HomeMy WebLinkAbout3287 Ordinance- t a.
ORDINANCE NO 3 .3 7
AN ORDINANCE OF THE CITY OF PASCO, WASHINGTON, RELATING
TO TELECOMMUNICATIONS, REGULATING THE OCCUPANCY AND
USE OF PUBLIC RIGHTS-OF-WAY, ESTABLISHING BUSINESS LICENSING,
FRANCHISE, RIGHT-OF-WAY PERMIT, AND FACILITIES LEASE
REQUIREMENTS, DESCRIBING VIOLATIONS AND ESTABLISHING
PENALTIES, AND AMENDING THE PASCO MUNICIPAL CODE BY
ADDING A NEW TITLE THERETO, TO BE KNOWN AS TITLE 15,
TELECOMMUNICATIONS, CONSTITUTING NINE CHAPTERS, AND
ESTABLISHING AN EFFECTIVE DATE
WHEREAS, Congess has adopted the Telecommunications Act of 1996 (heremafter the
"Act") m order to encourage the development of high-technology telecommunications systems
through mcreased competition among telecommunications companies, and
WHEREAS, it is anticipated that an ever-mcreasing number of telecommunication
companies will request access to and use of public rights-of-way for provision of
telecommunications service to the public, and
WHEREAS, the right to place privately-owned facilities m such rights-of-way for the
business of providing telecommunications services for hire, cable services, or open video services is a
valuable economic right to use a unique public resource that has been acquired and is maintained at
great expense to the City and its taxpayers, the economic benefit of which should be shamd with the
taxpayers of the City, and
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WHEREAS, the City is authorized by state and local law to regulate the use of streets,
public rights-of-way, and other municipal property, to grant access thereto upon certain tenus and
conditions, and to franchise operators of telecommunications systems, open video systems and
cable systems which use such rights-of-way, and
WHEREAS, the City finds that it is in the mterest of the pubhc to franchise and to establish
standards for franchising such operators, and
WHEREAS, the City fmds that it is appropriate for various operators to obtain separate
franchises based on the type of service provided, in order to protect public rights-of-way
throughout the City, provide for City control over the placement of facilities in the rights-of-way,
and to ensure that similarly situated operators can be comparably treated, and to avoid confusion as
to regulatory authority applicable to each ty pe of franchise, and
WHEREAS, m light of federal and state law, and the changes to local procedures required by
them, the City finds that it is necessary and appinp nate to apply the provisions hereof to existing
franchisees and licensees as far as is possible, and to apply it to those with pending or new
applications to place facilities in public rights-of-way for communications purposes, NOW,
THEREFORE, THE CITY COUNCIL FOR THE CITY OF PASCO DO ORDAIN AS
FOLLOWS
Section 1 The Pasco Municipal Code is hereby amended by adding a new title thereto, to
be known as Title 15, "Telecommunications," consisting of nine chapters to read as follows
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TITLE 15
TELECOMMUNICATIONS
Chapter 15 10
General Promsions
Sections •
15.10.010 Findings and Purpose
15.10 020 Definitions.
15.10 030 Busmess License Required.
15.10 040 Apphcations Required.
15.10 050 Determination by City
15 10 060 Construction Permits Required.
15.10.070 Transitional Promsions.
15 10.080 Administration.
Chapter 15.20
Administrative Provisions
Sections:
15 20.010 Non-Exclusive Grant.
15.20.020 Term.
15.20.030 Agreement.
15.20.040 Rights Granted.
15.20.050 Nondscnmmation.
15.20.060 Amendment.
15.20 070 Renewal
15 20.080 Renewal Determination.
15 20.090 Obligation to Cure as Condition of Renewal.
15.20.100 Incorporation by Reference.
Chapter 15.30
Right-of-Way Use Permits
Sections.
15 30.010 Right-of-Way Use Permit Required.
15.30 020 S peafied Route.
Charter 15 40
Franchises
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•
Sections:
15.40.010 Franchise Reqtnred.
15.40.020 Franchise Terntory
Chapter 15 50
Facilities Lease
Sections:
15.50 010
15.50.020
15.50 030
15.50 040
Facilities Lease Required.
Interference with Other Users.
Ownership and Removal of Improvements
Cancellation of Lease by Lessee.
Sections:
15 06 010 Appeal Procedure.
Chapter 15.60
Appeal of City Determination
Chapter 15.70
Conditions of Permits, Franchises
and Leases
Sections:
15.70.010 Purpose.
15.70 020 General Reqturements
15.70.030 Leased Capacity.
15.70 040 Most Favored Community.
15.70.050 Acceptance.
15 70.060 Rules and Regulations by the City
15.70 070 Compliance with Apphcable Codes and Ordmances.
15 70.080 Compliance with One Call Locator Service.
15.70.090 Duty to Promde Information.
15 70.100 Facilities Maps
15.70.110 Location of Facilities.
15 70.120 Notice of Work.
15.70 130 Notice of Entry on Pnvate Property.
15.70.140 Coordination of Construction Activities.
15 70.150 Pre-Excavation Equipment Location.
15.70.160 Interference with City Property and the Pubhc Ways.
15.70.170 Maintenance of Facilities.
15.70.180 Relocation or Removal of Facilities.
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15.70.190 Damage to Facilities.
15.70.200 Damage to Property.
15.70.210 Building Moving.
15.70.220 Removal of Unauthorized Facilities.
15 70 230 Emergency Removal or Relocation of Facilities.
15.70.240 Failure to Relocate.
15.70.250 Repair and Emergency Work.
15.70.260 Abandonment of Facilities
15.70.270 Restoration of Pubhc Ways, Other Ways and City Property.
15.70.280 Safety Reqiurements
15.70.290 Insurance and Indemnification.
15.70.300 Performance and Construction Surety
15.70.310 Construction and Completion Bond.
15.70.320 Assignments or Transfers of Grant.
15.70 330 Transactions Affecting Control of Grant
Chapter 15.80
Fees and Compensation
Sections:
15 80 010
15 80.020
15 80.030
15 80.040
15 80.050
15.80.060
15 80.070
Way.
15 80.080
Payment of Fees and Compensation to the City.
Application andReview Fee.
Other City Costs
Compensation for Use of Right-of-Way.
Compensation for City Property Occupancy and Use, and Facility
Leases
Communications System Operator's Costs.
Payment of Fees and Compensation for Use of Rights-of-
Regulatory Fees and Compensation Not a Tax.
Chapter 15.90
Enforcement
S ections•
15.90.010 Notice of Violation.
15.90 020 Enforcement
15.90 030 Impossibility of Performance.
15.90 040 Other Remedies
15.90.050 No Waner.
15.90 060 Severability.
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Chapter 15 10
General Promstons
Section 15.10.010 Findings andPurpose
The Council of the City of Pasco finds that the City's public streets, alleys, utility
easements dedicated for compatible uses, and other rights-of-way within the City constitute
valuable public property
A constituting public investments for which the taxpayers are entitled to a fair
monetary return on the city's past and future investment m the city's infrastructure, and
B can be partially occupied by private companies and other entities for facilities
used m the delivery, conveyance, and transmission of utility and public services rendered for
profit, to the enhancement of the health, welfare, and general economic well-being of the City
and its citizens, and
C are a unique and physically limited resource so that proper management by the
City is necessary, to maximize the efficiency and minimize the costs to the taxpayers of the
foregoing uses, to protect against foreclosure of future economic expansion because of
premature exhaustion of the public rights-of-way as an economic resource, and to minimize
the inconvenience to and negative effects upon the public from such facilities' construction,
emplacement, relocation, and maintenance m the rights-of-way
The City also finds that it is m the interest of the public to franchise and to establish
standards for franchising operators, carners and providers of communications services
Therefore, the purpose and intent hereof is to
A establish clear and nondiscriminatory local guidelines, standards and time frames
for the exercise of local right-of-way management authority with respect to communications
providers and services,
B promote competition m telecommunications,
C permit and manage reasonable access to the public ways of the City for
communications purposes on a competitively neutral basis,
D conserve the limited physical capacity of the public ways held in public trust
by the City,
E secure fair and reasonable compensation to the City and the residents of the
City for p ermittmgp mate use of the public ways,
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F assure that the City can continue to fairly and responsibly protect the public
health, safety and wellre, and
G enable the City to discharge its public trust consistent with rapidly evolvmg
federal and state regulatory policies, industry competition and technological development
Section 15.10 020 Definthons
For the purpose hereof, and the mterpretation and enforcement thereof, the following
words and phrases shall have the meanings given herein, unless the context of the sentence m
which they are used shall indicate otherwise When not inconsistent with the context, words
used m the present tense include the future tense, words m the plural number include the
smgrlar number, and words in the singular number include the plural number, and the
masculine gender includes the femmme gender The words "shall" and "will" are mandatory,
and "may" is permissive Unless otherwise expressly stated, words not defined herein shall
be construed consistent with Title 47 of the United States Code, and, if not defined therem,
their common and ordinary meaning References to governmental entities (whether persons
or entities) refer to those entities or their successors in authority If specific provisions of
law referred to herein are renumbered, then the reference shall be read to refer to the
renumbered provision References to laws, ordinances or regulations shall be mterpreted
broadly to cover government actions, however nominated, and include laws, ordinances and
regulations now in force or hereinafter enacted or amended
A "Affiliate" means a person, who (directly or indirectly) owns or controls, is
owned or controlled by, or is under common ownership or control with another person
B "Applicant" means any person or entity that apphes for any right-of way
permit, franchise, lease, or other permit pursuant hereto
C "Application Fee" means the charge specified in Chapter 15 80 herein, and
designed to recover the City's actual costs in processing applications for any right-of way
permit, franchise, lease, or other permit pursuant hereto, including applications for the
transfer thereof
E "Cable service" for the purpose hereof shall have the same meaning provided by
the Cable Act, and shall mean
1 the one-way transmission to subscribers of
a video progamming or
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b other progammmg service, and
2- subscriber interaction, if any, which is required for the selection or use of
such video progammmg or other prog -ammmg service
F "Cable system" means a facility, consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment that is designed to provide
cable service which includes video progammmg and which is provided to multiple
subscribers within a community, but such term does not include
1 a facility that serves only to retransmit the television signals of one or
more television broadcast stations,
2 a facility that serves subscribers without using any public right-of-way,
3 a facility of a common carner which is subject, m whole or m part, to the
provisions of Title II (Common Carners) of the Communications Act of 1934, as amended,
except that such facility shall be considered a cable system to the extent such facility is used
in the transmission of video progammmg directly to subscribers, unless the extent of such
use is solely to provide mteractwe on-demand services,
4 any facilities of any electric utility used solely for operating its electric
utility systems, or
5 an open video system that is certified by the FCC
A reference to a Cable System includes pedestals, equipment enclosures (such as
equipment cabinets), amplifiers, power guards, nodes, cables, fiber optics and other
equipment necessary to operate the cable system
G "City" means the City of Pasco, Washington, and all departments, divisions,
employees, and agencies thereof
H "CIO property" means and includes all real property owned by the City, other
than public streets and utility easements as those terms are defined herein, and all property
held in a proprietary capacity by the City, which are not subject to right-of-way use
permitting and franchis mg as provided herein
I "Communications canzer" means and includes every person that directly or
indirectly owns, controls, operates or manages plant, equipment or property within the
City, used or to be used for the purpose of offermg communications service
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J "Communications operator" means a person
1 who provides service over a communications system and directly or
through one or more affiliates owns a significant interest in such facility, or
2 who otherwise controls or is responsible for, through any arrangement,
the management and operation of such a facility A person that operates under agreement a
Telecommunications System or a specific portion of a Telecommunications System to
provide Telecommunications Services shall be treated as an Operator for purposes hereof
K "Communications prouder" means and includes every person who provides
communications services over communications facilities without any ownership or
management control of the facilities
L "Communications facility" means a device which alone or as part of an
aggregation of devices is capable of transmitting signals from p lace to place
M "Communications system" refers to a telecommunications system, but does not
include a cable system or open video system, as said terms are defined herein or m applicable
federal law, to the extent the system is used to provide cable service or open video system
service as said terms are defined herein or in app hcable federal law
N "Council" means the City Council of the City of Pasco, Washington acting in
its official capacity
0 "Emeigency" means a condition of imminent danwr to the health, safety, and
welfare of property or persons located within the City including, without limitation, damage
to persons or property from natural consequences, such as storms, earthquakes, riots or
wars
P "Excess capacity" means the volume or capacity in any existing or future duct,
conduit, manhole, handhole or other utility facility within the public way that is or will be
available for use for additional communications facilities
Q "FCC" or "Federal Communications Commission" means the Federal
administrative agency, or lawful successor, authorized to regulate and oveisee
telecommunications, cable, and open video earners, services and providers on a national
level
R "Fiber Optics" means the technology of guiding and projectmg light for use as a
communications medium
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"Franchise" shall mean the initial authorization, or renewal thereof, granted by
the City to an operator of a telecommunications system, cable system, or an open video
system hereunder giving the operator the non-exclusive right to occupy the space in, under,
over or across public ways of the City to provide a specified service within a franchise area
Any franchise shall be issued in the form of an ordinance of the City, and must be accepted
by the franchisee to become effective in the time and manner specified m the City Charter,
Pasco Municipal Code, or the Franchise ordinance Such franchise shall not mclude or be a
substitute for
1 any other permit or authorization required for the privilege of transacting
and carry mg on a business within the City required by the ordinances and laws of the City,
2 any permit, agreement or authorization required m connection with
operations on or in public streets or property, including by way of example and not
limitation, construction and street cut permits,
3 any permits or agreements for occupying any other property of the City
or private entities to which access is not specifically granted by the Franchise mcludmg,
without limitation, permits and agreements for placing devices on or in poles, conduits, other
structures, or railroad easements, whether owned by the City, or a private entity, or
4 the right to place devices in the right-of-way, such as pay telephones, for
end user use in termmat mg or origmatmg transmis sions
By way of example, and without limiting the foregoing, this Title shall not be read to
diminish or in any way affect the authority of the City to control and charge for the use of
its real estate, fixtures or personal property Therefore, any person who desires to use such
property must obtain additional approvals, franchises, or agreements for that purpose, as
may be required by the City
T "Franchise Area" means the area of the City that a franchisee is authorized to
serve by the terms of its franchise or by operation of law
U "Franchisee" means the person, firm or corporation to whom Or which a
franchise, as defined in this Section, is granted by the Council hereunder and the lawful
successor, transferee or assignee of said person, firm or corporation subject to such
conditions as may be defined herein
V "Gross Revenues" shall have the meaning set forth in Chapter 5 32 of the Pasco
Municipal Code and/or an apphcable franchise agreement under which a franchise fee is
collected based upon the franchisee's gross revenues
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W "Open Video System" or "OVS" refers to a facility consisting of a set of
transmission paths and associated signal generation, reception, and control equipment that is
designed to provide Cable Service, which includes video progammmg which is provided to
multiple subscribers within a community, and which the Federal Communications
Commission or its successor has certified as compliant with Part 76 of its rules, 47 C FR,
Part 76, as amended from time-to-tine
X "Open Video System Serlice" means video progammmg by means of an Open
Video System
Y "Other ways" means the highways, streets, alleys, utility easements or other
rights-of-way within the City, but under the jurisdiction and control of a governmental
entity other than the City
Z "Overhead facilities" refers to electric utility and communications facilities
located above the surface of the ground, including the underground supports and foundations
for such facilities
AA "Person" means and includes corporations, companies, associations, joint stock
companies or associations, firms, partnerships, limited liability companies and individuals
and includes their lessors, trustees and receivers, but not the City
AB "Praute Communications System" means a facility placed in whole or in part in
the public rights-of-way for the provision of communications in connection with a person's
business, but not encompassing in any respect the p rovision of telecommunications services
AC "Prilute Communications System Owner" means a person that owns or leases a
private communications system
AD "Property of franchisee" means all property owned, installed or used by a
franchisee m the conduct of its business in the City under the authority of a franchise
granted pursuant hereto
AE "Proposal" means the response, by an mdividual or organization, to a request
by the City regarding the provision of communications services, or an unsolicited plan
submitted by an individual or organization seeking to provide communications services in
the City
AF "Public street" means any highway, street, alley or other public right of way for
motor vehicle travel under the jurisdiction and control of the City which has been acquired,
established, dedicated or devoted to transportation purposes For the purposes of this
Section, the term "alley" shall have its ordinary meaning and shall generally be considered to
RJM181984 401F0058 080 001/B0058 080001
mean a public right-of-way which affords a secondary means for vehicular or utility access
to abutting property and which is not intended for general traffic circulation
AG "Public nght-of-way" or "Public way" means and includes the public streets
and easements which, under the City Charter, the Pasco Municipal Code, City ordinances,
and applicable laws, the City has authority to grant franchises, permits, or leases for use
thereof, or has regulatory authority thereover, and as may be more specifically defined m the
franchise, permit, or lease granting any right to or use thereof Public ways for the purpose
hereof do not include buildings, parks, poles, or similar facilities or property owned by or
leased to the City, including, by way of example and not limitation, structures in the public
way such as utility poles and light poles
All "Reseller" refers to any person who resells a telecommunications service, for
which he makes a separate charge, provided over a telecommunications system, where that
person does not own or lease the underlying telecommunications system used for the
transmission
Al "Right-of-Way Use Permit" refers to the legal authorization, terminable at will,
to use a particular, discrete, and limited portion of the public rights-of-way to construct,
operate, or repair a communications facility or a private communications system The term
right-of-way use permit shall not mean or include
1 any other permit or authorization required for the privilege of transacting
and carrying on a business within the City required by the ordinances and laws of the City,
2 any permit, agreement, or authorization required m connection with
operations on public streets or property, including by way of example and not limitation,
construction or street cut permits,
3 any permits or agreements for occupying any other property of the City
or private entities to which access is not specifically granted by the right-of-way use permit
including, without limitation, permits and agreements for placing devices on or in poles,
conduits, other structures, or railroad easements, whether owned by the City, or a private
entity, or
4 the right to place devices m the right-of-way, such as pay telephones, for
end-user use in origtnatmg and t erminating transmissions
AJ "State" means the State of Washington
AK "Surplus space" means that portion of the usable space on a utility pole, or in a
duct or conduit which has the necessary clearance from other users, as required by federal or
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state orders and regulations, to allow its use by a communications carner for a pole
attachment or other communications facility
AL "Telecommunications facilities" See "Telecommunications System"
AM "Telecommunications Service" or "Communications Service" means the
transmission for rent, sale or lease, or in exchange for other value received, of information m
electronic or optical form, mcludmg, but not limited to, voice, video, or data, whether or not
the transmission medium is owned by the provider itself Telecommunications service
includes telephone service but does not include cable service, open video system service, or
over-the-air broadcasts to the public-at-large from facilities licensed by the Federal
Communications Commission or any successor thereto
AN "Telecommunications System" means a tangble facility that is used to provide
one or more telecommunications services, any portion of which occupies public rights-of-
way The term telecommunications system by way of example, and not limitation, includes
wires, equipment cabinets, guys, conduit, radio transmitting towers, poles, other supporting
structures, and associated and appurtenant facilities used to transmit telecommunications
signals The termtelecommunications system includes all devices mounted on light poles in
the pubhc rights-of-way through which telecommunications services are originated or
terminated A cable system is not a telecommunications system to the extent that it provides
only cable service, an open video system is not a telecommunications system to the extent
that it provides only video services
AO "Transfer" means any transaction in which
1 all or a portion of the communications system is sold or assigned (except a
sale or assignment that results in removal of a particular portion of the facility from the
p ubhc right s-of-way ),
2 there is any change, acquisition, or direct or indirect transfer of control of
the franchisee or right-of-way use permit holder, or
3 the rights and/or obligations held by the franchisee or right-of-way use
permit holder under the franchise or right-of-way use permit are transferred, sold, assigned,
or leased, in whole or in part, directly or indirectly, to another party It will be presumed
that any transfer or cumulative transfer of voting mterest of 10 percent or more is transfer of
control within the meaning of Subsection 2
AP "Underground facilities" means utility and communications facilities located
under the surface of the ground, excluding the underground foundations or supports for
overhead facilities
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AQ "Usable space" means the total distance between the top of a utility pole and
the lowest possible attachment point that provides the minimum allowable vertical clearance
as specified in any federal or state orders and regulations
AR "Utility easement" means any easement owned by the City and acquired,
established, dedicated or devoted for public utility purposes not inconsistent with
communications facilities
AS "Uti110 facilities" means the plant, equipment and property, mcludmg but not
limited to the poles, pipes, mains, conduits, ducts, cables, wires, plant and equipment
located under, on or above the surface of the ground within the public ways of the City and
used or to be used for the purpose of providing utility, communications services
Section 15 10 030 Busmess License Required.
Except as otherwise provided herein, all communications operators, earners and
providers engaged in the business of transmittmg, supplying or furnishing communications
service of any kind originating or terminating m the City shall apply for and obtain a
business license from the City pursuant to Pasco Municipal Code Title 5, Business
Licensing and Regulations, to the extent that a business license is required by said Title
Section 15.10.040 Apphcations Required.
Any person that desires a Right-of-Way Use Permit, a Franchise or a Facilities Lease
pursuant hereto shall file an application with the City, which shall include the following
applicable information.
A The identity of the applicant, including all affiliates of the applicant,
B A description of the communications services that are or will be offered or
provided by the applicant over its communications facilities,
C A description of the transmission medium that will be used by the apphcant to
offer or provide such communications services,
D An accurate map showing the location of any existing communications facilities
in the City that applicant intends to use or lease,
E A description of applicant's access and line extension policies, if applicable,
F The area or areas of the City the applicant desires to serve and a schedule for
build-out to the entire franchise area,
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G A description of the City property upon which the apphcant proposes to
locate communications facilities or other equipment,
H Preliminary plans and specifications in sufficient detail to identify
1 The location(s) of existing communications facilities or other equipment
upon City property, whether publicly or privately owned,
2 The location and source of electric and other utilities required for the
installation and operation of the proposed facilities,
Accurate scale conceptual drawmgs and diagams of sufficient specificity to
analyze the aesthetic impacts of any proposed communications facilities or other
equipment,
Preliminary engineermgplans, specifications and a network map of the facilities
to be located within the City, all in sufficient detail to identify
1 The location and route requested for applicant's proposed facilities,
2 The location of all overhead and underground public utility,
telecommunication, cable, water, sewer and stoimwater drainage, natural gas, and other
facilities m the public way along the proposed route,
3 The location(s), if any, for interconnection with the communications
facilities of other communications operators, carners or providers, and
4 The specific trees, structures, improvements, facilities and obstructions, if
any, that applicant proposes to temporarily or permanently remove or relocate,
K If apphcant is proposing to install overhead facilities, evidence that surplus
space is available for locating its communications facilities on existing utility poles along the
proposed route,
L If applicant is proposmg an underground installation in existing ducts or
conduits within the pubhc ways, information in sufficient detail to identify
1 The excess capacity currently available in such ducts or conduits before
installation of applicant's communications facilities,
2 The excess capacity, if any, that will exist in such ducts or conduits after
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mstallation of applicant's communications facilities, and
3 Evidence of ownership or a right to use such ducts or conduits
M If the applicant is proposing an underground mstallation within new ducts or
conduits to be constructed within the public ways
1 The location proposed for the new ducts or conduits, and
2 The excess capacity that will exist in such ducts or conduits after
installation of applicant's communications facilities
N A preliminary construction schedule and completion date;
0 Information to establish that the applicant has obtained all other governmental
approvals and permits to construct and operate the facilities, and to offer or provide the
communications services, mcluding, but not limited to, evidence that the applicant has
registered with the Washmgton Utilities and Transportation Commission,
P All deposits or charges required pursuant hereto, and
Q All applicable fees as set forth herein
S ection 15.10.050 Determination by City
A Right-of-w' Use Permits Within 90 days after receiving a complete
application for a Right-of-Way Use Permit, the City Engineer or her or his designee shall
issue a written detemnnation granting or denying the permit application in whole or in part
If the application is denied, the written determination shall include the reason(s) for denial
The decision to grant or deny an app hcation shall be based upon the following standards
1 Whether the applicant has received all requisite licenses, certificates, and
authorizations from the Federal Communications Commission, the Washington Utilities and
Transportation Commission, and any other federal or state agency with jurisdiction over the
activities proposed by the applicant,
2 The capacity of the public ways to accommodate the applicant's
proposed facilities,
3 The capacity of the public ways to accommodate additional utility, cable,
open video, and telecommunications facilities if the permit is granted,
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4 The damage or disruption, if any, of public or private facilities,
improvements, service, travel or landscapmgif the permit is granted,
5 The public interest in minimizing the cost and dismption of construction
withm the public ways,
6 The service that applicant will provide to the community and region,
7 The effect, if any, on pubhc health, safety and welfare if the permit is
granted,
8 The availability of alternate routes and/or locations for the proposed
facilities,
9 Applicable federal and state commurucations laws, regulations and
policies,
10 Such other factors as may demonstrate that the grant to use the public
ways will serve the community interest and,
11 Such other and further factors as may be deemed appropriate by the City
B Franchises Within 120 days after receiving a complete application under Pasco
Municipal Code Section 15 10 040 for a Franchise, the City shall issue a written
determmation grantmg or denying the application m whole or in part Prior to grantmg or
denying a Franchise, the City Council shall conduct a public hearmg and make a decision
based upon the standards set forth m Pasco Municipal Code Section 15 10 050(A)
Pursuant to RCW 35A 47 040, the City Council shall not approve any Franchise hereunder
until the next regularly scheduled Council meeting following the public heanng If the
application is denied, the written determination shall include the reason for denial
C Facilities Leases Recognizing that the City is under no obligation to grant a
Facilities Lease for the use of City property, the City shall strive to consider and take action
on applications for Facilities Leases within 90 days after receiving a complete application for
such a lease When such action is taken, the City Engineer shall issue a written
determination granting or denying the lease in whole or m part, applying the standards set
forth below If the lease application is denied, the written determination shall include the
reason for denial, if any
1 The capacity of the City property and public ways to accommodate the
applicant's proposed facilities
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2 The capacity of the City property and pubhc ways to accommodate
additional utility and telecommunications facilities if the lease is granted
3 The damage or disruption, if any, of pubhc or private facilities,
improvements, service, travel or landscap mg if the lease is granted
4 The public interest in minimizing the cost and dismption of construction
up on City property and withm the public ways
5 The service that applicant will provide to the community and region
6 The effect, if any, on public health, safety, and welfare if the lease
requested is approved
7 The availability of alternate routes and/or locations for the proposed
facilities
8 Whether the app hcant is in compliance with applicable federal and state
telecommunications laws, regulations and policies, including, but not limited to, the
registration requirements admmistered by the Washington Utilities and Transportation
Commission
9 The potential for radio frequency and other interference with existing
public and private telecommunications or other facilities located upon the City property
10 The potential for radio frequency and other interference or impacts upon
residential, comnrrcial, and other uses located within the vicinity of the City property
11 Such other factors as may demonstrate that the lease to use the City
property will serve the community mterest
Section 15.10 060 Construction Permits Required.
Except as otherwise provided herein, the holder of an approval granted hereunder,
shall, in addition to said approval, be required to obtain a Construction Permit from the City
pursuant to Pasco Municipal Code, Chapter 12 24 No work, construction, development,
excavation, or installation of any equipment or facilities shall take place within the pubhc
ways or upon City property until such time as the Construction Permit is issued
Section 15.10 070 Transitional Promsions.
A Persons operating without a Franchise, Right-of-Way Use Permit or Facilities
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Lease The operator of any facility, the operation of whidi requires an approval hereunder,
shall, within three months from the effective date hereof, file the appropnate application or
applications, to the extent that the City is permitted to require said operator to obtain said
approvals Nothmg herem shall prevent the City from requirmg removal of any facilities
mstalled or mamtamed in violation of the Pasco Municipal Code or of this Ordinance
B Persons holding Franchises, Right-of-Way Use Permits or Facilities Leases
Any person holding an outstanding Franchise, Right-of-Way Use Permit or Facilities Lease
from the City may continue to operate under the existing approval to the conclusion of its
present term, but not any renewal or extension thereof
C Persons with pending applications Pending applications shall be subject to this
Ordinance A person with a pending application shall have 30 days from the effective date
hereof to submit additional mfonnation to comply with the requirements hereof
Section 15.10 080 Admmistrahon
Administration of this ordinance on behalf of the City shall be by the City Manager or
his or her designee Such person shall have the power to resolve disputes and issue such
rules and regulations as he or she may deem necessary to carry the terms hereof mto effect
Decisions of such person made m accord with this section are final, subject to review as
provided herem
Chapter 15 20
Administrative Promsions
Section 15.20.010 Nonexclume Grant.
No appruval granted hereunder shall confer any exclusive right, privilege, license or
franchise to occupy or use the public ways or property of the City for delivery of
communications services or any other purposes
Section 15.20.020 Term.
Unless otherwise specified in a Right-of-Way Use Permit or Franchise granted
hereunder, no such ap p tuval shall be grated for a term exceeding 5 years Unless otherwise
specified m a Lease granted hereunder, no lease shall be granted for a term exceeding 1 year
Section 15.20 030 Agreement
No approval granted hereunder shall be effective until the applicant and the City have
executed a written agreement setting forth the particular terms and provisions under which
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the grantee has been granted the right to occupy and use public ways of the City or City
property
Section 15.20.040 Rights Granted.
No approval shall convey any right, title or interest in the public ways or to City
property Nor shall said approval constitute any warranty of title by the City
Section 15.20.050 Nondscnmmation.
To the extent permitted by Federal and State law, the City reserves the right to assure
that any person purporting to serve the general public shall make its communications
services available to any customer within its franchise area who shall request such service,
without discrimination as to the tenns, conditions, rates or chaiges for the services,
provided, however, that nothing herein shall prohibit the making of reasonable classifications
among differently situated customers
Section 15.20 060 Amendment.
Except as otherwise provided within a Right-of-Way Use Permit, Franchise or
Facilities Lease, a new application and grant shall be required of any communications carner
or provider that desires to amend its Right-of-Way Use Permit, Franchise or Facilities Lease
If a carner or provider is ordered by the City to locate or relocate its communications
facilities in pubhc ways not included in a previously granted Right-of-Way Use Permit,
franchise or facilities lease, the City shall grant an amendment without further application
Section 15.20.070 Renewal
A Right-of-Way Use Permits and Franchises Any person who desires to renew
its Right-of-Way Use Permit or Franchise for an additional term shall, not more than 180
days nor less than 90 days before expiration of the current approval, file an application for
renewal
B Facilities Leases An application for renewal of a Facilities Lease shall not be
required unless the City gives written notice to a lessee that a renewal application will be
required, such notice bemg received at least sixty (60)days prior to the end of a lease's then
relevant term. If the City fads to give such written notice, renewal will occur automatically
without action by the City or the lessee If, at least sixty (60)days prior to the expiration of
a lease, the City gives written notice to a lessee that a renewal application will be required,
the lessee shall submit said application at lease thirty (30)days prior to the expiration of the
lease
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C All renewal applications shall include the following
A The information required pursuant to the app heat ion provisions hereof,
B Any mformat ion required under the terms of the p ermit, franchise, or lease,
C All deposits or charges required pursuant hereto, and
D All app heat ion fees
Section 15.20.080 Renewal Determination.
A Right-of-Way Use Permits Within 90 days after receivmg a complete
application for renewal, the City Engineer shall issue a written determmation granting or
denying the renewal application m whole or in part If the renewal application is denied, the
written determination shall mclude the reasons for non-renewal, including
1 The continuing cap acity of the public ways to accommodate the
apphcant's existing facilities,
2 The applicant's compliance with the requirements hereof and the permit,
3 Applicable federal, state and local communications laws, rules and
policies, and
4 Such other factors as may demonstrate that the contmued grant to use the
public ways or City property will serve the community interest
B Franchises Within 120 days after receivmg a complete app hcation for renewal
of a Franchise, the City shall issue a written determination granting or denying the
application in whole or in part Prior to granting or denying a Franchise renewal, the City
Council shall conduct a public hearing and make a decision based upon the standards set
forth m Pasco Municipal Code Section 15 20 080(A) Pursuant to RCW 35A 47 040, the
City Council shall not approve any Franchise hereunder until the next regularly scheduled
Council meeting following the public hearing If the application is denied, the written
determination shall mclude the reason for denial
C Facilities Leases Recognizing that the City is under no obligation to grant a
renewal of a lease for the use of City property, the City shall consider and take action on
applications for renewal of a lease within thirty (30) days after receiving a complete
application for renewal When such action is taken, the City shall issue a written
determination planting or denying the lease renewal in whole or in part, applying the
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standards set forth m Pasco Municipal Code Section 15 10 050(C) If the City takes no
action on an application for renewal of a lease within thirty (30) days after receivmg a
complete application for renewal, the lease renewal will be deemed to have occurred
automatically
Section 15.20 090 Obligation to Cure as a Concition of Renewal.
No approval granted hereunder shall be renewed until any ongoing violations or
defaults therein have been cured, or a plan detailing the corrective action to be taken has been
approved by the City
Section 15 20.100 Incorporation by Reference - Conflicts.
The provisions hereof shall be incorporated by reference m any approval hereunder
The provisions of any proposal submitted and accepted by the City shall be incorporated
by reference m the applicable permit, franchise or lease However, in the event of any
conflict between the proposal, this Title, and the permit, franchise or lease, the permit,
franchise or lease shall be the prevailing document In the event of any conflict between the
provisions of this Title and any othcr provision of the Pasco Municipal Code, the
provisions of this Title shall control
Chapter 15.30
Right-of-Way Use Permits.
Section 15.30.010 Right-of-Way Use Permit Reqmred.
Any communications provider or earner or other person who desires to occupy public
ways of the City and to provide telecommunications, cable, or open video services to any
person or area outside the City must first obtain a Right-of-Way Use Permit
Section 15 30 020 Specified Route.
A Right-of-Way Use Permit granted hereunder shall be limited to a grant of speafic
public ways and defined portions thereof
Chapter 15.40
Franchises.
Section 15.40 010 Franchise Required.
A Franchise shall be required of any communications provider or carner or other
person who desires to occupy public ways of the City and to provide telecommunications
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services to any person or area in the City Provided, however, that a Right-of-Way Use
Permit may, with the approval of the City Engineer, be substituted for a Franchise m the
following circumstances
A Privately owned telecommunications networks or systems which are operated
solely for purposes other than offering telecommunications services to other persons or the
general public An example of such a network or system includes, but is not limited to, a
telecommunications network connectmgtwo business facilities under common ownership or
control, when said facilities are not offered to other business entities or persons
B De nunimis uses of public ways, including such uses made in conjunction
with a wireless telecommunications facility located entirely upon publicly or privately
owned property
Section 15.40.020 Franchise Terntory.
Unless otherwise provided in a franchise, a franchise granted hereunder shall be limited
to the specific geographic area of the City to be served by the franchisee, and the specific
public ways necessary to serve such areas
Charter 15 50
Facilities Lease Required
Section 15 50.010 Facilities Lease Required.
No communications opeiator, earner, provider or other entity desiring to locate
communications equipment on City property shall locate such facilities or equipment on
City property unless granted a Facilities Lease from the City as set forth herein The City
reserves unto itself the sole discretion to lease City property for communications facilities,
and no vested or other right shall be created by this Section or any provision hereof
applicable to such Facilities Leases
Section 15.50.020 Interference with Other Users.
No Facilities Lease shall be granted hereunder unless it contains a provision, which is
substantially similar to the following
"The City has previously entered into leases with other tenants for their equipment
and antennae facilities Lessee acknowledges that the City is also leasing the City property
for the purposes of transnuttmg and receiving communications signals from the City
property The City, however, is not in any way responsible or liable for any mterference
with Lessee's use of the City property which may be caused by the use and operation of
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any other tenant's equipment, even if caused by new technology In the event that any other
tenant's activities interfere with the Lessee's use of the City property, and the Lessee cannot
work out this interference with the other tenants, the Lessee may, upon 30 days notice to
the City, terminate this lease and restore the City property to its original condition,
reasonable wear and tear excepted The Lessee shall cooperate with all other tenants to
identify the causes of and work towards the resolution of any electronic interference
problem In addition, the Lessee agrees to eliminate any radio or television interference
caused to City-owned facilities or surrounding residences at Lessee's own expense and
without installation of extra filters on City-owned equipment Lessee further agrees to
accept such interference as may be received from City-operated communications or other
facilities located up on the City property subject to this lease"
Section 15.50 030 Ownership andRemoval of Improvements.
No Facilities Lease shall be granted hereunder unless it contains a provision which
states that all buildings, landscaping and all other improvements, except communications
equipment, shall become the property of the City upon expiration or termination of the
lease In the event that the City requires removal of such improvements, such removal shall
be accomplished at the sole expense of the lessee and completed withm 90 days after
receivmg notice from the City requiring removal of the improvements In the event that
communications facilities or other equipment are left upon City property after expiration or
termination of the lease, they shall become the property of the City if not removed by the
lessee up on 30 days written notice from the City
Section 15.50.040 Cancellation of Lease by Lessee.
A All Facilities Leases are contingent upon the lessee obtaining all necessary
permits, approvals, and licenses for the proposed facilities In the event that the lessee is
unable to obtain all such permits, approvals, and licenses, it may cancel its lease, and obtain
a pro rata refund of any rents paid, without further obligation by giving 30 days prior
written notice to the City
B In the event that the holder of a Facilities Lease determines that the City
property is unsuitable for its intended purpose, the Lessee shall have the right to cancel its
lease, and obtain a pro rata refund of any rents paid, without further obligation by giving 120
days written notice to the City
Chapter 15.60
Appeal of City Determination.
Section 15 60.010 Appeal Procedure.
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An applicant aggneved by the denial or conditionmg of a Right-of-Way Use Permit,
Construction Permit, or the renewal thereof shall have the right to appeal to the City Council
as follows
A All appeals filed pursuant to this Section must be filed in writing with the City
Engineer within 10 working days of the date of the decision appealed from,
B All appeals filed pursuant to this Section shall specify the error of law or fact,
or new evidence which could not have been reasonably available at the time of the City
Engineer's decision, which shall constitute the basis of the appeal,
C Upon receipt of a timely written notice of appeal, the City Engineer shall advise
the City Council of the pendency of the appeal and request that a date for considermg the
appeal be established,
D All relevant evidence shall be received during the healing on the appeal,
E Unless substantial relevant mformation is presented which was not considered
by the City Engineer, the decision of the City Engineer shall be accorded substantial weight,
but may be reversed or modified by the City Council if, after considering all of the evidence
in light of the applicable goals, policies, and provisions hereof, the City Council determmes
that a mistake has been made. Where substantial new relevant information which was not
considered in the making of the decision appealed from has been presented, the City Council
shall make its decision only upon the basis of the facts presented at the hearing of the
appeal, or may elect to remand the matter for reconsideration by the City Engineer in light of
the additional information,
F For all appeals decided pursuant to this Section, the City shall provide a record
that shall consist of written findings and conclusions and a taped transcript,
G Unless otherwise provided by state statute or other law, all actions seeking
review of a final action of the City, whether in the form of an appeal, declaratory judgment
action, petition for writ of review, or other extraordmary writ, or in any other form shall be
filed with a court having jurisdiction over such action within 14 working days of the
decision, or the expiration of the reconsideration period, whichever is later, and otherwise
shall be barred, and
H No action to obtain Judicial review shall be commenced unless all rights of
appeal provided by this Section are fully exhausted The cost of transcription of all records
ordered certified by the court for such review shall be borne by the party seeking such
review A copy of each transcript prepared by such party shall be submitted to the City for
confirmation of its accuracy
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Chapter 15.70
Conditions of Permits, Franchises and Facility Leases.
Section 15.70 010 Purpose.
The purpose of this Chapter is to set forth certain terms and conditions which are
common to all Right-of-Way Use Permits, Franchises, and Facilities Leases Except as
otherwise provided herein or in such an approval, the provisions hereof apply to all such
approvals granted by the City
Section 15.70.020 General Requirements.
A All grantees, before commencing any construction in the rights-of-way shall
comply with all requirements of the Right-of-Way Use Permit, Franchise, or Facilities Lease
and all requirements of Pasco Municipal Code, Title 12 24,
B All grantees shall provide written confirmation sufficient for customary land
survey and land title insurance purposes concemmg the location of its facilities m rights-of-
way and disclaimmgany interest in rights-of-way where it has no franchise to construct or
operate its facilities
Section 15.70.030 Leased Capacity.
A grantee shall have the right, without prior City approval, to offer or provide
capacity or bandwidth to its customers and other parties consistent with such permit or
franchise, provided
A The grantee shall furnish the City with a copy of any such lease or agreement
between the grantee and the customer or other person, and
B The customer or other person complied, to the extent applicable, with the
requirements of this Title
Section 15 70.040 Most Favored Community.
In the event that a grantee enters into any agreement, franchise or other understanding
with any other city, town or county in the State of Washington which provides terms or
conditions more favorable to the other city, town or county than those provided in its
agreement with the City, such as, but not limited to, free or reduced fee hookups, access or
service, the City shall be entitled to request at the City's option, and the grantee in question
shall be required to execute, an amendment to its agreement which incorporates the more
favorable terms and conditions, to the extern permitted by federal or state law
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Section 15.70.050 Acceptance.
No Franchise granted pursuant to the provisions hereof shall become effective unless
and until the ordinance granting the same has become effective Within thirty (30) days after
the effective date of said ordinance, or within such extended period of time as the Council in
its discretion may authorize, a franchisee shall file with the City Manager its written
acceptance of the franchise, in a form satisfactory to the City Attorney, together with the
bonds, insurance policies, and any other security required by this Title No Right-of-Way
Use Permit or Facilities Lease granted pursuant to the provisions hereof shall become
effective unless and until the grantee has complied with the provisions of Pasco Municipal
Code Section 15 20 030 and submitted the bonds, msurance policies, and any other security
required by this Title
Section 15.70.060 Rules and Regulations by the City
In addition to the inherent powers of the City to regulate and control any permit or
franchise it issues, the authority granted to it by the Cable Act and the Telecommunications
Act of 1996, and those powers expressly reserved by the City, or agreed to and provided for
in any approval, the right and power is hereby reserved by the City to promulgate such
additional regulations as it may find necessary m the exercise of its lawful powers giving due
regard to the rights of a grantee Except as provided herein, the foregoing does not allow for
amendment by the City of material terms of any permit, franchise or lease it issues without
the consent of the grantee The City Council reserves the right to delegate its authority for
permit, franchise or lease administration to a designated agent
Section 15.70.070 Compliance with Applicable Codes and Ordinances
All grantees shall, before commencing any construction in the public ways or upon
City property, comply with app hcable codes and ordinances
Section 15 70.080 Compliance with One Call Locator Service.
All p ermittees and franchisees shall, before comnrncing any construction m the public
ways, comply with all regulations of Title 19 122 RCW, the One Call Locator Service
Section 15 70.090 Duty to Promde Information.
Within ten (10)days of a written request from the City, each grantee shall furnish the
City with information sufficient to demonstrate
A That grantee has complied with all requirements hereof and the grantee's permit,
franchise, or lease, and
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B That all sales, utility and/or communications taxes due the City m connection
with the communications services and facilities provided by the grantee have been properly
collected and p aid,
All books, records, maps and other documents, maintained by the grantee with respect
to its facilities within the public ways and upon City property shall be made available for
inspection by the City at reasonable times and intervals Provided, however, that nothing in
this Section shall be construed to require a grantee to violate state or federal law regarding
subscriber privacy, nor shall this section be construed to require a permittee or franchisee to
disclose proprietary or confidential information without adequate safeguards for its
confidential or proprietary nature
Section 15.70.100 Facilities Maps.
Each grantee shall provide the City with an accurate map or maps certifying the
location of all communications facilities within the public ways Each grantee shall provide
the City with updated maps annually The City Engineer shall have the discretion to
prescribe the format and/or media of said maps, consistent with City codes and policies
Section 15 70.110 Location of Facilities.
To the extent permitted by law, all facilities shall be constructed, installed and located
in accordance with the following terms and conditions, unless otherwise specified in a permit
or franchise agreement
A A permittee or franchisee shall install its communications facilities within an
existmg undergyound duct or conduit whenever excess capacity exists within such utility
facility,
B A permittee or franchisee with permission to install overhead facilities shall
install its communications facilities on pole attachments to existing utility poles only, and
then only if surplus space is available,
C Whenever any existing electric utilities or communications facilities are located
undergyound within a public way of the City, a permittee or franchisee with permission to
occupy the same public way must also locate its communications facilities underground,
D Whenever any new or existing electric utilities, and/or communications facilities
are relocated underground within a public way of the City, a permittee or franchisee that
currently occupies the same public way shall, at its own expense, relocate its facilities
underground Absent extraordinary circumstances or undue hardship as determined by the
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City Engineer, such relocation shall be made concurrently to minimize the disruption of the
pubhc ways No extension granted by the City Engineer under this Subsection shall exceed a
period of twelve (12) months, and
E Whenever new communications facilities will exhaust the capacity of a public
street or utihty easement to reasonably accommodate future communications carriers or
facilities, the p ermittee or franchisee and all other occupants of the public way shall provide
additional ducts, conduits, manholes and other facilities for nondiscriminatory access to
future operators and carners
Section 15.70.120 Notice of Work.
Unless otherwise provided m a permit, franchise or lease agreement, no grantee, nor
any person acting on the grantee's behalf, shall commence any non-emergency work m or
about the public ways of the City, other ways, or upon City property without ten (10)
working days advance notice to the City
Section 15 70 130 Notice of Entry on Private Property.
At least twenty-four (24) hours prior to entermg private property or streets or pubhc
easements adjacent to or on such private property to perform new construction or
reconstruction, a notice mdicatingthe nature and location of the work to be performed shall
be physically posted upon the affected property by the permittee or franchisee A door
hanwr may be used to comply with the notice and posting requirements of this Section A
franchisee shall make a good faith effort to comply with the property owner/resident's
preferences, if any, on location or placement of underground installations (excluding aerial
cable lines utilizing extstmg poles and extstmg cable paths), consistent with sound
engineering p ract ices
Section 15.70.140 Coordination of Construction Activities
All permittees and franchisees are required to cooperate with the City and with each
other
A By Febmary 1 of each year, permittees and franchisees shall provide the City
with a schedule of their proposed construction activities in, around, or that may affect the
public ways,
B Each pemuttee and franchisee shall meet with the City, other permittees and
franchisees and users of the public ways annually or as determined by the City to schedule
and coordinate construction in the public ways, and
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C All construction locations, activities and schedules shall be coomlinated, as
ordered by the City Engineer, to minimize public inconvenience, disroption or damages
Section 15.70 150 Pre-Excavation Equipment Location.
Before the start date of any right-of-way excavation, all persons who have equipment
located in the area to be excavated shall mark the horizontal and approximate vertical
placement of all said equipment Any person whose equipment is less than twenty (20)
mches below a concrete or asphalt surface shall notify and work closely with the excavation
contractor m an effort to establish the exact location of its equipment and the best procedure
for excavation
Section 15.70.160 Interference with City Property and the Pubhc Ways.
No permittee, franchisee, or lessee may locate or maintain its communications facilities
so as to unreasonably mterfere with the use of the public ways or City property by the
City, by the general pubhc or by other persons authorized to use or be present in or upon
the public ways or City property All such facilities shall be moved by the grantee, at the
grantee's cost, temporarily or permanently, as determmed by the City Engineer
Section 15.70.170 Maintenance of Facilities
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
Section 15.70.180 Relocation or Removal of Facilities
Within thirty (30) days following written notice from the City, a grantee shall, at its
own expense, temporarily or perinanently remove, relocate, change or alter the position of
any communications facilities within the public ways or upon City property whenever the
City Engineer shall have determined that such removal, relocation, or alteration is reasonably
necessary for
A The construction, repair, maintenance or installation of any City or other public
improvement in or upon the pubhc ways or City property, or
B The operations of the City or other governmental entity in or upon the public
ways or City property
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Section 15.70.190 Damage to Facilities.
Unless directly and proximately caused by the willful, mtentional or malicious acts by
the City, the City shall not be liable for any damage to or loss of any communications
facility upon City property or within the public ways of the City as a result of or m
connection with any public works, public improvements, construction, excavation, grading,
filling, or work of any kind on such City property or within the public ways by or on behalf
of the City
Section 15.70.200 Damage to Property.
No grantee nor 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 City property, public ways of the
City, other ways or other property, whether publicly or privately owned, located m, on or
adjacent thereto
Section 15.70.210 Building Moving.
Whenever any person shall have obtained permission from the City to use any street
or public way for the purpose of moving any building, a permittee or franchisee, upon seven
(7) days' written notice from the buildmg mover, shall raise or remove, at the expense of the
person desirmg to move the building, any of the perrmttee or franchisee's facilities which
may obstruct the removal or relocation of such buildmg, provided that the person desiring to
move the building shall comply with all requirements of the City for the movement of
buildings
Section 15.70 220 Removal of Unauthorized Facilities.
Within thirty (30) days following written notice from the City, any person that owns,
controls or mamtams any unauthorized communications system, facility or related
appurtenances within the public ways of the City or on City property shall, at its own
expense, remove such facilities or appurtenances from the public ways of the City or on
City property A communications system or facility is unauthorized and subject to removal
in the following circumstances
A Up on expiration or termination a permit, franchise or lease,
B Upon abandonment of a facility within the public ways of the City or on City
property Any property of a permittee or franchisee shall be deemed abandoned if left in
place ninety (90) days after expiration or termmation of a permit or franchise,
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C If the system or facility was constructed or installed without the prior grant of a
permit, franchise or lease,
D If the system or facility was constructed or installed without the prior issuance
of a required construction permit, or
E If the system or facility was constructed or installed at a location not permitted
by the permit, franchise or lease
Provided, however, that the City may, in its sole discretion, allow a permittee,
franchisee, lessee or other such persons who may own, control, or maintam communications
facilities within the pubhc ways of the City or City property to abandon such facilities m
place No facilities of any type may be abandoned m place without the express written
consent of the City Any plan for abandonment or removal of such communications facilities
must be first approved by the City Engineer, and all necessary permits must be obtained
prior to such work. Up on permanent abandonment of the p roperty of such persons in place,
the property shall become that of the City, and such persons shall submit to the City
Manager an instrument in writing, to be approved by the City Attorney, transferrmg to the
City the ownership of such property The provisions of this Section shall survive the
expiration, revocation, or termination of a permit, franchise or lease granted hereunder
Section 15.70.230 Emergency Removal or Relocation of Facilities.
The City retains the right and privilege to cut or move any communications facilities
located within the pubhc ways of the City or upon City property, as the City may
determine to be necessary, appropnate or useful in response to any public health or safety
emergency The City shall not be liable to any communications operator, earner, provider or
any other party for any direct, indirect, or any other such damages suffered by any person
or entity of any type as a direct or indirect result of the City's actions under this Section
Section 15.70.240 Failure to Relocate.
If a grantee is required to relocate, change or alter any communications facilities
constructed, operated and/or maintained hereunder and fails to do so, the City may cause
said work to occur and charge the grantee for the reasonable costs incurred
Section 15.70.250 Repair and Emergency Work.
In the event of an unexpected repair or emergency, a grantee may commence such
repair and emergency response work as required under the circumstances, provided the
grantee shall notify the City as promptly as possible, before such repair or emergency work
conmences or as soon thereafter as possible if advance notice is not practicable. Provided
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further, that all such grantees shall make application for all necessary permits and approvals
within 10 days of the commencement of said emergency response
Section 15.70 260 Abandonment of Facilities
A If the grantee abandons use of its cable, ducts, or other facilities under or
pursuant to the grant, then the facilities shall be removed from the streets, public ways or
City property to the satisfaction of the City at the grantee's cost In lieu of removal, the
City may permit the improvements to be abandoned in place in such a manner as the City
may prescribe Upon permanent abandonment, the grantee shall submit to the City a
proposal and instruments for transferring ownership to the City,
B Upon revocation or termination of a grant, the grantee shall to the satisfaction of
the City, and without cost or expense to the City, promptly remove its facilities unless
permitted by the City to be left m place If the grantee determmes to remove such facilities,
or any portion thereof, then grantee, at its sole expense, shall restore the public rights-of-
way or City property where disturbed by such removal to a reasonable condition under the
supervision and to the reasonable satisfaction of the City, or
C Any such facilities which are not removed within one hundred twenty days
(120) of the termination or revocation of a grant hereunder or of the date the City issued a
permit authorizmgremoval, whichever is later, shall automatically shall become the property
of the City
Section 15.70.270 Restoration of Public Ways, Other Ways and City Property.
A When a grantee, or any person acting on its behalf, does any work in or affecting
any public ways, other ways or City property, it shall, at its own expense, promptly
remove any obstructions therefrom and restore such ways or property to as good a
condition as existed before the work was undertaken, unless otherwise directed by the City,
B If weather or other conditions do not permit the complete restoration required
by this Section, the grantee shall temporarily restore the affected ways or property Such
temporary restoration shall be at the grantee's sole expense and the grantee shall promptly
undertake and complete the required permanent restoration when the weather or other
conditions no longer prevent such p ermanent restoration,
C A grantee or other person acting on its behalf shall use suitable barncades, flags,
flagmen, lights, flares and other measures as required for the safety of all members of the
general public and to prevent injury or damage to any person, vehicle or property by reason
of such work in or affecting such ways or property
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Section 15.70 280 Safety Requirements
A grantee, in accordance with applicable federal, state, and local safety requirements
shall, at all times, employ ordinary care and shall install and mamtam and use commonly
accepted methods and devices for preventmgfailures and accidents which are likely to cause
damage, injury, or nuisance to the public All structures and all lines, equipment and
connections m, over, under, and upon the streets, sidewalks, alleys, public ways or places
and City property, wherever situated or located, shall at all times be kept and maintained in
a safe, suitable condition, and m good order and repair The City reserves the general right to
see that the system of a grantee is constructed and maintained m a safe condition If a
violation of the National Electrical Safety Code or other applicable regulation is found to
exist by the City, the City will, after discussions with a grantee, establish a reasonable time
for a franchisee to make necessary repairs If the repairs are not made within the established
time franc, the City may make the repairs itself or have them made and collect all reasonable
costs thereof from a grantee
Section 15.70.290 Insurance and Indemnification.
A All grantees must maintain in full force and effect, at its own cost and expense,
during the term of a permit, franchise or lease, Comprehensive General Liability Insurance m
the amount of $5,000,000 combined single limit for bodily injury, and property damage The
grantee must provide a Certificate of Insurance designatmg the City as an additional msured
The insurance may not be canceled except upon 30 day's written notice to the City, and
B All grantees must agree to indemnify, save and hold harmless, and defend the
City, its officers, boards and employees, from and against any liability for damages and for
any liability or claims resulting from property damage or bodily injury (mducling accidental
death), whidi arise out of the grantee's construction, operation, or maintenance of its
equipment or facilities, mcluding, but not limited to, reasonable attorneys' fees and costs If
the City decides that it must employ outside counsel, grantee shall pay such costs Said
indemnification shall extend to claims against the City by employees of the grantee and the
employees of the grantee's agents, representatives, contractors, subcontractors, and
consultants, and include an express waiver of the grantee's immunity under Title 51 RCW
solely for the purpose of the mdemnity agreement
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Section 15.70.300 Performance and Construction S urety
Before a permit, franchise or lease granted pursuant hereto 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 City
Section 15 70.310 Construction and Completion Bond.
Unless otherwise provided m a permit, franchise or lease agreement, a performance
bond written by a corporate surety acceptable to the City and equal to at least 100% of the
estimated cost of constructing the grantee's communications facilities within the pubhc ways
of the City or upon City property , shall be deposited before construction is commenced
A The construction bond shall remam in force until sixty (60) days after
substantial completion of the work, as determined by the City Engineer, mcludmg
restoration of public ways and City property affected by the construction,
B The construction bond shall guarantee, to the satisfaction of the City,
1 Timely completion of construction,
2 Construction in compliance with app hcable plans, permits, technical
codes and standards,
3 Proper location of the facilities as specified by the City,
4 Restoration of the public ways and other property affected by the
construction,
5 The submission of 'as-built' drawmgs after completion of the work, and
6 Timely payment and satisfaction of all claims, demands or hens for labor,
material or services provided in connection with the work
Section 15.70.320 Assignments or Transfers of Grant
To the extent permitted by federal or state law, a grantee's right, title, or mterest m an
approval granted hereunder may not be sold, transferred, assigned, or encumbered, other
than to an entity controlling controlled by, or under common control with the grantee,
without the prior consent of the City Provided, that consent by the City will not be
unreasonably denied, conditional, or withheld No consent is required for a transfer in trust,
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by mortgage, by other hypothecation, or by assignment of any rights, title, or interest of the
grantee in its equipment or facilities in order to secure indebtedness
Section 15.70 330 Transactions Affecting Control of Grant.
Any transactions which singularly or collectively result m a change of fifty percent
(50%) or more of the ownership or working control of the grantee, of the ownership or
working control of a communications system, of the ownership or working control of
affiliated entities having ownership or working control of the grantee or of a communications
system, or of control of the capacity or bandwidth of the grantee's communication system,
facilities or substantial parts thereof, shall be considered an assignment or transfer requiring
City approval Transactions between affiliated entities are not exempt from City approval
A grantee shall promptly notify the City prior to any proposed change in, or transfer of, or
acquisition by any other party of control of a grantee's company Every change, transfer, or
acquisition of control of a grantee's company shall cause a review of the proposed transfer
In the event the City adopts a resolution denying as consent and such change, transfer or
acquisition of control has been effected, the City may cancel the permit, franchise or lease
Approval shall not be required if said transfer is from a grantee to another person or entity
controlling controlled by, or under common control with a grantee
Chapter 15 80
Fees and Compensation
Section 15 80 010 Payment of Fees and Compensation to the City.
Except as otherwise provided herein, all communications operators, carriers and
providers en Inted m the business of transmitting, supplying or furnishing of
communications service orignatmg terimnatmg or existing within the City shall obtain a
business license and any franchise, permit, or lease required by the City pursuant hereto, and
shall pay all fees and compensation to the City as provided herein or other applicable
provisions of the Pasco Municipal Code. The fact that a fee is paid on one type of service
provided over a communications system, does not excuse an operator from its duty to pay
fees on other services provided over that facility as required herein
Section 15 80 020 Apphcation and Review Fee.
Any applicant fora Right-of-Way Use Permit, Franchise, or Facilities Lease shall pay
an application and review fee of three hundred dollars ($300 00) In the event that the City
Engineer determines that the engineering legal, administrative, or other costs associated with
reviewing a particular application will greatly exceed the fee established by this Section, he
or she shall have the authority and discretion to establish an apphcation and review fee
which will cover the expenses reasonably incurred by the City in reviewing the application.
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Section 15.80.030 Other City Costs
All grantees shall, within thirty (30)days afta - written demand therefor, reimburse the
City for all other direct and indirect costs and expenses reasonably mcuned by the City m
connection with any issuance, modification, amendment, renewal or transfer of any approval
granted hereunder
Section 15.80.040 Compensation for Use of Right-of-Way
The City reserves the right to fix fair and reasonable compensation for the rights
granted pursuant to a Right-of-Way Use Peinnt or Franchise Provided, however, that the
compensation required from any telecommunications provider or earner engaged m the
"telephone business," as defined in RCW 82 04 065 shall be consistent with RCW
35 21 860
Section 15.80.050 Compensation for City Property Occupancy and Use, and
Facility Leases.
Each Facilities Lease granted hereunder is subject to the City's right, which is
expressly reserved, to fix fair and reasonable compensation
Section 15.80.060 Communications System Operator's Costs.
Nothmg m this Chapter relieves any communications system operator of its obligation
to bear costs associated with its operations, mcluding but not limited to costs of moving
facilities at the direction of the City
Section 15.80.070 Payment of Fees and Compensation for Use of Rights-of-Way.
Unless otherwise specified m a Franchise or Right-of-Way Use Permit, fees and
compensation for use of the public rights-of-way shall be paid to the City pursuant to the
standards set forth m Pasco Municipal Code Chapter 5 32
Section 15.80.080 Regulatory Fees and Compensation Not a Tax.
The regulatory fees and costs provided for in this Chapter, and any compensation
charged and paid for the use of City property, are separate from, and additional to, any and
all federal, state, local and City taxes as may be levied, imposed or due from a
communications operator, earner or provider, their customers or subscribers, or on account
of the lease, sale, delivery or transmission of communications services
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Chapter 15 90
Enforcement
Section 15 90.010 Notice of Violation.
If the City believes that any grantee has not complied with any provision of this Title
or any provision of an approval granted hereunder, then the City shall notify the grantee in
writing of the particular nature of the default The grantee shall have 14 working days from
receipt of the notice to respond to the City contestmgthe default or to cure the default, or if
by its nature the default cannot be cured within 14 working days, take steps to remedy the
default and notify the City of the steps being taken and when they will be completed
Section 15.90 020 Enforcement
If the City Council, after notice and hearing, decides that the grantee is in default of
any provision of this Title or any provision of an approval granted hereunder, then the City
may
A Seek specific performance,
B Seek monetary damages or equitable relief, and/or
C In the case of a default of a material provision of this Title or any provision of
an approval granted hereunder, terminate the right of way use permit, franchise or facilities
lease
Section 15.90 030 Impossibility of Performance
The grantee shall not be m default as a result of strikes, acts of God, power outages,
federal preemption, or other events reasonably beyond its control
Section 15.90040 Other Remedies.
Nothing herein shall be construed as limiting any judicial remedies that the City may
have, at law or m equity, for enforcement hereof
Section 15.90.050 No Waiwr
The failure of the City to enforce any provision hereof on any occasion shall not
operate as a waiver or estoppel of this right to enforce any provision hereof on any other
occasion, act as a waiver or estoppel against application hereof or any other provision of
applicable law
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Charles D Kilbury, Ma or
Section 15.90.060 Severability If any section, sentence, clause or phrase of this
Ordinance should be held to be invalid or unconstitutional by a court of competent jurisdiction, such
invalidity or unconstitutionality shall not affect the validity or constitutionality of any other
section, sentence, clause or phrase hereof
Section 2 Effective Date This Ordinance, bemg an exercise of a power specifically
delegated to the City legislative body, is not subject to referendum This Ordinance shall take effect
five day s after passage of publication of an approved summary thereof consisting of the title
PASSED by the City Council of the City of Pasco at a regular meeting this 3rd day of
March, 1998
CITY OF PASCO.
ATTEST
Cathenne D Seaman, Deputy City Clerk
APPROVED AS TO FORM
Leland B Kerr
City Attorney
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RJM181984 40/F0058 080 001/B0058 080001
SUMMARY OF ORDINANCE NO ,
of the City of Pasco, Washington
On the 3rd day of March, 1998, the City Council of the City of Pasco, passed Ordinance No
a7
A summary of the content of said
ordinance, consist mg of the title, provides as follows
AN ORDNANCE OF THE CITY OF PASCO, WASHINGTON, RELATING TO
TELECOMMUNICATIONS, REGULATING THE OCCUPANCY AND USE OF PUBLIC
RIGHTS-OF-WAY, ESTABLISHING BUSINESS LICENSING, FRANCHISE, RIGHT-OF-
WAY PERMIT, AND FACILITIES LEASE REQUIREMENTS, DESCRIBING VIOLATIONS
AND ESTABLISHING PENALTIES, AND AMENDING THE PASCO MUNICIPAL CODE
BY ADDING A NEW TITLE THERETO, TO BE KNOWN AS TITLE 15,
TELECOMMUNICATIONS, CONSTITUTING NINE CHAPTERS, AND ESTABLISHING
AN EFFECTIVE DATE
The full text of this Ordinance will be mailed upon request
DATED this 3rd day of Mardi, 1998
Catherine D Seaman, Deputy City Clerk
„
P0 BOX 2608
PASCO, WASHINGTON 99302-2608
PHONE (509) 582-1500
lEaRa, ROMEM0212
INVOICE
SOLD TO
nc-,1 0 , C I TY OF GALE
[I ASCE! t,ic) 1
DATE ( (-)r- I LEGAL NO
ACCOUNT NO
DESCRIPTION 11,1411,11 -
TIMES 0(1 1 LINES
voyzaa 4;
NOTICE This is an invoice for legal advertising space Please pay from this invoice as no statement will be rendered
Please detach at perforation and return with payment
AMEX:3 10,11Y PUE3LICAnC393
COUNTY OF BENTON
SS
STATE OF WASHINGTON
ECEM
mAR 6 1998
FQNANCE DEPT.
SUMMARY OF
ORDINANCE NO 3287
of the City oi? Paseo,
Washington
On the 3rd day of March
1998 the City Council of the City g,f Pasco passed
Ordinance No 3287 A summa -y of the content of
said ordinance consisting
of the title provides as fol-lows
AN ORDNANCE OF THE
CITY OF PASCO WASH-
INGTON RELATING TO TELEC OMMUNICATIONS
REGULATING THE OC-
CUPANCY AND USE OF
PUBLIC RIGHTS-OF-WAY
ESTABLISHING BUSI-
NESS LICENSING FRAN-
CHISE RIGHT-OF WAY
PERMIT AND FACILITIES
LEASE REQUIREMENTS
DESCRIBING VIOLA-
TIONS AND ESTABLISH
ING PENALTIES AND
AMENDING THE PASCO
MUNICIPAL CODE BY
ADDING A NEW TITLE
THERETO TO BE
KNOWN AS TITLE 15 TELEC OMMUNICATIONS
CONSTITUTING NINE
CHAPTERS AND ESTAB-
LISHING AN EFFECTIVE DATE
The full text of this Ordi-
nance will be mailed upon
request
DATED this 3rd day of March 1998
-s- Catherine D Seaman
Deputy City Clerk
#0308 - 3/8/98
1-0 ,37 , being duly sworn,
deposes and says, I am the Legal Clerk of the Tr-City Herald, a
daily newspaper That said newspaper is a legal newspaper and
has been approved as a legal newspaper by order of the superior
court in the county in which it is published and it is now and has
been for more than six months prior to the date of the publication
hereinafter referred to, published countinually as a daily newspa-
per in Benton County, Washington That the attached is a true
copy of a #0 ir c..;LIMIV)1 7 1/ OF Ohl-III 1,-)NCT as it
was printed in the regular and entire issue of the Tr-City Herald
itself and not in a supplement thereof, 1 time(s),
commencing on (1 7 /(1-11.-3 ,' , and ending on
(-) ";,/ -4r1 , and that said newspaper was regulary
distributed to its subscribers during all of this period
LlriC/A/- L1C;9a-t
SUBSCRIBED AND SWORN BEFORE ME THIS
DAY OF (-61/1A6/1
Notary public in and for the State of Wash-
ington, residing at
I- 1 f.2Hi_ AI i, tJi
COMMISSION EXPIRES I I JI 1