Chapter 13.80
CONDITIONS OF GRANT OF LICENSE, FRANCHISE OR CABLE TELEVISION FRANCHISE
Sections:
13.80.020 Interference with the rights-of-way.
13.80.030 Repair and emergency work.
13.80.040 Maintenance of facilities.
13.80.050 Relocation or removal of facilities.
13.80.060 Removal of unauthorized facilities.
13.80.070 Failure to relocate.
13.80.080 Emergency removal or relocation of facilities.
13.80.090 Damage to grantee’s facilities.
13.80.100 Location of facilities.
13.80.110 Duty to provide information.
13.80.130 General indemnification.
13.80.140 Performance and financial guarantees.
13.80.160 Assignments or transfers of grant.
13.80.170 Transactions affecting control of grant.
13.80.200 Revocation or termination of grant.
13.80.210 Notice and duty to cure.
13.80.230 Standards for revocation or lesser sanctions.
13.80.005 Applicability.
The terms of this chapter and the ordinance establishing accommodation of utilities upon Jefferson County rights-of-way (Chapter 13.56 JCC) shall apply to all grantees regulated by Chapters 13.60 through 13.92 JCC. [Ord. 2-00 § 1]
13.80.010 General duties.
(1) All grantees, before commencing any construction in the rights-of-way, shall comply with all requirements of the Jefferson County Code or other ordinances of the county.
(2) Grantees shall have no ownership rights in rights-of-way, even though they may be granted a license, franchise or cable television franchises to construct or operate their facilities.
(3) Grantee or other person acting on its behalf shall use suitable barricades, flags, flaggers, 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. [Ord. 2-00 § 1]
13.80.020 Interference with the rights-of-way.
No grantee may locate or maintain its telecommunications facilities so as to unreasonably interfere with the use of the rights-of-way by the county, by the general public or other persons authorized to use or occupy the rights-of-way. [Ord. 2-00 § 1]
13.80.030 Repair and emergency work.
In the event of an emergency or an emergency repair necessary to protect the public, restore service or mitigate further damage to the system, a grantee may commence such repair and emergency response work as required under the circumstances, provided the grantee shall notify the administrator in writing preferably before such repair or emergency work or within 24 hours thereafter if advance notice is not practicable. [Ord. 2-00 § 1]
13.80.040 Maintenance of facilities.
Each grantee shall maintain its facilities in good and safe condition and in a manner that complies with all applicable federal, state and local requirements. Any private property owner whose property will be affected by a grantee’s work shall be afforded 10 calendar days’ advance written notice of such work. [Ord. 2-00 § 1]
13.80.050 Relocation or removal of facilities.
(1) Within 90 days following written notice from the county and receipt of final design from the county, or within a reasonable time frame established by the administrator, a grantee shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any utility facilities within the rights-of-way whenever the administrator shall have determined that such removal, relocation, change or alteration is reasonably necessary for:
(a) The construction, repair, maintenance or installation of any county, state, federal and/or county funded project; or
(b) The operations of the county or other governmental entity in or upon the rights-of-way.
The administrator may extend the 90-day time period or the initial time frame established for good cause.
(2) All work must be accomplished through the same permitting process as for new installations in order to insure that said new installations are in compliance with county regulations and standards; however pursuant to this section, permit fees shall be waived by the county.
(3) In response to any public health or safety emergency, the county may also remove or relocate any utility facilities located within the rights-of-way that the county determines to be necessary, appropriate or useful. All such removal or relocation shall be at the sole expense of the grantee.
(4) A grantee shall be responsible for the security of each existing pipeline and utility facility within a road construction zone. Where there are unusual utility hazards or where heavy construction equipment will be used, the grantee shall provide adequate temporary protection.
(5) If a grantee is required to relocate or remove its utility facilities from the rights-of-way and fails to do so within the designated time set out by the administrator, the county may cause such to occur and charge the grantee for the costs incurred.
(6) Nothing in this section shall require the grantee to bear any costs or expense in connection with the location or relocation of any facilities existing under benefit of private easement or such other prior private rights.
(7) The county reserves for itself the right at any time, upon 48 hours’ written notice to the grantee, to so change, amend, modify, or amplify any provision or conditions herein enumerated to conform to any state or county regulation relating to the public health, safety or highway regulation as many be enacted, amended, adopted, changed, etc. A permit may be terminated upon 30 days’ written notice to grantee if facilities are not operated or maintained in accordance with permit provisions. [Ord. 2-00 § 1]
13.80.060 Removal of unauthorized facilities.
(1) In its discretion, the administrator at any time may require any person who owns, controls or maintains any unauthorized telecommunications or cable system, facility or related appurtenances within the rights-of-way to:
(a) Apply for a license, franchise or cable television franchise within 30 days of receipt of written notice from the county to such person that such a license, franchise or cable television franchise is required; or
(b) Require such person to remove its facilities and restore the affected area within 90 days to a condition satisfactory to the county; or
(c) Direct county personnel to remove the facilities and restore the affected area to a condition satisfactory to the county and charge the person the costs therefor, including by placing a lien on the person’s property; or
(d) Take any other action authorized by law.
(2) A telecommunications or cable service facility is unauthorized and subject to removal in the following circumstances:
(a) Upon expiration or termination of the grantee’s license, franchise or cable television franchise;
(b) Upon abandonment of a facility within the rights-of-way;
(c) If the system or facility was constructed or installed without the prior issuance of a required encroachment or utility permit;
(d) If the system or facility was constructed or installed at a location not permitted by the grantee’s license, franchise or cable television franchise;
(e) To the extent permitted by law, any such other reasonable circumstances affecting public health, safety and welfare deemed necessary by the administrator.
(3) Notwithstanding any other provision of this section, the administrator may, in its sole discretion, allow a grantee or other person who may own, control or maintain a cable system or telecommunications facilities or cable television facilities within the right-of-way of Jefferson County to abandon such facilities in place. No facilities of any type may be abandoned in place without the express written consent of the administrator. Any plan for abandonment or removal of such facilities must be first approved by the administrator and all necessary permits must be obtained prior to commencement of such work.
(4) Abandoned Facilities. A telecommunications or cable system, facility or related appurtenances within the rights-of-way which has been discontinued service for a period of six consecutive months or longer is hereby declared abandoned. Abandoned facilities shall be removed by the property owner within 90 days from date of abandonment. Failure to remove an abandoned facility is declared a public nuisance and is subject to penalties.
(5) Upon written application, prior to the expiration of the six-month period, the administrator shall in writing grant a six-month stay of the declaration of abandonment. Additional extensions beyond the first six-month extension may be granted by the administrator subject to any conditions required to bring the project or facility into compliance with current law(s) and make compatible with surrounding development.
(6) If the facilities are not removed within the time period described above, the county shall have the authority to enter the property and remove the facilities. All reasonable and documented costs of such removal shall be charged to the provider and/or landowner of record. Following abandonment in place of any cable system or telecommunications facilities, the facilities shall become the property of the county. The provisions of this section shall survive the expiration, revocation or termination of any license, franchise or cable television franchise granted under Chapters 13.60 through 13.92 JCC. [Ord. 2-00 § 1]
13.80.070 Failure to relocate.
If a grantee is required to relocate, change or alter the telecommunications facilities hereunder and fails to do so, the county may cause such to occur and charge the grantee for all actual costs incurred. [Ord. 2-00 § 1]
13.80.080 Emergency removal or relocation of facilities.
The county retains the right and privilege to cut or move any telecommunications facilities located within the rights-of-way as the county may determine to be necessary, appropriate or useful in response to any public health or safety emergency. [Ord. 2-00 § 1]
13.80.090 Damage to grantee’s facilities.
The county shall not be liable for any damage to or loss of any telecommunications facility within the rights-of-way as a result of or in connection with any emergency removal or relocation, public works, public improvements, construction, excavation, grading, filling, or work of any kind in the rights-of-way by or on behalf of the county except for damage caused by the negligence of the county. [Ord. 2-00 § 1]
13.80.100 Location of facilities.
Upon the request of the administrator, a franchisee shall provide the county with maps which identify the horizontal location of its facilities within the county rights-of-way. A franchisee shall submit plans on a Digital Geographical Information System (GIS) and on a computer based format compatible with Auto CAD or format approved by the administrator. In addition, a franchisee shall consult with the public works department to specify the vertical location of its facilities within county rights-of-way, in a manner and format agreed to by the administrator and the franchisee. Each grantee shall provide updated as-built maps once every two years to the administrator. [Ord. 2-00 § 1]
13.80.110 Duty to provide information.
Within 30 calendar days of receipt of a written request from the administrator, each grantee shall furnish the administrator with information reasonably necessary to fulfill purposes of Chapters 13.60 through 13.92 JCC and sufficient to demonstrate that:
(1) Grantee has complied with all requirements of Chapters 13.60 through 13.92 JCC;
(2) All taxes and fees due the county in connection with the telecommunications services, telecommunication facilities, and cable television services and cable television 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 rights-of-way have been made available for inspection by the administrator at reasonable times and intervals. [Ord. 2-00 § 1]
13.80.120 Grantee insurance.
Unless otherwise provided by a license, franchise, or cable television franchise, each grantee shall, prior to commencing with construction activities in the rights-of-way, secure, submit to the administrator, and maintain the following liability insurance policies insuring both the grantee and the county:
(1) Commercial general liability insurance, and as required, umbrella liability insurance, which will cover bodily injury, property damage, and any other exposure which can be reasonably identified as potentially arising from the grantees’ activities within the rights-of-way. The limit of liability provided in this mandated commercial general liability insurance policy shall not be less than $2,000,000 for each occurrence. The county, its elected and appointed officers, officials, employees, agents, and representatives shall be named as additional insureds with respect to grantee’s activities occurring within its rights-of-way. Coverage shall be comprehensive with respect to the grantee’s activities within the rights-of-way and shall include, by way of example but not by way of limitation, insurance coverage for omissions by the grantee, the grantee’s completed operations, and the possibility of explosions, collapses and underground hazards. The county and the franchisee or grantee shall, within the terms of the documents memorializing the terms and conditions of the franchise, determine the quantity of umbrella liability insurance that the county shall mandate as necessary.
(2) Business automobile liability insurance for owned, not owned, non-owned and hired vehicles with limits of not less than $2,000,000 per person, $3,000,000 per accident.
(3) Workers’ compensation insurance required by RCW Title 51, and employers liability coverage with a limit of not less than $1,000,000 per occurrence.
(4) The insurance policies required by this section shall be maintained at all times by the grantee. Each liability policy shall be endorsed to require the insurer to notify the county at least 45 days before the policy can be cancelled by either party, and to require notice of cancellation due to nonpayment of premium to be mailed to the administrator as well as the named insured. The grantee will be obligated to replace or renew the canceled or expiring policy and show proof in the form of a certificate of insurance, at least 20 days before the expiration or cancellation of any one or all of the existing policy or policies.
(5) The grantee shall furnish the county with properly executed certificates of insurance or a signed policy endorsement which shall clearly evidence all insurance required in this section prior to commencement of telecommunications services. The certificate will, at a minimum, list limits of liability, coverage, and all exclusions.
(6) The grantee or its agent will provide a copy of any and all insurance policies specified in Chapters 13.60 through 13.92 JCC upon request of the administrator.
(7) The insurance limits mandated for any insurance coverage required by Chapters 13.60 through 13.92 JCC are not intended to be an indication of limits of exposure nor are they limitations on liability or indemnification. [Ord. 2-00 § 1]
13.80.130 General indemnification.
(1) In addition to and distinct from the insurance requirements of Chapters 13.60 through 13.92 JCC, grantee releases and shall defend, indemnify and hold harmless the county, its elected and appointed officers, officials, employees, agents, and representatives (collectively referred to as the “indemnitees”) from any and all claims, lawsuits, losses, costs, liabilities, damages and expenses, including, but not limited to, those of the grantee’s lessees, and also including, but not limited to, reasonable attorneys’ fees (except those damages caused solely by the negligence of the indemnitees) arising out of, caused by or in connection with any act or omission by the grantee with respect to (a) the grantee’s telecommunications facilities or cable television facilities, (b) the installation of any telecommunications facilities or cable television facilities, (c) the performance of any work, (d) the operation of any telecommunications facilities or cable television facilities, (e) the grantee’s system. Grantee further releases and shall defend, indemnify and hold harmless the county, its elected and appointed officers, officials, employees, agents, and representatives (collectively referred to as the “indemnitees”) from any and all claims, lawsuits, losses, costs, liabilities, damages and expenses, including, but not limited to, those of the grantee’s lessees, and also including, but not limited to, reasonable attorneys’ fees (except those damages caused solely by the negligence of the indemnitees) arising out of, caused by or in connection with any act or omission by any of the grantee’s suppliers or contractors of any tier, or anyone acting on the grantee’s behalf in connection with said installation of telecommunications facilities or cable television facilities, performance of work, or operation of telecommunications facilities or cable television facilities or grantee’s system.
(2) Such indemnity, protection and hold harmless shall include any demand, claim, suit or judgment seeking money damages as a result of alleged injury to property or person or persons, or death of an individual or individuals, including officers, agents, and employees of any person. Such indemnity, protection and hold harmless shall include payment made under or in connection with any worker’s compensation law or under any plan for employees’ disability and death benefits, which may arise out of or be caused or contributed to directly or indirectly by any act or omission relating to or arising from the erection, maintenance, presence, operation, use or removal of grantee’s telecommunications facilities or cable facilities or installations of telecommunications facilities or cable facilities including any claims or demands of customers of the grantee with respect thereto.
(3) Indemnitees shall not be liable to the grantee or to the grantee’s customers, and the grantee hereby indemnifies, protects and saves harmless the indemnitees against any such and all such claims or demands, suit or judgment for loss, liability, damages and expense by the grantee’s customers, or for any interruption to the service of the grantee, or for interference with the operation of the telecommunications facilities or cable television facilities.
(4) To the fullest extent permitted by applicable law, the foregoing release, indemnity and hold harmless provisions shall apply to and be for the benefit of the indemnitees.
(5) All provisions of JCC 13.80.130 shall apply to the successors and assigns of the grantee. [Ord. 2-00 § 1]
13.80.140 Performance and financial guarantees.
Before a license or franchise granted pursuant to Chapters 13.60 through 13.92 JCC is effective, and as necessary thereafter, the grantee shall provide and deposit such monies, bonds, letters of credit or other instruments in form and substance acceptable to the county as may be required by Chapters 13.60 through 13.92 JCC, or by an applicable license, franchise or cable television franchise agreement or other applicable code, ordinance, rules or regulations of the county. [Ord. 2-00 § 1]
13.80.150 Security fund.
Before commencing construction or obtaining a license, franchise, or cable television franchise in the rights-of-way, each grantee shall establish a permanent security fund with the county by depositing the amount of up to $50,000 with the county in cash, an unconditional letter of credit, or other instrument acceptable to the county, which fund shall be maintained in the designated amount at the sole expense of grantee so long as any of grantee’s telecommunications facilities or cable television facilities are located within the rights-of-way. This security fund shall be separate and distinct from any other bond, letter of credit, or deposit required by a telecommunications franchise or cable television franchise. If a grantee has telecommunications facilities or cable television facilities in the rights-of-way for five consecutive years, the grantee may request from the administrator a waiver of the security fund requirement.
(1) The fund shall serve as security for the full and complete performance of grantee’s obligations under Chapters 13.60 through 13.92 JCC, including any costs, expenses, damages or loss the county pays or incurs because of any failure attributable to the grantee to comply with the codes, ordinances, rules, regulations or permits of the county.
(2) Before any sums are withdrawn from the security fund, the administrator shall give written notice to the grantee:
(a) Describing the act, default or failure to be remedied, or the damages, cost or expenses which the county has incurred by reason of the grantee’s act or default;
(b) Providing a reasonable opportunity for the grantee to first remedy the existing or ongoing default or failure;
(c) Providing a reasonable opportunity for the grantee to pay any monies due the county before the county withdraws the amount thereof from the security fund; and
(d) That the grantee will be given an opportunity to review the act, default or failure described in the notice with the administrator.
(3) Grantee shall replenish the security fund within 14 days after written notice from the administrator that there is a deficiency in the amount of the fund. [Ord. 2-00 § 1]
13.80.160 Assignments or transfers of grant.
Ownership or control of a license, franchise or cable television franchise may not directly or indirectly be transferred, assigned or disposed of by sale, lease, merger, consolidation, by operation of law or otherwise, nor may there be a transfer of working control (which includes not only actual control, but also the ability to affect or influence decisions) without the prior written consent of the county, as expressed by ordinance and then on such conditions as may be prescribed therein and:
(1) No grant for telecommunications services shall be assigned or transferred in any manner within 12 months after the initial grant of the license or franchise unless otherwise provided by law.
(2) Absent extraordinary and unforeseeable circumstances, and to the extent permitted by law, no grant for telecommunication services shall be assigned or transferred before construction of the telecommunications facilities has been completed.
(3) The proposed assignee or transferee shall provide and certify the following information to the administrator:
(a) Complete information setting forth the nature, terms and conditions of the proposed transfer or assignment;
(b) All information required of a license, franchise or cable television franchise applicant pursuant to Chapters 13.60 through 13.92 JCC with respect to the proposed transferee or assignee;
(c) All information required by federal, state and local law or regulation, including, but not limited to, FCC Form 394;
(d) Any other information reasonably required by the administrator.
(4) No transfer shall be approved unless the assignee or transferee has the legal, technical, financial and other qualifications in the county’s reasonable discretion to own, hold and operate the telecommunications system pursuant to Chapters 13.60 through 13.92 JCC, and unless there is compliance with the license, franchise and cable television franchise.
(5) The assignee or transferee shall reimburse the county for all direct and indirect fees, costs and expenses incurred by the county in considering a request to transfer ownership in or assign a license, franchise or cable television franchise.
(6) Any transfer of ownership in or assignment of a license, franchise, cable television franchise without prior approval of the county under Chapters 13.60 through 13.92 JCC shall be void and is cause for revocation of the grant.
(7) Upon receipt of all information required herein, and any other information reasonably required by the county, the county shall have 120 days to review and approve or deny the requested assignment or transfer. If the county is unable to approve or deny the requested assignment or transfer within such period, the county shall provide notice of the reasons for the delay and the estimated period of time needed to complete its review, and such review period shall be extended to the extent permitted by law.
(8) In addition to the other requirements herein, a copy of the transfer or assignment document, deed or other documentation deemed necessary by the county shall also be filed with the administrator within 10 days of any change in ownership or control.
(9) Except as provided in JCC 13.80.170, county’s consent shall not be required for any assignment which is the result of a corporate merger, sale of all or substantially all of the corporate assets, sale of any or all of the corporate stock, consolidation or reorganization, whether voluntary or involuntary, or assignment to a subsidiary, parent, or affiliated company so long as such assignee or transferee is financially qualified and there are no outstanding issues of noncompliance under Chapters 13.60 through 13.92 JCC, a license, franchise or cable franchise. Nothing contained herein shall prevent or restrict a grantee’s right to (a) mortgage its interest or (b) assign or lease to a third party fiber optic cable or telecommunication capacity (so long as it is for uses authorized by telecommunications franchises or cable franchises), and no consent shall be required for such mortgage or lease. Grantees shall, however, be responsible for written notification to county of such mortgage or lease. Such notification shall include the appropriate names, address and contact points for the mortgagee or lessee. [Ord. 2-00 § 1]
13.80.170 Transactions affecting control of grant.
Any transaction which results in any change of the ownership or in any manner of the working control of a licensee or franchisee, or of affiliated entities having ownership or working control of any parts thereof, defined as 20 percent or more ownership or control (including, but not limited to, a change of 20 percent or more of change in financial ownership, makeup, or nature of the business entity), shall be considered an assignment or transfer requiring county approval. [Ord. 2-00 § 1]
13.80.200 Revocation or termination of grant.
A license, franchise or cable television franchise granted by the county to use or occupy rights-of-way may be revoked for any one or more of the following reasons:
(1) Construction or operation at an unauthorized location;
(2) Unauthorized transfer of control of the grantee;
(3) Unauthorized assignment of a license, franchise or cable television franchise;
(4) Misrepresentation by a grantee in any application to the county;
(5) Abandonment of telecommunications facilities or cable television facilities in the rights-of-way;
(6) Failure to relocate or remove telecommunications facilities or cable television facilities as required in Chapters 13.60 through 13.92 JCC;
(7) Failure to pay taxes, compensation, fees or costs when and as due the county;
(8) Insolvency or bankruptcy;
(9) Violation of a material provision of Chapters 13.60 through 13.92 JCC;
(10) Violation of a material term of a license, franchise or cable television franchise. [Ord. 2-00 § 1]
13.80.210 Notice and duty to cure.
In the event that the administrator believes that grounds exist for revocation of a license, franchise or cable television franchise, the administrator shall give grantee written notice of the alleged violation or noncompliance, consisting of a short and concise statement of the nature of the violation or noncompliance, grantee shall be given a reasonable period of time not exceeding 30 days to furnish evidence that:
(1) Corrective action has been, or is being actively and expeditiously pursued, to remedy the violation or noncompliance;
(2) Rebuts the alleged violation or noncompliance;
(3) It would be in the public interest to impose some monetary damages, penalty or sanction less than revocation. [Ord. 2-00 § 1]
13.80.220 Hearing.
In the event that a grantee fails to provide evidence reasonably satisfactory to the administrator as described in JCC 13.80.210, the administrator or designee shall prepare a recommendation and report as described in JCC 13.80.230, and shall refer the matter to the board. The board shall provide the grantee with notice of not less than 10 business days regarding the hearing before the board and a reasonable opportunity to be heard, and shall decide whether to revoke the franchise or licensee, or impose lesser sanctions. [Ord. 2-00 § 1]
13.80.230 Standards for revocation or lesser sanctions.
If persuaded that the grantee has violated or failed to comply with a material provision of Chapters 13.60 through 13.92 JCC or of a franchise, license, cable television franchise or applicable codes, ordinances, statutes, or rules and regulations, the administrator shall make a preliminary recommendation and report to the board as to whether to revoke the license, franchise or cable television franchise, or to impose monetary damages, a penalty, or other such 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. 2-00 § 1]