Chapter 11.60
RIGHT-OF-WAY USE BY TELECOMMUNICATION, CABLE PROVIDERS AND OPEN VIDEO SYSTEM OPERATORS

Sections:

11.60.010    Findings.

11.60.020    Purpose.

11.60.030    Definitions.

11.60.040    Administration.

11.60.050    Existing licenses or telecommunications or cable franchises.

11.60.060    Existing telecommunications carriers and/or cable operators occupying the rights-of-way without a license or franchise.

11.60.070    Registration required.

11.60.080    License or franchise application.

11.60.090    Determination by the city.

11.60.100    Conditions.

11.60.110    Applicability to use of rights-of-way.

11.60.120    Amendment of grant.

11.60.130    Renewal of grant.

11.60.140    Revocation or termination of grant.

11.60.150    Grantee insurance, bond and security fund.

11.60.160    Release, indemnity, and hold harmless.

11.60.170    Applicability of fees and compensation.

11.60.180    Penalties.

11.60.190    Other remedies.

11.60.200    Severability.

11.60.210    Interpretation of license or franchise terms.

11.60.010 Findings.

(a)    Pursuant to provisions of the Revised Code of Washington, the Federal Communications Act of 1982 and 1996, and other lawful authority, the city has the authority to regulate the use of its streets and other city property.

(b)    The city council finds that an increasing number of telecommunications carriers, open video system operators and cable operators have requested or may request access to and the use of rights-of-way and public property; and to the extent permitted by law, the city finds it is in the public interest to require the obtaining of business registration, licenses, franchises, cable franchises and leases from the persons or entities that use public property, easements and rights-of-way.

(c)    To ensure orderly and reasonable access to the rights-of-way and public property for telecommunications carriers and cable operators while protecting the public health, safety and welfare, the city council determines that it needs to include regulations and standards for the use of such property. (Ord. 1089 § 1 (part), 2001).

11.60.020 Purpose.

The purpose of this chapter is to:

(a)    Permit and manage reasonable, fair, and equitable access to the public rights-of-way of the city for telecommunications purposes on a competitively neutral basis;

(b)    Establish predictable, enforceable, clear and nondiscriminatory local regulations, guidelines, standards and time frames for the exercise of local authority with respect to the regulation of telecommunications carriers, open video system providers and cable operators;

(c)    Conserve the limited physical capacity of the public rights-of-way held in public trust by the city;

(d)    Assure that the city’s current and ongoing costs of granting and regulating private access to and use of the public rights-of-way and/or public property are fully compensated by the persons seeking such access and causing such costs;

(e)    Assure that the city can continue to fairly and responsibly protect the public health, safety and welfare; and

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

(g)    To reasonably and fairly compensate the city for use of and disruption to rights-of-way. (Ord. 1089 § 1 (part), 2001).

11.60.030 Definitions.

Terms used in this chapter shall have the following meanings:

“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.

“Business registration” means a requirement of all telecommunications and cable providers who are not otherwise required to license or franchise with the city.

“Cable Acts” means the Federal Cable Communications Policy Act of 1984, as amended by the Federal Cable Television Consumer Protection and Competition Act of 1992, as amended by portions of the Federal Telecommunications Act of 1996, and as hereafter amended.

Cable Facilities. See “facilities.”

“Cable operator” has the same meaning as defined in the Cable Acts.

“Cable service” has the same meaning as defined in the Cable Acts.

“City” means city of Othello.

“City council” means the Othello city council.

“City administrator” means the office of the Othello city administrator or designee.

“Development standards” is the city’s community development standards.

“Director” means the city’s public works director or designee.

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

“Facilities” or “facility” means the plant, equipment and property, including but not limited to the poles, pipes, mains, conduits, ducts, pedestals, antennae, electronics, cables, wires, plant, and other appurtenances and equipment located under, on or above the surface of the ground within the right-of-way of the city and used or to be used for the purpose of providing utility services or transmitting, receiving, distributing, providing, or offering telecommunications services.

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

“Franchise” means an agreement required with any telecommunications carrier or cable operator who desires to construct, install, operate, maintain or otherwise locate facilities in rights-of-way and to also provide telecommunications or cable services to persons or areas in the city.

“Grantee” means telecommunications carriers and cable operators granted rights and bound by obligations as more fully described herein.

“License” is an agreement with any telecommunications carrier who desires to construct, install, operate, maintain or otherwise locate telecommunications facilities in rights-of-way and to also provide telecommunications services exclusively to persons and areas outside the city.

“Open video system” means those systems defined and regulated as open video systems by the Federal Communications Commission, pursuant to Section 653 of the Federal Communications Act of 1934, as amended, 47 U.S.C. § 573.

“Ordinance” means the ordinance codified in this Chapter 11.60 of the Othello Municipal Code.

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

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

“Rights-of-way” includes the surface of and space above and below any real property in the city in which the city has any interest whether in fee, easements, or otherwise, or interest as a trustee for the public, as they now or hereafter exist, including, but not limited to, all public streets, highways, avenues, roads, reservoirs, alleys, sidewalks, tunnels, viaducts, bridges, skyways, parks, trails, or any other public place, area or property under the control of the city.

“Service connection” means a connection made to a telecommunications facility and/or cable facility for the purpose of providing telecommunications or cable services.

“State” means the state of Washington.

“Surplus space” means that portion of the usable space on a utility pole which has the necessary clearance from other pole users, as required by the orders and regulations of the Washington Utilities and Transportation Commission, to allow its use by a telecommunications carrier for a pole attachment.

“Telecommunications carrier” for purposes of this chapter includes every person that directly or indirectly owns, controls, operates or manages plant, equipment, structures, or property within the city, used or to be used for the purpose of offering telecommunications service. Provided, however, this does not include lessees that solely lease bandwidth (and do not own telecommunications facilities within the city of Othello).

Telecommunications Facilities. See “facilities.”

“Telecommunications service” means the providing or offering for rent, sale or lease, or in exchange for other value received, the transmittal of voice, data, image, graphic or video programming information or service(s) between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities, with or without benefit of any closed transmission medium, provided, however, for the purposes of this chapter, “cable service” shall not be considered a telecommunications service. For wireless communications services and facilities see Chapter 16.68 of this code.

“Underground facilities” means telecommunica-tions and/or cable facilities located under the surface of the ground, alone or in combination, direct buried or in utility tunnels or conduits, excluding the underground foundations or supports for overhead facilities.

“Washington Utilities and Transportation Commission” or “WUTC” means the state administrative agency, or lawful successor, authorized under Title 80 of the Revised Code of Washington to regulate and oversee telecommunications carriers, services and telecommunications providers in the state of Washington to the extent prescribed by law.

“Work” means all construction, alteration, enlargement, improvement, repair, and/or demolition of a facility which has not been previously authorized by franchise, lease, or permit. (Ord. 1089 § 1 (part), 2001).

11.60.040 Administration.

The city administrator is authorized to administer this chapter and to establish further rules, regulations and procedures for the implementation of this chapter. (Ord. 1089 § 1 (part), 2001).

11.60.050 Existing licenses or telecommunications or cable franchises.

Except as otherwise provided in this chapter, and to the extent provided by law, this chapter shall have no effect on any license or telecommunications or cable franchise existing as of the date of adoption of the ordinance codified in this chapter until the expiration of said license, franchise or cable franchise, or an amendment to an unexpired license, franchise or cable franchise, unless both parties agree to defer full compliance to a specific date not later than the present expiration date. The city does not recognize the existence of any telecommunications carrier which is exempt from the obligation to acquire a franchise or license from the city. (Ord. 1089 § 1 (part), 2001).

11.60.060 Existing telecommunications carriers and/or cable operators occupying the rights-of-way without a license or franchise.

Notwithstanding the foregoing, the requirements of this chapter shall apply to any telecommunications carrier, open video system operator or cable operator who currently occupies rights-of-way without a license, franchise, cable franchise or other agreement with the city. Any such telecommunications carrier or cable operator shall register or apply for a license, telecommunication franchise or cable franchise as provided by this chapter within one hundred twenty days of the effective date of the ordinance codified in this chapter. This chapter shall not apply to lessees that solely lease bandwidth (and do not own telecommunications facilities within the city) so long as the lessor has complied with the requirements of this chapter. (Ord. 1089 § 1 (part), 2001).

11.60.070 Registration required.

(a)    Business Registration. All telecommunications carriers or cable operators having facilities within the city that offer or provide telecommunications, open video or cable service within the city who are not otherwise required to acquire a license or franchise, shall register with the city as set forth in Chapter 4.32 of this code.

(b)    Exception to Registration. A person that provides telecommunications or cable services solely to itself its affiliates or members between points in the same building, or between closely located buildings under common ownership or control, provided that such person does not use or occupy any rights-of-way of the city or other ways within the city, is excepted from the registration requirements pursuant to this chapter. (Ord. 1089 § 1 (part), 2001).

11.60.080 License or franchise application.

To the extent permitted by law, any telecommunications carrier or cable operator who currently occupies or desires in the future to occupy any rights-of-way with any facilities for the purpose of providing telecommunications or cable services shall file an application on a form provided by the city administrator for one or more of the following:

(a)    License. Required if the telecommunications carrier or cable operator provides or intends to provide services exclusively to persons or areas outside the city.

(b)    Telecommunications Franchise. Required if the telecommunications carrier provides or intends to provide service to any person or area within the city.

(c)    Cable Franchise. Required if the cable operator provides or intends to provide cable services to any person or area in the city. Services similar to cable service, such as systems, shall also be subject to this chapter, and subject to substantially similar terms and conditions as those contained in franchise agreement(s) issued to cable operator(s) in the city with respect to franchise fee obligations, public, educational, and governmental access programming obligations, and all other franchise obligations to the extent provided by law. (Ord. 1089 § 1 (part), 2001).

11.60.090 Determination by the city.

Within one hundred twenty days after receiving a complete application hereunder, the city council shall make a determination on behalf of the city granting or denying the application in whole or in part. If the application is denied, the determination shall include the reasons for denial. The following criteria shall apply when determining whether to grant or deny the application:

(a)    The applicant must have current registration issued by the FCC and WUTC.

(b)    The applicant must demonstrate the willingness and ability to mitigate and/or repair damage or disruption, if any, to public or private facilities, improvements, services, travel or landscaping if the application is granted.

(c)    The grant to use the rights-of-way will serve the community interest.

(d)    Applicable federal, state and local laws, regulations, rules and policies will be met. (Ord. 1089 § 1 (part), 2001).

11.60.100 Conditions.

The following conditions apply to each license or franchise granted hereunder.

(a)    Area and Location. As part of the construction permitting process for specific routes requested within each license or telecommunications or cable franchise, a determination will be made whether sufficient capacity is available in the rights-of-way. Alternate routes or locations for the proposed facilities may be considered if feasible.

(b)    License Route. A license granted hereunder shall be limited to a grant of specific rights-of-way and defined portions thereof as may be indicated in the license agreement.

(c)    Franchise Territory. A telecommunications or cable franchise granted hereunder shall encompass all territory within the corporate limits.

(d)    Facilities Maps. Upon request by the city administrator or the administrator’s designee, the grantee shall provide the city with maps in a format agreed to by the grantee and the city, identifying the location of all telecommunications and cable facilities within the rights-of-way except individual service connections.

(e)    Leased Capacity. A grantee shall have the right to offer or provide excess conduit capacity to another telecommunications or cable provider with prior city notification, provided that:

(1)    Grantee shall furnish the city sixty (60) days advance written notice of any such proposed lease or agreement;

(2)    The proposed lessee shall comply with all of the requirements of this chapter prior to providing telecommunications or cable service.

(f)    Consistency Within Class. All licenses and telecommunications and cable franchises granted pursuant to this chapter shall contain substantially similar terms which, taken as a whole and considering relevant characteristics of applicants, are substantially consistent with those required of other licensees and telecommunications and cable franchisees.

(g)    Limitations.

(1)    No grant shall convey any right, title or interest in rights-of-way but shall be deemed a license or franchise only to use and occupy the rights-of-way for the limited purposes and term stated in the grant.

(2)    No grant shall authorize or excuse a licensee or franchisee from securing such further easements, leases, permits or other approvals as may be required to lawfully occupy and use rights-of-way.

(3)    No grant shall expressly or implicitly authorize a licensee or franchisee to provide service to, or install a system on private property without owner consent, or to use publicly or privately owned poles, ducts or conduits without a separate agreement with the owners and to the extent provided by law.

(4)    No grant shall confer any exclusive right, privilege or license to occupy or use the rights-of-way for delivery of telecommunications or cable services or for any other purposes.

(5)    Nothing herein shall be deemed or construed to impair or affect, in any way or to any extent, the city’s power of eminent domain.

(h)    Term. Unless otherwise specified in a license, telecommunications franchise or cable franchise agreement, the term shall be for no more than ten years. (Ord. 1089 § 1 (part), 2001).

11.60.110 Applicability to use of rights-of-way.

The terms of this chapter shall apply to all grantees.

(a)    General Duties.

(1)    All grantees, before commencing any construction in the rights-of-way, shall acquire appropriate permits and comply with all requirements of this code and the city of Othello public works development standards. In the event of a conflict between this chapter and the Othello public works development standards, the Othello public works development standards shall control.

(2)    All grantees shall have no ownership rights in rights-of-way, even though they may be granted a license, franchise or cable franchise to construct or operate their facilities.

(3)    Nothing herein shall limit or otherwise affect the authority of the city to require a lease for any use, occupation, construction, installation, maintenance or location upon any property owned in fee by the city.

(b)    Physical Location of Facilities. Unless otherwise required in current or future city ordinances regarding underground construction requirements, all facilities shall be constructed, installed and located in accordance with hierarchy of the following terms and conditions:

(1)    Telecommunications and cable facilities shall be installed within an existing underground duct or conduit whenever excess capacity exists within such utility facility and permission can be obtained reasonably from the installer of such duct or conduit.

(2)    Whenever one or more existing telephone electric utilities, cable systems or telecommunications facilities are located underground within rights-of-way, a licensee or franchisee shall occupy the same trench where reasonable and practical.

(3)    When sufficient capacity is not available under subsections (b)(1) or (2) of this section, the telecommunications or cable facility shall be installed underground (within the rights of way below the sidewalk or within the planter strip).

(4)    A franchisee or licensee with written authorization to install overhead facilities shall install its telecommunications or cable facilities on pole attachments to existing utility poles only, and then only if surplus space is available.

(5)    When a franchisee or licensee has been granted authority to install overhead facilities as in subsection (b)(4) of this section and the city directs such facilities to be relocated to allow construction or reconstruction within the right-of-way, a licensee or franchisee that occupies the same rights-of-way shall concurrently relocate its facilities underground at its expense.

(c)    Conduit Occupancy. In furtherance of the public purpose of reduction of rights-of-way excavation, it is the goal of the city to encourage both the shared occupancy of underground conduit as well as the construction, whenever possible, of excess conduit capacity for occupancy of future rights-of-way occupants.

(1)    City Use. At the option of the city, whenever new conduit is laid by the licensee or franchisee, the city shall be provided access to the open trench or bore hole and space shall be made available for purposes of installing one two-inch conduit for city use. There shall be no cost to the city associated with the trenching, backfilling, boring or surface restoration involved with these activities. While not an inclusive list, such option will be exercised primarily on arterial streets or near environmentally sensitive areas.

(2)    Use by Others. When the city reasonably determines such construction is in an area in which another telecommunications or cable provider may also construct telecommunications or cable facilities in the future, the city may require the franchisee or licensee to construct or install excess conduit capacity in the rights-of-way, provided the expense of such excess conduit capacity shall be borne by the city or other such person who contracts with the city to bear the expense (calculated as the difference between what grantee would have paid for the construction of its conduit and the additional cost only of the excess conduit). Grantee may manage the excess conduit itself and be permitted to charge a reasonable market lease rate for occupancy of the additional conduit space, provided such lease revenues shall be first applied to reimburse the city for its actual contribution to the construction of the excess conduit plus interest compounded at the Washington State Local Government Investment Pool rate during the time in question.

(d)    Occupancy of City-Owned Conduit. In furtherance of the same objectives of subsection (c) of this section, if the city owns conduit in the path of grantee’s proposed facilities, and provided it is technologically feasible for grantee to occupy the conduit owned by the city, grantee shall be required to occupy the conduit owned by the city in order to reduce the necessity to excavate the rights-of-way. grantee shall pay to the city a reasonable fee for such occupancy.

(e)    Relocation or Removal of Facilities. Within ninety days following written notice from the city, a grantee shall, at its own expense, temporarily or permanently remove, relocate, place underground, change or alter the position of any telecommunications or cable facilities within the rights-of-way whenever the director shall have determined that such removal, relocation, undergrounding, change or alteration is reasonably necessary for:

(1)    The construction, repair, maintenance or installation of any city or other public improvement in or upon the rights-of-way;

(2)    The operations of the city or other governmental entity in or upon the rights-of-way.

(f)    Removal of Unauthorized Facilities.

(1)    A telecommunications or cable facility is unauthorized and subject to removal in the following circumstances:

(A)    Upon expiration or termination of the grantee’s license, telecommunications franchise or cable franchise unless otherwise provided by law;

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

(C)    If the facility was constructed or installed without the prior issuance of a required encroachment or utility permit, license, telecommunications franchise, or cable franchise;

(D)    If the facility was constructed or installed at a location not permitted by the grantee’s license, franchise or cable franchise;

(E)    To the extent permitted by law, any such other reasonable circumstances affecting public health, safety and welfare deemed necessary by the city administrator.

(2)    The city administrator may exercise discretion to allow an unauthorized facility to come into compliance with this chapter upon written request of the unauthorized telecommunications carrier or cable operator made within thirty days after said carrier or operator is notified that the facility is unauthorized pursuant to this chapter. Notice shall be given in accordance with Section 11.60.130. The city administrator shall make the determination of whether to allow said carrier operator to cure by using the standards of review set forth in Section 11.60.130.

(3)    Notwithstanding any other provision of this chapter, the city administrator may, if deemed appropriate, allow a grantee or other person who may own, control or maintain telecommunications or cable facilities within the rights-of-way 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 administrator. Any plan for abandonment or removal of such facilities must be first approved by the city administrator and all necessary permits must be obtained prior to commencement of such work. Upon permanent abandonment of any telecommunications or cable facilities of such persons in place, the facilities shall become the property of the city, and such persons shall submit to the city administrator an instrument in writing, to be approved by the city attorney, transferring ownership of such facilities to the city. The provisions of this section shall survive the expiration, revocation or termination of any license, franchise or cable franchise granted under this chapter.

(g)    Noncomplying Work. Upon order of an authorized representative of the city, 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. (Ord. 1089 § 1 (part), 2001).

11.60.120 Amendment of grant.

(a)    Adding or Modifying Services. Additions or modifications to initial route(s) identified for licenses which are determined to be significant by the director will require a new license.

(b)    Relocation of Services. If ordered by the city to locate or relocate its telecommunications or cable facilities in rights-of-way not included in a previously granted license, telecommunications franchise or cable franchise, the city shall grant a license or franchise amendment without further application.

(c)    Assignments or Transfers. All assignees or transferees of interest in a license, franchise, or cable franchise of any telecommunications carrier or cable operator must comply with the terms and conditions of this chapter, the license, telecommunications franchise, or cable franchise agreement, the requirements of the FCC, and the requirements of the WUTC. If said assignee or transferee fails to comply with such requirements, the license, telecommunications franchise, or cable franchise assigned or transferred is subject to revocation. (Ord. 1089 § 1 (part), 2001).

11.60.130 Renewal of grant.

(a)    Renewal Application. A licensee or franchisee that desires to renew its license or franchise hereunder shall, not more than one hundred eighty days nor less than one hundred twenty days before expiration of the current license or franchise, file an application with the city for renewal of its license or franchise.

(b)    Renewal Determination. Within ninety days after receiving an application hereunder, the city administrator shall make a determination on behalf of the city granting or denying the renewal application in whole or in part. If the renewal application is denied, the determination shall include the reasons for nonrenewal. The criteria enumerated in this chapter shall apply when determining whether to grant or deny the application, and the city may further consider the applicant’s compliance with the requirements of this chapter and the license or franchise agreement.

(c)    Obligation to Cure as a Condition of Renewal. No license or franchise shall be renewed until any ongoing violations or defaults in the licensee’s or franchisee’s performance of the license or franchise agreement, of the requirements of this chapter, and all applicable laws, statutes, codes, ordinances, rules and regulations have been cured, or a plan detailing the corrective action to be taken by the licensee or franchisee has been approved by the city administrator. Failure to comply with the terms of an approved plan shall be grounds for nonrenewal or revocation of the license or franchise. (Ord. 1089 § 1 (part), 2001).

11.60.140 Revocation or termination of grant.

(a)    A license, telecommunications franchise or cable franchise granted by the city to use or occupy rights-of-way may be revoked pursuant to the provisions of Sections 11.60.100(f), 11.60.110(c), 11.60.120(c) or for any of the following reasons:

(1)    Construction or operation in the city without a franchise or permit;

(2)    Construction or operation at an unauthorized location;

(3)    Unauthorized transfer of control of the person subject to this chapter;

(4)    Unauthorized assignment of a franchise or permit;

(5)    Unauthorized sale, assignment or transfer of all of a franchisee’s or permittee’s assets, or a substantial interest therein;

(6)    Misrepresentation or lack of candor by or on behalf of a person in any application upon which the city relies in making any decision herein;

(7)    Abandonment of facilities in the public ways;

(8)    Failure to relocate or remove facilities as required in this chapter;

(9)    Failure to pay taxes, compensation, fees or costs when and as due;

(10)    Insolvency or bankruptcy of the franchisee or permittee;

(11)    Violation of material provisions of this chapter;

(12)    Violation of the material terms of a permit or franchise agreement.

(b)    Notice and Duty to Cure. In the event that the city administrator believes that grounds exist for revocation of a license or franchise, written notice shall be given of the apparent violation or noncompliance, including a short and concise statement of the nature and general facts of the violation or noncompliance. The grantee shall be given a reasonable period of time, not exceeding thirty days, to furnish evidence:

(1)    That corrective action has been, or is being actively and expeditiously pursued, to remedy the violation or noncompliance;

(2)    That rebuts the alleged violation or noncompliance;

(3)    That it would be in the public interest to impose some monetary damages, penalty or sanction less than revocation.

(c)    Standards for Revocation or Lesser Sanctions. If persuaded that the grantee has violated or failed to comply with a material provision of this chapter or of a license, telecommunications franchise or cable franchise or applicable codes, statutes, or rules and regulations, the city administrator shall make a preliminary determination whether to revoke the license, telecommunications franchise or cable franchise, and issue a written order, or to impose monetary damages, a penalty, or other such lesser sanction and cure, considering the nature, circumstances, extent and gravity of the violation as reflected by one or more of the following factors:

(1)    Whether the misconduct was egregious;

(2)    Whether substantial harm resulted;

(3)    Whether the violation was intentional;

(4)    Whether there is a history of prior violations of the same or other requirements;

(5)    Whether there is a history of nonoverall compliance;

(6)    Whether the violation was voluntarily disclosed, admitted or cured.

(d)    Appeal. Any person aggrieved by the granting or denying of a telecommunications license, telecommunications franchise or cable franchise or the renewal thereof pursuant to this chapter shall have the right to appeal to the city council as follows:

(1)    All appeals filed pursuant to this section must be filed in writing with the city administrator within fifteen working days of the date of the decision appealed from;

(2)    All appeals filed pursuant to this section shall specify the error of law or fact, or new evidence that was not reasonably available at the time of the city administrator’s decision, which shall constitute the basis of the appeal;

(3)    Upon receipt of a timely written notice of appeal, the city administrator shall advise the city council of the pendency and schedule a date for a hearing. (Ord. 1089 § 1 (part), 2001).

11.60.150 Grantee insurance, bond and security fund.

Each grantee shall secure and maintain insurance and bond as set forth below:

(a)    Insurance Required. Commercial general liability insurance, and, if necessary, umbrella liability insurance, which will cover bodily injury, property damage, and any other exposure which be reasonably identified as potentially arising from the grantee’s activities within the rights-of-way. The limit of liability shall not be less than two million dollars for each occurrence. The city, its elected and appointed officers, officials, employees, agents, and representatives shall be named as additional insured with respect to activities occurring within its rights-of-way. Coverage shall be comprehensive with respect to the grantee’s activities within the rights-of-way and shall include completed operations, explosions, collapse, and underground hazards. Such insurance shall name the city as additional insured and provide a certificate of insurance with a forty-five-day cancellation notice.

(b)    Bond Required. The grantee or the contractor for the grantee shall post with the city a bond with surety qualified to do a bonding business in this state, a cash deposit or an assumed savings account or other security acceptable to the city in an amount equal to one hundred fifty percent of the cost of the work as estimated by the director or in an amount as set forth in the franchise agreement. Such bond, deposit or other security shall be conditioned upon the grantee or its contractor performing the work pursuant to the terms of this chapter, including the restoration and/or replacement of the street, sidewalk, or other rights-of-way within the time specified by the director. Such bond, deposit or other security shall be approved by the city attorney before being accepted by the city.

(c)    Security Fund.

(1)    The city reserves the right to require of any person subject to this chapter that such person deposit into a bank account, established by the city, and maintain for such term as is reasonable under the circumstances with interest running to such person, a sum of money in an amount reasonably determined by the city as security for the faithful performance by such person of all the provisions of its franchise or permit, and compliance with all orders, permits and directions of any agency of the city, and for the payment of any claims, liens and taxes due the city or liquidated damages imposed by the city which arise by reason of the construction, operation or maintenance of such person’s system. Within thirty days after notice to it that any amount has been withdrawn by the city from the security fund pursuant to the foregoing, such person shall deposit a sum of money sufficient to restore such security fund to the original amount in the account at the time of withdrawal.

(2)    If such person fails after ten days’ notice to pay the city any delinquent fees, taxes or other amounts due and unpaid; or, fails to repay to the city, after such ten days’ notice, any damages, costs or expenses which the city shall be compelled to pay by reason of any act or default of such person; or fails after forty-five days’ notice of such failure by the city to comply with any provision of its franchise or permit which the city reasonably determines can be remedied by an expenditure of the security, the city may immediately withdraw the amount thereof, with interest and any penalties, from the security fund. Upon such withdrawal, the city shall notify such person of the amount and date thereof.

(3)    The security fund deposited pursuant to this section shall become the property of the city in the event that a franchise or permit is canceled by reason of the default of the person subject to this chapter or revoked for cause. Such person, however, shall be entitled to the return of such security fund or portion thereof which remains on deposit at the expiration of the term of the permit or franchise, or upon termination of the permit or franchise at an earlier date, upon payment of all sums then due to the city. (Ord. 1089 § 1 (part), 2001).

11.60.160 Release, indemnity, and hold harmless.

(a)    Additional Requirements. In addition to and distinct from the insurance requirements of this chapter, grantee releases and shall defend, indemnify, and hold harmless the city from any and all claims, losses, costs, liabilities, damages, and expenses (except those damages caused solely by the negligence of the city), including, but not limited to, those of the grantee’s lessees, and also including, but not limited to, reasonable attorneys fees arising out of or in connection with the telecommunications or cable facilities, the performance of any work, the operation of any telecommunications or cable facilities, or the grantee’s system, or the acts or omissions of the grantee or any of its suppliers or contractors of any tier, or anyone acting on the grantee’s behalf in connection with said installation of telecommunications or cable facilities, performance of work, or operation of telecommunications or cable facilities or grantee’s system.

(b)    Inclusions. Such indemnity, protection, and hold harmless shall include any demand, claim, suit, or judgement for damages to property or injury to or death of persons, including officers, agents, and employees of any person including payment made under or in connection with any Worker’s Compensation law or under any plan for employees’ disability and death benefits, which may arise out of or be caused or contributed to directly or indirectly by the erection, maintenance, presence, operation, use, or removal of grantee’s telecommunication, open video system or cable facilities, including any claims or demands of customers of the grantee with respect thereto.

(c)    Indemnification. A person subject to this chapter shall, at its sole expense, fully indemnify, defend and hold harmless the city, and in its capacity as such, the officers and employees thereof, from and against any and all claims, suits, actions, liability and judgments for damage or otherwise (except those arising wholly from negligence on the part of the city or its employees): (1) for actual or alleged injury to persons or property, including loss of use of property due to an occurrence, whether or not such property is physically damaged or destroyed, in any way arising out of or through or alleged to arise out of or through the acts or omissions of such person or its officers, agents, employees, or contractors or to which such person or its officers’, agents’, employees’ or contractors’ acts or omissions in any way contribute, and whether or not such acts or omissions were authorized or contemplated by the permit or franchise or applicable law; (2) arising out of or alleged to arise out of any claim for damages for such person’s invasion of the right of privacy, defamation of any person, firm or corporation, or the violation of infringement of any copyright, trademark, trade name, service mark or patent, or of any other right of any person, firm or corporation; and/or (3) arising out of or alleged to arise out of such person’s failure to comply with the provisions of any statute, regulation or applicable policy of the United States, state of Washington or any local agency applicable to such person in its business. Nothing herein shall be deemed to prevent the city, its officers, or its employees from participating in the defense of any litigation by their own counsel at such parties’ expense. Such participation shall not under any circumstances relieve a person subject to this chapter from its duty of defense against liability or of paying any judgment entered against the city, its officers, or its employees.

(d)    Application. To the fullest extent permitted by applicable law, the foregoing release, indemnity and hold harmless provisions shall apply to and be for the benefit of the city.

(e)    Successors and Assigns. All provisions of this chapter shall apply to the successors and assigns of the grantee. (Ord. 1089 § 1 (part), 2001).

11.60.170 Applicability of fees and compensation.

(a)    Fees. The fees to be paid to the city at the time of application for registration, license, or franchise or construction permits shall be established by ordinance or resolution of the city council. All fees paid shall be nonrefundable. Fees may include business registration, application, rights-of-way compensation, utility permit and inspection, and other regulatory fees.

(b)    Compensation to City. Each license granted hereunder is subject to the city’s right, to the extent permitted by law, to fix a fair and reasonable compensation to be paid of property pursuant to the license or franchise, provided nothing in this chapter shall prohibit the city and a licensee or franchisee from agreeing upon the compensation to be paid or services to be provided. In the absence of such an agreement, such compensation shall be in an amount reasonably established by the city council. Provided that the compensation required from any telecommunications provider or carrier engaged in the telephone business as defined in RCW 82.04.065 shall be consistent with RCW 35.21.860.

(c)    Fees and Compensation Not a Tax. The fees, charges, and fines provided for in this chapter and any compensation charged and paid for the rights-of-way provided herein, whether fiduciary or in-kind, are separate from, and additional to, any and all federal, state, local, and city taxes as may be levied, imposed or due from a telecommunications carrier or provider, its customers, or subscribers or on account of the lease, sale, delivery, or transmission of telecommunications services. (Ord. 1089 § 1 (part), 2001).

11.60.180 Penalties.

Any person found violating, disobeying, omitting, neglecting or refusing to comply with any of the provisions of this chapter shall be deemed to have committed a civil infraction. Upon a judicial determination the infraction was committed by any person violating any provision of this chapter such person shall be subject to a penalty of up to two thousand dollars plus assessments and penalties. A separate and distinct violation shall be deemed committed each day on which a violation occurs or continues. (Ord. 1089 § 1 (part), 2001).

11.60.190 Other remedies.

Nothing in this chapter shall be construed as limiting any other remedies that the city may have, at law or in equity, for enforcement of this chapter. Notwithstanding the existence or use of any other remedy, the city may seek legal or equitable relief to enjoin any acts or practices and abate any conditions that constitute or will constitute a violation of this chapter. (Ord. 1089 § 1 (part), 2001).

11.60.200 Severability.

(a)    Validity. If any section, subsection, sentence, clause, phrase, or other portion of this chapter, or its application to any person is, for any reason, declared invalid, in whole or in part by any court or agency of competent jurisdiction, said decision shall not affect the validity of the remaining portions hereof.

(b)    Conflict. if any provision of this chapter is held to be in conflict with any statutory provision of the state of Washington or applicable federal law, said provision which may conflict therewith shall be deemed inoperative and null and void insofar as it may be in conflict therewith, and shall be deemed modified to conform to such statutory provision. (Ord. 1089 § 1 (part), 2001).

11.60.210 Interpretation of license or franchise terms.

(a)    Conflict. In the event of a conflict between this chapter and a license or franchise, the provisions of the license or franchise shall control.

(b)    Construction. The provisions of this chapter and a license or franchise will be liberally construed in accordance with generally accepted rules of construction to promote the public interest.

(c)    Consistency. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. (Ord. 1089 § 1 (part), 2001).