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ORDINANCE NO. 5 0 3 4
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, RELATING TO TELECOMMUNICATIONS AND OTHER
COMMERCIAL UTILITIES; ADDING A NEW TITLE 20, ENTITLED
"TELECOMMUNICATIONS AND OTHER COMMERCIAL UTILITIES" TO THE
AUBURN CITY CODE ESTABLISHING REQUIREMENTS FOR
TELECOMMUNICATIONS CARRIERS, OPERATORS, PROVIDERS AND OTHER
COMMERCIAL UTILITIES; PROVIDING DEFINITIONS; GENERAL
PROVISIONS; DESCRIBING THE PROCEDURES FOR USE OF THE PUBLIC
WAYS AND CITY AND PUBLIC PROPERTY; DESCRIBING PROCEDURES FOR
PUBLIC WAY AGREEMENTS; FRANCHISES; AND FACILITIES LEASES;
AND DESCRIBING VIOLATIONS AND ESTABLISHING PENALTIES.
WHEREAS, RCW 35A.11.020 grants code cities broad
authority to regulate the use of the public rights-of way;
and
WHEREAS, RCW 35A.47.040 grants code cities broad
authority to grant non-exclusive Franchise agreements; and
WHEREAS, RCW 35.21.860 regulates Franchise fees and
restricts such fees to actual administrative costs for
telephone businesses as defined in RCW 82.04.065, and
WHEREAS, Congress has adopted the Telecommunications Act
of 1996 (hereinafter the "Act") in order to encourage the
development of high-technology communications systems through
increased competition among communications companies; and
Ordinance No. 5034
December 31, 1997
Page 1 (ORDSO34F)
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WHEREAS, the Act provides for the removal of regulatory
barriers, rate deregulation and relaxation of certain anti-
trust provisions in an attempt to achieve this goal; and
WHEREAS, the Act is anticipated to have a significant
affect on the range and type of services that
telecommunications carriers, operators, and providers will be
cable and wireless technologies; and
the Act contains numerous provisions
delivering via
WHEREAS,
directly affect local taxation, zoning, Franchise
and public rights-of-way management; and
WHEREAS, the Act will likely place additional demands on
the use of the City's public rights-of-way and public
property; and
WHEREAS, By virtue of the uncertainties created by the
Act, and the City's need to' gain additional experience in
which
authority
regulating the entities under the Act, which are expected to
seek use of City Public Ways and/or City Property, the City
will initially create regulatory agreements, franchisees, and
leases not to exceed five (5) years in duration; and
WHEREAS, the City currently has regulations which do
take account of the provisions of the Act;
not
Ordinance No. 5034
December 31, 1997
Page 2 (ORDSO34F)
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NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN ,
WASHINGTON, DO ORDAIN AS FOLLOWS:
Section 1. PURPOSE: The purpose of this ordinance is as
follows:
To create and add to the Auburn City Code a new Title 20
entitled "Telecommunications and Other Commercial Utilities"
as set forth in Exhibit "A" attached hereto and incorporated
herein by this reference to provide regulations consistent
with the provisions of the "ACT" and Washington law.
Section 2. CONSTITUTIONALITY OR INVALIDITY: If any
section, subsection, clause, phrase, or sentence, of this
Ordinance, is for any reason held to be invalid or
unconstitutional, such invalidity or unconstitutionality of
the remaining portions of this ordinance, as it is being
hereby expressly declared that this ordinance and each
section, subsection, clause, phrase, or sentence, hereof
would have been prepared, proposed, adopted, and approved and
ratified irrespective of the fact that any one or more
section, subsection, clause, phrase, or sentence, be declared
invalid or unconstitutional.
Ordinance No. 5034
December 31, 1997
Page 3 (ORD5034F)
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~ec~£on 3. The Mayor is hereby authorized to implement
such administrative procedures as may be necessary to carry
out the directions of this legislation.
Sea%ion 4. This ordinance shall take effect and be in
force five (5) days from and after its passage, approval, and
publication, as provided by law.
INTRODUCED: Jamnary 5, 1998
PASSED:
JaDu~ry 5, 1998
Jamnary 5, 1998
APPROVED:
CHARLES A. BOOTH
MAYOR
ATTEST:
Dan~ielle E. Daskam,
City Clerk
~PPROVED~S TO FORM:
Michael J. Reynolds,
City Attorney
PUBLISHED:
Ordinance No. 5034
December 31, 1997
Page 4 (ORD5034F)
EXHIBIT A
TITLE 20
TELECOMMUNICATIONS AND OTHER COMMERCIAL UTILITIES
20.02 GENERAL PROVISIONS
20.04 PUBLIC WAY AGREEMENTS
20.06 FRANCHISES
20.08 FACILITY LEASES
20.10 CONDITIONS OF PUBLIC WAY AGREEMENTS, FRANCHISES,
FACILITY LEASES
20.12 OPEN VIDEO SYSTEMS (OVS) (reserved)
AND
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Exhibit "A"
Chapter 20.02
GENERAL PROVISIONS
Sections
20.02.010
20.02.020
20.02.030
20.02.040
20.02.050
20.02.060
20.02.070
20.02.080
20.02.090
20.02.100
20.02.110
20.02.120
Purpose.
Definitions.
Business Registration Required.
Public Way Agreement Required.
Franchise Required.
Cable Television Franchise Required.
Facilities Lease Required.
Construction Permit Required.
Application to Existing Franchise Ordinances,
Agreements, Leases, and Permits and Effect of
Other Laws.
Universal Service.
Fees and Compensation Not a Tax.
Taxes are Not to be a Credit.
Section 20.02.010 Purpose. The purpose and intent of this Title is to:
A. Establish a local policy concerning regulation of
telecommunications carriers, operators, providers, and other commemial utilities in
public ways and on City and/or public property;
B. Establish clear local guidelines, standards and time frames for the
exercise of local authority with respect to the regulation of activities of
telecommunications carriers, operators, providers, and other commercial utilities in
public ways and on City and/or public property,
C. Promote competition in telecommunications;
D. Minimize unnecessary local regulation of telecommunications
carriers, operators, providers, and other commercial utilities;
E. Encourage the provision of advanced and competitive
telecommunications services on the widest possible basis to the businesses, institutions
and residents of the City;
F. Permit and manage reasonable access to the public ways of the
City for telecommunications purposes on a competitively neutral basis;
G. Conserve the limited physical capacity of the public ways held in
public trust by the City;
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H. Assure that the City's current and ongoing costs of granting and
regulating private access to and use of the public ways are fully paid by the persons
seeking or using such access and causing such costs;
I. Secure fair and reasonable compensation to the City and the
residents of the City for permitting private use of the public ways;
J. Assure that all telecommunications carriers, operators, providers,
and other commercial utilities utilizing Public Ways or City or public property within the
City comply with the ordinances, rules and regulations of the City;
K. Assure that the City can continue to fairly and responsibly protect
the public health, safety and welfare;
L. Enable the City to discharge its public trust consistent with rapidly
evolving federal and state regulatory policies, industry competition and technological
development.
Section 20.02.020 Definitions. For the purpose of this Title, and the
interpretation and enforcement thereof, the following words and phrases shall have the
following meanings, unless the context of the sentence in which they are used shall
indicate otherwise:
"The Act" means the Federal Telecommunications Act, January 31,
1996.
"Addressability" means the ability of a telecommunication system to
allow telecommunication carriers, operators, or providers to authorize by remote
control customer terminals to receive, change, or to cancel any or all specified
programming.
"Affiliate" means an entity which (directly or indirectly) owns or
controls, is owned or controlled by, or is under common ownership with Franchisee.
For purposes of this definition, the term "own" means to own an equity interest (or the
equivalent thereof) of more than ten (10) percent.
"Applicant" means any person or entity that applies for any Public Way
Agreement, Franchise, Lease, or permit pursuant to this Title;
"Cable facilities" means equipment and wiring used to transmit audio
and video signals to subscribers;
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"Cable operator" means a telecommunications carrier providing or
offering to provide "cable service" within the City as that term is defined in the Cable Act
and ACC 13.36;
"Cable service" for the purpose of this Title shall have the same meaning
provided by the Cable Act and ACC 13.36.
"Cable system" means a facility, consisting of a set of closed
transmission paths and associated signal generation, reception, and control equipment
that is designed to provide cable service and other service to subscribers;
"CarrieP' means any provider of telecommunications services, except
that this term does not include aggragators of telecommunications services as defined
in section 225 of the Act. (See also "Telecommunications carrier")
"City" means the City of Auburn, Washington as defined in Auburn City
Code Section 1.04.010 to include all future areas annexed into the City.
"City property" means and includes all real property owned by the City,
other than public ways and utility easements as those terms are defined herein, and all
property held in a proprietary capacity by the City, which are not subject to Public Way
Agreements and franchising as provided in this Title;
"Commercial Utility Provider" means any natural gas, electric power,
pipeline, or other company desiring to utilize City Public Ways for transporting,
purveying, or delivering bulk products, or providing commemial power or gas services
within the City, or needing to transport bulk product or services through the City to other
destinations for commercial purposes.
"Council" means the City Council of the City of Auburn, Washington
acting in its official capacity constituting the legislative body of the City;
"Data communication" means (1) the transmission of encoded
information or (2) the transmission of data from one point to another;
"Dwelling units" means residential living facilities as distinguished from
temporary lodging facilities such as hospitals, hotel and motel rooms and dormitories,
and includes single family residential units and individual apartments, condominium
units, mobile homes, extended care facilities and other multiple family residential units;
"Emergency" means a condition of imminent danger to the health, safety,
and welfare of property or persons located within the City including, without limitation,
damage to persons or property from natural consequences, such as storms,
earthquakes, riots or wars;
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"Excess capacity" means the volume or capacity in any existing or future
duct, conduit, manhole, handhole or other utility facility within the public way that is or
will be available for use for additional telecommunications facilities;
"FCC" or "Federal Communications Commission" means the Federal
administrative agency, or lawful successor, authorized to regulate and oversee
telecommunications carriers, services and providers on a national level;
"Fiber Optics" means the technology of guiding and projecting light for
use as a communications medium;
"Franchise" shall mean the initial authorization, or renewal thereof,
approved by an ordinance of the City, which authorizes the franchisee to construct,
install, operate, or maintain telecommunications or other commercial utility facilities in,
under, over, or across public ways of the City and to also provide service to persons or
areas in the City;
"Franchise Area" means all areas within the current City limits and within
any futura adjusted boundaries of the City limits. The effective date of any such
changes in the City limits will be the effective date(s) of any future annexations.
"Franchisee" means a person, as defined herein, firm or corporation to
whom or which a Franchise, as defined in this Section, is granted by the Council under
this Title and the lawful successor, transferee or assignee of said person, firm or
corporation subject to such conditions as may be defined in the Franchise and in this
Title;
"Grantee" means a holder of a Public Way Agreement, Franchise, or
Lease approved by the City Council of the City of Auburn.
"Gross Revenue" shall mean ail receipts accrued in a Franchisee's
books for all commercial utility, communications and communication-related operations
and services from subscribers, who have a service address within the corporate limits
of the City of Auburn, to Franchisee's business as well as any other revenue arising
from operation or possession of a Franchise agreement with the City of Auburn, less
the application and administrative fees mandated in the Franchise agreement and the
Franchise fee intended for compensation for use of "Public Ways". By way of example,
but without limitation, "Gross Revenue" includes all revenues from the sale or lease of
equipment, installation charges to subscribers who have service addresses within the
corporate limits of the City, charges to customers, subscribers and other users of the
telecommunication system who have service addresses within the corporate limits of
the City. "Gross revenues" does not include: (a) taxes, fees, or assessments of any
kind or description imposed on or levied against Franchisee which ara not applicable to
all other persons or entities doing business within the City, (b) revenues non-collectible
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from customers (bad debts) which have been written off through generally accepted
accounting practices, (c) discounts, and (d) any applicable exclusions under the law.
"Lessee" means the holder of a Lease for use of City or public property
which has been approved by the City Council of the City of Auburn.
"Other ways" means the highways, streets, alleys, utility easements or
other rights-of-way within the City, but under the jurisdiction and control of a
governmental entity other than the City;
"Overhead facilities" means utility poles, utility facilities and
telecommunications or other commercial utility facilities located above the surface of the
ground, including the underground supports and foundations for such facilities;
"OVS" means open video system which is a telecommunications system
having two-thirds of its capacity set aside for use by other providers, programmers, or
competitive business on a subleasing basis. Because of it's self-competitive nature, an
OVS is subject to regulatory restrictions.
"Person" means and includes corporations, companies, associations,
joint stock companies or associations, firms, partnerships, limited liability companies
and individuals and includes their lessors, trustees and receivers;
"Property of franchisee" means all plant, or facilities owned, installed or
used by a Franchisee in the conduct of its business in the City under the authority of a
Franchise granted pursuant to this Title;
"Proposal" means an application by any person or entity that applies for
any Public Way Agreement, Franchise, Lease, or permit pursuant to this Title;
"Public Place" means an area generally open to public access including
all public ways, parks, plazas, publicly owned buildings, theaters, and entrances or
doorways to places of business that front on a public way.
"Public street" means any highway, street, alley or other public right of
way for motor vehicle travel under the jurisdiction and control of the City which has
been acquired, established, dedicated or devoted to highway purposes;
"Public Way(s)" shall mean the surface of, the air space above the
surface, and the space below the surface of any public street, including, but not limited
to, any public alley, bridge, land path, trail, court, cimle, round about, boulevard, drive,
tracts, right of way or sidewalk under the jurisdiction of the City as now, or in the future,
laid out, improved or unimproved within the limits of the City presently and as such
limits may be hereafter extended.
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"State" means the State of Washington;
"Subscriber" or "Customer" means a person or user of the commercial
utility or telecommunication system who lawfully receives commercial utility or
Communication Services or other service therefrom with Franchisee's express
permission.
"Surplus space' means that portion of the usable space on a utility pole
which has the necessary clearance from other pole users, as required by federal or
state law, orders, and regulations, to allow its use by a telecommunications carrier for a
pole attachment;
"Telecommunications carrier" means and includes every person that
directly or indirectly owns, controls, operates or manages plant, equipment or facilities
within the City's public ways, for the purpose of offering telecommunications services
within the City; (See also "Carrier")
"Telecommunications facilities" means the plant, equipment and
facilities, including but not limited to, cables, wires, conduits, ducts, pedestals,
antennae, electronics and other appurtenances used or to be used to transmit, receive,
distribute, provide or offer telecommunications services;
"Telecommunications operator" means and includes every person who
provides telecommunications services within the City over telecommunications facilities
located within the City's public ways, without any ownership, management or control of
the facilities.
"Telecommunications provider" means and includes every person who
utilizes facilities within the City's public ways to provide services outside the City only.
"Telecommunications service" means the providing or offering for rent,
sale or lease, or in exchange for other value received, of the transmittal of voice, data,
image, graphic and video programming information between or among points by wire,
cable, fiber optics, laser, microwave, radio, satellite or similar facilities, with or without
benefit of any closed transmission medium;
"Telecommunications system" See "Telecommunications facilities";
"Underground facifities" means utility and telecommunications facilities
located under the surface of the ground, excluding the underground foundations or
supports for overhead facilities;
"Universal service" means a level of and definition of
telecommunications services as the term is defined by the FCC through its authority
granted pursuant to Section 254 of the Act;
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] I1~ Illlll
"Usable space" means the total distance between the top of a utility pole
and the lowest possible attachment point that provides the minimum allowable vertical
clearance as specified in any federal or state orders and regulations;
"Utility easement" means any easement in which the City holds an
interest in or an interest has been acquired, established, dedicated or devoted for City
utility purposes.
"Utility facilities" means the plant, equipment and property, including but
not limited to the poles, pipes, mains, conduits, ducts, cables, wires, plant and
equipment located under, on or above the surface of the ground within the public ways
of the City and used or to be used for the purpose of providing utility or
telecommunications services.
"WUTC" means the Washington State Utility and Transportation
Commission.
Section 20.02.030 Business Registration Required. Except as otherwise
provided herein, all commercial utilities, cable operators, telecommunications carriers,
operators and providers engaged in the business of transmitting, supplying or furnishing
of commercial utility or telecommunications service of any kind originating or
terminating in the City, or utilizing facilities within the City's Public Ways to provide
services exclusively outside of the City only, shall apply for and obtain a Business
Registration from the City pursuant to Chapter 5.84 of the Auburn City Code.
Section 20.02.040 Public Way Agreement Required. Except as otherwise
provided herein, any commercial utility or telecommunications provider who desires to
construct, install, operate, maintain, or otherwise locate facilities in, under, over or
across any public way of the City for the sole purpose of providing service to persons
and areas outside the City shall first obtain a Public Way Agreement granting the use of
such public ways from the City pursuant to Title 20_
Section 20.02.050 Franchise Required. Except as otherwise provided herein,
any commercial utility, telecommunications carrier or operator who desires to construct,
install, operate, maintain or otherwise locate facilities in, under, over or across any
public way of the City, and to also provide service to persons or areas in the City, shall
first obtain a Franchise granting the use of such public ways from the City pursuant to
Title 20.
Section 20.02.060 Cable Television Franchise Required. Except as
otherwise provided herein, any telecommunications carrier or other person who desires
to construct, install, operate, maintain or locate cable or telecommunications facilities in
any public way in the City for the purpose of providing cable service to persons in the
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City shall first obtain a Cable Franchise from the City pursuant to Chapter 13.36 of the
Auburn City Code.
Section 20.02.070 Facilities Lease Required. No commemial utility,
telecommunications carrier or other entity who desires to locate facilities or other
equipment on City property shall locate such facilities or equipment on City property
unless granted a Facilities Lease from the City pursuant to Title 20. The City Council
reserves unto itself the sole discretion to lease City property for telecommunications
and other facilities, and no vested or other right shall be created by this Section or any
provision of this Title applicable to such Facilities Leases.
Section 20.02.080 Construction Permits Required. Except as otherwise
provided herein, the holder of a Public Way Agreement, Franchise, or Lease granted
pursuant to this Title, and the holders of Cable Franchises granted pursuant to Chapter
13.36 of the Auburn City Code, shall, in addition to said Public Way Agreement,
Franchise, or Lease, be required to obtain a Construction Permit from the City pursuant
to Chapter 12.24 of the Auburn City Code. No work, construction, development,
excavation, or installation of any equipment or facilities shall take place within the public
ways or upon City property until such time as the Construction Permit is issued.
Section 20.02.090 Application to Existing Franchise Ordinances,
Agreements, Leases, and Permits and Effect of other Laws. All Grantees,
Franchisees, and Lessees, subject to this Title are at all times subject to and must
comply with all applicable existing and future federal, state and local laws, ordinances,
codes, rules, regulations and orders.
A. This Title shall have no effect on agreements in effect prior to
adoption, unless otherwise provided, in any existing Franchise ordinance, Franchise
agreement, Lease, permit, agreement or other authorization to use or occupy a public
way in the City until:
1. The expiration of said Franchise ordinance, agreement,
Lease, permit, or authorization; or
2. The amendment to an unexpired Franchise ordinance,
Franchise agreement, Lease, permit, authorization, or agreement unless both parties
agree to defer full compliance to a specific date not later than the expiration date
provided therein.
B. Nothing in this Title shall be deemed to create an obligation upon
any person for which the City is forbidden to require pursuant to federal, state, or other
law.
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C. Upon expiration of an Electrical Franchise in effect at time of
adoption of this Title, granted by ACC 13.44, the Franchise shall be re-negotiated
under the terms of this Title.
Section 20.02.100 Universal Service. Except as otherwise provided herein, all
cable operators, telecommunications carriers, operators, and providers engaged in the
business of transmitting, supplying or furnishing telecommunications service of any kind
originating or terminating in the City are subject to the City's right, which is expressly
reserved, to require said operator, carrier, or provider to make an equitable and non-
discriminatory contribution to the preservation and advancement of universal service to
the extent permitted by state and federal law.
Section 20.02.110 Fees and Compensation Not a Tax. The fees, charges
and fines provided for in this Title and any compensation charged and paid as provided
herein, whether fiduciary or in-kind, are separate from, and additional to, any and all
federal, state, local, and City taxes as may be levied, imposed or due from a
commercial utility, telecommunications carrier, operator, or provider, its customers or
subscribers or on account of the lease, sale, delivery or transmission of
telecommunications services.
Section 20.02.120 Taxes are Not to be a Credit. Any compensation paid for
as provided in Public Way Agreements, Franchises, and/or Facility Leases shall be
exclusive of an in addition to all special assessments and taxes of whatever nature
which are applicable to all other persons or entities doing business within the City,
including, but not limited to, ad-valorem taxes, sales taxes, corporate or business
occupation taxes or other taxes or fees imposed or levied by any governmental entity.
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Chapter 20.04
PUBLIC WAY AGREEMENTS
Sections
20.04.010
20.04.020
20.04.030
20.04.040
20.04.050
20.04.060
20.04.070
20.04.080
20.04.090
20.04.100
20.04.110
20.04.120
20.04.130
20.04.140
20.04.150
20.04.160
20.04.170
20.04.180
Public Way Agreements.
Public Way Agreement Applications.
Notice of Complete Application and Scheduling of
Public Hearings.
Determination by the City.
Notification of Council Action and Execution of
Agreements.
Nonexclusive Public Way Agreements.
Rights Granted.
Term of Public Way Agreements.
Specified Route.
Service to City Users.
Amendment of Public Way Agreements.
Renewal of Public Way Agreements.
Determination by City for Renewal of Public Way
Agreements.
Notification of Council Action on Renewal of
Public Way Agreements and Execution of
Agreements.
Obligation to Cure as a Condition of Renewal.
Universal Service.
Annual Fee for Recovery of City Costs.
Other City Costs.
Section 20.04.010 Public Way Agreements. A Public Way Agreement shall
be required of any commercial utility or telecommunications providers who desires to
occupy specific public ways of the City for the sole purpose of providing commercial
utility or telecommunications services to persons or areas outside the City.
Section 20.04.020 Public Way Agreement Applications. Any person that
desires a Public Way Agreement pursuant to this Title shall file an application with the
City which shall include the following information:
A. The identity of the applicant, including all affiliates of the applicant;
B. A description of the commercial utility or telecommunications
services that are or will be offered or provided by the applicant using its facilities;
C. A description of the transmission medium or transporting means
that will be used by the applicant to offer or provide such telecommunications or utility
services;
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D. Preliminary engineering plans, specifications and a network map of
the facilities to be located within the City, all in sufficient detail to identify:
¢)
The location and route requested for applicant's proposed
facilities;
(2)
The location of all overhead and underground public utility,
telecommunication, cable, water, sewer drainage and other
facilities in the public way along the proposed route;
(3)
The location(s), if any, for interconnection with the utility or
telecommunications facilities of other utility or
telecommunications carriers, operators, and providers; and
(4)
The specific trees, structures, improvements, facilities and
obstructions, if any, that applicant proposes to temporarily or
permanently remove or relocate.
facilities:
E. If applicant is proposing to install above-ground and/or overhead
(1) Evidence that surplus space is available for locating its utility
or telecommunications facilities on existing utility poles along
the proposed route;
(2) Proof of compliance with City's zoning code.
(3) Demonstrate compatibility with existing and future street
illumination systems.
F. If applicant is proposing an underground installation in existing
ducts or conduits within the public ways, information in sufficient detail to identify:
(1)
The excess capacity currently available in such ducts or
conduits before installation of applicant's utility or
telecommunications facilities;
(2)
The excess capacity, if any, that will exist in such ducts or
conduits after installation of applicant's utility or
telecommunications facilities;
(3) Evidence of ownership or a right to use such ducts or
conduits.
G. If applicant is proposing an underground installation within new
ducts or conduits to be constructed within the public ways:
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(1) The location proposed for the new ducts or conduits;
(2)
The excess capacity that will exist in such ducts or conduits
after installation of applicant's utility or telecommunications
facilities.
H. A preliminary construction schedule and completion date.
I. Information to establish that the applicant has obtained all other
governmental approvals and permits to construct and operate the facilities, and to offer
or provide the utility or telecommunications services, including, but not limited to,
evidence that the applicant has registered with the Washington Utilities and
Transportation Commission;
J. All deposits or charges required pursuant to this Title.
K. Proof of ability to meet City's bonding requirements in Section
12.24.050 of the Auburn City Code when the applicant does not have an existing
standing bond on file with the City sufficient to cover the scope of work proposed and
proof of ability to meet security requirements in sections 20.10.240 through 20.10.260
of this Title.
the City Clerk.
$5OO.OO.
A copy of an Auburn business registration stamped and signed by
M. ^ non-refundable application fee in the amount of
Section 20.04.030 Notice of Complete Application and Scheduling of
Public Hearing
A. Within 30 calendar days after receipt of the Public Way Agreement
application, the City will complete review of the application to determine whether the
application contains sufficient information as outlined in section 20.04.020 to proceed
with processing. If during the 30 calendar day review period, the City Engineer
determines that the application is incomplete, the City Engineer will issue a letter to the
applicant specifying the additional information necessary to complete the application.
The applicant will be given 30 calendar days to respond to the request for additional
information. Once the additional information is received by the City, an additional 14
calendar days will be allowed to determine whether the application is complete. Once
the application is determined complete, written notice will be provided following the
procedure outlined in paragraph 20.04.030.A. If the applicant needs additional time to
respond the applicant may request up to an additional 30 calendar days. If a response
is not timely received, the application will be returned to the applicant with a notice that
the application is rejected due to failure to provide the required information. Any new
applications will require a new application fee.
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B. When satisfied that the application is complete, the City Engineer will
notify the applicant in writing that the application is complete and inform the applicant of
the schedule for consideration by the Public Works Committee. If the Public Works
Committee determines that the application merits a separate public hearing, it shall
recommend to the City Council that it schedule a public hearing. The City Clerk will
notify the applicant in writing of the scheduled hearing.
Section 20.04.040. Determination by the City. Within 180 calendar days from
the time of notification that the application is complete, under Section 20.04.030.A., the
City Council shall reach a decision. The City Council's decision to grant or deny , in
whole or in part, an application for a Public Way Agreement shall be based upon the
following:
A. Whether the applicant has received all requisite licenses,
certificates, and authorizations from the Federal Communications Commission, the
Washington Utilities and Transportation Commission, and any other federal or state
agency with jurisdiction over the activities proposed by the applicant;
B. The capacity of the public ways to accommodate the applicant's
proposed facilities;
C. The capacity of the public ways to accommodate additional utility,
cable, and telecommunications facilities if the Public Way Agreement is granted;
D. The damage or disruption, if any, of public or private facilities,
improvements, service, travel or landscaping if the Public Way Agreement is granted;
E. The public interest in minimizing the cost and disruption of
construction within the public ways;
The service that applicant will provide to the community and/or the
region;
G. The effect, if any, on public health, safety and welfare if the Public
Way Agreement is granted;
H. The availability of alternate routes and/or locations for the proposed
facilities;
I. Applicable federal and state utility and telecommunications laws,
regulations and policies;
J. The ability to avoid or mitigate, to the City's satisfaction, future
conflicts with the operation, repair, replacement, and maintenance of city-owned and
other public/private utilities.
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K. The ability of the applicant to stabilize existing pavement structures
prior to disturbance in a manner sufficient to ensure future deterioration is not
accelerated by virtue of the installed facilities, and/or the ability and willingness of the
applicant to fully mitigate such damages to the extent that they may prove unavoidable
to the satisfaction of the City. Such security for the pavement's integrity may include
additional periods of warranty bonding for up to 5 years from the date of completion of
work as determined by the City Engineer.
L. Demonstrated ability and commitment to meet City bonding and
security requirements established in ACC 20.10.240 through 20.10,260 and ACC
12.24.
M. Such other factors as may demonstrate that the Public Way
Agreement to use the public ways will serve the community interest.
Section 20.04.050 Notification of Council Action and Execution of
Agreement. Upon the City Council's decision, the Public Works Director shall notify
the applicant of the decision including reason(s) for denial and instruct the applicant of
the procedure to follow to complete execution of the agreement if approved by the City
Council. No Public Way Agreement shall be deemed to have been granted hereunder
until the applicant and the City have fully executed a written agreement approved by the
City Council setting forth the particular terms and provisions under which the grantee
has been granted the right to occupy and use public ways of the City and the applicant
has provided the security deposits and proof of insurance as required by Chapter
20.10.
Section 20.04.060 Nonexclusive Public Way Agreements. No Public Way
Agreement granted under this Title shall confer any exclusive right, privilege, license or
Franchise to occupy or use the public ways of the City for delivery of
telecommunications services or any other purposes.
Section 20.04.070 Rights Granted. No Public Way Agreement granted under
this Title shall convey any right, title or interest in the public ways, but shall be deemed
an authorization only to use and occupy the public ways for the limited purposes and
term stated in the Public Way Agreement. Further, no Public Way Agreement shall be
construed as any warranty of title.
Section 20.04.080 Term of Telecommunications Public Way Agreements.
By virtue of the uncertainties created by the Act, unless otherwise specified in an
existing Public Way Agreement, no agreement granted hereunder shall be in effect for
a term exceeding 5 years.
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Section 20.04.090 Specified Route. A Public Way Agreement granted under
this Title shall be limited to a use of public ways specified and defined in the
Agreement.
Section 20.04.100 Service to City Users. A grantee shall be permitted to use
Public Ways to offer or provide utility or telecommunications services to persons or
areas within the City only upon City Council approval of a Telecommunications
Franchise Agreement pursuant to this Title.
Section 20.04.1'10 Amendment of Public Way Agreements. A new
application shall be required of any commercial utility or telecommunications provider
who desires to extend or locate its facilities in public ways of the City which are not
included in a Public Way Agreement previously granted under this Title. If a grantee is
required by the City to locate or relocate its facilities in public ways not included in a
previously granted Public Way Agreement, the City shall grant an amendment to the
agreement without further application.
Section 20.04.120 Renewal of Public Way Agreements. A provider that
desires to renew its Public Way Agreement in effect under this Chapter for an additional
term not to exceed five (5) years shall, not more than 180 days nor less than 120 days
before expiration of the Public Way Agreement in effect, file an application, which is
determined as complete in accordance with 20.04.030, with the City for renewal which
shall include the following:
Chapter;
A. The information required pursuant to Section 20.04.020 of this
B. Any information required pursuant to the Public Way Agreement
between the City and the grantee;
C. All deposits or charges required pursuant to this Chapter;
D. A non-refundable application fee of $75.00.
Section 20.04.130 Determination by City for Renewal of Public Way
Agreements. The process specified in section 20.04.030 for determining and notifying
the applicant of completeness of application shall be used for renewals. Within 120
days after receiving a complete application for renewal, following the procedures in
20.04.040, the City Council shall grant or deny the renewal application in whole or in
part. If the renewal application is denied, the written determination shall include the
reason(s) for denial. The decision to grant or deny an application for the renewal of a
Public Way Agreement shall, in addition to the criteria set forth in Section 20.04.040 of
this Chapter, be based upon the following:
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A. The continuing capacity of the public ways to accommodate the
applicant's existing facilities; and
B. The applicant's compliance with the requirements of this Title and
the Public Way Agreement.
Section 20.04.140 Notification of Council Action on Renewal of Public Way
Agreements and Execution of Agreements.
Once the City Council has decided on the renewal application, the procedures outlined
in section 20.04.050 shall be followed for execution of any agreement renewals.
Section 20.04.150 Obligation to Cure as a Condition of Renewal. No Public
Way Agreement shall be renewed until any ongoing violations or defaults in the
grantee's performance under the Public Way Agreement, or of the requirements of this
Title, have been cured, or a plan, secured by a sufficient bond or deposit of funds to the
City's satisfaction, detailing the corrective action to be taken by the grantee has been
approved in writing by the City.
Section 20.04.160 Universal Service. Each Telecommunications Public Way
Agreement granted under this Title is subject to the City's right, which is expressly
reserved, to require the telecommunication carrier, operator, or provider to make an
equitable and nondiscriminatory contribution to the preservation and advancement of
universal service to the extent permitted by state and federal law.
Section 20.04.170 Annual Fee for Recovery of City Costs. Each Public Way
Agreement granted under this Title is subject to the City's right, which is expressly
reserved, to annually fix a fair and reasonable compensation to be paid as
reimbursement for the City's costs in connection with reviewing, inspecting and
supervising the use and occupancy of the public ways on behalf of the public and
existing or future users. Provided further that the compensation required from any utility
or telecommunications provider or carrier engaged in the "telephone business," as
defined in RCW 82.04.065 shall be consistent with RCW 35.21.860.
Section 20.04.180 Other City Costs. All grantees shall, within 30 days after
written demand, reimburse the City for all direct and indirect costs and expenses
incurred by the City in connection with any modification, amendment, renewal er
transfer of the Public Way Agreement, In addition, all grantees shall, within 30 days
after written demand, reimburse the City for any and all costs the City reasonably incurs
in response to any emergency involving the grantee's facilities. All grantees shall,
within 30 days after written demand, reimburse the City for the grantee's proportionate
share of all actual, identified expenses incurred by the City in planning, constructing,
installing, repairing or altering any City facility as a result of the construction or the
presence in the Public Ways of the grantee's facilities.
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Chapter 20.06
FRANCHISE
Sections
20.06.010
20.06.020
20.06.030
20.06.040
20.06.050
20.06.060
20.06.070
20.06.080
20.06.090
20.06.100
20.06.110
20.06.120
20.06.130
20.06.140
20.06.150
20.06.160
20.06.170
20.06.180
20.06.190
Franchise Requirements.
Franchise Applications.
Notice of Complete Application and Scheduling of
Public Hearing.
Determination by the City
Notification of Council Action and Execution of
Franchise.
Nonexclusive Franchise.
Term of Franchise.
Rights Granted.
Franchise Territory.
Franchise fees in addition to Utility Taxes.
Nondiscrimination.
Amendment of Franchise.
Renewal of Franchise.
Determination by City for Renewal of Franchise.
Obligation to Cure as Condition of Renewal.
Universal Service.
Other City Costs.
Compensation for Use of Public Ways.
Accounts, Books and Records.
Section 20.06.010 Franchise Requirements. A Franchise shall be required of
any commemial utility or telecommunications operator or carrier or other person who
desires to occupy public ways of the City and to provide telecommunications or
commercial utility services to any person or area in the City. Provided, however, that a
Public Way Agreement may be approved in accordance with the provisions of this Title
instead of a Franchise in the following circumstances:
A. A privately owned telecommunications network or
telecommunication system which is operated solely for purposes of serving itself. An
example of such a network or telecommunication system includes, but is not limited to,
a telecommunications network connecting two business facilities under common
ownership or control, when said facilities are not offered to other business entities or
persons.
B. De minimus uses of public ways made in conjunction with a
wireless telecommunications facility located entirely upon publicly or privately owned
property.
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Section 20.06.020 Franchise Applications. Any person who desires a
telecommunication or a commercial utility Franchise pursuant to this Title shall file an
application with the City Public Works Department which, in addition to the information
required by Section 20.04.020 of this Title, shall include the following:
A. Whether the applicant intends to provide cable service, video
dialtone service or other video programming service, and sufficient information to
determine whether such service is subject to cable franchising;
B. An accurate map showing the location of any existing utility or
telecommunications facilities in the City that applicant intends to use or lease;
C. A description of the services or facilities that the applicant will offer
or make available to the City and other public, educational and governmental
institutions;
policies;
D. A description of applicant's service, access and line extension
E. The area or areas of the City the applicant desires to serve and a
initial schedule for build-out to the entire Franchise area;
F. The applicant's intended means and methods of providing service and
whether shared use of other utility poles or conduits is envisioned;
G. Documentation of all FCC licenses and equipment certifications
required by the FCC, and the WUTC;
H. A list of all cities in Washington where the applicant has obtained a
Franchise;
I. All fees, deposits or charges required pursuant to this Chapter;
City;
Such other and further information as may be requested by the
K. Proof of ability to meet City's bonding requirements in Section
12.24.050 of the Auburn City Code when the applicant does not have an existing
standing bond on file with the City sufficient to cover the scope of work proposed and
proof of ability to meet security requirements in sections 20.10.240 through 20.10.260
of this Title..
the City Clerk.
A copy of an Auburn business registration stamped and signed by
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M. An non-refundable application fee in the amount of $2,500.
Section 20.06.030 Notice of Complete Application and Scheduling of
Public Hearing.
A. Notice ofCompleteApplicationWithin 30 calendar days after
receipt of the Franchise application, the City will complete review of the application to
determine whether the application contains sufficient information as outlined in section
20.06.020 to proceed with processing. If during the 30 calendar day review period, the
City Engineer determines that the application is incomplete, the City Engineer will issue
a letter to the applicant specifying the additional information necessary to complete the
application. The applicant will be given 30 calendar days to respond. Once the
additional information is received by the City, an additional 14 calendar days will be
allowed to determine whether the application is complete. Once the application is
determined complete, written notice will be provided. If the applicant needs additional
time to respond the applicant may request up to an additional 30 calendar days. If a
response is not timely received, the application will be returned to the applicant with a
notice that the application is rejected due to failure to provide the required information.
Any new applications will require a new application fee.
B. Scheduling of Public Hearing. When satisfied that the
application is complete, the City Engineer will notify the applicant in writing that the
application is complete and inform the applicant of the schedule for consideration by the
Public Works Committee. The Public Works Committee shall review the proposal to
include the planned use of the public ways and recommend any modifications required
prior to recommending setting the public hearing by the City Council. Once satisfied as
to the terms of the negotiated draft Franchise agreement, the Public Works Committee
shall recommend that the City Council set the date for the public hearing. The City
Council will schedule the hearing and the City Clerk will notify the applicant in writing of
the scheduled hearing.
Section 20.06.040 Determination by the City Within 180 calendar days from
the time of notification that the application is complete, under Section 20.06.030.A., the
City shall issue a written determination granting or denying the application in whole or
in part. Prior to granting or denying a Franchise under this Title, the City Council shall
conduct a public hearing and make a decision based upon the criteria set forth below.
Pursuant to Section 253.(c) of the Federal Act, public disclosure of any fees as
compensation for use of public right of way is required, and RCW 35A.47.040 provides
that the City Council shall not approve any Franchise hereunder until the next regularly
scheduled council meeting following the public hearing. If the application is denied, in
whole or in part, the written determination shall include the reason(s) for denial. The
decision to grant or deny, in whole or in part, an application for a Telecommunications
Franchise shall be based upon the following:
A. Whether the applicant has received all requisite licenses,
certificates, and authorizations from the Federal Communications Commission, the
Washington Utilities and Transportation Commission, and any other federal or state
agency with jurisdiction over the activities proposed by the applicant.
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B. The capacity of the public ways to accommodate the applicant's
proposed facilities.
C. The capacity of the public ways to accommodate additional utility
and telecommunications facilities if the Franchise is granted.
D. The damage or disruption, if any, of public or private facilities,
improvements, service, travel or landscaping if the Franchise is granted.
E. The public interest in minimizing the cost and disruption of
construction within the public ways.
F. The service that applicant will provide to the community and region.
G. ']'he effect, if any, on public health, safety and welfare if the
Franchise requested is granted.
H. The availability of alternate routes and/or locations for the proposed
facilities.
I. Applicable federal and state utility and telecommunications laws,
regulations and policies.
J. The ability to avoid, or mitigate to the City's satisfaction, future
conflicts with the operation, repair, replacement, and maintenance of city-owned and
other commercial utilities.
K. The ability of the applicant to stabilize existing pavement structures
prior to disturbance in a manner sufficient to ensure future deterioration is not
accelerated by virtue of the installed facilities, and/or the ability and willingness of the
applicant to fully mitigate such damages to the extent that they may prove unavoidable
to the satisfaction of the City. Such security for the pavement's integrity may include
additional periods of warranty bonding for up to five (5) years from date of completion of
work as determined by the City Engineer.
L. Demonstrated ability and commitment to meet City bonding and
security requirements established in ACC 20.10.240 through 20.10.260 and ACC
12.24.
M. Such other factors as may demonstrate that the Franchise to use
the public ways will serve the community interest.
Section 20.06.050 Notification of Council Action and Execution Of
Franchise. Upon the City Council's decision the Public Works Director shall notify the
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applicant of the decision, including reason(s) for any denial, and instruct the applicant of
the procedure to follow to complete execution of the agreement if approved by the City
Council. No Franchise shall be deemed to have been granted hereunder until after the
public hearing and City Council approval of a written agreement setting forth the
particular terms and provisions under which the franchisee has been granted the right
to occupy and use public ways of the City and both the City and applicant have fully
executed the Franchise and the applicant has provided the security deposits and proof
of insurance as required by Chapter 20.10.
Section 20.06.060 Nonexclusive Franchise. No Franchise granted under this
Title shall confer any exclusive right, privilege, license or Franchise to occupy or use the
public ways of the City for delivery of utility or telecommunications services or any other
purposes.
Section 20.06.070 Term of Franchise. By virtue of the uncertainties created
by the Act, unless otherwise specified in an existing Franchise agreement, a
telecommunications Franchise granted by the City pursuant to this Title shall be valid
for a term not to exceed five (5) years.
Section 20.06.080 Rights Granted. No Franchise granted under this Chapter
shall convey any right, title or interest in the public ways, but shall be deemed a
Franchise only to use and occupy the public ways for the limited purposes and term
stated in the Franchise. Further, no Franchise shall be construed as any warranty of
title.
Section 20.06.090 Franchise Territory. Unless otherwise provided in the
Franchise ordinance, a Franchise granted under this Chapter shall authorize the
Franchisee to operate in the public ways throughout the City when a permit to install the
necessary facilities has been approved by the City.
Section 20.06.100 Franchise fees in addition to Utility Taxes. Revenue
derived directly or indirectly from sources within the City, shall be subject to applicable
utility taxes as of the time of commencement of such operations. Franchise fees shall
be in addition to any utility tax, but shall be collectible only to the extent as then allowed
by law, and in no event may the combined utility tax and Franchise fee exceed six
percent (6%) of Gross Revenue.
Section 20.06.110 Nondiscrimination. A franchisee which purports to serve
the general public shall make its utility or telecommunications services available to any
customer within its Franchise area who shall request such service, without
discrimination as to the terms, conditions, rates or charges for the franchisee's services;
provided, however, that nothing in this Title shall prohibit a franchisee from making any
reasonable classifications among differently situated customers.
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Section 20.06.120 Amendment of Franchise. Except as otherwise provided
within an existing Franchise ordinance, a new Franchise application shall be required of
any commercial utility or telecommunications carrier or operator that desires to extend
its Franchise territory or to locate its utility or telecommunications facilities in public
ways of the City which are not included in a Franchise previously granted under this
Title. If a franchisee is required by the City to locate or relocate its facilities in public
ways not included in a previously granted Franchise, the City shall grant a Franchise
amendment without further application.
Section 20.06.130 Renewal of Franchise. A franchisee that desires to renew
its Franchise under this Chapter for an additional five (5) year term shall, not more than
240 days nor less than 180 days before expiration of the Franchise in effect, file an
application, which is determined as complete in accordance with 20.06.030, with the
City for a renewal of its Franchise which shall include the following:
A. The information required pursuant to Section 20.06.020 of this
Chapter;
B. Any information required pursuant to the Franchise agreement
between the City and the franchisee;
C. All deposits or charges required pursuant to this Chapter;
D. A non-refundable application fee in the amount of $500.
Section 20.06.140 Determination by City for Renewal of Franchise. The
precess specified in section 20.06.030 for determining and notifying of completeness of
application shall be used for renewals. Within 120 calendar days after receiving a
complete application for renewal, following the precedures in 20.06.030, the City
Council shall grant or deny the renewal application in whole or in part. If the renewal
application is denied, the written determination shall include the reason(s) for denial.
Prior to granting or denying renewal of a Franchise under this Chapter, in whole or in
part, the City Council shall conduct a public hearing and make a decision based upon
the criteria set forth below in addition to all criteria in section 20.06.040. A.
The continuing capacity of the public ways to accommodate the applicant's
existing facilities.
B. The applicant's compliance with the requirements of this Title and
the Franchise agreement.
C. Applicable federal, state and local utility and telecommunications
laws, rules and policies.
D. Such other factors as may demonstrate that the continued
Franchise to use the public ways will serve the community interest.
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Section 20.06.150 Obligation to Cure as a Condition of Renewal. No
Franchise shall be renewed until any ongoing violations or defaults in the franchisee's
performance of the Franchise agreement, or of the requirements of this Title, have been
cured, or a plan detailing the corrective action to be taken by the franchisee has been
approved in writing by the City.
Section 20.06.160 Universal Service. Each telecommunications Franchise
granted under this Title is subject to the City's right, which is expressly reserved, to
require the franchisee to make an equitable and nondiscriminatory contribution to the
preservation and advancement of universal service to the extent permitted by state and
federal law.
Section 20.06.170 Other City Costs. All franchisees shall, within 30 days after
written demand, reimburse the City for all direct and indirect costs and expenses
incurred by the City in connection with any modification, amendment, renewal or
transfer of the Franchise or any Franchise agreement. In addition, all franchisees shall,
within 30 days after written demand, reimburse the City for any and all costs the City
reasonably incurs in response to any emergency involving the franchisee's utility or
telecommunications facilities. Finally, all franchisees shall, within 30 days after written
demand, reimburse the City for the franchisee's proportionate share of all actual,
identified expenses incurred by the City in planning, constructing, installing, repairing or
altering any City facility as a result of the presence in the public way of the franchisee's
utility or telecommunications facilities.
Section 20.06.180 Compensation for Use of Public Ways.
A. The City finds that the Public Ways to be used by commercial utilities
and carriers and operators in the operation of Telecommunication Systems within the
boundaries of the Franchise are valuable public properties, acquired and maintained by
the City at great expense to its taxpayers, and that the grant of use of said Public Ways
is a valuable property right, without which Grantees and Franchisees would be required
to invest substantial capital in Public Way costs and acquisitions; therefore, Grantees
and Franchisees shall pay the City as a general compensation for the use of the Public
Way during each year of the term of a Franchise a Franchise fee as determined by
City Council, not to exceed six percent (6%) of Gross Revenues for each quarter of
each calendar year. Franchisees shall pay the Franchise fee mandated by this Chapter
but the City acknowledges and understands that such amount (and any other fees,
assessments, or taxes imposed on Franchisees not described in section 20.06.180.E.
shall appear as a line item on the bill sent to, and shall be collected from, the
Subscribers. Provided, further, that the compensation required from any
telecommunications operator or carrier engaged in the "telephone business," as defined
in RCW 82.04.065 shall be consistent with RCW 35.21.860.
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B. Annual Franchise Fee Adjustments. The initial annual Franchise
fee percentage shall be four and one-half percent (4.5%) of gross revenues unless
and until it is further adjusted by City Council. Any such adjustment shall occur at least
sixty (60) days before any subsequent annual anniversary date. Any adjustment shall
become effective on the subsequent annual anniversary date.
C. Quarterly Payment. Franchisees shall forward by check wire transfer
an amount equal to this quarterly payment by the fifteenth (15th) day of the second
calendar month immediately following the close of the calendar quarter for which the
payment is calculated.
D. Late Payment. In the event any quarterly payment is made after noon
on the date ten (10) days after the date due, Franchisees shall pay a late payment
penalty of the greater of: (i) Twenty-five Dollars ($5.00) or (ii) simple interest at a twelve
percent (12%) annual percentage rate on the total amount past due.
E. Fees and Compensation Not a Tax. The fees, charges and fines
provided for in this ordinance and any compensation charged and paid for the
Franchisee's use of the City's Public Ways, whether "fiduciary or in kind", are
separate from, and additional to, any and all federal, state, local and City taxes as may
be levied, imposed or due from a commercial utility, telecommunications carrier,
operator, or provider, its customers or subscribers or on account of the Lease, sale,
delivery or transmission of utility or telecommunications services.
F. Ruling of Unenforceability. The compensation required from any
commercial utility, telecommunications carrier, operator, or provider shall be as
provided by law. In the event any Franchise fee shall be held unenforceable by a court
of law which has jurisdiction over the City, Franchisees shall pay the equivalent amount
paid in Franchise fees as a city utility tax which, shall be applied retroactively to time
periods during which the Franchise fee was determined to be unenforceable.
G. Quarterly Report. In order to properly determine the gross revenues
received by Franchisees, the Franchisee shall on the same date that each quarterly
payment is made, it file with the Director of Finance a sworn copy of a report, in a form
acceptable to the City, in sufficient detail to itemize revenues from each of the revenue
categories. The City may, if it sees fit and at its own expense, have the books and
records of Franchisees examined by a representative of said City to ascertain the
correctness of the reports agreed to be filed herein. Neither the acceptance of any
payment nor any subsequent review shall be deemed an agreement by the City that the
correct payment was paid, absent a fully authorized written release by the City on any
such payments or on such reports. Any necessary prorations shall be made in the first
and last year of each term of the Franchise. Any City request for access to books and
records shall be allowed by the Franchisee at reasonable times and for reasonable
purposes. Such information shall be held in strict confidence by the City as allowed by
law and used only for the purpose stated herein.
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H, Recalculation at End of Compensation Year. At the end of each
calendar year, Franchisees shall recalculate the total general compensation actually
due. If additional amounts are due the City by Franchisee, said amounts shall be paid
by the fifteenth (15th) day of February following the calendar year during which such
amounts were originally due. If amounts are found to be due the Franchisees by the
City, said amounts shall be credited by the fifteenth (15th)day of February during which
such amounts were originally due. Any necessary prorations will be made.
I. Taxes are Not to be a Credit. The compensation paid under this
Franchise shall be exclusive of and in addition to all special assessments and taxes of
whatever nature which are applicable to all other persons or entities doing business
within the City, including, but not limited to, ad valorem tax, sales tax, corporate or
business occupation taxes or other taxes or fees imposed or levied by any
governmental entity.
J. Utility Tax Liability-Franchise Fees. Revenues derived directly or
indirectly from sources within the City, shall be subject to applicable utility taxes as of
the time of commencement of such operations. Franchise fees shall be in addition to
any utility tax, but shall be collectible only to the extent as then allowed by law, and in
no event may the combined utility tax and Franchise fee exceed six percent (6%) of
Gross Revenues in accordance with RCW 35.21.870. Franchise fees, if applicable,
shall be levied on a non-discriminatory basis.
K. Rights of City. Payment of money under any Franchise shall not in
any way limit or inhibit any of the privileges or rights of the City, except insofar as
City's privileges or rights are expressly limited or inhibited by the terms of a Franchise.
L. Annual Report. Franchisees shall file annually with the Director of
Finance no later than ninety (90) days after the end of franchisee's fiscal year, an
unaudited statement of revenues (for that fiscal year just ended) attributable to the
operations of the franchisee's telecommunication system, within the City pursuant to the
Franchise agreement. The statement shall present a detailed breakdown of gross
revenues and uncollectible accounts for the year. The City may, if it sees fit, have such
report audited by an independent certified public accountant of its choosing. If the audit
reveals an underpayment error in payment by Franchisees of more than five percent
(5%), then Franchisees shall pay for the costs of the audit. If the audit reveals an error
in payment of five percent (5%) or less, the City shall pay the costs of the audit. The
report will summarize those accounts reconciled to be within the Franchise Area by the
City's quarterly review.
M. Circumventing Payments. Any transaction(s) which have the effect
of circumventing payment of the required Franchise fees and/or evasion of payment of
Franchise fees or any payments due the City under a Franchise by non-collection or
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non-reporting of gross revenues, bartering, or any other means which evade the actual
collection of revenues for business pursued by Franchisees are prohibited.
N. Best Rates. As allowed by applicable law, part of the compensation
to the City for the grant of any telecommunications Franchise, the City shall be entitled
to obtain subscriptions, at the City's discretion, to the communication service at
Franchisee's lowest comparable rate applicable to any government body or municipality
of the State of Washington. In addition, City shall be entitled to Franchisee's lowest
comparable rate applicable to any governmental body or municipality of the State of
Washington for purchase and/or lease, should the City determine to purchase and/or
lease, equipment or modems applicable to government bodies or municipalities in the
State of Washington for purposes of accessing the communication service.
Section 20.06.190 Accounts, Books and Records. The franchisee shall keep
the City fully informed as to accounting methods and procedures in connection with the
recording and reporting by the franchisee of all revenues and uncollectibles.
A. Cityto belnformed. Franchisees shall keep the City
fully informed as to all matters in connection with or which may
affect the construction, reconstruction, removal, maintenance,
operation and repair of franchisee's system, franchisee's
accounting methods and procedures in connection therewith, and
the recording and reporting by Franchisees of all revenues and
uncollectibles. Franchisees shall report to the City such other
non-proprietary information relating to Franchisees as the City
may consider useful and shall comply with the City'S
determination regarding forms for reports, the time for reports,
the frequency with which any reports are to be made, and whether
reports are to be made under oath. The City acknowledges that a
Franchisee may be a reporting company under the Securities
Exchange Act of 1934 and that shares of its stock are publicly
traded. As such, a Franchisee may be precluded from disclosing
certain sensitive, non-public information by virtue of rules and
regulations promulgated under such act or otherwise.
B. Accounts: The franchisee shall keep complete and accurate books of
account and records of its business and operations pursuant to this Franchise
ordinance in accordance with generally accepted accounting principles or in
accordance with accounting rules prescribed by applicable federal or state regulatory
agencies. The City may require the keeping of additional records or accounts which are
reasonably necessary for purposes of identifying, accounting for, and reporting gross
revenues and uncollectibles. All subscribers who report a service address in the City of
Auburn shall be subject to taxes and fees under this Franchise. When required by the
City, the franchisee shall make available a complete list of all service addresses within
the City of Auburn. This list shall be available for review by the City at a local
franchisee's business office. The list will be provided on a computer disc in ASCI II
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format sorted by zip code. It is understood this data is only needed for Auburn to
perform an audit to ascertain that the correct subscribers are subjected to Auburn taxes
and fees. As the City annexes new areas, those zip codes, if any, will be added.
C. Access to Records: The franchisee shall provide the City with
access at reasonable times and for reasonable purposes, to examine, audit, review
and/or obtain copies of the papers, books, accounts, documents, maps, plans and other
records of the franchisee pertaining to any Franchise ordinance. The franchisee shall
fully cooperate in making available its records and otherwise assisting in these
activities. Such information shall be held in strict confidence by the City, as allowed by
law, and used only for the purpose stated herein.
D. Inquires to Franchisee: The City may, at any time, make inquires
pertaining to the franchisee's operation of its utility or telecommunication system within
the Franchise Area. The franchisee shall respond to such inquiries on a timely basis.
E. FCC and other Filings. Subject to the caveat set forth above in
20.06.200.A., Franchisees shall provide the City with notices of all petitions and
applications submitted by Franchisee to the FCC, Securities and Exchange
Commission and the Washington Utilities and Transportation Commission or their
successor agencies, directly relating to any substantially important matters which
negatively affect the use of the Public Ways and/or the utility or telecommunications
operations authorized pursuant to this Franchise.
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Chapter 20.08
FACILITIES LEASE
Sections
20.08.010
20.08.020
20.08.030
20.08.040
20.08.050
20.08.060
20.08.070
20.08.080
20.08.090
20.08.100
20.08.110
20.08.120
20.08.130
20.08.140
20.08.150
20.08.160
Facilities Lease.
Lease Application.
Notice of Complete Application and Scheduling of
Public Hearing
Determination by the City
Notification of Council Action and Execution of
Facilities Lease.
Nonexclusive Lease.
Term of Facilities Lease.
Rights Granted.
Interference with other users.
Ownership and removal of improvements.
Cancellation of Lease by Lessee.
Compensation to the City.
Amendment of Facilities Lease.
Renewal of Facilities Lease.
Determination by the City for Renewal of
Facilities Lease.
Obligation to Cure as a Condition of Renewal.
Section 20.08.010 Facilities Lease. The City Council may, in its sole
discretion, which is hereby reserved, approve Facilities Leases for the location of
commercial utility or telecommunications facilities and other non-telecommunications
facilities upon City property, as that term is defined in this Title. Neither this Chapter,
nor any other provision of this Title shall be construed to create an entitlement or vested
right in any person or entity of any type to the use of any City property or City facility.
Section 20.08.020 Lease Application. Any person that desires to solicit the
City's approval of a Facilities Lease pursuant to this Title shall file a Lease proposal with
the City which, in addition to the information required by Section 20.06,020, shall
include the following:
A. A description of the facilities or other equipment proposed to be
located upon City property;
B. A description of the City property upon which the applicant
proposes to locate facilities or other equipment;
C. Preliminary plans and specifications in sufficient detail to identify:
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The location(s) of existing telecommunications facilities or
other equipment upon the City property, whether publicly or
privately owned.
(2)
The location and source of electric and other utilities
required for the installation and/or operation of the proposed
facilities or equipment.
D. Accurate scale conceptual drawings and diagrams of sufficient
specificity to analyze the aesthetic impacts of the proposed telecommunications
facilities or other equipment;
facilities:
E. If applicant is proposing to install above-ground and/or overhead
(1) Evidence that surplus space is available for locating its
telecommunications facilities on existing utility poles along
the proposed route;
(2) Proof of compliance with City's zoning code.
F. Whether the applicant intends to provide cable service, video
dialtone service or other video programming service, and sufficient information to
determine whether such service is subject to cable franchising;
G. An accurate map showing the location of any existing utility or
telecommunications facilities in the City that applicant intends to use or lease;
H. A description of the services or facilities that the applicant will offer
or make available to the City and other public, educational, and governmental
institutions;
the City Clerk.
A copy of an Auburn business registration stamped and signed by
J. Proof of ability to meet City's bonding requirements in ACC 12.24.
of the Auburn City Code when the applicant does not have an existing standing bond
on file with the City sufficient to cover the scope of work proposed and proof of ability to
meet the City's security requirements in ACC 20.10.240 to 20.10.260.
K. An non-refundable application fee in the amount of $500.00.
L. Such other and further information as may be requested by the
City.
Section 20.08.030 Notice of Complete Application and Scheduling of
Public Hearing.
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A. Within 30 calendar days the City will complete an initial review of
the application to determine whether the application contains sufficient information as
outlined in section 20.08.020 to proceed with processing. Once satisfied that the
proposal is clear, the Mayor will appoint a negotiation team to meet with the applicant
and determine whether additional information is needed. The team shall as a minimum
consist of the Finance Director, a Legal representative, and the Department director
affiliated with the property being considered for lease. If during the 30 calendar day
review period, the application is deemed incomplete, the City will issue a letter to the
applicant specifying the additional information necessary in order to proceed with
processing. The applicant will be given 30 calendar days to respond. Once the
additional information is received by the City, an additional 14 calendar days will be
allowed to determine whether the application is complete. Once the application is
determined complete, written notice will be provided. If a response is not timely
received, the application will be returned to the applicant with a notice that the
application is rejected due to failure to provide the required information. Any new
applications will require a new application fee.
B. When satisfied that the application is complete, the Finance
Director will issue a letter of completeness and notifying the applicant of the schedule
the issue will be considered by the appropriate Council Committee. The appropriate
Committee will give initial considerations to the negotiation team to facilitate completion
of a negotiated draft Lease agreement. Once the team returns to the committee with a
draft Lease agreement, the committee will determine if the issues merits a separate
public hearing, and recommend to the City Council whether a public hearing should be
held. The City Council will schedule the hearing and the City Clerk will notify the
applicant in writing of the scheduled hearing.
Section 20.08.040 Determination by the City. Recognizing that the City is
under no obligation to approve a Facilities Lease for the use of City property, the City
shall attempt to consider and take action on applications for Facilities Leases within
180 days from the time of reaching a determination of completeness, under Section
20.08.030. When such action is taken, the City shall issue a written determination
granting or denying the Lease in whole or in part. If the Lease is denied, in whole or in
part, the written determination shall include the reason(s) for denial. The decision to
grant or deny an application for a Facilities Lease shall be based upon, but not be
limited to, the following criteria:
A. The capacity of the City property and public ways to accommodate
the applicant's proposed facilities.
E,. The capacity of the City property and public ways to accommodate
additional utility and telecommunications facilities if the Lease is granted.
C. The damage or disruption, if any, of public or private facilities,
improvements, service, travel or landscaping if the Lease is granted.
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D. The public interest in minimizing the cost and disruption of
construction upon City property and within the public ways.
E. The service and public benefit that applicant will provide to the
community and region.
F. The effect, if any, on public health, safety, and welfare if the Lease
requested is approved.
facilities.
G. The availability of alternate routes and/or locations for the proposed
H. Whether the applicant is in compliance with applicable federal and
state telecommunications laws, regulations and policies, including, but not limited to,
the registration requirements administered by the Washington Utilities and
Transportation Commission.
I. The potential for radio frequency and other interference with
existing public and private telecommunications er other facilities located upon the City
property.
J. The potential for radio frequency and other interference or impacts
upon residential, commercial, and other uses located within the vicinity of the City
property.
Whether the City's property zoning supports the proposed land
use.
L. Demonstrated ability and commitment to meet City bonding and
security requirements established in 20.10.240 through 20.10.260.
M. Such other factors as may demonstrate that the Lease to use the
City property will serve the community interest.
N. Other criteria determined to be necessary or appropriate to the
public health, safety, or welfare of the community.
Section 20.08.050 Notification of Council Action and Execution of Lease.
Upon the City Council's decision, the Finance Director shall notify the applicant of the
decision and instruct the applicant of the procedure to follow to complete execution of
the Lease agreement if approved by the City Council. No Facilities Lease shall be
deemed to have been granted hereunder until after any scheduled public hearing and
City Council approval of a written agreement setting forth the particular terms and
provisions under which the lessee has been granted the right to occupy and use the
City property specified in the Lease and both the City and applicant have fully executed
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the Lease and the applicant has provided the security deposits and proof of insurance
as required by Chapter 20.10.
Section 20.08.060 Nonexclusive Lease. No Facilities Lease granted under
this Title shall confer any exclusive right, privilege, license, or Franchise to occupy or
use City property for delivery of utility or telecommunications services or any other
purposes.
Section 20.08.070 Term of Facilities Lease. By virtue of the uncertainties
created by the Act, except as provided in an existing Lease agreement, a Facilities
Lease granted hereunder shall be valid for a maximum term of five (5) years, subject to
renewal as provided in this Chapter.
Section 20.08.080 Rights Granted. No Facilities Lease granted under this
Chapter shall convey any right, title or interest, of any kind, in the City property, but
shall be deemed a license only to use and occupy the City property for the limited
purposes and term stated in the Lease agreement. Further, no Facilities Lease shall be
construed as any warranty of title.
Section 20.08.090 Interference with Other Users. No Facilities Lease shall
be granted under this Title unless it contains a provision which is substantially similar to
the following:
The City has previously entered into leases with other tenants for their
equipment and telecommunications facilities. Lessee acknowledges that
the City is also leasing the City property for the purposes of transmitting
and receiving telecommunication signals from the City property. The City,
however, is not in any way responsible or liable for any interference with
Lessee's use of the City property which may be caused by the use and
operation of any other tenant's equipment, even if caused by new
technology. In the event that any other tenant's activities interfere with the
Lessee's use of the City property, and the Lessee cannot work out this
interference with the other tenants, the Lessee may, upon 30 days notice
to the City, terminate this Lease and restore the City property to its
original condition, reasonable wear and tear excepted. The Lessee shall
cooperate with all other tenants to identify the causes of, and work
towards the resolution of, any electronic interference problem. In addition,
the Lessee agrees to eliminate any radio or television interference caused
to City-owned or other public/private facilities or surrounding property
owners, residents, or tenants at Lessee's own expense and without
installation of extra filters on City-owned equipment. Lessee further
agrees to accept such interference as may be received from City operated
telecommunications or other facilities located upon the City property
subject to this Lease.
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Section 20.08.100 Ownership and Removal of Improvements. No Facilities
Lease shall be granted under this Title unless it contains a provision which states that
all buildings, landscaping, and all other improvements, except lessee's equipment,
shall become the property of the City upon expiration or termination of the Lease. In
the event that the City requires removal of such improvements, such removal shall be
accomplished at the sole expense of the lessee and completed with full restoration of
the site to the original condition or its practical equivalent as determined by the City,
within g0 days after receiving written notice from the City requiring removal of the
improvements. Further, in the event that utility or telecommunications facilities or other
equipment are left upon City property after expiration or termination of the Lease, they
shall become the property of the City if not removed by the lessee after 30 days written
notice from the City.
Section 20.08.110 Cancellation of Lease by Lessee.
A. All Facilities Leases are contingent upon the prospective lessee
obtaining all necessary permits, approvals, and licenses for the proposed facilities. In
the event that the prospective lessee is unable to obtain all such permits, approvals,
and licenses, it may cancel its Lease, and obtain a pro rata refund in any rents paid,
without further obligation by giving 30 days prior written notice to the City.
B. In the event that the holder of a Facilities Lease determines that the
City property is unsuitable for its intended purpose, the Lessee shall have the right to
cancel the Lease upon 120 days written notice to the City. However, no prepaid rent
shall be refundable.
Section 20.08.120 Compensation to the City. Each Facilities Lease granted
under this Title is subject to the City's right, which is expressly reserved, to annually fix
a fair and reasonable compensation to be paid for the rights granted to a lessee;
provided, nothing in this Title shall prohibit the City and a lessee from agreeing to the
compensation to be paid. Such compensation shall be payable in advance of the
effective date of the Lease and on or before January 31 of each calendar year. Any
payments received after the due date shall include a late payment penalty of 2% of the
annual rental fee for each day or part thereof past the due date. If any or all of the
rental fee is more than 60 calendar days delinquent, the Lease will automatically
terminate on the 61st calendar day of delinquency, and the City may proceed to collect
against any security provided by the lessee.
Section 20.08.130 Amendment of Facilities Lease. Except as provided within
an existing Lease agreement, a new Lease application and Lease agreement shall be
required of any lessee that desires to expand, modify, or relocate its facilities or other
equipment located upon City property. If the lessee is required by the City to locate or
relocate its facilities or other equipment on the City property, the City shall grant a
Lease amendment without further application.
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Section 20.08.140 Renewal of Facilities Lease. A lessee that desires to renew
its Facilities Lease in effect under this Chapter shall, not more than 120 days nor less
than 90 days before expiration of the Facilities Lease then in effect, file an application,
which is determined as complete in accordance with 20.08.030, with the City for
renewal of its Facilities Lease which shall include the following:
A. The information required pursuant to Section 20.08.020 of this
Chapter;
B. Any information required pursuant to the Facilities Lease
agreement between the City and the lessee;
All deposits or charges required pursuant to this Chapter;
A non-refundable application renewal fee in the amount of $250.00.
Section 20.08.150 Determination by the City for Renewal of Facility Lease.
All renewals of leases subject to this Title shall be renewed in accordance with the
provisions of Sections 20.08.030 and 20.08.040. Recognizing that the City Council is
under no obligation to approve a renewal of a Facilities Lease for the use of City
property, the City Council shall attempt to consider and take action on applications for
renewal of such leases within 90 days after receiving a complete application for such a
Lease renewal. When such action is taken, the City shall issue a written determination
granting or denying the Lease renewal, in whole or in part. If the renewal application is
denied, the written determination shall include the reason(s) for denial. The decision to
grant or deny an application for renewal of a Facilities Lease shall be based upon, but
not limited to, the following:
A. The continuing capacity of the City property to accommodate the
applicant's existing facilities.
B. The applicant's compliance with the requirements of this Title and
the Lease agreement.
C. Such other factors as may demonstrate that the continued approval
to use the City property ways will serve the community interest.
D. ,Any criteria contained in section 20.08.040.
Section 20.08.160 Obligation to Cure as a Condition of Renewal. No
Facilities Lease shall be renewed until any ongoing violations or defaults in the lessee's
performance of the Lease agreement, or of the requirements of this Title, have been
cured, or a plan, secured by bond or deposit account to the City's satisfaction, detailing
the corrective action to be taken by the lessee has been approved in writing by the City.
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Chapter 20.10
CONDITIONS OF PUBLIC WAY AGREEMENTS, FRANCHISES, AND
FACILITIES LEASES
Sections
20.10.010
20.10.020
20.10.030
20.10.040
20.10.050
20.10.060
20.10.070
20.10.080
20.10.090
20.10.100
20.10.110
20.10.120
20.10.130
20.10.140
20.10.150
20.10.160
20.10.170
20.10.180
20.10.190
20.10.200
20.10.210
20.10.220
20.10.230
20.10.240
20.10.250
20.10.260
20.10.270
20.10.280
20.10.290
20.10.300
20.10.310
20.10.320
20.10.330
20.10.340
20.10.350
Purpose.
Acceptance and Effective Date.
Police Power.
Rules and Regulations by City.
Location of Facilities.
Compliance with One Number Locator Service.
Construction Permits.
Interference with the Public Ways.
Damage to Property.
Notice of Work.
Repair and Emergency Work.
Maintenance of Facilities.
Abandonment, Relocation or Removal
of Facilities.
Building Moving.
Removal of Unauthorized Facilities.
Emergency Removal or Relocation of Facilities.
Damage to Facilities.
Restoration of Public Ways, Other Ways, and City
Property.
Facilities Maps.
Duty to Provide Information.
Leased Capacity.
Insurance.
General Indemnification.
Performance and Construction Surety.
Security Options.
Performance Bond.
Coordination of Construction Activities.
Assignments or Transfers of Right of Way
Agreements, Franchises, or Leases.
Transactions Affecting Control of Right of Way
Agreements, Franchises, or Leases.
Revocation or Termination of Right off Way
Agreements, Franchises, or Leases.
Notice and Duty to Cure.
Hearing.
Standards for Revocation or Lesser Sanctions.
Civil Penalties.
Enforcement.
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20.10.360
20.10.370
20.10.380
20.10.390
20.10.400
20.10.410
20.10.420
20.10.430
20.10.440
20.10.450
20.10.460
20.10.470
20.10.480
Other Remedies
Venue of Any Court Action.
Action by the FCC.
Incorporation by Reference.
Notice of Entry on Private Property.
Safety Requirements.
Most Favored Community.
Compliance With Zoning Standards.
Unfunded Mandate.
Care of Trees along Streets.
Use of Utility Poles and Facilities of Others.
Use of Poles and Facilities by City.
Administration.
Section 20.10.010 Purpose. The purpose of this Chapter is to set forth certain
terms and conditions which are common to all Public Way Agreements, Franchises,
and Facilities Leases granted under the provisions of this Title. Except as otherwise
provided in this Chapter or in such a Public Ways Agreement, Franchise, or Lease, the
provisions of this Chapter apply to all such Public Ways Agreements, franchises, and
leases approved or granted by the City.
Section 20.10.020 Acceptance and Effective Date. No Public Ways
Agreement, Franchise, or Lease granted pursuant to the provisions of this Title shall
become effective unless and until the ordinance or other City action granting the same
has become effective. Within 30 days after the effective date of the ordinance or other
City action granting a Public Ways Agreement, Franchise, or Lease, or within such
extended period of time as the Council in its discretion may authorize, the applicant
shall file with the City Clerk an unconditional written acceptance of the Public Ways
Agreement, Franchise, or Lease, in a form satisfactory to the City Attorney, together
with the bonds, insurance policies, and security fund required by this Title.
Section 20.10.030 Police Power. In accepting and executing any Public Ways
Agreement, Franchise or Lease, the grantee, franchisee, or lessee acknowledges that
its rights thereunder are subject to the legitimate rights of the police power of the City to
adopt and enforce general ordinances necessary to protect the safety, health, and
welfare of the public, and agrees to comply with all applicable general laws enacted by
the City pursuant to such power.
Section 20.10.040 Rules and Regulations by the City. In addition to the
inherent powers of the City to regulate and control any Public Ways Agreement,
Franchise, or Lease granted, the authority granted to the City by the Cable Act and the
Telecommunications Act of 1996, and those powers expressly reserved by the City, or
agreed to and provided for in any Public Ways Agreement, Franchise, or Lease, the
right and power is hereby reserved by the City to promulgate such additional
regulations as it may find necessary in the exercise of its lawful powers giving due
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regard to the rights of grantees, franchisees, and lessees. Except as provided in this
Title, the foregoing does not allow for amendment by the City of material terms of any
Public Ways Agreement, Franchise, or Lease granted without the written consent of
the grantee, franchisee, or lessee.
Section 20.10.050 Location of Facilities. All facilities shall be constructed,
installed, and located in accordance with the following terms and conditions, unless
otherwise specified in a Public Ways Agreement, Franchise, or Lease agreement.
A. Unless otherwise provided in a Public Way Agreement, Franchise,
or Lease, a grantee, franchisee, or lessee with permission to occupy a public way must
locate its cable or telecommunications facilities underground in accordance with Auburn
City Code Title 18 and Chapter 13.32.
B. Any newcomer in the public way must bear the full cost of
discovering the location of any existing conflicts, coordination of the engineering plans
to acquire the approvals of parties already in the Public Way, and relocating and/or
mitigating such conflicts with pre-existing facilities in conflict with the plans of the
newcomer
C. Whenever the City requires, a grantee, franchisee, or lessee
subject to this Title, that currently occupies the public way shall relocate its facilities
underground at no expense to the City. Such relocation shall be made concurrently
with other planned work to minimize the disruption of the public ways as determined by
the City Engineer.
D. Should the available capacity of public ways prevent new uses in
the future, all persons subject to this Title shall negotiate with any interested newcomer
the means of creating new capacity as required by federal or state law. The parties
shall arrive at a mutually supportable agreement and submit the same to the City for
review and comment. The parties will incorporate any reasonable City requirements for
approval, and resubmit the revised proposal for City Council approval. If approved by
the City Council, the parties will bear all costs associated with the proposal, and obtain
the necessary permits to execute the approved plan from the City in accordance with
this Title and ACC 12.24. The City shall bear no costs associated with resolution of
capacity shortages within the public ways.
Section 20.10.060 Compliance with One Number Locator Service. All
grantees, franchisees, and lessees shall, before commencing any construction in the
public ways, comply with all regulations of Chapter 19.122 RCW, the One Number
Locator Service.
Section 20.10.070 Construction Permits. All grantees of Public Way
Agreements, franchisees, and lessees of City properties are required to obtain
Construction Permits, as required in Auburn City Code Chapter 12.24, for installing
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utility, cable and telecommunications facilities. However, nothing in this Title shall
prohibit the City and a grantee, franchisee, or lessee from agreeing to alternative plan
review, permit, and construction procedures for a Public Ways Agreement, Franchise,
or Lease granted under this Title, provided such alternative procedures provide
substantially equivalent safeguards for responsible construction practices.
Section 20.10.080 Interference with the Public Ways. No grantee,
franchisee, or lessee may locate or maintain its utility, cable or telecommunications
facilities so as to unreasonably interfere with the use of the public ways by the City, by
the general public or by other persons authorized to use or be present in or upon the
public ways. All such facilities which unreasonably interfere with the use of the City's
public ways as determined by the Public Works Director, shall be moved in accordance
with provisions in section 20.10.130, by the grantee, franchisee, or lessee, at the
grantee, franchisee, or lessee's cost, temporarily or permanently, as determined by the
Public Works Director.
Section 20.10.090 Damage to Property. No grantee, franchisee, or lessee,
nor any person acting on behalf of a. grantee, franchisee, or lessee shall take any
action or permit any action to be taken which may impair or damage any City property,
public ways of the City, other ways or other property, whether publicly or privately
owned, located in, on or adjacent thereto.
Section 20.10.100 Notice of Work. Unless otherwise provided in a Public Way
Agreement, Franchise, or Lease agreement, no grantee, franchisee, or lessee, nor any
person acting on behalf of the grantee, franchisee, or lessee shall commence any non-
emergency work in or about the public ways of the City, other ways, or upon City
property without 10 working days advance written notice to the City which notice shall
include the location of the work to be done, a detailed description of the work to be
done, and a schedule for completion.
Section 20.10.110 Repair and Emergency Work. In the event of an
emergency, a grantee, franchisee, or lessee may commence such repair and
emergency response work as required under the circumstances, provided the grantee,
franchisee, or lessee shall notify the City in writing as promptly as possible, before such
repair or emergency work commences or as soon thereafter as possible if advance
notice is not practicable. The City may act without prior written notice in case of
emergency.
Section 20.10.120 Maintenance of Facilities. Each grantee, franchisee, or
lessee shall maintain its facilities in good and safe condition and in a manner that
complies with all applicable federal, state and local requirements.
Section 20.10.130 Abandonment, Relocation or Removal of Facilities.
Within 30 days following written notice from the City, a grantee, franchisee, or lessee
shall, at its sole expense, temporarily or permanently remove, relocate, change, or alter
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the position of any commercial utility, cable or telecommunications facilities within the
public ways or upon City property whenever the City Public Works Director shall have
determined that such removal, relocation, change, or alteration is reasonably necessary
for:
A. The construction, repair, maintenance, or installation of any City or
other public improvement in or upon the public ways; and
B. The operations of the City, utility providers, or other governmental
entity in or upon the public ways.
C. Facilities are deemed by the City as abandoned due to failure to
cure of the grantee, franchisee, or lessee,
However, in the event such relocation is required due to emergency repairs deemed
necessary by the City, such relocation or moving shall be accomplished within 24
hours.
Section 20.10.140 Building Moving. Whenever any person shall have
obtained permission from the City to use any street or public way for the purpose of
moving any building, a grantee, franchisee, or lessee, upon 7 calendar days written
notice from the City, shall raise or remove, at the expense of the person desiring to
move the building, any of the grantee, franchisee, or lessee's utility wires, poles, or
facilities which may obstruct the moving of such building; provided, that the person
desiring to move the building shall comply with all requirements of the City for the
moving of buildings.
Section 20.10.150 Removal of Unauthorized Facilities. Within 30 days
following written notice from the City, any commercial utility, telecommunications carrier,
operator, lessee or other person who owns, controls, or maintains any unauthorized
cable or telecommunications system, facility, or related appurtenances within the public
ways or upon property of the City shall, at its own expense, remove such facilities or
appurtenances from the public ways of the City. A utility, cable or telecommunications
system or facility is unauthorized and subject to removal in the following circumstances:
A. Upon expiration or termination of the grantee, lessee, or
franchisee's Public Way Agreement, Franchise, or Lease;
B. Upon leaving any system or facility within the public ways or upon
property of the City, any such property of a grantee, franchisee, or lessee shall be
deemed abandoned if left in place 90 days after expiration or termination of a Public
Way Agreement, Franchise, or Lease;
C. If the system or facility was constructed or installed without the
prior approval of a Public Way Agreement, Franchise or Lease;
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D. If the system or facility was constructed or installed without the
prior issuance of a required Construction Permit;
E. If the system or facility was constructed or installed at a location
not permitted by a Public Way Agreement, Franchise or Lease.
Provided, however, that the City may, in its sole discretion, allow a grantee,
franchisee, or lessee or other such persons who may own, control, use, or maintain
commercial utility, cable or telecommunications facilities within the public ways of the
City or upon City property to abandon such facilities in place. No facilities of any type
may be abandoned in place without the express written consent of the City. Any plan
for abandonment or removal of a grantee's, franchisee's, or lessee's facilities must be
first approved by the Public Works Director, and all necessary permits must be obtained
prior to such work. Upon permanent abandonment in place of the facilities such
facilities shall become the City's property, and such persons shall submit to the City an
instrument in writing, to be approved by the City Attorney, transferring to the City the
ownership of such property. The provisions of this Section shall survive the expiration,
revocation, or termination of a Public Way Agreement, Franchise, or Lease granted
under this Title.
Section 20.10.160 Emergency Removal or Relocation of Facilities. The City
retains the right and privilege to cut or move any commercial utility, cable or
telecommunications facilities located within the public ways of the City and upon City
property, as the City may determine to be necessary, appropriate or useful in response
to any public health or safety emergency. The City shall not be liable to any utility,
cable operator, telecommunications carrier, operator, or provider, or any other party for
any direct, indirect, or any other such damages suffered by any person or entity of any
type as a direct or indirect result of the City's actions under this Section.
Section 20.10.170 Damage to Facilities. Unless directly and proximately
caused by the willful, intentional, or malicious acts by the City, the City shall not be
liable for any damage to or loss of any commercial utility, cable, or telecommunications
facilities upon City property or within the public ways of the City as a result of or in
connection with any public works, public improvements, construction, excavation,
grading, filling, or work of any kind on such City property or within the public ways by or
on behalf of the City.
Section 20.10.180 Restoration of Public Ways, Other Ways, City Property
and Public/Private Utility Property.
A. When a grantee, franchisee, lessee, or any person acting on behalf
such persons, does any work in or affecting any public ways, other ways, City property,
or public/private utilities located in the Public Ways, it shall, at its own expense,
promptly remove any obstructions therefrom and restore such ways or property to as
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good a condition as existed before the work was undertaken, unless otherwise directed
by the City.
B. If weather or other conditions do not permit the complete
restoration required by this Section, or other City codes, regulations or policies, the
grantee, franchisee, or lessee shall temporarily restore the affected Public Ways, other
ways, or property. Such temporary restoration shall be at the grantee, franchisee, or
lessee's sole expense and the grantee, franchisee, or lessee shall promptly undertake
and complete the required permanent restoration when the weather or other conditions
no longer prevent such permanent restoration.
C. A grantee, franchisee, lessee or other person acting on behalf of
such persons shall use suitable barricades, flags, flagmen, lights, flares, and other
measures as required for the safety of all members of the general public and to prevent
injury or damage to any person, vehicle, or property by reason of such work in or
affecting such Public Ways, other ways, or property.
D. The Public Works Director shall be responsible for inspection and
final approval of the condition of the public ways, other ways, and City property
following any construction and restoration activities therein. Further, the provisions of
this Section shall survive the expiration, revocation, or termination of a Public Way
Agreement, Franchise, Lease, or other agreement granted pursuant to this Title or
ACC 12.24.
Section 20.10.190 Facilities Maps. Each grantee, franchisee, and lessee shall
provide the City with a map or maps accurately reflecting the horizontal and vertical
location and configuration of all of their commercial utility or telecommunications
facilities within the public ways and upon City property. Each grantee, franchisee, and
lessee shall provide the City with updated maps annually or upon written request by the
City.
Section 20.10.200 Duty to Provide Information. Within 10 working days of a
written request from the City, each grantee, franchisee, or lessee shall furnish the City
with information sufficient to demonstrate:
A. That the grantee, franchisee, or lessee has complied with all
requirements of this Title; and
B. That all sales, utility and/or telecommunications or other taxes or
assessments due the City in connection with the commercial utility, cable, or
telecommunications services and facilities provided by the grantee, franchisee, or
lessee have been properly collected and paid by the grantee, franchisee, or lessee.
All books, records, maps and other documents, maintained by the grantee,
franchisee, or lessee with respect to its utility or telecommunications facilities within the
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public ways and upon City property shall be made available for inspection by the City at
reasonable times and intervals; provided, however, that nothing in this Section shall be
construed to require a grantee, franchisee, or lessee to violate state or federal law
regarding subscriber privacy, nor shall this Section be construed to require a grantee,
franchisee, or lessee to disclose proprietary or confidential information without
adequate safeguards for its confidential or proprietary nature. Such information shall
be held in strict confidence, as allowed by law, by the City and used only for the
purpose stated herein.
Section 20.10.210 Leased Capacity. A grantee, franchisee, or lessee shall
have the right to offer or provide capacity or bandwidth to its customers consistent with
such permit, Franchise, or Lease; provided:
A. The grantee, franchisee, or lessee shall furnish the City with a copy
of any such Lease or agreement between the grantee, franchisee, or lessee and the
customer or sub-lessee or provide to the City's Finance Director sufficient information to
determine whether the lessee or customer is subject to City taxes or assessments; and
5.82 and 5.88
assessments.
The sub-lessee fulfills all requirements of AUBURN CITY CODE
regarding the reporting of all revenues subject to City taxes and
C. Lessee must comply with the City's registration requirements in
AUBURN CITY CODE 5.84.
Section 20.10.220 Insurance. Unless otherwise provided in a Public Way
Agreement, Franchise, or Lease agreement, each grantee, franchisee, or lessee shall,
as a condition of the permit or Public Way Agreements, Franchises, or Leases, secure,
and maintain the following liability insurance policies insuring both the grantee,
franchisee, or lessee and the City, and its elected and appointed officers, officials,
agents, employees, representatives, engineers, consultants, and volunteers as
additional insureds against claims for injuries to persons or damages to property which
may arise from or in connection with the exercise of the rights, privileges, and authority
granted to the grantee, franchisee, or lessee:
A. Comprehensive general liability insurance, written on an
occurrence basis, with limits not less than:
(1) $5,000,000.00 for bodily injury or death to each person;
(2)
$5,000,000.00 for property damage resulting from any one
accident; and
(3) $5,000,000.00 for all other types of liability.
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B. Automobile liability for owned, non-owned and hired vehicles with a
limit of $3,000,000.00 for each person and $3,000,000.00 for each accident;
C. Worker's compensation within statutory limits and employer's
liability insurance with limits of not less than $1,000,000.00;
D. Comprehensive form premises-operations, explosions and collapse
hazard, underground hazard and products completed hazard with limits of not less than
$3,000,000.00;
E. The liability insurance policies required by this Section shall be
maintained by the grantee, franchisee, or lessee throughout the term of the Public
Ways Agreement, Franchise, or Lease, and such other period of time during which the
grantee, franchisee, or lessee is operating without an Public Ways Agreement,
Franchise, or Lease hereunder, or is engaged in the removal of its telecommunications
facilities. The grantee, franchisee, or lessee shall provide an insurance certificate,
together with an endorsement naming the City, and its elected and appointed officers,
officials, agents, employees, representatives, engineers, consultants, and volunteers as
additional insureds, to the City prior to the commencement of any work or installation of
any utility or telecommunications facilities pursuant to said Public Ways Agreement,
Franchise, or Lease. Any deductibles or self-insured retentions must be declared to
and approved in writing by the City prior to the Franchise becoming effective. Payment
of deductibles and self-insured retentions shall be the sole responsibility of the grantee,
franchisee, or lessee. The insurance certificate required by this Section shall contain a
clause stating that coverage shall apply separately to each insured against whom claim
is made or suit is brought, except with respect to the limits of the insurer's liability. The
grantee, franchisee, or lessee's insurance shall be primary insurance as respects the
City, its officers, officials, employees, agents, consultants, and volunteers. Any
insurance maintained by the City, its officers, officials, employees, consultants, agents,
and volunteers shall be in excess of the grantee, franchisee, or lessee's insurance and
shall not contribute with it;
F. In addition to the coverage requirements set forth in this Section,
each such insurance policy shall contain the following endorsement:
"It is hereby understood and agreed that this policy may not be canceled
nor the intention not to renew be stated until 60 days after receipt by the
City, by registered mail, (return receipt requested) of a written notice
addressed to the City Clerk of such intent to cancel or not to renew."
G. Within 30 days after receipt by the City of said notice, and in no
event later than 15 days prior to said cancellation or intent not to renew, the grantee,
franchisee, or lessee shall obtain and furnish to the City replacement insurance policies
meeting the requirements of this Section. Any lapse in the required insurance coverage
shall be cause for termination of any Public Ways Agreement, Franchise, or Lease.
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Section 20.10.230 General Indemnification. No Public Way Agreement,
Franchise, or Lease shall be deemed to be granted under this Title unless it includes an
indemnity clause substantially conforming to the following:
The grantee, franchisee, or lessee hereby releases, covenants not to
bring suit and agrees to indemnify, defend and hold harmless the City, its
elected and appointed officials, officers, employees, agents,
representatives, engineers, and consultants from any and all claims,
costs, judgments, awards, or liability to any person, including claims by
the grantee, franchisee, or lessee's own employees to which the grantee,
franchisee, or lessee might otherwise be immune under Title 51 RCW,
arising from injury or death of any person or damage to property of which
the negligent acts or omissions of the grantee, franchisee, or lessee, its
agents, servants, officers, or employees in performing under this Public
Ways Agreement, Franchise, or Lease are the proximate cause. The
grantee, franchisee, or lessee further releases, covenants not to bring suit
and agrees to indemnify, defend and hold harmless the City, its elected
and appointed officials, officers, employees, agents, representatives,
engineers, and consultants from any and all claims, costs, judgments,
awards, or liability to any person including claims by the grantee,
franchisee, or lessee's own employees, including those claims to which
the grantee, franchisee, or lessee might otherwise have immunity under
Title 51 RCW, arising against the City solely by virtue of the City's
ownership or control of the rights-of-way or other public properties, by
virtue of the grantee, franchisee, or lessee's exercise of the rights granted
herein, or by virtue of the City's permitting the grantee, franchisee, or
lessee's use of the City's rights-of-way or other public property, based
upon the City's inspection or lack of inspection of work performed by the
grantee, franchisee, or lessee, its agents and servants, officers or
employees in connection with work authorized on the City's property or
property over which the City has control, pursuant to this Public Ways
Agreement, Franchise, or Lease, or pursuant to any other permit or
approval issued in connection with this Public Ways Agreement,
Franchise, or Lease. This covenant of indemnification shall include, but
not be limited by this reference, claims against the City arising as a result
of the negligent acts or omissions of the grantee, franchisee, or lessee, its
agents, servants, officers, or employees in barricading, instituting trench
safety systems or providing other adequate warnings of any excavation,
construction, or work in any public right of way or other public place in
performance of work or services permitted under this Public Ways
Agreement, Franchise, or Lease.
Inspection or acceptance by the City of any work performed by the
grantee, franchisee, or lessee at the time of completion of construction
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shall not be grounds for avoidance of any of these covenants of
indemnification. Said indemnification obligations shall extend to claims
which are not reduced to a suit and any claims which may be
compromised prior to the culmination of any litigation or the institution of
any litigation.
In the event that the grantee, franchisee, or lessee refuses the tender of
defense in any suit or any claim, said tender having been made pursuant
to the indemnification clauses contained herein, and said refusal is
subsequently determined by a court having jurisdiction (or such other
tribunal that the parties shall agree to decide the matter), to have been a
wrongful refusal on the part of the grantee, franchisee, or lessee, then the
grantee, franchisee, or lessee shall pay all of the City's costs for defense
of the action, including all reasonable expert witness fees and reasonable
attorneys' fees and the reasonable costs of the City, including reasonable
attorneys' fees of recovering under this indemnification clause.
In the event of liability for damages arising out of bodily injury to persons
or damages to property caused by or resulting from the concurrent
negligence of the grantee, franchisee, or lessee, and the City, its officers,
employees and agents, the grantee, franchisee, or lessee's liability
hereunder shall be only to the extent of the grantee, franchisee, or
lessee's negligence. It is further specifically and expressly understood
that the indemnification provided herein constitutes the grantee,
franchisee, or lessee's waiver of immunity under Title 51 RCW, solely for
the purposes of this indemnification. This waiver has been mutually
negotiated by the parties.
The provisions of this Section shall survive the expiration or termination of
any Public Way Agreement, Franchise, or Lease agreement.
Notwithstanding any other provisions of this Title, the grantee, franchisee,
or lessee assumes the risk of damage to its facilities located in the City's
public ways, rights-of-way, easements, and property from activities
conducted by the City, its officers, agents, employees, and contractors.
The grantee, franchisee, or lessee releases and waives any and all claims
against the City, its officers, agents, employees, or contractors for
damage to or destruction of the grantee, franchisee, or lessee's facilities
caused by or arising out of activities conducted by the City, its officers,
agents, employees, and contractors, in the public ways, rights-of-way,
easements, or property subject to this Public Ways Agreement,
Franchise, or Lease, except to the extent any such damage or destruction
is caused by or arises from the sole negligence or any willful or malicious
action on the part of the City, its officers, agents, employees, or
contractors. The grantee, franchisee, or lessee further agrees to
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indemnify, hold harmless and defend the City against any claims for
damages, including, but not limited to, business interruption damages and
lost profits, brought by or under users of the grantee, franchisee, or
lessee's facilities as the result of any interruption of service due to
damage or destruction of the user's facilities caused by or arising out of
activities conducted by the City, its officers, agents, employees, or
contractors, except to the extent any such damage or destruction is
caused by or arises from the sole negligence or any willful or malicious
actions on the part of the City, its officers, agents, employees, or
contractors.
Section 20.10.240 Performance and Construction Surety. Before a Public
Way Agreement, Franchise, or Lease granted pursuant to this Title is effective, and as
necessary thereafter, the grantee, franchisee, or lessee shall provide and deposit such
moneys, bonds, letters of credit, or other instruments in form and substance acceptable
to the City as may be required by this Title or by an applicable Public Way Agreement,
Franchise, or Lease agreement. All performance bonds for grantees, franchisees, and
lessees shall satisfy the minimum standards established by the Public Works
Department at the time of the grantees', franchisees', and lessees' application.
(Construction Bond Section(s) of Standard Specifications for Road, Bridge, and
Municipal Construction for Washington State Department of Transportation and
American Public Works Association).
Construction bonds sureties shall be provided as required by Washington State laws.
Section 20.10.250 Security Options. In order to secure the conditions agreed
to in any agreement negotiated under this Title, for the full term of such agreements,
each grantee, franchisee, or lessee shall establish a permanent security bond,
assignment of funds, or an unconditional letter of credit from a Washington State bank
with the City by either providing the City Engineer a standing warranty bond or by
depositing the amount of funds as follows in an Washington State Bank utilizing the
City's standard assignment form, or by provision of the letter of credit. The amount of
security shall be 10% of the City Engineer's estimate of the performance bond amount
(Section 20.10.260) based upon the total scope of work proposed within the Public
Ways, or $50,000 whichever is less, or such lesser amount determined by the Public
Works Director to be sufficient. The security shall be maintained at the sole expense of
the grantee, franchisee, or lessee so long as any of the grantee, franchisee, or lessee's
utility, cable or telecommunications facilities are located within the public ways of the
City or upon City property and until released by the City. In the event a security
involves a bank, the grantee, franchisee, or lessee is responsible for negotiating any
interest that may accrue to the account during the duration of effect. Should the
agreement being secured be terminated, the Finance Director will coordinate with other
departments and determine if any portion of the security may be released by the City.
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A. The security shall secure the full and complete performance of the
requirements of this Title, including any costs, expenses, damages, or loss the City
pays or incurs, including civil penalties, because of any failure attributable to the
grantee, franchisee, or lessee to comply with any applicable legal requirements
including, but not limited to, the codes, ordinances, rules, regulations, or permits of the
City.
B. Before the City executes on the security bond or any sums are
withdrawn from the security fund, the City shall give written notice to the grantee,
franchisee, or lessee:
(1)
Describing the act, default or failure to be remedied, or the
damages, costs or expenses which the City has incurred by
reason of grantee, franchisee, or lessee's act, default, or
failure;
(2)
Providing a reasonable opportunity for grantee, franchisee,
or lessee to first remedy the existing or ongoing default or
failure, if applicable;
(3)
Providing a reasonable opportunity for grantee, franchisee,
or lessee to pay any moneys due the City before the City
executes the bond or withdraws the amount thereof from the
security fund, if applicable; and
(4)
That the grantee, franchisee, or lessee will be given an
opportunity to review the act, default or failure described in
the notice with the City or his or her designee.
C. Grantees, franchisees and lessees shall replenish the security
bond or fund within 14 calendar days after written notice from the City that there is a
deficiency in the amount of the bond or fund.
Section 20.10.260 Performance Bond. All performance bonds provided in
accordance with this Title shall comply with the minimum standards in AUBURN CITY
CODE 12.24.
Section 20.10.270 Coordination of Construction Activities. Section
20.10.100 notwithstanding, all grantees, franchisees and lessees, are required to
cooperate with the City and with each other.
A. By November 15th of each year, grantees, franchisees and lessees
shall provide the City with a schedule of their proposed construction activities which
may affect the public ways in any manner.
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B. Each grantee, franchisee and lessee shall meet with the City, other
grantees and franchisees and users of the public ways annually or as determined by
the City to schedule and coordinate construction which may affect the public ways in
any manner.
C. All construction locations, activities and schedules shall be
coordinated, as required by the City Public Works Director, to minimize public
inconvenience, disruption or damages.
D. Each grantee, franchisee and lessee shall be available to City staff
employees of a City department having jurisdiction over their respective activities 24
hours a day, 7 days a week, regarding problems or complaints resulting from the
attachment, installation, operation, use, maintenance, or removal of commemial utility
or telecommunication system facilities. The City must be able to contact by telephone
the network control center of each grantee, franchisee and lessee. A telephone
number at which an employee can be reached twenty-four (24) hours a day, seven (7)
days a week regarding such problems or complaints must be provided by each grantee,
franchisee and lessee before any Public Way Agreement, Franchise, or Lease is
effective.
Section 20.10.280 Assignments or Transfers of Public Way Agreements,
Franchises, or Leases. Ownership or control of any commercial utility system,
telecommunications system, registration, Public Way Agreement, Franchise, or Lease,
subject to this Title, may not, directly or indirectly, be transferred, assigned or disposed
of by sale, lease, merger, consolidation or other act of the grantee, franchisee, or
lessee, by operation of law or otherwise, without the prior written consent of the City,
which consent shall not be unreasonably withheld or delayed, except as expressed by
ordinance and then only on such reasonable conditions as may be prescribed therein.
A. No Public Way Agreement, Franchise or Lease, subject to this
Title, shall be assigned or transferred in any manner within 12 months after the initial
City Council approval of the respective agreements, unless otherwise provided in the
specific agreement concerned.
B. No Public Way Agreement, , Franchise, or Lease, commercial
utility system, telecommunication system or integral part of a telecommunication
system, subject to this Title, shall be assigned or transferred before construction of the
such systems has been completed to the City's satisfaction without prior written
approval of the City Engineer.
C. The grantee, franchisee, or lessee and the proposed assignee or
transferee of the Public Way Agreement, Franchise, or Lease or telecommunication
system shall provide and certify the following information to the City not less than 150
calendar days prior to the proposed date of transfer:
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(1)
Complete information setting forth the nature, terms and
conditions of the proposed transfer or assignment;
(2)
All information required by a Public Ways Agreement,
Franchise, or Lease applicant pursuant to this Title with
respect to the proposed transferee or assignee;
(3) Any other information reasonably required by the City; and
(4) A non-refundable application fee in the amount of $75.00
D. No transfer shall be approved unless the assignee or transferee
has the legal, technical, financial, and other requisite qualifications, as defined in ACC
20.04.040(1) and 20.04.040(9), to own, hold and operate the utility, cable, or
telecommunications system pursuant to this Title and can comply with the requirements
of the Public Ways Agreement, Franchise, or Lease.
E. Unless otherwise provided in an Public Ways Agreement,
Franchise, or Lease agreement, the grantee, franchisee, or lessee shall reimburse the
City for all direct and indirect costs and expenses reasonably incurred by the City in
considering a request to transfer or assign a Public Ways Agreement, Franchise, or
Lease. No approval shall be deemed approved until all such costs and expenses have
been paid.
F. Any transfer or assignment of a Public Way Agreement, Franchise,
Lease, telecommunication system, or integral part of a utility or telecommunication
system without prior written approval of the City under this Section or pursuant to an
Public Ways Agreement, Franchise, or Lease agreement shall be void and is cause for
termination of the Public Way Agreement, Franchise, or Lease.
Section 20.10.290 Transactions Affecting Control of Public Way
Agreements, Franchises, or Leases. Any transactions which singularly or
collectively result in a change of 50% or more of the ownership or working control of
any grantee, franchisee, or lessee of the ownership or working control of a utility, cable,
or telecommunications system, of the ownership or working control of affiliated entities
having ownership or working control of the grantee, franchisee, or lessee or of a
telecommunications system, or of control of the capacity or bandwidth of the grantee,
franchisee, or lessee's utility, cable, or telecommunication system, facilities or
substantial parts thereof, shall be considered an assignment or transfer requiring City
approval pursuant to Section 20.10.280. Transactions between affiliated entities are
not exempt from the required City approval. A grantee, franchisee, or lessee shall
promptly notify the City in writing prior to any proposed change in, or transfer of, or
acquisition by any other party of control of a grantee, franchisee, or lessee's company.
Every change, transfer, or acquisition of control of a grantee, franchisee, or lessee's
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company shall cause a review of the proposed transfer. In the event that the City
Council adopts a resolution or other appropriate order opposing such change, transfer
or acquisition of control has been effected, the City may terminate the Public Ways
Agreement, Franchise, or Lease. City approval shall not be required for mortgaging
purposes or if said transfer is from a grantee, franchisee, or lessee to another person or
entity controlling, controlled by, or under common control with a grantee, franchisee, or
lessee.
Section 20.10.300 Revocation or Termination of Public Way Agreements,
Franchises, or Leases. A Public Way Agreement, Franchise, or Lease granted by the
City to use or occupy public ways of the City or City property may be terminated or
revoked for the following reasons:
A. Construction or operation in the City or in the public ways of the
City or upon City proper~y without a Public Way Agreement, Franchise, or Lease;
B. Construction or operation at an unauthorized location;
C. Unauthorized substantial transfer of control of a grantee,
franchisee, or lessee;
orLease;
D. Unauthorized assignment of a Public Ways Agreement, Franchise,
E. Unauthorized sale, assignment or transfer of a grantee, franchisee,
or lessee's Public Ways Agreement, Franchise, Lease, assets, or a substantial interest
therein;
F. Misrepresentation or lack of candor by or on behalf of a grantee,
franchisee, or lessee in any application or written or oral statement upon which the City
relies in making the decision to approve, review or amend any Public Way Agreement,
Franchise, or Lease pursuant to this Title;
G. Abandonment of cable or telecommunications facilities in the public
ways or upon City property;
H. Failure to relocate or remove facilities as required in this Title;
I. Failure to pay taxes, compensation, fees, assessments, or costs
when and as due to the City;
J. Insolvency or bankruptcy of the grantee, franchisee, or lessee;
K. Violation of any material provision of this Title; and
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L. Violation of the material terms of an Public Ways Agreement,
Franchise, or Lease agreement.
Section 20.10.310 Notice and Duty to Cure. In the event that the City
believes that grounds exist for termination or revocation of an Public Ways Agreement,
Franchise, or Lease, the grantee, franchisee, or lessee shall be given written notice of
the apparent violation or noncompliance, providing a short and concise statement of the
nature and general facts of the violation or noncompliance, and providing the grantee,
franchisee, or lessee a reasonable period of time not exceeding 30 days to correct the
violation or furnish evidence as to:
A. That corrective action has been, or is being actively and
expeditiously pursued, to remedy the violation or noncompliance; or
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.
Section 20.10.320 Public Hearing. In the event that a grantee, franchisee, or
lessee fails to respond to the notice described in Section 20.10.310 pursuant to the
procedures set forth therein, or in the event that the alleged violation is not remedied
within the prescribed period of time after notification of the alleged violation pursuant to
Section 20.10.310, the City Council shall schedule a public hearing to investigate the
violation. Such public hearing shall be held at the next regularly scheduled hearing of
the City Council which is scheduled at a time which is no less than five (5) business
days therefrom. The City shall notify the grantee, franchisee, or lessee of the time and
place of such public hearing and provide the grantee, franchisee, or lessee with an
opportunity to be heard.
Section 20.10.330 Standards for Revocation or Lesser Sanctions. If the
City Council determines that a grantee, franchisee, or lessee willfully violated or failed
to comply with any of the provisions of this Title or any provision of a Public Ways
Agreement, Franchise, or Lease granted under this Title, or through willful misconduct
or gross negligence failed to heed or comply with any notice given the grantee,
franchisee, or lessee by the City under the provisions of this Title, then the grantee,
franchisee, or lessee shall, at the election of the City Council, forfeit all rights conferred
under the Public Ways Agreement, Franchise, or Lease, and the Public Works
Agreement, Franchise, or Lease may be revoked, terminated, or annulled by the City
Council. The City Council may elect, in lieu of revocation, termination, or annulment,
and without any prejudice to any of its other legal rights and remedies, to pursue other
remedies, including obtaining an order from the Superior Court having jurisdiction
compelling the grantee, franchisee, or lessee to comply with the provisions of this Title
and any Public Ways Agreement, Franchise, or Lease granted hereunder, and to
recover reasonable and documented damages and costs incurred by the City by reason
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of the grantee, franchisee, or lessee's failure to comply. The City Council shall utilize,
but is not limited to, the following factors in analyzing the nature, circumstances, extent,
and gravity of any violation(s) in making its determination under this Section:
A. Whether the misconduct was egregious;
Whether substantial harm resulted;
C. Whether the violation was intentional;
requirements;
Whether there is a history of prior violations of the same or other
E. Whether there is a history of overall compliance;
F. Whether the violation was voluntarily disclosed, admitted or cured.
Section 20.10.340 Civil Penalties.
A. Any person, and the officers, directors, managing agents, or partners of
any corporation, firm, partnership or other organization or business violating or failing to
comply with any of the provisions of this Title shall be subject to a penalty in an amount
not less than $100.00 nor mere than $1,000.00 per day for each violation from the date
of each violation until compliance is achieved.
B. In addition to any penalty which may be imposed by the City Council, any
person violating or failing to comply with any of the provisions of this Title shall be liable
for all damage to public or private property arising from such violation, including the cost
of restoring the affected area to its condition prior to the violation.
C. The violator may show the City Council as full or partial mitigation:
That the violation giving rise to the action was caused by the willful
act, or neglect, or abuse of another; or
That correction of the violation was commenced promptly upon
receipt of the notice thereof, but that full compliance
within the time specified was prevented by inability to
obtain necessary materials or labor, inability to gain
access to the subject structure, or other condition or
circumstance beyond the control of the violator.
D. The penalties which may be imposed by this Section shall be collected by
civil action brought by the City if not paid timely after penalty assessment by the City
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Council. The Public Works Director or designee shall notify the Finance Director in
writing of the name of any person subject to the penalty, and the Finance Director shall
take appropriate action to collect the penalty.
Section 20.10.350. Enforcement. Subject to applicable federal and state law,
in the event the City Council, after such public hearing, determines that a grantee,
franchisee, or lessee is in default of any provision of a Public Way Agreement,
Franchise, or Lease, it may:
A. Require foreclosure on all or any part of any security provided under
this Title, or a specific Public Way Agreement, Franchise, or Lease, if any,
including without limitation, any bonds or other surety; provided, however, the
foreclosure shall only be in such a manner and in such amount as the City
reasonably determines is necessary to remedy the default;
B. Call for commencement of an action at law for monetary damages or
other equitable relief;
C. After the expiration of said 30-day period to cure violation (Section
20.10.310), the City may be directed to act to remedy the violation and charge
the reasonable and documented costs and expenses of such action to the
grantee, franchisee, or lessee.
D. In the case of a material breach of the Public Way Agreement,
Franchise, or Lease, declare the Public Way Agreement, Franchise, or Lease to
be terminated or revoked; or
E. Seek specific performance of any provision, which reasonably lends
itself to such remedy, as an alternative to damages.
F. Grantees, Franchisees, or Lessees shall not be relieved of any
obligations to comply promptly with any provision of a Public Way Agreement,
Franchise, or Lease by reason of any failure of the City to promptly enforce compliance.
G. In addition to other remedies provided herein, if a Grantee,
Franchisee, or Lessee is not in compliance with requirements of this Title, and if a good
faith dispute does not exist concerning such compliance, the City may place a
moratorium on issuance of any pending permits until compliance is achieved.
H. A Grantee, Franchisee, or Lessee shall not be held in default or
noncompliance with the provisions of a Public Way Agreement, Franchise, or Lease nor
suffer any enforcement or penalty relating thereto, where such noncompliance or
alleged defaults are caused by strikes, acts of God, power outages, or other events
reasonably beyond its ability to control.
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I, Assess civil penalties pursuant to 20.10.340.
J. The City may seek legal or equitable relief to enjoin any acts or
practices and abate any condition which constitutes or will constitute a violation of the
applicable provisions of this Title when civil penalties are inadequate to effect
compliance.
K. In addition to the penalties set forth in this Section, violation of the
terms of this Title may also result in the revocation or termination of any Public Ways
Agreement, Franchise, approval, Lease, or permit issued or granted hereunder, as set
forth in Sections 20.10.300 through 20.10.340 of this Title.
Section 20.10.360 Other Remedies. Nothing in this Title shall be construed
as limiting any judicial remedies that the City may have, at law or in equity, for
enforcement of this Title.
Section 20.10.370. Venue of Any Court Action. All Public Way Agreements,
Franchises, and Leases subject to this Title shall be governed and construed by and in
accordance with the laws of the State of Washington. In the event that suit is brought
by a party to a Public Way Agreement, Franchise, or Lease subject to this Title, the
parties agree that jurisdiction of such action shall be vested exclusively in the King
County Superior Court for the State of Washington, or in the United States District Court
for the Western District of Washington located in Seattle, Washington.
Section 20.10.380 Action by the FCC. In the event the FCC promulgates
more stringent notice requirements, technical standards, consumer protection or
consumer services requirements than are contained in agreements or franchises
subject to this Title, those more stringent requirements shall prevail. The City shall give
reasonable written notice when, in their determination, that has occurred. Grantees,
Franchisees, and Lessees shall retain and not waive any or ail rights and privileges as
afforded either under existing contracts or agreements or pursuant to federal law or
FCC regulations to complain and/or appeal such a determination.
Section 20.10.390 Incorporation By Reference. The provisions of this
Chapter shall be incorporated by reference in any Public Ways Agreement, Franchise,
or Lease approved hereunder. The provisions of this chapter shall be incorporated by
reference in any proposal submitted and accepted by the City in the applicable Public
Ways Agreement, Franchise, or Lease. However, in the event of any conflict between
the proposal, this Chapter, and the Public Ways Agreement, Franchise, or Lease, the
Public Ways Agreement, Franchise, or Lease shall be the prevailing document.
Section 20.10.400 Notice of Entry on Private Property. If directed by the
City, a Grantee, Franchisee, or Lessee shall, at least 24 hours prior to entering private
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property or streets or public easements adjacent to or on such private property to
perform new construction or reconstruction, provide a notice indicating the nature and
location of the work to be performed. The notice shall be physically posted, at no
expense to the City or private property owner or resident, upon the affected property by
the grantee, franchisee, or lessee. A door hanger may be used to comply with the
notice and posting requirements of this Section. A grantee, franchisee, or lessee shall
make a good faith effort to comply with the property owner/resident's preferences, if
any, on location or placement of underground installations (excluding aerial cable lines
utilizing existing poles and existing cable paths), consistent with sound engineering
practices. Provided, however, that nothing in this Title shall permit a grantee or
franchisee to unlawfully enter or construct improvements upon the property or premises
of another.
Section 20.10.410 Safety Requirements. A grantee, franchisee, or lessee, in
accordance with applicable federal, state, and local safety requirements shall, at all
times, employ ordinary care and shall install and maintain and use commonly accepted
methods and devices for preventing failures and accidents which are likely to cause
damage, injury, or nuisance to the public and/or workers. All structures and all lines,
equipment and connections in, over, under, and upon the streets, sidewalks, alleys, and
public ways or places of a permit, Public Ways Agreement, Franchise, or Lease area,
wherever situated or located, shall at all times be kept and maintained in a safe,
suitable condition, and in good order and repair. The City reserves the general right to
see that the Telecommunication systems of a grantee, franchisee, or lessee are
constructed and maintained in a safe condition. If a violation of the National Electrical
Safety Code or other applicable regulation is found to exist by the City, the City will,
after discussions with a grantee, franchisee, or lessee, establish a reasonable time
frame for a grantee, franchisee, or lessee to make necessary repairs. If the repairs are
not made within the established time frame, the City may make the repairs itself or have
them made and collect all reasonable costs thereof from a grantee, franchisee, or
lessee.
Section 20.10.420 Most Favored Community. In the event that a grantee,
franchisee, or lessee enters into any agreement, Franchise or other understanding with
any other city, town or county in the State of Washington which provides terms or
conditions more favorable to the city, town or county than those provided in its
agreement with the City, such as, but not limited to, free or reduced fee hookups,
access or service, the City shall be entitled to request at the City's option, and the
grantee, franchisee, or lessee in question shall be required to execute, an amendment
to its agreement which incorporates the more favorable terms and conditions at the
grantee's, franchisee's, or lessee's lowest comparable rate applicable to any
government body or municipality in the State of Washington. (See 20.06.190(M) "Best
Rates").
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Section 20.10.430 Compliance With Zoning Standards. All applications for
leases, franchises, and Public Way Agreements under this Title will comply with the City
Zoning regulations and siting standards in Title 18, AUBURN CITY CODE.
Section 20.10.440 Unfunded Mandate. The City intends that no federal or
state requirement to promote the deregulation of utilities or telecommunications shall
become an unfunded mandate requiring funding support from the City over and above
it's routine operations and maintenance budget to maintain the public ways. Therefore,
except as expressly provided to the contrary, all costs incurred by a Grantee,
Franchisee, or Lessee in complying with the terms and conditions of any agreement
subject to this Title or any applicable laws, ordinances, codes, rules, regulations and/or
orders or any action thereunder shall be the sole responsibility of the respective
Grantee, Franchisee, or Lessee and shall not be the responsibility of or charged to the
City.
Section 20.10.450 Care of Trees Along Streets Upon prior written approval of
the City and in accordance with City ordinances, any Grantee, Franchisee, or Lessee
shall have the authority to trim trees upon and overhanging streets, public ways and
places in the Franchise area so as to prevent the branches of such trees from coming
in physical contact with the facilities of the respective Grantee, Franchisee, or Lessee.
The Grantee, Franchisee, or Lessee shall be responsible for debris removal from such
activities. If such debris is not removed within twenty-four (24) hours, the City may, at
its sole discretion, remove such debris and charge the Grantee, Franchisee, or Lessee
for the cost thereof. This section does not, in any instance, grant automatic authority to
clear vegetation for purposes of providing a clear path for radio signals. Any such
general vegetation clearing will require a City land clearing permit.
Section 20.10.460 Use of Utility Poles and Facilities of Others
Grantees and Franchisees may seek to contract with the City or any appropriate board
or agency thereof or with the holder or owner of any utility Franchise in the City for the
use, rental or lease of its or their poles and other structures and facilities for the
purpose of extending, carrying or laying telecommunications facilities, electronic
conductors and other facilities and appurtenances necessary or desirable in conjunction
with the operation of its Telecommunication system. The City agrees that any public
utility owning or controlling such poles or other structures or facilities may, without
amendment to its Franchise, allow, and is encouraged to allow, Grantees and
Franchisees to make such use thereof pursuant to any agreement reached between the
affected parties. City-owned poles are limited to street light and traffic signal poles
which generally are not intended for use by others. The City reserves the right to
determine on a case by case basis that particular circumstances require that a certain
City-owned pole is not appropriate for use. No Grantee or Franchisee will utilize any
City-owned poles prior to approval by the City Engineer. Any compensation for uses of
City-owned poles will be based upon the prevailing market rates for similar uses in the
region.
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Section 20.10.470 Use of Poles and Facilities by City. With respect to poles
and trenches which are facilities and which are (1) wholly owned by a Franchisee or
Grantee and (2) within the Franchise area, the City, subject to Franchisee or Grantee's
prior written consent, which may not be unreasonably withheld, may install and maintain
City-owned overhead facilities upon such poles, and conduits in open trenches, for
police, fire, illumination, and other non-commercial communications purposes, subject
to the following:
A. Such installation and maintenance shall be completed at the City'S
expense;
B. The Franchisee or Grantee shall have no obligation under the
indemnification provisions of this Franchise or Public Way Agreement for the
installation or maintenance of such City-owned facilities or conduits.
C. The Franchisee or Grantee shall not charge the City a fee for the
use of such poles or trenches in accordance with this section as a means of
deriving revenue therefrom; provided, however, nothing herein shall require the
Franchisee or Grantee to bear any cost or expense in connection with such
installation and maintenance of City-owned facilities or conduits, nor shall such
City installation delay or adversely effect Franchisee's or Grantee's construction
schedule.
D. In no case shall the City attach to or come into contact with Grantee's
or Franchisee's equipment.
Section 20.10.480 Administration. The Public Works Director or his/her
designee shall administer all Public Way Agreements and Franchises subject to this
Title, and the Finance Director or his/her designee shall administer all leases subject to
this Title.
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