Chapter 11.10 CONDITIONS OF TELECOMMUNICATIONS RIGHT-OF-WAY USE AUTHORIZATIONS, MASTER PERMITS, FACILITIES LEASES, AND LICENSES

The purpose of this chapter is to set forth certain terms and conditions which are common to all telecommunications right-of-way use authorizations, master permits, and facilities leases and licenses. Except as otherwise provided in this title or in such an authorization, master permit, lease, or license, the provisions of this chapter apply to all such authorizations, master permits, leases, and licenses approved or granted by the city. For the purposes of this chapter, “director” means the director of public works or his or her designee. To the extent that any provisions of this chapter are in conflict with the provisions of a city cable franchise, master permit, lease, license, or other authorization, the provisions of this chapter shall control.

(Ord. O2018-025, Amended, 12/18/2018; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)

11.10.020 Acceptance.

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

(Ord. O2018-025, Amended, 12/18/2018; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)

11.10.030 Police power.

In accepting any authorization, master permit, lease, or license, the grantee, master permittee, lessee, or licensee acknowledges that its rights hereunder are subject to the police power of the city to adopt and enforce general ordinances necessary to protect the safety and welfare of the public, and it agrees to comply with all applicable general laws enacted by the city pursuant to such power; provided, that the general ordinances and laws do not otherwise violate any applicable provisions of federal or state law.

(Ord. O2018-025, Amended, 12/18/2018; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)

11.10.040 Rules and regulations by the city.

In addition to the inherent powers of the city to regulate and control any authorization, master permit, lease, or license it issues, the local authority preserved by the Telecommunications Act of 1996, and those powers expressly reserved by the city, or agreed to and provided for in any authorization, master permit, lease, or license, the right and power is hereby reserved by the city to promulgate such additional regulations as it may find necessary in the exercise of its lawful powers giving due regard to the rights of grantees, master permittees, lessees, and licensees. Except as provided in this title, the foregoing does not allow for amendment by the city of material terms of any authorization, master permit, lease, or license it issues without the consent of the grantee, master permittee, lessee, or licensee.

(Ord. O2018-025, Amended, 12/18/2018; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)

11.10.050 Location of facilities.

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

A. Unless otherwise provided in an authorization, master permit, lease, or license, or in the case of wireless facilities that must be located above ground in order to function, a grantee, master permittee, lessee, or licensee with permission to occupy a right-of-way must locate its facilities underground.

B. Whenever any new or existing electric utilities or facilities are located or relocated underground within a right-of-way, a grantee, master permittee, lessee, or licensee that currently occupies the same right-of-way shall relocate its facilities underground at no expense to the city, except in the case of wireless facilities that must be located above ground in order to function. Absent extraordinary circumstances or undue hardship as determined by the director, such relocation shall be made concurrently to minimize the disruption of the right-of-way. No extension granted by the director under this subsection shall exceed a period of twelve months. If the city or any utility or telecommunications facilities owner incurs any damages, including without limitation damages due to construction delays, that are caused by any failure to relocate underground as required herein, the party delaying the project shall be required to compensate the full amount of any such damages.

C. At the option of the city, whenever new conduit is laid, upon the city’s written request, the city shall be provided one additional four-inch conduit for city use and the city shall pay the incremental increase in cost associated with the installation of this additional conduit.

D. Any overhead facilities will be installed as part of the backbone system only. No service leads will be installed overhead.

(Ord. O2018-025, Amended, 12/18/2018; Ord. O2011-002, Amended, 03/01/2011; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)

11.10.060 Conduit occupancy.

In furtherance of the public purpose of reduction of rights-of-way excavation, it is the goal of the city to encourage both the shared occupancy of underground conduit as well as the construction, whenever possible, of excess conduit capacity for occupancy of future right-of-way occupants. Therefore, if a franchisee, master permittee, lessee, or licensee is constructing underground conduit for its own telecommunications facility, and the city reasonably determines such construction is in an area in which additional conduit may be warranted, the city may require the franchisee, master permittee, lessee, or licensee to construct excess conduit capacity in the rights-of-way, consistent with Chapter 35.99 RCW.

(Ord. O2018-025, Amended, 12/18/2018; Ord. O97-021, Added, 07/21/1998)

11.10.070 Occupancy of city-owned conduit.

In furtherance of the same objectives of TMC 11.10.060, if the city owns or leases conduit in the path of grantee’s proposed telecommunications facilities, and provided it is technologically feasible for grantee to occupy the conduit owned or leased by the city, grantee shall be required to occupy the conduit owned or leased by the city in order to reduce the necessity to excavate the right-of-way. Grantee shall pay to the city a fee for such occupancy, which shall be reasonable, consistent with applicable federal and state law, and applied in a competitively neutral and nondiscriminatory manner. The city and grantee may agree to amortize the fee through annual payments to the city over the term of the license, lease, master permit, or franchise, including the time value of money.

(Ord. O2018-025, Amended, 12/18/2018; Ord. O2011-002, Amended, 03/01/2011; Ord. O97-021, Added, 07/21/1998)

11.10.080 Compliance with One Number Locator Service.

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

(Ord. O2018-025, Amended, 12/18/2018; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)

11.10.090 Construction permits.

All grantees, master permittees, lessees, and licensees are required to obtain use permits for facilities as required in TMC Chapter 12.16. However, nothing in this title shall prohibit the city and a grantee, master permittee, lessee, or licensee from agreeing to alternative plan review, permit, and construction procedures for an authorization, master permit, lease, or license granted under this title, provided such alternative procedures provide substantially equivalent safeguards for responsible construction practices.

(Ord. O2018-025, Amended, 12/18/2018; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)

11.10.100 Interference with the right-of-way.

No grantee, master permittee, lessee, or licensee may locate or maintain its facilities so as to unreasonably interfere with the use of the right-of-way by the city, by the general public or by other persons authorized to use or be present in or upon the right-of-way. All such facilities shall be moved by the grantee, master permittee, lessee, or licensee, at the grantee’s, master permittee’s, lessee’s, or licensee’s cost, temporarily or permanently, as determined by the director.

(Ord. O2018-025, Amended, 12/18/2018; Ord. O2011-002, Amended, 03/01/2011; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)

11.10.110 Damage to property.

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

(Ord. O2018-025, Amended, 12/18/2018; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)

11.10.120 Notice of work.

Unless otherwise provided in an authorization, master permit, lease, or license agreement, no grantee, master permittee, lessee, or licensee nor any person acting on the grantee’s, master permittee’s, lessee’s, or licensee’s behalf, shall commence any nonemergency work in or about the right-of-way, other ways, or upon city property without ten working days’ advance notice to the city and procure a use permit pursuant to TMC Chapter 11.12.

(Ord. O2018-025, Amended, 12/18/2018; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)

11.10.130 Repair and emergency work.

In the event of an unexpected repair or emergency, a grantee, master permittee, lessee, or licensee may commence such repair and emergency response work as required under the circumstances, provided the grantee, master permittee, lessee, or licensee shall notify the city as promptly as possible, before such repair or emergency work commences or within no more than three business days if advance notice is not practicable.

(Ord. O2018-025, Amended, 12/18/2018; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)

11.10.140 Maintenance of facilities.

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

(Ord. O2018-025, Amended, 12/18/2018; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)

11.10.150 Relocation or removal of facilities.

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

The director shall endeavor to provide at least ninety days’ written notice to service providers of the need for relocation and shall specify the date by which relocation shall be completed. In calculating the date that relocation must be completed, the director shall consult with affected service providers and consider the extent of facilities to be relocated, the service’s requirements, and the construction sequence for the relocation, within the city’s overall project construction sequence and constraints, to safely complete the relocation. Service providers shall complete the relocation by the date specified, unless the director, or a reviewing court, establishes a later date for completion, after a showing by the service provider that the relocation cannot be completed by the date specified using best efforts and meeting safety and service requirements. If the city incurs any damages, including without limitation damages related to construction delays, as a result of a service provider failure to complete the relocation as specified herein, the service provider shall reimburse the city for all such damages within thirty days of an invoice describing the charges.

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

A. Where the service provider had paid for the relocation cost of the same facilities at the request of the director within the past five years, in which case the city shall pay the cost of relocation;

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

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

Where a project is primarily for private benefit, including without limitation new development or redevelopment, the private party or parties shall reimburse the cost of relocation in the same proportion to their contribution to the costs of the project. Service providers will be allowed to recover their costs associated with relocation required under this section only if the recovery is consistent with the terms of this section and other applicable laws. The city may require the relocation of facilities at the service provider’s expense in the event of an unforeseen emergency that creates an immediate threat to the public safety, health, and welfare.

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

(Ord. O2018-025, Amended, 12/18/2018; Ord. O2011-002, Amended, 03/01/2011; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)

11.10.160 Building moving.

Whenever any person shall have obtained permission from the city to use any street or right-of-way for the purpose of moving any building, a grantee, master permittee, lessee, or licensee, upon fifteen 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, master permittee’s, lessee’s, or licensee’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. O2018-025, Amended, 12/18/2018; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)

11.10.170 Removal of unauthorized facilities.

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

A. Upon expiration or termination of the grantee’s, master permittee’s, lessee’s, or licensee’s legal authorization for the system, facilities, or appurtenances except where the city and grantee, master permittee, lessee, or licensee are, in the reasonable discretion of the city, working in good faith to renew its authorization;

B. Upon abandonment of a facility within the right-of-way. Any property of a grantee, master permittee, lessee, or licensee shall be deemed abandoned if left in place ninety days after expiration or termination of an authorization, master permit, lease, or license, or if such facility ceases to be operational for a continuous period of at least six months;

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

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

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

Provided, however, that the city may allow in its sole discretion a grantee, master permittee, lessee, or licensee, or other such persons who may own, control, or maintain facilities within the right-of-way to abandon such facilities in place. No facilities of any type may be abandoned in place without the express written consent of the city. Any plan for abandonment or removal of a grantee’s, master permittee’s, lessee’s, or licensee’s facilities must be first approved by the director, and all necessary permits must be obtained prior to such work. Upon permanent abandonment of the property of such persons in place, the property shall become that of the city, and such persons shall submit to the city an instrument in writing, to be approved by the city attorney, transferring to the city the ownership of such property. The provisions of this section shall survive the expiration, revocation, or termination of an authorization, master permit, lease, or license granted under this title.

(Ord. O2018-025, Amended, 12/18/2018; Ord. O2011-002, Amended, 03/01/2011; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)

11.10.180 Emergency removal or relocation of facilities.

The city retains the right and privilege to remove, relocate, or shut down any facilities located within the right-of-way and upon city property, as the city may determine to be necessary, appropriate, or useful in response to any public health or safety emergency. The city shall not be liable to any service provider or any other party for any direct, indirect, or any other such damages suffered by any person or entity of any type as a direct or indirect result of the city’s actions under this section.

(Ord. O2018-025, Amended, 12/18/2018; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)

11.10.190 Damage to facilities.

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

(Ord. O2018-025, Amended, 12/18/2018; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)

11.10.200 Restoration of rights-of-way, other ways, and city property.

A. When a grantee, master permittee, lessee, licensee, or any person acting on its behalf does any work in or affecting any rights-of-way, 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, including compliance with the city’s development guidelines as applicable.

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

C. A grantee, master permittee, lessee, licensee, or other person acting in its behalf shall use suitable barricades, flags, flagmen, lights, flares, and other measures as required for the safety of all members of the general public and to prevent injury or damage to any person, vehicle, or property by reason of such work in or affecting such ways or property.

D. The director shall be responsible for inspection and final approval of the condition of the right-of-way, other ways, and city property following any construction and restoration activities therein. Further, the provisions of this section shall survive the expiration, revocation, or termination of an authorization, master permit, lease, license, or other agreement granted pursuant to this title.

(Ord. O2018-025, Amended, 12/18/2018; Ord. O2011-002, Amended, 03/01/2011; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)

11.10.210 Facilities maps.

Upon the written request of the public works director in the exercise of the city’s authority to manage rights-of-way and plan transportation and other public improvements to the right-of-way, each service provider occupying city rights-of-way shall provide the city with accurate maps identifying the location of the provider’s facilities located within a specific right-of-way in a form adequate for geographic information system usage. Such information shall include, at a minimum, the route, and the horizontal and vertical location of all facilities.

(Ord. O2018-025, Amended, 12/18/2018; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)

11.10.220 Duty to provide information.

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

A. That the grantee, master permittee, lessee, or licensee has complied with all requirements of this title; 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, master permittee, lessee, or licensee have been properly collected and paid by the grantee, master permittee, lessee, or licensee.

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

(Ord. O2018-025, Amended, 12/18/2018; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)

11.10.230 Leased capacity.

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

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

B. The receiving service provider has agreed, as part of its written agreement with the grantee, master permittee, or lessee that it must comply, to the extent applicable, with the requirements of this title, and the grantee, master permittee or lessee shall remain responsible to the city for any noncompliance of its sub-grantee, sub-permittee, or sub-lessee.

(Ord. O2018-025, Amended, 12/18/2018; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)

11.10.240 Insurance.

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

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

a. Three million dollars per occurrence;

b. Six million dollars aggregate.

2. Automobile liability for owned, nonowned, and hired vehicles with a combined single limit of $3,000,000;

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

4. There shall be no exclusion for liability arising from explosion, collapse, or underground property damage on the commercial general liability policy.

B. All insurance policies required in any authorization, master permit, lease, or license agreement shall be maintained by the grantee, master permittee, lessee, or licensee throughout the term of the authorization, master permit, lease, or license, and such other period of time during which the grantee, master permittee, lessee, or licensee is operating without an authorization, master permit, lease, or license hereunder, or is engaged in the removal of its facilities. The grantee, master permittee, lessee, or licensee shall provide an insurance certificate, together with an endorsement naming the city, and its elected and appointed officers, officials, agents, employees, representatives, engineers, consultants, and volunteers as additional insureds, to the city prior to the commencement of any work or installation of any facilities pursuant to said authorization, master permit, lease, or license. Any deductibles or self-insured retentions must be declared to and approved by the city. Payment of deductibles and self-insured retentions shall be the sole responsibility of the grantee, master permittee, lessee, or licensee. 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, master permittee’s, lessee’s, or licensee’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, master permittee’s, lessee’s, or licensee’s insurance and shall not contribute with it.

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

Failure on the part of the grantee, master permittee, lessee, or licensee to maintain the insurance as required shall constitute a material breach of contract, upon which the city may, after giving five business days’ notice to the grantee, master permittee, lessee, or licensee to correct the breach, immediately terminate the contract 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, or at the sole discretion of the City, offset against funds due the grantee, master permittee, lessee, or licensee from the City.

D. For those companies who are self-insured, they must provide documentation acceptable to the city demonstrating that the coverage provided meets or exceeds that described above.

(Ord. O2018-025, Amended, 12/18/2018; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)

11.10.250 General indemnification.

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

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

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

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

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

The provisions of this Section shall survive the expiration or termination of this authorization, master permit, lease, or license agreement.

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

(Ord. O2018-025, Amended, 12/18/2018; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)

11.10.260 Performance and construction surety.

Before an authorization, master permit, lease, or license granted pursuant to this title is effective, and as necessary thereafter, the grantee, master permittee, lessee, or licensee shall provide and deposit such monies, bonds, letters of credit, or other instruments in form and substance acceptable to the city as may be required by this title or by an applicable authorization, master permit, lease, or license agreement.

(Ord. O2018-025, Amended, 12/18/2018; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)

11.10.270 Security fund.

Each grantee, master permittee, lessee, or licensee shall establish a permanent security fund with the city by depositing the amount of $20,000, or such lesser amount as deemed appropriate by the director, with the city in cash, an unconditional letter of credit, or other instrument acceptable to the city, which fund shall be maintained at the sole expense of the grantee, master permittee, lessee, or licensee so long as any of the grantee’s, master permittee’s, lessee’s, or licensee’s facilities are located within the right-of-way or upon city property. Interest derived from a cash deposit shall accrue to the benefit of the grantee.

A. The fund shall serve as security for the full and complete performance of this chapter, including any costs, expenses, damages, or loss the city pays or incurs, including civil penalties, because of any failure attributable to the grantee, master permittee, lessee, or licensee to comply with the codes, ordinances, rules, regulations, or permits of the city.

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

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, master permittee’s, lessee’s, or licensee’s act or default;

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

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

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

C. Grantees, master permittees, lessees, and licensees shall replenish the security fund within fourteen days after written notice from the city that there is a deficiency in the amount of the fund. Upon grantee’s removal of all facilities from the right-of-way and expiration of the agreement, permits, and/or licenses, the city shall refund the balance remaining in this fund, including any accrued interest, to the grantee within sixty days of written notice by the grantee.

(Ord. O2018-025, Amended, 12/18/2018; Ord. O2011-002, Amended, 03/01/2011; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)

11.10.280 Restoration bond.

Unless otherwise provided in an authorization, master permit, lease, or license agreement, a performance bond written by a corporate surety acceptable to the city equal to at least one hundred percent of the estimated cost of removing the grantee’s, master permittee’s, lessee’s, or licensee’s facilities and restoring the right-of-way and/or city-owned property to its preconstruction condition shall be deposited before any construction is commenced. Said bond shall be required to remain in full force until two years after completion of the construction and/or improvements within the right-of-way or upon city-owned property, and shall warrant all such restoration work for a period of two years. The purpose of this bond is to guarantee removal of partially completed and/or nonconforming facilities and to fully restore the right-of-way and city-owned property to its preconstruction condition.

(Ord. O2018-025, Amended, 12/18/2018; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)

11.10.290 Coordination of construction activities.

All grantees, master permittees, lessees, and licensees are required to cooperate with the city and with each other.

A. Each grantee, master permittee, lessee, and licensee shall meet with the city, other grantees, master permittees, lessees, and licensees, and users of the right-of-way annually or as determined by the city to schedule and coordinate construction in the right-of-way.

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

(Ord. O2018-025, Amended, 12/18/2018; Ord. O2011-002, Amended, 03/01/2011; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)

11.10.320 Revocation or termination of grant.

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

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

B. Construction or operation at an unauthorized location;

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

D. Abandonment of facilities in the right-of-way or upon city property;

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

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

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

H. Violation of any material provision of this title; and

I. Violation of the material terms of an authorization, master permit, lease, or license agreement or any other provisions of the TMC.

(Ord. O2018-025, Amended, 12/18/2018; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)

11.10.330 Notice and duty to cure.

In the event that the city believes that grounds exist for revocation of an authorization, master permit, lease, or license, and unless different terms are contained within a grant, master permit, lease, or license, the grantee, master permittee, lessee, or licensee shall be given written notice of the apparent violation or noncompliance, providing a short and concise statement of the nature and general facts of the violation or noncompliance, and providing the grantee, master permittee, lessee, or licensee a reasonable period of time not exceeding thirty days to furnish evidence:

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

B. That rebuts the alleged violation or noncompliance; and

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

(Ord. O2018-025, Amended, 12/18/2018; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)

11.10.340 Hearing.

In the event that a grantee, master permittee, lessee, or licensee fails to provide evidence reasonably satisfactory to the city as provided in TMC 11.10.330, the city shall refer the apparent violation or noncompliance to a hearing examiner pursuant to TMC Chapter 2.58. The hearing examiner shall provide the grantee, master permittee, lessee, or licensee with notice and a reasonable opportunity to be heard concerning the matter.

(Ord. O2018-025, Amended, 12/18/2018; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)

11.10.350 Standards for revocation or lesser sanctions.

If the hearing examiner determines that a grantee, master permittee, lessee, or licensee willfully violated or failed to comply with any of the provisions of this title or an authorization, master permit, lease, or license granted under this title, or through willful misconduct or gross negligence failed to heed or comply with any notice given the grantee, master permittee, lessee, or licensee by the city under the provisions of this title, then the hearing examiner may, based upon evidence contained in the record of the hearing, determine that all rights conferred hereunder and the authorization, master permit, lease, or license may be revoked and the authorization, master permit, lease or license be terminated. The hearing examiner may alternatively determine the appropriate corrective actions and related sanctions, and impose the same on the grantee, master permittee, lessee, or licensee. The hearing examiner shall utilize the following factors in analyzing the nature, circumstances, extent, and gravity of the violation and in making its determination under this section:

A. Whether the misconduct was egregious;

B. Whether substantial harm resulted;

C. Whether the violation was intentional;

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

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

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

The city may elect, in lieu of the above and without any prejudice to any of its other legal rights and remedies, to pursue other remedies, including obtaining an order from the superior court having jurisdiction compelling the grantee, master permittee, lessee, or licensee to comply with the provisions of this title and any authorization, master permit, lease, or license granted hereunder, and to recover damages and costs incurred by the city by reason of the grantee’s, master permittee’s, lessee’s, or licensee’s failure to comply.

(Ord. O2018-025, Amended, 12/18/2018; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)

11.10.360 Incorporation by reference.

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

(Ord. O2018-025, Amended, 12/18/2018; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)

11.10.370 Notice of entry on private property.

If directed by the city, at least twenty-four hours prior to entering private property or streets or public easements adjacent to or on such private property to perform new construction or reconstruction, a notice indicating the nature and location of the work to be performed shall be physically posted, at no expense to the city, upon the affected property by the grantee, master permittee, lessee, or licensee. A door hanger may be used to comply with the notice and posting requirements of this section. A grantee, master permittee, lessee, or licensee 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, master permittee, lessee, or licensee to unlawfully enter or construct improvements upon the property or premises of another.

(Ord. O2018-025, Amended, 12/18/2018; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)

11.10.380 Safety requirements.

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

(Ord. O2018-025, Amended, 12/18/2018; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)

11.10.400 Relationship with WUTC proceedings.

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

(Ord. O2018-025, Amended, 12/18/2018; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)

11.10.410 Police power authority.

Nothing in this chapter or this title shall be interpreted to limit the authority of the city to regulate the placement of facilities through its local zoning or police power.

This chapter does not amend, limit, repeal, or otherwise modify the authority of the city to regulate cable services consistent with state and federal law.

(Ord. O2018-025, Amended, 12/18/2018; Ord. O97-021, Added, 07/21/1998)