Chapter 28.08 CONDITIONS OF LICENSES, MASTER PERMITS AND LEASES

The purpose of this chapter is to set forth certain terms and conditions which are common to all right-of-way licenses, master permits and facilities leases. Except as otherwise provided in this title or in such a right-of-way license, master permit or facilities lease, the provisions of this chapter apply to all such right-of-way licenses, master permits and facilities leases approved or granted by the council. [Ord. 11-98; Ord. 30-01].

28.08.020 Rules and regulations by the city.

A. All grantees are required to provide copies of any applicable certificates that authorize the grantee to provide telecommunications services as may be required by federal or state law.

B. All grantees are required to cooperate with the city and with each other.

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

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

C. All grantees, before commencing any construction in the public ways, shall comply with all regulations of Chapter 19.122 RCW (One Call Locator Service).

D. The city reserves the right to require all grantees to provide written confirmation:

1. Sufficient for customary land survey and land title insurance purposes concerning the location of their facilities in rights-of-way; and

2. Disclaiming any interest in rights-of-way where the grantees have no franchise to construct or operate their facilities.

In addition to the inherent powers of the city to regulate and control any license, master permit or lease issues, and those powers expressly reserved by the city, or agreed to and provided for in any license, 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.

Except as provided in this title, the foregoing does not allow for amendment by the city of material terms of any license, master permit or lease issues without the consent of the grantee. [Ord. 11-98; Ord. 19-99; Ord. 30-01].

28.08.030 Acceptance.

No license, master permit or lease granted pursuant to the provisions of this title shall become effective unless and until the ordinance granting the same has become effective. Within 30 days after the effective date of the ordinance granting a license, master permit or lease, or within such extended period of time as the council in its discretion may authorize, a grantee shall file with the director its written acceptance of the license, master permit or lease in a form satisfactory to the city attorney, together with the bonds and insurance policies required by this chapter. [Ord. 11-98; Ord. 19-99; Ord. 30-01].

28.08.040 Safety requirements.

A grantee, in accordance with applicable national, state and local safety requirements shall, at all times, employ ordinary care and shall install, 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. All structures and all lines, equipment and connections in, over, under and upon the streets, sidewalks, alleys and public ways or places of a license, 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 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, establish a reasonable time for a grantee 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. [Ord. 11-98; Ord. 30-01].

28.08.050 Insurance.

Unless otherwise provided in a license, master permit or lease agreement, each grantee, as a condition of the license, master permit or lease, shall secure and maintain the following liability insurance policies insuring both the grantee and the city, and its elected and appointed officers, officials, agents and employees as co-insureds. Grantees qualified to do business with the state of Washington, as self-insureds, shall also meet the requirements listed below:

A. Comprehensive general liability insurance with limits not less than:

1. Five million dollars for bodily injury or death to each person;

2. Five million dollars for property damage resulting from any one accident; and

3. Five million dollars for all other types of liability.

B. Automobile liability for owned, nonowned 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 throughout the term of the license, master permit or lease, and such other period of time during which the grantee is operating without a license, master permit or lease hereunder, or is engaged in the removal of its telecommunications facilities. Each such insurance policy shall contain the following endorsement:

It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew be stated until ninety (90) 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.

F. Within 60 days after receipt by the city of said notice, and in no event later than 30 days prior to said cancellation or intent not to renew, the grantee shall obtain and furnish to the city replacement insurance policies meeting the requirements of this section. [Ord. 11-98; Ord. 30-01].

28.08.060 General indemnification.

No license, master permit or lease shall be deemed to be granted under this title unless it includes an indemnity clause substantially conforming to the following:

The grantee hereby releases, covenants not to bring suit and agrees to indemnify, defend and hold harmless the City, its officers, employees, agents and representatives from any and all claims, costs, judgments, awards or liability to any person, including claims by the grantee’s own employees to which the grantee 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, its agents, servants, officers or employees in performing under this license, master permit or lease are the proximate cause.

The grantee further releases, covenants not to bring suit and agrees to indemnify, defend and hold harmless the City, its officers and employees from any and all claims, costs, judgments, awards or liability to any person including claims by the grantee’s own employees, including those claims to which the grantee 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’s exercise of the rights granted herein, or by virtue of the City’s permitting the grantee’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, 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 license, master permit or lease or pursuant to any other permit or approval issued in connection with this license, 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, 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 license, master permit or lease.

Inspection or acceptance by the city of any work performed by the grantee 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 the grantee 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, then the grantee shall pay all of the city’s costs for defense of the action, including all reasonable expert witness fees and reasonable attorney’s fees and the reasonable costs of the city of recovering under this indemnification clause.

The provisions of this section shall survive the expiration or termination of this license, master permit or lease agreement. Notwithstanding any other provisions of this section, the grantee assumes the risk of damage to its facilities located in the city’s public ways, rights-of-way and easements from activities conducted by the city, its officers, agents, employees and contractors. The grantee releases and waives any and all claims against the city, its officers, agents, employees or contractors for damage to or destruction of the grantee’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 and easements subject to this license, master permit or lease, except to the extent any such damage or destruction is caused by or arises from the negligence or willful conduct on the part of the city, its officers, agents, employees or contractors.

The grantee 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’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 caused by or arising from the negligence or willful conduct on the part of the city, its officers, agents, employees or contractors, to the extent allowed by law. [Ord. 11-98; Ord. 19-99; Ord. 30-01].

28.08.070 Cash deposit/performance bond.

Every grantee shall be required to provide a cash deposit or performance bond to ensure the faithful performance of its responsibilities in accordance with the requirements of RMC Title 12. [Ord. 11-98; Ord. 19-99; Ord. 30-01].

28.08.080 Tree trimming.

Upon 10 days’ written notice provided to the director, except in an emergency of imminent danger to persons or property, the grantee may trim trees or other vegetation owned by the city or encroaching upon the public right-of-way to prevent their branches or leaves from touching or otherwise interfering with its wires. All trimming or pruning shall be at the sole cost of the grantee.

A. The grantee may contract for said trimming or pruning services with the city or any person approved by the city prior to the rendering of said services.

B. The grantee shall maintain its system in a safe, suitable condition and in good order and repair. If the city finds that clearance requirements of trees and vegetation established pursuant to the National Electric Safety Code are violated, the city shall establish a reasonable time for the grantee to perform necessary cutting and trimming. If the required work is not done within the established time frame, the city may perform the work itself or have it done and collect all reasonable costs thereof from the grantee. [Ord. 11-98; Ord. 19-99; Ord. 30-01].

28.08.090 Location of facilities.

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

A. Wherever grantee has existing underground duct or conduit with capacity available, grantee shall install its telecommunications facilities within such underground duct or conduit.

B. A grantee with permission to install overhead facilities shall install its telecommunications facilities on pole attachments to existing utility poles only and then only if surplus space is available.

C. Whenever any existing electric utilities or telecommunications facilities are located underground within a public way of the city, a grantee with permission to occupy the same public way must also locate its telecommunications facilities underground.

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

The director may waive the requirements for location of facilities under this section if the grantee demonstrates to the director’s satisfaction that such location requirements are commercially unreasonable or if provisions of the grantee’s tariff filed with the Washington Utilities and Transportation Commission otherwise control. [Ord. 11-98; Ord. 30-01].

28.08.100 Interference with city property and the public ways.

No grantee may locate or maintain its telecommunications facilities to unreasonably interfere with the use of city property or the public ways by the city, by the general public or by other persons authorized to use or be present in or upon the city property and public ways. Unreasonable interference will include disruption to vehicular or pedestrian traffic on city property or the public ways, interference with other city utilities, and such other activities that will present a hazard to public health, safety or welfare, when alternative methods of construction will result in less disruption. All such facilities shall be moved by the grantee, at the grantee’s cost, temporarily or permanently, as determined by the director unless provisions of the grantee’s tariff filed with the Washington Utilities and Transportation Commission otherwise control. If any grantee’s tariff or if a change in the state law alters the responsibility for payment of relocation costs, then all grantees shall comply therewith. [Ord. 11-98].

28.08.110 Damage to property.

No grantee nor any person acting on a grantee’s behalf 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. [Ord. 11-98].

28.08.120 Damage to facilities.

Unless directly and proximately caused by the willful, intentional, grossly negligent or malicious acts by the city, the city shall not be liable for any damage to or loss of any 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. [Ord. 11-98].

28.08.130 Maintenance of facilities.

Each grantee shall maintain its facilities in good and safe condition and in a manner that complies with all applicable federal, state and local requirements. [Ord. 11-98].

28.08.140 Abandonment of facilities.

A. If the grantee abandons use of its cable, ducts or other facilities authorized under a license, master permit or lease, then the facilities shall be removed from the public ways or city property to the satisfaction of the city grantee’s cost. In lieu of removal the city may permit the improvements to be abandoned in place in such a manner as the city may prescribe. Upon permanent abandonment, the grantee shall submit to the city a proposal and instruments for transferring ownership to the city.

B. Upon revocation or termination of a license, master permit or lease, the grantee shall to the satisfaction of the city and, without cost or expense to the city, promptly remove its facilities unless permitted by the city to be left in place in such manner as the city may prescribe. If the grantee determines to remove such facilities, or any portion thereof, then the grantee, at its sole expense, shall restore the rights-of-way where disturbed by such removal under the supervision and to the satisfaction of the city.

C. Any such facilities which are not removed within 120 days of either such date of termination or revocation or of the date the city issued a permit authorizing removal, whichever is later, automatically shall become the property of the city. The grantee shall notify the city to record facilities abandoned. [Ord. 11-98].

28.08.150 Emergency removal or relocation of facilities.

The city retains the right and privilege to cut or move any telecommunications facilities located within the public ways or city property, as the city may determine to be necessary, appropriate or useful in response to any public health or safety emergency with imminent substantial harm to life or property. The city shall not be liable to any service provider, nonservice 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. 11-98; Ord. 30-01].

28.08.160 Relocation or removal of facilities.

A. The city may require service providers or nonservice providers to relocate authorized facilities within the right-of-way when reasonably necessary for construction, alteration, repair, or improvement of the right-of-way for the purposes of public welfare, health, or safety. The city shall notify both service providers and nonservice providers as soon as practicable of the need for relocation and shall specify the date by which relocation shall be completed. In calculating the date the relocation must be completed, the city shall consult with the affected service providers and nonservice 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. Each service provider and nonservice provider shall complete the relocation by the date specified, unless the city, or a reviewing court, establishes a later date for completion, after a showing by the service provider or nonservice provider that the relocation cannot be completed by the date specified using best efforts in meeting safety and service requirements.

B. A service provider may not seek reimbursement for its relocation expenses from the city under subsection (A) of this section except as strictly provided for in RCW 35.99.060.

C. The city may require the relocation of facilities at the service provider’s or nonservice provider’s expense in the event of an unforeseen emergency that creates an immediate threat to the public safety, health, or welfare. [Ord. 30-01].

28.08.170 Removal of unauthorized facilities.

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

A. Upon expiration or termination of the grantee’s license, master permit or lease.

B. Upon abandonment of a facility within the public ways or city property. Any property of a grantee shall be deemed abandoned if left in place 90 days after expiration or termination of a license, master permit or lease.

C. If the system or facility was constructed or installed without prior grant of a license, master permit or lease, unless said system or facility was constructed or installed prior to the effective date of the ordinance codified in this chapter.

D. If the system or facility was constructed or installed without prior issuance of a required construction permit.

E. If the system or facility was constructed or installed at a location not permitted by the grantee’s license, master permit or lease.

Provided, however, that the city may, in its sole discretion, allow a grantee, or other such persons who may own, control or maintain telecommunications facilities within the public ways or city property 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’s facilities must be first approved by the 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 manager 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 a license, master permit or lease granted under this title or under any former city ordinance. [Ord. 11-98; Ord. 30-01].

28.08.180 Failure to remove or relocate.

If a grantee is required to remove, relocate, change or alter the telecommunications facilities constructed, operated and/or maintained hereunder and fails to do so, the city may cause such to occur and charge the grantee for the costs incurred. [Ord. 11-98].

28.08.190 Duty to provide information.

Within 30 days of a written request from the city, each grantee shall furnish the city with information sufficient to demonstrate:

A. That grantee has complied with all requirements of this title.

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

C. All books, records, maps and other documents maintained by the grantee for its facilities within the public ways shall be made available for inspection by the city at reasonable times and intervals.

Provided, that nothing in this section shall be construed to require a grantee to violate state or federal law regarding subscriber privacy, nor shall this section be construed to require a grantee to disclose proprietary or confidential information without adequate safeguards for its confidential or proprietary nature. [Ord. 11-98].

28.08.200 Facilities maps.

Upon request, to provide sufficient information for coordination of other construction, grantee shall provide the city with copies of its construction plans. If the construction plans do not conform with the city’s guidelines for communications facility installations, or where the grantee’s actual construction deviates materially from its submitted construction plans, as reasonably determined by the city, the grantee shall provide the city with additional maps, including as-built maps if available, showing the location and design attributes of its telecommunications facilities within the public rights-of-way. The city may use or disclose such information only as allowed by law. Information submitted by the grantee under this section shall not be subject to inspection or copying under Chapter 42.17 RCW except pursuant to the procedure specified in RCW 80.04.095, except as otherwise required by law. [Ord. 11-98; Ord. 19-99].

28.08.210 Assignments or transfers of grant.

Working control of a right-of-way license, master permit or lease may not, directly or indirectly, be transferred, assigned or disposed of by sale, lease, merger, consolidation or other act of the grantee, by operation of law or otherwise, without the prior written consent of the 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.

A. The grantee and the proposed assignee or transferee of the grant or system shall provide and certify the following information to the city not less than 45 days prior to the proposed date of transfer:

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

2. All information required of a license, master permit or lease applicant pursuant to Chapter 28.04 RMC with respect to the proposed transferee or assignee; and

3. All deposits or charges and application fees required pursuant to this title.

B. Unless otherwise provided in a license, master permit or lease, the grantee 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 a license, master permit or lease. No assignment or transfer shall be deemed approved until all such costs and expenses have been paid.

C. Any transfer or assignment of a license, master permit or lease without prior written approval of the city under this section or pursuant to a license, master permit or lease agreement shall be void and is cause for revocation of the grant. [Ord. 11-98; Ord. 30-01].

28.08.220 Transactions affecting control of grant.

Any transactions which singularly or collectively result in a change of working control of the grantee, or the working control of a telecommunications system, shall be considered an assignment or transfer requiring city approval pursuant to RMC 28.08.210. Transactions between affiliated entities are not exempt from city approval unless said affiliated entities are named in the initial application.

A grantee shall promptly notify the city prior to any proposed change in, transfer of, or acquisition by any other party of control of a grantee’s company. Every change, transfer, or acquisition of control of a grantee’s company shall cause a review of the proposed transfer. In the event the city adopts a resolution denying its consent and such change, transfer or acquisition of control has been effected, the city may cancel the license, master permit or lease. Approval shall not be required for mortgaging purposes or if said transfer is from a grantee to another person or entity controlling, controlled by, or under common control with a grantee. [Ord. 11-98; Ord. 30-01].

28.08.230 Revocation or termination of grant.

A license, master permit or lease granted by the city to use or occupy public ways or city property may be revoked for the following reasons:

A. Construction or operation in the public ways or city property without a license, master permit or lease grant of authorization.

B. Construction or operation at an unauthorized location.

C. Any interconnection with the telecommunications facilities of other telecommunications carriers, operators, and providers that are not properly licensed or permitted by the city is prohibited and such an unauthorized interconnection may be cause for the city to revoke or terminate the grantee’s right-of-way license or master permit or lease.

D. Unauthorized substantial transfer of control of grantee.

E. Unauthorized assignment of a license, franchise, or lease.

F. Unauthorized sale, assignment, or transfer of a grantee’s license, franchise, master permit or lease, assets, or a substantial interest therein.

G. Misrepresentation by or on behalf of a grantee in any application or written or oral statement upon which the city relies in making the decision to grant, review or amend any license, master permit or lease pursuant to this title.

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

I. Failure to relocate or remove facilities as required in this title.

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

K. Insolvency or bankruptcy of the grantee.

L. Violation of any material provision of this title.

M. Violation of the material terms of a license, master permit or lease agreement.

N. Violation of any state or federal law relating to use of public rights-of-way by service providers.

O. Violation of any applicable state or federal safety laws and standards.

P. Violation of any applicable city ordinances, construction codes, regulations or standards.

Q. Failure to cooperate with the city to ensure that facilities are installed, maintained, repaired and removed within the right-of-way in such a manner and at such points so as to not inconvenience the public use of the right-of-way or to adversely affect the public health, safety and welfare.

R. Failure to obtain a required construction permit before constructing, installing, maintaining, repairing or removing identified facilities. [Ord. 11-98; Ord. 30-01].

28.08.240 Notice and duty to cure.

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

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.

C. That it would be in the public interest to impose some penalty or sanction less than revocation. [Ord. 11-98; Ord. 30-01].

28.08.250 Hearing.

In the event that a grantee fails to provide evidence reasonably satisfactory to the director as provided in RMC 28.08.240, the director shall refer the apparent violation or noncompliance to the council for action to revoke in accordance with the provisions of RMC 28.08.260. The council shall provide the grantee with notice and a reasonable opportunity to be heard concerning the matter. [Ord. 11-98; Ord. 30-01].

28.08.260 Standards for revocation or lesser sanctions.

If the council determines that a grantee willfully violated or failed to comply with any of the provisions of this title or a license, franchise or lease granted under this title, or through willful misconduct or gross negligence failed to heed or comply with any notice given the grantee by the city under the provisions of this title, then the grantee shall, at the election of the council, forfeit all rights conferred hereunder and the license, master permit or lease may be revoked or annulled by the council. The 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 to comply with the provisions of this title and any license, master permit or lease granted hereunder, and to recover damages and costs incurred by the city by reason of the grantee’s failure to comply. The council shall utilize the following factors in analyzing the nature, circumstances, extent and gravity of the violation and in making its determination:

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.

F. Whether the violation was voluntarily disclosed, admitted or cured. [Ord. 11-98].

28.08.270 Incorporation by reference.

The provisions of this title shall be incorporated by reference in any license, 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 license, master permit or lease. In the event of any conflict between the proposal, this title, and the license, master permit or lease, the license, master permit or lease shall be the prevailing document. [Ord. 11-98; Ord. 30-01].