Chapter 11.01 GENERAL PROVISIONS

A. Establish a local policy concerning telecommunications systems, cable systems, open video systems, and private communication systems for use of the public rights-of-way;

B. Establish a policy that promotes availability of high-quality and diverse telecommunications services to city residents, businesses, the city, and other public institutions; promotes the availability of diverse, multimedia information resources to the community; provides for the development of a communications infrastructure that provides opportunities for more open government, enhancing educational opportunities throughout the community, providing public access to the communications infrastructure, and building a stronger community; while ensuring that the city has the authority to act to protect the public, safety, and welfare in the face of a rapidly changing industry that is placing increasing demand on public resources;

C. Establish clear and nondiscriminatory local guidelines, standards and time frames for the exercise of local authority with respect to the regulation of the use of public rights-of-way by telecommunications operators, cable operators, open video system operators, private communication operators, and resellers, and their respective facilities and licenses;

D. Promote competition in communications;

E. Minimize unnecessary local regulation of providers and services;

F. Encourage the provision of advanced and competitive telecommunications, cable or open video system services on the widest possible basis to the businesses, institutions and residents of the city;

G. Permit and manage reasonable access to the public rights-of-way of the city for communications purposes on a competitively neutral basis, to the extent required by law;

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

I. Assure 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;

J. Secure fair and reasonable compensation to the city and the residents of the city, in a nondiscriminatory manner, for permitting private use of the public rights-of-way;

K. Encourage economic development while preserving aesthetic and other community values and preventing proliferation of above ground facilities;

L. Assure that all persons providing telecommunications, cable, or open video facilities or services within the city comply with the ordinances, rules and regulations of the city;

M. Ensure the ability of the city to obtain sufficient information from persons subject to its jurisdiction to enable effective decisions regarding their access to city rights-of-way and effective management of activity in the rights-of-way;

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

O. Enable the city to discharge its public trust consistent with rapidly evolving federal and state regulatory policies, industry competition and technological development;

P. Reserve to the city and provide for the fullest exercise possible of the authority and discretion of the city to require that:

1. Facilities are installed and maintained within the public rights-of-way in such manner and at such points so as not to inconvenience the public use of the public rights-of-way or to adversely affect the public safety and welfare;

2. All noncity users of the rights-of-way shall be required to reimburse and hold harmless the city for the actual costs incurred by the city by reason of the construction or presence in the public rights-of-way of the facilities of such other users. (Ord. 1402 § 1(11.01.1), 2001)

11.01.020 Policy guidelines.

The administration of this title shall be governed by the following telecommunications and video programming policy guidelines:

A. The city of Fife supports efforts to establish an open, competitive marketplace for telecommunications and video programming services. The city promotes and encourages competition for voice, data, video, and video programming services that make the latest and best technology available and keep service prices affordable for all city residents and businesses. An integral component of this open marketplace is the consistent application of regulations to all telecommunications and video programming providers and the preservation of local authority over matters of local impact.

B. The following policy guidelines express the commitment of the city to support telecommunications and video programming services and to manage its rights-of-way proactively while balancing the interests and needs of the community:

1. The city will manage access to the public rights-of-way for telecommunications purposes in a nondiscriminatory, competitively neutral and nonexclusive way to the extent required under applicable law and, to the extent allowed under applicable law, to receive fair compensation. The city will also manage access to its public rights-of-way for cable service purposes in a nondiscriminatory, competitively neutral and nonexclusive way to the extent required by applicable law and, to the extent allowed by applicable law, to receive fair compensation.

a. The public interest will be protected by collecting full and fair market compensation, associated fees, taxes, administrative costs, and construction costs for use of the rights-of-way.

2. Telecommunications and video programming franchises will be managed to preserve the integrity of the city’s infrastructure, ensure efficient use of city property and ensure compliance with city ordinances, rules and regulations.

a. Minimal disruption of public property will be ensured.

b. Telecommunications and cable service providers will be required to place their facilities underground in accordance with city policies.

3. Investments by telecommunications and video programming providers will be encouraged in order to enhance economic development programs and provide jobs, opportunities, and choices for its citizens.

a. Public and private partnerships are encouraged to meet public service needs and to actively pursue state, federal, and private grant funding that offers public benefit in advanced telecommunications.

4. Universal access to telecommunications and video programming services is encouraged for all residents and businesses.

5. In order to effectively manage and regulate the use of public rights-of-way by private entities in the best interests of the city and its citizens it is necessary for the city to reserve and exercise all legislative, administrative and discretionary authority it may have to the full extent allowed or not prohibited by law and nothing in this title shall be construed to diminish or in any way to limit the discretionary, administrative or legislative authority of the city and its officials as respects the management and use of the city’s public rights-of-way or in respect to the granting, delaying or denying any franchise, permit or license. (Ord. 1402 § 1(11.01.2), 2001)

11.01.030 Definitions.

A. Generally. For the purposes of this title, the following terms, phrases, words, and abbreviations shall have the meanings given herein, unless otherwise expressly stated. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number, and the masculine gender includes the feminine gender. The words “shall” and “will” are mandatory, and “may” is permissive. Unless otherwise expressly stated, words not defined in this title shall be construed consistent with Title 47 of the United States Code (U.S.C.), and, if not defined therein, their common and ordinary meaning. References to governmental entities (whether persons or entities) refer to those entities or their successors in authority. If specific provisions of law referred to herein are renumbered, then the reference shall be read to refer to the renumbered provision. References to laws, ordinances or regulations shall be interpreted broadly to cover government actions, however nominated, and include laws, ordinances and regulations now in force or hereinafter enacted or amended.

B. “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.

C. “Application fee” means the charge specified in FMC 11.01.110(A) and designed to recover the city’s actual costs in processing applications for franchises or licenses, including applications for the transfer thereof.

D. “Cable service” means:

1. The one-way transmission to subscribers of (a) video programming, or (b) other programming service; and

2. Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

E. “Cable system” means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include:

1. A facility that serves only to retransmit the television signals of one or more television broadcast stations;

2. A facility that serves subscribers without using any public right-of-way;

3. A facility of a common carrier which is subject, in whole or in part, to the provisions of Title II (Common Carriers) of the Communications Act of 1934, as amended, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services;

4. Any facilities of any electric utility used solely for operating its electric utility systems; or

5. An open video system that is certified by the FCC. A reference to a cable system includes pedestals, equipment enclosures (such as equipment cabinets), amplifiers, power guards, nodes, cables, fiber optics and other equipment necessary to operate the cable system.

F. “City” means the city of Fife and all departments, divisions, and agencies thereof.

G. “City manager” means the city manager or the city manager’s designee.

H. “Communications facility” means a device which alone or as part of an aggregation of devices is capable of transmitting signals from place to place.

I. “Communications system” refers to a telecommunications system, cable system, or open video system.

J. “Construction, operation or repair” and similar formulations of that term means the named actions interpreted broadly, encompassing, among other things, installation, extension, maintenance, replacement of components, relocation, undergrounding, grading, site preparation, adjusting, testing, make-ready, and excavation.

K. “FCC” means the Federal Communications Commission or its successor.

L. “Franchise” refers to the authorization granted by the city to an operator of a telecommunications system, cable system, or an open video system under this title giving the operator the nonexclusive right to occupy the space, or use facilities upon, across, beneath, or over any public right-of-way in the city, to provide a specified service within a franchise area. Any franchise shall be issued in the form of an ordinance, and must be accepted by the franchisee to become effective in the time and manner specified in the Fife Municipal Code, or the franchise ordinance. Such franchise shall not include or be a substitute for:

1. Any other permit or authorization required for the privilege of transacting and carrying on a business within the city required by the ordinances and laws of the city;

2. Any permit, agreement or authorization required in connection with operations on or in public streets or property, including by way of example and not limitation, street cut permits;

3. Any permits or agreements for occupying any other property of the city or private entities to which access is not specifically granted by the franchise including, without limitation, permits and agreements for placing devices on or in poles, conduits, other structures, or railroad easements, whether owned by the city, or a private entity; or

4. The right to place devices in the right-of-way, such as pay telephones, for end user use in terminating or originating transmissions.

By way of example, and without limiting the foregoing, this title shall not be read to diminish or in any way affect the authority of the city to control and charge for the use of the city’s real estate, fixtures or personal property. Therefore, any person who desires to use such property must obtain additional approvals, franchises, or agreements for that purpose, as may be required by the city.

M. “Franchise area” means the area of the city that a franchisee is authorized to serve by the terms of its franchise or by operation of law.

N. “Franchisee” refers to a person holding a franchise granted by city ordinance.

O. “Gross revenues” means any and all revenue, of any kind, nature or form, as more particularly defined under the succeeding chapters in this title.

P. “License” refers to the legal authorization, terminable at will, to use a particular, discrete, and limited portion of the public rights-of-way to construct, operate, or repair a communications facility or a private communications system. The term “license” shall not mean or include:

1. Any other permit or authorization required for the privilege of transacting and carrying on a business within the city required by the ordinances and laws of the city;

2. Any permit, agreement, or authorization required in connection with operations on public streets or property, including by way of example and not limitation, street cut permits;

3. Any permits or agreements for occupying any other property of the city or private entities to which access is not specifically granted by the license including, without limitation, permits and agreements for placing devices on or in poles, conduits, other structures, or railroad easements, whether owned by the city, or a private entity; or

4. The right to place devices in the right-of-way, such as pay telephones, for end-user use in originating and terminating transmissions.

Q. “Open video system” or “OVS” refers to a facility consisting of a set of transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service, which includes video programming, which is provided to multiple subscribers within a community, and which the Federal Communications Commission or its successor has certified as compliant with Part 76 of its rules, 47 CFR, Part 76, as amended from time to time.

R. “Operator” when used with reference to a system, refers to a person who (1) provides service over a communications system and directly or through one or more affiliates owns a significant interest in such facility, or (2) otherwise controls or is responsible for, through any arrangement, the management and operation of such a facility. A person that operates under agreement a telecommunications system or a specific portion of a telecommunications system to provide telecommunications services shall be treated as an operator for purposes of this title.

S. “Overhead facilities” refers to electric utility and communications facilities located above the surface of the ground, including the underground supports and foundations for such facilities.

T. “Person” includes any individual, corporation, partnership, association, joint stock company, trust, or any other legal entity, but not the city.

U. “Private communications system” means a facility placed in whole or in part in the public rights-of-way for the provision of communications in connection with a person’s business, but not encompassing in any respect the provision of telecommunications services.

V. “Private communications system owner” means a person that owns or leases a private communications system.

W. “Programmer” refers to any person who provides video programming to subscribers over a cable system or an open video system, excluding video programming delivered not for a charge over a public, educational, or governmental (“PEG”) channel.

X. “Public rights-of-way” mean land acquired or dedicated for public roads and streets which under the applicable ordinances and laws the city has authority to grant franchises, permits or licenses for use thereof or has regulatory authority thereover and as may be more specifically defined in the franchise, permit or license granting any right to or use thereof but for purposes of this title does not include (1) state highways, (2) land dedicated for roads, streets and highways not open and not improved for motor vehicle use by the public, (3) structures such as, but not limited to, poles and conduits located within the right-of-way, (4) parks and open space, and (5) publicly owned shorelines or harbor areas.

Y. “Reseller” refers to any person who resells a telecommunications service, for which he makes a separate charge, provided over a telecommunications system, where that person does not own or lease the underlying telecommunications system used for the transmission.

Z. “Telecommunications service” means the transmission for hire of information in electronic or optical form, including, but not limited to, voice, video, or data, whether or not the transmission medium is owned by the provider itself. Telecommunications service includes telephone service but does not include cable service or over-the-air broadcasts to the public-at-large from facilities licensed by the Federal Communications Commission or any successor thereto.

AA. “Telecommunications system” means a tangible facility that is used to provide one or more telecommunications services, any portion of which occupies public rights-of-way. The term “telecommunications system” by way of example, and not limitation, includes wires, equipment cabinets, guys, conduit, radio transmitting towers, poles, other supporting structures, and associated and appurtenant facilities used to transmit telecommunications signals. The term “telecommunications system” includes all devices mounted on light poles in the public rights-of-way through which telecommunications services are originated or terminated. An open video system is not a telecommunications system to the extent that it provides only video services; a cable system is not a telecommunications system to the extent that it provides only cable service.

BB. “Title,” when used in the context of referring to this title of the Fife Municipal Code, shall mean Title 11 of the Fife Municipal Code and Chapters 11.01 through 11.07 FMC.

CC. “Transfer” means any transaction in which:

1. All or a portion of the communications system is sold or assigned (except a sale or assignment that results in removal of a particular portion of the facility from the public rights-of-way);

2. There is any change, acquisition, or direct or indirect transfer of control of the franchisee or licensee; or

3. The rights and/or obligations held by the franchisee, permittee or licensee under the franchise, permit or license are transferred, sold, assigned, or leased, in whole or in part, directly or indirectly, to another party. It will be presumed, except where expressly provided otherwise in a franchise, permit or license, that a change of control within the meaning of subsection (CC)(2) of this section has occurred: where a change in voting interest results in a person, or persons acting in concert, obtaining a 50 percent or greater interest in franchisee, permittee or licensee; or a change in voting interest results in a person, or persons acting in concert, that held 50 percent or greater interest reducing that interest to below 50 percent; or which adversely affects the ability of the franchisee, permittee or licensee to carry out its franchise, permit or license obligations; or where there is a change in actual working control. In succeeding provisions of this title, all these activities are referred to as franchise transfers.

DD. “Underground facilities” refers to electric utility and communications facilities located under the surface of the ground, excluding the underground foundations or supports for overhead facilities. (Ord. 1402 § 1(11.01.3), 2001)

Article II. Franchise Requirements

11.01.040 Purpose and characteristics.

In order to enable the city to treat persons providing similar services similarly, as may be appropriate to comply with applicable law and considering differences in circumstances, and to comply with requirements of federal law which may require the city to separate its authority over cable systems from its authority over other providers of telecommunications services, the city requires individual franchises for the provision of particular services. The revocation of a franchise for one particular service in and of itself will not affect the authority of a franchise holder to continue to occupy the rights-of-way to provide services for which it holds other franchises. No franchise shall be exclusive. The issuance of a franchise shall not affect the city’s right to itself construct, operate, or repair any communications facility, with or without a franchise. (Ord. 1402 § 1(11.01.4.1), 2001)

11.01.050 Franchise requirement.

An operator of a cable system must obtain a franchise prior to constructing a cable system or providing cable service. An operator of a telecommunications facility must obtain a franchise prior to constructing a telecommunications facility or providing telecommunications services. An operator of an open video system must obtain a franchise before constructing an open video system or providing services via an open video system. The fact that a particular franchised communications facility may be used for multiple purposes does not obviate the need to obtain a franchise for other purposes, unless applicable federal or state law prohibits the city from requiring such additional franchise. By way of illustration and not limitation, unless the requirement is prohibited by applicable federal or state law, a cable operator of a cable system must obtain a cable franchise and, should it intend to provide telecommunications services over the same facilities, must also obtain a telecommunications franchise. A reseller or a programmer uses the public rights-of-way subject to the condition that it may be required to obtain a license upon request of the city, and to pay compensation for such use as required by the city, subject to limits imposed by state law. No franchise shall become effective without the franchisee signing an acceptance of the ordinance which grants it the franchise. (Ord. 1402 § 1(11.01.4.2), 2001)

11.01.060 Exceptions.

Subject to the requirements of applicable law, a franchise requirement and the franchise application process may be waived in whole or in part for a telecommunications system where the city determines the use of the public rights-of-way is de minimis (i.e., uses only a short distance of street or occupies only a small isolated area of a specific street). For such facilities, the city may issue a license. In addition, every private communications system owner must obtain a license. Every license shall include or be read to include, as if stated therein, a reservation of rights by the city to require the licensee to obtain a franchise if the city determines that the license is being used in a manner that creates a competitive advantage for that operator or otherwise unduly discriminates in favor of such entity. In any case, the license must provide that if limitations of the license are violated, the entity must pay at least the corresponding maximum franchise fee required by this title. (Ord. 1402 § 1(11.01.4.3), 2001)

11.01.070 Additional exceptions.

The city does hereby request that any operator now providing telecommunications service within the city over an existing telecommunication system within the public rights-of-way of the city without having a franchise from the city granting and allowing such use at the time this provision becomes effective apply for a franchise from the city for such use of the public rights-of-way. In the event such operator fails to request a franchise within 30 days from the effective date of this provision of the FMC and such operator submits evidence satisfactory to the city that it is involved in pending litigation wherein the operator claims the operator has an existing state-wide grant to occupy the public right-of-way or the operator otherwise submits a nonfrivolous and documented claim that it has an existing state-wide grant to occupy public right-of-way, including streets in the city of Fife, then in such event the requirement for obtaining a franchise for the continued use of public right-of-way in Fife for existing wireline facilities will be suspended until there is a final judicial decision resolving the issue or the city by decision of its city council determines that the best interests of the city will be served by terminating the suspension of the requirement to obtain a franchise. The suspension of any franchise required hereunder shall not constitute a consent or permission by the city to occupy the public right-of-way by the operator for any use, nor shall it be construed as a waiver of any right of the city to require the operator to hereafter at any time to obtain a franchise or to remove any or all of its facilities in the public right-of-way at any time upon its failure to obtain a franchise. In the event an operator fails to obtain a franchise as herein requested and the franchise requirement is suspended as herein provided then the operator shall be required to apply for and obtain a special street use permit as provided by Chapter 11.07 FMC prior to constructing or placing any wireline telecommunication facility in the public right-of-way except for those facilities which the operator is authorized to construct or place pursuant to a franchise obtained from the city. (Ord. 1402 § 1(11.01.4.4), 2001)

11.01.080 Nature of grant.

A. Neither a franchise nor a license shall convey title, equitable or legal, in the public rights-of-way. The right granted is only the right to occupy those portions of the public rights-of-way to which the city has the right to grant access, for the purposes and for the period stated in the franchise or license, and, subject to the limitations in this section and elsewhere in this title, the right may not be subdivided or subleased. A franchise, permit or license shall not grant a vested right for any facility to be located or to remain at any specific location in the public right-of-way and any right, permission or consent to occupy any location in the public right-of-way shall be revocable and terminable at the discretion of the city and the facility therein removed at the cost of the operator in order to allow free and unencumbered use of the public right-of-way for public work or other public purpose as may be in the best public or municipal interest as determined by the city. Every franchise shall be:

1. Deemed to include all the provisions that are required to be in a franchise under this title, as if fully set forth in the franchise;

2. Deemed to provide for forfeiture under the circumstances set forth in the provisions of this title and any franchise ordinance thereunder; and

3. Construed to exclude the grant of any rights in any easement granted for or in favor of any city or public utility facilities or operations, unless the franchise or license shall expressly state otherwise.

B. No reference herein, or in any franchise, permit or license, to a public right-of-way shall be deemed to be a representation or guarantee by the city that its interest or other right to control the use of such property is sufficient to permit its use for such purposes, and a franchise shall be deemed to grant no more than those rights which the city may have the undisputed right and power to give. (Ord. 1402 § 1(11.01.4.5), 2001)

Article III. Cost Recovery

11.01.090 Purpose.

To ensure that the city, to the extent not prohibited by state and/or federal law, is compensated for the rights granted, and receives fair market value for use of public rights-of-way over which it exercises control, or which is held in public trust, and in order that the city is compensated for expenses arising from the use of those public rights-of-way, the city shall require persons using its public rights-of-way to provide cable service, telecommunications service, open video system services, and private communications system owners to pay compensation as provided in this title. (Ord. 1402 § 1(11.01.5.1), 2001)

11.01.100 Compensation for use.

Every operator of a communications system shall pay a franchise fee or license fee as required by this title except as provided in FMC 11.01.130. Every operator that is subject to the exceptions in FMC 11.01.130 and every reseller or programmer uses the rights-of-way subject to the condition that, should the exception ever be eliminated or modified, that operator or reseller or programmer shall be obligated to pay such compensation that would otherwise be required in the absence of the exception. (Ord. 1402 § 1(11.01.5.2), 2001)

11.01.110 Payments required.

Except as otherwise expressly provided in this title, every cable operator, every operator of a telecommunications system, every operator of an open video system, and every private communications owner must:

A. Pay an application fee for the consideration of an application for issuance, renewal, transfer, or modification of a franchise or license in an amount that allows the city to recover its actual administrative expenses incurred in receiving, reviewing, processing, considering, denying, or approving the issuance, renewal, transfer, or modification of a franchise or license. The initial deposit of the application fee for the consideration of an application for issuance, renewal, transfer, or modification of a franchise shall be submitted with the application or for a license in the amount as set forth in the current fee schedule. The city may, as costs are incurred, draw upon the deposit to recover its administrative costs, including, but not limited to, the reasonable cost of outside consultants and legal counsel retained by the city related to the city’s consideration and processing of a franchise, permit or license. The city manager, at any time, may require the applicant to deposit additional sums if it appears that the initial deposit or subsequent deposits will be exhausted prior to the final action by the city relating to the consideration by the city of an application for issuance, renewal, transfer, or modification of a franchise or license. In the event of denial of a franchise, permit or license by the city or the refusal of the applicant to accept the franchise, permit or license as approved by the city, the cost to the city for any appeal by the applicant, including, but not limited to, reasonable costs for outside consultants, attorney fees and trial expenses shall be paid by the applicant, if an appeal is unsuccessful. This requirement to pay the administrative costs is pursuant to the police powers of the city and as authorized by law and any obligation to pay such costs, including attorney fees, shall not be construed to arise by contract or to be incurred to enforce the provisions of a contract. The applicant will not be entitled to further consideration by the city of its requested action until such time as the additional deposit required by the city manager has been deposited with the city. In the event the amount of the deposit of an applicant is in excess of the amount of the administrative expenses of the city related to the action requested, then the applicant shall be entitled to a return of any such excess amount.

The current fee schedule relating to this section of the Fife Municipal Code is available at Fife City Hall and at the city of Fife’s website: www.cityoffife.org.

B. Pay all other fees or payments required under this title or other applicable laws, ordinances or regulations.

C. In the event the city determines by resolution or ordinance that an impact assessment shall be assessable, pay such impact assessment to reflect, as far as permissible under applicable law, the damage caused or expected to be caused to the rights-of-way by the installation of the facility. (Ord. 1783 § 1 (Exh. A), 2012; Ord. 1777 § 1 (Exh. A), 2012; Ord. 1402 § 1(11.01.5.3), 2001)

11.01.120 Payment of costs.

Nothing in this section relieves any communications system operator of its obligation to bear costs associated with its operations, including but not limited to costs it incurs in moving facilities at the direction of the city. (Ord. 1402 § 1(11.01.5.4), 2001)

11.01.130 Exceptions.

The franchise fees required under this title need not be paid:

A. If state law requires otherwise, or during any transition period as described in Article VII of this chapter for a current franchise holder. This exception shall be read narrowly; an operator that is engaged in one line of business that is subject to this exception shall not be excused from paying the franchise fee for its other lines of business. In cases subject to this exception, the highest permissible fee shall be paid.

B. In the case of a cable system, a telecommunications system, or an open video system that is not subject to an exception under FMC 11.01.060 or subsection A of this section, and is not designed to provide service in the city, and that does not provide service in the city, or where a particular facility is licensed pursuant to FMC 11.01.060, the city may establish a fee in lieu of the fees in the franchise specified in this title that recovers an amount at least equivalent to the market value of the property used in the city. (Ord. 1402 § 1(11.01.5.5), 2001)

11.01.140 Application to persons that provide different types of services.

The fact that a fee is paid on one type of service provided over a communications system does not excuse an operator from its duty to pay fees on other types of services provided over that facility as required by this title. As an example, and not as a limitation of the foregoing, a cable operator that pays a franchise fee on revenues derived from the provision of cable services must pay a fee under Chapter 11.02 FMC (Special Rules Applicable to Telecommunications Facilities and Telecommunications Service Providers) to the extent that it provides telecommunications services; likewise, the operator of a telecommunications system must pay a franchise fee under Chapter 11.04 FMC to the extent it provides cable services to subscribers via a cable system. (Ord. 1402 § 1(11.01.5.6), 2001)

11.01.150 General rules for payment of fees and assessments.

A. Unless otherwise specified in a franchise or a license, franchise and license fees shall be paid to the city monthly, and not later than 25 days after the end of the month for which the fee or assessment is owed.

B. Unless a franchise or license provides otherwise, each franchise or license fee payment shall be accompanied by a statement showing the manner in which the fee was calculated. The statement shall be in a form approved by the city.

C. No acceptance by the city of any franchise or license fee shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance of such franchise fee payment be construed as a release of any claim the city may have for additional sums payable.

D. The franchise or license fee payment is not a payment in lieu of any tax, fee or other assessment except as specifically provided in this title, or as required by applicable law. By way of example, and not limitation, permit fees and business license taxes are not waived and remain applicable.

E. Within 90 days following the end of the calendar year, each person which paid a franchise fee based upon gross revenues shall submit a statement, certified as true by the chief financial officer of such person, setting forth gross revenues of the communications system, by category, and describing what revenues were included and excluded in the fee calculation, and any adjustments made to gross revenues. If payments are late, in addition to paying any applicable penalties or damages, the person that owes the fee shall pay interest on the amount owed at the rate of one percent per month or fraction thereof compounded monthly.

F. Notwithstanding the foregoing, in the event that a person that is obligated to pay a fee ceases to provide service for any reason (including as a result of a transfer), such person shall make a final payment of any amounts owed to the city within 30 calendar days of the date its operations in the city cease, and shall provide a statement of gross revenues for the calendar year through the date operations ceased which statement shall contain the information and certification required by subsection E of this section. (Ord. 1402 § 1(11.01.5.7), 2001)

Article IV. General Conditions Upon Use of Public Rights-of-Way

11.01.160 Responsibility for costs.

Except as expressly provided otherwise, any act that a communications system operator, its contractors or subcontractors are required to perform under this article shall be performed at their cost. If a communications system operator fails to perform work that it is required to perform within the time provided for performance, the city may perform the work and bill the communications system operator therefor. The communications system operator shall pay the amounts billed within 30 days. (Ord. 1402 § 1(11.01.6.1), 2001)

11.01.170 Construction procedures and placement of facilities – Obligation to minimize interference with use of public rights-of-way.

A. The construction, operation, and repair of communications facilities are subject to the supervision of all of the authorities of the city that have jurisdiction in such matters and shall be performed in compliance with all laws, ordinances, departmental rules and regulations and practices affecting such system. By way of example, and not limitation, this includes zoning codes and safety codes and city construction standards, including the most current version of the Standard Specifications for Road, Bridge and Municipal Construction, as prepared by the Washington State Department of Transportation (WSDOT) and the Washington State Chapter of American Public Works Association (APWA), the most current version of the APWA Amendments to Division One, and the most current version of the city of Fife amendments thereto. In addition, the construction, operation, and repair shall be performed in a manner consistent with high industry standards. Persons engaged in the construction, operation, or repair of communications facilities shall exercise reasonable care in the performance of all their activities and shall use commonly accepted methods and devices for preventing failures and accidents that are likely to cause damage, injury, or nuisance to the public or to property.

B. Construction, operation, or repair of a communications system shall not commence until all required permits have been properly filed for and obtained from the proper city officials and all required permits and associated fees paid. In any permit so issued, the city may impose as a condition of the granting of the permit such conditions and regulations as may be necessary to the management of the rights-of-way, including, by way of example and not limitation, for the purpose of protecting any structures in the public rights-of-way, for the proper restoration of such public rights-of-way and structures, and for the protection of the city and the public and the continuity of pedestrian and vehicular traffic. A franchise, license or permit or other applicable provision of the Fife Municipal Code may provide for the conditions under which certain emergency work may be undertaken prior to obtaining certain permits where such work is necessary to immediately remedy an emergency situation involving an imminent danger to health, safety or property or to temporarily restore communication system services which have been disrupted by storms, earthquakes, riots or other unexpected accidents or phenomenon; provided, however, that the communication system operator undertaking such emergency work shall be required to (1) give notice to the city of the commencement of the emergency work as quickly as practical, (2) apply for the permits which would otherwise be required for such work by the next business day from the commencement of such work, and (3) conform any work performed prior to the approval of the required permit and to carry out any other work in the area involved in accordance with the requirements of the permit.

C. Operators of communications systems must follow city-established requirements for placement of facilities in public rights-of-way, including the specific location of facilities in the public rights-of-way, and must in any event install facilities in a manner that minimizes interference with the use of the public rights-of-way by others, including others that may be installing communications facilities. The city may require that facilities be installed at a particular time, at a specific place, or in a particular manner as a condition of access to a particular right-of-way, may deny access if an operator is not willing to comply with the city’s requirements, and may remove, or require removal of, any facility that is not installed in compliance with the requirements established by the city, or which is installed without prior city approval of the time, place, or manner of installation and charge the operator of the facility for all the costs associated with removal, and may require a person using the rights-of-way to cooperate with others to minimize adverse impacts on the rights-of-way through joint trenching, joint use of facilities and other arrangements.

D. Upon order of the city manager, all work which does not comply with the permit, the approved plans or specifications for the work, or the requirements of this title or other applicable law shall be removed.

E. Unless otherwise agreed or provided in a franchise, license or permit a communication systems operator shall be required to reimburse and hold harmless the city for any cost or expense reasonably incurred by the city in the planning, construction, installing, altering or implementing any public work as a result of the construction or the presence in the public right-of-way of the facility of such communication system operator.

F. Additional Conduit for Use by City and Others. To minimize disruption of public passage or infrastructure, to forestall or relieve exhaustion of rights-of-way capacity, to protect environmentally sensitive areas, to prevent additional cost to future users of the public rights-of-way by reason of the placement of communication facilities or to meet other foreseeable needs of the city, the city may require as a condition of issuing any right-of-way permit for installation of communication facilities that the franchisee, licensee or permittee provide conduit or conduit capacity and related access facilities in excess of its own present and reasonably foreseeable requirements for the purpose of accommodating the city and/or other franchisees and licensees. This shall be provided at no cost to the city and under terms and conditions as may be agreed to, or in any event under terms and conditions not prohibited by law and at a maximum cost to the city not in excess of that required by law. If the franchisee, licensee or permittee does not provide such additional facilities under an agreement and at a cost satisfactory to the city, then the franchisee, licensee, or permittee may be obligated to remove, modify or relocate its facilities as necessary as determined by the city engineer to allow any future user to locate its facilities in the public right-of-way at no greater cost than would have been incurred by such future user if the facilities of such franchisee, licensee or permittee had not been placed in the public right-of-way.

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

1. Communication system facilities shall be installed and maintained underground (including facilities such as drops which cross private property) and in full compliance with any and all ordinances and regulations of the city now or hereafter in effect except that (a) those portions of wireless communication facilities which must be above ground in order to function for their intended purpose may be located above ground, and (b) those portions of other communication facilities (wireline facilities) which are allowed to be placed above ground under other provisions of the Fife Municipal Code, city ordinances or regulations may be located above ground if, in addition to complying with any other requirement imposed, the communications system operator agrees in a form satisfactory to the city to place any such facilities underground at the communication system operator’s cost at any time requested by the city in accordance with any regulatory ordinances and underground policies which the city may adopt.

2. No new poles or extenders on poles to increase capacity shall be allowed in the public rights-of-way and all new overhead facilities of any nature are prohibited unless specifically allowed under this chapter or other applicable provisions of the Fife Municipal Code.

3. The specific location within the right-of-way and the method of installing facilities underground or overhead will be subject to approval by the city engineer. Cutting of pavement in the public right-of-way shall be prohibited where the city engineer approves locating underground facilities in the unimproved portions of the right-of-way or in the sidewalk areas or requires alternative methods for undergrounding not requiring trenching or the cutting of pavement.

4. Cutting of pavement shall be prohibited in any event in a newly constructed or reconstructed street for a period of five years from the paving of such street or in a street where a trench was previously available for a period of three years from the date the trench was available. The city may require as a condition to the occupancy of the rights-of-way that communication facilities be located within existing underground ducts or conduits wherever the capacity exists; provided, however, the public works director may in his or her discretion permit pot-holing (subject to conditions to alleviate the harmful effects) where conduit is to be placed underground by means of directional boring and the person seeking permission has provided evidence satisfactory to the public works director that (a) such pot-holing is necessary to avoid interference with existing utilities, (b) such pot-holing is the only reasonable alternative available to locate existing utilities, and (c) such pot-holing will result in little or no visual or other detrimental impact to the street.

5. Undergrounding of Existing Facilities. Unless prohibited by law or unless provided otherwise under a franchise, license or permit, existing overhead communication facilities in the right-of-way shall be placed underground or removed from the public rights-of-way by the owner at no cost to the city when any of the following conditions or events occur: (a) when a street is being newly constructed or reconstructed; (b) when the existing poles need to be replaced or relocated in order to accommodate a public work as defined in FMC 11.01.180(A); (c) when the owners of existing poles underground or the poles are removed; (d) when a usable trench adjacent to existing overhead facilities is opened in the street along the street between two intersecting streets or for a distances of at least 1,000 feet where the distance between two intersecting streets is greater than such distance; (e) if required by any franchise, license, permit or other authorization as a condition for use of the public rights-of-way.

6. Nothing herein prohibits the city from ordering all communication systems to be placed underground in a particular area at any time, it being the intent that the number and extent of overhead facilities and the visual pollution resulting therefrom will, over time, be reduced and eventually, to the extent feasible, eliminated.

H. Any and all public rights-of-way, public property, or private property that is disturbed or damaged during the construction, operation, repair or removal of a communications facility shall be promptly repaired by the communications system operator that disturbed or damages the public rights-of-way, public property or private property. Public property and public right-of-way must be restored to the satisfaction of the city and to a condition as good or better than before the disturbance or damage occurred. A communication system operator shall continue to maintain the restored street area, which may consist of curb, gutter, sidewalk, pavement, or other restored appurtenances, in a condition as good as or better than the condition of the adjacent undisturbed area of the street for the life of the street (to the extent such maintenance or restoration is required (1) as a result of the restored street area being defective or otherwise inferior to the adjacent undisturbed area of the street, or (2) as a result of the presence of the facilities of the communication system operator) until the restored area is repaved or reconstructed by a different party, except when such repaving or reconstruction is a result of enforcement action by the city for the lack of such maintenance activity, unless (1) the assessment of the impact assessment under FMC 11.01.110(C) provides for an exemption, or (2) a franchise, license or permit specifically exempts the communication system operator from such obligation.

I. No tree trimming shall be performed without the permission of the city and other affected authorities, and any tree trimming must be performed in strict accordance with the city code.

J. Within 48 hours after notice from the city, a communications system operator shall remove any graffiti on any part of its communications system in the public rights-of-way (including by way of example and not limitation) equipment cabinets. If the operator fails to do so, the city may remove the graffiti and bill the operator for the cost thereof.

K. Wireless Communication Services Facilities.

1. Defined. “Wireless communication facilities” are those facilities which the city has authorized to be placed in the public rights-of-way and which are necessary for the provision of personal wireless services. “Personal wireless services” means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services as defined by federal law and regulations.

2. Location in Streets. After obtaining a franchise and meeting any other requirements under the Fife Municipal Code as presently existing or as hereafter amended and subject to any other applicable ordinances or regulations, wireless communication facilities may be located in the public rights-of-way subject to the following requirements:

a. Wireless communication facilities are prohibited in all public rights-of-way within the city except (i) those public rights-of-way classified as major arterials and located entirely within the boundaries of an area designated as a WCF permitted use overlay area under FMC 19.72.050, and (ii) a wireless communication facility which, together with all above ground antenna facilities, does not exceed 15 inches cubed in volume and does not extend above the structure to which it is attached, is not prohibited in the public right-of-way if it would not be prohibited by the Fife zoning code applicable to the area in which the wireless communication facility is proposed to be located;

b. Such wireless communication facilities may only be located in such public right-of-way consistent with the provisions of the franchise approved by the city council and subject to any other requirements of the FMC including but not limited to the requirements to submit an application for the siting of the wireless communication facilities and the obtaining of any permit required under Chapter 19.72 FMC or other applicable city codes or regulations;

c. Co-location on existing structures approved by the city is the only allowable installation when locating wireless communication facilities in the public rights-of-way; and

d. Only those portions of wireless communication facilities which must be above ground in order to function for their intended purpose may be located above ground.

3. No Vesting. A franchise, license or permit of any nature granted by the city permitting the location of a wireless communication facility within the public right-of-way shall not convey any title, equitable or legal, in the public right-of-way nor grant a vested or exclusive right for any facility to be located or to remain at any specific location in the public right-of-way and any right, permission or consent to occupy any specific location in the public right-of-way shall be revocable and terminable at the discretion of the city and the facility therein removed at the cost of the operator (a) in order to allow free and unencumbered use of the public right-of-way for public work, to allow removal or relocation of the structure to which the wireless communication facility is attached, or for any other public purpose as may be in the best public or municipal interest as determined by the city, or (b) where such removal is required by the city to comply with new or amended policies adopted by the city in governing the location and nature of wireless communication facilities in the public rights-of-way.

4. Construction Standards and Permits. All antennas and related equipment, facilities, or installations shall, at the time of construction or installation, meet or exceed all applicable American Public Works Association construction standards. Repair shall not be made to an existing antenna or its related equipment, facilities, and installations which will cause the existing antenna and related equipment, facilities, or installations to be in violation of the current American Public Works Association construction standards, nor shall any repair be made when such existing antenna or its related equipment, facilities, or installations are not in compliance with the current American Public Works Association construction standards. No person, firm, or corporation shall construct, repair, or install any wireless communication facility including but not limited to an antenna or its related equipment, facilities, or installations in the public rights-of-way, pursuant to subsection K of this section, without first having obtained a special installation permit to do so from the public works director. (Ord. 1859 § 19, 2014; Ord. 1402 § 1(11.01.6.2), 2001)

11.01.180 Relocation of facilities.

A. A communications system operator shall, at its own expense, by a time specified by the city, protect, support, temporarily disconnect, relocate, or remove any of its property when required by the city by reason of traffic conditions; public safety; public right-of-way construction; public right-of-way repair (including resurfacing or widening); operations of the city or other governmental entity in or upon the right-of-way; change of public right-of-way grade; construction, installation or repair of sewers, drains, water pipes, power lines, signal lines, tracks, or any other type of government-owned communications system, public work, public facility or improvement, or any government-owned utility; public right-of-way vacation; or for any other purpose where the work involved would be aided by the removal or relocation of the communications facility. Collectively, such matters are referred to below as the “public work.”

1. Except in the case of emergencies, the city shall provide written notice describing where the public work is to be performed as soon as practical but at least 30 days prior to the deadline by which a communications system operator must protect, support, temporarily disconnect, relocate or remove its facilities. A communications system operator may seek an extension of the time to perform such tasks where they cannot be performed in 30 days or by the completion time specified even with the exercise of its best efforts, and such request for an extension shall not be unreasonably refused.

2. In the event of an emergency, or where a communications facility creates or is contributing to an imminent danger to health, safety, or property, the city may protect, support, temporarily disconnect, remove, or relocate any or all parts of the communications facility without prior notice, and charge the communications system operator for costs incurred.

3. If a communication system operator does not comply with the requirements of FMC 11.01.170(E) and the applicable franchise, license or permit does not provide otherwise and if not prohibited by applicable law, the city shall have the right to revoke any right of a communications system operator to have its facilities remain at specific location in the public right-of-way at any time the city determines that the facilities of such communications system operator must be removed from their present location or from the street in order to facilitate a public work in the public right-of-way and upon such revocation of the franchise, license or permit of the communications system operator as to the affected designated facilities the communications system operator shall remove the same and restore the street at its cost.

B. If any person that is authorized to place facilities in the rights-of-way requests another communications system operator receiving the request to protect, support, temporarily disconnect, remove, or relocate its facilities to accommodate the construction, operation, or repair of the facilities of such other person, the communications system operator shall, after 30 days’ advance written notice, take action to effect the necessary changes requested. Unless the matter is governed by a valid contract or a state or federal law or regulation, or unless the communications facility that is being requested to move was not properly installed, the reasonable cost of the same shall be borne by the person requesting the protection, support, temporary disconnection, removal, or relocation and at no charge to the city, even if the city makes the request for such action.

C. A communications system operator shall, on the request of any person holding a valid permit issued by a governmental authority, temporarily raise or lower its wires to permit the moving of buildings or other objects. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same. A communications system operator shall be given not less than seven days’ advance notice to arrange for such temporary wire changes.

D. A communications system operator may abandon any property in place upon written notice to the city. However, if the city determines within 90 days of the receipt of notice of abandonment from the operator that the safety, appearance, functioning or use of the public rights-of-way and facilities in the public rights-of-way will be adversely affected, the operator must remove its property by a date specified by the city. (Ord. 2062 § 2, 2021; Ord. 1402 § 1(11.01.6.3), 2001)

11.01.190 Facility subject to inspection – Operator must provide information.

A. Every communications facility shall be subject to the right of periodic inspection and testing by the city to determine compliance with the provisions of this title, a franchise or license agreement, or other applicable law. The city shall have the right, upon request, to be notified and present when the communications system is tested by the operator to determine compliance with the provisions of this title, a franchise, license or permit, or applicable law where the city has enforcement authority. Each operator must respond to requests for information regarding its system and plans for the system as the city may from time to time issue, including requests for information regarding its plans for construction, operation and repair and the purposes for which the plant is being constructed, operated, or repaired to the extent such plant is or will be in the public right-of-way or has been or will be provided under any franchise, license or permit granted by or requested from the city.

B. Underground Services Alert. Each operator of a communications system that places facilities underground shall be a member of the regional notification center for subsurface installations (underground services alert) and shall field mark the locations of its underground communications facilities upon request. The operator shall locate its facilities for the city at no charge. (Ord. 1402 § 1(11.01.6.4), 2001)

11.01.200 Plans for and publicizing work.

A. Work shall be publicized as the city may direct from time to time. The publication of work may be used to notify the public and operators of other communications systems, of the impending work, in order to minimize inconvenience and disruption to the public and to allow joint use by others.

B. Each communications system owner shall provide the city a plan for any initial system construction, or for any substantial rebuild, upgrade or extension of its facility, which shall show its timetable for construction of each phase of the project, and the areas of the city that will be affected.

C. The city manager may from time to time, when the city receives application for a permit to use a particular route, or upon the city manager’s own initiative, designate by published order a route or proposed route for installation of communications facilities and may (1) require all persons who wish to place underground facilities along that route or any part thereof to install them during a specified period, and (2) otherwise prohibit placement of such facilities along the route or any part thereof for 36 months or for such other, longer period as is necessary to protect the public. (Ord. 1402 § 1(11.01.6.5), 2001)

Article V. Protection of the City and Residents

11.01.210 Indemnification.

No franchise or other authorization to use the rights-of-way issued to a communications system operator or a private communications system owner shall be valid or effective until and unless the city obtains an adequate indemnity from such operator. Unless otherwise agreed, in writing, adequate indemnity must at least include the following:

A. Release the city from and against any and all liability and responsibility in or arising out of the construction, operation or maintenance of the communications facility in the public right-of-way by the communications facility operator except for damages caused by the city’s sole negligence. Each communications facility operator must further agree not to sue or seek any money or damages from city in connection with the above mentioned matters;

B. Indemnify and hold harmless the city, its trustees, elected and appointed officers, agents, and employees, from and against any and all claims, demands, or causes of action of whatsoever kind or nature, and the resulting losses, costs, expenses, reasonable attorneys’ fees, liabilities, damages, orders, judgments, or decrees, sustained by the city or any third party arising out of, or by reason of, or resulting from or of the acts, errors, or omissions of the communications system operator, or its agents, independent contractors or employees related to or in any way arising out of the construction, operation or repair of the facility in the public rights-of-way;

C. Provide that the covenants and representations relating to the indemnification provision shall survive the term of any franchise or other authorization and continue in full force and effect as to the party’s responsibility to indemnify. (Ord. 1777 § 1 (Exh. A), 2012; Ord. 1402 § 1(11.01.7.1), 2001)

11.01.220 Insurance.

No franchise or other authorization to use the rights-of-way issued to a communications system operator or a private communications system owner shall be valid or effective until and unless the city obtains assurance that such operator (and those acting on its behalf) have adequate insurance. Unless otherwise agreed, in writing, adequate insurance must at least meet the following requirements:

A. A communications system operator shall not commence construction or operation of the facility without obtaining all insurance required under this section and approval of such insurance by the city, nor shall a communications system operator allow any contractor or subcontractor to commence work on its contract or subcontract until all similar such insurance required of the same has been obtained and approved. The required insurance must be obtained and maintained for the entire period the communications system operator has facilities in the rights-of-way, and for a period thereafter as specified in the minimum coverages described below. If the operator, its contractors, or subcontractors do not have the required insurance, the city may order such entities to stop operations until the insurance is obtained and approved.

B. Certificates of insurance, reflecting evidence of the required insurance and naming the city as an additional insured, shall be filed with the city’s risk manager. For entities that are entering the market, the certificates shall be filed prior to the commencement of construction and once a year thereafter, and as provided below in the event of a lapse in coverage. For entities that have facilities in the rights-of-way as of the effective date of the ordinance codified in this title, the certificate shall be filed within 60 days of the effective date of ordinance codified in this title, annually thereafter, and as provided below in the event of a lapse in coverage, unless a pre-existing franchise provides for filing of certificates in a different manner.

C. These certificates shall contain a provision that coverages afforded under these policies will not be canceled until at least 30 days’ prior written notice has been given to the city. Policies shall be issued by companies authorized to do business under the laws of the state of Washington. Financial ratings must be no less than “A” in the latest edition of “Best’s Key Rating Guide,” published by A.M. Best Guide.

D. In the event that the insurance certificate provided indicates that the insurance shall terminate or lapse during the period of the franchise or license, then, in that event, the communications system operator shall furnish, at least 30 days prior to the expiration of the date of such insurance, a renewed certificate of insurance as proof that equal and like coverage has been or will be obtained prior to any such lapse or termination during the balance of the period of the franchise or license under which the communications system operates.

E. A communications system owner or operator, and its contractors or subcontractors engaged in work on the operator’s behalf in, on, under or over public rights-of-way, shall maintain the following minimum insurance. The city shall be named as an additional insured on the general liability and automotive policies.

1. Comprehensive general liability insurance to cover liability bodily injury and property damage. Exposures to be covered are: premises, operations, products/completed operations, and certain contracts. Coverage must be written on an occurrence basis, with the following limits of liability:

a. Bodily injury:

i. Each occurrence: $1,000,000.

ii. Annual aggregate: $3,000,000.

b. Property damage:

i. Each occurrence: $1,000,000.

ii. Annual aggregate: $3,000,000.

c. Personal injury:

i. Annual aggregate: $3,000,000.

d. Completed operations and products liability shall be maintained for two years after the termination of the franchise or license (in the case of the communications system owner or operator) or completion of the work for the communications system owner or operator (in the case of a contractor or subcontractor).

e. Property damage liability insurance shall include coverage for the following hazards: X – explosion, C – collapse, U – underground.

2. Workers’ compensation insurance shall be maintained during the life of this contract to comply with statutory limits for all employees, and in the case any work is sublet, each communications system operator shall require the subcontractors similarly to provide workers’ compensation insurance for all the latter’s employees unless such employees are covered by the protection afforded by each communications system operator. Each communications system operator and its contractors and subcontractors shall maintain during the life of this policy employers’ liability insurance. The following minimum limits must be maintained:

a. Workers’ compensation: statutory.

b. Employer’s liability: $500,000 per occurrence.

3. Comprehensive Auto Liability.

a. Bodily injury:

i. Each occurrence: $1,000,000.

ii. Annual aggregate: $3,000,000.

b. Property damage:

i. Each occurrence: $1,000,000.

ii. Annual aggregate: $3,000,000.

Coverage shall include owned, hired, and non-owned vehicles.

F. Each communications system operator shall hold the city, its agents, and employees harmless on account of claims for damages to persons, property or premises arising out of its construction, operation or repair of its communications system and name the city as an additional insured.

G. In every franchise or license agreement, the city shall reserve the right to require any other insurance coverage it deems necessary depending upon the exposures. (Ord. 1402 § 1(11.01.7.2), 2001)

11.01.230 Performance/payment bonds.

Every operator of a communications facility shall be required to obtain performance bonds and, if necessary, payment bonds to ensure the faithful performance of its responsibilities under this title and any franchise, permit or license, including a sufficient amount to cover removal of facilities and/or restoration of city facilities within right-of-way. The amount of the performance and payment bonds shall be set by the city manager or may be set in a franchise ordinance in light of the nature of the work to be performed and is not in lieu of any additional bonds that may be required through the permitting process. The bond shall be in a form acceptable to the city attorney. The city may from time to time increase or decrease the amount of the required performance bond to reflect changes in risks to the city and to the public. (Ord. 1402 § 1(11.01.7.3), 2001)

Article VI. Enforcement and Remedies

11.01.240 City manager responsible for administration.

The city manager is responsible for enforcing and administering this title, and the city manager is authorized to give any notice required by law or under any franchise, including by way of example and not limitation, a notice required under 47 U.S.C. Section 546. The city manager is also authorized to seek information from any communications system operator, to establish forms for submission of applications and other information, and to take all other actions necessary or appropriate to the administration of this title or any franchise. Franchises may only be denied, issued or revoked by action of the city council. (Ord. 1402 § 1(11.01.8.1), 2001)

11.01.250 Applications for franchises and licenses.

A. An application must be filed for an initial franchise or license, for a transfer, or for renewal of a franchise or license. Each entity that is required to hold a franchise or license must submit an application therefor to the city manager in accordance with the requirements of this title. To be accepted for filing, an original and three copies of a complete application for a franchise and an original and three copies of a complete application for a license must be submitted, showing the routes the applicant proposed to use. All applications shall be available for public inspection. All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application.

B. An application may be filed by any person on that person’s own initiative or in response to a request for proposals. The city manager is authorized to issue requests for proposals from time to time.

C. Every application shall be accompanied by an initial deposit in the amounts of $5,000 for franchises and $1,000 for licenses.

D. In addition, an applicant that is awarded a franchise or license shall pay to the city a sum of money sufficient to reimburse it for all publication expenses incurred by it in connection with the granting of a franchise or license. Such payment shall be made by delivery of payment to the city within 30 days after the city furnishes the franchisee or licensee with a written statement of such expenses.

E. No franchise shall become effective until all required fees and costs are paid.

F. Notwithstanding any other provision of this title, pledges in trust or mortgages of the assets of a franchised or licensed communications system to secure the construction, operation, or repair of the system may be made without application and without the city’s prior consent; except that no such arrangement may be made if it would in any respect under any condition prevent the communications system operator or any successor from complying with the franchise or license and applicable law, nor may any such arrangement permit a third party to succeed to the interest of the operator, or to own or control the communications system, without the prior consent of the city. Any mortgage, pledge or lease shall be subject to and subordinate to the rights of the city under any franchise, this title, or other applicable law.

G. The city council may, in its sole discretion which is hereby reserved, (1) approve or disapprove a license, and (2) require such terms and conditions in the license agreement as deemed in the best interest of the city. The city manager or city council may request such additional information from an applicant for a license as deemed appropriate in order to proceed with consideration of the application. (Ord. 1402 § 1(11.01.8.2), 2001)

11.01.260 Minimum contents of every franchise or license.

In addition to satisfying the other applicable requirements of this chapter, every franchise or license for a communications system shall contain the following provisions:

A. The franchise or license shall provide that neither the granting of any franchise or license, or any provision thereof, shall constitute a waiver or bar to the exercise of any governmental right or power, police power, or regulatory power of the city as may exist at the time the franchise or license is issued or thereafter be obtained.

B. The franchise or license shall only authorize occupancy of the right-of-way to provide the services and for the purposes described in the franchise or license.

C. A franchise or license shall be a privilege that is held in the public trust and personal to the original franchisee. The franchise or license shall ensure that no transfer of the franchise or license may occur, directly or indirectly, without the prior consent of the city, except as contemplated by FMC 11.01.250(F) or as otherwise expressly provided in this title.

D. The franchise or license shall contain appropriate provisions for enforcement, compensation, and protection of the public, consistent with the other provisions of this title.

E. The franchise or license shall be for a specified term, set forth in the franchise or license. No franchise issued under this title shall be for a term of longer than 10 years, unless the council determines that a longer period would be in the city’s interest. No license issued under this title shall be for a term of longer than five years.

F. Such other terms as are required by the city.

G. License shall be discretionary. (Ord. 1402 § 1(11.01.8.3), 2001)

11.01.270 Penalties.

Any person found to have occupied or carried out activities in the public rights-of-way without first having obtained or having in effect a valid franchise, license, or permit as required by this title shall be guilty of a misdemeanor. Each day that any such occupancy or activity shall continue in violation of this title shall constitute a separate offense. (Ord. 1777 § 1 (Exh. A), 2012; Ord. 1402 § 1(11.01.8.4), 2001)

11.01.280 Revocation, reduction of term, or forfeiture of franchise or license.

A. Licenses shall be revocable at will.

B. Where, after notice and providing the franchisee an opportunity to be heard (if such opportunity is timely requested by a franchisee), the city finds that the facility is being maintained or operated in violation of this title or in substantial violation of the terms of the franchise, the city may make an appropriate reduction in the remaining term of the franchise or revoke the franchise. The city manager is authorized to establish and conduct a proceeding that complies with the requirements of this subsection, and to issue a decision which will become final unless appealed to the city council within 30 days of the decision of the city manager. Notwithstanding the foregoing, the franchise may only be revoked if the franchisee (1) was given notice of the default, and (2) was given 30 days to cure the default, and (3) failed to cure the default, or to propose a schedule for curing the default acceptable to the city where it is impossible to cure the default in 30 days. The required notice may be given before the city conducts the proceeding required by this subsection. No opportunity to cure is allowed for fraud, which shall be deemed incurable.

C. Notwithstanding the foregoing, subsection B of this section, the city may declare a franchise forfeited without opportunity to cure or the notice required by subsection B of this section where the franchisee (1) fails to begin to exercise its rights under the franchise within a period specified in the franchise, (2) stops providing service it is required to provide in the franchise, (3) without the prior consent of the city, transfers the franchise, (4) fails to pay the occupancy fees or franchise fees owed, or (5) defrauds or attempts to defraud the city or the operator’s customers. However, a franchisee shall have the right to receive 30 days’ prior notice of an intent to declare a franchise forfeited, and shall have the opportunity to show cause why the franchise should not be forfeited.

D. Notwithstanding the foregoing, subsections A through C of this section, a franchise or license will automatically terminate by force of law 120 calendar days after an assignment for the benefit of creditors or the appointment of a receiver or trustee to take over the business of the franchisee or licensee, whether in a receivership, reorganization, bankruptcy assignment for the benefit of creditors, or other action or proceeding. However, the franchise or license may be reinstated within that 120-day period, if: (1) such assignment, receivership or trusteeship has been vacated; or (2) such assignee, receiver or trustee has fully complied with the terms and conditions of this title and the franchise or license and has executed an agreement, approved by any court having jurisdiction, assuming and agreeing to be bound by the terms and conditions of this title and the franchise or license. However, in the event of foreclosure or other judicial sale of any of the facilities, equipment or property of a franchisee or licensee, the city may revoke the franchise or license, following a public hearing before the city council, by serving notice upon the franchisee or licensee and the successful bidder at the sale, in which event the franchise or license and all rights and privileges of the franchise or license will be revoked and will terminate 30 calendar days after serving such notice, unless: (1) the city has approved the transfer of the franchise or license to the successful bidder; and (2) the successful bidder has covenanted and agreed with the city to assume and be bound by the terms and conditions of the franchise or license and this title. (Ord. 1402 § 1(11.01.8.5), 2001)

11.01.290 Effect of termination or forfeiture.

Upon termination or forfeiture of a license or franchise, whether by action of the city as provided above, or by passage of time, the franchisee or licensee shall be obligated to cease using the communications system for the purposes authorized by the franchise. The city may either take possession of some or all of the licensee’s or franchisee’s facilities in the public rights-of-way or require the licensee or franchisee or its bonding company to remove some or all of the licensee’s or franchisee’s facilities from the public rights-of-way and restore the public rights-of-way to its same, or better, condition. Should the franchisee or licensee neglect, refuse, or fail to remove such facility, the city may remove the facility at the expense of the franchisee or licensee. The obligation of the licensee or franchisee to remove shall survive the termination of the franchise or license for a period of two years; provided, that this provision does not permit the city to take possession of, or require the franchisee or licensee to remove, any facilities that are used to provide another service for which the franchisee holds a valid franchise or license issued by the city. (Ord. 1402 § 1(11.01.8.6), 2001)

11.01.300 Remedies cumulative.

All remedies under this title and any franchise or license are cumulative unless otherwise expressly stated. The exercise of one remedy shall not foreclose use of another, nor shall the exercise of a remedy or the payment of liquidated damages or penalties relieve a communications system operator of its obligations to comply with its franchise or license. Remedies may be used singly or in combination; in addition, the city may exercise any rights it has at law or equity. Recovery by the city of any amounts under insurance, the performance bond, the security fund or letter of credit, or otherwise, does not limit a communications system operator’s duty to indemnify the city in any way, nor shall such recovery relieve a communications system operator of its obligations under a franchise, permit or license, limit the amounts owed to the city, or in any respect prevent the city from exercising any other right or remedy it may have. (Ord. 1402 § 1(11.01.8.7), 2001)

11.01.310 Access to books and records.

A. Each communications system operator shall provide the city access to all books and records related in whole or in part to the construction, operation, or repair of the communications system so that the city may inspect and copy these books and records pertaining to the franchise and other matters within the city’s jurisdiction. The operators’ obligation includes the obligation to produce all books and records related to revenues derived from the operation of the communications system to the extent that system revenues affect the fees charged or burdens imposed on the operator under the franchise. An operator is responsible for obtaining or maintaining the necessary possession or control of all such books and records related to the construction, operation or repair of the communications system, so that it can produce the documents upon request. Books and records must be maintained for a period of five years, except that (1) any record that is a public record must be maintained for no less than the period required by state law, and (2) a franchise may specify a shorter period for certain categories of voluminous books and records where the information contained therein can be derived simply from other materials. In the event a communication system operator is required to provide information that is a business or trade secret and/or proprietary information and the operator wishes to protect the information against disclosure, then the operator shall provide said information to the city in a separate envelope marked “Proprietary Information: DO NOT DISCLOSE.” The city will exercise good faith efforts to protect the confidentiality of the business or trade secrets or proprietary information that is designated as such; provided further, that (1) in the event a public disclosure request is made for information marked as proprietary, and if the city attorney determines that said information may be subject to being disclosed, or (2) the city determines that the information should be disclosed in connection with its enforcement of any provision of this title, or in the exercise of its police or regulatory powers, then the city shall notify the operator of the operator’s opportunity to seek a protective order from a court with appropriate jurisdiction. In the event that a protective order is not obtained within 30 days or, if shorter, the time limitation set forth in state law, then city may disclose said information. The operator is obligated to reimburse and indemnify the city for all costs, damages and attorney fees that may be awarded or assessed by the court for any actions the city took at the request of operator.

B. For purposes of this title, the terms “books and records” shall be read expansively to include information in whatever format stored. Books and records requested shall be produced to the city at the location designated by the city manager, or by agreement or pursuant to subsection C of this section.

C. If any books and records are too voluminous, or for security reasons cannot be copied and moved, then a communications facility operator may request that the inspection take place at some other location mutually agreed to by the city and the operator; provided, that (1) the operator must make necessary arrangements for copying documents selected by the city after its review; and (2) the operator must pay all travel and additional copying expenses incurred by the city (above those that would have been incurred had the documents been produced in the city) in inspecting those documents or having those documents inspected by its designee.

D. Without limiting the foregoing, the operator of a communications facility shall provide the city the following within 10 days of their receipt or (in the case of documents created by the operator or its affiliate) filing:

1. Notices of deficiency or forfeiture related to the operation of the communications facility; and

2. Copies of any request for protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy by the franchisee or by any partnership or corporation that owns or controls the franchisee directly or indirectly. (Ord. 1402 § 1(11.01.8.8), 2001)

11.01.320 Retention of records – Relation to privacy rights.

Each communications facility operator shall take all reasonable steps required, if any, to ensure that it is able to provide the city all information which must be provided or may be requested under this title, a franchise or license, or applicable law, including by providing appropriate subscriber privacy notices. Each operator shall be responsible for redacting any data that applicable law prevents it from providing to the city. Nothing in this section shall be read to require an operator to violate state or federal law protecting subscriber privacy. (Ord. 1402 § 1(11.01.8.9), 2001)

11.01.330 Reports.

The city manager may require operators of communications facilities to maintain records, and to prepare reports relevant to determining the compliance of the communications facility operator with the terms and conditions of this title and their franchises, permits or licenses which have been obtained from the city. Operators shall maintain such records and provide such reports additionally as are specifically required by Chapters 11.01, 11.02, 11.03, and 11.04 FMC. (Ord. 1402 § 1(11.01.8.10), 2001)

11.01.340 Maps.

Each communications facility operator shall maintain accurate maps and improvement plans which show the location, size, and a general description of all facilities installed in the public rights-of-way and any power supply sources (including voltages and connections). Maps shall be based upon post-construction inspection to verify location. The operator of each communications facility shall provide a map (on 24-inch by 36-inch mylar) to the city showing the location of its facilities, in such detail and scale as may be directed by the city engineer. New system maps shall be promptly submitted to the city when the facility expands or is relocated. Copies of maps shall be provided on disk, in a commercially available electronic format specified by the city engineer or in such alternate form as approved by the city engineer. (Ord. 1402 § 1(11.01.8.11), 2001)

11.01.350 Compliance with laws.

Each franchisee and licensee shall comply with all applicable laws heretofore and hereafter adopted or established during the entire term of its franchise, permit or license. (Ord. 1402 § 1(11.01.8.12), 2001)

11.01.360 Reservation of authority.

The city may do all things which are necessary and convenient in the exercise of its jurisdiction under this title. (Ord. 1402 § 1(11.01.8.13), 2001)

11.01.370 No waiver.

The failure of the city to insist on timely performance or compliance by any person holding a license, permit or franchise shall not constitute a waiver of the city’s right to later insist on timely performance or compliance by that person or any other person holding such a license, permit or franchise. (Ord. 1402 § 1(11.01.8.14), 2001)

11.01.380 Title not a contract.

The city expressly reserves the right to amend this title and any franchise, permit or license thereunder from time to time in the exercise of its lawful powers. The provisions of this title shall not be construed to create or be a contract. (Ord. 1402 § 1(11.01.8.15), 2001)

Article VII. Transitional Provisions

11.01.390 Persons operating without a franchise or license.

The operator of any facility, the operation of which is required to be franchised or licensed under this title, other than a person holding a lease under FMC 11.01.410, shall have three months from the effective date of the ordinance codified in this title to file one or more applications for a franchise or a license under this title. Any operator or private communications system owner timely filing such an application shall not be subject to a penalty under FMC 11.01.270 for failure to have such a franchise or license as long as said application remains pending; provided, however, nothing herein shall relieve any communications system operator of any liability for its failure to obtain any franchise, permit or other authorization required under other provisions of the Fife Municipal Code, and nothing herein shall prevent the city from requiring removal of any facilities installed in violation of the Fife Municipal Code. (Ord. 1402 § 1(11.01.9.1), 2001)

11.01.400 Persons holding franchises or licenses.

Any person holding an outstanding franchise or license from the city for a communications system to provide specified services or for a private communications system may continue to operate under the existing franchise or license to the conclusion of its present term (but not any renewal or extension thereof) with respect to those activities expressly authorized by the franchise or license; provided, however, that such franchisee or licensee may elect at any time to apply for a superseding franchise or license under this title and must seek additional franchises or licenses to provide other services; and provided further, that such person shall be subject to the other provisions of this title to the extent permitted by law; provided further, that licenses that are revocable at will may be revoked by the city, and the licensee may be required to obtain a new license under this title. (Ord. 1402 § 1(11.01.9.2), 2001)

11.01.410 Persons holding leases for property in the right-of-way.

Any lessee under a lease from the city for an antenna site located in the right-of-way that is valid and in force on the effective date of the ordinance codified in this title may continue to occupy such antenna site to the conclusion of the term of the lease (but not any renewal or extension thereof) in accordance with the terms of such lease; provided, however, that such lessee may elect at any time to apply for a superseding lease, franchise or license under this title. (Ord. 1402 § 1(11.01.9.3), 2001)

11.01.420 Persons with pending applications.

Pending applications shall be subject to this title. A person with a pending application shall be provided 30 days from the effective date of the ordinance codified in this title to submit additional information to comply with the requirements of this title governing applications. (Ord. 1402 § 1(11.01.9.4), 2001)

11.01.430 Temporary street license agreement.

It is anticipated additional time will be needed for a time after the effective date of the ordinance codified in this title to prepare and negotiate the initial franchise agreement with operators who are required to obtain a franchise hereunder in order to place facilities in the public right-of-way. Persons filing applications for a franchise under this title within six months after the effective date of the ordinance codified in this title (or within such longer period as approved by the city council) may, if approved in the discretion of the city council, be allowed to temporarily place and operate facilities in the public right-of-way for a period not to exceed two years pending the granting or denial of the applied for franchise, in accordance with the terms of a temporary street use agreement as approved by the city council. (Ord. 1402 § 1(11.01.9.5), 2001)

11.01.440 Transitional rules to be narrowly interpreted.

It is the intent of the city to apply the provisions of this title to communications system operators, including local exchange carriers that now occupy or may in the future occupy public rights-of-way, except to the extent federal or state law prevents it from doing so. (Ord. 1402 § 1(11.01.9.6), 2001)

Article VIII. Special Rules – Waiver

11.01.450 Special rules for government entities.

Nothing herein requires the city to apply the provisions of this title to a government entity if the city determines that it is not in the public interest to do so, and nothing in this title shall be read to require a government entity to comply with this title, where the city cannot enforce the title against such entity as a matter of law. Unless prohibited by law, the city is authorized to enter into agreements with other governmental agencies to facilitate the city’s use and management of its rights-of-way, and such agreements shall be enforceable according to their respective terms and notwithstanding any provision of this title. (Ord. 1402 § 1(11.01.10), 2001)

11.01.460 No waiver.

The failure of the city to enforce any provision of this title on any occasion shall not operate as a waiver or estoppel of this right to enforce any provision of this title on any other occasion, nor shall the failure to enforce any prior ordinance, law or contractual provision affecting communications facilities or communications system operators act as a waiver or estoppel against application of this title or any other provision of applicable law. (Ord. 1402 § 1(11.01.11), 2001)