Chapter 15.22
TELECOMMUNICATIONS – SMALL WIRELESS FACILITIES1

Sections:

Article I. General

15.22.010    Purpose.

15.22.020    Definitions.

15.22.030    Registration and fees.

15.22.040    Application to existing franchise ordinances and agreements.

Article II. Franchise

15.22.050    Franchise – Required.

15.22.060    Franchise application.

15.22.070    Determination by the city.

15.22.075    Application processing and appeal.

15.22.080    Franchise agreement.

15.22.090    Nonexclusive grant.

15.22.100    Rights granted.

15.22.110    Term of grant.

15.22.120    Franchise territory.

15.22.130    Location of facilities.

15.22.140    Utility right-of-way permits.

15.22.150    Nondiscrimination.

15.22.160    Amendment of franchise agreement.

15.22.170    Renewal applications.

15.22.180    Renewal determinations.

15.22.190    Obligation to cure as a condition of renewal.

Article III. Conditions of Grant of Franchise

15.22.200    General duties.

15.22.210    Interference with the rights-of-way.

15.22.220    Damage to property.

15.22.230    Notice of work.

15.22.240    Repair and emergency work.

15.22.250    Maintenance of facilities.

15.22.260    Relocation or removal of facilities.

15.22.270    Failure to relocate.

15.22.280    Emergency removal or relocation of facilities.

15.22.290    Damage to grantee’s facilities.

15.22.300    Removal of unauthorized facilities.

15.22.310    Restoration of rights-of-way or other property.

15.22.320    Facilities maps.

15.22.330    Duty to provide information.

15.22.340    Grantee insurance.

15.22.350    General indemnification.

15.22.360    Security fund.

15.22.370    Performance and maintenance bonds.

15.22.380    Coordination of construction activities.

15.22.390    Assignments or transfers of grant of franchise.

15.22.400    Notice and duty to cure.

15.22.410    Revocation hearing.

15.22.420    Standards for revocation.

Article IV. Small Wireless Deployment

15.22.450    Application process.

15.22.460    Small wireless permit application.

15.22.470    Review process.

15.22.480    Permit requirements.

15.22.490    Modifications to small wireless facilities.

15.22.500    Consolidated permit.

Article V. Fees

15.22.510    Application and review fee.

15.22.520    Other city costs.

15.22.530    Permit fee.

15.22.540    Painting poles.

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

15.22.560    Tree trimming.

15.22.570    Joint trenching.

Article I. General

15.22.010 Purpose.

A. In the exercise of its police powers, the city of Chelan has priority over all other uses of the right-of-way. The purposes of this chapter are to:

1. Permit and manage reasonable access to the right-of-way of the city for small wireless telecommunications purposes on a nondiscriminatory basis;

2. Establish clear and nondiscriminatory local guidelines, standards, and time frames which use federal guidelines for the exercise of local authority with respect to the regulation of right-of-way use;

3. Encourage the provision of advanced and competitive small wireless telecommunications services on the widest possible basis to the businesses, institutions, and residents of the city;

4. Conserve the limited physical capacity of the public rights-of-way held in public trust by the city;

5. Ensure that the city’s current and ongoing costs of granting and regulating private access to and use of the public rights-of-way are fully paid by the persons seeking such access and causing such costs to the fullest extent permitted by state and federal law;

6. Ensure that all service providers maintaining facilities or providing services within the city comply with the ordinances, rules, and regulations of the city;

7. Ensure that the city can continue to fairly and responsibly protect the public health, safety, and welfare;

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

9. Promote a healthy urban environment and the public convenience and aesthetics.

B. The purposes stated govern questions of interpretation and enforcement of this chapter, as implemented in the sound discretion of the administering officer. Notwithstanding any other provision, nothing in this chapter or any municipal action or inaction relating thereto is intended to create or expand any specific municipal duty or liability to any particular person or group or otherwise create or expand municipal tort liability for any purpose. This provision shall control all others in the event of conflict or ambiguity. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.020 Definitions.

A. For the purpose of this chapter, the following terms, phrases, words, and abbreviations shall have the meanings given herein, unless otherwise expressly stated. Words not defined herein shall be given the meaning set forth in Chapter 19.10. In the event of a conflict, words not otherwise defined shall have their common and ordinary meaning:

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

“Applicant” means any person or corporation submitting an application for a franchise.

“City” means the city of Chelan, a municipal corporation of the state of Washington in its present incorporated form or in any later recognized, consolidated, enlarged or reincorporated form.

“City property” means any real property owned by city, whether in fee or other ownership, estate, or interest.

“Director” or “administrator” means the public works director or his/her designee.

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

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

“Franchise” or “franchise agreement” is a contract by which a grantee is allowed to use a city right-of-way for the purpose of carrying on the business in which it is generally engaged, including furnishing service to members of the public.

“Grantee” means the person, firm or corporation to whom or which a franchise, as defined in this section, is granted by the council under this chapter and the lawful successor, transferee or assignee of such person, firm or corporation.

“Grantor” means the city of Chelan acting through its city council.

“Light pole” means a pole owned by the city and used primarily for lighting streets, parking areas, parks or pedestrian paths.

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

“Person” includes corporations, companies, associations, joint stock companies, firms, partnerships, limited liability companies, other entities, and individuals.

“Public right-of-way” or “right-of-way” means land acquired or dedicated for public roads and streets but does not include:

1. State highways;

2. Land dedicated for roads, streets, and highways not opened and not improved for motor vehicle use by the public;

3. Structures, including poles and conduits, located within the right-of-way;

4. Federally granted trust lands or forest board trust lands;

5. Lands owned or managed by the state parks and recreation commission; or

6. Federally granted railroad rights-of-way acquired under 43 U.S.C. § 912 and related provisions of federal law that are not open for motor vehicle use.

“Service provider” is defined consistently with RCW 35.99.010(6). “Service provider” shall include those infrastructure companies that provide telecommunications services or equipment to enable the deployment of personal wireless services.

“Small wireless,” “small wireless facility,” and “small wireless telecommunications facility,” consistent with 47 CFR § 1.6002(l), means a facility that meets each of the following conditions:

1. The structure on which antenna facilities are mounted:

a. Is fifty feet or less in height, or

b. Is no more than ten percent taller than other adjacent structures, or

c. Is not extended to a height of more than fifty feet or by more than ten percent above its preexisting height, whichever is greater, as a result of the collocation of new antenna facilities;

2. Each antenna (excluding associated antenna equipment) is no more than three cubic feet in volume;

3. All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any preexisting associated equipment on the structure, is cumulatively no more than twenty-eight cubic feet in volume;

4. The facility does not require antenna structure registration;

5. The facility is not located on tribal lands; and

6. The facility does not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified by federal law.

“State” means the state of Washington.

“Structure” means a pole, tower, base station, or other building, whether or not it has an existing antenna facility, that is used or to be used for the provision of personal wireless service (whether on its own or commingled with other types of services).

“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. For the purpose of this chapter, telecommunications service excludes the over-the-air transmission of broadcast television or broadcast radio signals.

“Traffic signal pole” means a pole that supports equipment used for controlling traffic, including but not limited to traffic lights, rapid flashing beacons, speed radar, and school zone flashers.

“Utility pole” means a wooden pole designated and used primarily for the support of electrical wires, telephone wires or television cable.

“Washington Utilities and Transportation Commission” or “WUTC” means the state administrative agency, or lawful successor, authorized to regulate and oversee telecommunications carriers, services, and providers in the state of Washington to the extent prescribed by law.

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

B. Definitions in this section may contain quotations or citations to 47 CFR §§ 1.6100 and 1.6002. In the event that any referenced section is amended, creating a conflict between the definition as set forth in this chapter and the amended language of the referenced section, the definition in the referenced section, as amended, shall control. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.030 Registration and fees.

A. Applicability. Except as otherwise provided herein, all service providers engaged in the business of the transmitting, supplying, or furnishing of small wireless telecommunications service originating, terminating, or existing with the city shall register with the city pursuant to Chapter 5.13 and pay all applicable fees.

B. Exempt Facilities. The provisions of this chapter shall not be applied to applications for the following:

1. Installation of a small wireless facility on the strand between two utility poles; provided, that the cumulative volume of all wireless facilities on the strand shall not exceed one cubic foot; and provided further, that the installation does not require replacement of the strand, or excavation, modification, or replacement of either of the utility poles.

2. Installation of a mobile cell facility (commonly referred to as “cell on wheels” or “cell on truck”) for a temporary period in connection with an emergency or event, but no longer than required for the emergency or event; provided, that installation does not involve excavation, movement, or removal of existing facilities.

3. Modification of an existing wireless telecommunications facility that makes no material change to the footprint of a facility or to the surface or subsurface of a public street if the activity does not disrupt or impede traffic in the traveled portion of a street, and if the work does not change the visual or audible characteristics of the wireless telecommunications facility. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.040 Application to existing franchise ordinances and agreements.

The enactment of this chapter shall have no effect on any existing franchise agreement until:

A. The expiration of said franchise agreement; or

B. An amendment to an unexpired franchise agreement, unless both parties agree to defer full compliance to a specific date not later than the present expiration date. (Ord. 1561 § 3 (Exh. A) (part), 2019).

Article II. Franchise

15.22.050 Franchise – Required.

A franchise shall be required of any telecommunications provider who desires to make use of small wireless telecommunications facilities which occupy rights-of-way and to provide telecommunications services to any person or area in the city. The franchise is a “master permit” within the meaning of RCW 35.99.010(3). (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.060 Franchise application.

A. Contents. Any person that desires a franchise hereunder shall file an application with the following information:

1. The identity of the applicant;

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

3. To the extent locations for installations are known, preliminary engineering plans, specifications and a map showing where the small wireless telecommunications facilities are to be located within the city, all in sufficient detail to identify:

a. The location and route requested for the applicant’s proposed small wireless telecommunications facilities;

b. The location of applicant’s overhead and underground public utility, telecommunication, cable, water, sewer drainage and other lines and equipment in the rights-of-way along the proposed route;

c. The specific trees, structures, improvements, facilities, lines and equipment and obstructions, if any, that the applicant proposes to temporarily or permanently remove or relocate;

4. If the applicant is proposing an underground installation within new ducts or conduits to be constructed within the rights-of-way and to the extent specific locations are known:

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

b. Evidence that there is sufficient capacity within the rights-of-way for the proposed small wireless telecommunications facilities;

5. A preliminary construction schedule and completion date;

6. Evidence that the applicant is registered to participate in the one-number locator service, as described in Chapter 19.122 RCW, if applicable;

7. An accurate map showing the existing locations, if any, of any existing wireless telecommunication facilities in the rights-of-way, owned or operated by the applicant;

8. An application fee which shall be set by the city council to recover city costs in accordance with applicable federal and state law;

9. A copy of the FCC license for the facility or a sworn written statement from the applicant attesting that the facility will comply with current FCC regulations;

10. Proof that the applicant has mailed to the owners of all property within three hundred feet of the proposed wireless telecommunications facility a notice that the applicant is submitting an application to the city for placement or modification of a wireless telecommunications facility in the right-of-way, which notice must include:

a. The proposed location of the facility;

b. A description and scale image of the proposed facility; and

c. An email address and phone number for a representative of the applicant who will be available to answer questions from members of the public about the proposed project.

11. Such other information as the director, in his/her discretion, shall deem appropriate.

B. Public Records. With narrow exceptions, Washington State’s Public Records Act, Chapter 42.56 RCW, precludes the city from honoring requests for confidentiality. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.070 Determination by the city.

Within the time periods established by state and/or federal law, as applicable, after receiving a complete application hereunder, the city shall grant or deny a franchise application. If the city denies a franchise, such denial must be based on one of the following:

A. The financial and technical ability of the applicant;

B. The legal ability of the applicant to provide the telecommunications service;

C. The capacity of the rights-of-way to accommodate the applicant’s facilities;

D. The capacity of the rights-of-way to accommodate additional utility and wireless telecommunications facilities if the application is granted;

E. The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the application is granted, giving consideration to an applicant’s willingness and ability to mitigate and/or repair same;

F. The public interest in minimizing the cost and disruption of construction with the rights-of-way;

G. The service that the applicant will provide to the region;

H. The effect, if any, on general public health, safety, and welfare in the city’s sole opinion if the application is granted;

I. Applicable federal, state and local laws, regulations, rules and policies;

J. Such other factors as may demonstrate that the grant to use the rights-of-way will serve the community interest. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.075 Application processing and appeal.

A. Rejection for Incompleteness. Notices of incompleteness shall be provided in conformity with state, local, and federal law, including 47 CFR § 1.6003(d), as amended.

B. Processing Timeline. Wireless permit applications (including applications for other permits necessary to place or modify the facility) and appeals will be processed in conformity with the shot clocks set forth in state, local, and federal law, as amended.

C. Written Decision. In the event that an application is denied (or approved with conditions beyond the standard conditions set forth in Section 15.22.200 et seq.), the administrator shall issue a written decision with the reasons therefor, supported by substantial evidence contained in a written record.

D. Appeals. Any person adversely affected by the decision of the administrator may appeal that decision pursuant to Section 2.80.210. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.080 Franchise agreement.

No franchise shall be granted hereunder unless the applicant and the city have executed a written agreement setting forth the particular terms and provisions under which the franchise to occupy and use rights-of-way will be granted. All franchises granted pursuant to this chapter shall contain substantially similar terms and conditions. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.090 Nonexclusive grant.

No franchise granted hereunder shall confer any exclusive right, privilege, or franchise to occupy or use the rights-of-way for delivery of telecommunications services or any other purposes. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.100 Rights granted.

A. Limited Rights. No franchise granted hereunder shall convey any right, title, or interest in the rights-of-way, but shall be deemed a franchise only to use and occupy the rights-of-way for the limited purposes and term stated in the grant.

B. Additional Authorizations Required. No franchise granted hereunder shall authorize or excuse a grantee from securing such further easements, leases, permits or other approvals as may be required to lawfully occupy and use the rights-of-way. Grantee shall obtain the written approval of the facility or structure owner, including the city, if the grantee does not own it, prior to attaching to or otherwise using a facility or structure in the right-of-way.

C. No Warranty. No franchise granted hereunder shall be construed as any warranty of title. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.110 Term of grant.

Unless otherwise specified in a franchise, a franchise granted hereunder shall be valid for a term of not more than ten years. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.120 Franchise territory.

A franchise granted hereunder shall be issued for all of the rights-of-way within the city. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.130 Location of facilities.

Unless otherwise specified in a franchise, all facilities shall be constructed, installed, and located in accordance with the following terms and conditions:

A. Telecommunications facilities shall be installed within an existing underground duct or conduit whenever excess capacity exists within such utility facility, unless such location is not feasible due to the technology employed in the facility.

B. A grantee with written authorization to install overhead facilities shall install its telecommunications facilities on pole attachments to existing or replacement utility poles only, and then only if surplus space is available.

C. Whenever any existing telephone facilities, electric utilities, cable facilities, or telecommunications facilities are located underground within rights-of-way, a grantee with written authorization to occupy the same rights-of-way must also locate its telecommunications facilities underground to the extent technologically feasible.

D. Whenever any new or existing telephone facilities, electric utilities, cable facilities, or telecommunications facilities are located or relocated underground within rights-of-way, a grantee shall concurrently relocate its facilities underground if technologically feasible.

E. If requested, a grantee shall provide the city with additional duct or conduit and related structures necessary to access the conduit; provided, that:

1. The city enters into a contract with the grantee consistent with RCW 80.36.150. The contract rates to be charged should recover the incremental costs of the grantee. If the city makes the additional duct or conduit and related access structures available to any other entity for the purposes of providing telecommunications or cable television service for hire, sale, or resale to the general public, the rates to be charged, as set forth in the contract with the entity that constructed the conduit or duct, shall recover at least the fully allocated costs of the grantee. The grantee shall state both contract rates in the contract. The city shall inform the grantee of the use, and any change in use, of the requested duct or conduit and related access structures to determine the applicable rate to be paid by the city.

2. Except as otherwise agreed by the grantee and the city, the city shall agree that the requested additional duct or conduit space and related access structures will not be used by the city to provide telecommunications or cable television service for hire, sale, or resale to the general public.

3. The city shall not require that the additional duct or conduit space be connected to the access structures and vaults of the grantee.

4. The value of the additional duct or conduit requested by the city shall not be considered a public works construction contract. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.140 Utility right-of-way permits.

Except as provided in Article IV, Small Wireless Deployment, all grantees are required to obtain utility right-of-way permits and pay all fees for small wireless telecommunications facilities as required by the city. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.150 Nondiscrimination.

A grantee shall make its telecommunications services available to any customer within its franchise area who shall request such service, without discrimination as to the terms, conditions, rates or charges for the grantee’s services; provided, however, that nothing in this chapter shall prohibit a grantee from making any reasonable classifications among differently situated customers. This provision shall not apply to neutral host infrastructure services who solely provided infrastructure to personal wireless services carriers. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.160 Amendment of franchise agreement.

A. A new franchise application and grant shall be required of any grantee that desires to extend its franchise territory or to locate its small wireless telecommunications facilities in rights-of-way which are not included in a franchise previously granted hereunder.

B. A new franchise application and grant shall be required of any grantee that desires to add to or modify the telecommunications services provided pursuant to a franchise previously granted. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.170 Renewal applications.

A grantee that desires to renew its franchise hereunder shall, not less than one hundred eighty days before expiration of the current franchise, file an application with the city for renewal of its franchise which shall include the following information:

A. The applicable information required pursuant to the franchise;

B. Any other information required by the city. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.180 Renewal determinations.

The city council shall grant or deny a renewal application within the time periods established by state or federal law, as applicable. If the city determines to deny a franchise application, it shall make such determination consistent with Section 15.22.070. As part of any franchise renewal determination the city council shall consider grantee’s compliance with the requirements of this chapter and the franchise agreement. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.190 Obligation to cure as a condition of renewal.

No franchise shall be renewed until any ongoing violations or defaults in the grantee’s obligations under the franchise, or the requirements of this chapter and all applicable laws, statutes, codes, ordinances, rules and regulations, have been cured, or a plan detailing the corrective action to be taken by the grantee has been approved by the city. (Ord. 1561 § 3 (Exh. A) (part), 2019).

Article III. Conditions of Grant of Franchise

15.22.200 General duties.

All grantees, before commencing any construction in the rights-of-way, shall comply with all requirements of this article. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.210 Interference with the rights-of-way.

No grantee may locate or maintain its small wireless telecommunications facilities so as to unreasonably interfere with the use of the rights-of-way by the city, by the general public or other persons, or other persons authorized to use or be present in or upon the rights-of-way. All such facilities shall be moved by and at the expense of the grantee, temporarily or permanently, as determined by the city. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.220 Damage to property.

No grantee or any person acting on a grantee’s behalf shall take any action or permit any action to be done which may impair or damage any rights-of-way, including specifically city property, real or personal, or rights-of-way, or other property located in, on or adjacent thereto except in accordance with this chapter. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.230 Notice of work.

Unless otherwise provided in a franchise agreement, no grantee, or any person acting on the grantee’s behalf, shall commence any nonemergency work in or about rights-of-way. Any private property owner whose property will be affected by a grantee’s work shall be afforded ten working days’ advance written notice of such work. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.240 Repair and emergency work.

In the event of an emergency or an emergency repair necessary to protect the public, restore service or mitigate further damage to the system, a grantee may commence such repair and emergency response work as required under the circumstances; provided, the grantee shall notify the director as promptly as possible, before such repair or emergency work or as soon thereafter as possible if advance notice is not practicable. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.250 Maintenance of facilities.

Each grantee shall maintain its facilities in good and safe condition and in a manner that complies with all applicable federal, state and local requirements. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.260 Relocation or removal of facilities.

A. The city may require grantee to protect, support, temporarily disconnect, relocate, and remove its small wireless telecommunications facilities within the right-of-way when reasonably necessary for construction, alteration, repair, or improvement of the right-of-way for purposes of and for public welfare, health, or safety. These projects may include but are not limited to improving the rights-of-way for traffic conditions, dedications of new rights-of-way and the establishment and improvement thereof, widening and improvement of existing rights-of-way, street vacations, freeway construction, change or establishment of street grade, or the construction of any public improvement or structure by any governmental agency acting in a governmental capacity or as otherwise necessary for the operations of the city or other governmental entity, regardless of the type of entity (public or private) performing the project.

B. The city shall notify the grantee as soon as practicable of the need to relocate pursuant to subsection A of this section and shall specify the date by which the relocation shall be completed. The city shall consult with the grantee on the construction schedule. The grantee shall complete the relocation by the date specified by the city, unless a later date is set for completion pursuant to RCW 35.99.060(2), or by mutual agreement of the city and the grantee.

C. Except as otherwise provided by law, the costs and expenses associated with relocations or disconnections ordered pursuant to subsection A of this section shall be borne by grantee; provided, however, the grantee shall not be limited in its ability to seek reimbursement for relocation costs when permitted by RCW 35.99.060.

D. The city may require the relocation of grantee’s small wireless telecommunications facilities at grantee’s expense in the event of an unforeseen emergency that creates an immediate threat to the public safety, health or welfare. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.270 Failure to relocate.

If a grantee is required to relocate, change, or alter the small wireless telecommunications facilities constructed, operated and/or maintained hereunder and fails to do so, the city may cause such to occur. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.280 Emergency removal or relocation of facilities.

The city retains the right and privilege to cut or move any small wireless telecommunications facilities located within the rights-of-way as the city may determine to be necessary, appropriate, or useful in response to any public health or safety emergency. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.290 Damage to grantee’s facilities.

Unless directly and proximately caused by the sole negligence or malicious acts of the city, the city shall not be liable for any damage to or loss of any small wireless telecommunications facility within rights-of-way as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling, or work of any kind in the rights-of- way by or on behalf of the city. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.300 Removal of unauthorized facilities.

Within thirty days following written notice from the director, any grantee, service provider, or other person that owns, controls, or maintains any unauthorized telecommunications system, facility, or related appurtenances within the rights-of-way shall, at its own expense, remove such facilities or appurtenances from the rights-of-way. If such grantee fails to remove such facilities or appurtenances, the city may cause the removal and charge the grantee for the costs incurred. A telecommunications or other facility or system is unauthorized and subject to removal in the following circumstances:

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

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

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

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

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

F. Any such other reasonable circumstances deemed necessary by the director. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.310 Restoration of rights-of-way or other property.

Restoration shall comply with the following requirements:

A. When a grantee, or any person acting on its behalf, does any work in or affecting any rights-of-way, or any other property, it shall, at its own expense, promptly remove any obstructions therefrom and restore such ways or property to the same condition which existed before the work was undertaken.

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

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

D. All restoration shall comply with the city’s construction and design standards. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.320 Facilities maps.

Each grantee shall provide the city with an accurate as-built map or maps certifying the location of all telecommunications facilities within the city and particularly within rights-of-way. Each grantee shall provide updated as-built maps annually. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.330 Duty to provide information.

Within thirty days of a written request from the director, or other department as the city administrator may designate, each grantee shall furnish the director with information sufficient to demonstrate that:

A. The grantee has complied with all requirements of this chapter;

B. All fees due the city in connection with the telecommunications services and facilities provided by the grantee have been properly collected and paid by the grantee;

C. All books, records, maps and other documents maintained by the grantee with respect to its facilities within rights-of-way shall be made available for inspection by the director. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.340 Grantee insurance.

A. As consideration for the issuance of a franchise, each grantee shall secure and maintain the following liability insurance policies insuring both the grantee and the city as an additional insured against claims for injuries to persons, death, or damages to property which may arise from or in connection with the exercise of the rights, privileges, and authority granted to the grantee:

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

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

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

c. Two million dollars for all other types of liability; and

d. Five million dollars in the aggregate for bodily injury and property damage.

2. Automobile liability for owned, non-owned, and hired vehicles with a combined single limit of two million dollars for each accident;

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

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

5. Excess umbrella liability policy with limits of no less than five million dollars per occurrence and in the aggregate.

B. The liability insurance policies required by this section shall be maintained by the grantee throughout the term of the franchise, and such other period of time during which the grantee is operating without a franchise or is engaged in the removal of its small wireless telecommunications facilities. Failure to maintain such insurance shall be grounds for cancellation. The grantee shall provide an insurance certificate, together with an endorsement including 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 small wireless telecommunications facilities pursuant to said franchise. 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 and noncontributory insurance as respects the city, its elected and appointed officers, officials, employees, agents, representatives, engineers, consultants, and volunteers. Any insurance maintained by the city, its elected and appointed officers, officials, employees, consultants, agents, representatives, engineers, and volunteers shall be in excess of the grantee’s insurance and shall not contribute with it. Receipt by the city of any certificate showing less coverage than required is not a waiver of grantee’s obligations to fulfill the requirements. Grantee may utilize primary and excess liability insurance policies to satisfy the insurance policy limits required in this section. Grantee’s excess liability insurance policy shall provide “follow form” coverage over its primary liability insurance policies.

C. In addition to the coverage requirements set forth in this section, the grantee must notify the city of any cancellation or reduction in said coverage. 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 shall obtain and furnish to the city a replacement insurance certificate meeting the requirements of this section.

D. Grantee’s maintenance of insurance as required by this section shall not be construed to limit the liability of grantee to the coverage provided by such insurance, or otherwise limit the city’s recourse to any remedy available at law or equity. Further, grantee’s maintenance of insurance policies required by this franchise shall not be construed to excuse unfaithful performance by grantee.

E. Upon approval by the director and based on conditions set by the city in the franchise, the grantee may self-insure under the same terms as required by this section. Further, the director may modify these insurance requirements as he/she deems necessary to comply with the city’s risk management policies or as otherwise approved by the city’s risk manager; provided, that any such changes provide adequate protection for the city. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.350 General indemnification.

As consideration for the issuance of a franchise, the franchise shall include an indemnity clause substantially conforming to the following:

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

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

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

3. By virtue of the city’s permitting grantee’s use of the rights-of-way or other city property;

4. Based upon the city’s inspection or lack of inspection of work performed by grantee, its agents and servants, officers or employees in connection with work authorized on a small wireless telecommunications facility, rights-of-way or other city property over which the city has control pursuant to any franchise issued;

5. Arising as a result of the negligent acts or omissions of grantee, its agents, servants, officers or employees in barricading, instituting trench safety systems or providing other adequate warnings of any excavation, construction, or work upon a small wireless telecommunications facility, in any rights-of-way in performance of work or services;

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

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

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

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

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

F. Notwithstanding any other provisions of this section, grantee assumes the risk of damage to its small wireless telecommunications facilities located in the rights-of-way and upon city property from activities conducted by the city, its officers, agents, employees and contractors, except to the extent any such damage or destruction is caused by or arises from the sole negligence or malicious action on the part of the city, its officers, agents, employees or contractors. Grantee releases and waives any and all such claims against the city, its officers, agents, employees and contractors. In no event shall the city be responsible for indirect, special, consequential, or punitive damages or losses, including but not limited to lost income or business interruption, whether or not a party has been advised of the possibility of such damage and notwithstanding the theory of liability in which an action may be brought. Grantee further agrees to indemnify, hold harmless and defend the city against any claims for damages, including, but not limited to, business interruption damages and lost profits, brought by or under users of grantee’s small wireless telecommunications facilities as the result of any interruption of service due to damage or destruction of grantee’s small wireless telecommunications facilities caused by or arising out of activities conducted by the city, its officers, agents, employees or contractors.

G. These indemnification requirements shall survive the expiration, revocation, or termination of a franchise issued thereunder. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.360 Security fund.

A. Prior to issuance of a franchise pursuant to this chapter, each grantee shall establish a permanent security fund with the city by depositing the amount of fifty thousand dollars, or such other amount as deemed necessary by the director, with the city in cash, bond, or an unconditional letter of credit, based upon both operating history in rights-of-way and city property, and the cost of removal of the grantee’s facilities, which fund shall be maintained at the sole expense of the grantee so long as any of the grantee’s small wireless telecommunications facilities are located within the rights-of-way.

B. The fund shall serve as security for the full and complete performance of this chapter and the franchise 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 applicable to the construction, maintenance, repair, or removal of small wireless telecommunications facilities in the rights-of-way or upon city property.

C. The city and the grantee shall agree upon and specify in the franchise certain amounts which represent both parties’ best estimate of the damages for failure to comply with the franchise issued hereunder. The liquidated damages provided in the franchise shall be the exclusive monetary remedy for the named breaches. Neither the right to liquidated damages nor the payment of liquidated damages shall bar or otherwise limit the right of the city in a proper case to:

1. Obtain judicial enforcement of a grantee’s obligations by means of specific performance, injunctive relief, mandamus, or other remedies at law or in equity;

2. Consider any substantial violation or breach as grounds for forfeiture and termination of a franchise issued hereunder; and

3. Consider any violation or breach as grounds for nonrenewal or nonextension of a franchise or issuance of a new franchise.

D. 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 regarding the installation, maintenance, repair, or removal of small wireless telecommunications facilities in the rights-of-way, or upon city property or in connection with restoration of the foregoing;

2. Providing a reasonable opportunity for grantee to first remedy the existing or ongoing default or failure regarding the installation, maintenance, repair, or removal of small wireless telecommunications facilities in the rights-of-way or in connection with the restoration of the foregoing, if applicable;

3. Providing a reasonable opportunity for 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 city or his or her designee.

E. Grantees 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.

F. Upon termination or expiration of a franchise all funds remaining in the security fund shall be returned to the grantee within thirty days after removal of grantee’s small wireless telecommunications facilities within the rights-of-way. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.370 Performance and maintenance bonds.

A. Grantee performing work in the rights-of-way must provide a performance bond written by a corporate surety acceptable to the city equal to at least one hundred fifty percent of the estimated cost of completing or removing the telecommunications facilities and restoring the rights-of-way or city property to its preconstruction condition. The director may, at his/her discretion, waive the bonding requirement for specific projects. This bond may be placed for the entirety of the grantee’s projects; provided, that grantee is able to quantify the full estimated cost of its deployment of telecommunications facilities. If a grantee provides a bond on a per project basis, such grantee is permitted to increase the bond for future projects, or if a project is complete, grantee may apply the bond to other projects in the rights-of-way. The purpose of this bond is to guarantee completion or removal of partially completed or nonconforming small wireless telecommunications facilities, and to fully restore the rights-of-way and city property to their preconstruction condition.

B. If required by the city, a grantee shall furnish a two-year warranty bond, or other surety acceptable to the city, upon the completion of grantee’s construction work, including any restoration work, within the rights-of-way. The warranty bond amount will be equal to fifteen percent of the documented final cost of the construction and restoration work.

C. The performance bond shall guarantee, to the satisfaction of the city:

1. Timely completion of construction;

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

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

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

5. The submission of as-built drawings after completion of the work;

6. Timely payment and satisfaction of all claims, demands or liens for labor, material, or services provided in connection with the work. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.380 Coordination of construction activities.

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

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

B. All construction locations, activities, and schedules shall be coordinated, as ordered by the director, to minimize public inconvenience, disruption, or damages. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.390 Assignments or transfers of grant of franchise.

A. A franchise may not be directly or indirectly assigned, transferred, or disposed of by sale, lease, merger, consolidation, or other act of grantee, by operation of law or otherwise, unless prompt written notice is provided to the city within sixty days of the assignment. In the case of transfer or assignment as security by mortgage or other security instrument in whole or in part to secure indebtedness, such notice shall not be required unless and until the secured party elects to realize upon the collateral. For purposes of this section, no assignment or transfer of a franchise shall be deemed to occur based on the public trading of grantee’s stock; provided, however, that any tender offer, merger, or similar transaction resulting in a change of control shall be subject to the provisions of a franchise.

B. Any transactions which singularly or collectively result in a change of fifty percent or more of the ownership or working control (for example, management of grantee or its small wireless telecommunications facilities) of the grantee or of the ownership or working control of the grantee’s small wireless telecommunications facilities within the city, or of the ownership or working control having ownership or working control of the grantee or of the grantee’s small wireless telecommunications facilities within the city, or of control of the capacity or bandwidth of the grantee’s small wireless telecommunication facilities within the city, shall be considered an assignment or transfer requiring notice to the city pursuant to a franchise. Such transactions between affiliated entities are not exempt from notice requirements. A grantee shall notify the city of any proposed change in, or transfer of, or acquisition by, any other party of control of a grantee within sixty days following the closing of the transaction. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.400 Notice and duty to cure.

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

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

B. Rebuts the alleged violation or noncompliance.

C. It would be in the public interest to impose some monetary damages, penalty, or sanction less than revocation. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.410 Revocation hearing.

In the event that a grantee fails to provide evidence reasonably satisfactory, as provided hereunder, to the director, he/she shall refer the apparent violation or noncompliance to the city. The city shall provide the grantee with notice and a reasonable opportunity to be heard concerning the matter. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.420 Standards for revocation.

If persuaded that the grantee has violated or failed to comply with a material provision of this chapter or of a franchise or applicable codes, ordinances, resolutions, or statutes, the city shall determine whether to revoke the franchise, and issue a written decision relating thereto, considering the nature, circumstances, extent and gravity of the violation as reflected by one or more of the following factors:

A. Whether the misconduct was egregious;

B. Whether substantial harm resulted;

C. Whether the violation was intentional;

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

E. Whether there is a history of overall compliance;

F. Whether the violation was voluntarily disclosed, admitted or cured. (Ord. 1561 § 3 (Exh. A) (part), 2019).

Article IV. Small Wireless Deployment

15.22.450 Application process.

A. Overview. In order to manage its rights-of-way in a thoughtful manner which balances the need to accommodate new and evolving technologies with the preservation of the natural and aesthetic environment of the city, the city has adopted this administrative process for the deployment of small wireless facilities. The city and applicant for a franchise and other permits associated with the deployment of small wireless facilities face challenges in coordinating applicable legislative and administrative processes under the Federal Communications Commission (FCC) regulations. A franchise for the use of the city’s right-of-way is a contract which requires approval by the city council. The small wireless permits are issued by the director of the planning department or his/her designee. Applicants are encouraged and expected to provide all related applications in one submittal, unless they have already obtained a franchise.

B. Application Process. The director of the public works department or his/her designee is authorized to establish franchise and other application forms to gather the information required by this chapter from applicants and to determine the completeness of the application process as provided herein. The application shall include Parts A, B, and C as described below.

1. Franchise. The process typically begins with and depends upon approval of a franchise for the use of the public right-of-way to deploy small wireless facilities if any portion of the applicant’s facilities is to be located in the right-of-way. A complete application for a franchise is designated as Part A. An applicant with a franchise for the deployment of small wireless facilities in the city may proceed to directly apply for a small wireless facility permit/right-of-way permit and related approvals (Parts B and C). An applicant at its option may utilize phased development. Because franchises are required by federal law to be competitively neutral, the city has established a franchise format for use by all right-of-way users.

2. Small Wireless Facility Permits/Right-of-Way Permits. Part B of the application requires specification of the small wireless facility components and locations as further required in the small wireless permit application described in Section 15.22.460.

3. Associated Permit(s). Part C of the application shall attach all associated permits’ requirements such as applications or check lists required under the critical areas, shoreline or SEPA ordinances. Applicants for deployment of small wireless facilities in city design zones or for new poles shall comply with the requirements in Section 17.70.100.

4. Leases. An applicant who desires to attach a small wireless facility to any utility pole or light owned by the city shall include an application for a lease as a component of its application. The director is authorized to approve leases in the form approved for general use by the city council for any utility pole or light pole in the right-of-way. Leases for the use of other public property, structures or facilities shall be submitted to the city council for approval. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.460 Small wireless permit application.

The following information shall be provided by all applicants for a small wireless permit:

A. The application shall provide specific locational information, including GIS coordinates of all proposed small wireless facilities, and specify where the small wireless facilities will utilize existing, replacement or new poles, towers, existing buildings and/or other structures. Ground-mounted equipment, conduit, and junction boxes must be detailed. Detailed schematics and visual renderings of the small wireless facilities, including engineering and design standards, shall be provided by the applicant. The application shall have sufficient detail to identify:

1. The location of overhead and underground public utility, telecommunication, cable, water, sewer drainage and other lines and equipment in the rights-of-way within two hundred fifty feet from the proposed site.

2. The specific trees, structures, facilities, lines and equipment and obstructions, if any, that applicant proposes to temporarily or permanently remove or relocate and a landscape plan for protecting, trimming, removing, replacing, and restoring any trees or areas to be disturbed during construction.

3. All existing proposed improvements related to the proposed location, including but not limited to poles, driveways, ADA ramps, equipment cabinets, street trees and structures within two hundred fifty feet from the proposed site.

4. If the site location includes a replacement or new light pole, then the applicant must submit a photometric analysis of the roadway and sidewalk one hundred fifty feet upstream and downstream of the existing light.

5. Compliance with the aesthetic requirements of Section 17.70.100.

B. The applicant must show written approval from the owner of any pole or structure for the installation of its small wireless facilities on such pole or structure. Such written approval shall include approval of the specific pole, engineering and design standards, as well as assurances that the specific pole can withstand wind and seismic loads, from the pole owner, unless the pole owner is the city. Submission of evidence of a lease agreement between the owner and the applicant is required. For city-owned poles or structures, the applicant must obtain a lease from the city prior to or concurrent with the small wireless permit application and must submit as part of the application the information required in the lease for the city to evaluate the usage of a specific pole.

C. The applicant can batch multiple small wireless facility sites in one application. The applicant is encouraged to batch the small wireless facility sites within an application in a contiguous service area.

D. Any application for a small wireless facility located in the right-of-way adjacent to a parcel zoned for residential use shall demonstrate that it has considered the following:

1. Whether a small wireless facility is currently installed on an existing pole in front of the same residential parcel. If a small wireless facility exists, then the applicant must demonstrate that no technically feasible alternative location exists which is not in front of the same residential parcel.

2. Whether the proposed small wireless facility can be screened from residential view by choosing a pole location that is not directly in front of a window or views.

E. Any application for a small wireless permit which contains an element which is not exempt from SEPA review shall simultaneously apply under Chapter 43.21C RCW. Further, any application proposing small wireless facilities in shoreline management zones or in critical areas must indicate that the application is exempt or comply with the review processes in such codes.

F. The applicant shall submit a sworn affidavit signed by an RF engineer with knowledge of the proposed project affirming that the small wireless facilities will be compliant with all FCC and other governmental regulations in connection with human exposure to radio frequency emissions for every frequency at which the small wireless facility will operate. If facilities which generate RF radiation necessary to the small wireless facility are to be provided by a third party, then the small wireless permit shall be conditioned on an RF certification showing the cumulative impact of the RF emissions on the entire installation. The applicant may provide one emissions report for the entire small wireless deployment if the applicant is using the same small wireless facility configuration for all installations within that batch or may submit one emissions report for each subgroup installation identified in the batch.

G. The applicant shall provide proof of FCC and other regulatory approvals required to provide the service(s) or utilize the technologies sought to be installed.

H. A professional engineer licensed by the state of Washington shall certify in writing, over his or her seal, that both construction plans and final construction of the small wireless facilities and structure or pole and foundation are designed to reasonably withstand wind and seismic loads.

I. A traffic control plan.

J. The small wireless facilities permit shall include those elements that are typically contained in the right-of-way use permit to allow the applicant to proceed with the build-out of the small wireless facility deployment.

K. Recognizing that small wireless facility technology is rapidly evolving, the director is authorized to adopt and publish standards for the technological and structural safety of city-owned structures and to formulate and publish application questions for use when an applicant seeks to attach to city-owned structures.

L. Such other information as the director, in his/her discretion, shall deem appropriate to effectively evaluate the application based on technical, engineering and aesthetic considerations. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.470 Review process.

A. Review. The following provisions relate to review of applications for a small wireless facility permit:

1. Only complete applications for a small wireless permit containing all required submission elements described in Section 15.22.460 shall be considered by the city. Incomplete applications that are not made complete by the applicant within sixty days of initial submission of the application materials shall be deemed withdrawn.

2. In any zone, upon application for a small wireless permit, the city will permit small wireless deployment on existing or replacement utility poles conforming to the city’s generally applicable development and design standard adopted pursuant to Section 17.70.100, except as provided in subsection B of this section.

3. Vertical clearance shall be reviewed by the director to ensure that the small wireless facilities will not pose a hazard to other users of the rights-of-way.

4. Replacement poles and new poles shall comply with the Americans with Disabilities Act (ADA), city construction and sidewalk clearance standards, traffic warrants, city ordinances, and state and federal statutes and regulations in order to provide a clear and safe passage within the rights-of-way. Further, the location of any replacement pole or new pole must: be physically possible, cannot obstruct vehicular or pedestrian traffic or the clear zone, not interfere with utility or safety fixtures (e.g., fire hydrants, traffic control devices), and not adversely affect the public welfare, health, or safety.

5. No equipment shall be operated so as to produce noise in violation of the city’s noise standards.

6. Small wireless facilities may not encroach onto or over private property or property outside of the right-of-way without the property owner’s express written consent.

7. The city shall make every reasonable effort, consistent with any applicable provisions of state or federal law, and the preservation of the city’s health, safety and aesthetic environment, to comply with the federal presumptively reasonable time periods for review of facilities for the deployment of small wireless facilities to the fullest extent possible.

B. Small wireless deployment in areas designated as design zones pursuant to Section 17.70.100 as well as new noncity-owned poles, or replacement poles deviating from the pole design standards adopted pursuant to Section 17.70.100, are subject to review pursuant to Chapter 17.70.

C. Eligible Facilities Requests. The design approved in a small wireless facility permit shall be considered concealment elements and such facilities may only be expanded upon an eligible facilities request described in Section 17.70.030 when the modification does not defeat the concealment elements of the small wireless facility.

D. Review of Facilities. Review of the site locations proposed by the applicant shall be governed by the provisions of 47 U.S.C. § 253 and 47 U.S.C. § 332 and other applicable statutes, regulations and case law. Applicants for franchises and the small wireless facility permits shall be treated in a competitively neutral and nondiscriminatory manner with other service providers utilizing supporting infrastructure which is functionally equivalent, that is, service providers whose facilities are similarly situated in terms of structure, placement, or cumulative impacts. small wireless facility permit review under this chapter shall neither prohibit nor have the effect of prohibiting the ability of an applicant to provide telecommunications services.

E. Final Decision. Any decision by the director shall be final and not be subject to administrative appeals.

F. Public Comment. The city shall provide notice of a complete application for a small wireless facility permit on the city’s website with a link to the application. The notice shall include an email contact and telephone number for the applicant to answer citizen inquiries. The applicant is encouraged to host informational meetings for the public regarding the deployment. The city shall post meeting notices, if any, for informational meetings on its website. These meetings are for the public’s information and are neither hearings nor part of any land use appeal process.

G. Withdrawal. Any applicant may withdraw an application submitted pursuant to Section 15.22.460 at any time, provided the withdrawal is in writing and signed by all persons who signed the original application or their successors in interest. When a withdrawal is received, the application shall be deemed null and void. If such withdrawal occurs prior to the director of public works or his/her designee’s decision, then reimbursement of fees submitted in association with said application shall be prorated to withhold the amount of city costs incurred in processing the application prior to time of withdrawal. If such withdrawal is not accomplished prior to the director of public works or his/her designee’s decision, there shall be no refund of all or any portion of such fee. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.480 Permit requirements.

A. The grantee of any permit shall comply with all of the requirements within the small wireless permit.

B. Small wireless facilities installed pursuant to a small wireless facility permit may proceed to install the approved small wireless facilities without the need for an additional right-of-way use permit if construction is commenced within thirty days of approval by providing email or written notice to the director. Facilities approved in a small wireless permit in which installation has not commenced within thirty days of the approval of a small wireless facility permit shall apply for and be issued a right-of-way use permit to install such small wireless facilities in accordance with the standard requirements of the city for use of the right-of-way.

C. Post-Construction As-Builts. Within thirty days after construction of the small wireless facility, the grantee shall provide the city with as-builts of the small wireless facilities demonstrating compliance with the permit and site photographs.

D. Permit Time Limit. Construction of the small wireless facility must be completed within six months after the approval date by the city, except where the delay is caused by the fiber and/or power providers. The grantee may request one extension to be limited to six months, if the applicant cannot construct the small wireless facility within the original six-month period.

E. Site Safety and Maintenance. The grantee must maintain the small wireless facilities in safe and working condition. The grantee shall be responsible for the removal of any graffiti or other vandalism and shall keep the site neat and orderly, including but not limited to following any maintenance or modifications on the site. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.490 Modifications to small wireless facilities.

A. If a grantee desires to make a modification to an existing small wireless facility, including but not limited to expanding or changing the antenna type, increasing the equipment enclosure, placing additional pole-mounted or ground-mounted equipment, or modifying the concealment elements, then the applicant shall apply for a small wireless facility permit.

B. A small wireless facility permit shall not be required for routine maintenance and repair of a small wireless facility within the rights-of-way, or the replacement of an antenna or equipment of similar size, weight, and height; provided, that such replacement does not defeat the concealment elements used in the original deployment of the small wireless facility, does not impact the structural integrity of the pole, and does not require pole replacement. Further, a small wireless facility permit shall not be required for replacing equipment within the equipment enclosure or reconfiguration of fiber or power to the small wireless facility. Right-of-way use permits may be required for such routine maintenance, repair or replacement. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.500 Consolidated permit.

The issuance of a small wireless permit grants authority to construct small wireless facilities in the rights-of-way in a consolidated manner to allow the applicant, in most situations, to avoid the need to seek duplicative approval by both the public works and the planning departments. If the applicant requires a new franchise to utilize the right-of-way, the franchise approval may be consolidated with the small wireless facility permit review if requested by the applicant. As an exercise of police powers pursuant to RCW 35.99.040(2), the small wireless facility permit is not a right-of-way use permit, but instead a consolidated public works and land use permit and the issuance of a small wireless facility permit shall be governed by the time limits established by federal law for small wireless facilities. (Ord. 1561 § 3 (Exh. A) (part), 2019).

Article V. Fees

15.22.510 Application and review fee.

Any applicant for a franchise pursuant to this chapter shall pay an application and review fee or fee deposit in an amount as determined by the city council. This application and review fee covers the actual costs associated with the city’s initial review of the application; provided, however, that the applicant shall be required to pay all necessary permit fees. This application and review fee shall be deposited with the city as part of the application filed pursuant to this chapter. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.520 Other city costs.

All grantees shall, within thirty days after written demand therefor, reimburse the city for all direct and actual costs and expenses incurred by the city in connection with any grant, modification, amendment, renewal, or transfer of any franchise. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.530 Permit fee.

Prior to issuance of a right-of-way permit or small wireless facility permit, the applicant shall pay a permit fee in an amount as determined by the city council. (Ord. 1561 § 3 (Exh. A) (part), 2019).

15.22.540 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. 1561 § 3 (Exh. A) (part), 2019).

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

Any person maintaining overhead telecommunication facilities in a public rightofway 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 rightsofway; 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 rightsofway, 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. 1561 § 3 (Exh. A) (part), 2019).

15.22.560 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. 1561 § 3 (Exh. A) (part), 2019).

15.22.570 Joint trenching.

Recognizing that trenching and excavation within public rightsofway can significantly degrade the quality and longevity of street surfacing 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 rightsofway. 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. 1561 § 3 (Exh. A) (part), 2019).


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Prior legislation: Ords. 1174, 1228 and 1502.