ORD 2002-36 TELECOMMUNICATIONS PUBLIC R-O-W
,
.
ORDINANCE NO. 2002-36
An Ordinance of the City of Bainbridge IsI nd, Washington
regulating the occupancy and use of the City's public rights of
way by Telecommunications Systems, Private Communications
System, Wireless Communications System and Resellers;
prescribing minimum terms and conditions or and on the
construction, maintenance and repair of such s stems; adding a
ne\\t~ Title 19 to the Bainbridge Island Municipal ode.
WHEREAS, the City has the authority to regulate a control the use of the City's
rights-of-way by third parties, consistent with state and federal aw; and
WHEREAS, the City Council desires to add a ne title to the Bainbridge Island
Municipal Code to regulate the occupancy and use of ~ubli rights-of-way in the City by
telecommunications systems, private communications syst ms, wireless communications
systems and resellers, and prescribing minimum terms d conditions for and on the
construction, maintenance, operation .and repair of such syst s in the public rights-of-way;
now, therefore
THE CITY COUNCIL OF THE CITY OF BAINBRI E ISLAND, WASHINGTON,
DO ORDAIN AS FOLLOWS:
Section 1. A new Title 19 is added to the Bainbridge Islan Municipal Code as follows:
Chapter 19.02
GENERAL
Sections
19.02.010 Purpose.
19.82.010 Policy guidelines.
19.02.038 DefIDitions.
19.02.048 Master Permit Required. I
19.02.038 GeueraI Conditions Upon Use of Publi Rights-of-Way.
19.02.060 Taxes and Fees.
19.82.078 ProtectiOB of the City and Residents.
19.02.080 E.forcement aDd Remedies.
19.02.010 Purpose. The purposes of this Title are to:
A. Establish a local policy concerning teleconununica ions systems, and private
communication systems for use of the Public Rights-of Way;
B. Establish a policy that promotes availability of high-quality and diverse
telecommunications services to City residents, busin ses, the City, and other
public institutions; promotes the availability of divers , multimedia information
resources to the community; provides for the develop ent of a communications
Ordinance 2002-36 / Telecommunications
Page I of 27
infrastructure that provides opportunities for more open government, enhancing
educational opportunities throughout the community, pr viding public access to
the communications infrastructure, and building a str ger community; while
ensuring that the City has the authority to act to protec the public, safety, and
welfare in the face of a rapidly-changing industry th t is placing increasing
demand on public resources;
C. Establish clear and nondiscriminatory local guideli es, standards and time
frames for the exercise of local authority with respect to the regulation of the
use of Public Rights-of-Way by telecommunicati ns operators, . private
communication operators, and Resellers, and their espective facilities and
licenses;
D. Promote competition in communications;
E. Minimize unnecessary local regulation of providers nd services;
F. Encourage the provision of advanced and competi .ve telecommunications,
on the widest possible basis to the businesses, instituti ns and residents of the
City;
G. Permit and manage reasonable access to the Publ c Rights-of-Way of the
City for communications purposes on a competitively n utral basis, to the extent
required by law;
H. Conserve the limited physical capacity of the Publ. Rights-of-Way held in
public trust by the City;
I. Assure that the City's current and ongoing costs 0 granting and regulating
private access to and use of the Public Rights-of- W y are fully paid by the
persons seeking such access and causing such costs;
J. Secure fair and reasonable compensation to the Ci and the residents of the
City, in a non-discriminatory manner, for permitting rivate use of the Public
Rights-of-Way;
K. To encourage economic development while prese ing aesthetic and other
community values and preventing proliferation of abov ground facilities;
L. Assure that all persons providing telecommunicat ons, services within the
City comply with the ordinances, rules and regulations f the City;
M. Ensure the ability of the City to obtain sufficient i formation from persons
subject to its jurisdiction to enable effective decisions regarding their access to
City rights-of-way and effective management ,of activi in the rights-of-way;
N. Assure that the City can continue to fairly and resp nsibly protect the public
health, safety and welfare;
O. Enable the City to discharge its public trust consis nt with rapidly evolving
federal and state regulatory policies, industry comp tition and technological
development; and
P. Reserve to the City and provide for the fullest exercise possible of the
authority and discretion of the City to require that: 1) facilities are installed
and maintained within the public rights-of-way in s ch manner and at such
points so as not to inconvenience the public use of the ublic rights-of-way or to
adversely affect the public, safety and welfare; (2) 11 non-city users of the
rights-of-way shall be required to reimburse and hold harmless the City for the
Ordinance 2002-36 / Telecommunications
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actual costs incurred by the City by reason of the cons ction or presence in the
public rights-of-way of the Facilities of such other users.
19.02.020 Policy guidelines. The administration of the Title shall be governed
by the following telecommunications policy guidelines.
A. The City supports efforts to establish an open, co petitive marketplace for
telecommunications services. The City promotes an encourages competrtion
for voice, data, video, and video programming service that make the latest and
best technology available and keep service prices affordable for all City
residents and businesses. An integral component of thi open marketplace is the
consistent application of regulations to all telecommuni ations providers and the
preservation of local authority over matters of loea.1 im act.
B. The following policy guidelines express the co · tInent of the City to
support telecommunications services and to manage its ights-of-way pro actively
while balancing the interests and needs of the communi
1. The City will manage access to the blic Rights-of-Way for
telecommunications purposes in a non-discriminatory, ompetitively neutral and
non-exclusive way to the extent required under applica Ie law and, to the extent
allowed under applicable law, to receive fair compens ion. The public interest
will be protected by collecting associated fees, taxes, dministrative costs, and
construction costs for use of the rights-of-way.
2. Telecommunications Master Permits will be managed to preserve the
integrity of the City's infrastructure, ensure efficient se of City property and
ensure compliance with City ordinances, rules and reg ations ·
3. In order to effectively manage and regulate. the use of public rights-
of-way by private entities in the best interests of the ity and its citizens it is
necessary for the City to reserve and exercise all legis ative, administrative and
discretionary authority it may have to the full extent llowed or not prohibited
by law and nothing in this Title shalf be construed to iminish or in any way to
limit the discretionary, administrative or legislative au hority of the City and its
officials as respects the management and use of the C ty's public rights-of-way
or in respect to the granting, delaying, or denying y Master Permit, ROW
Permit or License.
19.0Z.030 Defiaitions. For the purposes of this Ti Ie, the following terms,
phrases, words, and abbreviations shall have the me gs given herein, unless
otherwise expressly stated. When not inconsistent wi the context, words used
in the present tense include the future tense; words in e plural number include
the singular number; and words in the singular n mber include the plural
number; and the masculine gender includes the fem. · e gender. The words
"shall" and "will" are mandatory, and "may" is pe ssive. Unless otherwise
expressly stated, words not defined in this Title sh I be construed consistent
with Title 47 of the United States Code, and, if ot defmed therein, their
common and ordinary meaning. References to gove nmental entities (whether
persons or entities) refer to those entities or their s ccessors in authority. If
Ordinance 2002-36 / Telecommunications
Page 3 of 27
4.
specific provisions of law referred to herein are renumb red, then the reference
shall be read to refer to the renumbered provision. References to laws,
ordinances or regulations shall be interpreted broadl to cover government
actions, however nominated, and include laws, 'ordinan es and regulations now
in force or hereafter enacted or amended.
A. "Administrator" means the Master Permit Adminis ator or designee.
B. "Afftliate" means a person that (directly or indirec y) owns or controls, is
owned or controlled by, or is under common ownership r control with, another
person.
c. "Application Fee" means the charge specified in Section 19.04.020 and
designed to recover the City's actual costs in processin applications for Master
Permits, Use Permits or Licenses, including applications for transfer thereof.
D. "Cable Television Service" means the one-way tra smission to subscribers
of video programming and other programming rvice and subscriber
interaction, if any, that is required for the selectio or use of the video
programming or other programming service.
E. "City~ means the City of Bainbridge Island and all departments, divisions,
and agencies thereof.
F. "CoDlDlunications facility" means a device whic alone or as part of an
aggregation of devices is capable of transmitting signals om place to place.
G. "Communications system" refers to a telecommuni ations system.
H. "Construction, operation or repair" and similar ~ rmulations of that term
means the named actions interpreted broadly, enco passing, among other
things, installation, extension, maintenance, replac ment of components,
relocation, undergrounding, grading, site preparation, djusting, testing, make-
ready and excavation.
I. "Grantee" refers to a Person holding a Master Pe it.
J. "Gross Revenues" means any and all revenue, of y kind, nature or form.
K. "License" refers to the legal authorization, te~ nable at will to use a
particular, discrete, and limited portion of the public ri hts-of-way to construct,
operate, or repair a Communications Facility or a rivate Communications
System. The term License shall not mean,or include.
1. any other permit or authorization requir the privilege of
transacting and carrying on a business within the required by the
ordinances and laws of the City;
2. any permit, agreement, or authorization req ired in connection with
operatio~s on public streets or property, including by ay of example and not
limitation, street cut permits;
3. any permits or agreements for occupying yother property of the
City or private entities to which access is not specifical granted by the License
including, without limitation, permits and agreements r placing devices on or
in poles, conduits, other structures, or railroad ease nts, whether owned by
the City or a private entity; or
Ordinance 2002-36 / Telecommunications
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t.
4. the right to place devices in the right of way such as pay telephones,
for end user use in originating and terminating transmis ions.
L. "Master Permit" refers to the authorization gr ted by the City to an
Operator of a Telecommunications System, under this itle giving the Operator
the non-exclusive right to occupy the space, or use facilities upon, across,
beneath, or over any Public Right-of-Way in the Ci , to provide a specified
service within a Master Permit area. Such Master Pe it shall not include or 'be
a substitute for:
1. any other permit or authorization requir d for the privilege of
transacting and carrying on a business within the City required by the
ordinances and laws of the City;
2. any permit, agreement or authorization req ired in connection with
operations on or in public streets .or property, includin by way of example and
not limitation, street cut permits;
3. any permits or agreements for occupying yother property of the
City or private entities to which access is not specifical y granted by the Master
Permit including, without limitation, permits and agree ents for placing devices
on or in poles, conduits, other structures, or railroad e sements, whether owned
by the City, or a private entity; or
4. the right to place devices in the right-or-way such as pay telephones,
for end user use in terminating or originating transmiss. ns.
By way of example, and without limiting the foregoi , this Title shall not be
read to diminish or in any way affect the authority of e City to control the use
of the City's real estate, fixtures or personal property Therefore, any Person
who desires to use such property must obtain dditional approvals, or
agreements for that purpose, as may be required by the City.
M. "Master Permit Area" means the area of the City that a Grantee is
authorized to serve by the terms of its Master Permit 0 by operation of law ·
N. "Operator" when used with reference to a syste , refers to a Person (1)
who provides service over a Communications Syste and directly or through
one or more Affiliates owns a significant interest in nch facility; or (2) who
otherwise controls or is responsible for, through any arrangement, the
management and operation of such a facility. A Pe son that operates under
agreement a Telecommunications System or a specific portion of a
Telecommunications System to provide Telecommuni ations Services shall be
treated as an Operator for purposes of this Title.
o. "Overhead Facilities" refers to communications f cilities located above the
surface of the ground, including the underground sup orts and foundations for
such facilities.
P. "Person" include~ any individual, corporation, partnership, association,
Joint Stock Company, trust, or any other legal entity, t not the City.
Q. "Private Communications System" means a faci ity placed in whole or in
part in the Public Rights-of-Way for the provisio of communications in
connection with a Person's business, but not encomp ssing in any respect the
provision of Telecommunications Services.
Ordinance 2002-36 I Telecommunications
Page 5 of 27
R. "Private Communications System Owner" mean a Person that owns or
leases a Private Communications System.
S. "Public Rights-of-Way" mean land acquired or de icated for public roads
and streets which under applicable law the City has a thority to grant Master
Permits, ROW permits or licenses for use thereof or as regulatory authority
thereover. The Public Rights-of-Way may be more s cifically defined in the
Master Permit, ROW permit or license granting the right to use the Public
Rights-of - Way. For purposes of this Title, the term d es not include (1) state
highways, (2) land dedicated for roads, streets and high ays not opened and not
improved for motor vehicle use by the public; (3) s ctures such as, but not
limited to, poles and conduits located in the right-of- ay; (4) parks and open
space; (5) publicly owned shorelines or harbor areas; an (6) utility easements.
T. "ReseUer" refers to any Person who resells a Tele ommunications Service,
for which he makes a separate charge, provided ove a Telecommunications
System, where that Person does not own or lease the underlying
Telecommunications System used for the transmission.
U. "Telecommunications Service" means the tr mission for hire of
information in electronic or optical form, including, b t not limited to, voice,
video, or data, whether or not the transmission m dium is owned by the
provider itself. Telecommunications Service includes t lephone service but does
not include Cable Television Service or over-the-air br adcasts to the public-at-
large from facilities licensed by the Federal Commu ications Commission or
any successor thereto.
V. "Telecommunications System" means a tangible facility that is used to
provide one or more Telecommunications Services, any portion of which
occupies Public Rights-of-Way. The term Telecommu · cations System by way
of example, and not limitation, includes wires, eq ipment cabinets, guys,
conduit, radio transmitting towers, poles, other su porting structures, and
associated and appurtenant facilities used to tran mit telecommunications
signals. The term Telecommunications System includ all devices mounted on
light poles in the Public Rights-of-Way through w ich Telecommunications
Services are originated or terminated.
w. "Underground Facilities" refers to all utilities d communications and
cable facilities located under the surface of the ground, excluding the
underground foundations or supports for Overhead Fac lilies.
X. "Use Permit" means the authorization in whateve form whereby a city or
town may grant permission to a service provider to e ter and use the specified
right-of-way for the purpose of installing, maintainin , repairing, or removing
identified facilities.
Y. "Wireless Communication Services Facilities" eans those facilities that
the City has authorized to be placed in the public rig ts-of-way and which are
necessary for the provision of personal wireless ser ices. Personal wireless
services means commercial mobile services, unlicens d wireless services, arid
common carrier wireless exchange access services a defined by Federal law
and regulations.
Ordinance 2002-36 / Telecommunications
Page 6 of 27
19.02.048 Master Permit required.
A. Master Permit requirement. An Operator of a tel communications facility
must obtain a Master Permit prior to constructing a tel communications facility
or providing Telecommunications Services. The fact at a particular Master
Permitted Communications Facility may be used for m ltiple purposes does .,not
obviate the need to obtain a Master Permit for other p oses unless applicable
federal or state law prohibits the City from requiring such additional Master
Permit. No Master Permit shall become effective wit out the Grantee signing.
an acceptance of the Master Permit.
B. Exceptions. Subject to the requirements of applica Ie law, a Master Permit
requirement may be waived in whole or in part fo a Telecommunications
System where the City determines the use of the Pu ic Rights-of- W ay is de
minimus (i.e. uses only a short distance of street 0 occupies only a small
isolated area of a specific street). For such facilitie , the City may iss~e a
License. In addition, every Private Communications Sy tern Owner must obtain
a License. Every License shall include or be'read to i elude, as if stated there
in, a reservation of rights by the City to require the Lic nsee to obtain a Master
Permit if the City determines that the Licensees use of the public rights of way
has increased substantially and is no longer de minimus se.
C. Additional exceptions. Any Operator providi g Telecommunications
Service over an existing Telecommunication System in he City's Public Rights-
of-Way without having a Master Permit from the Ci authorizing such use at
the time this Title becomes effective shall apply for a Master Permit from the
City for such use of the Public Rights-of-Way; provide , that if the Operator has
obtained a franchise, petmit, license, or other auth rization from the City
allowing such use of the Public Right-of-Way, theOper tor may continue its use
of the Public Right-of-Way pursuant to such franchise, permit, license or other
authorization until the expiration or termination of such authority, at which time
the Operator shall apply for and obtain a Master Per it under this Title; and
further provided, that if an Operator submits evidenc satisfactory to the City
that it has an existing state-wide grant to occupy the blic Right-of-Way then
the requirement for obtaining a Master Permit will be uspended until there is a
final judicial decision resolving the issue or the City C unci! determines that the
best interests of the City will be served by not requirin the Operator to obtain a
Master Permit. The suspension of any Master Perm requirement under this
Section shall not constitute a waiver of any right of the City to require the
Operator to obtain in the future a Master Permit or to remove any or all of its
facilities in the Public Right-of-Way at any time up n its failure to obtain a
Master Permit. If an Operator fails to obtain a Mast r Permit and the Master
Permit requirement is suspended as provided in t is subsection, then the
Operator shall apply for and obtain a City ROW Perm t prior to constructing or
placing any wireline telecommunication facility in the blic Right-of-Way.
D. Nature of grant. Neither a Master Permit nor a License shall convey
equitable or legal title to the Public Rights-of- Way · he right granted is only
Ordinance 2002-36 / Telecommunications
Page 7 of27
the right to occupy those portions of the Public Rights-o -Way to which the City
has the right to grant access, for the purposes and the t e period stated in the
Master Permit or License, and, subject to the limitation in this Title, the right
may not be subdivided or subleased. A Master Permit, OW Permit or License
shall not grant a vested right for any facility to be loca ed or to remain at any
specific location in the Public Right-of-Way and an right, permission or
consent to occupy any location in the Public Right-of- ay shall be revocable
and terminable at the discretion of the City and the fac.lity therein removed at
the cost of the Operator in order to allow free and u encumbered use of the
Public Right-of-Way for public work or other public p rpose as may be-in the
best public or municipal interest as determined by the Ci
Every Master Permit shall be:
1. Deemed to include all of the provisions that are required to be in a
Master Permit under this Title, as if fully set forth in th Master Permit.
2. Deemed to provide for forfeiture under the c cumstances set forth in
the provisions of this Title and any Master Permit there nder; and
3. Construed to exclude ~e grant of any rights · any easement granted
for or in favor of any city or public utility facilities r operations, unless the
Master Permit or License shall expressly state otherwise.
No reference herein, or in any Master Permit, ROW Permit or License, to a
Public Right-of-Way shall be deemed to be a represent tion or guarantee by the
City that its interest or other right to control the se of such property is
sufficient to permit its use for such purposes, and a Master Permit shall be
deemed to grant no more than those rights which he City may have the
undisputed right and power to give.
19.02.050 General conditions upon use of Public Rig ts-of-Way.
A. ResponsibUity for costs. Except as expressly pro ided otherwise, any act
that a Communications System Operator, its contract rs or subcontractors are
required to perform under this Section shall be perfo ed at their cost. If a
Communications System Operator fails to perform w rk that it is required to
perform within the time provided for performance, e City may perform the
work and bill the Communications System Op ator therefore. The
Communications System Operator shall pay the amount billed within thirty (30)
days.
B. Construction Procedures and Placement of
Minimize Interference With Use of Public Rights-of- aYe
1. The construction, operation, and repair of ommunications facilities
are subject to the supervision of all of the authoriti s of the City that have
jurisdiction in such matters and shall be performed in ompliance with all laws,
ordinances, departmental rules and regulations and practices affecting such
system. By way of example, and not limitation, this i eludes zoning codes and
safety codes and current City standards, including th most current version of
the Standard Specifications for Road, Bridge and M nicipal Construction, as
prepared by the Washington State Department of Tr sportation (WSDOT) and
Ordinance 2002-36 / Telecommunications
Page 8 of 27
..
the Washington State Chapter of American Public Wor Association (APW A);
the most current version of the APW A Amendments to Division One, and the
most current version of the City of Bainbridge Island endments thereto. In
addition, the construction, operation, and repair shall be performed in a manner
consistent with high industry standards. Persons enga ed in the construction,
operation, or repair or communications facilities shall xercise reasonable care
in the performance of all their activities and shall e commonly accepted
methods and devices for preventing failures and accident that are likely to cause
damage, injury, or nuisance to the public or to property.
2. Construction, operation, or repair of a co llnications system shall
not commence until all required permits have been properly filed for and
obtained from the proper City officials and all require permits and associated
fees paid and bonds or other performance security pro ided. In any permit so
issued, the City may impose as a condition of the gra ting of the permit such
conditions and regulations as may be necessary to the m agement of the rights-
of-way, including, by way of example and not limitat on, for the purpose of
protecting any structures in the Public Rights-of- Way, Ii r the proper restoration
of such Public Rights-of-Way and structures, and for e protection of the City
and the public and the continuity of pedestrian and veh.cular traffic. A Master
Permit, License or ROW Permit or other applicable pro ision of the Bainbridge
Island Municipal Code may provide for the conditio s under which certain
emergency work may be undertaken prior to obtainin certain permits where
such work is necessary to immediately remedy an emer ency situation involving
an imminent danger to health, safety or property 0 to temporarily restore
communication system services which have been disrupted by storms,
earthquakes, riots or other unexpected accidents or enomenon. Provided,
however that. the communication system operator und aking such emergency
work shall be required (a) to give notice to the City of t e commencement of the
emergency work as quickly as practical, (b) to appl for the permits which
would otherwise be required for such work by the ne t business day from the
commencement of such work; and (c) to conform any ork performed prior to
the approval of the required permit and to carry out an other work in the area
involved in accordance with the requireme,nts of the pe it. Sub-contractors are
prohibited from liening public property or any facilit es placed in the public
right-of-way ·
3 . Operators of communications systems mus follow City-established
requirements for placement of facilities in Public Rig s-of-Way, including the
specific location of facilities in the Public Rights-of-Wa , and must in any event
install facilities in a manner that minimizes interfere ce with the use of the
Public Rights-of-Way by others, including others that may be installing
communications facilities. The City may require that acilities be installed at a
particular time, at a specific place, or in a particular anner as a condition of
access to a particular right-of-way; may' deny access if Operator is not willing
to comply with the City's requirements; and may re ove, or require removal
of, any facility that is not installed in complianc with the requirements
Ordinance 2002-36 I Telecommunications
Page 9 of27
,.
established by the City, or which is installed without p ior City approval of the
time, place, or manner of installation and charge the 0 erator of the facility for
all the costs associated with removal; and may require a Person using the rights-
of-way to cooperate with others to minimize adverse pacts on the rights-of-
way through joint trenching, joint use of facilities and 0 er arrangements.
4. Upon order of the Administrator, all work which does not comply
with the permit, the approved plans or specificatio for the work, or the
requirements of this Title or other applicable law shall b removed.
5. Unless otherwise agreed or provided in a M ster Permit, License or
ROW permit a communication systems operator shall e required to reimburse
and hold harmless the City for any cost or expense reo sonably incurred by the
City in the planning, construction, installing, alter in , or implementing any
public work as a result of the construction or the prese e in the public right-of-
way of the facility of such communication system opera or.
6. No new poles or extenders on poles to in rease capacity shall be
allowed in the Public Rights-of-Way and all new 0 erhead facilities of any
nature are prohibited unless specifically allowed und r this Chapter or other
applicable provisions ,of the Bambridge Island Mum .pal Code or applicable
City policies, procedures and current standards.
7. The specific location within the right-of- ay and the method of
installing facilities underground or overhead will be s bject to approval by the
Public Works Director/City Engineer. Cutting of pave ent in the Public Right-
of-Way shall be prohibited where the Public Works Director/City Engineer
approves locating underground facilities in the unimpro ed portions of the right-
of-way or In the sidewalk areas or requires Iternative methods for
undergrounding not requiring trenching or the cutting 0 pavement.
8. Cutting of pavement shall be prohibited i any event in a newly
constructed or reconstructed street for a period of five 5) years from the paving
of such street or in a street where a trench was previou ly available for a period
of three (3) years from the date the trench was availabl . The City may require
as a condition to the occupancy of the rights-of- ay that Communication
Facilities be located in existing underground ducts conduits wherever the
capacity exists. Provided, however, the. Public Wor Director/City Engineer
may in his or her discretion permit pot-holing (subject to conditions to alleviate
the harmful effects) where conduit is to be placed u derground by means of
directional boring and the person seeking permissio has provided evidence
satisfactory to the Public Works Director/City Engine that (a) such pot-holing
is necessary to avoid interference with existing utiliti s; (b) such pot-holing is
the only reasonable alternative available to locate exis ing utilities and (c) such
pot-holing will result in little or no visual or other etrimental impact to the
street.
9. Any and all Public Rights-of- W ay , pub ic property, or private
property that is disturbed or damaged during the cons uction, operation, repair
or removal of a Communications Facility shall be romptly repaired by the
Communications System Operator that disturbed or d aged the Public Rights-
Ordinance 2002-36 / Telecommunications
Page 10 of27
j.
of-Way, public property or private property. Public pr perty and Public Right-
of-Way must be restored to the satisfaction of the Ci and to a condition as
good or better than before the disturbance or amage occurred. A
Communications System Operator shall continue to ma ntain the restored street
area, which may consist of curb, gutter, sidewalk, pav ment, or other restored
appurtenances, in a condition as good as or better the condition of the
adjacent undisturbed area of the street for the life of the treet (to the extent such
maintenance or restoration is required, (a) as a result 0 the restored street area
being defective or otherwise inferior to the adjacent ndisturbed. area of the
street or (b) as a result of the presence of the faciliti s of the communication
system operator), until the restored area is repaved or reconstructed by a
different party, except when such repaving or reco struction is a result of
enforcement action by the City for the lack of such ma. tenance activity; unless
(a) the assessment of the Impact Assessment under t is Title provides for an
exemption; or (b) a Master Permit, License or Permit specifically exempts the
Communications System Operator from such obligation.
10. No tree trimming shall be performed withe t the permission of the
City and other affected authoritIes, and tree trimmin must be performed in
strict accordance with the City code.
11. Within forty-eight (48) hours after not ce from the City, a
Communications System Operator shall remove any g affiti on any part of its
Communications System in the Public Rights-of-Wa (including by way of
example and not limitation) equipment cabinets. If th operator fails to do so,
the City may remove the graffiti and bill the operator ti r the cost thereof.
C. Relocation' and Abandonment of facilities.
1. A. Communications System Operator shall, y a time specified by the
City, protect, support, temporarily disconnect, reloca e, or remove any of its
property when required by the City by reason of t affic conditions; public,
safety; Public Right-of-Way construction; Public Right of-Way repair (including
resurfacing or widening); change of Public Right-of- ay grade; construction,
installation or repair of sewers, drains, water pipes, ower lines, signal lines,
tracks, or any other type of government-owned Comm nications System, public
work, public facility or improvement, or. any gover ent-owned utility; Public
Right-of-Way vacation; or for any other purpose here the work involved
would be aided by the removal or relocation of the ommunications Facility.
Collectively, such matters are referred to below as the 'public work" ·
(a) Except in the case of emergencies, the ity shall provide written
notice describing where the public work is to be perfo med as soon as practical
but at least thirty (30) days prior to the deadline by hich a Communications
System Operator must protect, support, temporaril disconnect, relocate or
remove its facilities. A Communications System Operator may seek an
extension of the time to perform such tasks where the cannot be performed in
thirty (30) days or by the completion time specified ev n with the exercise of its
best efforts, and such request for an extension shall no be unreasonably refused.
Ordinance 2002-36 I Telecommunications
Page 11 of27
(b) In the event of an emergency, or were a Communications
Facility creates or is contributing to an imminent da er to health, safety, or
property, the City may protect, support, temporarily disconnect, remove, or
relocate any or all parts of the Communications Faci .ty without prior notice,
and charge the Communications System Operator for c sts incurred.
(c) If a Communication System Operator d es not comply with the
requirements of this Title and the applicable Master ermit, License or ROW
Permit does not provide otherwise and if not prohibit d by applicable law the
City shall have the right to revoke any right of a ommunications System
Operator to have its facilities remain at specific locati n in the Public Right-of-
Way at any time the City determines that the Facilities of such Communications
System Operator must be removed from their present 1 cation or from the street
in order to facilitate a public work in the Public Right-of-Way and upon
revocation of the Master Permit, License or ROW Permit of the
Communications System Operator as to the affected designated facilities the
Communications System Operator shall remove the s e and restore ~e street
at its cost.
2. If any Person that is authorized to place fac. ities in the rights-of-way
requests another Communications System Operator eceiving the request to
protect, support, temporarily disconnect, remove, or relocate its facilities to
accommodate the Construction, Operation, or Repair of the facilities of such
other Person, the Communications System Operator sh 11, after thirty (30) 4ays'
advance written notice, take action to effect the nee sary changes requested.
Unless the matter is governed by a valid contract or a state or federal law or
regulation, or unless the Communications Facility t at is being requested to
move was not properly installed, the reasonable cost 0 the same shall be borne
by the Person requesting the protection, support, emporary disconnection,
removal, or relocation and at no charge to the City, e en if the City makes the
request for such action.
3. A Communications System Operator shal, on the request of any
Person holding a valid permit issued by a governme I authority, temporarily
raise or lower its wires to permit the moving of buildi gs or other objects. The
expense of such temporary removal or raising or lowe ing of wires shall be paid
by the Person requesting the same. A Communicati ns System Operator shall
be given not less than seven (7) days' advance n ice to arrange for such
temporary wire changes.
4. Grantee may abandon and surrender its M ter Permit to the City on
six (6) months written notice to the Administrator, ith copies served on the
Mayor and City Attorney. Abandonment shall be su ~ect to acceptance by the
City, by a resolution of acceptance adopted by e City Council. Upon
abandonment, non-renewal, revocation or expiration f this Master Permit, and
if no extension is granted, Grantee may, at the discre ion of the Administrator,
be required in part or entirely, to remove all its fiber,. wire, poles, fixtures, and
other facilities or equipment installed or used in the enjoyment of the Master
Permit. Alternatively, the' Administrator may d rect, limit or condition
Ordinance 2002-36/ Telecommunications
Page 12 of27
Grantee's removal, sale or continued use or abandonme t of Grantee's facilities
and equipment, either by agreement or through me of any other lawful
municipal power or right. The City may continue to i voke any provision of
this Master Permit against Grantee or any successor tity enjoying de facto
Master Permit privileges after revocation or expiration. The City may take all
other actions deemed necessary and proper by the Ci y to accommodate the
transition to any successor as may be in the best inter sts of the City and its
residents.
D. Facility subject to inspection; operator must provi e information. Every
Communications Facility shall be subject to the right 0 periodic inspection by
the City to determine compliance with the provisions of this Title, a Master
Permit or License agreement, or other applicable law. he City shall have the
right, upon request, to be notified and present wh the Communications
System is inspected by the Operator to determine compli nce with the provisions
of this Title; a Master Permit, License or ROW Permit; r applicable law where
the City has enforcement authority. Each Operator mus respond to requests for
information regarding its system and plans for the syste as the City may from
time to time issue, including requests for information regarding its plans for
construction, operation and repair and the purposes for hich the plant is being
constructed, operated, or repaired to the extent such p ant is or will be in the
public right-of-way or has been or will be provided u der any Master Permit,
License or ROW Permit granted by or requested from t e City.
E. Underground services alert. Each Operator of a ommunications System
that places facilities underground shall be a member of the regional notification
center for subsurface installations (Underground Servi es Alert) and shall field
mark the locations of its underground communication facilities upon request.
The Operator shall locate its facilities for the City at n charge. Each Operator
shall reasonably cooperate with City initiatives to oordinate underground
fixture locations and installations. Each Operator shall e familiar with Chapter
19.122 RCW, Washington State's "Underground tilities" statute. Each
Operator shall certify that it understands local procedu es, custom and practice
relating to facilities locating, and shall ensure that · s contractors or others
working in the right-of-way on Grantee's behalf are si 'larly well informed. ,
F. Undergrounding of lines. Each Operator shall rec gnize the City's right to
preserve and control of the Public Right-of-Way, pa icularly with respect to
policies regarding the undergrounding of overhead Ii s for aesthetic reasons.
Consistent with any general municipal underground in policy or program now
or hereafter developed, the City reserves the right to require each Operator's
participation in municipally imposed undergrounding 0 related requirements as
may now or hereafter arise, as a condition of the Oper tor's new installation or
major maintenance or restoration construction activit es of overhead facilities
under this franchise. Each Operator shall coordinate it underground installation
and planning activities with the City's underground pi and policies; provided,
in no event shall any third party beneficiary rights be implied or created.
Ordinance 2002-36/ Telecommunications
Page 13 of27
Nothing in this section shall be permitted in conflict w th RCW 35.99.060, and
the provisions of this section shall be applied in confo ity thereto.
G. Plans for and publicizing work.
1. Work shall be publicized as the City may ireet from time to time.
The publication of work may be used to notify the pub ic and operators of other
communications systems, of the impending work, in order to minimize
inconvenience and disruption to the public and to allow .oint use by others.
2. Each Communications System Operator sha I provide the City a plan
for any initial system construGtion, or for any substa tial rebuild, upgrade or
extension of its facility, which shall show its timetabl for construction of each
phase of the project, and the areas of the City that will e affected.
3. Each Operator shall supply and maintain pdated, at no cost, any
information requested by the Administrator to coord · ate municipal functions
with the Operator's activities and fulfill any municip obligations under state
law. Said information may include an installation inve tory, location of existing
or planned facilities, maps, plans, and as-built dra ings of the Operator's
installations in the City. Said information may be req ested either in hard copy
and/or electronic format compatible with the City's da a base syst~m, as now or
hereafter existing. Each Operator shall keep the Ad inistrator informed of its
long-range plans for coordination with the City's long- ange plans.
4. Each Communications Facility Operator sh I maintain accurate maps
and improvements plans which show the location, size, and a general description
of all facilities installed in the Public Rights-of-Wa and any power supply
sources (including voltages and connections). Maps hall be based upon post-
construction inspection to verify location. he Operator of each
Communications Facility shall provide a map (on 24" x 36" Mylar) to the City
showing the location of its facilities, in such detail an scale 'as may be directed
by the City Engineer. New system maps shall be pro ptly submitted to the City
when the facility expands or is relocated. Copies of aps shall be provided on
disk, in a commercially available electronic form t specified by the City
Engineer or in such alternate form as approved by the ity Engineer.
5. The Administrator may from time to tim, when the City receives
application for a permit to use a particula~ route, or 0 the Administrator's own
init~ative, designate by published order a route or pro osed route for installation
of Communications Facilities and may (1) require all ersons who wish to place
Underground Facilities along that route or any part th eof to install them during
a specified period and (2) otherwise prohibit placem t of such facilities along
the route or any part thereof for thirty-six (36) month or for such other, longer
period as is necessary to protect the public.
19.02.060 Taxes and Fees.
A. To the extent permitted by law, a franchise f; may be charged to an
Operator for its operation of telecommunications fac .lities in the right of way,
whether as a lessor of the facilities to third parties r as a direct provider of
Ordinance 2002-36 / Telecommunications
Page 14 of27
~
telecommunications services. Nothing in this Title sha 1 limit the C.ity's power
of taxation, as may now or hereafter exist.
B. Consistent with RCW 35.21.860 (1) (b), nothing in this Master Pe.rmit shall
prohibit the City from charging a fee to recover t e actual administrative
expenses it incurs that are directly related to receiving and approving a Master
Permit, License, and ROW Permit, to inspecting pIa and construction, or to
the preparation of a detailed statement pursuant to ch ter 43.21C RCW.' On
request of an Operator. the City will submit proof of ny charges or expenses
incurred. For any project or time frame, an Operator n also request a written
estimate from the Administrator, in advance of costs pI nned to be expended by
the City, and the Operator may object to any costs as rovided hereafter in the
case of a challenged cost billed by the City. Except as therwise provided, said
fees must be paid within thirty (30) days of receipt 0 the City's billing. The
Operator shall pay all other taxes applicable to its oper tions or activities in the
City all such obligations also being a condition of this aster Permit.
C. An Operator shall make any required payments the form, intervals and
manner requested by the City Administrator, an furnish him/her any
information related to his/her rev'enue collection functi ns reasonably requested.
In case of audit, the Administrator may require th Operator to furnish a
verified statement of compliance with its obligation or in response to any
questions, verified by an officer of the Operator. All udits will take place on
the Operator's premises or offices furnished by the Ope ator, which shall be at a
location in the City. The Operator agrees, upon reque t of the City Auditor, to
provide copies of all documents filed with any federal, state, or local regulatory
agency, to be mailed to the City Auditor on the s e day as filed, postage
prepaid, affecting any of the Operator's facilities or b siness operations in the
State of Washington.
19.02.070 Protection of the City and residents.
A. IndemnifICation. No Master Permit or other auth · zation to use the rights-
of-way issued to a Communications System erator or a Private
Communications System Owner shall be valid or effe tive until and unless the
City obtains an adequate indemnity fro,m. such Ope ator. Unless otherwise
agreed, in writing, adequate indemnity must at least in ude the following:
1. Release the City from and against an and all liability and
responsibility in or arising out of the construction, op ration or maintenance of
the Communications Facility in the public right-of-wa by the Communications
Facility Operator. Each Communications Facility Op rator must further agree
not to sue or seek any money or damages from Cit in connection with the
above-mentioned matters;
2. Indemnify and hold harmless the City, ts trustees, elected and
appointed officers, agents, and employees, from and a ainst any and all claims,
demands, or causes of action of whatsoever kind or nature, and the resulting
losses, costs, expenses, reasonable attorneys' fees, lia ilities, damages, orders,
judgments, or decrees, sustained by the City or any the d party arising out of, .or
Ordinance 2002-36 I Telecommunications
Page IS of27
by reason of, or resulting from or of the acts, erro , or omissions of the
Communications System Operator, or its agents, ind endent contractors or
employees related to or in any way arising out of the c nstruction, operation or
repair of the facility in the Public Rights-of-Way.
3 . Provide that the covenants and represen ations relating to the
indemnification provision shall survive the term of any Master Permit or other
authorization and continue in full force and effect as to e party's responsibility
to indemnify.
B. Insurance. No Master Permit or other authorizat. n to use the rights-of-
way issued to a Communications System Operator or a ivate Communications
System Owner shall be valid or effective until and nless the City obtains
assurance that the Operator (and those acting on its behalf) have adequate
insurance. Unless otherwise agreed, in writing, adequat insurance must at least
meet the following requirements:
1. A Communications System Operator shall not commence
construction or operation of the facility without obtaini g all insurance required
under this paragraph and approval of such insurance y the City, nor shall a
Communications System Operator allow any contrac or or subcontractor to
commence work on its contract or sub-contract until a similar such insurance
required of the same has been obtained and approved. The required insurance
must be obtained and maintained for the entire peri the Communications
System Operator has facilities in the rights-of-way, and or a period thereafter as
specified in the minimum coverages described belo · If the Operator, its
contractors, or subcontractors do not have the required insurance, the City :may
order such entities to stop operations until the ins ranee is obtained and
approved.
. 2. Certificates of insurance, reflecting evi ence of the required
insurance and naming the City as an additional insure , shall be filed with the
City's Risk Manager. For entities that are entering th market, the certificates
shall be filed prior to the commencement of const ction and once a year
thereafter, and as provided below in the event of a laps in coverage.
3 . These certificates shall contain a provision that coverages afforded
under these policies will not be cancele~ until at leas thirty (30) days' prior
written notice has been given to the City. Policies shal be issued by companies
authorized to do business under the laws of the State 0 Washington. Financial
Ratings must be no less than "A" in the latest editi n of "Bests key Rating
Guide", published by A.M. Best Guide.
4. If the insurance certificate provided indicate that the insurance shall
terminate or lapse during the period of the Master Pe it or License, then the
Communications System Operator shall furnish, at leas thirty (30) days prior to
the expiration of the date of such insurance, a renewe certificate of insurance
as proof that equal and like coverage has been or will be obtained prior to any
such lapse or termination during the balance of the per od of the Master Permit
or License under which the Communications System 0 rates.
Ordinance 2002-36 / Telecommunications
Page 16 of27
5. A Communications System owner or Operat r, and its contractors or
subcontractors engaged in work on the Operator's beh f in, on, under or over
Public Rights-of-Way, shall maintain the following m. imum insurance. The
City shall be named as an additional insured on e general liability and
automotive policies.
(a) Comprehensive General Liability insur ce to cover liability
bodily injury and property damage. Exposures to be overed are: premises,
operations, products/completed operations, and certai contracts. Coverage
must be written on an occurrence basis, with the follow. g limits of liability:
(i) Bodily Injury
Each Occurrence $1,000,000
Annual Aggregate 3,000,000
(ii) Property Damage
Each Occurrence $1,000,000
Annual Aggregate 3,000,000
(iii) Personal Injury
Annual Aggregate $3,000,000
(iv) Completed OPerations and Prod ts Liability shall be
maintained for two (2) years after the termination f the Master Permit or
License (in the case of the Communications System owner or Operator) or
completion of the work for the Communications Syste owner or Operator (in
the case of a contractor or subcontractor).
(v) Property Damage Liability Insuranc shall include coverage
for the following hazards: X - Explosion, C - Co lla se, U - Underground.
(b) Workers' Compensation insurance. shall e maintained during the
life of this contract to comply with statutory limits for 11 employees, and in the
case any work is sublet, each Communications Syste Operator shall require
the subcontractors similarly to provide workers' camp nsation insurance for all
the latter's employees unless such employees are c vered by the protection
afforded by each Communications System Operator. Each Communications
System Operator and its contractors and subcontractors shall maintain during the
life of this policy employers liability insurance. The llowing minimum limits
must be maintained:
(i) Workers' Compensation Statutory
(ii) Employer's Liability $ 500,000
(c) Comprehensive Auto Liability
(i) Bodily Injury
Each Occurrence $1,000,0
Annual Aggregate 3,000,
(ii) Property Damage
Each Occurrence $1,000,
Annual Aggr~gate 3,000,
Coverage shall include owned, hired, and non-owned ehicles.
6. Each Communications System Operator hall hold the City, its
agents, and employees, harmless on account of claim for damages to persons,
Ordinance 2002-36/ Telecommunications
Page 17 of27
property or premises arising out of its construction, 0 eration or repair of its
Communications System and name the City as an additi nal insured.
7 . In every Master Permit or License agreeme t, the City shall reserve
the right to require any other insurance coverage it de s necess~dependb1g
upon the exposures.
C. Performance/payment bonds. Every Operator of a Communications
Facility may be required to obtain performance b nds and, if necessary,
payment bonds to ensure the faithful performance of ts responsibilities under
this Title and any Master Permit, ROW Permit or Lice e, including a sufficient
amount to cover removal of facilities and/or restoratio of City facilities within
right-of-way. The amount of the performance and pa ment bonds shall be set
by the Administrator or may be set in a Master Permit in light of the nature of
the work to be performed and is not in lieu of any addi ional bonds that may be
required through the permitting process. The bond shal be in a form acceptable
to the City Attorney. The City may from time to time increase or decrease the
amount of the required performance bond to reflect ch nges in risks to the City
and to the .public.
19.02.080 EDforcement and remedies.
A. Admini.rator responsible for administration. The Administrator is
responsible for enforcing and administering this Title, d the Administrator is
authorized to give any notice required by law or u er any Master Pe~it,
including by way of example and not limitation, a otice required under 47
U .S.C. ~ 546. The Administrator is also authorized seek information from
any Communications System Operator, and to take all ther actions necessary or
appropriate to the administration of this Title or any Master Permit. Master
Permits may only be denied, issued or revoked by actio of the City Council.
B. Minimum contents of every Master Permit or icense. In addition to
satisfying the other applicable requirements of this Chapter, every Master
Permit or License f<?r a Communications System sh 11 contain the following
provisions:
1. The Master Permit or License shall provide that neither the granting
of any Master Permit or License, or any provision t ereof, shall constitute a
waiver or bar to the exercise of any governmental righ or power, police power,
or regulatory power of the City as may exist at the t e the Master Permit or
License is issued or thereafter be obtained.
2. The Mast~r Permit or License shall only a thorize occupancy of the
right-of-way to provide the services and for the p rposes described in the
Master Permit or License.
3. A Master Permit or License shall be a pri ilege that is held in the
public trust and personal to the original Grantee. The aster Permit or License
shall ensure that no transfer of the Master Permit or Li ense may occur, directly
or indirectly, without the prior consent of the City.
Ordinance 2002-36 / Telecommunications
Page 18 of27
4. The Master Permit or License shall contai appropriate provisions
for enforcement, and protection of the public, co sistent with -the other
provisions of this Title.
5. The Master Permit or License shall be for a pecified term, set forth
in the Master Permit or License. No Master Permit iss ed under this Title shall
be for a term of longer than ten (10) years, unless the uncil determines . that a
longer period would be in the City's interest. No Licen e issued under this Title
shall be for a term of longer than five (5) years.
C. Penalties. Any person found to have occupied or carried out activities in
the Public Rights-of-Way without first having obtaine or having in effect a
valid Master Permit, License, or ROW permit as requi ed by this Title shall be
guilty of a misdemeanor and shall be punished by a fine ot exceeding $1,000 or
by imprisonment not exceeding ninety (90) days or by both such fine and
imprisonment. Each day that any such occupancy or ctivity shall continue in
violation of this Title shall constitute a separate offense.
D. Revocation, reduction of term, or forfeiture of Master Permit. or
License.
1. Licenses shall be revocable at will.
2. This Master Permit may be revoked for vi lation of any terms and
conditions of the Mast~r Permit or other City ordinan S, resolutions or policy
including but not limited to the following.
(a) Construction or operation in the Public .ghts-of-Way of the C~_ty
or on City property in a manner in violation of this Mas er Permit;
(b) Construction or operation at an unau orized location in the
Public Rights-of-Way of the City or on City property;
(c) Misrepresentation by or on behalf of the Operator in any material
respect in any application or written statements or d cuments to the City on
which the City relies in making the decision to gran, review, or amend the
Master Permit.
(d) Abandonment of telecommunications. acilities in the Public
Rights-of-Ways or on City property;
(e) Failure to' relocate or remove facilities required by this Title or
Master Permit
(t) Failure to pay taxes, compensation, fe s, or costs when and as
due the City under this Title;
(g) Insolvency or bankruptcy of the Operato ; or
(h) Violation of any material provision of th s Title or Master Permit,
which is not timely cured on notice to the Operator by e City.
3 . If the City believes that grounds exist for evocation of the Master
Permit, the Operator shall be given written notice of the apparent violation or
noncompliance, which notice shall provide the Operat r a reasonable period of
time not exceeding thirty (30) days to furnish evidence
(a) That corrective action has been, 0 is being actively and
expeditiously pursued, to remedy the violation or none mpliance;
(b) That rebuts the alleged violation or non ompliance; or
Ordinance 2002-36 / Telecommunications
Page 19 of27
(c) That it would be in the public interest to impose some penalty or
sanction less than revocation.
4. If the Operator fails to provide evidence r asonably satisfactory to
the Administrator, the Administrator shall refer the a arent violation or non-
compliance to the City Councilor Hearing Examine · The City Councilor
Hearing Examiner shall provide the Operator with easonable notice and a
reasonable opportunity to be heard concerning the matt
5. General administration of the Master Permi for the City is through
the office of the Administrator. However, the Ad inistrator may delegate
his/her authority and responsibility to other agents of t e City. All questions of
. application, interpretation, conflict or ambiguity arisin out of or in connection
with this Master Permit may be determined through ommunications with the
Administrator, except where otherwise specifically stat d.
6. The Operator may appeal any decision of he Administrator to the
Hearing Examiner by filing a written notice of appeal ithin thirty (30) days of
the date of issuance of the Administrator's decision, W th copies also sent to the
Mayor, Administrator and City Attorney. The notice f appeal must include a
copy of the Administrator's decision and a complete re ord originally submitted
to the Administrator by the Operator. The Admini tratar shall submit any
additional response to the Hearing Examiner within te (10) days of receipt of
the notice of appeal. The Hearing Examiner shall sc dule a hearing within a
reasonable period of time but not to exceed sixty (60 days from filing of the
Notice of Appeal and decide the question submitted. o opportunity to cure is
allowed for fraud, which shall be deemed incurable.
7. Notwithstanding the foregoing, the City ma declare a Master Permit
forfeited without opportunity to cure or the notice req ired by Section 3 where
the Operator fails to begin to exercise its rights under the Master Permit within
a period specified in the Master Permit. However, Operator shall have the
right to receive thirty (30) days' prior notice of intent t declare a Master Permit
forfeited, and shall have the opportunity to show cau why the Master Permit
should not be forfeited.
8. Notwithstanding the foregoing, a Master Permit or License will
automatically terminate by force of law o~e hundred t enty (120) calendar days
after an assignment for the benefit of creditors or the ppointment of a receiyer
or trustee to take over the business of the Operator, hether in a receivership,
reorganization, bankruptcy assignment for the bene It of creditors, or other
action or proceeding. However, the Master Permit or icense may be reinstated
within that 120 day period, if: (1) such assignment, eceivership or trusteeship
has been vacated; or (2) such assignee, receiver or ustee has fully complied
with the terms and conditions of this. Title and the Ma ter Permit or License and
has executed an agreement, approved by any court ha ing jurisdiction, assuming
and agreeing to be bound by the terms and c,onditions f this title and the Master
Permit or License. However, in the event of foreclo ure or other judicial sale
of any of the facilities, equipment or property of a Operator, the City may
revoke the Master Permit or License, following a pub ic hearing before the City
Ordinance 2002-36 I Telecommunications
Page 20 of27
Council, by serving notice on the Operator and the succ ssful bidder at the sale,
in which event the Master Permit or License and all rig ts and privileges of the
Master Permit or License will be revoked and will term nate thirty (30) calendar
days after serving such notice, unless: (1) the City has pproved the transfer of
the Master Permit or License to the successful bidder and (2) the successful
bidder has covenanted and agreed with the City to assu e and be bound by the
terms and conditions of the Master Permit or License an this Title.
E. Sale, Lease, Assignment.
1. This Master Permit or License shall not be sId, leased, assigned, or
otherwise alienated without the express consent of t e City, and no rule of
estoppel shall be invoked against the City in case t e City shall assert the
invalidity of any attempted transfer in violation of this ection. The City agrees
not to withhold consent where the Operator demons ates that the requested
assignment is in the nature of a change of name or a ange, in the nature of a
reorganization or merger of or with an entity contr lIed by, controlling, or
under the common control of the Operator, there bein no other change in the
resulting entity's ability to meet its Master Permit or Li ense obligations.
2. The City reserves the' right to invoke any r all provisions of this
Master Permit or License upon the Operator's success rs or assigns, judgment
creditors, or distributes of facilities or property used i enjoyment of privileges
conferred herein, whether or not stated elsewhere, a 1 without waiver of the
right to wit~old consent not expressly given of any su h transfer and/or require
a new Master Permit or License.
3. The Operator shall not permit installations others in the permitted
areas, without written approval from the Administrator. Such approval shall not
be in lieu of a Master Permit or License or other r quirements of the City.
Whether or not permitted, the Operator shall remain responsible for all third
party users permitted or allowed by the Operator for co pliance with the Master
Permit or License. The intent of this provision is so third parties who might
otherwise desire to use the Operator's facilities are als required to comply with
City requirements regarding Master Permit or License, as may apply.
F . Effect of termination or forfeiture. Upon term nation or forfeiture of a
License or Master Permit, whether by aCJion of the C ty as provided above, or
by passage of time, the Operator shall be oblig ed to cease using the
Communications System for the purposes authorized b the Master Permit. The
City may either take possession of some or all of the perator's facilities in the
Public Rights-of-Way or require the Operator or its bo ding company to remove
some or all of the Operator's facilities from the blic Rights-of-Way and
restore the Public Rights-of-Way to its same, or b tter, condition. If the
Operator neglects, refuses, or fails to, remove such faci ity, the City may remove
the facility at the expense of the Operator. The Opera r's obligation to remove
shall survive the termination of the Master Permit of L cense for a period of two
(2) years; provided that, this provision does not ermit the City to take
possession of, or require the Operator to remove, any facilities that are used to
Ordinance 2002-36 / Telecommunications
Page2lof27
provide another service for which the Operator holds a valid Master Permitor
License issued by the City.
G. Remedies cumulative. All remedies under this Title and any Master Permit
or ,License are cumulative unless otherwise expressly s ted. The exercise of
one remedy shall not foreclose use of another, nor shall e exercise of a remedy
or the payment of liquidated damages or penalties reI eve a Communications
System Operator of its obligations to comply with its M ter Permit or License.
Remedies may be used singly or in combination; in ddition, the City may
exercise any rights it has at law or equity. Recovery by e City of any amounts
under insurance, the performance bond, the security fu d or letter of credit, or
otherwise, does not limit a Communications Syste Operator's duty to
indemnify the City in any way; nor shall suc recovery relieve a
Communications System Operator of its obligations der a Master Permit,
ROW Permit or License, limit the amounts owed to the City, or in any respect
prevent the City from exercising any other right or reme y it may have.
H. Compliance with laws. Each Operator shall co ply with all applicable
laws heretofore and hereafter adopted or established dur ng the entire term of its
Master Permit, Permit or License.
I. Reservation of authority. The City may do all ings that are necessary
and convenient in the exercise of its jurisdiction under t is Title.
J. No waiver. The failure of the City to insist on timely performance or
compliance by any Person holding a License,' ROW nnit or Master Permit
shall not constitute a waiver of the City's right to later insist on timely
performance or compliance by that Person or any othe Person holding such a
License, ROW Permit or Master Permit.
K. Title not a contract. The City expressly reserves the right to amend this
Title and any Master Permit, ROW Permit or License ereunder from time-to-
time in the exercise of its lawful powers.. The provisi s of this Title shall not
be construed to create to be a contract.
L. No waiver. The failure of the City to enforce any rovision of this Title on
any occasion shall not operate as a waiver or estoppel of this right to enforce
any provision of this Title on any other occasion, nor s all the failure to enforce
any prior ordinance, law or contractual, provision a ecting conununications
facilities or Communications System operators act a waiver or estoppel
against application of this Title or any other provision 0 applicable law.
Ordinance 2002-36 I Telecommunications
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Ii
Chapter 19.04
SPECIAL RULES APPLICABLE to TELECO CATIONS
FACILITIES AND TELECOMMUNICATIONS SE VICE PROVIDERS
Sections:
19.04.010 Application for a Master Permit.
19.04.020 Compensation.
19.04.010 Application for a Master Permit.
A. Contents of application for initial or renewal Mas er Permit. In order to
obtain an initial or renewal Master Permit, an Operator f a telecommunications
system must apply for a Master Permit. The appli tion must contain the
following information, and such information as the Ci may from time to time
require.
1. Identity of the applicant and corporat~ structu e.
2. A proposal for construction of a teleco unications facility that
includes at least the following:
(a) a description of the services that are to be provided using the
facility.
(b) the location of proposed facility and fac lity design, including a
description of the miles of plant to be installed, and a escription of the size of
equipment cabinets, shielding and electronics that wil be installed along the
plant route, the power sources that will be used and a escription of the noise,
exhaust and pollutants, if any, that will be generated y the operation of the
same; provided, however, that, if some of the descriptiv data is not available at
the time of application, the Master Permit may be iss d subject to conditions
that the data be filed and approved by the City before construction begins and
that the Master Permit will be deemed to be forfeited i the data is not supplied
and approved; providedfurther, in the event that Sectio S 19.04.010.A.2.(b)-(c)
require information that is a business or trade se ret and/or proprietary
information and the Operator wishes to protect e information against
disclosure, then Operator shall provide s,aid informati n to City in a separate
envelope marked "Proprietary Information: DO NOT ISCLOSE". The City
will exercise good faith efforts to protect the confiden iality of the business or
trade secrets or proprietary information that is desi ated as such; provided
further, that (1) if a public disclosure request is made fl r information marked as
proprietary, and if the City Attorney determines that aid information may be
subject to being disclosed, or (2) the City determines th t the information should
be disclosed in connection with its enforcement of any rovision of this Title, or
in the exercise of its police or regulatory powers, then the City shall notify the
Operator of the Operator's opportunity to seek a prote tive order from a court
with appropriate jurisdiction. If a protective order is not obtained within the
time limitation set forth in State law for the City's disc osure of public records,
then City may disclose said information. The Operator .s obligated to reimburse
Ordinance 2002-36 / Telecommunications
Page 23 of 27
.,
and indemnify City for all costs, damages and attorney es that may be awarded
or assessed by the court for any actions the City took at he request of Operator ·
( c) a map of the general route the facility ill follow; a designation
of the portions of the system that will be placed above ground and ~e portions
that will be placed underground, and the construct on techniques that the
Operator proposes to use in ins taIling the syst m above ground and
underground; a schedule for construction of the facil ty describing when and
where construction will begin, how it will procee , and when it will be
completed; and the expected effect on right-of-way usa e, including information
on the ability of the Public Rights-of-Way to accommo ate the proposed system,
including, as appropriate given the system propos d, an estimate of the
availability of space in conduits and an estimate of t e cost of any necessary
rearrangement of existing facilities; provided, howev r, that any proprietary
information required under this subparagraph as well as the preceding
subparagraph shall be subject to the non-disclosure pr cedure prescribed in the
proviso of the preceding subparagraph.
(d) A description, where appropriate, of how services will be
converted from existing facilities'to new facilities, an what will be done with
existing facilities.
(e) Identification of the area of the City to b served by the proposed
system, including a description of the proposed are's boundaries under the
Master Permit.
(t) An affidavit or declaration of the appli nt or authorized officer
thereof certifying the truth and accuracy of the infor ation in the application,
and certifying that the application meets all requiremen of applicable law.
B. Applications for transfer. An application for a tr nsfer of a Master Permit
must contain the same information required by Sect on 19.04.010.A, except
that, if the transferor submitted an application under Se tion 19.04.010.A, to the
extent information provided by the transferor unde Section 19.04.010.A.2
remaIns accurate, the transferee may simply cra s-reference the earlier
application.
C. City review. The City may request such additio information as it finds
necessary, and require such modifi~atioijS to the sys em proposed as may be
necessary in the exercise of the City's authority ov r the use of its Public
Rights-of-Way for Telecommunications Systems. One the information required
by the City has been provided, the application shall b subject to review by the
City and any approval shall be subject to the City's det rmination that:
1. the applicant will accept the modifications quired by the City to its
proposed system. This section does not authorize the ity to exercise authority
it does not otherwise have under applicable law.
2. the applicant will accept a Master Permit s tis factory to the City and
comply with any conditions precedent to its effectivene s.
3. in the case of a transfer, any approval ill . also be subject to a
determination that:
Ordinance 2002-36 I Telecommunications
Page 24 of 27
(a) there will be no adverse effect on the pub .c interest, or the City's
interest in the Master Permit;
(b) transferee will agree to be bound by a the conditions of the
Master Permit and to assume all the obligations of its pr ecessor; and
(c) any outstanding compliance issues will b resolved or preserved
to the satisfaction of the ' City .
D. An applicant shall not be issued a Master Permit if. files or. has previously
filed materially inaccurate or misleading informatio in a Master Permit
application or intentionally .withheld information that e applicant lawfully is
required to provide.
19.04.020 Compensation.
A. Rights-of-way fee. Subject only to the excep ions set out in Section
19.02.040.C of this Title, every Operator of a teleco unications facility must
compensate the City for its actual cost of administerin its application and the
Public Rights-of-Way. To the extent permitted by la , every Operator shall
also pay to the City a fee in the amount established by esolution for the use of
the Public Rights-of-Way.
Chapter 19.06
PRIV ATE COMMUNICATIONS FAC LITIES
Sections:
19.06.010 Application for License.
19.06.020 Conditions of License.
19.06.010 Application for License. A Person wish. g to construct, install,
place, operate, replace, reconstruct, or maintain a rivate Communications
System in a Public Rights-of-Way must obtain a Licens therefore. The License
shall only authorize placement of the system in a speci IC portion of the Public
Rights-of-Way for a limited and specific purpose n connection with the
Person's business but not encompassing in whole or in part the carriage of
telecommunications for hire in the Public Rights-of- ay, and for a limited
period of time. Such application must be in the form p ovided for by regulation
and must be accompanied by a filing fee, covering the ost of administration of
this application.
19.06.020 CO.ditiODS of License. Any License sh 1 be subject to such
conditions as the City may from time to time esta lish, shall be expressly
subordinate to the use of the Public Rights-of- ay by operators of
communications facilities, and shall otherwise confo to the requirements of
this Title. Subject to the foregoing, the provisions 0 BIMC 19.02.050 shall
apply to a Private Communications System as if it ere a Communications
Facility .
Ordinance 2002-36 I Telecommunications
Page 25 of 27
Chapter 19.08
MISCELLANEOUS
Sections
19.08.010 Calculation of time.
19.08.020 Severability.
19.08.010 Calculation of time. Unless otherwise indicated, when the
performance or doing of any act, duty, matter, or payme t is required under this
Title or any Master Permit or License, and a period of ime or duration for the
fulfillment of doing thereof is prescribed and is fixed h rein, the time shall be
computed so as to exclude the first and include the last ay, of the prescribed or
fixed period of duration time.
19.08.021 Severability. If any term, condition, or pro ision of this Title shall,
to any extent, be held to be invalid or unenforceable y a valid order of any
court or regulatory agency, the remainder hereof sha I be valid in all other
respects and continue to be effective. In the event of a subsequent change in
. applicable law so that the provision which had been h ld invalid is no longer
invalid, said provision shall thereupon return to full rce and effect without
further action by the City and shall thereafter be bindin on the Grantee and the
City. If, as determined by the City upon appropriate Ie al advice, or applicable
court decision, any term, condition or provision 0 this Title imposes a
requirement which is prohibited by applicable federal r state law, or prohibits
an action which must be allowed under applicable' fede I or state law, then any
such term, condition or provision shall be constr ed to not impose the
requirement which is prohibited by valid federal or stat laws or not to prohibit
the action which must be allowed under valid federal or state law.
Section 2. This Ordinance shall take effect and be in for e five days from and after its
passage, approval and publication as required by law.
PASSED by the City Council this 9th day, of October,
APPROVED by the Mayor the 10th day of 0 ober, 2
APPROVED AS TO FORM:
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..
..
ROD P. KASEGUMA, City Attorney
PILED wrm THE CITY CLERK: September 11, 2002
PASSED BY THE CITY COUNCIL: October 9, 2002
PUBLISHED: October 16, 2002
EFFECTIVE DATE: October 21, 2002
ORDINANCE: 2002-36
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Ordinance 2002-36 I Telecommunications
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