Chapter 5.26
TELECOMMUNICATIONS MASTER USE PERMITS
Sections:
5.26.040 Master permit required – Exceptions.
5.26.050 Application for a master permit.
5.26.070 General conditions governing use of public rights-of-way.
5.26.080 Protection of the city and residents.
5.26.090 Enforcement and remedies.
5.26.010 Purpose.
The purposes of this chapter are to:
A. Establish a local policy governing the use of the public rights-of-way by telecommunications systems and private communications systems;
B. Ensure that the city retains the authority to protect the public safety and welfare with respect to a dynamic industry that is placing increasing demands on public resources;
C. Establish clear and nondiscriminatory local guidelines, standards and time frames for the exercise of local authority with respect to the regulation of the use of public rights-of-way by telecommunications operators;
D. Avoid unnecessary local regulation of providers and services;
E. Permit and manage reasonable access to the public rights-of-way of the city for communications purposes on a competitively neutral basis;
F. Conserve the limited physical capacity of the public rights-of-way held in public trust by the city;
G. Assure that the city’s current and ongoing costs of granting and regulating private access to and use of the public rights-of-way are paid by the persons seeking such access and causing such costs;
H. Secure, in a nondiscriminatory manner, fair and reasonable compensation to the city for the private use of the public rights-of-way;
I. Assure that providers of telecommunications services comply with the ordinances, rules and regulations of the city;
J. Enable the city to obtain sufficient information to ensure effective decision making concerning access to city rights-of-way and management of activity in the rights-of-way;
K. Enable the city to discharge its public trust consistent with rapidly evolving federal and state regulatory policies, industry competition and technological development; and
L. Provide for the fullest exercise possible of the authority and discretion of the city to require that:
1. Facilities are installed and maintained in the public rights-of-way in such manner and at such points so as not to inconvenience the public use of the public rights-of-way or to adversely affect the public, safety and welfare;
2. The city is reimbursed and held harmless for the actual costs incurred by the city by reason of the construction or presence of communications facilities in the public rights-of-way. (Ord. 928 § 2, 2005)
5.26.020 Policy guidelines.
A. The city supports efforts to establish and maintain an open, competitive marketplace for telecommunications services through the consistent application of regulations to all telecommunications providers and to that end the city reserves and intends to exercise all legislative, administrative and discretionary authority it may have.
B. The city intends to manage its rights-of-way proactively, taking into account the need to:
1. Manage access to the public rights-of-way for telecommunications purposes in a nondiscriminatory, competitively neutral and nonexclusive way;
2. Protect the public interest to the extent allowed under applicable law by collection of fair compensation for use of rights-of-way and by collecting associated fees, taxes, administrative costs, and construction costs for use of the rights-of-way;
3. Manage rights-of-way to preserve the integrity of the city’s infrastructure, to ensure efficient use of city property, and to ensure compliance with city ordinances, rules and regulations; and
4. Manage and regulate the use of public rights-of-way in the best interests of the city and its citizens.
C. Nothing in this chapter shall be construed to diminish or in any way to limit the discretionary, administrative or legislative authority of the city and its officials as respects the management and use of the city’s public rights-of-way or in respect to the granting, delaying, or denying of any master permit, right-of-way permit or license. (Ord. 928 § 2, 2005)
5.26.030 Definitions.
For the purposes of this chapter, the following terms, phrases, words, and their derivations shall have the meaning given in this section. Unless otherwise expressly stated, words not defined in this chapter shall be construed consistent with U.S.C. Title 47.
“Administrator” means the city administrator or designee.
“Cable television service” means the one-way transmission to subscribers of video programming and other programming service and subscriber interaction, if any, that is required for the selection or use of the video programming or other programming service.
“Communications facility” means a device which alone or as part of an aggregation of devices is capable of transmitting signals from place to place.
“Communications system” means a telecommunications system.
“Construction, operation or repair” means the named actions interpreted broadly, encompassing, among other things, installation, extension, maintenance, replacement of components, relocation, undergrounding, grading, site preparation, adjusting, testing, make-ready and excavation.
“Grantee” means a person holding a master permit.
“Master permit” means the franchise granted by the city to an operator of a telecommunications system under this chapter, giving the operator the nonexclusive right to occupy the space, or use facilities upon, across, beneath, or over any public right-of-way in the city, to provide a specified service within a master permit area. Such master permit shall not include or be a substitute for:
1. Any other permit or authorization required for the privilege of transacting and carrying on a business within the city required by the ordinances and laws of the city;
2. Any permit, agreement or authorization required in connection with operations on or in public streets or property;
3. Any permits or agreements for occupying any other property of the city or private entities to which access is not specifically granted by the master permit including, without limitation, permits and agreements for placing devices on or in poles, conduits, other structures, or railroad easements, whether owned by the city or a private entity; or
4. The right to place devices in the right-of-way, such as pay telephones, for end user use in terminating or originating transmissions.
By way of example, and without limiting the foregoing, this chapter shall not be read to diminish or in any way affect the authority of the city to control the use of the city’s real estate, fixtures or personal property. Therefore, any person who desires to use such property must obtain additional approvals, or agreements for that purpose, as may be required by the city.
“Master permit area” means the area of the city that a grantee is authorized to serve by the terms of its master permit or by operation of law.
“Operator” means a person (1) who provides service over a communications system and directly or through one or more affiliates owns a significant interest in such facility; or (2) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a facility. A person who operates a telecommunications system or a specific portion of a telecommunications system under agreement to provide telecommunications services shall be treated as an operator for purposes of this chapter.
“Overhead facilities” means communications facilities located above the surface of the ground, including the underground supports and foundations for such facilities.
“Person” means corporations, companies, associations, joint stock companies or associations, firms, partnerships, limited liability companies and individuals, including their lessors, trustees and receivers.
“Private communications system” means a facility located in the public rights-of-way that provides communications in connection with a person’s business, but that does not encompass in any respect the provision of telecommunications services.
“Private communications system owner” means a person that owns or leases a private communications system.
“Public rights-of-way” means land acquired or dedicated for public roads and streets. The public rights-of-way may be more specifically defined in the master permit or right-of-way permit granting the right to use the public rights-of-way. For purposes of this chapter, the term 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 such as, but not limited to, poles and conduits located in the right-of-way;
4. Parks and open space;
5. Publicly owned shorelines or harbor areas; and
6. Utility easements.
“Right-of-way permit” means the authorization given by the city as provided in Chapter 12.04 LFPMC to enter and use the specified right-of-way for the purpose of installing, maintaining, repairing, or removing identified facilities.
“Telecommunications service” means the transmission for hire of information in electronic or optical form, including, but not limited to, voice, video, or data, whether or not the transmission medium is owned by the provider itself. Telecommunications service includes telephone service but does not include cable television service or over-the-air broadcasts to the public at large from facilities licensed by the Federal Communications Commission or any successor thereto.
“Telecommunications system” means a facility used to provide one or more telecommunications services. The term “telecommunications system,” by way of example and not limitation, includes wires, equipment cabinets, guys, conduits, radio transmitting towers, poles, other supporting structures, and associated and appurtenant facilities used to transmit telecommunications signals. The term “telecommunications system” includes all devices mounted on light poles in the public rights-of-way through which telecommunications services are originated or terminated.
“Underground facilities” means utility, communication, and cable facilities located underground, but excluding the underground foundations or supports for overhead facilities.
“Wireless communications services facilities” means facilities that are necessary to provide personal wireless services that the city has authorized to be located in the public rights-of-way. “Personal wireless services” means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services as defined by federal law and regulations. (Ord. 928 § 2, 2005)
5.26.040 Master permit required – Exceptions.
A. Master Permit Requirement. Except as otherwise provided herein, an operator of a telecommunications facility or a private communications system owner proposing to use the public right-of-way must obtain from the city council a master permit before constructing a telecommunications facility or providing telecommunications services or constructing a private communications system. A separate master permit shall be obtained for each use whenever a particular master permitted communications facility may be used for multiple purposes, unless applicable federal or state law prohibits the city from requiring such additional master permit. A master permit shall only become effective after the grantee signs an acceptance of the master permit.
B. Exceptions. The administrator may waive the requirement for a master permit as follows:
1. Subject to the requirements of applicable law, a master permit requirement may be waived in whole or in part for a telecommunications system or private communications system where the city determines the use of the public rights-of-way is de minimus (i.e., uses only a short distance of street or occupies only a small isolated area of a specific street). For such facilities, the city may issue a right-of-way permit. Every right-of-way permit shall include or be read to include, as if stated therein, a reservation of rights by the city to require the permit holder to obtain a master permit if the city determines that the permit holder’s use of the public rights-of-way has increased substantially and is no longer de minimus use.
2. Any operator providing telecommunications service over an existing telecommunications system in the city’s public rights-of-way without having a master permit from the city authorizing such use at the time the ordinance codified in this chapter becomes effective shall apply for a master permit from the city for such use of the public rights-of-way; provided, that if the operator has obtained a franchise, permit, license, or other authorization from the city allowing such use of the public right-of-way, the operator may continue its use of the public right-of-way pursuant to such franchise, permit, license or other authorization until the expiration or termination of such authority, at which time the operator shall apply for and obtain a master permit under this chapter.
3. If an operator submits evidence satisfactory to the city that it has an existing state-wide grant to occupy the public right-of-way, then the requirement for obtaining a master permit will be suspended until there is a final judicial decision resolving the issue or the city council determines that the best interests of the city will be served by not requiring the operator to obtain a master permit. The suspension of any master permit requirement under this section shall not constitute a waiver of any right of the city to require the operator to obtain a master permit in the future or to remove any or all of its facilities in the public right-of-way at any time upon its failure to obtain a master permit. If an operator fails to obtain a master permit and the master permit requirement is suspended as provided in this subsection, then the operator shall apply for and obtain a city right-of-way permit prior to constructing or placing any telecommunications facility in the public right-of-way.
C. Nature of Grant. Neither a master permit nor a right-of-way permit shall convey equitable or legal title to the public rights-of-way. The right granted is only the right to occupy those portions of the public rights-of-way to which the city has the right to grant access, for the purposes and the time period stated in the master permit or right-of-way permit, and the right may not be subdivided or subleased. A master permit or right-of-way permit shall not grant a vested right for any facility to be located or to remain at any specific location in the public right-of-way and any right, permission or consent to occupy any location in the public right-of-way shall be revocable and terminable at the lawful discretion of the city and the facility therein removed at the cost of the operator in order to allow free and unencumbered use of the public right-of-way for public work or other public purpose as may be in the best public or municipal interest as determined by the city. Every master permit shall be:
1. Deemed to include all of the provisions that are required to be in a master permit under this chapter, as if fully set forth in the master permit;
2. Deemed to provide for forfeiture under the circumstances set forth in the provisions of this chapter and any master permit thereunder; and
3. Construed to exclude the grant of any rights in any easement granted for or in favor of any city or public utility facilities or operations, unless the master permit or license shall expressly state otherwise.
Any reference herein, or in any master permit or right-of-way permit, to a public right-of-way shall not be deemed to be a representation or guarantee by the city that its interest or other right to control the use of such property is sufficient to permit its use for such purposes, and a master permit shall be deemed to grant no more than those rights which the city may have the undisputed right and power to give. (Ord. 928 § 2, 2005)
5.26.050 Application for a master permit.
A. Contents of Application for Initial or Renewal Master Permit. To obtain an initial or renewal master permit, an operator of a telecommunications system must apply for a master permit. The application must contain the following information, and such information as the city may from time to time reasonably require:
1. Identity of the applicant and corporate structure.
2. A proposal for construction of a telecommunications facility that includes at least the following:
a. A description of the services that are to be provided using the facility.
b. The location of proposed facility and facility design, including a description of the miles of plant to be installed, and a description of the size of equipment cabinets, shielding and electronics that will be installed along the plant route, the power sources that will be used and a description of the noise, exhaust and pollutants, if any, that will be generated by the operation of the same; provided, however, that if some of the descriptive data is not available at the time of application, the master permit may be issued subject to conditions that the data be filed and approved by the city before construction begins and that the master permit will be deemed to be forfeited if the data is not supplied and approved.
c. A map of the general route the facility will follow; a designation of the portions of the system that will be placed above ground and the portions that will be placed underground, and the construction techniques that the operator proposes to use in installing the system above ground and underground; a schedule for construction of the facility describing when and where construction will begin, how it will proceed, and when it will be completed; and the expected effect on right-of-way usage, including information on the ability of the public rights-of-way to accommodate the proposed system, including, as appropriate given the system proposed, an estimate of the availability of space in conduits and an estimate of the cost of any necessary rearrangement of existing facilities.
d. A description, where appropriate, of how services will be converted from existing facilities to new facilities, and what will be done with existing facilities.
e. Identification of the area of the city to be served by the proposed system, including a description of the proposed area’s boundaries under the master permit.
f. An affidavit or declaration of the applicant or authorized officer thereof certifying the truth and accuracy of the information in the application, and certifying that the application meets all requirements of applicable law.
B. Applications for Transfer. An application for a transfer of a master permit must contain the same information required by subsection A of this section, except that, if the transferor submitted an application under subsection A of this section, to the extent information provided by the transferor under subsection (A)(2) of this section remains accurate, the transferee may simply cross-reference the earlier application.
C. In the event that subsections (A)(2)(b) and (c) or B of this section require information that is a business or trade secret and/or proprietary information and the operator wishes to protect the information against disclosure, then operator shall provide said information to city in a separate envelope marked “Proprietary Information: DO NOT DISCLOSE.” The city will exercise good faith efforts to protect the confidentiality of the business or trade secrets or proprietary information that is designated as such; provided further, that (1) if a public disclosure request is made for information marked as proprietary, and if the city attorney determines that said information may be subject to being disclosed, or (2) the city determines that the information should be disclosed in connection with its enforcement of any provision of this chapter, or in the exercise of its police or regulatory powers, then the city shall notify the operator of the operator’s opportunity to seek a protective order from a court with appropriate jurisdiction. If a protective order is not obtained within the time limitation set forth in state law for the city’s disclosure of public records, then the city may disclose said information. The operator is obligated to reimburse and indemnify the city for all costs, damages and attorneys’ fees that may be awarded or assessed by the court for any actions the city took at the request of operator.
D. City Review. The city may request such additional information as it finds reasonably necessary, and require such modifications to the system proposed as may be necessary and lawful in the exercise of the city’s police power authority over the use of its public rights-of-way for telecommunications systems. Once the information required by the city has been provided, the application shall be subject to review by the city and any approval shall be subject to the city’s determination that:
1. The applicant will accept the modifications required by the city to its proposed system. This section does not authorize the city to exercise authority it does not otherwise have under applicable law.
2. The applicant will accept a master permit satisfactory to the city and comply with any conditions precedent to its effectiveness.
3. In the case of a transfer, any approval will also be subject to a determination that:
a. There will be no adverse effect on the public interest as it relates to the right-of-way, or the city’s interest in the master permit;
b. Transferee will agree to be bound by all the conditions of the master permit and to assume all the obligations of its predecessor; and
c. Any outstanding compliance issues will be resolved or preserved to the satisfaction of the city.
4. The city shall approve or disapprove an application no later than 120 days after a complete application has been filed. Whenever the city disapproves an application it shall set forth its reasons in writing.
E. An applicant shall not be issued a master permit if it files or has previously filed materially inaccurate or misleading information in a master permit application or intentionally withheld information that the applicant lawfully is required to provide. (Ord. 928 § 2, 2005)
5.26.060 Compensation.
A. Every operator of a telecommunications facility shall compensate the city for its actual costs that are related to receiving and approving a master permit or right-of-way permit, to inspecting plans and construction pursuant thereto, or to the preparation of a detailed statement pursuant to Chapter 43.21C RCW.
1. Costs shall be billed to the operator on a time and material basis in the manner and at the rates provided in a resolution adopted by the city council.
2. Fees must be paid within 30 days of receipt of the city’s billing.
3. On request of an operator, the city will submit proof of any charges or expenses incurred. For any project or time frame, an operator can also request a written estimate from the administrator, in advance of costs planned to be expended by the city, and the operator may object to any costs by filing a written protest with the administrator. The administrator shall decide the protest within five business days, and the decision shall be the final decision of the city.
B. Every operator of a telecommunications facility shall compensate the city for its actual incremental costs necessarily incurred on city public works projects because of the presence of telecommunications facilities in the right-of-way.
1. Fees must be paid within 30 days of receipt of the city’s billing.
2. On request of an operator, the city will submit proof of such incremental costs.
3. Before commencing work, the city shall notify the operator of its proposed project, and the incremental costs the city estimates will be incurred. The operator may object to any costs by filing written protest with the administrator. The administrator shall decide the protest within five business days, and the decision shall be the final decision of the city. (Ord. 928 § 2, 2005)
5.26.070 General conditions governing use of public rights-of-way.
A. Before any work is performed in the public right-of-way, a communications system operator or a private communications system owner shall obtain a right-of-way permit in accordance with Chapter 12.04 LFPMC. An application for a right-of-way permit by a grantee shall be approved or disapproved within 30 days of the date of the filing of a complete application. A right-of-way permit shall incorporate the requirements of this chapter in addition to the requirements of Chapter 12.04 LFPMC.
B. Responsibility for Costs. Except as expressly provided otherwise, any act that a communications system operator, its contractors or subcontractors is required to perform under this section shall be performed at their cost. If a communications system operator fails to perform work that it is required to perform within the time provided for performance, the city may perform the work and bill the communications system operator therefor. The communications system operator shall pay the amounts billed within 30 days.
C. Construction Procedures and Placement of Facilities – Obligation to Minimize Interference with Use of Public Rights-of-Way.
1. The construction, operation, and repair of communications facilities are subject to the supervision of all of the authorities of the city with jurisdiction over such matters and shall be performed in compliance with all laws, ordinances, departmental rules and regulations affecting such system.
2. The construction, operation, and repair shall be performed in a manner consistent with high industry standards. Persons engaged in the construction, operation, or repair of communications facilities shall exercise reasonable care in the performance of all their activities and shall use commonly accepted methods and devices for preventing failures and accidents that are likely to cause damage, injury, or nuisance to the public or to property.
3. Construction, operation, or repair of a communications system shall not commence until all required permits have been properly filed for and obtained from the proper city officials and all required permits and associated fees paid and bonds or other performance security provided. In any permit so issued, the city may impose as a condition of the granting of the permit such conditions and regulations as may be necessary to the management of the rights-of-way, including, by way of example and not limitation, for the purpose of protecting any structures in the public rights-of-way, for the proper restoration of such public rights-of-way and structures, and for the protection of the city and the public and the continuity of pedestrian and vehicular traffic.
4. A master permit or right-of-way permit may provide for the conditions under which emergency work may be undertaken before obtaining city permits where such work is necessary to immediately remedy an emergency situation involving an imminent danger to health, safety or property or to temporarily restore communications system services that have been disrupted by storms, earthquakes, riots or other unexpected accidents. A communications system operator undertaking such emergency work shall be required:
a. To give notice to the city of the commencement of the emergency work as quickly as practical;
b. To apply for the permits which would otherwise be required for such work by the next business day from the commencement of such work; and
c. To conform any work performed prior to the approval of the required permit and to carry out any other work in the area involved in accordance with the requirements of the permit.
5. Operators of communications systems must follow city-established requirements for placement of facilities in public rights-of-way, including the specific location of facilities in the public rights-of-way, and must install facilities in a manner that minimizes interference with the use of the public rights-of-way by others. The city may require the installation of facilities at a particular time, at a specific place, or in a particular manner as a condition of access to a particular right-of-way; it may require a person using the rights-of-way to cooperate with others to minimize adverse impacts on the rights-of-way through joint trenching, joint use of facilities and other arrangements; it may deny access if an operator is not willing to comply with the city’s requirements; it may remove, or require removal of, any facility that is not installed in compliance with the requirements established by the city, or that is installed without prior city approval of the time, place, or manner of installation; and it shall charge the operator of the facility for all the costs associated with removal.
6. Upon order of the administrator, all work that does not comply with the permit, the approved plans or specifications for the work, or the requirements of this chapter or other applicable law shall be removed.
7. Unless otherwise agreed or provided in a master permit or right-of-way permit, a communications systems operator shall be required to reimburse and hold harmless the city for any cost or expense reasonably incurred by the city in planning, construction, installing, altering, or implementing any public work as a result of the construction or the presence in the public right-of-way of the facility of such communications system operator.
8. The specific location within the right-of-way and the method of installing facilities underground or overhead will be subject to approval by the city engineer. Cutting of pavement in the public right-of-way shall be prohibited where the city engineer approves locating underground facilities in the unimproved portions of the right-of-way or in the sidewalk areas or requires alternative methods for undergrounding not requiring trenching or the cutting of pavement.
9. Except to allow for compliance with state or federal law, cutting of pavement shall be prohibited in any event in a newly constructed or reconstructed street for a period of five years from the paving of such street or in a street where a trench was previously available for a period of three years from the date the trench was available. The city may require as a condition to the occupancy of the rights-of-way that communications facilities be located in existing underground ducts or conduits wherever the capacity exists; provided, however, the city engineer may in his or her discretion permit pot-holing (subject to conditions to alleviate the harmful effects) where conduit is to be placed underground by means of directional boring and the person seeking permission has provided evidence satisfactory to the city engineer that:
a. Such pot-holing is necessary to avoid interference with existing utilities;
b. Such pot-holing is the only reasonable alternative available to locate existing utilities; and
c. Such pot-holing will result in little or no visual or other detrimental impact to the street.
10. Any and all public rights-of-way, public property, or private property that is disturbed or damaged during the construction, operation, repair or removal of a communications facility shall be promptly repaired by the communications system operator that disturbed or damaged the public rights-of-way, public property or private property. Public property and public rights-of-way must be restored to the satisfaction of the city and to a condition as good as or better than before the disturbance or damage occurred.
11. A communications system operator shall continue to maintain the restored street area, which may consist of curb, gutter, sidewalk, pavement, or other restored appurtenances, in a condition as good as or better than the condition of the adjacent undisturbed area of the street for the life of the street when such maintenance or restoration is required as:
a. A result of the restored street area being defective or otherwise inferior to the adjacent undisturbed area of the street; or
b. A result of the presence of the facilities of the communications system operator until the restored area is repaved or reconstructed by a different party.
12. Tree trimming shall not be performed without the permission of the city and other affected authorities, and tree trimming must be performed in strict accordance with the city code.
13. Within 48 hours after notice from the city, a communications system operator shall remove any graffiti on any part of its communications system in the public rights-of-way. If the operator fails to do so, the city may remove the graffiti and bill the operator for the cost thereof.
D. Relocation and Abandonment of Facilities.
1. A communications system operator shall, by a time specified by the city, protect, support, temporarily disconnect, relocate, or remove any of its property when required by the city by reason of traffic conditions; public safety; public right-of-way construction; public right-of-way repair (including resurfacing or widening); change of public right-of-way grade; construction, installation or repair of sewers, drains, water pipes, power lines, signal lines, tracks, or any other type of government-owned communications system, public work, public facility or improvement, or any government-owned utility; public right-of-way vacation; or for any other purpose where the work involved would be aided by the removal or relocation of the communications facility. Collectively, such matters are referred to below as the “public work.”
a. Except in the case of emergencies, the city shall provide written notice describing where the public work is to be performed as soon as practical but at least 30 days prior to the deadline by which a communications system operator must protect, support, temporarily disconnect, relocate or remove its facilities. A communications system operator may seek an extension of the time to perform such tasks where they cannot be performed in 30 days or by the completion time specified even with the exercise of its best efforts, and such request for an extension shall not be unreasonably refused.
b. In the event of an emergency, or where a communications facility creates or is contributing to an imminent danger to health, safety, or property, the city may protect, support, temporarily disconnect, remove, or relocate any or all parts of the communications facility without prior notice, and charge the communications system operator for costs incurred.
c. If a communications system operator does not comply with the requirements of this chapter and the applicable master permit or right-of-way permit does not provide otherwise, and if not prohibited by applicable law, the city shall have the right to revoke any right of a communications system operator to have its facilities remain at a specific location in the public right-of-way at any time the city determines that the facilities of such communications system operator must be removed from their present location or from the street in order to facilitate a public work in the public right-of-way and upon revocation of the master permit, license or right-of-way permit of the communications system operator as to the affected designated facilities the communications system operator shall remove the same and restore the street at its cost.
2. If any person that is authorized to place facilities in the rights-of-way requests another communications system operator to protect, support, temporarily disconnect, remove, or relocate its facilities to accommodate the construction, operation, or repair of the facilities of such other person, the communications system operator shall, after 30 days’ advance written notice, take action to effect the necessary changes requested. Unless the matter is governed by a valid contract or a state or federal law or regulation, the reasonable cost of the same shall be borne by the person requesting the protection, support, temporary disconnection, removal, or relocation and at no charge to the city, even if the city makes the request for such action on behalf of such party.
3. A communications system operator shall, on the request of any person holding a valid permit issued by a governmental authority, temporarily raise or lower its wires to permit the moving of buildings or other objects. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same. A communications system operator shall be given not less than seven days’ advance notice to arrange for such temporary wire changes.
4. A grantee may abandon and surrender its master permit to the city on six months’ written notice to the administrator, with copies served on the mayor and city attorney. Abandonment shall be subject to acceptance by the city, by a resolution of acceptance adopted by the city council. Upon abandonment, nonrenewal, revocation or expiration of this master permit, and if no extension is granted, grantee may, at the discretion of the administrator, be required, in part or entirely, to remove all its fiber, wire, poles, fixtures, and other facilities or equipment installed or used in the enjoyment of the master permit. Alternatively, the administrator may direct, limit or condition grantee’s removal, sale or continued use or abandonment of grantee’s facilities and equipment, either by agreement or through means of any other lawful municipal power or right. The city may continue to invoke any provision of this master permit against grantee or any successor entity enjoying de facto master permit privileges after revocation or expiration. The city may take all other actions deemed necessary and proper by the city to accommodate the transition to any successor as may be in the best interests of the city and its residents.
E. Facility Subject to Inspection – Operator Must Provide Information. Every communications facility shall be subject to the right of periodic inspection by the city to determine compliance with the provisions of this chapter, a master permit or right-of-way permit, or other applicable law. The city shall have the right, upon request, to be notified and be present when the communications system is inspected by the operator to determine compliance with the provisions of this chapter, a master permit, right-of-way permit, or applicable law where the city has enforcement authority. Each operator must respond to requests for information regarding its system and plans for the system as the city may from time to time issue, including requests for information regarding its plans for construction, operation and repair and the purposes for which the plant is being constructed, operated, or repaired to the extent such plant is or will be in the public right-of-way or has been or will be provided under any master permit or right-of-way permit granted by or requested from the city.
F. Underground Services Alert. Each operator of a communications system that places facilities underground shall be a member of the regional notification center for subsurface installations and shall field mark the locations of its underground communications facilities upon request. The operator shall locate its facilities for the city at no charge. Each operator shall reasonably cooperate with city initiatives to coordinate underground fixture locations and installations. Each operator shall be familiar with Chapter 19.122 RCW, Washington State’s underground utilities statute. Each operator shall certify that it understands local procedures, custom and practice relating to facilities locating, and shall ensure that its contractors or others working in the right-of-way on grantee’s behalf are similarly well informed.
G. Undergrounding of Lines. Each operator shall recognize the city’s right to preserve and control of the public right-of-way, particularly with respect to policies regarding the undergrounding of overhead lines for aesthetic reasons. Consistent with any general municipal undergrounding policy or program now or hereafter developed, the city reserves the right to require each operator’s participation in municipally imposed undergrounding or related requirements as may now or hereafter arise, as a condition of the operator’s new installation or major maintenance or restoration construction activities of overhead facilities under this franchise. Each operator shall coordinate its underground installation and planning activities with the city’s underground plan and policies; provided, in no event shall any third party beneficiary rights be implied or created. Nothing in this section shall be permitted in conflict with RCW 35.99.060, and the provisions of this section shall be applied in conformity thereto.
H. Reimbursement. A communications system operator may request reimbursement from the city as provided in RCW 35.99.060(3)(a) through (c) and if so requested the city shall make reimbursement as provided therein.
I. Plans for and Publicizing Work.
1. Work shall be publicized as the city may direct from time to time to notify the public and operators of other communications systems of the impending work, to minimize inconvenience and disruption to the public and to allow for cooperative construction and for joint use of trenches and facilities.
2. Each communications system operator shall provide the city a plan for any initial system construction, or for any substantial rebuild, upgrade or extension of its facility, which shall show its timetable for construction of each phase of the project, and the areas of the city that will be affected.
3. Each operator shall supply and maintain updated, at no cost, any information requested by the administrator to coordinate municipal functions with the operator’s activities and fulfill any municipal obligations under state law. The administrator may request information concerning an installation inventory, location of existing or planned facilities, maps, plans, and as-built drawings of the operator’s installations in the city. The information may be requested either in hard copy and/or electronic format compatible with the city’s database system. Each operator shall keep the administrator informed of its long-range plans for coordination with the city’s long-range plans.
4. Each communications facility operator shall maintain accurate maps and improvement plans which show the location, size, and a general description of all facilities installed in the public rights-of-way and any power supply sources (including voltages and connections). Maps shall be based upon post-construction inspection to verify location. The operator of each communications facility shall provide a map (on 24-inch-by-36-inch Mylar) to the city showing the location of its facilities, in such detail and scale as may be directed by the city engineer. New system maps shall be promptly submitted to the city when the facility expands or is relocated. Copies of maps shall be provided on disk, in a commercially available electronic format specified by the city engineer or in such alternate form as approved by the city engineer.
5. The administrator may, when the city receives application for a permit to use a particular route, or on the administrator’s own initiative, designate by published order a route or proposed route for installation of communications facilities and may:
a. Require all persons who wish to place underground facilities along that route or any part thereof to install them during a specified period; and
b. To the extent allowed by law, otherwise prohibit placement of such facilities along the route or any part thereof for 36 months or for such other, longer period as is necessary to protect the public. (Ord. 928 § 2, 2005)
5.26.080 Protection of the city and residents.
A. Indemnification. No master permit or right-of-way permit issued to a communications system operator or a private communications system owner shall be valid or effective until and unless the city obtains an adequate indemnity from such operator. Unless otherwise agreed, in writing, adequate indemnity must:
1. Release the city from and against any and all liability and responsibility in or arising out of the construction, operation or maintenance of the communications facility in the public right-of-way by the communications facility operator;
2. Indemnify and hold harmless the city, its elected and appointed officers, agents, and employees, from and against any and all claims, demands, or causes of action of whatsoever kind or nature, and the resulting losses, costs, expenses, reasonable attorneys’ fees, liabilities, damages, orders, judgments, or decrees, sustained by the city or any third party arising out of, or by reason of, or resulting from or of the acts, errors, or omissions of the communications system operator, or its agents, independent contractors or employees related to or in any way arising out of the grantee’s actions under a master permit or right-of-way permit;
3. Provide that the indemnification provision shall survive the term of any master permit or other authorization and continue in full force and effect as to the party’s responsibility to indemnify.
B. Insurance. A master permit or right-of-way permit issued to a communications system operator or a private communications system owner shall not be valid or effective until and unless the city obtains assurance that the insurance required in subsection C of this section is in effect.
1. A grantee or right-of-way permit holder shall not commence construction or operation of the facility without obtaining all insurance required under this section and approval of such insurance by the city, nor shall a communications system operator allow any contractor or subcontractor to commence work on its contract or subcontract until all such similar insurance required of the same has been obtained and approved. The required insurance must be obtained and maintained for the entire period the communications system operator has facilities in the rights-of-way, and for a period thereafter as specified. If the operator, its contractors, or subcontractors do not have the required insurance, the city may order such entities to stop operations until the insurance is obtained and approved.
2. Certificates of insurance reflecting evidence of the required insurance, coverage, endorsements, and ratings shall be filed with the administrator.
3. If the insurance certificate provided indicates that the insurance shall terminate or lapse during the period of the master permit or license, then the communications system operator shall furnish, at least 30 days prior to the expiration date of such insurance, a renewed certificate of insurance as proof that equal and like coverage has been or will be obtained prior to any such lapse or termination to be in effect during the balance of the period of the master permit or right-of-way permit under which the communications system operates.
C. A grantee or right-of-way permit holder and its contractors or subcontractors engaged in work on the grantee’s or permit holder’s behalf in, on, under or over public rights-of-way shall maintain insurance policies of the types and limits recommended by the city’s insurance company or self-insurance risk pool.
D. Each policy shall be endorsed to provide that coverage afforded under these policies will not be canceled until at least 30 days’ prior written notice has been given to the city. All insurance policies shall be endorsed to name the city as an insured. Policies shall be issued by companies authorized to do business under the laws of the state of Washington. Financial ratings must be no less than “A” in the latest edition of “Best’s Key Rating Guide,” published by A.M. Best Company.
E. In every master permit or license agreement, the city shall reserve the right to require any other insurance coverage it deems necessary depending upon the exposures.
F. Performance/Payment Bonds. Every operator of a communications facility may be required to obtain performance bonds and, if necessary, payment bonds to ensure the faithful performance of its responsibilities under this chapter and any master permit, right-of-way permit or license, including a sufficient amount to cover removal of facilities and/or restoration of city facilities within rights-of-way. The amount of the performance and payment bonds shall be set by the administrator or may be set in a master permit in light of the nature of the work to be performed and is not in lieu of any additional bonds that may be required through the permitting process. The bond shall be in a form acceptable to the city attorney. The city may from time to time increase or decrease the amount of the required performance bond to reflect changes in risks to the city and to the public. (Ord. 1223 § 1, 2021; Ord. 928 § 2, 2005)
5.26.090 Enforcement and remedies.
A. Administrator’s Responsibilities. The administrator is responsible for enforcing and administering this chapter, and the administrator is authorized to give any notice required by law or under any master permit, including, by way of example and not limitation, a notice required under 47 U.S.C. Section 546. The administrator is also authorized to seek information from any communications system operator, and to take all other actions necessary or appropriate to the administration of this chapter or any master permit. Master permits may be denied, issued or revoked only by the city council. General administration of the master permit for the city is through the office of the administrator. However, the administrator may delegate this authority and responsibility to other agents of the city. All questions of application, interpretation, conflict or ambiguity arising out of or in connection with a master permit may be determined through communications with the administrator, except where otherwise specifically stated.
B. Minimum Contents of Every Master Permit or Right-of-Way Permit. In addition to satisfying the other applicable requirements of this chapter, every master permit or right-of-way permit for a communications system shall contain the following provisions:
1. The master permit or right-of-way permit shall provide that neither the granting of any master permit or right-of-way permit, or any provision thereof, shall constitute a waiver or bar to the exercise of any governmental right or power, police power, or regulatory power of the city as may exist at the time the master permit or license is issued or thereafter be obtained.
2. The master permit or right-of-way permit shall only authorize occupancy of the right-of-way to provide the services and for the purposes described in the master permit or license.
3. A master permit or right-of-way permit shall be a privilege that is held in the public trust and personal to the original grantee or permit holder. The master permit or right-of-way permit shall ensure that no transfer of the master permit or license may occur, directly or indirectly, without the prior consent of the city.
4. The master permit or license shall contain appropriate provisions for enforcement, and protection of the public, consistent with the other provisions of this chapter.
5. The master permit or license shall be for a specified term, set forth in the master permit or license. A master permit issued under this chapter shall be for a term of no longer than five years, unless the council determines that a longer period would be in the city’s interest. A right-of-way permit issued under this chapter shall be for a term of no longer than one year.
C. Penalties. Any person found to have occupied or carried out activities in the public rights-of-way without first having obtained or having in effect a valid master permit, license, or right-of-way permit as required by this chapter shall be guilty of a misdemeanor and shall be punished by a fine not exceeding $1,000 or by imprisonment not exceeding 90 days or by both such fine and imprisonment. Each day that any such occupancy or activity shall continue in violation of this chapter shall constitute a separate offense.
D. Revocation, Reduction of Term, or Forfeiture of Master Permit or Right-of-Way Permit.
1. A master permit or right-of-way permit may be revoked for violation of any terms and conditions of the master permit or other city ordinances, resolutions or policy including but not limited to the following:
a. Construction or operation in the public rights-of-way of the city or on city property in a manner in violation of a master permit or right-of-way permit;
b. Construction or operation at an unauthorized location in the public rights-of-way of the city or on city property;
c. Misrepresentation by or on behalf of the operator in any material respect in any application or written statements or documents to the city on which the city relies in making the decision to grant, review, or amend the master permit or right-of-way permit;
d. Abandonment of telecommunications facilities in the public rights-of-way or on city property;
e. Failure to relocate or remove facilities as required by this chapter, master permit, or right-of-way permit;
f. Failure to pay taxes, compensation, fees, or costs when and as due the city under this chapter;
g. Insolvency or bankruptcy of the operator; or
h. Violation of any material provision of this chapter or master permit which is not timely cured on notice to the operator by the city.
2. If the city believes that grounds exist for revocation of the master permit, the operator shall be given written notice of the apparent violation or noncompliance, providing a short and concise statement of the grounds for revocation. The notice shall provide the operator a reasonable period of time not exceeding 30 days to furnish evidence:
a. That corrective action has been or is being actively and expeditiously pursued to remedy the violation or noncompliance;
b. That rebuts the alleged violation or noncompliance; or
c. That it would be in the public interest to impose some penalty or sanction less than revocation.
3. If the administrator determines that the operator has failed to comply with the master permit, the administrator shall enter a written order of violation and impose sanctions, including revocation of the master permit, a requirement for curative actions, and/or a fine not to exceed $5,000. The decision of the administrator shall be based upon 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; and
f. Whether the violation was voluntarily disclosed, admitted or cured; provided, that no opportunity for cure is allowed for fraud, which shall be deemed incurable.
4. Appeals.
a. The operator may appeal any decision of the administrator to the hearing examiner by filing a written notice of appeal with the city clerk within 10 days of the date of issuance of the administrator’s decision. The notice of appeal must include a copy of the administrator’s decision and a complete record originally submitted to the administrator by the operator. The city clerk shall forward the appeal and the record to the hearing examiner who shall set the matter for hearing as provided in the adopted rules for hearing examiner appeals.
b. The hearing examiner shall consider the record before the administrator and written and oral argument based upon that record; provided, that the hearing examiner may, upon a showing of good cause, allow appellant to introduce additional evidence and the city shall be allowed to rebut such evidence. The operator shall have the burden of establishing that the administrator’s decision is not supported by a preponderance of the evidence.
c. The hearing examiner shall accord substantial weight to the administrator’s decision. The hearing examiner shall either affirm or reverse the administrator’s decision. The hearing examiner’s decision shall be the final decision of the city.
5. Notwithstanding the foregoing, the city may declare a master permit forfeited without opportunity to cure or the notice required by subsection (D)(3) of this section where the operator fails to begin to exercise its rights under the master permit within a period specified in the master permit. However, an operator shall have the right to receive 30 days’ prior notice of intent to declare a master permit forfeited, and shall have the opportunity to show cause why the master permit should not be forfeited.
6. Notwithstanding the foregoing, a master permit or right-of-way permit will automatically terminate by force of law 120 calendar days after an assignment for the benefit of creditors or the appointment of a receiver or trustee to take over the business of the operator, whether in a receivership, reorganization, bankruptcy assignment for the benefit of creditors, or other action or proceeding. However, the master permit or right-of-way permit may be reinstated within that 120-day period if (a) such assignment, receivership or trusteeship has been vacated; or (b) such assignee, receiver or trustee has fully complied with the terms and conditions of this chapter and the master permit or right-of-way permit and has executed an agreement, approved by any court having jurisdiction, assuming and agreeing to be bound by the terms and conditions of this chapter and the master permit or right-of-way permit. However, in the event of foreclosure or other judicial sale of any of the facilities, equipment or property of an operator, the city may revoke the master permit or right-of-way permit, following a public hearing before the city council, by serving notice on the operator and the successful bidder at the sale, in which event the master permit or right-of-way permit and all rights and privileges of the master permit or right-of-way permit will be revoked and will terminate 30 calendar days after serving such notice, unless: (a) the city has approved the transfer of the master permit or right-of-way permit to the successful bidder; and (b) the successful bidder has covenanted and agreed with the city to assume and be bound by the terms and conditions of the master permit or right-of-way permit and this chapter.
E. Sale, Lease, Assignment.
1. This master permit or license shall not be sold, leased, assigned, or otherwise alienated without the express consent of the city, and no rule of estoppel shall be invoked against the city in case the city shall assert the invalidity of any attempted transfer in violation of this section. The city agrees not to withhold consent where the operator demonstrates that the requested assignment is in the nature of a change of name or a change in the nature of a reorganization or merger of or with an entity controlled by, controlling, or under the common control of the operator, there being no other change in the resulting entity’s ability to meet its master permit or license obligations.
2. The city reserves the right to invoke any or all provisions of this master permit or license upon the operator’s successors or assigns, judgment creditors, or distributers of facilities or property used in enjoyment of privileges conferred herein, whether or not stated elsewhere, all without waiver of the right to withhold consent not expressly given of any such transfer and/or require a new master permit or license.
3. The operator shall not permit installations by others in the permitted areas, without written approval from the administrator. Such approval shall not be in lieu of a master permit or license or other requirements of the city. Whether or not permitted, the operator shall remain responsible for all third party users permitted or allowed by the operator for compliance with the master permit or license. The intent of this provision is so third parties who might otherwise desire to use the operator’s facilities are also required to comply with city requirements regarding master permit or right-of-way permit, as may apply.
F. Effect of Termination or Forfeiture. Upon termination or forfeiture of a license or master permit, whether by action of the city as provided above, or by passage of time, the operator shall be obligated to cease using the communications system for the purposes authorized by the master permit. The city may either take possession of some or all of the operator’s facilities in the public rights-of-way or require the operator or its bonding company to remove some or all of the operator’s facilities from the public rights-of-way and restore the public rights-of-way to its same, or better, condition. If the operator neglects, refuses, or fails to remove such facility, the city may remove the facility at the expense of the operator. The operator’s obligation to remove shall survive the termination of the master permit or right-of-way permit for a period of two years; provided, that this provision does not permit the city to take possession of, or require the operator to remove, any facilities that are used to provide another service for which the operator holds a valid master permit or right-of-way permit issued by the city.
G. Remedies Cumulative. All remedies under this chapter and any master permit or right-of-way permit are cumulative unless otherwise expressly stated. The exercise of one remedy shall not foreclose use of another, nor shall the exercise of a remedy or the payment of liquidated damages or penalties relieve a communications system operator of its obligations to comply with its master permit or license. Remedies may be used singly or in combination; in addition, the city may exercise any rights it has at law or equity. Recovery by the city of any amounts under insurance, the performance bond, the security fund or letter of credit, or otherwise, does not limit a communications system operator’s duty to indemnify the city in any way; nor shall such recovery relieve a communications system operator of its obligations under a master permit, or right-of-way permit, limit the amounts owed to the city, or in any respect prevent the city from exercising any other right or remedy it may have.
H. Compliance with Laws. Each operator shall comply with all applicable laws heretofore and hereafter adopted or established during the entire term of its master permit or right-of-way permit.
I. Reservation of Authority. The city may do all things that are necessary and convenient in the exercise of its jurisdiction under this chapter.
J. No Waiver – Performance or Compliance. The failure of the city to insist on timely performance or compliance by any person holding a master permit or right-of-way permit shall not constitute a waiver of the city’s right to later insist on timely performance or compliance by that person or any other person holding such a master permit or right-of-way permit.
K. Chapter Not a Contract. The city expressly reserves the right to amend this chapter and any master permit, right-of-way permit or license hereunder from time to time in the exercise of its lawful powers. The provisions of this chapter shall not be construed to create or to be a contract.
L. No Waiver – Enforcement. The failure of the city to enforce any provision of this chapter on any occasion shall not operate as a waiver or estoppel of this right to enforce any provision of this chapter on any other occasion, nor shall the failure to enforce any prior ordinance, law or contractual provision affecting communications facilities or communications system operators act as a waiver or estoppel against application of this chapter or any other provision of applicable law. (Ord. 928 § 2, 2005)