The terms of this chapter and Chapter 18.28 YMC, Engineering Specifications and Standard Details, shall apply to all grantees.
(Ord. 999 § 1 (Exh. A), 2015)
A.
All grantees, before commencing any construction in the rights-of-way, shall comply with all requirements of the city of Yelm Municipal Code or other ordinances of the city.
B.
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.
(Ord. 999 § 1 (Exh. A), 2015)
No grantee may locate or maintain its telecommunications facilities so as to unreasonably interfere with the use of the rights-of-way by the city, by the general public or other persons authorized to use or be present in or upon the rights-of-way. All such facilities shall be moved by and at the expense of the grantee, temporarily or permanently, as determined by the city.
(Ord. 999 § 1 (Exh. A), 2015)
No grantee or any person acting on a grantee's behalf shall take any action or permit any action to be done which may impair or damage any rights-of-way, or other property located in, on or adjacent thereto except in accordance with YMC § 15.72.130.
(Ord. 999 § 1 (Exh. A), 2015)
Unless otherwise provided in a license or franchise agreement, no grantee, or any person acting on the grantee's behalf, shall commence any nonemergency work involving undergrounding, excavation or obstructing in or about the rights-of-way without five working days' advance written notice to the city. Any private property owner whose property will be affected by a grantee's work shall be afforded the same notice.
(Ord. 999 § 1 (Exh. A), 2015)
In the event of an unexpected repair or emergency, a grantee may commence such repair and emergency response work as required under the circumstances, provided the grantee shall notify the city public works director as promptly as possible before such repair or emergency work or as soon thereafter as possible if advance notice is not practicable.
(Ord. 999 § 1 (Exh. A), 2015)
Each grantee shall maintain its facilities in good and safe condition and in a manner that complies with all applicable federal, state and local requirements.
(Ord. 999 § 1 (Exh. A), 2015)
Within 60 days (or a longer period if mutually agreed upon by the grantee and administrator) following written notice from the city, a grantee shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any telecommunications facilities within the rights-of-way whenever the city administrator or designee shall have determined that such removal, relocation, change or alteration is reasonably necessary for:
A.
The construction, repair, maintenance or installation of any city or other public improvement in or upon the rights-of-way.
B.
The operations of the city or other governmental entity in or upon the rights-of-way.
C.
The vacation of a public street or the release of a utility easement.
(Ord. 999 § 1 (Exh. A), 2015)
A.
In its discretion, the administrator at any time may require any person who owns, controls or maintains any unauthorized telecommunications facility or cable facility or related appurtenances within the rights-of-way to:
1.
Apply for a license, franchise or cable franchise within 30 days of receipt of written notice from the city to such person that such a license, franchise or cable franchise is required; or
2.
Require such person to remove its facilities and restore the affected area within 90 days to a condition satisfactory to the city; or
3.
Direct city personnel to remove the facilities and restore the affected area to a condition satisfactory to the city and charge the person the costs therefor, including by placing a lien on the person's property; or
4.
Take any other action authorized by applicable law.
B.
A telecommunications facility or cable facility is unauthorized and subject to removal in the following circumstances:
1.
Upon expiration or termination of the grantee's license, franchise or cable franchise unless otherwise provided by law.
2.
Upon abandonment of a facility within the rights-of-way. In certain situations facilities may be required to be abandoned in place for the preservation of the rights-of-way. In this case, the facilities would not be subject to removal.
3.
If the facility was constructed or installed without the prior issuance of a required encroachment, utility or other permit.
4.
If the facility was constructed or installed at a location not permitted by the grantee's license, franchise or cable franchise.
5.
To the extent permitted by law, any such other reasonable circumstances affecting public health, safety and welfare deemed necessary by the administrator.
C.
Notwithstanding any other provision of this section, the administrator may, in its sole discretion, allow a grantee or other person who may own, control or maintain telecommunications facilities or cable facilities within the rights-of-way of the city of Yelm to abandon such facilities in place. No facilities of any type may be abandoned in place without the express written consent of the administrator. Any plan for abandonment or removal of such facilities must be first approved by the administrator and all necessary permits must be obtained prior to commencement of such work. Upon permanent abandonment of any telecommunications facilities or cable facilities of such persons in place, the facilities shall become the property of the city, and such persons shall submit to the administrator an instrument in writing, to be approved by the city attorney's office, 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 title.
(Ord. 999 § 1 (Exh. A), 2015)
If a grantee is required to relocate, change or alter the telecommunications facilities hereunder and fails to do so, the city may cause such to occur and charge the grantee for the costs incurred.
(Ord. 999 § 1 (Exh. A), 2015)
The city retains the right and privilege to cut or move any telecommunications facilities located within the rights-of-way as the city may determine to be necessary, appropriate or useful in response to any public health or safety emergency.
(Ord. 999 § 1 (Exh. A), 2015)
Unless directly and proximately caused by the willful, intentional or malicious acts of the city, the city shall not be liable for any damage to or loss of any telecommunications facility within the rights-of-way as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling, or work of any kind in the rights-of-way by or on behalf of the city. State law requires that all utilities contact the utility underground locate service 48 hours prior to start of construction.
(Ord. 999 § 1 (Exh. A), 2015)
Restoration shall comply with the following:
A.
When a grantee, or any person acting on its behalf, does any work in or affecting any rights-of-way, it shall, at its own expense, promptly remove any obstructions therefrom and restore such ways or property to the same condition which existed before the work was undertaken. As used in this section, "promptly" means as required by the city's public works director in the reasonable exercise of the director's discretion.
B.
If weather or other conditions do not permit the complete restoration required hereunder, the grantee shall temporarily restore the affected ways or property. Such temporary restoration shall be at the grantee's sole expense and the grantee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration.
C.
A grantee or other person acting on its behalf shall use suitable barricades, flags, flagmen, lights, flares and other measures as required for the safety of all members of the general public and to prevent injury or damage to any person, vehicle or property by reason of such work in or affecting such rights-of-way.
Upon request by the director, 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 facilities and cable facilities within the rights-of-way except individual service connections. |
(Ord. 999 § 1 (Exh. A), 2015)
Within 10 days of a written request from the administrator, each grantee shall furnish the administrator with information reasonably necessary to fulfill purposes of this title and sufficient to demonstrate:
A.
That grantee has complied with all requirements of this title.
B.
That all taxes and fees due the city in connection with the telecommunications services and telecommunications facilities or cable services and cable facilities provided by the grantee have been properly collected and paid by the grantee.
C.
That all books, records, maps and other documents maintained by the grantee with respect to its facilities within the rights-of-way have been made available for inspection by the administrator and the director at reasonable times and intervals.
(Ord. 999 § 1 (Exh. A), 2015)
Unless otherwise provided by a license, franchise, or cable franchise, before commencing construction in the rights-of-way, each grantee shall secure and maintain the following liability insurance policies:
A.
Commercial general liability insurance, and, if necessary, umbrella liability insurance, which will cover bodily injury, property damage, and any other exposure which can 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 $2,000,000 each occurrence. The city, its elected and appointed officers, officials, employees, agents, and representatives shall be named as additional insureds 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.
B.
Business automobile liability insurance for owned, nonowned and hired vehicles with limits of not less than $2,000,000 per person, $3,000,000 per accident.
C.
Workers' compensation insurance as required by RCW Title 51 and employers' liability coverage with a limit of not less than $1,000,000 per occurrence.
D.
The insurance policies required by this section shall be maintained at all times by the grantee. Each liability policy shall be endorsed to require the insurer to notify the city at least 45 days before the policy can be canceled by either party, and to require notice of cancellation due to nonpayment of premium to be mailed to the administrator as well as the named insured. The grantee will be obligated to replace or renew the canceled or expiring policy and show proof in the form of a certificate of insurance at least 20 days before the expiration or cancellation of the existing policy(ies).
E.
The grantee shall furnish the city with properly executed certificates of insurance or a signed policy endorsement which shall clearly evidence all insurance required in this section. The certificate will, at a minimum, list limits of liability, coverage, and all exclusions.
F.
The grantee or its agent will provide a copy of any and all insurance policies specified in this title upon request of the administrator.
G.
The insurance limits mandated for any insurance coverage required by this title are not intended to be an indication of limits of exposure nor are they limitations on liability or indemnification.
(Ord. 999 § 1 (Exh. A), 2015)
A.
In addition to and distinct from the insurance requirements of this title, grantee releases and shall defend, indemnify and hold harmless city, its elected and appointed officers, officials, employees, agents, and representatives (collectively referred to as the "indemnities") from any and all claims, losses, costs, liabilities, damages and expenses, including, but not limited to, those of the grantee's lessees, and also including, but not limited to, reasonable attorneys' fees (except those damages caused solely by the negligence of the indemnities) arising out of or in connection with the telecommunications facilities or cable facilities or installation of any telecommunications facilities or cable facilities, the performance of any work, the operation of any cable communications facilities 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 facilities or cable facilities, performance of work, or operation of the telecommunications facilities or cable facilities or grantee's system.
B.
Such indemnity, protection and hold harmless shall include any demand, claim, suit or judgment 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 workers' 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 telecommunications facilities or cable facilities or installations of telecommunications facilities or cable facilities including any claims or demands of customers of the grantee with respect thereto.
C.
Indemnities shall not be liable to the grantee or to the grantee's customers, and the grantee indemnifies, protects and saves harmless the indemnities against any and all such claims or demands, suit or judgment for loss, liability, damages and expense by the grantee's customers, or for any interruption to the service of the grantee, or for interference with the operation of the telecommunications facilities or cable facilities.
D.
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 indemnities.
E.
All provisions of this section shall apply to the successors and assigns of the grantee.
(Ord. 999 § 1 (Exh. A), 2015)
Before commencing construction or obtaining a license, franchise or cable franchise in the rights-of-way, each grantee shall establish a permanent security fund with the city by depositing the amount of up to $50,000 with the city in cash, an unconditional letter of credit, or other instrument acceptable to the city, which fund shall be maintained in the designated amount at the sole expense of grantee so long as any of grantee's telecommunications facilities or cable facilities are located within the rights-of-way. This security fund shall be separate and distinct from any other bond, letter of credit or deposit required by a telecommunications franchise or cable franchise. If a grantee has telecommunications facilities or cable facilities in the rights-of-way for five consecutive years, the grantee may request the city to waive the requirement for a security fund. In addition, if, at the discretion of the council, an existing grantee is considered to be "in good standing" with the city, the security fund may be waived. This determination is made during the utility permit process as described in Chapter 18.12 YMC.
A.
The fund shall serve as security for the full and complete performance of grantee's obligations under this title, including any costs, expenses, damages or loss the city pays or incurs because of any failure attributable to the grantee to comply with the codes, ordinances, rules, regulations or permits of the city.
B.
Before any sums are withdrawn from the security fund, the administrator shall give written notice to the grantee:
1.
Describing the act, default or failure to be remedied, or the damages, cost or expenses which the city has incurred by reason of the grantee's act or default;
2.
Providing a reasonable opportunity for the grantee to first remedy the existing or ongoing default or failure;
3.
Providing a reasonable opportunity for the grantee to pay any moneys due the city before the city withdraws the amount thereof from the security fund; and
4.
That the grantee will be given an opportunity to review the act, default or failure described in the notice with the administrator.
C.
Grantee shall replenish the security fund within 14 days after written notice from the administrator that there is a deficiency in the amount of the fund.
(Ord. 999 § 1 (Exh. A), 2015)
Unless otherwise provided in a license or franchise agreement, a bond written by a surety acceptable to the city equal to at least 100 percent of the estimated cost of restoration of the rights-of-way shall be secured before a construction permit is issued. An annual bond may be approved by the director for numerous small line extension projects in lieu of an individual bond for each project.
A.
The construction bond shall remain in force until 60 days after substantial completion of the work, as determined by the city administrator or designee, including restoration of rights-of-way and other property affected by the construction.
B.
The construction bond shall guarantee, to the satisfaction of the city:
1.
Timely completion of construction;
2.
Construction in compliance with applicable plans, permits, technical codes and standards;
3.
Proper location of the facilities as specified by the city;
4.
Restoration of the rights-of-way and other property affected by the construction;
5.
The submission of as-built drawings after completion of the work as required by this title;
6.
Timely payment and satisfaction of all claims, demands or liens for labor, material or services provided in connection with the work.
(Ord. 999 § 1 (Exh. A), 2015)
Any act that a grantee is or may be required to perform under this title, a license, franchise, or cable franchise or applicable law shall be performed at the grantee's expense.
(Ord. 999 § 1 (Exh. A), 2015)
All grantees are required to cooperate with the city and with each other as follows:
A.
By February 1st of each year, grantee shall provide the city administrator or designee with a schedule of their planned construction activities which may affect the rights-of-way for that year.
B.
Each grantee shall meet with the city, other grantees and users of the rights-of-way annually or as determined by the city to schedule and coordinate construction.
C.
All construction locations, activities and schedules shall be coordinated, as ordered by the city administrator or designee, to minimize public inconvenience, disruption or damages.
(Ord. 999 § 1 (Exh. A), 2015)
Ownership or control of a license, franchise or cable franchise may not directly or indirectly be transferred, assigned or disposed of by sale, lease, merger or consolidation, by operation of law or otherwise, nor may there be a transfer of working control (which includes not only actual control, but also the ability to affect or influence decisions) without the prior written consent of the city, as expressed by ordinance and then on such conditions as may be prescribed therein and:
A.
No grant with respect to a telecommunications service shall be assigned or transferred in any manner within 12 months after the initial grant of the license or franchise unless otherwise provided by law.
B.
Absent extraordinary and unforeseeable circumstances and to the extent permitted by law, no grant with respect to a telecommunications service shall be assigned or transferred before construction of the telecommunications facilities have been completed.
C.
The proposed assignee or transferee shall provide and certify the following information to the administrator:
1.
Complete information setting forth the nature, terms and conditions of the proposed transfer or assignment;
2.
All information required of a license, franchise or cable franchise applicant pursuant to this title with respect to the proposed transferee or assignee;
3.
All information required by federal, state and local law or regulation, including, but not limited to, FCC Form 394;
4.
Any other information reasonably required by the administrator.
D.
No transfer shall be approved unless the assignee or transferee has the legal, technical, financial and other qualifications in the city's reasonable discretion to own, hold and operate the telecommunications system pursuant to this title, and unless there is compliance with the license, franchise and cable franchise (as applicable).
E.
The assignee or transferee shall reimburse the city for all direct and indirect fees, costs and expenses incurred by the city in considering a request to transfer ownership in or assign a license, franchise or cable franchise unless otherwise prohibited by law.
F.
Any transfer of ownership in or assignment of a license, franchise or cable franchise without prior approval of the city under this title shall be void and is cause for revocation of the grant.
G.
Upon receipt of all information required herein, and any other information reasonably required by the city, the city shall have 120 days to review and approve or deny the requested assignment or transfer. If the city is unable to approve or deny the requested assignment or transfer within such period, the city shall provide notice of the reasons for the delay and the period of time needed to complete its review, and such review period shall be extended to the extent permitted by law.
H.
In addition to the other requirements herein, a copy of the transfer or assignment document, deed or other documentation deemed necessary by the city shall also be filed with the administrator within 10 days of any change in ownership or control.
I.
Except as provided in YMC § 15.72.230, city's consent shall not be required for any assignment which is the result of a corporate merger, sale of all or substantially all of the corporate assets, sale of any or all of the corporate stock, consolidation or reorganization, whether voluntary or involuntary, or assignment to a subsidiary, parent, or affiliated company so long as such assignee or transferee is financially qualified and there are no outstanding issues of noncompliance under this title, a license, franchise or cable franchise. Nothing contained herein shall prevent or restrict an assignor's, lessor's, or person's right to (1) mortgage its interest or (2) assign or lease to a third party fiber optic cables or telecommunication capacity (so long as it is for uses authorized by telecommunications franchises or cable franchises), and no consent shall be required for such mortgage, lease or assignment. Such assignors and lessors shall, however, be responsible for written notification to city of such assignment or lease due to those occurrences defined herein in which city's consent is not required, and such notification shall include the appropriate names, address and contact points for the assignee or lessee.
(Ord. 999 § 1 (Exh. A), 2015)
Franchisee shall promptly notify the city of any proposed change in, transfer of, or acquisition by any other party of control of franchisee. If beneficial ownership of 30 percent or more of the voting stock of franchisee, or of any parent company of franchisee, immediate or otherwise, or of any entity now owning or later acquiring such a beneficial interest, is acquired by a single entity or by several entities under common control, and if such entity or entities of common control is other than an organization that is more than 50 percent owned by franchisee, or a parent or affiliate of franchisee, then a change of control will be deemed to have taken place unless the city, upon request of franchisee, finds otherwise. Such change of control shall make this franchise subject to revocation unless and until the city shall have given written consent thereto. For the purpose of determining whether it will consent to such change, transfer, or acquisition of control, the city may inquire into qualifications of the prospective controlling party to perform the obligations of franchisee under this agreement. Franchisee shall assist the city in any such inquiry. Franchisee shall reimburse the city for all reasonable costs incurred in a change of control approval process. The city may condition its consent upon such reasonable terms and conditions as it deems appropriate. Consent to a change of control request shall not be unreasonably withheld.
(Ord. 999 § 1 (Exh. A), 2015)
A license, franchise or cable franchise granted by the city to use or occupy rights-of-way may be revoked for any one or more of the following reasons:
A.
Construction or operation at an unauthorized location;
B.
Unauthorized transfer of control;
C.
Unauthorized assignment of a license, franchise or cable franchise;
D.
Misrepresentation in any application to the city;
E.
Abandonment of telecommunications facilities or cable facilities in the rights-of-way;
F.
Failure to relocate or remove telecommunications facilities or cable facilities as required in this title;
G.
Failure to pay taxes, compensation, fees or costs when and as due the city;
H.
Insolvency or bankruptcy;
I.
Violation of a provision of this title;
J.
Violation of a term of a license, franchise or cable franchise.
(Ord. 999 § 1 (Exh. A), 2015)
In the event that the administrator believes that grounds exist for revocation of a license, franchise or cable franchise, written notice shall be given of the apparent violation or noncompliance, there shall be provided a short and concise statement of the nature and general facts of the violation or noncompliance, and there shall be given 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;
C.
That it would be in the public interest to impose some monetary damages, penalty or sanction less than revocation.
(Ord. 999 § 1 (Exh. A), 2015)
In the event that a grantee fails to provide evidence reasonably satisfactory to the administrator as provided hereunder, the administrator shall make a preliminary determination as to whether an event of default by grantee has occurred and initially prescribe remedies in accordance with YMC § 15.72.270. In the event that a grantee wants to appeal such determination, it shall do so to the hearing examiner, as provided in YMC § 18.10.100.
(Ord. 999 § 1 (Exh. A), 2015)
If persuaded that the grantee has violated or failed to comply with a provision of this title or of a license, franchise, cable franchise or applicable codes, ordinances, statutes, or rules and regulations, the administrator shall make a preliminary determination whether to revoke the license, 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:
A.
Whether the misconduct was egregious;
B.
Whether substantial harm resulted;
C.
Whether the violation was intentional;
D.
Whether there is a history of prior violations of the same or other requirements;
E.
Whether there is a history of overall compliance;
F.
Whether the violation was voluntarily disclosed, admitted or cured.
(Ord. 999 § 1 (Exh. A), 2015)
A.
The city right-of-way is critical for personal travel and the transport of goods, that the city uses the right-of-way to provide critical services to its citizens, including public safety and electric, water, sewer, and other utilities, and that right-of-way is intended for public use and must be managed and controlled consistent with that intent; in particular, that the right-of-way should be managed so that the installation, maintenance, and operation of a utility system does not unreasonably interfere with public use.
B.
The public right-of-way can be partially occupied by private utilities and other public service entities for facilities used in the delivery, conveyance, and transmission of utility and public services to the enhancement of the health, welfare, and general economic well-being of the city, the region and its residents and businesses.
C.
The public right-of-way is a valuable and scarce community resource physically limited in dimension requiring the city to manage it for the most efficient and best use and to minimize the costs to the taxpayers of the foregoing uses, to protect against foreclosure of future economic expansion because of premature exhaustion of the public right-of-way as an economic resource, and to minimize the inconvenience to and negative effects upon the public from such facilities' construction, emplacement, relocation, and maintenance in the public right-of-way.
D.
The public right-of-way within the city belongs to the public and is built and maintained at public expense for the use of the general public, the primary purpose of which is public travel, and must be managed and controlled consistent with that intent.
E.
The city has an obligation under state law to plan for and implement transportation improvements and must identify sources for future transportation improvements and maintenance of the public right-of-way.
F.
The use of public right-of-way for uses unrelated to public travel, such as water mains, gas pipes, pipelines, and telecommunications and cable facilities, is secondary and subordinate to the primary use for travel; such secondary use is permissible only when not inconsistent with the primary purpose of the establishment of such public right-of-way, and such use by a private business is a mere privilege under state law and there is no inherent right in a private individual to conduct private business in the public streets.
G.
The city has the authority to develop and implement public right-of-way policies, management principles, standards, and regulatory ordinances in order to balance the interests of both secondary and primary uses of the public right-of-way, meet the obligations of local government to manage and maintain the public right-of-way, ensure the efficient use of the public right-of-way, and protect the public health, safety, and welfare.
H.
Public right-of-way management is a substantial and legitimate public interest and requires establishment of appropriate standards for the use of the public right-of-way that take into account, among other things:
1.
Availability of and demand for a variety of services and delivery technologies has dramatically increased the demand for use of the public right-of-way;
2.
The present and future use of the public right-of-way;
3.
The potential disruption to existing users of the public right-of-way and resultant inconvenience;
4.
Protection of the public and the city from any harm that may flow from such private use of public right-of-way;
5.
The desire to encourage competition;
6.
The need to establish standard terms and conditions so that operators with facilities located in the public right-of-way will have notice of how it may use the public right-of-way;
7.
The city's obligation to carry out its regulatory authority in a manner consistent with federal and state law;
8.
The city's right to recover its regulatory and administrative costs; and
9.
The city's obligation to protect its interests in using the public right-of-way for the provision of services to the public, other governmental agencies, and itself.
I.
The city has an obligation to ensure the orderly and efficient use of this limited resource among multiple users and to treat all users fairly while preserving public safety, essential services, and economical access to its own facilities which have added greatly to the complexity of modern public right-of-way management.
J.
The failure of service providers to abide by public right-of-way management standards and the failure of local government to adequately control the public right-of-way can lead and has led to damage to the use of the public right-of-way and other property interests such as:
1.
Explosion of facilities in the public right-of-way;
2.
Forced evacuation of homes;
3.
Spillage of raw sewage;
4.
Broken water mains resulting in flooding and damage to property;
5.
Severing of communications and power lines;
6.
Interruption of emergency communications systems;
7.
Damage to public streets and sidewalks;
8.
Hazards from improperly installed overhead facilities;
9.
Excavations made without notice to the city;
10.
Excavations and restorations done in violation of community standards;
11.
Use of improper materials and methods in restoring utility street cuts;
12.
Slow repairs that inconvenience the traveling public;
13.
Poor workmanship in trench reinstatement and pavement restoration;
14.
Public dissatisfaction with traffic delays and interrupted utility service;
15.
Disruption of adjoining public facilities such as gutters and sidewalks;
16.
Damage to adjoining utility facilities disturbed by improper excavation;
17.
Increased maintenance costs from repeatedly cutting pavement to access utilities;
18.
Increased danger for the public and excavators; and
19.
Street cuts into the public right-of-way that significantly diminish the average life of the street.
K.
The requirement of a performance bond or security fund ensures that work done in the public right-of-way complies with or can be made to comply with permitting and other requirements that ensure public safety and limit liability of the city.
L.
Insurance and indemnity requirements protect the city from monetary loss in the event of city liability due to acts of the secondary users of the public right-of-way.
M.
The city should not be exposed to liability of any kind as a result of the presence in the public right-of-way of the facilities of secondary users because the secondary user controls the design, construction, and installation of those facilities, profits from use of those facilities, is better suited and positioned to protect against such harms, and, but for the existence of those facilities, no injury would have occurred.
N.
Insurance, bonding, indemnity, nonrecourse, and other financial security requirements serve important and substantial government interests and are reasonable requirements necessary to protect the public health, safety, and welfare and to protect the city from financial loss from liability arising from acts of third parties operating within and using the public right-of-way.
O.
The city has a substantial government interest in knowing the identity of those persons with facilities in its public right-of-way so that it may, among other things, provide notice of hazardous or defective conditions, violations of regulatory or contractual requirements, joint trenching opportunities, relocation requirements for public or private improvements, identify locations of facilities, or identify the proper parties in the event of litigation.
P.
The city has a substantial government interest in requiring notice and approval of a transfer of the rights, duties, and obligations of those persons permitted to be in the public right-of-way to ensure that the city does not lose any legal rights or protection as a result of the transfer, to ensure that such persons are aware of and agree to comply with all rights, duties, and obligations previously agreed to, to ensure that companies do not simply transfer agreements to avoid complying with regulatory or contractual requirements, and to ensure that the city has accurate contact information for the operator of the facilities in the public right-of-way in the event of an emergency.
Q.
Increasing demand for use of public right-of-way is causing, and will continue to cause, local governments to expand management services and responsibilities, including more frequent inspections, repairs, and repaving, sophisticated mapping technologies and systems, and increased personnel.
R.
The city has a substantial government interest in requiring persons with facilities in the public right-of-way to provide record drawings and descriptions of its facilities so that, among other things, the city may assess the potential disruption of the public right-of-way during construction and installation, so that the city can plan future improvements and installations within the public right-of-way, so the city can assess the physical capacity of the public right-of-way, so the city can provide notice to other users of the public right-of-way of the location of facilities to avoid disruption to such facilities and unnecessary excavation, so the city can determine appropriate amounts of bonding, insurance, and other requirements to protect the public health, safety, and welfare, and so the city can ensure compliance with its regulatory requirements and the terms and conditions of its agreements with the secondary users.
S.
The recovery of administrative costs incurred by the city in preparing, considering, and authorizing the use, construction, or installation of facilities within the public right-of-way is a cost of regulation and management of the public right-of-way and authorized under state and federal law.
T.
Construction and operation of facilities in the public right-of-way is intrusive and disruptive, and requires the city to manage the number of times its citizens must bear the inconvenience of having its streets excavated and the best times for it to occur.
(Ord. 995 § 13 (Exh. B), 2015)
The purpose of this chapter is to exercise the city's lawful statutory and police power authority to regulate in the public interest the use of the right-of-way by establishing procedures for the granting and termination of utility franchises and by prescribing the rights, duties and obligations of a utility operating within the rights-of-way.
(Ord. 995 § 13 (Exh. B), 2015)
The following terms, phrases, words and their derivations as used in this chapter shall have the meanings given herein. Words not defined herein shall have the meaning given in YMC § 1.04.010 or 18.02.040. Words not defined herein or in Chapter 1.04 or 18.02 YMC shall have the meaning given pursuant to such federal statutes, rules, or regulations that apply to and regulate the services provided by the grantee. Words not otherwise defined shall be given their common and ordinary meaning. When not inconsistent with the context, words used in the present tense include the future, words in the plural include the singular, and words in the singular include the plural.
The word "shall" is always mandatory and not merely directory.
References to governmental entities (whether persons or entities) refer to those entities or their successors in authority. If specific provisions of law, regulation or rule referred to herein be renumbered, then the reference shall be read to refer to the renumbered provision.
means the Yelm city administrator, or his/her designee.
is the entity to which a franchise will be granted.
is the person authorized by applicant to complete and file an application on behalf of applicant and who is authorized to receive any notices on behalf of applicant of any action taken by the city regarding the franchise application.
means city of Yelm.
means the city council of the city of Yelm.
means the director of the city of Yelm public works department.
refers to the authorization, and the terms and conditions thereof, granted by the city to a utility operator, giving the utility operator the non-exclusive right to occupy the space, or use utility facilities upon, across, beneath, or over any right-of-way within the franchise area to provide utility service. Any franchise shall be issued in the form of an ordinance, and must be accepted by the grantee to become effective in the time and manner specified in the Yelm Municipal Code or the franchise ordinance.
Such franchise shall not include or be a substitute for: | |
1. | Any other license or authorization required for the privilege of transacting and carrying on business within the city; |
2. | Any permit, agreement, or authorization required in connection with operations on or in public streets or property, including, by way of example and not limitation, utility permits; or |
3. | Any permits or agreements for occupying any other property in the city for which access is not specifically granted by the franchise 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. |
means the area of the city that a utility operator is authorized to serve by the terms of its franchise or by operation of law.
shall mean the ordinance granting a franchise to an applicant.
means utility operators granted rights and bound by obligations as more fully described in a franchise granted pursuant to this chapter.
shall, unless a different meaning is intended, mean and refer to the ordinance enacting the provisions of this chapter.
means utility facilities located above the surface of the ground, including the underground supports and foundations for such facilities.
means and refers to corporations, companies, associations, firms, partnerships, limited liability companies, other entities and individuals; provided, that this term shall not mean or refer to the city of Yelm.
means and includes the surface of and space above and below any property in the city in which the city has any interest whether in fee, through right-of-way dedication, easements or otherwise, or interest as a trustee for the public, as they now or hereafter exist, and used or dedicated for public transportation, 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.
means the state of Washington.
means utility 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 utility facilities.
means any person owing, operating, managing or maintaining a water, sanitary sewer, stormwater, electric energy, street light, or petroleum or natural gas pipeline, whether or not utility service is made generally available to the public.
means the plant, equipment and property including, but not limited to, the poles (with or without cross-arms), wires, lines, pipes, mains, conduits, ducts, cables, mains, laterals, conduits, feeders, regulators, braces, guys, anchors, vaults, meters, meter-reading devices, communication systems, distribution and transmission systems, and any and all other equipment, appliances, attachments, appurtenances and other items necessary, convenient, or in any way appertaining to any and all of the foregoing, located under, on or above the surface of the ground within rights-of-way and used or to be used for the purpose of providing utility services.
shall mean the service or services provided by the utility operator.
shall mean collectively the utility facilities that together with other facilities, appurtenances and equipment of grantee or other persons are used to provide a utility service or services whether or not such service is provided to the public in general.
means the state administrative agency, or lawful successor, authorized to regulate and oversee telecommunications carriers and telecommunications services in the state of Washington to the extent prescribed by law.
means the Yelm Municipal Code.
(Ord. 995 § 13 (Exh. B), 2015)
A.
Franchise Required. No utility operator shall own, manage, maintain, or operate utility facilities within the right-of-way without having in place a current and valid franchise except as provided in the subsections below.
B.
Transitional Provisions. The operator of any utility facility, the operation of which is required to be franchised under this chapter, shall have six months from February 12, 2015, to file an application for a franchise under this chapter.
Any utility operator timely filing such an application shall not be subject to a penalty under this chapter for failure to have such a franchise, as long as said application remains pending; provided, however, nothing herein shall relieve any utility operator of any liability for its failure to obtain any permit, or other authorization required under other provisions of the Yelm Municipal Code, and nothing herein shall prevent the city from requiring removal of any facilities installed in violation of the Yelm Municipal Code.
C.
Persons Holding Franchises. Any person holding an outstanding franchise from the city for a utility system may continue to operate under the existing franchise to the conclusion of its present term (but not any renewal or extension thereof) with respect to those activities expressly authorized by the franchise; provided, however, that such grantee may elect at any time to apply for a superseding franchise under this chapter and must seek additional franchises to provide other services; and provided further, that such person shall be subject to the other applicable provisions of the Yelm Municipal Code to the extent permitted by law.
D.
Persons with Pending Applications. Applications pending on February 12, 2015, shall be subject to this chapter.
A person with a pending application shall be provided 30 days from February 12, 2015, to submit additional information to comply with the requirements of this chapter governing applications.
E.
Transitional Rules to Be Narrowly Interpreted. It is the intent of the city to apply the provisions of this chapter to utility operators that now occupy or may in the future occupy rights-of-way, except to the extent federal or state law prevents it from doing so.
F.
Nothing herein requires the city to enforce this chapter against other governmental agencies providing utility service in the city if the city is prevented from doing so as a matter of law or if the city has entered into an agreement or agreements with a utility operator or operators to provide utility service within the city, or to manage, maintain, or operate utility facilities within the city.
(Ord. 995 § 13 (Exh. B), 2015)
A.
City Forms – Application Information. Any utility operator required to obtain a franchise hereunder, or seeking to renew a franchise, shall file an application with the city for a franchise provided on a form by the administrator.
The applicant shall include the following information with the application, unless the requirement for such information is waived by the administrator for cause:
2.
The legal and d/b/a names, mailing address, Washington tax number, and phone number of applicant.
3.
If a corporation, state the name and address of the registered agent of applicant in Washington State, and the state of incorporation of applicant.
4.
If applicant is something other than a corporation, such as a partnership or limited liability company, state the names and business addresses of the principals.
5.
As to any portion of the utility system applicant proposes to initially install, and to any such portion of the utility system currently existing, within the public rights-of-way of the city of Yelm, describe and identify:
a.
The general route of the existing or proposed utility system;
b.
The approximate linear feet of overhead and underground utility system facilities;
c.
The construction techniques that applicant proposes to use for underground installations;
d.
The type of overhead and underground utility facilities, including any equipment proposed to be installed related thereto;
e.
The power sources that will be used, if any, and a description of the noise, exhaust, and pollutants, if any, that will be generated by the operation of the same.
6.
If the applicant intends to provide, or is providing, services to residents or businesses located within the corporate boundaries of the city, a description of the services applicant provides or intends to provide.
7.
Information sufficient for the city to determine whether the applicant is subject to franchising under this chapter;
8.
Information sufficient for the city to determine whether the transmission, origination or receipt of the utility services provided or to be provided by the applicant constitutes an occupation or privilege subject to any city tax, permit, license or franchise fee;
9.
A statement from the applicant documenting that it has complied with all registration and related filings requirements of the WUTC or such other governmental body having regulatory and/or licensing jurisdiction and authority over the applicant;
10.
Such other information as the city may request and that it finds reasonable and necessary to the determination to grant or deny a franchise or franchise renewal application and which may be lawfully required.
B.
Completed Application. The application will not be deemed complete without applicant providing the information required by the city and the applicant attaching a declaration of an authorized person certifying the truth and accuracy of the information provided in the application and depositing the application fee as required under this chapter.
The city shall within 15 business days of receipt of an application, notify the applicant that the application is not complete.
If such notice is not timely given the applicant shall be deemed complete from the date the application is received by the city.
Any notice provided under this subsection shall be deemed given upon personal service of applicant, or upon deposit in the United States mail in a properly stamped envelope addressed to the mailing address provided in the application for the applicant.
C.
Application Fees. The application fee shall be the actual costs of city staff time and resources as well as any outside consultation expenses which the city reasonably determines are necessary to adequately review and analyze the application. Each application under this chapter for a franchise, or renewal thereof, shall be accompanied by an application fee deposit in the initial amount of $5,000, which shall be deposited with the city.
D.
Purpose. The purpose of the application fee is to ensure full recovery of city costs and expenses in connection with the review of the application including, but not limited to, actual costs of city staff time and resources as well as any outside consultation expenses which the city reasonably determines are necessary to adequately review and analyze the application.
E.
Application of Fee Deposit. The application fee deposit shall be credited towards other fees or deposits due to the city, less any ascertainable costs and expenses incurred by the city in connection with the application. The city may draw upon the application fee deposit to pay for such expenses.
F.
Duty to Replenish. To the extent that the initial deposit is insufficient to fund full recovery of city costs and expenses, within 30 days after written demand, the applicant shall replenish the application fee. Applicant shall be entitled to a refund of any unencumbered amounts remaining from the application fee upon conclusion of the process for review and approval or denial of a franchise.
G.
The outcome of the city's process for review and approval of a franchise is independent of and is in no way biased, prejudiced or predetermined in any way by the submission of an application fee.
(Ord. 995 § 13 (Exh. B), 2015)
Within 120 days after receiving a complete application hereunder, the city council shall make a determination granting or denying a franchise application.
The grant of a franchise application shall be made by ordinance approving a franchise upon the terms and conditions set forth in the franchise.
If the application is denied, the determination shall include the reasons for denial. The following enumerated criteria shall apply when determining whether to grant or deny the application:
A.
The financial and technical ability of the applicant to fulfill its obligations under a franchise;
B.
The legal status of the applicant;
C.
The capacity of the rights-of-way to accommodate the applicant's utility facilities;
D.
The capacity of the rights-of-way to accommodate additional utility facilities if the application is granted;
E.
The damage or disruption, if any, to public or private facilities, improvements, services, travel or landscaping if the application is granted, giving consideration to an applicant's willingness and ability to mitigate and/or repair same;
F.
The public interest in minimizing the cost and disruption of construction within the rights-of-way;
G.
The service that applicant will provide to the region;
H.
The effect, if any, on general public health, safety and welfare in the city's sole opinion if the application is granted;
I.
The availability of alternate routes or locations for the proposed utility facilities;
J.
Applicable federal, state and local laws, regulations, rules and policies; and
K.
Such other factors as may demonstrate that the grant to use the rights-of-way will serve the community interest.
If an existing grantee is required by the WUTC, or other applicable law, to provide service to anyone requesting it within the franchise area, the determination by the city to deny the application is not applicable, and the city shall grant a franchise upon reasonable and lawful terms and conditions that, in the judgment of the city, serve and protect the public interest. |
(Ord. 995 § 13 (Exh. B), 2015)
A.
No franchise shall be effective unless the city council has approved the grant of a franchise by ordinance and the applicant/grantee has accepted the terms and conditions of the franchise by written instrument, in a form acceptable to the city attorney, which shall be executed and filed with the city within 30 days of the effective date of the franchise ordinance.
In its acceptance, a grantee shall declare that it has carefully read the terms and conditions of this chapter and the franchise and accepts all of the terms and conditions of this chapter and the franchise and agrees to abide by same.
In accepting a franchise, a grantee shall indicate that it has relied upon its own investigation of all relevant facts, that it had the assistance of counsel, that it was not induced to accept a franchise, and that it accepts all reasonable risks related to the interpretation of the franchise.
B.
All franchises granted pursuant to this chapter shall contain substantially similar terms and conditions which, taken as a whole and considering relevant characteristics of the applicants, do not provide more or less favorable terms and conditions than those required of other grantees; provided that, notwithstanding the foregoing, nothing herein shall prevent the city from requiring terms and conditions that conform to standards, rules, orders, design guidelines and regulations that are issued, promulgated or made pursuant to the provisions of this chapter or other lawful authority, and which are applicable to grantee.
C.
A franchise issued pursuant to the provisions of this chapter shall be deemed to constitute a contract between a grantee and the city. In the event of a conflict between the provisions of this chapter and a franchise issued pursuant hereto, the provisions of this chapter shall govern unless the franchise clearly states the parties' intent to have the provisions of the franchise control over the provisions of this chapter. Each party shall be deemed to have contractually committed itself to comply with the terms, conditions and provisions of the franchise granted, and a grantee shall further comply with all written standards, rules, orders, design guidelines and regulations issued, promulgated or made pursuant to the provisions of this chapter or other lawful authority and which are applicable to grantee.
(Ord. 995 § 13 (Exh. B), 2015)
A.
Application of Chapter 15.72 YMC. The provisions of Chapter 15.72 YMC, as now or may hereafter be amended, are hereby made applicable to all utility operators.
For purposes of this chapter, any reference therein to telecommunications or cable facilities shall mean and refer to utility facilities, and any reference therein to grantee shall mean and refer a grantee of a utility franchise as provided under this chapter.
B.
Conflict. In the event of a conflict between a requirement or condition of this chapter and a requirement or condition under Chapter 15.72 YMC, such requirement or condition of this chapter shall control to the extent of the conflict, except to the extent such requirement or condition is controlled by state or federal law or regulation, in which case the state or federal law or regulation shall control to the extent of the conflict.
C.
Franchise May Govern. In the event of a conflict between the provisions of Chapter 15.72 YMC, as made applicable pursuant to the provisions of this section, and a franchise issued pursuant to this chapter, such provisions of Chapter 15.72 YMC shall govern unless the franchise clearly states the parties' intent to have the provisions of the franchise control over the provisions of Chapter 15.72 YMC.
(Ord. 995 § 13 (Exh. B), 2015)
No franchise granted hereunder shall confer any exclusive right, privilege or franchise to occupy or use the rights-of-way for delivery of utility services or any other purposes.
(Ord. 995 § 13 (Exh. B), 2015)
A.
No franchise granted hereunder shall convey any right, title or interest in the rights-of-way but shall be deemed a franchise only to use and occupy the rights-of-way for the limited purposes and term stated in the grant.
B.
No franchise granted hereunder shall authorize or excuse a grantee from securing such further easements, leases, permits or other approvals as may be required to lawfully occupy and use rights-of-way.
C.
No franchise granted hereunder shall be construed as any warranty of title.
(Ord. 995 § 13 (Exh. B), 2015)
Unless otherwise specified in a franchise agreement, a franchise granted hereunder shall be valid for a term of not more than 10 years.
(Ord. 995 § 13 (Exh. B), 2015)
A franchise granted hereunder may be limited to the specific geographic area of the city to be served by the grantee, and the specific rights-of-way and portions thereof, as may be identified in the franchise agreement.
(Ord. 995 § 13 (Exh. B), 2015)
All grantees are required to obtain permits and pay all fees as may be lawfully required by the city; provided, however, that nothing in this chapter shall prohibit the city and a grantee from agreeing to alternative plan review, permit and construction procedures in a franchise agreement; and further provided, that such alternative procedures provide substantially equivalent safeguards for responsible construction practices.
(Ord. 995 § 13 (Exh. B), 2015)
A.
The grantee shall apply for an amendment to an existing franchise when a grantee desires to extend its franchise area or to locate its utility facilities in rights-of-way which are not included in a franchise previously granted hereunder or when it desires to offer services beyond those authorized in the franchise.
All amendments shall be approved by ordinance of the city council.
B.
It shall not be a violation of this chapter for the grantee, upon request or order of the city, to locate or relocate its utility facilities in rights-of-way to a portion of the right-of-way not included in the franchise area.
(Ord. 995 § 13 (Exh. B), 2015)
A grantee that desires to renew its franchise hereunder shall, not more than 180 days or less than 120 days before expiration of the current franchise, file an application with the city for renewal of its franchise which shall include the following information:
B.
Any other information reasonably required by the city and related to the grantee's use of and operation within the right-of-way.
(Ord. 995 § 13 (Exh. B), 2015)
Within 120 days after receiving a complete application hereunder for renewal, the council 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 YMC § 15.86.060 shall apply when determining whether to grant or deny the application, and may further consider whether the applicant has substantially complied with the material terms of the existing franchise and with applicable law, whether the applicant's construction, installation, operation or maintenance practices for the utility system are or have been conducted in an unsafe or dangerous manner, and whether the applicant has the ability to provide the services, facilities and equipment as set forth in the application.
The grant of renewal shall be by ordinance of the city council.
(Ord. 995 § 13 (Exh. B), 2015)
No franchise shall be renewed until any ongoing violations or defaults in the grantee's obligations under the franchise agreement, the requirements of this chapter, and all applicable laws, statutes, codes, ordinances, rules and regulations have been cured, or a plan detailing the corrective action to be taken by the grantee has been approved by the administrator. Failure to comply with the terms of an approved plan shall be grounds for nonrenewal or immediate revocation of the franchise.
(Ord. 995 § 13 (Exh. B), 2015)
The failure of the city to enforce any provision of this chapter on any occasion shall not operate as a waiver or estoppel of the right to enforce any provision of this chapter on any other occasion, nor shall the failure to enforce any prior ordinance affecting utility operators or utility systems act as a waiver or estoppel against application of this chapter any other provision of applicable law.
(Ord. 995 § 13 (Exh. B), 2015)
A grantee shall, at all times during the term of a franchise, be subject to all lawful exercise of the police power by the city and to such lawful regulations as the city shall hereafter enact. A grantee shall construct, operate and utility facilities or other improvements in full compliance with all other applicable rules and regulations now in effect or hereafter adopted by the United States, the state of Washington, the city or any agency of said governments with jurisdiction over said activities.
(Ord. 995 § 13 (Exh. B), 2015)
B.
Termination or Revocation. In addition to the civil penalties set forth in this section, violation of any provision of this chapter or any franchise issued pursuant thereto may also result in the revocation and termination of any such franchise.
C.
Other Remedies. Notwithstanding any other provision in this chapter, the city may seek legal or equitable relief to enjoin any acts or practices and abate any condition which constitutes or will constitute a violation of the applicable provisions of this chapter or any franchise issued pursuant thereto when civil or criminal penalties are inadequate to effect compliance.
(Ord. 995 § 13 (Exh. B), 2015)