Chapter 15.22
TELECOMMUNICATIONS
RIGHT-OF-WAY USE

Sections:

15.22.010    Purpose.

15.22.020    Definitions.

15.22.030    Master permit and use permit required.

15.22.040    Application – Master permit.

15.22.050    Approval of master permit.

15.22.060    Application – Use permit.

15.22.070    Approval of use permit.

15.22.080    Terms of use and occupancy.

15.22.090    Reimbursement of city costs and expenses.

15.22.100    Coordination of construction and joint trenching.

15.22.110    Deferment of construction.

15.22.120    Specifications.

15.22.130    Exceptions.

15.22.140    Revocation of master permits.

15.22.150    Performance bond.

15.22.160    Security fund.

15.22.170    Insurance.

15.22.180    Hold harmless/indemnity.

15.22.190    Inspections.

15.22.200    Correction and discontinuance of unsafe, nonconforming, or unauthorized conditions.

15.22.210    Displacement for public use.

15.22.220    Additional ducts or conduits.

15.22.230    Site-specific changes.

15.22.240    City use for government communication.

15.22.250    Painting poles.

15.22.260    Accommodating moving of building(s) and/or equipment.

15.22.270    Removal.

15.22.280    Billings and collections.

15.22.290    Appeals.

15.22.300    Tree trimming.

15.22.310    Undergrounding of telecommunication facilities.

15.22.320    Joint trenching.

15.22.330    One Call Locator.

15.22.340    Violation, penalties, and enforcement.

15.22.010 Purpose.

A. The purpose of this chapter is to provide for the regulation of the use of public rights-of-way by any business, service, or person which is engaged in supplying the public with telecommunications service. To the extent the provision of any current franchise or other written agreement with a telecommunications carrier conflicts with any provision of this chapter, the applicable provision of the franchise or other written agreement shall prevail.

B. The provisions of this chapter shall apply to all telecommunications carriers which occupy, use, construct, or maintain utility or telecommunications facilities within public rights-of-way of the city. Except as otherwise provided herein, the provisions of this chapter shall not apply to cable operators maintaining cable systems as said terms are defined in 47 U.S.C. Section 522. (Ord. 1174 § 1 (part), 2000).

15.22.020 Definitions.

For the purposes of this chapter, the following terms, phrases, and words shall have the meanings set forth below unless the context clearly indicates otherwise. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number.

A. “Applicant” means any person or entity that applies for a master permit or use permit pursuant to this chapter;

B. “City” means the city of Chelan, Washington;

C. “Council” means the city council of the city of Chelan, Washington acting in its official capacity;

D. “Department” means the public works department of the city of Chelan, Washington;

E. “Director” as used herein means the city engineer or his designee for the city of Chelan;

F. “Emergency” means a condition of imminent danger to the health, safety, and welfare of property or persons located within the city, including, but not limited to, damage to persons or property from natural consequences, such as storms, earthquakes, riots or wars;

G. “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;

H. “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;

I. “Public improvement” as used herein, means all work, construction, alterations, repair or improvements within public rights-of-way, executed at the cost or under contract of the city, or caused to be performed by any person or entity as a condition or requirement of an approval or permit for zoning, land use, construction, or development if dedicated or required to be dedicated to the public use, benefit or enjoyment;

J. “Public rights-of-way” means any highway, street, alley, other public right-of-way, or easement for motor vehicle under the jurisdiction and control of the city which has been acquired, established, dedicated or devoted to such purposes, but only to the extent of the city’s right, title, interest or authority to grant a permit to occupy and use such streets and easements for telecommunications and utility facilities;

K. “State” means the state of Washington;

L. “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 federal or state orders and regulations, to allow its use by a public utility or telecommunications carrier for a pole attachment. “Surplus space” shall also include usable space within underground conduits and ducts when the necessary clearance from other users, as required by federal or state orders and regulations, can be achieved;

M. “Telecommunications carrier” means every corporation, company, association, joint stock association, firm, partnership, person, city, or town owning, operating, or managing any facilities used to provide and providing telecommunications service for hire, sale, or resale to the general public. Service provider includes the legal successor to any such corporation, company, association, joint stock association, firm, partnership, person, city, or town;

N. “Telecommunications facilities” means all of the plant, equipment, fixtures, appurtenances, antennas, and other facilities necessary to furnish and deliver telecommunications services, including but not limited to, poles with crossarms, poles without crossarms, wires, lines, conduits, cables, communication and signal lines and equipment, braces, guys, anchors, vaults, and all attachments, appurtenances, and appliances necessary or incidental to the distribution and use of telecommunications services;

O. “Telecommunications service” means the transmission of information by wire, radio, optical cable, electromagnetic, or other similar means for hire, sale, or resale to the general public. For the purpose of this subsection, “information” means knowledge or intelligence represented by any form of writing, signs, signals, pictures, sounds, or any other symbols;

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

Q. “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;

R. “Utility easement” means any easement owned by the city and acquired, established, dedicated or devoted for public utility purposes; and

S. “Utility facilities” as used herein means all conduit, wires, lines, poles, pipes, cables, communication and signal lines, braces, guys, anchors, vaults, pedestals, antennas, and all other structures, equipment and appurtenances thereto owned, operated or maintained by a public utility and used to furnish utility services. (Ord. 1174 § 1 (part), 2000).

15.22.030 Master permit and use permit required.

A. It is unlawful for any person to maintain, operate on, under, or over public rights-of-way, any telecommunications facilities or any other appurtenances necessary for the purpose of providing telecommunications service without complying with all the provisions of any ordinance in relation thereto and obtaining and having a master permit for such purpose.

B. It is unlawful for any person to construct, install, repair, or maintain on, under, or over public rights-of-way, any telecommunications facilities or cable service or any other appurtenances necessary for the purpose of providing telecommunications service or cable service without obtaining a use permit from the director for such purpose. (Ord. 1174 § 1 (part), 2000).

15.22.040 Application – Master permit.

A. To obtain a master permit, the applicant shall file an application with the director.

B. The director shall examine each complete application submitted to determine if it complies with the applicable provisions of this chapter and criteria for approval set forth in Section 15.22.050 of this chapter. Other departments that have authority over the proposed use or activity may be required to review and comment on the application. The director may inspect the public rights-of-way proposed for use to determine any facts which may aid in determining whether a master permit should be approved. Master permits shall be approved or denied within one hundred twenty business days of submission of a complete application, except with the agreement of the applicant or when the master permit cannot reasonably be acted upon by the city council within the one hundred twenty-business-day period.

C. A complete application shall include, the following information and materials:

1. The identity of the applicant;

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

3. A brief description of the transmission medium that will be used to offer or provide such services;

4. Preliminary plan, and maps of the facilities to be located within the public rights-of-way, in sufficient detail to identify:

a. The location and route requested for the proposed facilities including the lineal distance run of the facilities within public rights-of-way; and

b. Whether sufficient space exists within the public rights-of-way to accommodate the facilities proposed by the applicant and whether space for additional utility facilities will exist after installation of the proposed facilities;

5. A preliminary construction schedule and completion date;

6. 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 services, including, but not limited to, evidence that the applicant has registered the Washington Utilities and Transportation Commission (“WUTC”); and

7. An application fee which shall be set by the city council by resolution. (Ord. 1228 § 1, 2001: Ord. 1174 § 1 (part), 2000).

15.22.050 Approval of master permit.

A. Prior to granting or denying the master permit, the city council shall consider the materials submitted by the applicant and make a decision based upon the standards set forth in subsection B of this section. Pursuant to RCW 35A.47.040, the city council shall not approve any master permit hereunder until the next regularly scheduled city council meeting following its introduction. If the application is denied, the written determination shall include the reason(s) for denial.

B. In granting or denying a master permit application under this chapter, the city council shall determine whether:

1. All requisite licenses, certificates, and authorizations from applicable federal, state, and local agencies have been obtained by the applicant;

2. The public rights-of-way have capacity to accommodate the proposed facilities;

3. The public rights-of-way will have capacity to accommodate additional utility and telecommunications facilities if the master permit is granted;

4. There will be substantial damage or disruption of public or private facilities, improvements, service, travel or landscaping if the master permit is granted;

5. There will be unreasonable costs to the public and/or unreasonable disruption of other uses caused by construction within the public rights-of-way;

6. The proposed construction will have an unreasonable impact on public health, safety and welfare if the master permit is granted;

7. There are reasonable alternate routes and/or locations available for the proposed facilities; and

8. The proposed construction complies with applicable, state, and local statutes, regulations, ordinances, and policies related to telecommunications, including city construction standards.

C. Unless otherwise provided in a master permit, master permit duration shall be five years unless revoked or modified under the provisions of this chapter.

D. A grantee that desires to renew a master permit issued pursuant to this chapter shall, not more than one hundred eighty business days nor less than ninety business days before expiration of the current master permit, file an application with the city for renewal which shall include the following:

1. The information and fee required pursuant to Section 15.22.040(K) of this chapter; and

2. Any information required pursuant to the master permit.

E. Within one hundred twenty business days after receiving a complete application for renewal, the city council shall issue a written determination granting or denying the renewal application in whole or in part as provided in subsection A of this section. The decision to grant or deny a renewal shall, in addition to the standards set forth in subsection B of this section, be based upon the following standards:

1. The continuing capacity of the public rights-of-way to accommodate the applicant’s existing facilities; and

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

F. The master permit shall incorporate the relevant terms and conditions of this chapter by reference. (Ord. 1228 § 2, 2001: Ord. 1174 § 1 (part), 2000).

15.22.060 Application – Use permit.

A. To obtain a use permit, the applicant shall file an application with the director.

B. All applications for use permits shall be submitted at least thirty business days prior to the planned need for the use permit. Applicants shall be approved or denied within a reasonable time thereafter, generally not to exceed thirty business days, taking into consideration the nature and complexity of the proposed use of city streets, unless the applicant consents to a longer time period or the applicant has not obtained a master permit. Applications for complex projects should be submitted at least one hundred twenty business days prior to the planned need for the construction permit. If unforeseen conditions require expedited processing time, the city will reasonably attempt to cooperate where practicable, but additional fees to cover additional costs to the city shall be charged. In the event that processing a use permit takes longer than the time periods specified herein, the city shall notify the applicant in writing of the amount of time required to process the use permit and the reasons therefor.

C. A complete application shall include the following information and materials:

1. A complete application on a form specified by the director;

2. In addition to the general plans and specifications described in Section 15.22.040 (C)(4) through (6) of this chapter, the applicant shall provide detailed construction plans demonstrating compliance with all applicable city codes and construction specifications which show:

a. The location of all overhead and underground utility, telecommunication, cable, water, sewer, drainage and other facilities in the public right-of-way along the proposed route that will be affected by the proposed installation;

b. The specific trees, structures, improvements, facilities and obstructions, if any, the applicant proposes to temporarily or permanently remove or relocate.

3. If underground installation in existing ducts or conduits within the public rights-of-way is proposed, information in sufficient detail to identify:

a. The excess capacity currently available in such ducts or conduits before installation of the facilities;

b. The excess capacity, if any, that will exist in such ducts or conduits after installation of the facilities; and

c. Evidence of ownership or a right to use such ducts or conduits.

4. If underground installation within new ducts or conduits to be constructed within the public rights-of-way is proposed:

a. The location proposed for the new ducts or conduits; and

b. The excess capacity that will exist in such ducts or conduits after installation of the facilities.

5. An application fee which shall be set by the city council by resolution. (Ord. 1228 § 3, 2001: Ord. 1174 § 1 (part), 2000).

15.22.070 Approval of use permit.

A. In the event that the director finds that the use permit application conforms to the requirements of this chapter and applicable construction standards adopted by the city, the director shall approve the use permit, and may impose such conditions thereon as are reasonably necessary to protect the public health, welfare and safety, to mitigate any impacts resulting from the use, and to facilitate the orderly management of other utility and telecommunications facilities within the public rights-of-way. In the event that the director denies an application for a use permit, the director’s decision shall be in writing and set forth the reasons for said denial.

B. The duration for a use permit shall be for one year unless revoked or modified under the provisions of this chapter. The director shall approve a construction schedule specifying the dates, times, and duration during which construction activity shall be permitted within the public rights-of-way.

C. The use permit shall incorporate the relevant terms and conditions of this chapter by reference.

D. The director shall have the power to regulate the construction and enforce use permit conditions and the requirements of this chapter. The director shall keep a record of the use permit and the work done thereunder. (Ord. 1228 § 4, 2001: Ord. 1174 § 1 (part), 2000).

15.22.080 Terms of use and occupancy.

A. The use and occupancy of public rights-of-way in the city by any person constructing, maintaining or operating telecommunications facilities shall conform to the terms and conditions of this chapter.

B. Existing facilities installed or maintained by a telecommunications carrier over, under or across public rights-of-way within the city in accordance with an expired franchise agreement or other city-issued permit may be operated by the telecommunications carrier at the locations at which such facilities exist; provided, however, that maintenance, repair, relocation, and/or expansion of such facilities shall not be permitted unless and until the telecommunications carrier or other entity obtains all permits and approvals required by this chapter. (Ord. 1174 § 1 (part), 2000).

15.22.090 Reimbursement of city costs and expenses.

All telecommunications carriers shall, to the extent permitted by applicable federal and state laws, be required to reimburse the city for all direct and indirect costs and expenses incurred by the city in connection with said party’s occupation and use of the public rights-of-way for which a permit fee is not otherwise provided. Such reimbursement shall be paid to the city within thirty days of receipt of written demand from the city. (Ord. 1228 § 5, 2001: Ord. 1174 § 1 (part), 2000).

15.22.100 Coordination of construction and joint trenching.

A. All grantees and permittees are required to cooperate with the city and with each other in coordination of construction activities and joint trenching activities. By February 1st of each year, grantees and permittees shall provide the city with a schedule of their proposed construction activities in, around, or that may affect the public rights-of-way. Each grantee or permittee shall also meet with the city and other grantees and permittees and users of the public rights-of-way annually or as determined by the city to schedule and coordinate construction activities within the public rights-of-way. The city engineer or his designee shall coordinate all construction locations, activities, and schedules to minimize public inconvenience, disruption, or damage to the public rights-of-way.

B. In order to facilitate coordination of construction activities within the public rights-of-way, the city shall provide reasonable advance notice to grantees and permittees of public street improvements. Grantees, permittees, and other parties interested in placing telecommunication facilities within the public rights-of-way that desire to receive notification of such projects shall, annually, file notice with the city clerk and the city engineer or his designee of their desire to receive such notices. In the event that a grantee, permittee, or other party desiring to place telecommunication facilities within the public rights-of-way is mailed such a notice and fails to coordinate installation of their telecommunications facilities with the public improvement project, the city engineer or his designee may deny use permit applications for those portions of a project which seek to disrupt the surface of said streets for a period of up to five years, as reasonably determined by the city engineer or his designee for the purpose of protecting the city’s investment in said public improvement projects. In the alternative, the city engineer or his designee may require such persons to fully restore the surface and subsurface areas of such streets to the condition they were in immediately after completion of the public improvement project. (Ord. 1174 § 1 (part), 2000).

15.22.110 Deferment of construction.

When the public rights-of-way upon which the applicant desires to work are or will be occupied by the city or other person(s) having a right to construct, maintain, or repair improvements thereon and allowing the applicant’s project to proceed as requested would create conflicts with such projects or seriously inconvenience the public, the director may, in his or her reasonable discretion, defer construction, or other activity under any construction permit, until such time as the director deems proper in all cases. In granting such construction permit, the director may so regulate the manner of doing such work in order to cause the least inconvenience to the public in the use of such public rights-of-way. In all cases, any work of the city or its contractors or employees for municipal purposes shall have precedence over all work of every other kind. (Ord. 1174 § 1 (part), 2000).

15.22.120 Specifications.

A. All work to be performed under a construction permit issued under this chapter shall conform to all applicable city codes, ordinances, and standards adopted by the city. In case of any conflict, the most restrictive provision shall apply.

B. No telecommunications facilities, or work related thereto shall protrude into or over any portion of a public right-of-way opened to vehicle or pedestrian travel in such a manner as to create a likelihood of endangering the use of such place by vehicles or pedestrian travel. In addition, in the event the requested construction permit involves encroachment or partial obstruction of a sidewalk or other walkway open to the public, a minimum of five feet of unobstructed sidewalk or other walkway shall be maintained at all times.

C. During any period of any relocation, construction or maintenance of its facilities within the public rights-of-way, a telecommunications carrier shall conduct their activities so as not to unreasonably interfere with the free passage of traffic or the use of adjoining property. Such person shall, at all times, post and maintain proper barricades and comply with all applicable safety regulations during such period of construction as required by the ordinances of the city and the laws of the state of Washington, including RCW 39.04.180 for the construction of trench safety systems.

D. Upon request by the city, a telecommunications carrier shall, within ten business days, submit, at no cost to the city, current and accurate as-built drawings showing the location of any facilities installed or constructed within the public rights-of-way under a permit issued pursuant to this chapter or otherwise. As-builts shall show all facilities including but not limited to telecommunications facilities, utility facilities, power poles, guy poles and anchors, overhead transformers, pad-mounted transformers, submersible transformers, conduit, substation (with its name) pedestals, pad-mounted J-boxes, vaults, switch cabinets, and meter boxes. Failure to comply with the requirements of this subsection shall be grounds for revocation or suspension of a master permit pursuant to Section 15.22.140 of this chapter. (Ord. 1174 § 1 (part), 2000).

15.22.130 Exceptions.

A use permit shall not be required prior to commencement of work in the public rights-of-way when telecommunications carriers are responding to emergencies that require work in the public rights-of-way, such as water or sewer main breaks, gas leaks, downed power lines, or similar emergencies; provided, however, that the director or his/her designee shall be notified by the responding carrier or contractor, in writing, on the next business day following onset of the emergency. Nothing in this section shall relieve a responding carrier or contractor from the requirement of obtaining a use permit after beginning emergency work in a public right-of-way. (Ord. 1174 § 1 (part), 2000).

15.22.140 Revocation of master permits.

A. The city council may revoke or suspend any master permit issued under this chapter whenever:

1. The work or grantee’s use of public rights-of-way does not proceed in accordance with the plans as approved, the conditions of approval, the requirements of this chapter, or other city ordinances, resolutions, or state law;

2. The city has been denied access to investigate and inspect the activity approved within the public rights-of-way;

3. The grantee or its agents has made a misrepresentation of a material fact in applying for such approval;

4. The city council determines that inadequate measures are being taken to protect the public, adjoining property, public rights-of-way, or telecommunications, utility or other facilities in such public rights-of-way, or that any excavation or fill endangers or will endanger the public, adjoining property, public rights-of-way, or telecommunications or utility facilities in such public rights-of-way; or

5. The grantee repeatedly violates the terms of this chapter or a franchise or permit granted hereunder.

B. If the city has reason to believe that a grantee is in violation, the following procedures shall be followed by the city:

1. The city shall provide the grantee with a detailed written notice, by certified mail, detailing the violation, the steps necessary to cure such violation, and time period within which the violation must be cured. Within thirty days thereafter, the grantee shall respond demonstrating that no violation occurred, that any problem has been corrected, or with a proposal to correct the problem within a specified period of time.

2. The grantee may request an extension of time to cure an alleged violation if construction activities, necessary to achieve compliance, are delayed by the city, or where unusual weather, natural consequences (e.g., earthquakes, floods, etc.), extraordinary acts of third parties, or other circumstances which are reasonably beyond the control of the grantee delay progress, provided that the grantee has not, through its own action or inaction, contributed to the delay. The amount of additional time allowed will be determined by the city. The extension of time in any case shall not be greater than the extent of the actual noncontributory delay experienced by the grantee.

3. If said response is not satisfactory to city, the city may declare the grantee to be in default, with written notice by certified mail, to the grantee. Within ten business days after notice to the grantee, the grantee may deliver to the city a request for a hearing before the city council. If no such request is received, the city may declare the master permit terminated for cause.

4. If the grantee files a timely written request for a hearing, such hearing shall be held within thirty days after the city’s receipt of the request therefor. Such hearing shall be open to the public and the grantee and other interested parties may offer written and/or oral evidence explaining or mitigating such alleged noncompliance. Within ten days after the hearing, the city council, on the basis of the record, will make the determination as to whether there is cause for termination and whether the master permit will be terminated. The city council may in its sole discretion fix an additional time period to cure violations. If the deficiency has not been cured at the expiration of any additional time period or if the city council does not grant any additional period, the city council may by resolution declare the master permit to be terminated and forfeited.

5. If the grantee appeals revocation and termination, such revocation may be held in abeyance pending judicial review by a court of competent jurisdiction, provided the grantee is otherwise in compliance with the master permit. In any such appeal, the grantee shall be responsible for the costs of preparing and filing the city’s administrative record with the court and such costs shall be paid prior to the city’s filing thereof.

C. A grantee shall not be deemed to be in default, failure, violation, or noncompliance with any provision of this chapter or a master permit where performance was rendered impossible due to materially, substantially, and reasonably to an act of God, fire, flood, storm, or other element or casualty, theft, war, disaster, strike, lock-out, boycott, prevailing war or war preparation, or bona fide legal proceedings, beyond the control of the grantee. (Ord. 1228 § 6, 2001: Ord. 1174 § 1 (part), 2000).

15.22.150 Performance bond.

A performance and payment bond written by a corporate surety in a form acceptable to the city as set forth in the city development standards equal to at least one hundred fifty percent of the estimated cost of removing the grantee’s facilities and restoring the public rights-of-way to their preconstruction condition shall be deposited before any construction is commenced. Said bond shall be required to remain in full force until sixty business days after completion of the construction and/or improvements within the public rights-of-way, and determination by the city engineer that all facilities are constructed in compliance with approved plans, and all suppliers, laborers, and subcontractors have been paid. Such bond shall warrant all such restoration work for a period of two years. The purpose of this bond is to guarantee removal of partially completed and/or nonconforming facilities and to fully restore the public rights-of-way to their preconstruction condition. (Ord. 1174 § 1 (part), 2000).

15.22.160 Security fund.

A. Prior to commencement of any activities approved under a master permit, the grantee shall establish a permanent security fund with the city by depositing the amount of fifty thousand dollars, or such lesser amount as deemed necessary by 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 telecommunications facilities are located within the public rights-of-way of the city.

B. The fund shall serve as security for the full and complete performance of the terms and conditions of this chapter and the master permit, 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, rules, regulations, or permits of the city.

C. 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, costs or expenses which the city has incurred by reason of 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; and

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

D. Grantees shall replenish the security fund within fourteen calendar days after written notice from the city that there is a deficiency in the amount of the fund. Failure to comply with this subsection shall be grounds for revocation or suspension of a master permit pursuant to Section 15.22.140 of this chapter. (Ord. 1174 § 1 (part), 2000).

15.22.170 Insurance.

Unless otherwise provided in a master permit, each grantee shall, as a condition of the master permit, secure and maintain the following liability insurance policies, and furnish an insurance certificate naming the city, and its elected and appointed officers, officials, agents, employees, representatives, engineers, attorneys, consultants, and volunteers as additional 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:

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

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

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

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

B. Automobile liability for owned, nonowned and hired vehicles with a limit of two million dollars for each person and two 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 two million dollars;

E. The liability insurance policies required by this section shall be maintained by the grantee throughout the term of the master permit and such other period of time during which the grantee is operating without a telecommunications franchise hereunder, or is engaged in the removal of its facilities. 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 elected and appointed officers, officials, employees, agents, representatives, engineers, attorneys, consultants, and volunteers. Any insurance maintained by the city, its elected and appointed officers, officials, employees, representatives, engineers, attorneys, consultants, agents, and volunteers shall be in excess of the grantee insurance and shall not contribute with it;

F. In addition, each such insurance policy shall contain an endorsement which provides that the policy may not be cancelled, reduced in coverage, nor the intention not to renew be stated until sixty business days after receipt by the city of a written notice to that effect. Within thirty business days after receipt of such notice by the city, and in no event later than fifteen business days prior to the cancellation or nonrenewal, the grantee shall obtain and furnish to the city replacement insurance meeting the requirements of this section. (Ord. 1174 § 1 (part), 2000).

15.22.180 Hold harmless/indemnity.

A. Any telecommunications carrier accepting approvals under the terms of this chapter shall agree to release, covenant not to bring suit, and agree to indemnify, defend and hold harmless the city, its elected and appointed officers, officials, employees, agents, representatives, engineers, attorneys, consultants and volunteers from any and all claims, costs, judgments, awards or liability to any person, including claims by the grantee’s own employees, or the employees of the grantee’s contractors and subcontractors, for which the grantee might otherwise be immune under Title 51 RCW, for injury or death of any person or damage to property caused by or arising out of the acts or omissions of the grantee, its agents, servants, officers, or employees in the performance of activities allowed under any telecommunications franchise granted under this chapter, and any rights granted hereunder. Inspection or acceptance by the city of any work performed by a grantee during or at the time of completion of construction shall not be grounds for avoidance by the grantee of any of its obligations under this indemnity. Such indemnification obligation 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. Such indemnity agreement is required until the telecommunications facilities or any other appurtenances are removed from the public rights-of-way, or, until the city furnishes a written release of the requirement to the telecommunications carrier.

B. In addition, the city may require that any telecommunications carrier accepting such a master permit or use permit provide the city with additional indemnification, such as an indemnification from a parent company.

C. The indemnification provided for herein shall not apply to injuries to persons or damage to property caused by or resulting from the sole negligence of the city, its agents or employees. (Ord. 1174 § 1 (part), 2000).

15.22.190 Inspections.

All work performed within public rights-of-way shall be subject to periodic inspection by the director to assure compliance with any conditions attached to the master permit or use permit, the requirements of this chapter, and the requirements of any applicable city code or standard. (Ord. 1174 § 1 (part), 2000).

15.22.200 Correction and discontinuance of unsafe, nonconforming, or unauthorized conditions.

A. Whenever the director determines that any condition on any public rights-of-way is in violation of, or any public right-of-way is being used contrary to any provision of this chapter or procedures adopted under this chapter or other applicable codes or standards, or without a master permit or use permit, the director may order the correction or discontinuance of such condition or any activity causing such condition.

B. The director shall also have all powers and remedies available under state law and this chapter to secure the correction or discontinuance of any condition specified in this section.

C. The director or his or her designee is authorized to use any or all of the following methods in ordering correction or discontinuance of any such conditions or activities as the director determines appropriate:

1. Serving of oral or written directives to the grantee or other responsible person requesting immediate correction or discontinuance of the specified condition;

2. Service of a written notice of violation, ordering correction or discontinuance of a specific condition or activity within such reasonable period as the director may determine, taking into consideration the nature of the condition;

3. Revocation of previously granted use permits where the grantee or other responsible person has failed or refused to comply with requirements imposed by the city related to such use permits; or

4. Issuance of an order to immediately stop work until authorization is received from the city to proceed with such work.

D. Any telecommunications facility which shall occupy any public rights-of-way without a master permit or use permit or in violation of telecommunications franchise or construction permit conditions or this chapter is a nuisance both public and private. The director or his or her designee may attach a notice to any such object or thing stating that if it is not removed from the public rights-of-way within forty-eight hours of the date and time stated on the notice, the object or thing may be taken into custody and stored at the owner’s expense. The notice shall provide an address and phone number where additional information may be obtained. If the object or thing is a hazard to public safety, it may be removed summarily by the city. Notice of such removal shall be thereafter given to the owner, if known.

E. All expenses incurred by the city, including attorneys’ fees and legal expenses, in abating the condition or any portion thereof shall constitute a civil debt owing to the city jointly and severally by such persons who have been given notice or who own the object or thing or placed it in the public rights-of-way, which debt shall be collectible in the same manner as any other civil debt.

F. The city shall also have all powers and remedies which may be available under law, this chapter, and procedures adopted under this chapter for securing the correction or discontinuance of any conditions specified by the city. (Ord. 1174 § 1 (part), 2000).

15.22.210 Displacement for public use.

A. A telecommunications carrier, under order of the director shall, upon a minimum of forty-five calendar days’ notice at its own cost and expense, move any underground or overhead facilities which interfere with any public improvement authorized or ordered by the city. The actual number of days shall be specified by the director in the director’s order. The telecommunications carrier may, after receipt of said notice, submit to the city written alternatives to such relocation. The city shall evaluate such alternatives and advise the telecommunications carrier in writing if any one or more of the alternatives, including the amount of time required to safely complete such relocation, is suitable to accommodate the work which would otherwise necessitate relocation of the facilities as stated in the order. If requested, the telecommunications carrier shall submit additional information to assist the city in making such an evaluation. The city shall give each alternative proposed by the telecommunications carrier full and fair consideration, within a reasonable period of time, so as to allow the relocation work to be performed in a timely manner. In the event that the city ultimately determines that there is no other reasonable alternative, the telecommunications carrier shall relocate its facilities as otherwise provided in the order.

B. The cost and expenses associated with relocation of telecommunications facilities shall be the responsibility of the telecommunications carrier unless:

1. The telecommunications carrier had paid for the relocation cost of the same facilities at the request of the city within the past five years;

2. Aerial to underground relocation of facilities are required by the city and the telecommunications carrier has an ownership share of the aerial supporting structures, in which case the city shall be responsible for the additional incremental cost of underground relocation compared to aerial relocation, or is provided for in the telecommunication carrier’s tariff, if said amount is less; and

3. When the city requests relocation solely for aesthetic purposes, unless the telecommunications carrier agrees to be responsible for the cost thereof.

C. In the event that the city orders a telecommunications carrier to relocate its facilities for a project which is primarily for private benefit, the private party or parties causing the need for such project shall reimburse the telecommunications carrier for the cost of relocation in the same proportion as their contribution to the cost of the project. In the event of an unforeseen emergency that creates a threat to the public safety, health, or welfare, the city may require a telecommunications carrier to relocate its facilities at its own expense, any other portion of this section notwithstanding.

D. Telecommunications carriers shall indemnify, hold harmless, and pay the costs of defending the city against claims or liabilities for delays on public improvement projects caused by their failure to relocate their facilities in a timely manner, unless caused by circumstances beyond their control. (Ord. 1174 § 1 (part), 2000).

15.22.220 Additional ducts or conduits.

The city may request that a telecommunications carrier that is constructing, relocating, or placing ducts or conduits in public rights-of-way provide the city with additional ducts or conduits and related structures necessary to access the same. The terms and conditions under which additional ducts and/or conduits shall be provided shall be consistent with Chapter 35.99 RCW, as currently enacted or hereafter amended. (Ord. 1228 § 7, 2001: Ord. 1174 § 1 (part), 2000).

15.22.230 Site-specific charges.

In the event that a telecommunications carrier desires to place facilities for personal wireless services within the public rights-of-way, the carrier and the city shall negotiate an agreement which includes a site-specific charge for the following:

A. The placement of new structures in the public rights-of-way regardless of height, unless the new structure is the result of a mandated relocation;

B. The placement of replacement structures when the replacement structure is necessary for the installation or attachment of wireless facilities and the overall height of the replacement structure and the wireless facility is more than sixty feet; or

C. The placement of personal wireless facilities on structures owned by the city and located within the right-of-way.

In the event that the site-specific charge cannot be agreed to by the parties, the amount shall be determined in accordance with RCW 35.21.865, as currently enacted or hereafter amended. (Ord. 1174 § 1 (part), 2000).

15.22.240 City use for government communication.

Any person erecting or maintaining poles within public rights-of-way shall allow the city the right, free of charge, to attach, maintain and operate as governmental communication and signals, wires and/or fixtures on crossarms, or on the poles erected and so maintained. (Ord. 1174 § 1 (part), 2000).

15.22.250 Painting poles.

Any person erecting or maintaining poles under authority of this chapter shall, under order of the director, paint or repaint its poles to such height and in such colors and at such times as the director or his/her designee may reasonably direct. (Ord. 1174 § 1 (part), 2000).

15.22.260 Accommodating moving of building(s) and/or equipment.

Any person maintaining overhead telecommunication facilities in a public right-of-way shall, upon seven calendar days’ notice from the director, disconnect or move said facilities to allow for the moving of building(s) and/or equipment across or along any such public rights-of-way; provided, however, that the advance notice may be reduced to twenty-four hours if the facilities are below the minimum clearance set by law or regulation or in the case of an emergency. The cost of moving such facilities shall be borne as follows:

A. By the person owning said facilities if the wires, cables or appurtenances are below the minimum vertical clearance required by state law, city ordinance, or rules of the director, above the surface of the public rights-of-way, and no adjustment would be necessary if the minimum clearance had been maintained; and

B. By the person desiring to move the building(s) and/or equipment under all other circumstances. (Ord. 1174 § 1 (part), 2000).

15.22.270 Removal.

Any person accepting a master permit or use permit pursuant to this chapter for the installation of telecommunications facilities shall remove such facilities when they are no longer required, they have been unused for a continuous period of twelve months, or the master permit or use permit has been revoked as provided in this chapter. Such removal shall occur within ninety calendar days of receiving notice from the director ordering such removal. Unless otherwise approved by the city in writing, no such person shall be permitted to abandon telecommunication facilities within the public rights-of-way; however, if such approval is given by the city, then such abandonment shall only be under such conditions as prescribed by the director. (Ord. 1174 § 1 (part), 2000).

15.22.280 Billings and collections.

The director, jointly with the finance director, may establish procedures pertaining to the billing and collection of fees and charges adopted pursuant to this chapter. (Ord. 1174 § 1 (part), 2000).

15.22.290 Appeals.

Any person aggrieved by the approval, denial, suspension, or revocation of a use permit pursuant to this chapter may appeal to the city council as follows:

A. All appeals must be filed in writing with the director within 10 business days of the date of the decision appealed from and accompanied by a fee which shall be set by the city council by resolution;

B. 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;

C. The director shall advise the city council of the pendency of the appeal and request that a date for considering the appeal be established;

D. 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;

E. 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;

F. 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 fourteen calendar days of the decision, and otherwise shall be barred; and

G. 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. 1174 § 1 (part), 2000).

15.22.300 Tree trimming.

Any telecommunications carrier required by state statute or regulation to trim or remove trees which may interfere with their facilities shall ensure that their tree trimming activities protect the appearance, integrity and health of the trees to the extent reasonably possible. The telecommunications carrier shall prepare and maintain a tree trimming schedule to ensure compliance with this provision and to avoid exigent circumstances where tree cutting, trimming or removal is necessary to protect the public safety or continuity of service without the regard for the appearance, integrity or health of the trees that planned maintenance would otherwise allow. The telecommunications carrier shall submit the schedule and a plan showing the location of tree trimming activities and a description of techniques and methodology used in such tree trimming to the director. Except where exigent circumstances do not permit, the telecommunications carrier or public utility shall give the owner the property on which the trees are located at least five business days’ advance written notice of the tree trimming. (Ord. 1174 § 1 (part), 2000).

15.22.310 Undergrounding of telecommunication facilities.

A. The undergrounding requirements of this section shall apply where the telecommunications carrier’s facilities consist of cable or any other facilities which are capable of being placed underground. This section shall not apply to antennas or other facilities which are required to remain above ground to be functional, or to active and passive electronic components such as amplifiers, junction boxes, and tap boxes, to the extent that city ordinances and regulations permit the above-ground installation of such components. Where there is a conflict or inconsistency between the undergrounding provisions of this section and other ordinances of the city, the more rigorous provision shall govern, to the extent permitted by applicable federal and state law.

B. In any city block (or comparably sized area) of the city in which there are no aerial telecommunications or cable television facilities, other than antennas or other facilities required to remain above ground in order to be functional, or in any public right-of-way in which all telecommunications, electric power, and cable television facilities capable of being placed underground have been placed underground, no telecommunications carrier shall be permitted to erect poles or to run or suspend wires, cables or other facilities thereon, but shall lay such wires, cables or other facilities underground in the manner required by the city. If the city does not require the undergrounding of telecommunications facilities at the time of initial installation, the city may, at any time in the future, require the conversion of the above-ground and/or aerial facilities to underground installation at the owner’s expense.

C. In any city block (or comparably sized area) of the city in which there are aerial telephone or cable television facilities, a telecommunications carrier shall be permitted to run or suspend wires, cables or other facilities thereon, and to replace existing utility poles, all in accordance with applicable federal, state, and local standards, if approved in advance by the director. Whenever the city requires the conversion of above-ground and/or aerial utilities to underground installation in any area of the city, a telecommunications carrier shall underground its above-ground and/or aerial facilities in the manner specified by the city, concurrently with and in the area of all the other affected utilities. The location of any such relocated and underground utilities shall be approved by the city. A telecommunications carrier shall bear the cost and expense for underground conversion of its facilities to the extent permitted by applicable state and federal law. Telecommunications carriers are encouraged to contact and agree with other affected utilities so that all costs for common trenching, common utility vaults and other costs not specifically attributable to the undergrounding; of any particular facility are borne fairly and proportionately by all the utilities involved in the underground project.

D. In the event that the city undertakes any public improvement which would otherwise require, in the discretion of the director, the relocation of telecommunications carrier’s above-ground facilities, the director may, by written notice to the such persons, direct that any such facilities be converted to underground facilities. Any such conversion shall be done subject to and in accordance with applicable state law. (Ord. 1228 § 8, 2001: Ord. 1174 § 1 (part), 2000).

15.22.320 Joint trenching.

Recognizing that trenching and excavation within public rights-of-way can significantly degrade the quality and longevity of street surfacings and seriously inconvenience the public, all grantees shall afford other telecommunications carriers, public utilities, and the city an opportunity to share in the use of their excavations and trenches within public rights-of-way. In the event that the city, a telecommunications carrier, or a public utility desires to share in a grantee’s excavation, it shall provide a written request to do so. Joint use of excavations shall be subject to the following conditions:

A. Such joint use shall not unreasonably delay the work of the party causing the excavation to be made;

B. A grantee desiring to share in an excavation may be required to pay the fair and reasonable pro rata cost of said excavation. Such joint use shall be arranged and accomplished on terms and conditions satisfactory to both parties; and

C. Either party may deny such request for safety reasons. (Ord. 1174 § 1 (part), 2000).

15.22.330 One Call Locator.

All telecommunications carriers shall, before commencing any construction within a public right-of-way, comply with all of the requirements set forth in Chapter 19.122 RCW, the One Call Locator Service, as presently enacted or hereafter amended. (Ord. 1228 § 10, 2001; Ord. 1174 § 1 (part), 2000. Formerly 15.22.340).

15.22.340 Violations, penalties, and enforcement.

Except as otherwise expressly provided, any violation of this chapter shall be enforced according to the uniform procedures set out in Chapter 2.80. (Ord. 1502 § 4 (Exh. N), 2015: Ord. 1228 § 11, 2001; Ord. 1174 § 1 (part), 2000. Formerly 15.22.350).