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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 r RJM181984 40/F0058 080 0011B0058 080001 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 - 2 - RJM181984 40/F0058 080 001/B0058 080001 \ 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 -3 RJM181984 40/F0058 080 0011B0058 080001 • 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. 4 RJM181984 401F0058 080 0011B0058 080001 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. 5 RJM181984 40/F0058 080 001/80058 080001 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, 6 RJM181984 401F0058 080 001/B0058 080001 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 - 7 RJM181984 40/F0058 080 001/B0058 080001 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 - 8 RJM181984 401F0058 080 001/B0058 080001 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 9 RJM181984 40/F0058 080 001/130058 080001 "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 - 10 - RJM181984 40/F0058 080 001/80058 080001 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 - 12 - RJM181984 401F0058 080 001/B0058 080001 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 - 13 - RJM181984 40/F0058 080 001/80058 080001 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, - 14 - RJM181984 40/F0058 080 0011B0058 080001 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 - 15 - RJM181984 40/F0058 080 001/B0058 080001 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, - 16 - RJM181984 401F0058 080 001/B0058 080001 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 - 17 - RJM181984 40/F0058 080 001/B0058 080001 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 - 18 - RJM181984 401F0058 080 001/B0058 080001 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 - 19 - RJM181984 401F0058 080 0011B0058 080001 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 - 20 - RJM181984 40/F0058 080 001/130058 080001 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 - 21 - RJM181984 401F0058 080 001/B0058 080001 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 - 22 - RJM181984 401F0058 080 001/B0058 080001 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 - 23 - RJM181984 40/F0058 080 001/B0058 080001 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. - 24 - RJM181984 401F0058 080 001/B0058 080001 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 - 25 - RJM181984 40/F0058 080 0011B0058 080001 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 - 26 - RJM181984 40/F0058 080 0011B0058 080001 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 - 27 - RJM181984 401F0058 080 0011B0058 080001 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 - 28 - RJM181984 401F0058 080 0011B0058 080001 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 - 29 - RJM181984 40/F0058 080 0011B0058 080001 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 - 30 - RJM181984 40/F0058 080 0011B0058 080001 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, -31 - RJM181984 40/F0058 080 001/B0058 080001 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 - 32 - RJM181984 401F0058 080 001/B0058 080001 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 - 33 - RJM181984 40/F0058 080 001/B0058 080001 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 - 34 - RJM181984 40/F0058 080 0011B0058 080001 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, - 35 - RJM181984 40/F0058 080 001/B0058 080001 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. - 36 - RJM181984 40/F0058 080 001/B0058 080001 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 - 37 - RJM181984 40/F0058 080 001/80058 080001 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 - 38 - RJM181984 40/F0058 080 001/B0058 080001 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 - 39 - 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