunications facilities shall be installed within an existing underground duct or conduit whenever excess capacity exists within such utility facility, unless such location is not feasible due to the technology employed in the facility.

B. A grantee with written authorization to install overhead facilities shall install its telecommunications facilities on pole attachments to existing or replacement utility poles only, and then only if surplus space is available.

C. Whenever any existing telephone facilities, electric utilities, cable facilities or telecommunications facilities are located underground within rights-of-way, a grantee with written authorization to occupy the same rights-of-way must also locate its telecommunications facilities underground to the extent technologically feasible.

D. Whenever any new or existing telephone facilities, electric utilities, cable facilities or telecommunications facilities are located or relocated underground within rights-of-way, a grantee shall concurrently relocate its facilities underground if technologically feasible. It is the responsibility of the grantee to obtain written authorization from the owner of the facility.

E. If requested, grantee shall provide the city with additional duct or conduit and related structures necessary to access the conduit; provided, that:

1. The city enters into a contract with the grantee consistent with RCW 80.36.150. The contract rates to be charged should recover the incremental costs of the grantee. If the city makes the additional duct or conduit and related access structures available to any other entity for the purposes of providing telecommunications or cable television service for hire, sale, or resale to the general public, the rates to be charged, as set forth in the contract with the entity that constructed the conduit or duct, shall recover at least the fully allocated costs of the grantee. The grantee shall state both contract rates in the contract. The city shall inform the grantee of the use, and any change in use, of the requested duct or conduit and related access structures to determine the applicable rate to be paid by the city.

2. Except as otherwise agreed by the grantee and the city, the city shall agree that the requested additional duct or conduit space and related access structures will not be used by the city to provide telecommunications or cable television service for hire, sale, or resale to the general public.

3. The city shall not require that the additional duct or conduit space be connected to the access structures and vaults of the grantee.

4. This subsection shall not affect the provision of an institutional network by a cable television provider under federal law. (Ord. 19-04 § 1 (part), 2019)

12.125.160 Right-of-way permits.

All grantees are required to obtain right-of-way permits and pay all fees for telecommunications facilities as required by city of Battle Ground ordinances and/or resolutions, except as otherwise provided. Such permits are use permits within the meaning of RCW 35.99.010(8) and shall be processed in accordance with RCW 35.99.030. (Ord. 19-04 § 1 (part), 2019)

12.125.170 Nondiscrimination.

A grantee shall make its telecommunications services available to any customer within its franchise area who shall request such service, without discrimination as to the terms, conditions, rates or charges for the grantee’s services; provided, however, that nothing in this chapter shall prohibit a grantee from making any reasonable classifications among differently situated customers. (Ord. 19-04 § 1 (part), 2019)

12.125.180 Amendment of franchise agreement.

A. A new franchise application and grant shall be required of any service provider that desires to extend its franchise territory or to locate its telecommunications facilities in rights-of-way that are not included in a franchise previously granted hereunder.

B. A new franchise application and grant shall be required of any telecommunications provider that desires to add to or modify the telecommunications services provided pursuant to a franchise previously granted.

C. If ordered by the city to locate or relocate its telecommunications facilities in rights-of-way not included in a previously granted franchise, the city shall grant a franchise amendment without further application. (Ord. 19-04 § 1 (part), 2019)

12.125.190 Renewal applications.

A grantee that desires to renew its franchise hereunder shall, not more than one hundred eighty days nor less than ninety days before expiration of the current franchise, file an application with the city for renewal of its franchise, which shall include the following information:

A. The applicable information required pursuant to the franchise; and

B. Any other information required by the city. (Ord. 19-04 § 1 (part), 2019)

12.125.200 Renewal determinations.

Within one hundred twenty days after receiving a complete application hereunder, the director shall make a recommendation to the city council on whether the city should grant or deny the renewal application in whole or in part; provided, however, that if a shorter time period is required to comply with federal law or regulation, the director shall provide his/her recommendation in a timely manner consistent with such review period. If the renewal recommendation is to deny, the recommendation shall include the reasons for nonrenewal. The applicant’s compliance with the requirements of this chapter and the franchise agreement shall serve as a criteria for renewed consideration. (Ord. 19-04 § 1 (part), 2019)

12.125.210 Obligation to cure as a condition of renewal.

No franchise shall be renewed until any ongoing violations or defaults in the grantee’s obligations under the franchise, or the requirements of this chapter, and all applicable laws, statutes, codes, ordinances, rules and regulations have been cured, or a plan detailing the corrective action to be taken by the grantee has been approved by the city. (Ord. 19-04 § 1 (part), 2019)

Article III. Conditions of Grant of Franchise

12.125.220 General duties.

All grantees, before commencing any construction in the rights-of-way, shall comply with all requirements of this article. (Ord. 19-04 § 1 (part), 2019)

12.125.230 Interference with the rights-of-way.

No grantee may locate or maintain its telecommunications facilities so as to unreasonably interfere with the use of the rights-of-way by the city, by the general public or other persons, or other persons authorized to use or be present in or upon the rights-of-way. All such facilities shall be moved by and at the expense of the grantee, temporarily or permanently, as determined by the city. (Ord. 19-04 § 1 (part), 2019)

12.125.240 Damage to property.

No grantee or any person acting on a grantee’s behalf shall take any action or permit any action to be done which may impair or damage any rights-of-way, including specifically city property, real or personal, or public ways or other property located in, on or adjacent thereto, except in accordance with this chapter. (Ord. 19-04 § 1 (part), 2019)

12.125.250 Notice of work.

Unless otherwise provided in a franchise agreement, no grantee, or any person acting on the grantee’s behalf, shall commence any nonemergency work in or about rights-of-way. Any private property owner whose property will be affected by a grantee’s work shall be afforded ten working days’ advance written notice of such work. (Ord. 19-04 § 1 (part), 2019)

12.125.260 Repair and emergency work.

In the event of an emergency or an emergency repair necessary to protect the public, restore service or mitigate further damage to the system, a grantee may commence such repair and emergency response work as required under the circumstances; provided, the grantee shall notify the director as promptly as possible, before such repair or emergency work or as soon thereafter as possible if advance notice is not practicable. (Ord. 19-04 § 1 (part), 2019)

12.125.270 Maintenance of facilities.

Each grantee shall maintain its facilities in good and safe condition and in a manner that complies with all applicable federal, state and local requirements. (Ord. 19-04 § 1 (part), 2019)

12.125.280 Relocation or removal of facilities.

Within thirty days following written notice from the city, a grantee shall, at its own expense, except as described in RCW 35.99.060(3), temporarily or permanently remove, relocate, change or alter the position of any telecommunications facilities within the rights-of-way whenever the director shall have determined that such removal, relocation, change or alteration is reasonably necessary for:

A. The construction, repair, maintenance or installation of any city or other public improvement in or upon the rights-of-way;

B. The operations of the city or other governmental entity in or upon the rights-of-way; or

C. The vacation of a street or the release of a utility easement. (Ord. 19-04 § 1 (part), 2019)

12.125.290 Removal of unauthorized facilities.

Within thirty days following written notice from the director, any grantee, service provider, or other person that owns, controls or maintains any unauthorized telecommunications system, facility or related appurtenances within the rights-of-way shall, at its own expense, remove such facilities or appurtenances from the rights-of-way. If such grantee fails to remove such facilities or appurtenances, the city may cause the removal and charge the grantee for the costs incurred. A telecommunications or other facility or system is unauthorized and subject to removal in the following circumstances:

A. Upon expiration or termination of the grantee’s franchise;

B. Upon abandonment of a facility within the rights-of-way;

C. If the system or facility was constructed or installed without the prior grant of a franchise;

D. If the system or facility was constructed or installed without the prior issuance of a required right-of-way permit;

E. If the system or facility was constructed or installed at a location not permitted by the grantee’s franchise; or

F. Any such other reasonable circumstances deemed necessary by the director. (Ord. 19-04 § 1 (part), 2019)

12.125.300 Failure to relocate.

If a grantee is required to relocate, change or alter the telecommunications facilities constructed, operated and/or maintained hereunder and fails to do so within the time period provided for relocation, the city may cause such to occur. Grantee shall reimburse the city for any and all costs incurred whether direct or indirect as a result of said relocation. Grantee shall pay reimbursement within thirty days of being invoiced. In the event grantee fails to timely pay the reimbursement owed, the city reserves the right to take the reimbursement owed from the security fund pursuant to BGMC 12.125.390. (Ord. 19-04 § 1 (part), 2019)

12.125.310 Emergency removal or relocation of facilities.

The city retains the right and privilege to cut or move any telecommunications facilities located within the rights-of-way as the city may determine to be necessary, appropriate or useful in response to any public health or safety emergency. (Ord. 19-04 § 1 (part), 2019)

12.125.320 Damage to grantee’s facilities.

Unless directly and proximately caused by the sole negligence or malicious acts of the city, the city shall not be liable for any damage to or loss of any telecommunications facility within rights-of-way as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling, or work of any kind in the rights-of-way by or on behalf of the city. (Ord. 19-04 § 1 (part), 2019)

12.125.330 Restoration of rights-of-way or other property.

Restoration shall comply with the following requirements:

A. When a grantee, or any person acting on its behalf, does any work in or affecting any rights-of-way, or any other property, it shall, at its own expense, promptly remove any obstructions therefrom and restore such ways or property to the same condition which existed before the work was undertaken.

B. If weather or other conditions do not permit the complete restoration required hereunder, the grantee shall temporarily restore the affected rights-of-way or other property. Such temporary restoration shall be at the grantee’s sole expense and the grantee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration.

C. A grantee or other person acting on its behalf shall use suitable barricades, flags, flagmen, lights, flares and other measures as required for the safety of all members of the general public and to prevent injury or damage to any person, vehicle or property by reason of such work in or affecting rights-of-way or any other property. (Ord. 19-04 § 1 (part), 2019)

12.125.340 Facilities maps.

Each grantee shall provide the city with an accurate as-built map or maps certifying the location of all telecommunications facilities within the city and particularly within rights-of-way. Each grantee shall provide updated as-built maps annually. (Ord. 19-04 § 1 (part), 2019)

12.125.350 Duty to provide information.

Within thirty days of a written request from the director, each grantee shall furnish the director with information sufficient to demonstrate that:

A. The grantee has complied with all requirements of this chapter;

B. All fees due the city in connection with the telecommunications services and facilities provided by the grantee have been properly collected and paid by the grantee; and

C. All books, records, maps and other documents maintained by the grantee with respect to its facilities within rights-of-way shall be made available for inspection by the director. (Ord. 19-04 § 1 (part), 2019)

12.125.360 Grantee insurance.

Each grantee shall secure and maintain the following liability insurance policies insuring both the grantee and the city as an additional insured against claims for injuries to persons, death or damages to property, which may arise from or in connection with the exercise of the rights, privileges, and authority granted to the grantee:

A. Comprehensive general liability insurance, written on an occurrence basis, with limits not less than:

1. Two million dollars for bodily injury or death to each person;

2. Two million dollars for property damage resulting from any one accident;

3. Two million dollars for all other types of liability; and

4. Five million dollars in the aggregate for bodily injury and property damage;

B. Automobile liability for owned, nonowned and hired vehicles with a combined single limit of two million dollars for each accident;

C. Worker’s compensation within statutory limits and employer’s liability insurance with limits of not less than one million dollars;

D. Comprehensive form premises-operations, explosions and collapse hazard, underground hazard and products completed hazard with limits of not less than five million dollars; and

E. Excess umbrella liability policy with limits of no less than five million dollars per occurrence and in the aggregate.

F. The liability insurance policies required by this section shall be maintained by the grantee throughout the term of the franchise, and such other period of time during which the grantee is operating without a franchise hereunder or is engaged in the removal of its telecommunications facilities. Failure to maintain such insurance shall be grounds for cancellation. The grantee shall provide an insurance certificate, together with an endorsement including the city, and its elected and appointed officers, officials, agents, employees, representatives, engineers, consultants, and volunteers as additional insureds, to the city prior to the commencement of any work or installation of any telecommunications facilities pursuant to said franchise. Payment of deductibles and self-insured retentions shall be the sole responsibility of the grantee. The insurance certificate required by this section shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability. The grantee’s insurance shall be primary and noncontributory insurance as respects the city, its elected and appointed officers, officials, employees, agents, representatives, engineers, consultants, and volunteers. Any insurance maintained by the city, its elected and appointed officers, officials, employees, consultants, agents, representatives, engineers and volunteers shall be in excess of the grantee’s insurance and shall not contribute with it. Receipt by the city of any certificate showing less coverage than required is not a waiver of grantee’s obligations to fulfill the requirements. Grantee may utilize primary and excess liability insurance policies to satisfy the insurance policy limits required in this section. Grantee’s excess liability insurance policy shall provide “follow form” coverage over its primary liability insurance policies.

G. In addition to the coverage requirements set forth in this section, the grantee must notify the city of any cancellation or reduction in said coverage. Within thirty days after receipt by the city of said notice, and in no event later than fifteen days prior to said cancellation or intent not to renew, the grantee shall obtain and furnish to the city a replacement insurance certificate meeting the requirements of this section.

H. Grantee’s maintenance of insurance as required by this section shall not be construed to limit the liability of grantee to the coverage provided by such insurance, or otherwise limit the city’s recourse to any remedy available at law or equity. Further, grantee’s maintenance of insurance policies required by this franchise shall not be construed to excuse unfaithful performance by grantee.

I. Upon approval by the director and based on conditions set by the city in the franchise, the grantee may self-insure under the same terms as required by this section. Further, the director may modify these insurance requirements as he/she deems necessary to comply with the city’s risk management policies or as otherwise approved by the city’s risk manager; provided, that any such changes provide adequate protection for the city. (Ord. 19-04 § 1 (part), 2019)

12.125.370 General indemnification.

As consideration for the issuance of the franchise, the franchise shall include an indemnity clause substantially conforming to the following:

A. Grantee hereby releases, covenants not to bring suit and agrees to indemnify, defend and hold harmless the city, its elected and appointed officers, officials, employees, agents, engineers, consultants, volunteers and representatives from any and all claims, costs, judgments, awards or liability to any person arising from injury, sickness, or death of any person or damage to property:

1. For which the negligent acts or omissions of grantee, its agents, servants, officers or employees in performing the activities authorized are the proximate cause;

2. By virtue of grantee’s exercise of the rights granted herein;

3. By virtue of the city’s permitting grantee’s use of the public ways or other city property;

4. Based upon the city’s inspection or lack of inspection of work performed by grantee, its agents and servants, officers or employees in connection with work authorized on a telecommunications facility, public ways, or other city property over which the city has control pursuant to any franchise issued;

5. Arising as a result of the negligent acts or omissions of grantee, its agents, servants, officers or employees in barricading, instituting trench safety systems or providing other adequate warnings of any excavation, construction, or work upon a telecommunications facility, in any public ways, other ways, or other city property in performance of work or services; and

6. Based upon radio frequency emissions or radiation emitted from grantee’s equipment located upon a telecommunications facility, regardless of whether grantee’s equipment complies with applicable federal statutes and/or FCC regulations related thereto.

B. Grantee’s indemnification obligations pursuant to subsection A of this section shall include assuming potential liability for actions brought against the city by grantee’s own employees and the employees of grantee’s agents, representatives, contractors, and subcontractors even though grantee might be immune under RCW Title 51 from direct suit brought by such an employee. It is expressly agreed and understood that this assumption of potential liability for actions brought against the city by the aforementioned employees is with respect to claims against the city arising by virtue of grantee’s exercise of its rights. In addition to the indemnification obligations throughout this section, the obligations of grantee under this subsection shall be mutually negotiated between the parties. Grantee shall acknowledge that the city would not enter into an agreement without grantee’s waiver thereof. To the extent required to provide this indemnification and this indemnification only, grantee will waive its immunity under RCW Title 51 as provided in RCW 4.24.115.

C. Inspection or acceptance by the city of any work performed by grantee at the time of completion of construction shall not be grounds for avoidance of any of these covenants of indemnification. Provided, that grantee has been given prompt written notice by the city of any such claim, said indemnification obligations shall also extend to claims which are not reduced to a suit and any claims which may be compromised prior to the culmination of any litigation or the institution of any litigation. The city has the right to defend or participate in the defense of any such claim and has the right to approve any settlement or other compromise of any such claim.

D. In the event that grantee refuses the tender of defense in any suit or any claim, said tender having been made pursuant to this section, and said refusal is subsequently determined by a court having jurisdiction (or such other tribunal that the parties agree to decide the matter) to have been a wrongful refusal on the part of grantee, then grantee shall pay all of the city’s costs for defense of the action, including all reasonable expert witness fees, reasonable attorneys’ fees, the reasonable costs of the city, and reasonable attorneys’ fees of recovering under this subsection.

E. The obligations of grantee under the indemnification provisions of this section shall apply regardless of whether liability for damages arising out of bodily injury to persons or damages to property was caused or contributed to by the concurrent negligence of the city, its officers, agents, employees or contractors. The provisions of this section, however, are not to be construed to require the grantee to hold harmless, defend or indemnify the city as to any claim, demand, suit or action which arises out of the sole negligence of the city. In the event that a court of competent jurisdiction determines that a franchise is subject to the provisions of RCW 4.24.115, the parties agree that the indemnity provisions hereunder shall be deemed amended to provide that the grantee’s obligation to indemnify the city hereunder shall extend only to the extent of grantee’s negligence.

F. Notwithstanding any other provisions of this section, grantee assumes the risk of damage to its telecommunications facilities located in the public ways, other ways, and upon city property from activities conducted by the city, its officers, agents, employees and contractors, except to the extent any such damage or destruction is caused by or arises from the sole negligence, or malicious action on the part of the city, its officers, agents, employees or contractors. Grantee releases and waives any and all such claims against the city, its officers, agents, employees and contractors. Grantee further agrees to indemnify, hold harmless and defend the city against any claims for damages, including, but not limited to, business interruption damages and lost profits, brought by or under users of grantee’s telecommunications facilities as the result of any interruption of service due to damage or destruction of grantee’s telecommunications facilities caused by or arising out of activities conducted by the city, its officers, agents, employees or contractors.

G. These indemnification requirements shall survive the expiration, revocation, or termination of a franchise issued thereunder. (Ord. 19-04 § 1 (part), 2019)

12.125.380 Performance and construction surety.

Before a franchise granted pursuant to this chapter is effective, and as necessary thereafter, the grantee shall provide and deposit such monies, bonds, letters of credit or other instruments in form and substance acceptable to the city as may be required by the city of Battle Ground, or by an applicable franchise or other applicable code, ordinance, resolution or rules and regulations of the city. (Ord. 19-04 § 1 (part), 2019)

12.125.390 Security fund.

A. Prior to issuance of a franchise pursuant to this chapter, each grantee shall establish a permanent security fund with the city by depositing the amount of twenty-five thousand dollars, or such higher amount as deemed necessary by the director, with the city in cash, bond, or an unconditional letter of credit. The amount shall be based upon both operating history in public ways and the cost of removal of the grantee’s facilities, other ways, and city property. The fund shall be maintained at the sole expense of the grantee so long as any of the grantee’s telecommunications facilities are located within the public ways, other ways, or upon city property.

B. The fund shall serve as security for the full and complete performance of this chapter and the franchise including any costs, expenses, damages, or loss the city pays or incurs, including civil penalties, because of any failure attributable to the grantee to comply with the codes, ordinances, rules, regulations, or permits of the city applicable to the construction, maintenance, repair, relocation, or removal of telecommunications facilities in the public ways, other ways, or upon city property.

C. The city and the grantee shall agree upon and specify in the franchise certain amounts which represent both parties’ best estimate of the damages for failure to comply with the franchise issued thereunder. The liquidated damages provided in the franchise shall be the exclusive monetary remedy for the named breaches. Neither the right to liquidated damages nor the payment of liquidated damages shall bar or otherwise limit the right of the city in a proper case to:

1. Obtain judicial enforcement of a grantee’s obligations by means of specific performance, injunctive relief, mandamus, or other remedies at law or in equity;

2. Consider any substantial violation or breach as grounds for forfeiture and termination of a franchise issued thereunder; and

3. Consider any violation or breach as grounds for nonrenewal or nonextension of a franchise or issuance of a new franchise.

D. Before any sums are withdrawn from the security fund, the city shall give written notice to the grantee:

1. Describing the act, default or failure to be remedied, or the damages, costs or expenses which the city has incurred by reason of grantee’s act or default regarding the installation, maintenance, repair, or removal of telecommunications facilities in the public ways, other ways, or upon city property or in connection with restoration of the foregoing;

2. Providing a reasonable opportunity for grantee to first remedy the existing or ongoing default or failure regarding the installation, maintenance, repair or removal of telecommunications facilities in the public ways, other ways, or upon city property or in connection with the restoration of the foregoing, if applicable;

3. Providing a reasonable opportunity for grantee to pay any monies due the city before the city withdraws the amount thereof from the security fund, if applicable; and

4. That the grantee will be given an opportunity to review the act, default, or failure described in the notice with the director.

E. Grantees shall replenish the security fund within fourteen days after written notice from the city that there is a deficiency in the amount of the fund.

F. Upon termination or expiration of the franchise all funds remaining in the security fund shall be returned to the grantee within thirty days after removal of grantee’s telecommunications facilities within the public ways. (Ord. 19-04 § 1 (part), 2019)

12.125.400 Surety bond.

If required by the director, the grantee shall deposit with the director a surety bond, or other approved surety, in the amount of five thousand dollars, or an amount equal to one hundred twenty-five percent of the construction costs, whichever is greater, payable to the city. The surety must be:

A. With a good and sufficient surety authorized to transact business in the state of Washington;

B. Satisfactory to the city attorney in form and substance; and

C. Said surety shall be conditioned that the grantee shall restore all rights-of-way per the city standard details and construction requirements. Any street cuts or openings shall be restored per BGMC 12.118.070, 12.118.130, and the city’s standard details and warranted for two years after the work has been completed. Any settlement or failure of the surface within two years shall be deemed conclusive evidence of defective work by the permittee.

D. The surety bond shall guarantee, to the satisfaction of the city:

1. Timely completion of construction;

2. Construction in compliance with applicable plans, permits, technical codes, and standards;

3. Proper location of the facilities as specified by the city;

4. Restoration of the rights-of-way and any other property affected by the construction;

5. The submission of as-built drawings after completion of the work; and

6. Timely payment and satisfaction of all claims, demands or liens for labor, material or services provided in connection with the work. (Ord. 19-04 § 1 (part), 2019)

12.125.410 Coordination of construction activities.

All grantees are required to cooperate with the city and with each other.

A. Each grantee shall meet with the city, other grantees, and users of the rights-of-way annually or as determined by the city to schedule and coordinate construction in rights-of-way.

B. All construction locations, activities, and schedules shall be coordinated, as ordered by the director, to minimize public inconvenience, disruption, or damages. (Ord. 19-04 § 1 (part), 2019)

12.125.420 Assignments or transfers of grant of franchise.

A. This section applies to noncable franchises. A franchise may not be directly or indirectly assigned, transferred, or disposed of by sale, lease, merger, consolidation or other act of grantee, by operation of law or otherwise, unless prompt written notice is provided to the city within sixty days of the assignment. In the case of transfer or assignment as security by mortgage or other security instrument in whole or in part to secure indebtedness, such notice shall not be required unless and until the secured party elects to realize upon the collateral. For purposes of this section, no assignment or transfer of a franchise shall be deemed to occur based on the public trading of grantee’s stock; provided, however, any tender offer, merger, or similar transaction resulting in a change of control shall be subject to the provisions of a franchise.

B. Any transactions which singularly or collectively result in a change of fifty percent or more of the ownership or working control (for example, management of grantee or its telecommunications facilities) of the grantee or of the ownership or working control of the grantee’s telecommunications facilities within the city, or of the ownership or working control having ownership or working control of the grantee or of the grantee’s telecommunications facilities within the city, or of control of the capacity or bandwidth of the grantee’s telecommunications facilities within the city, shall be considered an assignment or transfer requiring notice to the city pursuant to a franchise. Such transactions between affiliated entities are not exempt from notice requirements. A grantee shall notify the city of any proposed change in, or transfer of, or acquisition by any other party of control of a grantee within sixty days following the closing of the transaction. (Ord. 19-04 § 1 (part), 2019)

12.125.430 Revocation or termination of grant of franchise.

A franchise granted by the city to use or occupy rights-of-way may be revoked for any one or more of the following reasons:

A. Construction or operation at an unauthorized location;

B. Unauthorized transfer of control of the grantee;

C. Unauthorized assignment of a franchise;

D. Unauthorized sale, assignment or transfer of the grantee’s franchise assets or an interest therein;

E. Misrepresentation or lack of candor by or on behalf of a grantee in any application to the city;

F. Abandonment of telecommunications facilities in the rights-of-way;

G. Failure to relocate or remove facilities as required in this chapter;

H. Failure to pay taxes, compensation, fees, or costs when and as due the city;

I. Insolvency or bankruptcy of the grantee;

J. Violation of a material provision of this chapter; or

K. Violation of a material term of a franchise. (Ord. 19-04 § 1 (part), 2019)

12.125.440 Notice and duty to cure.

In the event that the director believes that grounds exist for revocation of a franchise, the grantee shall be given written notice of the apparent violation or noncompliance, be provided a short and concise statement of the nature and general facts of the violation or noncompliance, and be given a reasonable period of time not exceeding thirty days to furnish evidence that:

A. Corrective action has been, or is being, actively and expeditiously pursued to remedy the violation or noncompliance.

B. Rebuts the alleged violation or noncompliance.

C. It would be in the public interest to impose some monetary damages, penalty or sanction less than revocation. (Ord. 19-04 § 1 (part), 2019)

12.125.450 Revocation hearing.

In the event that a grantee fails to provide evidence reasonably satisfactory, as provided hereunder, to the director, he/she shall refer the apparent violation or noncompliance to the city council. The city council shall provide the grantee with notice and a reasonable opportunity to be heard concerning the matter. (Ord. 19-04 § 1 (part), 2019)

Article IV. Fees

12.125.460 Application and review fee.

Any applicant for a franchise pursuant to this chapter shall pay an application and review fee or fee deposit in an amount as determined by the city council and adopted by resolution. This application and review fee covers the costs associated with the city’s initial review of the application; provided, however, that the applicant shall be required to pay all necessary permit fees. This application and review fee shall be deposited with the city as part of the application filed pursuant to this chapter. (Ord. 19-04 § 1 (part), 2019)

12.125.470 Refund.

An applicant whose franchise application has been withdrawn, abandoned or denied shall, within sixty days of its application and review fee payment, be refunded the balance of its deposit under this section, less all ascertainable costs and expenses incurred by the city in connection with the application. (Ord. 19-04 § 1 (part), 2019)

12.125.480 Other city costs.

All grantees shall, within thirty days after written demand therefor, reimburse the city for all direct and indirect costs and expenses incurred by the city in connection with any grant, modification, amendment, renewal or transfer of any franchise that was not covered by the initial review fee and deposit. (Ord. 19-04 § 1 (part), 2019)

12.125.490 Right-of-way permit fee.

Prior to issuance of a right-of-way permit, if required, the permittee shall pay a permit fee in an amount as determined by the city council and adopted by resolution. (Ord. 19-04 § 1 (part), 2019)