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 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 therefor. The communications system operator shall pay the amounts billed within 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 Bainbridge Island 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 of 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 and bonds or other performance security provided. 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 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 right-of-way permit or other applicable provision of the Bainbridge Island 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 communications system services which have been disrupted by storms, earthquakes, riots or other unexpected accidents or phenomenon; provided, however, that the communications 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. Subcontractors 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 right-of-way permit, a communications 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 communications 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 Bainbridge Island 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 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 years from the paving of such street or in a street where a trench was previously available for a period of three years from the date the trench was available. The city may require as a condition to the occupancy of the rights-of-way that communications facilities be located in 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 alternative 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 communications 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 communications system operator) until the restored area is repaved or reconstructed by a different party, except when such repaving 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 communications 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 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 right-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 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 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 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 communications system operator does not comply with the requirements of this title and the applicable master permit, license or right-of-way 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 a 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 revocation of the master permit, license or right-of-way 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 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 days’ advance notice to arrange for such temporary wire changes.
4. Grantee may abandon and surrender its master permit to the city on six months’ written notice to the administrator, with copies served on 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 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 right-of-way 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 from 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 right-of-way 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. Each operator shall reasonably cooperate with city initiatives to coordinate underground fixture locations and installations. Each operator shall be familiar with Chapter 19.122 RCW, Washington State’s “Underground Utilities” statute. Each operator shall certify that it understands local procedures, custom and practice relating to facilities locating, and shall ensure that its contractors or others working in the right-of-way on grantee’s behalf are similarly well informed.
F. Undergrounding of Lines. Each operator shall recognize 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 each operator’s participation in municipally imposed undergrounding or related requirements as may now or hereafter arise, as a condition of the operator’s new installation or major maintenance or restoration construction activities of overhead facilities under this franchise. Each operator shall 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 from 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 operator shall provide the city a plan for any initial system construction, or for any substantial rebuild, upgrade or extension of its facility, which shall show its timetable for construction of each phase of the project, and the areas of the city that will be affected.
3. Each operator shall supply and maintain updated, at no cost, any information requested by the administrator to coordinate municipal functions with the operator’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 the operator’s installations in 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. Each operator 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-inch by 36-inch 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 on the administrator’s own initiative, designate by published order a route or proposed route for installation of communications facilities and may:
a. Require all persons who wish to place underground facilities along that route or any part thereof to install them during a specified period; and
b. Otherwise prohibit placement of such facilities along the route or any part thereof for 36 months or for such other, longer period as is necessary to protect the public. (Ord. 2002-36 § 1, 2002)