Chapter 12.60
TELECOMMUNICATIONS

Sections:

Article I. General Provisions

12.60.010    Purpose.

12.60.020    Definitions.

12.60.030    Business and utility occupation licenses required.

12.60.040    Telecommunications or cable franchise required.

12.60.050    Facilities lease required.

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

12.60.070    Relief and remedies.

12.60.080    Fees and compensation not a tax.

Article II. Telecommunication Franchise Agreement

12.60.090    Franchise area.

12.60.100    Telecommunication franchise application.

12.60.110    Determination by City.

12.60.120    Term of telecommunication franchise grant.

12.60.130    Franchise agreement.

12.60.140    Rights granted.

12.60.150    Nonexclusive grant.

12.60.160    Incorporation by reference.

12.60.170    Renewal applications.

12.60.180    Renewal determinations.

12.60.190    Obligation to cure as a condition of renewal.

12.60.200    Application and review fee.

12.60.210    Other City costs.

Article III. Conditions of Franchises

12.60.220    Purpose.

12.60.230    Acceptance.

12.60.240    Police power.

12.60.250    Rules and regulations by the City.

12.60.260    Duty to provide information.

12.60.270    Leased capacity.

12.60.280    Contractors and subcontractors.

12.60.290    Insurance.

12.60.300    General indemnification.

12.60.310    Security.

12.60.320    Construction and warranty bond.

12.60.330    Coordination of construction activities.

12.60.340    Assignments or transfers of grant.

12.60.350    Revocation or termination of grant.

12.60.360    Notice and duty to cure.

12.60.370    Hearing.

12.60.380    Lesser sanctions.

Article IV. Construction Standards

12.60.390    General construction standards.

12.60.400    Construction permits.

12.60.410    Applications.

12.60.420    Engineer’s certification.

12.60.430    Traffic control plan.

12.60.440    Issuance of permit.

12.60.450    Appeal of permit decision.

12.60.460    Construction schedule.

12.60.470    Compliance with permit.

12.60.480    Display of permit.

12.60.490    Survey of underground facilities.

12.60.500    Location of facilities.

12.60.510    Compliance with one call locator service.

12.60.520    Interference with the public ways.

12.60.530    Damage to property.

12.60.540    Repair and emergency work.

12.60.550    Maintenance of facilities.

12.60.560    Relocation or removal of facilities.

12.60.570    Building moving.

12.60.580    Removal of unauthorized facilities.

12.60.590    Emergency removal or relocation of facilities.

12.60.600    Damage to grantee’s facilities.

12.60.610    Construction in the public ways, other ways and City property.

12.60.620    Noncomplying work.

12.60.630    Completion of construction.

12.60.640    As-built drawings.

12.60.650    Restoration after construction, installation, maintenance, repair or replacement.

12.60.660    Notice of entry on private property.

12.60.670    Safety requirements.

12.60.680    Stop work order.

12.60.690    Authority to trim trees.

12.60.700    Landscape restoration.

12.60.710    Abandonment.

Article I. General Provisions

12.60.010 Purpose.

The purpose and intent of this chapter is to:

A. Establish a local policy concerning the use of public ways and City property by telecommunication carriers;

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

C. Promote competition in telecommunication services;

D. Minimize unnecessary local regulation of telecommunication carriers;

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

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

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

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

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

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

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

L. Enable the City to discharge its public trust consistent with rapidly evolving federal and State regulatory policies, industry competition and technological development. (Ord. 2897 § 2, 2020).

12.60.020 Definitions.

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

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

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

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

“Cable operator” means any person or group of persons who provides cable service over a cable system and directly or through 1 or more affiliates owns a significant interest in such cable system or who otherwise control(s) or is (are) responsible for, through any arrangement, the management and operation of such a cable system.

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

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

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

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

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

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

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

“City property” means and includes all real property owned by the City, other than public ways and utility easements as those terms are defined herein, and all City-owned structures, including poles and conduits within the right-of-way, which are not subject to right-of-way franchising as provided in this chapter.

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

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

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

“Facilities” shall mean telecommunication facilities or cable facilities.

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

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

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

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

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

“Personal wireless services” means commercial mobile services, unlicensed wireless services and common carrier wireless exchange access services as defined by federal laws and regulations.

“Public Works Director” shall mean the City’s Public Works Director or his or her designee.

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

“Right-of-way” or “public 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 USC 912 and related provisions of federal law that are not open for motor vehicle use.

“Resident” means any person residing within the City.

“Telecommunication carrier” means and includes every person that directly or indirectly owns, controls, operates or manages telecommunication facilities within the City, used or to be used for the purpose of offering or furnishing telecommunication service within or outside the City. A telecommunication carrier shall include infrastructure providers providing services to telecommunications carriers, but does not apply to an electrical utility.

“Telecommunication facilities” means all of the plant, equipment, fixtures, appurtenances, antennas, and other facilities necessary to furnish and deliver telecommunications services and cable television 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 and cable television services.

“Telecommunication 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 definition, “information” means knowledge or intelligence represented by any form of writing, signs, signals, pictures, sounds, or any other symbols. For the purpose of this definition, “telecommunications service” excludes the over-the-air transmission of broadcast television or broadcast radio signals.

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

“Utility facilities” means the plant, equipment and property, including but not limited to the poles, pipes, mains, conduits, ducts, cables, wires, plant and equipment located under, on or above the surface of the ground within the public ways of the City and used or to be used for the purpose of providing utility or telecommunication services. (Ord. 2897 § 2, 2020).

12.60.030 Business and utility occupation licenses required.

All telecommunication carriers engaged in the business of transmitting, supplying or furnishing of telecommunication service originating or terminating in the City shall apply for and obtain a business license pursuant to Chapter 5.02 IMC, a utility occupation license pursuant to Chapter 5.32 IMC, and pay all license fees, business and occupation taxes, and utility taxes related thereto. (Ord. 2897 § 2, 2020).

12.60.040 Telecommunications or cable franchise required.

A. Any telecommunication carrier who desires to construct, install, operate, maintain, or otherwise locate telecommunication facilities in, under, over or across any public way of the City for the purpose of providing telecommunication service to persons and areas within or outside the City shall first obtain a franchise granting the use of such public ways from the City pursuant to this chapter.

B. Any cable operator who desires to construct, install, operate, maintain, or otherwise locate a cable system in, under, over or across any public way of the City for the purpose of providing cable service to persons and areas within or outside the City shall first obtain a franchise granting the use of such public ways from the City pursuant to Chapter 12.50 IMC and must comply with this section and Article IV of this chapter.

C. Any telecommunications carrier with an existing statewide grant based on a predecessor telephone or telegraph company’s existence at the time of the adoption of the Washington State Constitution to occupy the right-of-way who desires to construct, install, operate, maintain, or otherwise locate telecommunication facilities in, under, over or across any public way of the City for the purpose of providing telecommunication service to persons and areas within or outside the City shall comply with the provisions of this chapter but is not required to obtain a franchise from the City. (Ord. 2897 § 2, 2020).

12.60.050 Facilities lease required.

No telecommunication carrier or other entity who desires to construct or erect telecommunication or other equipment on City property shall locate such facilities or equipment on City property unless granted a facilities lease from the City. The City Council reserves unto itself the sole discretion to lease City property for telecommunication and other facilities, and no vested or other right shall be created by this section or any provision of this chapter applicable to such facilities leases. Site specific agreements for small wireless facilities regulated by IMC Title 18 and located in the right-of-way shall not require City Council approval and may be approved by the Public Works Director. (Ord. 2897 § 2, 2020).

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

A. A franchise shall be required of any telecommunications provider or carrier or other person who currently occupies or desires in the future to occupy the public way and to provide telecommunications services to any person or area in the City; provided, that to the extent there is a conflict between this chapter and any existing franchise, agreement, lease or permit, this chapter shall have no effect on the conflicting clauses of the franchise, agreement, lease or permit until:

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

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

B. Nothing in this chapter shall be deemed to create an obligation upon any person for which the City is forbidden to require a permit, license, or franchise by federal, State, or other law. (Ord. 2897 § 2, 2020).

12.60.070 Relief and remedies.

A. The City may seek legal or equitable relief to enjoin any acts or practices and abate any condition which constitutes or will constitute a violation of the applicable provisions of this chapter. Violation of the terms of this chapter may also result in the revocation of any franchise, facilities lease, or permit issued or granted hereunder.

B. All penalties and other remedies set forth in this chapter are in addition to any enforcement provisions set forth in any permit, franchise, or lease granted by the City. (Ord. 2897 § 2, 2020).

12.60.080 Fees and compensation not a tax.

The fees, charges and fines provided for in this chapter and any compensation charged and paid for the public ways provided for herein, whether monetary or in-kind (to the extent permitted by law), are separate from, and in addition to, any and all federal, State, local, and City taxes as may be lawfully levied, imposed or due from a telecommunications carrier, its customers or subscribers or on account of the lease, sale, delivery or transmission of telecommunications service. (Ord. 2897 § 2, 2020).

Article II. Telecommunication Franchise Agreement

12.60.090 Franchise area.

With the exception of franchises for macro wireless service facilities, the franchise area shall include City-wide approval for the use of all public ways within the City. Franchises for personal wireless services which include solely macro facilities are limited to the specific public ways occupied or proposed to be occupied by such macro facilities, and such macro facilities must be consistent with the requirements in Chapter 18.22 IMC. Franchises for small wireless facilities may include City-wide approval for the use of all public ways within the City. (Ord. 2897 § 2, 2020).

12.60.100 Telecommunication franchise application.

Any person that desires a telecommunication franchise shall file an application with the City which shall include at a minimum the following information:

A. The name, address, and telephone number of the applicant.

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

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

D. A summary of the planned first deployment of telecommunications facilities and a tentative schedule for such deployment.

E. If proposing a macro wireless communications facility, include the identification of the location of the macro wireless communications facility and the applicable construction drawings.

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

G. Such other information as the Director determines is necessary to evaluate the proposed use of the public ways. (Ord. 2897 § 2, 2020).

12.60.110 Determination by City.

A. Following the receipt of a complete application under IMC 12.60.100, and within the time periods established by applicable State or federal law, the City Council shall either grant or deny a franchise. If the franchise application is denied, the written determination shall include the reasons for the denial.

B. An applicant adversely affected by the City Council’s denial, or by an unreasonable failure to act on a franchise application, may commence an action within 30 days to seek relief. (Ord. 2897 § 2, 2020).

12.60.120 Term of telecommunication franchise grant.

Unless otherwise specified in a franchise, a franchise granted hereunder shall be in effect for a term of up to 5 years. (Ord. 2897 § 2, 2020).

12.60.130 Franchise agreement.

No franchise granted under this chapter shall be deemed to have been granted hereunder until the applicant and the City have executed the franchise setting forth the particular terms and provisions under which the grantee has been granted the right to occupy and use the public ways of the City. (Ord. 2897 § 2, 2020).

12.60.140 Rights granted.

No approval granted under this article shall convey any right, title or interest in the public ways or City property, but shall be deemed a franchise only to use and occupy the public ways or City property for the limited purposes and term stated in the approval. Further, no approval shall be construed as any warranty of title. (Ord. 2897 § 2, 2020).

12.60.150 Nonexclusive grant.

No franchise granted under this chapter shall be deemed to be an exclusive grant and shall not in any manner prevent the City from constructing, operating, and/or maintaining a telecommunication systems or facilities of its own or granting other franchises to do so in, along, over, through, under, below or across any of the public ways. No franchise granted hereunder shall prevent or prohibit the City from using any public ways or affect the City’s jurisdiction over them. The City reserves full power to make all necessary changes, relocations, repairs, maintenance and improvement of all public ways and other public properties of every type. (Ord. 2897 § 2, 2020).

12.60.160 Incorporation by reference.

The provisions of this chapter shall be incorporated by reference in any franchise approved hereunder. However, in the event of any conflict between this chapter and the franchise, the franchise shall be the prevailing document. (Ord. 2897 § 2, 2020).

12.60.170 Renewal applications.

Unless otherwise agreed in the franchise, a grantee that desires to renew its franchise under this article shall, not more than 180 days nor less than 90 days before expiration of the current franchise, file an application with the City for renewal of its franchise which shall include the following:

A. The information required pursuant to IMC 12.60.100.

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

C. An application fee as provided in Chapter 3.65 IMC. (Ord. 2897 § 2, 2020).

12.60.180 Renewal determinations.

After receiving a complete application for franchise renewal, the City shall determine whether to grant or deny the renewal application in whole or in part. If the renewal application is denied, the written determination shall include the reasons for nonrenewal. Prior to granting or denying the renewal of a franchise under this article, the City Council shall consider the following:

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

B. Applicable federal, State and local telecommunication laws, rules and policies.

C. Such other factors as may demonstrate that the continued grant to use the public ways will serve the community interest. (Ord. 2897 § 2, 2020).

12.60.190 Obligation to cure as a condition of renewal.

No franchise shall be renewed until any ongoing violations or defaults in the grantee’s performance of the franchise, or of the requirements of this chapter, have been cured, or a plan detailing the corrective action to be taken by the grantee has been approved by the City. (Ord. 2897 § 2, 2020).

12.60.200 Application and review fee.

Any applicant for a franchise pursuant to this chapter shall pay an application and review fee or fee deposit as provided in Chapter 3.65 IMC. This application and review fee covers the actual administrative expenses incurred by the City that are directly related to the processing of the application and the franchise; provided, however, that the applicant shall also 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. 2897 § 2, 2020).

12.60.210 Other City costs.

All grantees shall, within 30 days after written demand, reimburse the City for all direct and actual costs and expenses incurred by the City in connection with any modification, amendment, renewal or transfer of the franchise. In addition, all grantees shall, within 30 days after written demand, reimburse the City for all direct and actual costs the City incurs in response to any emergency involving the grantee’s telecommunications facilities. All grantees shall, within 30 days after written demand, reimburse the City for the grantee’s proportionate share of all actual expenses incurred by the City in planning, constructing, installing, repairing or altering any City facility as a result of the construction or the presence in the right-of-way of the grantee’s telecommunications facilities. (Ord. 2897 § 2, 2020).

Article III. Conditions of Franchises

12.60.220 Purpose.

The purpose of this article is to set forth certain terms and conditions which are common to all telecommunication franchises, including cable franchises issued under Chapter 12.50 IMC. Except as otherwise provided in this chapter or in such a franchise, the provisions of this article apply to all franchises granted by the City. (Ord. 2897 § 2, 2020).

12.60.230 Acceptance.

No franchise granted pursuant to the provisions of this chapter shall become effective unless and until the franchise has been accepted by the grantee. Either before the franchise is presented to Council or within 60 days after the effective date of the ordinance or other City action granting a franchise, or within such extended period of time as may be authorized by the City, the applicant shall file written acceptance of the franchise in a form satisfactory to the City Attorney, together with the bonds, insurance policies, and security fund required by this article. Acceptance of a franchise shall consist of executing the written agreement granting the franchise and returning said franchise to the City within the period of time specified herein. (Ord. 2897 § 2, 2020).

12.60.240 Police power.

In accepting any franchise, the grantee shall acknowledge that its rights are subject to the legitimate rights of the police power of the City to adopt and enforce general ordinances necessary to protect the safety and welfare of the public and it agrees to comply with all applicable general laws enacted by the City pursuant to such power. (Ord. 2897 § 2, 2020).

12.60.250 Rules and regulations by the City.

In addition to the inherent powers of the City to regulate and control any franchise it issues, the authority granted to it by the Cable Act, and those powers expressly reserved by the City, or agreed to and provided for in any franchise, the right and power is hereby reserved by the City to promulgate such additional regulations as it may find necessary in the exercise of its lawful powers giving due regard to the rights of grantees hereunder. Except as provided in this chapter, the foregoing does not allow for amendment by the City of material terms of any franchise it issues without the consent of the grantee. The City Council reserves the right to delegate its authority for franchise administration to a designated City department director. (Ord. 2897 § 2, 2020).

12.60.260 Duty to provide information.

A. Within 30 days of a written request from the Public Works Director, and no more frequently than once per calendar year, each grantee shall furnish the City with information sufficient to demonstrate:

1. That grantee has complied with all requirements of this chapter.

2. That all sales, business and occupation, utility and/or telecommunication taxes due to the City in connection with the telecommunication services and facilities provided by the grantee have been properly collected and paid by the grantee.

B. Applicable books, records, maps and other documents maintained by the grantee with respect to its facilities within the public ways shall be made available for inspection by the City at reasonable times and intervals; provided, however, that nothing in this section shall be construed to require a grantee to violate State or federal law regarding subscriber privacy, nor shall this section be construed to require a grantee to disclose proprietary or confidential information without adequate safeguards for its confidential or proprietary nature. (Ord. 2897 § 2, 2020).

12.60.270 Leased capacity.

A grantee shall have the right, without prior City approval, to offer or provide fiber capacity or bandwidth to other carriers, resellers, customers, or subscribers consistent with a franchise; provided, however, that the grantee shall remain responsible for compliance with this chapter and such franchise. (Ord. 2897 § 2, 2020).

12.60.280 Contractors and subcontractors.

A grantee’s contractors and subcontractors shall be licensed and bonded in accordance with the City’s ordinances, regulations, and requirements. Work by contractors and subcontractors is subject to the same restrictions, limitations, and conditions as if the work were performed by a grantee. Grantee shall be responsible for all work performed by its contractors and subcontractors and others performing work on its behalf as if the work were performed by it and shall ensure that all such work is performed in compliance with the franchise and applicable law. (Ord. 2897 § 2, 2020).

12.60.290 Insurance.

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

A. Commercial General Liability Insurance Written on an Occurrence Basis. The insurance policy shall be endorsed to provide a per project general aggregate and there shall be no exclusions for liability arising from explosion, collapse or underground property damage. The policy shall have limits not less than:

1. $3,000,000 for bodily injury, property damage, products-completed operations, stop gap liability, personal injury and advertising injury, and liability assumed under an insured contract;

2. $6,000,000 general aggregate, per project aggregate and products-completed operations aggregate.

B. Automobile liability insurance covering all owned, nonowned, hired and leased vehicles with a minimum combined single limit for bodily injury and property damage of $2,000,000 per accident.

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

D. Pollution liability insurance shall be in effect throughout the entire franchise term, with a limit of not less than $1,000,000 per occurrence, and $2,000,000 in the aggregate.

E. Excess or umbrella liability policy shall be excess over and at least as broad in coverage as the commercial general liability and automobile liability insurance with limits not less than $5,000,000 per occurrence and annual aggregate.

F. 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 telecommunication facilities. The insurance policies shall include the City, and its elected and appointed officers, officials, agents, employees, representatives, engineers, consultants and volunteers as additional insureds. The grantee shall provide a certificate of insurance (COI), together with the additional insured endorsement(s) to the City, upon acceptance of the franchise. Payment of deductibles and self-insured retentions shall be the sole responsibility of the grantee. The insurance required by this section shall apply separately to each insured against whom a claim is made or suit is brought. The grantee’s insurance shall be primary insurance with respect to the City, its officers, officials, employees, agents, consultants, and volunteers. Any insurance, self-insurance, or self-insured pool coverage maintained by the City shall be excess of the grantee’s insurance and shall not contribute with it. Receipt by the City of any certificate or evidence of insurance 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.

G. Grantee is obligated to notify the City of any cancellation or intent not to renew any insurance policy required pursuant to this section 30 days prior to any such cancellation. Within 15 days prior to said cancellation or intent not to renew, grantee shall obtain and furnish to the City replacement insurance policies meeting the requirements of this section. Failure to provide the insurance cancellation notice and to furnish to the City replacement insurance policies meeting the requirements of this section shall be considered a material breach of the franchise.

H. Grantee’s maintenance of insurance, its scope of coverage and limits as required herein shall not be construed to limit the liability of the grantee to the coverage provided by such insurance, or otherwise limit the City’s recourse to any remedy available at law or in equity. If the grantee maintains higher insurance limits than the minimums shown above, the City shall be insured for the full available limits of commercial general and excess or umbrella liability maintained by the grantee, irrespective of whether such limits maintained by the grantee are greater than those required by this code or whether any certificate of insurance furnished to the City evidences limits of liability lower than those maintained by the grantee. Further, grantee’s maintenance of insurance policies required by this franchise shall not be construed to excuse unfaithful performance by grantee.

I. Upon approval by the City 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 Public Works Director may modify these insurance requirements within the franchise 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. 2897 § 2, 2020).

12.60.300 General indemnification.

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

A. Grantee hereby releases, 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, for injury or death of any person or damage to property caused by or arising out of any acts or omissions of grantee, its agents, servants, officers, or employees by virtue of grantee’s exercise of the rights granted herein, or in any franchise or permit, These indemnification obligations shall extend to claims that are not reduced to a suit and any claims that may be compromised, prior to the culmination of any litigation or the institution of any litigation.

B. Inspection or acceptance by the City of any work performed by grantee at the time of completion of construction shall not be grounds for avoidance of any of these covenants of indemnification. Provided, that grantee has been given prompt written notice by the City of any such claim, said indemnification obligations shall extend to claims which are not reduced to a suit and any claims which may be compromised prior to the culmination of any litigation or the institution of any litigation. The City’s failure to so notify and request indemnification shall not relieve grantee of any liability that grantee might have, except to the extent that such failure prejudices grantee’s ability to defend such claim or suit. The City has the right to defend or participate in the defense of any such claim at its own costs, and has the right to approve any non-monetary settlement or other compromise of any such claim.

C. Should a court of competent jurisdiction determine that the franchise is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the grantee and the City, its officers, officials, employees, and volunteers, the grantee’s liability shall be only to the extent of the grantee’s negligence. It is further specifically and expressly understood that the indemnification provided constitutes the grantee’s waiver of immunity under Industrial Insurance, RCW Title 51, solely for the purposes of this indemnification. The obligations of grantee under this subsection shall be mutually negotiated by the parties, and grantee shall acknowledge that the City would not enter into a franchise without grantee’s waiver.

D. The City shall promptly notify grantee of any claim or suit and request in writing that grantee indemnify the City. Grantee may choose counsel to defend the City subject to the City’s consent which shall not be unreasonably withheld and consistent with this subsection. City’s failure to so notify and request indemnification shall not relieve grantee of any liability that grantee might have, except to the extent that such failure prejudices grantee’s ability to defend such claim or suit. In the event that grantee refuses the tender of defense in any suit or any claim, as required pursuant to the indemnification provisions within a franchise, and said refusal is subsequently determined by a court having jurisdiction (or such other tribunal that the parties shall agree to decide the matter), to have been a wrongful refusal on the part of grantee, grantee shall pay all of the City’s reasonable costs for defense of the action, including all expert witness fees, costs, and attorney’s fees, and including costs and fees incurred in recovering under this indemnification provision. If separate representation to fully protect the interests of both parties is necessary, such as a conflict of interest between the City and the counsel selected by grantee to represent the City, then the grantee and City shall immediately meet and confer and determine whether alternative counsel or other alternative is possible to resolve the concern. If no alternative is agreeable to the parties, upon the prior written approval and consent of grantee, which shall not be unreasonably withheld, the City shall have the right to employ separate counsel in any action or proceeding and to participate in the investigation and defense thereof, and grantee shall pay the reasonable fees and expenses of such separate counsel, except that grantee shall not be required to pay the fees and expenses of separate counsel on behalf of the City for the City to bring or pursue any counterclaims or interpleader action, equitable relief, restraining order or injunction. The City’s fees and expenses shall include all out-of-pocket expenses, such as consultants and expert witness fees, and shall also include the reasonable value of any services rendered by the counsel retained by the City but shall not include outside attorneys’ fees for services that are unnecessarily duplicative of services provided the City by grantee. The grantee and the City shall cooperate and cause their employees and agents to cooperate with each other in the defense of any such claim and the relevant records of each party shall be available to the other party with respect to any such defense.

E. Notwithstanding any other provisions of this section, grantee assumes the risk of damage to its telecommunication facilities located in the public ways and upon City-owned property from activities conducted by the City, its officers, agents, employees and contractors, except to the extent any such damage or destruction is caused by or arises from any sole negligence or willful misconduct on the part of the City, its officers, agents, employees or contractors. In no event shall the City be liable for any indirect, incidental, special, consequential, exemplary, or punitive damages, including by way of example and not limitation lost profits, lost revenue, loss of goodwill, or loss of business opportunity in connection with its performance or failure to perform under a franchise. Grantee further agrees to indemnify, hold harmless and defend the City against any claims for damages, including, but not limited to, business interruption damages and lost profits, brought by or under users of grantee’s facilities as the result of any interruption of service due to damage or destruction of grantee’s facilities caused by or arising out of activities conducted by the City, its officers, agents, employees or contractors.

F. These indemnification requirements shall survive the expiration, revocation or termination of a franchise. Further, the Public Works Director may modify these indemnification requirements within the franchise 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. 2897 § 2, 2020).

12.60.310 Security.

Prior to or upon acceptance of a franchise pursuant to this chapter, each grantee shall establish a permanent security instrument with the City by furnishing a security instrument in an amount as determined by the Public Works Director in cash, bond, an unconditional letter of credit or other security instrument acceptable to the City, which security instrument shall be maintained at the sole expense of the grantee so long as any of the grantee’s telecommunication facilities are located within the public ways of the City.

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

B. Before any claims are made against the security instrument, the City shall give written notice to the grantee:

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

2. Providing a reasonable opportunity for the grantee to first cure 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, if applicable;

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

C. Grantee shall ensure the security instrument is the most current and shall furnish an updated security instrument upon 30 days’ written notice from the City.

D. Upon termination or expiration of a franchise, the City shall release the security instrument to the grantee within 30 days after removal or abandonment in place (if allowed) of grantee’s telecommunications facilities within the public ways. (Ord. 2897 § 2, 2020).

12.60.320 Construction and warranty bond.

A. Unless otherwise provided in a franchise, or where a standing bond in an amount and format agreeable to the Public Works Director has been retained by a grantee, a bond written by a surety acceptable to the City in the amount by the City’s construction design standards shall be deposited before construction is commenced.

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

C. The construction bond shall guarantee, to the satisfaction of the City:

1. Timely completion of construction;

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

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

4. Restoration of the public ways and other property affected by the construction;

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

6. Timely payment and satisfaction of all claims, demands or liens for labor, material or services provided in connection with the work.

D. A warranty bond is required during the warranty period to ensure adequate funds for the City to perform the necessary warranty work should grantee not do so for improvements against any defective work or labor done or defective materials used in the performance of the improvements throughout the warranty period. The warranty period shall be for 2 years following completion and acceptance of the improvements unless a longer warranty period is required by the Public Works Director. This security shall be consistent with the amount determined in the City’s construction design standards and shall be posted prior to the release of the construction bond. Such bond will be released by the City consistent with the requirements of the City’s construction design standards. (Ord. 2897 § 2, 2020).

12.60.330 Coordination of construction activities.

All grantees and other persons with telecommunication facilities occupying public ways of the City are required to cooperate with the City and with each other.

A. Upon request, grantees shall provide the City with a schedule of their proposed construction activities in, around, or that may affect the public ways within the next 12 months.

B. Each grantee shall meet with the City and other grantees of the public ways annually or as determined by the City to schedule and coordinate construction in the public ways.

C. To the extent possible, all construction locations, activities and schedules shall be coordinated to minimize public inconvenience, disruption or damages. (Ord. 2897 § 2, 2020).

12.60.340 Assignments or transfers of grant.

Ownership or control of a telecommunication system or franchise may not, directly or indirectly, be transferred, assigned or disposed of by sale, lease, merger, consolidation or other act of the grantee, by operation of law or otherwise, without the prior written notice to the City.

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

B. The grantee and the proposed assignee or transferee of the grant or system shall provide and certify the following information to the City not less than 120 days prior to the proposed date of transfer:

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

2. All information required of a franchise applicant pursuant to IMC 12.60.100 with respect to the proposed transferee or assignee;

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

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

C. The assignee or transferee must have the legal, technical, financial and other requisite qualifications to own, hold and operate the telecommunication system pursuant to this chapter.

D. The transferee or the new controlling entity shall file its written acceptance agreeing to be bound by all of the provisions of the franchise, and shall provide all insurance certificates and endorsements, as well as applicable bonds and security instruments as otherwise required by this chapter or the franchise. Such transfer shall not be effective until the written acceptance and accompanying insurance and bonds are submitted to the City.

E. The requirements of this section shall apply to any transactions which singularly or collectively result in a change of 50 percent or more of the ownership or working control of the grantee, of the ownership or working control of a telecommunication system, of the ownership or working control of affiliated entities having ownership or working control of the grantee or of a telecommunication system, or of control of the capacity or bandwidth of the grantee’s telecommunication system, facilities or substantial parts thereof. Transactions between affiliated entities are not exempt from this notice requirement. A grantee shall promptly notify the City prior to any proposed change in, or transfer of, or acquisition by any other party of control of a grantee’s company. Notice shall not be required for mortgaging purposes or if said transfer is from a grantee to another person or entity controlling, controlled by, or under common control with a grantee. (Ord. 2897 § 2, 2020).

12.60.350 Revocation or termination of grant.

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

A. Construction or operation at an unauthorized location.

B. Failure to provide notice as required under IMC 12.60.360 of a transfer of control, sale or assignment of grantee’s franchise, assets, or a substantial interest therein.

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

D. Abandonment of telecommunication facilities in the public ways.

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

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

G. Insolvency or bankruptcy of the grantee.

H. Violation of any material provision of this chapter.

I. Violation of the material terms of a franchise.

J. Failure to restore public ways, other ways, or public property to a complete and satisfactory condition. (Ord. 2897 § 2, 2020).

12.60.360 Notice and duty to cure.

In the event that the Public Works Director believes that grounds exist for revocation of a franchise or lesser sanctions, he or she shall give the grantee written notice of the apparent violation or noncompliance, providing a short and concise statement of the nature and general facts of the violation or noncompliance, and providing the grantee a reasonable period of time to furnish evidence:

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

B. That rebuts the alleged violation or noncompliance; or

C. That it would be in the public interest to impose some penalty or sanction less than revocation. (Ord. 2897 § 2, 2020).

12.60.370 Hearing.

A. In the event that a grantee fails to provide evidence reasonably satisfactory to the Public Works Director as provided in IMC 12.60.360, and the Public Works Director believes that revocation is appropriate, the Public Works Director shall refer the apparent violation or noncompliance to the City Council. The City Council shall provide the grantee with notice and a reasonable opportunity to be heard concerning the matter.

B. The City Council shall have the option of conducting the hearing or directing that the appeal be heard before the Hearing Examiner who shall forward a recommendation to the City Council which shall take final action on the appeal.

C. All relevant evidence shall be received during the hearing on the appeal.

D. Unless substantial relevant information is presented which was not considered by the Public Works 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 which was not considered in the making of the decision appealed from has been 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 Public Works 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. Any judicial appeals shall be in accordance with IMC 1.32.040. (Ord. 2897 § 2, 2020).

12.60.380 Lesser sanctions.

The City Council or Public Works Director may elect, in lieu of revocation and without any prejudice to any other legal rights and remedies, to pursue other remedies, including obtaining an order from the Superior Court having jurisdiction compelling the grantee to comply with the provisions of this chapter and any franchise granted hereunder, imposing liquidated damages as described in a franchise, and to recover damages and costs incurred by the City by reason of the grantee’s failure to comply. (Ord. 2897 § 2, 2020).

Article IV. Construction Standards

12.60.390 General construction standards.

No person shall commence or continue with the construction, installation or operation of facilities within the City except as provided in any applicable code, ordinance, resolution, rule, regulation or permit of the City of Issaquah. All franchise holders must obtain appropriate permits from the City pursuant to this chapter. Facilities shall be constructed, installed, operated and maintained in accordance with all applicable federal, State and local codes, rules and regulations including, but not limited to, the National Electrical Safety Code. (Ord. 2897 § 2, 2020).

12.60.400 Construction permits.

A. No person shall construct, install, repair or maintain any facilities within the public ways of the City or upon City property without first obtaining the appropriate right-of-way work permit; provided, however:

1. No right-of-way work permit shall be issued for the construction or installation of facilities within the City unless the applicant has filed an application for a business license pursuant to Chapter 5.02 IMC;

2. No permit shall be issued for the construction or installation of facilities in the public ways unless the telecommunications carrier or cable operator has received a franchise or the applicant has a statewide grant to occupy the public ways;

3. No permit shall be issued for the construction or installation of facilities without payment of any applicable construction permit fee pursuant to Chapter 3.65 IMC; and

4. No permit shall be issued for the construction or installation of facilities on City property unless the telecommunications carrier or cable operator has applied for and received a facilities lease from the City. (Ord. 2897 § 2, 2020).

12.60.410 Applications.

A. Applications for permits to install, maintain, repair and remove facilities shall be submitted via the City’s online application portal and shall be accompanied by drawings, plans and specifications in sufficient detail to demonstrate:

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

2. The location and route of all facilities to be installed on poles;

3. The location and route of all facilities to be located underground, including the line and grade proposed for the burial at all points along the route which are within the public ways;

4. The location of all existing underground utilities, conduits, ducts, pipes, mains, poles and installations which are within 20 feet of the proposed facility locations within the public ways along the route proposed by the applicant;

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

6. The location, dimension and types of all potentially impacted trees within or immediately adjacent to the public ways in the locations and/or along the route proposed by the applicant, together with a landscape plan for protecting, trimming, removing, replacing and restoring any trees or areas to be disturbed during construction;

7. Proposed construction schedule and work hours which may be limited by the City (including the requirement of working at night for traffic flow and other public health, safety and welfare related issues);

8. The location of all survey monuments which may be displaced or disturbed by the proposed construction;

9. Whether the proposed use is in compliance or would be compliant with this chapter and any other applicable regulations with respect to use and management of public ways, other ways and City property; and

10. Such other information as the Director determines is necessary to evaluate the proposed use of the public ways.

B. Except for emergencies, including service outages as described in IMC 12.60.560, all applications for construction permits shall be submitted at least 30 days prior to the need for the construction permit. Applicants with complex projects are encouraged to submit their applications at least 120 days prior to the planned need for the construction permit. If unforeseen conditions or circumstances 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. (Ord. 2897 § 2, 2020).

12.60.420 Engineer’s certification.

Unless specifically waived by the Public Works Director, all permit applications shall be accompanied by the certification of a registered professional engineer that the drawings, plans and specifications submitted with the application comply with applicable technical codes, rules and regulations. (Ord. 2897 § 2, 2020).

12.60.430 Traffic control plan.

All permit applications which involve work on, in, under, across or along any public ways shall be accompanied by a traffic control plan demonstrating the protective measures and devices that will be employed, consistent with the Uniform Manual of Traffic Control Devices, to prevent injury or damage to persons or property and to minimize disruptions to efficient pedestrian and vehicular traffic. (Ord. 2897 § 2, 2020).

12.60.440 Issuance of permit.

Within 30 days after submission of all plans and documents required of the applicant and payment of the permit fees, the Public Works Director, if satisfied that the applications, plans and documents comply with all requirements of this chapter and are complete, shall issue a permit authorizing construction of the facilities, subject to such further conditions, restrictions or regulations affecting the time, place and manner of performing the work as he may deem necessary or appropriate. In the event that the construction permit is denied, the Public Works Director shall set forth the reasons of such denial in writing. (Ord. 2897 § 2, 2020).

12.60.450 Appeal of permit decision.

The applicant for a permit or the owner of the pole, structure or property which is the subject of the permit application shall have the right to appeal a permit decision to the Hearing Examiner as follows:

A. All appeals filed pursuant to this section must be filed in writing with the Public Works Director within 10 working days of the date of the decision appealed from;

B. All appeals filed pursuant to this section shall specify the error of law or fact, or new evidence which could not have been reasonably available at the time of the Public Works Director’s decision, which shall constitute the basis of the appeal;

C. Upon receipt of a timely written notice of appeal, the Public Works Director shall advise the Hearing Examiner of the pendency of the appeal and request that a date for considering the appeal be established;

D. All relevant evidence shall be received during the hearing on the appeal;

E. Unless substantial relevant information is presented which was not considered by the Public Works Director, such decision shall be accorded substantial weight, but may be reversed or modified by the Hearing Examiner if, after considering all of the evidence in light of the applicable goals, policies, and provisions of this chapter, the Hearing Examiner determines that a mistake has been made. Where substantial new relevant information which was not considered in the making of the decision appealed from has been presented, the Hearing Examiner 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 Public Works Director in light of the additional information;

F. 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 transcript;

G. Unless otherwise provided by State statute or other law, all actions seeking review of a final action of the City shall be filed with a court having jurisdiction over such action within 30 days of the decision, or the expiration of the reconsideration period, whichever is later, and otherwise shall be barred; and

H. 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 and shall be paid in advance to the City Clerk. If a transcript is prepared by such party, it shall be submitted to the City for confirmation of its accuracy. (Ord. 2897 § 2, 2020).

12.60.460 Construction schedule.

If different from the schedule provided to the City pursuant to IMC 12.60.430, the grantee shall submit a written construction schedule to the Public Works Director in accordance with the permit requirements before commencing any work in or about the public ways. (Ord. 2897 § 2, 2020).

12.60.470 Compliance with permit.

All construction practices and activities shall be in accordance with the permit and approved final plans and specifications for the facilities. The Public Works Director and his or her designee shall be provided access to the work and such further information as he or she may require to ensure compliance with such requirements. (Ord. 2897 § 2, 2020).

12.60.480 Display of permit.

The grantee shall maintain a copy of the construction permit and approved plans at the construction site, which shall be displayed and made available for inspection by the Public Works Director or his or her representatives at all times when construction work is occurring. (Ord. 2897 § 2, 2020).

12.60.490 Survey of underground facilities.

If the construction permit specifies the location of facilities by depth, line, grade, proximity to other facilities or other standard, the grantee shall, at its sole cost, cause the location of such facilities to be verified by a State-registered land surveyor. Upon direction of the City, the grantee shall relocate or remove any of its facilities which are not located in compliance with permit requirements. (Ord. 2897 § 2, 2020).

12.60.500 Location of facilities.

Except for wireless communication facilities specifically permitted pursuant to Chapter 18.22 IMC, all facilities shall be constructed, installed and located in accordance with the following terms and conditions, unless otherwise specified in a franchise. Grantee shall be responsible for all costs associated with undergrounding its facilities except as otherwise provided herein or within State or federal law.

A. All new facilities must be placed underground, unless otherwise approved by the City pursuant to subsection F or G of this section. For purposes of clarity, new facilities include but are not limited to all new wireline facilities and over-lashing on existing facilities.

B. A grantee shall install its new facilities within an existing underground duct or conduit whenever excess capacity exists within such facility and the grantee is able to access such underground duct or conduit for a commercially reasonable fee; otherwise grantee shall place its new facilities within its own new underground duct or conduit. The grantee is encouraged to place conduit underground that can accommodate both the new facilities and future facilities, including any existing above ground facilities that may be relocated underground at a later date.

C. Whenever any existing electric utilities are being relocated, or upon a City project within a public way of the City, a grantee with permission to occupy the same public way must also relocate its facilities underground or along an alternative public way consistent with the requirements of RCW 35.99.060.

D. If requested, a grantee shall provide the City with additional ducts and conduits and related structures necessary to access the ducts and conduits; provided, that the terms and conditions under which such additional ducts and/or conduits are provided shall be consistent with RCW 35.99.070.

E. These locational requirements shall apply even if the grantee is providing services to a wireless communication facility in the public ways, and such wireless communication facility is allowed to remain above ground.

F. Grantee may request that the Public Works Director allow a deviation from the requirements in this section by establishing that such compliance would be an undue hardship to the grantee, a user of the facilities, or any other affected person. The term “undue hardship” shall mean either:

1. The installation would be technologically unfeasible; or

2. The impact of the underground construction outweighs the general welfare consideration in requiring underground construction; or

3. Delay of the installation of the underground facilities would better coordinate the project with other private improvements which are in the permitting process or public improvements shown on the capital improvement or transportation improvement elements of the Comprehensive Plan.

G. The Director may deviate from these requirements if a statute or tariff prohibits the enforcement thereof or requires the City or rate payers to pay for such undergrounding. (Ord. 2897 § 2, 2020).

12.60.510 Compliance with one call locator service.

All grantees shall, before commencing any construction in the public ways, comply with all regulations of Chapter 19.122 RCW, the one call locator service. (Ord. 2897 § 2, 2020).

12.60.520 Interference with the public ways.

No grantee may locate or maintain its facilities so as to unreasonably interfere with the use of the public ways by the City, by the general public or by other persons authorized to use or be present in or upon the public ways. All such facilities shall be moved by the grantee, at the grantee’s cost, temporarily or permanently, as determined by the Public Works Director. (Ord. 2897 § 2, 2020).

12.60.530 Damage to property.

No grantee nor any person acting on a grantee’s behalf shall take any action or permit any action to be done which may impair or damage any City property, public ways of the City, other ways or other property, whether publicly or privately owned, located in, on or adjacent thereto. (Ord. 2897 § 2, 2020).

12.60.540 Repair and emergency work.

In the event of an unexpected repair or emergency, a grantee may commence such repair and emergency response work as required under the circumstances, provided the grantee shall notify the City as promptly as possible, before such repair or emergency work commences or as soon thereafter if advance notice is not practicable, but no more than 48 hours after such emergency repair commences. (Ord. 2897 § 2, 2020).

12.60.550 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. 2897 § 2, 2020).

12.60.560 Relocation or removal of facilities.

A. RCW 35.99.060 shall govern the relocation of facilities within the public ways.

B. In the case of relocation projects where the City hires and designates an independent contractor to accommodate and coordinate the conversion of overhead utilities within a City project, if the grantee decides to participate in the joint trench opportunity then the grantee shall pay to the City the grantee’s portion of the traffic control and trench costs, including excavation and other associated costs, management and coordination costs, trench bedding, and backfill commensurate with the grantee’s proportionate share of trench usage. However, notwithstanding anything to the contrary set forth herein, if bids from the City’s contractor for placement of the grantee’s conduits and vaults/pedestals in the supplied joint trench, in the reasonable estimation of the grantee, are not acceptable, the grantee shall have the option to utilize contractor(s) of its choice to complete the required work. The City’s contractor shall coordinate with the grantee’s contractor(s) to provide reasonable notice and time to complete the placement of the grantee’s facilities in the supplied joint trench. (Ord. 2897 § 2, 2020).

12.60.570 Building moving.

Whenever any person shall have obtained permission from the City to use any street or public way for the purpose of moving any building, a grantee shall have 5 business days to coordinate raising or removing its facilities to accommodate the moving of the building. In no case shall raising or removing its facilities to accommodate the moving of the building take longer than 30 days unless agreed to in writing by the person moving the building; provided, that the person desiring to move the building shall comply with all requirements of the City for the movement of buildings. All raising or removing of grantee’s facilities which obstruct the removal of such building shall be at the expense of the person desiring to move the building. (Ord. 2897 § 2, 2020).

12.60.580 Removal of unauthorized facilities.

A. Within 30 days following written notice from the City informing a person who is in violation of this chapter that unauthorized facilities were discovered in the public way, any grantee or other person that owns, controls or maintains any unauthorized telecommunication or cable facilities or related appurtenances within the public ways of the City shall, at its own expense, remove such facilities or appurtenances from the public ways of the City or cure such violation as provided for in the notice. Telecommunication or cable facilities are unauthorized and subject to removal in the following circumstances:

1. Upon termination of the grantee’s franchise.

2. Upon abandonment of a facility within the public ways of the City. Such property shall be deemed abandoned if the grantee does not respond within 120 days of notice of unauthorized facilities from the City.

3. If the system or facility was constructed or installed without a franchise.

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

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

B. Provided, however, that the City may, in its sole discretion, allow a grantee, or other such persons who may own, control, or maintain facilities within the public ways of the City, to abandon such facilities in place. No facilities of any type may be abandoned in place without the express written consent of the City. Any plan for abandonment or removal of a grantee’s facilities must be first approved by the Public Works Director, and all necessary permits must be obtained prior to such work. Upon permanent abandonment of the property of such persons in place, the property shall become that of the City, and such persons shall submit to the Public Works Director an instrument in writing, to be approved by the City Attorney, transferring to the City the ownership of such property. The provisions of this subsection shall survive the expiration, revocation, or termination of a franchise granted under this chapter. (Ord. 2897 § 2, 2020).

12.60.590 Emergency removal or relocation of facilities.

The City retains the right and privilege to repair, remove or move any facilities located within the public ways as the City may determine to be necessary, appropriate or useful in response to any public health or safety emergency. The City shall not be liable to any grantee or any other party for any direct, indirect, or any other such damages suffered by any person or entity of any type as a direct or indirect result of the City’s actions under this section. Grantee shall be responsible for any costs incurred by the City in remediating any such emergency. (Ord. 2897 § 2, 2020).

12.60.600 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 facility within the public ways of the City as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling, or work of any kind within the public ways by or on behalf of the City, nor shall the City be liable with respect to any actions in connection with IMC 12.60.610. (Ord. 2897 § 2, 2020).

12.60.610 Construction in the public ways, other ways and City property.

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

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

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

D. The Public Works Director shall be responsible for inspection and final approval of the condition of the public ways and City property following any construction and restoration activities therein. Further, the provisions of this section shall survive the expiration, revocation, or termination of a franchise granted pursuant to this chapter. (Ord. 2897 § 2, 2020).

12.60.620 Noncomplying work.

Upon order of the Public Works Director, all work which does not comply with the permit, the approved plans and specifications for the work, or the requirements of this chapter shall be removed or repaired. If removal or repair is not satisfactorily and timely performed by the grantee, the City may, after prior notice to the grantee, or without notice where the disturbance or damage may create a risk to public health or safety, cause the repairs to be made and recover the reasonable cost of those repairs from the grantee. Within 30 days of receipt of an itemized list of those costs, including the costs of labor, materials and equipment, the grantee shall pay the City. (Ord. 2897 § 2, 2020).

12.60.630 Completion of construction.

The grantee shall promptly complete all construction activities so as to minimize disruption of the public and other ways and other public and private property. All construction work authorized by a permit within public and other ways, including restoration, must be completed within the time period described in the permit, unless otherwise extended by the Public Works Director or where due to circumstances outside grantee’s reasonable control, including delays caused by the City or other persons occupying the public way. (Ord. 2897 § 2, 2020).

12.60.640 As-built drawings.

A. Within 90 days after completion of construction, and if required by permit, a grantee shall furnish the City with complete sets of plans, drawn to scale and certified to the City as accurately as reasonably possible and depicting the horizontal location and configuration of all facilities constructed pursuant to the construction permit. The Public Works Director shall have the discretion to prescribe the number of copies and format of said record drawings, consistent with City codes and policies, and to require submission of such record drawings in a digital format.

B. Upon request, but no more than once per year, the City may request that the grantee provide a map or maps showing the location of all grantee’s facilities within the public ways. (Ord. 2897 § 2, 2020).

12.60.650 Restoration after construction, installation, maintenance, repair or replacement.

Upon completion of any construction, maintenance, repair or replacement work, the grantee shall promptly repair any and all public and private property improvements, fixtures, structures and facilities in the public ways, other ways or City property or otherwise damaged during the course of construction, installation, maintenance, repair or replacement, restoring the same as nearly as practicable to its condition before the start of construction, installation, maintenance, repair or replacement. All survey monuments disturbed or displaced shall be referenced and replaced as required by Chapter 332-120 WAC. The referencing and replacement of survey monuments shall be performed by a licensed land surveyor. The Public Works Director shall have final approval of the completeness of all restoration work and all grantees shall warrant said restoration work for a period of 2 years. (Ord. 2897 § 2, 2020).

12.60.660 Notice of entry on private property.

At least 48 hours prior to entering private property or streets or public easements adjacent to or on such private property to perform new construction or reconstruction, a notice indicating the nature and location of the work to be performed shall be physically posted upon the affected property by the grantee. A door hanger may be used to comply with the notice and posting requirements of this section. A grantee shall make a good faith effort to comply with the property owner’s/resident’s preferences, if any, on location or placement of underground installations (excluding aerial lines utilizing existing poles and existing cable paths), consistent with sound engineering practices; provided, however, that nothing in this chapter shall permit a grantee to unlawfully enter or construct improvements upon the property or premises of another. (Ord. 2897 § 2, 2020).

12.60.670 Safety requirements.

A grantee, in accordance with applicable federal, State and local safety requirements, shall, at all times, employ ordinary care and shall install and maintain and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injury or nuisance to the public. All structures and all lines, equipment and connections in, over, under and upon the streets, sidewalks, alleys and public ways or places of a permit area, wherever situated or located, shall at all times be kept and maintained in a safe, suitable condition and in accordance with the approved plans. Grantee shall endeavor to maintain all equipment lines and facilities in an orderly manner. Additionally, grantee shall keep its facilities free of debris and anything of a dangerous, noxious or offensive nature or which would create a hazard or undue vibration, heat, noise or any interference with City services. The City reserves the general right to see that the grantee’s facilities are constructed and maintained in a safe condition. If a violation of the National Electrical Safety Code, other applicable regulation, or an otherwise unsafe condition is found to exist by the City, the City will establish a reasonable time for a grantee to make necessary repairs, unless the City determines that the unsafe condition requires immediate resolution which in such case the City can require the grantee to immediately repair or in the absence of the grantee’s availability make the repairs itself. If the repairs are not made within the established time frame or when immediate repair is required, the City may make the repairs itself or have them made and collect all reasonable costs thereof from a grantee. All costs, including administrative costs, incurred by the City in repairing any unsafe conditions shall be borne by grantee and reimbursed to the City. (Ord. 2897 § 2, 2020).

12.60.680 Stop work order.

On notice from the City that any work is being performed contrary to the provisions of this code, or in an unsafe or dangerous manner as determined by the City, or in violation of the terms of any applicable permit, laws, regulations, or standards, the work may immediately be stopped by the City. The stop work order shall:

A. Be in writing;

B. Be given to the person doing the work or posted on the work site;

C. Be sent to grantee by overnight delivery;

D. Indicate the nature of the alleged violation or unsafe condition; and

E. Establish conditions under which work may be resumed. (Ord. 2897 § 2, 2020).

12.60.690 Authority to trim trees.

Each grantee shall have the authority to trim trees upon and overhanging onto public ways, streets, alleys, sidewalks and other public places of the City, so as to prevent the branches of such trees from coming in contact with grantee’s facilities. All trimming is to be done pursuant to City Code and City-issued permit, if required, except in the case of emergency or facility restoration after a storm, after the explicit prior written notification and approval of the City and at the expense of the grantee. The grantee may contract for such services; however, any firm or individual so retained shall receive City approval prior to commencing such trimming. All tree trimming shall be performed under the direction of an arborist certified by the International Society of Arboriculture or the City Arborist. (Ord. 2897 § 2, 2020).

12.60.700 Landscape restoration.

A. All trees, landscaping and grounds removed, damaged or disturbed as a result of the construction, installation, maintenance, repair or replacement of facilities, whether or not such work is done pursuant to a permit, shall be replaced or restored as nearly as may be practicable to the condition existing prior to performance of work.

B. All restoration work within the public ways shall be done in accordance with landscape plans approved by the Public Works Director. (Ord. 2897 § 2, 2020).

12.60.710 Abandonment.

A. A grantee that has determined to discontinue its operations in the City must submit to the City, within 90 days of the planned date for discontinuance of operation, a proposal and instruments for transferring ownership of its facilities to the City. If a grantee proceeds under this clause, the City may at its option:

1. Accept assignment of the telecommunications facilities; or

2. Require the grantee, at its own expense, to remove the telecommunications facilities.

B. Telecommunications facilities of a grantee who fails to comply with the preceding subsection and which, for 120 days, remain unused shall be deemed to be abandoned. Abandoned telecommunications facilities are deemed to be a nuisance. After the lapsing of such 120 days and upon 30 days’ notice to the occupant, the City may exercise any remedies or rights it has at law or in equity, including but not limited to:

1. Abating the nuisance;

2. Requiring removal of the telecommunications facilities at the expense of the grantee; or

3. Removing abandoned telecommunications facilities at the expense of the grantee in conjunction with a proposed construction project.

C. This section shall not apply to the abandonment of a cable system. (Ord. 2897 § 2, 2020).