668 Telecommunication FranchiseORDINANCE NO. 668
AN ORDINANCE OF THE CITY OF YELM, WASHINGTON, PERTAINING TO
TELECOMMUNICATIONS, ESTABLISHING STANDARDS FOR THE GRANTING
AND RENEWAL OF TELECOMMUNICATIONS FRANCHISES, PROVIDING FOR
THE REGULATION OF USE OF PUBLIC RIGHTS OF WAYS, PROVIDING FOR
INSURANCE, BONDING AND CONSTRUCTION STANDARDS FOR
TELECOMMUNICATIONS FACILITIES LOCATED IN PUBLIC RIGHTS OF WAYS,
ESTABLISHING PROCEDURES FOR APPEALS OF ADMINISTRA'T'IVE DECISIONS
REGARDING TELECOMMUNICATIONS FACILITIES AND PROVIDING FOR
ENFORCEMENT OF THIS ORDINANCE.
WHEREAS, pursuant to RCW statutes and other lawful authority, City of Yelm
("City ") has the authority to regulate the use of its rights -of -way and other City property;
and
WHEREAS, based on extensive materials contained in the legislative history files
for this ordinance, the Yelm City Council ("Council ") finds that an increasing number of
telecommunications carriers and cable operators have requested or may request access
to and the use of rights -of -way and public property; and to the extent permitted by law,
the City finds it is in the public interest to require the obtaining of registration, licenses,
franchises, and cable franchises from the persons or entities that use public property
and rights -of -way; and
WHEREAS, on February 24, 1999 the Yelm City Council enacted Ordinance No.
656 imposing a moratorium on permitting telecommunications facilities, including
wireless communications towers and facilities within the City of Yelm for 6 months and;
on August 11, 1999 enacted Ordinance No. 670 extending such moratorium through
September 8, 1999, pending further study of the industry and the status of the City's
existing laws and regulations; and
WHEREAS, on July 22, 1999 a Determination of Nonsignificance was issued for
the Telecommunications Ordinance; and
WHEREAS, on July 28, 1999, pursuant to notice duly given, a public hearing was
held; and
WHEREAS, to ensure orderly and reasonable access to the rights -of -way and
public property for telecommunications carriers and cable operators while protecting the
public health, safety and welfare, the City Council determines that it needs to include
regulations and standards for the use of such property;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF YELM,
WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. The City of Yelm Telecommunications Ordinance is hereby adopted
to add new Chapters 15.52, 15.56, 15.60, 15.64, 15.68, 15.72, 15.76, 15.80 and 15.84 to
the City of Yelm Code as set forth below:
CITY OF YELM TELECOMMUNICATIONS ORDINANCE
CHAPTER 15.52 TELECOMMUNICATIONS
Section 15.52.010
Section 15.52.020
Section 15.52.030
Section 15.52.040
Section 15.52.050
Section 15.52.060
Section 15.52.070
Section 15.52.080
Section 15.52.090
Section 15.52.100
Purpose
Definitions
Application to Existing Licenses, Franchises or
Cable Franchises
Application to Existing Telecommunications Carriers and
Cable Operators
Penalties
Other Remedies
Administration
Severabiiity
Relationship to Other Ordinances, Policies
Acts at Grantee's Expense
Section 15.52.010 Purpose. The purpose of this Ordinance is to:
a. Establish a local policy concerning Telecommunications Carriers and
Cable Operators;
b. Establish predictable, enforceable, clear and nondiscriminatory local
guidelines, standards and time frames for the exercise of local authority
with respect to the regulation of Telecommunications Carriers and Cable
Operators;
C. Manage the Rights -of -Way in a manner that provides fair and equitable
opportunities for competition in telecommunications;
d. Minimize unnecessary local regulation of Telecommunications Providers
and services;
e. Enable the provision of advanced and competitive Telecommunications
Services and Cable Services on the widest possible basis to the
businesses, institutions and residents of the City ;
r. Permit and manage reasonable access to the public Rights -of -Way of the
City for telecommunications purposes on a competitively neutral basis;
g. Conserve the limited physical capacity of the public Rights -of -Way held in
public trust by the City ;
h. Assure that the City 's current and ongoing costs of granting and regulating
Ordinance No. 668 August 25, 1999
City of Yelm page 2
private access to and use of the public Rights -of -Way and /or public
property are fully paid by the Persons seeking such access and causing
such costs;
Secure fair and reasonable compensation to the City and the residents of
the City, in a non - discriminatory manner, for permitting private use of the
Rights -of -Way and /or public property;
Assure that all Telecommunications Carriers and Cable Operators
providing facilities or services within the City comply with the ordinances,
rules and regulations of the City ;
Assure that the City can continue to fairly and responsibly protect the
public health, safety and welfare; and
Enable the City to discharge its public trust consistent with rapidly evolving
federal and State regulatory policies, industry competition and
technological development.
Section 15.52.020 Definitions. Terms used in this Ordinance shall have the
following meanings:
"Administrator" means the City of Yelm Chief Administrative Officer or his /her
designee.
"Affiliate" means a Person that (directly or indirectly) owns or controls, is owned
or controlled by, or is under common ownership or control with, another Person.
"Cable Acts" means the federal Cable Communications Policy Act of 1984, as
amended by the federal Cable Television Consumer Protection and Competition Act of
1992, as amended by portions of the federal Telecommunications Act of 1996, and as
hereafter amended.
"Cable Facilities" means the plant, equipment, structures and property within the
City used to transmit, receive, distribute, provide or offer Cable Service.
"Cable Operator" shall have the same meaning as defined in the Cable Acts.
"Cable Service" shall have the same meaning as defined in the Cable Acts.
"City " means City of Yelm.
"Council" means the City Council of the City of Yelm.
"Director" means the Director of the City of Yelm Public Works Department.
Ordinance No. 668 August 25, 1999
City of Yelm Page 3
"Excess Capacity" means the volume or capacity in any exiting or future duct,
conduit, manhole, handhole or other utility facility within the right -of -way that is or will be
available for use for additional Telecommunications Facilities.
"FCC" or "Federal Communications Commission" means the Federal
administrative agency, or lawful successor, authorized to regulate and oversee
Telecommunications Carriers, Services and Cable Operators on a national level.
"Grantee" means Telecommunications Carriers and Cable Operators granted
rights and bound by obligations as more fully described herein.
"Open Video System" means those systems defined and regulated as Open
Video Systems by the Federal Communications Commission, pursuant to Section 653 of
the federal Communications Act of 1934, as amended, 47 U.S.C. §573.
"Ordinance" means the City of Yelm Telecommunications Ordinance, Chapters
15.52, 15.56, 15.60, 15.64, 15.68, 15.72, 15.76, 15.80 and 15.84 of the City of Yelm
Municipal Code.
"Overhead Facilities" means Telecommunications Facilities and Cable Facilities
located above the surface of the ground, including the underground supports and
foundations for such facilities.
"Person" means corporations, companies, associations, firms, partnerships,
limited liability, companies, other entities and individuals.
"Rights -of -Way" includes the surface of and space above and below any
property in the City in which the City has any interest whether in fee, easements or
otherwise, or interest as a trustee for the public, as they now or hereafter exist, including,
but not limited to, all public streets, highways, avenues, roads, reservoirs, alleys,
sidewalks, tunnels, viaducts, bridges, skyways, parks, trails, or any other public place,
area or property under the control of the City .
"Service Connection" means a connection made to a Telecommunications
Facility or Cable Facility for the purpose of providing Telecommunications Services or
Cable Services.
"Service Repair" means a repair made to a Service Connection.
"State" means the State of Washington.
"Surplus Space" means that portion of the usable space on a utility pole which
has the necessary clearance from other pole users, as required by the orders and
regulations of the Washington Utilities and Transportation Commission, to allow its use
by a Telecommunications Carrier for a pole attachment.
Ordinance No. 668 August 25, 1999
City of Yeirn Page 4
"Telecommunications Carrier" for purposes of this Ordinance includes every
Person that directly or indirectly owns, controls, operates or manages plant, equipment,
structures or property within the City, used or to be used for the purpose of offering
Telecommunications Service. Provided, however, this does not include lessees that
solely lease capacity or bandwidth (and do not own Telecommunications Facilities within
the unincorporated areas of the City ).
"Telecommunications Facilities" means the plant, equipment, structures and
property within the City used to transmit, receive, distribute, provide or offer
Telecommunications Service.
"Telecommunications Service" means the providing or offering for rent, sale or
lease, or in exchange for other value received, the transmittal of voice, data, image,
graphic or video programming information or service(s) between or among points by
wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities, with or
without benefit of any closed transmission medium, provided, however, for purposes of
this Ordinance, Cable Service shall not be considered a Telecommunications Service.
"Underground Facilities" means Telecommunications and Cable Facilities
located under the surface of the ground, alone or in combination, direct buried or in utility
tunnels or conduits, excluding the underground foundations or suppolls for Overhead
Facilities.
"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 the orders and regulations of the Washington Utilities and
Transportation Commission.
"Utility Facilities" means the plant, equipment and property including, 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 Rights -of -Way and used or
to be used for the purpose of providing Utility or Telecommunications Services.
"Utility Right -of -Way Work Class A" is the classification of utility permit with the
following criteria: trenching 25 If or less of right -of -way, making an initial cut of 4 sf or
less of pavement, no breaking of any curb or sidewalk, installing 5 or fewer new utility
poles.
"Utility Right -of -Way Work Class B" is the classification of utility permit with the
following criteria; trenching between 25 and 100 If of right -of -way, making an initial cut of
between 4 and 15 sf of pavement, removing 2 or fewer panels of PCC sidewalk and
associated curb and gutter, installing more than 5 new utility poles, replacing any utility
poles.
Ordinance No. 668 August 25, 1999
City of Yelm Page 5
"Utility Right -of -Way Work Class C" is the classification of utility permit with the
following criteria: trenching 100 If or more of right -of -way, making an initial cut of 15 sf or
more of pavement, removing more than 2 panels of PCC sidewalk and associated curb
and gutter, constructing any CRP related work, attaching any utility to a bridge structure.
"Washington Utilities and Transportation Commission" or "WUTC" means
the State administrative agency, or lawful successor, authorized to regulate and oversee
Telecommunications Carriers and Telecommunications Services in the State of
Washington to the extent prescribed by law.
"YMC" means the Yeim Municipal Code.
Section 15.52.030 Application to Existing Licenses, Franchises or Cable
Franchises. Except as otherwise provided in this Ordinance, and to the extent provided
by law, this Ordinance shall have no effect on any license, franchise or cable franchise
existing as of the date of adoption of this Ordinance until:
a. The expiration of said license, franchise or cable franchise; or
b. An amendment to an unexpired license, franchise or cable franchise,
unless both parties agree to defer full compliance to a specific date not
later than the present expiration date.
Section 15.52.040 Application to Existing Telecommunications Carriers and
Cable Operators. Notwithstanding the foregoing, the requirements of this Ordinance
shall apply to any Telecommunications Carrier or Cable Operator who currently occupies
Rights -of -Way without a license, franchise, cable franchise or other agreement with the
City . Any such Telecommunications Carrier or Cable Operator shall register or apply for
a license, franchise or cable franchise as provided by this Ordinance within 120 days of
the effective date of this Ordinance. This Ordinance shall not apply to lessees that
solely lease capacity or bandwidth (and do not own Telecommunications Facilities within
the City ) so long as the lessor has complied with the requirements of this Ordinance.
Section 15.52.050 Penalties.
a. Any Person found violating, disobeying, omitting, neglecting or refusing to
comply with any of the provisions of this Ordinance shall be guilty of a
gross misdemeanor. Upon conviction any Person violating any provision
of this Ordinance shall be subject to a fine of up to five thousand dollars
($5,000.00) or by imprisonment for a period of up to one year, or both such
fine and imprisonment. A separate and distinct violation shall be deemed
committed each day on which a violation occurs or continues.
b. Civil Infractions. The violation of any provision of this Ordinance is
designated as a Class 1 Civil Infraction pursuant to Chapter 7.80 RCW.
Ordinance No. 668 August 25, 1999
City of Yelm Page 6
Section 15.52.060 Other Remedies. Nothing in this Ordinance shall be
construed as limiting any other remedies that the City may have, at law or in equity, for
enforcement of this Ordinance. Notwithstanding the existence or use of any other
remedy, the City may seek legal or equitable relief to enjoin any acts or practices and
abate any conditions which constitute or will constitute a violation of this Ordinance or
other regulations herein adopted.
Section 15.52.070 Administration. The Administrator is authorized to
administer this Ordinance and to establish further rules, regulations and procedures for
the implementation of this Ordinance.
Section 15.52.080 Severability.
a. If any Section, subsection, sentence, clause, phrase, or other portion of
this Ordinance, or its application to any Person is, for any reason, declared
invalid, in whole or in part by any court or agency of competent jurisdiction,
said decision shall not affect the validity of the remaining portions hereof.
b. If it should appear that any provision of this Ordinance is in conflict with
any statutory provision of the State of Washington, said provision which
may conflict therewith shall be deemed inoperative and null and void
insofar as it may be in conflict therewith, and shall be deemed modified to
conform to such statutory provision.
Section 15.52.090 Relationship to Other Ordinances, Policies.
a. In addition to the provisions of this Ordinance, Chapter 15.48, YMC,
Development Guidelines, City of Yelm, shall apply to any
Telecommunications Carrier and Cable Operator who desires to construct,
install, operate, maintain, repair or otherwise locate Telecommunications
Facilities or Cable Facilities on City Rights -of -Way. In the event of a
conflict between this Ordinance and the Development Guidelines, the
Telecommunications Ordinance shall control.
b. In addition to the provisions of this Ordinance, any wireless communication
facilities, as defined by YMC Chapter 17.67, shall be subject to applicable
zoning regulations and permitting requirements as established by City of
Yelm Code provisions.
d. Nothing herein shall limit or otherwise affect the authority of the City to
require a lease for any use, occupation, construction, installation,
maintenance or location upon any property owned in fee by the City .
Section 15.52.100 Acts at Grantee's Expense. Any act that a Grantee is or
may be required to perform under this Ordinance, a license, franchise, cable franchise or
Ordinance No. 658 August 25, 1999
City of Yelm page 7
applicable law shall be performers at the Grantee's expense.
CHAPTER 15.56 TELECOMMUNICATION ORDINANCE REGISTRATION
Section 15.56.010 Registration Required
Section 15.56.020 Purpose of Registration
Section 15.56.030 Exception to Registration
Section 15.56.010 Registration Required. Except as provided in Section
'15.56.030, all Telecommunications Carriers having Telecommunications Facilities and
all Cable Operators within the unincorporated areas of the City, in whole or in part, shall
register with the City hereunder on forms provided by the Administrator which shall
include the following
a. The identity and legal status of the registrant.
b. The name, address and telephone number of the officer, agent or
employee responsible for the accuracy of the registration statement.
C. A description of registrants existing or proposed Telecommunications
Facilities within the City.
d. A description of the Telecommunications Service that the registrant
intends to offer or provide, or is currently offering or providing, to persons,
firms, businesses or institutions within the City .
e Information sufficient for the City to determine whether the registrant is
subject to licensing or franchising under this Ordinance.
Information sufficient for the City to determine whether the transmission,
origination or receipt of the Telecommunications Services provided or to be
provided by the registrant constitutes an occupation or privilege subject to
any City tax, permit, license or franchise fee.
A statement from the applicant documenting that they have complied with
all WUTC registration and related filings requirements.
h. A statement from the applicant documenting that any permit, operating
license or other right or approvals required by the Federal Communications
Commission to provide Telecommunications Services or Facilities has
been received and is currently in effect.
Such other information as the City may reasonably require. Should any of
the registration information provided under this Section change after
Ordinance No. 668 August 25. 1999
City of Yelm Page 8
submittal to the City, the registrant shall notify the City and provide revised
information within 30 days of such change.
Section 15.56.020 Purpose of Registration. The purpose or registration is to:
r.. Provide the Citv with accurate and current information concerning the
Telecommunications Carriers and Cable Operators who own or operate
Telecommunications Facilities or Cable Facilities;
b. Assist the City in enforcement of this Ordinance; and
C. Assist the City in the collection and enforcement of any City taxes,
franchise fees, license fees or charges that may be due to thie City .
Section 15.56.030 Exception to Registration.
a. A Person which provides Telecommunications Services solely to itself, its
Affiliates or members between points in the same building, or between
closely located buildings under common ownership or control, provided
that such Person does not use or occupy any Rights -of -Way of the City or
other ways within the City , is excepted from the registration requirements
pursuant to this Ordinance.
b. Telecommunications Carriers and Cable Operators who obtain a license,
franchise, or cable franchise under this Ordinance.
C. As provided in Section 15.52.030, any Telecommunications Carrier or
Cable Operator with a license, franchise, or cable franchise existing as of
the date of adoption of this Ordinance.
CHAPTER 15.60 TELECOMMUNICATION ORDINANCE LICENSES
Section 15.60.010
Section 15.60.020
Section 15.60.030
Section 15.60.040
Section 15.60.050
Section 15.60.060
Section 15.60.0 i 0
Section 15.60.080
Section 15.60.090
Section 15.60.100
Section 15.60.110
Section 15.60.120
Section °15.60.130
Ordinance No. 663
City of Yelm
License
License Application
Determination by the City
Agreement
Nonexclusive License
Use Granted
Term of License
License Route
Construction Permits
Service to City Users
Amendment of License
Renewal Applications
Renewal Determinations
August 25, 1999
Page 9
Section 15.60.140 Obligation to Cure as a Condition of Renewal
Section 15.60.010 License. To the extent permitted by law, a license shall be
required of any Telecommunications Carrier who currently occupies or desires in the
future to occupy any Rights -of -Way with any Telecommunications Facilities for the
purpose of providing Telecommunications Services exclusively to Persons or areas
outside the City.
Section 15.60.020 License Application. Any Person that desires a license
hereunder shall file an application on a form provided by the Administrator.
Section 15.60.030 determination by the City . Within 90 days after receiving a
complete application hereunder, the Board shall make a determination on behalf of the
City granting or denying the application in whole or in part. if the application is denied,
the determination shall include the reasons for denial. The following criteria shall apply
when determining whether to grant or deny the application;
a. The financial and technical ability of the applicant to fulfill its obligations
under a license.
b. The legal status of the applicant.
G. The capacity of the Rights -of -Way to accommodate the applicant's
facilities.
d. The capacity of the Rights -of -Way to accommodate additional
Telecommunications Facilities and Cable Facilities if the application is
granted.
e. The damage or disruption, if any, to public or private facilities,
improvements, services, travel or landscaping if the application is granted,
giving consideration to an applicant's willingness and ability to mitigate
and /or repair same.
The public interest in minimizing the cost and disruption of construction
within the Rights -of -Way.
g. The service that applicant will provide to the region.
The effect, if any, on general public heaith, safety and welfare in the City 's
sole opinion if the application is granted.
The availability of alternate routes or locations for the proposed facilities.
Applicable federal, State and local laws, regulations, rules and policies.
Ordinance No. 668 August 25. 1999
City of Yelm Page 10
k. Such other factors as may demonstrate that the grant to use the Rights -of-
Way will serve the community interest.
Section 15.60.040 Agreement. No license granted hereunder shall be effective
until the applicant and the Council have executed a written agreement setting forth the
particular items and provisions under which the license to occupy and use Rights- of-Way
will be granted. All licenses granted pursuant to this Ordinance shall contain
substantially similar terms which.. taken as a whole and considering relevant
characteristics of applicants, do not provide more or less favorable terms and conditions
than those required of other licensees.
Section 15.60.050 Nonexclusive License. No license granted hereunder shall
confer any exclusive right, privilege or license to occupy or use the Rights -of -Way for
delivery of Telecommunications Services or any other purposes.
Section 15.60.060 Use Granted.
a. No license granted hereunder shall convey any right, title or interest in
Rights -of -Way but shall be deemed a license only to use and occupy the
Rights -of -Way for the limited purposes and term stated in the grant.
b. No license granted hereunder shall authorize or excuse a licensee from
securing such further easements, leases, permits or other approvals as
may be required to lawfully occupy and use Rights -of -Way.
C. No license granted hereunder shall be construed as any warranty of title.
Section 15.60.070 Term of License. Unless otherwise specified in a license
agreement, a license granted hereunder shall be in effect for a term of not more than
five (5) years.
Section 15.60.080 License Route. A license granted hereunder shall be limited
to a grant of specific Rights -of -Way and defined portions thereof, as may be indicated in
the license agreement.
Section 15.60.090 Construction Permits. All licensees are required to obtain
construction permits and pay all fees as required by the City, provided, however, that
nothina in this Ordinance shall prohibit the City and a licensee from agreeing to
alternative plan review, permit and construction procedures in a license agreement, and
further provided that such alternative procedures provide substantially equivalent
safeguards for reasonable construction practices.
Section 15.60.100 Service to City Users. A licensee may be permitted to offer
or provide Telecommunications Services or Cable Services to Persons or areas within
the City upon submitting an application for franchise approval and upon obtaining a
Ordinance No. 668 August 25, 1999
City of Yeim Page 11
franchise pursuant to this Ordinance.
Section 15.60.110 Amendment of License.
a. The licensee shall apply for an amendment to an existing license when it
desires to extend or locate its Telecommunications Facilities in Rights -of-
Way which are not included in a license previously granted hereunder or
when it provides services beyond those authorized in the license.
b. The City shall grant a license amendment without further application,
if the City orders a Telecommunications Carrier to locate or relocate its
Telecommunications Facilities in Rights -of -Way not included in a
previously granted license.
Section 15.60.120 Renewal Applications. A licensee that desires to renew its
license hereunder shall, not more than 180 days nor less than 90 days before expiration
of the current license, file an application with the City for renewal of its license which
shall include the following information;
a. The applicable information required pursuant to the license application.
b. Any other information required by the City.
Section 15.60.130 Renewal Determinations. Within 90 days after receiving a
complete application hereunder, the Council shall make a determination on behalf of the
City granting or denying the renewal application in whole or in part. If the renewal
application is denied, the determination shall include the reasons for non - renewal. The
criteria enumerated in Section 13.68.030 shall apply when determining whether to grant
or deny the application, and may further consider the applicant's compliance with the
requirements of this Ordinance and the license agreement.
Section 15.60.140 Obligation to Cure As a Condition of Renewal. No license
shall be renewed until any ongoing violations or defaults in the licensee's performance of
the license agreement, of the requirements of this Ordinance, and all applicable laws,
statutes, codes, ordinances, rules and regulations have been cured, or a plan detailing
the corrective action to be taken by the licensee has been approved by the
Administrator. Failure to comply with the terms of an approved plan shall be grounds for
non - renewal or revocation of the license.
CHAPTER 15.64 TELECOMMUNICATIONS ORDINANCE FRANCHISES
Section 15.64.010 Franchise
Section 15.64.020 Franchise Application
Section 15.64.030 Determination by the City
Ordinance No. 668 August 25, 1999
City of Yelm Page 12
Section 15.54.040
Section 15.64.050
Section 15.64.060
Section 15.64.070
Section 15.64.080
Section 15.64.090
Section 15.64.100
Section 15.64.110
Section 15.64.120
Section 15.64.130
Section 15.64.140
Agreement
Nonexclusive Franchise
Use Granted
Term of Franchise
Franchise Territory
Construction Permits
Nondiscrimination
Amendment of Franchise
Renewal Applications
Renewal Determinations
Obligation to Cure As a Condition of Renewal
Section 15.64.010 Franchise. To the extent permitted by law, a franchise shall
be required of any Telecommunications Carrier who currently occupies or desires in the
future to occupy Rights -of -Way and to provide Telecommunications Services to any
Person or area in the City .
Section 15.64.020 Franchise Application. Any Person that desires a franchise
hereunder shall file an application provided on a form by the Administrator.
Section 15.64.030 Determination by the City . Within 120 days after receiving
a complete application hereunder, the Council shall make a determination granting or
denying the application in whole or in part. If the application is denied, the determination
shall include the reasons for denial. The criteria enumerated in Section 15.60.030 shall
apply when determining whether to grant or deny the application.
If an existing franchisee is required by the WUTC to provide service to anyone
requesting it within tree service area, the determination by the City to deny the application
is not applicable.
Section 15.64.040 Agreement. No franchise shall be granted hereunder unless
the applicant and the Board have executed a written agreement setting forth the
particular terms and provisions under which the franchise to occupy and use Rights -of-
Way will be granted. All franchises granted pursuant to this Ordinance shall contain
substantially similar terms and conditions which, taken as a whole and considering
relevant characteristics of the applicants, do not provide more or less favorable terms
and conditions than those required of other franchisees.
Section 15.64.050 Nonexclusive Franchise. No franchise granted hereunder
shall confer any exclusive right, privilege or franchise to occupy or use the Rights -of-
Way for delivery of Telecommunications Services or any other purposes.
Section 15.64.060 Use Granted.
a. No franchise granted hereunder shall convey any right, title or interest in
Ordinance No. 668 August 25, 1999
City of Yelm Page 13
the Fights -of -Way but shall be deemed a franchise only to use and occupy
the Rights -of -Way for the limited purposes and term stated in the grant.
b,
No franchise granted hereunder shall authorize or excuse a franchisee
from securing such further easements, leases, permits or other approvals
as may be required to lawfully occupy and use Rights -of -Way.
C. No franchise granted hereunder shall be construed as any warranty of title.
Section 15.64.070 Term of Franchise. Unless otherwise specified in a
franchise agreement, a telecommunications franchise granted hereunder shall be valid
for a term of not more than ten (10) years.
Section 15.64.080 Franchise T erritory. A telecommunications franchise
granted hereunder may be limited to the specific geographic area of the City to be
served by the franchisee, and the specific Rights -of -Way and portions thereof, as may
be identified in the franchise agreement.
Section 15.64.090 Construction Permits. All franchisees are required to
obtain permits and pay all flees for Telecommunications Facilities and Cable Facilities as
required by the City , provided, however, that nothing in this Ordinance shall prohibit the
City and a franchisee from agreeing to alternative plan review, permit and construction
procedures in a franchise agreement, and further provided that such alternative
procedures provide substantially equivalent safeguards for responsible construction
practices.
Section 15.64.100 Nondiscrimination. A franchisee shall make its
elecommunications Services avaiiabie to any customer within its franchise area who
shall request such service, without discrimination, except as permitted by law; as to the
terms, conditions, rates or charges for franchisee's services, provided, however, that
;nothing in this Ordinance shall prohibit a franchisee from making any reasonable
classifications among differently situated customers.
Section 15.64,110 Amendment of Franchise.
a The franchisee shall apply for an amendment to an existing franchise when
a Telecommunications Carrier desires to extend its franchise territory or to
locate its Telecommunications Facilities in Riahts -of -Way which are not
included in a franchise previously granted hereunder or when it desires to
offer services beyond those authorized in the franchise.
b. The City shall grant a franchise amendment without further application if
the City orders a Telecommunications Carrier to locate or relocate its
Telecommunications Facilities in Rights -of -Way not included in a
previously granted franchise.
Ordinasim Rio. 658 August 25, 1999
City ot`Yelrn Page 14
Section 15.64.120 Renewal Applications. A franchisee that desires to renew
its franchise hereunder shall, not more than 180 days nor less than 120 days before
expiration of the current franchise, file an application with the City for renewal of its
franchise which shall include the following information:
a The applicable information required pursuant to the franchise application.
b. Any other information required by the City.
Section 15.64.130 Renewal Determinations. Within 120 days after receiving a
complete application hereunder, the Council shall make a determination on behalf of the
City granting or denying the renewal application in whole or in part. If the renewal
application is denied, the determination shall include the reasons for non - renewal. The
criteria enumerated in Section '15.60.030 shall apply when determining whether to grant
or deny the application, and may further consider the applicant's compliance with the
requirements of this Ordinance and the franchise agreement.
Section 15.64.140 Obligation to Cure As a Condition of Renewal. No
franchise shat! be renewed until any ongoing violations or defaults in the franchisee's
obligations under the franchise agreement, the requirements of this Ordinance, and all
applicable laws, statutes, codes, ordinances, rules and regulations have been cured, or
a plan detailing the corrective action to be taken by the franchisee has been approved by
the Administrator. Failure to comply with the terms of an approved plan shall be grounds
for non - renewal or immediate revocation of the franchise.
CHAPTER 15.68 CABLE FRANCHISES
Section 15.68.010
Section 15.68.020
Section 15.68.030
Section 15.68.040
Section 15.68.050
Section 15.68.060
Section 15.68.070
Section 15.68.080
Grant of Cable Franchise
Cable Franchise Required
Length of Cable Franchise
Use Granted
Cable Franchisee Subject to Other Laws, Police Powers
Interpretation of Cable Franchise Terms
Operation of a Cable System Without a Cable Franchise
Eminent Domain
Section 15.68.010 Grant of Cable Franchise. The Board may grant one or
more cable television franchises containing such provisions as are reasonably necessary
to protect the public interest, and each such cable franchise shall be awarded in
accordance with and subject to the provisions of this Ordinance. This Ordinance enay be
amended from time to time, and in no event shall this Ordinance be considered a
contract between the City and a cable franchisee such that the City would be prohibited
from amending any provision hereof, provided no such amendment shall in any way
impair any contract right or increase obligations of a cable franchisee under an
Ordinance Flo. 668 August 25, 1999
City of Yelm Page 15
outstanding and effective cable franchise, except in the lawful exercise of the City's
police power.
Section 15.68.020 Cable Franchise Required. No Person may construct,
operate or maintain a cable system or provide Cable Service over a cable system within
the City without a cable franchise granted by the Council authorizing such activity. No
Person may be granted a cable franchise without having entered into a cable franchise
agreement with the Council pursuant to this Ordinance. For the purpose of this
provision, the operation of part or all of a cable system within the City means the use or
occupancy of Rights -of -Way by facilities used to provide Cable Service. To the extent
permitted by law, a system used to provide telephone service also used to provide Cable
Service shall be subject to this Ordinance and shall also require a Cable franchise.
Services similar to Cable Service, such as Open Video Systems, shall also be subject to
this Ordinance, and subject to substantially similar terms and conditions as those
contained in franchise agreement(s) issued to Cable Operator(s) in the City with respect
try franchise fee obligations, public, educaticnal, and governmental access programming
obligations, and all other franchise obligations to the extent provided by law. Conversion
of a cable system to an Open Video System in accordance with applicable FCC
regulations shall not alter or in any way limit enforceability of the franchise agreement
authorizing the operation of such system. A system shall not be deemed as operating
within the City even though service is offered or rendered to one or more subscribers
within the City , if no Right -of -Way is used or occupied. All cable franchises granted
pursuant to this Ordinance shall contain substantially similar terms and conditions,
which, taken as a whole and considering relevant characteristics of the applicants, do
not provide more or less favorable terms and conditions than those required of other
cable franchisees
Section 15.68.030 Leith of Cable Franchise. Unless otherwise specified in a
cable franchise, no cable franchise shall be granted for a period of more than ten (10)
years.
Section 15.68.040 Use Granted.
a. A cable franchise authorizes use of Rights -of -Way for installing, operating
and maintaining cables, wires, lines, optical fiber, underground conduit and
other, devices necessary and appurtenant to the operation of a cable
system to provide ("able Services within the City, but does riot expressly or
implicitly authorize a cable franchisee to provide service to, or install a
cable system on private property without owner consent, or to use publicly
or privately owned poles, ducts or conduits without a separate agreement
with the owners to the extent provided by law.
b. A cable franchise shall not mean or include any exclusive right for the
privilege of transacting and carrying on a business within the City as
generally required by the ordinances and laws of the City. A cable
franchise shall not confer any authority to provide Telecommunications
Ordinance No. 668 August 25, 1999
'City of Yelm Page '16
Services or any other communications services besides Cable Services,
and to the extent permitted by law, a separate franchise shall be required
for the provision of Telecommunications Services in addition to the cable
franchise. A cable franchise shall riot confer any implicit rights other than
those mandated by federal, State or local law.
C. A cable franchise is nonexclusive and will not explicitly or implicitly:
preclude the issuance of other cable franchises to operate cable systems
within the City; affect the City's right to authorize use of Rights -of -Way by
other Persons to operate cable systems or for other purposes as it
determines appropriate, or affect the City's right to itself construct, operate
or maintain a cable system, with or without a cable franchise.
d. Once a cable franchise has been accepted and executed by the City and a
cable franchisee, such cable franchise shall constitute a valid and
enforceable agreement between the cable franchisee and the City, and the
terms, conditions and provisions of such cable franchise, subject to this
Ordinance and all other duly enacted and applicable laws and regulations,
shall define the rights and obligations of the cable franchisee and the City
relating to the cable franchise.
e. All privileges prescribed by a cable franchise shall be subordinate to any
prior lawful occupancy of the Rights -of -Way and the City reserves the right
to reasonably designate where a cable franchisee's facilities are to be
placed within the Rights -of -Way through its generally applicable permit
procedures.
A cable franchise shall be a privilege that is in the public trust and personal
to the original cable franchisee. No cable franchise transfer shall occur
without the prior written consent of the Council upon application made by
the cable franchisee pursuant to this Ordinance, the cable franchise, and
applicable law, which consent shall not be unreasonably withheld, and any
purported cable franchise transfer made without application and prior
written consent shall be void and shall be cause for the City to revoke the
cable franchise.
Section 15.68.050 Cable Franchisee Subject to Other Laws, Poiice Powers.
a. A cable franchisee shall at all times be subject to and shall comply with all
applicable federal, State and local laws and regulations, including this
Ordinance. A cable franchisee shall at all times be subject to all lawful
exercise of the police power of the City including, but not limited to, all
rights the City may have under the Cable Acts, all powers regarding
zoning, supervision of construction, control of Rights -of -Way and
consumer protection.
Ordinance No. 668 August 25, 1999
City of Yelrn Page 17
b. The City shall have full authority to regulate cable systems, cable
franchisees and cable franchises as may now or hereafter be lawfully
permissible.
Section 15.68.060 Interpretation of Cable Franchise Terms.
a. In the event of a conflict between this Ordinance and a cable franchise, the
provisions of the Ordinance shall control.
b. The provisions of this Ordinance and a cable franchise will be liberally
construed in accordance with generally accepted rules of construction to
promote the public interest.
Section 15.68.070 _Operation of a Cable System Without a Cable Franchise.
Any Person who occupies Rights -of -Way for the purpose of operating or constructing a
cable system or provides Cable Service over a cable system and who does not hold a
valid cable franchise from the Council shall be subject to all requirements of this
Ordinance.
Section 15.68.080 Eminent Domain. Nothing herein shall be deemed or
construed to impair or affect, in any way or to any extent, the City's power of eminent
domain.
CHAPTER 15.72 CONDITIONS FOR USE OF RIGHTS -OF -WAY
Section 15.72.005
Section 15.72.010
Section 15.72.020
Section 15.72.030
Section 1572.040
Section 15.72.050
Section 15.72.060
Section 15.72.070
Section 15.72.080
Section 15.72.090
Section 15.72.100
Section 15.72.110
Section 15.72.120
Section 15.72.130
Section 15.72.140
Section 15.72.150
Section 15.72.160
Section 15.72.170
Section 15.72.180
Section 15.72.190
Ordinance No. 668
City of Yelm
Applicability
General Duties
Interference with the Rights -of -Way
Damage to Property
Notice of Work
Repair and Emergency Work
Maintenance of Facilities
Relocation or Removal of Facilities
Removal of Unauthorized Facilities
Failure to Relocate
Emergency Removal or Relocation of Facilities
Damage to Grantee's Facilities
Restoration of Rights -of -Way
Facilities Maps
!duty to Provide Information
Grantee Insurance
Release. Indemnity and Hold Harmless
Security Fund
Construction and Completion Bond
Acts at Grantee's Expense
August 25, 1999
Page 18
Section '15.72.200
Section 15.72.210
Section 15.72.220
Section 15.7 2-.230
Section 15.72.240
Section 15.72.250
Section 15.72.260
Coordination of Construction Activities
Assignments or Transfers
Transactions Affecting Control
Revocation or Termination
Notice and Duty to Cure
Hearing
Standards for Revocation or Lesser Sanctions
Section 15.72.005 Applicability. The terms of this Chapter 15.72 and Chapter
15.48, Development Guidelines, City of Yelm shall apply to all Grantees.
Section 15.72.010 General Duties.
a. All Grantees, before commencing any construction in the Rights -of -Way,
shall comply with all requirements of the City of Yeirn Municipal Code or
other ordinances of the City.
b.
All Grantees shall have no ownership rights in Rights -of -Way, even though
they may be granted a license, franchise or cable franchise to construct or
operate their facilities.
Section 15.72.020 Interference with the Rights -of -Way. No Grantee may
locate or maintain its Telecommunications Facilities so as to unreasonably interfere with
the use of the Rights -of -Way by the City, by the general public or other Persons
authorized to use or be present in or upon the Rights -of -Way. All such facilities shall be
moved by and at the expense of the Grantee, temporarily or permanently, as
determined by the City
Section 15.72.030 Damage to Property. No Grantee or any Person acting on
a Grantee's behalf shall take any action or permit any action to be done which may
impair cr damage any Rights -of -Way, or other property located in, on or adjacent
thereto except in accordance with 15.72.120.
Section 15.72.040 Notice of Work. Unless otherwise provided in a license or
franchise agreement, no Grantee, or any Person acting on the Grantee's behalf, shall
commerce any non - emergency work involving undergrounding, excavation or
obstructing in or about the Rights -of -Way without five (5) working days advance written
notice to the City. Any private property owner whose property will be affected by a
Grantee's work shall be afforded the same notice.
Section 15.72.050 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 Public Works Director as promptly as possible, before such repair or
emergency work or as soon thereafter as possible if advance notice is not practicable.
Ordinance No. 668 August 25, 1999
City of Yeim page 19
Section 15.72.060 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. r 2.070 Relocation or Removal of Facilities. Within sixty (60)
days (or a longer period if mutually agreed upon by the Grantee and Administrator)
following written notice from the City, a Grantee shall, at its own expense, temporarily or
permanently remove, relocate, change or alter the position of any Telecommunications
Facilities within the Rights -of -Way whenever the City Administrator or designee shall
have determined that such removal, relocation, change or alteration is reasonable
necessa, y for:
The construction, repair, maintenance or installation of any City or
other public improvement in or upon the Rights -of -Way.
2. The operations of the City or other governmental entity in or upon
the Rights -of -Way.
�. The vacation of a public street or the release of a utility easement.
Section 15.72.060 Removal of Unauthorized Facilities.
a. In its discretion, the Administrator at any time may; require any Person who
owns, controls or maintains any unauthorized Telecommunications Facility
or Cable Facility or related appurtenances within the Rights -of -Way to:
Apply for a license, franchise or cable franchise within thirty (30)
days of receipt of written notice from the City to such Person that
such a license, franchise or cable franchise is required; or
2. Require such Person to remove its facilities and restore the affected
area within ninety (90) days to a condition satisfactory to the City ;
or
3. Direct City Personnel to remove the facilities and restore the
affected area to a condition satisfactory to the City and charge the
Iverson the costs therefor, including by placing a lien on the
Person's property; or
4. Take any other action authorized by applicable law.
b. A Telecommunications Facility or Cable Facility is unauthorized and
subject to removal in the following circumstances:
Upon expiration or termination of the Grantee's license, franchise or
cable franchise unless otherwise provided by Iaw.
2. Upon abandonment of a facility within the Rights -of -Way. In certain
situations facilities may be required to be abandoned in place for the
preservation of the rights of way. In this case, the facilities would
Ordinance No. 658 August 25, 1999
City of Yelrn Page 20
not be subject to removal.
3. If the facility was constructed or installed without the prior issuance
of a required encroachment, utility or other permit.
4. If the facility was constructed or installed at a location not permitted
by the Grantee's license, franchise or cable franchise.
5. To the extent permitted by law, any such other reasonable
circumstances affecting public health, safety and welfare deemed
necessary by the Administrator.
c. 'Notwithstanding any other provision of this Section, the Administrator may,
in its sole discretion, allow a Grantee or other Person who may own,
control or maintain Telecommunications Facilities or Cable Facilities within
the Rights -of -Way of City of Yelm to abandon such facilities in place. No
facilities of any type may be abandoned in place without the express
written consent of the Administrator. Any plan for abandonment or
removal of such facilities must be first approved by the Administrator and
al' necessary permits must be obtained prior to commencement of such
work. Upon permanent abandonment of any Telecommunications
Facilities or Cable Facilities of such Persons in place, the facilities shall
become the property of the City , and such Persons shall submit to the
Administrator an instrument in writing, to be approved by the City
Attorney's Office, transferring ownership of such facilities to the City . The
provisions of this Section shall survive the expiration, revocation or
termination of any license, franchise or cable franchise granted under this
Ordinance.
Section 15.72.090 Failure to Relocate. If a grantee is required to relocate,
change or alter the Telecommunications Facilities hereunder and fails to do so, the City
may cause such to occur and charge the Grantee for the costs incurred.
Section 15.72.100 Emergency Removal or Relocation of Facilities. 'The City
retains the right and privilege to cut or move any Telecommunications Facilities located
within the Rights -of -Way as the City may determine to be necessary, appropriate or
useful in response to any public health or safety emergency.
Section 15.72.110 Damage to Grantee's Facilities. Unless directly and
proximately caused by the willful, intentional or malicious acts of the City, the City shall
not be liable for any damage to or loss of any Telecommunications Facility within the
Rights -of -Way as a result of or in connection with any public works, public
improvements, construction, excavation, grading, filling, or work of any kind in the
Rights -of -Way by or on behalf of the City. State law requires that all utilities contact the
utility underground locate service 40 hours prior to start of construction.
Section 15.72.120 Restoration of Rights -of-llVay. Restoration shall comply
with the following:
Ordinance No, 668 Augi_ist 25, 1999
City of Yelm Page 21
a. When a Grantee, or any Person acting on its behalf, does any work
in or affecting any Rights -of -Way, it shall, at its ov/n expense,
promptly remove any obstructions therefrom and restore such ways
or property to the same condition which existed before the work
was undertaken. As used in this section, "promptly" shall mean as
required by the City's Public Works Director in the reasonable
exercise of the Director's discretion.
b. If weather or other conditions do not permit the complete
restoration required hereunder, the Grantee shall temporarily
restore the affected ways or property. Such temporary restoration
shall be at the Grantee's sole expense and the grantee shall
promptly undertake and complete the required permanent
restoration when the weather or other conditions no longer prevent
such permanent restoration.
C. A Grantee or other Person acting on its behalf shall use suitable
barricades, flags, flagmen, lights, flares and other measures as
required for the safety of all members of the general public and to
prevent injury or damage to any Person, vehicle or property by
reason of such work in or affecting such Rights -of -Way.
Section 15.72.130 Facilities Maps. Upon request by the Director, the Grantee
shall provide the City with maps in a format agreed to by the Grantee and the City,
identifying the location of all Telecommunications Facilities and Cable Facilities within
the Rights -of -Way except individual Service Connections.
Section 15.72.140 [duty to Provide Information. Within ten (10) days of a
written request from the Administrator, each Grantee shall furnish the Administrator with
information reasonably necessary to fulfill purposes of this Ordinance and sufficient to
demonstrate:
a. That Grantee has complied with all requirements of this Ordinance.
b. That all taxes and fees due the City in connection with the
Telecommunications Services and Telecommunications Facilities or
Cable Services and Cable Facilities provided by the Grantee have been
properly collected and paid by the Grantee.
0. That all books, records, maps and other documents maintained by the
Grantee with respect to its facilities within the Rights -of -Way have been
made available for inspection by the Administrator and the Director at
reasonable times and intervals.
Section 15.72.150 Grantee Insurance. Unless otherwise provided by a
Ordinance No. 668 August 25, 1999
City of Yelm Page 22
license, franchise, or cable franchise, before commencing construction in the Rights -of-
Way, each Grantee shall secure and maintain the following liability insurance policies.
a. Commercial General Liability insurance, and if necessary, Umbrella
Liability insurance, which will cover bodily injury, property damage, and
any other exposure which can be reasonably identified as potentially
arising from the Grantees activities within the Rights -of -Way. The limit of
liability shall not be less than two million dollars ($2,000,000) each
occurrence. The City, its elected and appointed officers, officials,
employees, agents, and representatives shall be named as additional
insureds with respect to activities occurring within its Rights -of -Way.
Coverage shall be comprehensive with respect to the Grantee's activities
within the Rights -of Way and shall include completed operations,
explosions, collapse, and underground hazards.
b. Business Automobile Liability insurance for owned, non -owned and hired
vehicles with limits of not less than two million dollars ($2,000,000) per
person, three million dollars ($3,000,000) per accident.
c. Workers' Compensation insurance as required by Title 51, RCW and
Employers Liability Coverage with a limit of not less than one million
dollars ($1,000,000) per occurrence.
d. The insurance policies required by this section shall be maintained at all
times by the Grantee. Each liability policy shall be endorsed to require the
insurer to notify the City at least 45 days before the policy can be
canceled by either party, and to require notice of cancellation due to non-
payment of premium to be mailed to the Administrator as well as the
named insured. The Grantee will be obligated to replace or renew the
canceled or expiring policy and show proof in the form of a certificate of
insurance, at least 20 days before the expiration or cancellation of the
existing policy's).
e. The Grantee shall furnish the City with properly executed certificates of
insurance or a signed policy endorsement which shall clearly evidence all
insurance required in this Section. The certificate will, at a minimum, list
limits of liability, coverage, and all exclusions.
The Grantee or its agent will provide a copy of any and all insurance
policies specified in this Ordinance upon request of the Administrator.
g. The insurance limits mandated for any insurance coverage required by
this Ordinance are not intended to be an indication of limits of exposure
nor are they limitations on liability or indemnification.
Section 15.72.160 Release, Indemnity and Hold Harmless.
Ordinance No. 668 August 25, 1999
City of Yslm Page 23
a. In addition to and distinct from the insurance requirements of this
Ordinance, Grantee releases and shall defend, indemnify and hold
harmless City, its elected and appointed officers, officials, employees,
agents, and representatives (collectively referred to as the "Indemnitees ")
from any and all claims, losses, costs, liabilities, damages and expenses,
including, but not limited to, those of the Grantee's lessees, and also
including, but not limited to, reasonable attorneys' fees (except those
damages caused solely by the negligence of the Indemnitees) arising out
of or in connection with the Telecommunications Facilities or Cable
Facilities or installation of any Telecommunications Facilities or Cable
Facilities, the performance of any work, the operation of any
Telecommunications Facilities or Cable Facilities, or the Grantee's
system, or the acts or omissions of the Grantee or any of its suppliers or
contractors of any tier, or anyone acting on the Grantee's behalf in
connection with said installation of Telecommunications Facilities or Cable
Facilities, performance of work, or operation of Telecommunications
Facilities or Cable Facilities or Grantee's system.
b. Such indemnity, protection and hold 'harmless shall include any demand,
claim, suit or judgment for damages to property or injury to or death of
Persons, including officers, agents, and employees of any Person
including payment made under or in connection with any Worker's
Compensation Law or under any plan for employees' disability and death
benefits, which may arise out of or be caused or contributed to directly or
indirectly by the erection, maintenance, presence, operation,. use or
removal of Grantee's Telecommunications Facilities or Cable Facilities or
installations of Telecommunications Facilities or Cable Facilities including
any claims or demands of customers of the Grantee with respect thereto.
C. Indemnitees shall not be liable to the Grantee or to the Grantee's
customers, and the Grantee hereby indemnifies, protects and saves
harmless the Indemnitees against any and all such claims or demands,
suit or judgment for loss, liability, damages and expense by the Grantee's
customers, or for any interruption to the service of the Grantee, or for
interference with the operation of the Telecommunications Facilities or
Cable Facilities.
d. To the fullest extent permitted by applicable law, the foregoing release,
indemnity and hold harmless provisions shall apply to and be for the
benefit of the Indemnitees.
e. All provisions of Section 15.72.160 shall apply to the successors and
assigns of the Grantee.
Section 15.72.170 Securitv Fund. Before commencing construction or
obtaining a license, franchise or cable franchise in the Rights -of -Way, each Grantee
Ordinance No. 668 August 25, 1999
City of Yelm Page 24
shall establish a permanent security fund with the City by depositing the amount of up
to $50,000 with the City in cash, an unconditional letter of credit, or other instrument
acceptable to the City , which fund shall be maintained in the designated amount at the
sole expense of Grantee so long as any of Grantee's Telecommunications Facilities or
Cable Facilities are located within the Rights -of -Way. This security fund shall be
separate and distinct from any other bond, letter of credit or deposit required by a
Telecommunications Franchise or Cable Franchise. If a Grantee has
Telecommunications Facilities or Cable Facilities in the Rights -of -Way for five (5)
consecutive years, the Grantee may request the City to waive the requirement for a
security fund. In addition, if, at the discretion of the Council, an existing Grantee, is
considered to be "in good standing" with the City, the Security Fund may be waived.
This determination is made during the Utility Permit Process as described in Section
15.76.030.
a. The fund shall serve as security for the full and complete performance of
Grantee's obligations under this Ordinance, including any costs,
expenses, damages or loss the City pays or incurs because of any failure
attributable to the Grantee to comply with the codes, ordinances, rules,
regulations or permits of the City .
b. Before any sums are withdrawn from the security fund; the Administrator
shall give written notice to the Grantee:
1. describing the act, default or failure to be remedied, or the
damages, cost or expenses which the City has incurred by reason
of the Grantee's act or default;
2. providing a reasonable opportunity for the Grantee to first remedy
the existing or ongoing default or failure;
3. providing a reasonable opportunity for the Grantee to pay any
monies due the City before the City withdraws the amount thereof
from the security fund; and
4, that the Grantee will be given an opportunity to review the act,
default or failure described in the notice with the Administrator.
C. Grantee shall replenish the security fund within fourteen (14) days after
written notice from the Administrator that there is a deficiency in the
amount of the fund.
Section 15.72.180 Construction and Completion Bond. Unless otherwise
provided in a license or franchise agreement, a bond written by a surety acceptable to
the City equal to at least 100% of the estimated cost of restoration of the Rights -of -Way
shall be secured before a construction permit is issued. An annual bond may be
approved by the Director for numerous small line extension projects in lieu of an
individual bond for each project.
Ordinance No. 668 ,August 25, 1999
City of Yelm Page 25
a. The construction bond shall remain in force until sixty (60) days
after substantial completion of the work, as determined by the City
Administrator or designee, including restoration of Rights -of -Way
and other property affected by the construction.
b. The construction bond shall guarantee, to the satisfaction of the
City:
(i) timely completion of construction;
(ii) construction in compliance with applicable plans, permits,
technical codes and standards;
(iii) proper location of the facilities as specified by the City;
(iv) restoration of the Rights -of -Way and other property affected
by the construction;
(v) the submission of "as- built" drawings after completion of the
work as required by this Title;
(vi) timely payment and satisfaction of all claims, demands or
liens for labor, material or services provided in connection
with the work.
Section 15.72.190 Acts at Grantee's Expense. Any act that a Grantee is or
may be required to perform under this Ordinance, a license, franchise, or cable
franchise or applicable law shall be performed at the Grantee's expense.
Section 15.72.200 Coordination of Construction Activities. All grantees are
required to cooperate with the City and with each other as follows:
a. By February 1 of each year, Grantee shall provide the City
Administrator or designee with a schedule of their planned
construction activities which may affect the Rights -of -Way for that
year.
b. Each Grantee shall meet with the City, other Grantees and users of
the Rights -of -Way annually or as determined by the City to
schedule and coordinate construction.
C. All construction locations, activities and schedules shall be
coordinated, as ordered by the City Administrator or designee, to
minimize public inconvenience, disruption or damages.
Ordinance No. 668 August 25, 1999
City of Yelrn Page 26
Section 15.72.210 Assignments or Transfers. Ownership or control of a
license, franchise or cable franchise may not directly or indirectly, be transferred,
assigned or disposed of by sale, lease, merger or consolidation, by operation of law or
otherwise, nor may there be a transfer of working control (which includes not only actual
control, but also the ability to affect or influence decisions) without the prior written
consent of the City, as expressed by ordinance and then on such conditions as may be
prescribed therein and:
a. No grant with respect to a Telecommunications Service shall be assigned
or transferred in any manner within twelve (12) months after the initial
grant of the license or franchise unless otherwise provided by law.
b. Absent extraordinary and unforeseeable circumstances and to the extent
permitted by law, no grant with respect to a Telecommunications Service
shall be assigned or transferred before construction of the
Telecommunications Facilities have been completed.
c. The proposed assignee or transferee shall provide and certify the
following information to the Administrator.
1. Complete information setting forth the nature, terms and conditions
of the proposed transfer or assignment;
2. All information required of a license, franchise or cable franchise
applicant pursuant to this Ordinance with respect to the proposed
transferee or assignee;
3. All information required by federal, State and local law or
regulation, including, but not limited to, FCC Form 394.
4. Any other information reasonably required by the Administrator.
d. No transfer shall be approved unless the assignee or transferee has the
legal, technical, financial and other qualifications in the City 's reasonable
discretion to own, hold and operate the telecommunications system
pursuant to this Ordinance, and unless there is compliance with the
license, franchise and cable franchise (as applicable).
e. The assignee or transferee shall reimburse the City for all direct and
indirect fees, costs and expenses incurred by the City in considering a
request to transfer ownership in or assign a license, franchise or cable
franchise unless otherwise prohibited by law.
Any transfer of ownership in or assignment of a license, franchise or cable
franchise without prior approval of the City under this Ordinance shall be
void and is cause for revocation of the grant.
9, Upon receipt of all information required herein, and any other information
Ordinance No. 668 .August 25, 1999
City of Yelm Page 27
reasonably required by the City, the City shall have one hundred and
twenty (120) days to review and approve or deny the requested
assignment or transfer. If the City is unable to approve or deny the
requested assignment or transfer within such period, the City shall provide
notice of the reasons for the delay and the period of time needed to
complete its review, and such review period shall be extended to the
extent permitted by law.
h. In addition to the other requirements herein, a copy of the transfer or
assignment document, deed or other documentation deemed necessary
by the City shall also be filed with the Administrator within ten (10) days of
any change in ownership or control.
Except as provided in Section 15.72.220 below, City's consent shall not
be required for any assignment which is the result of a corporate merger,
sale of all or substantially all of the corporate assets, sale of any or all of
the corporate stock, consolidation or reorganization, whether voluntary or
involuntary, or assignment to a subsidiary, parent, or affiliated company
so long as such assignee or transferee is financially qualified and there
are no outstanding issues of noncompliance under this Ordinance, a
license, franchise or cable franchise. Nothing contained herein shall
prevent or restrict an assignor's, lessor's, or Person's right to (a) mortgage
its interest or (b) assign or lease to a third party fiber optic cables or
telecommunication capacity (so long as it is for uses authorized by
telecommunications franchises or cable franchises), and no consent shall
be required for such mortgage, lease or assignment. Such assignors and
lessors shall, however, be responsible for written notification to City of
such assignment or lease due to those occurrences defined herein in
which City's consent is not required, and such notification shall include the
appropriate names, address and contact points for the assignee or
lessee.
Section 15.72.220 Transactions Affecting Control. Franchisee shall
promptly notify the City of any proposed change in, transfer of, or acquisition by any
other party of control of Franchisee. if beneficial ownership of thirty (30) percent or
more of the voting stock of Franchiseee, or of any parent company of Franchisee,
immediate or otherwise, or of any entity now owning or later acquiring such a beneficial
interest, is acquired by a single entity or by several entities under common control, and
if such entity or entities of common control is other than an organization that is more
than fifty (50) percent owned by Franchiseee, or a parent or affiliate of Franchissee,
then a change of control will be deemed to have taken place unless the City, upon
request of Franchisee, finds otherwise. Such change of control shall make this
Franchise subject to revocation unless and until the City shall have given written
consent thereto. For the purpose of determining whether it will consent to such change,
transfer, or acquisition of control, the City may inquire into qualifications of the
prospective controlling party to perform the obligations of Franchisee under this
Ordinance No. 668 August 25, 1999
City of Yelm Page 28
Agreement. Franchisee shall assist the City in any such inquiry. Franchisee shall
reimburse the City for all reasonable costs incurred in a change of control approval
process. The City may condition its consent upon such reasonable terms and
conditions as it deems appropriate. Consent to a change of control request shall not be
unreasonably withheld.
Section 15.72.230 Revocation or Termination. A license; franchise or cable
franchise granted by the City to use or occupy Rights -of -Way may be revoked for any
one or more of the following reasons:
a. Construction or operation at an unauthorized location.
b. Unauthorized transfer of control.
G. Unauthorized assignment of a license, franchise or cable franchise.
d. Misrepresentation in any application to the City ,
e Abandonment of Telecommunications Facilities or Cable Facilities in the
Rights -of -Way.
Failure to relocate or remove Telecommunications Facilities or Cable
Facilities as required in this Ordinance.
g. Failure to pay taxes, compensation, fees or costs when and as due the
City .
Insolvency or bankruptcy.
Violation of a provision of this Ordinance.
Violation of a terra of a license, franchise or cable franchise.
Section 15.7 2.240 notice and Duty to Cure. in the event that the
Administrator believes that grounds exist for revocation of a license, franchise or cable
franchise, written notice shall be given of the apparent violation or noncompliance,
there shall be provided a short and concise statement of the nature and general facts of
the vioiation or noncompliance, and there shall be given a reasonable period of time not
exceeding thirty (30) days to furnish evidence:
��. That corrective action has been, or is being actively and expeditiously
pursued, to remedy the violation or noncompliance.
b. That rebuts the alleged violation or noncompliance.
C. That it would be in the public interest to impose some monetary damages,
Ordinance No. 666 August 25, 1999
City of Yelm Page 29
penalty or sanction less than revocation.
Section 15.72.250 Hearing. In the event that a Grantee fails to provide
evidence reasonably satisfactory to the Administrator as provided hereunder, the
Administrator shall make a preliminary determination as to whether an event of default
by Grantee has occurred and initially prescribe remedies in accordance with Section
15.72.260. In the event that a Grantee wants to appeal such determination, it shall do
so to the Yelm City Council, who shall conduct a hearing. In the event a further appeal
is sought by the Grantee, it shall make such appeal to the Thurston County Superior
Court, as set forth in RCW 36.70C.
Section 15.72.260 Standards for Revocation or Lesser Sanctions. If
persuaded that the Grantee has violated or failed to comply with a provision of this
Ordinance or of a license, franchise, cable franchise or applicable codes, ordinances;
statutes, or roles and regulations, the Administrator shall make a preliminary
determination whether to revoke the license, franchise or cable franchise, and issue a
written order, or to impose monetary damages, a penalty, or other such lesser sanction
and cure, considering the nature, circumstances, extent and gravity of the violation as
reflected by one or more of the following factors:
a. Whether the misconduct was egregious.
b. Whether substantial harm resulted.
C. Whether the violation was intentional.
d. Whether there is a history of prior violations of the same or other
requirements.
e. Whether there is a history of overall compliance.
Whether the violation was voluntarily disclosed, admitted or cured.
CHAPTER 15.76 TELECOMMUNICATIONS ORDINANCE CONSTRUCTION
Section 15.76.010
Section 15.76.020
Section 15.76.030
Section 15.76.040
Section
Section
Section
Section
Section
Section
15.76.050
15.76.060
"1 5.76.070
1 5.76.080
15.76.090
15.76.100
Ordinance too. 668
City of Yelm
Construction Standards
Construction Codes
Utility Permits
Applications
Grantee's Certification
Traffic Control Plan
Issuance of Permit
Construction Schedule
Compliance with Permit
Display of Permit
August 25, 1999
Page 30
Section 15.76.110
Section 15.76.120
Section 15.76.130
Section 15.76.140
Section 15.76.150
Section 15.76.160
Section 15.76.170
Noncomplying Work
Completion of Construction
As -Built Drawings
Restoration of Improvements
Landscape Restoration
Location of Telecommunications and Cable Facilities
Occupancy of City Owned Conduit
Section 15.76.010 _Construction Standards. No Person shall commence or
continue with the construction, installation or operation of Telecommunications Facilities
or Cable Facilities within the City except as provided in this Ordinance, provided,
however, this Chapter 15.76 shall be in addition to the requirements of Chapter 15.48,
YMC, Development Guidelines, City of Yelm, as enacted or in the future is amended
from time to time.
Section 15.76.020 Construction Codes. Telecommunications Facilities and
Cable Facilities shall be constructed, installed, operated and maintained in accordance
with all applicable federal, State and local codes, rules and regulations including, but
not limited to, the National Electrical Safety Code. Telecommunications Facilities and
Cable Facilities shall comply with the most recent standards in the Development
Guidelines, other public works standards, and applicable City codes.
Section 15.76.030 Utility Permits. No Person shall construct or install any
Telecommunications Facilities or Cable Facilities within the Rights -of -Way without a
utility permit, as provided under this ordinance, provided however:
a. No permit shall be issued for the construction or installation of
Telecommunications Facilities or Cable Facilities within the City unless the
Telecommunications Carrier has filed a registration statement with the
City pursuant to this Ordinance.
b. No permit shag be issued for the construction or installation of
Telecommunications Facilities or Cable Facilities in the Rights -of -Way
unless the Grantee has applied for and received a license, franchise or
cable franchise pursuant to this Ordinance to the extent the foregoing may
be required under applicable law.
C. Unless otherwise provided by a license, franchise; cable franchise or law,
no permit shall be issued for the construction or installation of
Telecommunications Facilities or C able Facilities without payment of all
fees pursuant to this Ordinance.
d. No permit shall be issued to cut any Public Way, the surface of which is
less than three (3) years old.
Section 15.76.040 Appligations. Applications for permits to construct
Ordinance No. 665 August 25, 1999
City of Yelm Page 31
Telecommunications Facilities shall be submitted upon forms provided by the City. The
applicant shall pay all associated fees and shall include any additional information as
requested by the Public Works Director or designee. The application shall be
accompanied by drawings, plans and specifications in sufficient detail to demonstrate:
a. That the Facilities will be constructed in accordance with all
applicable codes, rules and regulations.
b. 'The location and route of all Facilities to be installed on existing
utility poles.
C. The location and route of all Facilities to be located under the
surface of the ground, including the line and grade proposed for the
burial at all points along the route which are within the Rights -of-
Way.
d. The location of all existing underground utilities, conduits, ducts;
pipes, mains and installations which are within the Rights -of -Way
along the underground route proposed by the applicant.
e. The construction methods to be employed for protection of existing
structures, fixtures and facilities within or adjacent to the Rights -of- Way.
The location, dimension and types of all trees within or adjacent to
the Rights -of -Way along the route proposed by the applicant,
together with a landscape plan for protecting, trimming, removing,
replacing and restoring any trees or areas to be disturbed during
construction.
Section 15.76.050 Grantee's Certification. Unless otherwise provided in a
license or franchise, all permit applications shall be accompanied by the drawings,
plans and specifications submitted with the application that comply with applicable
technical codes; rules and regulations. The Grantee shall provide a certificate of the
construction cos} estimate.
Section 15.76.060 Traffic Control Plan. All permit applications which involve
work on, in, under, across or along any Rights -of -Way shall be accompanied by a traffic
control plan demonstrating the protective measures and devices that will be employed.
Section 15.76.070 Issuance of Permit. Upon submission of all plans and
documents required of the applicant and payment of necessary permit fees, the Public
Works Director or designee, if satisfied that the application, plans and documents
comply with all requirements of this Title, shall issue a permit authorizing construction of
the facilities, subject to such further conditions, restrictions or regulations affecting the
time, place and manner of performing the work as the Public Works Director or
designee may deem necessary or appropriate.
Ordinance No. 668 August 25, 1999
City of Yelm Page 32
Section 15.76,080 Construction Schedule. For Class B & C Utility Right -of-
Way work, the permittee shall submit a written construction schedule to the Public
Works Director or designee ten (10) working days before commencing any work in or
about the Rights -of -Way. The permittee shall further provide written notification to the
Public Works Director or designee not less than five (5) working days in advance of any
excavation or work in the Rights -of -Way.
Section 15.76.090 Compliance with Permit. All construction practices and
activities shall be in accordance with the permit and approved final plans and
specifications for the facilities. The Public Works Director or designee and his or her
representative shah be provided access to the work and such further information as he
o she may require to ensure compliance with such requirements.
Section 15.76.100 Display of Permit. The permittee small maintain a copy of
the construction permit and approved plans at the construction site, which shall be
displayed and made available for inspection by the Public Works Director or designee
at all times when construction work is occurring.
Section 15.76.110 Noncomplying Work. Upon order of the Public Works
Director or designee, all work which does not comply with the permit, the approved
plans or specifications for the work, or the requirements of this Title shall be removed
aridi'or relocated, provided that the permittee shall have the right to appeal the order as
provided in YMC 15.72.250.
Section 15.76.120 Completion of Construction. The permittee shall promptly
�;omplete all construction activities so as to minimize disruption of the Rights -of -Way
and other public and private property. All construction work authorized by a permit
within Rights -of -Way. including restoration, must be compieted within ninety (90) days
of the date of issuance or at such other interval as the City may specify in writing upon
issuance of the permit.
Section 15.76.130 As -Built Drawings. At the Director's request, within thirty
(30) days after completion of construction, the permittee shall furnish two (2) complete
sets of plans, drawn to scale and certified to the City as accurately depicting the
location of all Telecommunications Facilities constructed pursuant to the permit.
Section 15.76.140 Restoration of Improvements. Upon completion of any
construction work, the permittee shall promptly repair, but in no event longer than such
time as may be established by the City during permit review, any and all public and
private property, improvements, fixtures, structures and facilities which are damaged
during the course of construction, restoring the same to their condition before
construction commenced.
Section 15.76.150 landscape Restoration.
a. All trees, landscaping and grounds removed, damaged or disturbed
Ordinance No. 668 August 25, 1999
City cf Yelm Page 33
as a result of the construction; installation, maintenance, operation,
repair or replacement of telecommunications facilities, which is
done pursuant to a franchise, license or permit, shall be replaced or
restored to the condition existing prior to performance of the work
in accordance with YMC Chapter 17.80.
b. All restoration work within the Rights -of -Way shall be done in
accordance with landscape plans approved by the City.
Section 15.76.160 Location of Telecommunications and Cable Facilities.
Unless otherwise required in current or future City ordinances regarding underground
construction requirements, all Telecommunications Facilities and Cable Facilities shall
be constructed, installed and located in accordance with the following terms and
conditions:
a. A Grantee with written authorization to install Overhead Facilities shall
install its Telecommunications Facilities and Cable Facilities on pole
attachments to existing utility poles only, and then only if Surplus Space is
available.
b. Whenever all existing telephone, electric utilities, Cable Facilities or
Telecommunications Facilities are located underground within Rights -of-
Way, a Grantee with written authorization to occupy the same Rights -of-
Way must also locate its Telecommunications Facilities and Cable
Facilities underground.
C. Whenever all new or existing telephone, electric utilities, Cable Facilities
and Telecommunications Facilities are located or relocated underground
within Rights -of -Way, a Grantee that currently occupies the same Rights -
of -Way shall concurrently relocate its facilities underground at its expense.
d. Telecommunications Facilities shall be installed within an existing
underground duct or conduit whenever excess capacity exists within such
utility facility.
Section 15.76.170 Occupancy of City Owned Conduit. If the City owns or
leases conduit in the path of Grantee's proposed Telecommunications Facilities, and
provided it is technologically and economically feasible for Grantee to occupy the
conduit owned or leased by the City (and provided that Grantee does not require a
different path due to a legitimate need to achieve redundancy), Grantee shall be
required to occupy the conduit owned or leased by the City in order to reduce the
necessity to excavate the Rights -of -Way. Grantee shall pay to the City a fee for such
occupancy calculated pursuant to the federal formula for conduit leases, or a mutually
agreeable rate if no such formula exists.
Ordinance No. 668 August 25, 1999
City of Yelm Page 34
CHAPTER 15.80 TELECOMMUNICATIONS ORDINANCE FEES
Section 15.80.005
Section 15.80.010
Section 15.80.020
Section 15.80.030
Section 15.80.040
Section 15.80.050
Section 15.80.060
Section 15.80.070
Applicability
Registration Fee
Application Fee
Utility Permit Fee
Refund
Other City Costs
Annual Fees
Regulatory Fees and Compensation Not a Tax
Section 15.80.005 Applicability. This Chapter 15,80 shall constitute the fee
structure, subject to resolutions or ordinances adopted from time to time by the Council,
and to the extent permitted by law.
Section 15 „80.010 Registration Fee. Each application for registration shall be
accompanied by a fee in the amount of $350.00.
Section 15.80.020 Application Fee. Each application under the
✓I elecommunications Ordinance for a license, permit, franchise or cable franchise, or
renewal thereof, shall be accompanied by an application fee in the amount of $1500.00,
which shall be deposited in an escrow account. Provided, however, that an existing
franchisee as of the date of this ordinance, may be exempted from the application fee
until their franchise is up for renewal. The purpose of the application fee is to ensure
full recovery of City costs and expenses associated with the review of the application
including, but not limited to, actual costs of City staff time and resources as well as any
outside consultation expenses which the City reasonably determines are necessary to
adequately review and analyze the application;. The application fee shall be credited
towards other fees or deposits due to the City, less any ascertainable costs and
expenses incurred by the City in connection with the application. To the extent that the
initial deposit is insufficient to fund full recovery of City costs and expenses, within thirty
(30) days after written demand, the applicant shall reimburse the City .
Section 15.80.030 Utility Permit Fee. Prior to issuance of a utility permit, the
applicant shall pay a permit fee to recover the City's actual attributable costs and
expenses. The amount of the utility permit fee shall be as follows:
a. Utility Right -of -Way Work Class A:
b. Utility Right -of -Way Work Class B
c. Utility Right -of -Way Work Class C
Ordinance No. 668
City of Yelm
$ No Fee
$100.00 plus $10.00 per linear
foot for 36 -month old pavement
cuts
$300.00 plus $10.00 per linear
foot for 36 -month old pavement
Guts
August 25, 1999
Page 35
Section 15.80.040 Refund. Any application fee funds remaining after issuance
of the license, franchise or cable franchise, or renewal thereof, shall be credited toward
permit fees or refunded to the applicant. An applicant whose license, franchise or cable
franchise application has been withdrawn, abandoned or denied shall, within one
hundred twenty (120) days of its application and review fee payment, be refunded the
balance of its fee under this Section, less all ascertainable costs and expenses incurred
by the City in connection with the application.
Section 15.80.050 Other City Costs. All Grantees shall, within thirty (30) days
after written demand therefore, reimburse the City for all direct and indirect costs and
expenses incurred by the City in connection with any compliance review, or
modification, amendment or transfer of a license, franchise or cable franchise.
Section 15.80.060 Annual Fees. In addition to other fees provided for or
referred to in this Ordinance, the City reserves the right to require each licensee,
franchisee, cable franchisee or lessee of the City to pay an annual fee to the City to
reimburse the City's costs in connection with administration and oversight of the
license, franchise, cable franchise, permit, lease or other authorization, and in
connection with reviewing, inspecting, monitoring and supervising the use and
occupancy of the Rights -of -Way, which amounts may be established by the Council.
Section 15.80.070 Regulatory Fees and Compensation Not a Tax. The
regulatory fees and costs provided for or referred to in this Ordinance, and any
compensation charged and paid for the Rights -of -Way, are separate from, and
additional to, any and all federal, State, local and City taxes as may be levied, imposed
or due from a Grantee, its customers or subscribers, or on account of the lease, sale,
delivery or transmission of Telecommunications Services or Cable Services.
CHAPTER 15.84 TELECOMMUNICATIONS ORDINANCE MISCELLANEOUS
Section 15.84.010 Context
Section 15.84.020 Effectiveness
Section 15.84.030 Short Title
Section 15.84.010 Context. When not inconsistent with the context, words
used in the present tense include the future tense, words in the plural number include
the singular number, and words in the singular number include the plural number_.
Section 15.84.020 Effective date. This Ordinance shall take effect on
September 8, 1999, 5 days after its publication on September 3, 1999.
Section 15.84.030 Short Title. Chapters 15.52 through 15.84 of the City of
Yelm Code shall be known as the City of Yeim Telecommunications Ordinance
Ordinance No. 668 August 25, 1999
City of Yelm rage 36
Passed by the City Council on this 25th day of August, 1999.
ATTEST'.
Mayor
City of Yelm, Washington
Agngs--P, Bennick Kat4yn M. WWIf
CLERK/TREASURER MAYOR
APPROVED AS TO FORM:
Robert F. Hauth, City Attorney, Owens Davies Mackie
CIT''ATTORNEY
By:
FAGROU P\TELCOM 1 4.CLN
Ordinance No. 668 August 25, 1999
City of Yelm Paaa- 37