Chapter 12.16 TELECOMMUNICATIONS

B. Establish clear local guidelines and standards for the exercise of local authority with respect to the regulation of telecommunications carriers, providers and services;

C. Promote competition in telecommunications;

D. Minimize unnecessary local regulation of telecommunications carriers, providers and services;

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

F. Permit and manage reasonable access to the public ways of the city for telecommunications purposes on a competitively neutral basis;

G. Conserve the limited physical capacity of the public ways held in public trust by the city;

H. Assure that the city’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;

I. Secure fair and reasonable compensation to the city and the residents of the city for permitting private use of the public ways;

J. Assure that all telecommunications carriers providing facilities or services within the city comply with the ordinances, rules and regulations of the city;

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

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

M. Telecommunications providers are exempt from the requirements of the provisions of this chapter until such time as the city amends this chapter.

12.16.020 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:

"Access channels" means channels set aside by a franchisee exclusively for noncommercial public, educational, or governmental use (commonly referred to as "PEG" channels).

"Addressability" means the ability of a system allowing a franchisee to authorize specific equipment to receive, change or to cancel any or all specified programming.

"Affiliate" means a person who (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with another person.

"Applicant" means any person or entity that applies for any authorization, franchise, lease, or permit pursuant to this chapter.

"Basic cable service" means the lowest level of service regularly provided to all subscribers that includes the retransmission of local broadcast signals.

"Cable Act" shall mean the Cable Communications Policy Act of 1984, 47 U.S.C. 532, et seq., as now and hereafter amended.

"Cable facilities" means equipment and wiring used to transmit audio and video signals to subscribers.

"Cable operator" means a telecommunications carrier providing or offering to provide "cable service" within the city as that term is defined in the Federal Cable Act.

"Cable service" shall have the same meaning provided by the Federal Cable Act.

"Cable system" means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service and other service to subscribers.

"Cablecast" means the distribution of programming which originates within the facilities of the cable television system.

"Channel" or "cable channel" means a portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television signal as defined by the Federal Communications Commission.

"Character generator" means a device used to generate alphanumerical programming to be cablecast on a cable channel.

"City" means the city of Mill Creek, Washington.

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

"Council" means the city council of the city of Mill Creek, Washington, acting in its official capacity.

"Data communication" means (1) the transmission of encoded information, or (2) the transmission of data from one point to another.

"Dwelling units" for the purposes of this chapter means residential living facilities as distinguished from temporary lodging facilities such as hospitals, hotel and motel rooms and dormitories, and includes single-family residential units and individual apartments, condominium units, mobile homes, extended care facilities and other multiple-family residential units.

"Emergency" means a condition of imminent danger to the health, safety, and welfare of property or persons located within the city including, without limitation, damage to persons or property from natural consequences, such as storms, earthquakes, riots or wars.

"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.

"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.

"Fiber optics" means the technology of guiding and projecting light for use as a communications medium.

"Franchise" shall mean the initial authorization, or renewal thereof, approved by an ordinance of the city, which authorizes the franchisee to construct, install, operate, or maintain telecommunications facilities in, under, over, or across public ways of the city and/or to also provide telecommunications service to persons or areas in the city.

"Franchisee" means the person, firm or corporation to whom or which a franchise, as defined in this chapter, is granted by the council under this chapter and the lawful successor, transferee or assignee of said person, firm or corporation subject to such conditions as may be defined in this chapter.

"Gross revenues" means any and all revenues (as that term is defined by generally accepted accounting principles) received directly or indirectly from all sources which arise out of or are derived from the operation of a franchisee’s cable system in the city. When the revenue of the franchisee includes gross revenues from sources outside of the city, a franchisee shall prorate the gross revenues among its sources by multiplying such gross revenues by a fraction, the numerator of which is the number of franchisee’s subscribers in the city and the denominator of which is the total number of all a franchisee’s subscribers. "Gross revenues" shall not include the following:

A. Fees and payments from subscribers who do not live in the city;

B. Taxes on services furnished by a franchisee, which are imposed on any subscriber or used by any governmental unit, agency or instrumentality and which are collected by a franchisee for such entity;

C. Bad debt write-offs;

D. Revenue from the sale of equipment or other assets of the cable system to persons not purchasing services from the cable system;

E. Revenue from transactions involving real property owned or leased by the franchisee; or

F. Amounts collected from subscribers as a franchise fee to be paid to city.

"Headend" means the electronic equipment located at the start of a cable system, usually including antennas, preamplifiers, frequency converters, demodulators and related equipment.

"Installation" means the connection of the cable system from feeder cable to subscribers’ receivers.

"Institutional networks (I-Nets)" means that portion of a cable system which is designated principally for the provision of non-entertainment services to public schools, or public agencies such as public libraries separate and distinct from the subscriber network, or on secured channels of the subscriber network.

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

"Office" means the person or entity designated by the city as being responsible for the administration of a franchise for the city.

"Operator" means the person, firm or corporation to whom a franchise is granted pursuant to the provisions of this chapter.

"Other ways" means the highways, streets, alleys, utility easements or other rights-of-way within the city, but under the jurisdiction and control of a governmental entity other than the city.

"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.

"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.

"Premium services" means video programming offered on a pay-per-channel or pay-per-program basis.

"Property of franchisee" means all property owned, installed or used by a franchisee in the conduct of its business in the city under the authority of a franchise granted pursuant to this chapter.

"Proposal" means the response, by an individual or organization, to a request by the city regarding the provision of cable services, or an unsolicited plan submitted by an individual or organization seeking to provide cable services in the city.

"Public street" means any highway, street, alley or other public right-of-way for motor vehicle travel under the jurisdiction and control of the city which has been acquired, established, dedicated or devoted to highway or street purposes.

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

"State" means the state of Washington.

"Subscriber" means a person or entity or user of the cable system who lawfully receives cable services or other service therefrom with franchisee’s express permission.

"Surplus space" means that portion of the usable space on a utility pole which has the necessary clearance from other pole users, as required by the federal or state orders and regulations, to allow its use by a telecommunications carrier for a pole attachment.

"Telecommunications carrier" means and includes every person that directly or indirectly owns, controls, operates or manages plant, equipment or property within the city, used or to be used for the purpose of offering telecommunications service.

"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 provider" means and includes every person who provides telecommunications services over telecommunications facilities without any ownership or management control of the facilities.

"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.

Telecommunications System. See "Telecommunications facilities."

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

"Universal service" means a level of and definition of telecommunications services as the term is defined by the FCC through its authority granted pursuant to Section 254 of the Act.

"Usable space" means the total distance between the top of a utility pole and the lowest possible attachment point that provides the minimum allowable vertical clearance as specified in any federal or state orders and regulations.

"Utility easement" means any easement owned by the city and acquired, established, dedicated or devoted for public utility purposes not inconsistent with telecommunications facilities.

"Utility facilities" means the plant, equipment and property, including but not limited to the poles, pipes, mains, conduits, ducts, cables, wires, plant and equipment located under, on or above the surface of the ground within the public ways of the city and used or to be used for the purpose of providing utility or telecommunications services.

12.16.030 Telecommunications business registration required.

Except as otherwise provided herein, all cable operators, telecommunications carriers, and telecommunications providers engaged in the business of transmitting, supplying or furnishing of telecommunications service of any kind originating or terminating in the city shall apply for and obtain a telecommunications business registration from the city pursuant to Chapter 5.06 MCMC.

12.16.040 Telecommunications right-of-way use authorization required.

Except as otherwise provided herein, any telecommunications carrier who desires to construct, install, operate, maintain, or otherwise locate telecommunications facilities in, under, over or across any public way of the city for the purpose of providing telecommunications service to persons and areas outside the city or for privately owned systems or telecommunications networks, which are operated solely for purposes other than offering telecommunications services to other persons or the general public, shall first obtain a telecommunications right-of-way use authorization granting the use of such public ways from the city pursuant to Article II of this chapter.

12.16.050 Telecommunications franchise required.

Except as otherwise provided herein, any telecommunications carrier who desires to construct, install, operate, maintain or otherwise locate telecommunications facilities in, under, over or across any public way of the city, and to also provide telecommunications service to persons or areas in the city, shall first obtain a telecommunications franchise granting the use of such public ways from the city pursuant to Article III of this chapter.

12.16.060 Conditional use permit required.

Except as otherwise provided herein, any telecommunications carrier or other person who desires to construct, install, operate, maintain or otherwise locate telecommunications facilities in, under, over or across any public way in the city for the purpose of providing telecommunications service to persons or areas outside of or in the city shall first obtain a conditional use permit from the city pursuant to MCMC 17.02.050 and Chapter 17.28 MCMC.

12.16.070 Facilities lease required.

No telecommunications carrier or other entity who desires to locate telecommunications or other equipment on city property shall locate such facilities or equipment on city property unless granted a facilities lease from the city pursuant to Article IV of this chapter. The city council reserves the sole discretion to lease city property for telecommunications and other facilities, and no vested or other right shall be created by this section or any provision of this chapter applicable to such facilities leases.

12.16.080 Right-of-way work permit required.

Except as otherwise provided herein, the holder of an authorization, franchise, or lease granted pursuant this chapter shall, in addition to said authorization, franchise, or lease, be required to obtain a right-of-way work permit from the city pursuant to Article VII of this chapter. No work, construction, development, excavation, or installation of any equipment or facilities shall take place within the public ways or upon city property until such time as the right-of-way work permit is issued.

12.16.090 Application to existing franchise ordinances, agreements, leases, and permits – Effect of other laws.

A. Except as provided in subsection B of this section, this chapter shall have no effect on any existing franchise ordinance, franchise agreement, lease, permit, or other authorization to use or occupy a public way in the city until:

1. The expiration of said franchise ordinance, agreement, lease, permit, or authorization; or

2. The amendment to an unexpired franchise ordinance, franchise agreement, lease, permit, or authorization, unless both parties agree to defer full compliance to a specific date not later than the present expiration date.

B. This chapter and Chapter 5.06 MCMC shall be applicable to any existing franchise ordinance, franchise agreement, lease, permit, or other authorization to use or occupy a public way or public property in the city if such existing authorization provides for the applicability of a "model telecommunications ordinance" or any other city rules and regulations to the franchise ordinance, franchise agreement, lease, permit, or other authorization.

C. Nothing in this chapter shall be deemed to create an obligation upon any person for which the city is forbidden to require pursuant to federal, state, or other law.

12.16.100 Universal service.

Except as otherwise provided herein, all cable operators, telecommunications carriers, and telecommunications providers engaged in the business of transmitting, supplying or furnishing telecommunications service of any kind originating or terminating in the city is subject to the city’s right, which is expressly reserved, to require said operator, carrier, or provider to make an equitable and nondiscriminatory contribution to the preservation and advancement of universal service.

12.16.110 General penalties.

A. Civil Penalty.

1. Any person, and the officers, directors, managing agents, or partners of any corporation, firm, partnership or other organization or business, violating or failing to comply with any of the provisions of this chapter shall be subject to a penalty in an amount not less than $100.00 nor more than $1,000 per day for each violation from the date set for compliance until compliance with the order is achieved.

2. In addition to any penalty which may be imposed by the city, any person violating or failing to comply with any of the provisions of this chapter shall be liable for all damage to public or private property arising from such violation, including the cost of restoring the affected area to its condition prior to the violation.

3. The penalty imposed by this section shall be collected by civil action brought by the city. The city manager or designee shall notify the city attorney in writing of the name of any person subject to the penalty, and the city attorney shall, with the assistance of the city manager or designee, take appropriate action to collect the penalty.

4. The violator may show as full or partial mitigation of liability:

a. That the violation giving rise to the action was caused by the willful act, or neglect, or abuse of another; or

b. That correction of the violation was commenced promptly upon receipt of the notice thereof, but that full compliance within the time specified was prevented by inability to obtain necessary materials or labor, inability to gain access to the subject structure, or other condition or circumstance beyond the reasonable control of the violator.

B. Additional Relief. The city may seek legal or equitable relief to enjoin any acts or practices and abate any condition which constitutes or will constitute a violation of the applicable provisions of this chapter when civil or criminal penalties are inadequate to effect compliance. In addition to the penalties set forth in this section, violation of the terms of this chapter may also result in the revocation of any authorization, franchise, approval, lease, or permit issued or granted hereunder, as set forth in MCMC 12.16.1270 through 12.16.1300.

12.16.120 Other remedies.

Nothing in this chapter shall be construed as limiting any judicial remedies that the city may have, at law or in equity, for enforcement of this chapter, or the application of general penalties specified in Chapter 1.16 MCMC.

12.16.130 Fees and compensation not a tax.

The fees, charges and fines provided for in this chapter and any compensation charged and paid for the public ways provided for herein, whether fiduciary or in-kind, are separate from, and additional to, any and all federal, state, local, and city taxes as may be levied, imposed or due from a telecommunications carrier or provider, its customers or subscribers or on account of the lease, sale, delivery or transmission of telecommunications services.

Article II. Telecommunications Right-of-Way Use Authorizations

12.16.140 Telecommunications right-of-way use authorization.

A telecommunications right-of-way use authorization shall be required of any telecommunications carrier or provider who desires to occupy specific public ways of the city for the sole purpose of providing telecommunications services to persons or areas outside the city. The city shall also have the authority to require a telecommunications carrier or provider who applies for a telecommunications right-of-way use authorization to obtain a conditional use permit pursuant to MCMC 17.02.050 and Chapter 17.28 MCMC.

12.16.150 Telecommunications right-of-way use authorization application.

Any person that desires a telecommunications right-of-way use authorization pursuant to this chapter shall file an application with the city which shall include the following information:

A. The identity of the applicant, including all affiliates of the applicant.

B. A description of the telecommunications services that are or will be offered or provided by the applicant over its telecommunications facilities.

C. A description of the transmission medium that will be used by the applicant to offer or provide such telecommunications services.

D. Preliminary engineering plans, specifications and a network map of the facilities to be located within the city, all in sufficient detail to identify:

1. The location and route requested for applicant’s proposed telecommunications facilities;

2. 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;

3. The location(s), if any, for interconnection with the telecommunications facilities of other telecommunications carriers; and

4. The specific trees, structures, improvements, facilities and obstructions, if any, that applicant proposes to temporarily or permanently remove or relocate.

E. If applicant is proposing to install overhead facilities, evidence that surplus space is available for locating its telecommunications facilities on existing utility poles along the proposed route, including evidence that such facilities will conform to Chapter 17.22 MCMC, and any conditional use permit issued by the city.

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

1. The excess capacity currently available in such ducts or conduits before installation of applicant’s telecommunications facilities;

2. The excess capacity, if any, that will exist in such ducts or conduits after installation of applicant’s telecommunications facilities; and

3. Evidence of ownership or a right to use such ducts or conduits.

G. If applicant is proposing an underground installation within new ducts or conduits to be constructed within the public ways:

1. The location proposed for the new ducts or conduits; and

2. The excess capacity that will exist in such ducts or conduits after installation of applicant’s telecommunications facilities.

H. A preliminary construction schedule and completion date.

I. 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.

J. Information in sufficient detail to establish the applicant’s technical qualifications, experience and expertise regarding the telecommunications facilities and services described in the application.

K. 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.

L. All deposits or charges required pursuant to this chapter.

M. An application fee which shall be set by the city council by resolution.

12.16.160 Issuance/denial of telecommunications right-of-way use authorization.

Within a reasonable time after receiving a complete application under MCMC 12.16.150, the public works director or her or his designee shall issue a written determination granting or denying the authorization in whole or in part. If the authorization is denied, the written determination shall include the reason(s) for denial. The decision to grant or deny an application for a telecommunications right-of-way use authorization shall be based upon the following standards:

A. The financial and technical ability of the applicant;

B. The legal ability of the applicant;

C. The capacity of the public ways to accommodate the applicant’s proposed facilities;

D. The capacity of the public ways to accommodate additional utility, cable, and telecommunications facilities if the authorization is granted;

E. The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the authorization is granted;

F. The public interest in minimizing the cost and disruption of construction within the public ways;

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

H. The effect, if any, on public health, safety and welfare if the authorization is granted;

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

J. Applicable federal and state telecommunications laws, regulations and policies; and

K. Such other factors as may demonstrate that the grant to use the public ways will serve the community interest.

12.16.170 Appeal of director’s decision.

Any person aggrieved by the granting or denying of a telecommunications right-of-way authorization or the renewal thereof pursuant to this article shall have the right to appeal to the city council as follows:

A. All appeals filed pursuant to this section must be filed in writing with the public works director within 10 working days of the date of the decision appealed from;

B. All appeals filed pursuant to this section shall specify the error of law or fact, or new evidence which could not have been reasonably available at the time of the public works director’s decision, which shall constitute the basis of the appeal;

C. Upon receipt of a timely written notice of appeal, the public works director shall advise the city council of the pendency of the appeal and request that a date for considering the appeal be established;

D. All relevant evidence shall be received during the hearing on the appeal;

E. Unless substantial relevant information is presented which was not considered by the public works director, such decision shall be accorded substantial weight, but may be reversed or modified by the city council if, after considering all of the evidence in light of the applicable goals, policies, and provisions of this chapter, the city council determines that a mistake has been made. Where substantial new relevant information which was not considered in the making of the decision appealed from has been presented, the city council shall make its decision only upon the basis of the facts presented at the hearing of the appeal, or may elect to remand the matter for reconsideration by the public works director in light of the additional information;

F. For all appeals decided pursuant to this section, the city shall provide for a record that shall consist of written findings and conclusions and a taped transcript;

G. Unless otherwise provided by state statute or other law, all actions seeking review of a final action of the city, whether in the form of an appeal, declaratory judgment action, petition for writ of review, or other extraordinary writ, or in any other form shall be filed with a court having jurisdiction over such action within 15 days of the decision, or the expiration of the reconsideration period, whichever is later, and otherwise shall be barred; and

H. No action to obtain judicial review shall be commenced unless all rights of appeal provided by this section are fully exhausted. The cost of transcription of all records ordered certified by the court for such review shall be borne by the party seeking such review, and shall be paid in advance to the city clerk. If a transcript is prepared by such party from the city’s tapes, each copy shall be submitted to the city for confirmation of its accuracy.

12.16.180 Agreement.

No authorization shall be deemed to have been granted hereunder until the applicant and the city have executed a written agreement setting forth the particular terms and provisions under which the grantee has been granted the right to occupy and use public ways of the city.

12.16.190 Nonexclusive grant.

No authorization granted under this article shall confer any exclusive right, privilege, license or franchise to occupy or use the public ways of the city for delivery of telecommunications services or any other purposes.

12.16.200 Rights granted.

No authorization granted under this article shall convey any right, title or interest in the public ways, but shall be deemed an authorization only to use and occupy the public ways for the limited purposes and term stated in the authorization. Further, no authorization shall be construed as any warranty of title.

12.16.210 Term of telecommunications right-of-way use authorization.

Unless otherwise specified in an authorization, an authorization granted hereunder shall be in effect for a term of three years, which shall be revocable upon 30 days’ notice by the city to the grantee.

12.16.220 Specified route.

A telecommunications right-of-way use authorization granted under this article shall be limited to a grant of specific public ways and defined portions thereof.

12.16.230 Service to city users.

A grantee shall be permitted to offer or provide telecommunications services to persons or areas within the city upon approval of an application for a telecommunications franchise pursuant to Article III of this chapter.

12.16.240 Compensation to the city.

Each authorization granted pursuant to this article is subject to the city’s right, which is expressly reserved, to annually fix a fair and reasonable compensation to be paid for the right to occupy and use the public ways of the city granted under such authorization; provided, nothing in this chapter shall prohibit the city and a grantee from agreeing to the compensation to be paid; provided further, that the compensation required from any telecommunications provider or carrier engaged in the "telephone business," as defined in RCW 82.04.065, shall be consistent with RCW 35.21.860.

12.16.250 Amendment of authorization.

A new application shall be required of any telecommunications carrier or provider who desires to extend or locate its telecommunications facilities in public ways of the city which are not included in an authorization previously granted under this chapter. If ordered by the city to locate or relocate its telecommunications facilities in public ways not included in a previously granted authorization, the city shall grant an amendment to the authorization without further application.

12.16.260 Renewal of telecommunications right-of-way use authorization.

A grantee that desires to renew its authorization under this article for an additional term shall, not more than 180 days nor less than 90 days before expiration of the current authorization, file an application with the city for renewal which shall include the following:

A. The information required pursuant to MCMC 12.16.150;

B. Any information required pursuant to the authorization agreement between the city and the grantee;

C. All deposits or charges required pursuant to this chapter; and

D. An application fee which shall be set by the city council by resolution.

12.16.270 Standards for renewal of authorization.

Within a reasonable time after receiving a complete application for renewal, the public works director or her or his designee shall issue a written determination granting or denying the renewal application in whole or in part. If the renewal application is denied, the written determination shall included the reason(s) for denial. The decision to grant or deny an application for the renewal of a telecommunications right-of-way use authorization shall, in addition to the standards set forth in MCMC 12.16.160, be based upon the following standards:

A. The continuing capacity of the public ways to accommodate the applicant’s existing facilities; and

B. The applicant’s compliance with the requirements of this chapter and the authorization.

12.16.280 Obligation to cure as a condition of renewal.

No authorization shall be renewed until any ongoing violations or defaults in the grantee’s performance under the authorization, or of the requirements of this chapter, have been cured, or a plan detailing the corrective action to be taken by the grantee has been approved by the city.

12.16.290 Universal service.

Each telecommunications right-of-way use authorization granted under this article is subject to the city’s right, which is expressly reserved, to require the telecommunications carrier or provider to make an equitable and nondiscriminatory contribution to the preservation and advancement of universal service.

12.16.300 Annual fee for recovery of city costs.

Each authorization granted under this article is subject to the city’s right, which is expressly reserved, to annually fix a fair and reasonable compensation to be paid as reimbursement for the city’s costs in connection with reviewing, inspecting and supervising the use and occupancy of the public ways on behalf of the public and existing or future users.

12.16.310 Other city costs.

All grantees shall, within 30 days after written demand, reimburse the city for all direct and indirect costs and expenses incurred by the city in connection with any modification, amendment, renewal or transfer of the authorization or any authorization agreement. In addition, all grantees shall, within 30 days after written demand, reimburse the city for any and all costs the city reasonably incurs in response to any emergency involving the grantee’s telecommunications facilities. All grantees shall, within 30 days after written demand, reimburse this city for the grantee’s proportionate share of all actual, identified expenses incurred by the city in planning, constructing, installing, repairing or altering any city facility as a result of the construction or the presence in the right-of-way of the grantee’s telecommunications facilities.

Article III. Telecommunications Franchise

12.16.320 Telecommunications franchise.

A telecommunications franchise shall be required of any telecommunications provider or carrier or other person who desires to occupy public ways of the city and to provide telecommunications services to any person or area in the city; provided, however, that a telecommunications right-of-way use authorization may, with the approval of the public works director, be substituted for a telecommunications franchise for privately owned telecommunications networks or systems which are operated solely for purposes other than offering telecommunications services to other persons or the general public. An example of such a network or system includes, but is not limited to, a telecommunications network connecting two business facilities under common ownership or control, when said facilities are not offered to other business entities or persons.

12.16.330 Franchise application.

Any person who desires a telecommunications franchise pursuant to this chapter shall file an application with the city which, in addition to the information required by MCMC 12.16.150, shall include the following:

A. 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;

B. An accurate map showing the location of any existing telecommunications facilities in the city that applicant intends to use or lease;

C. A description of the services or facilities that the applicant will offer or make available to the city and other public, educational and governmental institutions;

D. A description of applicant’s access and line extension policies;

E. The area or areas of the city the applicant desires to serve and a schedule for build-out to the entire franchise area;

F. All fees, deposits or charges required pursuant to this chapter;

G. Such other and further information as may be requested by the city; and

H. An application fee which shall be set by the city council by resolution.

12.16.340 Determination by the city.

Within a reasonable time after receiving a complete application under MCMC 12.16.330, the city shall issue a written determination granting or denying the application in whole or in part. Pursuant to RCW 35A.47.040, the city council shall not approve any franchise hereunder until the next regularly scheduled council meeting following the public hearing. If the application is denied, the written determination shall include the reason for denial. The city council shall consider, but is not limited to, the following factors in making a decision on an application:

A. The financial and technical ability of the applicant.

B. The legal ability of the applicant.

C. The capacity of the public ways to accommodate the applicant’s proposed facilities.

D. The capacity of the public ways to accommodate additional utility and telecommunications facilities if the franchise is granted.

E. The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the franchise is granted.

F. The public interest in minimizing the cost and disruption of construction within the public ways.

G. The service that applicant will provide to the community and region.

H. The effect, if any, on public health, safety and welfare if the franchise requested is granted.

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

J. Applicable federal and state telecommunications laws, regulations and policies.

K. Such other factors as may demonstrate that the grant to use the public ways will serve the community interest.

12.16.350 Agreement.

No telecommunications franchise shall be deemed to have been granted hereunder until the applicant and the city 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 city.

12.16.360 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 city for delivery of telecommunications services or any other purposes.

12.16.370 Term of franchise grant.

Unless otherwise specified in a franchise agreement, a telecommunications franchise granted hereunder shall be valid for a term of three years.

12.16.380 Rights granted.

No franchise granted under this article 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.

12.16.390 Franchise territory.

Unless otherwise provided in the franchise ordinance, a telecommunications franchise granted under this article shall be limited to the specific geographic area of the city to be served by the franchisee, and the specific public ways necessary to serve such areas.

12.16.400 Compensation to the city.

Each franchise granted under this article is subject to the city’s right, which is expressly reserved, to annually fix a fair and reasonable compensation to be paid for the franchise rights granted to the franchisee; provided, that nothing in this chapter shall prohibit the city and a franchisee from agreeing to the compensation to be paid; provided further, that the compensation required from any telecommunications provider or carrier engaged in the "telephone business," as defined in RCW 82.04.065, shall be consistent with RCW 35.21.860.

12.16.410 Nondiscrimination.

12.16.420 Amendment of franchise grant.

Except as otherwise provided within a franchise ordinance, a new franchise application and grant shall be required of any telecommunications carrier or provider that desires to extend its franchise territory or to locate its telecommunications facilities in public ways of the city which are not included in a franchise previously granted under this article. If ordered by the city to locate or relocate its telecommunications facilities in public ways not included in a previously granted franchise, the city shall grant a franchise amendment without further application.

12.16.430 Renewal application.

A franchisee that desires to renew its franchise under this article for an additional term shall, not more than 180 days nor less than 120 days before expiration of the current franchise, file an application with the city for renewal of its franchise which shall include the following:

A. The information required pursuant to MCMC 12.16.330;

B. Any information required pursuant to the franchise agreement between the city and the grantee;

C. All deposits or charges required pursuant to this chapter; and

D. An application fee which shall be set by the city council by resolution.

12.16.440 Renewal determination.

Within a reasonable time after receiving a complete application for renewal under MCMC 12.16.430, the city shall issue a written determination granting or denying the renewal application in whole or in part. If the renewal application is denied, the written determination shall include the reasons for nonrenewal. The city council shall consider, but is not limited to, the following factors in making a decision on an application:

A. The financial and technical ability of the applicant.

B. The legal ability of the applicant.

C. The continuing capacity of the public ways to accommodate the applicant’s existing facilities.

D. The applicant’s compliance with the requirements of this chapter and the franchise agreement.

E. Applicable federal, state and local telecommunications laws, rules and policies.

F. Such other factors as may demonstrate that the continued grant to use the public ways will serve the community interest.

12.16.450 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 city.

12.16.460 Universal service.

Each franchise granted under this article is subject to the city’s right, which is expressly reserved, to require the franchisee to make an equitable and nondiscriminatory contribution to the preservation and advancement of universal service.

12.16.470 Annual fee for recovery of city costs.

Each franchise granted under this article is subject to the city’s right, which is expressly reserved, to annually fix a fair and reasonable compensation to be paid as reimbursement for the city’s costs in connection with reviewing, inspecting and supervising the use and occupancy of the public ways on behalf of the public and existing or future users.

12.16.480 Other city costs.

All franchisees shall within 30 days after written demand reimburse the city for all direct and indirect costs and expenses incurred by the city in connection with any review, preparation, modification, amendment, renewal or transfer of the franchise or any franchise agreement. In addition, all franchisees shall, within 30 days after written demand, reimburse the city for any and all costs the city reasonably incurs in response to any emergency involving the franchisee’s telecommunications facilities. Finally, all franchisees shall, within 30 days after written demand, reimburse this city for the franchisee’s proportionate share of all actual, identified expenses incurred by the city in planning, constructing, installing, repairing or altering any city facility as a result of the presence in the right-of-way of the franchisee’s telecommunications facilities.

Article IV. Facilities Lease

12.16.490 Facilities lease.

The city council may, in its sole discretion, approve facilities leases for the location of telecommunications facilities and other facilities upon city property, as that term is defined in this chapter. Neither this section, nor any other provision of this chapter, shall be construed to create an entitlement or vested right in any person or entity of any type.

12.16.500 Lease application.

Any person that desires to solicit the city’s approval of a facilities lease pursuant to this article shall file a lease proposal with the city which, in addition to the information required by MCMC 12.16.150, shall include the following:

A. A description of the telecommunications facilities or other equipment proposed to be located upon city property;

B. A description of the city property upon which the applicant proposes to locate telecommunications facilities or other equipment;

C. Preliminary plans and specifications in sufficient detail to identify:

1. The location(s) of existing telecommunications facilities or other equipment upon the city property, whether publicly or privately owned;

2. The location and source of electric and other utilities required for the installation and operation of the proposed facilities;

D. Accurate scale conceptual drawings and diagrams of sufficient specificity to analyze the aesthetic impacts of the proposed telecommunications facilities or other equipment;

E. 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;

F. An accurate map showing the location of any existing telecommunications facilities in the city that applicant intends to use or lease;

G. A description of the services or facilities that the applicant will offer or make available to the city and other public, educational and governmental institutions;

H. Such other and further information as may be requested by the city; and

I. An application fee which shall be set by the city council by resolution.

12.16.510 Determination by the city.

Recognizing that the city is under no obligation to grant a facilities lease for the use of city property, the city shall strive to consider and take action on applications for facilities leases within a reasonable time after receiving a complete application for such a lease. When such action is taken, the city shall issue a written determination granting or denying the lease in whole or in part, applying the standards set forth below, or any other such criteria as the city council may choose to apply. If the lease application is denied, the written determination shall include the reason for denial, if any.

A. The financial and technical ability of the applicant.

B. The legal ability of the applicant.

C. The capacity of the city property and public ways to accommodate the applicant’s proposed facilities.

D. The capacity of the city property and public ways to accommodate additional utility and telecommunications facilities if the lease is granted.

E. The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the lease is granted.

F. The public interest in minimizing the cost and disruption of construction upon city property and within the public ways.

G. The service that applicant will provide to the community and region.

H. The effect, if any, on public health, safety and welfare if the lease requested is approved.

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

J. Applicable federal and state telecommunications laws, regulations and policies.

K. The potential for radio frequency and other interference with existing public and private telecommunications or other facilities located upon the city property.

L. The potential for radio frequency and other interference or impacts upon residential, commercial, and other uses located within the vicinity of the city property.

M. Such other factors as may demonstrate that the lease to use the city property will serve the community interest.

12.16.520 Agreement.

No facilities lease shall be deemed to have been granted hereunder until the applicant and the city have executed a written agreement setting forth the particular terms and provisions under which the lessee has been granted to right to occupy and use the city property.

12.16.530 Nonexclusive lease.

No facilities lease granted under this article shall confer any exclusive right, privilege, license or franchise to occupy or use city property for delivery of telecommunications services or any other purposes.

12.16.540 Term of facilities lease.

Unless otherwise specified in a lease agreement, a facilities lease granted hereunder shall be valid for a term of one year, subject to annual renewal as provided in this article.

12.16.550 Rights granted.

No facilities lease granted under this article shall convey any right, title or interest in the city property, but shall be deemed a license only to use and occupy the city property for the limited purposes and term stated in the lease agreement. Further, no facilities lease shall be construed as any warranty of title.

12.16.560 Interference with other users.

No facilities lease shall be granted under this article unless it contains a provision which is substantially similar to the following:

The City has previously entered into leases with other tenants for their equipment and antenna facilities. Lessee acknowledges that the City is also leasing the City property for the purposes of transmitting and receiving telecommunication signals from the City property. The City, however, is not in any way responsible or liable for any interference with Lessee’s use of the City property which may be caused by the use and operation of any other tenant’s equipment, even if caused by new technology. In the event that any other tenant’s activities interfere with the Lessee’s use of the City property, and the Lessee cannot work out this interference with the other tenants, the Lessee may, upon 30 days’ notice to the City, terminate this lease and restore the City property to its original condition, reasonable wear and tear excepted. The Lessee shall cooperate with all other tenants to identify the causes of and work towards the resolution of any electronic interference problem. In addition, the Lessee agrees to eliminate any radio or television interference caused to City-owned facilities or surrounding residences at Lessee’s own expense and without installation of extra filters on City-owned equipment. Lessee further agrees to accept such interference as may be received from City operated telecommunications or other facilities located upon the City property subject to this lease.

12.16.570 Ownership and removal of improvements.

No facilities lease shall be granted under this article unless it contains a provision which states that all buildings, landscaping, and all other improvements, except telecommunications equipment, shall become the property of the city upon expiration or termination of the lease. In the event that the city requires removal of such improvements, such removal shall be accomplished at the sole expense of the lessee and completed within 30 days after receiving notice from the city requiring removal of the improvements. In the event that telecommunications facilities or other equipment are left upon city property after expiration or termination of the lease, they shall become the property of the city if not removed by the lessee upon 30 days’ written notice from the city.

12.16.580 Cancellation of lease by lessee.

A. All facilities leases are contingent upon the prospective lessee obtaining all necessary permits, approvals, and licenses for the proposed facilities. In the event that the prospective lessee is unable to obtain all such permits, approvals, and licenses, it may cancel its lease, and obtain a pro rata refund in any rents paid, without further obligation by giving 30 days’ prior written notice to the city.

B. In the event that the holder of a facilities lease determines that the city property is unsuitable for its intended purpose, the lessee shall have the right to cancel the lease upon 120 days’ written notice to the city. However, no prepaid rent shall be refundable.

12.16.590 Compensation to the city.

Each facilities lease granted under this article is subject to the city’s right, which is expressly reserved, to annually fix a fair and reasonable compensation to be paid for the rights granted to the lessee; provided, nothing in this chapter shall prohibit the city and a lessee from agreeing to the compensation to be paid. Such compensation shall be payable in advance of the effective date of the lease and on or before January 31st of each calendar year. Any payments received after the due date shall include a late payment penalty of two percent of the annual rental fee for each day or part thereof past the due date.

12.16.600 Amendment of facilities lease.

Except as provided within an existing lease agreement, a new lease application and lease agreement shall be required of any telecommunications carrier or other entity that desires to expand, modify, or relocate its telecommunications facilities or other equipment located upon city property. If ordered by the city to locate or relocate its telecommunications facilities or other equipment on the city property, the city shall grant a lease amendment without further application.

12.16.610 Renewal application.

A lessee that desires to renew its facilities lease under this article shall, not more than 120 days nor less than 60 days before expiration of the current facilities lease, file an application with the city for renewal of its facilities lease which shall include the following:

A. The information required pursuant to MCMC 12.16.500;

B. Any information required pursuant to the facilities lease agreement between the city and the lessee;

C. All deposits or charges required pursuant to this chapter; and

D. An application fee which shall be set by the city council by resolution.

12.16.620 Renewal determination.

Recognizing that the city is under no obligation to grant a renewal of a facilities lease for the use of city property, the city shall strive to consider and take action on applications for renewal of such leases within a reasonable time after receiving a complete application for such a lease renewal. When such action is taken, the city shall issue a written determination granting or denying the lease renewal in whole or in part, applying the standards set forth below, or any other such criteria as the city council may choose to apply. If the renewal application is denied, the written determination shall include the reason for denial, if any.

A. The financial and technical ability of the applicant.

B. The legal ability of the applicant.

C. The continuing capacity of the city property to accommodate the applicant’s existing facilities.

D. The applicant’s compliance with the requirements of this chapter and the lease agreement.

E. Applicable federal, state and local telecommunications laws, rules and policies.

F. Such other factors as may demonstrate that the continued grant to use the city property ways will serve the community interest.

12.16.630 Obligation to cure as a condition of renewal.

No facilities lease shall be renewed until any ongoing violations or defaults in the lessee’s performance of the lease agreement, or of the requirements of this chapter, have been cured, or a plan detailing the corrective action to be taken by the lessee has been approved by the city.

Article V. Cable Television Franchise

12.16.640 Cable television franchise.

A cable television franchise shall be required of any telecommunications carrier, cable operator, or other person who desires to occupy the public ways of the city and to provide cable service to any person or area in the city.

12.16.650 Franchise application.

Any person that desires a cable television franchise pursuant to this article shall file an application with the city which, in addition to the materials required by MCMC 12.16.330, shall include the following:

A. Whether the applicant intends to provide telecommunications service, and sufficient information to determine whether such service is subject to telecommunications franchising pursuant to this chapter.

12.16.660 Determination by the city.

Within a reasonable time after receiving a complete application under MCMC 12.16.650, the city shall issue a written determination granting or denying the application in whole or in part and make a decision based upon the standards set forth in MCMC 12.16.340. If the application is denied, the written determination shall include the reason(s) for denial.

12.16.670 Agreement.

No franchise shall be deemed to have been granted hereunder until the applicant and the city 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 city and to provide cable service to persons or areas within the city.

12.16.680 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 city for delivery of cable services or any other purposes.

12.16.690 Terms of franchise grant.

Unless otherwise specified in a franchise agreement, a cable franchise granted hereunder shall be valid for a term of five years.

12.16.700 Rights granted.

A cable television franchise granted pursuant to this article shall authorize a franchisee to:

A. Engage in the business of operating and providing cable service and services and the distribution and sale of such services to subscribers within the city; and

B. Erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any public way such amplifiers and appliances, lines, cables, conductors, vaults, manholes, pedestals, attachments, supporting structures, and other property as may be necessary and appropriate to the cable system.

Provided, however, that no privilege or exemption shall be granted or conferred upon a franchisee by any franchise except as specifically prescribed therein, and any use of any public way shall be consistent with any prior lawful occupancy of the public way or any subsequent improvement or installation therein; provided further, that no franchise granted pursuant to this article 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. No franchise shall be constructed as any warranty of title.

12.16.710 Franchise territory.

A cable television franchise granted under this article shall be limited to the specific geographic area of the city to be served by the franchisee, and the specific public ways necessary to serve such areas.

12.16.720 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 grantee’s services; provided, that nothing in this chapter shall prohibit a franchisee from making any reasonable classifications among differently situated customers; provided further, that nothing in this chapter shall be deemed to prohibit the establishment of a graduated scale of charges and classified rate schedules to which any customer coming within such classification would be entitled, and that connection and/or service charges may be waived or modified during promotional campaigns of a franchisee. A franchisee will not deny access to cable service to any group of potential residential subscribers because of the income of the residents of the local area in which the group resides.

12.16.730 Amendment of franchise grant.

Except as otherwise provided by 47 U.S.C. 545, a new franchise application and grant shall be required of any cable operator that desires to extend its franchise territory, to locate its cable facilities in public ways of the city which are not included in a franchise previously granted under this article, or to otherwise modify its franchise or franchise agreement. If ordered by the city to locate or relocate its cable facilities in public ways not included in a previously granted franchise, the city shall grant a franchise amendment without further application.

12.16.740 Renewal application.

A franchisee that desires to renew its franchise under this chapter shall, not more than 180 days nor less than 120 days before expiration of the current franchise, file an application with the city for renewal of its franchise which shall include the following:

A. The information required pursuant to MCMC 12.16.650.

B. Any information required pursuant to the franchise agreement between the city and the grantee.

C. Any information required pursuant to the Cable Act.

D. All deposits or charges required pursuant to the chapter.

E. An application fee which shall be set by the city council by resolution.

12.16.750 Renewal determination.

Within a reasonable time after receiving a complete application under MCMC 12.16.740, the city shall issue a written determination granting or denying the renewal application in whole or in part. Prior to granting or denying renewal of a franchise under this article, the city council and make a decision based upon the standards set forth in the Cable Act, its implementing regulations, and the standards set forth in MCMC 12.16.440. If the renewal application is denied, the written determination shall include the reason(s) for nonrenewal.

12.16.760 Obligation to cure as a condition of renewal.

12.16.770 Rates.

Within 30 days after the grant of franchise pursuant to this article, a franchisee shall file with the city a complete schedule of all present rates charged to all subscribers. Prior to implementation of any change in rates or charges for any service or equipment provided by a franchisee, a franchisee shall provide the city and all subscribers a minimum of 30 days’ prior written notice of such change. Subject to 47 U.S.C. 543 and applicable FCC regulations, the city may regulate the rates or charges for providing cable service and other equipment and may establish rate regulation review procedures as delegated by federal law.

12.16.780 Franchise fee.

As permitted by 47 U.S.C. 542, a franchisee shall pay the city a franchise fee equal to five percent or greater of its gross revenues as defined in this chapter. The franchise fee shall be paid quarterly, on or before the thirtieth day of each January, April, July, and October. Such remittances shall be accompanied by forms furnished by the city to report reasonably detailed information as to the sources of such revenues.

12.16.790 Periodic meetings.

Upon request, but not more than once during any calendar year, a franchisee shall meet with designated city officials and/or designated representative(s) of the city to review the performance of a franchisee for the preceding period. The franchisee shall be given not less than 30 days’ prior written notice of any such meeting. The subjects may include, but are not limited to, those items covered in the periodic reports and performance tests.

12.16.800 Cable system evaluation.

In addition to periodic meetings, and with written notice of not less than five business days so that a franchisee can arrange to have necessary personnel present, the city may require reasonable evaluation sessions at any time during the term of a franchise. It is intended that such evaluations cover areas such as customer service, response to the community’s cable-related needs, and a franchisee’s performance under and compliance with the terms of a franchise.

12.16.810 Public, educational and governmental access.

As permitted by 47 U.S.C. 531, the city may require, as a condition of a franchise granted pursuant to this article, provisions for public, educational and governmental (PEG) access.

12.16.820 Citywide public, educational and governmental access interconnection.

As permitted by 47 U.S.C. 531, the city may request a franchisee to begin negotiations to interconnect PEG access channels of a cable television system with any and all other contiguous and compatible cable systems. Interconnection of system may be accomplished by direct cable connection, microwave link, or other technically feasible method. Upon receiving request of the city to interconnect, if a franchisee has not already done so, a franchisee shall initiate negotiations with other affected system(s), and shall report to the city the results of such negotiations no later than 60 days after such initiation. Any costs of interconnection may be passed through to subscribers by a franchisee.

12.16.830 Institutional networks (I-nets).

A franchisee’s cable system shall have the capability of serving designated educational and public buildings with uni- or bi-directional video/audio signals. The linkage may be by cable, microwave or other means deemed appropriate by a franchisee. If required, suitable encoding and decoding devices shall be made available by a franchisee to assure transmission security. A public entity desiring the activation of such service shall not be unduly denied. As provided by the Cable Act, a public entity in the city denied such service may request a public hearing to evaluate such denial. Both the requestor and the franchisee shall be provided the opportunity to present the reasons for the request and the reasons for the denial. Upon a finding by the city council that these services are reasonably required to meet community needs, taking into account the cost of meeting such needs, the city council may require the activation of such services for the public entity in a reasonable time and on the same basis that other public entities in the city receive the same service.

12.16.840 Citywide institutional networks interconnection.

A franchise agreement may require a franchisee to make such interconnections as necessary to connect certain designated institutions on a citywide basis. The same conditions as enumerated in MCMC 12.16.830 shall apply to such interconnections.

12.16.850 Access and institutional network equipment.

A franchise agreement may require a franchisee to contribute either specified goods and services and/or a specified sum of money for the purpose of providing facilities and equipment for PEG access programming and the institutional networks.

12.16.860 External franchising costs.

Prior to expenditure of capital for any franchise related requirements that would be treated as an external cost passed through to customers, the franchisee shall notify the city of its intent to exercise its right and the amount to be passed through to customers. The city may waive the franchise related requirement if, in the city’s opinion, the increase in rates would be a burden on city rate payers.

12.16.870 Continuity of service.

It shall be the right of all subscribers to continue receiving service so long as their financial and other obligations to a franchise are fulfilled. In this regard a franchisee shall act so far as it is reasonably within its control to provide all subscribers with continuous uninterrupted service during the term of the franchise, subject to applicable law. In the event a franchisee fails to operate a system for 72 continuous and consecutive hours without prior notification to and approval of the city council or without just cause such as an impossibility to operate the system because of the occurrence of an act of God or other circumstances reasonably beyond a franchisee’s control, the city may, after notice and an opportunity for a franchisee to commence operations at its option, operate the emergency alert system or designate someone to operate the emergency alert system until such time as a franchisee restores service or a replacement franchisee is selected. If the city is required to fulfill this obligation for a franchisee, a franchisee shall reimburse the city for all reasonable costs or damages that are the result of a franchisee’s failure to perform.

12.16.880 Equalization of civic contributions.

In the event of one or more new franchises being granted, the city may require that such subsequent franchisee pay to the city an amount proportionally equal to franchising costs contributed by the initial franchisee. These costs may include but are not limited to such features as access and institutional network costs, bi-directional or equivalent cable installed to municipal buildings and similar expenses. Additional franchisees shall provide all PEG access channel(s) currently available to the subscribers of existing franchisees. In order to provide these access channels, additional franchisees shall interconnect, at their cost, with existing franchisees, subject to any reasonable terms and conditions that the existing franchisee providing the interconnection may require. These interconnection agreements shall be made directly between the franchisees; provided, that the city council, in cases of dispute, may be called upon to arbitrate regarding these arrangements. Additional franchisees shall contribute toward the costs of PEG access paid by a prior franchisee by paying to the prior franchisee on each anniversary of the grant of the subsequent franchise an amount equal to a proportionate share of the amount contributed by the prior franchisee for PEG access costs in constant dollars. This proportionate share shall be based upon the number of subscribers in the city held by each franchise and shall be contributed until such time as equal contributions towards the cost of PEG access have been made.

12.16.890 Subscriber rate complaint process.

As provided by 47 U.S.C. 543, any subscriber aggrieved by a cable rate increase shall file its cable rate complaint with the city within 90 days of the effective date of such an increase. Such complaints shall be submitted upon a form prescribed by the city manager. If the city receives cable rate complaints from cable subscribers, it may, in its sole discretion, file a cable rate complaint with the FCC, seeking review of any such rate increase.

12.16.900 Parental control devices.

A franchisee shall make available at its cost, including applicable handling fees, a device by which the subscriber can prohibit viewing of a particular cable service during periods selected by that subscriber.

12.16.910 Discounts.

A franchisee shall offer a discount of 30 percent from the normal charge for basic services and installation to those individuals who are age 62 or older or who are disabled and who are the legal owner or lessee/tenant of their residence; provided, that their combined disposal income from all sources does not exceed the median income level of Housing and Urban Development (HUD) standards for the Seattle-Everett area for the preceding calendar year. The city or its designee shall be responsible for certifying to a franchisee that such applicants conform to the specified criteria.

12.16.920 Customer service.

A. Policy.

1. The cable operator shall be permitted to resolve citizen complaints prior to action or involvement by the city.

2. If a complaint is not resolved by the cable operator to the citizen’s satisfaction, the city may intervene. In addition, where a pattern of, or unremedied, noncompliance with the customer service standards ("standards") in this section is identified, the city may choose to follow the procedures contained in this section. If the noncompliance is not addressed to the satisfaction of the city, monetary or other sanctions may be imposed to encourage compliance.

3. These standards are intended to be of general application. The cable operator may, and is encouraged, to exceed these standards for the benefit of its customers and such shall be considered performance for the purposes of this section.

B. Definitions. When used in this section, the following words, phrases, and terms shall have the meanings given below.

"Cable operator" shall mean any person granted a franchise to operate a cable system within the city.

"City" shall mean the city of Mill Creek, Washington.

"Complaint" shall mean an initial or repeated customer expression of dissatisfaction, whether written or oral, or other matter that is referred beyond a customer service representative or the call center to a cable operator’s system office or regional office or corporate headquarters, or to the city for resolution. This does not include routine inquiries and service requests.

"Customer" shall mean any person who lawfully receives or will receive cable service from the cable operator.

"Customer service representative" or "CSR" shall mean any person employed by the cable operator to assist, or provide service to customers, whether by answering public telephone lines, answering customers’ questions, or performing other customer-service-related tasks.

"Normal business hours" shall mean those hours during which most similar businesses in the city are open to serve customers. In all cases, "normal business hours" must include some evening hours, with customer service representatives available, at least one night per week and some weekend hours.

"Normal operating conditions" shall mean those service conditions that are within the control of the cable operator. Those conditions that are not within the control of the cable operator are defined to include only natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. Those conditions that are ordinarily within the control of the cable operator are special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods, and maintenance or upgrade of the cable system.

"Service interruption" shall mean the loss of picture or sound on one or more cable channels.

C. Customer Service.

1. Courtesy. All employees of the cable operator shall be courteous, knowledgeable, and helpful, and shall provide effective and satisfactory service in all contacts with customers.

2. Accessibility.

a. The cable operator shall provide at least one customer payment center/equipment drop in the city. Service shall be available at a service center or centers at least nine consecutive hours on Monday through Friday, ending no earlier than 6:00 p.m., and at least four consecutive hours on Saturdays, ending no earlier than 1:00 p.m. The service center(s) shall offer bill payment and equipment return services to customers who come to the service center(s). The cable operator shall also make available its web site and e-mail address to its customers. The cable operator shall also provide free exchanges of faulty converters at the customer’s address at a convenient time that is mutually agreed upon.

b. The cable operator shall maintain local telephone access lines or a toll free telephone number that shall be available 24 hours a day, seven days a week for service/repair requests and billing inquiries.

c. The cable operator shall have dispatchers and technicians on call 24 hours a day, seven days a week, including legal holidays.

d. Trained customer service representatives will be available to respond to customer telephone inquiries during normal business hours. Under normal operating conditions, telephone answer time by a customer service representative, including wait time, shall not exceed 30 seconds when the connection is made. If the call needs to be transferred, transfer time shall not exceed 30 seconds. These standards shall be met no less than 90 percent of the time under normal operating conditions, measured on a quarterly basis. Under normal operating conditions, the cable operator shall maintain adequate telephone line capacity to ensure that telephone calls are answered as provided in these standards.

e. After normal business hours, the telephone lines may be answered by a service or an automated response system, including an answering machine. Inquiries received after normal business hours must be responded to by a trained customer service representative on the next business day.

f. Under normal operating conditions, the total number of calls receiving busy signals shall not exceed three percent of the total telephone calls. This standard shall be met 90 percent or more of the time measured quarterly.

g. The cable operator shall not be required to acquire equipment or perform surveys to measure compliance with any of the telephone answering standards above unless and until the city requests such actions based on a historical record of customer inquiries or complaints indicating a clear failure to comply.

3. Responsiveness.

a. Residential Installation.

i. The cable operator shall complete all standard residential installations requested by customers within seven business days after the order is placed, under normal operating conditions 95 percent of the time measured on a quarterly basis, unless the customer requests a later date for installation. "Standard" residential installations are those located within 125 feet from the existing distribution system. If the customer requests a nonstandard residential installation, or the cable operator determines that a nonstandard residential installation is required, the cable operator shall provide the customer in advance with a total installation cost estimate and an estimated date of completion.

ii. Absent unusual circumstances, all underground cable drops from the curb to the home shall be buried at a depth of no less than 12 inches, and within a reasonable period of time (but no later than 14 days, weather permitting) from the initial installation, or at a time mutually agreed upon between the cable operator and the customer. In all instances, the cable operator must comply with the state’s One Call Requirements.

b. Service Appointments.

i. Customers requesting installation of cable service or service to an existing installation may choose a two-hour block of time for the installation or a four-hour block of time for the service appointment between 8:00 a.m. and 6:00 p.m. or another block of time mutually agreed upon by the customer and the cable operator. The cable operator may not cancel an appointment with a customer after 5:00 p.m. on the day before the scheduled appointment, except for appointments scheduled within 12 hours after the initial call.

ii. The cable operator’s representative will use his or her best efforts to notify the customer at a reasonable time prior to arrival for the scheduled appointment.

iii. If the cable operator’s representative is running late for an appointment with a customer and will not be able to keep the appointment as scheduled, the customer will be contacted. The appointment will be rescheduled as necessary at a time that is convenient for the customer.

iv. The cable operator shall be deemed to have responded to a request for service under the provisions of this section when a technician arrives within the agreed upon time; provided, that the technician has all necessary parts and equipment to complete the specified work order. If the customer is absent when the technician arrives, the technician shall leave written notification of timely arrival. The cable operator shall keep a copy of the notice.

c. Outages and Service Interruptions.

i. In the event of a system outage (loss of reception on all channels) resulting from cable operator equipment failure affecting five or more customers, the cable operator shall respond in accordance with its outage response procedures, and in no event more than two hours after the third customer call is received, whether live or by message, and shall remedy the problem as quickly as possible.

ii. Under normal operating conditions, the cable operator shall use its best efforts to correct service interruptions resulting from cable operator equipment failure by the end of the next calendar day, but in no event longer than 48 hours.

iii. The cable operator shall keep an accurate and comprehensive file of any and all complaints regarding the cable system or its operation of the cable system, in a manner consistent with the privacy rights of customers, and the cable operator’s actions in response to those complaints. The cable operator shall provide the city an executive summary upon request that shall include information concerning complaints.

iv. The cable operator shall use its best efforts to correct all outages and service interruptions for any cause beyond the control of the cable operator within 36 hours after the conditions beyond its control have subsided, but absent unusual circumstances, not later than 48 hours.

d. TV Reception.

i. The cable service signal quality provided by the cable operator shall meet or exceed technical standards established by the Federal Communications Commission ("FCC"). The cable operator shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Scheduled interruptions shall be preceded by notice and shall occur during periods of minimum use of the system, preferably between 12:00 a.m. and 6:00 a.m.

ii. If a customer experiences poor signal quality (whether it relates to a visual or audio problem) which is attributable to the cable operator’s equipment, the cable operator shall respond and repair the problem no later than the day following the customer call; provided, that the customer is available and the repair can be made that day. If an appointment is necessary, the customer may choose a block of time described in subsection (C)(3)(b)(i) of this section. At the customer’s request, the cable operator shall repair the problem at a later time that is convenient for the customer.

e. Problem Resolution. A customer service representative shall have the authority to provide credit, waive fees, schedule service appointments and change billing cycles, where appropriate. Any difficulties that cannot be resolved by the customer service representative shall be referred to the appropriate supervisor who shall contact the customer within 24 hours and resolve the problem within the next 48 hours or within such other timeframe as is acceptable to the customer and the cable operator.

f. Billing, Credits, and Refunds.

i. The cable operator shall allow at least a commercially reasonable number of days from the beginning date of the applicable service period for payment of a customer’s service bill for that period. If the customer’s service bill is not paid within 45 days of the beginning date of the applicable service period, the cable operator may perform a "soft" disconnect of the customer’s service. If a customer’s service bill is not paid within 52 days of the beginning date of the applicable service period, the cable operator may disconnect the customer’s service, provided it has given two weeks’ written notice to the customer that such disconnection may result.

ii. The cable operator shall issue refund checks promptly but no later than either the customer’s next billing cycle following resolution of the request or within 30 days, whichever is earlier, or the return of the equipment supplied by the cable operator if service is terminated.

iii. Credits for service will be issued no later than the customer’s next billing cycle following the determination that a credit is warranted.

g. Notice/Work. Except in the case of an emergency involving public safety or service interruption to a large number of subscribers, the cable operator shall give reasonable notice to property owners or legal tenants prior to entering upon private premises, and the notice shall specify the work to be performed. In the case of an emergency, however, the cable operator shall attempt to contact the property owner or legal tenant in person, and shall leave a door hanger notice in the event personal contact is not made. Nothing herein shall be construed as authorizing access or entry to private property. Any work on private property shall be conducted in accordance with an agreement between the cable operator and the property owner. If damage is caused by any cable operator activity, the cable operator shall reimburse the property owner 100 percent of the cost of the damage or replace or repair the damaged property to as good a condition as before the cable operator’s activity commenced. Adjacent or affected property owners shall be notified by mail or door hanger at least one week in advance of the installation of pedestals or other major construction or installation projects in the rights-of-way or on private property.

4. Services for Customers with Disabilities.

a. For any customer with a disability, the cable operator shall at no charge deliver and pick up equipment at customers’ homes. In the case of malfunctioning equipment, the technician shall provide alternate equipment, hook it up and ensure that it is working properly, and shall return the defective equipment to the cable operator.

b. The cable operator shall provide TDD/TTY service with trained operators, who can provide every type of assistance rendered by the customer service representatives, for any hearing-impaired customer at no charge.

c. The cable operator shall provide free use of a remote control unit to mobility-impaired customers (if disabled, in accordance with subsection (C)(4)(d) of this section).

d. Any customer with a disability may request the remote control unit described above by providing the cable operator with a letter from the customer’s physician stating the need, or by making the request to the cable operator’s installer or service technician, where the need for the special service can be visually confirmed.

5. Customer Information.

a. Upon installation, at any time the customer may request, or upon its own initiative, the cable operator shall provide the following information in appropriate font sizes and type and in clear, concise written form:

i. Products and services offered by the cable operator, including its channel lineup;

ii. The cable operator’s complete range of service options and the prices for these services;

iii. These standards and any applicable amendments;

iv. Instruction on the use of cable TV service and standard VCR hookups;

v. The cable operator’s billing, collection and disconnection policies;

vi. Customer privacy requirements;

vii. All applicable complaint procedures, including complaint forms, and the telephone numbers and mailing addresses of the cable operator and the FCC, and the contact information for the city. Contact information shall be clearly and distinctly identified;

viii. Use and availability of parental control/lock out devices;

ix. Special services for customers with disabilities; and

x. Days, times of operation, and location of the local service center(s) and payment agents.

b. Customers will be notified of any changes in rates, programming services, or channel positions as soon as possible in writing. Notice must be given to customers a minimum of 30 days in advance of such change(s) if the change(s) is within the control of the cable operator. The cable operator shall not be required to provide prior notice of any rate change that is the result of a regulatory fee, franchise fee, or any other fee, tax, assessment, or charge of any kind imposed by any federal agency, state, or the city on the transaction between the cable operator and the customer.

c. All officers, agents, and employees of the cable operator or its contractors or subcontractors who are in personal contact with customers shall wear on their outer clothing identification cards bearing their name and photograph. The cable operator shall account for all identification cards at all times. Every vehicle of the cable operator shall be visually identified to the public as working for the cable operator. Every vehicle of a subcontractor or contractor shall be labeled with the name of the contractor or subcontractor, and shall be further identified as contracting or subcontracting for the cable operator. All CSRs shall identify themselves orally to callers immediately following the greeting during each telephone contact with the public.

d. Each CSR, technician, or employee of the cable operator in each contact with a customer shall state the estimated cost of the service, repair, or installation prior to delivery of the service or before any work is performed, and shall provide the customer with an oral statement of the total charges before terminating the telephone call or before leaving the location at which the work is to be performed.

6. Customer Privacy.

a. The cable operator shall not monitor cable television signals to determine the individual viewing patterns or practices of any customer without prior written consent from that customer, except as needed to maintain system integrity or for other lawful purposes.

b. The cable operator shall not sell or otherwise make available customer lists or other personally identifiable customer information without prior written customer consent except as otherwise permitted by law. The cable operator is permitted to disclose such information if such disclosure is necessary to render, or conduct, a legitimate business activity related to a cable service provided by the cable operator to its customers.

7. Safety. The cable operator shall install and locate its facilities, cable system, and equipment in compliance with all federal, state, local, and company safety standards, and in such manner as shall not unduly interfere with or endanger persons or property. Whenever the cable operator receives notice that a potentially unsafe condition exists with respect to its equipment, the cable operator shall investigate such condition immediately, and shall take such measures as are necessary to remove or eliminate any unsafe condition.

8. Satisfaction Guaranteed. The cable operator shall guarantee customer satisfaction for every customer who requests new installation of cable service or adds any additional programming service to the customer’s cable subscription. Any customer who requests disconnection of service shall not have to pay for such service after the date of disconnection.

D. Complaint Procedure.

1. Complaints to the Cable Operator.

a. The cable operator shall establish written procedures for receiving, acting upon, and resolving complaints without intervention by the city (except where necessary) and shall publicize such procedures through printed documents at the cable operator’s sole expense.

b. Said written procedures shall describe a simple process by which any customer may submit a complaint by telephone, email, or in writing to the cable operator regarding a disputed matter, or an alleged violation of any provision of these standards or any terms or conditions of the customer’s contract with the cable operator, or reasonable business practices.

c. Within 15 calendar days after receiving a complaint, the cable operator shall notify the customer of the results of its investigation and its proposed action or credit.

d. The cable operator shall also notify the customer of the customer’s right to file a complaint with the city in the event the customer is dissatisfied with the cable operator’s decision, and shall explain the necessary procedures for filing such complaint with the city.

e. The cable operator’s complaint procedures shall be filed with the city.

2. Security Fund.

a. The security fund, if any, shall be in the amount as specified in the franchise.

b. The security fund, if any, shall in part serve as security for the performance by the cable operator of all its obligations under these standards.

c. The rights reserved to the city in this section are in addition to all other rights of the city, whether reserved by the franchise or authorized by law, and no action, proceeding or exercise of a right with respect to same shall in any way affect, or diminish, any other right the city may otherwise have.

3. Complaints to the City.

a. Any customer who is dissatisfied with any proposed disposition of a complaint by a cable operator or who has not received a decision within the 15-calendar-day period shall be entitled to have the complaint reviewed by the city.

b. The customer may initiate the review by filing a written request together with the cable operator’s written decision, if any, with the city clerk.

c. The customer shall make such filing within 20 days of receipt of the cable operator’s decision or, if no decision has been provided, within 30 days after filing the original complaint with the cable operator.

d. If the city decides that further information is warranted, the city shall require the cable operator and the customer to submit, within 10 days of notice thereof, a written statement of the facts and arguments in support of their respective positions.

e. The cable operator and the customer shall produce any additional information, including any reports from the cable operator, which the city may deem necessary to an understanding and determination of the complaint.

f. The city shall issue a determination within 30 days after examining the materials submitted, setting forth its basis for the determination.

g. The city may extend this 30-day time limit for reasonable cause and may intercede and attempt to negotiate an informal resolution.

h. If the city determines that the complaint is valid and that the cable operator did not provide the complaining customer with the proper solution and/or credit, the city may reverse any decision of the cable operator in the matter and/or require the cable operator to grant a solution in accordance with the cable operator’s credit/refund policy for the alleged violation, or as otherwise mutually agreed upon by the cable operator and the city.

4. Verification of Compliance. The cable operator shall establish its compliance with all of the standards required through annual reports that demonstrate said compliance, or as requested by the city.

5. Overall Quality of Service. The city may evaluate the overall quality of customer service provided by the cable operator to customers:

a. In conjunction with any performance review provided for in the franchise; or

b. At any other time, in its sole discretion, based on the number of complaints received by the cable operator or the city, and the cable operator’s response to those complaints.

6. Noncompliance with Standards. Noncompliance with any provision of these standards may result in a violation of a franchise.

7. Procedures for Remedying Violations. If the city has reason to believe that the cable operator has failed to comply with any of these standards, or has failed to perform in a timely manner, or if similar complaints repetitively arise, the city may require in writing that the cable operator remedy the alleged noncompliance. If the alleged noncompliance is denied or not remedied to the satisfaction of the city, the city may opt to follow the liquidated damages procedures, revocation procedures or seek other remedies set forth in the franchise, or pursue any other remedies at law or in equity. (Ord. 2006-635 § 1)

12.16.930 Telephone response.

A. A franchisee shall maintain an adequate force of customer service representatives as well as incoming trunk lines so that telephone inquiries are met promptly and responsively. A franchisee shall have in place procedures for utilization of other manpower and/or recording devices for handling the flow of telephone calls at peak periods of large outages or other major causes of subscriber concern. A copy of such procedures and/or policies shall be made available to the city.

B. In order that the city may be informed of a franchisee’s success in achieving satisfactory customer relations in its telephone answering functions, a franchisee shall, upon request by the city, and routinely each quarter, provide the city with a summary that provides the following:

1. Total number of calls received in recording periods;

2. Time taken to answer;

3. Average talk time;

4. Number of calls abandoned by the caller;

5. Average hold time;

6. Percentage of time all lines busy;

7. An explanation of any abnormalities.

C. This data will be compared to the minimum standards of the NCTA, or any amendment thereto increasing such standards, and shall be monitored by the city.

D. Calls for service generated during periods of system outages due to emergencies affecting more than 25 customers may be excluded from the service response calculations. The city shall have the sole determination as to what constitutes a system failure due to emergency and which calls shall be excluded from the service level calculations.

12.16.940 Failure to improve customer service.

The city or its designee shall review telephone response and customer service information with a franchisee. Improvements will be made by the franchisee in the appropriate categories which are found deficient from the last reporting period. Failure to do so may result in action being taken pursuant to MCMC 12.16.1270.

12.16.950 Reports.

A franchisee shall furnish, upon request, a report of its activities as appropriate. Such report shall include:

A. A copy of the franchisee’s most recent annual report;

B. A copy of the franchisee’s 10-K filing, if required by the Securities and Exchange Commission;

C. The number of homes passed by the franchisee’s cable system;

D. The number of subscribers with basic services;

E. The number of subscribers with premium services;

F. The number of hook-ups in the reporting period;

G. The number of disconnects in the reporting period;

H. The total number of miles of cable under the franchisee’s control within the city;

I. A summary of complaints received by category, length of time taken to resolve each complaint, and action taken to provide resolution;

J. A copy of the franchisee’s current billing practices, and a sample copy of the franchisee’s current bill format;

K. A copy of the franchisee’s current subscriber service agreement;

L. Any other such reports with respect to the franchisee’s local operations, affairs, transactions, or property that the city may deem to be appropriate.

12.16.960 Programming.

For informational purposes, a franchisee shall file a listing of its programming and the tiers in which they are placed. A franchisee shall consider the city’s suggestions of general programming categories as determined from time to time in residential questionnaire polls. The results of such surveys, when performed, shall be appended to the respective franchise agreements.

12.16.970 Inconsistency.

If any portion of this article should be inconsistent or conflict with any rule or regulation now or hereafter adopted by the FCC or other federal law, then to the extent of the inconsistency or conflict, the rule or regulation of the FCC or other federal law shall control for so long, but only for so long, as such rule, regulation, or law shall remain in effect; provided the remaining provisions of this article shall not be affected thereby.

Article VI. Conditions of Telecommunications Right-of-Way Use Authorizations, Telecommunications Franchises, Facilities Leases, and Cable Franchises

12.16.980 Purpose.

The purpose of this article is to set forth certain terms and conditions which are common to all telecommunications right-of-way use authorizations, telecommunications franchises, facilities leases, and cable television franchises. Except as otherwise provided in this chapter or in such an authorization, franchise, or lease, the provisions of this article apply to all such authorizations, franchises, and leases approved or granted by the city.

12.16.990 Acceptance.

No authorization, franchise, or lease granted pursuant to the provisions of this chapter shall become effective unless and until the ordinance or other city action granting the same has become effective. Within 30 days after the effective date of the ordinance or other city action granting an authorization, franchise, or lease, or within such extended period of time as the council in its discretion may authorize, the applicant shall file with the city manager or designee an unconditional written acceptance of the authorization, franchise, or lease, in a form satisfactory to the city attorney, together with the bonds, insurance policies, and security fund required by this article.

12.16.1000 Police power.

In accepting any authorization, franchise or lease, the grantee, franchisee, or lessee acknowledges that its rights hereunder are subject to the legitimate rights of the police power of the city to adopt and enforce general ordinances necessary to protect the safety and welfare of the public and it agrees to comply with all applicable general laws enacted by the city pursuant to such power.

12.16.1010 Rules and regulations by the city.

In addition to the inherent powers of the city to regulate and control any authorization, franchise, or lease it issues, the authority granted to it by the Cable Act and the Telecommunications Act of 1996, and those powers expressly reserved by the city, or agreed to and provided for in any authorization, franchise, or lease, the right and power is hereby reserved by the city to promulgate such additional regulations as it may find necessary in the exercise of its lawful powers giving due regard to the rights of grantees, franchisees, and lessees. Except as provided in this chapter, the foregoing does not allow for amendment by the city of material terms of any authorization, franchise, or lease it issues without the consent of the grantee, franchisee, or lessee. The city reserves the right to delegate its authority for authorization, franchise, and lease administration to a designated agent.

12.16.1020 Location of facilities.

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

A. Unless otherwise provided in an authorization, franchise, or lease, a grantee, franchisee, or lessee with permission to occupy a public way must locate its cable or telecommunications facilities underground.

B. Whenever any new or existing electric utilities, cable facilities or telecommunications facilities are located or relocated underground within a public way of the city, a grantee, franchisee, or lessee that currently occupies the same public way shall relocate its facilities underground at no expense to the city. Absent extraordinary circumstances or undue hardship as determined by the city public works director, such relocation shall be made concurrently to minimize the disruption of the public ways. No extension granted by the director of public works under this subsection shall exceed a period of 12 months.

C. Whenever new cable or telecommunications facilities will exhaust the capacity of a public street or utility easement to reasonably accommodate future cable or telecommunications carriers or facilities, the grantee, franchisee, or lessee and all other occupants of the public way shall at their own expense provide additional ducts, conduits, manholes and other facilities for nondiscriminatory access to future operators and carriers.

12.16.1030 Compliance with One Number Locator Service.

All grantees, franchisees, and lessees shall, before commencing any construction in the public ways, comply with all regulations of Chapter 19.122 RCW, i.e., the One Number Locator Service.

12.16.1040 Right-of-way work permits.

All grantees, franchisees, and lessees are required to obtain right-of-way work permits for cable and telecommunications facilities as required in Article VII of this chapter. However, nothing in this chapter shall prohibit the city and a grantee, franchisee, or lessee from agreeing to alternative plan review, permit, and construction procedures for an authorization, franchise, or lease granted under this chapter, provided such alternative procedures provide substantially equivalent safeguards for responsible construction practices.

12.16.1050 Interference with the public ways.

No grantee, franchisee, or lessee may locate or maintain its cable or telecommunications facilities so as to unreasonably interfere with the use of the public ways by the city, 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, franchisee, or lessee, at the grantee, franchisee, or lessee’s sole cost, temporarily or permanently, as determined by the city public works director.

12.16.1060 Damage to property.

No grantee, franchisee, or lessee, nor any person acting on behalf of a grantee, franchisee, or lessee, shall take any action or permit any action to be done which may impair or damage any city property, public ways of the city, other ways or other property, whether publicly or privately owned, located in, on or adjacent thereto.

12.16.1070 Notice of work.

Unless otherwise provided in an authorization, franchise, or lease agreement, no grantee, franchisee, or lessee, nor any person acting on behalf of the grantee, franchisee, or lessee, shall commence any nonemergency work in or about the public ways of the city, other ways, or upon city property without 10 days’ advance notice to the city.

12.16.1080 Repair and emergency work.

In the event of an unexpected repair or emergency, a grantee, franchisee, or lessee may commence such repair and emergency response work as required under the circumstances, provided the grantee, franchisee, or lessee shall notify the city as promptly as possible, before such repair or emergency work commences or as soon thereafter as possible if advance notice is not practicable.

12.16.1090 Maintenance of facilities.

Each grantee, franchisee, or lessee shall maintain its facilities in good and safe condition and in a manner that complies with all applicable federal, state and local requirements.

12.16.1100 Relocation or removal of facilities.

Within 30 days following written notice from the city, a grantee, franchisee, or lessee shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any cable or telecommunications facilities within the public ways or upon city property whenever the city public works director shall have determined that such removal, relocation, change or alteration is reasonably necessary for:

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

B. The operations of the city or other governmental entity in or upon the public ways.

12.16.1110 Building moving.

Whenever any person shall have obtained permission from the city to use any street or public way for the purpose of moving any building, a grantee, franchisee, or lessee, upon seven days’ written notice from the city, shall raise or remove, at the expense of the person desiring to move the building, any of the grantee, franchisee, or lessee’s facilities which may obstruct the removal of such building; provided, that the person desiring to move the building shall comply with all requirements of the city for the movement of buildings.

12.16.1120 Removal of unauthorized facilities.

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

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

B. Upon abandonment of a facility within the public ways of the city. Any property of a grantee or franchisee shall be deemed abandoned if left in place 90 days after expiration or termination of an authorization or franchise.

C. If the system or facility was constructed or installed without the prior grant of an authorization or franchise.

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

E. If the system or facility was constructed or installed at a location not permitted by the authorization or franchise.

Provided, however, that the city may, in its sole discretion, allow a grantee, franchisee, or other such persons who may own, control, or maintain cable or telecommunications facilities within the public ways of the city to abandon such facilities in place. No facilities of any type may be abandoned in place without the express written consent of the city. Any plan for abandonment or removal of a grantee or franchisee’s facilities must be first approved by the public works director, and all necessary permits must be obtained prior to such work. Upon permanent abandonment in place of the property of such persons, the property shall become property of the city, and such persons shall submit to the city an instrument in writing, approved by the city attorney, transferring to the city the ownership of such property, free and clear of any lien or encumbrance. The provisions of this section shall survive the expiration, revocation, or termination of an authorization or franchise granted under this chapter.

12.16.1130 Emergency removal or relocation of facilities.

The city retains the right and privilege to cut or move any cable or telecommunications facilities located within the public ways of the city and upon city property, as the city may determine to be necessary, appropriate or useful in response to any public health or safety emergency. The city shall not be liable to any cable operator, telecommunications carrier or provider, 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 city’s actions under this section.

12.16.1140 Damage to facilities.

Unless directly and proximately caused by the willful, intentional or malicious acts by the city, the city shall not be liable for any damage to or loss of any cable or telecommunications facility upon city property or within the public ways of the city as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling, or work of any kind on such city property or within the public ways by or on behalf of the city.

12.16.1150 Restoration of public ways, other ways and city property.

A. When a grantee, franchisee, lessee, or any person acting on its behalf does any work in or affecting any public ways, other ways or city 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 city. If the city determines that complete or satisfactory restoration is not obtainable, the city shall have the right to require compensation from the grantee, lessee or any other person acting on its behalf for the less than complete or satisfactory condition of the ways or property.

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

C. A grantee, franchisee, lessee 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.

D. The public works director shall be responsible for observation and final approval of the condition of the public ways, other ways, and city property following any construction and restoration activities therein. The franchisee, lessee, or other person acting in its behalf is responsible for all testing and monitoring, and the costs thereof, of construction and restoration activities. Further, the provisions of this section shall survive the expiration, revocation, or termination of an authorization, franchise, lease, or other agreement granted pursuant to this chapter.

12.16.1160 Facilities maps.

Each grantee, franchisee, and lessee shall provide the city with a map or maps accurately reflecting the horizontal and vertical location and configuration of all of their telecommunications facilities within the public ways and upon city property. Each grantee, franchisee, and lessee shall provide the city with updated maps annually or upon request by the city.

12.16.1170 Duty to provide information.

Within 10 days of a written request from the city, each grantee, franchisee, or lessee shall furnish the city with information sufficient to demonstrate:

A. That the grantee, franchisee, or lessee has complied with all requirements of this chapter; and

B. That all sales, utility and/or telecommunications taxes due the city in connection with the cable or telecommunications services and facilities provided by the grantee, franchisee, or lessee have been properly collected and paid by the grantee, franchisee, or lessee.

All books, records, maps and other documents, maintained by the grantee, franchisee, or lessee with respect to its facilities within the public ways and upon city property shall be made available for inspection by the city at reasonable times and intervals; provided, however, that nothing in this section shall be construed to require a grantee, franchisee, or lessee to violate state or federal law regarding subscriber privacy, nor shall this section be construed to require a grantee, franchisee, or lessee to disclose proprietary or confidential information without adequate safeguards for its confidential or proprietary nature.

12.16.1180 Leased capacity.

A grantee, franchisee, or lessee shall have the right, without prior city approval, to offer or provide capacity or bandwidth to its customers consistent with a permit, franchise, or lease issued under this chapter, provided:

A. The grantee, franchisee, or lessee shall furnish the city with a copy of any such lease or agreement between the grantee, franchisee, or lessee and the customer or lessee; and

B. The customer or lessee has complied, to the extent applicable, with the requirements of this chapter.

12.16.1190 Insurance.

Unless otherwise provided in an authorization, franchise, or lease agreement, each grantee, franchisee, or lessee shall, as a condition of the permit or grant, secure and maintain the following liability insurance policies insuring both the grantee, franchisee, or lessee and the city, and its elected and appointed officers, officials, agents, employees, representatives, engineers, consultants, and volunteers as co-insureds against claims for injuries to persons or damages to property which may arise from or in connection with the exercise of the rights, privileges, and authority granted to the grantee, franchisee, or lessee:

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

1. $5,000,000 for bodily injury or death to each person;

2. $5,000,000 for property damage resulting from any one accident; and

3. $5,000,000 for all other types of liability.

B. Automobile liability for owned, non-owned and hired vehicles with a limit of $3,000,000 for each person and $3,000,000 for each accident.

C. Worker’s compensation within statutory limits and employer’s liability insurance with limits of not less than $1,000,000.

D. Comprehensive form premises-operations, explosions and collapse hazard, underground hazard and products completed hazard with limits of not less than $3,000,000.

E. The liability insurance policies required by this section shall be maintained by the grantee, franchisee, or lessee throughout the term of the authorization, franchise, or lease, and such other period of time during which the grantee, franchisee, or lessee is operating without an authorization, franchise, or lease hereunder, or is engaged in the removal of its telecommunications facilities. The grantee, franchisee, or lessee shall provide to the city an insurance certificate, together with an endorsement naming the city, and its elected and appointed officers, officials, agents, employees, representatives, engineers, consultants, and volunteers as additional insureds, prior to the commencement of any work or installation of any facilities pursuant to said authorization, franchise, or lease. Any deductibles or self-insured retentions must be declared to and approved by the city if greater than five percent of the coverage limit. Payment of deductibles and self-insured retentions shall be the sole responsibility of the grantee, franchisee, or lessee. The insurance certificate required by this section shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability. The grantee, franchisee, or lessee’s insurance shall be primary insurance as respects the city, its officers, officials, employees, agents, consultants, and volunteers. Any insurance maintained by the city, its officers, officials, employees, consultants, agents, and volunteers shall be in excess of the insurance maintained by grantee, franchisee, or lessee and shall not contribute with it.

F. In addition to the coverage requirements set forth in this section, each such insurance policy shall contain the following endorsement:

It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew be stated until 60 days after receipt by the City, by registered mail, of a written notice addressed to the Public Works Director of such intent to cancel or not to renew.

G. Within 30 days after receipt by the city of said notice, and in no event later than 15 days prior to said cancellation or intent not to renew, the grantee, franchisee, or lessee shall obtain and furnish to the city replacement insurance policies meeting the requirements of this section.

12.16.1200 General indemnification.

No authorization, franchise, or lease shall be deemed to be granted under this chapter unless it includes an indemnity clause substantially conforming to the following:

The grantee, franchisee, or lessee hereby releases, covenants not to bring suit and agrees to indemnify, defend and hold harmless the City, its elected and appointed officials, officers, employees, agents, representatives, engineers, and consultants from any and all claims, costs, judgments, awards, or liability to any person, including claims by the grantee, franchisee, or lessee’s own employees to which the grantee, franchisee, or lessee might otherwise be immune under Title 51 RCW, arising from injury or death of any person or damage to property of which the acts or omissions of the grantee, franchisee, or lessee, its agents, servants, officers, or employees in performing under this authorization, franchise, or lease are the proximate cause. The grantee, franchisee, or lessee further releases, covenants not to bring suit and agrees to indemnify, defend and hold harmless the City, its elected and appointed officials, officers, employees, agents, representatives, engineers, and consultants from any and all claims, costs, judgments, awards, or liability to any person including claims by the grantee, franchisee, or lessee’s own employees, including those claims to which the grantee, franchisee, or lessee might otherwise have immunity under Title 51 RCW, arising against the City solely by virtue of (1) the City’s ownership or control of the rights-of-way or other public properties, (2) the grantee, franchisee, or lessee’s exercise of the rights granted herein, or (3) the City’s permitting the grantee, franchisee, or lessee’s use of the City’s rights-of-way or other public property, or (4) based upon the City’s inspection or lack of inspection of work performed by the grantee, franchisee, or lessee, its agents and servants, officers or employees in connection with work authorized on the City’s property or property over which the City has control, pursuant to this authorization, franchise, or lease, or pursuant to any other permit or approval issued in connection with this authorization, franchise, or lease. This covenant of indemnification shall include, but not be limited by this reference, claims against the City arising as a result of the negligent acts or omissions of the grantee, franchisee, or lessee, its agents, servants, officers, or employees in barricading, instituting trench safety systems or providing other adequate warnings of any excavation, construction, or work in any public right-of-way or other public place in performance of work or services permitted under this authorization, franchise, or lease.

Inspection or acceptance by the City of any work performed by the grantee, franchisee, or lessee at the time of completion of construction shall not be grounds for avoidance of any of these covenants of indemnification. Said indemnification obligations shall extend to claims which are not reduced to a suit and any claims which may be compromised prior to the culmination of any litigation or the institution of any litigation.

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

In the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the grantee, franchisee, or lessee, and the City, its officers, employees and agents, the grantee, franchisee, or lessee’s liability hereunder shall be only to the extent of the grantee, franchisee, or lessee’s negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes the grantee, franchisee, or lessee’s waiver of immunity under Title 51 RCW, solely for the purposes of this indemnification. This waiver has been mutually negotiated by the parties.

The provisions of this section shall survive the expiration or termination of this authorization, franchise, or lease agreement.

Notwithstanding any other provisions of this section, the grantee, franchisee, or lessee assumes the risk of damage to its facilities located in the City’s public ways, rights-of-way, easements, and property from activities conducted by the City, its officers, agents, employees, and contractors. The grantee, franchisee, or lessee releases and waives any and all claims against the City, its officers, agents, employees, or contractors for damage to or destruction of the grantee, franchisee, or lessee’s facilities caused by or arising out of activities conducted by the City, its officers, agents, employees, and contractors, in the public ways, rights-of-way, easements, or property subject to this authorization, franchise, or lease, except to the extent any such damage or destruction is caused by or arises from the sole negligence or willful or malicious action on the part of the City, its officers, agents, employees, or contractors. The grantee, franchisee, or lessee further agrees to indemnify, hold harmless and defend the City against any claims for damages, including, but not limited to, business interruption damages and lost profits, brought by or under users of the grantee, franchisee, or lessee’s facilities as the result of any interruption of service due to damage or destruction of the user’s facilities caused by or arising out of activities conducted by the City, its officers, agents, employees, or contractors, except to the extent any such damage or destruction is caused by or arises from the sole negligence or willful or malicious actions on the part of the City, its officers, agents, employees, or contractors.

12.16.1210 Performance and construction surety.

Before an authorization, franchise, or lease granted pursuant to this chapter is effective, and as necessary thereafter, the grantee, franchisee, or lessee shall provide and deposit such monies, bonds, letters of credit, or other instruments in form and substance acceptable to the city as may be required by this chapter, the Mill Creek Municipal Code, or by an applicable authorization, franchise, or lease agreement.

12.16.1220 Security fund.

A. Each grantee, franchisee, or lessee shall establish a permanent security fund with the city by depositing the amount of $50,000, or such lesser amount as deemed necessary by the public works director, with the city in cash, an unconditional letter of credit, or other instrument acceptable to the city, which fund shall be maintained at the sole expense of the grantee, franchisee, or lessee so long as any of the grantee, franchisee, or lessee’s cable or telecommunications facilities are located within the public ways of the city or upon city property.

B. The security fund established under this section shall serve as security for the full and complete performance of this chapter, including any costs, expenses, damages, or loss the city pays or incurs, including civil penalties, because of any failure attributable to the grantee, franchisee, or lessee to comply with the codes, ordinances, rule, regulations, or permits of the city.

C. Before any sums are withdrawn from the security fund, the city shall give written notice to the grantee, franchisee, or lessee:

1. Describing the act, default or failure to be remedied, or the damages, cost or expenses which the city has incurred by reason of grantee, franchisee, or lessee’s act or default;

2. Providing a reasonable opportunity for grantee, franchisee, or lessee to first remedy the existing or ongoing default or failure, if applicable;

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

4. That the grantee, franchisee, or lessee will be given an opportunity to review the act, default or failure described in the notice with the city or his or her designee.

D. Grantees, franchisees and lessees shall replenish the security fund within 14 days after written notice from the city that there is a deficiency in the amount of the fund.

12.16.1230 Construction and completion bond.

A. Unless otherwise provided in an authorization, franchise, or lease agreement, a performance agreement secured by a performance bond written by a corporate surety acceptable to the city equal to at least 125 percent of the estimated cost of constructing the grantee, franchisee, or lessee’s cable or telecommunications facilities within the public ways of the city or upon city property shall be deposited before construction is commenced.

B. Except as provided below, the performance bond shall remain in force until two years after substantial completion of the work, as determined by the city, including restoration of public ways and other property affected by the construction.

C. The performance agreement shall guarantee, to the satisfaction of the city:

1. Timely completion of construction;

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

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

4. Restoration of the public ways and other public or private property disrupted, damaged, or otherwise affected by the construction. The performance agreement shall warrant said restoration work for a period of two years;

5. The submission of "as-built" drawings after completion of the work as required by this chapter; and

6. Timely payment and satisfaction of all claims, demands or liens for labor, material or services provided in connection with the work.

12.16.1240 Coordination of construction activities.

MCMC 12.16.090 notwithstanding, all grantees and franchisees are required to cooperate with the city and with each other, including without limitation:

A. By February 1st of each year, grantees and franchisees shall provide the city with a schedule of their proposed construction activities in, around, or that may affect the public ways.

B. Each grantee and franchisee shall meet with the city, other grantees and franchisees and users of the public ways annually or as determined by the city to schedule and coordinate construction in the public ways.

C. All construction locations, activities and schedules shall be coordinated, as ordered by the public works director, to minimize public inconvenience, disruption or damages.

12.16.1250 Assignments or transfers of grant.

A. Ownership or control of a cable or telecommunications system, license, authorization, franchise, or lease may not, directly or indirectly, be transferred, assigned or disposed of by sale, lease, merger, consolidation or other act of the grantee or franchisee, by operation of law or otherwise, without the prior written consent of the city, 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.

B. No authorization, franchise, lease, or other grant shall be assigned or transferred in any manner within 12 months after the initial grant of the authorization or franchise, unless otherwise provided in the authorization or franchise agreement.

C. 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.

D. The grantee, franchisee, or lessee and the proposed assignee or transferee of the grant or system shall provide and certify the following information to the city not less than 150 days prior to the proposed date of transfer:

1. Complete information setting forth the nature, terms and condition of the proposed transfer or assignment;

2. All information required of an authorization, franchise, or lease applicant pursuant to Articles II, III, IV and V of this chapter with respect to the proposed transferee or assignee;

3. Any other information reasonably required by the city; and

4. An application fee which shall be set by the city council by resolution.

E. 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 cable or telecommunications system pursuant to this chapter.

F. Unless otherwise provided in an authorization, franchise, or lease agreement, the grantee, franchisee, or lessee shall reimburse the city for all direct and indirect costs and expenses reasonably incurred by the city in considering a request to transfer or assign an authorization, franchise, or lease. No approval shall be deemed approved until all such costs and expenses have been paid.

G. Any transfer or assignment of an authorization, franchise, lease, system, or integral part of a system without prior written approval of the city under this section or pursuant to an authorization, franchise, or lease agreement shall be void and is cause for revocation of the grant.

12.16.1260 Transactions affecting control of grant.

Any transactions which singularly or collectively result in a change of 50 percent or more of the ownership or working control of the grantee, franchisee, lessee, of the ownership or working control of a cable or telecommunications system, of the ownership or working control of affiliated entities having ownership or working control of the grantee, franchisee, or lessee or of a telecommunications system, or of control of the capacity or bandwidth of the grantee, franchisee, or lessee’s cable or telecommunication system, facilities or substantial parts thereof, shall be considered an assignment or transfer requiring city approval pursuant to MCMC 12.16.1250. Transactions between affiliated entities are not exempt from city approval. A grantee, franchisee, or lessee shall promptly notify the city prior to any proposed change in, or transfer of, or acquisition by any other party of control of a grantee, franchisee, or lessee’s company. Every change, transfer, or acquisition of control of a grantee, franchisee, or lessee’s company shall cause a review of the proposed transfer. In the event that the city adopts a resolution or other appropriate order denying its consent and such change, transfer or acquisition of control has been effected, the city may cancel the authorization, franchise, or lease. Approval shall not be required for mortgaging purposes or if said transfer is from a grantee, franchisee, or lessee to another person or entity controlling, controlled by, or under common control with a grantee, franchisee, or lessee.

12.16.1270 Revocation or termination of grant.

An authorization, franchise, or lease granted by the city to use or occupy public ways of the city or city property may be revoked for any of the following reasons:

A. Construction or operation in the city or in the public ways of the city or upon city property without a grant of authority from an authorization, franchise, or lease.

B. Construction or operation at an unauthorized location.

C. Unauthorized substantial transfer of control of a grantee, franchisee, or lessee.

D. Unauthorized assignment of an authorization, franchise, or lease.

E. Unauthorized sale, assignment or transfer of a grantee, franchisee, or lessee’s authorization, franchise, lease, assets, or a substantial interest therein.

F. Misrepresentation or lack of candor by or on behalf of a grantee, franchisee, or lessee in any application or written or oral statement upon which the city relies in making the decision to grant, review or amend any authorization, franchise, or lease pursuant to this chapter.

G. Abandonment of cable or telecommunications facilities in the public ways or upon city property.

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

I. Failure to restore public ways, other ways or public property to a complete and satisfactory condition.

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

K. Insolvency or bankruptcy of the grantee, franchisee, or lessee.

L. Violation of any material provision of this chapter.

M. Violation of the material terms of an authorization, franchise, or lease agreement.

12.16.1280 Notice and duty to cure.

In the event that the city believes that grounds exist for revocation of an authorization, franchise, or lease, the grantee, franchisee, or lessee shall be given 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, franchisee, or lessee a reasonable period of time not exceeding 30 days to furnish evidence that:

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

B. Rebuts the alleged violation or noncompliance; and

C. It would be in the public interest to impose some penalty or sanction less than revocation.

12.16.1290 Hearing.

In the event that a grantee, franchisee, or lessee fails to provide evidence reasonably satisfactory to the city as provided in MCMC 12.16.1280, the city shall refer the apparent violation or noncompliance to the city council. The city council shall provide the grantee, franchisee, or lessee with notice and a reasonable opportunity to be heard concerning the matter.

12.16.1300 Standards for revocation or lesser sanctions.

If the city council determines that a grantee, franchisee, or lessee willfully violated or failed to comply with any of the provisions of this chapter or an authorization, franchise, or lease granted under this chapter, or through willful misconduct or gross negligence failed to heed or comply with any notice given the grantee, franchisee, or lessee by the city under the provisions of this chapter, then the grantee, franchisee, or lessee shall, at the election of the city council, forfeit all rights conferred hereunder and the authorization, franchise, or lease may be revoked or annulled by the city council. The city council may elect, in lieu of the above and without any prejudice to any of its other legal rights and remedies, to pursue other remedies, including obtaining an order from the superior court having jurisdiction compelling the grantee, franchisee, or lessee to comply with the provisions of this chapter and any authorization, franchise, or lease granted hereunder, and to recover damages and costs incurred by the city by reason of the grantee, franchisee, or lessee’s failure to comply. The city council shall utilize the following factors in analyzing the nature, circumstances, extent, and gravity of the violation and in making its determination under this section:

A. Whether the misconduct was egregious;

B. Whether substantial harm resulted;

C. Whether the violation was intentional;

D. Whether there is a history of prior violations of the same or other requirements;

E. Whether there is a history of overall compliance; or

F. Whether the violation was voluntarily disclosed, admitted or cured.

12.16.1310 Incorporation by reference.

The provisions of this chapter shall be incorporated by reference in any authorization, franchise, or lease approved hereunder. The provisions of any proposal submitted and accepted by the city shall be incorporated by reference in the applicable authorization, franchise, or lease. However, in the event of any conflict between the proposal, this chapter, and the authorization, franchise, or lease, the authorization, franchise, or lease shall be the prevailing document, unless otherwise provided.

12.16.1320 Notice of entry on private property.

If directed by the city, at least 24 hours prior to entering private property or streets or public easements adjacent to or on such private property to perform new construction or reconstruction, a notice indicating the nature and location of the work to be performed shall be physically posted, at no expense to the city, upon the affected property by the grantee or franchisee. A door hanger may be used to comply with the notice and posting requirements of this section. A grantee or franchisee shall make a good faith effort to comply with the property owner/resident’s preferences, if any, on location or placement of underground installations (excluding aerial cable lines utilizing existing poles and existing cable paths), consistent with sound engineering practices; provided, however, that nothing in this chapter shall permit a grantee or franchisee to unlawfully enter or construct improvements upon the property or premises of another.

12.16.1330 Safety requirements.

A grantee, franchisee, or lessee, in accordance with applicable federal, state, and local safety requirements shall, at all times, employ ordinary care and shall install and maintain and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injury, or nuisance to the public and/or workers. All structures and all lines, equipment and connections in, over, under, and upon the streets, sidewalks, alleys, and public ways or places of a permit, franchise, or lease area, wherever situated or located, shall at all times be kept and maintained in a safe, suitable condition, and in good order and repair. The city reserves the general right to see that the system of a grantee, franchisee, or lessee is constructed and maintained in a safe condition. If a violation of the National Electrical Safety Code or other applicable regulation is found to exist by the city, the city will, after discussions with a grantee, franchisee, or lessee, establish a reasonable time for a grantee, franchisee, or lessee to make necessary repairs. If the repairs are not made within the established time frame, the city may make the repairs itself or have them made and collect all reasonable costs thereof from a grantee, franchisee, or lessee.

12.16.1340 Most favored community.

In the event that a grantee, franchisee, or lessee enters into any agreement, franchise or other understanding with any other city, town or county in the state of Washington which provides terms or conditions more favorable to the city, town or county than those provided in its agreement with the city, the city shall be entitled to request at the city’s option, and the grantee, franchisee, or lessee in question shall be required to execute, an amendment to its agreement which incorporates the more favorable terms and conditions.

Article VII. Right-of-Way Work Standards (for Telecommunications Only)

12.16.1350 General construction standards.

Notwithstanding any provision of this chapter, no person shall commence or continue with the construction, installation, maintenance, or repair of cable or telecommunications facilities within public ways of the city or upon city-owned property, except as provided in this chapter.

12.16.1360 Construction codes.

Cable and telecommunications facilities shall be constructed, installed, operated, and maintained in accordance with all applicable federal, state and local codes, rules and regulations.

12.16.1370 Right-of-way work permits.

No person shall construct, install, repair, or maintain any cable or telecommunications facilities within the public ways of the city or upon city property without first obtaining the appropriate right-of-way work permit therefor, provided, however:

A. No right-of-way work permit shall be issued for the construction or installation of cable or telecommunications facilities within the city unless the cable operator or telecommunications carrier has filed an application for a telecommunications business registration pursuant to Chapter 5.06 MCMC;

B. No permit shall be issued for the construction or installation of telecommunications facilities in the public ways unless the cable operator or telecommunications carrier or provider has applied for and received an authorization or franchise pursuant to this chapter;

C. No permit shall be issued for the construction or installation of cable or telecommunications facilities without payment of any applicable construction permit fee; and

D. No permit shall be issued for the construction or installation of telecommunications or other equipment on city property unless the telecommunications carrier or provider has applied for and received a facilities lease from the city. The city council reserves unto itself the sole discretion to lease city property for telecommunications and other facilities, and no vested or other rights shall be created by this section or any provision of this chapter applicable to such facilities leases.

12.16.1380 Applications.

Applications for permits to construct cable or telecommunications facilities shall be submitted to the public works director upon forms to be provided by the city and shall be accompanied by the appropriate fee as established by the city council and by drawings, plans and specifications in sufficient detail to demonstrate:

A. That the facilities will be constructed in accordance with all applicable codes, rules and regulations;

B. The location and route of all facilities to be installed on existing utility poles;

C. The location, route, and configuration 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;

D. 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;

E. The location of all other facilities to be constructed within the city, but not within the public ways;

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

G. 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;

H. Proposed construction schedule and work hours; and

I. The location of all survey monuments which may be displaced or disturbed by the proposed construction.

12.16.1390 Engineer’s certification.

Where required by the public works director, permit applications shall be accompanied by drawings, plans and specifications bearing the certification of a registered professional engineer.

12.16.1400 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 Uniform Manual of Traffic Control Devices, to prevent injury or damage to persons or property and to minimize disruptions to efficient pedestrian and vehicular traffic.

12.16.1410 Issuance of permit.

After submission of all plans and documents required of the applicant and payment of the permit fees required by this article, the public works director, if satisfied that the applications, plans and documents 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 or she may deem necessary or appropriate.

12.16.1420 Appeal of director’s decision.

Any person aggrieved by the granting or denying of a right-of-way work permit pursuant to this article shall have the right to appeal to the city council as follows:

A. All appeals filed pursuant to this section must be filed in writing with the public works director within 10 working days of the date of the decision appealed from;

D. All relevant evidence shall be received during the hearing on the appeal;

F. For all appeals decided pursuant to this section, the city shall provide for a record that shall consist of written findings and conclusions and a taped transcript;

G. Unless otherwise provided by state statute or other law, all actions seeking review of a final action of the city, whether in the form of an appeal, declaratory judgment action, petition for writ of review or other extraordinary writ, or in any other form, shall be filed with a court having jurisdiction over such action within 15 days of the decision, or the expiration of the reconsideration period, whichever is later, and otherwise shall be barred; and

H. No action to obtain judicial review shall be commenced unless all rights of appeal provided by this section are fully exhausted. The cost of transcription of all records ordered certified by the court for such review shall be borne by the party seeking such review and shall be paid in advance to the city clerk. If a transcript is prepared by such party shall be submitted to the city for confirmation of its accuracy.

12.16.1430 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 public works director and his or her representatives shall be provided access to the work and such further information as he or she may require to ensure compliance with such requirements.

12.16.1440 Display of permit.

The permittee shall maintain a copy of the right-of-way work permit and approved plans at the construction site, which shall be displayed and made available for inspection by the public works director or his or her representatives at all times when construction work is occurring.

12.16.1450 Survey of underground facilities.

If the right-of-way work 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 state-registered land surveyor. The permittee may be required to relocate any facilities which are not located in compliance with permit requirements.

12.16.1460 Noncomplying work.

Upon order of the public works director, 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 remedied or removed.

12.16.1470 Completion of construction.

The permittee shall promptly complete all construction activities so as to minimize disruption of the public and other ways and other public and private property. All construction work authorized by a permit within public and other ways, including restoration, must be completed within 120 days of the date of issuance.

12.16.1480 As-built drawings.

Within 60 days after completion of construction, the permittee shall furnish the city with two complete sets of plans drawn to scale and certified to the city as accurately depicting the horizontal and vertical location and configuration of all cable or telecommunications facilities constructed pursuant to the permit.

12.16.1490 Restoration after construction.

Upon completion of any construction, maintenance, or repair work, the permittee shall promptly repair any and all public and private property improvements, fixtures, structures, and facilities in the public or other ways or otherwise damaged during the course of construction, restoring the same as nearly as practicable to its condition before the start of construction. All survey monuments disturbed or displaced shall be referenced and replaced as required by Chapter 332-120 WAC and/or other applicable local, state or federal standards and requirements. The referencing and replacement of survey monuments shall be performed by a licensed land surveyor. The public works director shall have final approval of the completeness of all restoration work and all permittees shall warrant said restoration work for a period of two years.

12.16.1500 Landscape restoration.

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

B. All landscape restoration work within the public ways shall be done in accordance with landscape plans approved by the city public works director.

12.16.1510 Construction surety.

Prior to issuance of a construction permit, the permittee shall provide a secured performance agreement, as provided in MCMC 12.16.1230.

12.16.1520 Exceptions.

Unless otherwise provided in an authorization, franchise, or lease agreement, all cable operations and telecommunications carriers are subject to the requirements of this article.

12.16.1530 Responsibilities of the owner.

The owner of the facilities to be constructed and, if different, the grantee, franchisee, or lessee, are responsible for performance of and compliance with all provisions of this article.