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Home My WebLink About11-23-2020 CITY COUNCIL STUDY SESSION AGENDACity Council Study Session Finance, Technology and Economic Dev elopment Special Focus Area Nov ember 23, 2020 - 5:30 P M Virtual A GE NDA Watch the meeting L I V E ! Watch the meeting video Meeting videos are not available until 72 hours after the meeting has concluded. I .C A L L TO O R D E R I I .V I RT UA L PA RT I C I PAT I O N L I NK A .Virtual Participation L ink The A uburn City Council Study Session Meeting scheduled for Monday, November 23, 2020 at 5:30 p.m. will be held virtually and telephonically. To attend the meeting virtually please click the link or enter the meeting I D into the Z oom app or call into the meeting at the phone number listed below. P er the Governor's Emergency P roclamation 20-28, the City of A uburn is prohibited from holding an in-person meeting at this time. City of A uburn R esolution No. 5533, designates City of Auburn meeting locations for all C ouncil, B oard and Commission meetings as virtual. A ll meetings will be held virtually and telephonically until K ing C ounty enters into P hase 3 of Governor I nslee’s S afe S tart — Washington’s P hased Reopening plan. The link to the Virtual Meeting or phone number to listen to the Council Meeting is: J oin from a P C, Mac, iPad, iP hone or A ndroid device: P lease click this UR L to join. https://zoom.us/j/93714254594 Or join by phone: 253 215 8782 877 853 5257 (Toll F ree) Webinar I D: 937 1425 4594 B .Roll Call I I I .A NNO UNC E ME NT S , R E P O RT S , A ND P R E S E NTAT I O NS I V.A G E ND A MO D I F I C AT I O N Page 1 of 378 V.A G E ND A I T E MS F O R C O UNC I L D I S C US S I O N A .E ngineering Design Standards Update (Gaub)(15 Minutes) B .Ordinance No. 6790, 6797 and 6798 (Gaub)(Tate)(25 Minutes) Ordinances amending and repealing language of the A uburn City Code related to updating provisions for telecommunications, cable and other utility facilities C.Ordinance No. 6804 (Tate)(10 Minutes) A n Ordinance amending the A uburn City Code relating to S chool I mpact F ees for 2021 D.Ordinance No. 6803 and 6807 (Tate) (35 Minutes) Ordinances relating to the 2020 Annual Comprehensive P lan Map and Text A mendments V I .F I NA NC E, T E C HNO L O G Y A ND E C O NO MI C D E V E L O P ME NT D I S C US S I O N I T E MS A .Ordinance No. 6805 (T homas)(15 Minutes) A n Ordinance amending Ordinances Nos. 6693 and 6694, the 2019-2020 Biennial B udget Ordinances, as amended by Ordinance No. 6712, Ordinance No. 6719, Ordinance No. 6720, Ordinance no. 6751, Ordinance No. 6752, Ordinance No. 6764, and Ordinance No. 6783, authorizing amendment to the 2019-2020 Budget as set forth in Schedule “A ” and S chedule “B” B .3rd Quarter 2020 F inancial Report (T homas)(20 Minutes) 3rd Quarter 2020 F inancial Report V I I .O T HE R D I S C US S I O N I T E MS V I I I .NE W B US I NE S S I X.A D J O UR NME NT Agendas and minutes are available to the public at the City Clerk's Office, on the City website (http://www.auburnwa.gov), and via e-mail. Complete agenda packets are available for review at the City Clerk's Office. Page 2 of 378 AGENDA BILL APPROVAL FORM Agenda Subject: Engineering Design Standards Update (Gaub)(15 Minutes) Date: November 17, 2020 Department: Public Works Attachments: Pres entation Budget Impact: Current Budget: $0 Proposed Revision: $0 Revised Budget: $0 Administrativ e Recommendation: For discussion only. Background Summary: Updates to the Engineering Design Standards are scheduled to be published in early 2021. Per ACC 12.04.010 the City Engineer will consult with City Council regarding changes to design standards that are “policy issues or [have] broad citywide implications”. Changes to requirements associated with the following standards will be discussed: Downtown Auburn Sidewalk Design Guidelines and street design standards for shared driveways and local streets maximum grades. Rev iewed by Council Committees: Councilmember:Brown Staff:Gaub Meeting Date:November 23, 2020 Item Number: Page 3 of 378 A U B U R N V A L U E S S E R V I C E E N V I R O N M E N T E C O N O M Y C H A R A C T E R S U S TA I N A B I L I T Y W E L L N E S S C E L E B R A T I O N ENGINEERING SERVICES ENGINEERING DESIGN STANDARDS UPDATE JACOB SWEETING, CITY ENGINEER CITY COUNCIL STUDY SESSION NOVEMBER 23, 2020 Public Works Department Engineering Services Airport Services Maintenance & Operations Services Page 4 of 378 SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION ACC 12.04.020 requires public infrastructure improvements to comply with the City’s Engineering Design and Construction Standards The Standards include several parts: Design Standards Surface Water Management Manual Construction Specifications Construction Details ENGINEERING DESIGN STANDARDS OVERVIEW SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION Page 5 of 378 SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION ENGINEERING DESIGN STANDARDS SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION Developed and Published by the City Engineer Minor design standard changes and corrections are not typically discussed with City Council. Per ACC 12.04.010 City Engineer will consult with the City Council regarding changes to design standards that are policy issues or have broad citywide implications. Page 6 of 378 SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION Downtown Auburn Sidewalk Design Guidelines Applicability Street trees and Street Corners Pedestrian Crosswalks Street Design Standards Shared driveways Maximum Roadway Grades ITEMS FOR COUNCIL CONSULTATION Page 7 of 378 SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION Downtown Auburn Sidewalk Design Guidelines Applicability Street trees and Street Corners Pedestrian Crosswalks Street Design Standards Shared driveways Maximum Roadway Grades ITEMS FOR COUNCIL CONSULTATION Page 8 of 378 SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION DOWNTOWN URBAN CENTER SIDEWALK GUIDELINES SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION Originally adopted by Resolution 4271 Updated by Council Downtown Committee 2 times Provides Design Guidance within Downtown Urban Center (DUC) Zone w/excluded area Guidelines Scope Page 9 of 378 SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION DOWNTOWN URBAN CENTER SIDEWALK GUIDELINES SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION Current Standard: Applies to all streets within DUC Zone Exceptions: Streets west of C St. Division St. from 3rd St. SE/SW to Main St. = Promenade A St SW/NW = 4’x 6’ tree grates Page 10 of 378 SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION DOWNTOWN URBAN CENTER SIDEWALK GUIDELINES SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION Proposed Standard: Include original exceptions Add exception for 8 ft sidewalks on A St NW/SW Add exception for local streets except N. Division St. and B St. NE Add clarification that standards apply to streets at DUC Zone limits that are not exempted Page 11 of 378 SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION DOWNTOWN URBAN CENTER SIDEWALK GUIDELINES SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION Pedestrian CrosswalksCurrent Standard: Does not include stamped brick pattern Includes stamped and colored brick pattern on each side of crosswalk Proposed Standard: Page 12 of 378 SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION DOWNTOWN URBAN CENTER SIDEWALK GUIDELINES SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION Current Standard: Does not specify which types of development activities trigger upgrades to crosswalks Proposed Standard: Crosswalks on arterials upgraded when half or more of the pavement width of the crosswalk is a full-depth re-build Crosswalks on non-arterials upgraded when half or more of the pavement width of the crosswalk is re-surfaced Pedestrian Crosswalks Page 13 of 378 SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION DOWNTOWN URBAN CENTER SIDEWALK GUIDELINES SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION Current Standard: Requires street trees in grates in all sidewalks Proposed Standard: Only require street trees in grates in 10-foot sidewalks Not required on Auburn Way Street Trees in Grates Page 14 of 378 SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION DOWNTOWN URBAN CENTER SIDEWALK GUIDELINES SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION Current Standard: Requires bricked area at all street corners Proposed Standard: Only requires bricks at corners w/1-leg having 10-foot sidewalks or where a curb bulb-out is required. Bricks at Street Corners Page 15 of 378 SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION DOWNTOWN URBAN CENTER SIDEWALK GUIDELINES SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION Bricks at Street Corners Current Standard: Does not specify which types of development activities trigger upgrades to street corners Proposed Standard: When 1 or more curb ramp is replaced at a street corner the full corner with the replaced ramp must be upgraded as applicable Page 16 of 378 SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION Downtown Auburn Sidewalk Design Guidelines Applicability Street trees and Street Corners Pedestrian Crosswalks Street Design Standards Shared driveways Maximum Roadway Grades ITEMS FOR COUNCIL CONSULTATION Page 17 of 378 SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION SHARED DRIVEWAYS SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION Current Standards: Sidewalks on one side (2+ homes) Geometrics of local street Minimum widths 600 feet max length Maximum of 6 lots Page 18 of 378 SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION SHARED DRIVEWAYS SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION Proposed Standard: Provide for exemption from certain standards for existing residential lots on existing shared driveways that would: Impact existing structures and buildings Require additional property acquisition Impact Critical Areas Page 19 of 378 SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION SHARED DRIVEWAYS SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION Proposed Standard: Provide for exemption from certain standards for existing residential lots on existing shared driveways that would: Impact existing structures and buildings Require additional property acquisition Impact Critical Areas Page 20 of 378 SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION SHARED DRIVEWAYS SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION Proposed Standard: Provide for exemption from certain standards for existing residential lots on existing shared driveways that would: Impact existing structures and buildings Require additional property acquisition Impact Critical Areas Page 21 of 378 SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION SHARED DRIVEWAYS SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION Current Standard: Requires all shared driveways to comply with maximum grade requirements for local streets (8% to 10%) Proposed Standard: Increase maximum allowed grade to 12% where no existing or future public utilities No public maintenance required Landing at connection to ROW still required. Page 22 of 378 SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION DESIGN STANDARDS - STREETS SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION Maximum Roadway Grades: Current Standard: Requires deviation to exceed maximum allowed roadway grades. Proposed Standard: Provides for increase of local street grades to 10% without deviation provided all other geometric standards are met. Page 23 of 378 SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION Finalize standards January 2021 – Adopt and Publish Questions? NEXT STEPS/QUESTIONS SERVICE ENVIRONMENT ECONOMY CHARACTER SUSTAINABILITY WELLNESS CELEBRATION Page 24 of 378 AGENDA BILL APPROVAL FORM Agenda Subject: Ordinance No. 6790, 6797 and 6798 (Gaub)(Tate)(25 Minutes) Date: November 17, 2020 Department: Public Works Attachments: Staff Presentation Ordinance No. 6790 Ordinance No. 6790 Exhibits A-D Ordinance No. 6797 Ordinance No. 6797 Exhibits A-C Ordinance No. 6798 Ordinance No. 6798 Exhibits A-C Budget Impact: Current Budget: $0 Proposed Revision: $0 Revised Budget: $0 Administrativ e Recommendation: For discussion only. Background Summary: Due to changes in Federal and State regulations that govern the regulation of utilities, telecommunications and cable facilities in the public ways, on city property and on private property, staff has determined that updates to the Auburn City Code are necessary. Because the proposed amendments or repealing of language in each Title, Chapter and Section for each Ordinance are related, they are being presented collectively. Staff intends to bring all three Ordinances forward to City Council on December 21, 2020 for approval. Ordinance No. 6790 amends Chapters 3.42, 3.84, 3.88 and 5.84 of the Auburn City Code. Key changes to these Chapters are as follows: Align definitions with those in Title 20 for utilities, telecommunications and cable. Modernize procedural provisions to reflect City’s process. Repeal of ACC 3.84.110 as the provision of notification for annexation is addressed by state law. Repeal of ACC 3.88.030 as the provision relating to Occupation License is outdated and duplicative of requirements in Title 5. Repeal of ACC 5.84.010 to remove the purpose statement for this Chapter as it is unnecessary and duplicative. Ordinance No. 6797 amends Chapters 12.24, 12.32 and 13.32A of the Auburn City Code. Key changes to these Chapters are follows: Align definitions with those in Title 20 for utilities, telecommunications and cable. Modernize procedural provisions to reflect City’s process. Ensure that any construction work performed under these Chapters is done per the Page 25 of 378 City’s Engineering Design and Construction Standards. Update requirements, exemptions and process for undergrounding of utilities, telecommunications and cable. Ordinance No. 6798 repeals Chapter 13.36 and 13.44 and amends Title 20 of the Auburn City Code. Key changes to these Chapters and Title are as follows: Update Auburn City Code in conformance with current federal and state requirements for utilities, telecommunications and cable in the public ways and on city owned facilities and property. Align and update definitions in Title 20 for utilities, telecommunications and cable. Modernize procedural provisions to reflect City’s process. Repeal of Chapter 13.36 ACC and move and update the provisions related to cable franchises to Title 20 ACC to reflect current federal requirements. Repeal of Chapter 13.44 ACC as the provisions are outdated and addressed under the provisions of Title 20 ACC. Remove provisions for Public Way Agreements from Title 20 ACC as the City will not enter into Public Way Agreements in the future. Move all general provisions that would apply to all types of facilities, franchises, leases and agreements under Title 20 ACC into Chapter 20.02 ACC. Move all utilities and telecommunications franchise requirements into Chapter 20.04 ACC. Move all cable franchise requirements into Chapter 20.06 ACC. Clarify, update, and repeal any unnecessary provisions under Chapter 20.08 ACC for facilities lease agreements. Repeal of Chapter 20.10 ACC and move and update the general and specific provisions into Chapters 20.02, 20.04, 20.06 and 20.08 as applicable. Repeal of Chapter 20.12 ACC as this chapter is empty. In addition to these Ordinances, changes are also being proposed in Titles 17 and 18 that are currently being reviewed by the Planning Commission. Staff intends to bring proposed changes in Titles 17 and 18 to City Council Study Session for review and discussion on December 14, 2020 and to City Council for approval on December 21, 2020. The proposed amendments or repealing of language to the Auburn City Code are also subject to review by the Washington State Department of Commerce and subject to the State Environmental Policy Act and were transmitted to those agencies for review in October 2020. Rev iewed by Council Committees: Councilmember:Brown Staff:Gaub Meeting Date:November 23, 2020 Item Number: Page 26 of 378 Page 27 of 378 Page 28 of 378 Page 29 of 378 Page 30 of 378 Page 31 of 378 Page 32 of 378 Page 33 of 378 Page 34 of 378 Page 35 of 378 Page 36 of 378 Page 37 of 378 Page 38 of 378 -------------------------------- Ordinance No. 6790 October 26, 2020 Page 1 of 4 Rev. 2019 ORDINANCE NO. 6790 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, RELATING TO UPDATING THE PROVISONS FOR FRANCHISES, AND FINANCE AND LICENSING OF FRANCHISES FOR TELECOMMUNICATIONS, CABLE, AND UTILITIES CONSISTENT WITH CURRENT FEDERAL AND STATE REGULATIONS, AND AMENDING CHAPTERS 3.42, 3.84, 3.88, AND 5.84 OF THE AUBURN CITY CODE WHEREAS, the City of Auburn adopted Ordinance No. 5034 on January 5, 1998 enacting Title 20 entitled “Telecommunications and Other Commercial Utilities” pursuant to Federal and State regulations; and WHEREAS, the City of Auburn adopted Ordinance No. 4625 on May 5, 1993 enacting Chapter 13.36 entitled “CATV Systems” pursuant to Federal and State regulations; and WHEREAS, the City of Auburn adopted Ordinance No. 6170 on April 7, 2008 creating a new Chapter 3.42 of the Auburn City Code entitled Cable Television Utility Tax and amending Section 3.84.040 and 3.88.040 relating to the levy and collection of utility taxes for cable television, telephone and utility businesses operating within the corporate limits of the City; and WHEREAS, the City of Auburn adopted Ordinance No. 5044 on January 5, 1998 creating a new Chapter 5.84 of the Auburn City Code relating to the procedures for application and approval of business licensing for utility and telecommunications businesses; and WHEREAS, the City has made only minor updates as necessary throughout the entire Auburn City Code since the adoption of Ordinance Nos. 4625, 5034, 5044 and Page 39 of 378 -------------------------------- Ordinance No. 6790 October 26, 2020 Page 2 of 4 Rev. 2019 6170 as it relates to the regulation, taxing and licensing of telecommunications, cable, and other utilities in the public ways and on city property or on private property; and WHEREAS, due to changes in Federal and State regulations that govern the regulation of such industries and their presence within the City, it is necessary to update the Auburn City Code in all titles, chapters and sections that authorize, regulate, affect or otherwise govern the review, construction, placement and siting of such telecommunications, cable and other utility facilities in the public ways and on city property or on private property; and WHEREAS, the City also seeks to clarify and update terms, procedural requirements and approval processes for permits, franchises, leases and licensing for telecommunications, cable and other utility facilities placed in the public ways, on city owned property or facilities, and on private property; and WHEREAS, the proposed amendments and changes to the Auburn City Code that are the subject of this Ordinance were also subject to state agency review by the Washington State Department of Commerce on or about October 9, 2020; and WHERAS, the proposed amendments and changes to the Auburn City Code that are the subject of this Ordinance were also subject to State Environmental Policy Act review and decision issued October 19, 2020. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, DO ORDAIN as follows: Section 1. Amendment to City Code. Chapter 3.42 of the Auburn City Code is amended to read as shown in Exhibit A. Page 40 of 378 -------------------------------- Ordinance No. 6790 October 26, 2020 Page 3 of 4 Rev. 2019 Section 2. Amendment to City Code. Chapter 3.84 of the Auburn City Code is amended to read as shown in Exhibit B. Section 3. Amendment to City Code. Chapter 3.88 of the Auburn City Code is amended to read as shown in Exhibit C. Section 4. Amendment to City Code. Chapter 5.84 of the Auburn City Code is amended to read as shown in Exhibit D. Section 5. Implementation. The Mayor is authorized to implement those administrative procedures necessary to carry out the directives of this legislation. Section 6. Severability. The provisions of this ordinance are declared to be separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section, or portion of this ordinance, or the invalidity of the application of it to any person or circumstance, will not affect the validity of the remainder of this ordinance, or the validity of its application to other persons or circumstances. Section 7. Effective date. This Ordinance will take effect and be in force five days from and after its passage, approval, and publication as provided by law, or on January 1, 2021, whichever is later. INTRODUCED: _______________ PASSED: ____________________ APPROVED: _________________ ____________________________ NANCY BACKUS, MAYOR Page 41 of 378 -------------------------------- Ordinance No. 6790 October 26, 2020 Page 4 of 4 Rev. 2019 ATTEST: ____________________________ Shawn Campbell, MMC, City Clerk APPROVED AS TO FORM: ____________________________ Kendra Comeau, City Attorney Published: ____________________ Page 42 of 378 ------------------------- ORD 6790 EXHIBIT A PAGE 1 of 3 ORDINANCE 6790 EXHIBIT A Chapter 3.42 CABLE TELEVISION UTILITY TAX Sections: 3.42.010 Tax created. 3.42.020 Levy and collection of tax. 3.42.010 Tax created. There is created a utility tax in the amount of six percent to be levied as set forth below of the gross receipts revenues against and upon the total annual revenues of cable television businesses operating within the city. Gross Revenues for the purposes of calculating franchise fees shall be as set forth in any franchise agreement. (Ord. 6620 § 1, 2016; Ord. 6170 § 5, 2008.) 3.42.020 Levy and collection of tax. There is levied a tax of six percent on the gross revenues income of, and upon the total annual revenues of, cable television businesses operating within the city, which tax shall be collected from and levied upon the total receipts of such cable television business(es). For the purposes hereof, the following terms and definitions shall apply: A. “Gross revenuesincome” means the value proceeding or accruing from the sale of any tangible personal property and/or for services rendered, without any deduction on account of the cost of property sold, the cost of materials use, labor costs, interest, discount paid, delivery costs, taxes, or any other expense whatsoever paid or accrued and without any deduction on account of losses. Gross Revenues for the purposes of calculating franchise fees shall be as set forth in any franchise agreement. property or service, and receipts (including all sums earned or charged, Page 43 of 378 ------------------------- ORD 6790 EXHIBIT A PAGE 2 of 3 whether received or not), by reason of the investment of capital in the business engaged in, including rentals, royalties, fees, or other emoluments, however designated (excluding receipts or proceeds from the use or sale of real property or any interest therein, and proceeds from the sale of notes, bonds, mortgages, or other evidences of indebtedness, or stocks and the like) and without any deduction on account of the cost of the property sold, the cost of materials used, labor costs, interest or discount paid, or any expense whatsoever, and without any deduction on account of losses, including the amount of credit losses actually sustained by the taxpayer whose regular books or accounts are kept upon an accrual basis. B. “Cable television business” means: 1. A a system providing cable service pursuant to a franchise issued by the city under the Cable Communications Policy Act of 1984 Public Law No. 98-549, 47 U.S.C. Section 521, as it may be amended or superseded.; or 2. Any system that competes directly with such franchised system by employing antennas, microwaves, wires, wave guides, coaxial cables, or other conductors, equipment or facilities designed, construed or used for the purpose of: a. Collecting and amplifying local and distant broadcast television signals and distributing and transmitting them; b. Transmitting original cable-cast programming not received through television broadcast signals; or c. Transmitting television pictures, film and videotape programs not received through broadcast television signals, whether or not encoded or processed to permit reception by only selected receivers; provided, however, that “cable television service” shall not include entities that are subject to charges as “commercial TV stations” under 47 U.S.C. Section 158, as it may be amended or superseded. Page 44 of 378 ------------------------- ORD 6790 EXHIBIT A PAGE 3 of 3 C. The tax revenue generated by one percent levied pursuant to Ordinance No. 6170 shall be relegated for use by the city in support of its arterial street system. The tax revenue generated by the remaining five percent levied pursuant to Ordinance No. 6620 shall be relegated for use by the city in support of its police, public safety and criminal justice system. (Ord. 6620 § 2, 2016; Ord. 6170 § 5, 2008.) Page 45 of 378 ------------------------- ORD 6790 EXHIBIT B PAGE 1 of 8 ORDINANCE 6790 EXHIBIT B Chapter 3.84 TELEPHONE BUSINESS Sections: 3.84.010 Defined. 3.84.020 Competitive telephone service defined. 3.84.030 Business License – Required. 3.84.040 Tax – Imposed. 3.84.050 Tax – Payment schedule. 3.84.060 Tax – Deductions. 3.84.063 Allocation of income – Cellular telephone service. 3.84.065 Authority of administrator. 3.84.067 Rate change. 3.84.070 Records required. 3.84.080 Tax – Late penalty. 3.84.090 Credit and refund. 3.84.100 Annexation notification. Repealed 3.84.110 Constitutionality. 3.84.120 Regulation promulgation. 3.84.130 Applicable provisions. 3.84.010 Defined. A. “Telephone business” means the business of providing access to a local telephone network, local telephone network switching service, toll service, cellular telephone service, or coin telephone services, or providing telephonic, video, data, or similar communication or transmission for hire, via a local telephone network, toll line or channel, or similar communication or transmission system, and as more fully defined in RCW 82.04.065. It includes cooperative or farmer line telephone companies or associations operating an exchange. “Telephone business” does not Page 46 of 378 ------------------------- ORD 6790 EXHIBIT B PAGE 2 of 8 include the providing of competitive telephone service, nor the providing of cable television service, nor the providing of broadcast services by radio or television stations. B. “Cellular telephone service” is a two-way voice and data telephone/telecommunications system based in whole or substantially in part on wireless radio communications and which is not subject to regulation by the Washington Utilities and Transportation Commission (WUTC). This includes cellular mobile service. The definition of cellular mobile service includes other wireless radio communications services such as specialized mobile radio (SMR), personal communications services (PCS), and any other evolving wireless radio communications technology which accomplishes a purpose similar to cellular mobile service. (Ord. 5673 § 2, 2002; Ord. 4722 § 1, 1994; Ord. 3679 § 4, 1981. Formerly 5.82.010.) 3.84.020 Competitive telephone service defined. “Competitive telephone service” means the providing by any person of telecommunications equipment, apparatus, or service related to that equipment or apparatus, such as repair or maintenance services, if the equipment or apparatus is of a type which can be provided by persons that are not subject to regulation as telephone companies under RCW Title 80 RCW, and for which a separate charge is made. Transmission of communication through cellular telephones is classified as “telephone business” in ACC 3.84.010 rather than “competitive telephone service.” (Ord. 5673 § 2, 2002; Ord. 4722 § 2, 1994; Ord. 4594 § 2, 1992; Ord. 3679 § 4, 1981. Formerly 5.82.020.) 3.84.030 Business License – Required. On and after January 1, 1982, no person, firm or corporation shall engage in or carry on any business, occupation, act or privilege for which a tax is imposed by ACC 3.84.040 without first having obtained, and being the holder of, a license so to do so, Page 47 of 378 ------------------------- ORD 6790 EXHIBIT B PAGE 3 of 8 to be known as an occupation a business license pursuant to Title 5 ACC. Each such person, firm or corporation shall promptly apply to the Auburn business license clerk, as designated by the mayor, for such license upon such forms as the business license clerk shall prescribe, giving such information as the business license clerk shall deem reasonably necessary to enable the business license clerk’s office to administer and enforce this chapter, and, upon acceptance of such application by the business license clerk, the business license clerk shall thereupon issue such license to the applicant. Such occupation license shall be personal and nontransferable and shall be valid as long as the licensee shall continue in the business and shall comply with this chapter. (Ord. 5897 § 1, 2005; Ord. 5673 § 2, 2002; Ord. 3679 § 3, 1981. Formerly 5.82.030.) 3.84.040 Tax – Imposed. On and after July 1, 2008, there is levied upon and there shall be collected from every person, firm or corporation engaged in carrying on the following business for hire or for sale of a commodity or a service within or partly within the corporate limits of the city, a tax for the privilege of so doing business as defined in ACC 3.84.010. Upon any telephone business there shall be levied a tax equal to six percent of the total gross operating revenues, including revenues from intrastate tolls derived from the operation of such business within the city. Gross Revenues for the purposes of calculating Franchise Fees shall be as set forth in any franchise agreement.Gross operating revenues for this purpose shall not include charges which are passed on to the subscribers by a telephone company pursuant to tariffs required by regulatory order to compensate for the cost to the company of the tax imposed by this chapter. The increase in tax revenue generated by the additional one percent tax levied pursuant to Ordinance No. 6170 shall be relegated for use by the city in support of its arterial street system. It is provided, however, that if the state of Washington provides a long-term sustainable funding source to the city of Auburn arterial street fund in an amount sufficient to off-set the amount of the increases in utility tax rates of this chapter and the long-term funding source is sufficient to maintain the city of Auburn’s arterial street system’s pavement condition index (PCI) at an average of 70 PCI out Page 48 of 378 ------------------------- ORD 6790 EXHIBIT B PAGE 4 of 8 of a score of 100 PCI for the foreseeable future, the telephone utility tax rate shall automatically revert to five percent of the total gross operating revenues on telephone businesses, including revenues from intrastate tolls derived from the operation of such business within the city. (Ord. 6170 § 3, 2008; Ord. 5797 § 1, 2003; Ord. 5673 § 2, 2002; Ord. 4185 § 2, 1986. Formerly 5.82.040.) 3.84.050 Tax – Payment schedule. The tax imposed by this chapter shall be due and payable in quarterly installments and remittance shall be made on or before the thirtieth day of the month next succeeding the end of the quarterly period in which the tax accrued. Such quarterly periods are as follows: First quarter – January, February, March Second quarter – April, May, June Third quarter – July, August, September Fourth quarter – October, November, December The first payment made hereunder shall be made by April 30, 1982, for the three- month period ending March 31, 1982. On or before the due date the taxpayer shall file with the city clerk a written return, upon such form and setting forth such information as the clerk shall reasonably require, together with the payment of the amount of the tax. (Ord. 5673 § 2, 2002; Ord. 3679 § 5, 1981. Formerly 5.82.050.) 3.84.060 Tax – Deductions. In computing the tax there shall be deducted from the gross operating revenues the following items: A. The amount of credit losses and uncollectibles actually sustained by the taxpayer; Page 49 of 378 ------------------------- ORD 6790 EXHIBIT B PAGE 5 of 8 B. A deduction from gross revenuesincome shall be allowed, only to cellular telephone service companies which keep their regular books of account on an accrual basis, for the total amount of cash discounts and credit losses actually sustained by a taxpayer as a result of cellular telephone service business which shall be phased in as follows: 20 percent of the credit losses occurring in 1995; 40 percent of the credit losses occurring in 1996; 60 percent of the credit losses occurring in 1997; 80 percent of the credit losses occurring in 1998; and a complete deduction for the credit losses occurring in 1999 and thereafter; C. Amounts derived from transactions in interstate or foreign commerce or from any business which the city of Auburn, Washington, is prohibited from taxing under the Constitutions of the United States or the state of Washington; D. Amounts derived by the taxpayer from the city of Auburn, Washington; E. That portion of the gross revenuesincome derived from charges to another telecommunications company, as defined in RCW 80.04.010, for connecting fees, switching charges, or carrier access charges relating to intrastate toll telephone services, or for access to, or charges for, interstate services; F. Charges by a taxpayer engaging in a telephone business to a telecommunications company, as defined in RCW 80.04.010, for telephone service that the purchaser buys for the purpose of resale. (Ord. 5673 § 2, 2002; Ord. 4722 § 3, 1994; Ord. 3679 § 6, 1981. Formerly 5.82.060.) 3.84.063 Allocation of income – Cellular telephone service. A. Service Address. Payments by a customer for the telephone service from telephones without a fixed location shall be allocated among taxing jurisdictions to the location of the customer’s principal service address during the period for which the tax applies. Page 50 of 378 ------------------------- ORD 6790 EXHIBIT B PAGE 6 of 8 B. Presumption. There is a presumption that the service address a customer supplies to the taxpayer is current and accurate, unless the taxpayer has actual knowledge to the contrary. C. Roaming Phones. When the service is provided while a subscriber is roaming outside the subscriber’s normal cellular network area, the gross revenuesincome shall be assigned consistent with the taxpayer’s accounting system to the location of the originating cell site of the call, or to the location of the main cellular switching office that switched the call. D. Dispute Resolution. If there is a dispute between or among the city and another city or cities as to the service address of a customer who is receiving cellular telephone services and the dispute is not resolved by negotiation among the parties, then the dispute shall be resolved by the city and the other city or cities by submitting the issue for settlement to the Association of Washington Cities (AWC). Once taxes on the disputed revenues have been paid to one of the contesting cities, the cellular telephone service company shall have no further liability with respect to additional taxes, penalties, or interest on the disputed revenues so long as it promptly changes its billing records for future revenues to comport with the settlement facilitated by AWC. (Ord. 5673 § 2, 2002; Ord. 4722 § 4, 1994. Formerly 5.82.063.) 3.84.065 Authority of administrator. The finance director is authorized to represent the city in negotiations with other cities for the proper allocation of taxes due under ACC 3.84.063. (Ord. 5673 § 2, 2002; Ord. 4722 § 5, 1994. Formerly 5.82.065.) 3.84.067 Rate change. No change in the rate of tax upon persons engaging in providing cellular telephone service shall apply to business activities occurring before the effective date of the change and, except for a change in the tax rate authorized by RCW 35.21.870, no Page 51 of 378 ------------------------- ORD 6790 EXHIBIT B PAGE 7 of 8 change in the rate of the tax may take effect sooner than 60 days following the enactment of the ordinance establishing the change. The finance director shall send to each cellular telephone service company, at the address on its license, a copy of any ordinance changing the rate of tax upon cellular telephone service promptly upon its enactment. (Ord. 5673 § 2, 2002; Ord. 4722 § 6, 1994. Formerly 5.82.067.) 3.84.070 Records required. Each taxpayer shall keep records reflecting the amount of their gross operating revenues, and such records shall be open at all reasonable times to the inspection of the city clerk, or duly authorized subordinates, for verification of the tax returns or for the fixing of the tax of a taxpayer who shall fail to make such returns. (Ord. 5673 § 2, 2002; Ord. 3679 § 7, 1981. Formerly 5.82.070.) 3.84.080 Tax – Late penalty. If any person, firm or corporation subject to this chapter shall fail to pay any tax required by this chapter within 30 days after the due date thereof, there shall be added to such tax a penalty of 12 percent of the amount of such tax, and any tax due under this chapter and unpaid, and all penalties thereon, shall constitute a debt to the city of Auburn, Washington, and may be collected by court proceedings, which remedy shall be in addition to all other remedies. (Ord. 5673 § 2, 2002; Ord. 3679 § 8, 1981. Formerly 5.82.080.) 3.84.090 Credit and refund. Any money paid to the city of Auburn, Washington, through error or otherwise not in payment of the tax imposed or in excess of such tax shall, upon request of the taxpayer, be credited against any tax due or to become due from such taxpayer under this chapter or, upon the taxpayer’s ceasing to do business in the city of Page 52 of 378 ------------------------- ORD 6790 EXHIBIT B PAGE 8 of 8 Auburn, Washington, be refunded to the taxpayer. (Ord. 5673 § 2, 2002; Ord. 3679 § 9, 1981. Formerly 5.82.090.) 3.84.100 Annexation notification. [Repealed]. Whenever the boundaries of the city of Auburn, Washington, are extended by annexation, all persons, firms and corporations subject to this chapter will be provided copies of all annexation ordinances by the first of the succeeding year. (Ord. 5673 § 2, 2002; Ord. 3679 § 10, 1981. Formerly 5.82.100.) 3.84.110 Constitutionality. The invalidity or unconstitutionality of any provision or section of this chapter shall not render any other provision or section of this chapter invalid or unconstitutional. (Ord. 5673 § 2, 2002; Ord. 3679 § 11, 1981. Formerly 5.82.110.) 3.84.120 Regulation promulgation. The city clerk is authorized to adopt, publish and enforce, from time to time, such rules and regulations for the proper administration of this chapter as shall be necessary, and it shall be a violation of this chapter to violate or to fail to comply with any such rule or regulation lawfully promulgated under this section. (Ord. 5673 § 2, 2002; Ord. 3679 § 12, 1981. Formerly 5.82.120.) 3.84.130 Applicable provisions. The provisions of this chapter shall be subject to the provisions of ACC 3.88.060 through 3.88.100. (Ord. 5673 § 2, 2002; Ord. 3679 § 13, 1981. Formerly 5.82.130.) Page 53 of 378 ------------------------- ORD 6790 EXHIBIT C PAGE 1 of 4 ORDINANCE 6790 EXHIBIT C Chapter 3.88 UTILITY SERVICES Sections: 3.88.010 Exercise of revenue power. 3.88.020 Administration rules and regulations. 3.88.030 Occupation license – Required – Application – Issuance.Repealed 3.88.040 Tax – Levy. 3.88.050 Tax – Exempt revenues. 3.88.060 Tax – Payment – Returns. 3.88.070 Revenue records. 3.88.080 Tax – Payment failure – Penalty and collection. 3.88.090 Tax – Overpayments. 3.88.100 Violation – Penalty. 3.88.010 Exercise of revenue power. The provisions of this chapter shall be deemed to be an exercise of the power of the city to license for revenue. (Ord. 5673 § 3, 2002; 1957 code § 5.42.010. Formerly 5.88.010.) 3.88.020 Administration rules and regulations. The city clerk is authorized to adopt, publish and enforce, from time to time, rules and regulations for the proper administration of this chapter, and it is unlawful to violate or to fail to comply with any such rule or regulation lawfully promulgated under this section. (Ord. 5673 § 3, 2002; 1957 code § 5.42.015. Formerly 5.88.020.) Page 54 of 378 ------------------------- ORD 6790 EXHIBIT C PAGE 2 of 4 3.88.030 Occupation license – Required – Application – Issuance.Repealed After January 1, 1956, no person, firm or corporation shall engage in or carry on any business, occupation, act or privilege for which a tax is imposed by ACC 3.88.040 without first having obtained and being the holder of a license so to do, to be known as an occupation license. Each such person, firm or corporation shall promptly apply to the business license clerk, as designated by the mayor, for such license upon such forms as the business license clerk deems reasonably necessary to enable them to administer and enforce this chapter, and, upon acceptance of such application by the business license clerk, they shall thereupon issue such license to the applicant. Such occupation license shall be personal and nontransferable and shall be valid as long as the licensee continues in said business and complies with this chapter. (Ord. 5897 § 2, 2005; Ord. 5673 § 3, 2002; 1957 code § 5.42.020. Formerly 5.88.030.) 3.88.040 Tax – Levy. On and after July 1, 2008, there is levied upon and there shall be collected from every person, firm or corporation engaged in carrying on an electric power business, natural gas business and/or artificial gas business for hire within or partly within the city limits an annual tax for the privilege of so doing, such tax to be equal to six percent of the total gross revenues received from the operation of such businesses within the city limits. The increase in tax revenue generated by the additional one percent tax levied pursuant to Ordinance No. 6170 shall be relegated for use by the city in support of its arterial street system. It is provided, however, that if the state of Washington provides a long-term sustainable funding source of to the city of Auburn arterial street fund in an amount sufficient to off-set the amount of the increases in utility tax rates of this chapter and the long-term funding source is sufficient to maintain the city of Auburn’s arterial street system’s pavement condition index (PCI) at an average of 70 PCI out of a score of 100 PCI for the foreseeable future, the electric power, natural gas business and artificial gas business utility tax rate shall automatically revert to five percent of the total gross revenues received from the operation of such businesses within the city limits. (Ord. 6170 § 4, 2008; Ord. 5797 Page 55 of 378 ------------------------- ORD 6790 EXHIBIT C PAGE 3 of 4 § 2, 2003; Ord. 5673 § 3, 2002; Ord. 4180 § 1, 1986; Ord. 3827 § 1, 1982; Ord. 3679 § 1, 1981; 1957 code § 5.42.030. Formerly 5.88.040.) 3.88.050 Tax – Exempt revenues. In computing the annual tax there shall be deducted from the gross operating revenues the following items: A. The amount of credit losses and uncollectibles actually sustained by the taxpayer; B. Amounts derived from transactions in interstate or foreign commerce or from any business which the city is prohibited from taxing under the Constitutions of the United States or the state. (Ord. 5673 § 3, 2002; 1957 code § 5.42.040. Formerly 5.88.050.) 3.88.060 Tax – Payment – Returns. The tax imposed by ACC 3.88.040 shall be due and payable quarterly on or before the last day of the month following the end of each quarterly period in each year, with the first quarterly payment payable on the last day in October, 1976. On or before the due date the taxpayer shall file with the city clerk a written return, upon such form and setting forth such information as the clerk shall reasonably require, together with the payment of the amount of the tax. (Ord. 5673 § 3, 2002; Ord. 3085 § 1, 1976; 1957 code § 5.42.050. Formerly 5.88.060.) 3.88.070 Revenue records. Each taxpayer shall keep records reflecting the amount of its gross operating revenues, and such records shall be open at all reasonable times to the inspection of the city clerk, or their duly authorized subordinates, for verification of the tax returns or for the fixing of the tax of a taxpayer who fails to make such returns. (Ord. 5673 § 3, 2002; 1957 code § 5.42.060. Formerly 5.88.070.) Page 56 of 378 ------------------------- ORD 6790 EXHIBIT C PAGE 4 of 4 3.88.080 Tax – Payment failure – Penalty and collection. If any person, firm or corporation subject to this chapter fails to pay any tax required by this chapter within 30 days after the due date thereof, there shall be added to such tax a penalty of 10 12 percent of the amount of such tax, and any tax due under this chapter and unpaid, and all penalties thereon, shall constitute a debt to the city and may be collected by court proceedings, which remedy shall be in addition to all other remedies. (Ord. 5673 § 3, 2002; 1957 code § 5.42.070. Formerly 5.88.080.) 3.88.090 Tax – Overpayments. Any money paid to the city through error or otherwise not in payment of the tax imposed by this chapter or in excess of such tax shall, upon request of the taxpayer, be credited against any tax due or to become due from such taxpayer under this chapter or, upon the taxpayer’s ceasing to do business in the city, be refunded to the taxpayer. (Ord. 5673 § 3, 2002; 1957 code § 5.42.080. Formerly 5.88.090.) 3.88.100 Violation – Penalty. It shall be a misdemeanor punishable in accordance with ACC 1.24.010 for any person, firm or corporation subject to this chapter to fail or refuse to apply for an occupation business license or to make the tax returns or to pay the tax when due, or to make any false statement or representation in or in connection with any such application for an occupation business license or such tax return or otherwise violate or refuse or fail to comply with this chapter. (Ord. 5683 § 15, 2002; Ord. 5673 § 3, 2002; 1957 code § 5.42.090. Formerly 5.88.100.) Page 57 of 378 ------------------------- ORD 6790 EXHIBIT D PAGE 1 of 7 ORDINANCE 6790 EXHIBIT D Chapter 5.84 LICENSING OF TELECOMMUNICATIONS CARRIERS, OPERATORS, PROVIDERS AND OTHER COMMERCIAL UTILITIES Sections: 5.84.010 Purpose of business licensing.Repealed 5.84.020 Definitions. 5.84.030 Business licensing required. 5.84.040 Business license fee. 5.84.050 General penalties. 5.84.060 Other remedies. 5.84.070 Fees and compensation not a tax. 5.84.010 Purpose of business licensing.Repealed The purpose of a business licensing is to: A. Provide the city with accurate and current information concerning the commercial utility providers, cable operators, telecommunications carriers, operators and providers who offer or provide services within the city, or who own or operate facilities within the city’s public ways; B. Assist the city in enforcement of ACC Title 20; C. Assist the city in the collection and enforcement of any municipal taxes, fees or charges that may be due the city; and D. Assist the city in monitoring compliance with local, state and federal laws. (Ord. 5897 § 17, 2005; Ord. 5044 § 1, 1998.) Page 58 of 378 ------------------------- ORD 6790 EXHIBIT D PAGE 2 of 7 5.84.020 Definitions. Except where specifically defined in this chapter, all words used in this title shall carry their customary meanings. For the purpose of this chapter, 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: “Affiliate” shall mean the definition contained in ACC 20.02.020;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; “Cable systemfacilities” shall mean the definition contained in ACC 20.02.020;means equipment and wiring used to transmit audio and video signals to subscribers; “Cable operator” shall mean the definition contained in ACC 20.02.020;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” shall mean the definition contained in ACC 20.02.020;for the purpose of this chapter shall have the same meaning provided by the Cable Act and Chapter 13.36 ACC; “City” means the city of Auburn, Washington as defined in ACC 1.04.010 to include all future areas annexed into the city; “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; “Person” shall mean the definition contained in ACC 20.02.020;means and includes corporations, companies, associations, joint stock companies or associations, firms, Page 59 of 378 ------------------------- ORD 6790 EXHIBIT D PAGE 3 of 7 partnerships, limited liability companies and individuals and includes their lessors, trustees and receivers; “Public way(s)” shall mean the definition contained in ACC 20.02.020; “Telecommunications carrier” shall mean the definition contained in ACC 20.02.020;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; “Telecommunications facilities or system” means lines, conduits, ducts, poles, wires, cables, crossarms, receivers, transmitters, instruments, machines, appliances, instrumentalities, and all devices, real estate, easements, apparatus, property, and routes used, operated, owned, or controlled by any entity to facilitate the provision of telecommunications services; 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” shall mean the definition contained in ACC 20.02.020;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” shall mean the definition contained in ACC 20.02.020;means and includes every person who utilizes facilities within the city’s public ways to provide services outside the city only; “Telecommunications service” shall mean the definition contained in ACC 20.020.020;means the providing or offering for rent, sale or lease, or in exchange for other value received, of the transmittal of voice, data, image, graphic and video programming information between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities, with or without benefit of any closed transmission medium. Page 60 of 378 ------------------------- ORD 6790 EXHIBIT D PAGE 4 of 7 “Utility provider” means any natural gas, electric power, pipeline, water or sewer not owned or operated by the City of Auburn, or other company desiring to utilize the public ways for transporting, purveying, or delivering bulk products, or providing power or gas services within the city, or needing to transport bulk product or services through the city to other destinations for commercial purposes. (Ord. 5044 § 1, 1998.) 5.84.030 Business licensing required. No person, firm or corporation shall engage in or carry on any business, occupation, act or privilege for which a tax is imposed by ACC 3.84.040 or 3.88.040 without first having obtained, and being the holder of, a City of Auburn business license pursuant to Title 5 ACC.with the Auburn business license clerk. Each such person, firm or corporation shall apply to the Auburn business license clerk, as designated by the mayor, for such business license upon such forms as the business license clerk shall prescribe, giving such information as the business license clerk shall deem reasonably necessary to enable the business license clerk’s office to administer and enforce this chapter, and, upon acceptance of such application by the business license clerk, the business license clerk shall thereupon issue such license to the applicant. Such business license shall be nontransferable and shall be valid as long as the licensee shall continue in the business and shall comply with this chapter. All commercial utility providers, cable operators, telecommunication carriers, operators, and providers who offer or provide any commercial utility or telecommunications service for a fee directly to the public, either within the city, or outside the corporate limits from facilities within the city, shall, on an annual basis, apply for and obtain a business license from the city pursuant to this chapter on forms to be provided by the city, which shall include the following: A. Business name, addresses and telephone numbers of the applicant, including business owner(s), partner(s), officer(s) and any affiliates, including the legal status of each. Page 61 of 378 ------------------------- ORD 6790 EXHIBIT D PAGE 5 of 7 B. The name, address, telephone number, and title of the officer, or registered agent responsible for the accuracy of the telecommunications business license application statement. C. Business location, mailing address, street address, and telephone number, and email address if available. D. A description of applicant’s existing or proposed facilities within the city. E. A description of the service that the applicant intends to offer or provide, or is currently offering or providing, to persons, firms, businesses or institutions within the city, or to those outside the city limits using facilities located within the city. F. Information sufficient to determine whether the applicant is subject to the public way permitting and/or franchising requirements imposed by ACC Title 20 ACC and Chapter 12.24 ACC. G. Information sufficient to determine whether the transmission, origination or receipt of the services provided or to be provided by the applicant constitutes an occupation or privilege subject to any municipal telecommunications tax, utility tax or other occupation tax imposed by the city. H. Alias or affiliate relationship such as “doing-business-as” (DBA) status of business. A statement indicating whether the Applicant is directly or indirectly controlled by another corporation or legal entity. If so, Applicant shall attach an explanatory statement. I. Property tax lot parcel number, if applicable. J. Business activity description. K. Storage of hazardous materials (copy of Material Safety Data Sheet (MSDS) sheet). L. Washington State Unified Business Identifier (UBI)/tax registration number. M. Federal ID tax identification number. Page 62 of 378 ------------------------- ORD 6790 EXHIBIT D PAGE 6 of 7 N. Washington State Labor and Industries contractor ID identification number. O. Number of employees in city. P. Emergency contacts available 24 hours daily, seven days a week. (Ord. 5897 § 18, 2005; Ord. 5044 § 1, 1998.) 5.84.040 Business license fee. Each initial and all subsequent annual applications for business licenses for telecommunications carriers, operators, providers, or other commercial utility providers shall be accompanied by an application fee of $25.00 as set forth in the city’s adopted fee schedule for the purpose of reimbursing the city for administrative expenses associated with processing the application. (Ord. 5897 § 19, 2005; Ord. 5044 § 1, 1998.) 5.84.050 General penalties and enforcement. A. Violations of this Chapter shall be enforced and penalized in accordance with Chapter 1.25 ACC.Civil Penalty. 1. A violation of the provisions of this chapter is a civil infraction, punishable in accordance with ACC 1.25.050. 2. Each day of such violation constitutes a separate infraction under this chapter. B. Additional Relief. 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 chapter when penalties provided herein are inadequate to effect compliance. Furthermore, violation of the terms Violations of this chapter shall be grounds for revocation of any public ways agreement, franchise, or lease issued or granted pursuant to ACC Title 20 ACC. (Ord. 5683 § 14, 2002; Ord. 5044 § 1, 1998.) Page 63 of 378 ------------------------- ORD 6790 EXHIBIT D PAGE 7 of 7 5.84.060 Other remedies. Nothing in this chapter shall be construed as limiting any judicial remedies that the city may have, at law or in equity, for enforcement of this chapter. (Ord. 5044 § 1, 1998.) 5.84.070 Fees and compensation not a tax. The fees, charges and fines provided for in this chapter 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 provider, telecommunications carrier, operator, or provider, its customers or subscribers or on account of the lease, sale, delivery or transmission of commercial utility or telecommunications services. (Ord. 5044 § 1, 1998.) Page 64 of 378 -------------------------------- Ordinance No. 6797 October 26, 2020 Page 1 of 4 Rev. 2019 ORDINANCE NO. 6797 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, RELATING TO UPDATING THE PROVISIONS FOR FRANCHISES, CONSTRUCTION, AND UNDERGROUNDING REQUIREMENTS FOR TELECOMMUNICATIONS, CABLE, AND UTILITIES CONSISTENT WITH CURRENT FEDERAL AND STATE REGULATIONS, AND AMENDING CHAPTERS 12.24, 12.32, AND 13.32A OF THE AUBURN CITY CODE WHEREAS, the City of Auburn adopted Ordinance No. 5034 on January 5, 1998 enacting Title 20 entitled “Telecommunications and Other Commercial Utilities” pursuant to Federal and State regulations; and WHEREAS, the City of Auburn adopted Ordinance No. 4625 on May 5, 1993 enacting Chapter 13.36 entitled “CATV Systems” pursuant to Federal and State regulations; and WHEREAS, the City of Auburn adopted Ordinance No. 5042 on January 5, 1998 creating a new Chapter 12.24 of the Auburn City Code entitled “Construction Permits” relating to the procedures for application and approval of construction permits within the public ways or on public property; and WHEREAS, the City of Auburn created Chapter 12.32 of the Auburn City Code entitled “Sidewalk Obstructions” in 1957; and WHEREAS, the City of Auburn adopted Ordinance No. 6238 on August 25, 2009 creating a new Chapter 13.32A of the Auburn City Code entitled “Underground Wiring” and amending certain section of Chapter 13.36 relating to undergrounding for cable facilities; and Page 65 of 378 -------------------------------- Ordinance No. 6797 October 26, 2020 Page 2 of 4 Rev. 2019 WHEREAS, the City has made only minor updates as necessary throughout the entire Auburn City Code since the adoption of Ordinance Nos. 4625, 5034, 5042, and 6238 as it relates to the constructions, undergrounding, permitting and regulation of telecommunications, cable and other utilities in the public ways and on city and public property; and WHEREAS, due to changes in Federal and State regulations that govern the regulation of such industries and their presence within the City, it is necessary to update the Auburn City Code in all titles, chapters and sections that authorize, regulate, affect or otherwise govern the review, construction, placement and siting of such telecommunications, cable and other utility facilities in the public ways and on city property or facilities; and WHEREAS, the City also seeks to clarify and update terms, procedural requirements and approval processes for permits, franchises, leases and licensing for telecommunications, cable and other utility facilities placed in the public ways and on city owned property or facilities WHEREAS, the proposed amendments and changes to the Auburn City Code that are the subject of this Ordinance were also subject to state agency review by the Washington State Department of Commerce on or about October 9, 2020; and WHERAS, the proposed amendment and changes to the Auburn City Code that are the subject of this Ordinance were also subject to State Environmental Policy Act review and decision issued October 19, 2020. Page 66 of 378 -------------------------------- Ordinance No. 6797 October 26, 2020 Page 3 of 4 Rev. 2019 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, DO ORDAIN as follows: Section 1. Amendment to City Code. Chapter 12.24 of the Auburn City Code is amended to read as shown in Exhibit A. Section 2. Amendment to City Code. Chapter 12.32 of the Auburn City Code is amended to read as shown in Exhibit B. Section 3. Amendment to City Code. Chapter 13.32A of the Auburn City Code is amended to read as shown in Exhibit C. Section 4. Implementation. The Mayor is authorized to implement those administrative procedures necessary to carry out the directives of this legislation. Section 5. Severability. The provisions of this ordinance are declared to be separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section, or portion of this ordinance, or the invalidity of the application of it to any person or circumstance, will not affect the validity of the remainder of this ordinance, or the validity of its application to other persons or circumstances. Section 6. Effective date. This Ordinance will take effect and be in force five days from and after its passage, approval, and publication as provided by law, or on January 1, 2021, whichever is later. INTRODUCED: _______________ PASSED: ____________________ APPROVED: _________________ Page 67 of 378 -------------------------------- Ordinance No. 6797 October 26, 2020 Page 4 of 4 Rev. 2019 ____________________________ NANCY BACKUS, MAYOR ATTEST: ____________________________ Shawn Campbell, MMC, City Clerk APPROVED AS TO FORM: ____________________________ Kendra Comeau, City Attorney Published: ____________________ Page 68 of 378 ------------------------- ORD 6797 EXHIBIT A PAGE 1 of 11 ORDINANCE 6797 EXHIBIT A Chapter 12.24 CONSTRUCTION PERMITS Sections: 12.24.010 Required. 12.24.020 Applications. 12.24.030 Engineer of record. 12.24.040 Traffic-control plan. 12.24.050 Performance bond. 12.24.060 Permit – Fee. 12.24.070 Construction codes. 12.24.080 Decision – Permit term. 12.24.090 Contest of city engineer’s decision. 12.24.100 Compliance with permit. 12.24.110 Display of permit. 12.24.120 Survey of underground facilities. 12.24.130 Noncomplying work. 12.24.140 Record drawings. 12.24.150 Restoration after construction. 12.24.160 Standards for construction. 12.24.170 Permittee’s liability. 12.24.180 Release of construction surety. 12.24.190 Violation – Penalty. 12.24.200 Responsibilities of the owner. 12.24.010 Required. All persons, including, but not limited to, franchise utilities, corporations, firms, companies, individuals, government agencies or officials, or any organization of any Page 69 of 378 ------------------------- ORD 6797 EXHIBIT A PAGE 2 of 11 kind, who propose to install overhead or underground facilities, perform construction, or excavate in the public wayinto the surface of any city street, sidewalk or curb, or make any excavation through or underneath any city street, sidewalk or curb, in any street or alley in the city, or across city or public property, must obtain a construction permit to do so from the city engineer prior to any proposed work. Use of, or construction on city property requires a lease, license, or city authorization. In the event of any conflict, rRegarding the following: 1) permitting of any work within city the public ways and 2) lease, license, or authorization by the city for use or construction on city property, in the event of any conflict or city easements, with any other chapter of this code, the procedures set forth in this chapter shall take precedence. A. Prior to applying for a permit for construction or installation of facilities within the city’s public ways the applicant will obtain any business registrationlicense, and/or franchise, and/or right-of-way agreement required in accordance with ACC Titles 5 and 20 ACC. B. Prior to applying for a permit for use of or the construction of approved facilities on city-owned or public property the applicant shall obtain a facilities lease or license agreement from the city in accordance with ACC Title 20 ACC. The city council reserves unto itself the sole discretion to lease city property for any purpose, and no vested or other rights shall be created by this section or any provision of this chapter applicable to such facilities leases. C. This chapter does not apply to utility permits issued under ACC Title 13 ACC. (Ord. 5042 § 1 (Exh. C), 1998.) 12.24.020 Applications. Applications for construction permits shall be submitted to the city engineer upon forms to be provided by the city and shall be accompanied by drawings, plans, specifications, performance bond valued at 125 percent of the estimated cost of work Page 70 of 378 ------------------------- ORD 6797 EXHIBIT A PAGE 3 of 11 including landscape and restoration work anticipated, and a brief narrative description of the project scope in sufficient detail to demonstrate: A. The identity of the applicant, including all affiliates of the applicant; B. A description of the services that are or will be offered or provided by the applicant to others; C. 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, telecommunications, 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 facilities of other carriers; 4. The specific trees, structures, improvements, facilities and obstructions, if any, that applicant proposes to temporarily or permanently remove or relocate; 5. The location of all facilities to be constructed within or immediately adjacent to the public ways on private property. Where use of private property is involved proof of easements will be required prior to permit issuance; 6. The location of all survey monuments which may be displaced or disturbed by the proposed construction; 7. In addition to the other requirements stated herein, the city engineer may require the plans to conform to general plan requirements as specified in the Engineering Design Standards, including the requirement that the plans are stamped by a profession engineer licensed in the State of Washington. D. If applicant is proposing to install overhead facilities, evidence that surplus space is available for locating its facilities on existing utility poles along the proposed route; Page 71 of 378 ------------------------- ORD 6797 EXHIBIT A PAGE 4 of 11 E. If applicant is proposing an underground installation in existing ducts or conduits within the public ways, information in sufficient detail to identify: 1. The excess capacity currently available in such ducts or conduits before installation of applicant’s facilities; 2. The excess capacity, if any, that will exist in such ducts or conduits after installation of applicant’s facilities; and 3. Evidence of ownership or a right to use such ducts or conduits; F. 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 facilities; G. A preliminary construction schedule and completion date; H. 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 services proposed, including, but not limited to, evidence that the applicant has registered the Washington Utilities and Transportation Commission where applicable; I. A permit fee as determined in ACC 12.24.060; J. Proof of ability to meet city’s bonding requirements as set forth in ACC 12.24.050 when the permittee does not have an existing standing bond on file with the city sufficient to cover the scope of work proposed; and K. Demonstration that the facilities will be constructed in accordance with city standards and all other applicable codes, rules and regulations. (Ord. 5042 § 1 (Exh. C), 1998.) Page 72 of 378 ------------------------- ORD 6797 EXHIBIT A PAGE 5 of 11 12.24.030 Engineer of record. Permit applications shall be accompanied by drawings, plans and specifications and identification of the name, telephone number, and address of the engineer having responsible charge of the scope of work covered by the permit. (Ord. 5042 § 1 (Exh. C), 1998.) 12.24.040 Traffic-control plan. All permit applications which involve work on, in, under, across, or along any public ways shall be accompanied by a traffic-control plan demonstrating the protective measures and devices that will be employed, consistent with the latest edition of Manual on Uniform Traffic-Control Devices (MUTCD), as adopted by the Model Traffic Ordinance (ACC 10.04.010) and RCW 47.36.020 to prevent injury or damage to persons or property and to minimize disruptions to pedestrian and vehicular traffic. (Ord. 5042 § 1 (Exh. C), 1998.) 12.24.050 Performance bond. All performance bonds for work in public ways shall satisfy the minimum standards established in the city’s standard specificationsEngineering Design and Construction Standards as adopted in Chapter 12.04 ACC. Unless otherwise provided in a right-of- way agreement, permit, franchise, or lease agreement, a performance bond written by a corporate surety acceptable to the city equal to at least 125 percent of the estimated cost of removing the grantee’s, permittee’s, franchisee’s, or lessee’s equipment and facilities and restoring the public ways of the city and/or city-owned property to its substantially equivalent preconstruction condition shall be deposited before any construction is commenced. Said bond shall be required to remain in full force until 60 days after completion of the construction and/or improvements within the public ways of the city or upon city-owned property as determined by the city engineer, and shall warrant all such restoration work for a period of one year by reduction to an amount approved by the city engineer in the approximate amount of Page 73 of 378 ------------------------- ORD 6797 EXHIBIT A PAGE 6 of 11 10 percent of the original value of the performance bond during the period of warranty. The purpose of this bond is to guarantee removal of partially-completed work and/or nonconforming facilities, to fully restore the public ways of the city and city-owned property to its substantially equivalent preconstruction condition, and/or to cover unexpected deterioration of pavement structures precipitated by the grantee’s permittee’s, franchisee’s, or lessee’s work, and any other permitting requirements established in the permit as required by the city engineer. (Ord. 5042 § 1 (Exh. C), 1998.) 12.24.060 Permit – Fee. A. The city engineer shall have charge of issuing construction permits to all persons upon the application for the permit to perform any work within the city’s public ways, easements, or upon city or public property. The city engineer shall provide application forms to be completed by each applicant. Prior to permit issuance, the city engineer or designee shall assure that a fee for the permit is deposited with the finance department. The fees shall be as shown in the cCity of Auburn adopted fee schedule as adopted by Ordinance 5707, and any amendments thereto. B. The permit fee will be collected at the time the permit is issued or other time as may be established by the city engineer. Upon approval of the application by the city engineer, a permit will be issued to the person paying for the permit. (Ord. 5817 § 4, 2004; Ord. 5042 § 1 (Exh. C), 1998.) 12.24.070 Construction codes. All construction within city public ways or easements shall comply with the city’s Engineering Design and Construction Standardsstreet standards as established in Chapter 12.04 ACC. (Ord. 5042 § 1 (Exh. C), 1998.) Page 74 of 378 ------------------------- ORD 6797 EXHIBIT A PAGE 7 of 11 12.24.080 Decision – Permit term. After submission of all plans and documents required of the applicant and payment of the permit fees required by this chapter, the city will determine whether the applications, plans and documents comply with all requirements of this chapter. Once all city requirements are met the city shall issue a permit authorizing construction of the facilities, subject to such further conditions, restrictions or regulations affecting the schedule, place and manner of performing the work as may be necessary or appropriate in the interest of public safety or welfare. The permit to be issued by the city engineer shall be valid only for the time designated on the permit. The city engineer shall designate the length of time that the permit shall be valid at the time the permit is issued. The city engineer shall exercise their discretion and shall have the sole power to decide whether or not a permit shall be issued at that time, providing that the decision of the city engineer may be changed by the city council upon the review of the merits of a complaint of any person being denied such a permit. If the applicant does not take action in good faith, the application will be considered abandoned after 180 days of non-action. (Ord. 5042 § 1 (Exh. C), 1998.) 12.24.090 Contest of city engineer’s decision. Any person aggrieved by the granting or denying of a construction permit pursuant to this chapter shall have the right of review by the public works director as follows: A. All complaints filed pursuant to this section must be filed in writing with the public works director within 10 working days of the date of the decision being contested; B. All complaints filed pursuant to this section shall specify the error of law or fact, or new evidence which could not have been reasonably available at the time of the city engineer’s decision, which shall constitute the basis of the complaint; C. Upon receipt of a timely written notice of complaint, the public works director shall review the materials submitted and determine whether to uphold or modify the Page 75 of 378 ------------------------- ORD 6797 EXHIBIT A PAGE 8 of 11 city engineer’s decision. If, in the public works director’s judgment, the city engineer’s decision should be amended in favor of resolving the complaint, they shall so direct the same. If the director upholds the city engineer’s decision, they shall prepare a written staff paper detailing the rationale of the city engineer’s decision and findings of fact for conduct of a hearing by the hearing examiner; D. The public works director shall schedule the hearing before the hearing examiner in accordance with Chapter 2.46 ACC and notify the contesting party of the scheduled hearing in accordance with ACC 18.70.040. (Ord. 6442 § 6, 2012; Ord. 5677 § 4, 2002; Ord. 5042 § 1 (Exh. C), 1998.) 12.24.100 Compliance with permit. All construction practices and activities shall be in accordance with the permit and approved final plans and specifications for the facilities. The city shall be provided access to the work and such further information as may be required to ensure compliance. (Ord. 5042 § 1 (Exh. C), 1998.) 12.24.110 Display of permit. The permittee shall maintain a copy of the construction permit and approved plans at the construction site, which shall be displayed and made available for inspection by the city inspector at all times when construction work is occurring. (Ord. 5042 § 1 (Exh. C), 1998.) 12.24.120 Survey of underground facilities. If the construction permit specifies the location of facilities by depth, line, grade, proximity to other facilities or other standard, the permittee shall cause the location of such facilities to be verified by a state-registered land surveyor. The permittee may Page 76 of 378 ------------------------- ORD 6797 EXHIBIT A PAGE 9 of 11 be required to relocate any facilities which are not located in compliance with permit requirements at permittee’s expense. (Ord. 5042 § 1 (Exh. C), 1998.) 12.24.130 Noncomplying work. Upon order of the city engineer, all work which does not comply with the permit, the approved plans and specifications for the work, or the city’s standards and requirementsEngineering Design and Construction Standards as established in Chapter 12.04 ACC shall be remedied to comply with standards or removed at permittee’s expense. (Ord. 5042 § 1 (Exh. C), 1998.) 12.24.140 Record drawings. Within 630 days after completion of construction or in accordance with a separate agreement with the city engineer, the permittee shall furnish the city with a computer disc with record construction drawings in accordance with the city Engineering Design and Construction Standards. Autocadd drawing file format and a complete set of plans, drawn to scale and certified to the city as accurately depicting the horizontal and vertical location and configuration of all facilities constructed pursuant to the permit. The city engineer shall have the discretion to prescribe the format and/or media of said record drawings, consistent with city codes and policies. (Ord. 5042 § 1 (Exh. C), 1998.) 12.24.150 Restoration after construction. Upon completion of any construction, maintenance, or repair work, the permittee shall promptly repair any and all public and private property improvements, landscaping, fixtures, structures, and facilities in the public or other ways or otherwise damaged during the course of construction, restoring the same as nearly as practicable to its condition before the start of construction, except pavement restoration and pedestrian facility upgrade requirements for ADA compliance, which Page 77 of 378 ------------------------- ORD 6797 EXHIBIT A PAGE 10 of 11 both shall be restored and/or upgraded per the Engineering Design and Construction Standards. All survey monuments disturbed or displaced shall be referenced and replaced as required by Chapter 332-120 WAC and the Engineering Design and Construction StandardsAuburn benchmark system second order, first class specifications. The referencing and replacement of survey monuments shall be performed by a licensed land surveyor. All trees, landscaping and grounds removed, damaged or disturbed as a result of the construction, installation, maintenance, repair, or replacement performed by the permittee shall be replaced or restored, as nearly as may be practicable, to the condition existing prior to performance of work. The city engineer or designee shall have final approval of the completeness of all restoration work. (Ord. 5042 § 1 (Exh. C), 1998.) 12.24.160 Standards for construction. All work within the public ways will comply with the Engineering Design and Construction Standards. The additional terms under which the construction and/or the repair thereof are to be made by the permittee shall be stated and printed on the permit. The city will inspect the construction site before and after the construction to assure the permittee has completely repaired the area to the satisfaction of the city. Any person or persons who fail to comply with the city’s permit by not completing repairs thereof in accordance with the requirements of the city shall not be granted any further permits requested in future applications until such time as the repairs and restoration are completed to the city’s satisfaction or, if approved by the city engineer, the cost of the proper repair and restoration or construction has been fully paid for by the permittee. (Ord. 5042 § 1 (Exh. C), 1998.) 12.24.170 Permittee’s liability. Any person regulated under this chapter shall be liable to the city for all losses or damages claimed by any persons as a result of the negligence or failure of the person securing a permit to take all necessary precautions to protect the public and Page 78 of 378 ------------------------- ORD 6797 EXHIBIT A PAGE 11 of 11 the city in the performance of any construction activities. (Ord. 5042 § 1 (Exh. C), 1998.) 12.24.180 Release of construction surety. Upon completion of work and associated restoration work and payment of all fees to the satisfaction of the city engineer or designee, the performance bond will be released. (Ord. 5042 § 1 (Exh. C), 1998.) 12.24.190 Violation – Penalty. Any violation of this chapter shall be enforced pursuant to the provisions of Chapter 1.25 ACC. (Ord. 5042 § 1 (Exh. C), 1998.) 12.24.200 Responsibilities of the owner. The owner of the facilities to be constructed and, if different, the grantee, franchisee, or lessee is responsible for performance of and compliance with all provisions of this chapter. (Ord. 5042 § 1 (Exh. C), 1998.) Page 79 of 378 ------------------------- ORD 6797 EXHIBIT B PAGE 1 of 3 ORDINANCE 6797 EXHIBIT B Chapter 12.32 SIDEWALK OBSTRUCTIONS Sections: 12.32.010 Sidewalk use restriction. 12.32.020 Prohibitions. 12.32.030 Prohibition exemptions. 12.32.040 Building code provisions apply. 12.32.050 Violation – Penalty. For statutory provisions authorizing third-class cities to manage and control sidewalks and to remove obstructions therefrom, see RCW 35.24.290(3); for provisions granting a code city all powers of any city of any class, see RCW 35A.21.160. 12.32.010 Sidewalk use restriction. All sidewalks in the public streets, alleys and places in the city, for the full width thereof, are exclusively for the use of pedestrians, and shall be used for no other purpose whatsoever except as hereinafter provided and except for the use of bicycles. (Ord. 2983 § 1, 1976; 1957 code § 8.18.010.) 12.32.020 Prohibitions. It is unlawful for any person, firm or corporation, or for any agent, representative, servant or employee thereof, to deposit, place, erect or maintain, or cause to be deposited, placed, erected or maintained, upon any sidewalk located in any public street, alley or place of the city, or upon any portion of such sidewalk, any bench, Page 80 of 378 ------------------------- ORD 6797 EXHIBIT B PAGE 2 of 3 chair, rack, stand, structure, sign, merchandise or other object, except as approved by the city engineer, or to place, erect or maintain, or cause to be placed, erected or maintained, over such sidewalk, or over any portion of such sidewalk, any structure, sign or other object at such height or in such manner as to prevent or interfere with the free and unobstructed use of all of such sidewalk by pedestrians. (Ord. 6532 § 16, 2014; 1957 code § 8.18.020.) 12.32.030 Prohibition exemptions. The provisions of this chapter shall not prohibit the placing or maintaining of signs, notices or orders of the city council or the police department of the city, or the placing and maintaining of flags of the United States of America or the state, or the placing and maintaining of ornamental tree planters on sidewalks near the curb by or under the direction of the chief of police or the city council, nor shall the provisions of this chapter prohibit the expeditious moving of freight and merchandise in the loading or unloading thereof, across sidewalks, if such is done with the least possible obstruction to the free use of such sidewalks by pedestrians pursuant to a franchise or permit; provided, further, that the city council may by resolution allow certain designated persons, firms or corporations to utilize the public sidewalks of the city for additional purposes for specified periods of time, pursuant to a franchise or permit, after review and recommendation thereon by the public works department and after approval thereof by a majority of the city council; provided further, that such use will not substantially interfere with the use of such sidewalk by pedestrians. (1957 code § 8.18.030.) 12.32.040 Building code provisions apply. This chapter is subject to the provisions of Title 15 ACC.Part IX, Sections 4401 through 4406 of the Uniform Building Code, 1973 Edition, pertaining to regulations for use of public streets and projections over public property, and more particularly pertaining to protection of pedestrians during construction or demolition. It is the Page 81 of 378 ------------------------- ORD 6797 EXHIBIT B PAGE 3 of 3 intent of the city council in passing the ordinance codified in this section that the latter portions of the 1973 Edition of the Uniform Building Code shall prevail in case of any conflict with the provisions of this chapter. (Ord. 2984 § 1, 1976; 1957 code § 8.18.050.) 12.32.050 Violation – Penalty. Any violation of this chapter shall be enforced pursuant to the provisions of Chapter 1.25 ACC. (Ord. 4502 § 5, 1991; 1957 code § 8.18.040.) Page 82 of 378 ------------------------- ORD 6797 EXHIBIT C PAGE 1 of 13 ORDINANCE 6797 EXHIBIT C Chapter 13.32A UNDERGROUND WIRING Sections: 13.32A.010 Scope. 13.32A.020 Exceptions. 13.32A.030 Definitions. 13.32A.040 Temporary aerial services. 13.32A.050 Requirements – New utility distribution facilities. 13.32A.060 Requirements – Existing utility aerial distribution facilities. 13.32A.070 Requirements – New utility service connections. 13.32A.080 Permitting. 13.32A.090 Joint trenches. 13.32A.110 Financial responsibilities – Private development. 13.32A.120 Deferral of underground distribution facilities. 13.32A.130 City project process and requirements. 13.32A.140 Local improvement regulations apply. 13.32A.150 Authority. 13.32A.160 Violation – Penalty. 13.32A.010 Scope. A. It is found and determined by the city that the general necessity, convenience, health, safety and welfare require that electrical and telecommunication utility facilities be constructed underground in an orderly manner in accordance with the requirements specified in this chapter. Page 83 of 378 ------------------------- ORD 6797 EXHIBIT C PAGE 2 of 13 B. The scope of this chapter is to provide policies and standard procedures for regulation of installation, operation, and management of all aerial and underground utility wiring and conduits within the city of Auburn. C. This chapter shall apply to all electrical and telecommunication utility facilities, including but not limited to power, telephone and cable television facilities, within the corporate city limits; provided, however, the facilities identified in ACC 13.32A.020 are excepted exempt from the undergrounding requirements of this chapter. D. This chapter clarifies the applicability of all other titles, and all other chapters of this title, of the Auburn City Code regarding the subject of undergrounding, to foster management of city rights-of-way to the benefit of the public, and to prescribe the specific procedures and permits to be used to regulate each activity. E. All improvements subject to this chapter shall also meet the requirements of the engineering design and construction standards of the city. F. In addition to the provisions of this chapter, Chapter 13.3620.06 ACC, CATV SystemsCable Franchises, also governs the installation and management of all underground facilities related to cable television services and franchises within the corporate boundaries of the city. G. In addition to the provisions of this chapter, ACC Title 20 ACC, Telecommunications and Other Commercial UtilitiesFranchises, Cable Franchises and Leases, also governs the installation and management of all underground facilities related to commercial utilities and telecommunication services and Chapter 12.24 ACC, Construction Permits, also governs right-of-way agreements, franchises, and leases within the corporate boundaries of the city. H. In the event of a conflict between the provisions of this chapter and other portions of the Auburn City Code, the provisions of this chapter shall control. (Ord. 6238 § 2, 2009.) Page 84 of 378 ------------------------- ORD 6797 EXHIBIT C PAGE 3 of 13 13.32A.020 Exceptions. With the approval of the city engineer, the following utility facilities are exempt from the undergrounding requirements of this chapter: A. Electric utility substations, pad mounted transformers and switching facilities not located on the public right-of-way and authorized through existing or future site- specific development approvals; B. Electric aerial transmission facilities of a voltage of more than 15,000 volts, including poles, wires, and associated facilities; C. Street lighting and traffic control equipment as determined necessary by the city engineer; D. Telecommunication pedestals and other equivalent telecommunication facilities including those parts of Wireless Communications Facilities which by their nature cannot function underground; E. Temporary aerial utility services for construction that will be removed immediately upon completion of construction; and F. New facilities installed on existing poles with other aerial facilities attached, except if the existing attached aerial facilities consist only of electric transmission facilities of a voltage of more than 15,000 volts in which case the new facilities are not exempt unless other exemptions listed in this chapter apply.A franchisee is expanding its existing aerial system as a secondary tenant on an existing aerial system not related to a new private development project where the undergrounding of the expansion will not eliminate the existing aerial system. (Ord. 6520 § 1, 2014; Ord. 6238 § 2, 2009.) These exemptions do not affect the obligation for any facility to relocate when required to do so by any section of the ACC. Page 85 of 378 ------------------------- ORD 6797 EXHIBIT C PAGE 4 of 13 13.32A.030 Definitions. The definitions of this chapter are specific to this chapter. A. “Aerial” means those utility facilities which currently exist on poles, or which may be installed on poles within city rights-of-way or city utility easements at a future date with the city engineer’s approval. B. “Applicant” means the owner or owners of record of the property, or facility owner pursuing the development or redevelopment of property within the jurisdiction of the city. C. “Conduit” means any pipeline, duct, or protective enclosure used for electrical conductors, coaxial cable, multiconductor cable, or fiber optic cable, telecommunications trunkline or used for conveyance of gas, petroleum, or other commercial products. D. “Conversion” means a project being performed by the city to convert an area of existing aerial utility facilities to underground facilities. E. “Conversion area” means the area that has been identified by the city in relation to a city project that will be requiring the aerial utility systems to be undergrounded, including all affected utility customers. F. “Electric utility” means any utility engaged in the business of furnishing electric energy to the public and includes electric companies as defined by RCW 80.04.010 and public utility districts. G. “Permanent structure” means any commercial, industrial or residential structure that is greater than 120 square feet and is on a fixed foundation including but not limited to uses such as offices, businesses, warehouses, homes, garages, barns, and storage buildings. H. “Power distribution facilities” means those electrical utility facilities of less than 15,000 volts that provide direct service to customers and are not considered transmission systems. Page 86 of 378 ------------------------- ORD 6797 EXHIBIT C PAGE 5 of 13 IH. “Service connection” means utility facilities extending from a distribution utility system and terminating on private property to serve a customer or subscriber. JI. “Telecommunications” is the transmission of information by wire, radio, optical cable, electromagnetic, or other similar means, including but not limited to telephone, cable television, and data transmission services. As used in this definition, “information” means knowledge or intelligence represented by any form of writing, signs, signals, pictures, sounds, or any other symbols. K. “Telecommunication utility” means any utility engaged in the business of affording telecommunications services to the public in all or part of the conversion area. L. “Temporary structure” means a structure that is 120 square feet or less in size, mobile in nature and will be removed from the site within the time frame allowed for temporary aerial services. MK. “Utility or Utilities” means those companies providing electric power, cable, or telecommunications services within the corporate boundaries of the city of Auburn, Washington. NL “Utility facility” shall mean the definition contained in ACC 20.02.020.means any and all utility-owned or operated conduits, wires, cables, fiber optics, or other devices used to transmit, transport, or distribute electric power or telecommunications services, and any appurtenances thereto. (Ord. 6238 § 2, 2009.) 13.32A.040 Temporary aerial services. The city engineer may allow utility service connections for permanent structures to be temporarily located aerially for up to 180 calendar days,. and may grant an additional Extensions extension not to exceed beyond the 180 calendar days for temporary aerial service connections for permanent structures. may be authorized by the public works committee of the city council; such Such authorizations may include financial securities or other instruments to ensure the conversion of the aerial system to an Page 87 of 378 ------------------------- ORD 6797 EXHIBIT C PAGE 6 of 13 underground system by the end of the extension period authorized. (Ord. 6238 § 2, 2009.) 13.32A.050 Requirements – New utility distribution facilities. Unless exempted by ACC 13.32A.020 All all new utility distribution facilities shall be underground. The installation of all new utility facilities for subdivisions shall also meet the requirements identified in Chapter 17.14 ACC. (Ord. 6238 § 2, 2009.) 13.32A.060 Requirements – Existing utility aerial utility distribution facilities. A. Any applicant triggering the requirement for public improvements per Chapter 12.64A ACC shall be responsible for converting all non-exempt aerial facilities on the parcel(s) associated with the permitted actions to underground unless All existing utility aerial distribution facilities shall be undergrounded in connection with new private development unlessany one of the following criteria is met: 1. The city engineer determines that undergrounding of the portion of the existing aerial facilities along the development’s street frontage would require undergrounding portions of the aerial distribution facilities extending beyond the development’s street frontage unless an additional extension of no more than 50 feet of the underground system is needed on either end of the street frontage to connect to logical points of the existing utility systemThe development is a single family residence on a platted lot; or 2. The development is the conversion of one single-family residence to a commercial use as defined in the R-O, residential Residential office Office zoning district, Chapter 18.22 18.35 ACC; or 3. The development is a new commercial development on a lot that is 11,000 square feet or smaller in area and located in the RO, DUC, CN, C-1, C-2, or C-3 zone; or Page 88 of 378 ------------------------- ORD 6797 EXHIBIT C PAGE 7 of 13 4. The development is wholly interior improvements to an existing building; or 5. The development is an addition, alteration or repair of an existing building structure, where the building permit valuation per ACC 15.07.080Chapter 15.07 ACC is less than 50 percent of either: a. The assessed value of the existing building structure(s) on the subject property as determined by the most current property assessment by the county assessor of the county in which the property is located; or b. The value of the existing building structure(s) as determined by an appraisal performed by an MAI appraiser certified by the state of Washington, which appraisal shall be paid for and provided by the property owner. B. Repairs to an existing utility aerial service facility may be made aerially. C. For city projects, the city council shall determine whether the undergrounding of existing aerial utility distribution facilities shall be required in association with the city projectas identified in the Capital Facilities Plan. (Ord. 6238 § 2, 2009.) 13.32A.070 Requirements – New utility service connections. All new utility service connections shall be underground unless one of the following criteria is met: A. The existing distribution utility system and any service connections serving the customer or subscriber are aerial and the building, structure, or facility to be served is new construction, an addition, alteration, or repair where the building permit valuation per ACC 15.07.080Chapter 15.07 ACC is under $20,000 in value. B. The installation of a new or replacement service connection in an area where the existing utility distribution facility and/or existing service connection is aerial and meeting at least one of the following criteria: Page 89 of 378 ------------------------- ORD 6797 EXHIBIT C PAGE 8 of 13 1. The construction of a single-family residence on an existing platted lot or the addition of an accessory dwelling unit on an existing residential lot; or 2. The conversion of one single-family residence to a commercial use as defined in the residential office zoning district, Chapter 18.2218.35 ACC; or 3. A new commercial development on a lot that is 11,000 square feet or smaller in area and located in the RO, DUC, CN, C-1, C-2 or C-3 zone; or 4. Wholly interior improvements made to an existing building; or 5. For existing building structures, where the building permit valuation per ACC 15.07.080Chapter 15.07 ACC of an addition, alteration, or repair to the existing structure is less than 50 percent of either: a. The assessed value of the existing building structure(s) on the subject property as determined by the most current property assessment by the county assessor of the county in which the property is located; or b. The value of the existing building structure(s) as determined by an appraisal performed by an MAI appraiser certified by the state of Washington, which appraisal shall be paid for and provided by the property owner. (Ord. 6238 § 2, 2009.) 13.32A.080 Permitting. All permits for the installation of aerial and underground utility facilities within existing city rights-of-waypublic ways or easements shall be processed and reviewed under Chapter 12.24 ACC, Construction Permits. (Ord. 6238 § 2, 2009.) 13.32A.090 Joint trenches. Where several underground utilities are planned or required in the same alignment, the utilities shall use a joint trench for such facilities unless demonstrated to the Page 90 of 378 ------------------------- ORD 6797 EXHIBIT C PAGE 9 of 13 satisfaction of the city engineer that a joint trench is not feasible. (Ord. 6238 § 2, 2009.) 13.32A.110 Financial responsibilities – Private development. For private development, the cost of constructing new underground utility facilities, or relocating existing aerial facilities underground, shall be borne by the serving utilities, the owners of the real property to be served or others requesting such underground services in accordance with the applicable filed tariffs or the rules and regulations or the published policies of the respective utilities furnishing such service or as may be contractually agreed upon between the utility and such owner or applicant. In addition, all such conversion of electric and telecommunication utility facilities to underground facilities may be undertaken by local improvement district or as otherwise permitted by applicable law and as further authorized by RCW 35.96.030 and 35.96.040. (Ord. 6238 § 2, 2009.) 13.32A.120 Deferral of underground distribution utility facilities. A. The city engineer may grant a deferral for some or all of the undergrounding of utility distribution facilities otherwise required pursuant to this chapter following the procedures identified in ACC 12.64A.050, Deferral and fee in lieu of improvements. The city engineer’s decision regarding such a deferral will be based on meeting the following criteria rather than those listed in ACC 12.64A.050: 1. There is a pending city six-year TIP project or an adjacent developer planned project which would affect the proposed area of undergrounding of the existing aerial facilities; or 2. A franchisee is expanding its existing aerial system as a secondary tenant on an existing aerial system for the purpose of serving a new private development where the undergrounding of the expansion will not eliminate the existing aerial system; or Page 91 of 378 ------------------------- ORD 6797 EXHIBIT C PAGE 10 of 13 3. All of the following conditions are met: a. There are other properties abutting or across the street from the subject property that have aerial utility facilities; and b. The establishment or continuation of aerial utility facilities for the period of the deferral will not adversely affect or delay other properties that may have to provide or convert to undergrounding utility improvements within the public right-of-way; and c. There are technological difficulties associated with converting to or providing undergrounding utility improvements for the subject property as demonstrated to the satisfaction of the city engineer; or. 4. The city engineer determines that undergrounding of the portion of the existing aerial facilities along the development’s street frontage would require undergrounding portions of the aerial facilities extending beyond the development’s street frontage unless an additional extension of no more than 50 feet of the underground system is needed on either end of the street frontage to connect to logical points of the existing utility system. B. An applicant whose request has been denied may appeal the denial following the procedure as identified in ACC 12.64A.060, Appeal and enforcement. (Ord. 6520 § 2, 2014; Ord. 6238 § 2, 2009.) 13.32A.130 City project process and requirements. A. City Responsibilities. When service from underground electric and telecommunication utility facilities becomes available in all or part of a conversion area, the city engineer will issue a directive to the owners of all structures or improvements with service connections to the existing or temporary overhead utility facilities in the area by means of mailing a certified notice stating that service from the underground utility facilities is available and notifying the property owners of the owners’ responsibilities. Page 92 of 378 ------------------------- ORD 6797 EXHIBIT C PAGE 11 of 13 B. Property Owner’s Responsibilities. To facilitate completion of the city’s project, all electric and telecommunication service connections from the existing aerial utility facilities within the area to any structure or improvement must be decommissioned, disconnected and removed within 90 calendar days after the date of mailing. After existing aerial utility facilities identified by the city’s notice in subsection A of this section have been decommissioned, disconnected, and removed, the property owner must: 1. Convert the service connections from the aerial system to the underground system within 90 calendar days after the date of receipt of the notice or the city will order the electric and telecommunication utilities to disconnect and remove the service connections. If the owner has filed written objections to such disconnection and removal with the city clerk within 30 calendar days after the date of mailing, the city will not order disconnection and removal until after the appeal hearing on those objections; or 2. Notify the city engineer in writing within 30 calendar days after the date of receipt of the notice provided under subsection A of this section that the property owner wants to discontinue utility service; or 3. If the city engineer determines it is in the best interest of the public and the city’s infrastructure system for the city to complete the service connection from the underground system to the existing aerial service point of connection and the property owner desires the city to do so, the property owner will enter into an agreement with the city within 90 calendar days after the date of mailing to provide property access to complete the conversion. C. Financial Responsibilities. 1. For city projects, the cost of relocating existing utility aerial distribution facilities will be borne by the serving utility and the city in accordance with the filed tariffs or franchise agreement. If there is no filed tariff or franchise agreement, the cost of the relocation of existing aerial distribution facilities will be borne by the serving utility. Page 93 of 378 ------------------------- ORD 6797 EXHIBIT C PAGE 12 of 13 2. For city projects, the undergrounding of the service connections for real property served by the aerial electric or telecommunication utility facilities that are being relocated underground will be at the owner(s)’s expense, including: a. Decommission, disconnect, and remove the service connections from those utility facilities to any structures or improvements located on the property. b. Either install underground service connections to those structures/improvements on the property or, on approval of the city engineer, discontinue utility service to one or more of the structures/improvements on the property. Services that are being connected by the city per subsection (B)(3) of this section are exempted from this requirement and the city will be financially responsible for those connection costs. 3. All conversion of utility facilities to underground facilities may be undertaken by local improvement district or as otherwise permitted by applicable law and as further authorized by RCW 35.96.030 and 35.96.040. D. Appeal Procedures. 1. A property owner may appeal to the public works director the disconnection and removal of an aerial service connection by filing a written objection with the city clerk within 20 working days after the date of the mailing of the notice set forth in subsection A of this section. Failure to file a timely written objection will constitute a waiver of the owner’s right to object to such disconnection and removal. The public works director will have 15 working days to review the appeal, decide whether to uphold or modify the city engineer’s decision, and notify the property owner of such decision. 2. All appeals of the public works director’s decision must be filed in writing with the public works director within 10 working days of the public works director’s decision. Appeals must specify the error of law or fact, or new evidence which Page 94 of 378 ------------------------- ORD 6797 EXHIBIT C PAGE 13 of 13 could not have been reasonably available at the time of the public works director’s decision, which shall constitute the basis of the complaint. 3. Appeals will be heard by the city’s hearing examiner pursuant to Chapter 2.46 ACC. Decisions of the hearing examiner will be based on whether the decision being appealed was consistent with applicable state law and city codes. 4. Upon receipt of a timely written appeal, the hearing examiner will review the materials submitted and prepare findings of fact. The hearing examiner decision will be final. (Ord. 6713 § 1 (Exh. A), 2019; Ord. 6442 § 8, 2012; Ord. 6238 § 2, 2009.) 13.32A.140 Local improvement regulations apply. Unless otherwise provided for in RCW 35.96.010 et seq., all the general provisions related to local improvements of cities and towns shall likewise apply to local improvements for the conversion of aerial electric and telecommunication facilities to underground facilities within the city limits. (Ord. 6238 § 2, 2009.) 13.32A.150 Authority. The city engineer or designee shall be responsible for the application of this chapter related to the public rights-of-way. The building official or designee shall be responsible for the application of this chapter related to real property. (Ord. 6238 § 2, 2009.) 13.32A.160 Violation – Penalty. Any violation of this chapter shall be enforced pursuant to the provisions of Chapter 1.25 ACC. (Ord. 6238 § 2, 2009.) Page 95 of 378 -------------------------------- Ordinance No. 6798 October 26, 2020 Page 1 of 3 Rev. 2019 ORDINANCE NO. 6798 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, RELATING TO UPDATING THE PROVISIONS FOR FRANCHISES AND LEASES FOR TELECOMMUNICATIONS, CABLE, AND UTILITIES CONSISTENT WITH CURRENT FEDERAL AND STATE REGULATIONS, AND REPLEALING CHAPTERS 13.36 AND 13.44, AND AMENDING TITLE 20 OF THE AUBURN CITY CODE WHEREAS, the City of Auburn adopted Ordinance No. 4625 on May 5, 1993 enacting Chapter 13.36 entitled “CATV Systems” pursuant to Federal and State regulations; and WHEREAS, the City of Auburn adopted Ordinance No. 3121on October 4, 1976 enacting Chapter 13.44 entitled “Electrical Franchise” granting to Puget Sound Power and Light Company, their successor and assigns, a franchise; and WHEREAS, the City of Auburn adopted Ordinance No. 5034 January 5, 1998 enacting Title 20 entitled “Telecommunications and Other Commercial Utilities” pursuant to Federal and State regulations; and WHEREAS, the provisions of Chapter 13.44 ACC are outdated and electrical franchise agreements have recently been negotiated under current applicable law; and WHEREAS, the City has made only minor updates as necessary throughout the entire Auburn City Code since the adoption of Ordinance Nos. 4625 and 5034 as it relates to the regulation of telecommunications, cable systems and other utilities in the public ways and on public property; and WHEREAS, due to changes in Federal and State regulations that govern the regulation of such industries and their presence within the City, it is necessary to update Page 96 of 378 -------------------------------- Ordinance No. 6798 October 26, 2020 Page 2 of 3 Rev. 2019 the Auburn City Code in all titles, chapters an sections that authorize, regulate, affect or otherwise govern the review, construction, placement and siting of such telecommunications, cable and other utility facilities in the public ways and on city property or facilities; and WHEREAS, the City also seeks to clarify and update terms, procedural requirements and approval processes for permits, franchises and leases for telecommunications, cable and other utility facilities placed in the public ways and on city owned property or facilities. WHEREAS, the proposed amendments and changes to the Auburn City Code that are the subject of this Ordinance were also subject to state agency review by the Washington State Department of Commerce on or about October 9, 2020 for review; and WHERAS, the proposed amendment and changes to the Auburn City Code that are the subject of this Ordinance were also subject to State Environmental Policy Act review and decision issued October 19, 2020. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, DO ORDAIN as follows: Section 1. Repeal of City Code. Chapter 13.36 of the Auburn City Code is repealed as shown in Exhibit A. Section 2. Repeal of City Code. Chapter 13.44 of the Auburn City Code is repealed as shown in Exhibit B. Section 3. Amendment to City Code. Title 20 of the Auburn City Code is amended to read as shown in Exhibit C. Page 97 of 378 -------------------------------- Ordinance No. 6798 October 26, 2020 Page 3 of 3 Rev. 2019 Section 4. Implementation. The Mayor is authorized to implement those administrative procedures necessary to carry out the directives of this legislation. Section 5. Severability. The provisions of this ordinance are declared to be separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section, or portion of this ordinance, or the invalidity of the application of it to any person or circumstance, will not affect the validity of the remainder of this ordinance, or the validity of its application to other persons or circumstances. Section 6. Effective date. This Ordinance will take effect and be in force five days from and after its passage, approval, and publication as provided by law, or on January 1, 2021, whichever is later. INTRODUCED: _______________ PASSED: ____________________ APPROVED: _________________ ____________________________ NANCY BACKUS, MAYOR ATTEST: ____________________________ Shawn Campbell, MMC, City Clerk APPROVED AS TO FORM: ____________________________ Kendra Comeau, City Attorney Published: ____________________ Page 98 of 378 ------------------------- ORD 6798 EXHIBIT A PAGE 1 of 29 ORDINANCE 6798 EXHIBIT A Chapter 13.36 CATV SYSTEMS [Repealed] Sections: 13.36.010 Purpose. 13.36.020 Definitions. 13.36.030 Franchise – Conditions and term. 13.36.040 Franchise – Application requirements. 13.36.050 Public hearing and notice requirements. 13.36.060 Acceptance. 13.36.070 Police powers. 13.36.080 Rules and regulations by the city. 13.36.090 Technical standards and maintenance. 13.36.100 Parental control devices. 13.36.110 Construction standards. 13.36.120 Construction notification. 13.36.130 Undergrounding and landscaping. 13.36.140 Construction in right-of-way. 13.36.150 Safety requirements. 13.36.160 Building moving. 13.36.170 Tree trimming. 13.36.180 Rates. 13.36.190 Discounts. 13.36.200 Customer service. 13.36.210 Telephone response. 13.36.220 Failure to improve customer service. 13.36.230 Franchise fee. Page 99 of 378 ------------------------- ORD 6798 EXHIBIT A PAGE 2 of 29 13.36.240 Cable system evaluation. 13.36.250 Periodic meetings. 13.36.260 Record inspection. 13.36.270 Reports. 13.36.280 Programming. 13.36.290 Nondiscrimination. 13.36.300 Continuity of service. 13.36.310 Franchise renewal. 13.36.320 Transfer of ownership. 13.36.330 Removal and abandonment – Franchisee property. 13.36.340 Termination – Revocation for cause. 13.36.350 Effect of termination for noncompliance. 13.36.360 Indemnity and hold harmless. 13.36.370 Insurance. 13.36.380 Performance bond. 13.36.390 Franchising costs. 13.36.400 Equalization of civic contributions. 13.36.410 Inconsistency. 13.36.420 Severability. For statutory provisions authorizing third-class cities to manage and control the city streets, see RCW 35.24.290(3); for provisions authorizing code cities to regulate and grant nonexclusive franchises for facilities for the transmission of signals and other methods of communication, see RCW 35A.47.040. 13.36.010 Purpose. The purpose of this chapter is to set forth an integrated statement of conditions, requirements, obligations, duties and procedures for granting by the city of a nonexclusive franchise for the construction, maintenance and operation of a system Page 100 of 378 ------------------------- ORD 6798 EXHIBIT A PAGE 3 of 29 of cable television signal distribution within the territorial limits of the city of Auburn. (Ord. 4625 § 2, 1993.) 13.36.020 Definitions. For the purposes of this chapter, the following definitions will apply: A. “Access channels” (commonly referred to as “PEG” channels”) means free composite channels to be used for educational purposes and by government and public agencies and/or their representatives. B. “The Act” means the Cable Television Consumer Protection and Competition Act of 1992, and any subsequent amendments thereto. C. “Addressability” means the ability of a system allowing a franchisee to authorize by remote control customer terminals to receive, change or to cancel any or all specified programming. D. “Affiliate” means a condition of being united, being in close connection, allied, or attached as a member or branch. E. “Applicant” means any person or entity that applies for a franchise. F. “Basic cable” is the tier of service regularly provided to all subscribers that includes the retransmission of local broadcast television signals. G. “Cable services” means (1) the one-way transmission to subscriber of video programming or other programming service, and (2) subscriber interaction, if any, which is required for the selection by the subscriber of such video programming or other programming service. H. “Channel” means a single path or section of the spectrum which carries a television signal. Page 101 of 378 ------------------------- ORD 6798 EXHIBIT A PAGE 4 of 29 I. “Character generator” means a device used to generate alphanumerical programming to be cablecast on a cable channel. J. “City” means the city of Auburn, a municipal corporation of the state of Washington. K. “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. L. “Council” means the city council of the city of Auburn. M. “Data communication” means (1) the movement of encoded information by means of electrical or electronic transmission systems; and (2) the transmission of data from one point to another over communications channels. N. “Dwelling units” means residential living facilities as distinguished from temporary lodging facilities such as hotel and motel rooms and dormitories, and includes single- family residential units and individual apartments, condominium units, mobile homes within mobile home parks, and other multiple-family residential units. O. “FCC” means the Federal Communications Commission, a regulatory agency of the United States government. P. “Franchise” means the initial authorization, or renewal thereof, issued by the franchising authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate or otherwise, which authorizes construction and operation of the cable system for the purpose of offering cable service or other service to subscribers. Q. “Franchisee” means the person, firm or corporation to whom or which a franchise, as herein above defined, is granted by the council pursuant to this chapter, and the lawful successor, transferee or assignee of said person, firm or corporation subject to such conditions as may be defined in this chapter and in a franchise granted in compliance with this chapter. Page 102 of 378 ------------------------- ORD 6798 EXHIBIT A PAGE 5 of 29 R. “Gross revenues” means any and all revenue derived directly or indirectly by franchisee, or by franchisee’s affiliates, as defined in the federal Cable Act, from the operation of the franchisee’s cable system to provide cable services in the franchise area. Gross revenues include, by way of illustration and not limitation, monthly and other fees charged subscribers for cable services including basic service, expanded basic service, any expanded tiers of cable service, other tiers of cable service, optional premium service, video on demand, pay-per-view, per-program channels, cable service installation, disconnection, reconnection and change-in-service fees, leased access channel fees, remote control rental fees, late fees and administrative fees, consideration received by the franchisee from programmers for carriage of cable services on the cable system and recognized as revenue under generally accepted accounting principles (GAAP), revenues from rentals of converters or other cable system equipment, advertising sales revenues (including local and a pro rata share of regional and national advertising carried on the cable system in the franchise area), net of commissions due to franchisee’s unaffiliated advertising agencies that arrange for the advertising buy, revenues from program guides, additional outlet fees, revenue from the sale or carriage of other cable services, revenues from home shopping, and a fairly apportioned percentage of fees associated with bundled services (i.e., late fees, NSF fees, etc.). Gross revenues shall not include (1) bad debt; provided, however, that all or part of any such bad debt that is written off but subsequently collected shall be included in gross revenues in the period collected; or (2) any taxes on services furnished by the franchisee that are imposed directly on any subscriber or user by the state, grantor or other governmental unit and that are collected by the franchisee on behalf of said governmental unit; or (3) the PEG fee as required by this franchise. The franchise fees are not a tax and are therefore included in gross revenues. This definition shall be construed so as to include all gross revenues to the maximum extent permitted by federal and state law, except to the extent specifically excluded in this section, and encompasses revenues that may develop in the future, whether or not anticipated. If a statutory change in state or federal law or a decision of the FCC or a court of competent jurisdiction expands or contracts the categories of revenue Page 103 of 378 ------------------------- ORD 6798 EXHIBIT A PAGE 6 of 29 available to the city for the franchise fee assessment beyond those permitted under this definition as of the effective date, this franchise may be amended to include or exclude any such category of revenue in the definition of gross revenues under this franchise; provided, that the city amends the franchises of all other similarly situated multichannel video provider over which the city has jurisdiction and authority to impose such fees. S. “Headend” means the electronic equipment located at the start of a cable system, usually including antennas, preamplifiers, frequency converters, demodulators and related equipment. T. “High definition television (HDTV)” means a television system that will provide sharper picture definition than the current U.S. Standards, 525 lines per frame. U. “Insertion point(s)” means location(s) where institutional programming can be initiated for distribution throughout the secured portion of the subscriber network. V. “Installation” means the connection of the system from feeder cable to subscribers’ terminals. W. “Institutional services” means a cable communications system designated principally for the provision of nonentertainment services to schools, public agencies or other nonprofit agencies which is separate and distinct from the subscriber network or is on secured channels of the subscriber network. X. “Interactive services” means services provided to subscribers where the subscriber either (1) receives information consisting of television or other signals and transmits signals generated by the subscriber or equipment under their control for the purpose of selecting what information shall be transmitted to the subscriber or for any other purpose; or (2) transmits signals to any other location for any purpose. Y. “NCTA” means the National Cable Television Association. Z. “Office” means the person or entity designated by the city of Auburn as being responsible for the administration of a franchise for the city. Page 104 of 378 ------------------------- ORD 6798 EXHIBIT A PAGE 7 of 29 AA. “Operator” means the person, firm or corporation to whom a franchise is granted pursuant to the provisions of chapter. BB. “Premium services” means programming over and above those provided by basic services for which there is an additional charge. CC. “Property of franchisee” means all property 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 chapter. DD. “Proposal” means (1) the response by an individual or organization to a request by the city regarding the provision of cable services; or (2) an unsolicited plan submitted by an individual or organization seeking to provide cable services in the city. EE. “Public way” means the surface of, and the space above and below, any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, parkway, way, lane, drive, circle or other public right-of-way, including, but not limited to, public utility easements, dedicated utility strips or rights-of-way dedicated for compatible uses and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the city in the service area which shall entitle the city and a franchisee to the use thereof for the purpose of installing, operating, repairing and maintaining the cable system. “Public way” shall also mean any easement now or hereafter held by the city within the service area for the purpose of public travel, or for utility or public service use dedicated for compatible uses, and shall include other easements or rights-of-way as shall within their proper use and meaning entitle the city and a franchisee to the use thereof for the purpose of installing or transmitting franchisee’s cable service or other service over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appurtenances, attachments and other property as may be ordinarily necessary and pertinent to the cable system. Page 105 of 378 ------------------------- ORD 6798 EXHIBIT A PAGE 8 of 29 FF. “Subscriber” means a person or entity or user of the cable system who lawfully receives cable services or other service therefrom with franchisee’s express permission. (Ord. 6284 § 1, 2010; Ord. 4625 § 2, 1993.) 13.36.030 Franchise – Conditions and term. A. Authority to Grant Franchises or Licenses for Cable Television. The council may by resolution award a nonexclusive franchise to construct, operate and maintain a cable communications system which complies with the requirements and conditions of this chapter. Any franchise granted pursuant to this chapter shall be nonexclusive and shall not preclude the city from granting other or further franchises or permits, or preclude the city from using any roads, rights-of-way, streets, or other public properties, or affect its jurisdiction over them or any part of them, or limit the full power of the city to make such changes as the city shall deem necessary, including the dedication, establishment, maintenance, and improvement of all new rights-of- way and thoroughfares and other public properties; provided, that any such changes shall not materially or substantially impair the rights granted a franchisee pursuant to this chapter. All franchises granted subsequent to the effective date of this chapter shall be consistent with the requirements and conditions of this chapter. B. Incorporation by Reference. The provisions of this chapter shall be incorporated by reference in any franchises approved pursuant hereto. The provisions of any proposal for a franchise submitted and accepted by the city shall be incorporated by reference in the applicable franchise; provided, that in the event of any conflict between the proposal, this chapter and the franchise, the franchise shall be the prevailing document. C. Conditions of a Franchise. Subject to the provisions in this chapter, any franchise granted hereunder by the city shall authorize a franchisee to: (1) engage in the business of operating and providing cable service and the distribution and sale of such service to subscribers within the city; and (2) erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along Page 106 of 378 ------------------------- ORD 6798 EXHIBIT A PAGE 9 of 29 any street, such amplifiers and appliances, lines, cables, conductors, vaults, manholes, pedestals, attachments, supporting structures, and other property as may be necessary and appurtenant to the cable communications system; and (3) use, operate and provide similar facilities, or properties rented or leased from other persons, firms or corporations, including but not limited to any public utility or other franchisee franchised or permitted to do business in the city; provided, that no privilege or exemption shall be granted or conferred upon a franchisee by any franchise except those specifically prescribed therein, and any use of any street shall be consistent with any prior lawful occupancy of the street or any subsequent improvement or installation therein. D. Term of Franchise. The council shall have the right to grant a franchise for a period of time which in the council’s judgement is the most appropriate to the circumstances of the particular grant and is in the best interests of the citizens of the city. (Ord. 4625 § 2, 1993.) 13.36.040 Franchise – Application requirements. An applicant for an initial franchise to construct, operate, and maintain a cable communication system within the city shall file an application in a form prescribed by the city, accompanied by a nonrefundable franchise application fee in the amount set forth in the city of Auburn fee schedule. (Ord. 6546 § 1, 2014; Ord. 4625 § 2, 1993.) 13.36.050 Public hearing and notice requirements. A. Prior to the granting of a franchise, the city council shall conduct a public hearing to determine the following: 1. That the public will be benefited by the granting of a franchise to the applicant; Page 107 of 378 ------------------------- ORD 6798 EXHIBIT A PAGE 10 of 29 2. That the applicant has requisite financial and technical resources and capabilities to build, operate and maintain a cable television system in the area; 3. That the applicant has no conflicting interests, either financial or commercial, which will be contrary to the interests of the city; 4. That the applicant will comply with all terms and conditions placed upon a franchisee by this chapter; 5. That the applicant is capable of complying with all relevant federal, state, and local regulations pertaining to the construction, operation and maintenance of the facilities and systems incorporated in its application for a franchise; 6. The capacity of public rights-of-way to accommodate the cable system; 7. The present and future use of the public rights-of-way to be used by the cable system; and 8. The potential disruption to existing users of the public rights-of-way to be used by the cable system and the resultant inconvenience which may occur to the public. B. Notice of the public hearing shall comply with the following: 1. Briefly describe the purpose of hearing and state the place where the relevant information is available to the public, the time and place of the hearing and the date by which written comments must be submitted. 2. Published at least once during the two-week period preceding the hearing in a newspaper of general circulation within the city, and in one or as many more community newspapers as may be necessary to cover the entire cable franchise area, and be broadcast over the local access channel of the grantee in the cable franchise area affected at least once each day between the hours of 9:00 a.m. and 11:00 p.m. during the two weeks immediately preceding the hearing. (Ord. 4625 § 2, 1993.) Page 108 of 378 ------------------------- ORD 6798 EXHIBIT A PAGE 11 of 29 13.36.060 Acceptance. A. No franchise granted pursuant to the provisions of this chapter shall become effective unless and until the resolution granting same has become effective and the grantee has accepted same as provided below. B. Within 60 days after the effective date of the resolution awarding a franchise, or within such extended period of time as the council in its discretion may authorize, a franchisee shall file with the city clerk its written acceptance of the franchise, in a form satisfactory to the city attorney, together with the bond and insurance policies required by ACC 13.36.370 and 13.36.380. (Ord. 4625 § 2, 1993.) 13.36.070 Police powers. In accepting any franchise, a franchisee acknowledges that its rights hereunder are subject to the legitimate rights of the police power of the city to adopt and enforce general laws necessary to protect the safety and welfare of the public. The franchisee also agrees to comply with all applicable general laws enacted by the city pursuant to such power so long as such regulations do not materially increase the burden or impair the rights of the franchise as provided for in this chapter. (Ord. 4625 § 2, 1993.) 13.36.080 Rules and regulations by the city. In addition to the inherent powers of the city to regulate and control any franchise it issues, the authority granted to the city by the Act, and those powers expressly reserved by the city or agreed to and provided for in a franchise, the city also reserves the right and power to promulgate such additional regulations as it may find necessary in the exercise of its lawful powers. (Ord. 4625 § 2, 1993.) Page 109 of 378 ------------------------- ORD 6798 EXHIBIT A PAGE 12 of 29 13.36.090 Technical standards and maintenance. A. Subject to federal, state and local law, a franchisee shall comply with FCC Rules, Part 76, Subpart K, Section 76.601 through 76.610 and as amended hereafter, and, at the minimum, the following: 1. Applicable city, county, state and national/federal codes, laws and regulations; 2. Applicable utility joint attachment practices; 3. The National Electric Safety Code; ANSI C2; 4. Local utility code requirements; 5. Local rights-of-way procedures, in accordance with ACC Titles 12, 13 and 20. B. A comprehensive routine preventive maintenance program shall be developed, effected and maintained to ensure continued top quality cable communications operating standards in conformance with FCC Regulations Part 76 and amendments thereto. (Ord. 6238 § 3, 2009; Ord. 4625 § 2, 1993.) 13.36.100 Parental control devices. A franchisee will make available at its cost, including applicable handling fees, a device by which the subscriber can prohibit viewing of a particular cable service during periods selected by that subscriber. (Ord. 4625 § 2, 1993.) 13.36.110 Construction standards. All facilities constructed pursuant to the provisions of this chapter shall be placed and maintained at such places and positions in or upon such streets, avenues, alleys and public places as shall not interfere with the passage of traffic and the use of adjoining property, and shall conform to the applicable sections of the National Electrical Code, Page 110 of 378 ------------------------- ORD 6798 EXHIBIT A PAGE 13 of 29 codes of the state of Washington and ACC Titles 12, 13 and 20 pertaining to such construction. (Ord. 6238 § 4, 2009; Ord. 4625 § 2, 1993.) 13.36.120 Construction notification. Upon application for each construction permit in compliance with this chapter, a franchisee shall submit to city its plan for advance notification for the proposed construction project. In the event that an emergency situation arises which precludes such advance notification, a franchisee shall subsequently inform the city of the nature of the extraordinary event and the action taken. (Ord. 4625 § 2, 1993.) 13.36.130 Undergrounding and landscaping. Undergrounding of all utility facilities will meet the requirements of Chapter 13.32A ACC. (Ord. 6238 § 5, 2009; Ord. 4625 § 2, 1993.) 13.36.140 Construction in right-of-way. Whenever, in the sole opinion of the city, any of a franchisee’s facilities or equipment need to be relocated or altered due to a construction or repair project by the city in a public way, a franchisee shall move or relocate said facilities or equipment within 30 days from receiving written notice from the city. 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. Any relocation or alteration of a franchisee’s facilities or equipment required under this section shall be at the sole expense of a franchisee. Installation and/or relocation of all underground and aerial facilities within existing city right-of-way or public ways or city utility easements shall be permitted under Chapter 12.24 ACC, Construction Permits. (Ord. 5043 § 1 (Exh. B), 1998; Ord. 4625 § 2, 1993.) Page 111 of 378 ------------------------- ORD 6798 EXHIBIT A PAGE 14 of 29 13.36.150 Safety requirements. A franchisee, in accordance with applicable national, state, and local safety requirements shall, at all times, employ ordinary care and shall install and maintain and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injury, or nuisance to the public. All structures and all lines, equipment and connections in, over, under, and upon the streets, sidewalks, alleys, and public ways or places of a franchise 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 system of a franchisee is 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 franchisee, establish a reasonable time for a franchisee 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 the franchisee. (Ord. 4625 § 2, 1993.) 13.36.160 Building moving. Whenever any person shall have obtained permission from the city to use any street for the purpose of moving any building, a franchisee shall, upon seven days’ written notice from the city, raise or remove, at the expense of the permittee desiring to move the building, any of a franchisee’s wires which may obstruct the removal of such building; provided, that the moving of such building shall be done in accordance with the codes and regulations of the city. Where more than one street is available for the moving of such building, the building shall be moved on such street as shall cause the least interference. In such event, the city shall be responsible for determining the path of least interference. It is further provided that the person or persons moving such building shall indemnify and save harmless said franchisee Page 112 of 378 ------------------------- ORD 6798 EXHIBIT A PAGE 15 of 29 from any and all damages or claims of any kind or nature caused directly or indirectly for such temporary arrangement of the lines and poles of a franchisee. (Ord. 4625 § 2, 1993.) 13.36.170 Tree trimming. Upon approval of the director of public works, a franchisee shall have the authority to trim trees upon and overhanging streets, public ways and public places in the franchise area so as to prevent the branches of such trees from coming into contact with a franchisee’s wires and cables, and, if necessary, to clear a microwave path. A franchisee shall be responsible for debris removal from such activities. Failure to remove debris after a reasonable time shall result in the debris being removed by the city and the costs involved charged to the franchisee. (Ord. 4625 § 2, 1993.) 13.36.180 Rates. Within 60 days after the grant of any franchise hereunder, a franchisee shall file with the city a complete schedule of all rates to be charged to all subscribers. Prior to implementation of any change in rates or charges for any service or equipment provided by a franchisee, the franchisee shall provide the city and all subscribers a minimum of 30 days prior written notice of such change. Subject to federal, state and local law, the city may regulate the approval of increases of rates or charges for providing cable service and prescribe reasonable rate approval procedures. (Ord. 4625 § 2, 1993.) 13.36.190 Discounts. A franchisee shall offer a discount of 30 percent from the normal charge for basic services and installation to those individuals age 62 or older or disabled who are the Page 113 of 378 ------------------------- ORD 6798 EXHIBIT A PAGE 16 of 29 legal owner or lessee/tenant of their residence provided that their combined disposable income from all sources does not exceed the Housing and Urban Development (HUD) standards for the Seattle-Everett area for the preceding calendar year. The city or its designee shall be responsible for certifying to a franchisee that such applicants conform to the specified criteria. (Ord. 4625 § 2, 1993.) 13.36.200 Customer service. A. A franchisee shall render repair service to restore the quality of the signal at approximately the same standards existing prior to the failure or damage of the component causing the failure and make repairs promptly and interrupt service only for good cause and for the shortest time possible. Such interruptions, insofar as possible, shall be preceded by notice and shall occur during a period of minimum use of the system. A log of all service interruptions shall be maintained for at least a period of one year. The city, after two working days’ notice, may inspect such logs. B. An employee of a franchisee shall answer and respond to all individual complaints received no later than 5:00 p.m. weekdays. A franchisee may use an answering service to receive complaints after 5:00 p.m. weekdays, weekends and holidays and will respond to any system outage affecting more than five subscribers. A copy of the instructions to the answering service by a franchisee shall be furnished to the city or its designee. C. A technician shall be on call seven days a week, 24 hours a day. A franchisee shall respond immediately to service complaints in an efficient manner. D. A franchisee shall maintain a sufficient repair force to respond to individual requests for repair service within two working days after receipt of the complaint or request, except Saturday, Sunday and legal holidays. All complaints shall be resolved within seven days, to the extent reasonable. If a subscriber has notified a franchisee of an outage, no charge for the period of the outage shall be made to the Page 114 of 378 ------------------------- ORD 6798 EXHIBIT A PAGE 17 of 29 subscriber if the subscriber was without service for a period exceeding 24 hours, unless the outage was due to acts of God, force majeure or circumstances reasonably beyond a franchisee’s ability to control. E. A franchisee shall supply at the time of a new connection, and periodically at least once a year, the title, address, and telephone number of the city official or designee, to whom system subscribers may direct their concerns. F. In no case will a franchisee’s service standards fall below the standards established by the National Cable Television Association (NCTA) which are attached to the ordinance codified in this chapter as Appendix “A” and incorporated within this chapter1 or any FCC regulation. (Ord. 4625 § 2, 1993.) 1 Code reviser’s note: Appendix “A” is on file in the office of the city clerk. 13.36.210 Telephone response. A. A franchisee shall maintain an adequate force of customer service representatives as well as incoming trunk lines so that telephone inquiries are met promptly and responsively. A franchisee shall have in place procedures for utilization of other manpower and/or recording devices for handling the flow of telephone calls at peak periods of large outages or other major causes of subscriber concern. A copy of such procedures and/or policies shall be made available to the city. B. In order that the city may be informed of a franchisee’s success in achieving satisfactory customer relations in its telephone answering functions, a franchisee shall, upon request by the city, and routinely no less than quarterly, provide the city with a summary that will provide, at a minimum, the following: 1. Total number of calls received in reporting periods; 2. Time taken to answer; 3. Average talk time; Page 115 of 378 ------------------------- ORD 6798 EXHIBIT A PAGE 18 of 29 4. Number of calls abandoned by the caller; 5. Average hold time; 6. Percentage of time all lines busy; 7. An explanation of any abnormalities. This data will be compared to minimum standards of the NCTA incorporated in this chapter by reference or any amendment thereto which increases such NCTA standards, and shall be monitored by the city. C. Calls for service generated during period of system outages due to emergency which affects more than 25 customers may be excluded from the service response calculations. The city shall have the sole determination as to what constitutes a system failure due to emergency and which calls shall be excluded from the service level calculations. (Ord. 4625 § 2, 1993.) 13.36.220 Failure to improve customer service. A. The city or its designee shall review telephone response and customer service information with a franchisee. The franchisee shall make improvements in the appropriate categories which were found deficient pursuant to ACC 13.36.190 and 13.36.200 from the last reporting period. Failure to do so may result in the calling of a public hearing by the council for the purpose of examining the reasons, if any, why such improvements were not achieved by a franchisee. B. An unsatisfactory record will result in the hearings being made part of an exhibit under Sections 626(c)(1)(A) and (B) of the Act alleging that such practices have failed to conform with future refranchising requirements as stated therein. In addition, a franchisee’s corporate office shall be advised of the city’s findings. (Ord. 4625 § 2, 1993.) Page 116 of 378 ------------------------- ORD 6798 EXHIBIT A PAGE 19 of 29 13.36.230 Franchise fee. A franchisee shall pay to the city quarterly, on or before the thirtieth day of each January, April, July and October, a sum as set forth in the Auburn fee schedule. Such remittances shall be accompanied by forms furnished by the city to report detailed information as to the sources of such income. (Ord. 6546 § 2, 2014; Ord. 4625 § 2, 1993.) 13.36.240 Cable system evaluation. A. In addition to periodic meetings, the city may require reasonable evaluation sessions at any time during the term of a franchise. It is intended that such evaluations cover areas such as customer service, response to the community’s cable-related needs, and a franchisee’s performance under and compliance with the terms of a franchise. B. During an evaluation session, a franchisee shall fully cooperate with the city and shall provide without cost such reasonable information and documents as the city may request to perform evaluations. C. If the city has concerns because of uncorrected and reoccurring problems with the franchisee’s cable system, the city may retain an independent consultant to conduct an analysis of the cable system and its performance and submit a report of such analysis to the city. The city shall take into consideration any efforts taken to correct such deficiencies. D. The report prepared by the consultant in response to the city’s request for a system evaluation shall include: 1. A description of the technical problem in cable system performance which precipitated the special tests; 2. What cable system components were tested; Page 117 of 378 ------------------------- ORD 6798 EXHIBIT A PAGE 20 of 29 3. The equipment used and procedures employed in testing; 4. The method, if any, by which specific performance problems may be resolved; 5. Any other information pertinent to said tests and analyses which may be required by the city, or determined when the test is performed. E. If the tests indicate that the system is not in compliance with FCC standards or the requirements of the franchise, a franchisee shall reimburse the city for any costs involved in conducting such tests, such as consultant fees or other expenses. Such fees or expenses shall not exceed $2,500 for each evaluation. (Ord. 4625 § 2, 1993.) 13.36.250 Periodic meetings. Upon request, a franchisee shall meet with designated city officials and/or designated representative(s) to review the performance of a franchisee for the preceding period. The subjects may include, but are not limited to, those items covered in the periodic reports and performance tests. (Ord. 4625 § 2, 1993.) 13.36.260 Record inspection. Subject to statutory and constitutional limits and two working days’ advance notice, the city reserves the right to inspect the records of a franchisee necessary for the enforcement of a franchise and verification of the accuracy of franchise fee payments at any time during normal business hours; provided, that the city shall maintain the confidentiality of any trade secrets or other proprietary information in the possession of a franchisee. Such documents shall include such information as financial records, subscriber records within the context of Section 631 of the Act, and plans pertaining to a franchisee’s operation in the city. (Ord. 4625 § 2, 1993.) Page 118 of 378 ------------------------- ORD 6798 EXHIBIT A PAGE 21 of 29 13.36.270 Reports. A franchisee shall furnish, upon request, a report of its activities as appropriate. Such report shall include: A. Most recent annual report; B. A copy of the 10-K Report, if required by the Securities and Exchange Commission; C. The number of homes passed; D. The number of subscribers with basic services; E. The number of subscribers with premium services; F. The number of hook-ups in period; G. The number of disconnects in period; H. Total number of miles of cable in city; I. Summary of complaints received by category, length of time taken to resolve and action taken to provide resolution; J. A statement of its current billing practices, and a sample copy of the bill format; K. A current copy of its subscriber service contract; L. Report on operations; and M. Such other reports with respect to its local operation, affairs, transactions or property that may be appropriate. (Ord. 4625 § 2, 1993.) Page 119 of 378 ------------------------- ORD 6798 EXHIBIT A PAGE 22 of 29 13.36.280 Programming. For informational purposes, a franchisee shall file a listing of its programing and the tiers in which they are placed. A franchisee shall consider the city’s suggestions of general program categories as determined from time to time in residential questionnaire polls. The results of initial such surveys will be appended to the respective franchise agreements. (Ord. 4625 § 2, 1993.) 13.36.290 Nondiscrimination. A. A franchisee shall not, as to rates, charges, service facilities, rules, regulations or in any other respect, make or grant any preferences or advantage to any person nor subject any person to any prejudice or disadvantage; provided, that nothing in this chapter shall be deemed to prohibit the establishment of a graduated scale of charges and classified rate schedules to which any customer coming within such classification would be entitled; and, provided further, that connection and/or service charges may be waived or modified during promotional campaigns of a franchisee. B. A franchisee will not deny access to cable communications service to any group of potential residential subscribers because of the income of the residents of the local area in which the group resides. (Ord. 4625 § 2, 1993.) 13.36.300 Continuity of service. It shall be the right of all subscribers to continue receiving service so long as their financial and other obligations to a franchisee are fulfilled. A. In this regard a franchisee shall act so far as it is within its control to ensure that all subscribers receive continuous uninterrupted service during the term of the franchise. Page 120 of 378 ------------------------- ORD 6798 EXHIBIT A PAGE 23 of 29 B. In the event a franchisee fails to operate a system for 72 continuous and consecutive hours without prior notification to and approval of the city council or without just cause such as an impossibility to operate the system because of the occurrence of an act of God or other circumstances reasonably beyond a franchisee’s control, the city may, after notice and an opportunity for a franchisee to commence operations at its option, operate the system or designate someone to operate the system until such time as a franchisee restores service to conditions acceptable to the city council or a replacement franchisee is selected. If the city is required to fulfill this obligation for a franchisee, a franchisee shall reimburse the city for all reasonable costs or damages in excess of revenues from the system received by the city that are the result of a franchisee’s failure to perform. (Ord. 4625 § 2, 1993.) 13.36.310 Franchise renewal. The provisions of Section 626 of the Act, or other applicable federal or state law, will govern the actions of the city and a franchisee in proceedings relating to franchise renewal. The city expressly reserves the right to establish guidelines and monitoring systems in accordance with the provisions of the Act to measure the effectiveness of a franchisee’s performance during the term of such franchise. (Ord. 4625 § 2, 1993.) 13.36.320 Transfer of ownership. A. A franchisee’s right, title, or interest in the franchise shall not be sold, transferred, assigned, or otherwise encumbered, other than to an affiliate, without the prior consent of the city, such consent not to be unreasonably withheld. No such consent shall be required, however, for a transfer in trust, by other hypothecation, or by assignment of any rights, title, or interest of the franchisee in the franchise or cable system in order to secure indebtedness. Approval shall not be required for mortgaging purposes provided that the collateral does not specifically affect the Page 121 of 378 ------------------------- ORD 6798 EXHIBIT A PAGE 24 of 29 assets of this franchise, or if the transfer is from a franchisee to another person or entity controlling, controlled by, or under common control with a franchisee. B. In any transfer of a franchise requiring city approval, the applicant must show technical ability, financial capability, legal and general qualifications as determined by the city, and must agree to comply with all provisions of the franchise. All costs associated with the transfer process shall be reimbursed to the city. C. An assignment of a franchise shall be deemed to occur if there is an actual change in control or where ownership of 50 percent or more of the beneficial interests, singly or collectively, are obtained by other parties. The word “control” as used herein is not limited to majority stock ownership only, but includes actual working control in whatever manner exercised. D. Regardless of the circumstances, a franchisee shall promptly notify the city prior to any proposed change, transfer, or acquisition by any other party of a franchisee’s company. In the event that the city adopts a resolution denying its consent and such change, transfer or acquisition of control has been effected, the city may cancel the franchise. (Ord. 4625 § 2, 1993.) 13.36.330 Removal and abandonment – Franchisee property. A. The city may direct a franchisee to temporarily disconnect or bypass any equipment of a franchisee in order to complete street construction or modification, install and remove underground utilities, or for other reasons of public safety and efficient operation of the city. Such removal, relocation or other requirement shall be at the sole expense of a franchisee. B. In the event that the use of any part of the cable system is discontinued for any reason for a continuous period of 12 months, or in the event such system or property has been installed in any street or public place without complying with the requirements of the franchise or other city ordinances or the franchise has been terminated, cancelled or has expired, a franchisee shall promptly, upon being given Page 122 of 378 ------------------------- ORD 6798 EXHIBIT A PAGE 25 of 29 10 days’ notice, remove within 90 days from the streets or public places all such property and poles of such system other than any which the city may permit to be abandoned in place. In the event of such removal, a franchisee shall promptly restore the street or other areas in accordance with local regulations and standards from which such property has been removed to a condition similar to that existing before such removal and satisfactory to the city. Such approval shall not be unduly withheld. C. Any property of a franchisee remaining in place 90 days after the termination or expiration of the franchise shall be considered permanently abandoned. The city may extend such time not to exceed an additional 90 days. D. Any property of a franchisee to be abandoned in place shall be abandoned in such manner as the city shall prescribe. Upon permanent abandonment of the property of a franchisee in place, the property shall become that of the city, and a franchisee shall submit to the city clerk an instrument in writing, to be approved by the city attorney, transferring to the city the ownership of such property. None of the foregoing affects or limits franchisee’s rights to compensation for an involuntary abandonment of its property under state or federal law. In the event the city and a franchisee are unable to agree as to whether an abandonment is voluntary for the purposes of this section, either party may invoke arbitration to resolve such question. (Ord. 4625 § 2, 1993.) 13.36.340 Termination – Revocation for cause. A. If a franchisee willfully violates or fails to comply with any of the material provisions of a franchise, the city shall give written notice to a franchisee of the alleged noncompliance of its franchise. A franchisee shall have 45 days from the date of notice of noncompliance to cure such alleged default or, if such default cannot be cured within 45 days, to present to the city a plan of action whereby such default can be promptly cured. Page 123 of 378 ------------------------- ORD 6798 EXHIBIT A PAGE 26 of 29 B. If such default continues beyond the applicable dates agreed to for such cure, the city shall give a franchisee written notice that all rights conferred under this chapter and pursuant to its franchise may be revoked or terminated by the council after a public hearing. A franchisee shall be entitled to not less than 30 days’ prior notice of the date, time and place of the public hearing. The city may elect, in lieu of the above and without any prejudice to any of its other legal rights and remedies, to obtain an order from the superior court having jurisdiction compelling a franchisee to comply with the provisions of the franchise and recover damages and costs incurred by the city by reason of a franchisee’s failure to comply. (Ord. 4625 § 2, 1993.) 13.36.350 Effect of termination for noncompliance. Subject to state and federal law, if any franchise is terminated by the city by reason of a franchisee’s noncompliance, that part of the system under such franchise located in the streets and public property, shall, at the election of the city, become the property of the city at a cost consistent with the provisions of Section 627(b)(1) of the Act. If the city, or a third party, does not purchase the system, a franchisee shall, upon order of the city council, remove the system as required under ACC 13.36.330. (Ord. 4625 § 2, 1993.) 13.36.360 Indemnity and hold harmless. A franchisee will indemnify and hold harmless the city from any and all liabilities, fees, costs and damages, except in the case of judicially determined gross negligence and/or willful misconduct of the city, whether to person or property, or expense of any type or nature which may occur to the city by reason of the construction, operation, maintenance, repair and alteration of a franchisee’s facilities or any other actions of a franchisee in the city. In any case in which suit or action is instituted against the city by reason of damage or injury caused by a franchisee, the city shall cause written notice thereof to be given to a franchisee and a franchisee Page 124 of 378 ------------------------- ORD 6798 EXHIBIT A PAGE 27 of 29 thereupon shall have the duty to appear and defend any such suit or action, without cost or expense to the city. (Ord. 4625 § 2, 1993.) 13.36.370 Insurance. A. A franchisee shall, concurrently with the filing of an acceptance of award of any franchise granted hereunder, furnish to the city and file with the city clerk, and at all times during the existence of any franchise granted hereunder maintain in full force and effect, at its own cost and expense, a general comprehensive liability insurance policy, for the purpose of protecting the city and all persons against liability for loss or damage, for personal injury, death and property damage, and errors or omissions, occasioned by the operations of a franchisee under such franchise, such policy to provide minimum limits of $1,000,000 for both personal injury and/or property damage. B. The policies mentioned in the foregoing paragraph shall name the city as additional insured and shall contain a provision that a written notice of cancellation or reduction in coverage of said policy shall be delivered to the city 30 days in advance of the effective date thereof. If such insurance is provided by a policy which also covers a franchisee or any other entity or person other than those above named, then such policy shall contain the standard cross-liability endorsement. (Ord. 4625 § 2, 1993.) 13.36.380 Performance bond. A franchisee shall promptly repair or cause to be repaired any damage to city property caused by a franchisee or any agent of a franchisee. A franchisee shall comply with all present and future ordinances and regulations regarding excavation or construction and, if deemed necessary by the city, shall be required to post a performance bond or other surety acceptable to the city in an amount specified by the city in favor of the city warranting that all restoration work will be done promptly and Page 125 of 378 ------------------------- ORD 6798 EXHIBIT A PAGE 28 of 29 in a workmanlike manner and that penalties, if any, after final adjudication are paid to the city within 90 days of such finding. (Ord. 4625 § 2, 1993.) 13.36.390 Franchising costs. A franchisee shall pay to the city upon acceptance of any franchise granted hereunder the city’s out-of-pocket costs associated with the franchising process. The city shall provide the franchisee an itemization of its anticipated costs. Such payment is in addition to franchise fee payments. Payment is due within 30 days of receipt of appropriate invoice from the city. (Ord. 4625 § 2, 1993.) 13.36.400 Equalization of civic contributions. A. In the event of one or more franchises being granted pursuant to the provisions of this chapter, the city may require that such subsequential franchisees pay to the city an amount proportionally equal to franchising costs contributed by the initial franchisee. These costs may include, but are not limited to, such features as access and institutional network costs, bi-directional or equivalent cable installed to municipal buildings and similar expenses. B. On the anniversary of the grant of each later awarded franchise, such franchisees shall pay to the city an amount proportional to the amount contributed by the original franchisee, based upon the amount of subscribers held by such franchisees. C. Additional franchisees shall provide all PEG access channel(s) and the emergency override system currently available to the subscribers of existing franchisees. In order to provide these access channels, additional franchisees may interconnect, at their cost, with existing franchisees, subject to any reasonable terms and conditions that the existing franchisee providing the interconnection may require. These interconnection agreements shall be made directly between the franchisees. Page 126 of 378 ------------------------- ORD 6798 EXHIBIT A PAGE 29 of 29 The city council, in such cases of dispute of award, may be called upon to arbitrate regarding these arrangements. (Ord. 4625 § 2, 1993.) 13.36.410 Inconsistency. If any portion of chapter should be inconsistent or conflict with any rule or regulation now or hereafter adopted by the FCC or other federal law, then to the extent of the inconsistency or conflict, the rule or regulation of the FCC or other federal law shall control for so long, but only for so long, as such rule, regulation, or law shall remain in effect; provided the remaining provisions of this chapter shall not be affected thereby. (Ord. 4625 § 2, 1993.) 13.36.420 Severability. Each section, subsection or other portion of chapter shall be severable and the invalidity of any section, subsection, or other portion shall not invalidate the remainder. (Ord. 4625 § 2, 1993.) Page 127 of 378 ------------------------- ORD 6798 EXHIBIT B PAGE 1 of 5 ORDINANCE 6798 EXHIBIT B Chapter 13.44 ELECTRICAL FRANCHISE [Repealed] Sections: 13.44.010 Granted. 13.44.020 Grantee defined. 13.44.030 Public highways and places – Defined – Scope. 13.44.040 Pole and cable maintenance. 13.44.050 Indemnification of city. 13.44.060 Building moving – Wire removal. 13.44.070 Acquisition of grantee’s property. 13.44.080 Franchise not exclusive. 13.44.090 Severability. 13.44.100 Written acceptance required. 13.44.010 Granted. There is granted to Puget Sound Power and Light Company, a Washington corporation, its successors and assigns, hereinafter called the grantee, for the term of 25 years beginning on the first day of January, 1977, and ending on the thirty-first day of December, 2001, the right, privilege, authority and franchise to set, erect, construct, replace, maintain and use poles and lines of poles (with or without crossarms) and all convenient appurtenances, equipment and facilities for the support thereof, or underground cables with appurtenances thereto where such underground facilities have been specially contracted for, in, upon, over, along and Page 128 of 378 ------------------------- ORD 6798 EXHIBIT B PAGE 2 of 5 across the public highways and places, as hereinafter defined, in the city of Auburn, and to attach wires and cables to such poles and crossarms and stretch wires and cables from pole to pole and to the premises of patrons for the transmission, distribution and sale of electricity for power, heat, light and any other purpose or purposes for which electricity may be used, whether for municipal, domestic, manufacturing or other uses and purposes, and to charge and collect tolls, rates and compensation for such electricity, and also the right to attach to such poles and crossarms and maintain private telephone wires for the exclusive use of the grantee in connection with its electric business. (Ord. 3121 § 1, 1976.) 13.44.020 Grantee defined. The word “grantee” is used in this chapter to refer to and include not only Puget Sound Power and Light Company, the immediate grantee hereof, but also the successors and assigns of said Puget Sound Power and Light Company who may successively become the owners, of the rights granted by this chapter. (Ord. 3121 § 2, 1976.) 13.44.030 Public highways and places – Defined – Scope. The grant hereby made is intended to, and does include any, all and every of the public streets, avenues, alleys, highways, and public grounds and places in the city of Auburn as now laid out, platted and dedicated, and all public streets, avenues, alleys, highways and public grounds and places that may be hereafter laid out and dedicated within the present limits of said city or within the limits thereof as the same may hereafter be extended, all of which are included within the words “public highways and places” wherever such words are used in this chapter. (Ord. 3121 § 3, 1976.) Page 129 of 378 ------------------------- ORD 6798 EXHIBIT B PAGE 3 of 5 13.44.040 Pole and cable maintenance. All poles and/or underground cables shall be constructed and maintained at such places and in such positions upon said public highways and places as shall least interfere with the free passage of traffic thereon, and in accordance with the laws of the state of Washington regulating such construction, such installations to be made under the supervision of, and with the permission of the director of public works of the city of Auburn or other assigned by the mayor or city council. Whenever it shall be necessary to make any excavation in any public highway or place for the erection, repair or substitution of any pole, underground cables or other equipment or facilities the grantee shall without delay restore the surface of said public highway or place as nearly as practicable to the same condition it was in before the doing of such work. (Ord. 3121 § 4, 1976.) 13.44.050 Indemnification of city. The grantee shall indemnify the city of Auburn for, and hold it harmless from, all damages that may result from the construction, maintenance or operation by such grantee of any of its property in said public highways or places pursuant to this franchise and shall pay all damages for which the grantee or the city of Auburn shall be held liable as the result of injuries suffered by any person, association or corporation by reason of the construction, maintenance or operation of such property; provided, that in case any claim is filed with the city of Auburn or any suit or action is instituted against said city by reason of any such damage or injury the city council shall promptly cause written notice thereof to be given to the grantee and the grantee shall have the right to defend any such suit or action. (Ord. 3121 § 5, 1976.) 13.44.060 Building moving – Wire removal. Whenever any person shall have obtained permission from the city of Auburn to use any public highway or place in said city for the purpose of moving any building the Page 130 of 378 ------------------------- ORD 6798 EXHIBIT B PAGE 4 of 5 grantee, upon seven days’ written notice from the city clerk of said city, shall raise or remove, at the expense of the person desiring to move said building, any of the wires which may obstruct the removal of such building; provided, that the moving of such building shall be done in accordance with the regulations and general ordinances of the city and at such reasonable hours and in such reasonable manner as shall cause the least interference with the business of the grantee, and where more than one street is available for the moving of such building it shall be moved on such street as shall cause the least interference with the business of the grantee; and provided further, that the person moving such building shall indemnify the grantee for, and save it harmless from, any and all damages or claims therefor of whatsoever kind or nature that may be caused directly or indirectly by such temporary arrangement of the poles, wires or other property of the grantee. (Ord. 3121 § 6, 1976.) 13.44.070 Acquisition of grantee’s property. If during the term of this franchise the city of Auburn shall acquire, by purchase or condemnation any of the grantee’s property maintained or used hereunder no greater sum shall be allowed for the value of the rights herein granted, in addition to all other elements affecting the value of such purchased or condemned property, than the actual cost of obtaining this franchise. (Ord. 3121 § 7, 1976.) 13.44.080 Franchise not exclusive. This franchise is granted upon the express condition that it shall not be deemed or held to be an exclusive franchise and shall not in any manner prohibit the city of Auburn from granting other and further franchises in, upon, over, along or across any of said public highways and places. (Ord. 3121 § 8, 1976.) Page 131 of 378 ------------------------- ORD 6798 EXHIBIT B PAGE 5 of 5 13.44.090 Severability. If any term, provision, condition or portion of this franchise shall be held to be invalid, such invalidity shall not affect the validity of the remaining portions of this franchise which shall continue in full force and effect. (Ord. 3121 § 9, 1976.) 13.44.100 Written acceptance required1. In order to claim any right or benefit under this franchise the grantee shall file its written acceptance of this franchise with the city clerk within 30 days after the approval hereof by the mayor and the publication of this chapter as required by law. (Ord. 3121 § 10, 1976.) 1 Puget Sound Power and Light Company executed written acceptance of this franchise November 30, 1976. Page 132 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 1 of 152 ORDINANCE 6798 EXHIBIT C Title 20 TELECOMMUNICATIONS AND OTHER COMMERCIAL UTILITIESFRANCHISES, CABLE FRANCHISES, AND LEASES Chapters: 20.02 General Provisions 20.04 Public Way AgreementsUtility and Telecommunications Franchises 20.06 Cable Franchise 20.08 Facilities Lease 20.10 Conditions of Public Way Agreements, Franchises, and Facilities LeasesRepealed 20.12 Open Video Systems Repealed 20.14 Small Wireless Facilities within the Public Rights-of-Way Page 133 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 2 of 152 Chapter 20.02 GENERAL PROVISIONS Sections: 20.02.010 Purpose. 20.02.020 Definitions. 20.02.030 Business registration license required. 20.02.040 Public way agreementFranchise required. 20.02.050 Cable television fFranchise required. 20.02.060 Cable television franchiseFacilities lease required. 20.02.070 Facilities lease requiredAuthorizations necessary for Construction. 20.02.080 Construction permit required.Applications to existing franchise, cable franchise, leases, and permits and effect of other laws. 20.02.090 Application to existing franchise ordinances, agreements, leases, and permits and effect of other laws.Fees and Compensation not a tax. 20.02.100 Reserved.Taxes are not to be a credit 20.02.110 Fees and compensation not a taxAccounts, books and records. 20.02.120 Taxes are not to be a credit.Location of facilities 20.02.130 Oversized loads. 20.02.140 Care of trees along streets. 20.02.150 Use of utility poles and facilities of others. 20.02.160 Use of poles and facilities by city. 20.02.170 Interference with the public ways. 20.02.180 Leased capacity. 20.02.190 Damage to property. 20.02.200 Repair and emergency work. 20.02.210 Maintenance, abandonment, relocation, or removal of facilities. 20.02.220 Removal of unauthorized facilities. 20.02.230 Emergency removal or relocation of facilities. 20.02.240 Damage to facilities. Page 134 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 3 of 152 20.02.250 Restoration of public ways, other ways, city property, and public/private utility property. 20.02.260 Facilities maps. 20.02.270 Insurance. 20.02.280 Financial security 20.02.290 Assignments or transfers of franchises, cable franchises, or leases. 20.02.300 Civil penalties. 20.02.310 Unfunded mandate. 20.02.320 Administration. 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, cable operators, and other commercial utilities in public ways and on city and/or public property; B. Establish, consistent with applicable 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, cable operators, and other commercial utilities in public ways and on city and/or public property; C. Promote competition in telecommunications and cable service; D. Minimize unnecessary local regulation of telecommunications carriers, operators, providers, cable operators, 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; Page 135 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 4 of 152 F. Permit and manage reasonable access to the public ways of the city for telecommunications, cable and utility 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 stateapplicable 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, cable operators, 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. 5271 § 1, 1999; Ord. 5034 § 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: A. “The Act” means the Federal TelecommunicationsCommunications Act of 1934, as amended January 31, 1996. Page 136 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 5 of 152 “Addressability” means the ability of a telecommunications system to allow telecommunications carriers, operators, or providers to authorize by remote control customer terminals to receive, change, or to cancel any or all specified programming. B. “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. C. “Applicable Law” means any statute, ordinance, judicial decision, executive order or regulation having the force and effect of law that determines the legal standing of a case or issue. D. “Applicant” means any person or entity that applies for any public way agreement, franchise, cable franchise, lease, or permit pursuant to this title. “Cable facilities” means equipment and wiring used to transmit audio and video signals to subscribers. E. “Cable operator” means any person or group of persons (A) who provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system, or (B) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system.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. F. “Cable service” means (A) the one-way transmission to subscribers of (i) video programing, or (ii) other programing service, and (B) subscriber interaction, if any, which is required for the selection or use of such video programming of other programming service.for the purpose of this title shall have the same meaning provided by the Cable Act and Chapter 13.36 ACC. G. “Cable system” means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed Page 137 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 6 of 152 to provide cable service and other service to subscribers.which includes video programing and which is provided to multiple subscribers within a community, but such term does not include: 1. A facility that serves only to retransmit the television signals of one(1) or more television broadcast stations; 2. A facility that serves subscribers without using any public way; 3 A facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Federal Communications Act (47 U.S.C. 201 et seq.), except that such facility shall be considered a cable system (other than for purposes of Section 621(c)(47 U.S.C. 541(c)) to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services; 4. An open video system that complies with federal statutes; or 5. Any facilities of any electric utility used solely for operating its electric utility system; H. “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.”) I “City” means the city of Auburn, Washington as defined in ACC 1.04.010 to include all future areas annexed into the city. J. “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 Page 138 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 7 of 152 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. K. “Council” means the city council of the city of Auburn, Washington acting in its official capacity constituting the legislative body of the city. “Data communication” means (1) the transmission of encoded information or (2) the transmission of data from one point to another. “Dwelling units” means residential living facilities as distinguished from temporary lodging facilities such as hospitals, hotel and motel rooms and dormitories, and includes single-family residential units and individual apartments, condominium units, mobile homes, extended care facilities and other multiple-family residential units. L. “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. M. “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, cable, or utility facilities. N. “FCC” or “Federal Communications Commission” means the federal administrative agency, or lawful successor, authorized to regulate and oversee cable and 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. O. “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, cable or other commercial utility facilities in, under, Page 139 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 8 of 152 over, or across public ways of the city and to also provide service to persons or areas in the city. P. “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. Q. “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. R. “Gross revenue” shall mean a cable operator’s gross revenues derived from the operation of the cable system to provide cable services. Gross revenues for the purposed of calculating franchise fees shall be as set forth in any franchise agreement.all receipts accrued in a franchisee’s books for all commercial utility, communications and communications-related operations and services from subscribers, who have a service address within the corporate limits of the city of Auburn, to franchisee’s business as well as any other revenue arising from operation or possession of a franchise agreement with the city of Auburn, less the application and administrative fees mandated in the franchise agreement and the franchise fee intended for compensation for use of “public ways.” By way of example, but without limitation, “gross revenue” includes all revenues from the sale or lease of equipment, installation charges to subscribers who have service addresses within the corporate limits of the city, charges to customers, subscribers and other users of the 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 Page 140 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 9 of 152 generally accepted accounting practices, (c) discounts, and (d) any applicable exclusions under the law. S. “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. T. “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. U. “Overhead facilities” means utility poles, utility facilities and telecommunications, cable, 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. V. “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. W. “Proposal” means an application by any person or entity that applies for any public way agreement, franchise, cable franchise lease, or permit pursuant to this title. X. “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. Page 141 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 10 of 152 Y. “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.the movement of motorized and non-motorized traffic, including city streets as part of state highways under Chapter 47.24 RCW. Z. “Public way(s)” shall mean the surface, 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 is 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. AA. “State” means the state of Washington. BB. “Subscriber” or “customer” means a person or user of the commercial utility, or telecommunications, or cable system who lawfully receives commercial utility, or telecommunications, or cable services, or other service therefrom, with franchisee’s express permission. CC. “Substantial change” for purposes of this chapter means a modification that substantially changes the physical dimensions of an eligible support structure located in the public way if, after the modification, the structure meets any of the following criteria: 1. It increases the height of the structure by more than ten percent or more than ten feet, whichever is greater; 2. It involves adding an appurtenance to the body of the structure that would protrude from the edge of the structure by more than six feet; 3. It involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four cabinets; or, for wireless communication towers in the public way and base stations, it involves installation of any new equipment cabinets on the ground if there are no Page 142 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 11 of 152 preexisting ground cabinets associated with the structure, or else involves installation of ground cabinets that are more than ten percent larger in height or overall volume than any other ground cabinets associated with the structure; 4. It entails any excavation or deployment outside the current site as that term is defined in 47 CFR §1.6100; 5. It would defeat the concealment elements of the eligible support structure; or 6. It does not comply with conditions associated with the original approval of the construction or modification of the eligible support structure or base station equipment, unless noncompliance is only in a manner that would exceed the thresholds identified in subsections (1) through (4) of this definition. For purposes of determining whether a substantial change exists, changes in height are measured from the original support structure as it existed at the time the first EFR request was approved for that structure in cases where facilities are or will be separated horizontally, in other circumstances, changes in height are measured from the dimensions of the wireless communication tower or base station, inclusive of originally approved appurtenances and any modifications that were approved prior to February 22, 2012. DD. “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 stateapplicable law, orders, and regulations, to allow its use by a utility, cable, or telecommunications carrier for a pole attachment. EE. “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.”) FF. “Telecommunications facilities or system” means the definition contained in ACC 5.84.020 with the exception of real estate, easements, and property.plant, equipment and facilities, including but not limited to, cables, wires, conduits, ducts, Page 143 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 12 of 152 pedestals, antennae, electronics and other appurtenances used or to be used to transmit, receive, distribute, provide or offer telecommunications services. GG. “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. HH. “Telecommunications provider” means and includes every person who utilizes facilities within the city’s public ways to provide services outside the city only. II. “Telecommunications service” means the transmission of information by wire, radio, optical cable, electromagnetic, or other similar means for hire, sale, or resale to the general public. For the purpose of this subsection, “information” means knowledge or intelligence represented by any form of writing, signs, signals, pictures, sounds, or any other symbols. For the purpose of this Chapter, telecommunications service excludes the over-the-air transmission of broadcast television or broadcast radio signals.providing or offering for rent, sale or lease, or in exchange for other value received, of the transmittal of voice, data, image, graphic and video programming information between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities, with or without benefit of any closed transmission medium. “Telecommunications system,” see “Telecommunications facilities.” JJ. “Underground facilities” means utility, and telecommunications, and cable facilities located under the surface of the ground, excluding the underground foundations or supports for overhead facilities. KK. “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. Page 144 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 13 of 152 LL. “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. MM. “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. NN. “Utility provider” means any natural gas, electric power, pipeline, water or sewer not owned or operated by the City of Auburn, or other company desiring to utilize the public ways for transporting, purveying, or delivering bulk products, or providing power or gas services within the city, or needing to transport bulk product or services through the city to other destinations for commercial purposes. OO. “WUTC” means the Washington State Utility and Transportation Commission. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.02.030 Business registration license required. Except as otherwise provided herein, all commercial utilityies, cable operators, telecommunications carriers, operators and providers engaged in the business of transmitting, supplying or furnishing of commercial utility, cable 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 license from the city pursuant to Chapter 5.84 ACC. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) Page 145 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 14 of 152 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.02.05020.02.040 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 inside the city or outside of the city, shall first obtain a franchise granting the use of such public ways from the city pursuant to Chapter 20.0620.04 ACC. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.02.06020.02.050 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 13.3620.06 ACC. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.02.07020.02.060 Facilities lease required. No commercial utility, cable, 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 that are not public ways unless granted a facilities lease Page 146 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 15 of 152 from the city pursuant to Chapter 20.08 ACC. The city council reserves unto itself the sole discretion to lease such city property for utility, cable, 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.02.08020.02.070 Authorizations necessary for Construction permit required. Except as otherwise provided herein, the holder of a public way agreement, franchise, cable 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, cable franchise, or lease, be required to obtain all applicable construction permits from the city pursuant to Chapter 12.24 ACC, Chapter 20.14 ACC and Title 18 ACC. No work, construction, development, excavation, substantial change, or installation of any equipment or facilities shall take place within the public ways or upon city property until such time as the construction appropriate permits areis issued or lease terms are met. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.02.09020.02.080 Application to existing franchise, cable franchise, ordinances, agreements, leases, and permits and effect of other laws. All grantees, franchisees, and lessees subject to this title are at all times subject to and must comply with all applicable existing and future federal, state and local laws, ordinances, codes, rules, regulations and orders. A. In accepting and executing any franchise, cable franchise, or lease, the 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 ordinance, rules, and/or regulations necessary to protect the safety, health, and welfare of the public, subject to applicable law. A franchisee and/or lessee shall Page 147 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 16 of 152 comply with all applicable general laws, rules, and/or regulations enacted by the city pursuant to such power.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 otherapplicable 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.02.100 Reserved. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.02.11020.02.090 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, cable, or telecommunications carrier, Page 148 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 17 of 152 operator, or provider, its customers or subscribers or on account of the lease, sale, delivery or transmission of utility, cable, or telecommunications services. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.02.12020.02.100 Taxes are not to be a credit. Any compensation paid as provided for in public way agreements, any franchises, cable 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.06.19020.02.110 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 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 Page 149 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 18 of 152 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 chapter 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 codein a format acceptable to the city. 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 this franchise chapter. The franchisee shall fully cooperate in making available its records and otherwise assisting in these activities. Such information shall be held in strict confidence by the city, as allowed by law, and used only for the purpose stated herein. D. Inquiries to Franchisee. The city may, at any time, make inquiries pertaining to the franchisee’s operation of its utility, cable, or telecommunications system within the franchise area. The franchisee shall respond to such inquiries on a timely basis. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) Page 150 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 19 of 152 20.10.05020.02.120 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 or public property must locate its utility, cable, or telecommunications facilities underground in accordance with ACC Title 18 and Chapter 13.32A 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 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, and 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 stateapplicable 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) Page 151 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 20 of 152 20.10.14020.02.130 Building movingOversized loads. Whenever any person shall have obtained permission from the city to use any street or public way for the purpose of moving any buildingoversized loads, a grantee, franchisee, or lessee, upon seven calendar days’ written notice from the cityperson with a permit to move the oversized loads, shall raise or remove, at the expense of the person desiring to move the buildingoversized load, any of the grantee, franchisee, or lessee’s utility wires, poles, or facilities which may obstruct the moving of such buildingoversized load; provided, that the person desiring to move the buildingoversized load shall comply with all requirements of the city for the moving of buildingsoversized loads. Where more than one street is available for the moving of such oversized load, the oversized load shall be moved on such streets as shall cause the least interference, In such event, the city shall be responsible for determining the path of least interference. It is further provided that the person or persons moving such oversized load shall indemnify and save harmless said franchisee or lessee and the city from any and all damages or claims of any kind or nature caused directly or indirectly for such temporary arrangement of the lines and poles of a franchisee or lessee (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.10.45020.02.140 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 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 Page 152 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 21 of 152 land clearing permitother permits as necessary from the city. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.10.46020.02.150 Use of utility poles and facilities of others. Grantees and fFranchisees 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 utility, cable, or telecommunications facilities, electronic conductors and other facilities and appurtenances necessary or desirable in conjunction with the operation of its utility, cable, or 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. Unless otherwise limited by applicable law, Aany compensation for uses of city-owned poles will be based upon the prevailing market rates for similar uses in the region. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.10.47020.02.160 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’s 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: Page 153 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 22 of 152 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 eaffect franchisee’s or grantee’s construction schedule; D. In no case shall the city attach to or come into contact with grantee’s or franchisee’s equipment. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.10.08020.02.170 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 and public property. 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 20.10.13020.02.210, 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.10.21020.02.180 Leased capacity. A grantee, franchisee, or lessee shall have the right to offer or provide sublease capacity, or bandwidth, or other facilities to its customers consistent with such permit, franchise, or lease; provided: Page 154 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 23 of 152 A. The sub-lessee first obtains a franchise, cable franchise, lease, or such applicable agreement with the City of Auburn in conformance with this Title 20 ACC; 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 3.84 and 3.88 ACC regarding the reporting of all revenues subject to city taxes and assessments; and C. The sub-Llessee must comply with the city’s registration requirements in Chapter 5.84 ACC. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.10.09020.02.190 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.10.11020.02.200 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) Page 155 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 24 of 152 20.10.12020.02.210 Maintenance, abandonment, relocations or removal 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 requirementsApplicable Law. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.10.130 Abandonment, relocation or removal of facilities. Within 30 days or such other time frame as determined by the city, and in accordance with RCW 35.99.060, 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 commercialof its 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.10.15020.02.220 Removal of unauthorized facilities. Within 30 days following written notice from the city, any commercial utility, cable, telecommunications carrier, operator, lessee or other person who owns, controls, or maintains any unauthorized cable or telecommunications system, facility, or related Page 156 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 25 of 152 appurtenances within the public ways or upon property of the city shall, at its own expense, remove such system, facilities, or appurtenances from the public ways of the cityor property 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; or 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. If the city, in its sole discretion, permits abandonment of facilities in place, Uupon permanent abandonment in place of the facilities such facilities shallmay, at the city’s discretion 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 Page 157 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 26 of 152 section shall survive the expiration, revocation, or termination of a public way agreement, franchise, or lease granted under this title. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.10.16020.02.230 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.10.17020.02.240 Damage to facilities. Unless directly and proximately caused by the willful, intentional, or malicious acts by the city, the city shall not be liable for any damage to or loss of any commercial utility, cable, or telecommunications facilities upon city property or within the public ways of the city as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling, or work of any kind on such city property or within the public ways by or on behalf of the city. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.10.18020.02.250 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 Page 158 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 27 of 152 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’s, franchisee’s, 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 or designee 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, or lease, or other agreement granted pursuant to this title or Chapter 12.24 ACC. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.10.19020.02.260 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, cable, or telecommunications facilities within the public ways and upon city property. Each grantee, franchisee, and lessee shall provide the city Page 159 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 28 of 152 with updated maps annually or upon written request by the city. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.10.22020.02.270 Insurance. Unless otherwise provided in a public way agreement, franchise, cable 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 at a minimum 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, non-owned 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; Page 160 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 29 of 152 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 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 Page 161 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 30 of 152 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.10.24020.02.280 Performance and construction suretyFinancial Security. Before a public way agreement, franchise, or cable franchiselease 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 bondsfinancial securities for grantees, franchisees, and lessees shall satisfy the minimum standards established by the public works departmentEngineering Design and Construction Standards at the time of the grantees’, franchisees’ acceptance, 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.10.250 Security options. A. In order to secure the conditions agreed to in any franchise or cable franchise agreement negotiated under this title, for the full term of such agreements, each grantee, franchisee, or lessee shall establish a permanent financial security in the form of a 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 a Washington state Page 162 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 31 of 152 bank utilizing the city’s standard assignment form, or by provision of the letter of credit. The amount of the financial 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 a minimum of $50,000, or such other whichever is less, or such lesser amount as determined by the public works director to be sufficient. The financial security shall be maintained at the sole expense of the grantee, franchisee, or lessee so long as any of the grantee, franchisee’s, or lessee’s utility, cable or telecommunications facilities are located within the public ways, or the franchisee provides services from facilities located in the public ways, of the city or upon city property and until released by the city. In the event a financial 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 franchise or cable franchise agreement being secured be terminated, the financepublic works director will coordinate with other departments and determine if any portion of the security may be released by the city. AB. 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. BC. Before the city executes on the financial security bond or any sums are withdrawn from the financial 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’s, 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; Page 163 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 32 of 152 3. Providing a reasonable opportunity for grantee, franchisee, or lessee to pay any moneys due the city before the city executes the bondfinancial security or withdraws the amount thereof from the financial 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 designee. CD. Grantees, fFranchisees and lessees shall replenish the financial 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 fundfinancial security. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.10.260 Performance bond. E. When the value of work proposed to be performed under any permit within the public way exceeds the amount of the financial security in this provision, the franchisee may be required to provide an additional financial security in a sufficient amount as determined by the city. All performance bondsfinancial securities provided in accordance with this title shall comply with the minimum standards in Chapter 12.24 ACC. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.10.28020.02.290 Assignments or transfers of public way agreements, franchises, cable franchises, or leases. The assignment or transfer of any business registrationlicense, 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. Page 164 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 33 of 152 A. No public way agreement, franchise, or lease, subject to this title, shall be assigned or transferred 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; 3. Any other information reasonably required by the city; and 4. A nonrefundable application fee in the amount established in the city’s fee schedule. C. No transfer shall be approved unless the assignee or transferee meets the requirements contained in ACC 20.04.040(A) and (I)Title 20 ACC and can comply with the requirements of the public way agreement, franchise, or lease. D. Unless otherwise provided in a 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. Page 165 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 34 of 152 E. Any transfer or assignment of a public way agreement, franchise, or lease without prior written approval of the city under this section or pursuant to a public way agreement, franchise, or lease agreement shall be void and is cause for termination of the public way agreement, franchise, or lease. F. Notwithstanding anything contained herein to the contrary, transfer of cable franchises shall additionally be governed by applicable provisions of federal law, and issues involving transfers may be addressed in a cable franchise. (Ord. 6718 § 5 (Exh. E), 2019; Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.10.290 Transactions affecting control of public way agreements, franchises, or leases. G 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 utility, cable, or 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 20.10.280this provision. 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’s, franchisee’s, or lessee’s company. Every change, transfer, or acquisition of control of a grantee’s, franchisee’s, or lessee’s company shall cause a review of the proposed transfer. In the event that the city council adopts a resolution, ordinance, or other appropriate order opposing such change, transfer or acquisition of control that has been completed without prior city approval pursuant to this provisioneffected, 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 Page 166 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 35 of 152 lessee to another person or entity controlling, controlled by, or under common control with a grantee, franchisee, or lessee. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.10.34020.02.300 Civil penalties. A. In accordance with Chapter 1.25 ACC, unless otherwise provided herein, Aany 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, and costs incurred by the city, 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 director in writing of the name of any person subject to the penalty, and the finance director Page 167 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 36 of 152 shall take appropriate action to collect the penalty. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.10.44020.02.310 Unfunded mandate. The city intends that no federal or state requirement to promote the deregulation of utilities, cable, 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 franchise, cable franchise, lease, or other 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.10.48020.02.320 Administration. The public works director or designee shall administer all public way agreements and franchises subject to this title, and the finance directormayor or designee shall administer all leases subject to this title. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) Page 168 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 37 of 152 Chapter 20.04 PUBLIC WAY AGREEMENTSUTILITY AND TELECOMMUNCATION FRANCHISES Sections: 20.04.010 Public way agreementsFranchise requirements. 20.04.020 Public way agreementFranchise applications. 20.04.030 Notice of complete application, franchise negotiations and scheduling of meetingpublic hearing on franchises. 20.04.040 Determination by the city. 20.04.050 Notification of council action and execution of agreement. 20.04.060 Nonexclusive public way agreementsAcceptance and effective date. 20.04.070 Rights grantedNonexclusive franchise. 20.04.080 Term of telecommunications public wayfranchise agreements. 20.04.090 Specified routeRights granted. 20.04.100 Service to city usersFranchise territory. 20.04.110 Amendment to public way agreementsFranchise fees in addition to utility taxes. 20.04.120 Renewal of public way agreementsNondiscrimination. 20.04.130 Determination by city for renewal of public way agreementsAmendment of franchise. 20.04.140 Notification of council action on renewal of public way agreements and execution of agreementsRenewal of franchise. 20.04.150 Obligation to cure as a condition of renewalDetermination by city for renewal of franchise. 20.04.160 ReservedObligation to cure as a condition of renewal. 20.04.170 Annual fee for recovery of city costsNotification of council action on renewal of franchise agreements and execution of agreements. 20.04.180 Other city costs. 20.04.190 Compensation for use of public ways. Page 169 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 38 of 152 20.04.010 Public way agreements. A public way agreement shall be required of any commercial utility or telecommunications provider 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 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 identify of the applicant, including all affiliates of the applicant; B. A description of the commercial utility or telecommunications services that are or will be offered or provided by the applicant using its facilities; C. A description of the transmission medium or transporting means that will be used by the applicant to offer or provide such telecommunications or utility services; 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; Page 170 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 39 of 152 E. If applicant is proposing to install above-ground 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: 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; Page 171 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 40 of 152 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 license stamped and signed by the business license clerk, as designated by the mayor; and M. A nonrefundable application fee as set forth in the Auburn fee schedule. (Ord. 6546 § 3, 2014; Ord. 5897 § 22, 2005; Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.04.030 Notice of complete application and scheduling of meeting. 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 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 city council. The city clerk will notify the applicant in Page 172 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 41 of 152 writing of the scheduled meeting. (Ord. 6532 § 32, 2014; Ord. 5271 § 1, 1999; Ord. 5034 § 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; 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; Page 173 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 42 of 152 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. 5271 § 1, 1999; Ord. 5034 § 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 Page 174 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 43 of 152 has provided the security deposits and proof of insurance as required by Chapter 20.10 ACC. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 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. 5271 § 1, 1999; Ord. 5034 § 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. 5271 § 1, 1999; Ord. 5034 § 1, 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. 5271 § 1, 1999; Ord. 5034 § 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) Page 175 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 44 of 152 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.04.110 Amendment to public way agreements. A new application shall be required of any commercial utility or telecommunications provider who desires to extend or locate its facilities in public ways of the city which are not included in a public way agreement previously granted under this title. If a grantee is required by the city to locate or relocate its facilities in public ways not included in a previously granted public way agreement, the city shall grant an amendment to the agreement without further application. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 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 Page 176 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 45 of 152 D. A nonrefundable application fee as set forth in the Auburn fee schedule. (Ord. 6546 § 4, 2014; Ord. 5271 § 1, 1999; Ord. 5034 § 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. 5271 § 1, 1999; Ord. 5034 § 1, 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 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 Page 177 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 46 of 152 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.04.160 Reserved. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 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. 5271 § 1, 1999; Ord. 5034 § 1, 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 Page 178 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 47 of 152 any city facility as a result of the construction or the presence in the public ways of the grantee’s facilities. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.06.01020.04.010 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 or outside the city; provided, however, that a public way agreementRight-of- Way Use permit may be approved in accordance with the provisions of this title instead of a franchiseChapter 12.60 ACC in the following circumstances: A. A privately owned utility or 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, autility or telecommunications networkfacilities connecting two business facilities under common ownership or control, when said facilities are not offered to other business entities or persons. B. De minimis uses of public ways made in conjunction with a wireless telecommunications facility located entirely upon publicly or privately owned propertyA cable system as defined in ACC 5.84.020, shall be governed by the procedures of Chapter 20.06 ACC rather than the requirements of this Chapter. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.06.02020.04.020 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,An applicant for an initial franchise to construct, operate, and maintain a utility or telecommunications system within the city shall file an application in a form prescribed by the city, Page 179 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 48 of 152 accompanied by a nonrefundable franchise application fee in the amount set forth in the City of Auburn fee schedule. The application shall include the following: A. The identity of the applicant, including all affiliates of the applicant; B. A description of the utility or telecommunications services that are or will be offered or provided by the applicant; C. A description of the facilities, transmission medium or transporting means that will be used by the applicant to offer or provide such utility or telecommunications services; D Applications proposing citywide facilities shall submit conceptual plans showing the general route or locations of facilities. Applications proposing site specific facilities shall submit plans in compliance with the City’s Engineering Design Standards; E Evidence of ownership or a right to use existing utility or telecommunications facilities such as poles, ducts, conduit or other facilities which the applicant intends to use or lease; F 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; AG. Whether the applicant intends to provide cable service, video dialtone service or other multi-channel video programming service, and sufficient information to determine whether such service is subject to cable franchising under Chapter 20.06 ACC; 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 Page 180 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 49 of 152 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; EH. The area or areas of the city the applicant desires to serve and an 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; HI. Such other and further information as permitted by federal and stateapplicable law as may be requested by the city; IJ. 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 financial security requirements in ACC 20.10.240 through 20.10.26020.02.280; JK. A copy of an Auburn business license stamped and signed by the business license clerk, as designated by the mayor; and KL. A nonrefundable application fee and other charges as set forth in the Auburn fee schedule. (Ord. 6546 § 5, 2014; Ord. 5897 § 23, 2005; Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) Page 181 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 50 of 152 20.06.03020.04.030 Notice of complete application, franchise negotiations and scheduling of public hearing on franchises. 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 20.06.02020.04.020 to proceed with processing. If during the 30-calendar-day review period, the city engineer determines that the application is incomplete, the city engineer will issue a letter to the applicant specifying the additional information necessary to complete the application. The applicant will be given 30 calendar days to respond. 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. Franchise Negotiations. When satisfied that the application is complete, the city will notify the applicant in writing that the application is complete. At such time franchise negotiations may commence. BC. Scheduling of Public Hearing. When satisfied that the application is completeAfter completion of negotiations, 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 city council in accordance with RCW 35.99.030. The city council will schedule the hearing to consider the proposed franchise, and the city clerk will notify the applicant in writing of the scheduled hearing. (Ord. 6532 § 33, 2014; Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) Page 182 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 51 of 152 20.06.04020.04.040 Determination by the city. Within 180120 calendar days from the time of notification that the application is complete or as otherwise permitted by RCW 35.99.030, under ACC 20.06.030(A)20.04.030(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 Communications Act, public disclosure of any fees as compensation for use of the 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 utility or telecommunications franchise shall be based upon the following: A. Whether the applicant has received all requisite licenses, certificates, and authorizations from the Federal Communications Commission, the Washington Utilities and Transportation Commission, and any other federal or state agency with jurisdiction over the activities proposed services to be provided 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; Page 183 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 52 of 152 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 financial security requirements established in ACC 20.10.240 through 20.10.26020.02.280 and Chapter 12.24 ACC; and M. Such other factors as may demonstrate that the franchise to use the public ways will serve the community interest. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.06.05020.04.050 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 Page 184 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 53 of 152 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 financial security, deposits and proof of insurance and any outstanding fees as required by Chapter 20.1020.02 ACC. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.10.02020.04.060 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 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, financial and security, and any outstanding fees fund required by this title. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.06.06020.04.070 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.06.07020.04.080 Term of franchise agreements. By virtue of the uncertainties created by the Act, unless otherwise specified in an existing franchise agreement, a telecommunications franchise granted by the city Page 185 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 54 of 152 pursuant to this title shall be valid for a term not to exceed five years.Unless otherwise specified in a franchise agreement, the term of any franchise agreement, granted hereunder shall not exceed fifteen years at the sole discretion of the City. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.06.08020.04.090 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.06.09020.04.100 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.06.10020.04.110 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, as determined by Title 3 ACC. Franchise fees shall be in addition to any utility tax, but shall be collectible only to the extent as then allowed by applicable law, and in no event may the combined utility tax and franchise fee exceed the amount permitted by applicable law. (Ord. 6546 § 6, 2014; Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) Page 186 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 55 of 152 20.06.11020.04.120 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.06.12020.04.130 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.06.13020.04.140 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 20.06.03020.04.030, with the city for a renewal of its franchise which shall include the following: A. The information required pursuant to ACC 20.06.02020.04.020; B. Any information required pursuant to the franchise agreement between the city and the franchisee; Page 187 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 56 of 152 C. All deposits or charges required pursuant to this chapterFinancial security, proof of insurance and any outstanding fees as required by Chapter 20.02 ACC; D. A nonrefundable application fee in the amount as set forth in the Auburn fee schedule. (Ord. 6546 § 7, 2014; Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.06.14020.04.150 Determination by city for renewal of franchise. The process specified in ACC 20.06.03020.04.030 for determining and notifying of completeness of application shall be used for renewals. Within 120 calendar days after receiving a complete application for renewal or such time as permitted by RCW 35.99.030, following the procedures in ACC 20.06.03020.04.030, 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 20.06.04020.04.040. 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) Page 188 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 57 of 152 20.06.15020.04.160 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.04.14020.04.170 Notification of council action on renewal of public wayfranchise 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.06.17020.04.180 Other city costs. All franchisees shall, within 30 days after written demand, reimburse the city for all direct and indirect costs and expenses incurred by the city in connection with any modification, amendment, renewal or transfer of the franchise or any franchise agreement. In addition, all franchisees shall, within 30 days after written demand, reimburse the city for any and all costs the city reasonably incurs in response to any emergency involving the franchisee’s utility or telecommunications facilities. Finally, all franchisees shall, within 30 days after written demand, reimburse the city for the franchisee’s proportionate share of all actual, identified expenses incurred by the city in planning, constructing, installing, repairing or altering any city facility as a result of the presence in the public way of the franchisee’s utility or telecommunications facilities. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) Page 189 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 58 of 152 20.06.18020.04.190 Compensation for use of public ways. A. The city finds that the public ways to be used by commercial utilities andutility or telecommunications carriers and operators in the operation of utility or 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 subsection E of this section) 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 the amount permitted by applicable law 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, cashier’s check, other certified funds or electronic payment in the form of a wire or Direct Deposit (ACH) 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. Page 190 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 59 of 152 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 as shown in the city’s fee schedule. 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 applicable 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 applicable law and used only for the purpose stated herein. Page 191 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 60 of 152 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 tax, corporate or business occupation taxes or other taxes or fees imposed or levied by any governmental entity. J. Utility Tax Liability – Franchise Fees. Revenues derived directly or indirectly from sources within the city shall be subject to applicable utility taxes as of the time of commencement of such operations. Franchise fees shall be in addition to any utility tax, but shall be collectible only to the extent as then allowed by applicable 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 utility or 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 Page 192 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 61 of 152 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 fivetwo percent unless otherwise agreed to in a franchise agreement, then franchisees shall pay for the costs of the audit. If the audit reveals an error in payment of fivetwo 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 non-collection or non-reporting of gross revenues, bartering, or any other means which evade the actual collection of revenues for business pursued by franchisees are prohibited. N. Best Rates. As allowed by applicable law, part of the compensation to the city for the grant of any telecommunications franchise, the city shall be entitled to obtain subscriptions, at the city’s discretion, to the 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 of accessing the communications service. (Ord. 6718 § 3 (Exh. C), 2019; Ord. 6546 § 8, 2014; Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) Page 193 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 62 of 152 Chapter 20.06 CABLE FRANCHISES Sections: 20.06.010 Franchise requirementsPurpose. 20.06.020 Franchise applicationsCable franchise conditions and term. 20.06.030 Notice of complete application and scheduling of public hearingCable franchise application. 20.06.040 Determination by the cityScheduling public hearing; notice; criteria for approval. 20.06.050 Notification of council action and execution of franchiseDetermination by the city. 20.06.060 Nonexclusive franchiseApplication instructions and requirements for competitive cable franchise. 20.06.070 Term of franchiseAcceptance. 20.06.080 Rights grantedRules and regulations by the city. 20.06.090 Franchise territoryTechnical standards and maintenance. 20.06.100 Franchise fees in addition to utility taxesConstruction Standards. 20.06.110 NondiscriminationUndergrounding. 20.06.120 Amendment of franchiseConstruction in public ways. 20.06.130 Renewal of franchiseSafety requirements. 20.06.140 Determination by city for renewal of franchiseRates. 20.06.150 Obligation to cure as a condition of renewalCustomer service. 20.06.160 ReservedTelephone response. 20.06.170 Other city costsFailure to improve customer service. 20.06.180 Compensation for use of public waysFranchise fee. 20.06.190 Accounts, books and recordsRecord Inspection. 20.06.200 Reports. 20.06.210 Programming. 20.06.220 Nondiscrimination. 20.06.230 Inconsistency. 20.06.240 Severability. Page 194 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 63 of 152 20.06.010 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 minimis uses of public ways made in conjunction with a wireless telecommunications facility located entirely upon publicly or privately owned property. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 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 Page 195 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 64 of 152 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 an 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 license stamped and signed by the business license clerk, as designated by the mayor; and K. A nonrefundable application fee as set forth in the Auburn fee schedule. (Ord. 6546 § 5, 2014; Ord. 5897 § 23, 2005; Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 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 Page 196 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 65 of 152 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 city council. The city council will schedule the hearing and the city clerk will notify the applicant in writing of the scheduled hearing. (Ord. 6532 § 33, 2014; Ord. 5271 § 1, 1999; Ord. 5034 § 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 Page 197 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 66 of 152 whole or in part, an application for a telecommunications franchise shall be based upon the following: A. Whether the applicant has received all requisite licenses, certificates, and authorizations from the Federal Communications Commission, the Washington Utilities and Transportation Commission, and any other federal or state agency with jurisdiction over the activities proposed by the applicant; 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 Page 198 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 67 of 152 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 ways will serve the community interest. (Ord. 5271 § 1, 1999; Ord. 5034 § 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. 5271 § 1, 1999; Ord. 5034 § 1, 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) Page 199 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 68 of 152 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. 5271 § 1, 1999; Ord. 5034 § 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. 5271 § 1, 1999; Ord. 5034 § 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 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 the amount permitted by law. (Ord. 6546 § 6, 2014; Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) Page 200 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 69 of 152 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. 5271 § 1, 1999; Ord. 5034 § 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. 5271 § 1, 1999; Ord. 5034 § 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; Page 201 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 70 of 152 C. All deposits or charges required pursuant to this chapter; D. A nonrefundable application fee in the amount as set forth in the Auburn fee schedule. (Ord. 6546 § 7, 2014; Ord. 5271 § 1, 1999; Ord. 5034 § 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) Page 202 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 71 of 152 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.06.160 Reserved. (Ord. 5271 § 1, 1999; Ord. 5034 § 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 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. 5271 § 1, 1999; Ord. 5034 § 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 Page 203 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 72 of 152 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 subsection E of this section) 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 the amount permitted by law 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 as shown in the city’s fee schedule. 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 Page 204 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 73 of 152 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. Page 205 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 74 of 152 I. Taxes Are Not to Be a Credit. The compensation paid under this franchise shall be exclusive of and in addition to all special assessments and taxes of whatever nature which are applicable to all other persons or entities doing business within the city, including, but not limited to, ad valorem tax, sales tax, corporate or business occupation taxes or other taxes or fees imposed or levied by any governmental entity. J. Utility Tax Liability – Franchise Fees. Revenues derived directly or indirectly from sources within the city shall be subject to applicable utility taxes as of the time of commencement of such operations. Franchise fees shall be in addition to any utility tax, but shall be collectible only to the extent as then allowed by law, and in no event may the combined utility tax and franchise fee exceed six percent 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. Page 206 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 75 of 152 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 of accessing the communications service. (Ord. 6718 § 3 (Exh. C), 2019; Ord. 6546 § 8, 2014; Ord. 5271 § 1, 1999; Ord. 5034 § 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 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 Page 207 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 76 of 152 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 chapter 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 this franchise chapter. The franchisee shall fully cooperate in making available its records and otherwise assisting in these activities. Such information shall be held in strict confidence by the city, as allowed by law, and used only for the purpose stated herein. D. Inquiries to Franchisee. The city may, at any time, make inquiries 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. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) Page 208 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 77 of 152 13.36.01020.06.010 Purpose. The purpose of this chapter is to set forth an integrated statement of conditions, requirements, obligations, duties and procedures for granting by the city of a nonexclusive franchise for the construction, maintenance and operation of a cable systems of cable television signal distribution within the territorial limits of the cCity of Auburn. (Ord. 4625 § 2, 1993.) 13.36.03020.06.020 Cable Franchise – Conditions and term. A. Authority to Grant Cable Franchises or Licenses for Cable Television. The city council may by resolutionordinance award a nonexclusive franchise to construct, operate and maintain a cable communications system which complies with the requirements and conditions of this chapter. Any franchise granted pursuant to this chapter shall be nonexclusive and shall not preclude the city from granting other or further franchises or permits, or preclude the city from using any roads, rights-of- public ways, streets, or other public properties, or affect its jurisdiction over them or any part of them, or limit the full power of the city to make such changes as the city shall deem necessary, including the dedication, establishment, maintenance, and improvement of all new rights-of-public ways and thoroughfares and other public properties; provided, that any such changes shall not materially or substantially impair the rights granted a franchisee pursuant to this chapter. All franchises granted subsequent to the effective date of this chapter shall be consistent with the requirements and conditions of this chapter. B. Incorporation by Reference. The provisions of this chapter shall be incorporated by reference in any franchises approved pursuant hereto. The provisions of any proposal for a franchise submitted and accepted by the city shall be incorporated by reference in the applicable franchise; provided, that in the event of any conflict between the proposal, this chapter and the franchise, the franchise shall be the prevailing document. Page 209 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 78 of 152 CB. Conditions of a Franchise. Subject to the provisions in this chapter, any cable franchise granted hereunder by the city shall authorize a franchisee to: (1) engage in the business of operating and providing cable service and the distribution and sale of such service to subscribers within the city; and (2) erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any street, such amplifiers and appliances, lines, cables, conductors, vaults, manholes, pedestals, attachments, supporting structures, and other property as may be necessary and appurtenant to the cable communications system; and (3) use, operate and provide similar facilities, or properties rented or leased from other persons, firms or corporations, including but not limited to any public utility or other franchisee franchised or permitted to do business in the city; provided, that no privilege or exemption shall be granted or conferred upon a franchisee by any franchise except those specifically prescribed therein, and any use of any street shall be consistent with any prior lawful occupancy of the street or any subsequent improvement or installation therein. DC. Term of Franchise. The council shall have the right to grant a franchise for a period of time which in the council’s judgement is the most appropriate to the circumstances of the particular grant and is in the best interests of the citizens of the city. (Ord. 4625 § 2, 1993.) 13.36.04020.06.030 Franchise – Application requirementsCable franchise application. An applicant for an initial franchise to construct, operate, and maintain a cable communication system within the city shall file an application in a form prescribed by the city, accompanied by a nonrefundable franchise application fee in the amount set forth in the city of Auburn fee schedule. The application shall include the following: (Ord. 6546 § 1, 2014; Ord. 4625 § 2, 1993.) A. The identity of the applicant, including all affiliates of the applicant that may be involved in the construction, operation and/or maintenance of the cable system; Page 210 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 79 of 152 B. A description of the cable services that are or will be offered or provided by the applicant; C. A description of the facilities, transmission medium or transporting means that will be used by the applicant to offer or provide such cable services; E. Evidence of ownership or a right to use existing facilities such as poles, ducts, conduit or other facilities which the applicant intends to use or lease. F. Information to establish that the applicant has obtained any other required governmental approvals and permits to construct and operate the facilities, and to offer or provide cable services. H. The area or areas of the city the applicant desires to serve and a schedule for build-out to the entire franchise area; I. Such other and further information as permitted by applicable law as may be requested by the city; J. 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 financial security requirements in ACC 20.02.280; K. A copy of an Auburn business license stamped and signed by the business license clerk, as designated by the mayor; and L. A nonrefundable application fee and other charges as set forth in the Auburn fee schedule. 20.06.040 Scheduling public hearing; notice; criteria for approval. 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 required by ACC 20.06.030 is complete and can proceed Page 211 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 80 of 152 with processing. If during the 30-calendar-day review period, the public works director or designee determines that the application is incomplete, the city 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. Franchise Negotiations. When satisfied that the application is complete, the city will notify the applicant in writing that the application is complete. At such time cable franchise negotiations may commence. At a minimum, a cable franchise must provide that access to cable service will not be denied to any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides; that the public will be benefited by the granting of a franchise to the applicant; that the applicant has the requisite financial and technical resources and capabilities to build, operate and maintain a cable television system in the area; and that the applicant will provide adequate public, educational, and governmental access channel capacity, facilities, or financial support. C. After completion of negotiations, the city will notify the applicant in writing of the schedule for consideration by the city council in accordance with RCW 35.99.030. The city council will schedule a public hearing to consider the proposed cable franchise, and the city clerk will notify the applicant in writing of the scheduled hearing. (Ord. 6532 § 33, 2014; Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) Page 212 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 81 of 152 20.06.050 Determination by the city. Within 120 calendar days from the time of notification that the application is complete or as otherwise permitted by RCW 35.99.030, under ACC 20.06.040, the city shall issue a written determination granting or denying the application for a cable franchise 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 determination base on the criteria set forth in federal law. 20.06.060 Application instruction and requirements for competitive cable franchises. A. Non-CFAR franchise applications. Notwithstanding any other provisions, any competitive cable services franchise applicant may elect to submit a cable franchise application to the City and/or engage in cable franchise negotiations without regard to the application of the FCC’s Competitive Franchise Application Rule (CFAR) - the administrative rule that imposes procedures upon local governments for the issuance of competitive cable franchises for areas currently served by an existing cable operator. In such cases, the City will negotiate the terms of a competitive cable franchise without regard to 47 CFR §76.41 and the other provisions of this Section. Agreement by any applicant to negotiate a franchise without regard to 47 CFR §76.41 and the other provisions of this Section shall not be deemed by the City to effect a waiver of any applicant’s right under applicable law to trigger application of 47 CFR §76.41 and this Section, where applicable. B. Instructions and definitions. 1. An applicant for a competitive cable franchise (“Applicant”) shall include the requisite information set forth below, in writing, in its franchise application, in addition to any information required by 47 CFR §76.41 and applicable state and local laws and the application fee in the amount set forth in the city of Auburn fee schedule. Page 213 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 82 of 152 2. The City shall accept and review only those applications that include complete responses to every requirement of Subsections B, C, D and E of ACC 20.06.060. Submission of an application that does not include the requisite information set forth in Sections B, C, D and E, and the application fee shall not commence the time period for granting or denying the application set forth in 47 C.F.R. §76.41(d). The Applicant shall submit additional or updated information as necessary to ensure the requisite information provided is complete and accurate throughout the City’s review of the application. 3. Application shall be made to the Department of Public Works. 4. Upon request, the City will promptly provide access to documents or information in its possession or control that are necessary for the completion of this application, provided that the Applicant does not otherwise have access to such documents or information and that such documents or information are subject to disclosure under Washington public records act. 5. For the purposes of the application, the terms, phrases, and their derivations set forth below shall have the meanings given unless the context indicates otherwise. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular include the plural number. The word “shall” is always mandatory and not merely directory. a. “Affiliate(s)” when used in relation to any person, means any other person who owns or controls, is owned or controlled by, or is under common ownership or control with, such person. b. “Applicant” means an applicant for a cable franchise pursuant to the provisions of the Competitive Franchise Application Rule (“CFAR”) set forth in Part 76 of Title 47 of the Code of Federal Regulations, §76.41, and includes the Parent Corporation, its subsidiaries and Principals. Page 214 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 83 of 152 c “Control” is not limited to majority stock ownership, but includes actual working control in whatever manner exercised. d. “Interest” includes officers, directors and shareholders owning five percent (5%) or more of the Applicant’s outstanding stock or any equivalent voting interest of a partnership or joint venture. e “Parent Corporation” includes any entity with ownership or control of the Applicant. f “Principal” includes any person, firm, corporation, partnership, joint venture, affiliates, or other entity, who or which owns or controls five percent or more of the voting stock (or any equivalent voting interest of a partnership or joint venture) of the Applicant. g. “Regulatory Authority” includes any governmental or quasi-governmental organization or entity with jurisdiction over all or any portion of the Applicant or its operations. C. Requisite information: 1. Identification and Ownership Information. The application shall include the name, address, telephone number and web site (if applicable) of the Applicant and the proposed franchisee (if different from Applicant), and the name, address, primary telephone number and primary e-mail address of all individual(s) authorized to represent the Applicant before the City during its consideration of the franchise(s) requested, including the Applicant’s primary contact and any additional authorized contacts. 2. Business structure. a. If a corporation, the Applicant shall provide: 1) A list all officers and members of the Board of Directors, their principal affiliations and their addresses; 2) A certificate of good standing indicating that the Applicant is licensed to do business in the State of Washington; and 3) A statement Page 215 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 84 of 152 indicating whether the Applicant is directly or indirectly controlled by another corporation or legal entity. If so, Applicant shall attach an explanatory statement and respond to this subsection concerning the controlling corporation. b. If a partnership, the Applicant shall describe the structure of the partnership and the interests of general and limited partners; and state whether the Applicant is controlled directly or indirectly by any corporation or other legal entity. If so, Applicant shall attach an explanatory statement and respond to subsection 2.a above, as applicable, concerning the controlling entity. 3. Experience. a. Current Franchises. An Applicant shall list all cable systems in which it or any Affiliate owns more than five percent of the system; provided that if the total number of cable systems exceeds ten, the Applicant shall list the ten systems that are the subject to its most recent cable franchises. For each system Applicant shall include name of system, address, communities served, number of subscribers, number of homes passed, date of system award, duration (start and end date) of franchise, status of construction, and percent of penetration of homes passed as of the most recent available date (indicate date). b. Potential Franchises. An Applicant shall list communities where it or any Affiliate currently has in the State of Washington a formal or informal request pending for an initial franchise, the renewal of a franchise, or the approval of a transfer of ownership. The Applicant shall include the name of communities, date of application, and date of expected action. 4. Management Structure. Every application for a competitive franchise shall include a management/organizational chart, showing the management structure of the Applicant. Page 216 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 85 of 152 D. Legal qualification. 1. Franchise Violations. An Applicant shall state whether it or any Affiliate has been found in violation by a Regulatory Authority or franchising authority of any franchise ordinance or agreement, contract or regulation governing a cable system. If so, the Applicant shall identify the judicial or administrative proceeding, giving the date, name of tribunal and result or disposition of that proceeding. 2. Other Violations. An Applicant shall state whether it has been found in violation by a Regulatory Authority of any other type (e.g. utility) of franchise, ordinance, agreement, permit, contract or regulation. If so, the Applicant shall identify the judicial or administrative proceeding, giving the date, name of tribunal and result or disposition of that proceeding. E. E. Financial qualifications. Unless SEC Forms 10K and 10Q are available on the EDGAR database, Applicants with existing operations shall provide audited financial statements, including statements of income, balance sheets and cash flow statements, together with any notes necessary to the understanding of the financial statements for the last three fiscal years for the Applicant and any Parent Corporation. Applicants that are new (start-up) entities shall provide pro forma projections for the next five fiscal years, if available, but at a minimum the next three fiscal years from the date of the application. F. Technical qualifications, planned services and operations. 1. The application shall describe the Applicant’s planned initial and proposed cable services geographic area, including a map of all areas proposed to be served and proposed dates for offering service to each area. The application shall additionally state whether the Applicant proposes to provide cable services to the entire franchise area, and if so, a proposed timetable for meeting that goal; 2. If the Applicant has or asserts existing authority to access the public right of way in any of the initial or proposed service areas, the Applicant shall state the Page 217 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 86 of 152 basis for such authority or asserted authority and attach the relevant agreements or other documentation of such authority; 3. The Applicant shall describe with particularity its planned residential Cable services, including basic cable services, other cable programming service tiers, and any additional pay-per-view, on-demand or digital services; and the projected rates for each category or tier or service; 4. The Applicant shall describe with particularity its planned system technical design, upstream and downstream capacity and speed, provision for analog or digital services or packages, distribution of fiber, planned count of households per residential node, and any other information necessary to demonstrate that the Applicant’s technology will be deployed so as to be able to successfully offer cable services in the proposed locations; 5. The Applicant shall describe with particularity its planned non-residential cable services; 6. The Applicant shall describe its planned construction and extension or phase schedule, as applicable, including system extension plans or policy; and describe the current status of the Applicant’s existing or proposed arrangements with area utilities, including pole attachments, vault, or conduit sharing agreements as applicable; 7. The Applicant shall describe its plan to ensure that the safety, functioning and appearance of property and convenience and safety of other persons not be adversely affected by installation or construction of the Applicant’s facilities, and that property owners are justly compensated for any damages caused by the installation, construction, operation or removal of the facilities; 8. The Applicant shall describe its plan to comply with the subscriber privacy protections set forth in 47 U.S.C. §551, and the privacy protections of the City’s local cable customer service standards. Page 218 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 87 of 152 G. Certification of applicant. Each application shall be accompanied by a certificate in a form required by the City, and declaring that the Applicant’s representations are truthful H. Public records/confidentiality. Unless otherwise provided by applicable law, information submitted as part of an application is open to public inspection and subject to the Washington Public Records Act. I. Application fee. An application fee sufficient to cover the reasonable cost of processing applications under this ordinance will be in the amount set forth in the city of Auburn fee schedule. J Review Process 1. Acceptance of Application. The City shall review the application to ensure all requisite information is included in the application. If the application is not complete, the City will notify the Applicant in writing, listing the requisite information that is required to complete the application and notifying the Applicant that the time period for granting or denying the application set forth in 47 C.F.R. § 76.41(d) will not begin to run until such information is received. If the application is complete, the City will notify the Applicant in writing that all requisite information has been received. 2. Staff Review. The City staff shall review all completed applications based on the review criteria set forth herein. If, during the review of an application, staff reasonably requires additional information from the Applicant, staff will promptly request the information from the Applicant, in writing, along with a notification that the time period for granting or denying the application set forth in 47 C.F.R. § 76.41(d) will be tolled until such information is received by the City. After completing the review, staff shall provide an analysis of the application to the City Council. 3. Franchise Negotiations. Within the ninety (90) day time period set forth in 47 C.F.R. § 76.41(d), the City shall attempt to negotiate a cable franchise Page 219 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 88 of 152 agreement with the applicant, and within that time period, schedule the application and any proposed franchise for public hearing as set forth in Subsection K. K. Public hearing. The City shall hold a public hearing before acting on the application, affording participants a process substantially equivalent to that required by 47 U.S.C. §546(c)(2) governing renewal of cable franchises. L. Review criteria. The City may deny an application if, based on the information provided in the application, at the public hearing and/or any terms of a proposed franchise agreement: 1. The Applicant does not have the financial, technical, or legal qualifications to provide cable service; 2. The Applicant will not provide adequate public, educational, and governmental access channel capacity, facilities, or financial support; or 3. The Applicant’s proposed terms do not comply with applicable laws and regulations including, but not limited to, local customer service standards, or relevant existing contractual obligations of the City. 13.36.06020.06.070 Acceptance. A. No franchise granted pursuant to the provisions of this chapter shall become effective unless and until the resolution ordinance granting same has become effective and the granteefranchisee has accepted same as provided below. B. Within 6030 days after the effective date of the resolutionordinance awarding a franchise, or within such extended period of time as the council in its discretion may authorize, a franchisee shall file with the city clerk its written acceptance of the franchise, in a form satisfactory to the city attorney, together with the bondfinancial security, and insurance policies, and any outstanding fees required by ACC 13.36.370 and 13.36.38020.02.270 and 20.02.280. (Ord. 4625 § 2, 1993.) Page 220 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 89 of 152 13.36.08020.06.080 Rules and regulations by the city. In addition to the inherent powers of the city to regulate and control any franchise it issues, the authority granted to the city by the Actapplicable law, and those powers expressly reserved by the city or agreed to and provided for in a franchise, the city also reserves the right and power to promulgate such additional regulations as it may find necessary in the exercise of its lawful powers. (Ord. 4625 § 2, 1993.) 13.36.09020.06.090 Technical standards and maintenance. A. Subject to federal, state and localapplicable law, a franchisee shall comply with FCC Rules, Part 76, Subpart K, Section 76.601 through 76.610 and as amended hereafter, and, at the minimum, the following: 1. Applicable city, county, state and national/federal codes, laws and regulations; 2. Applicable utility joint attachment practices; 3. The National Electric Safety Code; ANSI C2; 4. Local utility code requirements; 5. Local rights-of-public way procedures, in accordance with ACC Titles 12, 13 and 20 ACC. Page 221 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 90 of 152 B. A comprehensive routine preventive maintenance program shall be developed, effected and maintained to ensure continued top quality cable communications operating standards in conformance with FCC Regulations Part 76 and amendments thereto. (Ord. 6238 § 3, 2009; Ord. 4625 § 2, 1993.) 13.36.11020.06.100 Construction standards. All facilities constructed pursuant to the provisions of this chapter shall be placed and maintained at such places and positions in or upon such streets, avenues, alleys and public places as shall not interfere with the passage of traffic and the use of adjoining property, and shall conform to the applicable sections of the National Electrical Code, codes of the state of Washington and ACC Titles 12, 13 and 20 ACC pertaining to such construction. (Ord. 6238 § 4, 2009; Ord. 4625 § 2, 1993.) 13.36.13020.06.110 Undergrounding and landscaping. Undergrounding of all utilitycable facilities will meet the requirements of Chapter 13.32A ACC. (Ord. 6238 § 5, 2009; Ord. 4625 § 2, 1993.) 13.36.14020.06.120 Construction in right-of-the public way. Whenever, in the sole opinion of the city, any of a franchisee’s facilities or equipment need to be relocated or altered due to a construction or repair project by the city in a public way, a franchisee shall move or relocate said facilities or equipment within 30 days from receiving written notice from the city. 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. Any relocation or alteration of a franchisee’s facilities or equipment required under this section shall be at the sole expense of a franchisee. Installation and/or relocation of all underground and aerial facilities within existing city right-of-way or public ways or city utility easements shall Page 222 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 91 of 152 be permitted under Chapter 12.24 ACC, Construction Permits. (Ord. 5043 § 1 (Exh. B), 1998; Ord. 4625 § 2, 1993.) 13.36.15020.06.130 Safety requirements. A franchisee, in accordance with applicable national, state, and local safety requirements shall, at all times, employ ordinary care and shall install and maintain and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injury, or nuisance to the public. All structures and all lines, equipment and connections in, over, under, and upon the streets, sidewalks, alleys, and public ways or places of a franchise 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 system of a franchisee is 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 franchisee, establish a reasonable time for a franchisee 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 the franchisee. (Ord. 4625 § 2, 1993.) 13.36.18020.06.140 Rates. Within 60 days after the grant of any franchise hereunder, a franchisee shall file with the city a complete schedule of all rates to be charged to all subscribers. Prior to implementation of any change in rates or charges for any service or equipment provided by a franchisee, the franchisee shall provide the city and all subscribers a minimum of 30 days prior written notice of such change. Page 223 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 92 of 152 Subject to federal, state and localapplicable law, the city may regulate the approval of increases of rates or charges for providing cable service and prescribe reasonable rate approval procedures. (Ord. 4625 § 2, 1993.) 13.36.20020.06.150 Customer service. A. A franchisee shall render repair service to restore the quality of the signal at approximately the same standards existing prior to the failure or damage of the component causing the failure and make repairs promptly and interrupt service only for good cause and for the shortest time possible. Such interruptions, insofar as possible, shall be preceded by notice and shall occur during a period of minimum use of the system. A log of all service interruptions shall be maintained for at least a period of one year. The city, after two working days’ notice, may inspect such logs. B. An employee of a franchisee shall answer and respond to all individual complaints received no later than 5:00 p.m. weekdays. A franchisee may use an answering service to receive complaints after 5:00 p.m. weekdays, weekends and holidays and will respond to any system outage affecting more than five subscribers. A copy of the instructions to the answering service by a franchisee shall be furnished to the city or its designee. C. A technician shall be on call seven days a week, 24 hours a day. A franchisee shall respond immediately to service complaints in an efficient manner. D. A franchisee shall maintain a sufficient repair force to respond to individual requests for repair service within two working days after receipt of the complaint or request, except Saturday, Sunday and legal holidays. All complaints shall be resolved within seven days, to the extent reasonable. If a subscriber has notified a franchisee of an outage, no charge for the period of the outage shall be made to the subscriber if the subscriber was without service for a period exceeding 24 hours, unless the outage was due to acts of God, force majeure or circumstances reasonably beyond a franchisee’s ability to control. Page 224 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 93 of 152 E. A franchisee shall supply at the time of a new connection, and periodically at least once a year, the title, address, and telephone number of the city official or designee, to whom system subscribers may direct their concerns. FE. In no case will a franchisee’s service standards fall below the standards established by the National Cable Television Association (NCTA) which are attached to the ordinance codified in this chapter as Appendix “A” and incorporated within this chapter1 or any FCC regulationRegardless of any franchise provisions, the city retains the right to adopt any customer service standards to govern the provision of cable services within the city as may be permitted by applicable law. (Ord. 4625 § 2, 1993.) 1 Code reviser’s note: Appendix “A” is on file in the office of the city clerk. 13.36.21020.06.160 Telephone response. A. A franchisee shall maintain an adequate force of customer service representatives as well as incoming trunk lines so that telephone inquiries are met promptly and responsively. A franchisee shall have in place procedures for utilization of other manpower and/or recording devices for handling the flow of telephone calls at peak periods of large outages or other major causes of subscriber concern. A copy of such procedures and/or policies shall be made available to the city. B. In order that the city may be informed of a franchisee’s success in achieving satisfactory customer relations in its telephone answering functions, a franchisee shall, upon request by the city, and routinely no less than quarterly, provide the city with a summary that will provide, at a minimum, the following: 1. Total number of calls received in reporting periods; 2. Time taken to answer; 3. Average talk time; Page 225 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 94 of 152 4. Number of calls abandoned by the caller; 5. Average hold time; 6. Percentage of time all lines busy; 7. An explanation of any abnormalities. This data will be compared to minimum standards of the NCTA incorporated in this chapter by reference or any amendment thereto which increases such NCTA standards, and shall be monitored by the city. CB. Calls for service generated during period of system outages due to emergency which affects more than 25 customers may be excluded from the service response calculations. The city shall have the sole determination as to what constitutes a system failure due to emergency and which calls shall be excluded from the service level calculations. (Ord. 4625 § 2, 1993.) 13.36.22020.06.170 Failure to improve customer service. A. The city or its designee shall review telephone response and customer service information with a franchisee. The franchisee shall make improvements in the appropriate categories which were found deficient pursuant to ACC 13.36.190 and 13.36.20020.06.150 from the last reporting period. Failure to do so may result in the calling of a public hearing by the council for the purpose of examining the reasons, if any, why such improvements were not achieved by a franchisee. B. An unsatisfactory record will result in the hearings being made part of an exhibit under Sections 626(c)(1)(A) and (B) of the Cable Act alleging that such practices have failed to conform with future refranchising requirements as stated therein. In addition, a franchisee’s corporate office shall be advised of the city’s findings. (Ord. 4625 § 2, 1993.) Page 226 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 95 of 152 13.36.23020.06.180 Franchise fee. A franchisee shall pay to the city quarterly, on or before the thirtieth day of each January, April, July and October, a sum as set forth in the Auburn fee schedule. Such remittances shall be accompanied by forms furnished by the city to report detailed information as to the sources of such income. (Ord. 6546 § 2, 2014; Ord. 4625 § 2, 1993.) 13.36.26020.06.190 Record inspection. Subject to statutory and constitutional limits and two working days’ advance notice, the city reserves the right to inspect the records of a franchisee necessary for the enforcement of a franchise and verification of the accuracy of franchise fee payments at any time during normal business hours; provided, that the city shall maintain the confidentiality of any trade secrets or other proprietary information in the possession of a franchisee. Such documents shall include such information as financial records, subscriber records within the context of Section 631 of the Communications Act, and plans pertaining to a franchisee’s operation in the city, and any information reasonably necessary for the city to evaluate compliance with franchise obligations. (Ord. 4625 § 2, 1993.) 13.36.27020.06.200 Reports. A franchisee shall furnish, upon request, a report of its activities as appropriate. Such report shall include: A. Most recent annual report; B. A copy of the 10-K Report, if required by the Securities and Exchange Commission; C. The number of homes passed; Page 227 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 96 of 152 D. The number of subscribers with basic services; E. The number of subscribers with premium services; F. The number of hook-ups in period; G. The number of disconnects in period; H. Total number of miles of cable in city; I. Summary of complaints received by category, length of time taken to resolve and action taken to provide resolution; J. A statement of its current billing practices, and a sample copy of the bill format; K. A current copy of its subscriber service contract; L. Report on operations; and M. Such other reports with respect to its local operation, affairs, transactions or property that may be appropriate. (Ord. 4625 § 2, 1993.) 13.36.28020.06.210 Programming. For informational purposes, a franchisee shall file a listing of its programing and the tiers in which they are placed. A franchisee shall consider the city’s suggestions of general program categories as determined from time to time in residential questionnaire polls. The results of initial such surveys will be appended to the respective franchise agreements. (Ord. 4625 § 2, 1993.) 13.36.29020.06.220 Nondiscrimination. A. A franchisee shall not, as to rates, charges, service facilities, rules, regulations or in any other respect, make or grant any preferences or advantage to any person nor subject any person to any prejudice or disadvantage; provided, that nothing in this Page 228 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 97 of 152 chapter shall be deemed to prohibit the establishment of a graduated scale of charges and classified rate schedules to which any customer coming within such classification would be entitled; and, provided further, that connection and/or service charges may be waived or modified during promotional campaigns of a franchisee. B. A franchisee will not deny access to cable communications service to any group of potential residential subscribers because of the income of the residents of the local area in which the group resides. (Ord. 4625 § 2, 1993.) 13.36.41020.06.230 Inconsistency. If any portion of chapter should be inconsistent or conflict with any rule or regulation now or hereafter adopted by the FCC or other federalapplicable law, then to the extent of the inconsistency or conflict, the rule or regulation of the FCC or other federalapplicable law shall control for so long, but only for so long, as such rule, regulation, or law shall remain in effect; provided the remaining provisions of this chapter shall not be affected thereby. (Ord. 4625 § 2, 1993.) 13.36.42020.06.240 Severability. Each section, subsection or other portion of chapter shall be severable and the invalidity of any section, subsection, or other portion shall not invalidate the remainder. (Ord. 4625 § 2, 1993.) Page 229 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 98 of 152 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 leaseExtent of leasehold interest granted. 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 cityCompliance with zoning standards. 20.08.130 Amendment of facilities leaseRepealed. 20.08.140 Renewal of facilities leaseRepealed. 20.08.150 Determination by the city for renewal of facility leaseRepealed. 20.08.160 Obligation to cure as a condition of renewalRepealed. 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 real 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) Page 230 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 99 of 152 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 20.06.02020.04.020 and ACC 20.06.030, shall include the following: A. A description of the facilities or other equipment proposed to be located upon city property; B. A description of the city property upon which the applicant proposes to locate facilities or other equipment; C. Preliminary plans and specifications in sufficient detail to identify: 1. The location(s) of existing utilities or 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 utilities or 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 multi-channel video programming service, and sufficient information to determine whether such service is subject to cable franchising; Page 231 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 100 of 152 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 license stamped and signed by the business license clerk, as designated by the mayor; 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. A nonrefundable application fee in the amount established in the city’s fee schedule, if applicable; and L. Such other and further information as may be requested by the city. (Ord. 6718 § 4 (Exh. D), 2019; Ord. 5897 § 24, 2005; Ord. 5271 § 1, 1999; Ord. 5034 § 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, and if the city in its sole discretion determines that it is in the city’s interests to negotiate a lease, the mayor will appoint a negotiation team to meet with the applicant and director or designee responsible for the property will 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. Page 232 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 101 of 152 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, if applicable. B. When satisfied that the application is complete, the finance director or designee responsible for the property will issue a letter of completeness and notifying the applicant of the process for consideration of the matter by the city council. Once an acceptable draft lease agreement has been prepared, the city clerk will schedule a hearing before the city council, if applicable, and the city clerk will notify the applicant in writing of the scheduled hearing. (Ord. 6532 § 34, 2014; Ord. 5271 § 1, 1999; Ord. 5034 § 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 determination of completeness, under ACC 20.08.030. When such action is taken, the city director or designee responsible for the property 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. Page 233 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 102 of 152 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. HG. 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.H The potential for radio frequency and other interference with existing public and private telecommunications or other facilities located upon the city property. JI. The potential for radio frequency and other interference or impacts upon residential, commercial, and other uses located within the vicinity of the city property. KJ. Whether the city’s property zoning supports the proposed land use. LL. Demonstrated ability and commitment to meet city bonding requirements in Chapter 12.24 ACCand security requirements established in ACC 20.10.240 through 20.10.260. M. Such other factors as may demonstrate that the lease to use the city property will does not serve the community interest. Page 234 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 103 of 152 N. Other criteria determined to be necessary or appropriate to the public health, safety, or welfare of the community. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.08.050 Notification of council action and execution of lease. Upon the city council’s decision, the finance director or designee responsible for the property 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, if applicable, 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 20.1020.02 ACC. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.08.060 Nonexclusive leaseExtent of leasehold interest granted. No facilitiesAny lease granted under this title shall be limited to the leasehold interest described in the lease document, and shall not confer any exclusive other right, privilege, license, or franchise to occupy or use city property for delivery of utility or telecommunications services or any other purposes not described therein. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.08.070 Term of facilities lease. By virtue of the uncertainties created by the Act, except as provided in any pre- existing lease agreements, tThe length of a facilities lease granted hereunder shall be set forth in the lease agreement, subject to renewal as provided in this chapter. (Ord. 6521 § 1, 2014; Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) Page 235 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 104 of 152 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 grant 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. 5271 § 1, 1999; Ord. 5034 § 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: The City has previously entered or may enter into leases with other tenants for their equipment andinstallation and operation of utility 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 exceptedaccepted. 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 Page 236 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 105 of 152 City operated telecommunications or other facilities located upon the City property subject to this Lease. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 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, inIn the event that utility, or telecommunications facilities or other equipment are left upon city property after expiration or termination of the lease, at the city’s option, the utility, telecommunications facilities or other such equipment they shall become the property of the city if not removed by the lessee after 30 days’ written notice from the city. However, the city does reserve the right to cause the removal of the facilities and equipment and restoration of the site for which lessee shall reimburse the city all costs of such removal and restoration plus ten percent of the cost to cure for administrative purposes within 30 days of written demand. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 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 Page 237 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 106 of 152 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.10.43020.08.120 Compliance with zoning standards. All uses proposed in 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 ACC. (Ord. 5271 § 1, 1999; Ord. 5034 § 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) Page 238 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 107 of 152 20.08.130 Amendment of facilities leaseRepealed. 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.08.140 Renewal of facilities leaseRepealed. 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 established in the city’s fee schedule. (Ord. 6718 § 4 (Exh. D), 2019; Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.08.150 Determination by the city for renewal of facility leaseRepealed. 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 Page 239 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 108 of 152 property, the city council shall attempt to consider and take action on applications for renewal of such leases within 90 days after receiving a complete application for such a lease renewal. When such action is taken, the city shall issue a written determination granting or denying the lease renewal, in whole or in part. If the renewal application is denied, the written determination shall include the reason(s) for denial. The decision to grant or deny an application for renewal of a facilities lease shall be based upon, but not limited to, the following: A. The continuing capacity of the city property to accommodate the applicant’s existing facilities. B. The applicant’s compliance with the requirements of this title and the lease agreement. C. Such other factors as may demonstrate that the continued approval to use the city property ways will serve the community interest. D. Any criteria contained in ACC 20.08.040. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.08.160 Obligation to cure as a condition of renewalRepealed. 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) Page 240 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 109 of 152 Chapter 20.10 CONDITIONS OF PUBLIC WAY AGREEMENTS, FRANCHISES, AND FACILITIES LEASESREPEALED 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. 20.10.230 General indemnification. 20.10.240 Performance and construction surety. 20.10.250 Security options. 20.10.260 Performance bond. Page 241 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 110 of 152 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 Page 242 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 111 of 152 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. 5271 § 1, 1999; Ord. 5034 § 1, 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 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. 5271 § 1, 1999; Ord. 5034 § 1, 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. 5271 § 1, 1999; Ord. 5034 § 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 Page 243 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 112 of 152 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. 5271 § 1, 1999; Ord. 5034 § 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 13.32A 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 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 Page 244 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 113 of 152 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. 5271 § 1, 1999; Ord. 5034 § 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. 5271 § 1, 1999; Ord. 5034 § 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. 5271 § 1, 1999; Ord. 5034 § 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 Page 245 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 114 of 152 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. 5271 § 1, 1999; Ord. 5034 § 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. 5271 § 1, 1999; Ord. 5034 § 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. 5271 § 1, 1999; Ord. 5034 § 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 Page 246 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 115 of 152 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. 5271 § 1, 1999; Ord. 5034 § 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.10.130 Abandonment, relocation or removal of facilities. Within 30 days following written notice from the city, a grantee, franchisee, or lessee shall, at its sole expense, temporarily or permanently remove, relocate, change, or alter 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) Page 247 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 116 of 152 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. 5271 § 1, 1999; Ord. 5034 § 1, 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; Page 248 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 117 of 152 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. 5271 § 1, 1999; Ord. 5034 § 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) Page 249 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 118 of 152 20.10.170 Damage to facilities. Unless directly and proximately caused by the willful, intentional, or malicious acts by the city, the city shall not be liable for any damage to or loss of any commercial utility, cable, or telecommunications facilities upon city property or within the public ways of the city as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling, or work of any kind on such city property or within the public ways by or on behalf of the city. (Ord. 5271 § 1, 1999; Ord. 5034 § 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’s, franchisee’s, 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 Page 250 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 119 of 152 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. 5271 § 1, 1999; Ord. 5034 § 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 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. Page 251 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 120 of 152 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. 5271 § 1, 1999; Ord. 5034 § 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 3.84 and 3.88 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 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 Page 252 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 121 of 152 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 Page 253 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 122 of 152 utility or telecommunications facilities pursuant to said public way agreement, franchise, or lease. Any deductibles or self-insured retentions must be declared to and approved in writing by the city prior to the franchise becoming effective. Payment of deductibles and self-insured retentions shall be the sole responsibility of the grantee, franchisee, or lessee. The insurance certificate required by this section shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability. The grantee, franchisee, or lessee’s insurance shall be primary insurance as respects the city, its officers, officials, employees, agents, consultants, and volunteers. Any insurance maintained by the city, its officers, officials, employees, consultants, agents, and volunteers shall be in excess of the grantee, franchisee, or lessee’s insurance and shall not contribute with it; F. In addition to the coverage requirements set forth in this section, each such insurance policy shall contain the following endorsement: It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew be stated until 60 days after receipt by the City, by registered mail, (return receipt requested) of a written notice addressed to the City Clerk of such intent to cancel or not to renew. G. Within 30 days after receipt by the city of said notice, and in no event later than 15 days prior to said cancellation or intent not to renew, the grantee, franchisee, or lessee shall obtain and furnish to the city replacement insurance policies meeting the requirements of this section. Any lapse in the required insurance coverage shall be cause for termination of any public way agreement, franchise, or lease. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) Page 254 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 123 of 152 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 Page 255 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 124 of 152 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 in any suit or any claim, said tender having been made pursuant to the indemnification clauses contained herein, and said refusal is subsequently determined by a court having jurisdiction (or such other tribunal that the parties shall agree to decide the matter), to have been a wrongful refusal on the part of the grantee, franchisee, or lessee, then the grantee, franchisee, or lessee shall pay all of the City’s costs for defense of the action, including all reasonable expert witness fees and reasonable attorneys’ fees and the reasonable costs of the City, including reasonable attorneys’ fees of recovering under this indemnification clause. In the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the grantee, franchisee, or lessee, and the City, its officers, employees and agents, the grantee, franchisee, or lessee’s liability hereunder shall be only to the extent of the grantee, franchisee, or lessee’s negligence. It is further specifically and expressly understood that the indemnification provided herein Page 256 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 125 of 152 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) Page 257 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 126 of 152 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. 5271 § 1, 1999; Ord. 5034 § 1, 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 a 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, Page 258 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 127 of 152 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 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) Page 259 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 128 of 152 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. 5271 § 1, 1999; Ord. 5034 § 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 Page 260 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 129 of 152 and lessee before any public way agreement, franchise, or lease is effective. (Ord. 5271 § 1, 1999; Ord. 5034 § 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 transferred 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; Page 261 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 130 of 152 3. Any other information reasonably required by the city; and 4. A nonrefundable application fee in the amount established in the city’s fee schedule. 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 a 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, or lease without prior written approval of the city under this section or pursuant to a public way agreement, franchise, or lease agreement shall be void and is cause for termination of the public way agreement, franchise, or lease. (Ord. 6718 § 5 (Exh. E), 2019; Ord. 5271 § 1, 1999; Ord. 5034 § 1, 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. Page 262 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 131 of 152 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’s, franchisee’s, or lessee’s company. Every change, transfer, or acquisition of control of a grantee’s, franchisee’s, 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 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’s, franchisee’s, or lessee’s public way agreement, franchise, lease, assets, or a substantial interest therein; Page 263 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 132 of 152 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 a public way agreement, franchise, or lease agreement. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 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 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 Page 264 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 133 of 152 C. That it would be in the public interest to impose some penalty or sanction less than revocation. (Ord. 5271 § 1, 1999; Ord. 5034 § 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. 5271 § 1, 1999; Ord. 5034 § 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 Page 265 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 134 of 152 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 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. 5271 § 1, 1999; Ord. 5034 § 1, 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: Page 266 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 135 of 152 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 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. 5271 § 1, 1999; Ord. 5034 § 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; Page 267 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 136 of 152 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 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) Page 268 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 137 of 152 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. 5271 § 1, 1999; Ord. 5034 § 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. 5271 § 1, 1999; Ord. 5034 § 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) Page 269 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 138 of 152 20.10.390 Incorporation by reference. 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. 5271 § 1, 1999; Ord. 5034 § 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. 5271 § 1, 1999; Ord. 5034 § 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 Page 270 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 139 of 152 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) Page 271 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 140 of 152 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. 5271 § 1, 1999; Ord. 5034 § 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. 5271 § 1, 1999; Ord. 5034 § 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 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. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) Page 272 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 141 of 152 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. 5271 § 1, 1999; Ord. 5034 § 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’s 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; Page 273 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 142 of 152 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 franchisee’s equipment. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) 20.10.480 Administration. The public works director or designee shall administer all public way agreements and franchises subject to this title, and the finance director or designee shall administer all leases subject to this title. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.) Page 274 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 143 of 152 Chapter 20.12 OPEN VIDEO SYSTEMS (Reserved)REPEALED Page 275 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 144 of 152 Chapter 20.14 SMALL WIRELESS FACILITIES WITHIN THE PUBLIC RIGHTS-OF-WAY Sections: 20.14.010 Overview. 20.14.020 Application for small wireless facilities permits. 20.14.030 Implementation – Small wireless facilities permits. 20.14.040 Small wireless facility permit review process. 20.14.050 Deviations. 20.14.060 Small wireless facility approvals and processes. 20.14.070 Additional review procedures. 20.14.080 Compliance with federal processing limitations. 20.14.090 Design standards. 20.14.100 Noninterference. 20.14.110 Facility removal. 20.14.010 Overview. A. Service providers or any other persons or entities who seek to use the public right-of-way for small wireless facilities deployment to provide personal wireless service, data transmission, or other related services, must have a valid franchise under Chapter 20.0620.04 ACC to use the right-of-public way and a small wireless facility permit to deploy that technology at each proposed location. Entities with franchises who wish to use a small wireless facility deployment to upgrade or expand their existing services will use the processes set forth in this chapter to obtain approval of specific installations. An entity without a franchise will apply for a franchise as well as a small wireless facility permit for its initial deployment, and the applications will be processed concurrently. B. Nothing in this chapter revises or diminishes the rights and obligations of an existing franchise. Page 276 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 145 of 152 C. Nothing herein shall exempt Ssmall wireless facilities deployment elements that requirefrom SEPA review may use these processes only in conjunction with SEPA reviewcompliance. D. For purposes of this chapter, “small wireless facilities” are defined as facilities that meet the following conditions: 1. The facilities: a. Are mounted on structures 50 feet or less in height, including their antennas as defined in 47 CFR 1.1320(d); or b. Are mounted on structures no more than 10 percent taller than other adjacent structures; or c. Do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater; and 2. Each antenna associated with the deployment, excluding associated antenna equipment (as defined in the definition of antenna in 47 CFR 1.1320(d)), is no more than three cubic feet in volume; and 3. All other wireless equipment associated with the structure (including the wireless equipment associated with the antenna and any preexisting associated equipment on the structure) is no more than 28 cubic feet in volume; and 4. The facilities do not require antenna structure registration under Code of Federal Regulations, Title 47, Part 17; and 5. The facilities are not located on Tribal lands, as defined under 36 CFR 800.16(x); and 6. The facilities do not result in human exposure to radio frequency radiation in excess of the applicable safety standards specified in 47 CFR 1.1307(b); and Page 277 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 146 of 152 7. The facilities are currently located or are proposed to be located within the public right-of-way. For facilities currently located or proposed to be located on private property, please see Chapter 18.31 ACC. For facilities currently located or proposed to be located on public property or facilities, please see Chapter 20.08 ACC. (Ord. 6707 § 1 (Exh. A), 2018.) 20.14.020 Application for small wireless facilities permits. For locations in the public right-of-way, the director of public works (“director”) is charged with administration of small wireless facilities deployments and other small wireless facilities permit review processes for use of public right-of-way established under this chapter. Unless previously provided with an application for a franchise, the following information will be provided by all applicants seeking to use small wireless facilities deployment: A. Specific locational information, including GPS coordinates of all proposed facilities; and B. Specific design information and plans, addressing poles or other support structures, attachments, conduit, and any ground-mounted equipment; and C. A narrative addressing how the proposed plans are consistent with the franchise exhibit(s), if applicable, or otherwise meet the design requirements of this chapter, and otherwise as required within the ACC; and D. A concealment plan demonstrating how the proposed small wireless facilities comply with the Ccity of Auburn engineering design and construction standards; and E. Provision of proof of Federal Communications Commission and other regulatory approvals required to provide the service(s) or use the technologies sought to be installed; and Page 278 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 147 of 152 F. Provision of proof that the proposed facilities will not interfere with the city’s automated metering infrastructure (AMI), telemetry (SCADA), automated light meter facilities, or other city communication facilities; and G. Provision of proof from pole or structure owners that the additional load of small wireless facilities can be accommodated by the poles or structures or if the city is the pole or structure owner, proof of compliance with Chapter 20.08 ACC; and H. Any other information determined by the director to be necessary for processing the application. Permits issued under this chapter will not supplant any other permits required under federal or stateapplicable law, or the Auburn City Code, including, but not limited to, Chapters 12.24 and 13.32A ACC. (Ord. 6707 § 1 (Exh. A), 2018.) 20.14.030 Implementation – Small wireless facilities permits. The rights granted under a franchise are implemented through the issuance of small wireless facilities permits. The franchise application, required under Chapter 20.04 20.06 ACC, may be accompanied by one or more applications for a small wireless facilities permit to deploy small wireless facilities. An initial franchise and any related small wireless facilities permit applications will be processed concurrently. A. Up to five sites may be specified in one small wireless facilities permit application for processing. B. Issuance of a small wireless facilities permit to install small wireless facilities will be contingent upon approval of a franchise under Chapter 20.04 20.06 ACC, or the possession of a valid franchise. C. Any element of a deployment that qualifies as an eligible facilities request under 47 CFR 1.40001 1.600 will be specifically designated by the applicant and may be addressed separately by the director in order to comply with the shot clocks established by federal applicable law. Page 279 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 148 of 152 D. The director may approve, deny, or conditionally approve all or any portion of the sites proposed in a small wireless facilities permit application. Any denial of an application under this chapter must be made in writing and be supported by substantial evidence. E. Any application for a small wireless facilities permit that contains an element that is not exempt from SEPA review will simultaneously submit a SEPA Environmental Checklist under Chapter 43.21C RCW and Chapter 16.06 ACC. F. The city recognizes that the Federal Telecommunications Act of 1996 gives the Federal Communications Commission sole jurisdiction in the field of regulation based upon the environmental effects of electromagnetic radio frequency emissions and small wireless facilities that meet Federal Communications Commission standards will not be conditioned or denied on the basis of environmental effects of radio frequency or electromagnetic frequency impacts. Applicants for small wireless facilities will be required to provide the city information on the projected power density of the facility and compliance with the Federal Communications Commission requirements. (Ord. 6707 § 1 (Exh. A), 2018.) 20.14.040 Small wireless facility permit review process. The following provisions relate to applications for a small wireless facility permit: A. Federal Law. Review of the site locations proposed by the applicant will be governed by the provisions of 47 USC 253 and 47 USC 332 and applicable regulations and case law. Applicants will be treated in a competitively neutral and nondiscriminatory manner with other service providers whose facilities are similarly situated in terms of structure, placement, or cumulative impacts. Small wireless facilities permit review under this chapter will neither prohibit nor have the effect of prohibiting the ability of an applicant to provide telecommunications services. B. Concealment. The city will permit small wireless facility deployment on existing or replacement poles or structures conforming to the city’s generally applicable pole Page 280 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 149 of 152 design standards, the city’s engineering design and construction standards, the concealment element plan approved as part of the small wireless facilities permit(s), and consistent with the relevant franchise exhibit (if applicable). Small wireless facilities may not be expanded unless the expansion does not defeat the facility’s required concealment elements. C. The director will review applications for small wireless facilities permits for consistency with relevant franchise exhibits, and design standards, and applicable law. D. Small wireless facilities permits applications to install facilities will be processed within the time frames set by applicable federal regulations. E. The decision of the director to approve a small wireless facility permit will be final and is not subject to appeal under city code or further legislative review. (Ord. 6707 § 1 (Exh. A), 2018.) 20.14.050 Deviations. Any request for deviations from the approved small cell facilities design designated in the franchise, or any previously approved small wireless facility permit, will be considered a new small wireless facilities permit request. An applicant seeking approval of a deviation from an approved small wireless facilities permit will apply for a new small wireless facilities permit. (Ord. 6707 § 1 (Exh. A), 2018.) 20.14.060 Small wireless facility approvals and processes. Approval of a small wireless facility permit and/or other approval referenced in this chapter are conditioned on the following requirements: A. Satisfy applicable bulk requirements, such as noise and light regulations. Page 281 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 150 of 152 B. Comply with adopted design and concealment standards as provided by the city’s engineering design and construction standards. C. Obtain the written approval of the owner of any pole or structure for the installation of its facilities on such pole or structure. Approval of a franchise under Chapter 20.0620.04 ACC does not authorize attachment to city-owned poles or other structures. D. Unless specifically provided for in a franchise, obtain a lease or other applicable authorization from the city to use city-owned poles, ground space or infrastructure for the installation of any small wireless facility, or to locate any new ground-based structure, base station, or other attendant equipment on city owned facilities or property right-of-way. E. Comply with all city construction standards and state and federal codes when operating in the right-of-public way and obtain a required permit to enter the right-of- public way for construction. F. If the applicant does not take action in good faith, the application will be considered abandoned after 180 days of non-action. (Ord. 6707 § 1 (Exh. A), 2018.) 20.14.070 Additional review procedures. Small wireless facilities in shorelines management zones or environmentally critical areas are subject to review as provided in Chapters 16.08 and/or 16.10 ACC. (Ord. 6707 § 1 (Exh. A), 2018.) 20.14.080 Compliance with federal processing limitations. Review of small wireless facilities permits will comply with the provisions of 47 CFR Part 1, subpart U, if applicable. Applications will be reviewed, completeness Page 282 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 151 of 152 determined, and the time frame tolled as provided in this chapter and Chapter 20.0620.04 ACC. (Ord. 6707 § 1 (Exh. A), 2018.) 20.14.090 Design standards. All small wireless facilities will be constructed or installed according to applicable Federal Communications Commission (FCC), Federal Aviation Administration (FAA), state and city regulations and standards, including the city of Auburn engineering design and construction standards. (Ord. 6707 § 1 (Exh. A), 2018.) 20.14.100 Noninterference. Wireless facilities of any kind will not interfere with any emergency, communication, or utility infrastructure systems of the city. A. If the city notifies service providers that their equipment is potentially interfering with public safety communications equipment, the providers will cooperate and coordinate with the city and among themselves to investigate and mitigate the interference, if any, utilizing the procedures set forth in the joint wireless industry – public safety “Best Practices Guide,” released by the FCC in February 2001, including the “Good Engineering Practices,” as may be amended or revised by the FCC from time to time. B. If any service provider or facility owner fails to cooperate with the city in complying with the owner’s obligations under this section or if the FCC makes a determination of radio frequency interference with the city communications equipment, the owner who fails to cooperate and/or the owner of the facility or facilities which caused the interference will be responsible, upon FCC determination of radio frequency interference, for reimbursing the city for all costs associated with ascertaining and resolving the interference, including but not limited to any engineering studies obtained by the city to determine the source of the interference. For the purposes of this subsection, failure to cooperate will include failure to initiate Page 283 of 378 ------------------------- ORD 6798 EXHIBIT C PAGE 152 of 152 any response or action as described in the “Best Practices Guide” within 24 hours of the city’s notification. (Ord. 6707 § 1 (Exh. A), 2018.) 20.14.110 Facility removal. A small wireless facility will be removed: A. Within 180 days of the date the facility’s use is discontinued, it ceases to be operational, the permit is revoked, or, if the facility falls into disrepair and is not maintained, within 90 days of a notice from the city to effect repairs and maintenance to the satisfaction of the city. The owner and/or operator of a facility will notify the city upon the discontinued use of a particular facility.; however, B. If the owner and/or operator fails to remove the facility as required, then the facility is a nuisance and subject to appropriate legal proceeding in accordance with Chapter 1.25 ACC. (Ord. 6707 § 1 (Exh. A), 2018.) Page 284 of 378 AGENDA BILL APPROVAL FORM Agenda Subject: Ordinance No. 6804 (Tate)(10 Minutes) Date: November 18, 2020 Department: Community Development Attachments: Ordinance 6804 Exhibit A Pierce County Draft Ordinance No 20- 124 - Exhibit A Exhibit B ASD Impact Fee Letter Exhibit C - DSD Impact Fee Letter Exhibit D FWPS Impact Fee Letter Exhibit E KSD Impact Fee Letter Exhibit F School Dis trict Impact Fee Table Budget Impact: Current Budget: $0 Proposed Revision: $0 Revised Budget: $0 Administrativ e Recommendation: City Council to review and discuss school impact fee ordinance revisions and schedule action on the ordinance at the next regular City Council meeting on December 7, 2020. Background Summary: Title 19 (Impact Fees) of the Auburn City Code contains standards and regulations pertaining to the collection of impact fees in the City of Auburn. Impact fees are authorized by state law. Specifically, Chapter 19.02 (School Impact Fees) addresses the establishment, calculation, collection and amendment of school impact fees within the municipal boundaries of the City of Auburn. The city originally established school impact fees in 1998 by Ordinance No. 5078. Portions of four school districts occur within the City limits. Pursuant to Code Section 19.02.060 (Annual Council Review) of the Auburn City Code, on at least an annual basis, the Auburn City Council shall review the information submitted by the Districts pursuant to ACC 19.02.050. The review shall be in conjunction with any update of the capital facilities plan element of the city's comprehensive plan. The City Council may also at this time determine if an adjustment to the amount of the impact fees is necessary. The City of Auburn Annual Comprehensive Plan Amendment process for 2020 included requests for City approval of the Capital Facilities Plans of the four districts as follows: 2020-2026 Auburn School District Capital Facilities Plan 2021-2026 Dieringer School District Capital Facilities Plan 2021 Federal Way School District Capital Facilities Plan 2020-2021 through 2025-2026 Kent School District Capital Facilities Plan Page 285 of 378 These requests were submitted in accordance with the provisions of Section 19.02.050 (Submission of District Capital Facilities Plan and Data) of the Auburn City Code. The School Districts’ Capital Facilities Plans are contained in the ‘working binders’ for the 2020 Annual Comprehensive Plan Amendments, which is the electronic binder presented as Exhibit F, distributed to the City Council prior to the November 23, 2020 study session. Definition The city’s code section A C C 19.02 contains the city’s regulations governing school impact fees. It provides the following definition: "Impact fee" means a payment of money i mposed upon devel opment as a condition of development approval to pay for school facilities needed to serve new growth and development that i s reasonably related to the new development that creates additional demand and need for public facil ities, that is a proportionate share of the cost of the school faci li ti es, and that is used for such faci li ti es that reasonably benefit the new development. Scheduling of Actions A discussion of the School D istrict Capital F acilities Plans school impact f ee changes and Ordinance No. 6804 is scheduled for the Study Session on November 23, 2020. City Council action on Ordinance No. 6804 is requested for December 7, 2020. Rev iewed by Council Committees: Councilmember:DaCorsi Staff:Tate Meeting Date:November 23, 2020 Item Number: Page 286 of 378 - - - - - - - - - - - - - - - - - - Ordinance No. 6804 November 16, 2020 Page 1 of 7 ORDINANCE NO. 6804 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON AMENDING SECTIONS 19.02.115, 19.02.120, 19.02.130 AND 19.02.140 OF THE AUBURN CITY CODE RELATING TO SCHOOL IMPACT FEES WHEREAS, the City of Auburn has adopted a school impact fee ordinance and collects school impact fees on behalf of certain school districts located in part within the City of Auburn; and WHEREAS, the Auburn School District, Dieringer School District, Federal Way School District, and the Kent School District, each being located in part within the City of Auburn, have provided the City of Auburn with updated capital facilities plans to be considered during the City’s 2020 annual comprehensive plan amendment process that addresses among other things, the appropriate school impact fee for single family residential dwellings and multi-family residential dwellings for each district; and WHEREAS, on June 5, 2020, the Auburn School District issued a Determination of Non-Significance for the 2020 - 2026 Auburn School District Capital Facilities Plan; on August 3, 2020 the Dieringer School District issued a Determination of Non-Significance for the 2021-2026 Dieringer School District Capital Facilities Plan; on June 12, 2020, the Federal Way School District issued a Determination of Non-Significance for the 2021 Federal Way School District Capital Facilities Plan; and on June 5, 2020, the Kent School District issued a Determination of Non-Significance for the 2020-2021 through 2025-2026 Kent School District Capital Facilities Plan; and WHEREAS the City of Auburn issued a Determination of Non-Significance (DNS) Page 287 of 378 - - - - - - - - - - - - - - - - - - Ordinance No. 6804 November 16, 2020 Page 2 of 7 on September 23, 2020 for the City of Auburn Year 2020 city-initiated comprehensive plan map and text amendments (File No. SEP20-0018), and WHEREAS, after proper notice published in the City’s official newspaper at least ten (10) days prior to the date of hearing, the Auburn Planning Commission on November 17, 2020 conducted public hearings on the proposed Auburn School District 2020-2026 Capital Facilities Plan, the proposed Dieringer School District 2021-2026 Capital Facilities Plan; the proposed Federal Way School District 2021 Capital Facilities Plan; and the proposed Kent School District 2020-2021 through 2025-2026 Capital Facilities Plan; and WHEREAS, following the conclusion of the public hearing on November 17, 2020, and subsequent deliberations, the Auburn Planning Commission, following individual positive motions, made separate recommendations to the Auburn City Council on the approval of the Auburn School District 2020-2026 Capital Facilities Plan, the Dieringer School District 2021-2026 Capital Facilities Plan; the Federal Way School District 2021 Capital Facilities Plan; and the Kent School District 2020-2021 through 2025-2026 Capital Facilities Plan; and WHEREAS, the Auburn City Council reviewed the recommendations of the Auburn Planning Commission for the school districts’ capital facilities plans at both a regularly scheduled study session, on November 23, 2020, and a regularly scheduled meeting, on December 7, 2020; and WHEREAS, on December 7, 2020, the Auburn City Council approved the Auburn School District 2020-2026 Capital Facilities Plan, the Dieringer School District 2021-2026 Capital Facilities Plan; the Federal Way School District 2021 Capital Facilities Plan; and Page 288 of 378 - - - - - - - - - - - - - - - - - - Ordinance No. 6804 November 16, 2020 Page 3 of 7 the Kent School District 2020-2021 through 2025-2026 Capital Facilities Plan; and WHEREAS, the Auburn City Code Chapter 19.02 provides for adjustments to school impact fees based on a review of the capital facilities plans for each of the districts; and WHEREAS, on November 23, 2020 the Auburn City Council at a regularly scheduled study session reviewed amendments to Auburn City Code Chapter 19.02 (School Impact Fees) pertaining to school impact fees for single family residential dwelling units and multi-family dwelling units to be applied in the City of Auburn for the Auburn School District; Dieringer School District, Federal Way School District, and the Kent School District; respectively, based on the aforementioned capital facilities plans for each of these districts; and WHEREAS, Section 19.02.060 (Annual Council Review) of the Auburn City Code specifies that in making its decision to adjust impact fees the Auburn City Council will take into consideration the quality and completeness of the information provided in the applicable school district capital facilities plan and may decide to enact a fee less than the amount supported by the capital facilities plan. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. Amendment to the City Code. Section 19.02.115 of the Auburn City Code is amended to read as follows. 19.02.115 Impact fee calculation and schedule for the Dieringer School District. Page 289 of 378 - - - - - - - - - - - - - - - - - - Ordinance No. 6804 November 16, 2020 Page 4 of 7 The impact fee calculation and schedule below is based upon a review of the impact fee calculation for single-family residences and for multifamily residences set forth in the most recent version of the Dieringer School District Capital Facilities Plan adopted by the Auburn city council as an element of the Auburn comprehensive plan. The calculation is the determination of the appropriate proportionate share of the costs of public school capital facilities needed to serve new growth and development to be funded by school impact fees based on the factors defined in ACC 19.02.020. Effective January 1, 20202021, or the effective date of this ordinance whichever is later, the school impact fee shall be as follows: Per Single-Family Dwelling Unit $3,815.00$3,890.00 Per Multifamily Dwelling Unit $2,025.00$789.00 (Ord. 6627 § 1, 2016; Ord. 6581 § 1, 2016; Ord. 6542 § 1, 2014; Ord. 6488 § 1, 2013; Ord. 6445 § 1, 2012; Ord. 6393 § 1, 2011; Ord. 6341 § 2, 2011; Ord. 6340 § 1, 2010; Ord. 6279 § 1, 2009; Ord. 6214 § 1, 2008; Ord. 6134 § 1, 2007; Ord. 6060 § 1, 2006; Ord. 5950 § 2, 2005.) Section 2. Amendment to the City Code. Section 19.02.120 of the Auburn City Code is amended to read as follows. 19.02.120 Impact fee calculation and schedule for the Auburn School District. The impact fee calculation and schedule is based upon a review of the impact fee calculation for single-family residences and for multifamily residences set forth in the most recent version of the Auburn School District’s Capital Facilities Plan adopted by the Auburn city council as an element of the Auburn comprehensive plan. The calculation is the determination of the appropriate proportionate share of the costs of public school capital facilities needed to serve new growth and development to be funded by school impact fees based on the factors defined in ACC 19.02.020. Effective January 1, 20202021, or the effective date of this ordinance whichever is later, the school impact fee shall be as follows: Page 290 of 378 - - - - - - - - - - - - - - - - - - Ordinance No. 6804 November 16, 2020 Page 5 of 7 Per Single-Family Dwelling Unit $6,905.31$6,456.31 Per Multifamily Dwelling Unit – Studio $4,667.45$6,325.80 Per Multifamily Dwelling Unit – 1 Bedrooms $6,667.45$8,325.80 Per Multifamily Dwelling Unit – 2 Bedrooms $9,667.45$11,325.80 Per Multifamily Dwelling Unit – 3 Bedrooms $12,667.45$14,325.80 Per Multifamily Dwelling Unit – 4 or more Bedrooms $14,667.45$16,325.80 (Ord. 6627 § 1, 2016; Ord. 6581 § 2, 2016; Ord. 6542 § 2, 2014; Ord. 6488 § 2, 2013; Ord. 6445 § 2, 2012; Ord. 6393 § 2, 2011; Ord. 6341 § 2, 2011; Ord. 6340 § 2, 2010; Ord. 6279 § 2, 2009; Ord. 6214 § 2, 2008; Ord. 6134 § 2, 2007; Ord. 6060 § 2, 2006; Ord. 5950 § 1, 2005; Ord. 5793 § 1, 2003; Ord. 5232 § 1, 1999.) Section 3. Amendment to the City Code. Section 19.02.130 of the Auburn City Code is amended as follows. 19.02.130 Impact fee calculation and schedule for the Kent School District. The impact fee calculation and schedule is based upon a review of the impact fee and calculation for single-family residences and for multifamily residences set forth in the most recent version of the Kent School District’s Capital Facilities Plan adopted by the Auburn city council as an element of the Auburn comprehensive plan. The calculation is the determination of the appropriate proportionate share of the costs of public school capital facilities needed to serve new growth and development to be funded by school impact fees based on the factors defined in ACC 19.02.020. Effective January 1, 20202021, or the effective date of this ordinance whichever is later, the school impact fee shall be as follows: Per Single-Family Dwelling Unit $5,554.00$5,692.85 Per Multifamily Dwelling Unit $2,345.00$2,403.63 (Ord. 6627 § 1, 2016; Ord. 6581 § 3, 2016; Ord. 6542 § 3, 2014; Ord. 6488 § 3, 2013; Ord. 6445 § 3, 2012; Ord. 6393 § 3, 2011; Ord. 6341 § 2, 2011; Ord. 6340 § 3, 2010; Ord. 6279 § 3, 2009; Ord. 6214 § 3, 2008; Ord. 6134 § 3, 2007; Ord. 6060 § 3, 2006; Ord. 5950 § 1, 2005; Ord. 5233 § 1, 1999.) Page 291 of 378 - - - - - - - - - - - - - - - - - - Ordinance No. 6804 November 16, 2020 Page 6 of 7 Section 4. Amendment to the City Code. Section 19.02.140 of the Auburn City Code is amended to read as follows. 19.02.140 Impact fee calculation and schedule for the Federal Way School District. The impact fee calculation and schedule is based upon a review of the impact fee and calculation for single-family residences and for multifamily residences set forth in the most recent version of the Federal Way School District’s Capital Facilities Plan adopted by the Auburn city council as an element of the Auburn comprehensive plan. The calculation is the determination of the appropriate proportionate share of the costs of public school capital facilities needed to serve new growth and development to be funded by school impact fees based on the factors defined in ACC 19.02.020. Effective January 1, 20202021, or the effective date of this ordinance whichever is later, the school impact fee shall be as follows: Per Single-Family Dwelling Unit $5,035.00$3,243.00 Per Multifamily Dwelling Unit $20,768.00$16,003.00 (Ord. 6627 § 1, 2016; Ord. 6581 § 4, 2016; Ord. 6542 § 4, 2014; Ord. 6488 § 4, 2013; Ord. 6445 § 4, 2012; Ord. 6393 § 4, 2011; Ord. 6341 § 2, 2011; Ord. 6340 § 4, 2010; Ord. 6279 § 4, 2009; Ord. 6214 § 4, 2008; Ord. 6134 § 4, 2007; Ord. 6060 § 4, 2006; Ord. 6042 § 1, 2006.) Section 5. Constitutionality and Invalidity. If any section, subsection sentence, clause, phrase or portion of this Ordinance, is for any reason held invalid or unconstitutional by any Court of competent jurisdiction such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions thereof. Section 6. Implementation. The Mayor is authorized to implement such Page 292 of 378 - - - - - - - - - - - - - - - - - - Ordinance No. 6804 November 16, 2020 Page 7 of 7 administrative procedures as may be necessary to carry out the directions of this legislation. Section 7. 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: _________________________ PASSED: _____________________________ APPROVED: ___________________________ CITY OF AUBURN ATTEST: _____ NANCY BACKUS, Mayor _________________________ Shawn Campbell, MMC, City Clerk APPROVED AS TO FORM: _________________________ Kendra Comeau, City Attorney Published: ______________________ Page 293 of 378 Exhibit A to Ordinance No. 2020-XX Page 1 of 1 Pierce County Council 930 Tacoma Ave S, Rm 1046 Tacoma, WA 98402 Exhibit A to Ordinance No. 2020-XX 1 2 Only those portions of Section 4A.30.030 that are proposed to be amended are shown. 3 Remainder of text, tables, maps and/or figures is unchanged. 4 5 4A.30.030 School Impact Fee Schedule. 6 7 8 PER SINGLE-FAMILY DWELLING UNIT PER MULTI-FAMILY DWELLING UNIT SCHOOL DISTRICT School District Fee Calculation Impact Fee (Maximum Fee Obligation is $3,890$3,815) School District Fee Calculation Impact Fee (Maximum Fee Obligation is $2,065$2,025) Bethel $19,495 $17,082 $3,815 $3,890 $1,724 0 $1,724 0 Carbonado $3,594 $4,446 $3,594 $3,890 $866 $1,138 $866 $1,138 Dieringer $7,729 $4,176 $3,815 $3,890 $450 $789 $2,025 $789 Eatonville $13,407 $13,185 $3,815 $3,890 $3,497 $3,414 $2,025 $2,065 Fife $4,531 $4,715 $3,815 $3,890 $319 $1,426 $2,025 $1,426 Franklin Pierce $13,595 $16,212 $3,815 $3,890 $7,003 $4,893 $2,025 $2,065 Orting $16,477 $16,552 $3,815 $3,890 $6,587 $6,982 $2,025 $2,065 Peninsula $18,213 $4,529 $3,815 $3,890 $10,797 $2,351 $2,025 $2,065 Puyallup $17,356 $12,978 $3,815 $3,890 $6,136 $5,651 $2,025 $2,065 Steilacoom $3,951 $8,104 $3,815 $3,890 0 0 Sumner-Bonney Lake $19,654 $22,612 $3,815 $3,890 $1,872 $2,535 $1,872 $2,065 White River $11,391 $3,815 $3,890 $4,001 $2,025 $2,065 Yelm $6,417 $3,815 $3,890 $8,387 $14,490 $2,025 $2,065 Page 294 of 378 Page 295 of 378 Page 296 of 378 IERINGER SCHOOL DISTRICT No. 343 Ed u c at in g e v e ry c hi l d f o r C on f id e n c e t od a y a nd C o nt ri bu t io n t om orro w July 30, 2020 Jeff Tate Director of Planning City of Auburn 25 West Main Street Auburn, WA 98001-4998 Subject: Dieringer School District – Mitigation Impact Fees Dear Mr. Tate: The Dieringer School District has completed the Dieringer School District Capital Facilities Plan for 2021-2026. In preparing the updated Capital Facilities Plan the District once more reviewed the question of the School Impact Fee Calculation. Based on the analysis of the District’s site acquisition and permanent facility costs, the Dieringer School District Board of Directors has determined that the appropriate mitigation impact fee for the permitting of a single family residence is $4,176 and $789 per unit for a multiple family residence. A review of the fees collected by the City of Auburn, on behalf of other school districts within the city, serves to support the validity of the Dieringer requested fee of $4,176 and $789 per unit for a multiple family residence. The property values within the boundaries of the Dieringer School District are the highest in Pierce County; this causes site acquisition to be expensive and contributes to overall higher construction costs than other school districts experience. Therefore, it is most appropriate for the mitigation impact fees collected on behalf of the Dieringer School District to be adjusted to more closely approximate the fees collected for other local school districts. The Dieringer School District requests that the City of Auburn adjust the mitigation impact fees collected on behalf of the District to the $4,176 and $789 per unit for a multiple family residence established in the Capital Facilities Plan for 2021-2026. Please let me know if you need further information by contacting me at (253) 862-2537. Sincerely, Michael Farmer Superintendent 1320 – 178th Avenue East * Lake Tapps, Washington 98391 * (253 )862-2537 * FAX (253) 862-8472 Page 297 of 378 33330 8th Avenue South, Federal Way, WA 98003 | p.253.945.2043 | f.253.941.0442| www.fwps.org Business Services Each Scholar: A Voice. A Dream. A BRIGHT Future. September 23, 2020 Jeff Dixon Principal Planner City Of Auburn 25 West Main Street Auburn WA 98001-4998 Dear Mr. Dixon, On behalf of Dr. Campbell, Superintendent of Federal Way Public Schools, attached is a copy of the Federal Way Public Schools’ 2021 Capital Facilities Plan. The Federal Way Public Schools’ Board of Education adopted this plan on July 28, 2020. The Federal Way Public Schools’ Board of Education Resolution No. 2020-21 directs the Superintendent to submit the adopted Federal Way Public Schools’ 2021 Capital Facilities Plan to the City of Auburn. A copy of the resolution is attached for your files. The Federal Way Public Schools’ Board of Education requests the City of Auburn to decrease the 2020 impact fee to $3,243 for each single-family development and decrease the impact fee to $16,003 for each multi-family development unit. The expenditure report for the 2019 calendar year is also attached. Please let me know if you have any questions about the changes in the CFP for Federal Way Public Schools. You may contact Jen Thomas at (253)945-2071 or by email at jthomas@fwps.org. Sincerely, Sally McLean Chief Financial and Operations Officer CC: Dr. Tammy Campbell Mike Benzien Jennifer Wojciechowski Attachments: 3 Page 298 of 378 BOARD OF DIRECTORS Leslie Hamada President Denise Daniels Vice President Maya Vengadasalam Legislative Representative Michele Bettinger Director Leah Bowen Director Dr. Calvin J. Watts Superintendent MISSION Successfully Preparing All Students For Their Futures Finance Organizational Effectiveness 12033 SE 256th Street • A600 Kent, WA 98030 Phone: (253) 373-7295 Fax: (253) 373-7018 www.kent.k12.wa.us Page 299 of 378 School District Multiple Family Single Family 2020 fee, per ACC 19.02 CFP says:Requested Amount Change? 2020 fee, per ACC 19.02 CFP says: Requested Amount Change? Auburn Studio - $4,667.45 1 BD - $6,667.45 2 BD - $9,667.45 3 BD - $12,667.45 4+ BD - $14,667.45 Pg. 33 Details tiered structure Studio - $6,325.80 1 BD - $8,325.80 2 BD - $11,325.80 3 BD - $14,325.80 4+ BD - $16,325.80 Increase of $1,658.35 6,905.31$ Pg. 33 6,456.31$ Decrease of $449.00 Dieringer 2,025.00$ Pg. 16 789.00$ Decrease of $1,236.00 3,815.00$ Pg. 16 3,890.00$ Increase of $75.00 Federal Way 20,768.00$ Pg. 28 $16,003 Decrease of $4,765.00 5,035.00$ Pg. 28 3,243.00$ Decrease of $1,792.00 Kent 2,345.00$ Pg. 31 2,404.63$ Increase of $59.63 5,554.00$ Pg. 31 5,692.85$ Increase of $138.85 Proposed 2021 School Impact Fees Exhibit F Page 300 of 378 AGENDA BILL APPROVAL FORM Agenda Subject: Ordinance No. 6803 and 6807 (Tate) (35 Minutes) Date: November 18, 2020 Department: Community Development Attachments: Ordinance No. 6803 Ordinance NO. 6807 Budget Impact: Current Budget: $0 Proposed Revision: $0 Revised Budget: $0 Administrativ e Recommendation: Planning Commission recommends to City Council approval of the 2020 Annual Comprehensive Plan Amendments (Policy/Text & Map Amendments) and recommends approval of the related rezone application by Westport Capital LLC with conditions. Background Summary: On November 4, 2020 the Planning Commission, at a regular meeting, held a public hearing on and recommended approval of the following policy/text and map amendments; and recommended approval of the separate Westport Capital LLC rezone, with conditions to the City Council. Private Comprehensive Plan Amendments PT #10 - CPA20-0003, Comprehensive Plan policy/Text Amendment – Academy Special Planning Area Policies Application to change Land Use Policy LU-135 and to the Academy Special Planning Area policies A.1.2 and A.1.8. to clarify that multifamily uses providing long-term revenue supporting its educational mission are allowed. The site abuts Auburn Way South, between 32nd Street SE & Academy Drive SE. Primarily affects King County Parcel Numbers 2721059117, 2721059090, 2721059055, 2721059086, and 2721059079. CM P #3 - CPA20-0002 & REZ20-0002, Comprehensive Plan Map Amendment & Rezone – Westport Capital LLC. Application to change the Comprehensive Plan Land Use Map designation of approximately 31.8 acres from “Single-Family Residential” to “Moderate-Family Residential,” and approx. 5.3 acres from “Multiple- Family Residential” to “Moderate-Family Residential”; and, rezone approx. 30.7 acres from “R-7, Single-Family Residential, 5-7 Units per Acre”, to “R-16, Multi- Family Residential 12-16 Units per Acre”, and approx. 6.4 acres from “R-20, Multi- Family Residential, 15-20 Units per Acre”, to “R-16. Multi-Family Residential 12-16 Units per Acre”. A contract or conditional rezone , is proposed to limit the density to 12 units per acre (plus or minus 10%), cap the number of apartment units at 128 (based off of the existing 6.4 acres of R-20 zoning), and require at least three types of ownership housing for the remainder of the property (approximately 317 dwelling Page 301 of 378 units, plus or minus 10%) where each type of ownership housing must represent a minimum of 15% of the future units (e.g. 15% triplex, 15% townhomes, and 70% single-family). There is no development proposal. The site is generally located east of ‘I’ St. NE at 40th St. NE. King Co. Parcel Nos. 000420-0003, 000420-0013, 000420-0019, 000420-0022, 000420-0024, and 000420-0025. On November 17, 2020 the Planning Commission, at a special meeting, held a public hearing and recommended approval for all policy/text and map amendments to the City Council. City Comprehensive Plan Amendments CPA20-0005 P/T #1 – Incorporate Auburn School District Capital Facilities Plan P/T #2 – Incorporate Dieringer School District Capital Facilities Plan P/T #3 – Incorporate Federal Way School District Capital Facilities Plan P/T #4 – Incorporate Kent School District Capital Facilities Plan P/T #5 – Incorporate City of Auburn Capital Facilities Plan P/T #6 –Changes to Transportation Element (Plan) Volume 5, updates (incorporated by reference) P/T #8 - Volume 1, Land Use Element and Volume 5, Transportation Element (Plan) policy changes related to Auburn Municipal Airport. CPM #1 Volume 5: Transportation Plan Element: Several maps found throughout Volume 5 are proposed for update to reflect changed conditions. Private Comprehensive Plan Amendments CPM #2 – CPA20-0001 & REZ20-0001 - Request by Auburn School District to change the designation of King Co. Parcel No. 2121059042 totaling approximately 2.19 acres and located on the north side of Auburn Way South approximately 400 feet west of Noble Court SE from "Multiple-Family Residential" to "Institutional" and an associated rezone from “R-20, Residential 20 dwelling units per acre” to “P-1, Public Use”. The existing Chinook Elementary School, located on an adjacent parcel, is zoned P-1. The school district purchased the site to incorporate into a redevelopment of the adjacent school. The attached staff report (Exhibit A) comprehensively addresses the full set of 2020 Annual Comprehensive Plan Amendments, including private and city initiated changes, and all related rezones. The attached EXHIBITS B, and C, are copies of the staff reports for two private amendment applications as provided to the Planning Commission for the public hearings. EXHIBIT D is the ‘working binder’ that contains the staff report for the remaining private amendment and the staff report for City initiated amendments as provided to the Planning Commission. These are under the ‘Staff Reports’ tab. Page 302 of 378 Rev iewed by Council Committees: Councilmember:DaCorsi Staff:Tate Meeting Date:November 23, 2020 Item Number: Page 303 of 378 -------------------------- Ordinance No. 6803 November 15, 2020 Page 1 ORDINANCE NO. 6 803 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, RELATING TO PLANNING; ADOPTING 2020 ANNUAL COMPREHENSIVE PLAN MAP AND TEXT AMENDMENTS PURSUANT TO THE PROVISIONS OF RCW CHAPTER 36.70A AND ADOPTING CORRESPONDING REZONES RELATED TO CERTAIN MAP AMENDMENTS WHEREAS, since 1986 the City of Auburn has maintained a Comprehensive Plan, periodically updated and reaffirmed by the City Council, that includes a Map establishing the location of the Comprehensive Plan Land Use Designations throughout the City; and WHEREAS, on December 14, 2015, the Auburn City Council adopted an updated Comprehensive Plan by Ordinance No. 6584; and WHEREAS, in May 2020 the City of Auburn published in the Seattle Times Newspaper an advertisement that the City was accepting comprehensive plan amendment applications and established a deadline for submittal of June 5, 2020; and WHEREAS, the City of Auburn received and processed two private-initiated map amendments for the year 2020 annual amendments; (Auburn School District as CPA20- 0001 and REZ20-0001, Westport Capital as CPA20-0002); and WHEREAS, the City of Auburn received and processed one private-initiated text amendment for the year 2020 annual amendments; (Auburn Adventist Academy as CPA20-0003); and WHEREAS, the City of Auburn initiated one map amendment (File No. CPA20- 0005) and seven policy/text amendments (File No. CPA20-0005); and WHEREAS, to maintain consistency between the city’s zoning map and its Comprehensive Plan, both the private initiated map amendments have an associated Page 304 of 378 -------------------------- Ordinance No. 6803 November 15, 2020 Page 2 rezone (zoning map amendment) to maintain consistency with the Comprehensive Plan; and WHEREAS, the Comprehensive Plan text/policy amendments and map amendments were processed by the Community Development Department as proposed Year 2020 annual amendments to the City of Auburn Comprehensive Plan; and WHEREAS, the Growth Management Act, RCW 36.70A, requires the City to maintain a current Capital Facilities Plan; and WHEREAS, the environmental impacts of the proposed Year 2020 Comprehensive Plan amendments and rezones were considered in accordance with procedures of the State Environmental Policy Act File No. SEP20-0018 (city-initiated amendments), SEP20-0006 (Westport Capital private-initiated amendment, SEP20-0012 (Auburn Adventist Academy private-initiated amendment), and SEP20-0013 (Auburn School District Chinook Elementary private-initiated amendment) were determined to have no environmental significance; and WHEREAS, the proposed amendments were transmitted to the Washington State Department of Commerce, Growth Management Services Division, and other State agencies for the 60-day review period in accordance with RCW 36.70A.106; and WHEREAS, after proper notice published in the City’s official newspaper at least ten (10) days prior to the date of the hearings, the Auburn Planning Commission on November 4, 2020 and November 17, 2020, conducted public hearings on the proposed amendments, heard and considered public testimony, viewed the evidence and exhibits presented to it, and made recommendations to the City Council on the proposed Year Page 305 of 378 -------------------------- Ordinance No. 6803 November 15, 2020 Page 3 2020 annual Comprehensive Plan map and text amendments and for certain amendments, on the associated rezones; and WHEREAS, on November 23, 2020, the Auburn City Council reviewed the Planning Commission’s recommendations. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. Application CPA20-0001 & REZ20-0001, Auburn School District, Chinook Elementary School Comprehensive Plan Map Amendment, requesting a land use designation change from “Multiple-Family” to “Institutional” and a rezone (zoning map amendment) from “R-20 Residential – Twenty Dwelling Units per Acre” to “P-1 – Public Use District” for one parcel totaling approximately 2.19 acres, identified by King County parcel number: 2121059042 is approved, and the findings and conclusions outlined in the November 15, 2020 staff report to the Council, as set forth in Exhibit “A,” are adopted. Section 2. Application CPA20-0002, Westport Capital Comprehensive Plan Map Amendment, requesting a land use designation change from “Multiple-Family Residential” to “Moderate Density Residential” for three parcels totaling approximately 5.3 acres, identified by King County parcel numbers: 0004200025, 0004200019, and 0004200013, and a land use designation change from “Single-Family” to “Moderate Density Residential” for three parcels totaling approximately 31.8 acres, identified by King County parcel numbers: 0004200022, 0004200024, and 0004200003 is approved, and the findings and conclusions outlined in the November 15, 2020 staff report to the Council as set forth in Exhibit “A”, are adopted. Page 306 of 378 -------------------------- Ordinance No. 6803 November 15, 2020 Page 4 Section 3. Application CPA20-0003, Auburn Adventist Academy Comprehensive Plan Policy/Text Amendment, requesting a text amendment to amend Land Use Policy LU-135 and Academy Special Planning Area Plan Policies A.1.2 and A.1.8., and the findings and conclusions outlined in the November 15, 2020 staff report to the Council, as set forth in Exhibit “A,” are adopted. Section 4. The 2020 Comprehensive Plan city-initiated Map Amendments (CPA20-0005) are approved, as set forth in Exhibit “E,” and the findings and conclusions contained in the November 15, 2020 staff report to City Council, as set forth in Exhibit “A”, are adopted. Section 5. The 2020 annual Comprehensive Plan city-initiated Text Amendments (CPA20-0005), as set forth in Exhibit "D," are approved. The full text of the Capital Facilities Plan of the City and the four school district’s Capital Facilities Plans are adopted, copies of which shall be on file with the Office of the City Clerk, and the Findings and Conclusions outlined in the November 15, 2020 staff report to City Council, as set forth in Exhibit A, are adopted. Section 6. The adopted Comprehensive Plan as amended is designated as a basis for the exercise of substantive authority under the Washington State Environmental Policy Act by the City's responsible environmental official in accordance with RCW. 43.21C.060. Section 7. The Mayor is hereby authorized to implement such administrative procedures as may be necessary to carry out the directions of this legislation to include incorporating into one document the adopted Comprehensive Plan map and text Page 307 of 378 -------------------------- Ordinance No. 6803 November 15, 2020 Page 5 amendments, attached as Exhibit A, Exhibit B, Exhibit C, Exhibit D, Exhibit E, Exhibit F when preparing and publishing the amended Comprehensive Plan. Section 8. The provisions of this ordinance are declared to be separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section or portion of this ordinance, or the invalidity of the application thereof to any person or circumstance shall not affect the validity of the remainder of this ordinance, or the validity of its application to other persons or circumstances. Section 9. This Ordinance shall take effect and be in force five days from and after its passage, approval and publication as provided by law. INTRODUCED: _________________________ PASSED: _____________________________ APPROVED: ___________________________ CITY OF AUBURN Nancy Backus MAYOR ATTEST: __________________________ Shawn Campbell, MMC, City Clerk APPROVED AS TO FORM: __________________________ Kendra Comeau, City Attorney Page 308 of 378 -------------------------- Ordinance No. 6803 November 15, 2020 Page 6 Published: _____________________ Page 309 of 378 -------------------------- Ordinance No. 6803 November 15, 2020 Page 7 Exhibit A November 15, 2020 staff report to the City Council for all 2020 Annual Comprehensive Plan Amendments for the City Council Study Session on November 23, 2020. Page 310 of 378 -------------------------- Ordinance No. 6803 November 15, 2020 Page 8 Exhibit B Annual Comprehensive Plan Policy/Text (P/T) Amendment (CPA20-0003 – Private Initiated for Auburn Adventist Academy) P/T #10 – Volume 1: Land Use Element. Updates to the Auburn Adventist Academy Adopted Area and policy number LU-135 and Academy Special Planning Area Plan policies A.1.2 and A.1.8. Staff Report and Text Changes as an excerpt of the City’s Comprehensive Plan showing modified language in the Land use Element Policy Number LU-135 and Auburn Adventist Academy Adopted Special Area Plan policies A.1.2 and A.1.8 to update the Academy’s mission and clarify the intended land uses for the adopted area (CPA20-0003) Page 311 of 378 -------------------------- Ordinance No. 6803 November 15, 2020 Page 9 Exhibit C Annual Comprehensive Plan Map (CPM) Amendment (CPA20-0002 – Private Initiated for Westport Capital) CPM #3 – Volume 1: Land Use Element, map updates Colored Map as an excerpt of the City’s Comprehensive Plan Map showing a change from "Multiple Family Residential" to "Moderate Density Residential" for three parcels totaling approximately 5.3 acres, identified by parcel numbers: 000420- 0025, 000420-0019, and 000420-0013, and a change from “Single Family Residential” to “Moderate Density Residential” for three parcels totaling approximately 31.8 acres. Page 312 of 378 -------------------------- Ordinance No. 6803 November 15, 2020 Page 10 Exhibit D Annual Comprehensive Plan Policy/Text (P/T) Amendments (CPA20-0005 – City Initiated) P/T #1 – Incorporate Auburn School District Capital Facilities Plan P/T #2 – Incorporate Dieringer School District Capital Facilities Plan P/T #3 – Incorporate Federal Way School District Capital Facilities Plan P/T #4 – Incorporate Kent School District Capital Facilities Plan P/T #5 – Incorporate City of Auburn Capital Facilities Plan P/T #6 - Transportation Element (Plan) Volume 5, (incorporated by reference) The changes the Transportation element consist of the following: • Update Transportation Improvement Program (TIP) information/project list; • Re-designate multiple capital projects from the TIP (funded) to the Comprehensive Plan (unfunded) to maintain continuity in the future transportation network conditions. • Update maps as needed to reflect current data and conditions (addressed by CMP#1, below); • Additional minor changes will relate to grammar, punctuation, choice of words, etc. P/T #8 - Volume 1, Land Use Element and Volume 5, Transportation Element (Plan). Amend comprehensive plan policies which do not sufficiently protect the operations of the Auburn Municipal Airport, and do not provide the City sufficient authority to ensure development around the airport is coordinated and consistent with the Airport Master Plan. Policies are currently being evaluated as to whether they: • Protect the operations of the Auburn Municipal Airport (the “airport”); • Prevent or promote incompatible land uses around the airport; • Ensure that development around the airport is coordinated and consistent with the Airport Master Plan; • Protect the airport from nonconforming uses and structures that pose a safety concern to airport operations; • Provide the authority to review the impact of development on air safety; • Are clearly defined and clearly understood, or open to a wide degree of interpretation; or • Use outdated language (See “Comp. Plan Policy/Text Amendments” tab in the working binder) Page 313 of 378 -------------------------- Ordinance No. 6803 November 15, 2020 Page 11 Exhibit E Annual Comprehensive Plan Map (CPM) Amendments (CPA20-0005 – City Initiated) CPM #1 – Volume 5: Transportation Element, map updates See “Comp. Plan Map Amendments” tab in the working binder) Page 314 of 378 -------------------------- Ordinance No. 6803 November 15, 2020 Page 12 Exhibit F Annual Comprehensive Plan Map (CPM) Amendment and Rezone (CPA20-0001, REZ20-0001 – Private Initiated) CPM #2 – Volume 1: Land Use Element, Land Use and Zoning Map Updates Colored Map as an excerpt of the City’s Comprehensive Plan Map showing a change from "Multiple Family Residential" to "Institutional" for one parcel totaling approximately 2.19 acres, identified by parcel number: 212105-9042 for the Auburn School District Chinook Elementary School (CPA20-0001) Colored Map as an excerpt of the City’s Zoning Map showing a change from “R-20, Residential Twenty Dwelling Units Per Acre” to “P-1, Public Use District” for one parcel totaling approximately 2.19 acres, identified by parcel number: 212105-9042 for the Auburn School District Chinook Elementary School (REZ20 -0001) (Please see “Comp. Plan Map Amendments CPA20-0001” tab in the working binder). Page 315 of 378 -------------------------------- Ordinance No. 6807 November 10, 2020 Page 1 of 13 Rev. 2019 ORDINANCE NO. 6807 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, REZONING SIX PARCELS, APPROXIMATELY 37.1 ACRES, FROM R-20 RESIDENTIAL AND R-7 RESIDENTIAL TO R-16, RESIDENTIAL ZONE – 16 DWELLING UNITS PER ACRE, WITH CERTAIN CONDITIONS WHEREAS, on December 7, 2020 the City Council approved the associated Comprehensive Plan amendment under City File No. CPA20-0002 to change the Land Use Designation of approximately 37.1 acres (the “Site”, as legally described in Exhibit A) to “Moderate Density Residential” under Ordinance No. 6803; and WHEREAS, David Toyer with Toyer Strategic Investors, representing Rick Hathaway with Westport Capital Investments, LLC (owner), submitted a concurrent application to rezone the Site (REZ20-00020), consisting of six parcels, from “R-20 Residential” and “R-7 Residential” (split designation) to “R-16 Residential”; and WHEREAS, Staff proposed to the Planning Commission that the rezone be recommended to the City Council for approval only if certain conditions are applied relating to maximum residential density, maximum number of apartment units, require home ownership opportunities, right-of-way dedication, and a sewer pump station analysis, in order to assure consistency with the City’s Comprehensive Plan; and WHEREAS, the “R-16 Residential” zoning district properly implements the ‘Moderate Density Residential’ Comprehensive Plan land use designation; and WHEREAS, the environmental impacts of the proposed rezone were considered in accordance with procedures of the State Environmental Policy Act with a Determination of Non-Significance (City File No. SEP20-0006) issued on October 19, 2020; and Page 316 of 378 -------------------------------- Ordinance No. 6807 November 10, 2020 Page 2 of 13 Rev. 2019 WHEREAS, proper public notice was published in the City’s official newspaper, mailed to neighboring property owners, and posted on the subject properties at least ten days prior to the public hearing; and WHEREAS, November 4, 2020 the Planning Commission held a public hearing on the rezone application and heard public testimony and took evidence and exhibits into consideration; and WHEREAS, the Planning Commission closed the public hearing and deliberated on the rezone request, then made and entered findings of fact and conclusions of law in support of the application; and WHEREAS, the Planning Commission recommends approval of the rezone application, subject to the conditions listed below; and WHEREAS, the City Council concurs with the findings of fact and conclusions of the Planning Commission; and NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, DO ORDAIN as follows: Section 1. Adoption of the Planning Commission’s Findings of Fact and Conclusions of Law. The City Council adopts the findings of fact and conclusions of law made and entered by the Planning Commission in support of the recommendation to the City Council, as set forth in Exhibit B. Section 2. Approval and Conditions of Approval. The City Council approves changing the zoning designation of the Site, as described in Exhibit A, to “R-16 Residential” subject to the following conditions: Page 317 of 378 -------------------------------- Ordinance No. 6807 November 10, 2020 Page 3 of 13 Rev. 2019 A. The maximum density over the entire Site shall not exceed 12 units per acre (the minimum density standard of the R-16 zone), plus or minus 10 percent (%) (density could range from 10.8 units/acre to 13.2 units/acre). B. The maximum number of apartment units (rental units as defined in ACC 18.04.1110) over the entire Site shall not exceed 128 units. This cap is based on the theoretical achievable number of apartment units for the pre-existing portion of the site zoned “R-20, Residential”. Any apartment buildings and/or units shall only be located within the southern half of the Site. The “southern half” is defined as an east-west line drawn at a point approximately 50 feet north of the northern boundary of Section 6, Township 21 North, Range 5 East. Development of any apartment units shall be done concurrently, or after, development of the housing types listed in the following Condition C. The number of apartment units shall be the same or less than the other housing types. For example, if an apartment development is proposed with 100 units, at least 100 units of the other housing types shall also be included in a concurrent development. C. At least three types of ownership housing for the remainder of the entire Site shall be provided, with each type of housing to represent a minimum of 15% of the housing units. Ownership housing shall be defined as townhouses, rowhouses, single-family detached, condominiums, multi-plexes (limited to duplex, triplex, or fourplex), or other similar types as approved by the Director of Community Development. For example, 15% triplex, 15% townhouses, and 70% single-family. D. Right-of-way (ROW) shall be dedicated along with the first development proposal on the Site, connecting, at a minimum, ‘L’ St. NE, ‘O’ Pl. NE, or ‘R’ St. NE through Page 318 of 378 -------------------------------- Ordinance No. 6807 November 10, 2020 Page 4 of 13 Rev. 2019 the Site to the intersection of ‘I’ St. NE and 40th St. NE, as determined by the City Engineer. Improvements to this ROW will be as determined by the City Engineer for conformance with the City’s Engineering Design Standards. E. Upon any future development proposals for the Site, a sewer pump station analysis shall be provided to the City for review and approval, the details as determined by the City Engineer, to determine what upgrades are needed to the “Auburn 40” sewer pump station to increase capacity to serve any development of this Site. Section 3. Amendment to the Zoning Map. Upon this Ordinance becoming effective, the official zoning map of the City of Auburn title “Comprehensive Zoning Map” shall be amended to reflect this rezone. Section 4. Recordation. Upon the passage, approval, and publication of this Ordinance as provided by law, the City Clerk of the City of Auburn shall cause this Ordinance to be recorded in the office of the King County Auditor for Parcel Nos. 000420- 0025, 000420-0019, 000420-0013, 000420-0022, 000420-0024, and 000420-0003. Section 5. Implementation. The Mayor is authorized to implement those administrative procedures necessary to carry out the directives of this legislation. Section 6. Severability. The provisions of this ordinance are declared to be separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section, or portion of this ordinance, or the invalidity of the application of it to any person or circumstance, will not affect the validity of the remainder of this ordinance, or the validity of its application to other persons or circumstances. Section 7. Exercise of Substantive Authority. The zoning map amendment is herewith designated as a basis for the exercise of substantive authority under the Page 319 of 378 -------------------------------- Ordinance No. 6807 November 10, 2020 Page 5 of 13 Rev. 2019 Washington State Environmental Policy Act (SEPA) by the City’s responsible environmental official in accordance with RCW 43.21C.060. Section 8. Effective date. This Ordinance will take effect and be in force five days from and after its passage, approval, and publication as provided by law. INTRODUCED: _______________ PASSED: ____________________ APPROVED: _________________ ____________________________ NANCY BACKUS, MAYOR ATTEST: ____________________________ Shawn Campbell, MMC, City Clerk APPROVED AS TO FORM: ____________________________ Kendra Comeau, City Attorney Published: ____________________ Page 320 of 378 -------------------------------- Ordinance No. 6807 November 10, 2020 Page 6 of 13 Rev. 2019 Exhibit A Legal Description of the Site Page 321 of 378 -------------------------------- Ordinance No. 6807 November 10, 2020 Page 7 of 13 Rev. 2019 Page 322 of 378 -------------------------------- Ordinance No. 6807 November 10, 2020 Page 8 of 13 Rev. 2019 Page 323 of 378 -------------------------------- Ordinance No. 6807 November 10, 2020 Page 9 of 13 Rev. 2019 Exhibit B Planning Commission’s Findings of Fact and Conclusions of Law Findings of Fact: 1. David Toyer with Toyer Strategic Investments, acting as Agent on behalf Rick Hathaway with Westport Capital Investments, Owner, submitted applications for a Comprehensive Plan Map Amendment and Rezone. The request is to change the Comprehensive Plan Map Land Use Designation of 6 parcels totaling approx. 37.1 acres to “Moderate Family Residential” from “Multi-Family” and “Single Family Residential” and associated rezone the properties to “R-16, Residential 16 Dwelling Units per Acre (with conditions)”. 2. The proposal consists of six adjacent parcels located on the east side of ‘I’ St. NE at 40th St. NE. King Co. Parcel Nos. King Co. Parcel Nos. 000420-0003, 000420-0013, 000420-0019, 000420-0022, 000420-0024, and 000420-0025. 3. Pursuant to Chapter 197-11 WAC and Chapter 16.06 ACC, this proposal is subject to State Environmental Policy Act (“SEPA”) decision. A Determination of Non-Significance (“DNS”), for the Comprehensive Plan amendment and Rezone request was issued under City File No. SEP20-0006 on October 19, 2020; with the comment period ending on November 3, 2020 and an appeal period ending on November 17, 2020. 4. The public hearing notice was published on November 19, 2020 in the Seattle Times newspaper, at least 10 days prior to this November 4, 2020 Planning Commission public hearing. Public notice was also mailed to property owners within 300 feet and those requesting said notice, posting on the City’s website, and posting at four locations on the subject properties (on the ‘I’ St. NE frontage, and at the termini of ‘l’ St. NE, ‘O’ Pl. NE, and ‘R’ St. NE along the northern property lines). 5. This Staff Report and recommendation describes and addresses a Comprehensive Plan map amendment and rezone request by Westport Capital Investments. The other private initiated Comprehensive Plan amendment applications, as well as the 2020 City initiated Comprehensive Plan Amendments are addressed in separate staff reports. 6. Two comments were submitted, summarized as follows. a. Earl Weaver, The River Mobile Home Park – concerns about any potential flood mitigation along with future development. Staff Response: Staff provided Mr. Weaver with information regarding any future development will need to meet the City’s floodplain regulations. b. Melissa Child, ‘I’ Pl. NE Resident – concerns about impacts to the wetlands and wildlife habitat, traffic impacts, and that the housing will just be more apartments. Staff Response: Staff provided Ms. Child with information on the presence of wetlands, that there will likely be traffic impacts that will need to be addressed, and Page 324 of 378 -------------------------------- Ordinance No. 6807 November 10, 2020 Page 10 of 13 Rev. 2019 that a condition of the Rezone would be a limit to the number of apartment units and would require a mix of housing types. 7. Chapter 18.68 ACC (Zoning) Amendments outlines the process for submittal of privately- initiated zoning amendments and the general processing. Per ACC 18.68.030(B)(1)(b), when the Planning Commission is considering a rezone (zoning map amendment) which requires a Comprehensive Plan Land Use Map amendment, the public hearings shall be conducted concurrently and a recommendation on both shall be forwarded to the City Council. Note that this amendment is vested to the version of Ch. 18.68 ACC that was in place prior to the updates to this chapter earlier in 2020 (Ord. No. 6779). 8. Pursuant to RCW 36.70A.106, the proposed Comprehensive Plan amendment outlined in this agenda bill were sent to the Washington State Dept. of Commerce and other State agencies as required for the 60-day State review. No comments have been received from the Dept. of Commerce or other State agencies as of the date of this report. 9. The following Staff Report and recommendation describes and addresses the Comprehensive Plan Land Use Map amendment and Rezone request by Westport Capital Investments. Staff Analysis: 1. The Comprehensive Plan amendment seeks to change the Comprehensive Plan Land Use Map Designation of a total of six parcels to “Moderate Density Residential”. Three of the parcels (000420-0025, 000420-0019, and 000420-0013) are currently “Multiple-Family Residential” totaling approx. 5.3 acres. The other three parcels (000420-0022, 000420- 0024, and 000420-0003) are currently “Single Family Residential” totaling approx. 31.8 acres. The three parcels total approximately 1.89 acres. 2. The Rezone request seeks to change the zoning classification of approx. 6.4 acres from “R- 20, Residential 20 Dwelling Units per Acre” and 30.7 acres from “R-7, Residential Seven Dwelling Units per Acre” to “R-16, Residential Sixteen Dwelling Units per Acre”. Note that the zoning boundary does not exactly align with the Comprehensive Plan Designations. 3. The Applicant has supplied narratives for the Comprehensive Plan amendment and the Rezone request applications. At this time there is no specific construction project planned for the property if the requests are approved. 4. Based on conversations between City Staff and the Applicant, the rezone request includes the following proposed conditions: a. Place a cap on the maximum density at 12 units per acre (plus or minus 10% variation), the minimum of the R-16 zone. b. Place a cap on the number of apartment units at 128. This cap is based off of the existing R-20 acreage of 6.4 acres multiplied by 20 units per acre. Any future multifamily units would be located in the southern half of the Site. c. Require at least three types of ownership housing for the remainder of the Site (approx. 320 units, plus or minus 10%) with each type of housing to represent a minimum of 15% of the housing units. Page 325 of 378 -------------------------------- Ordinance No. 6807 November 10, 2020 Page 11 of 13 Rev. 2019 5. Based on the existing zoning classifications and acreages, a total of 128 apartment units could be built (the R-20 zoning) and up to 215 single family units (R-7 Zoning). If the Rezone request is approved the number of apartment units would remain at 128 and the number of other types of housing would be up to approx. 320 units (plus or minus 10% would make the range around 275-364 units), a potential increase of approx. 105 units (with the 10% it would range from 60-150 units). 6. As shown in the table below and the following map, the surrounding properties have varying degrees of development. The area to the north contains existing single-family residences (“Monterey Park” subdivision, formerly “Auburn 40”, approved as a planned unit development (PUD)) on small lots (~3,500 sq.-ft. lots), the property to the south is vacant (owned by the Auburn School District), to the east is owned by King County for open space / recreation, across ‘I’ St. NE to the west is developed commercial land, and northwest of the Site and east of ‘I’ St. NE is three large single-family lots with existing residences as well as 3 lots zoned R-20 (“Labrador Rezone” from 2018). 7. The current Comprehensive Plan Land Use designation, zoning classification, and current land uses of the subject properties and surrounding properties are as follows: Comp Plan Designation Zoning Classification Existing Land Use Site “Multiple-Family Residential” and “Single Family Residential” R-20, Residential and R-7, Residential Vacant North “Multiple-Family Residential” and “Single Family Residential” PUD and R-20, Residential Single family homes South “Single Family Residential” R-7, Residential Vacant East “Single Family Residential” R-7, Residential Vacant, Green River Trail West “Heavy Commercial”, “Multiple Family Residential”, and “Single Family Residential” C-3, Heavy Commercial, R-7, Residential, and R-20, Residential Commercial and Manufacturing Uses, Vacant, and Single family homes 8. The two western-most of the six parcels front onto ‘I’ St. NE which is classified as a ‘Minor Arterial’ street. ‘L’ St. NE, ‘O’ Pl. NE, and ‘R’ St. NE, which are all “Local” streets, all end at the northern boundary of the site. These roadways, which were constructed along with the development of Monterey Park, were designed to be continued into this Site; upon future development one or all of these roadways will be extended into and through this Site. The existing R-20-zoned areas where approved under City Ordinance No. 4299, which required 40th St. NE to be extended into the Site to the eastern boundary of the R-20-zoned area. A condition of this Rezone will include extension of 40th through the Site to provide a connection, or multiple connections, into the Monterey Park subdivision. This is also required for emergency vehicle access which requires a secondary access when the number of dwelling units reaches 30 single family units or 100 multi-family units. 9. A Traffic Impact Analysis (TIA) was prepared to analyze the difference between the existing zoning and if the entire Site was rezoned to R-20 (which was the initial request by the Applicant, and later revised). As there is no development proposal at this time, the TIA looked at “worst case” scenarios of the map changes. Under this scenario the Level of Page 326 of 378 -------------------------------- Ordinance No. 6807 November 10, 2020 Page 12 of 13 Rev. 2019 Service (LOS) at the intersection of ‘I’ St. NE and 40th St. NE would require intersection improvements upon future development. What improvements will be required is not known at this time since there is no development proposed, so a general condition will be included with the Ordinance. 10. The Site is located within the City of Auburn water service boundaries. It is anticipated that there will be adequate water service upon future development, with any development responsible for extending water service to and through the Site, consistent with the Title 13 ACC and the City of Auburn Engineering Design Standards. 11. The Site is located within the City of Auburn sewer service boundaries. There is an existing sewer pump station that was constructed along with the Monterey Park subdivision to the north that was designed to serve this Site based on the existing zoning. A sewer pump station capacity analysis was submitted to analyze if upgrades to the pump station would be required if the rezone was approved, which there would be. This study was based off of the initial request of increased units under the R-20 zone, however, is still applicable to the revised request. What upgrades are needed to the pump station would be determined upon any future development proposals. A condition will be included with the rezone Ordinance addressing future upgrades. 12. A Critical Areas Memorandum was prepared and shows a wetland along the southern border of a portion of the Site and another north/west of the Site adjacent to ‘I’ St. NE. The Memo shows the wetland to the south as a “Category II” and the northern wetland as a “Category III”. Upon future development a full Critical Areas Report, consistent with Ch. 16.10 ACC, will be required. 13. There is a portion of the eastern area of the Site that is shown on the FEMA Flood Insurance Rate Maps (FIRM) as being located within the Special Flood Hazard Area (SFHA) and the 500-Year Flood Hazard Area. Upon future development appropriate studies and possible floodplain permits will be required, consistent with Ch. 15.68 ACC. 14. The purpose of the City’s Comprehensive Plan is to provide a policy basis for potential zoning changes to ensure that the Comprehensive Plan and Zoning Ordinance are consistent, as required by the following City Code provision: “14.22.050 Conformance and consistency. The zoning, land division and other development codes contained or referenced within Auburn City Code shall be consistent with and implement the intent of the comprehensive plan. Capital budget decisions shall be made in conformity with the comprehensive plan.” Conclusions: Note that this application was submitted on May 7, 2020, and deemed a Complete Application on June 4, 2020, and is therefore vested to Ch. 18.68 ACC in place prior to Ordinance No. 6779 (updates to “Zoning Code and Map Amendments”, adopted July 20, 2020). The Applicant has requested a rezone from R-7, Residential and R-20, Residential to R-16, Residential. Per the previously codified ACC 18.68.030(B)(1)(b) if the rezone request also requires changes to the Comprehensive Plan, the Planning Commission shall hold a public Page 327 of 378 -------------------------------- Ordinance No. 6807 November 10, 2020 Page 13 of 13 Rev. 2019 hearing and make a recommendation to the City Council. Chapter 18.68 ACC contains the intent and process for zoning code amendments, in this case a site-specific zoning map amendment has been requested. Auburn City Code does not contain any specific rezone criteria for City Staff to review; however, Case Law offers some rezone criteria (“A Little Bit Pregnant: The Multi-Personalities of Site Specific Rezones - Or - A Cheat Sheet for Everything You Need to Know about Site-Specific Rezones”, by Phil Olbrechts on mrsc.org, April 1, 2013) as follows: “…require that the proponents of a rezone must establish that conditions have substantially changed since the original adoption and that the rezone must bear a substantial relationship to the public health, safety, morals or welfare. If a rezone implements the comprehensive plan, a showing that a change of circumstances has occurred is not required.” With the change in City procedures by Ordinance No. 6655 to allow concurrent recommendations by the Planning Commission on both the Comprehensive plan and zoning map changes, the recommendations on each should be consistent and therefore does not need to show a change in circumstances has occurred. The requested rezone bears a substantial relationship to the public health, safety, morals and welfare. Adequate public facilities such as water, sewer, and electricity, are capable of being provided for the parcels upon future development and would therefore not be detrimental to public health. The rezone itself is not anticipated to allow any uses or acts that would pose any detrimental effects on the morals or welfare of the public. No impacts to public safety outside of normal residential development are anticipated. Page 328 of 378 AGENDA BILL APPROVAL FORM Agenda Subject: Ordinance No. 6805 (Thomas)(15 Minutes) Date: November 18, 2020 Department: Finance Attachments: Transmittal Memo Ordinance No. 6805 Schedule A Schedule B Budget Impact: Administrativ e Recommendation: City Council to introduce and adopt Ordinance No. 6805, amending the 2020 budget Background Summary: Ordinance No. 6805 (Budget Amendment #8) represents the eighth and final budget amendment for the 2019-2020 biennium and the fourth budget amendment for 2020. For details, see the attached transmittal memorandum and supporting materials. Rev iewed by Council Committees: Councilmember:Staff:Thomas Meeting Date:November 23, 2020 Item Number: Page 329 of 378 Interoffice Memorandum To: City Council From: Jamie Thomas, Finance Director CC: Nancy Backus, Mayor Date: November 10, 2020 Re: Ordinance No. 6805 – 2019-2020 Budget Amendment #8 The City’s biennial 2019-2020 budget was approved by Council as two one-year appropriations. Budget Amendments #1 through #4 amended the budget for calendar year 2019 and Budget Amendments #5 through #7 amended the budget for calendar year 2020. This amendment is the eighth budget amendment for the biennium and the fourth and final budget amendment for calendar year 2020. Proposed amendments to the 2020 budget are as follows: FTE Additions: No new positions are being requested in this amendment. Project Funding Requests. Project funding requests included in this budget amendment add spending authority for new projects or establish additional spending authority for existing projects. Total project funding requests total $62,000. Project funding requests include:  Replace hood fire suppression system at the Senior Center (Fund 505): This amendment provides $45,000 in expenditure authority to replace the 19-year- old hood fire suppression system based on the recommendation of the VRFA.  Purchase new Police K-9 and related vehicle modifications (General Fund): This amendment provides $10,000 in funding to cover the cost of a new Police K-9 and an additional $7,000 to retrofit an existing Police vehicle for K-9 use. Other Requests. Other requests included in this budget amendment establish spending authority for new items such as contracts for service, account for the receipt and expenditure of grant revenues, recognize increased revenues and associated expenditures, and provide funding for purchases of vehicles and equipment and transfers from operating to capital funds. Significant items in this category include: Page 330 of 378  Transfer budget from Water Operations to Water Capital subfund to fund capital projects $ 1,165,400  Refunding of 2010 B&D LTGO bonds (Funds 230, 231, and 232) 1,540,000  Increase CARES grant funding 1,225,800  Increase budget due to payouts resulting from voluntary lay-off and retirements (Fund 505) 75,000  Increase Auburn Golf Course revenue and expenditure budgets (General Fund) 30,000 The following table summarizes the current and revised budget as a result of this amendment. Table 1: 2019 Budget as Amended 2020 Amended Budget $ 395,194,482 Budget Amendment #8 (Ord #6805) 4,013,200 2020 Budget as Amended $ 399,207,682 Attachments:  1. Proposed Ordinance #6805 (budget adjustment #8)  2. Summary of proposed 2020 budget adjustments by fund (Schedule A)  3. Summary of approved changes to adopted 2020 budget by fund (Schedule B) Page 331 of 378 ------------------------- Ordinance No. 6805 November 18, 2020 Page 1 of 3 ORDINANCE NO. 6805 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AMENDING ORDINANCES NOS. 6693 AND 6694, THE 2019-2020 BIENNIAL BUDGET ORDINANCES, AS AMENDED BY ORDINANCE NO. 6712, ORDINANCE NO. 6719, ORDINANCE NO. 6720, ORDINANCE NO. 6751, ORDINANCE NO. 6752, ORDINANCE NO. 6764, AND ORDINANCE NO. 6783, AUTHORIZING AMENDMENT TO THE CITY OF AUBURN 2019-2020 BUDGET AS SET FORTH IN SCHEDULE “A” AND SCHEDULE “B” WHEREAS, the Auburn City Council at its regular meeting of December 3, 2018, adopted Ordinances Nos. 6693 and 6694 which adopted the City of Auburn 2019-2020 biennial budget; and WHEREAS, the Auburn City Council at its regular meeting of April 1, 2019, adopted Ordinance No. 6712 (BA#1) which amended Ordinances Nos. 6693 and 6694 which adopted the City of Auburn 2019-2020 biennial budget; and WHEREAS, the Auburn City Council at its regular meeting of May 20, 2019, adopted Ordinance No. 6719 (BA#2) which amended Ordinance No. 6712 which amended the City of Auburn 2019-2020 biennial budget; and WHEREAS, the Auburn City Council at its regular meeting of July 15, 2019, adopted Ordinance No. 6720 (BA#3), which amended Ordinance No. 6719 which amended the City of Auburn 2019-2020 biennial budget; and WHEREAS, the Auburn City Council at its regular meeting of December 4, 2019, adopted Ordinances Nos. 6752 (BA#4) and 6751 (BA#5), both of which amended Ordinance No. 6720 which amended the City of Auburn 2019-2020 biennial budget; and Page 332 of 378 ------------------------- Ordinance No. 6805 November 18, 2020 Page 2 of 3 WHEREAS, the Auburn City Council at its regular meeting of December 4, 2019, adopted Ordinance No. 6764 (BA#6), which amended Ordinance No. 6751 which amended the City of Auburn 2019-2020 biennial budget; and WHEREAS, the Auburn City Council at its regular meeting of August 24, 2020, adopted Ordinance No. 6783 (BA#7), which amended Ordinance No. 6764 which amended the City of Auburn 2019-2020 biennial budget; and WHEREAS, the City of Auburn deems it necessary to appropriate additional funds to the various funds of the 2020 budget as outlined in this Ordinance (BA#8); and WHEREAS, this Ordinance has been approved by one more than the majority of all councilpersons in accordance with RCW 35A.34.200. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON DO ORDAIN AS FOLLOWS: Section 1. Amendment of the 2019-2020 Biennial Budget. The 2019- 2020 Biennial Budget of the City of Auburn is amended pursuant to Chapter 35A.34 RCW, to reflect the revenues and expenditures as shown on Schedule “A” attached hereto and incorporated herein by reference. The Mayor of the City of Auburn, Washington is hereby authorized to utilize revenue and expenditure amounts shown on said Schedule “A” and Schedule “B”. A copy of said Schedule “A” and Schedule “B” is on file with the City Clerk and available for public inspection. Page 333 of 378 ------------------------- Ordinance No. 6805 November 18, 2020 Page 3 of 3 Section 2. Severability. The provisions of this ordinance are declared to be separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section, or portion of this ordinance, or the invalidity of the application of it to any person or circumstance, will not affect the validity of the remainder of this ordinance, or the validity of its application to other persons or circumstances. Section 3. Implementation. The Mayor is authorized to implement those administrative procedures necessary to carry out the directives of this legislation. Section 4. Effective Date. This Ordinance will take effect and be in force five days from and after its passage, approval and publication as provided by law. INTRODUCED: _______________ PASSED: ____________________ APPROVED: _________________ ____________________________ NANCY BACKUS, MAYOR ATTEST: APPROVED AS TO FORM: ____________________________ _______________________________ Shawn Campbell, MMC, City Clerk Kendra Comeau, City Attorney PUBLISHED:__________________ Page 334 of 378 Schedule A Summary of 2020 Budget Adjustments by Fund Budget Amendment #8 (Ordinance #6805) 2,455 Beg. Fund Balance 2020 Revenues 2020 Expenditures Ending Fund Balance General Fund (#001) 2020 Adopted Budget 12,394,863 75,249,867 80,586,405 7,058,325 Previous Budget Amendments 11,246,297 (22,120) 3,523,700 7,700,477 2020 Amended Budget 23,641,160 75,227,747 84,110,105 14,758,802 BA#8 (Ordinance #6805, Proposed):- 1,255,800 1,300,800 (45,000) Parks Department: Increase revenue and expenditure budgets for the Auburn Golf Course - 30,000 30,000 - Non-Departmental: Replace hood fire suppression system at Senior Center - - 45,000 (45,000) Additional CARES Act revenues and expenditures (COVID-19 related)- 1,225,800 1,225,800 - Revised 2020 Budget - Fund 001 23,641,160 76,483,547 85,410,905 14,713,802 Drug Forfeiture Fund (#117) 2020 Adopted Budget 233,460 152,000 310,956 74,504 Previous Budget Amendments 1,044,513 - 118,500 926,013 2020 Amended Budget 1,277,973 152,000 429,456 1,000,517 BA#8 (Ordinance #6805, Proposed):- - 17,000 (17,000) Purchase new Police K-9 and retrofit existing Police vehicle for K-9 use - - 17,000 (17,000) Revised 2020 Budget - Fund 117 1,277,973 152,000 446,456 983,517 City Hall Annex 2010 A&B Bond Fund (#230) 2020 Adopted Budget - 1,658,400 1,658,400 - Previous Budget Amendments 4,489 - - - 2020 Amended Budget 4,489 1,658,400 1,658,400 - BA#8 (Ordinance #6764, Proposed):- - - - Refunding of 2010 B&D LTGO Bonds - - - - 230.00.591.180.71 DEBT SERVICE PRINCIPAL GO BONDS (610,000) 230.00.592.180.83 DEBT SERVICE INTEREST (520,000) 230.00.597.100.55 OPERATING TRANSFER OUT 1,130,000 ERROR: Transfers In ≠ Transfers Out ERROR: Detail ≠ Schedule A Page 1 of 3 11/12/2020 9:24 AM Page 335 of 378 Schedule A Summary of 2020 Budget Adjustments by Fund Budget Amendment #8 (Ordinance #6805) 2,455 Beg. Fund Balance 2020 Revenues 2020 Expenditures Ending Fund Balance ERROR: Transfers In ≠ Transfers Out ERROR: Detail ≠ Schedule A Local Revitalization 2010 C&D Bond Fund (#231) 2020 Adopted Budget 11,896 575,100 574,600 12,396 Previous Budget Amendments 21,697 (500) - 21,197 2020 Amended Budget 33,593 574,600 574,600 33,593 BA#8 (Ordinance #6805, Proposed):- - - - Refunding of 2010 B&D LTGO Bonds - - - - 231.00.591.190.71 DEBT SERVICE PRINCIPAL (255,000) 231.00.592.190.83 INTEREST (155,000) 231.00.597.100.55 OPERATING TRANSFER OUT 410,000 Revised 2020 Budget - Fund 231 33,593 574,600 574,600 33,593 2020 LGTO Refunding Bonds (2010 B&D) Fund (#232) 2020 Adopted Budget - - - - Previous Budget Amendments - - - - 2020 Amended Budget - - - - BA#8 (Ordinance #6764, Proposed):- 1,540,000 1,508,000 32,000 Refunding of 2010 B&D LTGO Bonds - 1,540,000 1,508,000 32,000 Revised 2020 Budget - Fund 232 - 1,540,000 1,508,000 32,000 Water Fund (#430) 2020 Adopted Budget 5,131,610 16,323,800 14,408,831 7,046,579 Previous Budget Amendments and CIP Carry-Forwards 6,781,496 17,457,321 15,516,408 8,722,409 2020 Amended Budget 11,913,106 33,781,121 29,925,239 15,768,988 BA#8 (Ordinance #6805, Proposed):- - 1,165,400 (1,165,400) Transfer budget from Water operations to capital subfunds to fund capital projects - - 1,165,400 (1,165,400) Revised 2020 Budget - Fund 430 11,913,106 33,781,121 31,090,639 14,603,588 Page 2 of 3 11/12/2020 9:24 AM Page 336 of 378 Schedule A Summary of 2020 Budget Adjustments by Fund Budget Amendment #8 (Ordinance #6805) 2,455 Beg. Fund Balance 2020 Revenues 2020 Expenditures Ending Fund Balance ERROR: Transfers In ≠ Transfers Out ERROR: Detail ≠ Schedule A Water Capital Fund (#460) 2020 Adopted Budget 2,562,724 2,070,200 4,282,305 350,619 Previous Budget Amendments and CIP Carry-Forwards (2,481,645) 15,114,592 12,930,648 (297,701) 2020 Amended Budget 81,079 17,184,792 17,212,953 52,918 BA#8 (Ordinance #6805, Proposed):- 1,165,400 - 1,165,400 Transfer budget from Water operations to capital subfunds to fund capital projects - 1,165,400 - 1,165,400 Revised 2020 Budget - Fund 460 81,079 18,350,192 17,212,953 1,218,318 Facilities Fund (#505) 2020 Adopted Budget 1,050,811 4,034,500 4,115,862 969,449 Previous Budget Amendments 264,685 (328,800) (119,800) 55,685 2020 Amended Budget 1,315,496 3,705,700 3,996,062 1,025,134 BA#8 (Ordinance #6805, Proposed):- 45,000 120,000 (75,000) Replace hood fire suppression system at Senior Center - 45,000 45,000 - Increase budget due to payouts resulting from voluntary lay-off and retirements - - 75,000 (75,000) Revised 2020 Budget - Fund 505 1,315,496 3,750,700 4,116,062 950,134 Equipment Rental Fund (#550) 2020 Adopted Budget 2,352,641 2,075,495 2,785,735 1,642,401 Previous Budget Amendments 604,129 9,900 (121,400) 735,429 2020 Amended Budget 2,956,770 2,085,395 2,664,335 2,377,830 BA#8 (Ordinance #6805, Proposed):- 7,000 7,000 - Purchase new Police K-9 and retrofit existing Police vehicle for K-9 use - 7,000 7,000 - Revised 2020 Budget - Fund 550 2,956,770 2,092,395 2,671,335 2,377,830 Grand Total - All Funds 2020 Adopted Budget 108,311,321 189,050,270 199,654,274 97,707,317 Previous Budget Amendments 46,947,432 50,885,459 73,884,849 23,948,042 2020 Amended Budget 155,258,753 239,935,729 273,539,123 121,655,359 TOTAL BA#8 (Ordinance #6805, Proposed):- 4,013,200 4,118,200 (105,000) Revised 2020 Budget 155,258,753 243,948,929 277,657,323 121,550,359 399,207,682 399,207,682 Page 3 of 3 11/12/2020 9:24 AM Page 337 of 378 Schedule B 2020 Appropriations by Fund Fund 2020 Adopted Budget BA#5 (Ord #6751) CIP Carry Forwards BA#6 (Ord #6764) Additional CIP Carry Forwards BA#7 (Ord #6783) BA#8 (Ord #6805) Total Amendments Revised Budget General Fund (#001)87,644,730 4,599,174 - 1,232,350 - 5,392,653 1,255,800 12,479,977 100,124,707 Arterial Street Fund (#102)5,039,077 4,109,581 180,000 450,000 1,659,846 376,283 - 6,775,710 11,814,787 Local Street Fund (#103)2,858,880 249,701 - - 1,212,534 129,497 - 1,591,732 4,450,612 Hotel/Motel Tax Fund (#104)266,121 52,454 - - - 40,511 - 92,965 359,086 Arterial Street Preservation Fund (#105)5,202,057 (536,021) 800,000 1,606,240 861,744 813,208 - 3,545,171 8,747,228 Drug Forfeiture Fund (#117)385,460 71,297 - - - 973,216 - 1,044,513 1,429,973 Housing & Comm Develop Fund (#119)576,428 6,446 - 289,780 - 371,800 - 668,026 1,244,454 Recreation Trails Fund (#120)78,526 1,550 - - - 1,349 - 2,899 81,425 BIA Fund (#121)129,873 940 - - - 58,012 - 58,952 188,825 Cumulative Reserve Fund (#122)10,360,112 33,754 42,200 - - 75,249 - 151,203 10,511,315 Mitigation Fees Fund (#124)10,408,687 (69,211) 1,944,100 - 1,022,390 2,104,822 - 5,002,101 15,410,788 1998 GO Library Bond Fund (#229)- - - - - - - - - City Hall Annex 2010 A&B Bond Fund (#230)1,658,400 - - - - 4,489 - 4,489 1,662,889 Local Revitalization 2010 C&D Bond Fund (#231)586,996 3,436 - - - 17,761 - 21,197 608,193 2020 LGTO Refunding Bonds (2010 B&D) Fund (#232)- - - - - - 1,540,000 1,540,000 1,540,000 SCORE Debt Service Fund (#238)2,117,000 - - - - - - - 2,117,000 LID Guarantee Fund (#249)1,688 15 - - - 6 - 21 1,709 LID 350 Fund (#275)8,759 (4,956) - - - (3,455) - (8,411) 348 Golf/Cemetery 2016 Refunding Fund (#276)376,000 19 - - - (19) - - 376,000 Parks Construction Fund (#321)955,872 120,757 1,311,800 758,050 571,043 68,013 - 2,829,663 3,785,535 Capital Improvements Fund (#328)10,284,577 362,010 5,497,000 687,050 893,431 2,043,115 - 9,482,606 19,767,183 Local Revitalization Fund (#330)- - 290,500 - 87,617 1,622 - 379,739 379,739 Water Fund (#430)21,455,410 8,307,683 3,230,666 88,000 145,821 12,466,647 - 24,238,817 45,694,227 Sewer Fund (#431)14,923,386 894,808 280,667 211,250 - (470,146) - 916,579 15,839,965 Storm Drainage Fund (#432)14,550,602 1,868,064 280,667 54,640 - 828,517 - 3,031,888 17,582,490 Sewer Metro Sub Fund (#433)21,890,667 383,462 - - - (1,568,593) - (1,185,131) 20,705,536 Solid Waste Fund (#434)21,860,569 91,608 - - - 184,018 - 275,626 22,136,195 Airport Fund (#435)1,516,440 236,582 - - - 343,255 - 579,837 2,096,277 Cemetery Fund (#436)1,451,098 261,627 - - - 296,320 - 557,947 2,009,045 Water Capital Fund (#460)4,632,924 9,187,643 3,286,000 - 2,232,083 (2,072,779) 1,165,400 13,798,347 18,431,271 Sewer Capital Fund (#461)9,799,991 249,314 436,500 - 1,782,342 1,737,210 - 4,205,366 14,005,357 Storm Drainage Capital Fund (#462)11,283,288 (1,394,955) 829,800 - 400,593 1,401,629 - 1,237,067 12,520,355 Airport Capital Fund (#465)875,305 3,028,414 - - 856,390 2,930 - 3,887,734 4,763,039 Cemetery Capital Fund (#466)35,937 (7,685) 380,400 - - 5,731 - 378,446 414,383 Insurance Fund (#501)1,791,570 4,456 - - - 135,927 - 140,383 1,931,953 Workers' Comp Fund (#503)3,743,973 (963,880) - - - 324,634 - (639,246) 3,104,727 Facilities Fund (#505)5,085,311 14,043 - 224,300 - (302,458) 45,000 (19,115) 5,066,196 Innovation & Technology Fund (#518)9,289,127 (56,838) - 195,000 - (46,938) - 91,224 9,380,351 Equipment Rental Fund (#550)4,428,136 174,775 - - - 439,254 7,000 621,029 5,049,165 Equipment Rental Capital Fund (#560)4,897,259 (267,778) 1,140,000 - 1,366,350 (129,122) - 2,109,450 7,006,709 IT Capital Fund (#568)800,697 356,536 661,527 - - 151,854 - 1,169,917 1,970,614 Fire Pension Fund (#611)2,236,249 22,922 - - - 22,370 - 45,292 2,281,541 SKHHP Fund (#654)- 334,750 - 120,000 - 127,695 - 582,445 582,445 Cemetery Endowment Fund (#701)1,874,409 56,978 55,400 - - 47,258 - 159,636 2,034,045 Total 297,361,591 31,783,475 20,647,227 5,916,660 13,092,184 26,393,345 4,013,200 101,846,091 399,207,682 Page 338 of 378 AGENDA BILL APPROVAL FORM Agenda Subject: 3rd Quarter 2020 Financial Report (Thomas)(20 Minutes) Date: November 18, 2020 Department: Finance Attachments: Q3 Financial Report Budget Impact: Administrativ e Recommendation: For discussion only Background Summary: The financial report summarizes the general state of Citywide financial affairs and highlights significant items or trends that the City Council should be aware of. The attachment provides the year-to-date through September 2020 status report based on financial data available as of October 20, 2020. Sales tax information represents business activity that occurred through July 2020. Rev iewed by Council Committees: Councilmember:Staff:Thomas Meeting Date:November 23, 2020 Item Number: Page 339 of 378 Quarterly Financial Report Through September 2020 General Fund Summary 1 Page 340 of 378 Quarterly Financial Report Through September 2020 2 General Fund 2019 Summary of Sources and Uses Annual YTD YTD YTD Budget Budget Actual Actual Amount Operating Revenues Property Tax 7 22,000,000$ 12,115,200$ 12,376,181$ 12,228,024$ 260,981$ 2.2 % Retail Sales Tax 8-9 15,576,200 11,528,900 13,678,442 13,825,585 2,149,542 18.6 % Affordable Housing Sales Tax Credit 150,000 112,500 104,759 - (7,741) (6.9) % Sales Tax - Pierce County Parks 110,800 82,000 80,900 82,419 (1,100) (1.3) % Sales Tax - Annexation Credit - - - 373,279 0 N/A Criminal Justice Sales Tax 1,910,000 1,407,100 1,667,278 1,783,637 260,178 18.5 % Brokered Natural Gas Tax 131,000 103,500 123,168 172,481 19,668 19.0 % City Utilities Tax 10-11 4,521,700 3,384,100 3,413,691 3,026,859 29,591 0.9 % Admissions Tax 11 252,800 189,603 197,965 334,077 8,362 4.4 % Electric Tax 10-11 4,024,400 3,135,600 3,242,922 2,753,414 107,322 3.4 % Natural Gas Tax 10-11 1,201,900 1,067,100 1,114,296 818,958 47,196 4.4 % Cable Franchise Fee 904,000 678,000 677,983 694,741 (17)(0.0)% Cable Utility Tax 1,135,100 851,682 864,091 731,470 12,408 1.5 % Cable Franchise Fee - Capital 65,000 48,750 46,529 48,471 (2,221) (4.6) % Telephone Tax 10-11 981,900 752,700 831,771 735,332 79,071 10.5 % Solid Waste Tax (external)10-11 154,600 115,920 166,230 109,116 50,310 43.4 % Leasehold Excise Tax 51,000 38,250 211,704 197,512 173,454 453.5 % Gambling Excise Tax 12 82,100 61,575 74,995 276,973 13,420 21.8 % Taxes sub-total 53,252,500$ 35,672,480$ 38,872,904$ 38,192,348$ 3,200,423$ 9.0 % Business License Fees 12-13 328,000$ 160,100$ 147,995$ 126,563$ (12,106)$ (7.6) % Building Permits 14 720,000 456,900 686,295 627,371 229,395 50.2 % Other Licenses & Permits 551,300 406,200 729,676 766,440 323,476 79.6 % Intergovernmental (Grants, etc.)15-16 8,031,370 3,953,285 4,529,943 4,733,859 576,659 14.6 % Charges for Services:16-18 % General Government Services 16 2,823,620 2,032,510 2,234,136 1,944,889 201,626 9.9 % Public Safety 16-17 964,000 723,000 704,263 847,021 (18,737) (2.6) % Development Services Fees 16-17 650,000 475,100 754,150 850,551 279,050 58.7 % Culture and Recreation 16, 18 1,492,380 1,269,200 1,332,318 2,224,932 63,118 5.0 % Fines and Penalties 18-19 668,500 498,250 475,518 642,069 (22,732) (4.6)% Fees/Charges/Fines sub-total 16,229,170$ 9,974,545$ 11,594,294$ 12,763,695$ 1,619,749$ 16.2 % Interest and Investment Earnings 20 700,700$ 493,680$ 377,313$ 291,861$ (116,367)$ (23.6) % Rents and Leases 20 507,600 426,800 386,007 793,273 (40,793) (9.6) % Contributions and Donations 20 46,200 37,000 28,876 26,539 (8,124) (22.0) % Other Miscellaneous 20 230,800 179,100 171,276 330,377 (7,824) (4.4) % Transfers In 4,081,527 2,079,645 2,081,527 104,006 1,882 0.1 % Insurance Recoveries - Capital & Operating 179,250 81,400 71,391 92,792 (10,009) (12.3)% Other Revenues sub-total 5,746,077$ 3,297,625$ 3,116,390$ 1,638,848$ (181,235)$ (5.5) % Total Operating Revenues 75,227,747$ 48,944,651$ 53,583,588$ 52,594,892$ 4,638,937$ 9.5 % Operating Expenditures Council & Mayor 1,057,296$ 801,100$ 708,024$ 762,497$ 93,076$ 11.6 % Administration 3,578,081 2,503,300 2,494,166 1,607,681 9,134 0.4 % Human Resources 1,767,704 1,298,300 1,165,246 655,167 133,054 10.2 % Municipal Court & Probation 3,074,111 744,233 666,941 1,107,248 77,293 10.4 % Finance 3,518,178 2,694,200 2,360,243 2,538,235 333,957 12.4 % City Attorney 2,894,572 2,122,900 1,748,226 1,877,968 374,674 17.6 % Community Development 5,349,088 3,982,600 3,178,358 3,028,604 804,242 20.2 % Community & Human Services (Comm Devel)1,055,484 653,400 632,686 660,205 20,714 3.2 % Jail - SCORE 4,601,000 3,450,750 3,423,825 2,894,741 26,925 0.8 % Police 30,763,024 22,444,600 21,335,656 20,626,144 1,108,944 4.9 % Public Works 4,426,341 3,273,400 2,684,001 2,798,423 589,399 18.0 % Parks, Arts & Recreation 12,626,216 9,652,800 8,094,481 9,558,340 1,558,319 16.1 % Streets 3,858,677 2,705,600 2,547,290 2,561,410 158,310 5.9 % Non-Departmental 5,540,333 3,165,933 1,279,897 1,239,164 1,886,036 59.6 % Total Operating Expenditures 84,110,105$ 59,493,116$ 52,319,041$ 51,915,829$ 7,174,075$ 12.1 % Page Ref 2020 2020 YTD Budget vs. Actual Favorable (Unfavorable) Percentage 2 Page 341 of 378 Quarterly Financial Report Through September 2020 3 Executive Summary This report provides an overview of the City’s overall financial position for the fiscal period ending September 30, 2020, reflecting financial data available as of October 20, 2020. General Fund: Due to the COVID-19 pandemic, many General Fund revenues declined due to the Governor’s “Stay Home, Stay Healthy” order that effectively closed all non-essential businesses earlier this year. While the county has since progressed to phase 2 reopening, revenues are still being unfavorably impacted compared to what would be considered normal activity. The revenue categories that are primarily impacted by the pandemic include sales taxes, admission tax, gambling tax, business licenses, culture and recreation, and rents and leases. In light of the economic impact that COVID-19 has had, the City recently adjusted some General Fund revenue budgets downward to reflect new expectations. At the same time, the City also implemented expenditure reductions with the goal of closing the expected revenue gap. Anticipated expenditure reductions are reflected in this financial report in both the budget and actuals. Through September 2020, General Fund revenues totaled $53.6 million and were $4.6 million, or 9.5% favorable to the revised budget expectations. The City estimates that the annual revenue loss to the General Fund in 2020 due to COVID-19 will be between $6.0 million and $9.0 million in 2020, which partially depends on when Pierce and King counties are allowed to progress through the remaining reopening phases set forth by the Governor. To help close the revenue gap, the City implemented the following policy changes earlier this year; together, these changes account for year-to-date incremental revenue to the General Fund in the amount of $2.0 million. Policy Changes due to COVID-19:  Divert interest earnings for most funds to the General Fund for 2020 (retroactive to April). The year-to-date incremental revenue to the General Fund as a result of this policy change is an additional $216,000 in revenue.  No longer allocating a portion of Motor Vehicle Fuel Tax (MVFT) monies to the Arterial Street Fund for 2020 and, therefore, that portion of revenues from the state will stay in the General Fund. The funding source in 2020 for the Arterial Street Fund is being replaced with real estate excise tax (REET) monies. This policy change was made retroactive to January, and the year-to-date incremental revenue to the General Fund as a result of this policy change is $321,000.  The City will retain all utility tax revenues entirely in the General Fund for 2020 and replacing this funding source for the Arterial Street Preservation Fund with REET funds. This policy change, which was also made retroactive to January, has resulted in year-to date incremental revenue to the General Fund of $1.5 million. Notable variances to budget through September 2020 include:  Retail Sales Tax: The sales tax report through September 2020 (which is provided as an attachment to this report) reflects amounts remitted to the City of Auburn based on sales from November 2019 through July 2020. Revenue losses compared to the year prior were seen in several categories, most notably in the manufacturing, automotive, and services sectors. While sales tax revenues are down in some areas, there are some categories that exceeded expectations, most notably the construction category. Through Q3-2020, sales tax revenues are down 1.1%, or $147,000, compared to the same period last year. [pages 8-9] 3 Page 342 of 378 Quarterly Financial Report Through September 2020 4  Building permit revenues collected through September 2020 totaled $686,000 and were $229,000, or 50.2%, above budget and 9.4% higher than revenues collected through Q3-2019. While the “Stay Home, Stay Healthy” order earlier this year did impact building permit revenues, there were four significant commercial projects in the City that contributed to higher than anticipated revenues this year. The total number of building permits issued year-to-date totaled 371, which is 8.8% less than the number of permits issued through Q3-2019. [page 14]  Culture and recreation revenues collected through September totaled $1.3 million and were $893,000 less than what was collected through September 2019. These reduced revenues are a direct result of the COVID-19 pandemic whereby the City of Auburn essentially closed the majority of all Parks, Arts and Recreation activities and services effective March 6, 2020. While some activities have since resumed, these are at a reduced capacity, and other activities continue to be on hold, delayed, or canceled to comply with the Governor’s guidance for Washington’s Safe Start phased reopening plan. [pages 16, 18]  Rents and leases revenues to date totaled $386,000 and were $41,000, or 9.6%, below budget expectations and $407,000, or 51.3%, less than revenues collected through Q3- 2019. The majority of these revenues are derived from Parks, Arts and Recreation Department rentals such as golf carts, athletic fields, campsites and shelters, and meeting and event facilities – all of which were halted in March due to COVID-19 restrictions and had limited openings started in May. [page 20] 2020 General Fund expenditures through September 2020 totaled $52.3 million compared to a revised year-to-date budget of $59.5 million; this represents a $7.2 million, or 12.1%, favorable variance to budget. Due to the significant impact the COVID-19 pandemic has already had and will continue to have on the General Fund, the City implemented several mitigation strategies to close the gap for the projected revenue shortfall. These strategies included employee furloughs, hiring freezes on sixteen positions, voluntary early retirements, temporary benefit cuts, temporary lay-offs of temporary and seasonal employees, participation in the Shared Work Program for employees whose workload has slowed down, and specific departmental expenditure reductions in the areas of travel, training, and some service contracts. These expenditure cuts are reflected in the expenditures reported here. The majority of the expenditure savings through September was seen in salary costs, which were underspent by $3.1 million, and in benefit costs, which were underspent by $2.9 million. Savings in salaries were primarily related to position vacancies resulting, in large part, from the hiring freezes, layoffs, and participation in the Shared Work Program as noted above. Savings in benefit expenditures were due in part to position vacancies and also to the fact that the actual cost of providing medical benefits in 2020 were less than budgeted. 4 Page 343 of 378 Quarterly Financial Report Through September 2020 5 Street Funds: The City’s three street funds are special revenue funds wherein the revenue sources and expenditures are legally restricted. These funds are used for street capital construction projects, as well as local and arterial street repair and preservation projects. Historically, the majority of expenditures in all three street funds occur during the second half of the year when weather conditions are optimal for pavement construction. Variances in budget and actuals between years are generally due to the schedule and level of activity on projects in the fund, and the timing of grant reimbursements and other funding. Through September 2020, Arterial Street Fund revenues totaled $1.4 million as compared to collections of $1.5 million in the same period of 2019, while expenditures totaled $1.3 million as compared to expenditures of $1.6 million in 2019. [pages 23–24] Local Street Fund revenues of $1.5 million are in line with budget expectations and only $48,000 below collections through September 2019. Expenditures through September were $1.0 million as compared with $0.8 million in 2019. [pages 25–26] Lastly, Arterial Street Preservation Fund revenues totaled $2.2 million through September 2020, approximately $95,000 higher than year-to-date through September 2019. Expenditures totaled $1.2 million versus $2.4 million last year. [pages 27–28] 5 Page 344 of 378 Quarterly Financial Report Through September 2020 6 Enterprise Funds: The City’s enterprise funds account for operations with revenues primarily provided from user fees, charges or contracts for services. All City utilities transitioned from bimonthly to monthly usage billing starting in January 2019. Additionally, a new utility fee schedule also went into effect in January 2019. The Water Fund ended September 2020 with operating income of $4.5 million year-to-date, compared to $5.2 million last year. [page 30] The Sewer Fund finished September 2020 with operating income of $1.5 million year-to-date versus $2.2 million in 2019. This variance is primarily due to a one-time refund from the Department of Revenue last year, as well as lower commercial volumes. [page 31] Through September 2020 the Stormwater Fund had year-to-date operating income of $2.6 million compared to $2.3 million in 2019, largely due to the rate increase implemented in January. [page 31] The Solid Waste Fund finished September 2020 with year-to-date operating income of $200,000 compared to $300,000 in the same period last year. [pages 31-32] The Airport Fund experienced operating income of $405,000 year-to-date through September 2020, compared to $331,000 through September 2019. This variance is largely attributable to the purchase and sale of aviation fuel, an activity that was not previously directly managed by the City. [page 33] The Cemetery Fund had year-to-date operating income of $153,000 through September, compared to $146,000 through September 2019. [page 33] Internal Service Funds: Internal service funds provide services to other City departments and include functions such as Insurance, Worker’s Compensation, Facilities, Innovation & Technology, and Equipment Rental. No significant variances were reported in these funds during the period ending September 30, 2020. [page 34] 6 Page 345 of 378 Quarterly Financial Report Through September 2020 7 General Fund Revenues The combined total of property, sales/use, utility, gambling, and admissions taxes provides over 70% of all resources supporting general governmental activities. The following section provides additional information on these sources. Property Tax collections through September 2020 totaled $12.4 million and compare to a budget of $12.1 million. As depicted in the graphic below, the majority of property taxes are collected during the months of April and October, coinciding with the due dates for the County property tax billings. The COVID-19 pandemic is expected to have minimal, if any, impact to property tax revenues. $0.0 $2.0 $4.0 $6.0 $8.0 $10.0 $12.0 $14.0 $16.0 $18.0 $20.0 $22.0 $24.0 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov DecMillionsProperty Taxes 2020 Budget 2020 YTD Actual 2019 Actual $17.2 $17.9 $20.8 $21.4 $21.9 $12.4 $0.0 $5.0 $10.0 $15.0 $20.0 $25.0 2015 2016 2017 2018 2019 2020 YTDMillionsProperty Tax Revenue Actuals 7 Page 346 of 378 Quarterly Financial Report Through September 2020 8 Retail sales tax collections through September 2020 reflect taxes remitted to the City of Auburn based on sales from November 2019 through July 2020, which includes approximately one and a half months where all non-essential business were closed as part of the “Stay Home, Stay Healthy” order. In Budget Amendment No. 7 (approved in September), the budget for retail sales tax revenues for 2020 was reduced by $3.3 million to reflect revised expectations. As a result of COVID-related business shut-downs, sales tax revenues collected in Q2-2020 were 19.1% lower than sales taxes collected during the same period in 2019. Conversely, sales tax revenues collected in Q3-2020 were 8.1% higher than sales tax revenue collected during the same period last year, with the most notable increases seen in the construction and automotive categories. $0.0 $2.0 $4.0 $6.0 $8.0 $10.0 $12.0 $14.0 $16.0 $18.0 $20.0 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov DecMillionsRetail Sales & Use Tax 2020 Budget 2020 YTD Actual 2019 Actual 8 Page 347 of 378 Quarterly Financial Report Through September 2020 9 Note: The increase in sales tax revenue from 2018 to 2019 was primarily due to a policy change whereby sales tax on construction revenue stays in the General Fund starting in 2019. Of the year-over-year increase in sales tax revenue depicted in the graphic above from 2018 to 2019, $2.2 million of the $2.9 million increase was due to this policy change. The following table breaks out the City’s retail sales taxes by major business sector. Citywide retail sales tax revenue collected through Q3-2020 were $194,000, or 1.4%, less than revenues collected through Q3-2019. While most business sectors generated less revenue compared to last year, the construction and transportation & warehousing sectors generated higher revenues than the same period in 2019. $14.5 $14.6 $14.9 $15.9 $18.8 $13.7 $0.0 $2.0 $4.0 $6.0 $8.0 $10.0 $12.0 $14.0 $16.0 $18.0 $20.0 $22.0 2015 2016 2017 2018 2019 2020 YTDMillionsRetail Sales & Use Tax Actuals 2019 2020 Component Group Actual Actual Amount Construction 1,506,735$ 2,138,487$ 631,752$ 41.9 % Manufacturing 589,753 286,376 (303,378)$ (51.4) % Transportation & Warehousing 63,946 121,106 57,160$ 89.4 % Wholesale Trade 1,133,801 986,543 (147,258)$ (13.0) % Automotive 3,037,102 2,746,612 (290,491)$ (9.6) % Retail Trade 4,043,320 4,039,685 (3,635)$ (0.1) % Services 3,305,574 3,136,003 (169,572)$ (5.1) % Miscellaneous 192,684 223,631 30,947$ 16.1 % YTD Total 13,872,916$ 13,678,441$ (194,475)$ (1.4) % Comparison of Retail Sales Tax Collections by Group Through September Change from 2019 Percentage 9 Page 348 of 378 Quarterly Financial Report Through September 2020 10 Utility Taxes consist of interfund taxes on City utilities (Water, Sewer, Storm and Solid Waste) and taxes on external utilities (Electric, Natural Gas, Telephone and Solid Waste). Due to the fiscal impact of the COVID-19 pandemic, the City of Auburn implemented a policy change regarding how these utility tax revenues are recorded. Historically, these revenues were recorded in both the General Fund and the Arterial Street Preservation Fund. Effective in 2020 only and retroactive to January, the City is retaining 100% of the utility tax revenues in the General Fund. This will result in an additional $1.8 million in revenues in the General Fund by year-end to fund ongoing operations. Through Q3-2020, this policy change has resulted in an additional $1.5 million in utility tax revenue recorded to the General Fund. The table below demonstrates the various utility tax revenues and show year-to-date actuals compared to budget. $0.0 $2.0 $4.0 $6.0 $8.0 $10.0 $12.0 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov DecMillionsUtility Tax 2020 Budget 2020 YTD Actual 2019 Actual 2019 2020 2020 Utility Tax Type YTD Actual YTD Budget YTD Actual Amount Amount City Interfund Utility Taxes 3,026,859$ 3,384,100$ 3,413,691$ $ 386,832 12.8 % $ 29,591 0.9 % Electric 2,753,414 3,135,600 3,242,922 489,509 17.8 % 107,322 3.4 % Natural Gas 818,958 1,067,100 1,114,296 295,338 36.1 % 47,196 4.4 % Telephone 735,332 752,700 831,771 96,439 13.1 % 79,071 10.5 % Solid Waste (external) 109,116 115,920 166,230 57,114 52.3 % 50,310 43.4 % YTD Total 7,443,679$ 8,455,420$ 8,768,910$ $ 1,325,231 17.8 % $ 313,490 3.7 % Through September 2020 Utility Tax by Type 2020 vs. 2019 Actual 2020 vs. Budget Percentage Percentage 10 Page 349 of 378 Quarterly Financial Report Through September 2020 11 An admission tax of 5.0% is placed on charges for general admission, season tickets, cover charges, parking charges, etc. Admission tax revenue collected through Q3-2020 totaled $198,000 and compares to $334,000 collected through the same period last year. While there are only a handful of businesses that qualify to remit these taxes to the City, 75% of the tax revenue in this category is typically generated from Auburn Regal Theater located at the Outlet Collection mall. Due to the Governor’s orders relating to COVID-19, all of these revenues ceased during the shutdown, will continue to be significantly lower than normal until group activities are permitted, and may be limited for some period thereafter. Since the initial shutdown in March, the Governor has since allowed golf courses to reopen within certain limitations and the Auburn Golf Course reopened on May 5th. Revenues in this category collected since May are almost exclusively from admissions tax collected from the golf course. $9.7 $10.0 $10.2 $9.9 $9.6 $8.8 $0.0 $2.0 $4.0 $6.0 $8.0 $10.0 $12.0 2015 2016 2017 2018 2019 2020 YTDMillionsUtility Tax Revenues Actuals $0.0 $100.0 $200.0 $300.0 $400.0 $500.0 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov DecThousandsAdmission Tax 2020 Budget 2020 YTD Actual 2019 Actual 11 Page 350 of 378 Quarterly Financial Report Through September 2020 12 Gambling tax applies to all card games, punch board games, pull tabs, bingo games, raffles and amusement games played within City limits. Due to the Governor’s orders relating to COVID-19, these entertainment style activities are mostly on hold. Therefore, it is expected the revenues generated from gambling taxes this year will be significantly lower than normal. As depicted in the graphic below, revenues collected through September totaled $75,000 which was $202,000 less than collections through Q3-2019. The City charges an annual fee of $100 for a business license for each business that is located within the City. The City typically sends out the renewals for the following year around December of each year. Therefore, the majority of these revenues are collected in December for the following year or January in the current year. Through September 2020 these revenues totaled $148,000 and are $12,000, or 7.6% unfavorable to budget. It is anticipated that due to COVID- 19, there will be businesses that do not remit their renewals this year. $0.0 $100.0 $200.0 $300.0 $400.0 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov DecThousandsGambling Tax 2020 Budget 2020 YTD Actual 2019 Actual 12 Page 351 of 378 Quarterly Financial Report Through September 2020 13 $0 $50 $100 $150 $200 $250 $300 $350 $400 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov DecThousandsBusiness Licenses 2020 Budget 2020 YTD Actual 2019 Actual $282 $225 $163 $353 $336 $148 $0 $50 $100 $150 $200 $250 $300 $350 $400 2015 2016 2017 2018 2019 2020 YTDThousandsBusiness License Revenues Actuals 13 Page 352 of 378 Quarterly Financial Report Through September 2020 14 Building permit revenues collected through September 2020 totaled $686,000 and were $59,000, or 9.4%, higher than revenues collected through the same period last year. While these revenues were temporarily affected by COVID-19 due to the fact that construction was temporarily halted, there were several large projects that contributed to the higher revenues collected. Some of these projects include the replacement of Pioneer Elementary School, Auburn Elementary School #16, and the Bridge Point Warehouse. $0.0 $0.2 $0.4 $0.6 $0.8 $1.0 $1.2 $1.4 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov DecMillionsBuilding Permits 2020 Budget 2020 YTD Actual 2019 Actual $1.2 $2.0 $1.2 $0.9 $1.2 $0.7 $0.0 $0.5 $1.0 $1.5 $2.0 $2.5 2015 2016 2017 2018 2019 2020 YTDMillionsBuilding Permits Actuals 14 Page 353 of 378 Quarterly Financial Report Through September 2020 15 Intergovernmental revenues include grants (direct and indirect federal, state and local), revenue from the Muckleshoot Indian Tribe (MIT) compact as well as state shared revenues. Collections through Q3-2020 totaled $4.5 million and were $577,000 above budget expectations. The majority of the favorable variance to budget was seen in the contributions from Muckleshoot Casino for services related to police calls for service, court related prosecutions, and street maintenance. Due to COVID-19 and the “Stay Home, Stay Healthy” order, many people have drastically reduced their driving patterns therefore fuel consumption has and will continue to be low compared to historical usage. To mitigate the revenue loss, the City of Auburn implemented a policy change for 2020 (retroactive to January) where motor vehicle fuel tax revenues (MVFT) that have historically benefitted the Arterial Street Fund are being retained in the General Fund. Through Q3-2020, the policy change has resulted in an additional $321,000 in MVFT monies in the General Fund. Streamlined Sales Tax (SST) revenue is a state shared revenue that was granted in 2008 as a way for cities to offset the negative fiscal impact of the Streamlined Sales and Use Tax Agreement, also known as ‘destination sourcing’. The City of Auburn had expected to receive these monies through Q2-2021. In an effort for the state to close the revenue gap due to COVID- 19, in April 2020, the state announced it will discontinue any SST distributions after Q2-2020. This loss of revenue represents a loss of $460,000 to the City of Auburn in 2020. The City of Auburn received the final remittance from the state in June 2020, which totaled $250,000. 2019 2020 2020 Revenue YTD Actual YTD Budget YTD Actual Amount Amount Federal Grants 173,444$ 247,200$ 272,782$ $ 99,338 57.3 % $ 25,582 10.3 % State Grants 148,776 102,500 140,207 (8,570) (5.8) % 37,707 36.8 % Interlocal Grants 38,888 171,900 205,373 166,484 0.0 % 33,473 19.5 % Muckleshoot Casino Services 908,419 669,967 1,020,419 112,000 12.3 % 350,452 52.3 % State Shared Revenues: Streamlined Sales Tax 1,304,831 490,000 494,830 (810,002) (62.1) % 4,830 1.0 % Motor Vehicle Fuel Tax 867,456 1,059,000 1,051,874 184,417 21.3 % (7,126) (0.7) % Criminal Justice - High Crime 169,308 150,000 168,992 (316) (0.2) % 18,992 12.7 % Criminal Justice - Population 17,958 17,000 18,997 1,039 5.8 % 11.7 % Criminal Justice - Special Prog. 64,666 62,500 68,053 3,388 5.2 % 5,553 8.9 % Marijuana Excise Tax 135,977 101,250 130,716 (5,261) (3.9) % 29,466 29.1 % State DUI 8,548 8,700 8,619 72 0.8 % (81) (0.9) % Fire Insurance Tax 80,386 78,900 85,819 5,433 6.8 % 6,919 8.8 % Liquor Excise 322,324 295,243 371,283 48,959 15.2 % 76,040 25.8 % Liquor Profit 492,877 499,125 491,980 (897) (0.2) % (7,145) (1.4) % Total State Shared: 3,464,332 2,761,718 2,891,163 (573,168) (16.5) % 129,445 4.7 % YTD Total 4,733,859$ 3,953,285$ 4,529,943$ (203,916)$ (4.3) % 576,659$ 14.6 % Through September 2020 Intergovernmental Revenues (Grants, Entitlements & Services) 2020 vs. 2019 Actual 2020 vs. Budget % Change % Change 15 Page 354 of 378 Quarterly Financial Report Through September 2020 16 Charges for Services consist of general governmental service charges, public safety charges, development service fees, and culture and recreation fees. Total charges for services collected through September 2020 totaled $5.0 million and were $525,000, or 11.7%, favorable to budget. The General Government revenue category primarily includes the interfund assessment for the salary and benefit costs for support departments (Finance, Human Resources and the Legal Department). Salary and benefit costs for these support departments are charged to the respective General Fund home department and the offsetting revenues for that support personnel is recouped from other funds into the General Fund. $5.3 $5.7 $6.1 $6.3 $6.0 $4.5 $0 $1 $2 $3 $4 $5 $6 $7 $8 2015 2016 2017 2018 2019 2020 YTDMillionsIntergovernmental Revenues (Grants, Entitlements & Services) Actuals 2019 2020 2020 Revenue YTD Actual YTD Budget YTD Actual Amount Amount General Government 1,944,889$ 2,032,510$ 2,234,136$ $ 289,247 14.9 % $ 201,626 9.9 % Public Safety 847,021 723,000 704,263 (142,758) (16.9) % (18,737) (2.6) % Development Services 850,551 475,100 754,150 (96,400) (11.3) % 279,050 58.7 % Culture & Recreation 2,224,932 1,269,200 1,332,318 (892,614) (40.1) % 63,118 5.0 % YTD Total 5,867,392$ 4,499,810$ 5,024,867$ (842,526)$ (14.4) % $ 525,057 11.7 % Through September 2020 Charges for Services by Type 2020 vs. 2019 Actual 2020 vs. Budget Percentage Percentage 16 Page 355 of 378 Quarterly Financial Report Through September 2020 17 Public safety revenues mostly consist of revenues for law enforcement services. Law enforcement services include revenues received for extra duty security services, whereby police officers are contracted for and reimbursement is made by the hiring agency. This category also includes reimbursements from the Muckleshoot Indian Tribe (MIT) for a full-time dedicated police officer and associated expenditures as well as monies collected from the Auburn School District and the Criminal Justice Training Commission (CJTC) for services rendered. Law enforcement service revenues collected through September totaled $704,000 and were $19,000 or 2.6% unfavorable to budget expectations. It is anticipated that this revenue will continue to be lower than collections last year as some businesses who utilize these services will not require security services due to business closures. Development services fee collections consist primarily of plan check fees, facility extension charges, and zoning and subdivision fees. Through Q3-2020, development service fees totaled $754,000, and were $279,000 favorable to budget expectations. The favorable variance to budget was seen primarily in facility extension charges, which generated $342,000 in revenue through Q3-2020. Part of this favorable variance to budget was due to a sizable change in the fee schedule for this service. Plan check revenues collected year-to-date totaled $318,000 and were approximately $163,000 less than the amount collected through the same period last year. Plan check revenues to date include numerous commercial and residential projects including Auburn Elementary School #16, the replacement of Pioneer Elementary School, Legacy Plaza, Copper Gate Apartments, projects at Boeing, as well as single family residential projects including the Pulte Homes development. $0.0 $0.2 $0.4 $0.6 $0.8 $1.0 $1.2 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov DecMillionsDevelopment Service Fees 2020 Budget 2020 YTD Actual 2019 Actual 17 Page 356 of 378 Quarterly Financial Report Through September 2020 18 The majority of culture and recreation revenues is derived from greens fees and pro shop sales at the Auburn Golf Course, recreational classes, ticket sales at the Auburn Avenue Theater, senior programs and special events. Due to COVID-19, all of these activities were suspended in March. Effective May 5th, the Auburn Golf Course reopened with restrictions but there are numerous other culture and recreation activities that are still suspended or have been significantly modified. Therefore, culture and recreation revenues collected through September 2020 totaled $1.3 million as compared to $2.2 million collected through the same period last year. Fines & Penalties include civil penalties (such as code compliance fines), parking and traffic infraction penalties, criminal fines (including criminal traffic, criminal non-traffic and other criminal offenses) as well as non-court fines such as false alarm fines. Total revenues collected through Q3-2020 totaled $476,000 compared to a budget of $498,000 and were 4.6% below budget expectations. $0.0 $0.2 $0.4 $0.6 $0.8 $1.0 $1.2 $1.4 $1.6 $1.8 $2.0 $2.2 $2.4 $2.6 $2.8 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov DecMillionsCulture & Recreation 2020 Budget 2020 YTD Actual 2019 Actual 2019 2020 2020 Month YTD Actual YTD Budget YTD Actual Amount Amount Civil Penalties 64,560$ 11,250$ 21,857$ $ (42,703) (66.1) % $ 10,607 94.3 % Civil Infraction Penalties 328,685 275,900 205,250 (123,435) (37.6) % (70,650) (25.6) % Redflex Photo Enforcement 2,672 0 1,182 (1,490) (55.8) % 1,182 N/A % Parking Infractions 96,758 53,500 54,982 (41,776) (43.2) % 1,482 2.8 % Criminal Traffic Misdemeanor 27,982 42,800 15,530 (12,453) (44.5) % (27,270) (63.7) % Criminal Non-Traffic Fines 46,259 33,600 17,773 (28,486) (61.6) % (15,827) (47.1) % Criminal Costs 14,966 39,300 14,725 (241) (1.6) % (24,575) (62.5) % Non-Court Fines & Penalties 60,187 41,900 144,220 84,034 139.6 % 102,320 244.2 % YTD Total 642,069$ 498,250$ 475,518$ $ (166,550) (25.9) % $ (22,732) (4.6) % Through September 2020 Fines & Penalties by Type 2020 vs. 2019 Actual 2020 vs. Budget Percentage Percentage 18 Page 357 of 378 Quarterly Financial Report Through September 2020 19 $0.0 $0.1 $0.2 $0.3 $0.4 $0.5 $0.6 $0.7 $0.8 $0.9 $1.0 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov DecMillionsFines & Penalties 2020 Budget 2020 YTD Actual 2019 Actual $0.9 $0.9 $0.9 $0.9 $0.9 $0.5 $0.0 $0.2 $0.4 $0.6 $0.8 $1.0 $1.2 $1.4 $1.6 2015 2016 2017 2018 2019 2020 YTDMillionsFines & Penalties Actuals 19 Page 358 of 378 Quarterly Financial Report Through September 2020 20 Miscellaneous revenues consist of investment earnings, income from facility rentals, revenue collected on golf cart rentals at the Auburn Golf Course, contributions and donations, and other income including the quarterly purchasing card (P-card) rebate monies. Revenues collected through Q3-2020 in this category totaled $963,000 and were under budget expectations by $173,000, or 15.2%. The majority of the unfavorable variance to budget was in the interest and investments category. As noted on page 3 of this report, the City has implemented a temporary policy change where the majority of interest earnings for most funds are being diverted to the General Fund (retroactive to April 2020). The year-to-date incremental revenue to the General Fund as a result of this policy change is an additional $216,000 in revenue. While the budget has been increased to reflect this policy change, the unfavorable variance to budget is primarily due to the drastic decline in the State Investment Pool Interest rate, which started out at the beginning of 2020 at 1.7%, but which has declined each month and is currently at 0.2%. The rents and leases revenue category is primarily rental revenue generated from campsites and park shelters, rentals of the athletic fields, and rentals of meeting and event rooms. Due to COVID-19, facility rental revenue abruptly halted in March as the facilities closed. The rents and leases category also includes revenue generated from golf cart rentals at the Auburn Golf Course; due to the “Stay Home, Stay Healthy” order, the golf course was closed from March 25th through May 4th which also contributed to the revenue loss in this category. 2019 2020 2020 Month YTD Actual YTD Budget YTD Actual Amount Amount Interest & Investments 291,861$ 493,680$ 377,313$ 85,452$ 29.3 % (116,367)$ (23.6) % Rents & Leases 793,273 426,800 386,007 (407,266) (51.3) % (40,793) (9.6) % Contributions & Donations 26,539 37,000 28,876 2,336 8.8 % (8,124) (22.0) % Other Miscellaneous Revenue 330,377 179,100 171,276 (159,101) (48.2) % (7,824) (4.4) % YTD Total 1,442,050$ 1,136,580$ 963,472$ (478,578)$ (33.2) % (173,108)$ (15.2) % Miscellaneous Revenues by Type Through September 2020 2020 vs. 2019 2020 vs. Budget Percentage Percentage 20 Page 359 of 378 Quarterly Financial Report Through September 2020 21 Real Estate Excise Tax (REET) revenue is receipted into the Capital Improvement Projects Fund and is used for governmental capital projects. REET revenue represents taxes on the sale of both commercial properties and single-family residences. REET revenues collected through September 2020 totaled $2.8 million, exceeding budget expectations by $925,000. Sales activity through this reporting period includes the sale of several warehouses, an office complex, retail businesses, multi-family complexes, single family homes, and vacant land. 2019 2020 2020 Month Actual Budget Actual Amount Amount Jan 387,084$ 208,500$ 214,936$ (172,147)$ (44.5) % 6,436$ 3.1 % Feb 208,857 208,500 455,986 247,129 118.3 % 247,486 118.7 % Mar 232,233 208,500 214,029 (18,204) (7.8) % 5,529 2.7 % Apr 318,475 208,500 273,949 (44,526) (14.0) % 65,449 31.4 % May 375,246 208,500 245,815 (129,431) (34.5) % 37,315 17.9 % Jun 481,934 208,500 288,495 (193,440) (40.1) % 79,995 38.4 % Jul 352,378 208,500 392,753 40,375 11.5 % 184,253 88.4 % Aug 452,068 208,500 368,252 (83,815) (18.5) % 159,752 76.6 % Sep 400,173 208,500 346,819 (53,354) (13.3) % 138,319 66.3 % Oct 414,124 208,500 #N/A #N/A #N/A % #N/A #N/A % Nov 1,046,103 208,500 #N/A #N/A #N/A % #N/A #N/A % Dec 553,301 208,900 #N/A #N/A #N/A % #N/A #N/A % YTD Total 3,208,447$ 1,876,500$ 2,801,035$ (407,413)$ (12.7) % 924,535$ 49.3 % Real Estate Excise Tax Revenues September 2020 2020 vs. 2019 2020 vs. Budget Percentage Percentage $0.0 $0.5 $1.0 $1.5 $2.0 $2.5 $3.0 $3.5 $4.0 $4.5 $5.0 $5.5 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov DecMillionsReal Estate Excise Tax 2020 Budget 2020 YTD Actual 2019 Actual 21 Page 360 of 378 Quarterly Financial Report Through September 2020 22 $4.6 $4.3 $3.6 $3.8 $5.2 $2.8 $0.0 $1.0 $2.0 $3.0 $4.0 $5.0 $6.0 2015 2016 2017 2018 2019 2020 YTDMillionsReal Estate Excise Tax Revenues Actuals 22 Page 361 of 378 Quarterly Financial Report Through September 2020 23 Street Funds This section provides a financial overview of the City’s three street funds for the period ending September 30, 2020. The City’s three street funds include the Arterial Street Fund (Fund 102), the Local Street Fund (Fund 103), and the Arterial Street Preservation Fund (Fund 105). Fund 102 – Arterial Street Fund The Arterial Street Fund is a special revenue fund that is funded by transportation grants, traffic impact fees, a portion of the City’s gas tax receipts, Public Works Trust Fund loans, developer contributions, and other sources. As of September 30, 2020 there were 25 separate street projects budgeted in this fund. Through September 2020, revenues collected totaled $1.4 million as compared to collections of $1.5 million through September last year. Total expenditures through September were $1.3 million as compared to $1.6 expended through September 2019. Variances in revenues and expenditures are largely due to the timing of capital expenditures and any subsequent reimbursement via grants and/or operating transfers. Expenditure timing is generally determined by the current phase of each individual capital project; expenditures tend to increase as projects move from design phase into construction. Fund 102 - Arterial Street 2019 Summary of Sources and Uses 2020 2020 YTD 2020 YTD 2019 YTD Report Period: September 2020 Budget Budget Actual Actual Amount Revenues Federal Grants 5,535,770$ 3,787,825$ 130,624$ 492,609$ (3,657,201)$ (96.6) % State And Local Grants 730,000 510,000 - - (510,000) (100.0) % Motor Vehicle Fuel and Multimodal Taxes 197,000 143,021 83,551 457,355 (59,470) (41.6) % Developer Contributions - - - - - Miscellaneous Revenue - - 14,469 - 14,469 Operating Transfer In 3,370,194 2,358,141 1,147,876 559,429 (1,210,265) (51.3) % Investment Income 11,600 8,603 7,660 33,964 (943) (11.0) % Total Revenues 9,844,564$ 7,017,590$ 1,384,180$ 1,543,357$ (5,633,411)$ (80.3) % Expenditures Salary and Benefits 397,000$ 294,918$ 384,691$ 203,838$ (89,773)$ (30.4) % Capital Outlay 10,096,046 7,662,283 535,036 915,970 7,127,247 93.0 % Subtotal - Capital Project Expenditures 10,493,046 7,957,201 919,728 1,119,808 7,037,473 88.4 % Services and Charges 400,000 181,187 139,247 89,455 41,939 23.1 % Interfund Payments for Services 80,100 60,075 60,075 58,575 - 0.0 % Debt Service Principal and Interest 207,600 207,600 207,428 208,122 172 0.1 % Operating Transfer Out - - - 143,196 - Total Expenditures 11,180,746$ 8,406,063$ 1,326,478$ 1,619,156$ 7,079,585$ 84.2 % Net Change in Fund Balance (1,336,182)$ (1,388,472)$ 57,702$ (75,800)$ 1,446,174$ 104.2 % Beg. Fund Balance, January 2020 1,970,223$ Net Change in Fund Balance, September 2020 57,702 Ending Fund Balance, September 2020 2,027,925$ 2020 Budgeted Ending Fund Balance 634,041$ 2020 2020 YTD Budget vs. Actual Favorable (Unfavorable) Percentage 23 Page 362 of 378 Quarterly Financial Report Through September 2020 24 The table below presents the status of the projects with the most significant budget impact on the fund. Many capital projects are budgeted over multiple years; what is displayed below is the 2020 portion of each project’s budget and year-to-date expenditures. Note: The Lea Hill Safe Routes to Schools project was originally programmed assuming grant funding that has not yet been received in the competitive process. $0.0 $2.0 $4.0 $6.0 $8.0 $10.0 $12.0 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov DecMillionsFund 102 - Capital Project Expenditures 2020 YTD Budget 2020 YTD Actual 2019 YTD Actual 2020 YTD Actual: $0.9M 2020 Budget: $10.5M 2019 YTD Actual: $1.1M Name 2020 Budget YTD Actual Remaining F Street SE Non-Motorized Improvements $2.9M $0.4M $2.5M AWS Improvements - Hemlock St SE to Poplar St SE $2.2M $0.1M $2.1M Lea Hill Safe Routes to Schools $1.4M $0.0M $1.4M All Other Projects (22 Others Budgeted)$3.9M $0.4M $3.5M Total $10.5M $0.9M $9.6M *Components may not sum to total due to rounding. Fund 102 - Arterial Street Capital Projects Status * 24 Page 363 of 378 Quarterly Financial Report Through September 2020 25 Fund 103 – Local Street Fund The Local Street Fund is a special revenue fund used for local street preservation. Effective January 1, 2019 through 2020 this fund is funded at a specific annual amount by real estate excise tax (REET 2) whereas, previously, the funding source was sales tax on construction. Expenditures through September were $1.0 million and compare to expenditures of $783,000 in the same period last year. Highlighted in the table below and shown in the following graph are the fund’s total expenditures related to capital projects. Fund 103 - Local Street Fund 2019 Summary of Sources and Uses 2020 2020 YTD 2020 YTD 2019 YTD Report Period: September 2020 Budget Budget Actual Actual Amount Revenues Sales Tax on Construction -$ -$ -$ -$ -$ Operating Transfer In 1,900,000 1,462,500 1,462,500$ 1,462,500 - 0.0 % Interest Earnings - - 10,301$ 58,470 10,301 Total Revenues 1,900,000$ 1,462,500$ 1,472,801$ 1,520,970$ 10,301$ 0.7 % Expenditures Capital Salary and Benefits 162,391 116,201 98,155 57,056 18,046 15.5 % Capital Services and Charges Capital Outlay 2,950,143 1,398,842 884,929 682,281 513,914 36.7 % Subtotal - Capital Project Expenditures 3,112,534 1,515,044 983,084 739,337 531,960 35.1 % Admin Salary and Benefits - - 14,722 13,667 (14,722)$ Admin Services and Charges 700 607 361 19,066 247 40.6 % Interfund Payments for Services 15,600 11,700 11,700 11,400 - 0.0 % Operating Transfer Out - - - - - Total Expenditures 3,128,834$ 1,527,351$ 1,009,866$ 783,469$ 517,485$ 33.9 % Net Change in Fund Balance (1,228,834)$ (64,851)$ 462,935$ 737,501$ 527,786$ 813.8 % Beg. Fund Balance, January 2020 2,550,612$ Net Change in Fund Balance, September 2020 462,935 Ending Fund Balance, September 2020 3,013,547$ 2020 Budgeted Ending Fund Balance 1,321,778$ 2020 2020 YTD Budget vs. Actual Favorable (Unfavorable) Percentage 25 Page 364 of 378 Quarterly Financial Report Through September 2020 26 The table below presents the status of the projects with the most significant budget impact on the fund. Many capital projects are budgeted over multiple years; what is displayed below is the 2020 portion of each project’s budget and year-to-date expenditures. $0.0 $0.5 $1.0 $1.5 $2.0 $2.5 $3.0 $3.5 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov DecMillionsFund 103 - Capital Project Expenditures 2020 YTD Budget 2020 YTD Actual 2019 YTD Actual 2020 Budget : $3.1M 2019 YTD Actual: $0.7M 2020 YTD Actual: $1.0M Name 2020 Budget YTD Actual Remaining 2020 Local Street Reconstruction $1.6M $0.7M $0.9M 2019 Local Street Reconstruction $0.8M $0.3M $0.6M 2021 Local Street Preservation $0.7M $0.0M $0.7M All Other Projects (2 Others Budgeted)$0.0M $0.0M $0.0M Total $3.1M $1.0M $2.1M *Components may not sum to total due to rounding. Fund 103 - Local Street Capital Projects Status* 26 Page 365 of 378 Quarterly Financial Report Through September 2020 27 Fund 105 – Arterial Street Preservation Fund The Arterial Street Preservation Fund is a special revenue fund that is primarily funded by a 1.0% utility tax that was adopted by Council in 2008; these utility tax revenues are restricted for arterial street repair and preservation projects. In 2020, due to COVID-19 impacts, the funding source will be from REET 2 revenues and the 1.0% utility tax will be retained in the General Fund. Major projects budgeted within the Arterial Street Preservation Fund in 2020 include Auburn Way North Preservation (Phase 2), Auburn Way North Preservation (Phase 3) and 2020 Arterial Street Preservation. Through September 2020 revenues totaled $2.2 million, which is approximately $95,000 higher than the same period last year. This is primarily due to the timing associated with construction projects and their subsequent cost reimbursements from grants and transfers-in. Expenditures through September were $1.2 million as compared to $2.4 million through last September. Historically, the majority of this fund’s expenditures occur in the second half of each year due to the weather sensitivity of pavement construction (this work needs to be done primarily in the summer and early fall). Highlighted in the table below and shown in the following graph are the fund’s total expenditures related to capital projects. Fund 105 - Arterial Street Preservation 2019 Summary of Sources and Uses 2020 2020 YTD 2020 YTD 2019 YTD Report Period: September 2020 Budget Budget Actual Actual Amount Revenues City Utility Tax 66,900$ 50,103$ -$ 504,476$ (50,103)$ (100.0) % Electric Utility Tax 69,900 53,788 - 550,683 (53,788) (100.0) % Natural Gas Utility Tax 19,800 17,538 - 163,792 (17,538) (100.0) % Cable TV Tax 18,800 14,106 - 146,294 (14,106) (100.0) % Telephone Utility Tax 16,100 12,316 - 147,066 (12,316) (100.0) % Garbage Utility Tax (External Haulers)2,200 1,650 - 18,186 (1,650) (100.0) % Grants 3,880,589 1,592,461 348,331 84,617 (1,244,130) (78.1) % Developer Mitigation Fees - - - - - Operating Transfer In 2,618,020 1,061,263 1,891,551 500,338 830,288 78.2 % Interest Earnings 13,000 9,750 7,297 36,365 (2,453) (25.2) % Total Revenues 6,705,309$ 2,812,974$ 2,247,179$ 2,151,818$ (565,795)$ (20.1) % Expenditures Salary and Benefits 306,000$ 230,905$ 412,922$ 438,878$ (182,017)$ (78.8) % Capital Outlay 6,903,224 4,154,925 772,074 1,894,227 3,382,851 81.4 % Subtotal - Capital Project Expenditures 7,209,224 4,385,830 1,184,996 2,333,106 3,200,834 73.0 % Supplies - - - - - Services and Charges - - 985 18,529 (985) Operating Transfer Out - - - - - Total Expenditures 7,209,224$ 4,385,830$ 1,185,980$ 2,351,635$ 3,199,850$ 73.0 % Net Change in Fund Balance (503,915)$ (1,572,856)$ 1,061,199$ (199,817)$ 2,634,054$ 167.5 % Beg. Fund Balance, January 2020 2,041,919$ Net Change in Fund Balance, September 2020 1,061,199 Ending Fund Balance, September 2020 3,103,118$ 2020 Budgeted Ending Fund Balance 1,538,004$ 2020 2020 YTD Budget vs. Actual Favorable (Unfavorable) Percentage 27 Page 366 of 378 Quarterly Financial Report Through September 2020 28 The table below presents the status of the projects with the most significant budget impact on the fund. Many capital projects are budgeted over multiple years; what is displayed below is the 2020 portion of each project’s budget and year-to-date expenditures. $0.0 $1.0 $2.0 $3.0 $4.0 $5.0 $6.0 $7.0 $8.0 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov DecMillionsFund 105 - Capital Project Expenditures 2020 YTD Budget 2020 YTD Actual 2019 YTD Actual 2020 Budget: $7.2M 2019 YTD Actual: $2.3M 2020 YTD Actual: $1.2M Name 2020 Budget YTD Actual Remaining AWN Preservation Phase 3 $1.8M $0.4M $1.5M AWN Preservation Phase 2 $1.5M $0.2M $1.3M 2020 Arterial Street Preservation $0.9M $0.1M $0.8M All Other Projects (4 Others Budgeted)$3.0M $0.6M $2.4M Total $7.2M $1.2M $6.0M *Components may not sum to total due to rounding. Capital Projects Status* Fund 105 - Arterial Street Preservation 28 Page 367 of 378 Quarterly Financial Report Through September 2020 29 Fund 124 – Mitigation Fees The Mitigation Fees Fund is a special revenue fund funded from revenues from fees for new development that are assessed at the time applications are received for development activity. These revenues are used to address costs associated with City growth. The fund houses two types of revenues: mitigation fees and impact fees. Mitigation fees are variable charges collected as a result of State Environmental Policy Act (SEPA) reviews and the City’s determination that a project must pay additional fees to compensate for a unique effect that it has on the community. Impact fees are set charges collected automatically for a variety of projects. These fees are adopted annually by the City Council based on projects anticipated in the Capital Facilities Plan over the next six years. The City received $1.7 million in revenues in through September 2020, which exceeds total revenue budgeted for the year. With the exception of interest and investment income, each revenue category has exceeded its annual budgeted amount. Expenditures were significantly below budget due to the timing of capital projects funded by mitigation and/or impact fee revenues. Fund 124 - Mitigation Fees Summary of Sources and Uses Report Period Through:Ending Ending September 2020 Fund Balance Fund Balance Transportation Impact Fees 800,000$ 2,952,194$ 5,541,320$ 1,193,203$ 724,876$ 8,161,840$ Traffic Migitation Fees - - 123,687 13,622 - 137,309 Fire Impact Fees 100,000 75,000 473,889 121,545 - 570,434 Fire Mitigation Fees - - 81 - - 81 Parks Impact Fees 200,000 2,121,728 3,382,966 206,500 220,458 5,290,736 Parks Mitigation Fees - 300,000 49,371 129,591 300,000 178,962 School Impact Admin Fees 2,000 - 86,251 3,160 - 87,411 Wetland Mitigation Fees - 5,000 67,581 - - 72,581 Interest and Investment Income 204,700 - 204,700 57,118 - 57,118 Fees in Lieu of Improvements - - 27,020 - - 27,020 Operating Transfers-In - - - - - - Total 1,306,700$ 5,453,922$ 9,956,866$ 1,724,739$ 1,245,334$ 14,583,494$ Beginning Fund Balance, January 2020 14,104,088$ Net Change in Fund Balance, September 2020 479,406 Ending Fund Balance, September 2020 14,583,494$ 2020 Budgeted Ending Fund Balance 9,956,866$ YTD ACTUALSBUDGET Revenues ExpendituresRevenues Expenditures 29 Page 368 of 378 Quarterly Financial Report Through September 2020 30 Enterprise Funds Detailed income and expense statements for Enterprise and Internal Service funds can be found in an attachment at the end of this report. The attachment provides operating and – as applicable – capital fund reports for these funds showing budget, actuals, and variances. Operating funds house all the operating costs along with debt service and financing obligations. Capital funds show costs associated with capital acquisition and construction. Both the operating and capital funds have a working capital balance. This approach isolates those funds available for capital and cash flow needs for daily operations, and project managers will know exactly how much working capital is available for current and planned projects. Through September the Water Utility had operating income of $4.5 million as compared to $5.2 million through September 2019. Total Water Fund operating revenues were $657,000 lower than 2019; the majority of this variance is due to weaker performance in water sales. Increases in residential sales revenue were more than offset by decreases in most other categories, particularly commercial, irrigation and manufacturing. Also contributing to the reduced operating income is a decrease in interest earnings from 2019 to 2020. Operating expenditures in 2020 were materially the same as the same period in 2019. Water sales by volume through September totaled 2.2 million hundred cubic feet (ccf) as compared to 2.4 million ccf in 2019, a decrease of 7.7%. Consumption has been lower each month in 2020 compared to 2019 with the exception of the March and September billings for the prior months’ consumption. Total consumption decreased across all non-residential categories, resulting in the lowest YTD consumption in a five-year period. This is in line with a trend of decreased year-over-year consumption on a per account basis due largely to conservation efforts and appliance efficiency improvements, which are anticipated in the Utilities Comprehensive Plan. COVID-19 mitigation efforts contributed to the decrease in commercial and manufacturing consumption, as many businesses were required to close or operate at reduced capacity. 0 100,000 200,000 300,000 400,000 500,000 600,000 700,000 800,000 900,000 1,000,000 $0 $200 $400 $600 $800 $1,000 $1,200 $1,400 $1,600 $1,800 $2,000 CCFThousandsWater Revenues vs Water Sold 2020 vs 2019 2019 Water Sales ($) 2020 Water Sales ($) 2019 Water Sold (ccf) 2020 Water Sold (ccf) 30 Page 369 of 378 Quarterly Financial Report Through September 2020 31 Through September, the Sewer Utility finished with operating income of $1.5 million as compared to $2.2 million through September 2019. Last year the fund saw a one-time $203,000 refund from the Department of Revenue for overpayment of excise tax that significantly increased YTD revenues. Consumption by volume through September 2020 is down 11.6% from 2019 due to reductions in commercial consumption, which was exacerbated by COVID-19 mitigation efforts. This resulted in a decrease of $197,000 in sewer service revenue. Operating expenditures in the Sewer Utility were above the same period in 2019 due to the timing of intergovernmental payments and increases in interfund allocations. Through September, the Stormwater Utility had operating income of $2.6 million compared with $2.3 million through September 2019. Operating revenues were up $130,000 compared to 2019 mainly due to charges for City storm service. As most Stormwater Utility charges are flat rate, COVID-19 has not had a significant effect on service revenue. Operating expenditures in the Stormwater Utility were down $179,000 from 2019, contributing to the higher operating income noted above. This variance is mainly due to the timing of certain intergovernmental expenditures. Through September 2020 the Solid Waste Utility Fund had $11.4 million in operating revenues, compared to $11.2 million in operating expenditures. The City of Auburn’s Solid Waste services are outsourced to Waste Management and to Republic Services, who manages the contract for the annexed areas. Through September 2020, Waste Management serviced 15,532 customers (79% of customers) and Republic Services serviced 4,183 customers (21% of customers). The current mix of solid waste customer account types is:  89.8% Residential  7.8% Commercial  2.4% Multifamily The “diversion rate” is a measure of how much generated waste is not sent to the landfill; i.e., waste that is either recycled or collected yard waste. Through September 2020, the total diversion rate was 30.7%, which represents a total of 15,400 tons of waste that was diverted from landfills. 31 Page 370 of 378 Quarterly Financial Report Through September 2020 32 2020 Tons Collected and Diversion Rates Of the total tonnage collected through September, 37% was from residential customers, 16% from multifamily customers, and 47% from commercial customers, as shown in the following graph: 32 Page 371 of 378 Quarterly Financial Report Through September 2020 33 In January 2019, the Auburn Municipal Airport transitioned from contracted management services through a third-party management company, Airport Management Group (AMG), to management of the Airport by City staff. Through September 2020, the Airport Fund had operating income of $405,000 as compared with operating income of $331,000 through September 2019. Operating revenues in the Airport Fund were $20,000 more than the same period last year, largely due to increased revenue for property leases and tie down and hangar rent. Operating expenditures in the Airport Fund were $54,000 less than the same period last year. A large portion of this decrease is due to the purchase of aviation fuel for resale in 2019; fuel purchases in 2020 have been significantly lower. The remaining variance consists largely of payroll expenditures, which have decreased due to a vacant position at the Airport. Through September 2020, the Cemetery Fund experienced operating income of $153,000 as compared with an operating income of $146,000 through September 2019. Total sales revenue is down $9,000, with significantly less revenues occurring in March and May of 2020 than the same period in 2019. Overall, operating revenues are down by $21,000, or 1.9% while operating expenditures are down $29,000 or 3.0% from last year due largely to lower expenditures for inventory purchases and repairs and maintenance. $0 $200 $400 $600 $800 $1,000 $1,200 $1,400 $1,600 ThousandsCEMETERY 2020 Budgeted Revenue 2020 YTD Actual Revenue 2019 Actual Revenue 2020 YTD Actual Expenses Cumulative Revenues & Expenditures 2020 Budget vs. Actual 33 Page 372 of 378 Quarterly Financial Report Through September 2020 34 Internal Service Funds Operating expenditures within the Insurance Fund represent the premium cost pool that will be allocated monthly to other City funds over the course of the year. As a result, the expenditure balance gradually diminishes each month throughout the year. No significant variances are reported in the Workers’ Compensation, Facilities, Innovation & Technology, or Equipment Rental Funds. Contact Information This report is prepared by the Finance Department. Additional financial information can also be viewed at our website: http://www.auburnwa.gov/. For any questions about this report please contact Jamie Thomas at jdthomas@auburnwa.gov. 34 Page 373 of 378 Investment Purchase Book Maturity Yield to Type Date Value Date Maturity State Investment Pool Various 120,639,922$ Various 0.21% KeyBank Money Market Various 14,013,737 Various 0.01% OpusBank Public Interest Acct Various 10,534,157 Various 0.24% FFCB 12/30/2019 1,999,618 12/30/2020 1.63% FFCB 8/27/2018 2,025,600 2/23/2021 2.70% RFCSP 2/19/2019 5,146,514 1/15/2021 2.52% RFCSP 5/9/2019 5,097,353 10/15/2020 2.23% STRIPS 7/26/2019 5,046,067 11/15/2020 1.83% FHLB 1/17/2020 5,044,370 12/9/2022 1.56% Total Cash & Investments 169,547,337$ 0.458% Investment Mix % of Total State Investment Pool 71.2%Current 6-month treasury rate 0.12% Key Bank Money Market 8.3%Current State Pool rate 0.21% Opus Bank Public Interest Acct 6.2%KeyBank Money Market 0.01% FHLB 3.0%OpusBank Public Interest Acct 0.24% FFCB 2.4%Blended Auburn rate 0.46% RFCSP 6.0% STRIPS 3.0% 100.0% City of Auburn Investment Portfolio Summary September 30, 2020 Summary 35 Page 374 of 378 SALES TAX SUMMARY SEPTEMBER 2020 SALES TAX DISTRIBUTIONS (FOR JULY 2020 RETAIL ACTIVITY) 2019 Annual Total 2019 YTD 2020 YTD YTD 2019 Annual Total 2019 YTD 2020 YTD YTD NAICS CONSTRUCTION (Nov '18-Oct '19)(Nov '18-Jul '19)(Nov '19 - Jul '20)% Diff NAICS AUTOMOTIVE (Nov '18-Oct '19)(Nov '18-Jul '19)(Nov '19 - Jul '20)% Diff 236 Construction of Buildings 1,219,472 799,302 1,383,282 73.1%441 Motor Vehicle and Parts Dealer 3,809,399 2,840,445 2,579,995 -9.2% 237 Heavy and Civil Construction 132,101 98,473 135,787 37.9%447 Gasoline Stations 259,864 196,657 166,617 -15.3% 238 Specialty Trade Contractors 840,982 608,960 619,417 1.7%TOTAL AUTOMOTIVE 4,069,263$ 3,037,102$ 2,746,612$ -9.6% TOTAL CONSTRUCTION 2,192,555$ 1,506,735$ 2,138,487$ 41.9%Overall Change from Previous Year (290,491)$ Overall Change from Previous Year 631,752$ 2019 Annual Total 2019 YTD 2020 YTD YTD 2019 Annual Total 2019 YTD 2020 YTD YTD NAICS RETAIL TRADE (Nov '18-Oct '19)(Nov '18-Jul '19)(Nov '19 - Jul '20)% Diff NAICS MANUFACTURING (Nov '18-Oct '19)(Nov '18-Jul '19)(Nov '19 - Jul '20)% Diff 442 Furniture and Home Furnishings 221,841 160,025 142,528 -10.9% 311 Food Manufacturing 9,140 6,802 7,013 3.1%443 Electronics and Appliances 277,403 204,900 218,692 6.7% 312 Beverage and Tobacco Products 12,690 8,929 8,764 -1.8%444 Building Material and Garden 651,706 486,621 547,710 12.6% 313 Textile Mills 326 180 957 430.4%445 Food and Beverage Stores 406,230 303,970 336,554 10.7% 314 Textile Product Mills 2,965 2,023 1,849 -8.6%446 Health and Personal Care Store 426,130 329,890 262,298 -20.5% 315 Apparel Manufacturing 767 537 876 63.2%448 Clothing and Accessories 1,236,033 901,139 636,756 -29.3% 316 Leather and Allied Products 307 267 381 42.5%451 Sporting Goods, Hobby, Books 254,383 185,343 171,903 -7.3% 321 Wood Product Manufacturing 13,028 10,227 11,001 7.6%452 General Merchandise Stores 818,123 620,494 673,093 8.5% 322 Paper Manufacturing 10,180 8,867 2,271 -74.4%453 Miscellaneous Store Retailers 917,046 676,134 849,062 25.6% 323 Printing and Related Support 46,449 33,825 28,614 -15.4%454 Nonstore Retailers 227,559 174,803 201,088 15.0% 324 Petroleum and Coal Products 8,499 6,195 1,386 -77.6%TOTAL RETAIL TRADE 5,436,454$ 4,043,320$ 4,039,685$ -0.1% 325 Chemical Manufacturing 11,220 9,857 8,441 -14.4%Overall Change from Previous Year (3,635)$ 326 Plastics and Rubber Products 7,666 5,819 5,161 -11.3% 327 Nonmetallic Mineral Products 19,762 15,128 10,196 -32.6% 331 Primary Metal Manufacturing 48,894 31,445 46,752 48.7%2019 Annual Total 2019 YTD 2020 YTD YTD 332 Fabricated Metal Product Manuf 29,751 24,399 19,210 -21.3%NAICS SERVICES (Nov '18-Oct '19)(Nov '18-Jul '19)(Nov '19 - Jul '20)% Diff 333 Machinery Manufacturing 21,356 17,475 11,494 -34.2%51*Information 667,861 505,756 a 514,800 1.8% 334 Computer and Electronic Product 8,921 5,565 6,548 17.7%52*Finance and Insurance 138,176 104,707 143,314 36.9% 335 Electric Equipment, Appliances 1,213 174 8,044 4513.3%53*Real Estate, Rental, Leasing 434,301 321,782 279,484 -13.1% 336 Transportation Equipment Man 510,518 356,059 76,082 -78.6%541 Professional, Scientific, Tech 344,043 248,422 282,543 c 13.7% 337 Furniture and Related Products 17,907 16,159 7,470 -53.8%551 Company Management 1,147 1,138 34 -97.0% 339 Miscellaneous Manufacturing 39,336 29,819 23,866 -20.0%56*Admin. Supp., Remed Svcs 522,491 389,522 475,923 22.2% TOTAL MANUFACTURING 820,898$ 589,753$ 286,376$ -51.4%611 Educational Services 45,995 31,727 22,832 -28.0% Overall Change from Previous Year (303,378)$ 62*Health Care Social Assistance 93,305 72,041 88,140 22.3% 71*Arts and Entertainment 119,538 85,220 40,674 -52.3% 72*Accommodation and Food Svcs 1,469,344 1,087,824 894,605 -17.8% 2019 Annual Total 2019 YTD 2020 YTD YTD 81*Other Services 606,743 456,165 392,200 -14.0% NAICS TRANSPORTATION AND WAREHOUSING (Nov '18-Oct '19)(Nov '18-Jul '19)(Nov '19 - Jul '20)% Diff 92*Public Administration 2,204 1,269 1,454 14.5% 481 Air Transportation 0 0 0 N/A TOTAL SERVICES 4,445,147$ 3,305,574$ 3,136,003$ -5.1% 482 Rail Transportation 22,935 16,496 13,030 -21.0%Overall Change from Previous Year (169,572)$ 484 Truck Transportation 17,265 11,049 17,779 60.9% 485 Transit and Ground Passengers 27 27 14 -48.7% 488 Transportation Support 37,253 28,328 65,380 130.8%2019 Annual Total 2019 YTD 2020 YTD YTD 491 Postal Service 727 541 526 -2.9%NAICS MISCELLANEOUS (Nov '18-Oct '19)(Nov '18-Jul '19)(Nov '19 - Jul '20)% Diff 492 Couriers and Messengers 285 218 16,539 7496.6%000 Unknown 0 0 0 N/A 493 Warehousing and Storage 10,217 7,288 7,839 7.6%111-115 Agriculture, Forestry, Fishing 4,807 3,719 4,217 13.4% TOTAL TRANSPORTATION 88,710$ 63,946$ 121,106$ 89.4%211-221 Mining & Utilities 29,481 21,471 18,704 -12.9% Overall Change from Previous Year 57,160$ 999 Unclassifiable Establishments 230,217 167,494 200,710 19.8% TOTAL SERVICES 264,505$ 192,684$ 223,631$ 16.1% Overall Change from Previous Year 30,947$ 2019 Annual Total 2019 YTD 2020 YTD YTD NAICS WHOLESALE TRADE (Nov '18-Oct '19)(Nov '18-Jul '19)(Nov '19 - Jul '20)% Diff 423 Wholesale Trade, Durable Goods 1,169,244 b 897,370 758,279 -15.5%GRAND TOTAL 18,813,547$ 13,872,916$ 13,678,441$ 424 Wholesale Trade, Nondurable 316,221 229,311 217,708 -5.1%Overall Change from Previous Year (194,475)$ -1.4% 425 Wholesale Electronic Markets 10,550 7,120 10,556 48.3% TOTAL WHOLESALE 1,496,015$ 1,133,801$ 986,543$ -13.0%Total September 2020 Sales Tax Distributions 1,858,640$ Overall Change from Previous Year (147,258)$ 254,390$ Percent Increase from September 2019 Comparisons: Includes Adjustments in excess of +/- $10,000.September 2019 13,872,916 12,268,667 1,604,250$ a. WA State Department of Revenue audit adjustment to sales tax returns for February 2019 Reporting (adjustment: $14,165).September 2018 13,588,552 12,068,672 1,519,880$ b. WA State Department of Revenue audit adjustment to sales tax returns for August 2019 Reporting (adjustment: $10,411). c. WA State Department of Revenue adjustment to sales tax returns for July 2020 Reporting (adjustment: $18,706). 09/28/20 Prepared by Auburn Finance Department 15.9% 36Page 375 of 378 Budget YTD Actual Variance Budget YTD Actual Variance Budget YTD Actual Variance Budget YTD Actual Variance OPERATING FUND:460 460 461 461 462 462 OPERATING REVENUES Charges For Service 14,778,400 11,174,434 (3,603,966) 8,554,200 6,399,036 (2,155,164) 17,259,700 12,588,592 (4,671,108) 10,328,200 7,703,130 (2,625,070) Grants - - - - 50,000 50,000 Interest Earnings - 49,530 49,530 - 28,473 28,473 - 2,959 2,959 - 29,248 29,248 Rents, Leases, Concessions, & Other 187,000 124,669 (62,331) 69,000 36,118 (32,882) - - - 56,000 41,725 (14,275) TOTAL OPERATING REVENUES 14,965,400 11,348,633 (3,616,767) 8,623,200 6,463,627 (2,159,573) 17,259,700 12,591,551 (4,668,149) 10,384,200 7,824,104 (2,560,096) OPERATING EXPENSES Salaries & Wages 2,522,053 1,757,843 764,210 1,511,111 1,069,549 441,562 - - - 2,574,037 1,731,904 842,133 Benefits 1,446,108 888,658 557,450 846,106 530,848 315,258 - - - 1,437,619 889,327 548,292 Supplies 364,244 237,633 126,611 164,550 75,130 89,420 - - - 84,550 48,584 35,966 Other Service Charges 4,520,767 2,214,993 2,305,774 3,478,200 2,125,977 1,352,223 18,397,800 13,127,914 5,269,886 2,070,740 1,040,560 1,030,180 Intergovernmental Services (Less Transfers Out)- - - - - - Waste Management Payments Sewer Metro Services - - - Debt Service Interest 1,064,200 346,086 718,114 293,900 114,420 179,480 - - - 346,700 161,025 185,675 Interfund Operating Rentals & Supplies 1,844,067 1,391,998 452,069 1,443,267 1,091,040 352,227 - - - 1,838,700 1,387,256 451,444 TOTAL OPERATING EXPENSES 11,761,439 6,837,211 4,924,228 7,737,134 5,006,964 2,730,170 18,397,800 13,127,914 5,269,886 8,352,346 5,258,656 3,093,690 OPERATING REVENUES LESS EXPENSES BEFORE DEPRECIATION 3,203,961 4,511,421 1,307,460 886,066 1,456,663 570,597 (1,138,100) (536,363) 601,737 2,031,854 2,565,447 533,593 NON-OPERATING REVENUES Operating Transfers-in - - - Intergovernmental Loan 3,095,821 55,022 3,040,799 Other Non-Operating Revenues - Revenue Bond Proceeds 15,719,900 15,729,824 (9,924) NON-OPERATING EXPENSES Transfer to Capital Subfund 14,220,292 2,927,272 11,293,020 - - - - - - Other Operating Transfers-out 2,390,308 272,785 2,117,523 315,681 8,457 307,224 391,081 82,457 308,624 Debt Service Principal 1,638,200 - 1,638,200 596,700 - 596,700 470,100 - 470,100 Net Change in Restricted Net Assets - 3,002,875 3,002,875 - 603,549 603,549 - 245,993 245,993 Interfund Loan Repayment Other Non-Operating Expenses BEGINNING WORKING CAPITAL - January 1, 2020 11,913,106 11,913,106 - 7,216,765 7,216,765 - 3,445,836 3,445,836 - 7,198,290 7,198,290 - ENDING WORKING CAPITAL - September 30, 2020 15,683,988 26,006,441 10,322,453 7,190,450 8,061,422 870,972 2,307,736 2,909,473 601,737 8,368,963 9,435,287 1,066,324 NET CHANGE IN WORKING CAPITAL (see Note)3,770,882 14,093,335 10,322,453 (26,315) 844,657 870,972 (1,138,100) (536,363) 601,737 1,170,673 2,236,997 1,066,324 CAPITAL FUND: CAPITAL REVENUES Interest Revenue 4,300 279 (4,021) 34,700 79,314 44,614 34,700 50,643 15,943 Grants - - - 174,120 - (174,120) Contributions - - - - - - - - - Other Non-Operating Revenue - 28,638 28,638 - - - - 16,493 16,493 Increase In Contributions - System Development 960,200 516,656 (443,544) 670,500 161,134 (509,366) 501,800 525,075 23,275 Interfund Revenues - - - - - - - - - Increase In Contributions - FAA - - - - - - - - - Proceeds of Debt Activity - - - - - - - - - Transfers In from Operating Sub-Fund 14,220,292 2,927,272 (11,293,020) - - - - - - Transfer In from Other Funds 2,000,000 250,000 (1,750,000) - - - - - TOTAL CAPITAL REVENUES 17,184,792 3,722,844 (13,461,948) 705,200 240,448 (464,752) 710,620 592,212 (118,408) CAPITAL EXPENSES Other Non-Operating Expense - 107,669 (107,669) - 2,283 (2,283) - - - Increase In Fixed Assets - Salaries 353,600 227,193 126,407 78,600 69,742 8,858 130,000 77,309 52,691 Increase In Fixed Assets - Benefits 141,400 105,825 35,575 31,400 34,316 (2,916) 52,000 36,690 15,310 Increase In Fixed Assets - Services 400 8 392 2,000 382 1,618 2,000 570 1,430 Increase In Fixed Assets - Site Improvements 122,000 33,616 88,384 - - - - - Increase In Fixed Assets - Equipment - - - - - - - - - Increase In Fixed Assets - Construction 16,460,553 3,169,515 13,291,038 3,959,842 768,896 3,190,946 2,263,293 369,865 1,893,428 Operating Transfers Out 50,000 50,000 - 50,000 50,000 - 50,000 50,000 - TOTAL CAPITAL EXPENSES 17,127,953 3,693,825 13,434,128 4,121,842 925,619 3,196,223 2,497,293 534,434 1,962,859 BEGINNING WORKING CAPITAL - January 1, 2020 81,079 81,079 - 13,300,157 13,300,157 - 11,809,735 11,809,735 - 137,918 110,098 (27,820) 9,883,515 12,614,986 2,731,471 10,023,062 11,867,513 1,844,451 NET CHANGE IN WORKING CAPITAL (see Note)56,839 29,019 (27,820) (3,416,642) (685,171) 2,731,471 (1,786,673) 57,778 1,844,451 Total Change in Working Capital 3,827,721 14,122,355 10,294,634 (3,442,957) 159,486 3,602,443 (1,138,100) (536,363) 601,737 (616,000) 2,294,775 2,910,775 (*) Depreciation 3,829,600 2,833,029 2,450,100 1,754,509 - - 2,315,100 1,590,546 OPERATING & CAPITAL FUNDS WATER ENTERPRISE FUNDS SEWER SEWER METRO STORMThrough September 2020 (*) Debt service interest as shown represents actual cash outlay. Debt service principal represents actual expenditures; payments will be made as scheduled in December 2020. Working Capital = Current Assets minus Current Liabilities ENDING WORKING CAPITAL - September 30, 2020 See note 37Page 376 of 378 OPERATING FUND: OPERATING REVENUES Charges For Service Grants Interest Earnings Rents, Leases, Concessions, & Other TOTAL OPERATING REVENUES OPERATING EXPENSES Salaries & Wages Benefits Supplies Other Service Charges Intergovernmental Services (Less Transfers Out) Waste Management Payments Sewer Metro Services Debt Service Interest Interfund Operating Rentals & Supplies TOTAL OPERATING EXPENSES OPERATING REVENUES LESS EXPENSES BEFORE DEPRECIATION NON-OPERATING REVENUES Operating Transfers-in Intergovernmental Loan Other Non-Operating Revenues Revenue Bond Proceeds NON-OPERATING EXPENSES Transfer to Capital Subfund Other Operating Transfers-out Debt Service Principal Net Change in Restricted Net Assets Interfund Loan Repayment Other Non-Operating Expenses BEGINNING WORKING CAPITAL - January 1, 2020 ENDING WORKING CAPITAL - September 30, 2020 NET CHANGE IN WORKING CAPITAL (see Note) CAPITAL FUND: CAPITAL REVENUES Interest Revenue Grants Contributions Other Non-Operating Revenue Increase In Contributions - System Development Interfund Revenues Increase In Contributions - FAA Proceeds of Debt Activity Transfers In from Operating Sub-Fund Transfer In from Other Funds TOTAL CAPITAL REVENUES CAPITAL EXPENSES Other Non-Operating Expense Increase In Fixed Assets - Salaries Increase In Fixed Assets - Benefits Increase In Fixed Assets - Services Increase In Fixed Assets - Site Improvements Increase In Fixed Assets - Equipment Increase In Fixed Assets - Construction Operating Transfers Out TOTAL CAPITAL EXPENSES BEGINNING WORKING CAPITAL - January 1, 2020 NET CHANGE IN WORKING CAPITAL (see Note) Total Change in Working Capital (*) Depreciation OPERATING & CAPITAL FUNDS Through September 2020 Working Capital = Current Assets minus Current Liabilities ENDING WORKING CAPITAL - September 30, 2020 See note Budget YTD Actual Variance Budget YTD Actual Variance Budget YTD Actual Variance Budget YTD Actual Variance 464 464 465 465 466 466 - 16,068,500 11,350,487 (4,718,013) 1,378,000 1,086,569 (291,431) 1,086,000 1,079,251 (6,749) - - - 88,600 8,928 (79,672) 70,000 - (70,000) - - 42,400 19,417 (22,983) 7,800 5,020 (2,780) 1,000 3,287 2,287 10,000 2,757 (7,243) - - - 6,100 10,586 4,486 - - - 16,199,500 11,378,831 (4,820,669) 1,461,900 1,102,175 (359,725) 1,087,000 1,082,538 (4,462) 10,000 2,757 (7,243) - - - 232,843 155,560 77,283 473,497 331,110 142,387 - - - - - - 167,008 78,520 88,488 291,646 187,912 103,734 175,000 58,727 116,273 53,400 4,913 48,487 307,000 266,688 40,312 221,700 188,111 33,589 - - - 2,499,675 1,377,564 1,122,111 213,800 161,553 52,247 157,400 74,468 82,932 5,600 466,333 (460,733) - - - - - - - - - - - - 13,485,300 9,309,144 4,176,156 - - - 100 34 66 - - - - - - 642,300 487,763 154,537 46,100 34,575 11,525 196,000 147,349 48,651 - - - 16,680,675 11,179,383 5,501,292 966,851 696,929 269,922 1,340,243 928,950 411,293 180,600 525,060 (344,460) (481,175) 199,448 680,623 495,049 405,246 (89,803) (253,243) 153,587 406,830 (170,600) (522,303) (351,703) 100,000 - (100,000) - - - 355,400 220,386 100,000 32,500 22,877 6,720 16,157 - - - - - - - - - - - - - (93,582) (93,582) - - - 12,200 11,627 573 5,936,695 5,936,695 - 634,377 634,377 - 822,045 822,045 - 1,921,953 1,921,953 - 5,432,643 6,129,423 696,780 761,826 901,192 139,366 568,802 943,132 374,330 1,751,353 1,399,650 (351,703) (504,052) 192,728 696,780 127,449 266,815 139,366 (253,243) 121,087 374,330 (170,600) (522,303) (351,703) 200 1,687 1,487 - 989 989 165,000 52,000 (113,000) - - - - - - - - - - - - - - - - - - - - - 3,812,598 2,782,184 (1,030,414) - - - - - - - - - 355,400 220,386 (135,014) 100,000 32,500 (67,500) - - - 55,400 55,400 - 4,333,198 3,056,257 (1,276,941) 155,400 88,889 (66,511) - - - - - - 4,300 76 4,224 - 4,139 (4,139) 1,700 24 1,676 - 2,151 (2,151) 100 - 100 100 16 84 - - - - - - - - 4,650,290 3,255,268 1,395,022 405,400 332,242 73,158 25,000 - 25,000 - - - 4,681,390 3,255,369 1,426,021 405,500 338,547 66,953 429,841 429,841 - 258,983 258,983 - 81,649 230,729 149,080 8,883 9,325 442 (348,192) (199,112) 149,080 (250,100) (249,658) 442 (504,052) 192,728 (220,743) 67,703 288,446 (503,343) (128,570) 374,773 (170,600) (522,303) (351,703) 21,100 9,410 519,700 319,522 45,000 19,238 - - Note: Includes September's Waste Management payment ($1,116,268), which will be made in October. (*) Debt service interest as shown represents actual cash outlay. Debt service principal represents actual expenditures; payments will be made as scheduled in December 2020. ENTERPRISE FUNDS SOLID WASTE AIRPORT CEMETERY INTERNAL SERVICE FUNDS INSURANCE See note below 38Page 377 of 378 OPERATING FUND: OPERATING REVENUES Charges For Service Grants Interest Earnings Rents, Leases, Concessions, & Other TOTAL OPERATING REVENUES OPERATING EXPENSES Salaries & Wages Benefits Supplies Other Service Charges Intergovernmental Services (Less Transfers Out) Waste Management Payments Sewer Metro Services Debt Service Interest Interfund Operating Rentals & Supplies TOTAL OPERATING EXPENSES OPERATING REVENUES LESS EXPENSES BEFORE DEPRECIATION NON-OPERATING REVENUES Operating Transfers-in Intergovernmental Loan Other Non-Operating Revenues Revenue Bond Proceeds NON-OPERATING EXPENSES Transfer to Capital Subfund Other Operating Transfers-out Debt Service Principal Net Change in Restricted Net Assets Interfund Loan Repayment Other Non-Operating Expenses BEGINNING WORKING CAPITAL - January 1, 2020 ENDING WORKING CAPITAL - September 30, 2020 NET CHANGE IN WORKING CAPITAL (see Note) CAPITAL FUND: CAPITAL REVENUES Interest Revenue Grants Contributions Other Non-Operating Revenue Increase In Contributions - System Development Interfund Revenues Increase In Contributions - FAA Proceeds of Debt Activity Transfers In from Operating Sub-Fund Transfer In from Other Funds TOTAL CAPITAL REVENUES CAPITAL EXPENSES Other Non-Operating Expense Increase In Fixed Assets - Salaries Increase In Fixed Assets - Benefits Increase In Fixed Assets - Services Increase In Fixed Assets - Site Improvements Increase In Fixed Assets - Equipment Increase In Fixed Assets - Construction Operating Transfers Out TOTAL CAPITAL EXPENSES BEGINNING WORKING CAPITAL - January 1, 2020 NET CHANGE IN WORKING CAPITAL (see Note) Total Change in Working Capital (*) Depreciation OPERATING & CAPITAL FUNDS Through September 2020 Working Capital = Current Assets minus Current Liabilities ENDING WORKING CAPITAL - September 30, 2020 See note Budget YTD Actual Variance Budget YTD Actual Variance Budget YTD Actual Variance Budget YTD Actual Variance - - 568 568 560 560 1,150,500 770,118 (380,382) 3,490,600 2,648,587 (842,013) 6,587,500 4,964,742 (1,622,758) 2,085,395 1,506,980 (578,415) - - - - - - 26,600 10,918 (15,682) 10,100 5,943 (4,157) - 10,704 10,704 - 10,572 10,572 50,000 5,937 (44,063) - 11,982 11,982 - 2,625 2,625 - 102,634 102,634 1,227,100 786,973 (440,127) 3,500,700 2,666,512 (834,188) 6,587,500 4,978,071 (1,609,429) 2,085,395 1,620,185 (465,210) - - - 711,793 604,703 107,090 2,009,816 1,507,278 502,538 563,879 505,792 58,087 250,000 46,446 203,554 444,389 303,435 140,954 1,112,945 684,479 428,466 327,656 234,607 93,049 - - - 140,220 68,014 72,206 460,150 425,963 34,187 941,200 655,810 285,390 455,315 199,603 255,712 1,839,560 1,085,250 754,310 2,830,900 2,014,816 816,084 504,100 308,230 195,870 - - - - - - - - - - - - - - - - - - - - - 1,500 257 1,243 128,100 96,075 32,025 161,400 121,050 40,350 185,900 139,425 46,475 304,000 229,313 74,687 833,415 342,124 491,291 3,297,362 2,182,453 1,114,909 6,599,711 4,771,961 1,827,750 2,642,335 1,934,008 708,327 393,685 444,849 51,164 203,338 484,059 280,721 (12,211) 206,110 218,321 (556,940) (313,823) 243,117 205,000 41,832 (163,168) 269,953 40,940 (229,013) - - - 500,000 - 500,000 698,700 282,558 416,142 - - - - - - - - - - - - - - - - (42,797) (42,797) - 49,840 (49,840) 1,877,627 1,877,627 - 1,315,496 1,315,496 - 2,522,898 2,522,898 - 2,956,770 2,956,770 - 2,271,312 2,322,476 51,164 1,025,134 1,558,830 533,696 2,280,640 2,769,949 489,309 2,399,830 2,685,744 285,914 393,685 444,849 51,164 (290,362) 243,334 533,696 (242,258) 247,051 489,309 (556,940) (271,026) 285,914 - 5,027 5,027 - 17,724 17,724 133,700 - (133,700) - - - - - - - 7,405 7,405 - 12,782 12,782 - - - - - - - - - 1,585,105 1,245,895 (339,210) - - - - - - - - - - - - 500,000 - (500,000) - - - 25,000 - (25,000) 868,600 - (868,600) 525,000 12,432 (512,568) 2,587,405 1,276,401 (1,311,004) - - - - - - - - - - - - - - - - - - 300 61 239 500 309 191 - - 1,186,527 516,531 669,996 2,941,150 873,104 2,068,046 - - - 1,140,000 - 1,140,000 - - - - - - 1,186,827 516,591 670,236 4,081,650 873,412 3,208,238 1,445,614 1,445,614 - 4,419,304 4,419,304 - 783,787 941,455 157,668 2,925,059 4,822,293 1,897,234 (661,827) (504,159) 157,668 (1,494,245) 402,989 1,897,234 393,685 444,849 51,164 (290,362) 243,334 533,696 (904,085) (257,109) 646,976 (2,051,185) 131,963 2,183,148 - - - - 530,000 272,949 1,300,000 1,033,657 INTERNAL SERVICE FUNDS WORKER'S COMPENSATION FACILITIES INNOVATION & TECHNOLOGY EQUIPMENT RENTAL 39Page 378 of 378