Chapter 12.18 TELECOMMUNICATIONS

(2) Establish clear local guidelines, standards and time frames for the exercise of local authority with respect to the regulation of telecommunications providers and services;

(3) Promote competition in telecommunications;

(4) Minimize unnecessary local regulation of telecommunications providers and services;

(5) Encourage the provision of advanced and competitive telecommunications services on the widest possible basis to the businesses, institutions and residents of the town;

(6) Permit and manage reasonable access to the public ways of the town for telecommunications purposes on a competitively neutral basis;

(7) Conserve the limited physical capacity of the public ways held in public trust by the town;

(8) Assure that the town’s current and ongoing costs of granting and regulating private access to and use of the public ways are fully paid by the persons seeking such access and causing such costs;

(9) Secure fair and reasonable compensation to the town and the residents of the town for permitting private use of the public ways;

(10) Assure that all telecommunications carriers providing facilities or services within the town comply with the ordinances, rules and regulations of the town;

(11) Assure that the town can continue to fairly and responsibly protect the public health, safety and welfare;

(12) Enable the town to discharge its public trust consistent with rapidly evolving federal and state regulatory policies, industry competition and technological development. [Ord. 529 § 1 (Att. A), 2017]

12.18.004 Definitions.

For the purpose of this chapter, and the interpretation and enforcement thereof, the following words and phrases shall have the following meanings, unless the context of the sentence in which they are used shall indicate otherwise:

(1) “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.

(2) Annual Gross Revenue. Reserved.

(3) “Excess capacity” means the volume or capacity in any existing or future duct, conduit, manhole, handhole or other utility facility within the public way that is or will be available for use for additional telecommunications facilities.

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

(5) “Other ways” means the highways, streets, alleys, utility easements or other rights-of-way within the town, but under the jurisdiction and control of a governmental entity other than the town.

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

(7) “Person” means and includes corporations, companies, associations, joint stock companies or associations, firms, partnerships, limited liability companies and individuals and includes their lessors, trustees and receivers.

(8) “Public street” means any highway, street, alley or other public right-of-way for motor vehicle travel under the jurisdiction and control of the town which has been acquired, established, dedicated or devoted to highway purposes not inconsistent with telecommunications facilities.

(9) “Public way” means and includes all public streets and utility easements, as those terms are defined herein, now or hereafter owned by the town, but only to the extent of the town’s right, title, interest or authority to grant a license or franchise to occupy and use such streets and easements for telecommunications facilities.

(10) “State” means the state of Washington.

(11) Reserved.

(12) “Telecommunications carrier” means and includes every person that directly or indirectly owns, controls, operates or manages plant, equipment or property within the town, used or to be used for the purpose of offering telecommunications service.

(13) “Telecommunications facilities” means the plant, equipment and property, including but not limited to, cables, wires, conduits, ducts, pedestals, antennas, electronics and other appurtenances used or to be used to transmit, receive, distribute, provide or offer telecommunications services. “Telecommunications facilities” may also mean personal wireless services, and personal wireless service facilities as defined in Title 47, United States Code, § 332(c)(7)(C), as they may be amended now or in the future and includes facilities for the transmission and reception of radio or microwave signals used for communication, cellular phone, personal communications services, enhanced specialized mobile radio, and any other wireless services licensed by the Federal Communications Commission (“FCC”) and unlicensed wireless services.

(14) “Telecommunications provider” means and includes every person who provides telecommunications services over telecommunications facilities without any ownership or management control of the facilities.

(15) “Telecommunications service” means the providing or offering for rent, sale or lease, or in exchange for other value received, of the transmittal of voice, data, image, graphic and video programming information between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities, with or without benefit of any closed transmission medium.

(16) Telecommunications System. See “Telecommunications facilities.”

(17) “Town” means the town of Hunts Point, Washington.

(18) “Town property” means and includes all real property owned by the town, other than public streets and utility easements as those terms are defined herein, and all property held in a proprietary capacity by the town, which are not subject to right-of-way licensing and franchising as provided in this chapter.

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

(20) Reserved.

(21) “Utility easement” means any easement owned by the town and acquired, established, dedicated or devoted for public utility purposes not inconsistent with telecommunications facilities.

(22) “Utility facilities” means the plant, equipment and property, including but not limited to the poles, pipes, mains, conduits, ducts, cables, wires, plant and equipment located under, on, above, or below the surface of the ground within the public ways of the town and used or to be used for the purpose of providing utility or telecommunications services. [Ord. 529 § 1 (Att. A), 2017]

12.18.008 Right-of-way use permit required.

(1) Except as otherwise provided herein, any telecommunications carrier who desires to construct, install, operate, maintain, or otherwise locate telecommunications facilities in, on, under, over, or across any public way of the town for the purpose of providing telecommunications service to persons and areas inside or outside the town shall first obtain a right-of-way use permit granting the use of such public ways from the town pursuant to Chapter 12.05 HPMC.

(2) Where state or federal law precludes the town from requiring a franchise or exempts a telecommunications carrier from local franchising requirements, the carrier’s right-of-way permit application must include the information described in HPMC 12.18.072. [Ord. 529 § 1 (Att. A), 2017]

12.18.010 Telecommunications franchise required.

Except as otherwise provided herein, any telecommunications carrier who desires to construct, install, operate, maintain or otherwise locate telecommunications facilities in, on, under, over, or across any public way of the town, and to also provide telecommunications service to persons or areas in the town, shall first obtain franchise granting the use of such public ways from the town pursuant to Article IV of this chapter. [Ord. 529 § 1 (Att. A), 2017]

12.18.012 Facilities lease required.

No telecommunications carrier or other entity who desires to locate telecommunications or other equipment on town property shall locate such facilities or equipment on town property unless granted a facilities lease or license from the town. The town council reserves unto itself the sole discretion to lease or license town property for telecommunications and other facilities and to charge an appropriate fee therefor, and no vested or other right shall be created by this section or any provision of this chapter applicable to such facilities leases or licenses. [Ord. 529 § 1 (Att. A), 2017]

12.18.014 Construction permits required.

Except as otherwise provided herein, the holder of a permit or franchise granted pursuant this chapter shall, in addition to said permit or franchise, be required to obtain a construction permit from the town pursuant to Article VII of this chapter. No work, construction, development, excavation, or installation of any equipment shall take place until such time as the construction permit is issued. [Ord. 529 § 1 (Att. A), 2017]

12.18.016 Application to existing franchise ordinances, agreements, leases, and permits.

This chapter shall have no effect on any existing franchise ordinance, franchise agreement, lease, or permit to use or occupy a public way in the town until:

(1) The expiration of said franchise ordinance, agreement, lease, or permit; or

(2) Amendment to an unexpired franchise ordinance, franchise agreement, lease, or permit, unless both parties agree to defer full compliance to a specific date not later than the present expiration date. [Ord. 529 § 1 (Att. A), 2017]

12.18.018 General penalties.

(1) Any person, and the officers, directors, managing agents, or partners of any corporation, firm, partnership or other organization or business failing to obtain any permit, franchise, or lease as required by this chapter shall have committed a civil infraction and, upon a determination by a court of competent jurisdiction that such infraction has been committed, shall pay a civil monetary penalty to the town of a sum not less than $500.00 for each offense. Each and every day during any portion of which a violation of any provision of this chapter is committed, continued or permitted constitutes a separate infraction.

(2) In addition to the penalties provided in this section, any condition caused or permitted to exist by virtue of such failure to obtain a permit, franchise, or lease, is a public nuisance and all remedies given by law for the prevention and abatement of nuisances shall apply thereto.

(3) Any person deemed to have committed a civil infraction under subsection (1) of this section who shall fail, after written notice to correct, to come into compliance, or who shall fail to remain in compliance with the provision(s) of this chapter deemed violated under subsection (1) of this section, after a notice of noncompliance has been received, shall be guilty of a misdemeanor and, upon conviction, shall be punished by imprisonment in jail for a term not exceeding 90 days or by a fine in an amount not more than $1,000, or by both such fine and imprisonment. Each day that such condition or violation continues shall be regarded as a new and separate offense and shall be punishable accordingly. [Ord. 529 § 1 (Att. A), 2017]

12.18.020 Other remedies.

Nothing in this chapter shall be construed as limiting any judicial remedies that the town may have, at law or in equity, for enforcement of this chapter. [Ord. 529 § 1 (Att. A), 2017]

Article II. Reserved

Article III. Reserved

Article IV. Telecommunications Franchise

12.18.070 Telecommunications franchise.

A telecommunications franchise shall be required of any telecommunications carrier who desires to occupy public ways of the town and to provide telecommunications services to any person or area in the town. [Ord. 529 § 1 (Att. A), 2017]

12.18.072 Franchise application.

Any person that desires a telecommunications franchise pursuant to this chapter shall file an application with the town which shall include the following:

(1) The identity of the franchise applicant, including all affiliates of the applicant;

(2) A description of the telecommunications services that are or will be offered or provided by the franchise applicant over its existing or proposed facilities;

(3) A description of the transmission medium that will be used by the franchisee to offer or provide such telecommunications services;

(4) Preliminary engineering plans, specifications and a network map of the facilities to be located within the town, all in sufficient detail to identify:

(a) The location and route requested for applicant’s proposed telecommunications facilities,

(b) The location of all overhead and underground public utility, telecommunication, cable, water, sewer drainage and other facilities in the public way along the proposed route,

(c) The location(s), if any, for interconnection with the telecommunications facilities of other telecommunications carriers,

(d) The specific trees, structures, improvements, facilities and obstructions, if any, that applicant proposes to temporarily or permanently remove or relocate;

(5) If applicant is proposing an underground installation in existing ducts or conduits within the public ways, information in sufficient detail to identify:

(a) The excess capacity currently available in such ducts or conduits before installation of applicant’s telecommunications facilities,

(b) The excess capacity, if any, that will exist in such ducts or conduits after installation of applicant’s telecommunication facilities;

(6) If applicant is proposing an underground installation within new ducts or conduits to be constructed within the public ways:

(a) The location proposed for the new ducts or conduits,

(b) The excess capacity that will exist in such ducts or conduits after installation of applicant’s telecommunication facilities;

(7) A preliminary construction schedule and completion dates;

(8) A preliminary traffic control plan in accordance with the town’s adopted street standards and the most current Manual on Uniform Traffic Control Devices (MUTCD);

(9) Financial statements prepared in accordance with generally accepted accounting principles demonstrating the applicant’s financial ability to construct, operate, maintain, relocate and remove the facilities;

(10) Information in sufficient detail to establish the applicant’s technical qualifications, experience and expertise regarding the telecommunications facilities and services described in the application;

(11) Information to establish that the applicant has obtained all other governmental approvals and permits to construct and operate the facilities and to offer or provide the telecommunications services;

(12) Whether the applicant intends to provide cable service, video dialtone service or other video programming service, and sufficient information to determine whether such service is subject to cable franchising;

(13) An accurate map showing the location of any existing telecommunications facilities in the town that the applicant intends to use or lease;

(14) A description of the services or facilities that the applicant will offer or make available to the town and other public, educational and governmental institutions;

(15) A description of the applicant’s access and line extension policies;

(16) The area or areas of the town the applicant desires to serve and a schedule for build-out to the entire franchise area;

(17) All fees, deposits or charges required pursuant to Article VI of this chapter;

(18) Such other and further information as may be requested by the town clerk;

(19) An application fee which shall be set by the town council by resolution. [Ord. 529 § 1 (Att. A), 2017]

12.18.074 Determination by the town.

Within 120 days after receiving a complete application under HPMC 12.18.072, the town shall issue a written determination granting or denying the franchise application in whole or in part, applying the following standards. If the franchise application is denied, the written determination shall include the reason for denial:

(1) The financial and technical ability of the applicant;

(2) The legal ability of the applicant;

(3) The capacity of the public ways to accommodate the applicant’s proposed facilities;

(4) The capacity of the public ways to accommodate additional utility and telecommunications facilities if the franchise is granted;

(5) The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the franchise is granted;

(6) The public interest in minimizing the cost and disruption of construction within the public ways;

(7) The service that the applicant will provide to the community and region;

(8) The effect, if any, on public health, safety and welfare if the franchise request is granted;

(9) The availability of alternate routes and/or locations for the proposed facilities;

(10) Applicable federal and state telecommunications laws, regulations and policies;

(11) Such other factors as may demonstrate that the grant to use the public ways will serve the community interest. [Ord. 529 § 1 (Att. A), 2017]

12.18.076 Agreement.

No franchise shall be deemed to have been granted hereunder until the applicant and the town have executed a written agreement setting forth the particular terms and provisions under which the franchisee has been granted the right to occupy and use public ways of the town. [Ord. 529 § 1 (Att. A), 2017]

12.18.078 Nonexclusive grant.

No franchise granted under this article shall confer any exclusive right, privilege, license or franchise to occupy or use the public ways of the town for delivery of telecommunications services or any other purposes. [Ord. 529 § 1 (Att. A), 2017]

12.18.080 Terms of franchise grant.

Unless otherwise specified in a franchise agreement, a telecommunications franchise granted hereunder shall be valid for a term of 10 years. [Ord. 529 § 1 (Att. A), 2017]

12.18.082 Rights granted.

No franchise granted under this chapter shall convey any right, title or interest in the public ways, but shall be deemed a franchise only to use and occupy the public ways for the limited purposes and term stated in the grant. Further, no franchise shall be construed as any warranty of title. [Ord. 529 § 1 (Att. A), 2017]

12.18.084 Franchise territory.

A telecommunications franchise granted under this chapter shall be limited to the specific geographic area of the town to be served by the franchisee, and the specific public ways necessary to serve such areas, as described in the franchise documents. [Ord. 529 § 1 (Att. A), 2017]

12.18.086 Compensation to the town.

Each franchise granted under this chapter is subject to the town’s right, which is expressly reserved, to annually fix a fair and reasonable compensation to be paid for the franchise rights granted to all franchisees. [Ord. 529 § 1 (Att. A), 2017]

12.18.088 Nondiscrimination.

A franchisee shall make its telecommunications services available to any customer within its franchise area who shall request such service, without discrimination as to the terms, conditions, rates or charges for franchisee’s services; provided, however, that nothing in this chapter shall prohibit a franchisee from making any reasonable classifications among differently situated customers. [Ord. 529 § 1 (Att. A), 2017]

12.18.090 Service to the town.

A franchisee shall make its telecommunications services available to the town at its most favorable rate for similarly situated users, unless otherwise provided in a license or franchise agreement. [Ord. 529 § 1 (Att. A), 2017]

12.18.092 Amendment of franchise grant.

A new franchise application and grant shall be required of any telecommunications carrier that desires to extend its franchise territory or to locate its telecommunications facilities in public ways of the town which are not included in a franchise previously granted under this chapter. If ordered by the town to locate or relocate its telecommunications facilities in public ways not included in a previously granted franchise, the town shall grant a franchise amendment without further application. [Ord. 529 § 1 (Att. A), 2017]

12.18.094 Renewal application.

A franchisee that desires to renew its franchise under this chapter shall, not more than 240 days nor less than 150 days before expiration of the current franchise, file an application with the town for renewal of its franchise which shall include the following:

(1) The information required pursuant to HPMC 12.18.072;

(2) Any information required pursuant to the franchise agreement between the town and the grantee;

(3) All deposits or charges required pursuant to this chapter;

(4) An application fee which shall be set by the town council by resolution. [Ord. 529 § 1 (Att. A), 2017]

12.18.096 Renewal determination.

Within 120 days after receiving a complete application under HPMC 12.18.094, the town shall issue a written determination granting or denying the renewal application in whole or in part, applying the following standards. If the renewal application is denied, the written determination shall include the reasons for nonrenewal:

(1) The financial and technical ability of the applicant;

(2) The legal ability of the applicant;

(3) The continuing capacity of the public ways to accommodate the applicant’s existing facilities;

(4) The applicant’s compliance with the requirements of this chapter and the franchise agreement;

(5) Applicable federal, state and local telecommunications laws, rules and policies;

(6) Such other factors as may demonstrate that the continued grant to use the public ways will serve the community interest. [Ord. 529 § 1 (Att. A), 2017]

12.18.098 Obligation to cure as a condition of renewal.

No franchise shall be renewed until any ongoing violations or defaults in the franchisee’s performance of the franchise agreement, or of the requirements of this chapter, have been cured, or a plan detailing the corrective action to be taken by the franchisee has been approved by the town. [Ord. 529 § 1 (Att. A), 2017]

Article V. Reserved

Article VI. Conditions of Permits and Franchises

12.18.100 Location of facilities.

All facilities shall be constructed, installed and located in accordance with the following terms and conditions, unless otherwise specified in a permit or franchise agreement.

(1) A grantee shall install its telecommunications facilities within an existing underground duct or conduit whenever the grantee can obtain permission from the duct owner and excess capacity exists within such utility facility.

(2) All new telecommunications facilities within a public way of the town shall be located underground.

(3) If any existing above-ground facility becomes damaged, its owner shall repair or replace it and place the repaired or replacement facility or facilities underground.

(4) Whenever any new or existing telecommunications facilities are located or relocated underground within a public way of the town, a grantee that currently occupies the same public way shall relocate its facilities underground. Absent extraordinary circumstances or undue hardship as determined by the town engineer, such relocation shall be made concurrently to minimize the disruption of the public ways. A one-time extension not to exceed 12 months may be granted by the town engineer in his or her sole discretion.

(5) Whenever new telecommunications facilities will exhaust the capacity of a public street or utility easement to reasonably accommodate future telecommunications carriers or facilities, the grantee and all other occupants of the public way shall provide additional ducts, conduits, manholes and other facilities for nondiscriminatory access to future carriers. [Ord. 529 § 1 (Att. A), 2017]

12.18.102 Compliance with One Call Locator Service.

All permittees and franchise grantees shall, before commencing any construction in the public ways, comply with all regulations of Chapter 19.122 RCW, the One Call Locator Service. [Ord. 529 § 1 (Att. A), 2017]

12.18.104 Construction permits.

All permittees and franchise grantees are required to obtain construction permits for telecommunications facilities as required in Article VII of this chapter. However, nothing in this chapter shall prohibit the town and a grantee from agreeing to alternative plan review, permit and construction procedures for a permit or franchise agreement, provided such alternative procedures provide substantially equivalent safeguards for responsible construction practices. [Ord. 529 § 1 (Att. A), 2017]

12.18.106 Interference with the public ways.

No permittee or franchise grantee may locate or maintain its telecommunications facilities so as to unreasonably interfere with the use of the public ways by the town, by the general public or by other persons authorized to use or be present in or upon the public ways. All such facilities shall be moved by the grantee, at the grantee’s cost, temporarily or permanently, as determined by the town engineer. [Ord. 529 § 1 (Att. A), 2017]

12.18.108 Damage to property.

No permittee or franchise grantee nor any person acting on a permittee or grantee’s behalf shall take any action or permit any action to be done which may impair or damage any town property, public ways of the town, other ways or other property, whether publicly or privately owned, located in, on or adjacent thereto. [Ord. 529 § 1 (Att. A), 2017]

12.18.110 Notice of work.

Unless otherwise provided in a permit or franchise agreement, no permittee or franchise grantee, nor any person acting on the permittee’s or grantee’s behalf, shall commence any nonemergency work in or about the public ways of the town or other ways without 10 working days’ advance notice to the town. [Ord. 529 § 1 (Att. A), 2017]

12.18.112 Repair and emergency work.

In the event of an unexpected repair or emergency, a permittee or grantee may commence such repair and emergency response work as required under the circumstances, provided the grantee or permittee shall notify the town as promptly as possible, before such repair or emergency work commences or as soon thereafter as possible if advance notice is not practicable. The emergency nature of the repair work shall not excuse the obligation to comply as soon as practicable with the undergrounding requirement of HPMC 12.18.100(3). [Ord. 529 § 1 (Att. A), 2017]

12.18.114 Maintenance of facilities.

Each permittee or franchise grantee shall maintain its facilities in good and safe condition and in a manner that complies with all applicable federal, state and local requirements. If any of the permittee’s or franchisee’s above-ground facilities become damaged, the permittee or franchisee shall place the repaired or replaced facility or facilities underground. [Ord. 529 § 1 (Att. A), 2017]

12.18.116 Relocation or removal of facilities.

Within 30 days following written notice from the town, a permittee or franchise grantee shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any telecommunications facilities within the public ways whenever the town engineer shall have determined that such removal, relocation, change or alteration is reasonably necessary for:

(1) The construction, repair, maintenance or installation of any town or other public improvement in or upon the public ways;

(2) The operations of the town or other governmental entity in or upon the public ways;

(3) The operations of any such entity duly authorized by the town to use its public ways. [Ord. 529 § 1 (Att. A), 2017]

12.18.118 Removal of unauthorized facilities.

Within 30 days following written notice from the town, any permittee, grantee, telecommunications carrier, or other person that owns, controls or maintains any unauthorized telecommunications system, facility or related appurtenances within the public ways of the town shall, at its own expense, remove such facilities or appurtenances from the public ways of the town. A telecommunications system or facility is unauthorized and subject to removal in the following circumstances:

(1) Upon expiration or termination of the grantee’s telecommunications permit or franchise;

(2) Upon abandonment of a facility within the public ways of the town;

(3) If the system or facility was constructed or installed without the prior grant of a telecommunications permit or franchise;

(4) If the system or facility was constructed or installed without the prior issuance of a required construction permit;

(5) If the system or facility was constructed or installed at a location not permitted by the grantee’s telecommunications right-of-way permit or franchise. [Ord. 529 § 1 (Att. A), 2017]

12.18.120 Emergency removal or relocation of facilities.

The town retains the right and privilege to cut or move any telecommunications facilities located within the public ways of the town, as the town may determine to be necessary, appropriate or useful in response to any public health or safety emergency. The town shall not be liable to any telecommunications carrier or any other party for any direct, indirect, or any other such damages suffered by any person or entity of any type as a direct or indirect result of the town’s actions under this section. [Ord. 529 § 1 (Att. A), 2017]

12.18.122 Damage to franchise’s facilities.

Unless directly and proximately caused by the willful, intentional or malicious acts by the town, the town shall not be liable for any damage to or loss of any telecommunications facility upon town property or within the public ways of the town as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling, or work of any kind on such town property or within the public ways by or on behalf of the town. [Ord. 529 § 1 (Att. A), 2017]

12.18.124 Restoration of public ways, other ways and town property.

(1) When a permittee or franchise grantee, or any person acting on its behalf, does any work in or affecting any public ways, other ways or town property, it shall, at its own expense, promptly remove any obstructions therefrom and restore such ways or property to as good a condition as existed before the work was undertaken, unless otherwise directed by the town.

(2) If weather or other conditions do not permit the complete restoration required by this section, the grantee shall temporarily restore the affected ways or property. Such temporary restoration shall be at the permittee’s sole expense and the permittee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration.

(3) A permittee, grantee or other person acting in its behalf shall use suitable barricades, flags, flagmen, lights, flares and other measures as required for the safety of all members of the general public and to prevent injury or damage to any person, vehicle or property by reason of such work in or affecting such ways or property. [Ord. 529 § 1 (Att. A), 2017]

12.18.126 Facilities maps.

Each permittee or franchise grantee shall provide the town with an accurate map, maps or as-builts certifying the location of all telecommunications facilities within the public ways. Each permittee or grantee shall provide updated maps every January. [Ord. 529 § 1 (Att. A), 2017]

12.18.128 Duty to provide information.

Within 10 days of a written request from the town clerk, each permittee or franchise grantee shall furnish the town with information sufficient to demonstrate:

(1) That permittee or grantee has complied with all requirements of this chapter;

(2) That all sales, utility and/or telecommunications taxes due the town in connection with the telecommunications services and facilities provided by the grantee have been properly collected and paid by the grantee;

(3) All books, records, maps and other documents, maintained by the grantee with respect to its facilities within the public ways shall be made available for inspection by the town at reasonable times and intervals. [Ord. 529 § 1 (Att. A), 2017]

12.18.130 Leased capacity.

A permittee or franchise grantee shall have the right, without prior town approval, to offer or provide capacity or bandwidth to its customers consistent with such permit or franchise; provided:

(1) The permittee or grantee shall furnish the town with a copy of any such lease or agreement between the permittee or grantee and the customer or lessee; and

(2) The customer or lessee complied, to the extent applicable, with the requirements of this chapter. [Ord. 529 § 1 (Att. A), 2017]

12.18.132 Insurance.

Unless otherwise provided in a permit or franchise agreement, each permittee or franchise grantee shall, as a condition of the permit or grant, secure and maintain the liability insurance policies insuring both the grantee and the town, and its elected and appointed officers, officials, agents, consultants and employees as co-insureds as required by and in an amount determined by the town.

The liability insurance policies required by this section shall be maintained by the permittee or grantee throughout the term of the permit or franchise, and such other period of time during which the permittee or grantee is operating without a franchise or permit hereunder, or is engaged in the removal of its telecommunications facilities. Each such insurance policy shall contain the following endorsement:

It is hereby understood and agreed that this policy may not be cancelled nor the intention not to renew be stated until 90 days after receipt by the Town, by registered mail, of a written notice addressed to the Town Clerk of such intent to cancel or not to renew.

Within 60 days after receipt by the town of said notice, and in no event later than 30 days prior to said cancellation or intent not to renew, the grantee shall obtain and furnish to the town replacement insurance policies meeting the requirements of this section. [Ord. 529 § 1 (Att. A), 2017]

12.18.134 General indemnification.

Each permit or franchise agreement shall include, to the extent permitted by law, permittee’s or grantee’s express undertaking to defend, indemnify and hold the town and its officers, officials, employees, agents and representatives harmless from and against any and all damages, losses and expenses, including reasonable attorneys’ fees and costs of suit or defense, arising out of, resulting from or alleged to arise out of or result from the negligent, careless or wrongful acts, omissions, failures to act or misconduct of the permittee, grantee, or its affiliates, officers, employees, agents, contractors or subcontractors in the construction, operation, maintenance, repair or removal of its telecommunications facilities, and in providing or offering telecommunications services over the facilities or network, whether such acts or omissions are authorized, allowed or prohibited by this chapter or by an agreement made or entered into pursuant to this chapter. [Ord. 529 § 1 (Att. A), 2017]

12.18.136 Performance and construction surety.

Before a permit or franchise granted pursuant to this chapter is effective, and as necessary thereafter, the permittee or grantee shall provide and deposit such moneys, bonds, letters of credit or other instruments in form and substance acceptable to the town as may be required by this chapter or by an applicable permit or franchise agreement. [Ord. 529 § 1 (Att. A), 2017]

12.18.140 Construction and completion bond.

Unless otherwise provided in a permit or franchise agreement, a performance bond written by a corporate surety acceptable to the town equal to at least 100 percent of the estimated cost of constructing grantee’s telecommunications facilities within the public ways of the town shall be deposited before construction is commenced.

(1) The construction bond shall remain in force until 60 days after substantial completion of the work, as determined by the town engineer, including restoration of public ways and other property affected by the construction.

(2) The construction bond shall guarantee, to the satisfaction of the town:

(a) Timely completion of construction;

(b) Construction in compliance with applicable plans, permits, technical codes and standards;

(d) Restoration of the public ways and other property affected by the construction;

(e) The submission of as-built drawings after completion of the work as required by this chapter;

(f) Timely payment and satisfaction of all claims, demands or liens for labor, material or services provided in connection with the work. [Ord. 529 § 1 (Att. A), 2017]

12.18.142 Coordination of construction activities.

All permittees and franchise grantees are required to cooperate with the town and with each other.

(1) By February 1st of each year, permittees and franchise grantees shall provide the town with a schedule of their proposed construction activities in, around or that may affect the public ways.

(2) Each grantee shall meet with the town, other grantees and users of the public ways annually or as determined by the town to schedule and coordinate construction in the public ways.

(3) All construction locations, activities and schedules shall be coordinated, as ordered by the town engineer, to minimize public inconvenience, disruption or damages. [Ord. 529 § 1 (Att. A), 2017]

12.18.144 Assignments or transfers of grant.

Ownership or control of a telecommunications system, license, permit, or franchise may not, directly or indirectly, be transferred, assigned or disposed of by sale, lease, merger, consolidation or other act of the grantee, by operation of law or otherwise, without the prior written consent of the town, which consent shall not be unreasonably withheld or delayed, except as expressed by ordinance and then only on such reasonable conditions as may be prescribed therein.

(1) No permit, franchise, or other grant shall be assigned or transferred in any manner within 12 months after the initial grant of the permit or franchise, unless otherwise provided in the permit or franchise agreement.

(2) Absent extraordinary and unforeseeable circumstances, no grant, system or integral part of a system shall be assigned or transferred before construction of the telecommunications system has been completed.

(3) The permittee or franchise grantee and the proposed assignee or transferee of the grant or system shall provide and certify the following information to the town not less than 150 days prior to the proposed date of transfer:

(a) Complete information setting forth the nature, terms and condition of the proposed transfer or assignment;

(b) All information required of a right-of-way permit or franchise applicant pursuant to Article IV of this chapter with respect to the proposed transferee or assignee;

(d) An application fee which shall be set by the town council by resolution.

(4) No transfer shall be approved unless the assignee or transferee has the legal, technical, financial and other requisite qualifications to own, hold and operate the telecommunications system pursuant to this chapter.

(5) Unless otherwise provided in a license or franchise agreement, the permittee or grantee shall reimburse the town for all direct and indirect costs and expenses reasonably incurred by the town in considering a request to transfer or assign a telecommunications license or franchise. No request shall be deemed approved until all such costs and expenses have been paid.

(6) Any transfer or assignment of a telecommunications grant, system or integral part of a system without prior written approval of the town under this section or pursuant to a license or franchise agreement shall be void and is cause for revocation of the grant. [Ord. 529 § 1 (Att. A), 2017]

12.18.146 Transactions affecting control of grant.

Any transactions which singularly or collectively result in a change of 10 percent or more of the ownership or working control of the grantee, of the ownership or working control of a right-of-way permit or franchise, of the ownership or working control of affiliated entities having ownership or working control of the grantee or of a telecommunications system, or of control of the capacity or bandwidth of the permittee’s or grantee’s telecommunication system, facilities or substantial parts thereof, shall be considered an assignment or transfer requiring town approval pursuant to this chapter. Transactions between affiliated entities are not exempt from town approval. [Ord. 529 § 1 (Att. A), 2017]

12.18.148 Revocation or termination of grant.

A permit or franchise granted by the town to use or occupy public ways of the town may be revoked for the following reasons:

(1) Construction or operation in the town or in the public ways of the town without a permit or franchise grant of authorization;

(2) Construction or operation at an unauthorized location;

(3) Unauthorized substantial transfer of control of the grantee;

(4) Unauthorized assignment of a license or franchise;

(5) Unauthorized sale, assignment or transfer of grantee’s franchise or license assets, or a substantial interest therein;

(6) Misrepresentation by or on behalf of a grantee in any application to the town;

(7) Abandonment of telecommunications facilities in the public ways;

(8) Failure to relocate or remove facilities as required in this chapter;

(9) Failure to pay taxes, compensation, fees or costs when and as due the town;

(10) Insolvency or bankruptcy of the grantee;

(11) Violation of material provisions of this chapter;

(12) Violation of the material terms of a license or franchise agreement. [Ord. 529 § 1 (Att. A), 2017]

12.18.150 Notice and duty to cure.

In the event that the town clerk believes that grounds exist for revocation of a license or franchise, he/she shall give the grantee written notice of the apparent violation or noncompliance, providing a short and concise statement of the nature and general facts of the violation or noncompliance, and providing the grantee a reasonable period of time not exceeding 30 days to furnish evidence:

(1) That corrective action has been, or is being actively and expeditiously pursued, to remedy the violation or noncompliance;

(2) That rebuts the alleged violation or noncompliance;

(3) That it would be in the public interest to impose some penalty or sanction less than revocation. [Ord. 529 § 1 (Att. A), 2017]

12.18.152 Hearing.

In the event that a grantee fails to provide evidence reasonably satisfactory to the town clerk as provided in HPMC 12.18.150, the clerk shall refer the apparent violation or noncompliance to the town council. The town council shall provide the grantee with notice and a reasonable opportunity to be heard concerning the matter. [Ord. 529 § 1 (Att. A), 2017]

12.18.154 Standards for revocation or lesser sanctions.

If persuaded that the grantee has violated or failed to comply with material provisions of this chapter or of a franchise or license agreement, the town council shall determine whether to revoke the license or franchise, or to establish some lesser sanction and cure, considering the nature, circumstances, extent and gravity of the violation as reflected by one or more of the following factors:

(1) Whether the misconduct was egregious;

(2) Whether substantial harm resulted;

(3) Whether the violation was intentional;

(4) Whether there is a history of prior violations of the same or other requirements;

(5) Whether there is a history of overall compliance;

(6) Whether the violation was voluntarily disclosed, admitted or cured. [Ord. 529 § 1 (Att. A), 2017]

Article VII. Construction Standards

12.18.160 General construction standards.

No person shall commence or continue with the construction, installation or operation of telecommunications facilities within the town except as provided in this chapter. [Ord. 529 § 1 (Att. A), 2017]

12.18.162 Construction codes.

Telecommunications facilities shall be constructed, installed, operated and maintained in accordance with all applicable federal, state and local codes, rules and regulations. [Ord. 529 § 1 (Att. A), 2017]

12.18.164 Construction permits.

No person shall construct or install any telecommunications facilities within the town without first obtaining a construction permit therefor; provided, however:

(1) No permit shall be issued for the construction or installation of telecommunications facilities within the town unless the telecommunications carrier has filed an application for a business license with the town pursuant to this chapter;

(2) No permit shall be issued for the construction or installation of telecommunications facilities in the public ways unless the telecommunications carrier has applied for and received a permit or franchise pursuant to this chapter;

(3) No permit shall be issued for the construction or installation of telecommunications facilities without payment of the construction permit fee established by a resolution adopted by the town council for this purpose. [Ord. 529 § 1 (Att. A), 2017]

12.18.166 Applications.

Applications for permits to construct telecommunications facilities shall be submitted upon forms to be provided by the town and shall be accompanied by drawings, plans and specifications in sufficient detail to demonstrate:

(1) That the facilities will be constructed in accordance with all applicable codes, rules and regulations;

(2) The location and route of all facilities to be located under the surface of the ground, including the line and grade proposed for the burial at all points along the route which are within the public ways;

(3) The location of all existing underground utilities, conduits, ducts, pipes, mains and installations which are within the public ways along the underground route proposed by the applicant;

(4) The location of all other facilities to be constructed within the town, but not within the public ways;

(5) The construction methods to be employed for protection of existing structures, fixtures, and facilities within or adjacent to the public ways; and

(6) The location, dimension and types of all trees within or adjacent to the public ways along the route proposed by the applicant, together with a landscape plan for protecting, trimming, removing, replacing and restoring any trees or areas to be disturbed during construction, consistent with all ordinances of the town relating to tree protection. [Ord. 529 § 1 (Att. A), 2017]

12.18.168 Engineer’s certification.

All permit applications shall be accompanied by the certification of a registered professional engineer that the drawings, plans and specifications submitted with the application comply with applicable technical codes, rules and regulations. [Ord. 529 § 1 (Att. A), 2017]

12.18.170 Traffic control plan.

All permit applications which involve work on, in, under, across or along any public ways shall be accompanied by a traffic control plan demonstrating the protective measures and devices that will be employed, consistent with the Manual on Uniform Traffic Control Devices (MUTCD), to prevent injury or damage to persons or property and to minimize disruptions to efficient pedestrian and vehicular traffic. [Ord. 529 § 1 (Att. A), 2017]

12.18.172 Issuance of permit.

Within 45 days after submission of all plans and documents required of the applicant and payment of the permit fees required by this chapter, the town engineer, if satisfied that the applications, plans and document comply with all requirements of this chapter, shall issue a permit authorizing construction of the facilities, subject to such further conditions, restrictions or regulations affecting the time, place and manner of performing the work as he may deem necessary or appropriate. [Ord. 529 § 1 (Att. A), 2017]

12.18.174 Construction schedule.

The permittee shall submit a written construction schedule to the town engineer 10 working days before commencing any work in or about the public ways. The permittee shall further notify the town engineer not less than two working days in advance of any excavation or work in the public ways. [Ord. 529 § 1 (Att. A), 2017]

12.18.176 Compliance with permit.

All construction practices and activities shall be in accordance with the permit and approved final plans and specifications for the facilities. The town engineer and his representatives shall be provided access to the work and such further information as he or she may require to ensure compliance with such requirements. [Ord. 529 § 1 (Att. A), 2017]

12.18.178 Display of permit.

The permittee shall maintain a copy of the construction permit and approved plans at the construction site, which shall be displayed and made available for inspection by the town engineer or his representatives at all times when construction work is occurring. [Ord. 529 § 1 (Att. A), 2017]

12.18.180 Survey of underground facilities.

If the construction permit specifies the location of facilities by depth, line, grade, proximity to other facilities or other standard, the permittee shall cause the location of such facilities to be verified by a registered state land surveyor. The permittee shall relocate any facilities which are not located in compliance with permit requirements. [Ord. 529 § 1 (Att. A), 2017]

12.18.182 Noncomplying work.

Upon order of the town engineer, all work which does not comply with the permit, the approved plans and specifications for the work, or the requirements of this chapter, shall be removed. [Ord. 529 § 1 (Att. A), 2017]

12.18.184 Completion of construction.

The permittee shall promptly complete all construction activities so as to minimize disruption of the town ways and other public and private property. All construction work authorized by a permit within town ways, including restoration, must be completed within 30 days of the date of issuance, subject to the discretion of the town engineer to grant extensions as he or she deems reasonable under the circumstances. [Ord. 529 § 1 (Att. A), 2017]

12.18.186 As-built drawings.

Within 10 days after completion of construction, the permittee shall furnish the town with two complete sets of plans, drawn to scale and certified to the town as accurately depicting the location of all telecommunications facilities constructed pursuant to the permit. [Ord. 529 § 1 (Att. A), 2017]

12.18.188 Restoration of improvements.

Upon completion of any construction work, the permittee shall promptly repair any and all public and private property improvements, fixtures, structures and facilities in the public ways or otherwise damaged during the course of construction, restoring the same as nearly as practicable to its condition before the start of construction. [Ord. 529 § 1 (Att. A), 2017]

12.18.190 Landscape restoration.

(1) All trees, landscaping and grounds removed, damaged or disturbed as a result of the construction, installation maintenance, repair or replacement of telecommunications facilities, whether such work is done pursuant to a franchise, license, or permit, shall be replaced or restored as nearly as may be practicable, to the condition existing prior to performance of work.

(2) All restoration work within the public ways shall be done in accordance with landscape plans approved by the town engineer. [Ord. 529 § 1 (Att. A), 2017]

12.18.192 Construction surety.

Prior to issuance of a construction permit, the permittee shall provide a performance bond conforming to the requirements of HPMC 12.18.140. [Ord. 529 § 1 (Att. A), 2017]

12.18.194 Exceptions.

Unless otherwise provided in a license or franchise agreement, all telecommunications carriers are subject to the requirements of this chapter. [Ord. 529 § 1 (Att. A), 2017]

12.18.196 Responsibilities of the owner.

The owner of the facilities to be constructed and, if different, the license or franchise grantee, are responsible for performance of and compliance with all provisions of this chapter. [Ord. 529 § 1 (Att. A), 2017]