Chapter 15.72 CONDITIONS FOR USE OF RIGHTS-OF-WAY

The terms of this chapter and Chapter 18.28 YMC, Engineering Specifications and Standard Details, shall apply to all grantees. (Ord. 999 § 1 (Exh. A), 2015).

15.72.020 General duties.

A. All grantees, before commencing any construction in the rights-of-way, shall comply with all requirements of the city of Yelm Municipal Code or other ordinances of the city.

B. All grantees shall have no ownership rights in rights-of-way, even though they may be granted a license, franchise or cable franchise to construct or operate their facilities. (Ord. 999 § 1 (Exh. A), 2015).

15.72.030 Interference with the rights-of-way.

No grantee may locate or maintain its telecommunications 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. All such facilities shall be moved by and at the expense of the grantee, temporarily or permanently, as determined by the city. (Ord. 999 § 1 (Exh. A), 2015).

15.72.040 Damage to property.

No grantee or any person acting on a grantee’s behalf shall take any action or permit any action to be done which may impair or damage any rights-of-way, or other property located in, on or adjacent thereto except in accordance with YMC 15.72.130. (Ord. 999 § 1 (Exh. A), 2015).

15.72.050 Notice of work.

Unless otherwise provided in a license or franchise agreement, 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. Any private property owner whose property will be affected by a grantee’s work shall be afforded the same notice. (Ord. 999 § 1 (Exh. A), 2015).

15.72.060 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 city public works director as promptly as possible before such repair or emergency work or as soon thereafter as possible if advance notice is not practicable. (Ord. 999 § 1 (Exh. A), 2015).

15.72.070 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. 999 § 1 (Exh. A), 2015).

15.72.080 Relocation or removal of facilities.

Within 60 days (or a longer period if mutually agreed upon by the grantee and administrator) following written notice from the city, a grantee shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any telecommunications facilities within the rights-of-way whenever the city administrator or designee 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 rights-of-way.

B. The operations of the city or other governmental entity in or upon the rights-of-way.

C. The vacation of a public street or the release of a utility easement. (Ord. 999 § 1 (Exh. A), 2015).

15.72.090 Removal of unauthorized facilities.

A. In its discretion, the administrator at any time may require any person who owns, controls or maintains any unauthorized telecommunications facility or cable facility or related appurtenances within the rights-of-way to:

1. Apply for a license, franchise or cable franchise within 30 days of receipt of written notice from the city to such person that such a license, franchise or cable franchise is required; or

2. Require such person to remove its facilities and restore the affected area within 90 days to a condition satisfactory to the city; or

3. Direct city personnel to remove the facilities and restore the affected area to a condition satisfactory to the city and charge the person the costs therefor, including by placing a lien on the person’s property; or

4. Take any other action authorized by applicable law.

B. A telecommunications facility or cable facility is unauthorized and subject to removal in the following circumstances:

1. Upon expiration or termination of the grantee’s license, franchise or cable franchise unless otherwise provided by law.

2. Upon abandonment of a facility within the rights-of-way. In certain situations facilities may be required to be abandoned in place for the preservation of the rights-of-way. In this case, the facilities would not be subject to removal.

3. If the facility was constructed or installed without the prior issuance of a required encroachment, utility or other permit.

4. If the facility was constructed or installed at a location not permitted by the grantee’s license, franchise or cable franchise.

5. To the extent permitted by law, any such other reasonable circumstances affecting public health, safety and welfare deemed necessary by the administrator.

C. Notwithstanding any other provision of this section, the administrator may, in its sole discretion, allow a grantee or other person who may own, control or maintain telecommunications facilities or cable facilities within the rights-of-way of the city of Yelm to abandon such facilities in place. No facilities of any type may be abandoned in place without the express written consent of the administrator. Any plan for abandonment or removal of such facilities must be first approved by the administrator and all necessary permits must be obtained prior to commencement of such work. Upon permanent abandonment of any telecommunications facilities or cable facilities of such persons in place, the facilities shall become the property of the city, and such persons shall submit to the administrator an instrument in writing, to be approved by the city attorney’s office, transferring ownership of such facilities to the city. The provisions of this section shall survive the expiration, revocation or termination of any license, franchise or cable franchise granted under this title. (Ord. 999 § 1 (Exh. A), 2015).

15.72.100 Failure to relocate.

If a grantee 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. 999 § 1 (Exh. A), 2015).

15.72.110 Emergency removal or relocation of facilities.

The city retains the right and privilege to cut or move any telecommunications 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. 999 § 1 (Exh. A), 2015).

15.72.120 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 telecommunications 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. State law requires that all utilities contact the utility underground locate service 48 hours prior to start of construction. (Ord. 999 § 1 (Exh. A), 2015).

15.72.130 Restoration of rights-of-way.

Restoration shall comply with the following:

A. When a grantee, or any person acting on its behalf, 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 which existed before the work was undertaken. As used in this section, “promptly” means as required by the city’s public works 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 shall temporarily restore the affected ways or property. Such temporary restoration shall be at the grantee’s sole expense and the grantee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration.

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

Upon request by the director, the grantee shall provide the city with maps, in a format agreed to by the grantee and the city, identifying the location of all telecommunications facilities and cable facilities within the rights-of-way except individual service connections. (Ord. 999 § 1 (Exh. A), 2015).

15.72.150 Duty to provide information.

Within 10 days of a written request from the administrator, each grantee shall furnish the administrator with information reasonably necessary to fulfill purposes of this title and sufficient to demonstrate:

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

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

C. That all books, records, maps and other documents maintained by the grantee with respect to its facilities within the rights-of-way have been made available for inspection by the administrator and the director at reasonable times and intervals. (Ord. 999 § 1 (Exh. A), 2015).

15.72.160 Grantee insurance.

Unless otherwise provided by a license, franchise, or cable franchise, before commencing construction in the rights-of-way, each grantee shall secure and maintain the following liability insurance policies:

A. Commercial general liability insurance, and, if necessary, umbrella liability insurance, which will cover bodily injury, property damage, and any other exposure which can be reasonably identified as potentially arising from the grantee’s activities within the rights-of-way. The limit of liability shall not be less than $2,000,000 each occurrence. The city, its elected and appointed officers, officials, employees, agents, and representatives shall be named as additional insureds with respect to activities occurring within its rights-of-way. Coverage shall be comprehensive with respect to the grantee’s activities within the rights-of-way and shall include completed operations, explosions, collapse, and underground hazards.

B. Business automobile liability insurance for owned, nonowned and hired vehicles with limits of not less than $2,000,000 per person, $3,000,000 per accident.

C. Workers’ compensation insurance as required by RCW Title 51 and employers’ liability coverage with a limit of not less than $1,000,000 per occurrence.

D. The insurance policies required by this section shall be maintained at all times by the grantee. Each liability policy shall be endorsed to require the insurer to notify the city at least 45 days before the policy can be canceled by either party, and to require notice of cancellation due to nonpayment of premium to be mailed to the administrator as well as the named insured. The grantee will be obligated to replace or renew the canceled or expiring policy and show proof in the form of a certificate of insurance at least 20 days before the expiration or cancellation of the existing policy(ies).

E. The grantee shall furnish the city with properly executed certificates of insurance or a signed policy endorsement which shall clearly evidence all insurance required in this section. The certificate will, at a minimum, list limits of liability, coverage, and all exclusions.

F. The grantee or its agent will provide a copy of any and all insurance policies specified in this title upon request of the administrator.

G. The insurance limits mandated for any insurance coverage required by this title are not intended to be an indication of limits of exposure nor are they limitations on liability or indemnification. (Ord. 999 § 1 (Exh. A), 2015).

15.72.170 Release, indemnity and hold harmless.

A. In addition to and distinct from the insurance requirements of this title, grantee releases and shall defend, indemnify and hold harmless city, its elected and appointed officers, officials, employees, agents, and representatives (collectively referred to as the “indemnities”) from any and all claims, losses, costs, liabilities, damages and expenses, including, but not limited to, those of the grantee’s lessees, and also including, but not limited to, reasonable attorneys’ fees (except those damages caused solely by the negligence of the indemnities) arising out of or in connection with the telecommunications facilities or cable facilities or installation of any telecommunications facilities or cable facilities, the performance of any work, the operation of any cable communications facilities or cable facilities, or the grantee’s system, or the acts or omissions of the grantee or any of its suppliers or contractors of any tier, or anyone acting on the grantee’s behalf in connection with said installation of telecommunications facilities or cable facilities, performance of work, or operation of the telecommunications facilities or cable facilities or grantee’s system.

B. Such indemnity, protection and hold harmless shall include any demand, claim, suit or judgment for damages to property or injury to or death of persons, including officers, agents, and employees of any person including payment made under or in connection with any workers’ compensation law or under any plan for employees’ disability and death benefits, which may arise out of or be caused or contributed to directly or indirectly by the erection, maintenance, presence, operation, use or removal of grantee’s telecommunications facilities or cable facilities or installations of telecommunications facilities or cable facilities including any claims or demands of customers of the grantee with respect thereto.

C. Indemnities shall not be liable to the grantee or to the grantee’s customers, and the grantee indemnifies, protects and saves harmless the indemnities against any and all such claims or demands, suit or judgment for loss, liability, damages and expense by the grantee’s customers, or for any interruption to the service of the grantee, or for interference with the operation of the telecommunications facilities or cable facilities.

D. To the fullest extent permitted by applicable law, the foregoing release, indemnity and hold harmless provisions shall apply to and be for the benefit of the indemnities.

E. All provisions of this section shall apply to the successors and assigns of the grantee. (Ord. 999 § 1 (Exh. A), 2015).

15.72.180 Security fund.

Before commencing construction or obtaining a license, franchise or cable franchise in the rights-of-way, each grantee shall establish a permanent security fund with the city by depositing the amount of up to $50,000 with the city in cash, an unconditional letter of credit, or other instrument acceptable to the city, which fund shall be maintained in the designated amount at the sole expense of grantee so long as any of grantee’s telecommunications facilities or cable facilities are located within the rights-of-way. This security fund shall be separate and distinct from any other bond, letter of credit or deposit required by a telecommunications franchise or cable franchise. If a grantee has telecommunications facilities or cable facilities in the rights-of-way for five consecutive years, the grantee may request the city to waive the requirement for a security fund. In addition, if, at the discretion of the council, an existing grantee is considered to be “in good standing” with the city, the security fund may be waived. This determination is made during the utility permit process as described in Chapter 18.12 YMC.

A. The fund shall serve as security for the full and complete performance of grantee’s obligations under this title, including any costs, expenses, damages or loss the city pays or incurs because of any failure attributable to the grantee to comply with the codes, ordinances, rules, regulations or permits of the city.

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

1. Describing the act, default or failure to be remedied, or the damages, cost or expenses which the city has incurred by reason of the grantee’s act or default;

2. Providing a reasonable opportunity for the grantee to first remedy the existing or ongoing default or failure;

3. Providing a reasonable opportunity for the grantee to pay any moneys due the city before the city withdraws the amount thereof from the security fund; and

4. That the grantee will be given an opportunity to review the act, default or failure described in the notice with the administrator.

C. Grantee shall replenish the security fund within 14 days after written notice from the administrator that there is a deficiency in the amount of the fund. (Ord. 999 § 1 (Exh. A), 2015).

15.72.190 Construction and completion bond.

Unless otherwise provided in a license or franchise agreement, a bond written by a surety acceptable to the city equal to at least 100 percent of the estimated cost of restoration of the rights-of-way shall be secured before a construction permit is issued. An annual bond may be approved by the director for numerous small line extension projects in lieu of an individual bond for each project.

A. The construction bond shall remain in force until 60 days after substantial completion of the work, as determined by the city administrator or designee, 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. The submission of as-built drawings after completion of the work 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. (Ord. 999 § 1 (Exh. A), 2015).

15.72.200 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 franchise or applicable law shall be performed at the grantee’s expense. (Ord. 999 § 1 (Exh. A), 2015).

15.72.210 Coordination of construction activities.

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

A. By February 1st of each year, grantee shall provide the city administrator or designee with a schedule of their planned construction activities which may affect the rights-of-way for that year.

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

C. All construction locations, activities and schedules shall be coordinated, as ordered by the city administrator or designee, to minimize public inconvenience, disruption or damages. (Ord. 999 § 1 (Exh. A), 2015).

15.72.220 Assignments or transfers.

Ownership or control of a license, franchise or cable franchise may not directly or indirectly be transferred, assigned or disposed of by sale, lease, merger or consolidation, by operation of law or otherwise, nor may there be a transfer of working control (which includes not only actual control, but also the ability to affect or influence decisions) without the prior written consent of the city, as expressed by ordinance and then on such conditions as may be prescribed therein and:

A. No grant with respect to a telecommunications service shall be assigned or transferred in any manner within 12 months after the initial grant of the license or franchise unless otherwise provided by law.

B. Absent extraordinary and unforeseeable circumstances and to the extent permitted by law, no grant with respect to a telecommunications service shall be assigned or transferred before construction of the telecommunications facilities have been completed.

C. The proposed assignee or transferee shall provide and certify the following information to the administrator:

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

2. All information required of a license, franchise or cable franchise applicant pursuant to this title with respect to the proposed transferee or assignee;

3. All information required by federal, state and local law or regulation, including, but not limited to, FCC Form 394;

4. Any other information reasonably required by the administrator.

D. No transfer shall be approved unless the assignee or transferee has the legal, technical, financial and other qualifications in the city’s reasonable discretion to own, hold and operate the telecommunications system pursuant to this title, and unless there is compliance with the license, franchise and cable franchise (as applicable).

E. The assignee or transferee shall reimburse the city for all direct and indirect fees, costs and expenses incurred by the city in considering a request to transfer ownership in or assign a license, franchise or cable franchise unless otherwise prohibited by law.

F. Any transfer of ownership in or assignment of a license, franchise or cable franchise without prior approval of the city under this title shall be void and is cause for revocation of the grant.

G. Upon receipt of all information required herein, and any other information reasonably required by the city, the city shall have 120 days to review and approve or deny the requested assignment or transfer. If the city is unable to approve or deny the requested assignment or transfer within such period, the city shall provide notice of the reasons for the delay and the period of time needed to complete its review, and such review period shall be extended to the extent permitted by law.

H. In addition to the other requirements herein, a copy of the transfer or assignment document, deed or other documentation deemed necessary by the city shall also be filed with the administrator within 10 days of any change in ownership or control.

I. Except as provided in YMC 15.72.230, city’s consent shall not be required for any assignment which is the result of a corporate merger, sale of all or substantially all of the corporate assets, sale of any or all of the corporate stock, consolidation or reorganization, whether voluntary or involuntary, or assignment to a subsidiary, parent, or affiliated company so long as such assignee or transferee is financially qualified and there are no outstanding issues of noncompliance under this title, a license, franchise or cable franchise. Nothing contained herein shall prevent or restrict an assignor’s, lessor’s, or person’s right to (1) mortgage its interest or (2) assign or lease to a third party fiber optic cables or telecommunication capacity (so long as it is for uses authorized by telecommunications franchises or cable franchises), and no consent shall be required for such mortgage, lease or assignment. Such assignors and lessors shall, however, be responsible for written notification to city of such assignment or lease due to those occurrences defined herein in which city’s consent is not required, and such notification shall include the appropriate names, address and contact points for the assignee or lessee. (Ord. 999 § 1 (Exh. A), 2015).

15.72.230 Transactions affecting control.

Franchisee shall promptly notify the city of any proposed change in, transfer of, or acquisition by any other party of control of franchisee. If beneficial ownership of 30 percent or more of the voting stock of franchisee, or of any parent company of franchisee, immediate or otherwise, or of any entity now owning or later acquiring such a beneficial interest, is acquired by a single entity or by several entities under common control, and if such entity or entities of common control is other than an organization that is more than 50 percent owned by franchisee, or a parent or affiliate of franchisee, then a change of control will be deemed to have taken place unless the city, upon request of franchisee, finds otherwise. Such change of control shall make this franchise subject to revocation unless and until the city shall have given written consent thereto. For the purpose of determining whether it will consent to such change, transfer, or acquisition of control, the city may inquire into qualifications of the prospective controlling party to perform the obligations of franchisee under this agreement. Franchisee shall assist the city in any such inquiry. Franchisee shall reimburse the city for all reasonable costs incurred in a change of control approval process. The city may condition its consent upon such reasonable terms and conditions as it deems appropriate. Consent to a change of control request shall not be unreasonably withheld. (Ord. 999 § 1 (Exh. A), 2015).

15.72.240 Revocation or termination.

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

A. Construction or operation at an unauthorized location;

B. Unauthorized transfer of control;

C. Unauthorized assignment of a license, franchise or cable franchise;

D. Misrepresentation in any application to the city;

E. Abandonment of telecommunications facilities or cable facilities in the rights-of-way;

F. Failure to relocate or remove telecommunications facilities or cable facilities as required in this title;

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

H. Insolvency or bankruptcy;

I. Violation of a provision of this title;

J. Violation of a term of a license, franchise or cable franchise. (Ord. 999 § 1 (Exh. A), 2015).

15.72.250 Notice and duty to cure.

In the event that the administrator believes that grounds exist for revocation of a license, franchise or cable franchise, written notice shall be given of the apparent violation or noncompliance, there shall be provided a short and concise statement of the nature and general facts of the violation or noncompliance, and there shall 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. 999 § 1 (Exh. A), 2015).

15.72.260 Hearing.

In the event that a grantee fails to provide evidence reasonably satisfactory to the administrator as provided hereunder, the administrator shall make a preliminary determination as to whether an event of default by grantee has occurred and initially prescribe remedies in accordance with YMC 15.72.270. In the event that a grantee wants to appeal such determination, it shall do so to the hearing examiner, as provided in YMC 18.10.100. (Ord. 999 § 1 (Exh. A), 2015).

15.72.270 Standards for revocation or lesser sanctions.

If persuaded that the grantee has violated or failed to comply with a provision of this title or of a license, franchise, cable franchise or applicable codes, ordinances, statutes, or rules and regulations, the administrator shall make a preliminary determination whether to revoke the license, franchise or cable franchise, and issue a written order, or to impose monetary damages, a penalty, or other such 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. 999 § 1 (Exh. A), 2015).