Chapter 11.10 CONDITIONS OF TELECOMMUNICATIONS RIGHT-OF-WAY USE

The purpose of this Chapter is to set forth certain terms and conditions which are common to all Telecommunications Right-of-Way Use Authorizations, master permits, and Facilities Leases. Except as otherwise provided in these Chapters or in such an authorization, master permit, or lease, the provisions of this Chapter apply to all such authorizations, master permits, and leases approved or granted by the City.

(Ord. 6033 §42, 2000; Ord. 5816 §6, 1998).

11.10.020 Acceptance

No authorization, master permit, or lease granted pursuant to the provisions of these Chapters shall become effective unless and until the ordinance or other City action granting the same has become effective. Within thirty (30) days after the effective date of the ordinance or other City action granting an authorization, master permit, 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 an unconditional written acceptance of the authorization, master permit, or lease, in a form satisfactory to the City Attorney, together with the bonds, insurance policies, and security fund required by this Chapter.

(Ord. 6033 §43, 2000; Ord. 5816 §6, 1998).

11.10.030 Police power

In accepting any authorization, master permit or lease, the grantee, master permittee, 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; provided, that the general ordinances and laws do not otherwise: 1) prohibit the placement of all wireless or wire line facilities within the city or town, 2) prohibit the placement of all wireless or wire line facilities within the city, 3) prohibit the placement of all wireless or of all wire line facilities within city rights-of-way, or 4) violate Section 253 of the Telecommunications Act of 1996, Public Law 104-104(110)(STAT.56).

(Ord. 6033 §44, 2000; Ord. 5816 §6, 1998).

11.10.040 Rules and regulations by the city

In addition to the inherent powers of the City to regulate and control any authorization, master permit, or lease it issues, the authority granted to it by the Telecommunications Act of 1996, and those powers expressly reserved by the City, or agreed to and provided for in any authorization, master permit, 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, master permittees, and lessees. Except as provided in these Chapters, the foregoing does not allow for amendment by the City of material terms of any authorization, master permit, or lease it issues without the consent of the grantee, master permittee, or lessee. The City reserves the right to delegate its authority for authorization, master permit, or lease administration to a designated agent.

(Ord. 6033 §45, 2000; Ord. 5816 §6, 1998).

11.10.050 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, master permit, or lease agreement.

A. Subject to the provisions below, all master permittees, or lessees for right-of-way permits must locate its new cable or Facilities on existing poles if the poles have capacity, including that provided by additional cross bars or extenders. New overhead or replacement poles which exceed the height of the pole(s) replaced may not be installed. This subsection shall apply only to lines and other facilities located or capable of being located under this ordinance within corridors established in the plan described below. All other new lines must be undergrounded at time of installation.

With input from master permittees, lessees, or other service providers, the City shall develop a utility undergrounding plan. The plan shall provide for the undergrounding of all or a portion of aerial utility facilities and Facilities located in, or required under this ordinance to be placed in, identified corridors within the City on an established schedule. Each master permittee, lessee, or applicant shall agree to participate in undergrounding its Facilities along with other Facilities according to the schedule identified in the plan, and shall pay its fair share of the cost of undergrounding all such utility facilities and Facilities in accord with the plan; provided, however, that service providers with an ownership share of the aerial supporting structures shall pay only that portion of the undergrounding equal to the cost of aerial relocation of their Facilities, or the amount provided for in the approved tariff, whichever is less. The requirements of this Section shall apply when the undergrounding is reasonably necessary for construction, alteration, repair, or improvement of the right-of-way for purposes of public welfare, health, or safety.

If at the time of undergrounding an insufficient number of users exist for undergrounding, as determined in the plan, each master permittee, lessee, or applicant shall at the time underground its own Facilities at its own expense per the plan, except as provided herein. At the time the plan is adopted by the City, the master permittee, lessee, or applicant shall execute a bond acceptable to the City Attorney in an amount sufficient to ensure its financial participation in the undergrounding.

In situations within corridors where overhead facilities are at capacity, including that possibly provided by cross bars or extenders, all master permittees, or right-of-way use permittees shall underground its Facilities.

Insofar as the law allows, all new main, trunk, or backbone telecommunication lines proposed to run in a parallel direction to any identified corridor shall be located by master permittees, lessees, or applicants within that corridor. If locating any parallel main lines in a corridor is impractical or contrary to law, master permittee, lessee, or applicant shall underground the line and execute an agreement with the City which commits the master permittee, lessee, or applicant to participate financially equal to its fair share of the cost of undergrounding within the parallel corridor. If such an agreement shall be found unlawful, the master permittee, lessee, or applicant still must underground the parallel line. Until those corridors are identified, the Downtown Design Review District and High Density Corridors shall constitute interim corridors.

B. The City may require that a service provider that is constructing, relocating, or placing ducts or conduits in public rights-of-way provide the City with additional duct or conduit and related structures necessary to access the conduit; provided that: 1) the City enters into a contract with the service provider consistent with RCW 80.36.150. The contract rate to be charged should recover the incremental costs of the service provider. If the City makes the additional duct or conduit and related access structures available to any other entity for the purpose of providing telecommunications or cable television service for hire, sale or resale to the general public, the rates to be charged, as set forth in the contract with the entity that constructed the conduit or duct, shall recover at least the fully allocated costs of the service provider. The service provider shall state both contract rates in the contract. The City shall inform the service provider of the use and any change in use of the requested duct or conduit and related access structures to determine the applicable rate to be charged by the City.

Except as otherwise agreed by the service provider and the City, the City shall agree that the requested additional duct or conduit space and related access structures will not be used by the city or town to provide telecommunications or cable television service for hire, sale, or resale to the general public. The City shall not require that the additional duct or conduit space be connected to the access structures and vaults of the service provider. The value of the additional duct or conduit requested by the City shall not be considered a public works construction contract. This Section shall not affect the provision of an institutional network by a cable television provider under federal law.

C. No service leads will be installed overhead.

(Ord. 6208 §4, 2002; Ord. 6033 §46, 2000; Ord. 5919 §2, 1999; Ord. 5816 §6, 1998).

11.10.060 Compliance with one number locator service

All grantees, master permittees, and lessees shall, before commencing any construction in the right-of-way, comply with all regulations of Chapter 19.122 RCW, the One Number Locator Service.

(Ord. 6033 §47, 2000; Ord. 5816 §6, 1998).

11.10.070 Construction permits

All grantees, master permittees, and lessees are required to obtain use permits for Facilities as required in Chapter 11.12. However, nothing in these Chapters shall prohibit the City and a grantee, master permittee, or lessee from agreeing to alternative plan review, permit, and construction procedures for an authorization, master permit, or lease granted under these Chapters, provided such alternative procedures provide substantially equivalent safeguards for responsible construction practices.

(Ord. 6033 §48, 2000; Ord. 5816 §6, 1998).

11.10.080 Interference with the right-of-way

No grantee, master permit, or lessee may locate or maintain its telecommunications facilities so as to unreasonably interfere with the use of the right-of-way 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, master permittee, or lessee, at the grantee’s, master permittee’s, or lessee’s cost, temporarily or permanently, as determined by the City Community Planning and Development Director.

(Ord. 6033 §49, 2000; Ord. 5816 §6, 1998).

11.10.090 Damage to property

No grantee, master permittee, or lessee, nor any person acting on a grantee, franchisee, or lessee’s behalf shall take any action or permit any action to be done which may impair or damage any City property, right-of-way of the City, other ways or other property, whether publicly or privately owned, located in, on or adjacent thereto. This Section shall not apply to necessary street cuts approved by the City.

(Ord. 6033 §50, 2000; Ord. 5816 §6, 1998).

11.10.100 Notice of work

Unless otherwise provided in an authorization, master permit, or lease agreement, no grantee, master permittee, or lessee, nor any person acting on the grantee, master permittee, or lessee’s behalf, shall commence any non-emergency work in or about the right-of-way of the City, other ways, or upon City property without reasonable advance notice to the City and procure a use permit pursuant to Chapter 11.12 of this Code.

(Ord. 6033 §51, 2000; Ord. 5816 §6, 1998).

11.10.110 Repair and emergency work

In the event of an unexpected repair or emergency, a grantee, master permittee, or lessee may commence such repair and emergency response work as required under the circumstances, provided the grantee, master permittee, 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.

(Ord. 6033 §52, 2000; Ord. 5816 §6, 1998).

11.10.120 Maintenance of Facilities

Each grantee, master permittee, 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.

(Ord. 6033 §53, 2000; Ord. 5816 §6, 1998).

11.10.130 Relocation or removal of facilities

A grantee, master permittee, or lessee shall, at its own expense, temporarily or permanently remove, relocate, change, or alter the position of any telecommunications facilities within the right-of-way whenever the City Community Planning and Development Director shall have determined that such removal, relocation, change, or alteration is reasonably necessary for construction, alteration, repair, or improvement of the right-of-way for purposes of public welfare, health, or safety.

The Director shall notify service providers as soon as practicable the need for relocation and shall specify the date by which relocation shall be completed. In calculating the date that relocation must be completed, the Director shall consult with affected service providers and consider the extent of facilities to be relocated, the service’s requirements, and the construction sequence for the relocation, within the City’s overall project construction sequence and constraints, to safely complete the relocation. Service providers shall complete the relocation by the date specified, unless the Director, or a reviewing court, establishes a later date for completion, after a showing by the service provider that the relocation cannot be completed by the date specified using best efforts and meeting safety and service requirements.

Service providers may not seek reimbursement for their relocation expenses from the City under the provisions of this Section except:

A. Where the service provider had paid for the relocation cost of the same facilities at the request of the Director within the past five (5) years, in which case the City shall pay the cost of relocation;

B. Where aerial to underground relocation of authorized facilities is required by the Director as provided above, for service providers with an ownership share of the aerial supporting structures, the additional incremental cost of underground compared to aerial relocation, or as provided for and the approved tariff, if less, will be paid by the City; and

C. Where the City requests relocation under this Section solely for aesthetic purposes, unless otherwise agreed to by the parties.

Where a project is primarily for private benefit, the private party or parties shall reimburse the cost of relocation in the same proportion to their contribution to the costs of the project. Service providers will be allowed to recover their costs associated with relocation required under this Section only if the recovery is consistent with the terms of this Section and other applicable laws. The City may require the relocation of facilities at the service provider’s expense in the event of an unforeseen emergency that creates an immediate threat to the public safety, health, and welfare.

A service provider shall relocate or remove facilities, either aerial or underground, located on City-owned property at its own expense, subject to any provision in a contract between the service provider and the City.

(Ord. 6033 §54, 2000; Ord. 5816 §6, 1998).

11.10.140 Building moving

Whenever any person shall have obtained permission from the City to use any street or right-of-way for the purpose of moving any building, a grantee, master permittee, or lessee, upon fifteen (15) days written notice, shall raise or remove, at the expense of the person desiring to move the building, any of the grantee, master permittee, 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.

(Ord. 6033 §55, 2000; Ord. 5816 §6, 1998).

11.10.150 Removal of unauthorized facilities

Within ninety (90) days following written notice from the City, any service provider or other person who owns, controls, or maintains any unauthorized telecommunication system, facility, or related appurtenances within the right-of-way of the City shall, at its own expense, remove such facilities or appurtenances from the right-of-way of the City. A cable or telecommunications system or facility is unauthorized and subject to removal in the following circumstances:

A. Upon expiration or termination of the grantee’s or master permittee’s authorization or master permit, except for Facilities of a service provider with an existing state-wide grant to occupy the right-of-way or except where the City and grantee or master permittee are moving in good faith to renew its authorization;

B. Upon abandonment of a facility within the rights-of-way of the City. Any property of a grantee or master permittee shall be deemed abandoned if left in place ninety (90) days after expiration or termination of an authorization or master permit;

C. If the system or facility was constructed or installed without the prior grant of an authorization or master permit (except for Facilities of a service provider with an existing state-wide grant to occupy the right-of-way);

D. If the system or facility was constructed or installed without the prior issuance of a required Construction Permit; and

E. If the system or facility was constructed or installed at a location not permitted by the authorization or master permit (except for Facilities of a service provider with an existing state-wide grant to occupy the right-of-way).

Provided, however, that the City may, in its sole discretion, allow a grantee, master permittee, or other such persons who may own, control, or maintain Facilities within the right-of-way 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 master permittee’s Facilities must be first approved by the Community Planning and Development Director, and all necessary permits must be obtained prior to such work. Upon permanent abandonment of the property of such persons in place, the property shall become that of the City, and such persons shall submit to the City an instrument in writing, to be approved by the City Attorney, transferring to the City the ownership of such property. The provisions of this Section shall survive the expiration, revocation, or termination of an authorization or master permit granted under these Chapters.

(Ord. 6033 §56, 2000; Ord. 5816 §6, 1998).

11.10.160 Emergency removal or relocation of Facilities

The City retains the right and privilege to cut or move any Facilities located within the right-of-way 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, service 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.

(Ord. 6033 §57, 2000; Ord. 5816 §6, 1998).

11.10.170 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 Facility upon City property or within the right-of-way 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 right-of-way by or on behalf of the City.

(Ord. 6033 §58, 2000; Ord. 5816 §6, 1998).

11.10.180 Restoration of rights-of-way, other ways, and city property

A. When a grantee, master permittee, lessee, or any person acting on its behalf, does any work in or affecting any right-of-way, other ways or City property, it shall, at its own expense, promptly remove any obstructions therefrom and restore such ways or property per Chapter 4 of the Development Guidelines, unless otherwise directed by the City.

B. If weather or other conditions do not permit the complete restoration required by this Section, the grantee, master permittee, or lessee shall temporarily restore the affected ways or property per Chapter 4 of the Development Guidelines.

C. A grantee, master permittee, lessee or other person acting in its behalf shall use suitable traffic control per Chapter 3 of the Development Guidelines.

D. The Community Planning and Development Director shall be responsible for inspection and final approval of the condition of the right-of-way, other ways, and City property following any construction and restoration activities therein. Further, the provisions of this Section shall survive the expiration, revocation, or termination of an authorization, master permit, lease, or other agreement granted pursuant to these Chapters.

(Ord. 6033 §59, 2000; Ord. 5816 §6, 1998).

11.10.190 Facilities maps

Upon the written request of the city engineer in the exercise of the City’s authority to manage rights-of-way and plan transportation and other public improvements to the right-of-way, each service provider occupying City rights-of-way shall provide the City with accurate maps identifying the location of the provider’s Facilities located within a specific right-of-way in a form adequate for geographic information system usage.

(Ord. 6033 §60, 2000; Ord. 5816 §6, 1998).

11.10.200 Duty to provide information

Within thirty (30) days of a written request from the City, each grantee, master permittee, or lessee shall furnish the City with information sufficient to demonstrate:

A. That the grantee, master permittee, or lessee has complied with all requirements of these Chapters; and

B. That all sales, utility and/or telecommunications taxes due the City in connection with the telecommunications services and Facilities provided by the grantee, master permittee, or lessee have been properly collected and paid by the grantee, master permittee, or lessee. All books, records, maps and other documents, maintained by the grantee, master permittee, or lessee with respect to its facilities within the right-of-way 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, master permittee, or lessee to violate state or federal law regarding subscriber privacy, nor shall this Section be construed to require a grantee, master permittee, or lessee to disclose proprietary or confidential information without adequate safeguards for its confidential or proprietary nature.

(Ord. 6033 §61, 2000; Ord. 5816 §6, 1998).

11.10.210 Leased capacity

A grantee, master permittee, or lessee shall have the right, without prior City approval, to offer or provide capacity or bandwidth to another service provider consistent with such permit, master permit, or lease; provided:

A. The grantee, master permittee, or lessee shall furnish the City with a copy of any such lease or agreement between the grantee, master permittee, or lessee and the service provider; and

B. The receiving service provider has been advised that it must comply, to the extent applicable, with the requirements of these Chapters.

(Ord. 6033 §62, 2000; Ord. 5816 §6, 1998).

11.10.220 Insurance

Unless otherwise provided in an authorization, master permit, or lease agreement, each grantee, master permittee, or lessee shall, as a condition of the permit or grant, secure, and maintain the following liability insurance policies insuring both the grantee, master permittee, 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, master permittee, or lessee:

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

1. $3,000,000.00 for bodily injury or death to each person;

2. $3,000,000.00 for property damage resulting from any one accident; and

3. $5,000,000.00 per occurrence.

B. Automobile liability for owned, non-owned and hired vehicles with a limit of $3,000,000.00 for each person and $3,000,000.00 for each accident;

C. Worker’s compensation within statutory limits and employer’s liability insurance with limits of not less than $1,000,000.00;

D. Comprehensive form premises, operations, explosions and collapse hazard, underground hazard and products completed hazard with limits of not less than $3,000,000.00;

E. The liability insurance policies required by this Section shall be maintained by the grantee, master permittee, or lessee throughout the term of the authorization, master permit, or lease, and such other period of time during which the grantee, master permittee, or lessee is operating without an authorization, master permit, or lease hereunder, or is engaged in the removal of its telecommunications facilities. The grantee, master permittee, or lessee shall provide 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, to the City prior to the commencement of any work or installation of any facilities pursuant to said authorization, master permit, or lease. Any deductibles or self-insured retentions must be declared to and approved by the City. Payment of deductibles and self-insured retentions shall be the sole responsibility of the grantee, master permittee, 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, master permittee, 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 grantee, master permittee, or lessee’s insurance 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 sixty (60) days after receipt by the City, by registered mail, of a written notice addressed to the City Manager of such intent to cancel or not to renew."

G. Within thirty (30) days after receipt by the City of said notice, and in no event later than fifteen (15) days prior to said cancellation or intent not to renew, the grantee, master permittee, or lessee shall obtain and furnish to the City replacement insurance policies meeting the requirements of this Section.

(Ord. 6033 §63, 2000; Ord. 5816 §6, 1998).

11.10.230 General indemnification

No authorization, master permit, or lease shall be deemed to be granted under these Chapters unless it includes an indemnity clause substantially conforming to the following:

The grantee, master permittee, 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, master permittee, or lessee’s own employees to which the grantee, master permittee, 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 negligent acts or omissions of the grantee, master permittee, or lessee, its agents, servants, officers, or employees in performing under this authorization, master permit, or lease are the proximate cause. The grantee, master permittee, 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, master permittee, or lessee’s own employees, including those claims to which the grantee, master permittee, or lessee might otherwise have immunity under Title 51 RCW, arising against the City solely by virtue of the City’s ownership or control of the rights-of-way or other public properties, by virtue of the grantee, master permittee, or lessee’s exercise of the rights granted herein, or by virtue of the City’s permitting the grantee, master permittee, or lessee’s use of the City’s rights-of-way or other public property, based upon the City’s inspection or lack of inspection of work performed by the grantee, master permittee, 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, master permit, or lease, or pursuant to any other permit or approval issued in connection with this authorization, master permit, 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, master permittee, 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, master permit, or lease.

Inspection or acceptance by the City of any work performed by the grantee, master permittee, 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, master permittee, 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, master permittee, or lessee, then the grantee, master permittee, 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, master permittee, or lessee, and the City, its officers, employees and agents, the grantee, master permittee, or lessee’s liability hereunder shall be only to the extent of the grantee, master permittee, or lessee’s negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes the grantee, master permittee, 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, master permit, or lease agreement.

Notwithstanding any other provisions of this Section, the grantee, master permittee, or lessee assumes the risk of damage to its facilities located in the City’s rights-of-way, easements, and property from activities conducted by the City, its officers, agents, employees, and contractors. The grantee, master permittee, 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, master permittee, or lessee’s Facilities caused by or arising out of activities conducted by the City, its officers, agents, employees, and contractors, in the rights-of-way, easements, or property subject to this authorization, master permit, or lease, except to the extent any such damage or destruction is caused by or arises from the sole negligence or any willful or malicious action on the part of the City, its officers, agents, employees, or contractors. The grantee, master permit, 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, master permittee, 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 any willful or malicious actions on the part of the City, its officers, agents, employees, or contractors.

(Ord. 6033 §64, 2000; Ord. 5816 §6, 1998).

11.10.240 Performance and construction surety

Before an authorization, master permit, or lease granted pursuant to these Chapters is effective, and as necessary thereafter, the grantee, master permittee, 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 these Chapters or by an applicable authorization, master permit, or lease agreement.

(Ord. 6033 §65, 2000; Ord. 5816 §6, 1998).

11.10.250 Security fund

Each grantee, master permittee, or lessee shall establish a permanent security fund with the City by depositing the amount of Twenty Thousand Dollars and No Cents ($20,000.00), or such lesser amount as deemed necessary by the Community Planning and Development 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, master permittee, or lessee so long as any of the grantee, master permittee, or lessee’s Facilities are located within the right-of-way of the City or upon City property.

A. The fund 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, master permittee, or lessee to comply with the codes, ordinances, rules, regulations, or permits of the City.

B. Before any sums are withdrawn from the security fund, the City shall give written notice to the grantee, master permittee, or lessee:

1. Describing the act, default or failure to be remedied, or the damages, costs or expenses which the City has incurred by reason of grantee, master permittee, or lessee’s act or default;

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

3. Providing a reasonable opportunity for grantee, master permittee, 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, master permittee, 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.

C. Grantees, master permittees, and lessees shall replenish the security fund within fourteen (14) days after written notice from the City that there is a deficiency in the amount of the fund.

(Ord. 6033 §66, 2000; Ord. 5816 §6, 1998).

11.10.260 Restoration bond

Unless otherwise provided in an authorization, master permit, or lease agreement, a performance bond written by a corporate surety acceptable to the City equal to at least 100% of the estimated cost of removing the grantee, master permittee, or lessee’s Facilities and restoring the right-of-way, of the City and/or City-owned property to its pre-construction condition shall be deposited before any construction is commenced. Said bond shall be required to remain in full force until sixty (60) days after completion of the construction and/or improvements within the right-of-way of the City or upon City-owned property, and shall warrant all such restoration work for a period of one (1) year. The purpose of this bond is to guarantee removal of partially completed and/or non-conforming Facilities and to fully restore the right-of-way of the City and City-owned property to its pre-construction condition.

(Ord. 6033 §67, 2000; Ord. 5816 §6, 1998).

11.10.270 Coordination of construction activities

All grantees and master permittees are required to cooperate with the City and with each other and follow the coordination requirements in Chapter 4 of the Development Guidelines.

(Ord. 6033 §68, 2000; Ord. 5816 §6, 1998).

11.10.300 Revocation or termination of grant

An authorization, master permit, or lease granted by the City to use or occupy rights-of-way of the City or City property may be revoked for the following reasons:

A. Construction or operation in the City or in the right-of-way of the City or upon City property without a grant of authority from an authorization, master permit, or lease;

B. Construction or operation at an unauthorized location;

C. Misrepresentation by or on behalf of a grantee, master permittee, 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, master permit, or lease pursuant to these Chapters,

D. Abandonment of Facilities in the right-of-way or upon City property;

E. Failure to relocate or remove Facilities as required in these Chapters;

F. Failure to pay taxes, fees or costs when and as due the City;

G. Insolvency or bankruptcy of the grantee, master permittee, or lessee;

H. Violation of any material provision of these Chapters; and

I. Violation of the material terms of an authorization, master permit, or lease agreement.

(Ord. 6033 §70, 2000; Ord. 5816 §6, 1998).

11.10.310 Notice and duty to cure

In the event that the City believes that grounds exist for revocation of an authorization, master permit, or lease, the grantee, master permittee, 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, master permittee, or lessee a reasonable period of time not exceeding thirty (30) days to furnish evidence:

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

B. That rebuts the alleged violation or noncompliance; and

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

(Ord. 6033 §71, 2000; Ord. 5816 §6, 1998).

11.10.320 Hearing

In the event that a grantee, master permittee, or lessee fails to provide evidence reasonably satisfactory to the City as provided in Section 11.10.310 hereof, the City shall refer the apparent violation or non-compliance to the City Council. The City Council shall provide the grantee, master permittee, or lessee with notice and a reasonable opportunity to be heard concerning the matter.

(Ord. 6033 §72, 2000; Ord. 5816 §6, 1998).

11.10.330 Standards for revocation or lesser sanctions

If the City Council determines that a grantee, master permittee, or lessee willfully violated or failed to comply with any of the provisions of these Chapters or an authorization, master permit, or lease granted under these Chapters, or through willful misconduct or gross negligence failed to heed or comply with any notice given the grantee, master permittee, or lessee by the City under the provisions of these Chapters, then the grantee, master permittee, or lessee shall, at the election of the City Council, forfeit all rights conferred hereunder and the authorization, master permit, 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, master permittee, or lessee to comply with the provisions of these Chapters and any authorization, master permit, or lease granted hereunder, and to recover damages and costs incurred by the City by reason of the grantee, master permittee, 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 it’s 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; and

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

(Ord. 6033 §73, 2000; Ord. 5816 §6, 1998).

11.10.340 Incorporation by reference

The provisions of these Chapters shall be incorporated by reference in any authorization, master permit, or lease approved hereunder. The provisions of any proposal submitted and accepted by the City shall be incorporated by reference in the applicable authorization, master permit, or lease. However, in the event of any conflict between the proposal, these Chapters, and the authorization, franchise, or lease, the authorization, master permit, or lease shall be the prevailing document.

(Ord. 6033 §74, 2000; Ord. 5816 §6, 1998).

11.10.350 Notice of entry on private property

If directed by the City, at least twenty-four (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 master permittee. A door hanger may be used to comply with the notice and posting requirements of this Section. A grantee or master permittee 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 master permittee to unlawfully enter or construct improvements upon the property or premises of another.

(Ord. 6033 §75, 2000; Ord. 5816 §6, 1998).

11.10.360 Safety requirements

A grantee, master permittee, 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 rights-of-way or places of a permit, master permit, 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, master permittee, 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, master permits, or lessee, establish a reasonable time for a grantee, master permittee, 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, master permittee, or lessee.

(Ord. 6033 §76, 2000; Ord. 5816 §6, 1998).

11.10.380 Relationship with Washington Utilities and Transportation Commission proceedings

If grantee or master permittee shall file, pursuant to Chapter 80.28 RCW, with the Washington Utilities and Transportation Commission (or such other regulatory agency having jurisdiction) any tariff affecting the City’s rights under its grant or master permit or relating to charges for facility relocations, the provider shall give the City Manager written notice thereof within five (5) days of the date of such filing. If, during the term of this grant or master permit, grantee or master permittee shall file and for the Washington Utilities and Transportation Commission (or such other regulatory agency having jurisdiction) shall permit to become effective, a schedule or tariff which conflicts with or is inconsistent with any portion of this grant or master permit, the City may, within thirty (30) days of the effective date of such schedule or tariff, notify grantee in writing that the master permit is terminated, effective on receipt of the notice. Thereafter, the City and grantee or master permittee shall conduct negotiations concerning applicable terms and conditions of a new master permit, at reasonable times, in a reasonable manner, in good faith and with due regard to all pertinent facts and circumstances.

(Ord. 6033 §78, 2000; Ord. 5816 §6, 1998).

11.10.390 Police power authority

Nothing in this Ordinance or these Chapters shall be interpreted to limit the authority of the City to regulate the placement of Facilities through its local zoning or police power, if the regulations do not:

A. Prohibit the placement of all wireless or of all wire line facilities within the city or town;

B. Prohibit the placement of all wireless or of all wire line facilities within the city rights-of-way;

C. Violate Section 253 of the Telecommunications Act of 1996.

This Ordinance does not amend, limit, repeal, or otherwise modify the authority of the City to regulate cable television services pursuant to federal law.

(Ord. 6033 §79, 2000).