All grantees, before commencing any construction in the rights-of-way, shall comply with all requirements of this article.
(Ord. 695 § 2, 2019)
No grantee may locate or maintain its facilities so as to unreasonably interfere with the use of the rights-of-way by the town, by the general public or other persons, or other persons authorized to use or be present in or upon the rights-of-way. All such facilities shall be moved by and at the expense of the grantee, temporarily or permanently, as determined by the town.
(Ord. 695 § 2, 2019)
No grantee or any person acting on a grantee's behalf shall take any action or permit any action to be done which may impair or damage any rights-of-way, including specifically town property, real or personal, or rights-of-way, or other property located in, on or adjacent thereto except in accordance with this chapter.
(Ord. 695 § 2, 2019)
Unless otherwise provided in a franchise agreement, no grantee, or any person acting on the grantee's behalf, shall commence any nonemergency work in or about rights-of-way. Any private property owner whose property will be affected by a grantee's work shall be afforded 10 working days' advance written notice of such work.
(Ord. 695 § 2, 2019)
In the event of an emergency or an emergency repair necessary to protect the public, restore service or mitigate further damage to the system, a grantee may commence such repair and emergency response work as required under the circumstances; provided, the grantee shall notify the town representative as promptly as possible, before such repair or emergency work or as soon thereafter as possible if advance notice is not practicable.
(Ord. 695 § 2, 2019)
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. 695 § 2, 2019)
A.
The town may require grantee to protect, support, temporarily disconnect, relocate, and remove its facilities within the right-of-way when reasonably necessary for construction, alteration, repair, or improvement of the right-of-way for purposes of and for public welfare, health, or safety. These projects may include, but are not limited to, improving the rights-of-way for traffic conditions, dedications of new rights-of-way and the establishment and improvement thereof, widening and improvement of existing rights-of-way, street vacations, freeway construction, change or establishment of street grade, or the construction of any public improvement or structure by any governmental agency acting in a governmental capacity or as otherwise necessary for the operations of the town or other governmental entity, regardless of the type of entity (public or private) performing the project.
B.
The town shall notify the grantee as soon as practicable of the need to relocate pursuant to subsection A of this section and shall specify the date by which the relocation shall be completed. The town shall consult with the grantee on the construction schedule. The grantee shall complete the relocation by the date specified by the town, unless a later date is set for completion pursuant to RCW 35.99.060(2), or by mutual agreement of the town and the grantee.
C.
Except as otherwise provided by law, the costs and expenses associated with relocations or disconnections ordered pursuant to subsection A of this section shall be borne by grantee; provided, however, grantee shall not be limited in its ability to seek reimbursement for relocation costs when permitted by RCW 35.99.060.
D.
The town may require the relocation of grantee's facilities at grantee's expense in the event of an unforeseen emergency that creates an immediate threat to the public safety, health or welfare.
(Ord. 695 § 2, 2019)
If a grantee is required to relocate, change, or alter the facilities constructed, operated and/or maintained hereunder and fails to do so, the town may cause such to occur.
(Ord. 695 § 2, 2019)
The town retains the right and privilege to cut or move any facilities located within the rights-of-way as the town may determine to be necessary, appropriate, or useful in response to any public health or safety emergency.
(Ord. 695 § 2, 2019)
Unless directly and proximately caused by the gross negligence or malicious acts of the town, the town shall not be liable for any damage to or loss of any facility within rights-of-way as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling, or work of any kind in the rights-of-way by or on behalf of the town.
(Ord. 695 § 2, 2019)
Within 30 days following written notice from the town representative, any grantee, service provider, or other person that owns, controls, or maintains any unauthorized system, facility, or related appurtenances within the rights-of-way shall, at its own expense, remove such facilities or appurtenances from the rights-of-way. If such grantee fails to remove such facilities or appurtenances, the town may cause the removal and charge the grantee for the costs incurred. A facility or system is unauthorized and subject to removal in the following circumstances:
A.
Upon expiration or termination of the grantee's franchise;
B.
Upon abandonment of a facility within the rights-of-way;
C.
If the system or facility was constructed or installed without the prior grant of a franchise;
D.
If the system or facility was constructed or installed without the prior issuance of a required utility right-of-way permit;
E.
If the system or facility was constructed or installed at a location not permitted by the grantee's franchise;
F.
Any such other reasonable circumstances deemed necessary by the town representative.
(Ord. 695 § 2, 2019)
Restoration shall comply with the following requirements:
A.
When a grantee, or any person acting on its behalf, does any work in or affecting any rights-of-way, or any other property, it shall, at its own expense, promptly remove any obstructions therefrom and restore such ways or property to the same condition which existed before the work was undertaken.
B.
If weather or other conditions do not permit the complete restoration required hereunder, the grantee shall temporarily restore the affected rights-of-way or other property. Such temporary restoration shall be at the grantee's sole expense and the grantee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration.
C.
A grantee or other person acting on its behalf shall use suitable barricades, flags, flagmen, lights, flares and other measures as required for the safety of all members of the general public and to prevent injury or damage to any person, vehicle or property by reason of such work in or affecting rights-of-way or any other property.
D.
All restoration shall comply with the town's construction and design standards.
(Ord. 695 § 2, 2019)
Each grantee shall provide the town with an accurate as-built map or maps certifying the location of all telecommunications facilities within the town and particularly within rights-of-way. Each grantee shall provide updated as-built maps annually.
(Ord. 695 § 2, 2019)
Within 30 days of a written request from the town representative, each grantee shall furnish the town representative with information sufficient to demonstrate that:
A.
The grantee has complied with all requirements of this chapter;
B.
All fees due the town in connection with the services and facilities provided by the grantee have been properly collected and paid by the grantee;
C.
All books, records, maps and other documents maintained by the grantee with respect to its facilities within rights-of-way shall be made available for inspection by the town representative.
(Ord. 695 § 2, 2019)
As consideration for the issuance of a franchise, the franchise shall include an insurance provision substantially conforming to the following:
Each grantee shall secure and maintain the following liability insurance policies insuring both the grantee and the town as an additional insured against claims for injuries to persons, death, or damages to property which may arise from or in connection with the exercise of the rights, privileges, and authority granted to the grantee:
A.
Comprehensive general liability insurance, written on an occurrence basis, with limits not less than:
B.
Automobile liability for owned, non-owned, and hired vehicles with a combined single limit of $2,000,000 for each accident.
C.
Worker's compensation within statutory limits and employer's liability insurance with limits of not less than $1,000,000.
D.
Comprehensive form premises operations, explosions and collapse hazard, underground hazard and products completed hazard with limits of not less than $5,000,000.
E.
Excess umbrella liability policy with limits of no less than $5,000,000 per occurrence and in the aggregate.
F.
The liability insurance policies required by this section shall be maintained by the grantee throughout the term of the franchise, and such other period of time during which the grantee is operating without a franchise or is engaged in the removal of its telecommunications facilities. Failure to maintain such insurance shall be grounds for cancellation. The grantee shall provide an insurance certificate, together with an endorsement including the town, and its elected and appointed officers, officials, agents, employees, representatives, engineers, consultants, and volunteers as additional insureds, to the town prior to the commencement of any work or installation of any telecommunications facilities pursuant to said franchise. Payment of deductibles and self-insured retentions shall be the sole responsibility of the grantee. The insurance certificate required by this section shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. The grantee's insurance shall be primary and noncontributory insurance as respects the town, its elected and appointed officers, officials, employees, agents, representatives, engineers, consultants, and volunteers. Any insurance maintained by the town, its elected and appointed officers, officials, employees, consultants, agents, representatives, engineers, and volunteers shall be in excess of the grantee's insurance and shall not contribute with it. Receipt by the town of any certificate showing less coverage than required is not a waiver of grantee's obligations to fulfill the requirements. Grantee may utilize primary and excess liability insurance policies to satisfy the insurance policy limits required in this section. Grantee's excess liability insurance policy shall provide "follow form" coverage over its primary liability insurance policies.
G.
In addition to the coverage requirements set forth in this section, the grantee must notify the town of any cancellation or reduction in said coverage. Within 30 days after receipt by the town of said notice, and in no event later than 15 days prior to said cancellation or intent not to renew, the grantee shall obtain and furnish to the town a replacement insurance certificate meeting the requirements of this section.
H.
Grantee's maintenance of insurance as required by this section shall not be construed to limit the liability of grantee to the coverage provided by such insurance, or otherwise limit the town's recourse to any remedy available at law or equity. Further, grantee's maintenance of insurance policies required by this franchise shall not be construed to excuse unfaithful performance by grantee.
I.
Upon approval by the town representative and based on conditions set by the town in the franchise, the grantee may self-insure under the same terms as required by this section. Further, the town representative may modify these insurance requirements as he/she deems necessary to comply with the town's risk management policies or as otherwise approved by the town's risk manager; provided, that any such changes provide adequate protection for the town.
(Ord. 695 § 2, 2019)
As consideration for the issuance of a franchise, the franchise shall include an indemnity clause substantially conforming to the following:
A.
Grantee hereby releases, covenants not to bring suit and agrees to indemnify, defend, and hold harmless the town, its elected and appointed officers, officials, employees, agents, engineers, consultants, volunteers, and representatives from any and all claims, costs, judgments, awards, or liability to any person arising from injury, sickness, or death of any person or damage to property:
1.
For which the negligent acts or omissions of grantee, its agents, servants, officers or employees in performing the activities authorized are the proximate cause;
2.
By virtue of grantee's exercise of the rights granted herein;
3.
By virtue of the town's permitting grantee's use of the rights-of-way or other town property;
4.
Based upon the town's inspection or lack of inspection of work performed by grantee, its agents and servants, officers or employees in connection with work authorized on a telecommunications facility, rights-of-way or other town property over which the town has control pursuant to any franchise issued;
5.
Arising as a result of the negligent acts or omissions of grantee, its agents, servants, officers or employees in barricading, instituting trench safety systems or providing other adequate warnings of any excavation, construction, or work upon a telecommunications facility, in any rights-of-way in performance of work or services;
6.
Based upon radio frequency emissions or radiation emitted from grantee's equipment located upon a telecommunications facility, regardless of whether grantee's equipment complies with applicable federal statutes and/or FCC regulations related thereto.
B.
Grantee's indemnification obligations pursuant to subsection A of this section shall include assuming potential liability for actions brought against the town by grantee's own employees and the employees of grantee's agents, representatives, contractors, and subcontractors even though grantee might be immune under RCW Title 51 from direct suit brought by such an employee. It is expressly agreed and understood that this assumption of potential liability for actions brought against the town by the aforementioned employees is with respect to claims against the town arising by virtue of grantee's exercise of its rights. In addition to the indemnification obligations throughout this section, the obligations of grantee under this subsection shall be mutually negotiated between the parties. Grantee shall acknowledge that the town would not enter into an agreement without grantee's waiver thereof. To the extent required to provide this indemnification and this indemnification only, grantee will waive its immunity under RCW Title 51 as provided in RCW 4.24.115.
C.
Inspection or acceptance by the town of any work performed by grantee at the time of completion of construction shall not be grounds for avoidance of any of these covenants of indemnification. Provided that grantee has been given prompt written notice by the town of any such claim, said indemnification obligations shall also extend to claims which are not reduced to a suit and any claims which may be compromised prior to the culmination of any litigation or the institution of any litigation. The town has the right to defend or participate in the defense of any such claim and has the right to approve any settlement or other compromise of any such claim.
D.
In the event that grantee refuses the tender of defense in any suit or any claim, said tender having been made pursuant to this section, and said refusal is subsequently determined by a court having jurisdiction (or such other tribunal that the parties agree to decide the matter), to have been a wrongful refusal on the part of grantee, then grantee shall pay all of the town's costs for defense of the action, including all reasonable expert witness fees, reasonable attorneys' fees, the reasonable costs of the town, and reasonable attorneys' fees of recovering under this subsection.
E.
The obligations of grantee under the indemnification provisions of this section shall apply regardless of whether liability for damages arising out of bodily injury to persons or damages to property were caused or contributed to by the concurrent negligence of the town, its officers, agents, employees or contractors. The provisions of this section, however, are not to be construed to require the grantee to hold harmless, defend, or indemnify the town as to any claim, demand, suit, or action which arises out of the sole negligence of the town. In the event that a court of competent jurisdiction determines that a franchise is subject to the provisions of RCW 4.24.115, the parties agree that the indemnity provisions hereunder shall be deemed amended to provide that the grantee's obligation to indemnify the town hereunder shall extend only to the extent of grantee's negligence.
F.
Notwithstanding any other provisions of this section, grantee assumes the risk of damage to its telecommunications facilities located in the rights-of-way and upon town property from activities conducted by the town, its officers, agents, employees and contractors, except to the extent any such damage or destruction is caused by or arises from the sole negligence or willful or malicious action on the part of the town, its officers, agents, employees or contractors. Grantee releases and waives any and all such claims against the town, its officers, agents, employees and contractors. In no event shall the town be responsible for indirect, special, consequential, or punitive damages or losses, including but not limited to lost income or business interruption, whether or not a party has been advised of the possibility of such damage and notwithstanding the theory of liability in which an action may be brought. Grantee further agrees to indemnify, hold harmless and defend the town against any claims for damages, including, but not limited to, business interruption damages and lost profits, brought by or under users of grantee's telecommunications facilities as the result of any interruption of service due to damage or destruction of grantee's telecommunications facilities caused by or arising out of activities conducted by the town, its officers, agents, employees or contractors.
G.
These indemnification requirements shall survive the expiration, revocation, or termination of a franchise issued thereunder.
(Ord. 695 § 2, 2019)
Before a franchise granted pursuant to this chapter is effective, and as necessary thereafter, the grantee shall provide and deposit such monies, bonds, letters of credit or other instruments in form and substance acceptable to the town as may be required by the town of Yarrow Point, or by an applicable franchise or other applicable code, ordinance, resolution, or rules and regulations of the town.
(Ord. 695 § 2, 2019)
A.
Prior to issuance of a franchise pursuant to this chapter, each grantee shall establish a permanent security fund with the town by depositing the amount of $50,000, or such other amount as deemed necessary by the town representative, with the town in cash, bond, or an unconditional letter of credit, based upon both operating history in rights-of-way, other ways, and town property and the cost of removal of the grantee's facilities, which fund shall be maintained at the sole expense of the grantee so long as any of the grantee's telecommunications facilities are located within the rights-of-way.
B.
The fund shall serve as security for the full and complete performance of this chapter and the franchise including any costs, expenses, damages, or loss the town pays or incurs, including civil penalties, because of any failure attributable to the grantee to comply with the codes, ordinances, rules, regulations, or permits of the town applicable to the construction, maintenance, repair, or removal of telecommunications facilities in the rights-of-way or upon town property.
C.
The town and the grantee shall agree upon and specify in the franchise certain amounts which represent both parties' best estimate of the damages for failure to comply with the franchise issued thereunder. The liquidated damages provided in the franchise shall be the exclusive monetary remedy for the named breaches. Neither the right to liquidated damages nor the payment of liquidated damages shall bar or otherwise limit the right of the town in a proper case to:
1.
Obtain judicial enforcement of a grantee's obligations by means of specific performance, injunctive relief, mandamus, or other remedies at law or in equity;
2.
Consider any substantial violation or breach as grounds for forfeiture and termination of a franchise issued thereunder; and
3.
Consider any violation or breach as grounds for nonrenewal or nonextension of a franchise or issuance of a new franchise.
D.
Before any sums are withdrawn from the security fund, the town shall give written notice to the grantee:
1.
Describing the act, default or failure to be remedied, or the damages, costs, or expenses which the town has incurred by reason of grantee's act or default regarding the installation, maintenance, repair, or removal of telecommunications facilities in the rights-of-way, other ways, or upon town property or in connection with restoration of the foregoing;
2.
Providing a reasonable opportunity for grantee to first remedy the existing or ongoing default or failure regarding the installation, maintenance, repair, or removal of telecommunications facilities in the rights-of-way or in connection with the restoration of the foregoing, if applicable;
3.
Providing a reasonable opportunity for grantee to pay any monies due the town before the town withdraw s the amount thereof from the security fund, if applicable; and
4.
That the grantee will be given an opportunity to review the act, default or failure described in the notice with the town or his or her designee.
E.
Grantees shall replenish the security fund within 14 days after written notice from the town that there is a deficiency in the amount of the fund.
F.
Upon termination or expiration of a franchise all funds remaining in the security fund shall be returned to the grantee within 30 days after removal of grantee's telecommunications facilities within the rights-of-way.
(Ord. 695 § 2, 2019)
A.
A grantee performing work in the rights-of-way must provide a performance bond written by a corporate surety acceptable to the town equal to at least 125 percent of the estimated cost of completing or removing the facilities and restoring the rights-of-way or town property to its preconstruction condition. The town planner may, at his/her discretion, waive the bonding requirement for specific projects. This bond may be placed for the entirety of the grantee's projects; provided, that grantee is able to quantify the full estimated cost of its deployment of telecommunications facilities. If a grantee provides a bond on a per-project basis, such grantee is permitted to increase the bond for future projects, or if a project is complete, grantee may apply the bond to other projects in the rights-of-way. The purpose of this bond is to guarantee completion or removal of partially completed or nonconforming telecommunications facilities, and to fully restore the rights-of-way and town property to their preconstruction condition.
B.
If required by the town, a grantee shall furnish a two-year warranty bond, or other surety acceptable to the town, upon the completion of grantee's construction work, including any restoration work, within the rights-of-way. The warranty bond amount will be equal to 125 percent of the documented final cost of the construction and restoration work.
C.
The performance bond shall guarantee, to the satisfaction of the town:
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 town;
4.
Restoration of the rights-of-way and any other property affected by the construction;
5.
The submission of as-built drawings after completion of the work;
6.
Timely payment and satisfaction of all claims, demands or liens for labor, material, or services provided in connection with the work.
(Ord. 695 § 2, 2019)
All grantees are required to cooperate with the town and with each other.
A.
Each grantee shall meet with the town, other grantees and users of the rights-of-way annually or as determined by the town to schedule and coordinate construction in rights-of-way.
B.
All construction locations, activities, and schedules shall be coordinated, as ordered by the town representative to minimize public inconvenience, disruption, or damages.
(Ord. 695 § 2, 2019)
A.
A franchise may not be directly or indirectly assigned, transferred, or disposed of by sale, lease, merger, consolidation, or other act of grantee, by operation of law or otherwise, unless prompt written notice is provided to the town within 60 days of the assignment. In the case of transfer or assignment as security by mortgage or other security instrument in whole or in part to secure indebtedness, such notice shall not be required unless and until the secured party elects to realize upon the collateral. For purposes of this section, no assignment or transfer of a franchise shall be deemed to occur based on the public trading of grantee's stock; provided, however, any tender offer, merger, or similar transaction resulting in a change of control shall be subject to the provisions of a franchise.
B.
Any transactions which singularly or collectively result in a change of 50 percent or more of the ownership or working control (for example, management of grantee or its facilities) of the grantee or of the ownership or working control of the grantee's facilities within the town, or of the ownership or working control having ownership or working control of the grantee or of the grantee's facilities within the town, or of control of the capacity or bandwidth of the grantee's facilities within the town, shall be considered an assignment or transfer requiring notice to the town pursuant to a franchise. Such transactions between affiliated entities are not exempt from notice requirements. A grantee shall notify the town of any proposed change in, or transfer of, or acquisition by any other party of control of a grantee within 60 days following the closing of the transaction.
C.
The parties acknowledge that equipment deployed by grantee pursuant to a franchise may be owned and/or remotely operated by third-party wireless carrier customer ("carriers") and installed and maintained by grantee pursuant to existing agreements between grantee and a carrier. Such equipment shall be treated as grantee's equipment for all purposes under such franchise. A carrier's ownership and/or operation of such equipment shall not constitute an assignment under the franchise; provided, that grantee shall not actually or purport to sell, assign, encumber, pledge, or otherwise transfer any part of its interest in the franchise area to a carrier, or otherwise permit any portion of the franchise area to be occupied by anyone other than itself. Grantee shall remain solely responsible and liable for the performance of all obligations under the franchise with respect to any equipment owned and/or remotely operated by a carrier.
(Ord. 695 § 2, 2019)
A franchise granted by the town 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 of the grantee;
C.
Unauthorized assignment of a franchise;
D.
Unauthorized sale, assignment, or transfer of the grantee's franchise assets or an interest therein;
E.
Misrepresentation or lack of candor by or on behalf of a grantee in any application to the town;
F.
Abandonment of facilities in the rights-of-way;
G.
Failure to relocate or remove facilities as required in this chapter;
H.
Failure to pay taxes, compensation, fees or costs when and as due the town;
I.
Insolvency or bankruptcy of the grantee;
J.
Violation of a material provision of this chapter;
K.
Violation of a material term of a franchise.
(Ord. 695 § 2, 2019)
In the event that the town representative believes that grounds exist for revocation of a franchise, the grantee shall be given written notice of the apparent violation or noncompliance, be provided a short and concise statement of the nature and general facts of the violation or noncompliance, and be given a reasonable period of time not exceeding 30 days to furnish evidence that:
A.
Corrective action has been, or is being, actively and expeditiously pursued to remedy the violation or noncompliance.
B.
Rebuts the alleged violation or noncompliance.
C.
It would be in the public interest to impose some monetary damages, penalty, or sanction less than revocation.
(Ord. 695 § 2, 2019)
In the event that a grantee fails to provide evidence reasonably satisfactory, as provided hereunder, to the town representative, he/she shall refer the apparent violation or noncompliance to the town council. The town council shall provide the grantee with notice and a reasonable opportunity to be heard concerning the matter.
(Ord. 695 § 2, 2019)
If persuaded that the grantee has violated or failed to comply with a material provision of this chapter or of a franchise or applicable codes, ordinances, resolutions, or statutes, the town council shall determine whether to revoke the franchise, and issue a written decision relating thereto, or to establish some monetary damages, penalty, 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. 695 § 2, 2019)