§ 11.14.120. Conditions of licenses, franchises, master permits and leases.

A.

Purpose. A significant purpose of this chapter is to set forth certain terms and conditions which are common to all right-of-way licenses, franchises, master permits and facilities leases. Except as otherwise provided in this chapter or in such a right-of-way license, franchises, master permit or facilities lease, the provisions of this chapter apply to all such right-of-way licenses, franchises, master permits and facilities leases approved or granted by the City.

B.

Rules and regulations of the City.

1.

All grantees are required to provide copies of any applicable certificates that authorize the grantee to provide telecommunications services as may be required by federal or state law.

2.

All grantees are required to cooperate with the City and with each other.

(a)

Each grantee shall meet with the City, other grantees and users of the rights-of-way annually or as determined by the City to coordinate construction in the rights-of-way.

(b)

All construction locations, activities and schedules shall be coordinated, as ordered by the Director, to minimize public inconvenience, disruption or damages.

3.

All grantees, before commencing any construction in the rights-of-way, shall comply with all regulations of Chapter 19.122 RCW (One Call Locator Service).

4.

The City reserves the right to require all grantees to provide written confirmation:

(a)

Sufficient for customary land survey and land title insurance purposes concerning the location of their facilities in rights-of-way; and

(b)

Disclaiming any interest in rights-of-way where the grantees have no franchise to construct or operate their facilities.

5.

In addition to the inherent powers of the City to regulate and control any right-of-way, master permit or lease it issues and those powers expressly reserved by the City, or agreed to and provided for in any right-of-way license, master permit or lease, the right and power is hereby reserved by the City to promulgate such additional regulations as it may find necessary in the exercise of its lawful powers giving due regard to the rights of grantees.

6.

Except as provided in this chapter, the foregoing does not allow for amendment by the City of material terms of any license, master permit or lease it issues without the consent of the grantee.

C.

Acceptance. No right-of-way license, master permit or lease granted pursuant to the provisions of this chapter shall become effective unless and until the grantee files with the City Clerk its written acceptance of the license, master permit or lease in a form satisfactory to the City Attorney, together with the bonds and insurance policies required by this chapter.

D.

Safety requirements. Grantees, in accordance with applicable national, state and local safety requirements, shall at all times employ ordinary care and shall install and maintain and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injury or nuisance to the public. All structures and all lines, equipment and connections in, over, under and upon the streets, sidewalks, alleys and rights-of-way or places of a license, master permit or lease area, wherever situated or located, shall at all times be kept and maintained in a safe, suitable condition, and in good order and repair. If a violation of the National Electrical Safety Code or other applicable regulation is found to exist, the City may, after discussions with the grantee, establish a reasonable time for a grantee to make necessary repairs. If the repairs are not made within the established time frame, the City may make the repairs itself or have them made and collect all reasonable costs thereof from a grantee.

E.

Insurance. Unless otherwise provided in a license, master permit or lease agreement, each grantee, as a condition of the license, master permit or lease, shall secure and maintain the following liability insurance policies insuring both the grantee and the City and its elected and appointed officers, officials, agents and employees as co-insureds. Grantees qualified to do business with the State of Washington, as self-insureds shall also meet the requirements listed below:

1.

Insurance required. A franchisee (or those acting on its behalf) shall not commence construction or operation of the system without obtaining insurance in amounts and of a type satisfactory to the City. The required insurance must be obtained and maintained for the entire period the franchisee has facilities in the public rights-of-way. If the franchisee, its contractors, or subcontractors do not have the required insurance, the City may order such entities to stop operations until the insurance is obtained and approved.

2.

Proof. Certificates of insurance, reflecting evidence of the required insurance and naming the City as an additional insured, and other proofs as the City may find necessary, shall be filed with the City. For persons issued franchises after the effective date of this chapter, certificates and other required proofs shall be filed within 30 days of the issuance of a franchise, prior to the commencement of construction, once a year thereafter, and whenever there is any change in coverage. For entities that have facilities in the public rights-of-way as of the effective date of this chapter, the certificate shall be filed within 60 days of the effective date of this chapter, annually thereafter, and whenever there is any change in coverage, unless a pre-existing franchise provides for filing of certificates in a different manner. In the event that the insurance certificate provided indicates that the insurance shall terminate or lapse during the term of the franchise, then in that event, the cable communications system operator shall furnish, at least 30 days prior to the expiration of the date of such insurance, a renewed certificate of insurance as proof that equal and like coverage has been obtained.

3.

Certificate contents. All certificates shall contain a provision that provides the City and all additional insureds for this work with written notice of any policy change or cancellation, within two business days of their receipt of such notice. Policies shall be issued by companies authorized to do business under the laws of the State of Washington. Financial ratings of the insurer shall be no less than "A" VII or better in the latest edition of "Bests Key Rating Guide", published by A.M. Best Guide.

4.

Insurance amounts. A cable communications system operator (and those acting on its behalf to construct or operate the system) shall maintain the following minimum insurance. The City shall be named as an additional insured by endorsement on the general liability and automotive policies; those insurance policies shall be primary and contain a cross-liability clause.

(a)

Comprehensive general liability insurance to cover liability, bodily injury, and property damage. Exposures to be covered are: premises, operations, products/completed operations, and certain contracts. Coverage must be written on an occurrence basis, with the following limits of liability of not less than:

	Each Occurrence	Annual Aggregate
Bodily Injury	$5,000,000	$5,000,000
Property Damage	$5,000,000	$5,000,000
Personal Injury		$5,000,000

 

Completed operations and products liability shall be maintained for two years after the termination of the franchise (in the case of the cable communications system owner or operator) or completion of the work for the cable communications system owner or operator (in the case of a contractor or subcontractor).

Property damage liability insurance shall include coverage for the following hazards: X - explosion, C - Collapse, U - underground.

(b)

Worker's compensation insurance shall be maintained during the life of this contract to comply with statutory limits for all employees, and in the case any work is sublet, each cable communications system operator shall require the subcontractors similarly to provide workers' compensation insurance for all the latter's employees unless such employees are covered by the protection afforded by each cable communications system operator. Each cable communications system operator and its contractors and subcontractors shall maintain during the life of this policy employers liability insurance. Workers' compensation insurance shall include a waiver of subrogation clause in favor of the City. The following minimum limits must be maintained:

Workers' Compensation ..... Statutory

Employer's Liability ..... $1,000,000 per occurrence

(c)

Comprehensive auto liability:

	Each Occurrence	Annual Aggregate
Bodily Injury	$3,000,000	$3,000,000
Property Damage	$3,000,000	$3,000,000

 

coverage shall include owned, hired, and non-owned vehicles. In every franchise agreement the City shall reserve the right to require any other insurance coverage it deems necessary depending upon exposures.

5.

Comprehensive form premises-operations, explosions and collapse hazard, underground hazard and products completed hazard with limits of not less than $3,000,000.00.

6.

The liability insurance policies required by this subsection shall be maintained by the grantee throughout the term of the license, master permit, or lease, and such other period of time during which the grantee is operating without a license, master permit, or lease hereunder, or is engaged in the removal of its telecommunications facilities. Each such insurance policy shall contain the following endorsement:

 "It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew be stated until 90 days after receipt by the City, by registered mail, of a written notice addressed to the Director of such intent to cancel or not to renew."

7.

Within 60 days after receipt by the City of said notice, and in no event later than 30 days prior to said cancellation or intent not to renew, the grantee shall obtain and furnish to the City replacement insurance policies meeting the requirements of this subsection.

F.

General indemnification. No license, master permit or lease shall be deemed to be granted under this chapter unless it includes an indemnity clause substantially conforming to the following:

 "The Grantee hereby releases, covenants not to bring suit, and agrees to indemnify, defend and hold harmless the City, its officers, employees, agents and representatives from any and all claims, costs, judgments, awards or liability to any person, including claims by the grantee's own employees to which the Grantee might otherwise be immune under Title 51 RCW, arising from injury or death of any person or damage to property, of which the negligent acts or omissions of the grantee, its agents, servants, officers or employees in performing under this license, master permit, or lease are the proximate cause."

The grantee further releases, covenants not to bring suit, and agrees to indemnify, defend, and hold harmless the City, its officers and employees from any and all claims, costs, judgments, awards or liability to any person including claims by the grantee's own employees, including those claims to which the grantee might otherwise have immunity under Title 51 RCW, arising against the City solely by virtue of the City's ownership or control of the rights-of-way or other public properties, by virtue of the grantee's exercise of the rights granted herein, or by virtue of the City's permitting the grantee's use of the City's rights-of-way or other public property, based upon the City's inspection or lack of inspection of work performed by the grantee, its agents and servants, officers or employees in connection with work authorized on the City's property or property over which the City has control, pursuant to this license, master permit, or lease or pursuant to any other permit or approval issued in connection with this license, master permit, or lease.

This covenant of indemnification shall include, but not be limited by this reference to, claims against the City arising as a result of the negligent acts or omissions of the grantee, its agents, servants, officers or employees in barricading, instituting trench safety systems, or providing other adequate warnings of any excavation, construction or work in any public right-of-way or other public place in performance of work or services permitted under this license, master permit, or lease.

No franchise shall be valid or effective until and unless the City obtains an adequate indemnity from the franchisee. The indemnity must:

1.

Release the City from and against any and all loss, damage, expense, cost (including without limitation the cost of litigation), liability and responsibility in or arising out of the construction, operation or maintenance of the cable communications system. Each cable communications system operator must further agree not to sue or seek any money or damages from the City in connection with the above-mentioned matters.

2.

Indemnify, hold harmless, and defend the City, its elected and appointed officers, agents, and employees, from and against any and all liability, loss, damage, cost, claims, demands, or causes of action of any kind or nature, and the resulting losses, costs, expenses, reasonable attorneys' fees, liabilities, damages, orders, judgments, or decrees sustained by the City or any third party arising out of, or by reason of, or resulting from or of the acts, errors, or omissions of the cable communications system operator, or its agents, independent contractors, officers or employees related to or in any way arising out of the construction, operation or repair of the system.

3.

Provide that the covenants and representations relating to the release, indemnification, and hold harmless provision shall survive the term of the franchise or other authorization and continue in full force and effect as to the party's responsibility to indemnify.

Inspection or acceptance by the City of any work performed by the grantee at the time of completion of construction shall not be grounds for avoidance of any of these covenants of indemnification. Said indemnification obligations shall extend to claims which are not reduced to a suit and any claims which may be compromised prior to the culmination or the institution of any litigation.

In the event the grantee refuses the tender of defense in any suit or any claim, said tender having been made pursuant to the indemnification clauses contained herein, and said refusal is subsequently determined by a court having jurisdiction (or such other dispute resolution entity that the parties shall agree to decide the matter), to have been a wrongful refusal on the part of the grantee, then the grantee shall pay all of the City's costs for defense of the action, including all reasonable expert witness fees and reasonable attorneys' fees and the reasonable costs of the City of recovering under this indemnification clause.

The provisions of this subsection shall survive the expiration or termination of the franchise, license, master permit or lease agreement. Notwithstanding any other provisions of this subsection, the grantee shall assume the risk of damage to its facilities located in the City's rights-of-way, rights-of-way and easements from activities conducted by the City, its officers, agents, employees and contractors. The grantee shall release and waive any and all claims against the City, its officers, agents, employees or contractors for damage to or destruction of the grantee's facilities caused by or arising out of activities conducted by the City, its officers, agents, employees and contractors, in the rights-of-way, rights-of-way and easements subject to this license, master permit or lease, except to the extent any such damage or destruction is caused by or arises from the negligence or willful conduct on the part of the City, its officers, agents, employees or contractors.

The grantee shall further agree to indemnify, hold harmless, and defend the City against any claims for damages, including, but not limited to, business interruption damages and lost profits, brought by or under users of the grantee's facilities as the result of any interruption of service due to damage or destruction of the user's facilities caused by or arising out of activities conducted by the City, its officers, agents, employees or contractors, except to the extent any such damage or destruction caused by or arising from the negligence or willful conduct on the part of the City, its officers, agents, employees or contractors, to the extent allowed by law.

G.

When required by the provisions, cash deposit/performance bond. Every grantee shall be required to provide a cash deposit or performance bond to ensure the faithful performance of its responsibilities.

H.

Tree trimming. Upon ten days' written notice provided to the Director, except in an emergency of imminent danger to persons or property, the grantee may trim trees or other vegetation owned by the City or encroaching upon the public right-of-way to prevent their branches or leaves from touching or otherwise interfering with its wires. All trimming or pruning within environmentally sensitive areas shall be subject to applicable requirements of Chapter 15.20 PAMC "Environmentally Sensitive Areas Protection." All trimming or pruning shall be at the sole cost of the grantee. The grantee may contract for said trimming or pruning services with any person approved by the City.

I.

Location of facilities. All facilities shall be constructed, installed, and located in accordance with the following terms and conditions, unless otherwise specified in a license, master permit, or facilities lease:

1.

Wherever a grantee has existing underground duct or conduit with capacity available, grantee shall install its telecommunications facilities within such underground duct or conduit.

2.

A grantee with permission to install overhead facilities shall install its telecommunications facilities on pole attachments to existing utility poles only and then only if surplus space is available.

3.

Whenever any existing electric utilities, cable system, or telecommunications facilities are located underground within a right-of-way of the City, a grantee with permission to occupy the same right-of-way must also locate its facilities underground.

4.

Whenever any new or existing electric utilities, cable system, and/or telecommunications facilities are located or relocated underground within a right-of-way of the City, a grantee that currently occupies the same right-of-way shall, at its own expense, relocate its facilities underground. Absent extraordinary circumstances or undue hardship as determined by the Director, such relocation shall be made concurrently to minimize the disruption of the rights-of-way. No extension granted by the Director under this subsection shall exceed a period of 12 months.

The Director may waive the requirements for location of facilities under this subsection, if the grantee demonstrates to the Director's satisfaction that such location requirements are commercially unreasonable or if provisions of the grantee's tariff filed with the Washington Utilities and Transportation Commission otherwise control.

J.

Interference with City property and the rights-of-way. No grantee may locate or maintain its telecommunications facilities to unreasonably interfere with the use of City property or the rights-of-way by the City, by the general public or by other persons authorized to use or be present in or upon the City property and rights-of-way. Unreasonable interference includes disruption to vehicular or pedestrian traffic on City property or the rights-of-way, interference with other City utilities, and such other activities that will present a hazard to public health, safety or welfare when alternative methods of construction would result in less disruption. All such facilities shall be moved by the grantee, at the grantee's cost, temporarily or permanently, as determined by the Director unless provisions of the grantee's tariff filed with the Washington Utilities and Transportation Commission otherwise control. If any grantee's tariff or if a change in the state law alters the responsibility for payment of relocation costs, then all affected grantees shall comply therewith.

K.

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, rights-of-way of the City, other ways or other property, whether publicly or privately owned, located in, on or adjacent thereto.

L.

Damage to facilities. Unless directly and proximately caused by the willful, intentional, grossly negligent or malicious acts of the City, the City shall not be liable for any damage to or loss of any telecommunications facility upon City property or within the rights-of-way of the City as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling or work of any kind on such City property or within the rights-of-way by or on behalf of the City.

M.

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.

N.

Abandonment of facilities.

1.

If the grantee abandons use of its cable, ducts or other facilities authorized under a license, master permit, or lease, then the facilities shall be removed from the rights-of-way 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.

2.

Upon revocation or termination of a license, master permit or lease, grantee shall to the satisfaction of the City and, without cost or expense to the City, within ten calendar days remove its facilities unless permitted by the City to be left in place in such manner as the City may prescribe. If grantee determines to remove such facilities, or any portion thereof, then grantee, at its sole expense, shall restore the rights-of-way where disturbed by such removal under the supervision and to the satisfaction of the City.

3.

Any such facilities, which are not removed within 120 days of either such date of termination or revocation or of the date the City issued a permit authorizing removal, whichever is later, shall become the property of the City at the City's option. The grantee shall notify the City to record facilities abandoned.

O.

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 or City property, as the City may determine to be necessary, appropriate or useful in response to any public health or safety emergency with imminent substantial harm to life or property. The City shall not be liable to any service provider, non-service 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 subsection.

P.

Relocation of facilities.

1.

The City may require service providers or non-service providers to relocate authorized facilities within the right-of-way when reasonably necessary for construction, alteration, repair, or improvement of the right-of-way for the purposes of public welfare, health, or safety. The City shall notify both service providers and non-service providers as soon as practicable of the need for relocation and shall specify the date by which relocation shall be completed. In calculating the date the relocation must be completed, the City shall consult with the affected service providers and non-service providers and consider the extent of facilities to be relocated, the service's requirements, and the construction sequence for the relocation, within the City's overall project construction sequence and constraints, to safely complete the relocation. Each service provider and non-service provider shall complete the relocation by the date specified, unless the City establishes a later date for completion, after a showing by the service provider or non-service provider that the relocation cannot be completed by the date specified using best efforts in meeting safety and service requirements.

2.

A service provider may not seek reimbursement for its relocation expenses from the City under paragraph 1 of this subsection except in the limited circumstances as provided for in RCW 35.99.060.

3.

The City may require the relocation of facilities at the service provider's or non-service provider's expense in the event of an unforeseen emergency that creates an immediate threat to the public safety, health or welfare.

4.

A cable communications system operator shall, by a time specified by the City, protect, support, temporarily disconnect, relocate, or remove any of its property when required by the City by reason of traffic conditions; public safety; public rights-of-way construction and repair (including regrading, resurfacing or widening); public right-of-way vacation; construction, installation or repair of sewers, drains, water pipes, power lines, signal lines, tracks, or any other type of government-owned system or utility, public work, public facility, or improvement; or for any other purpose where the work involved would be aided by the removal or relocation of the cable communications system. Collectively, such matters are referred to below as the "public work."

5.

Except in the case of emergency, the City shall provide written notice describing where the public work is to be performed at least one week prior to the deadline by which a cable communications system operator must protect, support, temporarily disconnect, relocate or remove its facilities. Such action on the part of the franchisee shall be undertaken at no cost to the City. Provided that, in an emergency, or where a cable communications system creates or is contributing to an imminent danger to health, safety or property, the City may protect, support, temporarily disconnect, remove, or relocate any or all parts of the cable communications system without further notice, and charge the cable communications system operator for costs incurred.

Q.

Movement for others.

1.

To accommodate the construction, operation, or repair of the facilities of another person authorized to use the public rights-of-way or public property, a franchisee shall, by a time specified by such person, protect, support, temporarily disconnect, temporarily relocate or remove its facilities. The franchisee must be given written notice describing where the construction, operation or repair is to be performed at least 15 days prior to the time by which its work must be completed. The City may resolve disputes as to responsibility for costs associated with removal, relaying, or relocation of facilities among entities authorized to install facilities in the streets or on public property if such entities are unable to do so themselves.

2.

A cable communications system operator shall, on the request of any person holding a valid permit issued by a governmental authority, temporarily raise or lower its wires by a time specified to permit the moving of buildings or other objects. A cable communications system operator shall be given not less than seven days advance notice to arrange for such temporary wire changes. The expense of such temporary removal, relaying, relocation, or raising or lowering of wires shall be paid by the person requesting the same.

R.

Removal of unauthorized facilities. Within 30 days following written notice from the City, any grantee that owns, controls or maintains any unauthorized telecommunications system, facility or related appurtenances within the rights-of-way or City property shall, at its own expense, remove such facilities or appurtenances from the rights-of-way or City property. A telecommunications system or facility is unauthorized and subject to removal in the following circumstances:

1.

Upon expiration or termination of the grantee's license, master permit, or lease.

2.

Upon abandonment of a facility within the rights-of-way or City property. Any property of a grantee shall be deemed abandoned if left in place 90 days after expiration or termination of a license, master permit or lease.

3.

If the system or facility was constructed or installed without prior grant of a license, master permit or lease, unless said system or facility was constructed or installed prior to the effective date of this chapter.

4.

If the system or facility was constructed or installed without prior issuance of a required construction permit or use permit.

5.

If the system or facility was constructed or installed at a location not permitted by the grantee's license, master permit, or lease.

The City may, in its sole discretion, allow a grantee, or other such persons who may own, control or maintain telecommunications facilities within the rights-of-way or City property to abandon such facilities in place. No facilities of any type may be abandoned in place without the express written consent of the City. Any plan for abandonment or removal of a grantee's facilities must be first approved by the Director, and all necessary permits must be obtained prior to such work.

Upon permanent abandonment of the facilities in place, at the City's option, the property shall become that of the City, and the grantee shall submit to the Director an instrument in writing, subject to approval by the City Attorney, transferring to the City the ownership of such facilities.

The provisions of this subsection shall survive the expiration, revocation, or termination of a license, master permit or lease granted under this chapter or under any other City approval.

S.

Failure to remove or relocate. If a grantee is required to remove, relocate, change or alter the telecommunications facilities constructed, operated and/or maintained hereunder and fails to do so, the City may cause such to occur and charge the grantee for the costs incurred.

T.

Duty to provide information. Within 30 days of a written request from the City, each grantee shall furnish the City with information sufficient to demonstrate:

1.

That grantee has complied with all requirements of this chapter.

2.

That all sales, utility and/or telecommunications taxes due the City in connection with the telecommunications services and facilities provided by the grantee have been properly collected and paid by the grantee.

3.

All books, records, maps and other documents, maintained by the grantee for its facilities within the rights-of-way shall be made available for inspection by the City at reasonable times and intervals.

Nothing in this subsection shall be construed to require a grantee to violate state or federal law regarding subscriber privacy, nor be construed to require a grantee to disclose proprietary or confidential information without adequate safeguards for its confidential or proprietary nature or unless required by state law.

U.

Facilities maps. Each grantee shall maintain accurate maps and improvement plans which show the location, size, and a general description of all facilities installed in the public rights-of-way and any power supply sources (including voltages and connections). Maps shall be based upon post-construction inspection to verify location. Each grantee shall provide a map to the City showing the location of its facilities, in such detail and scale as may be directed by the City Public Works Director and update the map annually and whenever the facility expands or is relocated. Copies of maps shall be provided in hard copy and on disk, in a commercially available electronic format specified by the City Public Works Director.

V.

Assignments or transfers of grant. Working control of a right-of-way license, master permit or lease may not, directly or indirectly, be transferred, assigned or disposed of by sale, lease, merger, consolidation or other act of the grantee, by operation of law or otherwise, without the prior written consent of the City, which consent shall not be unreasonably withheld or delayed except as provided by ordinance and then only on such reasonable conditions as may be prescribed therein.

1.

The grantee and the proposed assignee or transferee of the grant or system shall provide and certify the following information to the City not less than 45 days prior to the proposed date of transfer:

(a)

Complete information on the nature, terms and condition of the proposed transfer or assignment.

(b)

All information required of a license, master permit or lease applicant pursuant to PAMC 11.14.100 with respect to the proposed transferee or assignee.

(c)

All deposits or charges and application fees required pursuant to this chapter.

2.

Unless otherwise provided in a license, master permit or lease, the grantee shall reimburse the City for all direct and indirect costs and expenses reasonably incurred by the City in considering a request to transfer or assign a license, master permit or lease. No assignment or transfer shall be deemed approved until all such costs and expenses have been paid.

3.

Any transfer or assignment of a license, master permit or lease without prior written approval of the City under this subsection or pursuant to a license, master permit or lease agreement shall be void and is cause for revocation of the grant.

W.

Transactions affecting control of grant. Any transactions, which singularly or collectively result in a change of working control of the grantee or the working control of a telecommunications system, shall be considered an assignment or transfer requiring City approval pursuant to PAMC 11.14.100. Transactions between affiliated entities are not exempt from City approval unless said affiliated entities are named in the initial application.

A grantee shall within ten calendar days notify the City prior to any proposed change in, 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 denies its consent and such change, transfer or acquisition of control has been effected, the City may cancel the license, master permit or lease. Approval shall not be required for mortgaging purposes or if said transfer is from a grantee to another person or entity controlling, controlled by, or under common control with a grantee.

X.

Revocation or termination of grant. A license, master permit, or lease granted by the City to use or occupy rights-of-way or City property may be revoked for the following reasons:

1.

Construction or operation in the rights-of-way or City property without a license, master permit or lease grant of authorization.

2.

Construction or operation at an unauthorized location.

3.

Any interconnection with the telecommunications facilities of other telecommunications carriers, operators and providers that are not properly licensed or permitted by the City.

4.

Unauthorized substantial transfer of control of grantee.

5.

Unauthorized assignment of a license, franchise, master permit or lease.

6.

Unauthorized sale, assignment or transfer of a grantee's license, master permit or lease, assets, or a substantial interest therein.

7.

Misrepresentation by or on behalf of a grantee in any application or written or oral statement upon which the City relies in making the decision to grant, review or amend any license, master permit or lease pursuant to this chapter.

8.

Abandonment of telecommunications facilities in the rights-of-way or upon City property.

9.

Failure to relocate or remove facilities as required in this chapter.

10.

Failure to pay taxes, compensation, fees or costs when and as due the City.

11.

Insolvency or bankruptcy of the grantee.

12.

Violation of any material provision of this chapter.

13.

Violation of the material terms of a license, master permit or lease agreement.

14.

Violation of any state or federal law relating to use of public rights-of-way by service providers.

15.

Violation of any applicable state or federal safety laws and standards.

16.

Violation of any applicable City ordinances, construction codes, regulations or standards.

17.

Failure to cooperate with the City to ensure that facilities are installed, maintained, repaired and removed within the right-of-way in such a manner and at such points so as to not inconvenience the public use of the right-of-way or to adversely affect the public health, safety and welfare.

18.

Failure to obtain a required use permit or right-of-way construction permit before constructing, installing, maintaining, repairing or removing identified facilities.

Y.

Notice and duty to cure. In the event that the Director believes that grounds exist for revocation of a license, master permit, lease or franchise, the City shall notify franchisee or grantee in writing of any alleged violation ("violation notice") of a franchise or this chapter. The violation notice shall: (1) identify the violation; (2) direct the franchisee or grantee to cure the violation or show cause why the violation cannot or should not be cured; and (3) state the time for the franchisee or grantee's response, which shall be at minimum 30 days from the date of issuance of the violation notice, except for violations that present a danger to public health, safety or welfare, in which case the time for response may be shortened.

Within the time period designated for response the franchisee or grantee shall respond in writing to the City indicating that: (1) the franchisee or grantee contests the violation notice and describing all facts relevant to its claim; or (2) the franchisee or grantee has completely cured the violation, in which case the franchisee or grantee shall provide documentation demonstrating that the violation has been completely cured; or (3) the franchisee or grantee has begun to correct the violation; however, the violation cannot be corrected immediately despite the cable communications system operator's continued due diligence, in which case the franchisee or grantee shall describe in detail the steps already taken and operator's proposed plan and time schedule for completely curing the violation. Correction of the violation is not complete until all damages and penalties owed are paid in full.

Z.

Hearing. In the event that a grantee fails to provide evidence reasonably satisfactory to the Director as provided in PAMC 11.14.120, the Director shall refer the apparent violation or non-compliance to the City's Hearing Examiner for action to revoke in accordance with the provisions of PAMC 11.14.120. The City shall provide the grantee with notice and a reasonable opportunity to be heard concerning the matter. If the franchisee or grantee contests the violation notice or the City determines that the franchisee or grantee has failed to completely cure the violation, to submit an acceptable plan to cure the violation, or to work diligently to cure the violation, the City shall schedule a hearing before the City's Hearing Examiner ("violation hearing"). The City shall provide cable communications system operator written notice of the violation hearing at least 20 days prior to the hearing ("hearing notice").

AA.

The hearing notice shall indicate: (1) the time and place of the violation hearing; (2) the nature of the violation; and (3) the franchisee or grantee right to present oral and written testimony at an open and public meeting.

BB.

At the violation hearing, the City's Hearing Examiner shall hear and consider evidence from the franchisee or grantee, City staff and members of the public regarding the alleged violation. The franchisee or grantee, shall be given an opportunity to present any and all evidence relating to the alleged violation.

CC.

If, based upon the evidence presented at the violation hearing, the City's Hearing Examiner finds that the franchisee or grantee has violated its franchise, this chapter or any applicable state or federal law, the City's Hearing Examiner may issue an order assessing liquidated damages if provided for by the franchisee or grantee franchise, or, subject to this Section 11.14.120 and the terms of the franchisee or grantee's franchise, revoke or shorten the franchise.

DD.

Revocation and termination. The City's Hearing Examiner may revoke a franchise or reduce the term of a franchise if it finds, after complying with procedures set forth above, that a franchisee or grantee has violated this chapter or its franchise; has defrauded or attempted to defraud the City or subscribers; or has attempted to evade the requirements of this chapter or its franchise. Except as to violations that are impossible to cure, and as provided in PAMC 11.14.120, the franchise may only be revoked if the franchisee: (A) was given notice of the default; and (B) was given 30 days to cure the default; and (C) the franchisee failed to cure the default, or to propose a schedule for curing the default acceptable to the City where it is impossible to cure the default in 30 days.

EE.

Exception for certain acts. No opportunity to cure is required for repeated violations, and fraud and attempted fraud shall be deemed incurable. Further, the City may declare a franchise forfeited without opportunity to cure where a franchisee: (A) voluntarily stops providing service it is required to provide; or (B) transfers the franchise without the prior consent of the City.

FF.

Exception for bankruptcy. A franchise will terminate automatically by force of law 120 calendar days after an assignment for the benefit of creditors or the appointment of a receiver or trustee to take over the business of the franchisee, whether in a receivership, reorganization, bankruptcy assignment for the benefit of creditors, or other action or proceeding. However, the franchise may be reinstated within that 120-day period, if: (A) such assignment, receivership or trusteeship has been vacated; or (B) such assignee, receiver or trustee has fully complied with the terms and conditions of this chapter and the franchise, and has executed an agreement, approved by any court having jurisdiction, assuming and agreeing to be bound by the terms and conditions of this chapter and the franchise. In the event of foreclosure or other judicial sale of any of the facilities, equipment or property of a franchisee, the City may revoke the franchise following a public hearing before the City's Hearing Examiner by serving notice upon the franchisee and the successful bidder at the sale, in which event the franchise and all rights and privileges thereunder will be revoked and will terminate 30 calendar days after serving such notice, unless: (A) the City has approved the transfer of the franchise to the successful bidder; and (B) the successful bidder has covenanted and agreed with the City to assume and be bound by the terms and conditions of the franchise and this chapter and the obligations and liabilities of its predecessor franchisee.

GG.

Effect of termination or forfeiture. Upon termination or forfeiture of a franchise, whether by action of the City as provided above, or by passage of time, the franchisee must stop using the cable communications system for the purposes authorized by the franchise. The City may take possession of some or all of franchisee's facilities, or require the franchisee or its bonding company to remove some or all of the franchisee's facilities from the City, and restore affected property to its same or better condition. This provision does not permit the City to remove facilities that are used to provide any non-cable service for which the franchisee holds a valid franchise issued by the City or for which the franchisee is otherwise authorized by operation of state law to use the public rights-of-way to provide.

HH.

Remedies cumulative. Remedies provided for under this chapter or under a franchise shall be cumulative. Recovery by the City of any amounts under insurance, the performance bond, the security fund or letter of credit, does not limit a franchisee's duty to indemnify the City; or relieve a franchisee of its franchise obligations or limit the amounts owed to the City.

II.

Standards for revocation or lesser sanctions. If the City's Hearing Examiner determines that a grantee willfully violated or failed to comply with any of the provisions of this chapter or a license, franchise or lease granted under this chapter, or through willful misconduct or gross negligence failed to heed or comply with any notice given the grantee by the City under the provisions of this chapter, then the grantee shall, at the election of the City Council, forfeit all rights conferred hereunder and the license, master permit, or lease may be revoked or annulled by the Council. The Council may elect, in lieu of the above and without any prejudice to any of its other legal rights and remedies, to pursue other remedies, including obtaining an order from the superior court having jurisdiction compelling the grantee to comply with the provisions of this chapter and any license, master permit, or lease granted hereunder, and to recover damages and costs incurred by the City by reason of the grantee's failure to comply. The Council shall utilize the following factors in analyzing the nature, circumstances, extent and gravity of the violation and in making its determination:

1.

Whether the misconduct was egregious.

2.

Whether substantial harm resulted.

3.

Whether the violation was intentional.

4.

Whether there is a history of prior violations of the same or other requirements.

5.

Whether there is a history of overall compliance.

6.

Whether the violation was voluntarily disclosed, admitted or cured.

JJ.

Incorporation by reference. The provisions of this chapter shall be incorporated by reference in any license, master permit or lease approved hereunder. The provisions of any proposal submitted and accepted by the City shall be incorporated by reference in the applicable license, master permit, or lease. In the event of any conflict between the proposal, this chapter, and the license, master permit, or lease, the license, master permit or lease shall be the prevailing document.

(Ord. 3550 § 2, 2/16/2016; Ord. 3083 § 1(part), 6/29/2001)