HomeMy WebLinkAbout5333ORDINANCE NO. 5 3 3 3
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, AUTHORIZING THE MAYOR AND CITY CLERK TO
EXECUTE A PUBLIC WAY AGREEMENT BETWEEN THE CITY AND LEVEL 3
COMMUNICATIONS, L.L.C.
WHEREAS, LEVEL 3 COMMUNICATIONS L.L.C. has made application
for a non-exclusive Public Way Agreement and the CITY has determined that
the application is complete; and
WHEREAS, it has been determined that LEVEL 3 COMMUNICATIONS
L.L.C. has the financial, technical and legal ability to provide the services
proposed in its application; and
WHEREAS, there is capacity in the City's Public Ways, as defined in the
Public Way Agreement, to accommodate LEVEL 3 COMMUNICATIONS'
proposed facilities; and
WHEREAS, the damage or disruption, if any, of public or private
facilities, improvements, service, travel or landscaping, including remedies, are
addressed in the Public Way Agreement to the satisfaction of the CITY; and
WHEREAS, the cost and disruption of construction within the Public
Ways, as defined in the Public Way Agreement, will be minimized; and
WHEREAS, permission to use the Public Ways, as provided in the Public
Way Agreement, is in the public interest and the effect, if any, on the public
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Ordinance No. 5333
12/28/99
Page 1
health, safety and welfare is minimized and addressed in the Public Way
Agreement; and
WHEREAS, the service LEVEL 3 COMMUNICATIONS L.L.C. will
provide to the region is in the public interest; and
WHEREAS, the Public Way Agreement requires that applicable federal,
state, and City of Auburn telecommunication laws, ordinances, regulations and
policies will be followed during the term of the Public Way Agreement; and
WHEREAS, LEVEL 3 COMMUNICATIONS L.L.C. warrants that there
are no plans or intentions to utilize the proposed Telecommunication System to
provide Local Service, and recognizes the necessity to obtain a Franchise from
the City prior to any offering of Local Service;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, DO ORDAIN AS FOLLOWS:
Section 1. Purpose. The Mayor and City Clerk of the City of Auburn are
hereby authorized to execute a Public Way Agreement between the City and
LEVEL 3 COMMUNICATIONS L.L.C. A copy of said Agreement is attached
hereto, designated as Exhibit "A" and incorporated by reference in this
Ordinance.
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Ordinance No. 5333
12/28/99
Page 2
Section 2. Implementation. The Mayor is hereby authorized to
implement such administrative procedures as may be necessary to carry out
the directives of this legislation.
Section 3. Constitutionality or Invalidity. If any section, subsection,
clause or phrase of this Ordinance is for any reason held to be invalid or
unconstitutional such invalidity or unconstitutionality shall not affect the validity
or constitutionality of the remaining portions of this Ordinance, as it is being
hereby expressly declared that this Ordinance and each section, subsection,
sentence, clause and phrase hereof would have been prepared, proposed
adopted and approved and ratified irrespective of the fact that any one or more
section, subsection, sentence, clause or phrase be declared invalid or
unconstitutional.
Section 4. Effective Date. This Ordinance shall take effect and be in
force five days from and after its passage, approval and publication as provided
by law.
INTRODUCED: January 3, 2000
PASSED: January 3, 2000
APPROVED: January 2000
C-"� lf),
CHARLES A. GOTH
MAYOR
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Ordinance No. 5333
12/28/99
Page 3
ATTEST:
Dani Ile E. Daskam,
City Clerk
APPROVED AS TO FORM:
Michael J. Reynolds,
City Attorney
Published: 17ko
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Ordinance No. 5333
12/28/99
Page 4
o,-rg; V1 uQ
CITY OF AUBURN, WASHINGTON
PUBLIC WAY AGREEMENT LEVEL 3 COMMUNICATIONS
WHEREAS, LEVEL 3 COMMUNICATIONS, L.L.C. has applied to the CITY OF
AUBURN for a non-exclusive Public Way Agreement for the installation, operation
and maintenance of a Fiber -Optics Telecommunications System trunk through, in,
on, upon, along and/or across certain Public Ways within the CITY OF AUBURN,
and
WHEREAS, LEVEL 3 COMMUNICATIONS, L.L.C. warrants by acceptance of
this Public Ways Agreement that Local Service to the Auburn area, requiring a
Franchise Agreement, is not contemplated at this time.
NOW, THEREFORE, the CITY OF AUBURN, hereinafter referred to as
"CITY" and LEVEL 3 COMMUNICATIONS, L.L.C. hereinafter referred to as
"GRANTEE" agree as follows:
PUBLIC WAYS AGREEMENT WITH LEVEL 3 COMMUNICATIONS, L.L.C.
TABLE OF CONTENTS
PAGE NO.
Public Ways Agreement. 1-14
Attachment 1, Location and Identification of Rights Granted 15
Attachment 2, Terms and Conditions 16-18
Attachment 3, Title 20 Auburn City Code 19-80
1
PUBLIC WAYS AGREEMENT
SECTION 1.
The CITY of Auburn (hereinafter called the "CITY") hereby grants to LEVEL 3
COMMUNICATIONS, L.L.C. (hereinafter called "GRANTEE"), the right to use that
CITY right-of-way hereinafter described in Attachment 1, which is by this reference
incorporated herein, to construct, replace, maintain and use equipment and
Facilities for an underground fiber optic cable system under the specific terms and
conditions contained herein for an initial term of five (5) years, and as provided in
Attachment 2 entitled "Terms and Conditions", which is by this reference
incorporated herein, and all applicable federal, state and local laws, including but
not limited to, Chapter 5.84 ACC, entitled "Registration of Telecommunications
Carriers, Operators, Providers, and Other Commercial Utilities", Title 12 ACC,
entitled "Streets, Sidewalks, and Public Works", Chapter 13.32 ACC, entitled
"Underground Wiring Regulations", Title 18 ACC, entitled "Zoning", Title 20 ACC
entitled "Telecommunications and Other Commercial Utilities", and any other
ordinances, codes, rules, regulations and orders as they apply. LEVEL 3
COMMUNICATIONS, L.L.C. shall at all times be subject to the exercise of the CITY'S
police powers. Title 20 ACC entitled "Telecommunications and Other Commercial
Utilities" and any future amendments is incorporated herein by this reference.
Attached hereto as Attachment 3 is a courtesy copy of Title 20.
SECTION 2. DEFINITIONS.
"Affiliate" means a person that (directly or indirectly) owns or controls, is owned or
controlled by, or is under common ownership or control with another person.
"Conduit" means the duct or protective enclosure of the fiber optic cable system.
"Conflict" means a future planned CITY street or utility capital improvement
requiring the CITY's use of the same physical space occupied by GRANTEE'S
Conduit, and relocation of said Conduit is a pre -requisite to construction of the
CITY's planned improvement.
"Emergency" means a condition of imminent danger to the health, safety and
welfare of Persons or property located within the CITY including, without
limitation, damage to Persons or property from natural consequences, such as
storms, earthquakes, riots or wars.
"Excess Capacity" means the volume or capacity in any existing or future duct,
Conduit, manhole, hand -hole, or other utility Facility within the public way that is
or will be available for use for additional telecommunications facilities.
Exhibit "A", Ordinance No. 5333
2
"Facility" means the plant, equipment, and property, including but not limited to,
cables, wires, Conduits, ducts, pedestals, hubs, antennae, electronics, and other
appurtenances used or to be used for the purpose of offering telecommunications
services.
"Local Service" means that local exchange service would be provided to customers
(business and/or residential) within the corporate CITY limits of Auburn.
SECTION 3. INSTALLATION OF EQUIPMENT.
All Facilities shall be installed and maintained at such places and locations as
shall least interfere with existing utilities and franchise rights, and with the free
passage of traffic and in accordance with federal law and the laws of the State of
Washington and Ordinances and Standards of the CITY regulating such
construction. This includes the terms and conditions of any permit required and
issued for construction of such Facilities. GRANTEE warrants as a condition of this
Agreement that any equipment, Facilities and system installed constitutes a trunk -
through system only which will not directly and separately service local businesses
or residents in the CITY.
Prior to selling, leasing, or otherwise transferring any Excess Capacity to any
other person who intends to offer Local Service, GRANTEE shall provide written
notice to the CITY, at least 30 days prior to such transfer, of its intent to make such a
transfer. In addition, GRANTEE shall not complete such lease, sale or transfer of
Excess Capacity, until the transferee has obtained a Franchise from the CITY. As
referenced in this section, Excess Capacity means the actual physical plant of the
GRANTEE. Therefore notification is not required to sell, lease or transfer separate
signals or portions of bandwidth within the physical plant itself.
SECTION 4. RELOCATION OF EQUIPMENT.
Emergencies: Whenever the CITY determines it is necessary that any
Facilities of GRANTEE be removed or relocated to repair an adjacent CITY utility or
to protect and assure the public safety during an Emergency event, GRANTEE shall,
within 24 hours of written notice from the CITY, remove or relocate such Facilities
as directed to an area within the CITY public way mutually agreed upon, at no cost
to the CITY.
Routine: Whenever the CITY determines it necessary that any Facilities of
GRANTEE be moved or relocated to accommodate the improvement by or on
behalf of the CITY of any areas, including, but not limited to, the grading or
widening of any street within the public right-of-way defined herein, GRANTEE
shall, within 30 days of written notice from the CITY, move or relocate such
Facilities as directed, to an area within CITY right-of-way mutually agreed upon, at
no cost to the CITY. GRANTEE shall within the first 14 days after receipt of notice,
communicate to the CITY its intention, plan and schedule for said or removals. If
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GRANTEE fails to comply with the requirements of the initial 14 -day period, the
CITY has the unilateral right to proceed with the necessary relocation and removal
using its own employees or contractor, and GRANTEE agrees to reimburse the CITY
all reasonable, documented costs for any relocation, removal or delay costs incurred
by the CITY and/or its contractors. GRANTEE will design and install its system in
such manner that future relocations required by the CITY may be accomplished with
least interruption of services. In the event GRANTEE fails to complete full
performance within the thirty (30) day period, GRANTEE agrees to reimburse the
CITY for all damages incurred by the CITY or its contractors for delays of future CITY
work in the Public Way related to equipment, Conduit and cable routing conflicts
related to GRANTEE's failure to comply with the requirements of this subsection.
SECTIONS. RECORD OF INSTALLATION.
GRANTEE shall provide to the CITY, upon the CITY'S request, copies of
available current drawings in use by GRANTEE showing the location of
GRANTEE'S Facilities within public right-of-way. With respect to excavations
within any area, the CITY and GRANTEE shall comply with the provisions of
Chapter 19.122 RCW and any other applicable State law or CITY Ordinance. Before
issuance of the excavation permit, GRANTEE shall post a performance bond from a
Washington State based surety company in the amount of 125% of the cost of
construction within the CITY. The amount of the performance bond for this
agreement is $82,500.00. Once the installation and all related site restoration work
has been completed to the CITY'S satisfaction and GRANTEE has submitted record
plans as required by the CITY for the completed project, the CITY will release the
bond. The performance bond amount will be established by the CITY when you
provide the CITY with an engineer's estimate of the actual cost of construction at the
street crossing. In order to complete this calculation please have your engineer
submit an estimate to us for review by the CITY Engineer.
SECTION 6. FEES.
As reimbursement for administration expenses, GRANTEE shall pay an
initial fee to the CITY of $ 3,450.00 based upon the CITY'S estimated administrative
costs and for inspecting, mapping and other work described in Attachment 1,
throughout this agreement's five year term. Public Way Agreement renewals at 5 -
year intervals will require the fee applicable at that time. Fees are due and payable at
time of permit issuance and renewal in accordance with Chapter 20.04 of the CITY
Code. The fees are calculated based upon the estimated inspection costs. In order to
complete this calculation please have your engineer submit a plan of the intended
work at each crossing to us for review by the CITY Engineer.
SECTION 7. INDEMNITY.
The GRANTEE hereby releases, covenants not to bring suit and agrees to
indemnify, defend and hold harmless the CITY, its elected and appointed officials,
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officers, employees, agents, representatives, engineers, consultants, and volunteers
from any and all claims, costs, judgments, awards, or liability to any person,
including claims by the GRANTEE's own employees to which the GRANTEE might
otherwise be immune under Title 51 RCW, arising from injury or death of any
person or damage to property of which the negligent acts or omissions of the
GRANTEE, its agents, servants, officers, or employees in performing under this
Public Ways Agreement are the proximate cause. The GRANTEE 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, consultants, and volunteers from any and all claims, costs, judgments,
awards, or liability to any person including claims by the GRANTEE's own
employees, to which the GRANTEE might otherwise have immunity under Title 51
RCW, arising against the CITY solely by virtue of the CITY's ownership or control of
the rights-of-way or other public properties, by virtue of the GRANTEE's exercise of
the rights granted herein, or by virtue of the CITY's permitting the GRANTEE's use
of the CITY's rights-of-way or other public property, based upon the CITY's
inspection or lack of inspection of work performed by the GRANTEE, its agents and
servants, officers or employees in connection with work authorized on the CITY's
property or property over which the CITY has control, pursuant to this Public Ways
Agreement, or pursuant to any other permit or approval issued in connection with
this Public Ways Agreement. 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, 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.
Inspection or acceptance by the CITY of any work performed by the GRANTEE
at the time of completion of construction shall not be grounds for avoidance of any
of these covenants of indemnification. Said indemnification obligations shall
extend to claims which are not reduced to a suit and any claims which may be
compromised prior to the culmination of any litigation or the institution of any
litigation.
In the event that the GRANTEE refuses the tender of defense in any suit or
any claim, said tender having been made pursuant to the indemnification clauses
contained herein, and said refusal is subsequently determined by a court having
jurisdiction (or such other tribunal that the parties shall agree to decide the matter),
to have been a wrongful refusal on the part of the GRANTEE, then the GRANTEE
shall pay all of the CITY's costs for defense of the action, including all reasonable
expert witness fees and reasonable attorneys' fees and the reasonable costs of the
CITY, including reasonable attorneys' fees for recovering costs under this
indemnification clause.
5
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, and the CITY, its elected and appointed officials, officers, employees,
agents, representatives, engineers, consultants, and volunteers, the GRANTEE's
liability hereunder shall be only to the extent of the GRANTEE's negligence. It is
further specifically and expressly understood that the indemnification provided
herein constitutes the GRANTEE'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
this Public Ways Agreement.
Notwithstanding any other provisions of this Section, the GRANTEE
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 elected
and appointed officials, officers, employees, agents, representatives, engineers,
consultants, and volunteers. The GRANTEE releases and waives any and all claims
against the CITY, its elected and appointed officials, officers, employees, agents,
representatives, engineers, consultants, and volunteers, for damage to or
destruction of the GRANTEE's facilities caused by or arising out of activities
conducted by the CITY, its elected and appointed officials, officers, employees, agents,
representatives, engineers, consultants, and volunteers, in the public ways, rights-
of-way, easements, or property subject to this Public Ways Agreement 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 elected and appointed
officials, officers, employees, agents, representatives, engineers, consultants, and
volunteers. The GRANTEE further agrees to indemnify, hold harmless and defend
the CITY against any claims for damages, including, but not limited to, business
interruption damages and lost profits, brought by or under users of the GRANTEE's
facilities as the result of any interruption of service due to damage or destruction of
the user's facilities caused by or arising out of activities conducted by the CITY, its
elected and appointed officials, officers, employees, agents, representatives,
engineers, consultants, and volunteers, 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 elected and appointed officials, officers,
employees, agents, representatives, engineers, consultants, and volunteers.
SECTION 8. INSURANCE.
GRANTEE shall, as a condition of this Public Way Agreement, secure and
maintain the following liability insurance policies insuring both the GRANTEE 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
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or in connection with the exercise of the rights, privileges, and authority granted to
the GRANTEE:
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.
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 throughout the term of this Public Ways Agreement
and such other period of time during which the GRANTEE is operating without a
Public Ways Agreement hereunder, or is engaged in the maintenance or removal of
its telecommunications facilities. The GRANTEE shall provide an insurance
certificate, together with an endorsement naming the CITY, and its elected and
appointed officers, elected 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 this Public Ways Agreement. Any deductibles or self-insured
retentions must be declared to and approved in writing by the CITY prior to the
Public Ways Agreement becoming effective. Payment of deductibles and self-
insured retentions shall be the sole responsibility of the GRANTEE. 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's
insurance shall be primary insurance as respects the CITY, its officers, elected
officials, employees, representatives, engineers, agents, consultants, and volunteers.
Any insurance maintained by the CITY, its officers, elected officials, employees,
representatives, engineers, agents, consultants, and volunteers shall be in excess of
the GRANTEE's insurance and shall not contribute with it;
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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
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 this Public Ways Agreement.
SECTION 9. NON-EXCLUSIVE.
The rights and privileges herein granted shall not be deemed exclusive and
the right is hereby reserved to the CITY to grant to any other person, company,
corporation or association, or entity, including the CITY, the right to exercise the
rights and privileges herein granted.
SECTION 10. POLICE POWERS.
Nothing herein shall be deemed to affect the CITY'S ability to exercise its
police powers. Further, nothing shall be deemed to grant GRANTEE vested rights or
franchise rights.
SECTION 11. MODIFICATIONS OF TERMS AND CONDITIONS.
The CITY and GRANTEE hereby reserve the right to alter, amend or modify
the terms and conditions of this Agreement upon written agreement by both parties
to such alteration, amendment or modification.
SECTION 12. RENEWAL OF AGREEMENT.
This Agreement shall be automatically renewed for additional five-year
periods upon payment of the renewal fee, unless either the CITY or GRANTEE
provides written notice of its intent not to renew the Agreement 120 days prior to
January 1st of said renewal year. In the event that GRANTEE shall decide to offer at
any time Local Service from its equipment, Facilities, or underground fiber optic
cable system to business and/or residential customers within Auburn's incorporated
area, it shall apply for and obtain a franchise agreement from the CITY prior to the
offer of or delivery of such Local Services. In order to assure adequate time to apply
for and negotiate the terms of such a franchise, GRANTEE shall provide written
notice of its intent to offer Local Services and submit an application for franchise 120
days prior to the desired date of commencing Local Service. If a franchise is granted
0
by the CITY, this Agreement shall terminate and the use, operation, and
maintenance of such equipment, Facilities, and underground fiber optic cable
system, and all related appurtenances, shall be subject solely to the provisions of said
franchise.
SECTION 13. TERMINATION.
The CITY and GRANTEE recognize the paramount public interest in the
right-of-way subject to this Agreement. Should the public interest, determined by
the CITY, require consideration of termination of this Agreement, such procedures
as outlined in Title 20, Auburn CITY Code shall control termination.
SECTION 14. VALIDITY OF TERMS.
If any terms, provisions, condition, or portion of this Agreement shall be held
to be invalid or unconstitutional for any reason, the CITY may, at its own option,
deem the entire Agreement to be affected and thereby nullified. However, in the
event of said determination of invalidity of any part of this Agreement, the CITY
may elect to treat the portion declared invalid as severable and enforce the
remaining portions of this Agreement until such time as a new Agreement is
negotiated and approved by both parties. The CITY does not, by executing this
Agreement, waive any rights to later require a franchise agreement under CITY
Code in the event GRANTEE shall decide to offer point services from its equipment,
Facilities, or underground fiber optic cable system to CITY area businesses and/or
residential customers.
SECTION 15. NON -TRANSFERABLE.
The rights granted by this Agreement inure to the benefit of GRANTEE, and
any parent, subsidiary, Affiliate, heir, successor, or assigns now or hereafter existing.
GRANTEE may assign its rights under this Agreement to a parent, subsidiary,
Affiliate, heir, or successor so long as (1) such parent, subsidiary, Affiliate or
successor, assumes all obligations of GRANTEE hereunder; (2) such parent,
subsidiary, Affiliate, heir or successor is bound to the same extent as GRANTEE
hereunder; and (3) the CITY receives sufficient evidence of such agreement and
notice to confirm that the above conditions are satisfied. The rights shall not be
assignable to parties other than a parent, subsidiary, or Affiliate, or successor
without the express, written consent of the governing body of the CITY, which shall
be determined by the CITY within 60 days. Any consent is to be evidenced by
written agreement with the CITY that fully recites the terms and conditions, if any,
upon which consent is given.
SECTION 16. ENFORCEMENT.
If the CITY seeks enforcement of any terms or conditions of this Agreement
in court, or if a lawsuit is instituted with respect to this Agreement, GRANTEE
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agrees to pay the CITY'S reasonable attorney's fees and costs and other allied
expenses incurred by the CITY regarding said enforcement or lawsuit if the CITY is
the substantially prevailing party.
SECTION 17. GRANTEE AVAILABILITY.
GRANTEE shall be available to the CITY 24 hours a day, 7 days a week,
regarding problems or complaints related to GRANTEE's Telecommunication
System. The CITY may contact Mr. Gary Inman, Construction Manager or Mr. Chris
Waibel, Project Engineer at (253) 862-2404, at which a GRANTEE employee can be
reached twenty-four (24) hours a day, seven (7) days a week regarding such problems
or complaints.
SECTION 18. EFFECTIVE DATE.
This Agreement shall take effect and be in force upon execution by the
undersigned CITY official and the authorized authority of LEVEL 3
COMMUNICATIONS, L.L.C.
SECTION 19. NOTICE.
Unless otherwise expressly agreed between the parties, every notice or
response to be served upon the CITY or LEVEL 3 COMMUNICATIONS,L.L.C. shall
be in writing, and shall be deemed to have been duly given to the required party five
(5) business days after having been posted in a properly sealed and correctly
addressed envelope by certified or registered mail, postage prepaid, at a Post Office or
branch thereof regularly maintained by the U.S. Postal Service.
SECTION 20. VENUE OF ANY COURT ACTION.
This Public Way Agreement 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 this Public Way Agreement 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.
The notices or responses to the CITY shall be addressed as follows:
City Clerk
25 West Main Street
Auburn, WA 98001-4998
With a copy to:
City Attorney
CITY of Auburn
10
25 West Main Street
Auburn, WA 98001-4998
The notices or responses to LEVEL 3 COMMUNICATIONS, L.L.C. shall be addressed
as follows:
LEVEL 3 COMMUNICATIONS, L.L.C.
14023 Denver West Pkwy.
Golden, CO 80401
The CITY and LEVEL 3 COMMUNICATIONS, L.L.C. may designate such other
address or addresses from time to time by giving notice to the other.
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PASSED BY THE CITY COUNCIL OF THE CITY OF/ AUBURN,
WASHINGTON, AT ITS REGULAR MEETING ON THE J r _ DAY OF
CITY OF AUBURN:
Mayor, Charles A. Booth
25 W. Main
Auburn WA 98001-4998
Attest:
o /- e q-Cer ----
Date
Z---__ D _ -----------------------
Dan Ile E. askam,
City Clerk
JAPMOVED S TO FORM:
--------------------------------------
Mike Reynolds,
City Attorney
Acknowledged and Accepted by:
LEVEL 3 COMMUNICATIONS, L.L.C.:
"'? / �P,- -- 01 - 13 - Zoe
thorized Signature Date
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Print Name and Title
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Name, Address and Phone #
12
C0{.O0ADO
STATE OF
COUNTY OF IeNG-A - )ss.
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On this--La"N- day of__�A►iod?-q________ - W, before me, the
undersigned, a Notary Public in and for the State of - dotw .........
personally appeared doing business as
-rcceL- t= Lq 3_ 54 -------, who
executed the within and foregoing instrument, and acknowledged said instrument.
to be the free and voluntary act and deed of said corporation for the uses and
purposes therein mentioned, and on oath stated that he is authorized to execute said
instrument on behalf of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the date hereinabove set forth.
••��A J. per•
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NOTARY PUBLIC in and for the State of Gcwrt.�j� A
Washingteft, residing in 'Sµwworr C %-v- z• -I
MY COMMISSION expires:-sha1z=12 A F • •••.••• ' O�
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STATEMENT OF ACCEPTANCE
LEVEL 3 COMMUNICATIONS, L.L.C. itself, its successors and assigns, hereby
accepts and agrees to be bound by all terms, conditions and provisions of the Public
Ways Agreement granted pursuant to Ordinance No. 5333 , attached hereto and
incorporated herein by this reference.
By:
Name:..
Title:, 12i�.Tv►c_.
Date: ,�A�ut (3, Z000
Attached hereto is a copy of the executed Ordinance approving the execution
of the Public Ways Agreement by the CITY and a corporate resolution or corporate
secretary certificate therefore duly executed and approving this Statement of
Acceptance, the execution thereof and authorizing the officer executing this
Statement of Acceptance to do so.
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ATTACHMENT 1
CITY OF AUBURN, WASHINGTON PUBLIC WAY AGREEMENT WITH
LEVEL 3 COMMUNICATIONS, L.L.C.
LOCATION AND IDENTIFICATION OF RIGHTS GRANTED
15
ATTACHMENT 2
TERMS AND CONDITIONS OF PUBLIC WAY AGREEMENT
LEVEL 3 COMMUNICATIONS, L.L.C.
1. A pre -construction conference shall be required at least 24 hours prior to
commencing work within CITY right-of-way. (Seven days notice required to
schedule conference. Call (253) 931-3010 for the Contracts Administrator or the
Construction Manager.)
2. GRANTEE shall notify all affected property owners, in writing, a minimum
of seven days prior to starting construction in the area.
3. Construction shall be in compliance with plans submitted to and approved by
the CITY Department of Public Works.
4. GRANTEE, its successors and assigns, is given permission to enter upon the
right-of-way or public place for the purpose of performing the work described in a
construction permit which must be approved by the City Engineer or his/her
designee.
5. After the installation, operation, maintenance, or removal of a utility or
Facility the GRANTEE shall restore all rights-of-way and public places to the same or
equivalent condition that existed prior to work commencement. All such work
must meet the approval of the City Engineer.
6. In the event that any damage of any kind, as determined solely by the CITY, to
the CITY'S property or rights-of-way is caused by the GRANTEE in the course of
performing work authorized by this Agreement, the GRANTEE will repair said
damage at its sole cost and expense. Repair work shall begin without delay, as
directed by the CITY, and continue without interruption until completed. If damage
is extensive, the time allowed for repair will be prescribed by the City Engineer
and/or his/her designee. Failure to properly restore any damages within 30 days
notice will be referred to the City Attorney under Section 16. entitled
"ENFORCEMENT".
7. The City Engineer or his/her designee may at any time, do, order, or have
done any and all work considered necessary to restore to a safe condition any area
left by the GRANTEE in a condition dangerous to life or property. The GRANTEE
shall be notified of any substandard condition requiring correction by the CITY'S
Construction Manager, and upon failure of the GRANTEE to make said correction
within the specific time frame allowed, the CITY shall perform the correction and
the GRANTEE shall pay to the CITY all costs of such work, labor and materials. If
GRANTEE fails to compensate the CITY for actual costs, the CITY will exercise the
performance bond to pay for any work of emergency nature.
16
8. When the CITY deems it advisable to change the alignment or grade of any
street or right-of-way or public place or structure by widening, grading, re -grading,
paving, improving, altering or repairing same, the CITY and the GRANTEE will
diligently pursue alternative methods of achieving the CITY'S preferred alignment
or grade of subject structure including, but not limited to, sharing engineering
expenses. If the GRANTEE has no alternatives acceptable to the CITY, the
GRANTEE shall, at its own cost and expense, raise, lower, move, change or
reconstruct such installations to conform with the plans of work ordered by the
CITY according to the time schedules described in Section 4 of this Agreement titled
"RELOCATION OF EQUIPMENT".
9. All provisions, conditions, requirements and regulations herein contained
shall be binding upon the heirs, successors and assigns of the GRANTEE and all
privileges of the GRANTEE shall be given to such heirs, successors and assigns as if
they were specifically mentioned.
10. The CITY and GRANTEE recognize the paramount public interest in the
right-of-way subject to this Agreement. Should the public interest, determined by
the CITY, require consideration of termination of this Agreement, such procedures
as outlined in Title 20, Auburn CITY Code shall control termination.
11. GRANTEE, by accepting permits pursuant to this Agreement, agrees to obtain
information from all utility departments and existing franchises regarding location
and current status of their installations before starting work. GRANTEE shall notify
private property owners adjoining, or in proximity to the right-of-way, including
existing franchises, in writing when such property is exposed to the possibility of
injury or damage through performance of work by GRANTEE. The GRANTEE
shall make all advance arrangements necessary to protect such property and/or
utility from injury or damage.
12. The issuance of this Agreement to the GRANTEE does not in any way relieve
GRANTEE from compliance with any other applicable laws in performing the work
subject to this Agreement.
13. All road crossings shall be reviewed independently for feasibility of open cuts
as opposed to a push or bore.
14. GRANTEE shall, to the extent practicable, maintain a minimum five (5) feet
horizontal separation and one (1) foot vertical separation from any and all CITY
utilities. An accuracy of one (1) foot per one hundred (100) feet horizontal and
vertical control will be required in the certified record drawings provided to the
CITY at completion of project.
15. GRANTEE shall, within 60 days after completion of construction, provide to
the CITY a computer disc containing record drawings in AutoCAD drawing file
format and a complete set of plans, drawn to scale and certified to the CITY as
17
accurately depicting the horizontal and vertical location and configuration of all
Facilities constructed pursuant to the agreement. The City Engineer shall have the
discretion to prescribe the format and/or media of said record drawings, consistent
with CITY codes and policies.
16. Contractors or agents of GRANTEE shall obtain any and all other necessary
permits, licenses, and approvals as required by law.
17. GRANTEE shall provide and maintain a means of locating said
improvements upon request in accordance with RCW 19.122.
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ATTACHMENT 3
Title 20
TELECOMMUNICATIONS AND OTHER COMMERCIAL UTILITIES
Chapters:
20.02 General Provisions
20.04 Public Way Agreements
20.06 Franchise
20.08 Facilities Lease
20.10 Conditions of Public Way Agreements, Franchises, and Facilities Leases
20.12 Open Video Systems (OVS)
Chapter 20.02
GENERAL PROVISIONS
Sections:
20.02.010 Purpose.
20.02.020 Definitions.
20.02.030 Business registration required.
20.02.040 Public way agreement required.
20.02.050 Franchise required.
20.02.060 Cable television franchise required.
20.02.070 Facilities lease required.
20.02.080 Construction permit required.
20.02.090 Application to existing franchise ordinances, agreements, leases, and
permits and effect of other laws.
20.02.100 Reserved.
20.02.110 Fees and compensation not a tax.
20.02.120 Taxes are not to be a credit.
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 commercial utilities in public ways and on
City and/or public property;
B. Establish, consistent with federal and state law, 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
19
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;
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. To the extent permitted by federal and state law, 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; and
L. Enable the City to discharge its public trust consistent with rapidly evolving
federal and state regulatory policies, industry competition and technological
development. (Ord. 5034 9 1, 1998.)
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 telecommunications system to allow
20
telecommunications 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 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.
"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
Chapter 13.36 ACC.
"Cable Service" for the purpose of this title shall have the same meaning provided
by the Cable Act and Chapter 13.36 ACC.
"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.
"Carrier" means any provider of telecommunications services, except that this term
does not include aggregators 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 ACC 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 commercial 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.
21
"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.
"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
future 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 all receipts accrued in a franchisee's books for all
commercial utility, communications and communications -related operations and
M)
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 telecommunications 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 are not applicable to all other persons or entities doing business
within the City, (b) revenues noncollectible 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 its 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.
23
"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, circle, roundabout, 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.
"State" means the state of Washington.
"Subscriber" or "Customer" means a person or user of the commercial utility or
telecommunications system who lawfully receives commercial utility or
communications 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
24
without benefit of any closed transmission medium.
"Telecommunications system," see "Telecommunications Facilities."
"Underground Facilities" means utility and telecommunications facilities located
under the surface of the ground, excluding the underground foundations or
supports for overhead facilities.
"Usable Space" means the total distance between the top of a utility pole and the
lowest possible attachment point that provides the minimum allowable vertical
clearance as specified in 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.
(Ord. 5034 13 1, 1998.)
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 ACC. (Ord. 5034 91,1998.)
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 Chapter
20.04 ACC. (Ord. 5034 91,1998.)
25
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 Chapter 20.06 ACC. (Ord. 5034
131,1998.)
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 City shall first obtain a cable franchise from
the City pursuant to Chapter 13.36 ACC. (Ord. 5034 !31,1998.)
20.02.070 Facilities Lease Required.
No commercial 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 Chapter 20.08 ACC. 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. (Ord. 503413 1, 1998.)
20.02.080 Construction Permit 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 ACC, 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 ACC. 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. (Ord. 5034 91,1998.)
20.02.090 Application to Existing Franchise Ordinances, Agreements, Leases, and
Permits and Effect of Other Laws.
26
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.
C. Upon expiration of the electrical and natural gas franchises in effect at time of
adoption of this title, granted by Chapter 13.44 ACC, the franchise shall be
renegotiated under the terms of this title. (Ord. 5034 9 1, 1998.)
20.02.100 Reserved.
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. (Ord. 5034 19 1, 1998.)
20.02.120 Taxes are not to be a Credit.
Any compensation paid as provided for in public way agreements, franchises,
and/or facility leases 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 taxes, sales
taxes, corporate or business occupation taxes or other taxes or fees imposed or levied
by any governmental entity. (Ord. 5034 Q 1, 1998.)
27
Chapter 20.04
PUBLIC WAY AGREEMENTS
Sections:
20.04.010 Public way agreements.
20.04.020 Public way agreement applications.
20.04.030 Notice of complete application and scheduling of public hearing.
20.04.040 Determination by the City.
20.04.050 Notification of council action and execution of agreement.
20.04.060 Nonexclusive public way agreements.
20.04.070 Rights granted.
20.04.080 Term of telecommunications public way agreements.
20.04.090 Specified route.
20.04.100 Service to City users.
20.04.110 Amendment to public way agreements.
20.04.120 Renewal of public way agreements.
20.04.130 Determination by City for renewal of public way agreements.
20.04.140 Notification of council action on renewal of public way agreements and
execution of agreements.
20.04.160 Reserved.
20.04.150 Obligation to cure as a condition of renewal.
20.04.170 Annual fee for recovery of City costs.
20.04.180 Other City costs.
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. (Ord. 5034 9 1, 1998.)
W.
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.
acilities;
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;
D. Preliminary engineering plans, specifications and a network map of the
facilities to be located within the City, all in sufficient detail to identify:
1. 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;
E. If applicant is proposing to install aboveground and/or overhead facilities:
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; and
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:
29
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:
1. The location proposed for the new ducts or conduits; and
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 ACC 12.24.050 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 ACC 20.10.240 through 20.10.260;
L. A copy of an Auburn business registration stamped and signed by the City
clerk; and
M. A nonrefundable application fee in the amount of $500.00. (Ord. 5034 9 1,
1998.)
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 ACC 20.04.020 to
30
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 this subsection. 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. 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. (Ord. 5034 Q 1, 1998.)
20.04.040 Determination by the City.
Within 180 calendar days from the time of notification that the application is
complete, under ACC 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;
31
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/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;
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 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 Chapter
12.24 ACC; and
M. Such other factors as may demonstrate that the public way agreement to use
the public ways will serve the community interest. (Ord. 5034 B 1, 1998.)
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 ACC. (Ord. 5034131,1998.)
32
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. (Ord. 5034 9 1, 1998.)
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. (Ord. 5034 91,1998.)
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 five years. (Ord. 5034 9 1, 1998.)
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. (Ord. 5034 S 1, 1998.)
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. (Ord. 5034 !31,1998.)
20.04.110 Amendment to Public Way Agreements.
A new application shall be required of an 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. (Ord. 5034 t3 1, 1998.)
33
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 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 ACC 20.04.030,
with the City for renewal which shall include the following:
A. The information required pursuant to ACC 20.04.020;
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; and
D. A nonrefundable application fee of $75.00. (Ord. 5034 9 1, 1998.)
20.04.130 Determination by City for Renewal of Public Way Agreements.
The process specified in ACC 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 ACC
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 ACC 20.04.040,
be based upon the following:
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. (Ord. 5034 91,1998.)
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 ACC 20.04.050 shall be followed for execution of any agreement
renewals. (Ord. 5034 91,1998.)
34
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. (Ord. 503413 1, 1998.)
20.04.160 Reserved.
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. (Ord.
5034131,1998.)
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 or 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. (Ord. 5034 9 1, 1998.)
35
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
20.06.170
20.06.180
20.06.190
20.06.010
Franchise requirements.
Franchise applications.
Notice of complete application and
Determination by the City.
Notification of council action and
Nonexclusive franchise.
Term of franchise.
Rights granted.
Franchise territory.
Franchise fees in addition
Nondiscrimination.
Amendment of franchise.
Renewal of franchise.
scheduling of public hearing.
execution of franchise.
to utility taxes.
Determination by City for renewal of franchise.
Obligation to cure as a condition of renewal.
Other City costs.
Compensation for use of public ways.
Accounts, books and records.
Franchise Requirements.
A franchise shall be required of any commercial 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 telecommunications
system which is operated solely for purposes of serving itself. An example of
such a network or telecommunications 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. (Ord. 5034 91,1998.)
36
20.06.020 Franchise Applications.
Any person who desires a telecommunications 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 ACC 20.04.020, 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
so that the City can keep track of various systems using the public way(s) to
prevent interference between the users;
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, if any;
D. A description of applicant's service, access and line extension policies;
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. All fees, deposits or charges required pursuant to this chapter;
H. Such other and further information as permitted by federal and state law as
may be requested by the City;
I. Proof of ability to meet City's bonding requirements in ACC 12.24.050 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 ACC 20.10.240 through 20.10.260;
J. A copy of an Auburn business registration stamped and signed by the City
clerk; and
K. An nonrefundable application fee in the amount of $2,500. (Ord. 5034 8 1,
1998.)
37
20.06.030 Notice of Complete Application and Scheduling of Public Hearing.
A. Notice of Complete Application. Within 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 ACC 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. (Ord. 5034 Q 1, 1998.)
20.06.040 Determination by the City.
Within 180 calendar days from the time of notification that the application is
complete, under ACC 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:
M
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 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. The 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 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 Chapter
12.24 ACC; and
M. Such other factors as may demonstrate that the franchise to use the public
39
ways will serve the community interest. (Ord. 5034 9 1, 1998.)
20.06.050 Notification of Council Action and Execution of Franchise.
Upon the City council's decision the public works director shall notify the 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 ACC. (Ord. 5034 91, 1998.)
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. (Ord. 5034 !3 1, 1998.)
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 years. (Ord. 5034 9 1,
1998.)
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. (Ord. 5034 Q 1, 1998.)
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. (Ord. 5034 (31,1998.)
40
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 of gross revenue. (Ord. 5034 S 1, 1998.)
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. (Ord. 5034 Q 1, 1998.)
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. (Ord. 5034 9 1, 1998.)
20.06.130 Renewal of Franchise.
A franchisee that desires to renew its franchise under this chapter for an additional
five-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 ACC 20.06.030, with the City for a renewal of its franchise which
shall include the following:
A. The information required pursuant to ACC 20.06.020;
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;
41
D. A nonrefundable application fee in the amount of $500.00. (Ord. 5034 f3 1,
1998.)
20.06.140 Determination by City for Renewal of Franchise.
The process specified in ACC 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 procedures in ACC
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
ACC 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. (Ord. 5034 f3 1, 1998.)
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. (Ord. 5034 9 1, 1998.)
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
42
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. (Ord. 5034 B 1, 1998.)
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 telecommunications 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 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 ACC
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.
B. Annual Franchise Fee Adjustments. The initial annual franchise fee
percentage shall be four and one-half percent of gross revenues unless and
until it is further adjusted by City council. Any such adjustment shall occur at
least 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 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 10 days after the date due, franchisees shall pay a late payment penalty of
the greater of:
1. Twenty-five dollars; or
2. Simple interest at a 12 percent annual percentage rate on the
total amount past due.
43
E. Fees and Compensation Not a Tax. The fees, charges and fines provided for in
this title 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, 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.
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 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 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
,S
tax, corporate or business occupation taxes or other taxes or fees imposed or
levied by any governmental entity.
J. Utility Tax Liability n 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 of gross revenues in accordance with RCW 35.21.870.
Franchise fees, if applicable, shall be levied on a nondiscriminatory 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 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 telecommunications 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, then franchisees shall pay
for the costs of the audit. If the audit reveals an error in payment of five
percent 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
noncollection or nonreporting 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 communications 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
45
of accessing the communications service. (Ord. 5034 9 1, 1998.)
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. City to Be Informed. 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 located in the public way(s), franchisee's accounting methods and
procedures in connection therewith, and the recording and reporting by
franchisees of all revenues and uncollectibles. Franchisees 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, nonpublic 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 subject 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 ASCII 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
46
herein.
D. Inquires to Franchisee. The City may, at any time, make inquires pertaining to
the franchisee's operation of its utility or telecommunications system within
the franchise area. The franchisee shall respond to such inquiries on a timely
basis.
Chapter 20.08
FACILITIES LEASE
Sections:
20.08.010 Facilities lease.
20.08.020 Lease application.
20.08.030 Notice of complete application and scheduling of public hearing.
20.08.040 Determination by the City.
20.08.050 Notification of council action and execution of lease.
20.08.060
Nonexclusive lease.
20.08.070
Term of facilities lease.
20.08.080
Rights granted.
20.08.090
Interference with other users.
20.08.100
Ownership and removal of improvements.
20.08.110
Cancellation of lease by lessee.
20.08.120
Compensation to the City.
20.08.130
Amendment of facilities lease.
20.08.140
Renewal of facilities lease.
20.08.150
Determination by the City for renewal of facility lease.
20.08.160
Obligation to cure as a condition of renewal.
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 nontelecommunications 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. (Ord. 5034131, 1998.)
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 ACC 20.06.020, shall include the following:
47
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:
1. 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;
E. If applicant is proposing to install aboveground and/or overhead facilities:
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;
I. A copy of an Auburn business registration stamped and signed by -the City
clerk;
j. Proof of ability to meet City's bonding requirements in Chapter 12.24 ACC
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 through 20.10.260;
K. An nonrefundable application fee in the amount of $500.00; and
L. Such other and further information as may be requested by the City. (Ord.
5034 B 1, 1998.)
20.08.030 Notice of Complete Application and Scheduling of Public Hearing.
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 ACC 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. (Ord. 5034 9 1, 1998.)
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
49
determination of completeness, under ACC 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.
B. 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.
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.
G. The availability of alternate routes and/or locations for the proposed facilities.
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 or 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.
K. 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 ACC 20.10.240 through 20.10.260.
A Such other factors as may demonstrate that the lease to use the City property
will serve the community interest.
50
N. Other criteria determined to be necessary or appropriate to the public health,
safety, or welfare of the community. (Ord. 5034 Q 1, 1998.)
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 the lease and the applicant has provided the security deposits and
proof of insurance as required by Chapter 20.10 ACC. (Ord. 5034 9 1, 1998.)
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. (Ord. 5034 9 1, 1998.)
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 years, subject to renewal as provided in this chapter. (Ord. 5034 13 1,
1998.)
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.
(Ord. 5034 B 1, 1998.)
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:
51
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
telecommunications 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. (Ord. 5034 Q 1, 1998.)
52
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 90 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.
(Ord. 5034 !31,1998.)
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. (Ord. 5034 9 1, 1998.)
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 31st
of each calendar year. Any payments received after the due date shall include a late
payment penalty of two percent 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 sixty-first calendar day of
delinquency, and the City may proceed to collect against any security provided by the
lessee. (Ord. 5034 f3 1, 1998.)
53
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. (Ord.
5034 (31,1998.)
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
ACC 20.08.030, with the City for renewal of its facilities lease which shall include the
following:
A. The information required pursuant to ACC 20.08.020;
B. Any information required pursuant to the facilities lease agreement between
the City and the lessee;
C. All deposits or charges required pursuant to this chapter;
D. A nonrefundable application renewal fee in the amount of $250.00. (Ord. 5034
B 1, 1998.)
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 ACC 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
54
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 ACC 20.08.040. (Ord. 5034 91, 1998.)
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. (Ord. 5034 B 1, 1998.)
Chapter 20.10
CONDITIONS OF PUBLIC WAY AGREEMENTS, FRANCHISES, AND FACILITIES
LEASES
Sections:
20.10.010
Purpose.
20.10.020
Acceptance and effective date.
20.10.030
Police power.
20.10.040
Rules and regulations by the City.
20.10.050
Location of facilities.
20.10.060
Compliance with One Number Locator Service.
20.10.070
Construction permits.
20.10.080
Interference with the public ways.
20.10.090
Damage to property.
20.10.100
Notice of work.
20.10.110
Repair and emergency work.
20.10.120
Maintenance of facilities.
20.10.130
Abandonment, relocation or removal of facilities.
20.10.140
Building moving.
20.10.150
Removal of unauthorized facilities.
20.10.160
Emergency removal or relocation of facilities.
20.10.170
Damage to facilities.
20.10.180
Restoration of public ways, other ways, City property and
public/private utility property.
20.10.190
Facilities maps.
20.10.200
Duty to provide information.
20.10.210
Leased capacity.
20.10.220
Insurance.
55
20.10.230 General indemnification.
20.10.240 Performance and construction surety.
20.10.250 Security options.
20.10.260 Performance bond.
20.10.270 Coordination of construction activities.
20.10.280 Assignments or transfers of public way agreements, franchises, or
leases.
20.10.290 Transactions affecting control of public way agreements, franchises, or
leases.
20.10.300 Revocation or termination of public way agreements, franchises, or
leases.
20.10.310
Notice and duty to cure.
20.10.320
Public hearing.
20.10.330
Standards for revocation or lesser sanctions.
20.10.340
Civil penalties.
20.10.350
Enforcement.
20.10.360
Other remedies.
20.10.370
Venue of any court action.
20.10.380
Action by the FCC.
20.10.390
Incorporation by reference.
20.10.400
Notice of entry on private property.
20.10.410
Safety requirements.
20.10.420
Most favored community.
20.10.430
Compliance with zoning standards.
20.10.440
Unfunded mandate.
20.10.450
Care of trees along streets.
20.10.460
Use of utility poles and facilities of others.
20.10.470
Use of poles and facilities by City.
20.10.480
Administration.
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 way agreement, franchise, or lease, the provisions of this chapter apply to all
such public way agreements, franchises, and leases approved or granted by the City.
(Ord. 5034 91,1998.)
20.10.020 Acceptance and Effective Date.
No public way 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
56
ordinance or other City action granting a public way 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 way 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. (Ord. 5034 (31,1998.)
20.10.030 Police Power.
In accepting and executing any public way 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. (Ord. 5034:9 1, 1998.)
20.10.040 Rules and Regulations by the City.
In addition to the inherent powers of the City to regulate and control any public way
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 way 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 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 way agreement, franchise, or lease granted without the
written consent of the grantee, franchisee, or lessee. (Ord. 5034 i3 1, 1998.)
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 way
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 ACC Title 18 and Chapter 13.32 ACC.
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
57
and/or mitigating such conflicts with preexisting 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
Chapter 12.24 ACC. The City shall bear no costs associated with resolution of
capacity shortages within the public ways. (Ord. 5034 9 1, 1998.)
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. (Ord. 5034 9 1, 1998.)
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 Chapter 12.24 ACC, for
installing 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 way
agreement, franchise, or lease granted under this title, provided such alternative
procedures provide substantially equivalent safeguards for responsible construction
practices. (Ord. 5034 9 1, 1998.)
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 ACC 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. (Ord. 5034 9 1, 1998.)
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.
(Ord. 5034 C 1, 1998.)
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 nonemergency 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. (Ord. 5034 Q 1, 1998.)
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. (Ord. 5034 B 1, 1998.)
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. (Ord. 5034 9 1, 1998.)
20.10.130 Abandonment, Relocation or Removal of Facilities.
59
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 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; and
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. (Ord. 5034 Q 1, 1998.)
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 seven 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.
(Ord. 5034 91, 1998.)
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;
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. (Ord. 5034 Q 1, 1998.)
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. (Ord. 5034 91,1998.)
20.10.170 Damage to Facilities.
Unless directly and proximately caused
by the City, the City shall not be liable
utility, cable, or telecommunications
by the willful, intentional, or malicious acts
for any damage to or loss of any commercial
facilities upon City
:BM
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. (Ord. 5034 9
1,1998.)
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 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 Chapter 12.24 ACC. (Ord. 5034 B 1, 1998.)
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. (Ord. 5034 9 1, 1998.)
oG►?
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 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. (Ord. 5034 9 1, 1998.)
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
B. The sub -lessee fulfills all requirements of Chapters 5.82 and 5.88 ACC
regarding the reporting of all revenues subject to City taxes and assessments;
and
C. Lessee must comply with the City's registration requirements in Chapter 5.84
ACC. (Ord. 5034 B 1, 1998.)
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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. Five million dollars for bodily injury or death to each person;
2. Five million dollars for property damage resulting from any one
accident; and
3. Five million dollars for all other types of liability;
B. Automobile liability for owned, nonowned and hired vehicles with a limit of
$3,000,000 for each person and $3,000,000 for each accident;
C. Worker's compensation within statutory limits and employer's liability
insurance with limits of not less than $1,000,000;
D. Comprehensive form premises -operations, explosions and collapse hazard,
underground hazard and products completed hazard with limits of not less
than $3,000,000;
E. The liability insurance policies required by this section shall be maintained by
the grantee, franchisee, or lessee throughout the term of the public way
agreement, franchise, or lease, and such other period of time during which
the grantee, franchisee, or lessee is operating without a public way 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 way agreement,
franchise, or lease. Any deductibles or self-insured retentions must be
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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 way
agreement, franchise, or lease. (Ord. 5034 19 1, 1998.)
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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 RCW Title 51,
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 Way 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 RCW Title 51, 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 Way Agreement, franchise, or lease, or pursuant to any other
permit or approval issued in connection with this Public Way 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 Way 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 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 i n
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 RCW Title 51, 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 Way 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
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. (Ord. 5034 9 1,
1998.)
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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.
(Ord. 5034 91,1998.)
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 percent of the
City engineer's estimate of the performance bond amount (ACC 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.
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. (Ord. 5034 19 1, 1998.)
20.10.260 Performance Bond.
All performance bonds provided in accordance with this title shall comply with the
minimum standards in Chapter 12.24 ACC. (Ord. 5034 Q 1, 1998.)
20.10.270 Coordination of Construction Activities.
ACC 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.
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, seven days a week, regarding problems or complaints resulting from
the attachment, installation, operation, use, maintenance, or removal of
commercial utility or telecommunications 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 24 hours a day, seven 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. (Ord. 503413 1, 1998.)
20.10.280 Assignments or Transfers of Public Way Agreements, Franchises, or
Leases.
The assignment or transfer of any business 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 transfered before construction of such systems has been completed
to the city's satisfaction without 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.
B. The grantee, franchisee, or lessee and the proposed assignee or transferee of
the public way agreement, franchise, or lease shall provide and certify the
following information to the city not less than 90 calendar days prior to the
proposed date of transfer:
1. Complete information setting forth the nature, terms and
conditions of the proposed transfer or assignment relating to the
public way agreement, franchise or lease;
2. All information required by a public way agreement, franchise,
or lease applicant pursuant to this title with respect to the
proposed transferee or assignee;
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3. Any other information reasonably required by the City; and
4. A nonrefundable application fee in the amount of $75.00.
C. No transfer shall be approved unless the assignee or transferee meets the
requirements contained in ACC 20.04.040(A) and (I), and can comply with the
requirements of the public way agreement, franchise, or lease.
D. Unless otherwise provided in an public way 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 way agreement, franchise,
or lease. No approval shall be deemed approved until all such costs and
expenses have been paid.
E. Any transfer or assignment of a public way agreement, franchise, lease,
without prior written approval of the City under this section or pursuant to
an public way agreement, franchise, or lease agreement shall be void and is
cause for termination of the public way agreement, franchise, or lease. (Ord.
5034131,1998.)
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 percent 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 telecommunications system, facilities or substantial parts
thereof, shall be considered an assignment or transfer requiring City approval
pursuant to ACC 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 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
way 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. (Ord. 503413 1, 1998.)
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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 property 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;
D. Unauthorized assignment of a public way agreement, franchise, or lease;
E. Unauthorized sale, assignment or transfer of a grantee, franchisee, or lessee's
public way 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
L. Violation of the material terms of an public way agreement, franchise, or
lease agreement. (Ord. 5034 91, 1998.)
20.10.310 Notice and Duty to Cure.
In the event that the City believes that grounds exist for termination or revocation
of a public way agreement, franchise, or lease, the grantee, franchisee, or lessee shall
be given written notice of the apparent violation or noncompliance, providing a
72
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. (Ord. 5034 9 1, 1998.)
20.10.320 Public Hearing.
In the event that a grantee, franchisee, or lessee fails to respond to the notice
described in ACC 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 ACC 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 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. (Ord. 5034 B 1, 1998.)
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 way 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 way 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 way agreement, franchise, or lease granted
hereunder, and to recover reasonable and documented damages and costs incurred
by the City by reason 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
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determination under this section:
A. Whether the misconduct was egregious;
B. Whether substantial harm resulted;
C. Whether the violation was intentional;
D. Whether there is a history of prior violations of the same or other
requirements;
E. Whether there is a history of overall compliance;
F. Whether the violation was voluntarily disclosed, admitted or cured. (Ord.
5034 81, 1998.)
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 more than $1,000 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:
1. That the violation giving rise to the action was caused by the
willful act, or neglect, or abuse of another; or
2. 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 council. The public works director or designee shall notify the finance
74
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. (Ord. 5034
Q 1,1998.)
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 (ACC 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;
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
75
events reasonably beyond its ability to control;
I. Assess civil penalties pursuant to ACC 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 way
agreement, franchise, approval, lease, or permit issued or granted hereunder,
as set forth in ACC 20.10.300 through 20.10.340. (Ord. 5034 Q 1, 1998.)
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. (Ord. 5034 8 1, 1998.)
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. (Ord. 5034 Q 1, 1998.)
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 all 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. (Ord. 5034 9 1, 1998.)
20.10.390 Incorporation by Reference.
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The provisions of this chapter shall be incorporated by reference in any public way
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 way agreement, franchise, or lease. However, in the event of
any conflict between the proposal, this chapter, and the public way agreement,
franchise, or lease, the public way agreement, franchise, or lease shall be the
prevailing document. (Ord. 5034 9 1, 1998.)
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 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. (Ord.
5034 B 1, 1998.)
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 way 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 telecommunications
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. (Ord. 5034 B 1, 1998.)
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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 ACC 20.06.180(N), Best Rates). (Ord. 5034 9 1, 1998.)
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 ACC Title 18.
(Ord. 5034 Q 1, 1998.)
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 its 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. (Ord. 5034 B 1,
1998.)
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 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
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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. (Ord. 5034 8 1, 1998.)
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 telecommunications 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. (Ord. 5034 B 1, 1998.)
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, may install and maintain City -
owned overhead facilities upon such poles, and conduits in open trenches, for
police, fire, illumination, and other noncommercial 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 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
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franchisee's equipment. (Ord. 5034 f3 1, 1998.)
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. (Ord. 5034 9 1, 1998.)
Chapter 20.12
OPEN VIDEO SYSTEMS
(Reserved)
Ordinance Table
a