Chapter 12.40
CONDITIONS FOR USE OF RIGHTS-OF-WAY
Sections:
12.40.020 Removal of unauthorized facilities.
12.40.040 Duty to provide information.
12.40.060 Release, indemnity and hold harmless.
12.40.080 Assignments or transfers.
12.40.090 Transactions affecting control.
12.40.100 Revocation or termination.
12.40.110 Notice and duty to cure.
12.40.130 Standards for revocation or lesser sanctions.
12.40.005 Applicability.
The terms of this Chapter 12.40, conditions for use of rights-of-way, and the Ch. 12.20 LCC shall apply to all grantees. [Ord. 1171, 2000]
12.40.010 General duties.
(1) All grantees, before commencing any construction in the rights-of-way, shall comply with all requirements of the Lewis County Code or other ordinances of the county.
(2) All grantees shall have no ownership rights in rights-of-way, even though they may be granted a license, franchise or cable franchise to construct or operate their facilities. [Ord. 1171, 2000]
12.40.020 Removal of unauthorized facilities.
(1) In its discretion, the director at any time may require any person who owns, controls or maintains any unauthorized telecommunications facility or cable facility or related appurtenances within the rights-of-way to:
(a) Apply for a license, franchise or cable franchise within thirty days of receipt of written notice from the county to such person that such a license, franchise or cable franchise is required; or
(b) Require such person to remove all facilities and restore the affected area within ninety 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 applicable law.
(2) A telecommunications facility or cable facility is unauthorized and subject to removal in the following circumstances:
(a) Upon expiration or termination of the grantee’s license, franchise or cable franchise unless otherwise provided by law;
(b) Upon abandonment of a facility within the rights-of-way;
(c) If the facility was constructed or installed without the prior issuance of a required encroachment, utility or other permit;
(d) If the facility was constructed or installed at a location not permitted by the grantee’s license, franchise or cable franchise;
(e) To the extent permitted by law, any such other reasonable circumstances affecting public health, safety and welfare deemed necessary by the director.
(3) Notwithstanding any other provision of this section, the director may, in its sole discretion, allow a grantee or other person who may own, control or maintain telecommunications facilities or cable facilities within the rights-of-way of Lewis County to abandon such facilities in place. No facilities of any type may be abandoned in place without the express written consent of the director. Any plan for abandonment or removal of such facilities must be first approved by the director and all necessary permits must be obtained prior to commencement of such work. Upon permanent abandonment of any telecommunications facilities or cable facilities of such persons in place, the facilities shall become the property of the county, and such persons shall submit to the director an instrument in writing, to be approved by the prosecuting attorney’s office, transferring ownership of such facilities to the county. The provisions of this section shall survive the expiration, revocation or termination of any license, franchise or cable franchise granted under Chs. 12.25 through 12.50, and Ch. 5.10 LCC. [Ord. 1171, 2000]
12.40.030 Facilities maps.
Upon request by the director, the grantee shall provide the county with maps in a format agreed to by the grantee and the county, identifying the location of all telecommunications facilities and cable facilities within the rights-of-way except individual service connections. [Ord. 1171, 2000]
12.40.040 Duty to provide information.
Within ten days of a written request from the director, each grantee shall furnish the director with information reasonably necessary to fulfill purposes of Chs. 12.25 through 12.50 LCC and sufficient to demonstrate:
(1) That grantee has complied with all requirements of Chs. 12.25 through 12.50 LCC;
(2) That all taxes and fees due the county in connection with the telecommunications services and telecommunications facilities or cable services and cable facilities provided by the grantee have been properly collected and paid by the grantee;
(3) That 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 director and the director at reasonable times and intervals. [Ord. 1171, 2000]
12.40.050 Grantee insurance.
Unless otherwise provided by a license, franchise or cable franchise, before commencing construction in the rights-of-way, each grantee shall secure and maintain the following liability insurance polices:
(1) Commercial general liability insurance, and if necessary, umbrella liability insurance, which will cover bodily injury, property damage, and any other exposure which can be reasonably identified as potentially arising from the grantee’s activities within the rights-of-way. The limit of liability shall not be less than two million dollars each occurrence. The county, its elected and appointed officers, officials, employees, agents and representatives shall be named as additional insureds with respect to 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 completed operations, explosions, collapse and underground hazards;
(2) Business automobile liability insurance for owned, nonowned and hired vehicles with limits of not less than two million dollars per person, three million dollars per accident;
(3) Workers’ Compensation insurance as required by Title 51 RCW and employers liability coverage with a limit of not less than one million dollars 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 forty-five days before the policy can be canceled by either party, and to require notice of cancellation due to nonpayment of premium to be mailed to the director 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 twenty days before the expiration or cancellation of the existing policy(s);
(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. 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 Chs. 12.25 through 12.50 LCC upon request of the director;
(7) The insurance limits mandated for any insurance coverage required by Chs. 12.25 through 12.50 LCC are not intended to be an indication of limits of exposure nor are they limitations on liability or indemnification. [Ord. 1171, 2000]
12.40.060 Release, indemnity and hold harmless.
(1) In addition to and distinct from the insurance requirements of Chs. 12.25 through 12.50 LCC, grantee releases and shall defend, indemnify and hold harmless county, its elected and appointed officers, officials, employees, agents and representatives (collectively referred to as the “indemnitees”) from any and all claims, 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 or in connection with the telecommunications facilities or cable facilities or installation of any telecommunications facilities or cable facilities, the performance of any work, the operation of any telecommunications facilities or cable facilities, or the grantee’s system, or the acts or omissions of the grantee or any of its suppliers or contractors of any tier, or anyone acting on the grantee’s behalf in connection with such installation of telecommunications facilities or cable facilities, performance of work, or operation of telecommunications facilities or cable facilities or grantee’s system.
(2) Such indemnity, protection and hold harmless shall include any demand, claim, suit or judgment for damages to property or injury to or death of persons, including officers, agents and employees of any person including payment made under or in connection with any Work’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 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 indemnifies, protects and saves harmless the indemnitees against any 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 facilities.
(4) To the fullest extend 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 Section 12.40.060 shall apply to the successors and assigns of the grantee. [Ord. 1171, 2000]
12.40.070 Security fund.
(1) Before commencing construction or obtaining a license or franchise, or cable franchise under Ch. 5.10 LCC, in the county rights-of-way, each grantee shall establish a permanent security fund with the county by depositing the amount of up to fifty thousand dollars 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 the grantee’s telecommunications facilities or cable 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 franchise. If a grantee has telecommunications facilities or cable facilities in the rights-of-way for five consecutive years, the grantee may request the county to waive the requirement for a security fund.
(2) The fund shall serve as security for the full and complete performance of grantee’s obligations under Chs. 12.25 through 12.50 LCC, 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.
(3) Before any sums are withdrawn from the security fund, the Director 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 moneys 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 director.
(4) Grantee shall replenish the security fund within fourteen days after the mailing date of written notice from the director that there is a deficiency in the amount of the fund. [Ord. 1171, 2000]
12.40.080 Assignments or transfers.
(1) Ownership or control of a license, franchise or cable franchise may not directly or indirectly, be transferred, assigned or disposed of by sale, lease, merger or 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:
(a) No grant with respect to a telecommunications service shall be assigned or transferred in any manner within twelve months after the initial grant of the license or franchise unless otherwise provided by law.
(b) Absent extraordinary and unforeseeable circumstances and to the extent permitted by law, no grant with respect to a telecommunications service shall be assigned or transferred before construction of the telecommunications facilities have been completed.
(c) The proposed assignee or transferee shall provide and certify the following information to the director:
(i) Complete information setting forth the nature, terms and conditions of the proposed transfer or assignment;
(ii) All information required of a license, franchise or cable franchise applicant pursuant to Chs. 12.25 through 12.50 LCC with respect to the proposed transferee or assignee;
(iii) All information required by federal, state and local law or regulation, including, but not limited to, FCC Form 394;
(iv) Any other information reasonably required by the director.
(2) 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 Chs. 12.25 through 12.50 LCC, and unless there is compliance with the license, franchise and cable franchise (as applicable).
(3) The assignee or transferee shall reimburse the county for all direct and indirect costs and expenses incurred by the county in considering a request to transfer ownership in or assign a license, franchise or cable franchise unless otherwise prohibited by law.
(4) Any transfer of ownership in or assignment of a license, franchise or cable franchise without prior approval of the county under Chs. 12.25 through 12.50 LCC shall be void and is cause for revocation of the grant.
(5) Upon receipt of all information required in Chs. 12.25 through 12.50 LCC, and any other information reasonably required by the county, the county shall have one hundred twenty 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 period of time needed to complete its review, and such review period shall be extended to the extent permitted by law.
(6) In addition to the other requirements in Chs. 12.25 through 12.50 LCC, a copy of the transfer or assignment document, deed and other documentation deemed necessary by the county shall also be filed with the director within ten days of any change in ownership or control.
(7) Except as provided in Section 12.40.090 below, 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 Chs. 12.25 through 12.50 LCC, a license, franchise, or cable franchise. Nothing contained in Chs. 12.25 through 12.50 LCC shall prevent or restrict an assignor’s, lessor’s, or person’s right to (1) mortgage its interest; or (2) assign or lease to a third party fiber optic cables 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, lease or assignment. Such assignors and lessors shall, however, be responsible for written notification to county of such assignment or lease due to those occurrences defined in Chs. 12.25 through 12.50 LCC in which county’s consent is not required, and such notification shall include the appropriate names, address and contact points for the assignee or lessee. [Ord. 1171, 2000]
12.40.090 Transactions affecting control.
Any transaction which results in any change of the ownership or in any manner of the working control, of the ownership or working control of a licensee or franchisee, of the ownership or working control of affiliated entities having ownership or working control (defined as twenty percent or more ownership or control), including, but not limited to, a change of twenty percent or more of change in financial ownership or make up or the nature of the business entity, shall be considered an assignment or transfer requiring county approval hereunder. [Ord. 1171, 2000]
12.40.100 Revocation or termination.
A license, franchise or cable 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;
(3) Unauthorized assignment of a license, franchise or cable franchise;
(4) Misrepresentation in any application to the county;
(5) Abandonment of telecommunications facilities or cable facilities in the rights-of-way;
(6) Failure to relocate or remove telecommunications facilities or cable facilities as required in Chs. 12.25 through 12.50, and 5.10 LCC;
(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 Chs. 12.25 through 12.50, and 5.10 LCC;
(10) Violation of a material term of a license, franchise or cable franchise. [Ord. 1171, 2000]
12.40.110 Notice and duty to cure.
In the event that the director believes that grounds exist for revocation of a license, franchise or cable franchise, written notice shall be given of the apparent violation or noncompliance, there shall be provided a short and concise statement of the nature and general facts of the violation or noncompliance, and there shall be given a reasonable period of time not exceeding thirty 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 monetary damages, penalty or sanction less than revocation. [Ord. 1171, 2000]
12.40.120 Hearing.
(1) In the event that a grantee fails to provide evidence reasonably satisfactory to the director as provided hereunder, the director shall make a preliminary determination as to whether an event of default by grantee has occurred and initially prescribe remedies in accordance with Section 12.40.130. In the event that a grantee wants to appeal such determination, it shall do so to the hearing examiner, who shall conduct an open appeals hearing pursuant to Chapter 2.25 LCC. In the event a further appeal is sought by the grantee, it may make such further appeal as may be provided for at law in the Lewis County Superior Court.
(2) With respect to apparent violations or noncompliance provided for in Chs. 12.25 through 12.50 LCC, appeals to the hearing examiner shall be made within fourteen days of the preliminary determination of default by the director, and after notice and opportunity to cure as referred to in Section 12.40.110. [Ord. 1171, 2000]
12.40.130 Standards for revocation or lesser sanctions.
If persuaded that the grantee has violated or failed to comply with a material provision of Chs. 12.25 through 12.50 LCC or of a license, franchise, cable franchise or applicable codes, ordinances, statutes, or rules and regulations, the director shall make a preliminary determination whether to revoke the license, franchise or cable franchise, and issue a written order, 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. 1171, 2000]