Chapter 5.45 TELECOMMUNICATIONS

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

C. Promote competition in telecommunications;

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

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

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

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

H. Assure that the city’s current and ongoing costs of granting and regulating private access to and use of the public ways are fully paid by the persons seeking such access and causing such costs;

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

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

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

L. Enable the city to discharge its public trust consistent with rapidly evolving federal and state regulatory policies, industry competition and technological development. (Ord. 2004-5 § 1, 2004).

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

A. This chapter shall have no effect on any existing franchise ordinance, franchise agreement, lease, permit, or other authorization to use or occupy a public way in the city until:

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

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

B. Nothing in this chapter shall be deemed to create an obligation upon any person for which the city is forbidden to require pursuant to federal, state, or other law. (Ord. 2004-5 § 1, 2004).

5.45.020 Definitions.

For the purpose of this chapter, and the interpretation and enforcement thereof, the following words and phrases shall have the following meanings, unless the context of the sentence in which they are used shall indicate otherwise:

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

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

“Cable facilities” means equipment and wiring used to transmit audio and video signals to subscribers;

“Cable operator” means a telecommunications carrier providing or offering to provide “cable service” within the city as that term is defined in the Cable Act;

“Cable service” for the purpose of this chapter shall have the same meaning provided by the Cable Act;

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

“City” means the city of Toppenish, Washington;

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

“Council” means the city council of the city of Toppenish, Washington, acting in its official capacity;

“Dwelling units” means residential living facilities as distinguished from temporary lodging facilities such as hospitals, hotel and motel rooms and dormitories, and includes single-family residential units and individual apartments, condominium units, mobile homes, extended care facilities and other multiple-family residential units;

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

“Excess capacity” means the volume or capacity in any existing or future duct, conduit, manhole, handhole, or other utility facility within the public way that is or will be available for use for additional telecommunications facilities;

“FCC” or “Federal Communications Commission” means the federal administrative agency, or lawful successor, authorized to regulate and oversee telecommunications carriers, services and providers on a national level;

“Fiber optics” means the technology of guiding and projecting light for use as a communications medium;

“Franchise” shall mean the initial authorization, or renewal thereof, approved and granted by the city to a carrier or operator of a telecommunication system pursuant to this chapter giving the carrier or operator the nonexclusive right to occupy the space on, in, under, over, across, or within public ways to provide a specified service within a franchise area. Any franchise shall be issued in the form of an ordinance of the city, and must be accepted by the franchisee to become effective in the time and manner specified in the franchise ordinance. Such franchise shall not include or be a substitute for:

1. Any other permit or authorization required for the privilege of transacting and carrying on a business within the city required by the ordinances and laws of the city;

2. Any permit, agreement or authorization required in connection with operations on or in public streets or property, including, by way of example and not limitation, construction and street cut permits;

3. Any permits or agreements for occupying any other property of the city or private entities to which access is not specifically granted by the franchise including, without limitation, permits and agreements for placing devices on or in poles, conduits, other structures or railroad easements, whether owned by the city or a private entity; or

4. The right to place devices in the right-of-way, such as pay phones, for end user use in terminating or originating transmissions.

By way of example, and without limiting the foregoing, this chapter shall not be read to diminish or in any other way affect the authority of the city to control and charge for the use of its real estate, fixtures, or personal property. Therefore, any person who desires to use such property must obtain additional approvals, franchises or agreements for that purpose, as may be required by the city;

“Franchisee” means the person to whom or which a franchise, as defined in this section, is granted by the council pursuant to this chapter and the lawful successor, transferee or assignee of said person subject to such conditions as may be defined in this chapter;

“Operator” means the person to whom a franchise is granted pursuant to the provisions of this chapter;

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

“Overhead facilities” means utility poles, utility facilities and telecommunications facilities located above the surface of the ground, including the underground supports and foundations for such facilities;

“Person” means and includes corporations, companies, associations, joint stock companies or associations, firms, partnerships, limited liability companies and individuals and includes their lessors, trustees and receivers;

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

“Proposal” means the response by a person to a request by the city regarding the provision of cable services; or an unsolicited plan submitted by a person seeking to provide cable services in the city;

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

“Public way” means and includes all public streets, utility easements, and other rights-of-way, now or hereafter owned by the city, but only to the extent of the city’s right, title, interest or authority to grant a license or franchise to occupy and use such public streets, utility easements, or other rights-of-way for telecommunications facilities;

“State” means the state of Washington;

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

“Telecommunications carrier” means and includes every person that directly or indirectly owns, controls, operates or manages telecommunications facilities within the city used or intended to be used for the purpose of offering telecommunications service;

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

“Telecommunications provider” means and includes every person who provides telecommunications services over telecommunications facilities without any ownership or management control of the facilities;

“Telecommunications service” means the providing or offering for rent, sale or lease, or in exchange for other value received, of the transmittal of voice, data, image, graphic and video programming information between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities, with or without benefit of any closed transmission medium;

“Telecommunications system” means a tangible facility that is used to provide one or more telecommunications services, any portion of which occupies public rights-of-way. The term “telecommunication system” by way of example, and not limitation, includes wires, equipment cabinets, guys, conduits, radio transmitting towers, poles, other supporting structures and associated and appurtenant facilities used to transmit telecommunications signals. The term “telecommunications system” includes all devices mounted on electric utility poles in the public rights-of-way through which telecommunications services are originated or terminated. A cable system is not a telecommunications system to the extent that it provides only cable service; an open video system is not a telecommunications system to the extent that it provides only video services;

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

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

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

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

“Utility facilities” means the plant, equipment and property, including but not limited to the poles, pipes, mains, conduits, ducts, cables, wires, plant and equipment located under, on or above the surface of the ground within the public ways and used or to be used for the purpose of providing utility or telecommunications services. (Ord. 2004-5 § 1, 2004).

5.45.030 Acceptance.

No telecommunications right-of-way use authorization, telecommunications franchise, or facilities lease granted pursuant to the provisions of this chapter shall become effective unless and until the ordinance or other city action granting the same has become effective. Within 30 days after the effective date of the ordinance or other city action granting the authorization, franchise, or lease, or within such extended period of time as the council in its discretion may authorize, the applicant shall file with the city manager or designee an unconditional written acceptance of the authorization, franchise, or lease, in a form satisfactory to the city, together with the performance and financial guarantees, insurance policies, and security fund required by this chapter. (Ord. 2004-5 § 1, 2004).

5.45.040 Police power.

In accepting any telecommunications right-of-way use authorization, telecommunications franchise, or facilities lease, the grantee, franchisee, or lessee acknowledges that its rights hereunder are subject to the legitimate rights of the police power of the city to adopt and enforce general ordinances necessary to protect the safety and welfare of the public, and it agrees to comply with all applicable general laws enacted by the city pursuant to such power. (Ord. 2004-5 § 1, 2004).

5.45.050 Rules and regulations by the city.

In addition to the inherent powers of the city to regulate and control any telecommunications right-of-way use authorization, telecommunications franchise, or facilities lease that it grants, the authority granted to the city by the Cable Act and the Telecommunications Act of 1996, and those powers expressly reserved by the city, or agreed to and provided for in any authorization, franchise, or lease, the right and power are hereby reserved by the city to promulgate such additional regulations as it may find necessary in the exercise of its lawful powers giving due regard to the rights of grantees, franchisees, and lessees. Except as provided in this chapter, the foregoing does not allow for amendment by the city of material terms of any authorization, franchise, or lease that it grants without the consent of the grantee, franchisee, or lessee. The city reserves the right to delegate its authority for authorization, franchise, and lease administration to a designated agent. (Ord. 2004-5 § 1, 2004).

5.45.060 Assignments or transfers of grant.

Ownership or control of a cable or telecommunications system for which any telecommunications right-of-way use authorization, telecommunications franchise, or facilities lease has been granted pursuant to this chapter may not, directly or indirectly, be transferred, assigned or disposed of by sale, lease, merger, consolidation or other act of the grantee, franchisee, or lessee, 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. No authorization, franchise, or lease grant shall be assigned or transferred in any manner within 12 months after the initial grant of the authorization, franchise or lease, unless otherwise provided in the authorization, franchise, or lease.

B. Absent extraordinary and unforeseeable circumstances, no system or integral part of a system shall be assigned or transferred before construction of the telecommunications system has been completed.

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

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

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

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

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

D. No transfer shall be approved unless the assignee or transferee has the legal, technical, financial, and other requisite qualifications to own, hold and operate the cable or telecommunications system pursuant to this chapter.

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

F. Any transfer or assignment of an authorization, franchise, lease, system, or integral part of a system without prior written approval of the city pursuant to this section or pursuant to an authorization, franchise, or lease agreement shall be void and is cause for revocation of the grant. (Ord. 2004-5 § 1, 2004).

5.45.070 Transactions affecting control of grant.

Any transactions which singularly or collectively result in a change of 50 percent or more of the ownership or working control of the grantee, franchisee, or lessee, of the ownership or working control of a cable or telecommunications system, of the ownership or working control of affiliated entities having ownership or working control of the grantee, franchisee, or lessee or of a telecommunications system, or of control of the capacity or bandwidth of the grantee’s, franchisee’s, or lessee’s cable or telecommunication system, facilities or substantial parts thereof shall be considered an assignment or transfer requiring city approval pursuant to TMC 5.45.060. Transactions between affiliated entities are not exempt from city approval. A grantee, franchisee, or lessee shall promptly notify the city prior to any proposed change in, or transfer of, or acquisition by any other party of control of a grantee’s, franchisee’s, or lessee’s company. Every change, transfer, or acquisition of control of a grantee’s, franchisee’s, or lessee’s company shall cause a review of the proposed transfer. In the event that the city adopts a resolution or other appropriate order denying its consent and such change, transfer or acquisition of control has been effected, the city may cancel the authorization, franchise, or lease. Approval shall not be required for mortgaging purposes or if such transfer is from a grantee, franchisee, or lessee to another person or entity controlling, controlled by, or under common control with a grantee, franchisee, or lessee. (Ord. 2004-5 § 1, 2004).

5.45.080 Leased capacity.

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

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

B. The customer or lessee has complied, to the extent applicable, with the requirements of this chapter. (Ord. 2004-5 § 1, 2004).

5.45.090 Incorporation by reference.

The provisions of this chapter shall be incorporated by reference in any telecommunications right-of-way use authorization, telecommunications franchise, or facilities lease granted pursuant to this chapter. However, in the event of any conflict between the authorization, franchise, or lease and this chapter, the authorization, franchise, or lease shall prevail. (Ord. 2004-5 § 1, 2004).

5.45.100 Most favored community.

In the event that a grantee, franchisee, or lessee enters into any agreement, franchise or other understanding with any other city, town or county in the state of Washington which provides terms or conditions more favorable to the city, town or county than those provided in its agreement with the city, such as, but not limited to, free or reduced fee hookups, access or service, the city shall be entitled to request at the city’s option, and the grantee, franchisee, or lessee in question shall be required to execute, an amendment to its agreement which incorporates the more favorable terms and conditions. (Ord. 2004-5 § 1, 2004).

5.45.110 Interference with the public ways or city property.

No grantee, franchisee, or lessee may locate or maintain its cable or telecommunications facilities so as to unreasonably interfere with the use of the public ways or city property by the city, by the general public or by other persons authorized to use or be present in or upon the public ways or property. All such facilities shall be immediately moved by the grantee, franchisee, or lessee, at the grantee’s, franchisee’s, or lessee’s cost, upon order of the Toppenish city manager. (Ord. 2004-5 § 1, 2004).

5.45.120 Damage to property.

No grantee, franchisee or lessee, nor any person acting on a grantee’s, franchisee’s or lessee’s behalf, shall take any action or permit any action to be done which may impair or damage any city property, public ways, other ways, or other property, whether publicly or privately owned or located in, on or adjacent thereto. (Ord. 2004-5 § 1, 2004).

5.45.130 Location of facilities.

All facilities shall be constructed, installed, and located in accordance with the following terms and conditions, unless otherwise specified in a telecommunications right-of-way use authorization, telecommunications franchise, or facilities lease:

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

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

C. Whenever new cable or telecommunications facilities will exhaust the capacity of a public way or city property to reasonably accommodate future cable or telecommunications carriers or facilities, the grantee, franchisee, or lessee and all other occupants of the public way or city property shall provide additional ducts, conduits, manholes, and other facilities for nondiscriminatory access to future operators and carriers at their own expense. (Ord. 2004-5 § 1, 2004).

5.45.140 Facilities maps.

Each grantee, franchisee, and lessee shall provide the city with a map or maps accurately reflecting the horizontal and vertical location and configuration of all of their telecommunications facilities on, in, under, over, across, or within public ways and city property. Each grantee, franchisee, and lessee shall provide the city with updated maps annually or upon request by the city. (Ord. 2004-5 § 1, 2004).

5.45.150 Compliance with one number locator service.

All grantees, franchisees, and lessees shall, before commencing any construction on, in, under, over, across or within public ways, comply with all regulations of Chapter 19.122 RCW. (Ord. 2004-5 § 1, 2004).

5.45.160 Notice of work.

Unless otherwise provided in a telecommunications right-of-way use authorization, telecommunications franchise, or facilities lease, no grantee, franchisee or lessee, nor any person acting on the grantee’s, franchisee’s or lessee’s behalf, shall commence any nonemergency work on, in, under, over, across, or within public ways, other ways, or city property without 10 working days’ advance notice to the city. (Ord. 2004-5 § 1, 2004).

5.45.170 Repair and emergency work.

In the event of an unexpected repair or emergency, a grantee, franchisee or lessee may commence such repair and emergency response work as required under the circumstances, provided the grantee, franchisee or lessee shall notify the city as promptly as possible, before such repair or emergency work commences or as soon thereafter as possible if advance notice is not practicable. (Ord. 2004-5 § 1, 2004).

5.45.180 Relocation or removal of facilities.

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

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

B. The operations of the city or other governmental entity in or upon the public way or city property. (Ord. 2004-5 § 1, 2004).

5.45.190 Building moving.

Whenever any person shall have obtained permission from the city to occupy or use any public way for the purpose of moving any building, a grantee or franchisee, upon seven days’ written notice from the city, shall raise or remove, at the expense of the person desiring to move the building, any of the grantee’s or franchisee’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. 2004-5 § 1, 2004).

5.45.200 Emergency removal or relocation of facilities.

The city retains the right and privilege to cut or move any cable or telecommunications facilities located on, in, under, over, across, or within 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. The city shall not be liable to any cable operator, telecommunications carrier or provider, or any other party for any direct, indirect, or any other such damages suffered by any person or entity of any type as a direct or indirect result of the city’s actions pursuant to this section. (Ord. 2004-5 § 1, 2004).

5.45.210 Removal of unauthorized facilities.

Within 90 days following written notice from the city, any telecommunications carrier or provider or other person who owns, controls, or maintains any unauthorized cable or telecommunications system, facilities, or related appurtenances on, in, under, over, across or within any public way or city property shall, at its own expense, remove such system, facilities or appurtenances and restore such ways or property to as good a condition as existed prior to construction or installation of the unauthorized system, facilities or related appurtenances. Any plan for removal of said system, facilities or related appurtenances must be approved by the city, and development authorization and all necessary permits must be obtained prior to such work. A cable or telecommunications system, facilities, or related appurtenances are unauthorized and subject to removal in the following circumstances:

A. Upon expiration or termination of a telecommunications right-of-way use authorization, telecommunications franchise, or facilities lease;

B. Upon abandonment of the system, facilities or related appurtenances within the public ways or upon property of the city. Property shall be deemed abandoned if left in place 90 days after expiration or termination of an authorization, franchise, or lease;

C. If the system, facilities or related appurtenances were constructed or installed without the prior grant of an authorization, franchise, or lease;

D. If the system, facilities or related appurtenances were constructed or installed without the prior issuance of a required development authorization and permits; or

E. If the system, facilities or related appurtenances were constructed or installed at a location not permitted by the authorization, franchise, or lease.

Provided, however, that the city may, in its sole discretion, allow such persons who may own, control or maintain cable or telecommunications system, facilities or related appurtenances on, in, under, over, across or within a public way or city property to abandon such facilities in place. No property of any type may be abandoned in place without the express written consent of the city. 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, 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 franchise granted pursuant to this chapter. (Ord. 2004-5 § 1, 2004).

5.45.220 Coordination of construction activities.

All grantees, franchisees, and lessees are required to cooperate with the city and with each other.

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

B. Each grantee, franchisee and lessee shall meet with the city, other grantees, franchisees, lessees, and users of the public ways and city property annually or as determined by the city to schedule and coordinate construction on, in, under, over, across, or within the public ways and city property.

C. All construction locations, activities and schedules shall be coordinated, as ordered by the city public works department, to minimize public inconvenience, disruption or damages. (Ord. 2004-5 § 1, 2004).

5.45.230 Damage to facilities.

Unless directly and proximately caused by the willful and malicious acts of the city, the city shall not be liable for any damage to or loss of any cable or telecommunications system or facilities on, in, under, over, across or within public ways or city property as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling, or work of any kind on, in, under, over, across, or within such public way or city property by or on behalf of the city. (Ord. 2004-5 § 1, 2004).

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

A. When a grantee, franchisee, lessee or any person acting on its behalf does any work in or affecting any public ways, other ways or city property, it shall, at its own expense, promptly remove any obstructions therefrom and restore such ways or property to as good a condition as existed before the work was undertaken, unless otherwise directed by the city.

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

C. A grantee, franchisee, lessee or other person acting 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 such ways or property.

D. The public works department shall be responsible for inspection and final approval of the condition of the public ways, 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, franchise, lease, or other agreement granted pursuant to this chapter. (Ord. 2004-5 § 1, 2004).

5.45.250 Maintenance of facilities.

Each grantee, franchisee or lessee shall maintain its system, facilities and related appurtenances in good and safe condition and in a manner that complies with all applicable federal, state and local requirements. (Ord. 2004-5 § 1, 2004).

5.45.260 Notice of entry on private property.

If directed by the city, at least 24 hours prior to entering private property or streets or public ways adjacent to or on such private property to perform new construction or reconstruction, a notice indicating the nature and location of the work to be performed shall be physically posted, at no expense to the city, upon the affected property by the grantee or franchisee. A door hanger may be used to comply with the notice and posting requirements of this section. A grantee or franchisee shall make a good faith effort to comply with the property owner’s/resident’s preferences, if any, on location or placement of underground installations (excluding aerial cable lines utilizing existing poles and existing cable paths), consistent with sound engineering practices; provided, however, that nothing in this chapter shall permit a grantee or franchisee to unlawfully enter or construct improvements upon the property or premises of another. (Ord. 2004-5 § 1, 2004).

5.45.270 Safety requirements.

A grantee, franchisee or lessee, in accordance with applicable federal, state and local safety requirements, shall, at all times, employ ordinary care and shall install and maintain and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injury, or nuisance to the public and/or workers. All structures and all lines, equipment and connections in, over, under, and upon the streets, sidewalks, alleys, and public ways or places of a permit, franchise, or lease area, wherever situated or located, shall at all times be kept and maintained in a safe, suitable condition, and in good order and repair. If a violation of the National Electrical Safety Code or other applicable regulation is found to exist by the city, the city may, after discussions with a grantee, franchisee, or lessee, establish a reasonable time for a grantee, franchisee, or lessee to make necessary repairs. If the repairs are not made within the established time frame, the city may make the repairs itself or have them made and collect all reasonable costs thereof from the grantee, franchisee, or lessee. (Ord. 2004-5 § 1, 2004).

5.45.280 Development authorization and permits required.

Except as otherwise provided herein, the holder of a telecommunications right-of-way use authorization, telecommunications franchise, or facilities lease granted pursuant to this chapter shall, in addition to said authorization, franchise, or lease, be required to obtain development authorization and required permits from the city. No work, construction, development, excavation, or installation of any equipment or facilities shall take place on, in, under, over, across, or within the public ways, other ways, city property, or other property, whether publicly or privately owned, until such time as development authorization is granted and required permits are issued. (Ord. 2004-5 § 1, 2004).

5.45.290 Insurance.

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

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

1. 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, franchisee, or lessee throughout the term of the authorization, franchise, or lease, and such other period of time during which the grantee, franchisee, or lessee is operating without an authorization, franchise, or lease hereunder, or is engaged in the removal of its telecommunications facilities. The grantee, franchisee, or lessee shall provide 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, franchise, 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, franchisee, or lessee. The insurance certificate required by this section shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability. The grantee’s, franchisee’s, 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’s, franchisee’s, 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 an endorsement in a form which substantially complies with the following:

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

G. Within 30 days after receipt by the city of said notice, and in no event later than 15 days prior to such cancellation or intent not to renew, the grantee, franchisee, or lessee shall obtain and furnish to the city replacement insurance policies meeting the requirements of this section. (Ord. 2004-5 § 1, 2004).

5.45.300 General indemnification.

No telecommunications right-of-way use authorization, telecommunications franchise, or facilities lease shall be deemed to be granted pursuant to this chapter unless it includes an indemnity clause substantially conforming to the following:

The grantee, franchisee, or lessee hereby releases, covenants not to bring suit and agrees to indemnify, defend and hold harmless the city, its officers, employees, agents, representatives, engineers, and consultants from any and all claims, costs, judgments, awards, or liability to any person, including claims by the grantee, franchisee, or lessee’s own employees to which the grantee, franchisee, or lessee might otherwise be immune under Title 51 RCW, arising from injury or death of any person or damage to property of which the negligent acts or omissions of the grantee, franchisee, or lessee, its agents, servants, officers, or employees in performing under this authorization, franchise, or lease are a proximate cause.

The grantee, franchisee, or lessee further releases, covenants not to bring suit and agrees to indemnify, defend and hold harmless the city, its officers and employees from any and all claims, costs, judgments, awards, or liability to any person including claims by the grantee, franchisee, or lessee’s own employees, including those claims to which the grantee, franchisee, or lessee might otherwise have immunity under Title 51 RCW, arising against the city solely by virtue of the city’s ownership or control of the rights-of-way or other public properties, by virtue of the grantee, franchisee, or lessee’s exercise of the rights granted herein, or by virtue of the city’s permitting the grantee, franchisee, 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, franchisee, or lessee, its agents and servants, officers or employees in connection with work authorized on the city’s property or property over which the city has control, pursuant to this authorization, franchise, or lease, or pursuant to any other permit or approval issued in connection with this authorization, franchise, or lease.

This covenant of indemnification shall include, but not be limited by this reference, claims against the city arising as a result of the negligent acts or omissions of the grantee, franchisee, or lessee, its agents, servants, officers, or employees in barricading, instituting trench safety systems or providing other adequate warnings of any excavation, construction, or work in any public right-of-way or other public place in performance of work or services permitted under this authorization, franchise, or lease.

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

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

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

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

The grantee, franchisee, or lessee further agrees to indemnify, hold harmless and defend the city against any claims for damages, including, but not limited to, business interruption damages and lost profits, brought by or under users of the grantee, franchisee, or lessee’s facilities as the result of any interruption of service due to damage or destruction of the user’s facilities caused by or arising out of activities conducted by the city, its officers, agents, employees, or contractors, except to the extent any such damage or destruction is caused by or arises from the sole negligence or any willful and malicious actions on the part of the city, its officers, agents, employees, or contractors.

(Ord. 2004-5 § 1, 2004).

5.45.310 Performance and financial guaranties.

Before a telecommunications right-of-way use authorization, telecommunications franchise, or facilities lease granted pursuant to this chapter is effective, and as necessary thereafter, the grantee, franchisee or lessee shall provide and deposit such monies, bonds, letters of credit, or other instruments in such form and amount acceptable to the city as may be required by this chapter or by the authorization, franchise, or lease agreement. (Ord. 2004-5 § 1, 2004).

5.45.320 Security fund.

Each grantee, franchisee or lessee shall establish a permanent security fund with the city by depositing such monies, bonds, letters of credit, or other instruments in such form and amount acceptable to the city. The security fund shall be maintained at the sole expense of the grantee, franchisee or lessee so long as any of the grantee’s, franchisee’s or lessee’s telecommunications systems, facilities, or related appurtenances are located on, in, under, over, across, or within a public way or 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, franchisee 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, franchisee 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’s, franchisee’s or lessee’s act or default;

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

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

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

C. Grantees, franchisees and lessees shall replenish the security fund within 14 days after written notice from the city that there is a deficiency in the amount of the fund. (Ord. 2004-5 § 1, 2004).

5.45.330 Restoration bond.

Unless otherwise provided in a telecommunications right-of-way use authorization, telecommunications franchise, or facilities lease, a performance bond written by a corporate surety acceptable to the city equal to at least 100 percent of the estimated cost of removing the grantee, franchisee or lessee’s telecommunications system, facilities and related appurtenances and restoring the public ways and/or city-owned property to its preconstruction condition shall be deposited before any construction is commenced. Such bond shall be required to remain in full force until 60 days after completion of the construction and/or improvements on, in, under, over, across or within public ways or city property, and shall warrant all such restoration work for a period of one year. The purpose of this bond is to guarantee removal of partially completed and/or nonconforming telecommunications facilities and to fully restore public ways and city property to its preconstruction condition. (Ord. 2004-5 § 1, 2004).

5.45.340 Compensation to the city.

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

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

C. Each facilities lease granted pursuant to this chapter is subject to the city’s right, which is expressly reserved, to annually fix a fair and reasonable compensation to be paid for the rights granted to the lessee; provided, nothing in this chapter shall prohibit the city and a lessee from agreeing to the compensation to be paid. Such compensation shall be payable in advance of the effective date of the lease and on or before January 31st of each calendar year. Any payments received after the due date shall include a late payment penalty of two percent of the annual rental fee for each day or part thereof past the due date. (Ord. 2004-5 § 1, 2004).

5.45.350 Annual fee for recovery of city costs.

Each telecommunications right-of-way use authorization, telecommunications franchise, and facilities lease granted pursuant to this chapter is subject to the city’s right, which is expressly reserved, to annually fix a fair and reasonable compensation to be paid as reimbursement for the city’s costs in connection with reviewing, inspecting and supervising the use and occupancy of public ways, other ways, and city property on behalf of the public and existing or future users. (Ord. 2004-5 § 1, 2004).

5.45.360 Other city costs.

All grantees, franchisees and lessees shall, within 30 days after written demand, reimburse the city for all direct and indirect costs and expenses incurred by the city in connection with any modification, amendment, renewal or transfer of the authorization or any telecommunications right-of-way use authorization, telecommunications franchise, and facilities lease. In addition, all grantees, franchisees and lessees shall, within 30 days after written demand, reimburse the city for any and all costs the city reasonably incurs in response to any emergency involving the grantee’s, franchisee’s or lessee’s telecommunications facilities. All grantees, franchisees and lessees shall, within 30 days after written demand, reimburse the city for the grantee’s, franchisee’s or lessee’s proportionate share of all actual, identified expenses incurred by the city in planning, constructing, installing, repairing or altering any city facility as a result of the construction or the presence in the right-of-way of the grantee’s, franchisee’s or lessee’s telecommunications facilities. (Ord. 2004-5 § 1, 2004).

5.45.370 Universal service.

Except as otherwise provided herein, all cable operators, telecommunications carriers, and telecommunications providers engaged in the business of transmitting, supplying or furnishing telecommunications service of any kind originating or terminating in the city are subject to the city’s right, which is expressly reserved, to require said operator, carrier or provider to make an equitable and nondiscriminatory contribution to the preservation and advancement of universal service to the extent permitted by state and federal law; and each telecommunications right-of-way use authorization, telecommunications franchise, and facilities lease granted pursuant to this chapter is subject to the city’s right, which is expressly reserved, to require the telecommunication carrier or provider to make an equitable and nondiscriminatory contribution to the preservation and advancement of universal service to the extent permitted by state and federal law. (Ord. 2004-5 § 1, 2004).

5.45.380 Fees and compensation not a tax.

The fees, charges and fines provided for in this chapter and any compensation charged and paid for the use or occupancy of public ways or city property provided for herein, whether fiduciary or in-kind, are separate from, and additional to, any and all federal, state, local and city taxes as may be levied, imposed or due from a telecommunications carrier or provider, its customers or subscribers or on account of the lease, sale, delivery or transmission of telecommunications services. (Ord. 2004-5 § 1, 2004).

5.45.390 Cable television franchise required.

Except as otherwise provided herein, any telecommunications carrier, telecommunications provider or other person who desires to construct, install, operate, maintain or locate cable or telecommunications facilities on, in, under, over, across or within any public way, other way, or city property for the purpose of providing cable service to persons in the city shall first obtain a franchise from the city pursuant to Chapter 5.05 TMC. (Ord. 2004-5 § 1, 2004).

5.45.400 Telecommunications right-of-way use authorization.

Except as otherwise provided in this chapter, any telecommunications carrier or provider who desires to construct, install, operate, maintain, or otherwise locate telecommunications facilities on, in, under, over, across or within any public way or otherwise occupy a public way for the sole purpose of providing telecommunications service to persons and areas outside the city shall first obtain a telecommunications right-of-way use authorization granting the use of such public ways from the city pursuant to this chapter. (Ord. 2004-5 § 1, 2004).

5.45.410 Telecommunications right-of-way use authorization application.

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

A. The identity of the applicant, and the persons who exercise working control over the applicant including all affiliates of the applicant;

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

C. Whether the applicant intends to provide cable service, open video service or other video programming service, and sufficient information to determine whether such service is subject to cable franchising;

D. Description of the transmission medium that will be used by the applicant to offer or provide such telecommunications services;

E. Engineering plans, specifications and a network map of existing and proposed facilities located within the city, in the format and media prescribed by the city public works department, all in sufficient detail to identify:

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

2. The location of all overhead and underground public utility, telecommunications, cable, water, sewer drainage and other facilities in the public way along the proposed route;

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

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

F. If applicant is proposing to install overhead facilities, evidence that surplus space is available for locating its telecommunications facilities on existing utility poles along the proposed route;

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

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

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

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

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

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

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

I. A preliminary construction schedule and completion date;

J. Information to establish that the applicant has obtained all other governmental approvals and permits to construct and operate the facilities, and to offer or provide the telecommunications services, including, but not limited to, evidence that the applicant has registered with the Washington Utilities and Transportation Commission;

K. All deposits or charges required pursuant to this chapter;

L. An application fee deposit in the amount of $3,000. If the actual costs to the city are less than the application fee deposit, then the city shall refund to the applicant any remaining portion of the fee deposit. If the actual costs to the city exceed the application fee deposit, then the city may request that the applicant increase its deposit. (Ord. 2020-01 § 1, 2020; Ord. 2004-5 § 1, 2004).

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

Within 45 days after receiving a completed application under TMC 5.45.410, the city manager shall make a written recommendation to the Toppenish city council to grant or deny the telecommunications right-of-way use authorization in whole or in part. Within 45 days after receipt of the recommendation, the city council shall conduct a public hearing and make a decision. The city council may continue consideration of the application for a period not to exceed 30 days. If the authorization is denied, the written determination shall include the reason(s) for denial. The decision to grant or deny an application for a telecommunications right-of-way use authorization shall be based upon the following standards:

A. Whether the applicant has received all requisite licenses, certificates, and authorizations from the Federal Communications Commission, the Washington Utilities and Transportation Commission, and any other federal or state agency with jurisdiction over the activities proposed by the applicant as required in TMC 5.45.410;

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

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

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

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

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

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

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

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

J. Such other factors as may demonstrate that the grant to use the public ways will or will not serve the community interest. (Ord. 2004-5 § 1, 2004).

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

Unless otherwise specified in a telecommunications right-of-way use authorization, no authorization granted hereunder shall be in effect for a term exceeding five years, which shall be revocable upon 30 days’ notice by the city to the grantee. (Ord. 2004-5 § 1, 2004).

5.45.440 Specified route.

A telecommunications right-of-way use authorization granted pursuant to this chapter shall be limited to a grant of specific public ways and defined portions thereof. (Ord. 2004-5 § 1, 2004).

5.45.450 Service to city users.

A grantee of a telecommunications right-of-way use authorization shall be permitted to offer or provide telecommunications services to persons or areas within the city upon approval of an application for a telecommunications franchise pursuant to this chapter. (Ord. 2004-5 § 1, 2004).

5.45.460 Amendment of authorization.

A new application shall be required of any telecommunications carrier or provider who desires to extend or locate its telecommunications facilities on, in, under, over, across or within any public way or otherwise occupy public ways which are not included in a telecommunications right-of-way use authorization previously granted pursuant to this chapter. If ordered by the city to locate or relocate its telecommunications facilities, the city shall grant an amendment to the authorization without further application. (Ord. 2004-5 § 1, 2004).

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

A grantee that desires to renew its telecommunications right-of-way use authorization pursuant to this chapter for an additional term shall, not more than 180 days nor less than 90 days before expiration of the current authorization, file an application with the city manager for renewal which shall include the following:

A. The information required pursuant to TMC 5.45.410;

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

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

D. An application fee deposit as described in TMC 5.45.410(L). (Ord. 2020-01 § 2, 2020; Ord. 2004-5 § 1, 2004).

5.45.480 Standards for renewal of authorization.

Within 45 days after receiving a completed application under TMC 5.45.470, the city manager shall make a written recommendation to the Toppenish city council to grant or deny the telecommunications right-of-way use authorization renewal in whole or in part. Within 45 days after receipt of the recommendation, the city council shall conduct a public hearing and make a decision. The city council may continue consideration of the application for a period not to exceed 30 days. If the authorization is denied, the written determination shall include the reason(s) for denial. If the renewal application is denied, the written determination shall include the reasons for nonrenewal. The decision to grant or deny a renewal application shall, in addition to the standards set forth in TMC 5.45.420, be based upon the following standards:

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

B. The applicant’s compliance with the requirements of this chapter and the authorization. (Ord. 2004-5 § 1, 2004).

5.45.490 Obligation to cure as a condition of renewal.

No telecommunications right-of-way use authorization shall be renewed until any ongoing violations or defaults in the grantee’s performance under the authorization, or of the requirements of this chapter, have been cured, or a plan detailing the corrective action to be taken by the grantee has been approved by the city. (Ord. 2004-5 § 1, 2004).

5.45.500 Telecommunications franchise.

Except as otherwise provided in this chapter, any telecommunications provider or carrier who desires to construct, install, operate, maintain or otherwise locate telecommunications facilities on, in, under, over, across or within any public way or otherwise use or occupy public ways, and to also provide telecommunications service to persons or areas in the city, shall first obtain a franchise granting the use and occupancy of such public ways from the city pursuant to this chapter; provided, however, that a telecommunications right-of-way use authorization may, with the approval of the Toppenish city council, be substituted for a telecommunications franchise in the following circumstances:

A. Privately owned telecommunications networks or systems which are operated solely for purposes other than offering telecommunications services to other persons or the general public. An example of such a network or system includes, but is not limited to, a telecommunications network connecting two business facilities under common ownership or control, when said facilities are not offered to other business entities or persons.

B. De minimus uses of public ways made in conjunction with a wireless telecommunications facility located entirely upon publicly or privately owned property. (Ord. 2004-5 § 1, 2004).

5.45.510 Franchise application.

Any person who desires a telecommunications franchise pursuant to this chapter shall file an application with the city manager which, in addition to the information required by TMC 5.45.410, shall include the following:

A. Whether the applicant intends to provide cable service, video dial tone service or other video programming service, and sufficient information to determine whether such service is subject to cable franchising;

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

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

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

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

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

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

H. An application fee deposit as described in TMC 5.45.410(L). (Ord. 2020-01 § 3, 2020; Ord. 2004-5 § 1, 2004).

5.45.520 Determination by the city.

Within 45 days after receiving a completed application under TMC 5.45.510, the city manager shall make a written recommendation to the Toppenish city council to grant or deny the telecommunications franchise in whole or in part. Within 45 days after receipt of the recommendation, the city council shall conduct a public hearing and make a decision. The city council may continue consideration of the application for a period not to exceed 30 days. Pursuant to RCW 35A.47.040, the city council shall not approve any franchise hereunder until the next regularly scheduled council meeting following the public hearing. If the application is denied, the written determination shall include the reason(s) for denial. The decision to grant or deny an application for a telecommunications franchise shall be based upon the following standards:

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

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

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

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

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

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

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

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

J. Such other factors as may demonstrate that the grant to use the public ways will or will not serve the community interest. (Ord. 2004-5 § 1, 2004).

5.45.530 Term of franchise grant.

Unless otherwise specified in a franchise agreement, a telecommunications franchise granted hereunder shall be valid for a term of five years. (Ord. 2004-5 § 1, 2004).

5.45.540 Franchise territory.

Unless otherwise provided in the franchise ordinance, a telecommunications franchise granted pursuant to this chapter shall be limited to the specific geographic area of the city to be served by the franchisee, and the specific public ways necessary to serve such areas. (Ord. 2004-5 § 1, 2004).

5.45.550 Nondiscrimination.

A franchisee which purports to serve the general public 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 franchisee’s services; provided, however, that nothing in this chapter shall prohibit a franchisee from making any reasonable classifications among differently situated customers. (Ord. 2004-5 § 1, 2004).

5.45.560 Amendment of franchise grant.

Except as otherwise provided within a franchise ordinance, a new franchise application and grant shall be required of any telecommunications carrier or provider that desires to extend its franchise territory or to locate its telecommunications facilities on, in, under, over, across or within any public way or otherwise occupy public ways which are not included in a franchise previously granted pursuant to this chapter. If ordered by the city to locate or relocate its telecommunications facilities, the city shall grant a franchise amendment without further application. (Ord. 2004-5 § 1, 2004).

5.45.570 Renewal application.

A franchisee that desires to renew its franchise pursuant to this chapter for an additional term shall, not more than 180 days nor less than 90 days before expiration of the current franchise, file an application with the city manager for renewal of its franchise which shall include the following:

A. The information required pursuant to TMC 5.45.510;

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

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

D. An application fee deposit as described in TMC 5.45.410(L). (Ord. 2020-01 § 4, 2020; Ord. 2004-5 § 1, 2004).

5.45.580 Renewal determination.

Within 45 days after receiving a completed application under TMC 5.45.570, the city manager shall make a written recommendation to the Toppenish city council to grant or deny the telecommunications franchise renewal in whole or in part. Within 45 days after receipt of the recommendation, the city council shall conduct a public hearing and make a decision. If the renewal application is denied, the written determination shall include the reason(s) for nonrenewal. The city council may continue consideration of the application for a period not to exceed 30 days. The decision to grant or deny a renewal application shall, in addition to the standards set forth in TMC 5.45.520, be based upon the following standards:

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

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

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

D. Such other factors as may demonstrate that the continued grant to use the public ways will serve the community interest. (Ord. 2004-5 § 1, 2004).

5.45.590 Obligation to cure as a condition of renewal.

No franchise shall be renewed until any ongoing violations or defaults in the franchisee’s performance of the franchise agreement, or of the requirements of this chapter, have been cured, or a plan detailing the corrective action to be taken by the franchisee has been approved by the city. (Ord. 2004-5 § 1, 2004).

5.45.600 Facilities lease.

No telecommunications carrier or other entity who desires to locate telecommunications facilities or other equipment on, in, under, over, across or within city property shall locate such facilities or equipment on, in, under, over, across, or within city property unless granted a facilities lease from the city pursuant to this chapter. The city council may, in its sole discretion which is hereby reserved, approve facilities leases for the location of telecommunications facilities and other equipment upon city property. Neither this section, nor any other provision of this chapter, shall be construed to create an entitlement or vested right in any person or entity of any type. (Ord. 2004-5 § 1, 2004).

5.45.610 Lease application.

Recognizing that the city is under no obligation to grant a facilities lease for the use of city property, any person that desires to solicit the city’s approval of a facilities lease pursuant to this chapter shall file a lease proposal with the city manager which, in addition to the information required by TMC 5.45.410 and 5.45.510, shall include the following:

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

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

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

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

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

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

E. Whether the applicant intends to provide cable service, video dial tone service or other video programming service, and sufficient information to determine whether such service is subject to cable franchising;

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

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

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

I. An application fee deposit as described in TMC 5.45.410(L). (Ord. 2020-01 § 5, 2020; Ord. 2004-5 § 1, 2004).

5.45.620 Determination by the city.

Within 45 days after receiving a completed application under TMC 5.45.610, the city manager shall make a written recommendation to the Toppenish city council to grant or deny the facilities lease in whole or in part. Within 45 days after receipt of the recommendation, the city council shall review the recommendation without a public hearing and make a decision, in its sole discretion, based upon the best interests of the city of Toppenish. The city council may continue consideration of the application for a period not to exceed 30 days. (Ord. 2004-5 § 1, 2004).

5.45.630 Term of facilities lease.

Unless otherwise specified in a lease agreement, a facilities lease granted hereunder shall be valid for a term of one year, subject to annual renewal as provided in this chapter. (Ord. 2004-5 § 1, 2004).

5.45.640 Interference with other users.

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

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

(Ord. 2004-5 § 1, 2004).

5.45.650 Cancellation of lease by lessee.

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

In the event that the holder of a facilities lease determines that the city property is unsuitable for its intended purpose, the lessee shall have the right to cancel the lease upon 120 days’ written notice to the city. However, no prepaid rent shall be refundable. (Ord. 2004-5 § 1, 2004).

5.45.660 Amendment of facilities lease.

Except as provided within an existing lease agreement, a new lease application and lease agreement shall be required of any telecommunications carrier or other entity that desires to expand, modify, or relocate its telecommunications facilities or other equipment located on, in, under, over, across, or within city property. If ordered by the city to locate or relocate its telecommunications facilities or other equipment, the city shall grant a lease amendment without further application. (Ord. 2004-5 § 1, 2004).

5.45.670 Renewal application.

Recognizing that the city is under no obligation to grant a renewal of a facilities lease for the use of city property, a lessee that desires to renew its facilities lease pursuant to this chapter shall, not more than 180 days nor less than 90 days before expiration of the current facilities lease, file an application with the city manager for renewal of its facilities lease which shall include the following:

A. The information required pursuant to TMC 5.45.610;

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

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

D. An application fee deposit as described in TMC 5.45.410(L). (Ord. 2020-01 § 6, 2020; Ord. 2004-5 § 1, 2004).

5.45.680 Renewal determination.

Within 45 days after receiving a completed application under TMC 5.45.670, the city manager shall make a written recommendation to the Toppenish city council to grant or deny the renewal in whole or in part. Within 45 days after receipt of the recommendation, the city council shall review the recommendation without a public hearing and make a decision, in its sole discretion, based upon the best interests of the city of Toppenish. The city council may continue consideration of the application for a period not to exceed 30 days. (Ord. 2004-5 § 1, 2004).

5.45.690 Obligation to cure as a condition of renewal.

No facilities lease shall be renewed until any ongoing violations or defaults in the lessee’s performance of the lease agreement, or of the requirements of this chapter, have been cured, or a plan detailing the corrective action to be taken by the lessee has been approved by the city. (Ord. 2004-5 § 1, 2004).

5.45.700 Agreements required.

No telecommunications right-of-way use authorization, telecommunications franchise, or facilities lease shall be deemed to have been granted hereunder until the applicant and the city have executed a written agreement setting forth the particular terms and provisions under which the grantee, franchisee, or lessee has been granted the right to occupy or use public ways or property of the city. (Ord. 2004-5 § 1, 2004).

5.45.710 Nonexclusivity.

No telecommunications right-of-way use authorization, telecommunications franchise, or facilities lease granted pursuant to this chapter shall confer any exclusive right, privilege, license or franchise to occupy or use public ways or city property for delivery of telecommunications services or any other purposes. (Ord. 2004-5 § 1, 2004).

5.45.720 Rights granted.

No telecommunications right-of-way use authorization, telecommunications franchise, or facilities lease granted pursuant to this chapter shall convey any right, title or interest in public ways or city property, but shall be deemed an authorization only to use or occupy the public ways or property for the limited purposes and term stated in the authorization, franchise, or lease. Further, no authorization, franchise, or lease shall be construed as any warranty of title. (Ord. 2004-5 § 1, 2004).

5.45.730 Duty to provide information.

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

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

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

All books, records, maps and other documents maintained by the grantee, franchisee or lessee with respect to its facilities within the public ways and upon city property shall be made available for inspection by the city at reasonable times and intervals; provided, however, that nothing in this section shall be construed to require a grantee, franchisee or lessee to violate state or federal law regarding subscriber privacy, nor shall this section be construed to require a grantee, franchisee, or lessee to disclose proprietary or confidential information without adequate safeguards for its confidential or proprietary nature. (Ord. 2004-5 § 1, 2004).

5.45.740 General penalties.

A. Civil Penalties.

1. It shall be an infraction for any person, who has not previously been found to have committed a violation of this chapter, to knowingly fail to perform any act required by this chapter or to knowingly perform any act prohibited by this chapter.

2. A person who is found to have committed a violation of any of the provisions of this chapter, and who has not previously been found to have committed a violation of this chapter, shall be assessed a fine of not less than $100.00 nor more than $1,000 for each violation. In the event that the violation is continuing, a separate fine shall be assessed for each day that the violation exists; $100.00 of each fine may not be waived, reduced, suspended or deferred.

3. Chapter 7.80 RCW is incorporated herein with respect to this subsection.

4. Any person issued a notice of civil infraction and who either fails to respond to the notice of civil infraction or fails to appear at a requested hearing shall be assessed the maximum civil penalty as provided in this subsection.

B. Criminal Penalties.

1. It shall be a misdemeanor for any person, who has previously been found to have committed a violation of this chapter, to knowingly fail to perform any act required by this chapter or to knowingly perform any act prohibited by this chapter.

2. It shall be a gross misdemeanor for any person to intentionally fail to perform any act required by this chapter or to intentionally perform any act prohibited by this chapter.

C. Additional Relief.

1. The city may seek legal or equitable relief to enjoin any acts or practices and abate any condition which constitutes or will constitute a violation of the applicable provisions of this chapter in addition to civil or criminal penalties. Furthermore, violation of the terms of this chapter shall be grounds for revocation of any authorization, approval, franchise, or lease issued or granted pursuant to this chapter.

2. In addition to any penalty which may be imposed, any person violating or failing to comply with any of the provisions of this chapter shall be liable for all damage to public or private property arising from such violation, including the cost of restoring the affected area to its condition prior to the violation. (Ord. 2004-5 § 1, 2004).

5.45.750 Revocation or termination of grant.

An authorization, franchise, 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 of a telecommunications system or facilities on, in, under, over, across, or within any public way or city property without a grant of authority from an authorization, franchise, or lease;

B. Construction or operation at an unauthorized location;

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

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

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

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

G. Abandonment of cable or telecommunications system or facilities on, in, under, over, across, or within public ways or city property;

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

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

J. Insolvency or bankruptcy of the grantee, franchisee or lessee;

K. Violation of any provision of this chapter; or

L. Violation of the material terms of an authorization, franchise or lease agreement. (Ord. 2004-5 § 1, 2004).

5.45.760 Notice and duty to cure.

In the event that the city believes that grounds exist for revocation of an authorization, franchise or lease, the grantee, franchisee or lessee shall be given written notice of the apparent violation or noncompliance, providing a short and concise statement of the nature and general facts of the violation or noncompliance, and providing the grantee, franchisee, or lessee a reasonable period of time not exceeding 30 days to furnish evidence:

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; or

C. That it would be in the public interest to impose some penalty or sanction less than revocation. (Ord. 2004-5 § 1, 2004).

5.45.770 Hearing.

In the event that a grantee, franchisee, or lessee fails to provide evidence reasonably satisfactory to the city as provided in TMC 5.45.760, the city shall refer the apparent violation or noncompliance to the city council. The city council shall provide the grantee, franchisee or lessee with notice and a reasonable opportunity to be heard concerning the matter. (Ord. 2004-5 § 1, 2004).

5.45.780 Standards for revocation or lesser sanctions.

If the city council determines that a grantee, franchisee or lessee willfully violated or failed to comply with any of the provisions of this chapter or an authorization, franchise, or lease granted pursuant to this chapter, or through willful misconduct or gross negligence failed to heed or comply with any notice given the grantee, franchisee, or lessee by the city under the provisions of this chapter, then the grantee, franchisee, or lessee shall, at the election of the city council, forfeit all rights conferred hereunder and the authorization, franchise, or lease may be revoked or annulled by the city council. The city council may elect, in lieu of the above and without any prejudice to any of its other legal rights and remedies, to pursue other remedies, including obtaining an order from the Superior Court having jurisdiction compelling the grantee, franchisee or lessee to comply with the provisions of this chapter and any authorization, franchise, or lease granted hereunder, and to recover damages and costs incurred by the city by reason of the grantee’s, franchisee’s, or lessee’s failure to comply. The city council shall utilize the following factors in analyzing the nature, circumstances, extent, and gravity of the violation and in making its determination pursuant to 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. 2004-5 § 1, 2004).

5.45.790 Other remedies.

Nothing in this chapter shall be construed as limiting any judicial remedies that the city may have, at law or in equity, for enforcement of this chapter. (Ord. 2004-5 § 1, 2004).