HomeMy WebLinkAbout4777 TELECOMMUNICATIONS ORDINANCE NO. 4777
An Ordinance of the City Council of the City of Bremerton
Regulating the occupancy and use of public rights of way by
Telecommunications Systems, Private Communications
System, Wireless Communications System and Resellers;
prescribing minimum terms and conditions for and upon the
construction, maintenance and repair of such systems
Section 1. New Chapter. Chapter 11.01 is hereby added to the Bremerton Municipal Code to
read as follows:
Chapter 11.01
GENERAL
Sections
11.01.010 Purpose.
11.01.020 Policy guidelines.
11.01.030 Definitions.
11.01.040 Master Permit Required.
11.01.050 General Conditions Upon Use of Public Rights-of-Way.
11.01.060 Taxes and Fees.
11.01.070 Protection of the City and Residents.
11.01.080 Enforcement and Remedies.
11.01.010 Purpose. The purpose of this Title is to:
A. Establish a local policy conceming telecommunications systems, and private
communication systems for use of the Public Rights-of-Way;
B. Establish a policy that promotes availability of high-quality and diverse
telecommunications services to City residents, businesses, the City, and other public institutions;
promotes the availability of diverse, multimedia information resources to the community;
provides for the development of a communications infrastructure that provides opportunities for
more open government, enhancing educational opportunities throughout the community,
providing public access to the communications infrastructure, and building a stronger
community; while ensuring that the City has the authority to act to protect the public, safety, and
welfare in the face of a rapidly-changing industry that is placing increasing demand on public
resources;
C. Establish clear and nondiscriminatory local guidelines, standards and time frames for the
exercise of local authority with respect to the regulation of the use of Public Rights-of-Way by
telecommunications operators, private communication operators, and Resellers, and their
respective facilities and licenses;
D. Promote competition in communications;
E. Minimize unnecessary local regulation of providers and services;
F. Encourage the provision of advanced and competitive telecommunications, on the widest
possible basis to the businesses, institutions and residents of the City;
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G. Permit and manage reasonable access to the Public Rights-of-Way of the City for
communications purposes on a competitively neutral basis, to the extent required by law;
H. Conserve the limited physical capacity of the Public Rights-of-Way held in public trust
by the City;
I. Assure that the City's current and ongoing costs of granting and regulating private access
to and use of the Public Rights-of-Way are fully paid by the persons seeking such access and
causing such costs;
J. 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 Public Rights-of-Way;
K. To encourage economic development while preserving aesthetic and other community
values and preventing proliferation of above ground facilities;
L. Assure that all persons providing telecommunications, services within the City comply
with the ordinances, rules and regulations of the City;
M. Ensure the ability of the City to obtain sufficient information from persons subject to its
jurisdiction to enable effective decisions regarding their access to City fights-of-way and
effective management of activity in the rights-of-way;
N. Assure that the City can continue to fairly and responsibly protect the public health,
safety and welfare;
O. Enable the City to discharge its public trust consistent with rapidly evolving federal and
state regulatory policies, industry competition and technological development; and
P. Reserve to the City and provide for the fullest exercise possible of the authority and
discretion of the City to require that: (1) facilities are installed and maintained within the public
rights-of-way in such manner and at such points so as not to inconvenience the public use of the
public rights-of-way or to adversely affect the public, safety and welfare; (2) all non-city users of
the rights-of-way shall be required to reimburse and hold harmless the City for the actual costs
incurred by the City by reason of the construction or presence in the public rights-of-way of the
Facilities of such other users.
11.01.020 Policy guidelines. The administration of this Title shall be governed by the
following telecommunications policy guidelines.
A. The City of Bremerton supports efforts to establish an open, competitive marketplace for
telecommunications services. The City promotes and encourages competition for voice, data,
video, and video programming services that make the latest and best technology available and
keep service prices affordable for all City residents and businesses. An integral component of
this open marketplace is the consistent application of regulations to all telecommunications
providers and the preservation of local authority over matters of local impact.
B. The following policy guidelines express the commitment of the City to support
telecommunications services and to manage its fights-of-way proactively while balancing the
interests and needs of the community:
1. The City will manage access to the Public Rights-of-Way for telecommunications
purposes in a non-discriminatory, competitively neutral and non-exclusive way to the extent
required under applicable law and, to the extent allowed under applicable law, to receive fair
compensation. The public interest will be protected by collecting associated fees, taxes,
administrative costs, and construction costs for use of the rights-of-way.
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2. Telecommunications Master Permits will be managed to preserve the integrity of the
City's infrastructure, ensure efficient use of City property and ensure compliance with City
ordinances, rules and regulations.
3. In order to effectively manage and regulate the use of public rights-of-way by private
entities in the best interests of the City and its citizens it is necessary for the City to reserve and
exercise all legislative, administrative and discretionary authority it may have to the full extent
allowed or not prohibited by law and nothing in this Title shall be construed to diminish or in any
way to limit the discretionary, administrative or legislative authority of the City and its officials
as respects the management and use of the City's public rights-of-way or in respect to the
granting, delaying, or denying any Master Permit, ROW Permit or License.
11.01.030 Definitions
A. "Administrator" means the Master Permit Administrator or designee.
B. "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.
C. "Application Fee" means the charge specified in Section 11.03.020 and designed to
recover the City's actual costs in processing applications for Master Permits, Use Permits or
Licenses, including applications for transfer thereof.
D. "Cable Television Service" means the one-way transmission to subscribers of video
programming and other programming service and subscriber interaction, if any, that is required
for the selection or use of the video programming or other programming service.
E. "City" means the City of Bremerton and all departments, divisions, and agencies thereof.
F. "Communications facility" means a device which alone or as part of an aggregation of
devices is capable of transmitting signals from place to place.
G. "Communications system" refers to a telecommunications system.
H. "Construction, operation or repair" and similar formulations of that term means the
named actions interpreted broadly, encompassing, among other things, installation, extension,
maintenance, replacement of components, relocation, undergrounding, grading, site preparation,
adjusting, testing, make-ready and excavation.
I. "Generally" For the purposes of this Title, the following terms, phrases, words, and
abbreviations shall have the meanings given herein, unless otherwise expressly stated. 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; and the masculine gender includes the feminine gender. The words "shall" and
'%vill" are mandatory, and "may" is permissive. Unless otherwise expressly stated, words not
defined in this Title shall be construed consistent with Title 47 of the United States Code, and, if
not defined therein, their common and ordinary meaning. References to governmental entities
(whether persons or entities) refer to those entities or their successors in authority. If specific
provisions of law referred to herein are renumbered, then the reference shall be read to refer to
the renumbered provision. References to laws, ordinances or regulations shall be interpreted
broadly to cover government actions, however nominated, and include laws, ordinances and
regulations now in force or hereafter enacted or amended.
J. "Grantee" refers to a Person holding a Master Permit.
K. "Gross Revenues" means any and all revenue, of any kind, nature or form, as more
particularly defined under Bremerton Municipal Code Chapter 5.02.
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L. "License" refers to the legal authorization, terminable at will to use a particular, discrete,
and limited portion of the public fights-of-way to construct, operate, or repair a Communications
Facility or a Private Communications System. The term License shall not mean or include.
1. any other permit or authorization required for the privilege of transacting and carrying
on a business within the City required by the ordinances and laws of the City;
2. any permit, agreement, or authorization required in connection with operations on
public streets or property, including by way of example and not limitation, street cut permits;
3. any permits or agreements for occupying any other property of the City or private
entities to which access is not specifically granted by the License including, without limitation,
permits and agreements for placing devices on or in poles, conduits, other structures, or railroad
easements, whether owned by the City or a private entity; or
4. the right to place devices in the right of way, such as pay telephones, for end user use
in originating and terminating transmissions.
M. "Master Permit" refers to the authorization granted by the City to an Operator of a
Telecommunications System, under this Title giving the Operator the non-exclusive right to
occupy the space, or use facilities upon, across, beneath, or over any Public Right-of-Way in the
City, to provide a specified service within a Master Permit area. Such Master Permit shall not
include or be a substitute for:
1. any other permit or authorization required for the privilege of transacting and carrying
on a business within the City required by the ordinances and laws of the City;
2. any permit, agreement or authorization required in connection with operations on or
in public streets or property, including by way of example and not limitation, street cut permits;
3. any permits or agreements for occupying any other property of the City or private
entities to which access is not specifically granted by the Master Permit including, without
limitation, permits and agreements for placing devices on or in poles, conduits, other structures,
or railroad easements, whether owned by the City, or a private entity; or
4. the right to place devices in the right-or-way, such as pay telephones, for end user use
in terminating or originating transmissions.
By way of example, and without limiting the foregoing, this Title shall not be read to
diminish or in any way affect the authority of the City to control the use of the City's real estate,
fixtures or personal property. Therefore, any Person who desires to use such property must
obtain additional approvals, or agreements for that purpose, as may be required by the City.
N. "Master Permit Area" means the area of the City that a Grantee is authorized to serve
by the terms of its Master Permit or by operation of law.
O. "Operator" when used with reference to a system, refers to a Person (1) who provides
service over a Communications System and directly or through one or more Affiliates owns a
significant interest in such facility; or (2) who otherwise controls or is responsible for, through
any arrangement, the management and operation of such a facility. A Person that operates under
agreement a Telecommunications System or a specific portion of a Telecommunications System
to provide Telecommunications Services shall be treated as an Operator for purposes of this
Title.
P. "Overhead Facilities' refers to commtmications facilities located above the surface of
the ground, including the underground supports and foundations for such facilities.
Q. "Person" includes any individual, corporation, partnership, association, Joint Stock
Company, trust, or any other legal entity, but not the City.
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R. "Private Communications System" means a facility placed in whole or in part in the
Public Rights-of-Way for the provision of communications in connection with a Person's
business, but not encompassing in any respect the provision of Telecommunications Services.
S. "Private Communications System Owner" means a Person that owns or leases a
Private Communications System.
T. "Public Rights-of-Way" mean land acquired or dedicated for public roads and streets
which under the applicable ordinances and laws the City has authority to grant Master Permits,
ROW permits or licenses for use thereof or has regulatory authority thereover and as may be
more specifically defined in the Master Permit, ROW permit or license granting any right to or
use thereof but for purposes of this Title does not include (1) state highways, (2) land dedicated
for roads, streets and highways no open and not improved for motor vehicle use by the public;
(3) structures such as, but not limited to, poles and conduits located within the right-of-way; (4)
parks and open space; and (5) publicly owned shorelines or harbor areas.
U. "Reseller" refers to any Person who resells a Telecommunications Service, for which he
makes a separate charge, provided over a Telecommunications System, where that Person does
not own or lease the underlying Telecommunications System used for the transmission.
V. "Telecommunications Service" means the transmission for hire of information in
electronic or optical form, including, but not limited to, voice, video, or data, whether or not the
transmission medium is owned by the provider itself. Telecommunications Service includes
telephone service but does not include Cable Service or over-the-air broadcasts to the public-at-
large from facilities licensed by the Federal Communications Commission or any successor
thereto.
W. "Telecommunications System" means a tangible facility that is used to provide one or
more Telecommunications Services, any portion of which occupies Public Rights-of-Way. The
term Telecommunications System by way of example, and not limitation, includes wires,
equipment cabinets, guys, conduit, radio transmitting towers, poles, other supporting structures,
and associated and appurtenant facilities used to transmit telecommunications signals. The term
Telecommunications System includes all devices mounted on light poles in the Public Rights-of-
Way through which Telecommunications Services are originated or terminated.
X. "Title" when used in the context of referring to this Title of the Bremerton Municipal
Code, shall mean Title 11 of the Bremerton Municipal Code and Chapters 11.01, 11.03, 11.05
and 11.06.
Y. "Underground Facilities' refers to ail utilities and communications and cable facilities
located under the surface of the ground, excluding the underground foundations or supports for
Overhead Facilities.
Z. "Use Permit" means the authorization in whatever form whereby a city or town may
grant permission to a service provider to enter and use the specified right-of-way for the purpose
of instailing, maintaining, repairing, or removing identified facilities.
AA. "Wireless Communication Services Facilities". Wireless communication facilities
are those facilities that the City has authorized to be placed in the public fights-of-way and which
are necessary for the provision of personal wireless services. Personai wireless services means
commercial mobile services, unlicensed wireless services, and common carder wireless
exchange access services as defined by Federal law and regulations.
11.01.040 Master Permit required.
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A. Master Permit requirement. An Operator of a telecommunications facility must obtain
a Master Permit prior to constructing a telecommunications facility or providing
Telecommunications Services. The fact that a particular Master Permitted Communications
Facility may be used for multiple purposes does not obviate the need to obtain a Master Permit
for other purposes unless applicable federal or state law prohibits the City from requiring such
additional Master Permit. No Master Permit shall become effective without the Grantee signing
an acceptance of the Master Permit.
B. Exceptions. Subject to the requirements of applicable law, a Master Permit requirement
may be waived in whole or in part for a Telecommunications System where the City determines
the use of the Public Rights-of-Way is de minimus (i.e. uses only a short distance of street or
occupies only a small isolated area of a specific street). For such facilities, the City may issue a
License. In addition, every Private Communications System Owner must obtain a License.
Every License shall include or be read to include, as if stated there in, a reservation of rights by
the City to require the Licensee to obtain a Master Permit if the City determines that the
Licensees use of the public rights of way has increased substantially and is no longer de minimus
use
C. Additional Exceptions. The City does hereby request that any Operator now providing
telecommunications service within the City over an existing telecommunication system within
the public rights-of-way of the City without having a Master Permit from the City granting and
allowing such use at the time this provision becomes effective apply for a Master Permit from
the City for such use of the public fights-of-way. In the event such Operator fails to request a
Master Permit within thirty (30) days from the effective date of this ordinance and such Operator
submits evidence satisfactory to the City that it is involved in pending litigation wherein the
Operator claims the Operator has an existing state-wide grant to occupy the public right-of-way
or the Operator otherwise submits a non-frivolous and documented claim that it has an existing
state-wide grant to occupy public right-of-way, including streets in the City of Bremerton, then
in such event the requirement for obtaining a Master Permit for the continued use of public right-
of-way in Bremerton for existing wireline facilities will be suspended until there is a final
judicial decision resolving the issue or the City by decision of its City Council determines that
the best interests of the City will be served by terminating the suspension of the requirement to
obtain a Master Permit. The suspension of any master Permit required hereunder shall not
constitute a consent or permission by the City to occupy the public right-of-way by the Operator
for any use, nor shall it be construed as a waiver of any right of the City to require the Operator
to hereafter at any time to obtain a Master Permit or to remove any or all of its facilities in the
public right-of-way at any time upon its failure to obtain a Master Permit. In the event an
Operator fails to obtain a Master Permit as herein requested and the Master Permit requirement is
suspended as herein provided then the Operator shall be required to apply for a City ROW
Permit prior to constructing or placing any wireline telecommunication facility in the public
right-of-way.
D. Nature of grant. Neither a master Permit nor a License shall convey title, equitable or
legal, in the Public Rights-of-Way. The right granted is only the right to occupy those portions
of the Public Rights-of-Way to which the City has the right to grant access, for the purposes and
for the period stated in the Master Permit or License, and, subject to the limitations in this
section and elsewhere in this Title, the right may not be subdivided or subleased. A Master
Permit, ROW Permit or License shall not grant a vested right for any facility to be located or to
remain at any specific location in the public right-of-way and any right, permission or consent to
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occupy any location in the public right-of-way shall be revocable and terminable at the discretion
of the City and the facility therein removed at the cost of the Operator in order to allow free and
unencumbered use of the public right-of-way for public work or other public purpose as may be
in the best public or municipal interest as determined by the City.
Every Master Permit shall be:
1. Deemed to include all of the provisions that are required to be in a Master Permit
under this title, as if fully set forth in the Master Permit.
2. Deemed to provide for forfeiture under the circumstances set forth in the provisions
of this Title and any Master Permit there under; and
3. Construed to exclude the grant of any rights in any easement granted for or in favor of
any city or public utility facilities or operations, unless the Master Permit or License shall
expressly state otherwise.
No reference herein, or in any Master Permit, ROW Permit or License, to a public Right-of-
Way shall be deemed to be a representation or guarantee by the City that its interest or other right
to control the use of such property is sufficient to permit its use for such purposes, and a Master
Permit shall be deemed to grant no more than those rights which the City may have the
undisputed right and power to give.
11.01.050 General conditions upon use of public rights-of-way.
A. Responsibility for costs. Except as expressly provided otherwise, any act that a
Communications System Operator, its contractors or subcontractors are required to perform
under this Section 11.01.050 shall be performed at their cost. If a Communications System
Operator fails to perform work that it is required to perform within the time provided for
performance, the City may perform the work and bill the Communications System Operator
therefore. The Communications System Operator shall pay the amounts billed within thirty (30)
days.
B. Construction Procedures and Placement of Facilities; Obligation to Minimize
Interference With Use of Public Rights-of-Way.
1. The construction, operation, and repair of communications facilities are subject to the
supervision of all of the authorities of the City that have jurisdiction in such matters and shall be
performed in compliance with all laws, ordinances, departmental rules and regulations and
practices affecting such system. By way of example, and not limitation, this includes zoning
codes and safety codes and current City standards, including the most current version of the
Standard Specifications for Road, Bridge and Municipal Construction, as prepared by the
Washington State Department of Transportation (WSDOT) and the Washington State Chapter of
American Public Works Association (APWA); the most current version of the APWA
Amendments to Division One, and the most current version of the City of Bremerton
Amendments thereto. In addition, the construction, operation, and repair shall be performed in a
manner consistent with high industry standards. Persons engaged in the construction, operation,
or repair or communications facilities shall exercise reasonable care in the performance of all
their activities and shall use commonly accepted methods and devices for preventing failures and
accidents that are likely to cause damage, injury, or nuisance to the public or to property.
2. Construction, operation, or repair of a communications system shall not commence
until all required permits have been properly filed for and obtained from the proper City officials
and all required permits and associated fees paid. In any permit so issued, the City may impose
as a condition of the granting of the permit such conditions and regulations as may be necessary
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to the management of the rights-of-way, including, by way of example and not limitation, for the
purpose of protecting any structures in the Public Rights-of-Way, for the proper restoration of
such Public Rights-of-Way and structures, and for the protection of the City and the public and
the continuity of pedestrian and vehicular traffic. A Master Permit, License or ROW Permit or
other applicable provision of the Bremerton Municipal Code may provide for the conditions
under which certain emergency work may be undertaken prior to obtaining certain permits where
such work is necessary to immediately remedy an emergency situation involving an imminent
danger to health, safety or property or to temporarily restore communication system services
which have been disrupted by storms, earthquakes, riots or other unexpected accidents or
phenomenon. Provided, however that the communication system operator undertaking such
emergency work shall be required (a) to give notice to the City of the commencement of the
emergency work as quickly as practical, (b) to apply for the permits which would otherwise be
required for such work by the next business day from the commencement of such work; and (c)
to conform any work performed prior to the approval of the required permit and to carry out any
other work in the area involved in accordance with the requirements of the permit. Sub-
contractors are prohibited from liening public property or any facilities placed in the public right-
of-way.
3. Operators of communications systems must follow City-established requirements for
placement of facilities in Public Rights-of-Way, including the specific location of facilities in the
Public Rights-of-Way, and must in any event install facilities in a manner that minimizes
interference with the use of the Public Rights-of-Way by others, including others that may be
installing communications facilities. The City may require that facilities be installed at a
particular time, at a specific place, or in a particular manner as a condition of access to a
particular right-of-way; may deny access if an Operator is not willing to comply with the City's
requirements; and may remove, or require removal of, any facility that is not installed in
compliance with the requirements established by the City, or which is installed without prior
City approval of the time, place, or manner of installation and charge the Operator of the facility
for all the costs associated with removal; and may require a Person using the rights-of-way to
cooperate with others to minimize adverse impacts on the rights-of-way through joint trenching,
joint use of facilities and other arrangements.
4. Upon order of the Administrator, all work which does not comply with the permit, the
approved plans or specifications for the work, or the requirements of this Title or other
applicable law shall be removed.
5. Unless otherwise agreed or provided in a Master Permit, License or ROW permit a
communication systems operator shall be required to reimburse and hold harmless the City for
any cost or expense reasonably incurred by the City in the planning, construction, installing,
altering, or implementing any public work as a result of the construction or the presence in the
public right-of-way of the facility of such communication system operator.
6. No new poles or extenders on poles to increase capacity shall be allowed in the public
rights-of-way and all new overhead facilities of any nature are prohibited unless specifically
allowed under this chapter or other applicable provisions of the Bremerton Municipal Code or
applicable City policies, procedures and current standards.
7. The specific location within the right-of-way and the method of installing facilities
underground or overhead will be subject to approval by the Public Works Director/City
Engineer. Cutting of pavement in the public right-of-way shall be prohibited where the Public
Works Director/City Engineer approves locating underground facilities in the unimproved
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portions of the right-of-way or in the sidewalk areas or requires alternative methods for
undergrounding not requiring trenching or the cutting of pavement.
8. Cutting of pavement shall be prohibited in any event in a newly constructed or
reconstructed street for a period of five (5) years from the paving of such street or in a street
where a trench was previously available for a period of three (3) years from the date the trench
was available. The City may require as a condition to the occupancy of the fights-of-way that
communication facilities be located within existing underground ducts or conduits wherever the
capacity exists. Provided, however, the Public Works Director/City Engineer may in his or her
discretion permit pot-holing (subject to conditions to alleviate the harmful effects) where conduit
is to be placed underground by means of directional boring and the person seeking permission
has provided evidence satisfactory to the Public Works Director/City Engineer that (a) such pot-
holing is necessary to avoid interference with existing utilities; (b) such pot-holing is the only
reasonable altemative available to locate existing utilities and (c) such pot-holing will result in
little or no visual or other detrimental impact to the street.
9. Any and all Public Rights-of-Way, public property, or private property that is
disturbed or damaged during the construction, operation, repair or removal of a Communications
Facility shall be promptly repaired by the Communications System Operator that disturbed or
damaged the Public Rights-of-Way, public property or private property. Public property and
public right-of-way must be restored to the satisfaction of the City and to a condition as good or
better than before the disturbance or damage occurred. A communication system operator shall
continue to maintain the restored street area, which may consist of curb, gutter, sidewalk,
pavement, or other restored appurtenances, in a condition as good as or better than the condition
of the adjacent undisturbed area of the street for the life of the street (to the extent such
maintenance or restoration is required, (a) as a result of the restored street area being defective or
otherwise inferior to the adjacent undisturbed area of the street or (b) as a result of the presence
of the facilities of the communication system operator), until the restored area is repaved or
reconstructed by a different party, except when such repaying or reconstruction is a result of
enforcement action by the City for the lack of such maintenance activity; unless (a) the
assessment of the Impact Assessment under this Title provides for an exemption; or (b) a Master
Permit, License or Permit specifically exempts the communication system operator from such
obligation.
10. No tree trimming shall be performed without the permission of the City and other
affected authorities, and tree trimming must be performed in strict accordance with the City
Code.
11. Within forty-eight (48) hours after notice from the City, a Communications System
operator shall remove any graffiti on any part of its Communications System in the public rights-
of-way (including by way of example and not limitation) equipment cabinets. If the operator
fails to do so, the City may remove the graffiti and bill the operator for the cost thereof.
C. Relocation and Abandonment of facilities.
1. A 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 fight-of-way construction; public right-
of-way repair (including resurfacing or widening); change of public right-of-way grade;
construction, installation or repair of sewers, drains, water pipes, power lines, signal lines, tracks,
or any other type of government-owned Communications System, public work, public facility or
improvement, or any government-owned utility; public right-of-way vacation; or for any other
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purpose where the work involved would be aided by the removal or relocation of the
Communications Facility. Collectively, such matters are referred to below as the "public work".
(a) Except in the case of emergencies, the City shall provide written notice describing
where the public work is to be performed as soon as practical but at least thirty (30) days prior to
the deadline by which a Communications System Operator must protect, support, temporarily
disconnect, relocate or remove its facilities. A Communications System Operator may seek an
extension of the time to perform such tasks where they cannot be performed in thirty (30) days or
by the completion time specified even with the exercise of its best efforts, and such request for
an extension shall not be unreasonably refused.
(b) In the event of an emergency, or where a Communications Facility 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 Communications Facility
without prior notice, and charge the Communications System Operator for costs incurred.
(c) If a Communication System Operator does not comply with the requirements of
this Title and the applicable Master Permit, License or ROW Permit does not provide otherwise
and if not prohibited by applicable law the City shall have the right to revoke any right of a
Communications System Operator to have its facilities remain at specific location in the public
right-of-way at any time the City determines that the Facilities of such communications system
operator must be removed from their present location or from the street in order to facilitate a
public work in the public right-of-way and upon such revocation of the Master Permit, License
or ROW Permit of the Communications System Operator as to the affected designated facilities
the Communications System Operator shall remove the same and restore the street at its cost.
2. If any Person that is authorized to place facilities in the rights-of-way requests
another Communications System Operator receiving the request to protect, support, temporarily
disconnect, remove, or relocate its facilities to accommodate the Construction, Operation, or
Repair of the facilities of such other Person, the Communications System Operator shall, after
thirty (30) days' advance written notice, take action to effect the necessary changes requested.
Unless the matter is governed by a valid contract or a state or federal law or regulation, or unless
the Communications Facility that is being requested to move was not properly installed, the
reasonable cost of the same shall be borne by the Person requesting the protection, support,
temporary disconnection, removal, or relocation and at no charge to the City, even if the City
makes the request for such action.
3. A 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 to permit
the moving of buildings or other objects. The expense of such temporary removal or raising or
lowering of wires shall be paid by the Person requesting the same. A Communications System
Operator shall be given not less than seven (7) days' advance notice to arrange for such
temporary wire changes.
4. Grantee may abandon and surrender its Master Permit to the City upon six (6) months
written notice to the Administrator, with copies thereof served upon the Mayor and City
Attorney. Abandonment shall be subject to acceptance by the City, by a resolution of acceptance
adopted by the City Council. Upon abandonment, non-renewal, revocation or expiration of this
Master Permit, and if no extension is granted, Grantee may, at the discretion of the
Administrator, be required in part or entirely, to remove all its fiber, wire, poles, fixtures, and
other facilities or equipment installed or used in the enjoyment of the Master Permit.
Alternatively, the Administrator may direct, limit or condition Grantee's removal, sale or
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continued use or abandonment of Grantee's facilities and equipment, either by agreement or
through means of any other lawful municipal power or right. The City may continue to invoke
any provision of this Master Permit against Grantee or any successor entity enjoying de facto
Master Permit privileges after revocation or expiration. The City may take all other actions
deemed necessary and proper by the City to accommodate the transition to any successor as may
be in the best interests of the City and its residents.
D. Facility subject to inspection; operator must provide information. Every
Communications Facility shall be subject to the right of periodic inspection by the City to
determine compliance with the provisions of this Title, a Master Permit or License agreement, or
other applicable law. The City shall have the right, upon request, to be notified and present when
the Communications System is inspected by the Operator to determine compliance with the
provisions of this Title; a Master Permit, License or ROW Permit; or applicable law where the
City has enforcement authority. Each Operator must respond to requests for information
regarding its system and plans for the system as the City may fi.om time to time issue, including
requests for information regarding its plans for construction, operation and repair and the
purposes for which the plant is being constructed, operated, or repaired to the extent such plant is
or will be in the public right-of-way or has been or will be provided under any Master Permit,
License or ROW Permit granted by or requested from the City.
E. Underground services alert. Each Operator of a Communications System that places
facilities underground shall be a member of the regional notification center for subsurface
installations (Underground Services Alert) and shall field mark the locations of its underground
communications facilities upon request. The Operator shall locate its facilities for the City at no
charge. Grantee promises to reasonably cooperate with City initiatives to coordinate
underground fixture locations and installations. Grantee is familiar with Chapter 19.122 RCW,
Washington State's "Underground Utilities" statute. Grantee certifies it understands local
procedures, custom and practice relating to facilities locating, and will see to it that its
contractors or others working in the right-of-way on Grantee's behalf are similarly well
informed.
F. Undergrounding of lines. The Grantee recognizes the City's right to preserve and
control of the public right-of-way, particularly with respect to policies regarding the
undergrounding of overhead lines for aesthetic reasons. Consistent with any general municipal
undergrounding policy or program now or hereafter developed, the City reserves the right to
require Grantee's participation in municipally imposed undergrounding or related requirements
as may now or hereafter arise, as a condition of Grantee's new installation or major maintenance
or restoration construction activities of overhead facilities under this franchise. Grantee agrees to
coordinate its underground installation and planning activities with the City's underground plan
and policies; provided, in no event shall any third party beneficiary rights be implied or created.
Nothing in this section shall be permitted in conflict with RCW 35.99.060, and the provisions of
this section shall be applied in conformity thereto.
G. Plans for and publicizing work.
1. Work shall be publicized as the City may direct fi.om time to time. The publication of
work may be used to notify the public and operators of other communications systems, of the
impending work, in order to minimize inconvenience and disruption to the public and to allow
joint use by others.
2. Each Communications System owner shall provide the City a plan for any initial
system construction, or for any substantial rebuild, upgrade or extension of its facility, which
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shall show its timetable for construction of each phase of the project, and the areas of the City
that will be affected.
3. Grantee promises to supply and maintain updated, at no cost, any information
requested by the Administrator to coordinate municipal functions with Grantee's activities and
fulfill any municipal obligations under state law. Said information may include an installation
inventory, location of existing or planned facilities, maps, plans, and as-built drawings of
Grantee's installations within the City. Said information may be requested either in hard copy
and/or electronic format compatible with the City's data base system, as now or hereafter
existing. Grantee shall keep the Administrator informed of its long-range plans for coordination
with the City's long-range plans.
4. Each Communications Facility Operator shall maintain accurate maps and
improvements 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. The
Operator of each Communications Facility shall provide a map (on 24" x 336" Mylar) to the City
showing the location of its facilities, in such detail and scale as may be directed by the City
Engineer. New system maps shall be promptly submitted to the City when the facility expands
or is relocated. Copies of maps shall be provided on disk, in a commercially available electronic
format specified by the City Engineer or in such alternate form as approved by the City
Engineer.
5. The Administrator may from time to time, when the City receives application for a
permit to use a particular route, or upon the Administrator's own initiative, designate by
published order a route or proposed route for installation of Communications Facilities and may
(1) require all persons who wish to place Underground Facilities along that route or any part
thereof to install them during a specified period and (2) otherwise prohibit placement of such
facilities along the route or any part thereof for thirty-six (36) months or for such other, longer
period as is necessary to protect the public.
11.01.060 Taxes and Fees.
A. No franchise fee shall be charged to the Grantee for its operation of telecommunications
facilities in the right of way, whether as a lessor of the facilities to third parties or as a direct
provider of telecommunications services. Nothing in this Master Permit shall limit the City's
power of taxation, as may now or hereafter exist.
B. Consistent with RCW 35.21.860 (1) (b), nothing in this Master Permit shall prohibit the
City from charging a fee to recover the actual administrative expenses it incurs that are directly
related to receiving and approving a Master Permit, License, and ROW Permit, to inspecting
plans and construction, or to the preparation of a detailed statement pursuant to chapter 43.21C
RCW. Upon request of Grantee, the City will submit proof of any charges or expenses incurred.
For any project or time frame, Grantee can also request a written estimate from the
Administrator, in advance of costs planned to be expended by the City, and Grantee may object
to any costs as provided hereafter in the case of a challenged cost billed by the City. Except as
otherwise provided, said fees must be paid within thirty (30) days of receipt of the City's billing.
Grantee will pay all other taxes applicable to its operations or activities within the City of
Bremerton, all such obligations also being a condition of this Master Permit.
C. Grantee shall make any required payments in the form, intervals and manner requested by
the City Administrator, and furnish him/her any information related to his/her revenue collection
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functions reasonably requested. In case of audit, the Administrator may require Grantee to
furnish a verified statement of compliance with Grantee's obligations or in response to any
questions, verified by an officer of the Grantee. All audits will take place on Grantee's premises
or offices furnished by Grantee, which shall be a location within the City of Bremerton. Grantee
agrees, upon request of the City Auditor, to provide copies of all documents filed with any
federal, state, or local regulatory agency, to be mailed to the City Auditor on the same day as
filed, postage prepaid, affecting any of Grantee's facilities or business operations in the State of
Washington.
11.01.070 Protection of the City and residents.
A. Indemnification. No Master Permit or other authorization to use the rights-of-way
issued to a Communications System Operator or a Private Communications System Owner shall
be valid or effective until and unless the City obtains an adequate indemnity from such Operator.
Unless otherwise agreed, in writing, adequate indemnity must at least include the following:
1. Release the City from and against any and all liability and responsibility in or arising
out of the construction, operation or maintenance of the Communications Facility in the public
right-of-way by the Communications Facility Operator. Each Communications Facility Operator
must further agree not to sue or seek any money or damages from City in connection with the
above-mentioned matters;
2. Indemnify and hold harmless the City, its trustees, elected and appointed officers,
agents, and employees, from and against any and all claims, demands, or causes of action of
whatsoever 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
Communications System Operator, or its agents, independent contractors or employees related to
or in any way arising out of the construction, operation or repair of the facility in the public
rights-of-way.
3. Provide that the covenants and representations relating to the indemnification
provision shall survive the term of any Master Permit or other authorization and continue in full
force and effect as to the party's responsibility to indemnify.
B. Insurance. No Master Permit or other authorization to use the rights-of-way issued to a
Communications System Operator or a Private Communications System Owner shall be valid or
effective until and unless the City obtains assurance that such Operator (and those acting on its
behalf) have adequate insurance. Unless otherwise agreed, in writing, adequate insurance must
at least meet the following requirements:
1. A Communications System Operator shall not commence construction or operation of
the facility without obtaining all insurance required under this paragraph and approval of such
insurance by the City, nor shall a Communications System Operator allow any contractor or
subcontractor to commence work on its contract or sub-contract until all similar such insurance
required of the same has been obtained and approved. The required insurance must be obtained
and maintained for the entire period the Communications System Operator has facilities in the
rights-of-way, and for a period thereafter as specified in the minimum coverages described
below. If the Operator, 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. Certificates of insurance, reflecting evidence of the required insurance and naming
the City as an additional insured, shall be filed with the City's Risk Manager. For entities that
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are entering the market, the certificates shall be filed prior to the commencement of construction
and once a year thereafter, and as provided below in the event of a lapse in coverage. For
entities that have facilities in the rights-of-way as of the effective date of this Title, the certificate
shall be filed within sixty (60) days of the effective date of this Title, annually thereafter, and as
provided below in the event of a lapse in coverage, unless a pre-existing Master Permit provides
for filing of certificates in a different manner.
3. These certificates shall contain a provision that coverages afforded under these
policies will not be canceled until at lease thirty (30) days' prior written notice has been given to
the City. Policies shall be issued by companies authorized to do business under the laws of the
State of Washington. Financial Ratings must be no less than "A" in the latest edition of"Bests
key Rating Guide", published by A.M. Best Guide.
4. In the event that the insurance certificate provided indicates that the insurance shall
terminate or lapse during the period of the Master Permit or License, then in that event, the
Communications System Operator shall furnish, at least thirty (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 or will be obtained prior to any such lapse or termination during the balance
of the period of the Master Permit or License under which the Communications System operates.
5. A Communications System owner or Operator, and its contractors or subcontractors
engaged in work on the Operator' s behalf in, on, under or over Public Rights-of-Way, shall
maintain the following minimum insurance. The City shall be named as an additional insured on
the general liability and automotive policies.
(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:
(i) Bodily Injury
Each Occurrence $1,000,000
Annual Aggregate 3,000,000
(ii) Property Damage
Each Occurrence $1,000,000
Annual Aggregate 3,000,000
(iii) Personal Injury
Annual Aggregate $3,000,000
(iv) Completed Operations and Products Liability shall be maintained for two (2)
years after the termination of the Master Permit or License (in the case of the Communications
System owner or Operator) or completion of the work for the Communications System owner or
Operator (in the case of a contractor or subcontractor).
(v) Property Damage Liability Insurance shall include coverage for the following
hazards: X - Explosion, C - Collapse, U - Underground.
(b) Workers' 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 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 Communications System Operator. Each
Communications System Operator and its contractors and subcontractors shall maintain during
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the life of this policy employers liability insurance. The following minimum limits must be
maintained:
(i) Workers' Compensation Statutory
(ii) Employer's Liability $ 500,000 per
occurrence
(c) Comprehensive Auto Liability
(i) Bodily Injury
Each Occurrence $1,000,000
Annual Aggregate 3,000,000
(ii) Property Damage
Each Occurrence $1,000,000
Annual Aggregate 3,000,000
Coverage shall include owned, hired, and non-owned vehicles.
6. Each Communications System Operator shall hold the City, its agents, and
employees, harmless on account of claims for damages to persons, property or premises arising
out of its construction, operation or repair of its Communications System and name the City as
an additional insured.
7. In every Master Permit or License agreement, the City shall reserve the right to
require any other insurance coverage it deems necessary depending upon the exposures.
C. Performance/payment bonds. Every Operator of a Communications Facility may be
required to obtain performance bonds and, if necessary, payment bonds to ensure the faithful
performance of its responsibilities under this Title and any Master Permit, ROW Permit or
License, including a sufficient amount to cover removal of facilities and/or restoration of City
facilities within right-of-way. The amount of the performance and payment bonds shall be set by
the Administrator or may be set in a Master Permit in light of the nature of the work to be
performed and is not in lieu of any additional bonds that may be required through the permitting
process. The bond shall be in a form acceptable to the City Attorney. The City may from time
to time increase or decrease the amount of the required performance bond to reflect changes in
risks to the City and to the public.
11.01.080 Enforcement and remedies.
A. Administrator responsible for administration. The Administrator is responsible for
enforcing and administering this Title, and the Administrator is authorized to give any notice
required by law or under any Master Permit, including by way of example and not limitation, a
notice required under 47 U.S.C. § 546. The Administrator is also authorized to seek information
from any Communications System Operator, and to take all other actions necessary or
appropriate to the administration of this Title or any Master Permit. Master Permits may only be
denied, issued or revoked by action of the City Council.
B. Minimum contents of every Master Permit or License. In addition to satisfying the
other applicable requirements of this Chapter, every Master Permit or License for a
Communications System shall contain the following provisions:
1. The Master Permit or License shall provide that neither the granting of any Master
Permit or License, or any provision thereof, shall constitute a waiver or bar to the exercise of any
govemmental right or power, police power, or regulatory power of the City as may exist at the
time the Master Permit or License is issued or thereafter be obtained.
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2. The Master Permit or License shall only authorize occupancy of the right-of-way to
provide the services and for the purposes described in the Master Permit or License.
3. A Master Permit or License shall be a privilege that is held in the public trust and
personal to the original Grantee. The Master Permit or License shall ensure that no transfer of
the master Permit or License may occur, directly or indirectly, without the prior consent of the
City.
4. The Master Permit or License shall contain appropriate provisions for enforcement,
and protection of the public, consistent with the other provisions of this Title.
5. The Master Permit or License shall be for a specified term, set forth in the Master
Permit or License. No Master Permit issued under this Title shall be for a term of longer than ten
(10) years, unless the Council determines that a longer period would be in the City's interest. No
License issued under this Title shall be for a term of longer than five (5) years.
C. Penalties. Any person found to have occupied or carried out activities in the public
rights-of-way without first having obtained or having in effect a valid Master Permit, License, or
ROW permit as required by this Title shall be guilty of a misdemeanor and shall be punished by
a fine not exceeding $1,000 or by imprisonment not exceeding ninety (90) days or by both such
fine and imprisonment. Each day that any such occupancy or activity shall continue in violation
of this Title shall constitute a separate offense.
D. Revocation, reduction of term, or forfeiture of Master Permit or License.
1. Licenses shall be revocable at will.
2. This Master Permit may be revoked for violation of any terms and conditions of the
Master Permit or other city ordinances, resolutions or policy including but not limited to the
following.
(a). Construction or operation in the public rights-of-way of the City or upon City
property in a manner in violation of this Master Permit;
(b).Constmction or operation at an unauthorized location in the public rights-of
way of the City or upon City property;
(c.) Misrepresentation by or on behalf of Grantee in any material respect in any
application or written statements or documents to the City upon which the City
relies in making the decision to grant, review, or amend this Master Permit.
(d).Abandonment of telecommunications facilities in the public ways or upon City
property;
(e).Failure to relocate or remove facilities as required by this Ordinance or Master
Permit
(f).Failure to pay taxes, compensation, fees, or costs when and as due the City
under this Ordinance;
(g).Insolvency or bankruptcy of Grantee;
(h).Violation of any material provision of this Ordinance or Master Permit, which
is not timely, cured upon notice to Grantee by the City.
3. In the event that the City believes that grounds exist for revocation of the Master Permit,
Grantee shall be given written notice of the apparent violation or noncompliance, which notice
shall provide the Grantee a reasonable period of time not exceeding thirty (30) days to furnish
evidence:
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a. 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; or
c. That it would be in the public interest to impose some penalty or
sanction less than revocation.
4. In the event that Grantee fails to provide evidence reasonably satisfactory to the
Administrator, the Administrator shall refer the apparent violation or non-compliance to the City
Council or Hearings Examiner. The City Council or Hearings Examiner shall provide the
Grantee with reasonable notice and a reasonable opportunity to be heard concerning the matter.
5. General administration of this Master Permit for the City is through the office of the
Administrator. However, the Administrator may delegate his/her authority and responsibility to
other agents of the City. All questions of application, interpretation, conflict or ambiguity
arising out of or in connection with this Master Permit may be determined through
communications with the Administrator, except where otherwise specifically stated.
6. Grantee may appeal any decision of the Administrator to the City Council or Hearings
Examiner by filing a written notice of appeal within thirty (30) days of the date of issuance of the
Administrator's decision, with copies also sent to the Mayor, Administrator and City Attorney.
The notice of appeal must include a copy of the Administrator's decision and a complete record
originally submitted to the Administrator by Grantee. The Administrator shall submit any
additional response to the City Council or Hearings Examiner within ten (10 Day) of receipt of
the notice of appeal. The City Council or Hearings Examiner shall schedule a hearing within a
reasonable period of time but not to exceed sixty (60) days from filing of the Notice of Appeal
and decide the question submitted. No opportunity to cure is allowed for fraud, which shall be
deemed incurable.
7. Notwithstanding the foregoing, the City may declare a Master Permit forfeited without
opportunity to cure or the notice required by Section 3 where the Grantee falls to begin to
exercise its rights under the Master Permit within a period specified in the Master Permit.
However, a Grantee shall have the fight to receive thirty (30) days' prior notice of intent to
declare a Master Permit forfeited, and shall have the opportunity to show cause why the Master
Permit should not be forfeited.
8. Notwithstanding the foregoing, a Master Permit or License will automatically terminate
by force of law one hundred twenty (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 Grantee or
Licensee, whether in a receivership, reorganization, bankruptcy assignment for the benefit of
creditors, or other action or proceeding. However, the Master Permit or License may be
reinstated within that 120 day period, if: (1) such assignment, receivership or trusteeship has
been vacated; or (2) such assignee, receiver or trustee has fully complied with the terms and
conditions of this Title and the Master Permit or License and has executed an agreement,
approved by any court having jurisdiction, assuming and agreeing to be bound by the terms and
conditions of this title and the Master Permit or License. However, in the event of foreclosure or
other judicial sale of any of the facilities, equipment or property of a Grantee or Licensee, the
City may revoke the Master Permit or License, following a public hearing before the City
Council, by serving notice upon the Grantee or Licensee and the successful bidder at the sale, in
which event the Master Permit or License and all rights and privileges of the Master Permit or
License will be revoked and will terminate thirty (30) calendar days a~er serving such notice,
unless: (1) the City has approved the transfer of the Master Permit or License to the successful
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bidder; and (2) the successful bidder has covenanted and agreed with the City to assume and be
bound by the terms and conditions of the Master Permit or License and this Title.
E. Sale, Lease, Assignment.
1. This Master Permit or License shall not be sold, leased, assigned, or otherwise
alienated without the express consent of the City, and no rule of estoppel shall be invoked
against the City in case the City shall assert the invalidity of any attempted transfer in violation
of this section. The City agrees not to withhold consent where Grantee demonstrates that the
requested assignment is in the nature of a change of name or a change in the nature of a
reorganization or merger of or with an entity controlled by, controlling, or under the common
control of the Grantee, there being no other change in the resulting entity's ability to meet its
Master Permit or License obligations.
2. The City reserves the right to invoke any or all provisions of this Master Permit or
License upon the Grantee's successors or assigns, judgment creditors, or distributes of facilities
or property used in enjoyment of privileges conferred herein, whether or not stated elsewhere, all
without waiver of the right to withhold consent not expressly given of any such transfer and/or
require a new Master permit or License.
3. Grantee will not permit installations by others in the permitted areas, without
written approval from the Administrator. Such approval shall not be in lieu of a Master Permit
or License or other requirements of the City. Whether or not permitted, Grantee remains
responsible for all third party users permitted or allowed by Grantee for compliance with this
Master Permit or License. The intent of this provision is so third parties who might otherwise
desire to use Grantee's facilities are also required to comply with City requirements regarding
Master Permit or License, as may apply.
F. Effect of termination or forfeiture. Upon termination or forfeiture of a License or
Master Permit, whether by action of the City as provided above, or by passage of time, the
Grantee or Licensee shall be obligated to cease using the Communications System for the
purposes authorized by the Master Permit. The City may either take possession of some or all of
the Licensee's or Grantee's facilities in the Public Rights-of-Way or require the Licensee or
Grantee or its bonding company to remove some or all of the Licensee's or Grantee's facilities
from the Public Rights-of-Way and restore the Public Rights-of-Way to its same, or better,
condition. Should the Grantee or Licensee neglect, refuse, or fail to remove such facility, the
City may remove the facility at the expense of the Grantee or Licensee. The obligation of the
Licensee or Grantee to remove shall survive the termination of the Master Permit of License for
a period of two (2) years; provided that, this provision does not permit the City to take
possession of, or require the Grantee or Licensee to remove, any facilities that are used to
provide another service for which the Grantee holds a valid Master Permit or License issued by
the City.
G. Remedies cumulative. All remedies under this Title and any Master Permit or
License are cumulative unless otherwise expressly stated. The exercise of one remedy shall not
foreclose use of another, nor shall the exercise of a remedy or the payment of liquidated damages
or penalties relieve a Communications System Operator of its obligations to comply with its
Master Permit or License. Remedies may be used singly or in combination; in addition, the City
may exercise any rights it has at law or equity. Recovery by the City of any amounts under
insurance, the performance bond, the security fund or letter of credit, or otherwise, does not limit
a Communications System Operator's duty to indemnify the City in any way; nor shall such
recovery relieve a Communications System Operator of its obligations under a Master Permit,
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ROW Permit or License, limit the amounts owed to the City, or in any respect prevent the City
from exercising any other right or remedy it may have.
H. Compliance with laws. Each Grantee and Licensee shall comply with all applicable
laws heretofore and hereafter adopted or established during the entire term of its Master Permit,
Permit or License.
I. Reservation of authority. The City may do all things which are necessary and
convenient in the exercise of its jurisdiction under this Title.
J. No waiver. The failure of the City to insist on timely performance or compliance by
any Person holding a License, ROW Permit or Master Permit shall not constitute a waiver of the
City's right to later insist on timely performance or compliance by that Person or any other
Person holding such a License, ROW Permit or Master Permit.
K. Title not a contract. The City expressly reserves the right to amend this Title and
any Master Permit, ROW Permit or License hereunder from time-to-time in the exercise of its
lawful powers. The provisions of this Title shall not be construed to create to be a contract.
L. No waiver. The failure of the City to enforce any provision of this Title on any
occasion shall not operate as a waiver or estoppel of this right to enforce any provision of this
Title on any other occasion, nor shall the failure to enforce any prior ordinance, law or
contractual provision affecting communications facilities or Communications System operators
act as a waiver or estoppel against application of this Title or any other provision of applicable
law.
Section 2. New Chapter. Chapter 11.03 is hereby added to the Bremerton Municipal Code to
read as follows:
Chapter 11.03
SPECIAL RULES APPLICABLE TO
TELECOMMUNICATIONS FACILITIES AND
TELECOMMUNICATIONS SERVICE PROVIDERS
Sections:
11.03.010 Application for a Master Permit.
11.03.020 Compensation.
11.03.010 Application for a Master Permit.
A. Contents of application for initial or renewal Master Permit. In order to obtain an
initial or renewal Master Permit, an Operator of a telecommunications system must apply for a
master Permit. The application must contain the following information, and such information as
the City may from time to time require.
1. Identity of thc applicant and corporate structure.
2. A proposal for construction of a telecommunications facility that includes at least the
following:
(a) a description of the services that are to be provided using the facility.
(b) the location of proposed facility and facility design, including a description of the
miles of plant to be installed, and a description of the size of equipment cabinets, shielding and
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electronics that will be installed along the plant route, the power sources that will be used and a
description of the noise, exhaust and pollutants, if any, that will be generated by the operation of
the same; provided, however, that, if some of the descriptive data is not available at the time of
application, the Master Permit may be issued subject to conditions that the data be filed and
approved by the City before construction begins and that the Master Permit will be deemed to be
forfeited if the data is not supplied and approved; provided further, in the event that Sections
11.03.010.A.2.(b)-(c) require information that is a business or trade secret and/or proprietary
information and the Operator wishes to protect the information against disclosure, then Operator
shall provide said information to City in a separate envelope marked "Proprietary Information:
DO NOT DISCLOSE". The City will exercise good faith efforts to protect the confidentiality of
the business or trade secrets or proprietary information that is designated as such; provided
further, that (1) in the event a public disclosure request is made for information marked as
proprietary, and if the City Attomey determines that said information may be subject to being
disclosed; or (2) the City determines that the information should be disclosed in connection with
its enforcement of any provision of this Title, or in the exercise of its police or regulatory
powers; then the City shall notify the Operator of the Operator's opportunity to seek a protective
order from a court with appropriate jurisdiction. In the event that a protective order is not
obtained within thirty (30) days or, if shorter, the time limitation set forth in State law, then City
may disclose said information. The Operator is obligated to reimburse and indemnify City for all
costs, damages and attorney fees that may be awarded or assessed by the court for any actions
the City took at the request of Operator.
(c) a map of the general route the facility will follow; a designation of the portions of
the system that will be placed above ground and the portions that will be placed underground,
and the construction techniques that the Operator proposes to use in installing the system above
ground and underground; a schedule for construction of the facility describing when and where
construction will begin, how it will proceed, and when it will be completed; and the expected
effect on right-of-way usage, including information on the ability of the Public Rights-of-Way to
accommodate the proposed system, including, as appropriate given the system proposed, an
estimate of the availability of space in conduits and an estimate of the cost of any necessary
rearrangement of existing facilities; provided, however, that any proprietary information required
under this subparagraph as well as the preceding subparagraph shall be subject to the non-
disclosure procedure prescribed in the proviso of the preceding subparagraph.
(d) A description, where appropriate, of how services will be converted from existing
facilities to new facilities, and what will be done with existing facilities.
(e) Identification of the area of the City to be served by the proposed system,
including a description of the proposed area's boundaries under the Master Permit.
(f) An affidavit or declaration of the applicant or authorized officer thereof certifying
the troth and accuracy of the information in the application, and certifying that the application
meets all requirements of applicable law.
B. Applications for transfer. An application for a transfer of a Master Permit must contain
the same information required by Section 11.03.010.A, except that, if the transferor submitted an
application under Section 11.03.010.A, to the extent information provided by the transferor
under Section 11.03.010.A.2 remains accurate, the transferee may simply cross-reference the
earlier application.
C. City review. The City may request such additional information as it finds necessary, and
require such modifications to the system proposed as may be necessary in the exercise of the
Telecommunications Ordinance
Page 20 of 23
City's authority over the use of its public rights-of-way for telecommunications systems. Once
the information required by the City has been provided, the application shall be subject to review
by the City and any approval shall be subject to the City's determination that:
1. the applicant will accept the modifications required by the City to its proposed
system. This section does not authorize the City to exercise authority it does not otherwise have
under applicable law.
2. the applicant will accept a Master Permit satisfactory to the City and comply with any
conditions precedent to its effectiveness.
3. in the case ora transfer, any approval will also be subject to a determination that:
(a) there will be no adverse effect on the public interest, or the City's interest in the
Master Permit;
(b) transferee will agree to be bound by all the conditions of the Master Permit and to
assume all the obligations of its predecessor; and
(c) any outstanding compliance issues will be resolved or preserved to the
satisfaction of the City.
D. An applicant shall not be issued a Master Permit if it files or has previously filed
materially inaccurate or misleading information in a Master Permit application or intentionally
withheld information that the applicant lawfully is required to provide.
11.03.020 Compensation.
A. Rights-of-way fee. Subject only to the exceptions set out in Section 11.01.040.C of this
Title, every Operator of a telecommunications facility must compensate the City for its actual
cost of administering this application and the rights-of-way.
Section 3. New Chapter. Chapter 11.05 is hereby added to the Bremerton Municipal Code to
read as follows:
Chapter 11.05
PRIVATE COMMUNICATIONS FACILITIES
Sections:
11.05.010 Application for License.
11.05.020 Conditions of License.
11.05.010 Application for License. A Person wishing to construct, install, place, operate,
replace, reconstruct, or maintain a Private Cornmtmications System in a public right-or-way must
obtain a License therefore. Thc License shall only authorize placement of thc system in a
specific portion of thc Public Rights-of-Way for a limited and specific purpose in connection
with thc Person's business but not encompassing in whole or in part thc carriage of
telecommunications for hire in the Public Rights-of-Way, and for a limited period of time. Such
application must be in the form provided for by regulation and must be accompanied by a filing
fee, covering the cost of administration of this application.
Telecommunications Ordinance
Page 21 of 23
11.05.020 Conditions of License. Any License shall be subject to such conditions as the City
may from time to time establish, shall be expressly subordinate to the use of the Public Rights-
of-Way by operators of communications facilities, and shall otherwise conform to the
requirements of this Title. Subject to the foregoing, the provisions of Chapter 11.01, Section
11.01.050 shall apply to a Private Communications System as if it were a Communications
Facility.
Section 4. New Chapter. Chapter 11.06 is hereby added to the Bremerton Municipal Code to
read as follows:
Chapter 11.06
MISCELLANEOUS
Sections
11.06.010 Captions.
11.06.020 Calculation of time.
11.06.030 Severability.
11.06.010 Captions. The captions to sections throughout this Title are intended solely to
facilitate reading and reference to the sections and provisions of this Title. Such captions shall
not affect the meaning or interpretation of this Title.
11.06.020 Calculation of time. Unless otherwise indicated, when the performance or doing of
any act, duty, matter, or payment is required under this Title or any Master Permit or License,
and a period of time or duration for the fulfillment of doing thereof is prescribed and is fixed
herein, the time shall be computed so as to exclude the first and include the last day of the
prescribed or fixed period of duration time.
11.06.030 Severability. If any term, condition, or provision of this Title shall, to any extent, be
held to be invalid or unenforceable by a valid order of any court or regulatory agency, the
remainder hereof shall be valid in all other respects and continue to be effective. In the event of
a subsequent change in applicable law so that the provision which had been held invalid is no
longer invalid, said provision shall thereupon return to full force and effect without further action
by the City and shall thereafter be binding on the Grantee and the City. If, as determined by the
City upon appropriate legal advice, or applicable court decision, any term, condition or provision
of this Title imposes a requirement which is prohibited by applicable federal or state law, or
prohibits an action which must be allowed under applicable federal or state law, then any such
term, condition or provision shall be construed to not impose the requirement which is prohibited
by valid federal or state laws or not to prohibit the action which must be allowed under valid
federal or state law.
Section 5. Effective Date. This Ordinance shall be in full force and effect ten (10) days after
posting and publication as required by law. A summary of this Ordinance may be published in
lieu of the entire Ordinance, as authorized by State Law.
Telecommunications Ordinance
Page 22 of 23
APPROVED by the City Council on first reading this 3ra day of October, 2001.
PASSED by the City Council of the City of Bremerton this 10th day of October, 2001.
~X[ LAW,r "~"~ Co~un~i~residen'r' t
APPROVED this ~5 dayof C)c.2'~~.){-,2001.
LyNN S. HORTON, Mayor
ATTEST:
KATHLEEN L. McCLUSKEY, City C~
EFFECTIVE DATE /o-,,?,5'- o/ ..
PUBLICATION DATE /o- y~-~ / ....
ORDINANCE NUMBER ,,-/-/?-7 ...
Telecommunications Ordinance
Page 23 of 23
,
AFFIDA VIT OF PUBLICA nON
County of Kitsap, State of Washington
No. 160018
I, Melinda Monroe, being first duly sworn on oath, deposes and says: That she is now, and at all
times embraced in the publication herein mentioned was the principal clerk of the printers and
publishers of THE SUN; that said newspaper has been approved as a legal newspaper by order of
the /superior Court of the Count of Kitsap, in which County it is published and is now and has
been for more than six months prior to the date of the publication hereinafter referred to,
published in the English language continually as a daily newspaper in Bremerton, Kitsap County,
Washington, and is now and during all of said time, was printed in an office maintained in the
aforesaid place of publication of said newspaper; that the following is a true text of a legal
advertisement as it was published in regular issues (and not in supplement form) of said
newspaper on the following dates, to wit: October 15, 2001 during all of said period. That the
full amount of the fee charged for the foregoing publication is the sum of $43.04 which amount
has not been paid in full.
fru 1 JX) 6lLt.hf-
Notary Public in and for the State of Washington, Kitsap County.
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TELECOMMUNICATIONS ORDINANCE NO. 4777'
An Ordinance of the City Council of the City of Bremerton
Regulating the occupancy and use of public rights of way by
Telecommunications Systems, Private Communications System,
Wireless Communications System and Resellers; prescribing minimum
terms and conditions for and upon the construction, maintenance
and repair of such systems-
This Ordinance shall become effective ten (10) days after passage
and publication.-
APPROVED by the City Council on first reading this 3rd day of
October, 2001.-
PASSED by the City Council of the City of Bremerton this 10th day
of October, 2001.-
The full text of this ordinance is available from the City
Clerk's Office, 239 4th Street, Bremerton, WA 98337.-
October 15, 2001--#160018-