Chapter 12.90 TELECOMMUNICATIONS FRANCHISES

B. Establish clear and nondiscriminatory local guidelines, standards, and time frames which use federal guidelines for the exercise of local authority with respect to the regulation of right-of-way use.

C. Conserve the limited physical capacity of the public rights-of-way held in public trust by the city.

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

E. Ensure that the city’s current and ongoing costs of granting and regulating private accesses to and use of the public rights-of-way are fully paid by the persons seeking such access and causing such costs.

F. Ensure that all service providers maintaining facilities or providing services within the city comply with the ordinances, rules, and regulations of the city.

G. Ensure that the city can continue to fairly and responsibly protect the public health, safety, and welfare.

H. Enable the city to discharge its public trust consistent with rapidly evolving federal and state regulatory policies, industry competition, and technological development. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.020 Definitions.

For the purpose of this chapter, the following terms, phrases, words, and abbreviations shall have the meanings given herein unless otherwise expressly stated. Words not defined herein shall be given the meaning set forth in Title 47 of the United States Code. Words not otherwise defined shall have their common and ordinary meaning.

A. “Affiliate” means a person that (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with another person.

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

C. “City” means the city of Sumner, a municipal corporation of the state of Washington in its present incorporated form or in any later recognized, consolidated, enlarged or reincorporated form.

D. “Council” means the city council of the city of Sumner, Washington, acting in its official capacity.

E. “Director” means the public works director or his/her designee.

F. “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.

G. “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.

H. “Franchise” shall mean the initial authorization, or renewal thereof, approved by an ordinance of the city, which authorizes the grantee 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.

I. “Grantee” or “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.

J. “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.

K. “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.

L. “Personal wireless services” means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services as defined by federal law and regulations.

M. “Public way” or “right-of-way” means land acquired or dedicated for public roads and streets, but does not include:

1. State highways;

2. Land dedicated for roads, streets, and highways not opened and not improved for motor vehicle use by the public;

3. Structures including poles and conduits located within the right-of-way;

4. Federally granted trust lands or forest board trust lands;

5. Lands owned or managed by the State Parks and Recreation Commission; or

6. Federally granted railroad rights-of-way acquired under 43 USC § 912 and related provisions of federal law that are not open for vehicular use.

N. “Service provider” is defined consistently with RCW 35.99.010(6). “Service provider” shall include those infrastructure companies that provide telecommunications services or equipment to enable the deployment of personal wireless services.

O. “Small wireless” and “small wireless facility” shall have the same meaning as a “small wireless facility” as set forth in 47 CFR 1.6002.

P. “State” means the state of Washington.

Q. “Telecommunications facilities” means the plant, equipment and property including, but not limited to, cables, wires, conduits, ducts, pedestals, electronics, and other appurtenances used or to be used to transmit, receive, distribute, provide or offer wireline or wireless telecommunications service.

R. “Telecommunications service” means the transmission of information by wire, radio, optical cable, electromagnetic, or other similar means for hire, sale, or resale to the general public. For the purpose of this chapter, “information” means knowledge or intelligence represented by any form of writing, signs, signals, pictures, sounds, or any other symbols. For the purpose of this chapter, “telecommunications service” excludes the over-the-air transmission of broadcast television or broadcast radio signals.

S. “Utility pole” means a wooden pole designated and used primarily for the support of electrical wires, telephone wires or television cable.

T. “Wireline” means services provided using a physically tangible means of transmission, including without limitation wire or cable, and the apparatus used for such transmission.

U. “Wireless communication facility” means an unstaffed site containing structural improvements for the transmission and reception of low-power radio signals consisting of antennas, support structure, equipment shelter or cabinet, or related equipment. “Wireless communication facility” does not include small wireless facilities. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.030 Franchise required for use of right-of-way.

A. The city council as steward of the city’s right-of-way has the authority to authorize right-of-way use by utilities and other entities seeking to serve the public if an agreement consistent with state and federal law and the best interests of the city and its citizens can be reached.

B. A franchise shall be required of any telecommunications provider who desires to make use of telecommunications facilities which occupy rights-of-way and to provide telecommunications services to any person or area in the city; provided, that to the extent there is a conflict between this chapter and any existing franchise agreement, this chapter shall have no effect on the existing franchise until:

1. The expiration of said franchise agreement; or

2. An amendment to an unexpired franchise agreement, unless both parties agree to defer full compliance to a specific date not later than the present expiration date. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.040 Registration and fees.

Except as otherwise provided herein, all service providers engaged in the business of the transmitting, supplying, or furnishing of telecommunications service originating, terminating, or existing with the city shall register with the city pursuant to chapter 5.04 SMC and pay all applicable fees as provided therein or as may be set by resolution. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.050 Franchise application.

For franchises authorizing telecommunications facilities, the following information is required:

A. The identity of the applicant;

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

C. To the extent locations for installations are known, preliminary engineering plans, specifications and a map showing where the telecommunications facilities are to be located within the city, all in sufficient detail to identify:

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

2. The location of overhead and underground public utility, telecommunication, cable, water, sewer drainage and other lines and equipment in the rights-of-way along the proposed route;

3. The specific trees, structures, improvements, facilities, lines and equipment and obstructions, if any, that the applicant proposes to temporarily or permanently remove or relocate;

D. If the applicant is proposing an underground installation within new ducts or conduits to be constructed within the rights-of-way and to the extent specific locations are known:

1. The location proposed for new ducts or conduits;

2. Evidence that there is sufficient capacity within the rights-of-way for the proposed telecommunications facilities;

E. A preliminary construction schedule and completion date if construction plans are known;

F. Evidence that the applicant is registered to participate in the one-number locator service, as described in chapter 19.122 RCW, if applicable;

G. If the applicant is proposing small wireless deployment, specify whether and where small wireless facilities are to be located on utility poles, including city-owned light standards included in the definition of “utility pole,” or will utilize replacement utility poles, new poles, towers, and/or other structures;

H. An application fee deposit which shall be set by the city council to recover city costs in accordance with applicable federal and state law; and

I. Such other information as the director shall deem appropriate. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.060 Determination by the city.

Within the time periods established by state and/or federal law, as applicable, after receiving a complete application hereunder, the city council shall make a decision on the franchise application. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.070 Franchise agreement.

No franchise shall be granted hereunder unless the applicant and the city have executed a written agreement setting forth the particular terms and provisions under which the franchise to occupy and use rights-of-way will be granted. All franchises granted pursuant to this chapter shall contain substantially similar terms and conditions. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.080 Nonexclusive grant.

No franchise granted hereunder shall confer any exclusive right, privilege, or franchise to occupy or use the rights-of-way for delivery of telecommunications services or any other purposes. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.090 Rights granted.

A. No franchise granted hereunder shall convey any right, title, or interest in the rights-of-way, but shall be deemed a franchise only to use and occupy the rights-of-way for the limited purposes and term stated in the grant.

B. No franchise granted hereunder shall authorize or excuse a grantee from securing such further easements, leases, permits or other approvals as may be required to lawfully occupy and use the rights-of-way. Grantee shall obtain the written approval of the facility or structure owner, including the city, if the grantee does not own it, prior to attaching to or otherwise using a facility or structure in the right-of-way.

C. No franchise granted hereunder shall be construed as any warranty of title. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.100 Term of grant.

Unless otherwise specified in a franchise, a franchise granted hereunder shall be valid for a term of not more than 10 years. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.110 Franchise territory.

A franchise granted hereunder shall be issued for all of the rights-of-way within the city, unless otherwise agreed to by the city and the grantee. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.120 Location of facilities.

Unless otherwise specified in a franchise, all facilities shall be constructed, installed, and located in accordance with the following terms and conditions:

A. Telecommunications facilities shall be installed within an existing underground duct or conduit whenever excess capacity exists within such utility facility, unless such location is not feasible due to the technology employed in the facility.

B. A grantee with written authorization to install overhead facilities shall install its telecommunications facilities on pole attachments to existing or replacement utility poles only when surplus space is available.

C. Whenever all existing telephone facilities, cable facilities, or telecommunications facilities are located underground within rights-of-way, a grantee with written authorization to occupy the same rights-of-way must also locate its telecommunications facilities underground to the extent technologically feasible.

D. Whenever any new or existing telephone facilities, electric utilities, cable facilities, or telecommunications facilities are located or relocated underground within rights-of-way, a grantee shall concurrently relocate its facilities underground if technologically feasible.

E. If requested, a grantee shall 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 grantee consistent with RCW 80.36.150. The contract rates to be charged should recover the incremental costs of the grantee. If the city makes the additional duct or conduit and related access structures available to any other entity for the purposes 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 grantee. The grantee shall state both contract rates in the contract. The city shall inform the grantee 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 paid by the city.

2. Except as otherwise agreed by the grantee 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 to provide telecommunications or cable television service for hire, sale, or resale to the general public.

3. The city shall not require that the additional duct or conduit space be connected to the access structures and vaults of the grantee.

4. The value of the additional duct or conduit requested by the city shall not be considered a public works construction contract. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.130 Nondiscrimination.

A grantee 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 the grantee’s services; provided, however, that nothing in this chapter shall prohibit a grantee from making any reasonable classifications among differently situated customers. This provision shall not apply to neutral host infrastructure services who solely provided infrastructure to personal wireless services carriers. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.140 Amendment of franchise agreement.

A. A new franchise application and grant shall be required of any grantee that desires to extend its term or franchise territory or to locate its telecommunications facilities in rights-of-way which are not included in a franchise previously granted hereunder.

B. A new franchise application and grant shall be required of any grantee that desires to add different infrastructure or services than that which is allowed pursuant to the then-current franchise. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.150 Renewal applications.

A grantee desiring to renew its franchise hereunder shall, not less than 180 days before expiration of the current franchise, file an application with the city for renewal of its franchise which shall include the following information:

A. The applicable information required pursuant to the franchise;

B. Any other information required by the city. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.160 Renewal determinations.

The city council shall grant or deny a renewal application within the time periods established by state or federal law, as applicable. As part of any franchise renewal determination the city council shall consider grantee’s compliance with the requirements of this chapter and the franchise agreement. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.170 Obligation to cure as a condition of renewal.

No franchise shall be renewed until any ongoing violations or defaults in the grantee’s obligations under the franchise, or the requirements of this chapter, and all applicable laws, statutes, codes, ordinances, rules and regulations have been cured, or a plan detailing the corrective action to be taken by the grantee has been approved by the city. (Ord. 2757 § 1 (Exh. A), 2020)

Article II. Conditions of Telecommunications Franchise Grant

12.90.180 General duties.

All grantees, before commencing any construction in the rights-of-way, shall comply with all requirements of this article. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.190 Interference with the rights-of-way.

No grantee may locate or maintain its facilities so as to unreasonably interfere with the use of the rights-of-way by the city, by the general public or other persons, or other persons authorized to use or be present in or upon the rights-of-way. All such facilities shall be moved by and at the expense of the grantee, temporarily or permanently, as determined by the city. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.200 Damage to property.

No grantee or 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 rights-of-way, including specifically city property, real or personal, or rights-of-way, or other property located in, on or adjacent thereto except in accordance with this chapter. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.210 Notice of work.

Unless otherwise provided in a franchise agreement, no grantee, or any person acting on the grantee’s behalf, shall commence any nonemergency work in or about rights-of-way without a permit issued by the city. Any private property owner whose property will be affected by a grantee’s work shall be afforded 10 working days’ advance written notice of such work. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.220 Repair and emergency work.

In the event of an emergency or an emergency repair necessary to protect the public, restore service or mitigate further damage to the system, a grantee may commence such repair and emergency response work as required under the circumstances; provided, the grantee shall notify the director as promptly as possible before such repair or emergency work or as soon thereafter as possible if advance notice is not practicable. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.230 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. 2757 § 1 (Exh. A), 2020)

12.90.240 Relocation or removal of facilities.

A. The city may require grantee to protect, support, temporarily disconnect, relocate, and remove its facilities within the right-of-way when reasonably necessary for construction, alteration, repair, or improvement of the right-of-way for purposes of and for public welfare, health, or safety. These city projects may include but are not limited to improving the rights-of-way for traffic conditions, dedications of new rights-of-way and the establishment and improvement thereof, widening and improvement of existing rights-of-way, street vacations, freeway construction, change or establishment of street grade, or the construction of any public improvement or structure by any governmental agency acting in a governmental capacity or as otherwise necessary for the operations of the city or other governmental entity, regardless of the type of entity (public or private) performing the project.

B. The city shall notify the grantee as soon as practicable of the need to relocate pursuant to subsection A of this section and shall specify the date by which the relocation shall be completed. The city shall consult with the grantee on the construction schedule. The grantee shall complete the relocation by the date specified by the city, unless a later date is set for completion pursuant to RCW 35.99.060(2) or by mutual agreement of the city and the grantee.

C. Except as otherwise provided by law, the costs and expenses associated with relocations or disconnections ordered pursuant to subsection A of this section shall be borne by grantee, provided, however, grantee shall not be limited in its ability to seek reimbursement for relocation costs when permitted by RCW 35.99.060.

D. The city may require the relocation of grantee’s facilities at grantee’s expense in the event of an unforeseen emergency that creates an immediate threat to the public safety, health or welfare. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.250 Failure to relocate.

If a grantee is required to relocate, change, or alter the facilities constructed, operated and/or maintained hereunder and fails to do so, the city may cause such to occur at grantee’s expense. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.260 Emergency removal or relocation of facilities.

The city retains the right and privilege to cut or move any facilities located within the rights-of-way as the city may determine to be necessary, appropriate, or useful in response to any public health or safety emergency. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.270 Damage to grantee’s facilities.

Unless directly and proximately caused by the gross negligence or malicious acts of the city, the city shall not be liable for any damage to or loss of any facility within rights-of-way as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling, or work of any kind in the rights-of-way by or on behalf of the city. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.280 Removal of unauthorized facilities.

Within 30 days following written notice from the director, any grantee, service provider, or other person that owns, controls, or maintains any unauthorized system, facility, or related appurtenances within the rights-of-way shall, at its own expense, remove such facilities or appurtenances from the rights-of-way. If such grantee fails to remove such facilities or appurtenances, the city may cause the removal and charge the grantee for the costs incurred. A facility or system is unauthorized and subject to removal in the following circumstances:

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

B. Upon abandonment of a facility within the rights-of-way;

C. If the system or facility was constructed or installed without the prior grant of a franchise;

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

E. If the system or facility was constructed or installed at a location not permitted by the grantee’s franchise;

F. Any such other reasonable circumstances deemed necessary by the city. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.290 Restoration of rights-of-way or other property.

Restoration shall comply with the following requirements:

A. When a grantee, or any person acting on its behalf, does any work in or affecting any rights-of-way or any other property it shall, at its own expense, promptly remove any obstructions therefrom and restore such ways or property to the same condition which existed before the work was undertaken.

B. If weather or other conditions do not permit the complete restoration required hereunder, the grantee shall temporarily restore the affected rights-of-way or other property. Such temporary restoration shall be at the grantee’s sole expense and the grantee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration.

C. A grantee or other person acting on 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 rights-of-way or any other property.

D. All restoration shall comply with the city’s Construction and Design Standards. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.300 Facilities maps.

Each grantee shall provide the city with an accurate as-built map or maps certifying the location of all telecommunications facilities within the city and particularly within rights-of-way. Each grantee shall provide updated as-built maps annually. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.310 Duty to provide information.

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

A. The grantee has complied with all requirements of this chapter;

B. All fees due the city in connection with the 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 with respect to its facilities within rights-of-way shall be made available for inspection by the city. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.320 Grantee insurance.

As consideration for the issuance of a franchise, the franchise shall include an insurance provision substantially conforming to the following. The grantee shall obtain insurance of the types and coverage described below:

A. Commercial general liability insurance shall be at least as broad as ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, stop-gap liability, independent contractors, products-completed operations, personal injury and advertising injury, and liability assumed under an insured contract. There shall be no exclusion for liability arising from explosion, collapse or underground property damage. The city shall be named as an additional insured under the grantee’s commercial general liability insurance policy with respect to this franchise agreement using ISO endorsement CG 20 12 05 09 if the franchise agreement is considered a master permit, or CG 20 26 07 04 if it is not, or substitute endorsement providing at least as broad coverage.

B. Automobile liability insurance covering all owned, nonowned, hired and leased vehicles. Coverage shall be at least as broad as Insurance Services Office (ISO) form CA 00 01.

C. Workers’ compensation coverage as required by the industrial insurance laws of the state of Washington.

D. Excess or umbrella liability insurance shall be excess over and at least as broad in coverage as the grantee’s commercial general liability and automobile liability insurance. The city shall be named as an additional insured on the grantee’s excess or umbrella liability insurance policy.

E. The grantee shall maintain the following insurance limits:

1. Commercial general liability insurance shall be written with limits no less than $5,000,000 each occurrence, $5,000,000 general aggregate.

2. Automobile liability insurance with a minimum combined single limit for bodily injury and property damage of $5,000,000 per accident.

3. Excess or umbrella liability insurance shall be written with limits of not less than $5,000,000 per occurrence and annual aggregate. The excess or umbrella liability requirement and limits may be satisfied instead through grantee’s commercial general liability and automobile liability insurance, or any combination thereof that achieves the overall required limits.

F. Other Insurance Provisions. Grantee’s commercial general liability, automobile liability, and excess or umbrella liability policy or policies are to contain, or be endorsed to contain, that they shall be primary insurance as respects the city. Any insurance, self-insurance, or self-insured pool coverage maintained by the city shall be excess of the grantee’s insurance and shall not contribute with it.

G. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A: VII.

H. Verification of Coverage. The grantee shall furnish the city with original certificates and a copy of the amendatory endorsements annually, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the agreement. Upon request by the city, the grantee shall furnish certified copies of all required insurance policies, including endorsements, required in this agreement and evidence of all subcontractors’ coverage.

I. Subcontractors. The grantee shall cause each and every subcontractor to provide insurance coverage that complies with all applicable requirements of the grantee-provided insurance as set forth herein, except the grantee shall have sole responsibility for determining the limits of coverage required to be obtained by subcontractors. The grantee shall ensure that the city is an additional insured on each and every subcontractor’s commercial general liability insurance policy using an endorsement as least as broad as ISO CG 20 26.

J. Notice of Cancellation. Grantee shall provide the city with written notice of any policy cancellation within two business days of their receipt of such notice.

K. Failure to Maintain Insurance. Failure on the part of the grantee to maintain the insurance as required shall constitute a material breach of agreement, upon which the city may, after giving five business days’ notice to the grantee to correct the breach, terminate the agreement or, at its discretion, procure or renew such insurance and pay any and all premiums in connection therewith, with any sums so expended to be repaid to the city on demand.

L. City Full Availability of Grantee Limits. If the grantee maintains higher insurance limits than the minimums shown above, the city shall be insured for the full available limits of commercial general and excess or umbrella liability maintained by the grantee, irrespective of whether such limits maintained by the grantee are greater than those required by this agreement or whether any certificate of insurance furnished to the city evidences limits of liability lower than those maintained by the grantee.

M. Grantee – Self-Insurance. If the grantee is self-insured or becomes self-insured during the term of the franchise agreement, grantee or its affiliated parent entity shall comply with the following: (1) provide the city, upon request, a copy of grantee’s or its parent company’s most recent audited financial statements, if such financial statements are not otherwise publicly available; (2) grantee or its parent company is responsible for all payments within the self-insured retention; and (3) grantee assumes all defense and indemnity obligations as outlined in the indemnification section of this agreement. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.330 General indemnification.

As consideration for the issuance of a franchise, the franchise shall include an indemnity clause substantially conforming to the following:

A. Grantee shall defend, indemnify, and hold harmless the public entity, its officers, officials, employees and volunteers from and against any and all claims, suits, actions, or liabilities for injury or death of any person, or for loss or damage to property, which arises out of grantee’s acts, errors or omissions, or from the conduct of grantee’s business, or from any activity, work or thing done, permitted, or suffered by grantee arising from or in connection with this franchise agreement, except only such injury or damage as shall have been occasioned by the sole negligence of the public entity.

B. However, should a court of competent jurisdiction determine that this agreement is subject to RCW 4.24.115 then, 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 and the public entity, its officers, officials, employees, and volunteers, the grantee’s liability hereunder shall be only to the extent of the grantee’s negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes the grantee’s waiver of immunity under RCW Title 51, Industrial Insurance, 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 agreement.

C. Inspection or acceptance by the city of any work performed by grantee at the time of completion of construction shall not be grounds for avoidance of any of these covenants of indemnification. Provided, that grantee has been given prompt written notice by the city of any such claim, said indemnification obligations shall also 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. The city has the right to defend or participate in the defense of any such claim and has the right to approve any settlement or other compromise of any such claim.

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

E. The obligations of grantee under the indemnification provisions of this section shall apply regardless of whether liability for damages arising out of bodily injury to persons or damages to property were caused or contributed to by the concurrent negligence of the city, its officers, agents, employees or contractors. The provisions of this section, however, are not to be construed to require the grantee to hold harmless, defend, or indemnify the city as to any claim, demand, suit, or action which arises out of the sole negligence of the city. In the event that a court of competent jurisdiction determines that a franchise is subject to the provisions of RCW 4.24.115, the parties agree that the indemnity provisions hereunder shall be deemed amended to provide that the grantee’s obligation to indemnify the city hereunder shall extend only to the extent of grantee’s negligence.

F. Notwithstanding any other provisions of this section, grantee assumes the risk of damage to its telecommunications facilities located in the rights-of-way and upon city property from activities conducted by the city, its officers, agents, employees and contractors, 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. Grantee releases and waives any and all such claims against the city, its officers, agents, employees and contractors. In no event shall the city be responsible for indirect, special, consequential, or punitive damages or losses, including but not limited to lost income or business interruption, whether or not a party has been advised of the possibility of such damage and notwithstanding the theory of liability in which an action may be brought. 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 grantee’s telecommunications facilities as the result of any interruption of service due to damage or destruction of grantee’s telecommunications facilities caused by or arising out of activities conducted by the city, its officers, agents, employees or contractors.

G. These indemnification requirements shall survive the expiration, revocation, or termination of a franchise issued thereunder. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.340 Performance and construction surety.

Before a franchise granted pursuant to this chapter is effective, and as necessary thereafter, the grantee shall provide and deposit such monies, bonds, letters of credit or other instruments in form and substance acceptable to the city as may be required by the city of Sumner, or by an applicable franchise or other applicable code, ordinance, resolution, or rules and regulations of the city. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.350 Security fund.

A. Prior to issuance of a franchise pursuant to this chapter, each grantee shall establish a permanent security fund with the city by depositing the amount of $50,000, or such other amount as deemed necessary by the director, with the city in cash, bond, or an unconditional letter of credit, based upon both operating history in rights-of-way, other ways, and city property and the cost of removal of the grantee’s facilities, which fund shall be maintained at the sole expense of the grantee so long as any of the grantee’s telecommunications facilities are located within the rights-of-way.

B. The fund shall serve as security for the full and complete performance of this chapter and the franchise including any costs, expenses, damages, or loss the city pays or incurs, including civil penalties, because of any failure attributable to the grantee to comply with the codes, ordinances, rules, regulations, or permits of the city applicable to the construction, maintenance, repair, or removal of telecommunications facilities in the rights-of-way or upon city property.

C. The city and the grantee shall agree upon and specify in the franchise certain amounts which represent both parties’ best estimate of the damages for failure to comply with the franchise issued thereunder. The liquidated damages provided in the franchise shall be the exclusive monetary remedy for the named breaches. Neither the right to liquidated damages nor the payment of liquidated damages shall bar or otherwise limit the right of the city in a proper case to:

1. Obtain judicial enforcement of a grantee’s obligations by means of specific performance, injunctive relief, mandamus, or other remedies at law or in equity;

2. Consider any substantial violation or breach as grounds for forfeiture and termination of a franchise issued thereunder; and

3. Consider any violation or breach as grounds for nonrenewal or nonextension of a franchise or issuance of a new franchise.

D. Before any sums are withdrawn from the security fund, the city shall give written notice to the grantee:

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’s act or default regarding the installation, maintenance, repair, or removal of telecommunications facilities in the rights-of-way, other ways, or upon city property or in connection with restoration of the foregoing;

2. Providing a reasonable opportunity for grantee to first remedy the existing or ongoing default or failure regarding the installation, maintenance, repair, or removal of telecommunications facilities in the rights-of-way or in connection with the restoration of the foregoing, if applicable;

3. Providing a reasonable opportunity for grantee 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 will be given an opportunity to review the act, default or failure described in the notice with the city or its designee.

E. Grantees 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.

F. Upon termination or expiration of a franchise all funds remaining in the security fund shall be returned to the grantee within 30 days after removal of grantee’s telecommunications facilities within the rights-of-way. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.360 Coordination of construction activities.

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

B. Each grantee shall meet with the city, other grantees and users of the rights-of-way annually or as determined by the city to schedule and coordinate construction in rights-of-way.

C. All construction locations, activities, and schedules shall be coordinated, as ordered by the director, to minimize public inconvenience, disruption, or damage. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.370 Assignments or transfers of grant of franchise.

A. A franchise may not be directly or indirectly assigned, transferred, or disposed of by sale, lease, merger, consolidation, or other act of grantee, by operation of law or otherwise, unless prompt written notice is provided to the city within 60 days of the assignment. In the case of transfer or assignment as security by mortgage or other security instrument in whole or in part to secure indebtedness, such notice shall not be required unless and until the secured party elects to realize upon the collateral. For purposes of this section, no assignment or transfer of a franchise shall be deemed to occur based on the public trading of grantee’s stock; provided, however, any tender offer, merger, or similar transaction resulting in a change of control shall be subject to the provisions of a franchise.

B. Any transactions which singularly or collectively result in a change of 50 percent or more of the ownership or working control (for example, management of grantee or its facilities) of the grantee or of the ownership or working control of the grantee’s facilities within the city, or of the ownership or working control having ownership or working control of the grantee or of the grantee’s facilities within the city, or of control of the capacity or bandwidth of the grantee’s facilities within the city, shall be considered an assignment or transfer requiring notice to the city pursuant to a franchise. Such transactions between affiliated entities are not exempt from notice requirements. A grantee shall notify the city of any proposed change in, or transfer of, or acquisition by any other party of control of a grantee within 60 days following the closing of the transaction.

C. The parties acknowledge that equipment deployed by grantee pursuant to a franchise may be owned and/or remotely operated by third-party wireless carrier customer (“carriers”) and installed and maintained by grantee pursuant to existing agreements between grantee and a carrier. Such equipment shall be treated as grantee’s equipment for all purposes under such franchise. A carrier’s ownership and/or operation of such equipment shall not constitute an assignment under the franchise; provided, that grantee shall not actually or purport to sell, assign, encumber, pledge, or otherwise transfer any part of its interest in the franchise area to a carrier, or otherwise permit any portion of the franchise area to be occupied by anyone other than itself. Grantee shall remain solely responsible and liable for the performance of all obligations under the franchise with respect to any equipment owned and/or remotely operated by a carrier. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.380 Revocation or termination of grant of franchise.

A. A franchise granted by the city to use or occupy rights-of-way may be revoked for any one or more of the following reasons:

1. Construction or operation at an unauthorized location;

2. Unauthorized transfer of control of the grantee;

3. Unauthorized assignment of a franchise;

4. Unauthorized sale, assignment, or transfer of the grantee’s franchise assets or an interest therein;

5. Misrepresentation or lack of candor by or on behalf of a grantee in any application to the city;

6. Abandonment of facilities in the rights-of-way;

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

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

9. Insolvency or bankruptcy of the grantee;

10. Violation of a material provision of this chapter;

11. Violation of a material term of a franchise. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.390 Notice and duty to cure.

A. In the event that the director believes that grounds exist for revocation of a franchise, the grantee shall be given written notice of the apparent violation or noncompliance, be provided a short and concise statement of the nature and general facts of the violation or noncompliance, and be given a reasonable period of time not exceeding 30 days to furnish evidence that:

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

2. Rebuts the alleged violation or noncompliance.

3. It would be in the public interest to impose some monetary damages, penalty, or sanction less than revocation. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.400 Revocation hearing.

In the event that a grantee fails to provide evidence reasonably satisfactory, as provided hereunder, to the director, the director shall refer the apparent violation or noncompliance to the city council. The city council shall provide the grantee with notice and a reasonable opportunity to be heard concerning the matter. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.410 Standards for revocation or lesser sanctions.

A. If persuaded that the grantee has violated or failed to comply with a material provision of this chapter or of a franchise or applicable codes, ordinances, resolutions, or statutes, the city council shall determine whether to revoke the franchise, and issue a written decision relating thereto, or to establish some monetary damages, penalty, lesser sanction and cure, considering the nature, circumstances, extent and gravity of the violation as reflected by one or more of the following factors:

1. Whether the misconduct was egregious;

2. Whether substantial harm resulted;

3. Whether the violation was intentional;

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

5. Whether there is a history of overall compliance;

6. Whether the violation was voluntarily disclosed, admitted or cured. (Ord. 2757 § 1 (Exh. A), 2020)

Article III. Fees for Telecommunications Franchises

12.90.420 Application and review fee.

Any applicant for a franchise pursuant to this chapter shall pay an application and review fee or fee deposit in an amount as determined by the city council and adopted by resolution. This application and review fee covers the city’s actual costs associated with initial review of the application; provided, however, that the applicant shall be required to pay all necessary permit fees. This application and review fee shall be deposited with the city as part of the application filed pursuant to this chapter. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.430 Other city costs.

All grantees shall, within 30 days after written demand therefor, reimburse the city for all direct and actual costs and expenses incurred by the city in connection with any grant, modification, amendment, renewal, or transfer of any franchise. (Ord. 2757 § 1 (Exh. A), 2020)

12.90.440 Permit and fee.

Grantee must obtain all valid permits for the installation and operation of facilities within the right-of-way as allowed by a franchise granted pursuant to this chapter. Prior to issuance of any required permit the applicant shall pay a permit fee in an amount as determined by the city council and adopted by resolution, or the actual costs incurred by the city in reviewing such permit application. (Ord. 2757 § 1 (Exh. A), 2020)