Chapter 23.30 CONDITIONS OF GRANT

A. All grantees and any other service providers, before commencing any construction in the rights-of-way, shall comply with all requirements of the University Place Municipal Code or other ordinances of the City.

B. All grantees shall provide written confirmation – sufficient for customary land survey and engineering purposes – regarding the location of their facilities in rights-of-way upon the request of the City Engineer in the performance of his duties of managing public rights-of-way and planning for public works improvements. No grantee may claim any interest in rights-of-way unless it has a license or franchise and a permit to construct or operate facilities.

(Ord. 360 § 1, 2002).

23.30.020 Interference with the rights-of-way.

No grantee may locate or maintain its facilities so as to unreasonably interfere with the use of the rights-of-way by the City, by the general public or other persons authorized to use or be present in or upon the rights-of-way. Unless otherwise provided by applicable law, tariff or franchise or license, all such facilities shall be moved by and at the expense of the grantee, temporarily or permanently, as determined by the City.

(Ord. 360 § 1, 2002).

23.30.030 Damage to property.

No grantee or any person acting on a grantee’s behalf shall impair or damage any rights-of-way, or other property located in, on or adjacent thereto except in accordance with UPMC 23.30.120.

(Ord. 360 § 1, 2002).

23.30.040 Notice of work.

Unless otherwise provided in a license, franchise agreement, or right-of-way permit, no grantee, or any person acting on the grantee’s behalf, shall commence any nonemergency work involving undergrounding, excavation or obstructing in or about the rights-of-way without five working days’ advance written notice to the City.

(Ord. 360 § 1, 2002).

23.30.050 Repair and emergency work.

In the event of an unexpected repair or emergency, a grantee may commence such repair and emergency response work as required under the circumstances; provided, the grantee shall notify the Community Development Director as promptly as possible, before such repair or emergency work or as soon thereafter as possible if advance notice is not practicable.

(Ord. 423 § 103, 2004; Ord. 360 § 1, 2002).

23.30.060 Maintenance of facilities.

Each grantee shall maintain its facilities in good and safe condition and in a manner that complies with all applicable Federal, State and local requirements.

(Ord. 360 § 1, 2002).

23.30.070 Relocation of authorized facilities.

The relocation of authorized telecommunications facilities is governed by State law. The Community Development Director shall give all necessary notices required by RCW 35.99.060.

(Ord. 423 § 104, 2004; Ord. 360 § 1, 2002).

23.30.080 Removal of unauthorized facilities.

Within 30 days following written notice from the City, or such other time period as may be required under applicable law, any grantee, telecommunications carrier, or other person that owns, controls or maintains any unauthorized telecommunications system, facility or related appurtenances within the rights-of-way shall, at its own expense, remove such facilities or appurtenances from the rights-of-way. If such grantee fails to remove such facilities or appurtenances, the City may cause the removal and charge the grantee for the costs incurred. A telecommunications system or facility is unauthorized and subject to removal in the following circumstances:

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

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

C. If the system or facility was constructed or installed without the prior grant of a license, permit, or franchise, unless the provider is exempt from licensing or franchising requirements.

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

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

F. Any such other reasonable circumstances affecting public health, safety and welfare deemed necessary by the Community Development Director.

(Ord. 423 § 105, 2004; Ord. 360 § 1, 2002).

23.30.090 Failure to relocate.

If a grantee or other telecommunications provider is required to relocate, change or alter the telecommunications facilities hereunder and fails to do so, the City may cause such to occur and charge the grantee for the costs incurred.

(Ord. 360 § 1, 2002).

23.30.100 Emergency removal or relocation of facilities.

The City retains the right and privilege to cut or move any facilities located within the rights-of-way as the City may determine to be necessary, appropriate or useful in response to any public health or safety emergency.

(Ord. 360 § 1, 2002).

23.30.110 Damage to grantee’s facilities.

Unless directly and proximately caused by the willful, intentional or malicious acts of the City, the City shall not be liable for any damage to or loss of any facility within the rights-of-way as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling, or work of any kind in the rights-of-way by or on behalf of the City.

(Ord. 360 § 1, 2002).

23.30.120 Restoration of rights-of-way.

Restoration shall comply with the following:

A. When a grantee, or any person acting on its behalf, or any other service provider, does any work in or affecting any rights-of-way, it shall, at its own expense, promptly remove any obstructions therefrom and restore such ways or property to the same condition that existed before the work was undertaken. As used in this section, “promptly” shall mean as required by the City’s Community Development Director in the reasonable exercise of the Director’s discretion.

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

C. A grantee or other person acting on its behalf, and any other telecommunications carrier or service provider, 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 rights-of-way.

(Ord. 423 § 106, 2004; Ord. 360 § 1, 2002).

23.30.130 Facilities maps.

Upon the written request of the City Engineer in the exercise of the City’s authority to manage rights-of-way and plan transportation and other public improvements to the right-of-way, each telecommunications carrier or 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 format adequate for Geographic Information System (GIS) usage.

(Ord. 360 § 1, 2002).

23.30.140 Duty to provide information.

Upon written request from the City Manager or designee, each grantee or other service provider occupying City rights-of-way shall furnish the City Manager or designee with information sufficient to demonstrate:

A. That provider has complied with all applicable requirements of this title; and

B. That all applicable taxes and fees due the City in connection with services provided have been properly collected and paid by the grantee.

(Ord. 360 § 1, 2002).

23.30.150 Leased capacity.

A grantee using City right-of-way shall have the right to offer or provide capacity or bandwidth to another service provider; provided, that:

A. To assist the City in collecting applicable taxes, grantee shall furnish the City with a copy of any lease or agreement within 60 days of the execution of the lease or agreement; and

B. The lessee or person shall comply with all of the requirements of this title if the lessee installs, constructs, or maintains facilities in City rights-of-way.

(Ord. 360 § 1, 2002).

23.30.160 Grantee insurance.

Unless otherwise provided by franchise or license, each grantee shall, as a condition of the grant, secure and maintain the following liability insurance policies insuring both the grantee and the City, and its elected and appointed officers, officials, agents, representatives and employees as additional insureds:

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

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

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

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

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

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

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

E. The liability insurance policies required by this section shall be maintained at all times by the grantee. Each such insurance policy shall contain the following endorsement:

It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew be stated until 90 days after receipt by the city, by registered mail, of a written notice addressed to the city manager of such intent to cancel or not to renew.

F. Within 60 days after receipt by the City of said notice, and in no event later than 30 days prior to said cancellation, the grantee shall obtain and furnish to the City replacement insurance policies meeting the requirements of this title.

(Ord. 360 § 1, 2002).

23.30.170 General indemnification.

In addition to and distinct from the insurance requirements of this title, each grantee hereby agrees to defend, indemnify and hold the City and its officers, officials, employees, agents and representatives harmless from and against any and all damages, losses and expenses, including reasonable attorneys’ fees and costs of suit or defense, arising out of, resulting from or alleged to arise out of or result from the acts, omissions, failure to act or misconduct of the grantee or its affiliates, officers, employees, agents, contractors or subcontractors in the construction, operation, maintenance, repair or removal of its facilities, and in providing or offering services over the facilities or network, whether such acts or omissions are authorized, allowed or prohibited by this title or by a grant agreement made or entered into pursuant to this title.

(Ord. 360 § 1, 2002).

23.30.180 Performance and financial guarantees.

Before a license or franchise granted pursuant to this title is effective, and as necessary thereafter, the grantee shall provide and deposit such monies, bonds, letters of credit or other instruments in form and substance acceptable to the City as may be required by this title, or by an applicable license or franchise agreement or other applicable code, ordinance or rules and regulations of the City.

(Ord. 360 § 1, 2002).

23.30.190 Construction and maintenance bond.

Unless otherwise provided in a license or franchise agreement, a bond written by a surety acceptable to the City equal to at least 125 percent of the estimated cost of repairing City rights-of-way to their pre-permit approval condition shall be required as a condition of approval for the issuance of any permit to any telecommunications carrier or service provider wishing to install facilities within rights-of-way.

A. The construction bond shall remain in force until 60 days after substantial completion of the work, as determined by the Community Development Director, including restoration of rights-of-way and other property affected by the construction.

B. The construction bond shall guarantee, to the satisfaction of the City:

1. Timely completion of construction;

2. Construction in compliance with applicable plans, permits, technical codes and standards;

3. Proper location of the facilities as specified by the City;

4. Restoration of the rights-of-way and other property affected by the construction;

5. Accurate information to the City Engineer about the location, depth, and size of the facilities as required by this title;

6. Timely payment and satisfaction of all claims, demands or liens for labor, material or services provided in connection with the work.

C. Upon release of the construction bond, the City shall retain a performance bond that guarantees the quality of the restoration of the roadway for a period of two years following the completion of any undergrounding work within rights-of-way.

(Ord. 423 § 107, 2004; Ord. 360 § 1, 2002).

23.30.200 Acts at grantee’s expense.

Any act that a grantee is or may be required to perform under this title, a license, franchise, or cable television franchise or applicable law shall be performed at the grantee’s expense.

(Ord. 360 § 1, 2002).

23.30.210 Coordination of construction activities.

All grantees are required to cooperate with the City and with each other as follows:

A. Upon reasonable notice, each grantee shall meet with the City, other grantees and users of the rights-of-way annually or as determined by the City to schedule and coordinate construction.

B. All construction locations, activities and schedules shall be coordinated, as ordered by the City Engineer in the exercise of his responsibility to manage public rights-of-way and plan public improvements, to minimize public inconvenience, disruption or damages.

(Ord. 360 § 1, 2002).

23.30.220 Revocation or termination of grant.

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

1. Construction or operation at an unauthorized location.

2. Misrepresentation or lack of candor by or on behalf of a grantee in any application to the City.

3. Abandonment of facilities in the rights-of-way.

4. Failure to relocate or remove facilities as required in this title or by applicable law.

5. Failure to pay taxes, compensation, fees or costs when and as due the City.

6. Demonstrated inability to carry out the terms of the franchise or license.

7. Violation of a material provision of this title.

8. Violation of a material term of a license or franchise.

B. Any revocation of a license or franchise may be appealed to the City’s Hearings Examiner who shall use the criteria found in subsection (A) of this section, UPMC 23.15.130 and 23.30.250 in determining whether to revoke a franchise or license. A stay of any order of revocation of a franchise or license shall automatically issue during the pendency of any appeal to a court of competent jurisdiction.

C. Unless otherwise provided by applicable law, the burden of proving by a preponderance of the evidence that one of the reasons enumerated in this section exists rests with the city.

(Ord. 360 § 1, 2002).

23.30.230 Notice and duty to cure.

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

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

B. That rebuts the alleged violation or noncompliance.

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

(Ord. 360 § 1, 2002).

23.30.240 Hearing.

In the event that a grantee fails to provide evidence reasonably satisfactory to the city manager as provided hereunder, the city manager shall refer the apparent violation or noncompliance to the city’s hearings examiner. The city shall provide the grantee with notice and a reasonable opportunity to be heard concerning the matter.

(Ord. 360 § 1, 2002).

23.30.250 Standards for revocation or lesser sanctions.

If persuaded by a preponderance of the evidence that grantee has violated or failed to comply with a material provision of this title or of a franchise or license or applicable codes, ordinances, statutes, or rules and regulations, the hearings examiner shall determine whether to revoke the license or franchise, and issue a written decision relating thereto, or to establish some monetary damages, penalty, lesser sanction and cure, considering the nature, circumstances, extent and gravity of the violation as reflected by one or more of the following factors:

A. Whether the misconduct was egregious.

B. Whether substantial harm resulted.

C. Whether the violation was intentional.

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

E. Whether there is a history of overall compliance.

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

(Ord. 360 § 1, 2002).