Chapter 12.50 TELECOMMUNICATIONS

B. Establish clear local guidelines, standards and time frames for the exercise of local authority with respect to the regulation of the public ways and city property;

C. Promote competition in telecommunications;

D. Minimize unnecessary local regulation of telecommunications providers;

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

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

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

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

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

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

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

L. Enable the City to discharge its public trust consistent with rapidly evolving federal and state regulatory policies, industry competition and technological development;

M. Grant and regulate franchises for systems of cable communications within the City, and on all public rights-of-way within its boundaries, as authorized by the federal Cable Act;

N. Set forth an integrated statement of the conditions, requirements, obligations and duties for the construction, maintenance and operation of a system of cable communications within the City. (Ord. 2249 § 1, 1999).

12.50.0020 Definitions.

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

“Access channels” means:

1. Channel capacity set aside by a cable operator for noncommercial public, educational, or governmental use (commonly referred to as “PEG” channels); and

2. Facilities and equipment for the use of such channel capacity.

“Addressability” means the ability of a cable system to allow the operator to authorize customer terminals to receive, change or cancel any or all specified programming by remote control from a remote location.

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

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

“Availability of service” means the ability of a cable television subscriber to obtain a service within 30 days by requesting the service and paying applicable installation and/or usage charges.

“Basic cable service” means that tier of cable television service which is required as a condition of access to all other video services and which includes but is not limited to:

1. The retransmission of local broadcast station signals;

2. Public, educational and government access channels; and

3. Any additional video programming signals and service added to the basic tier by a cable franchisee.

“Broadcast signal” means a television or radio signal that is transmitted over the air to a wide geographic audience and is received by the cable communications system off the air, whether by microwave link, by satellite receiver, or by other means.

“Cable Act” shall mean the Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992, and the Telecommunications Reform Act of 1996, all codified at 47 U.S.C. 521, et seq., as now and hereafter amended.

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

“Cable operator” means a telecommunications carrier or any other person providing or offering to provide cable service within the City.

“Cable service” means:

1. The one-way transmission to subscribers of

a. Video programming; or

b. Other programming service; and

2. Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

“Cable system” means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service and other service to subscribers, but such term does not include:

1. A facility that serves only to retransmit the television signals of one or more television broadcast stations;

2. A facility that serves subscribers without using any public right-of-way;

3. A facility of a common carrier which is subject, in whole or in part, to the provisions of Title 11 of the Communications Act of 1934, as amended, except that such facilities shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services;

4. An open video system that complies with 47 U.S.C. 573 as now existing or hereafter amended; or

5. Any facilities of any electric utility used solely for operating its electric utility system.

“Cablecast” means the distribution of programming which originates within the facilities of the cable television system.

“Channel” or “cable channel” means a portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television signal as defined by the Federal Communications Commission.

“Character generator” means a device used to generate alpha numerical programming to be cablecast on a cable channel.

“City” means the City of Issaquah, Washington in King County, and all the territory within the corporate boundaries of Issaquah as these may change from time to time.

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

“Commercial subscriber” means a subscriber receiving cable services in a business or other commercial enterprise, where the services are to be used primarily in conjunction with the enterprise and the rates for services are individually negotiated with the subscriber.

“Community access services” means services provided on any public, educational or government access channel.

“Converter” means a device for changing the frequency of a television signal.

“Council” means the City Council of the City of Issaquah, Washington.

“CTC” means the City of Issaquah Cable Television Commission.

“Data communication” means:

1. The transmission of encoded information; or

2. The transmission of data from one point to another.

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

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

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

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

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

“Gross revenues” means any and all revenues received by a cable operator, or any affiliate of the operator, or any entity that constitutes a cable operator under the cable act, in whatever form and from all sources, derived from the operation of a cable system to provide cable services within the City. “Gross revenues” shall include, without limitation, amounts for all cable services, including basic services, premium services, interactive services, advertising, commissions on sales of goods or services by third parties utilizing a cable system (e.g., home shopping networks), installations, leasing, renting or selling of system capacity, and all other revenues derived from the operation of a cable system related to the provision of cable services, regardless of whether initially recorded to another entity and however characterized. Subject to the limits and restrictions of federal and state law, copyright fees paid by an operator or any affiliate shall not be excluded from gross revenues. Gross revenues, however, shall not be double counted. Revenues of both an operator and an affiliate that represent a transfer of funds between the operator and the affiliate, and that would otherwise constitute gross revenues of both the operator and the affiliate, shall be counted only once for purposes of determining gross revenues.

Gross revenues shall not include:

1. Fees and payments from subscribers who do not live in the City;

2. Taxes on services furnished by an operator, which are imposed on any subscriber or used by any governmental unit, agency or instrumentality and which are collected by a franchisee for such entity;

3. Bad debt write-offs;

4. Revenue from the sale of equipment or other assets of the cable system to persons not purchasing services from the cable system; and

5. Revenue from transactions involving real property owned or leased by the franchisee.

“Headend” means the electronic equipment located at the start of a cable system, usually including antennas, preamplifiers, frequency converters, demodulators and related equipment.

“Installation” means the connection of the cable system from feeder cable to subscribers’ receivers or terminals.

“Institutional networks (I-Nets)” means that portion of a cable system which is designated principally for the provision of interactive, nonentertainment services to public schools, or public agencies such as public libraries separate and distinct from the subscriber network, or on secured channels of the subscriber network.

“Institutional service” means video, audio, data and other services provided to institutional subscribers on an individual application, private channel basis. These services may include, but are not limited to, two-way video, audio or digital signals among institutions, or between institutions and residential subscribers.

“Institutional subscriber” means a public agency, school or City-sponsored nonprofit corporation receiving institutional services on the institutional subscriber network.

“Interactive services” means services provided to subscribers where the subscriber either:

1. Both receives information consisting of either television or other signals and transmits signals generated by the subscriber or equipment under his/her control for the purpose of selecting what information shall be transmitted to the subscriber or for any other purpose; or

2. Transmits signals to any other location for any purpose.

“Leased channel” means any channel or portion of a channel available for programming by persons or entities other than a cable operator for a fee or charge.

“Non-broadcast signal” means a signal that is transmitted by a cable system and that is not involved in an over-the-air broadcast transmission path.

“Office” means the person or entity designated by the City as being responsible for the administration of a franchise for the City.

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

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

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

“Pay service” or “premium service” means a service in which television signals are delivered to subscribers for a special fee or charge over and above the regular charges for standard subscriber service, on a per program, per channel, or other subscription basis.

“Programmer” means any person or entity who or which produces or otherwise provides program material or information for transmission by video, audio, digital or other storage methods or media, to subscribers, by means of a cable system.

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

“Proposal” means the response, by an individual or organization, to a request by the City regarding the provision of cable services; or an unsolicited plan submitted by an individual or organization seeking to provide cable services in the City.

“Public way” means and includes any highway, street, alley, utility easement, or other public right-of-way for motor vehicle travel under the jurisdiction and control of the City which has been acquired, established, dedicated or devoted to highway purposes now or hereafter owned by the City, but only to the extent of the City’s right, title, interest or authority to grant a license or franchise to occupy and the same for telecommunications facilities.

“Record” means written or graphic materials, however produced or reproduced, or any other tangible permanent record, including, without limitation, all letters, correspondence, memoranda, minutes, notes, summaries or accounts of telephone conversations, opinions or reports of consultants or experts, invoices, billings, statements of accounts, studies, appraisals, analyses, contracts, agreements, charts, graphs, magnetic and laser disk files, and photographs.

“Resident” means any natural person residing within the City.

“Residential service” means services delivered on the residential subscriber network of a cable system.

“Residential subscriber” means a person who receives cable services on the residential subscriber network.

“Residential subscriber network” means a cable communications network designed principally for the delivery of entertainment, community access or interactive services to individual dwelling units. Businesses and other subscribers may also receive such services on the residential subscriber network.

“State” means the state of Washington.

“Subscriber” means a person, entity, or user of a cable system who lawfully receives cable services or other service therefrom with express permission from a cable operator.

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

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

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

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

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

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

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

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

“Year” means a full twelve-month calendar year, unless designated otherwise, such as a “fiscal year.” (Ord. 2249 § 1, 1999).

12.50.0030 Business and utility occupation licenses required.

All cable operators, telecommunications carriers, and telecommunications providers engaged in the business of transmitting, supplying or furnishing of cable service or telecommunications service originating or terminating in the City shall apply for and obtain a business license pursuant to Chapter 5.02 IMC, a utility occupation license pursuant to Chapter 5.32 IMC, and pay all license fees, business and occupation taxes, and occupation taxes related thereto. (Ord. 2249 § 1, 1999).

12.50.0040 Telecommunications right-of-way use permit required.

Any telecommunications carrier who desires to construct, install, operate, maintain, or otherwise locate telecommunications facilities in, under, over or across any public way of the City for the purpose of providing telecommunications service to persons and areas within or outside the City shall first obtain a telecommunications right-of-way use permit granting the use of such public ways from the City pursuant to Article II of this chapter. (Ord. 2249 § 1, 1999).

12.50.0050 Telecommunications franchise required.

Any telecommunications carrier who desires to construct, install, operate, maintain or otherwise locate wireless telecommunications facilities in, under, over or across any public way of the City shall first obtain a franchise granting the use of such public ways from the City pursuant to Article III of this chapter. (Ord. 2249 § 1, 1999).

12.50.0060 Cable television franchise required.

Any telecommunications carrier or other person who desires to construct, install, operate, maintain or locate cable or telecommunications facilities in any public way in the City for the purpose of providing cable service to persons in the City shall first obtain a cable franchise from the City pursuant to Article IV of this chapter. (Ord. 2249 § 1, 1999).

12.50.0070 Facilities lease required.

No telecommunications carrier or other entity who desires to construct or erect telecommunications or other equipment on City property shall locate such facilities or equipment on City property unless granted a facilities lease from the City. The City Council reserves unto itself the sole discretion to lease City property for telecommunications and other facilities, and no vested or other right shall be created by this section or any provision of this chapter applicable to such facilities leases. (Ord. 2249 § 1, 1999).

12.50.0080 Construction permits required.

The holder of a permit or franchise granted pursuant this chapter shall, in addition to said permit or franchise, be required to obtain a construction permit from the City pursuant to Article VI of this chapter. No work, construction, development, excavation, or installation of any equipment or facilities shall take place within the public ways until such time as the construction permit is issued. (Ord. 2249 § 1, 1999).

12.50.0090 Application to existing franchise ordinances, agreements, leases, and permits – Effect of other laws.

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

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

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

B. Nothing in this chapter shall be deemed to create an obligation upon any person for which the City is forbidden to require a permit, license, or franchise by federal, state, or other law. (Ord. 2249 § 1, 1999).

12.50.0100 General penalties.

A. Civil Penalty.

1. Any person, and the officers, directors, managing agents, or partners of any corporation, firm, partnership or other organization or business violating or failing to comply with any of the provisions of this chapter shall be subject to a cumulative penalty in the amount of $250.00 per day for each violation from the date set for compliance until compliance with the order is achieved.

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

3. The penalty imposed by this section shall be collected by civil action brought in the name of the City. The Public Works Director shall notify the City Attorney in writing of the name of any person subject to the penalty, and the City Attorney shall, with the assistance of the Public Works Director, take appropriate action to collect the penalty.

4. The violator may show as full or partial mitigation of liability:

a. That the violation giving rise to the action was caused by the willful act, or neglect, or abuse of another; or

b. That correction of the violation was commenced promptly upon receipt of the notice thereof, but that full compliance with the time specified was prevented by inability to obtain necessary materials or labor, inability to gain access to the subject structure, or other condition or circumstance beyond the control of the violator.

B. Criminal Penalties.

1. Any person, and the officers, directors, managing agents, or partners of any corporation, firm, partnership or other organization or business violating or failing to comply with any of the applicable provisions of this chapter and who has had a judgment entered against him or her pursuant to subsection (A)(3) of this section or its predecessors within the past 5 years shall be subject to criminal prosecution and upon conviction of a subsequent violation shall be fined in a sum not exceeding $5,000 or be imprisoned for a term not exceeding 1 year or be both fined and imprisoned. Each day of noncompliance with any of the applicable provisions of the chapter shall constitute a separate offense.

2. The above criminal penalty may also be imposed:

a. For any other violation of this chapter for which corrective action is not possible;

b. For any willful, intentional, or bad faith failure or refusal to comply with the standards or requirements of this chapter; and

c. For any violation of a stop work or other order issued pursuant to this chapter.

3. In addition to any criminal penalty which may be imposed by the City, a violator may also be liable for damages and costs of restoration described in subsection A of this section.

C. Additional Relief. The City may seek legal or equitable relief to enjoin any acts or practices and abate any condition which constitutes or will constitute a violation of the applicable provisions of this chapter or any authorization, permit, franchise, or lease granted hereunder. In addition to the penalties set forth in this section, violation of the terms of this chapter may also result in the revocation of any permits, authorization, or franchise issued or granted as set forth in this chapter. (Ord. 2249 § 1, 1999).

12.50.0110 Other remedies.

Nothing in this chapter shall be construed as limiting any judicial remedies that the City may have, at law or in equity, for enforcement of this chapter. All penalties and other remedies set forth in this chapter are in addition to any enforcement provisions set forth in any authorization, permit, franchise, or lease granted by the City. (Ord. 2249 § 1, 1999).

Article II. Telecommunications
Right-of-Way Use Permits

12.50.0150 Telecommunications right-of-way use permit.

A telecommunications right-of-way permit shall be required of any telecommunications carrier who desires to occupy specific public ways of the City for the purpose of providing telecommunications services to persons or areas within or outside the City. (Ord. 2249 § 1, 1999).

12.50.0160 Telecommunications right‑of‑way use permit application.

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

A. The identity of the applicant, including all affiliates of the applicant.

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

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

D. Preliminary engineering plans, specifications and a network map of the facilities to be located within the City, all in sufficient detail to identify:

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

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

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

4. The specific trees, structures, improvements, facilities and obstructions, if to temporarily or permanently remove or relocate.

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

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

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

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

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

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

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

H. A preliminary construction schedule and completion date.

I. A preliminary traffic control plan in accordance with the City’s adopted street standards.

J. Information to establish that the applicant has obtained all other governmental approvals and permits to construct and operate the facilities, and to offer or provide the telecommunications services.

K. An application fee as provided in Chapter 3.65 IMC. (Ord. 2249 § 1, 1999).

12.50.0170 Issuance/denial of telecommunications right‑of‑way use permit.

A. Within 120 days after receiving a complete application under IMC 12.50.0160 hereof, the City shall issue a written determination granting or denying the permit in whole or in part. The Public Works Director shall make a decision to grant or deny a permit under this article based upon the following standards. If the permit is denied, the written determination shall include the reason(s) for denial.

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

2. The capacity of the public ways to accommodate additional utility, cable, and telecommunications facilities if the permit is granted.

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

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

5. The effect, if any, on public health, safety and welfare if the permit is granted.

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

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

8. Such other factors as may demonstrate that the grant to use the public ways will serve the community interest.

B. Any person aggrieved by the approval, denial, suspension, or revocation of a permit or approval by the Public Works Director pursuant to this chapter may appeal to the City Council as follows:

1. All appeals must be filed in writing with the Director within 10 working days of the date of the decision appealed from and accompanied by a fee as provided in Chapter 3.65 IMC;

2. All appeals shall specify the error of law or fact, or new evidence which could not have been reasonably available at the time of the Director’s decision, which shall constitute the basis of the appeal;

3. The Director shall advise the City Council of the pendency of the appeal and request that a date for considering the appeal be established;

4. Unless substantial relevant information is presented which was not considered by the Director, such decision shall be accorded substantial weight, but may be reversed or modified by the City Council if, after considering all of the evidence in light of the applicable goals, policies, and provisions of this chapter, the City Council determines that a mistake has been made. Where substantial new relevant information is presented, the City Council shall make its decision only upon the basis of the facts presented at the hearing of the appeal, or may elect to remand the matter for reconsideration by the Director in light of the additional information;

5. For all appeals decided pursuant to this section, the City shall provide for a record that shall consist of written findings and conclusions and a taped or written transcript;

6. Unless otherwise provided by state statute or other law, all actions seeking review of a final action of the City, whether in the form of an appeal, declaratory judgment action, petition for writ of review, or other extraordinary writ, or in any other form shall be filed with a court having jurisdiction over such action within 14 working days of the decision, and otherwise shall be barred; and

7. No action to obtain judicial review shall be commenced unless all rights of appeal provided by this section are fully exhausted. The cost of transcription of all records ordered certified by the court for such review shall be borne by the party seeking such review. A copy of each transcript prepared by such party shall be submitted to the City for confirmation of its accuracy. (Ord. 2249 § 1, 1999).

12.50.0180 Term of telecommunications right-of-way use permit.

Unless otherwise specified in a permit, a permit granted hereunder shall be in effect for a term of 5 years. (Ord. 2249 § 1, 1999).

12.50.0190 Compensation to the City.

Each permit granted pursuant to this article is subject to the City’s right, which is expressly reserved, to annually fix a fair and reasonable compensation to be paid for the right to occupy and use the public ways of the City granted under such permit; provided, nothing in this chapter shall prohibit the City and a permittee from agreeing to the compensation to be paid. Further, the compensation required from any telecommunications provider or carrier engaged in the “telephone business,” as defined in RCW 82.04.065 shall be consistent with RCW 35.21.860. (Ord. 2249 § 1, 1999).

12.50.0200 Amendment of permit.

Unless granted City-wide approval, a new permit application shall be required of any telecommunications carrier that desires to extend or locate its telecommunications facilities in public ways of the City which are not included in a permit previously granted under this chapter. If ordered by the City to locate or relocate its telecommunications facilities in public ways not included in a previously granted license, the City shall grant a permit amendment without further application. (Ord. 2249 § 1, 1999).

12.50.0210 Designated routes.

An applicant may request authority for use of specific public ways or all public ways within the City. In the event that an applicant is granted City-wide approval, the applicant’s right to use and occupy public ways shall be limited to those public ways initially identified by the applicant. Use of additional public ways may be approved by the Public Works Director, through the construction permit process in Article VI of this chapter; provided, however, that in addition to any other standards contained within said article, the Public Works Director shall apply the standards set forth in IMC 12.50.0170 to such determinations. (Ord. 2249 § 1, 1999).

12.50.0220 Renewal of telecommunications right-of-way use permit.

A permittee that desires to renew its permit under this article shall, not more than 180 days nor less than 90 days before expiration of the current permit, file an application with the City for renewal of its permit which shall include the following:

A. The information required pursuant to IMC 12.50.0160.

B. Any information required pursuant to the permit agreement between the City and the permittee.

C. An application fee as provided in Chapter 3.65 IMC. (Ord. 2249 § 1, 1999).

12.50.0230 Standards for renewal of permits.

Within 90 days after receiving a complete application for permit renewal, the City shall issue a written determination granting or denying the renewal application in whole or in part. Prior to granting or denying the renewal of a permit under this article, the Public Works Director shall make a decision based upon the following standards. If the renewal application is denied, the written determination shall include the reasons for nonrenewal.

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

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

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

D. Such other factors as may demonstrate that the continued grant to use the public ways will serve the community interest. (Ord. 2249 § 1, 1999).

12.50.0240 Obligation to cure as a condition of renewal.

No permit shall be renewed until any ongoing violations or defaults in the permittee’s performance of the permit, or of the requirements of this chapter, have been cured, or a plan detailing the corrective action to be taken by the permittee has been approved by the City. (Ord. 2249 § 1, 1999).

Article III. Telecommunications Franchise

12.50.0250 Telecommunications franchise.

A telecommunications franchise shall be required of any telecommunications carrier or other person who desires to install wireless telecommunications facilities with the public ways of the City and to provide wireless telecommunications services to any person or area within or outside the City. (Ord. 2249 § 1, 1999).

12.50.0260 Franchise application.

Any person that desires a telecommunications franchise pursuant to this chapter shall file an application with the City which shall in addition to the materials set forth in IMC 12.50.0160, include the following:

A. An accurate map showing the location of any existing facilities in the City that the applicant intends to use or lease.

B. The area or areas of the City the applicant desires to serve and a schedule for build-out to the entire service area.

C. Such other and further information as may be requested by the Public Works Director.

D. An application fee as provided in Chapter 3.65 IMC. (Ord. 2249 § 1, 1999).

12.50.0270 Determination by the City.

Within 120 days after receiving a complete application under IMC 12.50.0260 hereof, the City shall issue a written determination granting or denying the application in whole or in part. Prior to granting or denying a franchise under this article, the City Council shall conduct a public hearing and make a decision based upon the standards set forth below. Pursuant to RCW 35A.47.040, the City Council shall not approve any franchise hereunder until the next regularly scheduled Council meeting following its initial introduction. If the application is denied, the written determination shall include the reason for denial.

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

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

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

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

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

F. The availability of alternate routes and/or locations for the proposed activities.

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

H. Such other factors as may demonstrate that the grant to use the public ways will serve the community interest.

I. That the requirements of RCW 35A.47.040 have been complied with.

J. The consistency of the proposal with applicable regulations set forth in the City’s zoning code and the policies set forth in the City’s Comprehensive Plan. (Ord. 2249 § 1, 1999).

12.50.0280 Terms of franchise grant.

Unless otherwise specified in a franchise agreement, a telecommunications franchise granted hereunder shall be valid for a term of 5 years. (Ord. 2249 § 1, 1999).

12.50.0290 Compensation to the City.

Each franchise granted under this article is subject to the City’s right, which is expressly reserved, to annually fix a fair and reasonable compensation to be paid for the franchise rights granted to the franchisee; provided, nothing in this chapter shall prohibit the City and a franchisee from agreeing to the compensation to be paid. Further, the compensation required from any telecommunications provider or carrier engaged in the “telephone business,” as defined in RCW 82.04.065 shall be consistent with RCW 35.21.860. (Ord. 2249 § 1, 1999).

12.50.0300 Nondiscrimination.

A franchisee which purports to serve the general public shall make its telecommunications services available to any customer within its franchise area who shall request such service, without discrimination as to the terms, conditions, rates or charges for the franchisee’s services; provided, however, that nothing in this chapter shall prohibit a franchisee from making any reasonable classifications among differently situated customers. (Ord. 2249 § 1, 1999).

12.50.0310 Amendment of franchise grant.

A new franchise application and grant shall be required of any telecommunications carrier that desires to amend the terms and conditions of its existing franchise, to locate its telecommunications facilities in public ways of the City which are not included in a franchise previously granted under this article, or to substantially modify or expand the facilities permitted by such a franchise. If ordered by the City to locate or relocate its telecommunications facilities in public ways not included in a previously granted franchise, the City shall grant a franchise amendment without further application. (Ord. 2249 § 1, 1999).

12.50.0320 Renewal application.

A franchisee that desires to renew its franchise under this chapter shall, not more than 180 days nor less than 120 days before expiration of the current franchise, file an application with the City for renewal of its franchise which shall include the following:

A. The information required pursuant to IMC 12.50.0260.

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

C. An application fee as provided in Chapter 3.65 IMC. (Ord. 2249 § 1, 1999).

12.50.0330 Renewal determination.

Within 120 days after receiving a complete application for renewal under IMC 12.50.0320, the City shall issue a written determination granting or denying the renewal application in whole or in part. Prior to granting or denying a franchise renewal under this article, the City Council shall conduct a public hearing and make a decision based upon the standards set forth below. Pursuant to RCW 35A.47.040, the City Council shall not approve any franchise hereunder until the next regularly scheduled Council meeting following its introduction. If the renewal application is denied, the written determination shall include the reasons for nonrenewal.

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

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

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

D. Such other factors as may demonstrate that the continued grant to use the public ways will serve the community interest. (Ord. 2249 § 1, 1999).

12.50.0340 Obligation to cure as a condition of renewal.

No franchise shall be renewed until any ongoing violations or defaults in the franchisee’s performance of the franchise agreement, or of the requirements of this chapter, have been cured, or a plan detailing the corrective action to be taken by the franchisee has been approved by the City. (Ord. 2249 § 1, 1999).

Article IV. Cable Television Franchise

12.50.0350 Cable television franchise.

A cable television franchise shall be required of any telecommunications carrier, cable operator, or other person who desires to occupy the public ways of the City and to provide cable service to any person or area in the City. The City shall regulate the operations of each cable operator (hereinafter “operator”) under this chapter, under a franchise, and under such additional federal, state and local laws, rules, and regulations as the City shall have authority to enforce. For purposes of carrying out its regulatory authority, the City has established the Cable Television Commission (CTC), and specified the purpose, membership, rules, staff support, and duties of the CTC, by Ordinance No. 1600, as said ordinance presently exists, or is amended in the future. (Ord. 2249 § 1, 1999).

12.50.0360 Application for franchise.

Each application for the granting or renewal of a franchise to construct, operate or maintain any cable communications system within public ways of the City shall be filed with the City Clerk in a form approved by the Mayor. Applicants for new franchises shall contain the following information:

A. Applicant’s Statement of Business Organization and Financial Plans. Each applicant shall provide a detailed statement of its business organization, including the following:

1. The name and address of the applicant; and the names, and business addresses of all officers and directors of the applicant;

2. The names and addresses of all persons having control of, or being entitled to have or control, 5 percent or more of the ownership of the applicant, either directly or indirectly, and the respective ownership share of each person;

3. The names and addresses of any parent or subsidiary of the applicant (i.e., any other business entity owning or controlling the applicant in whole or in part or owned and controlled in whole or in part by the applicant) and a statement describing the nature of any such parent or subsidiary business entity;

4. A detailed description of all previous experience of the applicant in providing cable television and related telecommunications services;

5. A statement identifying all cable television systems owned or controlled by the applicant, its parent(s) and subsidiary(ies), the number of subscribers in each system, the local jurisdiction having regulatory authority over the system, the status of each system with respect to completion of construction, the total cost of completion of each system and the extent of the resources of the applicant, its parent(s) and subsidiary(ies) committed to completion;

6. A detailed and complete financial statement of the applicant and each parent entity, for the current year and previous 4 years, showing the resources required to construct and/or operate the proposed system;

7. A statement of the estimated cost of constructing the proposed system, and a detailed financing plan for the system, including but not limited to evidence of the availability of all debt and equity funding required for the system;

8. Detailed and complete pro forma financial projections covering a minimum of 12 years for the proposed operation of the system; and

9. An organizational chart showing the relationships between the applicant and each parent and subsidiary entity involved in the provision of cable television service.

B. Each applicant shall provide a detailed plan of its operation, identifying whether the operation will be carried out by the applicant or any affiliate of the applicant, which shall include:

1. A description and detailed map of the franchise area proposed to be served and a proposed time schedule for installation in each neighborhood or portion of the area;

2. A statement or schedule setting forth all proposed classifications of rates and charges of any kind to be made against subscribers;

3. A description of the equipment to be utilized and operational standards to be met as proposed by the applicant;

4. A statement that the applicant is willing and able to comply with all relevant federal, state and local regulations regarding cable communications and other applicable rules and regulations. If there have been any fines or penalties incurred by the applicant for the violation of such regulations within the 5 years previous to the application, these violations shall be reported in the statement;

5. A description of all proposed one-way and two-way voice, video and data services, including all services to be offered to residential and commercial subscribers, and all means of providing for the public, educational and government use of the cable system;

6. A detailed statement setting forth in its entirety any and all agreements and undertakings, whether formal or informal, written, oral or implied, existing or proposed to exist between the applicant and any person, firm or corporation which materially relate or pertain to or depend upon the application and the granting of the franchise;

7. A copy of any agreement existing between the applicant and any public utility subject to regulation by Washington Public Utilities Commission, providing for the use of any facilities of the public utility, including but not limited to poles, lines or conduits, within the City or adjacent areas;

8. A statement of the extent to which and by what technical means the applicant proposes to link its network to other wire or wireless networks serving the City to provide voice, video and data services.

C. The applicant shall supply any additional information related to the application as shall be requested by the City.

D. The applicant shall include an application fee, as provided by IMC 3.65.040. (Ord. 2249 § 1, 1999).

12.50.0370 Length of franchise term.

Each new franchise granted by the City under this article shall be for a term set in the franchise, and shall be for no more than 15 years from the date of acceptance by the cable operator. (Ord. 2249 § 1, 1999).

12.50.0380 Promoting competition.

In order to increase the number of cable operators in the City and encourage competition, the City may at its option, and in consideration of the implications of the action; reduce, waive or modify the requirements of various sections. Sections that may be reduced, waived or modified include, but are not limited to: IMC 12.50.0360, Application for franchise; 12.50.0470, Extension of service to residents, organization, businesses; 12.50.0480, Extension of service upon annexation and to new development; 12.50.0510, Service to public buildings; 12.50.0520, Government service –Public, educational and government use of system; and 12.50.0640, Security fund, performance bond, sanctions, penalties and enforcement. Any such reductions, waivers or modifications of these or other sections shall be identified and approved in the individual franchise executed between the City and an operator. (Ord. 2249 § 1, 1999).

12.50.0390 Franchise termination for noncompliance.

A. The City Council, upon the recommendation of the Cable Television Commission (“CTC”) shall have the right to terminate a franchise if the operator fails to comply with any provision of this article, a franchise, the rules and regulations of the FCC, or any reasonable order, direction or permit issued by the City. Without limiting the foregoing, system failure which includes loss of either video or audio signal to more than one subscriber in all or a part of the system shall constitute failure to comply with this article if such failure continues for 10 or more periods of 6 consecutive hours during any period of 365 consecutive days, unless such failure is the result of activities approved in advance by the City, or the result of acts of God or matters beyond the reasonable control of the operator which the operator cannot overcome using its best efforts. For purposes of this section, system failure shall include, but not be limited to, failure of the cable system to conform to the technical specifications of the FCC as amended from time to time.

B. The City may also terminate the franchise if any of the following circumstances occur:

1. The cable operator’s completion of system initial construction, upgrade or rebuild, as required by a franchise, is delayed for more than 18 months from the completion date identified in a construction schedule approved by the City or such shorter period as may be specified in a franchise; or

2. The cable operator or any parent company of the cable operator becomes insolvent, unable or unwilling to pay its debts, or is adjudged a bankrupt; or

3. The cable operator is found to have engaged in any actual or attempted criminal fraud or deceit upon the City, persons or subscribers; or

4. The cable operator fails to obtain and maintain any permit required by any federal or state regulatory body, relating to the construction, maintenance and operation of the system; or

5. The cable operator fails to maintain the full amount of its security fund or to post a performance bond as required under the terms of this chapter or the franchise.

C. Such termination shall be by ordinance of the City Council duly adopted in accordance with the following procedures:

1. The CTC shall notify the cable operator of the alleged failure or persistent failure of compliance and the operator shall have 30 days from receipt of notification to correct such failure or persistent failure or to present facts and argument in refutation of the alleged failure or persistent failure.

2. If the CTC then concludes that there is a basis for termination of the franchise pursuant to this section, it shall notify the operator thereof.

3. If, within 90 calendar days the operator does not remedy the alleged failure or persistent failure, the City Council, after a public hearing, may terminate the franchise if it determines that such action is warranted under this section. (Ord. 2249 § 1, 1999).

12.50.0400 Effect of termination for noncompliance.

If any franchise is canceled by the City by reason of the operator’s noncompliance, that part of the cable system located within the franchise area, shall, at the election of the City, become the property of the City at an equitable price not to exceed its then book value (i.e., cost less accumulated depreciation) according to generally accepted accounting principles, with a reduction for any lien, encumbrance, or obligation of the operator which the City may assume, or any damages incurred by the City in connection with such cancellation. Such book value shall not include any valuation based upon any franchise granted the operator by the City. Damages incurred by the City shall include but not be limited to, any payment made by the City pursuant to a resolution of the CTC authorizing or directing another operator to operate the cable system for a temporary period until a franchise therefor is granted. If the City does not purchase the cable system, the operator shall have the right to sell the cable system to another operator, and if such sale does not occur within 180 days following notification by the City that the City declines to purchase the system, then the operator shall upon 30 days notice from the City, remove the cable system. (Ord. 2249 § 1, 1999).

12.50.0410 Effect of termination for street closure.

If all or part of any street or streets within the City are closed or discontinued as provided by statute, the franchise and all rights, privileges, and obligations hereunder with respect to said street or streets or any part thereof so closed or discontinued, shall cease. The operator shall not be entitled to damages from the City due to the closing or discontinuance of such street or streets, or for injury to any part of the system in such streets or for the removal or relocation of the same. (Ord. 2249 § 1, 1999).

12.50.0420 Effect of termination by expiration.

If any franchise terminates by expiration of its term, the purchase price to the City for the system under such franchise shall be its then fair market value, determined on the basis of the cable system valued as a going concern but with no value allocated to the franchise itself, reduced by the amount of any lien, encumbrance, or obligation of the grantee which the City may assume. Beginning within 2 years prior to expiration, either the City or the operator may demand an initial meeting for the purpose of determining such value of the system on date of expiration. If the City and the operator cannot determine the value of the system within 90 days’ time following the initial meeting, then the 2 parties shall jointly obtain and pay for the services of a professional appraiser of cable systems, who shall be directed to determine the value of the system. The price determined by the professional appraiser shall be the price paid by the City if it elects to purchase the system. If the City does not purchase the system, the operator shall, upon 30 days notice from the City, remove that part of the system located in the streets or other public places and restore the streets and other public places to a condition satisfactory to the Director of Public Works. Any property of the operator remaining in place 30 days after the termination or expiration of the franchise shall be considered permanently abandoned; provided, however, nothing contained herein shall be construed to permit in-place abandonment without approval by the Public Works Director. The Director of Public Works may extend such time not to exceed an additional 30 days per extension, as needed. If the City elects to purchase the system, the operator shall promptly, concurrent with such purchase, execute all appropriate documents to transfer title to the City, and shall assign all other contracts, leases, licenses, permits and any other rights which the operator has the right to assign and are necessary to maintain continuity of service to the subscribers. Nothing herein is intended as a waiver of any other rights the City may have, nor of any rights the operator may have under state and federal law. (Ord. 2249 § 1, 1999).

12.50.0430 Continuity of service.

Upon termination by the City, or upon the expiration of any franchise granted hereunder, the operator shall cooperate with the City in maintaining continuity of service by continuing to operate the system at the City’s request, for a period determined by the City Council, not to exceed one year. During such time, the provisions of this chapter and the operator’s expiring franchise shall continue to govern in all respects. (Ord. 2249 § 1, 1999).

12.50.0440 Franchise renewal procedure.

Any franchise may be renewed for terms not to exceed 10 years, as in the opinion of the City Council, will serve the public interest, under the guidelines for franchise renewal set forth in the Cable Act. The City shall have the discretion, under the guidelines of the Cable Act, to design and implement a renewal procedure. Such procedure may include, but not be limited to: an examination of the operator’s performance under its current franchise; an examination of the qualifications of the operator; an ascertainment of future cable-related community needs and interests; an assessment of the operator’s plans and commitments for meeting such community needs and interests; and an opportunity for the public to be heard on the question of the proposed renewal. Following the completion of the City’s renewal procedure:

A. The CTC shall submit recommendations with regard to:

1. Renewal of the franchise;

2. Changes to the operator’s franchise; and

3. Amendments to this chapter, to the City Council for its consideration.

B. If the City Council so elects, a franchise renewal may be granted pursuant to this chapter.

C. If the City Council elects not to renew the current operator’s franchise, a franchise may be awarded to a new operator by the City Council according to the franchising procedures adopted hereunder. Ownership of the existing system shall be settled between the current operator and the recipient of the new franchise. If the present operator and the new franchise recipient cannot settle on terms of ownership, then the fair market value of the system shall be used as the basis of sale to the new franchise. (Ord. 2249 § 1, 1999).

12.50.0450 Transfers, assignments.

A. No franchise granted under this chapter may be assigned or transferred, either in whole or in part, or leased, sublet, or mortgaged in any manner, nor shall title thereto, either legal or equitable, or any right, interest or property therein, pass to or vest in any person, either by the act of the operator or by operation of law, without the prior consent of the City as provided for in subsection B of this section. An operator may, however, transfer or assign the franchise to a wholly-owned subsidiary of the operator, or, if the operator is a wholly-owned subsidiary, to its parent company; and such subsidiary or parent company may transfer or assign the franchise back to the operator without such consent. The granting, giving or waiving of any one or more such consents shall not render unnecessary any subsequent consent or consents.

B. An operator shall promptly notify the City of any actual or proposed change in, or transfer of, or acquisition by any other party of control of the operator’s company. The word “control” as used herein is not limited to majority stock ownership but includes actual working control in whatever manner exercised. Every change, transfer or acquisition of control of the operator’s company shall make the franchise subject to cancellation unless and until the City shall have consented thereto. The City reserves the right to make reasonable changes in the franchise and/or this chapter, taking into account community needs and interests and consistent with federal and state law, as a condition precedent to approving a change of control, so long as the changed franchise or ordinance represents a level of obligation for the operator which is comparable to the level required prior to the changes. The City cannot unilaterally modify franchise obligations. For the purpose of determining whether it shall consent to such change, transfer or acquisition of control, the City may inquire into the qualifications of the prospective controlling party. The operator shall assist City in any such inquiry, and shall provide all information requested in writing by the City and related to the franchise transfer which the City requires in order to determine whether it will consent to the proposed transfer. The City may condition its consent upon such terms and conditions as it deems appropriate, related to the qualifications of the prospective transferee to perform the obligations of the operator under this chapter and the franchise. Consent to the transfer shall not be unreasonably withheld. Any transfer of ownership effected without the written consent of the City shall render this franchise subject to revocation.

C. In accordance with 47 U.S.C. Section 537, the City shall have 120 days to act upon any request for approval of a transfer that contains or is accompanied by such information as is required in accordance with FCC regulations and by the City. If the City fails to render a final decision on the request within said 120 days, the request shall be deemed granted unless the operator and the City agree to an extension of time.

D. The Grantee, upon any transfer as heretofore described, shall within 60 days thereafter file with the City a copy of any forms required by the FCC, the deed, agreement, mortgage, lease, or other written instrument evidencing such sale, lease, mortgage, assignment or transfer, certified and sworn to as correct by the operator. Every such transfer as heretofore described, whether voluntary or involuntary, shall be deemed void and of no effect unless the operator shall within 60 days after the same shall have been made, file such certified copy as is required.

E. The requirements of this section shall not be deemed to prohibit the use of the operator’s property as collateral for security in financing the construction or acquisition of all or part of a cable system of the operator or any affiliate of the operator. However, any cable system franchised hereunder, including portions thereof used as collateral, shall at all times continue to be subject to the provisions of this chapter and the franchise. The requirements of this section shall not be deemed to prohibit sale of tangible assets of the cable system in the ordinary conduct of the operator’s business without the consent of the City.

F. In the event that the City adopts a resolution denying its consent and such change, transfer or acquisition of control has been effected, the City may cancel the franchise unless control of the operator is restored to a status acceptable to the City.

G. The consent or approval of the City to any assignment, lease, transfer, sublease, or mortgage of any franchise granted to an operator shall not constitute a waiver or release of any claim of the City against the operator for a default under this chapter or the franchise, or of the rights of the City in and to the streets. No rule of estoppel shall ever be invoked against the City in case it shall assert the invalidity of any attempted transfer in violation of this section.

H. Except as the City may otherwise consent pursuant to this section, the operator shall at all times be the full and complete owner of all facilities and property, real and personal, of the cable system. (Ord. 2249 § 1, 1999).

12.50.0460 Annexation.

Any franchise granted in accordance with this article is for the then-present territorial limits of the City and for any area added thereto by annexation during the term of such franchise. Subject to the provisions of IMC 12.50.0480(B), if the operator or its affiliate operate an existing cable system in all or part of the annexed territory prior to annexation, operator agrees to comply with all provisions of this chapter and its franchise from the time of annexation. Operators shall expressly waive any rights under state or federal law to continue operation in any area newly annexed to the City pursuant to franchise terms in effect prior to annexation. (Ord. 2249 § 1, 1999).

12.50.0470 Extension of service to residents, organizations, businesses.

In recognition of the small geographical size of the City, and the fact that over-the-air TV and FM reception is practically nonexistent within the City, any operator granted a franchise in accordance with this article, shall so plan, construct, upgrade and/or rebuild its system such that any resident, business or other potential subscriber in the City as presently or hereinafter constituted (subject to IMC 12.50.0480(B)) may obtain connection and use of the residential subscriber system for any available video, voice and data services that may be provided by the operator, within 30 days of requesting such service, subject to payment of applicable rates and charges. In cases where the conditions of providing connection to the system for any subscriber make it unfeasible for the operator to provide service within 30 days pursuant to this section, the operator may request of the CTC a reasonable extension of time for providing service, and such request shall not be unreasonably denied. (Ord. 2249 § 1, 1999).

12.50.0480 Extension of service upon annexation and to new development.

A. An operator shall extend its system to new subdivisions within the franchise territory simultaneously with electric power and telephone utilities to minimize disruptions to the streets and ways of the City. The operator shall share equitably with other utilities and the developer in the cost of any joint access to streets and public ways.

B. Upon the annexation of any new territory to the City, the operator shall extend service under the terms and conditions of this article within 3 months to any area in which the dwelling unit density is equivalent to 18 or more occupied dwelling units per mile of cable plant, measured from the closest technically feasible point of connection to the existing system. In areas not meeting this requirement, or where other special circumstances exist, the operator shall submit to the CTC a plan for extension of service to those areas where extension may be feasible upon special conditions, including, for example, increased installation charges, extended time for construction, and participation of the residents in extension financing, and shall extend service in accordance with said plan, upon approval of the CTC. Failure to meet the requirements of this section shall subject the operator to termination of the franchise in accordance with IMC 12.50.0390. (Ord. 2249 § 1, 1999).

12.50.0490 General system capacity.

A. Cable systems shall consist of a state of the art residential subscriber network capable of carrying one-way and two-way video programming, and such voice and data programming as the operator may elect to provide, to residences, government and nonprofit agencies, and businesses throughout the franchise area. When required by the City, cable systems shall also provide an institutional communications capability to permit government, educational and public use of the system for one-way and two-way voice, video and data communications. The details of institutional communications capability shall be specified in the franchise.

B. Residential subscriber systems shall have a capacity of at least 750 MHZ and a minimum number of channels as specified by the City in a franchise ordinance. Subject to the Cable Act and FCC regulations, programmed channels shall include all off-the-air network channels serving the franchise area, and all public, educational and government access channels required under this chapter and the franchise. (Ord. 2249 § 1, 1999).

12.50.0500 Standby power.

An operator shall install and maintain equipment capable of providing standby power for the headend, transportation, and all trunk amplifiers, as well as throughout any institutional network serving public, educational or government uses, for a minimum of 2 hours. Such equipment shall be so constructed as to automatically notify the operator when it is in operation and to automatically revert to the standby mode when normal power returns. (Ord. 2249 § 1, 1999).

12.50.0510 Service to public buildings.

In addition to any institutional network capability for public agencies as may be required in a franchise, and the general capacity described in IMC 12.50.0490, each operator shall provide, free of charge to the City, one outlet and basic service to each public building in the City, as identified on a list of such buildings which is included in a franchise. For any public facility installations requiring a drop or system extension of more than 150 feet, normal line extension charges for the residential subscriber network shall apply. (Ord. 2249 § 1, 1999).

12.50.0520 Government service – Public, educational, and government use of system.

A. Each operator shall install and maintain a capability within its system for digital data to be transmitted from each subscriber location to a centralized site, for such purposes as (but not limited to) burglar alarms, fire alarms, medical alert, meter reading, and/or community response. For services installed by the City under this provision, the City shall be solely responsible for control of any data it generates by such service, and the operator shall not restrict, monitor, or otherwise control any aspects of such service provided by the City.

B. Each operator shall install in its system, an emergency alert system for use by the City, subject to federal and state statutes and regulations. The system shall permit the Mayor to override all channels simultaneously, with an audio and video emergency message originating from a central location designated by the City.

C. Except to the extent expressly prohibited by law, the City shall hold the operator, its employees, officers, and assigns, harmless from any claims arising out of the City’s sole negligence in the emergency use of the operator’s facilities by the City, including, but not limited to, reasonable attorneys’ fees and costs. If only part of the negligence involved in any instance is attributable to the City, then the City shall hold the operator, its employees, officers and assigns harmless only with respect to that part of the negligence for which the City is responsible.

D. Each operator shall provide for public, educational and government use of the system, the details of which provision shall be included in the operator’s franchise. (Ord. 2249 § 1, 1999).

12.50.0530 Technical performance standards.

An operator shall construct, install, operate and maintain its system in a manner consistent with all applicable local, state and federal laws, rules, regulations and codes, including local construction standards and the FCC regulations set forth in 47 C.F.R. 76.601 through 76.610, as now or hereafter constituted. The City may establish and enforce higher or additional reasonable technical standards, following consultation with the operator, to the extent that applicable law permits when the City determines there is a need to do so following a recommendation from the CTC. Upon request by the City, an operator shall provide to the City a copy of the results of any test of system performance or signal leakage required by the FCC, as well as documentation of compliance with all other local, state, and federal laws, rules, regulations and codes. An operator shall cooperate fully in any inspection of the system, and any inspection of the operator’s records undertaken by the City, for the purpose of determining the operator’s compliance with applicable laws, rules, regulations and codes. In addition, if the City is permitted under federal law and regulation to actively enforce FCC technical standards on a local basis, then all of those standards shall be obligations under this article. (Ord. 2249 § 1, 1999).

12.50.0540 Construction timetable.

Any operator seeking a franchise calling for the construction of a new system or the upgrade or rebuild of an existing system, shall agree to a construction timetable within its franchise, and shall adhere to the schedule. (Ord. 2249 § 1, 1999).

12.50.0550 Specialized services.

Each operator shall notify the CTC 30 days prior to the commencement of any new service, including any specialized service which may be available only to a certain class or certain classes of subscribers. (Ord. 2249 § 1, 1999).

12.50.0560 Technical improvements.

A. If the City Council, following a recommendation from the CTC, determines that a system upgrade is necessary, an operator shall upgrade or rebuild its system as necessary during the term of its franchise, such that the system represents (regarding without limitation, channel capacity, subscriber equipment, technical performance levels, availability of cable services and institutional services including one-way and two-way voice, video and data services):

1. The nonexperimental state of the art of cable systems, in technical capacity and proven performance; and

2. General parity of overall cable service with the most advanced nonexperimental cable service provided by the operator in incorporated or unincorporated portions of King County or by other cable operators providing cable service under a franchise within the City. As part of its annual report, an operator shall provide a description of all technical improvements introduced into any cable system under its direct ownership, or under ownership of an affiliate, in incorporated or unincorporated King County during the preceding 12 months.

B. If material improvements in the level of technical quality, performance, capacity, or services are made in any other system of the operator in the Seattle metropolitan area, then an operator shall within 1 year of the activation of those improvements make such similar improvements to the cable system as are required to accomplish parity with all other metropolitan area systems.

C. If cable system improvements required under this section require substantial cable system construction beyond the installation of equipment at the cable system headend, then the operator shall be exempted from the requirements of this section unless the City Council determines, through a process that affords the opportunity for public comment, that there exists a community need for or interest in the improvements, taking into account their cost. (Ord. 2249 § 1, 1999).

12.50.0570 Rates.

A. The City reserves the right to regulate rates and charges imposed on subscribers by an operator, to the full extent permitted under applicable federal, state and local law. The City further reserves the right to establish, to the full extent permitted by law, regulatory policies, procedures, and penalties related to rate regulation. During any period in which the City elects not to regulate rates, an operator shall represent and warrant that its rates and charges to customers in the City for services, equipment, etc. (including but not limited to service tiers, pay-per-view services, equipment rental, services, connections and reconnections and administrative fees) will not be less favorable, on an item-by-item basis, then rates and charges for similar services, equipment, etc. in any other cable system owned by the operator or an affiliate of the operator in the state of Washington.

B. CTC Review of Rates. The CTC shall have the responsibility of developing rate regulation policies and procedures consistent with applicable law. The CTC shall also be responsible for implementing such policies and procedures and making recommendations to the City Council in matters regarding rate regulation.

C. Schedule of Rates. An operator shall annually file with the CTC a full schedule of all subscriber rates and all other subscriber charges whatsoever made in connection with its cable system. Any special rates for large institutions, motels, multiple-family dwelling units, or any other type of subscriber shall be included.

D. Uniformity of Rates. Rates shall be the same for the same or similar classes of subscribers throughout the franchise area. However, nothing in this article shall prohibit an operator from establishing discounted rates for low-income elderly subscribers. Insofar as it is consistent with federal and state law, residential subscribers, where the head of the household is 62 years of age or older, shall receive a reduction equal to 30 percent of the normal monthly residential subscriber fee for basic service or cable programming service, as such services are defined in FCC regulations. Likewise, all subscribers shall receive a discount of 10 percent for fall advance annual payment of monthly fees for basic or programming service tiers. Nothing in this section shall prohibit an operator from adjusting its prices to meet competition, in accordance with federal law and regulation, provided that the operator informs the City of such adjustments prior to their implementation. (Ord. 2249 § 1, 1999).

12.50.0580 Franchise fees.

A. Franchise Fees. As compensation for a franchise granted pursuant to this article, and in consideration of permission to use and occupy the streets and public ways of the City for the construction, operation, maintenance and/or reconstruction of a cable system within the City, and in consideration of the regulatory burden imposed on the City by the operator’s cable television system, an operator shall pay to the City an amount equal to 5 percent of its gross revenues.

B. Payment of Franchise Fees. Payments due the City under this section shall be computed quarterly, for the preceding quarter, as of March 31st, June 30th, September 30th, and December 31st. Each quarterly payment shall be due and payable no later than 30 days after the relevant computation date and shall thereafter be payable with interest at a rate of 12 percent per annum of the amount due, until paid.

C. Statement Required. Quarterly franchise fee payments shall be accompanied by a written report to the City, verified by an officer of the operator, which shall contain an accurate statement of all gross revenues earned by the operator or any affiliate or cable operator, related to operation of the cable system. All revenues shall be identified by category (e.g., basic, pay, advertising, etc.), and the report shall be in sufficient detail to enable the City to verify the accuracy of franchise fee payments.

D. Franchise Fee Waiver. No acceptance of any payment shall be construed as an agreement by the City that the amount paid is in fact, the correct amount, nor shall such acceptance of payment be construed as a release of any claim the City may have for further or additional sums payable under the provisions of this ordinance. All amounts paid shall be subject to audit and recomputation by the City. In the event that recomputation results in additional fees to be paid to the City, such amount shall be subject to a 12 percent interest charge from the date the payment was due until the time of actual payment.

E. Local Taxes. Nothing in this section shall limit an operator’s liability to pay generally applicable local taxes, including but not limited to utility tax, and other taxes or fees. (Ord. 2249 § 1, 1999).

12.50.0590 Nondiscrimination requirements.

A. An operator shall not deny service, deny access, or otherwise discriminate against subscribers, channel users, or general citizens on the basis of race, color, religion, national origin, or sex. An operator shall strictly adhere to the equal employment opportunity requirements of the FCC, as expressed in applicable federal statutes or regulations. An operator shall comply at all times with all other applicable federal, state, and City laws, and all associated executive and administrative orders, relating to nondiscrimination. An operator shall make a positive effort to hire racial minorities, women and other protected groups as subcontractors if available and qualified.

B. An operator shall not, in its rates or charges, or in making available cable services, or in its rules or regulations, or in any other respect, make or grant preference or advantages to any subscriber or potential subscriber to the system, or to any user or potential user of the cable system (except as may be required for providing public, educational and government use of the system, or elderly low income discounts as provided in this article); and shall not subject any such persons to any prejudice or disadvantage. This provision shall not be deemed to prohibit promotional campaigns to stimulate subscriptions to the system, the offering of commercial or bulk discounted rates, or other legitimate uses thereof. (Ord. 2249 § 1, 1999).

12.50.0600 Consumer protection and customer service standards.

All operators shall comply with applicable FCC customer service standards, including 47 C.F.R. 76.309 as said section presently exists and may be amended from time to time. The City reserves the right to adopt and enforce additional, different or more stringent standards if the City determines there is a need to do so in view of local circumstances or to changing conditions in technology or federal and state regulation. In particular, the following standards shall apply:

A. Local Office. Each operator shall maintain a business office in the greater Seattle area which shall be open during all usual business hours, have a publicly listed telephone with sufficient toll-free lines and call-handling equipment to ensure that FCC customer service standards, as well as any standards for telephone response adopted by the City are met. The phone system shall be so operated that complaints and requests for repairs or adjustments may be received on a 24-hour basis. The telephone number or numbers required under this section shall be printed prominently in all correspondence and bills sent to subscribers within the City.

B. Local Service. Each operator shall maintain a repair and troubleshooting force which under normal operating conditions will respond to and correct subscriber complaints within 24 hours after receipt of the complaint; and which will provide new service within 3 working days after receipt of the request for new service provided that there is existing cable plant serving the residence of the person requesting service, or within 7 days if new plant must be installed underground.

C. Consumer Complaints. Each operator shall ensure that all subscribers and/or members of the general public have recourse to a satisfactory hearing of any complaint. The CTC shall work closely with the operator and members of the public to establish procedures for handling and settling complaints. Each operator shall present to the City, no later than 6 months after the effective date of its franchise, a set of rules, regulations, and procedures concerning the handling and settling of complaints. Such rules, regulations, and procedures shall be subject to approval of the CTC. (Ord. 2249 § 1, 1999).

12.50.0610 Judicial review – Attorneys’ fees.

Except to the extent otherwise provided by the Cable Act, an action challenging any decision, order, requirement or other acts or refusals to act of the CTC and the City Council must be filed in King County Superior Court and served on the City within 21 days of the decision, order, requirement or other act or refusal to act being challenged. Any challenge by an operator to the validity or enforceability of a franchise agreement or this article must be brought within 21 days of the effective date of the franchise agreement, this article, or any amendments thereto. In the event any party begins any action specified herein before any court or regulatory agency, the prevailing party shall recover its costs, including reasonable attorneys’ fees and reasonable expert witness fees. (Ord. 2249 § 1, 1999).

12.50.0620 Records and reports.

In addition to any record or report that may be required elsewhere in this article, an operator shall notify the City of the availability of the following reports, maintain copies of the same at its local office, and furnish copies upon request of the City:

A. Quarterly Reports. Within 30 calendar days after the end of each fiscal quarter of an operator, the operator shall, upon request of the City, submit to the City a report of all trouble call complaints received by or referred to the operator within the report quarter. The reports shall contain, as a minimum, the name, address, and telephone number of the complaining party, the specific nature of the complaint, remedial action taken if any, and the current status of the complaint. Upon request by the City, an operator shall also provide outage reports, summary statistics on patterns of complaints or service problems, and other customer service information; provided, that such information may be reasonably generated by the operator.

B. Annual Report. No later than 4 months following the end of an operator’s fiscal year each year, the operator shall present a written report to the City which shall include:

1. Audited financial reports for the operator, and each parent company for the previous fiscal year, including gross revenues from all sources, gross subscriber revenues from each category of service, as well as an income statement, statement of cash flow, and a balance sheet; an income statement and balance sheet applicable to the operator’s operations within the City during the preceding 12 months and a statement of its properties devoted to cable operations within the City by categories, giving its investment in such properties on the basis of original cost, less applicable depreciation. These reports shall be prepared or approved by a certified public accountant using generally accepted accounting principles and any allocation criteria and formulae made a part of the operator’s franchise.

2. A summary of the previous year’s activities for the franchise area, including, but not limited to, the total number of subscribers for each category of service, the number of homes passed, miles of overhead and underground cable plant, other system facilities and equipment constructed, any services added or dropped, and any technological changes occurring in the system.

3. A summary of complaints received, with a summary of how the complaints have been dealt with.

4. Plans for the future regarding the system and services.

C. All financial reports required under this section shall be presented to the City accompanied by such notes and explanations as are required to fully understand the reports. Such notes and explanations shall include, but not be limited to, an explanation of any and all deductions made from gross revenues in order to arrive at gross receipts for the calculation of franchise fees to be paid to the City. In the event any audited financial report has not been published by the date due under this section, then the audited financial report shall be deemed presented on time if presented within 30 days after publication. For any financial report required under this section, if the report is not audited in the normal course of business, then the report shall be signed and certified as accurate by an officer of the entity upon which the report is made.

D. Technical Monitoring and Compliance Reports. An operator shall provide a written report of the initial and each semi-annual FCC proof of performance tests for the system required in FCC regulations. In addition, an operator shall, upon request, provide reports of any other technical testing and compliance procedures established by this article. Reports required under this subsection shall be due no later than 30 days after the completion of each series of tests.

E. Communications with Regulatory Agencies. An operator shall maintain a list of all material written petitions, applications, communications, and reports submitted by the operator, to the FCC, Securities and Exchange Commission, or any other federal or state regulatory commission or agency having jurisdiction in respect to any matters affecting cable communications operations authorized pursuant to this article or a franchise agreement, and copies of any of the listed items shall be submitted to the City upon request. In addition, copies of any communications to and from any regulatory agency pertaining to any alleged, apparent or acknowledged violation of an applicable rule or law of the agency related to or affecting operations within the franchise area, shall be immediately submitted to the City, if the communications are to or from the operator, or upon written request from the City if the communications are to or from an affiliate of a cable operator authorized by a franchise.

F. Additional Reports. The operator shall prepare and furnish to the City, at the times and in the form prescribed, such additional reports with respect to its operation, affairs, transactions, or property, as may be reasonably necessary and appropriate to the performance of any of the rights, functions or duties of the City in connection with the enforcement of the material provisions of this chapter or a franchise. The operator shall also prepare and maintain for inspection by the City true and accurate maps or plats of all existing and proposed installations and improvements. (Ord. 2249 § 1, 1999).

12.50.0630 Books and records.

The City shall have the right to make reasonable inspections of books, records, maps, plans, electronic or optical files, income tax returns, and other like materials of an operator and of any parent or affiliate entity at any time during normal business hours for the purpose of verifying compliance with the provisions of this article and any franchise granted hereunder. This right of the City specifically includes but is not limited to the right to inspect the financial, billing, and subscriber records of the operator and any parent or affiliate entity as may be necessary in order to determine the operator’s gross receipts and assess the accuracy of franchise fee payments made to the City, or to determine the operator’s compliance with any other provision of this article or a franchise. Access to the aforementioned records shall not be denied by an operator to representatives of the City on the basis that said records contain proprietary information, provided that, to the extent allowed by Washington law, the City shall protect the trade secrets and other confidential information of the operator. The City shall not violate nor require the operator to violate Section 631 of the Cable Act regarding personally identifiable information; however, the examination of any records by representatives of the City to determine whether a subscriber’s residence is inside the franchise area, as part of an effort to verify the accuracy of franchise fee payments, shall not be construed as involving a violation of Cable Act requirements. (Ord. 2249 § 1, 1999).

12.50.0640 Security fund, performance bond, sanctions, penalties and enforcement.

A. Security Fund and Performance Bond.

1. Within 10 days following a written request by the City, each operator shall deposit with the Finance Director of the City, and maintain on deposit through the term of such franchise or until released from the obligation in writing by the City, a security fund of an amount not to exceed the sum of $50,000. These monies shall serve as security for the faithful performance by it of all permits and directions of any agency of the City having jurisdiction over its acts or defaults under this article, and the payment by the operator of any claims, liens, franchise fees and taxes due the City which arise by reason of the construction, operation or maintenance of the cable system.

2. Within 30 days after notice to it that any amount has been withdrawn from the security fund by the City, the affected operator shall pay to, or deposit with the Finance Director of the City, a sum of money sufficient to restore such security fund to its original amount.

3. If an operator fails to pay to the City any compensation within the time fixed herein; or fails, after 30 days’ notice to pay to the City any taxes due and unpaid; or fails to repay to the City, within 30 days any damages, costs or expenses which the City shall be compelled to pay by reason of any act or default of such operator in connection with any franchise granted said operator under this article; or fails, after 10 days have passed following written notice of such failure by the CTC or by the Finance Director to comply with any provision of this article which the CTC or the Finance Director reasonably determines can be remedied by an expenditure from the security fund; the Finance Director may, upon the concurrence of the CTC and the City Council, immediately withdraw the amount thereof with interest and any penalties, from the security fund. Upon such withdrawal, said Finance Director shall notify the operator of the amount and date thereof.

4. The security fund deposited by an operator pursuant to this section shall become the property of the City in the event that any franchise granted said operator and authorized under this article is canceled by reason of default of such operator. An operator however, shall be entitled to the return of said security fund or portion thereof as remains on deposit with the City at the expiration of the term of such operator’s franchise; provided, that there is then no outstanding default on the part of such operator.

5. The rights reserved to the City with respect to the security fund are in addition to all other rights of the City, whether reserved by any franchise, this article, or otherwise authorized by law, and no action, proceeding or exercise of a right with respect to such security fund shall affect any other right the City may have.

B. Performance Bond. In addition to the security fund, and as further security for an operator’s faithful performance hereunder, the operator shall within 30 days of the effective date of its franchise, deliver to the Finance Director, and shall maintain continuously in effect, a good and sufficient bond in the sum of $50,000 executed by a surety company authorized and qualified to do business in the state of Washington as a surety, or by other sureties acceptable to the City, and in a form acceptable to the City; which bond or other surety shall be for the purpose of guaranteeing and shall stipulate that the operator shall strictly comply with each and every condition and covenant of its franchise and this article.

C. Penalties on Behalf of the City. The penalties set forth hereunder shall not relieve an operator of any other liability established under other provisions of this chapter for violation of material provisions of this chapter, penalties shall be chargeable to the security fund as follows:

1. For failure to submit plans as agreed to in a franchise ordinance indicating expected dates of installation/expansion/improvement of various parts of the system: $300.00 per day.

2. For failure to complete construction or reconstruction of a system as agreed to in a franchise ordinance: $1,000 per day.

3. For failure to extend service in accordance with IMC 12.50.0470 and 12.50.0480: $300.00 per day.

4. For failure to supply data due the CTC in accordance with this article in connection with proof of performance and other technical testing, installation, construction, rehabilitation or installation of improvements, customer complaints, finances or financial reports: $300.00 per day.

5. For persistent failure to comply with reasonable recommendations of the CTC relating to rates or services as provided for in IMC 12.50.0570; and/or relating to performance standards as provided in IMC 12.50.0530; and such other reasonable requests or recommendations as may be made pursuant to authority granted by this article: $300.00 per day from the date written notice of intent to impose said penalty is given by the CTC.

6. For failure to restore the security fund as required in IMC 12.50.0640, within the specified 30 days: the entire cash amount remaining (if any) of the security fund.

D. Penalties, on Behalf of the Subscribers. The penalties set forth hereunder shall not relieve the operator of any other liability established under other provisions of this article or any franchise.

1. In the event that an operator incurs a system outage in excess of 3 hours in duration for any 24-hour period, such operator when so requested by any affected subscriber shall refund to the subscriber an amount equal to one-thirtieth of the subscriber’s total monthly cable bill for each day on which the outage of 3 hours or more occurred. For purposes of this section, “outage” means any loss of audio, video or data signal affecting more than one subscriber and lasting for more than 5 minutes.

2. In the event that its service to any subscriber is interrupted for 24 consecutive hours, except in circumstances for which the prior approval of the interruption is obtained from the CTC, the operator shall provide a 10 percent rebate of the total monthly fees to each affected subscriber in addition to any other applicable refund or penalty, for each such occurrence.

3. In the event that the system substantially fails to meet performance standards set forth in IMC 12.50.0530, as demonstrated through any system testing required under this article, the affected operator, if requested by the City, shall reduce fees to all affected subscribers by 25 percent until all such standards are met. The City shall not request a reduction of fees to subscribers under this section until after the operator has been given one opportunity to repair and re-test the system following initial evidence of the failure to meet technical standards.

4. In the event of failure to commence operations in accordance with provisions of its franchise, the franchise term shall be reduced 1 year per each 3-month delay.

5. In the event of failure to complete construction and installation of the system or in the case of an existing system, for failure to bring such existing system into conformity with the system design criteria set forth in IMC 12.50.0490 and the franchise, the franchise term shall be reduced 1 year per each 3-month delay. The CTC shall notify the affected operator during the first month of the 3-month period that the system has failed to meet system design criteria.

E. Force Majeure. If by reason of force majeure an operator is unable in whole or in part to carry out its obligations hereunder, the operator shall not be deemed in violation or default during the continuance of such inability. The term “force majeure” as used herein shall mean the following: acts of God; strikes, lockouts or other industrial disturbances; acts of public enemies; orders of the government of the United States of America, or of the state of Washington, or their departments, agencies, political subdivisions, or officials; acts of any civil or military authority; insurrections; riots; epidemics; landslides; earthquakes; lightning; fires; hurricanes; volcanic activity; storms; floods; washouts; droughts; restraint of government and people; civil disturbances; explosions; partial or entire failure of utilities; and similar occurrences outside the control of the operator. The operator agrees, however to give its best efforts to remedy as soon as possible, under the circumstances, the cause or causes preventing the operator from carrying out its responsibilities and duties under this article and/or a franchise agreement. (Ord. 2249 § 1, 1999).

12.50.0650 Foreclosure, receivership.

A. Foreclosure. Upon the foreclosure or other judicial sale of all or a substantial part of the system, or upon the termination of any lease covering all or a substantial part of the system, an operator shall notify the City of such fact, and such notification shall be treated as a notification that a change in control of the operator has taken place, and the provisions of IMC 12.50.0450 governing the consent of the City to such change in control of the operator, shall apply.

B. Receivership. To the extent permitted by law, the City shall have the right to cancel any franchise granted pursuant to this article 30 days after the appointment of a receiver, or trustee, to take over and conduct the business of any operator, whether in receivership, reorganization, bankruptcy, or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said 30 days, or unless:

1. Within 30 days after his election or appointment, such receiver or trustee shall have fully complied with all the provisions of this article or a franchise and remedied all defaults thereunder; and

2. Such receiver or trustee, within said 30 days shall have executed an agreement, duly approved by the court having jurisdiction in the proceedings, whereby such receiver or trustee assumes and agrees to be bound by each and every provision of this article and any franchise granted hereunder. (Ord. 2249 § 1, 1999).

Article V. Conditions
of Permits and Franchises

12.50.0660 Purpose.

The purpose of this article is to set forth certain terms and conditions which are common to all telecommunications right-of-way use permits, telecommunications franchises, and cable television franchises. In the event of a conflict between the provisions of this article and a provision set forth in Articles III, IV, or V of this chapter, as the case may be, the most restrictive provisions shall control. Except as otherwise provided in this chapter or in such a permit or franchise, the provisions of this article apply to all such permits and franchises approved or granted by the City. (Ord. 2249 § 1, 1999).

12.50.0670 Agreement.

No approval granted under this chapter shall be deemed to have been granted hereunder until the applicant and the City have executed a written agreement setting forth the particular terms and provisions under which the grantee has been granted the right to occupy and use public ways of the City or City property. (Ord. 2249 § 1, 1999).

12.50.0680 Rights granted.

No approval granted under this article shall convey any right, title or interest in the public ways or City property, but shall be deemed a permit only to use and occupy the public ways or City property for the limited purposes and term stated in the approval. Further, no approval shall be construed as any warranty of title. (Ord. 2249 § 1, 1999).

12.50.0690 Acceptance.

No permit or franchise granted pursuant to the provisions of this chapter shall become effective unless and until the grant has been unconditionally accepted by the grantee. Within 60 days after the effective date of the ordinance or other City action granting a permit or franchise, or within such extended period of time as may be authorized by the City, the applicant shall file written acceptance of the permit or franchise in a form satisfactory to the City Attorney, together with the bonds, insurance policies, and security fund required by this article. Acceptance of a permit shall consist of executing the written agreement granting the same and returning said agreement to the City within the period of time specified herein. (Ord. 2249 § 1, 1999).

12.50.0700 Effect of franchise and permit approval.

No permit or franchise granted under this chapter, shall be deemed to be an exclusive franchise or permit and shall not in any manner prevent the City from constructing, operating, and/or maintaining a cable system or other telecommunications systems or facilities of its own or granting other or further franchises or permits to do so in, along, over, through, under below or across any of the public ways, streets, avenues, and other public land and properties of every type and description. No franchise granted hereunder shall prevent or prohibit the City from using any of said roads, rights-of-way, streets or other public properties or affect the City’s jurisdiction over them. The City reserves full power to make all necessary changes, relocations, repairs, maintenance and improvement of all public ways and thoroughfares and other public properties of every type. In accepting any franchise, the operator acknowledges that its rights hereunder are subject to the police power of the City to adopt and enforce general ordinances necessary to the safety and welfare of the public; and, it agrees to comply with all applicable general laws enacted by the City pursuant to such power. (Ord. 2249 § 1, 1999).

12.50.0710 Police power.

In accepting any permit or franchise the grantee acknowledges that its rights hereunder are subject to the legitimate rights of the police power of the City to adopt and enforce general ordinances necessary to protect the safety and welfare of the public and it agrees to comply with all applicable general laws enacted by the City pursuant to such power. (Ord. 2249 § 1, 1999).

12.50.0720 Rules and regulations by the City.

In addition to the inherent powers of the City to regulate and control any permit or franchise it issues, the authority granted to it by the Cable Act and the Telecommunications Act of 1996, and those powers expressly reserved by the City, or agreed to and provided for in any permit or franchise, 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 hereunder. Except as provided in this chapter, the foregoing does not allow for amendment by the City of material terms of any permit or franchise it issues without the consent of the grantee. The City Council reserves the right to delegate its authority for permit or franchise administration to a designated agent. (Ord. 2249 § 1, 1999).

12.50.0730 Location of facilities.

All facilities shall be constructed, installed and located in accordance with the following terms and conditions, unless otherwise specified in a permit or franchise agreement.

A. In all new developments and subdivisions, cable and telecommunications facilities shall be placed underground.

B. A grantee shall install its cable or telecommunications facilities within an existing underground duct or conduit whenever excess capacity exists within such facility.

C. A grantee with permission to install overhead facilities shall install its cable or telecommunications facilities on pole attachments to existing utility poles only, and then only if surplus space is available.

D. Whenever any existing electric utilities, cable facilities or telecommunications facilities are located underground within a public way of the City, a grantee with permission to occupy the same public way must also locate its cable or telecommunications facilities underground.

E. Whenever any new or existing electric utilities, cable facilities or telecommunications facilities are located or relocated underground within a public way of the City, a grantee that currently occupies the same public way shall relocate its facilities underground. Absent extraordinary circumstances or undue hardship as determined by the City Public Works Director, such relocation shall be made concurrently to minimize the disruption of the public ways. No extension granted by the Director of Public Works under this subsection shall exceed a period of 12 months.

F. Whenever new cable or telecommunications facilities will exhaust the capacity of a public street or utility easement to reasonably accommodate future cable or telecommunications carriers or facilities, the grantee and all other occupants of the public way shall provide additional ducts, conduits, manholes and other facilities for nondiscriminatory access to future operators and carriers. (Ord. 2249 § 1, 1999).

12.50.0740 Compliance with one call locator service.

All grantees shall, before commencing any construction in the public ways, comply with all regulations of Chapter 19.122 RCW, the One Call Locator Service. (Ord. 2249 § 1, 1999).

12.50.0750 Interference with the public ways.

No grantee may locate or maintain its cable or telecommunications facilities so as to unreasonably interfere with the use of the public ways by the City, by the general public or by other persons authorized to use or be present in or upon the public ways. All such facilities shall be moved by the grantee, at the grantee’s cost, temporarily or permanently, as determined by the Public Works Director. (Ord. 2249 § 1, 1999).

12.50.0760 Damage to property.

No grantee nor 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 City property, public ways of the City, other ways or other property, whether publicly or privately owned, located in, on or adjacent thereto. (Ord. 2249 § 1, 1999).

12.50.0770 Notice of work.

Unless otherwise provided in a permit or franchise agreement, no grantee, nor any person acting on the grantee’s behalf, shall commence any nonemergency work in or about the public ways of the City or other ways without 10 working days’ advance notice to the City. (Ord. 2249 § 1, 1999).

12.50.0780 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 as promptly as possible, before such repair or emergency work commences or as soon thereafter as possible if advance notice is not practicable. (Ord. 2249 § 1, 1999).

12.50.0790 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. 2249 § 1, 1999).

12.50.0800 Relocation or removal of facilities.

Within 30 days 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 cable or telecommunications facilities within the public ways whenever the Public Works Director shall have determined that such removal, relocation, change or alteration is reasonably necessary for:

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

B. The operations of the City or other governmental entity in or upon the public ways. (Ord. 2249 § 1, 1999).

12.50.0810 Building moving.

Whenever any person shall have obtained permission from the City to use any street or public way for the purpose of moving any building, a grantee, upon 7 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 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. 2249 § 1, 1999).

12.50.0820 Removal of unauthorized facilities.

Within 30 days following written notice from the City, any grantee or other person that owns, controls or maintains any unauthorized cable or telecommunications system, facility or related appurtenances within the public ways of the City shall, at its own expense, remove such facilities or appurtenances from the public ways of the City. A cable or telecommunications system or facility is unauthorized and subject to removal in the following circumstances:

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

B. Upon abandonment of a facility within the public ways of the City. Any property of a grantee shall be deemed abandoned if left in place 90 days after expiration or termination of a permit or franchise.

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

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

E. If the system or facility was constructed or installed at a location not permitted by the permittee or franchisee’s permit or franchise.

Provided, however, that the City may, in its sole discretion, allow a grantee, or other such persons who may own, control, or maintain cable or telecommunications facilities within the public ways of the City 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 facilities must be first approved by the Public Works 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 Public Works Director 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 a permit or franchise granted under this chapter. (Ord. 2249 § 1, 1999).

12.50.0830 Emergency removal or relocation of facilities.

The City retains the right and privilege to cut or move any cable telecommunications facilities located within the public ways of the City, as the City may determine to be necessary, appropriate or useful in response to any public health or safety emergency. The City shall not be liable to any cable operator, telecommunications carrier, or 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. 2249 § 1, 1999).

12.50.0840 Damage to facilities.

Unless directly and proximately caused by the willful, intentional or malicious acts by the City, the City shall not be liable for any damage to or loss of any cable or telecommunications facility upon City property or within the public ways of the City 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 public ways by or on behalf of the City. (Ord. 2249 § 1, 1999).

12.50.0850 Restoration of public ways, other ways and City property.

A. When a grantee, or any person acting on its behalf, does any work in or affecting any public ways, other ways or City property, it shall, at its own expense, promptly remove any obstructions therefrom and restore such ways or property in accordance with applicable City standards.

B. If weather or other conditions do not permit the complete restoration required by this section, 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, flaggers, 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. (Ord. 2249 § 1, 1999).

12.50.0860 Facilities maps.

Each grantee shall provide the City with an accurate map or maps certifying the location of all telecommunications facilities within the public ways. The map or maps will be supplied both as a paper copy and an AutoCad compatible drawing file. Each grantee shall provide the City with updated maps annually. (Ord. 2249 § 1, 1999).

12.50.0870 Duty to provide information.

A. Within 10 days of a written request from the Public Works Director, each grantee shall furnish the City with information sufficient to demonstrate:

1. That permittee or franchisee has complied with all requirements of this chapter.

2. 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 have been properly collected and paid by the grantee.

B. All books, records, maps and other documents, maintained by the grantee with respect to its facilities within the public ways 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 to violate state or federal law regarding subscriber privacy, nor shall this section be construed to require a grantee to disclose proprietary or confidential information without adequate safeguards for its confidential or proprietary nature. (Ord. 2249 § 1, 1999).

12.50.0880 Leased capacity.

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

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

B. The customer or lessee shall comply, to the extent applicable, with the requirements of this chapter and applicable City codes; and

C. The grantee shall be responsible for continued compliance with this chapter and the grantee’s permit or franchise. (Ord. 2249 § 1, 1999).

12.50.0890 Insurance.

Unless otherwise provided in an authorization or franchise, each grantee shall secure and maintain the following liability insurance policies insuring both the grantee and the City against claims for injuries to persons, death or damages to property which may arise from or in connection with the exercise of the rights, privileges, and authority granted to the grantee:

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

1. $5,000,000 for bodily injury or death to each person;

2. $5,000,000 for property damage resulting from any one accident; and

3. $5,000,000 for all other types of liability.

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

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

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

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

F. In addition to the coverage requirements set forth in this section, each such insurance certificate 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 60 days after receipt by the City, by registered mail, of a written notice addressed to the Public Works Director of such intent to cancel or not to renew.”

G. Within 30 days after receipt by the City of said notice, and in no event later than 15 days prior to said cancellation or intent not to renew, the grantee, franchisee, or lessee shall obtain and furnish to the City replacement insurance certificates meeting the requirements of this section. (Ord. 2249 § 1, 1999).

12.50.0900 General indemnification.

No permit or franchise shall be deemed to be granted under this chapter unless it includes an indemnity clause substantially conforming to the following:

A. Grantee hereby releases covenants not to bring suit and agrees to indemnify, defend and hold harmless the City, its officers, employees, agents and representatives from any and all claims, costs, judgments, awards or liability to any person arising from injury, sickness, or death of any person or damage to property:

1. For of which the negligent acts or omissions of grantee, its agents, servants, officers or employees in performing the activities authorized by this agreement are the proximate cause;

2. By virtue of grantee’s exercise of the rights granted herein;

3. By virtue of the City’s permitting grantee’s use of the City’s public ways or other public property;

4. Based upon the City’s inspection or lack of inspection of work performed by grantee, its agents and servants, officers or employees in connection with work authorized on the facility or property over which the City has control, pursuant to this agreement or pursuant to any other permit or approval issued in connection with this agreement;

5. Arising as a result of the negligent acts or omissions of grantee, its agents, servants, officers or employees in barricading, instituting trench safety systems or providing other adequate warnings of any excavation, construction, or work upon the facility, in any public way, or other public place in performance of work or services permitted under this agreement;

6. Based upon radio frequency emissions or radiation emitted from grantee’s equipment located upon the facility, regardless of whether grantee’s equipment complies with applicable federal statutes and/or FCC regulations related thereto.

B. Grantee’s indemnification obligations pursuant to subsection A of this section shall include assuming potential liability for actions brought by grantee’s own employees and the employees of grantee’s agents, representatives, contractors, and subcontractors even though grantee might be immune under Title 51 RCW from direct suit brought by such an employee. It is expressly agreed and understood that this assumption of potential liability for actions brought by the aforementioned employees is limited solely to, claims against the City arising by virtue of grantee’s exercise of the rights set forth in this agreement. The obligations of grantee under this subsection have been mutually negotiated by the parties hereto, and grantee acknowledges that the City would not enter into this agreement without grantee’s waiver thereof. To the extent required to provide this indemnification and this indemnification only, grantee waives its immunity under Title 51 RCW as provided in RCW 4.24.115.

C. Inspection or acceptance by the City of any work performed by grantee at the time of completion of construction shall not be grounds for avoidance of any of these covenants of indemnification. Provided that grantee has been given prompt written notice by the City of any such claim, said indemnification obligations shall extend to claims which are not reduced to a suit and any claims which may be compromised prior to the culmination of any litigation or the institution of any litigation. The City has the right to defend or participate in the defense of any such claim, and has the right to approve any settlement or other compromise of any such claim.

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

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

F. Notwithstanding any other provisions of this section, grantee assumes the risk of damage to its telecommunications facilities located in the public ways and upon City-owned property from activities conducted by the City, its officers, agents, employees and contractors, except to the extent any such damage or destruction is caused by or arises from any willful or malicious action on the part of the City, its officers, agents, employees or contractors. Grantee releases and waives any and all such claims against the City, its officers, agents, employees or contractors. Grantee further agrees to indemnify, hold harmless and defend the City against any claims for damages, including, but not limited to, business interruption damages and lost profits, brought by or under users of grantee’s facilities as the result of any interruption of service due to damage or destruction of grantee’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.

G. The provisions of this section shall survive the expiration, revocation, or termination of this agreement. (Ord. 2249 § 1, 1999).

12.50.0910 Security fund.

Each grantee shall establish a permanent security fund with the City by depositing the amount of $15,000 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 so long as any of the grantee’s cable or telecommunications facilities are located within the public ways of the City.

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 to comply with the codes, ordinances, rule, 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:

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, if applicable;

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

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

C. Grantees shall replenish the security fund within 14 days after written notice from the City that there is a deficiency in the amount of the fund. (Ord. 2249 § 1, 1999).

12.50.0920 Construction and completion bond.

Unless otherwise provided in a permit or franchise agreement, a performance bond written by a corporate surety acceptable to the City equal to at least 100 percent of the estimated cost of constructing the grantee’s cable or telecommunications facilities within the public ways of the City shall be deposited before construction is commenced.

A. The construction bond shall remain in force until 60 days after substantial completion of the work, as determined by the Public Works Director, including restoration of public ways 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 public ways and other property affected by the construction;

5. The submission of ‘as-built’ drawings after completion of the work as required by this chapter; and

6. Timely payment and satisfaction of all claims, demands or liens for labor, material or services provided in connection with the work. (Ord. 2249 § 1, 1999).

12.50.0930 Coordination of construction activities.

IMC 12.50.0900 notwithstanding, all grantees and other persons with cable or telecommunications facilities occupying public ways of the City are required to cooperate with the City and with each other.

A. By February 1st of each year, grantees and other persons with cable or telecommunications facilities occupying public ways of the City shall provide the City with a schedule of their proposed construction activities in, around, or that may affect the public ways.

B. Each grantee and other persons with cable or telecommunications facilities occupying public ways of the City shall meet with the City, other grantees and users of the public ways annually or as determined by the City to schedule and coordinate construction in the public ways.

C. All construction locations, activities and schedules shall be coordinated, as ordered by the City Public Works Director, to minimize public inconvenience, disruption or damages. (Ord. 2249 § 1, 1999).

12.50.0940 Assignments or transfers of grant.

Ownership or control of a telecommunications system, permit, or franchise may not, directly or indirectly, be transferred, assigned or disposed of by sale, lease, merger, consolidation or other act of the grantee, by operation of law or otherwise, without the prior written consent of the City, which consent shall not be unreasonably withheld or delayed, except as expressed by resolution and then only on such reasonable conditions as may be prescribed therein.

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

B. The grantee and the proposed assignee or transferee of the grant or system shall provide and certify the following information to the City not less than 150 days prior to the proposed date of transfer:

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

2. All information required of a permit or franchise applicant pursuant to Articles III and IV of this chapter with respect to the proposed transferee or assignee;

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

4. An application fee as provided in Chapter 3.65 IMC.

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

D. Unless otherwise provided in a license or franchise agreement, the grantee shall reimburse the City for all direct and indirect costs and expenses reasonably incurred by the City in considering a request to transfer or assign a permit or franchise. No approval shall be deemed approved until all such costs and expenses have been paid.

E. Any transfer or assignment of a permit, franchise, system or integral part of a system without prior written approval of the City under this section or pursuant to a permit or franchise agreement shall be void and is cause for revocation of the grant. (Ord. 2249 § 1, 1999).

12.50.0950 Transactions affecting control of grant.

Any transactions which singularly or collectively result in a change of 50 percent or more of the ownership or working control of the grantee, of the ownership or working control of a telecommunications system, of the ownership or working control of affiliated entities having ownership or working control of the grantee or of a telecommunications system, or of control of the capacity or bandwidth of the grantee’s telecommunication system, facilities or substantial parts thereof, shall be considered an assignment or transfer requiring City approval pursuant to IMC 12.50.0940. Transactions between affiliated entities are not exempt from City approval. A grantee shall promptly notify the City prior to any proposed change in, or transfer of, or acquisition by any other party of control of a grantee’s company. Every change, transfer, or acquisition of control of a grantee’s company shall cause a review of the proposed transfer. In the event that the City adopts a resolution denying its consent and such change, transfer or acquisition of control has been effected, the City may cancel the grant. Approval shall not be required for mortgaging purposes or if said transfer is from a grantee to another person or entity controlling, controlled by, or under common control with a grantee. (Ord. 2249 § 1, 1999).

12.50.0960 Revocation or termination of grant.

A permit or telecommunications franchise granted by the City to use or occupy public ways of the City may be revoked for the following reasons:

A. Construction or operation in the City or in the public ways of the City without a permit or franchise grant of authorization.

B. Construction or operation at an unauthorized location.

C. Unauthorized substantial transfer of control of grantee.

D. Unauthorized assignment of a grantee.

E. Unauthorized sale, assignment or transfer of a grantee’s franchise, permit, assets, or a substantial interest therein.

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

G. Abandonment of cable or telecommunications facilities in the public ways.

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

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

J. Insolvency or bankruptcy of the grantee.

K. Violation of any material provision of this chapter.

L. Violation of the material terms of a permit or franchise agreement. (Ord. 2249 § 1, 1999).

12.50.0970 Notice and duty to cure.

In the event that the Public Works Director believes that grounds exist for revocation of a permit or telecommunications franchise, he or she shall give the grantee 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 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 penalty or sanction less than revocation. (Ord. 2249 § 1, 1999).

12.50.0980 Hearing.

In the event that a grantee fails to provide evidence reasonably satisfactory to the Public Works Director as provided in IMC 12.50.0970 hereof, the Public Works Director shall refer the apparent violation or noncompliance to the City Council. The City Council shall provide the grantee with notice and a reasonable opportunity to be heard concerning the matter. (Ord. 2249 § 1, 1999).

12.50.0990 Standards for revocation or lesser sanctions.

If the City Council determines that a grantee willfully violated or failed to comply with any of the provisions of this chapter or a permit or telecommunications franchise granted under this chapter, or through willful misconduct or gross negligence failed to heed or comply with any notice given the grantee by the City under the provisions of this chapter, then the grantee shall, at the election of the City Council, forfeit all rights conferred hereunder and the permit or telecommunications franchise may be revoked or annulled. The City Council may elect, in lieu of the above and without any prejudice to any other legal rights and remedies, to pursue other remedies, including obtaining an order from the superior court having jurisdiction compelling the grantee or franchisee to comply with the provisions of this chapter and any permit or telecommunications franchise granted hereunder, and to recover damages and costs incurred by the City by reason of the grantee’s failure to comply. The City Council shall utilize the following factors in analyzing the nature, circumstances, extent and gravity of the violation and in making it’s 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.

F. Whether the violation was voluntarily disclosed, admitted or cured. (Ord. 2249 § 1, 1999).

12.50.1000 Incorporation by reference.

The provisions of this chapter shall be incorporated by reference in any permit or franchise approved hereunder. However, in the event of any conflict between this chapter and the permit or franchise, the permit or franchise shall be the prevailing document. (Ord. 2249 § 1, 1999).

12.50.1010 Notice of entry on private property.

At least 24 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 upon the affected property by the permittee or franchisee. A door hanger may be used to comply with the notice and posting requirements of this section. A grantee shall make a good faith effort to comply with the property owner/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. (Ord. 2249 § 1, 1999).

12.50.1020 Safety requirements.

A grantee, in accordance with applicable national, 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. All structures and all lines, equipment and connections in, over, under, and upon the streets, sidewalks, alleys, and public ways or places of a permit or franchise 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 permittee or franchisee is constructed and maintained in a safe condition. If a violation of the National Electrical Safety Code or other applicable regulation is found to exist by the City, the City will, after discussions with a grantee, establish a reasonable time for a franchisee 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 permittee or franchisee. (Ord. 2249 § 1, 1999).

12.50.1030 Authority to trim trees.

Each operator shall have the authority to trim trees upon and overhanging public ways, streets, alleys, sidewalks, and other public places of the City, so as to prevent the branches of such trees from coming in contact with the wires and cables of the operator. All trimming is to be done after the explicit prior written notification and approval of the City and at the expense of the operator. The operator may contract for such services, however any firm or individual so retained shall receive City approval prior to commencing such trimming. (Ord. 2249 § 1, 1999).

12.50.1040 City rights.

In addition to any other rights provided for in this ordinance, the City shall have the right, during the life of any permit or franchise granted hereunder, to install and maintain free of charge upon the poles or within any conduit owned by the grantee any wire and pole fixtures necessary for, but not limited to, a police or fire alarm system, on the condition that such wire and pole fixtures do not interfere with the operations of the grantee. If the grantee should need to expand its facilities and is prevented from doing so, because of the City’s use of the poles or conduit, then the City shall remove its facilities in a timely manner. The City shall hold the grantee harmless against and from all claims, demands, costs, or liabilities of every kind and nature whatsoever arising out of the City’s negligent act or omission in the use of said poles or conduits, including but not limited to reasonable attorney fees and costs. However, in the event the City is not solely at fault, the City’s liability hereunder shall be limited to its proportionate share of fault. (Ord. 2249 § 1, 1999).

Article VI. Construction Standards

12.50.1050 General construction standards.

No person shall commence or continue with the construction, installation or operation of cable or telecommunications facilities within the City except as provided in this chapter. (Ord. 2249 § 1, 1999).

12.50.1060 Construction codes.

Cable and telecommunications facilities shall be constructed, installed, operated and maintained in accordance with all applicable federal, state and local codes, rules and regulations. (Ord. 2249 § 1, 1999).

12.50.1070 Construction permits.

No person shall construct or install any cable or telecommunications facilities within the City without first obtaining a construction permit therefor, provided, however:

A. No permit shall be issued for the construction or installation of cable or telecommunications facilities within the City unless the cable operator or telecommunications carrier has filed an application for a utility occupation license with the City pursuant to Article II of this chapter.

B. No permit shall be issued for the construction or installation of telecommunications facilities in the public ways unless the cable operator or telecommunications carrier has applied for and received a permit or franchise pursuant to this chapter.

C. No permit shall be issued for the construction or installation of cable or telecommunications facilities without payment of the construction permit fee established by Chapter 3.65 IMC. (Ord. 2249 § 1, 1999).

12.50.1080 Applications.

Applications for permits to construct cable or telecommunications facilities shall be submitted upon forms to be provided by the City and shall be accompanied by drawings, plans and specifications in sufficient detail to demonstrate:

A. That the facilities will be constructed in accordance with all applicable codes, rules and regulations.

B. The location and route of all facilities to be installed on existing utility poles.

C. The location and route of all facilities to be located under the surface of the ground, including the line and grade proposed for the burial at all points along the route which are within the public ways.

D. The location of all existing underground utilities, conduits, ducts, pipes, mains and installations which are within the public ways along the underground route proposed by the applicant.

E. The location of all other facilities to be constructed within the City, but not within the public ways.

F. The construction methods to be employed for protection of existing structures, fixtures, and facilities within or adjacent to the public ways.

G. The location, dimension and types of all trees within or adjacent to the public ways along the route proposed by the applicant, together with a landscape plan for protecting, trimming, removing, replacing and restoring any trees or areas to be disturbed during construction. (Ord. 2249 § 1, 1999).

12.50.1090 Engineer’s certification.

All permit applications shall be accompanied by the certification of a registered professional engineer that the drawings, plans and specifications submitted with the application comply with applicable technical codes, rules and regulations. (Ord. 2249 § 1, 1999).

12.50.1100 Traffic control plan.

All permit applications which involve work on, in, under, across or along any public ways shall be accompanied by a traffic control plan demonstrating the protective measures and devices that will be employed, consistent with Uniform Manual of Traffic Control Devices, to prevent injury or damage to persons or property and to minimize disruptions to efficient pedestrian and vehicular traffic. (Ord. 2249 § 1, 1999).

12.50.1110 Issuance of permit.

Within 45 days after submission of all plans and documents required of the applicant and payment of the permit fees required by this article, the Public Works Director, if satisfied that the applications, plans and documents comply with all requirements of this chapter, shall issue a permit authorizing construction of the facilities, subject to such further conditions, restrictions or regulations affecting the time, place and manner of performing the work as he may deem necessary or appropriate. (Ord. 2249 § 1, 1999).

12.50.1120 Construction schedule.

The permittee shall submit a written construction schedule to the Public Works Director 10 working days before commencing any work in or about the public ways. The permittee shall further notify the Public Works Director not less than 2 working days in advance of any excavation or work in the public ways. (Ord. 2249 § 1, 1999).

12.50.1130 Compliance with permit.

All construction practices and activities shall be in accordance with the permit and approved final plans and specifications for the facilities. The Public Works Director and his or her representatives shall be provided access to the work and such further information as he or she may require to ensure compliance with such requirements. (Ord. 2249 § 1, 1999).

12.50.1140 Display of permit.

The permittee shall maintain a copy of the construction permit and approved plans at the construction site, which shall be displayed and made available for inspection by the Public Works Director or his or her representatives at all times when construction work is occurring. (Ord. 2249 § 1, 1999).

12.50.1150 Survey of underground facilities.

If the construction permit specifies the location of facilities by depth, line, grade, proximity to other facilities or other standard, the permittee shall cause the location of such facilities to be verified by a state-registered land surveyor. The permittee shall relocate any facilities which are not located in compliance with permit requirements. (Ord. 2249 § 1, 1999).

12.50.1160 Noncomplying work.

Upon order of the Public Works Director, all work which does not comply with the permit, the approved plans and specifications for the work, or the requirements of this chapter, shall be removed. (Ord. 2249 § 1, 1999).

12.50.1170 Completion of construction.

The permittee shall promptly complete all construction activities so as to minimize disruption of the public and other ways and other public and private property. All construction work authorized by a permit within public and other ways, including restoration, must be completed within 120 days of the date of issuance. (Ord. 2249 § 1, 1999).

12.50.1180 As-built drawings.

Within 60 days after completion of construction, the permittee shall furnish the City with an AutoCad compatible drawing and 2 complete sets of plans, drawn to scale and certified to the City as accurately depicting the location of all cable or telecommunications facilities constructed pursuant to the permit. (Ord. 2249 § 1, 1999).

12.50.1190 Restoration of improvements.

Upon completion of any construction work, the permittee shall promptly repair any and all public and private property improvements, fixtures, structures and facilities in the public or other ways or otherwise damaged during the course of construction, restoring the same as nearly as practicable to its condition before the start of construction. (Ord. 2249 § 1, 1999).

12.50.1200 Landscape restoration.

A. All trees, landscaping and sounds removed, damaged or disturbed as a result of the construction, installation maintenance, repair or replacement of cable or telecommunications facilities, whether such work is done pursuant to a franchise or permit shall be replaced or restored as nearly as may be practicable, to the condition existing prior to performance of work.

B. All restoration work within the public ways shall be done in accordance with landscape plans approved by the City Public Works Director. (Ord. 2249 § 1, 1999).

12.50.1210 Construction surety.

Prior to issuance of a construction permit, the permittee shall provide a performance bond, as provided in IMC 12.50.0920. (Ord. 2249 § 1, 1999).

12.50.1220 Exceptions.

Unless otherwise provided in a permit or franchise agreement, all cable operations and telecommunications carriers are subject to the requirements of this article. (Ord. 2249 § 1, 1999).

12.50.1230 Responsibilities of the owner.

The owner of the facilities to be constructed and, if different, the permittee or franchisee, are responsible for performance of and compliance with all provisions of this article. (Ord. 2249 § 1, 1999).