Chapter 4.14 CONDITIONS OF TELECOMMUNICATIONS RIGHT‑OF‑WAY USE

The purpose of this chapter is to set forth certain terms and conditions which are common to all telecommunications right-of-way use authorizations, telecommunications franchises (including open video system and cable television franchises), and facilities leases. Except as otherwise provided in this title or in such an authorization, franchise, or lease, the provisions of this chapter apply to all such authorizations, franchises, and leases approved or granted by the city. (Ord. 293 (part), 2000)

4.14.020 Acceptance.

No authorization, franchise, or lease granted pursuant to the provisions of this title shall become effective unless and until the ordinance or other city action granting the same has become effective. Within thirty days after the effective date of the ordinance or other city action granting an authorization, franchise, or lease, or within such extended period of time as the council in its discretion may authorize, the applicant shall file with the city clerk an unconditional written acceptance of the authorization, franchise, or lease, in a form satisfactory to the city attorney, together with the bonds, insurance policies, and security fund required by this chapter. (Ord. 293 (part), 2000)

4.14.030 Police power.

In accepting any authorization, franchise or lease, the grantee, franchisee, or lessee acknowledges that its rights hereunder are subject to the legitimate rights of the police power of the city to adopt and enforce general ordinances necessary to protect the safety and welfare of the public, and it agrees to comply with all applicable general laws enacted by the city pursuant to such power. (Ord. 293 (part), 2000)

4.14.040 Rules and regulations by the city.

In addition to the inherent powers of the city to regulate and control any authorization, franchise, or lease 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 authorization, franchise, or lease, 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, franchisees, and lessees. Except as provided in this title, the foregoing does not allow for amendment by the city of material terms of any authorization, franchise, or lease it issues without the consent of the grantee, franchisee, or lessee. The city reserves the right to delegate its authority for authorization, franchise, and lease administration to a designated agent. (Ord. 293 (part), 2000)

4.14.050 Location of facilities.

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

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

B. Whenever any new or existing electric utilities, cable facilities, or telecommunications facilities are located or relocated underground within a public way of the city, a grantee, franchisee, or lessee that currently occupies the same public way shall, (when reasonably necessary for construction, alteration, repair or improvement of the public way or right-of-way for purposes of public welfare, health or safety), relocate its facilities underground. Such relocation shall be at no expense to the city except where specifically allowed by state law. In mandating such relocation the city shall strictly comply with all applicable state laws.

1. The city shall notify impacted parties as soon as practicable of the need for relocation and shall specify the date by which relocation shall be completed. In calculating the date that relocation must be completed, the city shall consult with the impacted parties and consider the extent of the facilities to be relocated, the service requirements, and the construction sequence for the relocation, within the city’s overall project construction sequence and constraints, to safely complete the relocation.

2. Service providers shall complete the relocation by the date specified, unless the city, or a reviewing court, establishes a later date for completion, after a showing by the impacted party (or parties) that the relocation cannot be completed by the date specified using best efforts and meeting safety and service requirements.

C. At the option of the city, whenever new conduit is laid, the city shall be provided one additional four-inch conduit (or such other equivalent facility as the city shall reasonably mandate) for city use. The city shall enter into such contracts with the grantee, franchisee or lessee as are mandated by state law. In seeking and making use of requested conduit or other facilities the city shall strictly comply with all relevant provisions of state law. (Ord. 293 (part), 2000)

4.14.060 Conduit occupancy.

Subject to the requirements of state law and in furtherance of the public purpose of reduction of rights-of-way excavation, it is the goal of the city to encourage both the shared occupancy of underground conduit as well as the construction, whenever possible, of excess conduit capacity for occupancy of future right-of-way occupants. Therefore, if a grantee, franchisee or lessee is constructing underground conduit for its own telecommunications facility, and the city reasonably determines such construction is in an area in which another telecommunications provider(s) may also construct telecommunications facilities in the future, the city may require the grantee, franchisee or lessee to construct excess conduit capacity in the rights-of-way, provided the expense of such excess conduit capacity shall be borne by the city in accordance with state law (being the incremental cost of that installation unless the city makes such excess conduit available to another person for the purpose of providing telecommunications or cable television service for hire, sale or resale to the general public then such rate shall be the fully allocated cost). City will be permitted to sublease the excess conduit at its sole discretion. (Ord. 293.A § 2, 2001: Ord. 293 (part), 2000)

4.14.070 Occupancy of city-owned conduit.

In furtherance of the same objectives of BMC 4.14.060, if the city owns or leases conduit in the path of grantee’s, franchisee’s, or lessee’s proposed telecommunications facilities, and provided it is technologically feasible for grantee, franchisee, or lessee to occupy the conduit owned or leased by the city, grantee, franchisee, or lessee shall be required to occupy the conduit owned or leased by the city in order to reduce the necessity to excavate the rights-of-way. Grantee, franchisee, or lessee shall pay to the city a fee for such occupancy that shall at a minimum reimburse the city for its costs associated with acquiring and maintaining the conduit to be used. (Ord. 293 (part), 2000)

4.14.080 Compliance with One Number Locator Service.

All grantees, franchisees, and lessees shall, before commencing any construction in the public ways, comply with all relevant provisions of Chapter 19.122 RCW, the One Number Locator Service. (Ord. 293 (part), 2000)

4.14.090 Right-of-way use permits.

All grantees, franchisees, and lessees are required to obtain right-of-way use permits for cable and telecommunications facilities as required in Chapter 4.16 BMC, or as are otherwise required by local law. However, nothing in this title shall prohibit the city and a grantee, franchisee, or lessee from agreeing to alternative and/or accelerated plan review, permit, and construction procedures for an authorization, franchise, or lease granted under this title, provided such alternative procedures provide substantially equivalent safeguards for responsible construction practices. (Ord. 293 (part), 2000)

4.14.100 Interference with the public ways.

No grantee, franchisee, or lessee may locate or maintain its cable or telecommunications facilities so as to unreasonably interfere with the use of the public ways 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, franchisee, or lessee, at the grantee’s, franchisee’s, or lessee’s cost (as determined by state law), temporarily or permanently, as determined by the city’s public works superintendent. (Ord. 293 (part), 2000)

4.14.110 Damage to property.

No grantee, franchisee, or lessee, nor any person acting on a grantee’s, franchisee’s, or lessee’s behalf shall take any action or permit any action to be done which may impair or damage any city property, public ways of the city, other ways or other property, whether publicly or privately owned, located in, on or adjacent thereto. This section shall not apply to necessary street cuts approved by the city. (Ord. 293 (part), 2000)

4.14.120 Notice of work.

Unless otherwise provided in an authorization, franchise, or lease agreement, no grantee, franchisee, or lessee, nor any person acting on the grantee’s, franchisee’s, or lessee’s behalf, shall commence any nonemergency work in or about the public ways of the city, other ways, or upon city property without providing ten working days’ advance notice to the city. (Ord. 293 (part), 2000)

4.14.130 Repair and emergency work.

In the event of an unexpected repair or emergency, a grantee, franchisee, or lessee may commence such repair and emergency response work as required under the circumstances, provided the grantee, franchisee, or lessee shall notify the city as promptly as possible, before such repair or emergency work commences or as soon thereafter as possible if advance notice is not practicable. (Ord. 293 (part), 2000)

4.14.140 Maintenance of facilities.

Each grantee, franchisee, or lessee shall maintain its facilities in good and safe condition and in a manner that complies with all applicable federal, state and local requirements. (Ord. 293 (part), 2000)

4.14.150 Relocation or removal of facilities.

As soon as practicable from learning of the need to relocate or remove facilities, the city shall provide a grantee, franchisee or lessee with written notice of that need. Such notice shall specify the date by which such relocation shall be completed. In determining the completion date the city shall consult with all impacted grantees, franchisees and/or lessees and consider such other criteria as are required by state law. Within less than thirty days following written notice from the city, a grantee, franchisee, or lessee shall provide a schedule to the city indicating the estimated completion date for temporarily or permanently removing, relocating, changing, or altering the position of any cable or telecommunications facilities within the public ways or upon city property whenever the city’s public works superintendent shall have determined that such removal, relocation, change, or alteration is reasonably necessary for:

A. The construction, alteration, repair, maintenance or installation of any city or other public improvement in or upon the public ways for purposes of public, health, safety or welfare; and

B. The operations of the city or other governmental entity in or upon the public ways.

C. This work shall generally be completed within ninety days following the original notice by the city unless a different duration is specifically authorized by the city. (Ord. 293 (part), 2000)

4.14.160 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, franchisee, or lessee, upon fifteen days’ written notice from the city, shall raise or remove, at the expense of the person desiring to move the building, any of the grantee’s, franchisee’s, or lessee’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. 293 (part), 2000)

4.14.170 Removal of unauthorized facilities.

Within ninety days following written notice from the city, any telecommunications carrier or provider or other person who owns, controls, or maintains any unauthorized cable or telecommunications system, 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 or franchisee’s authorization or franchise;

B. Upon abandonment of a facility within the public ways of the city (any property of a grantee or franchisee shall be deemed abandoned if left in place ninety days after expiration or termination of an authorization or franchise);

C. If the system or facility was constructed or installed without the prior grant of an authorization or franchise;

D. If the system or facility was constructed or installed without the prior issuance of a required right-of-way use permit; and

E. If the system or facility was constructed or installed at a location not permitted by the authorization or franchise.

Provided, however, that the city may, in its sole discretion, allow a grantee, franchisee, 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 or franchisee’s facilities must be first approved by the city’s public works superintendent and all necessary permits must be obtained prior to such work. Upon permanent abandonment of the property of such persons in place, the property shall become that of the city, and such persons shall submit to the city an instrument in writing, to be approved by the city attorney, transferring to the city the ownership of such property. The provisions of this section shall survive the expiration, revocation, or termination of an authorization or franchise granted under this title. (Ord. 293 (part), 2000)

4.14.190 Damage to facilities.

Unless directly and proximately caused by the willful, intentional, or malicious acts of the city, the city shall not be liable for any damage to or loss of any 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. 293 (part), 2000)

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

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

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

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

D. The city’s public works superintendent shall be responsible for inspection and final approval of the condition of the public ways, other ways, and city property following any construction and restoration activities therein. Further, the provisions of this section shall survive the expiration, revocation, or termination of an authorization, franchise, lease, or other agreement granted pursuant to this title. (Ord. 293 (part), 2000)

4.14.210 Facilities maps.

For all new or relocated facilities, each grantee, franchisee, and lessee shall provide the city with a map or maps accurately reflecting the horizontal and vertical location and configuration of all of their telecommunications facilities within the public ways and upon city property. Each grantee, franchisee, and lessee shall provide the city with updated maps annually or upon request by the city. (Ord. 293 (part), 2000)

4.14.220 Duty to provide information.

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

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

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

All books, records, maps and other documents, maintained by the grantee, franchisee, or lessee with respect to its facilities within the public ways and upon city property shall be made available for inspection by the city at reasonable times and intervals; provided, however, that nothing in this section shall be construed to require a grantee, franchisee, or lessee to violate federal or state law regarding subscriber privacy, nor shall this section be construed to require a grantee, franchisee, or lessee to disclose proprietary or confidential information without adequate safeguards for the retention of its confidential or proprietary nature. (Ord. 293 (part), 2000)

4.14.230 Leased capacity.

Upon request and where permitted by law, a grantee, franchisee, or lessee shall have the right, without prior city approval, to offer or provide capacity or bandwidth to another telecommunications provider consistent with such permit, franchise, or lease; provided:

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

B. The telecommunications provider has complied, to the extent applicable, with the requirements of these chapters. (Ord. 293.A § 3, 2001: Ord. 293 (part), 2000)

4.14.240 Insurance.

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

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

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

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

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

B. Automobile liability for owned, non-owned and hired vehicles with a limit of three million dollars for each person and three million dollars for each accident;

C. Worker’s compensation within statutory limits and employer’s liability insurance with limits of not less than one million dollars;

D. Comprehensive form premises-operations, explosions and collapse hazard, underground hazard and products completed hazard with limits of not less than three million dollars;

E. The liability insurance policies required by this section shall be maintained by the grantee, franchisee, or lessee throughout the term of the authorization, franchise, or lease, and such other period of time during which the grantee, franchisee, or lessee is operating without an authorization, franchise, or lease hereunder, or is engaged in the removal of its telecommunications facilities. The grantee, franchisee, or lessee shall provide an insurance certificate, together with an endorsement naming the city, and its elected and appointed officers, officials, agents, employees, representatives, engineers, consultants, and volunteers as additional insureds, to the city prior to the commencement of any work or installation of any facilities pursuant to said authorization, franchise, or lease. Any deductibles or self-insured retentions must be declared to and approved by the city. Payment of deductibles and self-insured retentions shall be the sole responsibility of the grantee, franchisee, or lessee. The insurance certificate required by this section shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability. The grantee’s, franchisee’s, or lessee’s insurance shall be primary insurance as respects the city, its officers, officials, employees, agents, consultants, and volunteers. Any insurance maintained by the city, its officers, officials, employees, consultants, agents, and volunteers shall be in excess of the grantee’s, franchisee’s, or lessee’s insurance and shall not contribute with it;

F. In addition to the coverage requirements set forth in this section, each such insurance policy shall contain 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 sixty days after receipt by the City, by registered mail, of a written notice addressed to the City Administrator of such intent to cancel or not to renew.

G. Within thirty days after receipt by the city of said notice, and in no event later than fifteen days prior to said cancellation or intent not to renew, the grantee, franchisee, or lessee shall obtain and furnish to the city replacement insurance policies meeting the requirements of this section;

H. For those companies who are self-insured, they must provide documentation acceptable to the city demonstrating that the coverage provided meets or exceeds that described above. (Ord. 293 (part), 2000)

4.14.250 General indemnification.

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

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

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

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

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

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

Notwithstanding any other provisions of this Section, the grantee, franchisee, or lessee assumes the risk of damage to its facilities located in the City’s public ways, rights-of-way, easements, and property from activities conducted by the City, its officers, agents, employees, and contractors. The grantee, franchisee, or lessee releases and waives any and all claims against the City, its officers, agents, employees, or contractors for damage to or destruction of the grantee, franchisee, or lessee’s facilities caused by or arising out of activities conducted by the City, its officers, agents, employees, and contractors, in the public ways, rights-of-way, easements, or property subject to this authorization, franchise, or lease, except to the extent any such damage or destruction is caused by or arises from the sole negligence or any willful or malicious action on the part of the City, its officers, agents, employees, or contractors. The grantee, franchisee, or lessee further agrees to indemnify, hold harmless and defend the City against any claims for damages, including, but not limited to, business interruption damages and lost profits, brought by or under users of the grantee, franchisee, or lessee’s facilities as the result of any interruption of service due to damage or destruction of the user’s facilities caused by or arising out of activities conducted by the City, its officers, agents, employees, or contractors, except to the extent any such damage or destruction is caused by or arises from the sole negligence or any willful or malicious actions on the part of the City, its officers, agents, employees, permittees (including those working in public ways of the City pursuant to permission granted by City pursuant to BMC), third parties performing work in public ways of the City without City permission, or contractors, except to the extent of any such damage or destruction is caused by or arises from the sole negligence or any willful or malicious actions on the part of the City, its officers, agents, employees, or contractors.

(Ord. 293.A § 4, 2001: Ord. 293 (part), 2000)

4.14.260 Performance and construction surety.

Before an authorization, franchise, or lease granted pursuant to this title is effective, and as necessary thereafter, the grantee, franchisee, or lessee shall provide and deposit such moneys, bonds, letters of credit, or other instruments in form and substance acceptable to the city as may be required by this title or by an applicable authorization, franchise, or lease agreement. (Ord. 293 (part), 2000)

4.14.270 Security fund.

Each grantee, franchisee, or lessee shall establish a permanent security fund with the city by depositing the amount of twenty thousand dollars, or such lesser amount as deemed necessary by the city’s public works superintendent 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, franchisee, or lessee so long as any of the grantee’s, franchisee’s, or lessee’s cable or telecommunications facilities are located within the public ways of the city or upon city property. Interest derived from a cash deposit shall accrue to the benefit of the grantee, franchisee or lessee.

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

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

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

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

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

4. That the grantee, franchisee, or lessee will be given an opportunity to review the act, default or failure described in the notice with the city’s public works superintendent or designee.

C. Grantees, franchisees and lessees shall replenish the security fund within fourteen days after written notice from the city that there is a deficiency in the amount of the fund. (Ord. 293 (part), 2000)

4.14.280 Restoration bond.

Unless otherwise provided in an authorization, franchise, or lease agreement, a performance bond written by a corporate surety acceptable to the city equal to at least one hundred percent of the estimated cost of removing the grantee’s, franchisee’s, or lessee’s telecommunications equipment and facilities and restoring the public ways of the city and/or city-owned property to its pre-construction condition shall be deposited before any construction is commenced. Said bond shall be required to remain in full force until sixty days after completion of the construction and/or improvements within the public ways of the city or upon city-owned property, and shall warrant all such restoration work for a period of one year. The purpose of this bond is to guarantee removal of partially completed and/or nonconforming telecommunications facilities and to fully restore the public ways of the city and city-owned property to its preconstruction condition. (Ord. 293 (part), 2000)

4.14.290 Coordination of construction activities.

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

A. By February 1st of each year, grantees and franchisees 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 franchisee shall meet with the city, other grantees and franchisees and users of the public ways annually or as determined by the city to schedule and coordinate construction in the public ways.

1. In order to facilitate the scheduling and coordination of work in the public ways, the city shall provide as much advance notice as is reasonable of plans to open public ways to grantees, and franchisees who are current users of the public ways or who have filed notice (in such form as the city requires) of their intent to place facilities in the city.

C. All construction locations, activities and schedules shall be coordinated, as ordered by the city’s public works superintendent to minimize public inconvenience, disruption or damages. (Ord. 293 (part), 2000)

4.14.300 Assignments or transfers of grant.

Ownership or control of a cable or open video telecommunications system, an authorization, franchise, or lease may not, directly or indirectly, be transferred, assigned or disposed of by sale, lease, merger, consolidation or other act of the grantee, franchisee or lessee, by operation of law or otherwise, without the prior written consent of the city, which consent shall not be unreasonably withheld or delayed, except as expressed by ordinance and then only on such reasonable conditions as may be prescribed therein. This obligation shall not apply to involuntary mergers or acquisitions.

A. No authorization, franchise, lease, or other grant shall be assigned or transferred in any manner within twelve months after the initial grant of the authorization or franchise, unless otherwise provided in the authorization or franchise agreement.

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

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

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

2. All information required of an authorization, franchise, or lease applicant pursuant to Chapters 4.04, 4.06, 4.08, 4.10 and 4.12 BMC with respect to the proposed transferee or assignee;

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

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

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

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

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

G. Notwithstanding the above, an authorization, franchise, or lease may be transferred, assigned or disposed of by sale, lease, merger or consolidation or other act of the grantee, franchisee or lessee without the prior written or other consent of the city if such transfer, assignment or disposition is to an entity owned, controlled or affiliated with or is a parent company of the franchisee, grantee or lessee, provided such transferee within one hundred eighty days of the completion of such transfer, assignment or other disposition shall provide the city with a written commitment to abide by the terms of the authorization, franchise or lease so transferred. (Ord. 293.A § 5, 2001; Ord. 293 (part), 2000)

4.14.310 Transactions affecting control of grant.

Any transactions which singularly or collectively result in a change of fifty percent or more of the ownership or working control of the grantee, franchisee, lessee, of the ownership or working control of a cable, open video or telecommunications system, of the ownership or working control of affiliated entities having ownership or working control of the grantee, franchisee, or lessee or of a telecommunications system, or of control of the capacity or bandwidth of the grantee’s, franchisee’s, or lessee’s cable, open video or telecommunication system, facilities or substantial parts thereof, shall be considered an assignment or transfer requiring city approval. Transactions between affiliated entities are not exempt from city approval. A grantee, franchisee, or lessee shall promptly notify the city prior to any proposed change in, or transfer of, or acquisition by any other party of control of a grantee’s, franchisee’s, or lessee’s company. Every change, transfer, or acquisition of control of a grantee’s, franchisee’s, or lessee’s company shall cause a review of the proposed transfer. In the event that the city adopts a resolution or other appropriate order denying its consent and such change, transfer or acquisition of control has been effected, the city may cancel the authorization, franchise, or lease. Approval shall not be required for mortgaging purposes or if said transfer is from a grantee, franchisee, or lessee to another person or entity controlling, controlled by, or under common control with a grantee, franchisee, or lessee. (Ord. 293 (part), 2000)

4.14.320 Revocation or termination of grant.

An authorization, franchise, or lease granted by the city to use or occupy public ways of the city or city property may be revoked for the following reasons:

A. Construction or operation in the city or in the public ways of the city or upon city property without a grant of authority from an authorization, franchise, or lease;

B. Construction or operation at an unauthorized location;

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

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

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

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

G. Abandonment of cable or telecommunications facilities in the public ways or upon city property;

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

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

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

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

L. Violation of the material terms of an authorization, franchise, or lease agreement. (Ord. 293 (part), 2000)

4.14.330 Notice and duty to cure.

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

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

B. That rebuts the alleged violation or noncompliance; and/or

C. That it would be in the public interest to impose some penalty or sanction less than revocation. (Ord. 293 (part), 2000)

4.14.340 Hearing.

In the event that a grantee, franchisee or lessee fails to provide evidence reasonably satisfactory to the city as provided in BMC 4.14.330, the city shall refer the apparent violation or noncompliance to the city council, which shall appoint a hearing examiner to conduct a hearing on the merits of the matter referred. The hearing examiner’s decision shall be reported to the council, which shall sustain the recommendation of the hearing examiner, except in cases of unsupported findings of fact and/or clear error of law. (Ord. 293 (part), 2000)

4.14.350 Standards for revocation or lesser sanctions.

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

A. Whether the misconduct was egregious;

B. Whether substantial harm resulted;

C. Whether the violation was intentional;

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

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

F. Whether the violation was voluntarily disclosed, admitted or cured. (Ord. 293 (part), 2000)

4.14.360 Incorporation by reference.

The provisions of this title shall be incorporated by reference in any authorization, franchise, or lease approved hereunder. The provisions of any proposal submitted and accepted by the city shall be incorporated by reference in the applicable authorization, franchise, or lease. However, in the event of any conflict between the proposal, this title, and the authorization, franchise, or lease, the authorization, franchise, or lease shall be the prevailing document. (Ord. 293 (part), 2000)

4.14.370 Notice of entry on private property.

If directed by the city, at least twenty-four hours prior to entering private property or streets or public easements adjacent to or on such private property to perform new construction or reconstruction, a notice indicating the nature and location of the work to be performed shall be physically posted, at no expense to the city, upon the affected property by the grantee or franchisee. A door hanger may be used to comply with the notice and posting requirements of this section. A grantee or franchisee shall make a good faith effort to comply with the property owner/resident’s preferences, if any, on location or placement of underground or other installations (excluding aerial cable lines utilizing existing poles and existing cable paths), consistent with sound engineering practices; provided, however, that nothing in this chapter shall permit a grantee or franchisee to unlawfully enter or construct improvements upon the property or premises of another. (Ord. 293 (part), 2000)

4.14.380 Safety requirements.

A grantee, franchisee, or lessee, in accordance with applicable federal, state, and local safety requirements shall, at all times, employ ordinary care and shall install and maintain and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injury, or nuisance to the public and/or workers. All structures and all lines, equipment and connections in, over, under, and upon the streets, sidewalks, alleys, and public ways or places of a permit, franchise, or lease area, wherever situated or located, shall at all times be kept and maintained in a safe, suitable condition, and in good order and repair. The city reserves the general right to see that the system of a grantee, franchisee, or lessee 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, franchisee, or lessee, establish a reasonable time for a grantee, franchisee, or lessee to make necessary repairs. If the repairs are not made within the established time frame, the city may make the repairs itself or have them made and collect all reasonable costs thereof from a grantee, franchisee, or lessee. (Ord. 293 (part), 2000)

4.14.390 Most favored community.

Subject to federal (including but not limited to decisions rendered by the FCC) and state law that in the event that a grantee, franchisee, or lessee enters into any agreement, franchise or other understanding with any other city, town, or county in the state of Washington which provides terms or conditions more favorable to the city, town, or county than those provided in its agreement with the city, the city shall be entitled to request at the city’s option, and the grantee, franchisee, or lessee in question shall be required to execute, an amendment to its agreement which incorporates the more favorable terms and conditions. (Ord. 293.A § 6, 2001: Ord. 293 (part), 2000)