HomeMy WebLinkAbout5271 ORDINANCE NO. 5 2 7 1
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, AMENDING CERTAIN PROVISIONS OF TITLE 20 ENTITLED
"TELECOMMUNICATIONS AND OTHER COMMERCIAL UTILITIES" FOR
CLARIFICATION AND TO COMPLY WITH RECENT FEDERAL DISTRICT
COURT DECISIONS.
WHEREAS, the City of Auburn approved Ordinance No. 5034 on
January 5, 1998 enacting Title 20 entitled "Telecommunications and Other
Commercial Utilities"; and
WHEREAS, certain U.S. Federal District Court decisions have held that
particular provisions contained in city and county ordinances are invalid in that
the .requirements were preempted by the Federal Telecommunications Act of
1996; and;
WHEREAS, the City seeks to amend and clarify certain provisions of
Title 20 of the Auburn City Code entitled "Telecommunications and Other
Commercial Utilities" to be consistent with recent U.S. Federal District Court
rulings;
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, DO ORDAIN AS FOLLOWS:
Ordinance No. 5271
August 4, 1999
Page 1
Section 1. PURPOSE: The purpose of this ordinance is as follows:
To amend Title 20 entitled "Telecommunications and Other Commercial
Utilities" as set forth in Exhibit "A" attached hereto and incorporated herein by
this reference to provide regulations consistent with recent U.S. Federal District
Court holdings.
Section 2. CONSTITUTIONALITY OR INVALIDITY: If any section,
subsection, clause, phrase, or sentence, of this Ordinance, is for any reason
held to be invalid or unconstitutional, such invalidity or unconstitutionality of the
remaining portions of this ordinance, as it is being hereby expressly declared
that this ordinance and each section, subsection, clause, phrase, or sentence,
hereof would have been prepared, proposed, adopted, and approved and
ratified irrespective of the fact that any one or more section, subsection, clause,
phrase, or sentence, be declared invalid or unconstitutional.
Section 3. The Mayor is hereby authorized to implement such
administrative procedures as may be necessary to carry out the directions of
this legislation.
Section 4. This ordinance shall take effect and be in force five (5) days
from and after its passage, approval, and publication, as provided by law.
Ordinance No. 5271
August 4, 1999
Page 2
INTRODUCED: August 16, 1999
PASSED: August 16, 1999
APPROVED: August 16, 1999
CHARLES A. BOOTH
MAYOR
ATTEST:
Damelie E. Daskam,
City Clerk
APPROVED AS TO FORM:
Michael J. Reynolds,
City Attorney
PUBLISHED:
Ordinance No. 5271
August 4, 1999
Page 3
Exhibit "A"
Title 20
TELECOMMUNICATIONS AND OTHER COMMERCIAL UTILITIES ·
Chapters:
20.02 General Provisions
20.04 Public Way Agreements
20.06 Franchise
20.08 Facilities Lease
20.10 Conditions of Public Way Agreements, Franchises, and
Facilities Leases
20.12 Open Video Systems (OVS)
Chapter 20.02
GENERAL PROVISIONS
Sections:
20.02.010 Purpose.
20.02.020 Definitions.
20.02.030 Business registration required.
20.02.040 Public way agreement required.
20.02.060 Franchise required.
20.02.060 Cable television franchise required.
20.02.070 Facilities lease required.
20.02.080 Construction permit required.
20.02.090 Application to existing franchise ordinances, agreements,
leases, and permits and effect of other laws.
20.02.100 Reserved.
20.02.110 Fees and compensation not a tax.
20.02.120 Taxes are not to be a credit.
20,02.010 Purpose.
The purpose and intent of this title is to:
A. Establish a local policy concerning regulation of telecommunications
carriers, operators, providers, and other commercial utilities in public ways and
on city and/or public property;
B. Establish, consistent with federal and state law, clear local guidelines,
standards and time frames for the exercise of local authority with respect to the
regulation of activities of telecommunications carriers, operators, providers, and
other commercial utilities in public ways and on city and/or public property; C. Promote competition in telecommunications;
D. Minimize unnecessary local regulation of telecommunications carriers,
operators, providers, and other commercial utilities;
E. Encourage the provision of advanced and competitive
telecommunications services on the widest possible basis to the businesses,
institutions and residents of the city;
F. Permit and manage reasonable access to the public ways of the city for
telecommunications purposes on a competitively neutral basis;
G. Conserve the limited physical capacity of the public ways held in public
trust by the city;
H. Assure that the city's current and ongoing costs of granting and
regulating private access to and use of the public ways are fully paid by the
persons seeking or using such access and causing such costs;
I. To the extent permitted by federal and state law, sSecure fair and
reasonable compensation to the city and the residents of the city for permitting
private use of the public ways;
J. Assure that all telecommunications carriers, operators, providers, and
other commercial utilities utilizing public ways or city or public property within
the city comply with the ordinances, rules and regulations of the city;
K. Assure that the city can continue to fairly and responsibly protect the
public health, safety and welfare; and
L. Enable the city to discharge its public trust consistent with rapidly
evolving federal and state regulatory policies, industry competition and
technological development. (Ord. 5034 § 1, 1998.)
20.02.020 Definitions.
For the purpose of this title, and the interpretation and enforcement thereof,
the following words and phrases shall have the following meanings, unless the
context of the sentence in which they are used shall indicate otherwise:
"The Act" means the Federal Telecommunications Act, January 31, 1996.
"Addressability" means the ability of a telecommunications system to allow
telecommunications carriers, operators, or providers to authorize by remote
control customer terminals to receive, change, or to cancel any or all specified
programming.
"Affiliate" means an entity which (directly or indirectly) owns or controls, is
owned or controlled by, or is under common ownership with franchisee. For
purposes of this definition, the term "own" means to own an equity interest (or
the equivalent thereof) of more than 10 percent.
"Applicant" means any person or entity that applies for any public way
agreement, franchise, lease, or permit pursuant to this title.
"Cable facilities" means equipment and wiring used to transmit audio and
video signals to subscribers.
"Cable operator" means a telecommunications carrier providing or offering
to provide "cable service" within the city as that term is defined in the Cable Act
and Chapter 13.36 ACC.
"Cable service" for the purpose of this title shall have the same meaning
provided by the Cable Act and Chapter 13.36 ACC.
"Cable system" means a facility, consisting of a set of closed transmission
paths and associated signal generation, reception, and control equipment that
is designed to provide cable service and other service to subscribers.
"Carrier" means any provider of telecommunications services, except that
this term does not include aggregators of telecommunications services as
defined in Section 225 of the Act. (See also "Telecommunications carrier".)
"City" means the city of Auburn, Washington as defined in ACC 1.04.010 to
include all future areas annexed into the city.
"City property" means and includes all real property owned by the city, other
than public ways and utility easements as those terms are defined herein, and
all property held in a proprietary capacity by the city, which are not subject to
public way agreements and franchising as provided in this title.
"Commercial utility provider" means any natural gas, electric power,
pipeline, or other company desiring to utilize city public ways for transporting,
purveying, or delivering bulk products, or providing commercial power or gas
services within the city, or needing to transport bulk product or services through
the city to other destinations for commercial purposes.
"Council" means the city council of the city of Auburn, Washington acting in
its official capacity constituting the legislative body of the city.
"Data communication" means (1) the transmission of encoded information or
(2) the transmission of data from one point to another.
"Dwelling units" means residential living facilities as distinguished from
temporary lodging facilities such as hospitals, hotel and motel rooms and
dormitories, and includes single-family residential units and individual
apartments, condominium units, mobile homes, extended care facilities and
other multiple-family residential units.
"Emergency" means a condition of imminent danger to the health, safety,
and welfare of property or persons located within the city including, without
limitation, damage to persons or property from natural consequences, such as
storms, earthquakes, riots or wars.
"Excess capacity" means the volume or capacity in any existing or future
duct, conduit, manhole, handhole or other utility facility within the public way
that is or will be available for use for additional telecommunications facilities.
"FCC" or "Federal Communications Commission" means the federal
administrative agency, or lawful successor, authorized to regulate and oversee
telecommunications carriers, services and providers on a national level.
"Fiber optics" means the technology of guiding and projecting light for use
as a communications medium.
"Franchise" shall mean the initial authorization, or renewal thereof, approved
by an ordinance of the city, which authorizes the franchisee to construct, install,
operate, or maintain telecommunications or other commercial utility facilities in,
under, over, or across public ways of the city and to also provide service to
per. sons or areas in the city.
"Franchise area" means all areas within the current city limits and within any
future adjusted boundaries of the city limits. The effective date of any such
changes in the city limits will be the effective date(s) of any future annexations.
"Franchisee" means a person, as defined herein, firm or corporation to
whom or which a franchise, as defined in this section, is granted by the council
under this title and the lawful successor, transferee or assignee of said person,
firm or corporation subject to such conditions as may be defined in the
franchise and in this title.
"Grantee" means a holder of a public way agreement, franchise, or lease
approved by the city council of the city of Auburn.
"Gross revenue" shall mean all receipts accrued in a franchisee's books for
all commercial utility, communications and communications-related operations
and services from subscribers, who have a service address within the corporate
limits of the city of Auburn, to franchisee's business as well as any other
revenue arising from operation or possession of a franchise agreement with the
city of Auburn, less the application and administrative fees mandated in the
franchise agreement and the franchise fee intended for compensation for use
of "public ways". By way of example, but without limitation, "gross revenue"
includes all revenues from the sale or lease of equipment, installation charges
to subscribers who have service addresses within the corporate limits of the
city, charges to customers, subscribers and other users of the
telecommunications system who have service addresses within the corporate
limits of the city. "Gross revenues" does not include: (a) taxes, fees, or
assessments of any kind or description imposed on or levied against franchisee
which are not applicable to all other persons or entities doing business within
the city, (b) revenues noncollectible from customers (bad debts) which have
been written off through generally accepted accounting practices, (c) discounts,
and (d) any applicable exclusions under the law.
"Lessee" means the holder of a lease for use of city or public property which
has been approved by the city council of the city of Auburn.
"Other ways" means the highways, streets, alleys, utility easements or other
rights-of-way within the city, but under the jurisdiction and control of a
governmental entity other than the city.
"Overhead facilities" means utility poles, utility facilities and
telecommunications or other commercial utility facilities located above the
surface of the ground, including the underground supports and foundations for
such facilities.
"OVS" means open video system which is a telecommunications system
having two-thirds of its capacity set aside for use by other providers,
programmers, or competitive business on a subleasing basis. Because of its
self-competitive nature, an OVS is subject to regulatory restrictions.
"Person" means and includes corporations, companies, associations, joint
stock companies or associations, firms, partnerships, limited liability companies
and individuals and includes their lessors, trustees and receivers.
"Property of franchisee" means all plant, or facilities owned, installed or
used by a franchisee in the conduct of its business in the city under the
authority of a franchise granted pursuant to this title.
"Proposal" means an application by any person or entity that applies for any
public way agreement, franchise, lease, or permit pursuant to this title.
"Public place" means an area generally open to public access including all
public ways, parks, plazas, publicly owned buildings, theaters, and entrances or
doorways to places of business that front on a public way.
"Public street" means any highway, street, alley or other public right of way
for motor vehicle travel under the jurisdiction and control of the city which has
been acquired, established, dedicated or devoted to highway purposes.
"Public way(s)" shall mean the surface of, the air space above the surface,
and the space below the surface of any public street, including, but not limited
to, any public alley, bridge, land path, trail, court, circle, roundabout, boulevard,
drive, tracts, right-of-way or sidewalk under the jurisdiction of the city as now, or
in the future, laid out, improved or unimproved within the limits of the city
presently and as such limits may be hereafter extended. "State" means the state of Washington.
"Subscriber" or "customer" means a person or user of the commercial utility
or telecommunications system who lawfully receives commercial utility or
communications services or other service therefrom with franchisee's express
permission.
"Surplus space" means that portion of the usable space on a utility pole
which has the necessary clearance from other pole users, as required by
federal or state law, orders, and regulations, to allow its use by a
telecommunications carrier for a pole attachment.
"Telecommunications carrier" means and includes every person that directly
or indirectly owns, controls, operates or manages plant, equipment or facilities
within the city's public ways, for the purpose of offering telecommunications.
services within the city. (See also "Carrier".)
"Telecommunications facilities" means the plant, equipment and facilities,
including but not limited to, cables, wires, conduits, ducts, pedestals, antennae,
electronics and other appurtenances used or to be used to transmit, receive,
distribute, provide or offer telecommunications services.
"Telecommunications operator" means and includes every person who
provides telecommunications services within the city over telecommunications
facilities located within the city's public ways, without any ownership,
management or control of the facilities.
"Telecommunications provider" means and includes every person who
utilizes facilities within the city's public ways to provide services outside the city
only.
"Telecommunications service" means the providing or offering for rent, sale
or lease, or in exchange for other value received, of the transmittal of voice,
data, image, graphic and video programming information between or among
points by wire, cable, fiber optics, laser, microwave, radio, satellite or similar
facilities, with or without benefit of any closed transmission medium.
"Telecommunications system," see "Telecommunications facilities."
"Underground facilities" means utility and telecommunications facilities
located under the surface of the ground, excluding the underground
foundations or supports for overhead facilities.
"Universal s, orvicc" moans 3 level of and definition of tolecommunications
corvic.,os ac the term ic defined by the .=CC through its authority granted
pursuant to Section 2~ of the Act.
"Usable space" means the total distance between the top of a utility pole
and the lowest possible attachment point that provides the minimum allowable
vertical clearance as specified in any federal or state orders and regulations.
"Utility easement" means any easement in which the city holds an interest in
or an interest has been acquired, established, dedicated or devoted for city
utility purposes.
"Utility facilities" means the plant, equipment and property, including but not
limited to the poles, pipes, mains, conduits, ducts, cables, wires, plant and
equipment located under, on or above the surface of the ground within the
public ways of the city and used or to be used for the purpose of providing utility
or telecommunications services.
"WUTC" means the Washington State Utility and Transportation
Commission. (Ord. 5034 § 1, 1998.)
20.02.030 Business registration required.
Except as otherwise provided herein, all commercial utilities, cable
operators, telecommunications carriers, operators and providers engaged in the
business of transmitting, supplying or furnishing of commercial utility or
telecommunications service of any kind originating or terminating in the city, or
utilizing facilities within the city's public ways to provide services exclusively
outside of the city only, shall apply for and obtain a business registration from
the city pursuant to Chapter 5.84 ACC. (Ord. 5034 § 1, 1998.)
20.02.040 Public way agreement required.
Except as otherwise provided herein, any commercial utility or
telecommunications provider who desires to construct, install, operate,
maintain, or otherwise locate facilities in, under, over or across any public way
of the city for the sole purpose of providing service to persons and areas
outside the city shall first obtain a public way agreement granting the use of
such public ways from the city pursuant to Chapter 20.04 ACC. (Ord. 5034 § 1,
1998.)
20.02.050 Franchise required.
Except as otherwise provided herein, any commercial utility,
telecommunications carrier or operator who desires to construct, install,
operate, maintain or otherwise locate facilities in, under, over or across any
public way of the city, and to also provide service to persons or areas in the
city, shall first obtain a franchise granting the use of such public ways from the
city pursuant to Chapter 20.06 ACC. (Ord. 5034 § 1, 1998.)
20.02.060 Cable television franchise required.
Except as otherwise provided herein, any telecommunications carrier or
other person who desires to construct, install, operate, maintain or locate cable
or telecommunications facilities in any public way in the city for the purpose of.
providing cable service to persons in the city shall first obtain a cable franchise
from the city pursuant to Chapter 13.36 ACC. (Ord. 5034 § 1, 1998.)
20.02,070Facilities lease required.
No commercial utility, telecommunications carrier or other entity who desires
to locate facilities or other equipment on city property shall locate such facilities
or equipment on city property unless granted a facilities lease from the city
pursuant to Chapter 20.08 ACC. The city council reserves unto itself the sole
discretion to lease city property for telecommunications and other facilities, and
no vested or other right shall be created by this section or any provision of this
title applicable to such facilities leases. (Ord. 5034 § 1, 1998.)
20.02.080 Construction permit required.
Except as otherwise provided herein, the holder of a public way agreement,
franchise, or lease granted pursuant to this title, and the holders of cable
franchises granted pursuant to Chapter 13.36 ACC, shall, in addition to said
public way agreement, franchise, or lease, be required to obtain a construction
permit from the city pursuant to Chapter 12.24 ACC. No work, construction,
development, excavation, or installation of any equipment or facilities shall take
place within the public ways or upon city property until such time as the
construction permit is issued. (Ord. 5034 § 1, 1998.)
20.02.090 Application to existing franchise ordinances, agreements,
leases, and permits and effect of other laws.
All grantees, franchisees, and lessees subject to this title are at all times
subject to and must comply with all applicable existing and future federal, state
and local laws, ordinances, codes, rules, regulations and orders.
A. This title shall have no effect on agreements in effect prior to adoption,
unless otherwise provided, in any existing franchise ordinance, franchise
agreement, lease, permit, agreement or other authorization to use or occupy a
public way in the city until:
1. The expiration of said franchise ordinance, agreement, lease, permit,
or authorization; or
2. The amendment.to an unexpired franchise ordinance, franchise
agreement, lease, permit, authorization, or agreement unless both parties
agree to defer full compliance to a specific date not later than the expiration
date provided therein.
B. Nothing in this title shall be deemed to create an obligation upon any
person for which the city is forbidden to require pursuant to federal, state, or
other law.
C. Upon expiration of the electrical and natural gas franchises in effect at
time of adoption of this title, granted by Chapter 13.44 ACC, the franchise shall
be renegotiated under the terms of this title. (Ord. 5034 § 1, 1998.)
20.02.100 Univor6al sorvic, o.
Exoopt ac othoRvieo provided horoin, all cablo oporators,
toloc, ommunicationc carriorc, operators, and providors ongagod in tho businoss
of transmitting, cupplying or furniching tolocommunications corvico of 3ny kind
originating or torminating in tho city arc subjoct to tho city's right., which i¢
oxprosr..,ly roc, orvod, to roquiro said oporator, cardor, or providor to mako an
oquitablo and nondiscriminatory contribution to tho pros43rvation 3nd
advanoomont of univorcal ~orvioo to tho oxtont pormitted by stato and fodoral
law. (Ord. 503,1 § 1, 1008.)
20.02.110 Fees and compensation not a tax.
The fees, charges and fines provided for in this title and any compensation
charged and paid as provided herein, whether fiduciary or in-kind, are separate
from, and additional to, any and all federal, state, local, and city taxes as may
be levied, imposed or due from a commercial utility, telecommunications carrier,
operator, or provider, its customers or subscribers or on account of the lease,
sale, delivery or transmission of telecommunications services. (Ord. 5034 § 1,
1998.)
20.02.t20 Taxes are not to be a credit.
Any compensation paid as provided for in public way agreements,
franchises, and/or facility leases shall be exclusive of and in addition to all
special assessments and taxes of whatever nature which are applicable to all
other persons or entities doing business within the city, including, but not limited
to, ad valorem taxes, sales taxes, corporate or business occupation taxes or
other taxes or fees imposed or levied by any governmental entity. (Ord. 5034 §
1, 1998.)
Chapter 20.04
PUBLIC WAY AGREEMENTS
Sections:
20.04.010 Public way agreements.
20.04.020 Public way agreement applications.
20.04.030 Notice of complete application and scheduling of public
hearing.
20.04.040 Determination by the city.
20.04.050 Notification of council action and execution of agreement.
20.04.060 Nonexclusive public way agreements.
20.04.070 Rights granted.
20.04.080 Term of telecommunications public way agreements.
20.04.090 Specified route.
20.04.100 Service to city users.
20.04.110 Amendment to public way agreements.
20.04.120 Renewal of public way agreements.
20.04.130 Determination by city for renewal of public way agreements.
20.04.140 Notification of council action on renewal of public way
agreements and execution of agreements.
20.04.150 Obligation to cure as a condition of renewal.
20.04.160 Univor6al sorvvic, o. Reserved.
20.04.170 Annual fee for recovery of city costs.
20.04.180 Other city costs.
20.04.010 Public way agreements.
A public way agreement shall be required of any commercial utility or
telecommunications providers who desires to occupy specific public ways of the
city for the sole purpose of providing Commercial utility or telecommunications
services to persons or areas outside the city. (Ord. 5034 § 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 identity of the applicant, including all affiliates of the applicant;
B. A description of the commercial utility or telecommunications services
that are or will be offered or provided by the applicant using its facilities;
C. A description of the transmission medium or transporting means that will
be used by the applicant to offer or provide such telecommunications or utility
services;
D. Preliminary engineering plans, specifications and a network map of the
facilities to be located within the city, all in sufficient detail to identify:
1. The location and route requested for applicant's proposed facilities;
2. The location of all overhead and underground public utility,
telecommunication, cable, water, sewer drainage and other facilities in the
public way along the proposed route;
3. The location(s), if any, for interconnection with the utility or
telecommunications facilities of other utility or telecommunications carriers,
operators, and providers; and
4. The specific trees, structures, improvements, facilities and
obstructions, if any, that applicant proposes to temporarily or permanently
remove or relocate;
E. If applicant is proposing to install aboveground and/or overhead facilities:
1. Evidence that surplus space is available for locating its utility or
telecommunications facilities on existing utility poles along the proposed route;
2. Proof of compliance with city's zoning code; and
3. Demonstrate compatibility with existing and future street illumination
systems;
F. If applicant is proposing an underground installation in existing ducts or
conduits within the public ways, information in sufficient detail to identify:
1. The excess capacity currently available in such ducts or conduits
before installation of applicanrs utility or telecommunications facilities;
2. The excess capacity, if any, that will exist in such ducts or conduits
after installation of applicanrs 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 applicanrs utility or telecommunications facilities;
H. A preliminary construction schedule and completion date;
I. Information to establish that the applicant has obtained all other
governmental approvals and permits to construct and operate the facilities, and
to offer or provide the utility or telecommunications services, including, but not
limited to, evidence that the applicant has registered with the Washington
Utilities and Transportation Commission;
J. All deposits or charges required pursuant to this title;
K. Proof of ability to meet city's bonding requirements in ACC 12.24.050
when the applicant does not have an existing standing bond on file with the city
sufficient to cover the scope of work proposed and proof of ability to meet
security requirements in ACC 20.10.240 through 20.10.260;
L. A copy of an Auburn business registration stamped and signed by the city
clerk; and
M. A nonrefundable application fee in the amount of $500.00. (Ord. 5034 §
1, 1998.)
20.04.030 Notice of complete application and scheduling of public
hearing.
A. Within 30 calendar days after receipt of the public way agreement
application, the city will complete review of the application to determine whether
the application contains sufficient information as outlined in ACC 20.04.020 to
proceed with processing. If during the 30 calendar day review period, the city
engineer determines that the application is incomplete, the city engineer will
issue a letter to the applicant specifying the additional information necessary to
complete the application. The applicant will be given 30 calendar days to
respond to the request for additional information. Once the additional
information is received by the city, an additional 14 calendar days will be
allowed to determine whether the application is complete. Once the application
is determined complete, written notice will be provided following the procedure
outlined in this subsection. If the applicant needs additional time to respond the
applicant may request up to an additional 30 calendar days. If a response is not
timely received, the application will be returned to the applicant with a notice
that the application is rejected due to failure to provide the required information.
Any new applications will require a new application fee.
B. When satisfied that the application is complete, the city engineer will
notify the applicant in writing that the application is complete and inform the
applicant of the schedule for consideration by the public works committee. If the
public works committee determines that the application merits a separate public
hearing, it shall recommend to the city council that it schedule a public hearing.
The city clerk will notify the applicant in writing of the scheduled hearing. (Ord.
5034 § 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 applicanrs
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;
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
pavemenrs integrity may include additional periods of warranty bonding for up
to five years from the date of completion of work as determined by the city
engineer;
L. Demonstrated ability and commitment to meet city bonding and security
requirements established in ACC 20.10.240 through 20.10.260 and Chapter
12.24 ACC; and
M. Such other factors as may demonstrate that the public way agreement to
use the public ways will serve the community interest. (Ord. 5034 § 1, 1998.)
20.04.050 Notification of council action and execution of agreement.
Upon the city council's decision, the public works director shall notify the
applicant of the decision including reason(s) for denial and instruct the applicant
of the procedure to follow to complete execution of the agreement if approved
by the city council. No public way agreement shall be deemed to have been
granted hereunder until the applicant and the city have fully executed a written
agreement approved by the city council setting forth the particular terms and
provisions under which the grantee has been granted the right to occupy and
use public ways of the city and the applicant has provided the security deposits
and proof of insurance as required by Chapter 20.10 ACC. (Ord. 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. 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. 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. 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. 5034 § 1, 1998.)
20.04.100 Service to city users.
A grantee shall be permitted to use public ways to offer or provide utility or
telecommunications services to persons or areas within the city only upon city
council approval of a telecommunications franchise agreement pursuant to this
title. (Ord. 5034 § 1, 1998.)
20.04.'110 Amendment to public way agreements.
A new application shall be required of an commercial utility or
telecommunications provider who desires to extend or locate its facilities in
.public ways of the city which are not included in a public way agreement
previously granted under this title. If a grantee is required by the city to locate or
relocate its facilities in public ways not included in a previously granted public
way agreement, the city shall grant an amendment to the agreement without
further application. (Ord. 5034 § 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
D. A nonrefundable application fee of $75.00. (Ord. 5034 § 1, 1998.)
20.04.130Determination 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
applicanrs existing facilities; and
B. The applicant's compliance with the requirements of this title and the
public way agreement. (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. 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 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. 5034
§ 1, 1998.)
20.04.1S0 Univoreal eorvic, o.
Each tolocammunications public way agroomont grantod undor this titlo ic
subjoct to tho city's right, which is oxprosc, ly ro6orvod, to roquiro tho
tolocommunications c.3rrior, oporator, or providor to make an oquitablo and
nondir.,criminatory contribution to tho prosorvation and adv,.qncomont of
univorsal corvico to tho oxtont pormittod by etato and fodoral law. (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. 5034 § 1, 1998.)
20.04. t 80 Other city costs.
All grantees shall, within 30 days after written demand, reimburse the city
for all direct and indirect costs and expenses incurred by the city in connection
with any modification, amendment, renewal or transfer of the public way
agreement. In addition, all grantees shall, within 30 days after written
demand, reimburse the city for any and all costs the city reasonably incurs in
response to any emergency involving the grantee's facilities. All grantees shall,
within 30 days after written demand, reimburse the city for the grantee's
proportionate share of all actual, identified expenses incurred by the city in
planning, constructing, installing, repairing or altering any city facility as a result
of the construction or the presence in the public ways of the grantee's facilities.
(Ord. 5034 § 1, 1998.)
Chapter 20.06
FRANCHISE
Sections:
20.06.010 Franchise requirements.
20.06.020 Franchise applications.
20.06.030 Notice of complete application and scheduling of public
hearing.
20.06.040 Determination by the city.
20.06.050 Notification of council action and execution of franchise.
20.06.060 Nonexclusive franchise.
20.06.070 Term of franchise.
20.06.080 Rights granted.
20.06.090 Franchise territory.
20.06.100 Franchise fees in addition to utility taxes.
20.06.110 Nondiscrimination.
20.06.120 Amendment of franchise.
20.06.130 Renewal of franchise.
20.06.140 Determination by city for renewal of franchise.
20.06.150 Obligation to cure as a condition of renewal.
20.06.160 Univorsal sorvioo. Reserved
20.06.170 Other city costs.
20.06.180 Compensation for use of public ways.
20.06.190 Accounts, books and records.
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 minimus uses of public ways made in conjunction with a wireless
telecommunications facility located entirely upon publicly or privately owned
property. (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 s_9
that the City can keep track of various systems using the public way(s) to
prevent interference between the users;
C. A description of the services or facilities that the applicant will offer or
make available to the city and other public, educational and governmental
institutions, if any;
D. A description of applicant's service, access and line extension policies;
E. The area or areas of the city the applicant desires to serve and a initial
schedule for build-out to the entire franchise area;
F. The applicant's intended means and methods of providing service and
whether shared use of other utility poles or conduits is envisioned;
G. Documentation of all FCC lioonsoc and oquipment certificationc roquirod
by tho FCC, 3rid tho WUTC;
H. A list of all oitios in Washington whoro tho applicant h3c obtainod a
franc, his, e;
~G. All fees, deposits or charges required pursuant to this chapter;
JH. Such other and further information as permitted by federal and state law
as may be requested by the city;
1~/. 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-J_. A copy of an Auburn business registration stamped and signed by the
city clerk; and
MK. An nonrefundable application fee in the amount of $2,500. (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 whether the application contains sufficient information as outlined in
ACC 20.06.020 to proceed with processing. If during the 30 calendar day
review period, the city engineer determines that the application is incomplete,
the city engineer will issue a letter to the applicant specifying the additional
information necessary to complete the application. The applicant will be given
30 calendar days to respond. Once the additional information is received by the
city, an additional 14 calendar days will be allowed to determine whether the
application is complete. Once the application is determined complete, written
notice will be provided. If the applicant needs additional time to respond the
applicant may request up to an additional 30 calendar days. If a response is not
timely received, the application will be returned to the applicant with a notice
that the application is rejected due to failure to provide the required information.
Any new applications will require a new application fee.
B. Scheduling of Public Hearing. When satisfied that the application is
complete, the city engineer will notify the applicant in writing that the application
is complete and inform the applicant of the schedule for consideration by the
public works committee. The public works committee shall review the proposal
to include the planned use of the public ways and recommend any
modifications required prior to recommending setting the public hearing by the
city council. Once satisfied as to the terms of the negotiated draft franchise
agreement, the public works committee shall recommend that the city council
set the date for the public hearing. The city council will schedule the hearing
and the city clerk will notify the applicant in writing of the scheduled hearing.
(Ord. 5034 § 1, 1998.)
20.06.040 Determination by the city.
Within 180 calendar days from the time of notification that the application is
complete, under ACC 20.06.030(A), the city shall issue a written determination
granting or denying the application in whole or in part. Prior to granting or
denying a franchise under this title, the city council shall conduct a public
hearing and make a decision based upon the criteria set forth below. Pursuant
to Section 253(c) of the Federal Act, public disclosure of any fees as
compensation for use of public right-of-way is required, and RCW 35A.47.040
provides that the city council shall not approve any franchise hereunder until
the next regularly scheduled council meeting following the public hearing. If the
application is denied, in whole or in part, the written determination shall include
the reason(s) for denial. The decision to grant or deny, in whole or in part, an
application for a telecommunications franchise shall be based upon the
following:
A. VVhether the applicant has received all requisite licenses, certificates, and
authorizations from the Federal Communications Commission, the Washington
Utilities and Transportation Commission, and any other federal or state agency
with jurisdiction over the activities proposed by the applicant;
B. The capacity of the public ways to accommodate the applicant's
proposed facilities;
C. The capacity of the public ways to accommodate additional utility and
telecommunications facilities if the franchise is granted;
D. The damage or disruption, if any, of public or private facilities,
improvements, service, travel or landscaping if the franchise is granted;
E. The public interest in minimizing the cost and disruption of construction
within the public ways;
F. The service that applicant will provide to the community and region;
G. The effect, if any, on public health, safety and welfare if the franchise
requested is granted;
H. The availability of alternate routes and/or locations for the proposed
facilities;
I. Applicable federal and state utility and telecommunications laws,
regulations and policies;
J. The ability to avoid, or mitigate to the city's satisfaction, future conflicts
with the operation, repair, replacement, and maintenance of city-owned and
other commercial utilities;
K. The ability of the applicant to stabilize existing pavement structures prior
to disturbance in a manner sufficient to ensure future deterioration is not
accelerated by virtue of the installed facilities, and/or the ability and willingness
of the applicant to fully mitigate such damages to the extent that they may
prove unavoidable to the satisfaction of the city. Such security for the
pavement's integrity may include additional periods of warranty bonding for up
to five years from date of completion of work as determined by the city
engineer;
L. Demonstrated ability and commitment to meet city bonding and security
requirements established in ACC 20.10.240 through 20.10,260 and Chapter
12.24 ACC; and
M. Such other factors as may demonstrate that the franchise to use the
public ways will serve the community interest. (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. 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.
5034 § 1, 1998.)
20.06.070 Term of franchise.
By virtue of the uncertainties created by the Act, unless otherwise specified
in an existing franchise agreement, a telecommunications franchise granted by
the city pursuant to this title shall be valid for a term not to exceed five years.
(Ord. 5034 § 1, 1998.)
20.06.080 Rights granted.
No franchise granted under this chapter shall convey any right, title or
interest in the public ways, but shall be deemed a franchise only to use and
occupy the public ways for the limited purposes and term stated in the
franchise. Further, no franchise shall be construed as any warranty of title.
(Ord. 5034 § 1, 1998.)
20.06.090 Franchise territory.
Unless otherwise provided in the franchise ordinance, a franchise granted
under this chapter shall authorize the franchisee to operate in the public ways
throughout the city when a permit to install the necessary facilities has been
approved by the city. (Ord. 5034 § 1, 1998.)
20.06.t00 Franchise fees in addition to utility taxes.
Revenue derived directly or indirectly from sources within the city shall be
subject to applicable utility taxes as of the time of commencement of such
operations. Franchise fees shall be in addition to any utility tax, but shall be
collectible only to the extent as then allowed by law, and in no event may the
combined utility tax and franchise fee exceed six percent of gross revenue.
(Ord. 5034 § 1, 1998.)
20.06.110 Nondiscrimination.
A franchisee which purports to serve the general public shall make its utility
or telecommunications services available to any customer within its franchise
area who shall request such service, without discrimination as to the terms,
conditions, rates or charges for the franchisee's services; provided, however,
that nothing in this title shall prohibit a franchisee from making any reasonable
classifications among differently situated customers. (Ord. 5034 § 1, 1998.)
20.06.120 Amendment of franchise.
Except as otherwise provided within an existing franchise ordinance, a new
franchise application shall be required of any commercial utility or
telecommunications carrier or operator that desires to extend its franchise
territory or to locate its utility or telecommunications facilities in public ways of
the city which are not included in a franchise previously granted under this title.
If a franchisee is required by the city to locate or relocate its facilities in public
ways not included in a previously granted franchise, the city shall grant a
franchise amendment without further application. (Ord. 5034 § 1, 1998.)
20.06.130 Renewal of franchise.
A franchisee that desires to renew its franchise under this chapter for an
additional five-year term shall, not more than 240 days nor less than 180 days
before expiration of the franchise in effect, file an application, which is
determined as complete in accordance with ACC 20.06.030, with the city for a
renewal of its franchise which shall include the following:
A. The information required pursuant to ACC 20.06.020;
B. Any information. required pursuant to the franchise agreement between
the city and the franchisee;
C. All deposits or charges required pursuant to this chapter;
D. A nonrefundable application fee in the amount of $500.00. (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. 5034 § 1, 1998.)
20.06.150 Obligation to cure as a condition of renewal.
No franchise shall be renewed until any ongoing violations or defaults in the
franchisee's performance of the franchise agreement, or of the requirements of
this title, have been cured, or a plan detailing the corrective action to be taken
by the franchisee has been approved in writing by the city. (Ord. 5034 § 1,
1998.)
20.1)6.160 Univors:31 eorvico.
Each tolocommunications franchicc granted undor this titlo is subjoot to tho
city'c right, which is oxproscly ror.,crvod, to roquirc tho franchicco to rnako an
oquitablo. and nondiccriminatory .contribution to tho pror.,orv3tion and
advancomont of univorcal ccrvico to tho oxtont pormittod by stato and fodoral
law. (Ord. 503xl § 1, 1008.)
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. 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 great expense to its taxpayers, and that the grant of
use of said public ways is a valuable property right, without which grantees and
franchisees would be required to invest substantial capital in public way costs
and acquisitions; therefore, grantees and franchisees shall pay the city as a
general compensation for the use of the public way during each year of the
term of a franchise a franchise fee as determined by city council, not to exceed
six percent of gross revenues for each quarter of each calendar year.
Franchisees shall pay the franchise fee mandated by this chapter but the city
acknowledges and understands that such amount (and any other fees,
assessments, or taxes imposed on franchisees not described in ACC
20.06.180(E)) shall appear as a line item on the bill sent to, and shall be
collected from, the subscribers; provided further, that the compensation
required from any telecommunications operator or carrier engaged in the
"telephone business," as defined in RCW 82.04.065 shall be consistent with
RCW 35.21.860.
B. Annual Franchise Fee Adjustments. The initial annual franchise fee
percentage shall be four and one-half percent of gross revenues unless and
until it is further adjusted by city council. Any such adjustment shall occur at
least 60 days before any subsequent annual anniversary date. Any adjustment
shall become effective on the subsequent annual anniversary date.
C. Quarterly Payment. Franchisees shall forward by check wire transfer an
amount equal to this quarterly payment by the fifteenth day of the second
calendar month immediately following the close of the calendar quarter for
which the payment is calculated.
D. Late Payment. In the event any quarterly payment is made after noon on
the date 10 days after the date due, franchisees shall pay a late payment
penalty of the greater of:
1. Twenty-five dollars; or
2. Simple interest at a 12 percent annual percentage rate on the total
amount past due.
E. Fees and Compensation Not a Tax. The fees, charges and fines provided
for in this title and any compensation charged and paid for the franchisee's use
of the-city's public ways, whether "fiduciary or in kind", are separate from, and
additional to, any and all federal, state, local and city taxes as may be levied,
imposed or due from a commercial utility, telecommunications carrier, operator,
or provider, its customers or subscribers or on account of the lease, sale,
delivery or transmission of utility or telecommunications services.
F. Ruling of Unenforceability. The compensation required from any
commercial utility, telecommunications carrier, operator, or provider shall be as
provided by law. In the event any franchise fee shall be held unenforceable by
a court of law which has jurisdiction over the city, franchisees shall pay the
equivalent amount paid in franchise fees as a city utility tax which, shall be
applied retroactively to time periods during which the franchise fee was
determined to be unenforceable.
G. Quarterly Report. In order to properly determine the gross revenues
received by franchisees, the franchisee shall on the same date that each
quarterly payment is made, file with the director of finance a sworn copy of a
report, in a form acceptable to the city, in sufficient detail to itemize revenues
from each of the revenue categories. The city may, if it sees fit and at its own
expense, have the books and records of franchisees examined by a
representative of said city to ascertain the correctness of the reports agreed to
be filed herein. Neither the acceptance of any payment nor any subsequent
review shall be deemed an agreement by the city that the correct payment was
paid, absent a fully authorized written release by the city on any such payments
or on such reports. Any necessary prorations shall be made in the first and last
year of each term of the franchise. Any city request for access to books and
records shall be allowed by the franchisee at reasonable times and for
reasonable purposes. Such information shall be held in strict confidence by the
city as allowed by law and used only for the purpose stated herein.
H. Recalculation at End of Compensation Year. At the end of each calendar
year, franchisees shall recalculate the total general compensation actually due.
If additional amounts are due the city by franchisee, said amounts shall be paid
by the fifteenth day of February following the calendar year during which such
amounts were originally due. If amounts are found to be due the franchisees by
the city, said amounts shall be credited by the fifteenth day of February during
which such amounts were originally due. Any necessary prorations will be
made.
I. Taxes are Not to Be a Credit. The compensation paid under this franchise
shall be exclusive of and in addition to all special assessments and taxes of
whatever nature which are applicable to all other persons or entities doing
business'within the city, including, but not limited to, ad valorem tax, sales 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.
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. 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 the public way(s), franchisee's accounting methods and
procedures in connection therewith, and the recording and reporting by
franchisees of all revenues and uncollectibles. Franchisees shall report to tho
city ~.,uch othor nonpropriotary information rolating to franchicoos as tho city
may oonsidor usoful and shall comply with the city's determination regarding
forms for reports, the time for reports, the frequency with which any reports are
to be made, and whether reports are to be made under oath. The city
acknowledges that a franchisee may be a reporting company under the
Securities Exchange Act of 1934 and that shares of its stock are publicly
traded. As such, a franchisee may be precluded from disclosing certain
sensitive, 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 pursuant subject to this
franchise ordinance in accordance with generally accepted accounting
principles or in accordance with accounting rules prescribed by applicable
federal or state regulatory agencies. The city may require the keeping of
additional records or accounts which are reasonably necessary for purposes of
identifying, accounting for, and reporting gross revenues and uncollectibles. All
subscribers who report a service address in the city of Auburn shall be subject
to taxes and fees under this franchise. When required by the city, the
franchisee shall make available a complete list of all service addresses within
the city of Auburn. This list shall be available for review by the city at a local
franchisee's business office. The list will be provided on a computer disc in
ASCII format sorted by zip code. It is understood this data is' only needed for
Auburn to perform an audit to ascertain that the correct subscribers are
subjected to Auburn taxes and fees. As the city annexes new areas, those zip
codes, if any, will be added.
C. Access to Records. The franchisee shall provide the city with access at
reasonable times and for reasonable purposes, to examine, audit, review
and/or obtain copies of the papers, books, accounts, documents, maps, plans
and other records of the franchisee pertaining to any this franchise ordinance.
The franchisee shall fully cooperate in making available its records and
otherwise assisting in these activities. Such information shall be held in strict
confidence by the city, as allowed by law, and used only for the purpose stated
herein.
D. Inquires to Franchisee. The city may, at any time, make inquires
pertaining to the franchisee's operation of its utility or telecommunications
system within the franchise area. The franchisee shall respond to such inquiries
on a timely basis.
E. FCC and Other Filingc. Subject to the caveat cot forth above in
cubcoction (A) of this section, franchicoos. chall provide the city with notiooc of
all petitlone and applicationc submitted by franc, hir_,oo to the FCC, Securities
and Exc.,hango Commition and the Washington Utilities and Tranr_.,portation
Commission or their suocor_,sor agencies, directly relating to any cubstantially
important matters which negatively aftoct the ur.~ of the public ways and/or the
utility or tolocommunicationc operations authorized pumuant to this franchise.
(Ord. 5031 § 1, 1008.)
Chapter 20.08
FACILITIES LEASE
Sections:
20.08.010 Facilities lease.
20.08.020 Lease application.
20.08.030 Notice of complete application and scheduling of public
hearing.
20.08.040 Determination by the city.
20.08.050 Notification of council action and execution of lease.
20.08.060 Nonexclusive lease.
20.08.070 Term of facilities lease.
20.08.080 Rights granted.
20.08.090 Interference with other users.
20.08.100 Ownership and removal of improvements.
20.08.110 Cancellation of lease by lessee.
20.08.120 Compensation to the city.
20.08.130 Amendment of facilities lease.
20.08.140 Renewal of facilities lease.
20.08.150 Determination by the city for renewal of facility lease.
20.08.160 Obligation to cure as a condition of renewal.
20.08.010 Facilities lease.
The city council may, in its sole discretion, which is hereby reserved,
approve facilities leases for the location of commercial utility or
telecommunications facilities and other nontelecommunications facilities upon
city property, as that term is defined in this title. Neither this chapter, nor any
other provision of this title shall be construed to create an entitlement or vested
right in any person or entity of any type to the use of any city property or city
facility. (Ord. 5034 § 1, 1998.)
20:08.020 Lease application.
Any person that desires to solicit the city's approval of a facilities lease
pursuant to this title shall file a lease proposal with the city which, in addition to
the information required by ACC 20.06.020, shall include the following:
A. A description of the facilities or other equipment proposed to be located
upon city property;
B. A description of the city property upon which the applicant proposes to
locate facilities or other equipment;
C. Preliminary plans and specifications in sufficient detail to identify:
1. The location(s) of existing telecommunications facilities or other
equipment upon the city property, whether publicly or privately owned.
2. The location and source of electric and other utilities required for the
installation and/or operation of the proposed facilities or equipment;
D. Accurate scale conceptual drawings and diagrams of sufficient specificity
to analyze the aesthetic impacts of the proposed telecommunications facilities
or other equipment;
E. If applicant is proposing to install aboveground and/or overhead facilities:
1. Evidence that surplus space is available for locating its
telecommunications facilities on existing utility poles along the proposed route;
2. Proof of compliance with city's zoning code;
F. Whether the applicant intends to provide cable service, video dialtone
service or other video programming service, and sufficient information to
determine whether such service is subject to cable franchising;
G. An accurate map showing the location of any existing utility or
telecommunications facilities in the city that applicant intends to use or lease;
H. A description of the services or facilities that the applicant will offer or
make available to the city and other public, educational, and governmental
institutions;
I. A copy of an Auburn business registration stamped and signed by the city
clerk;
J. Proof of ability to meet city's bonding requirements in Chapter 12.24 ACC
when the applicant does not have an existing standing bond on file with the city
sufficient to cover the scope of work proposed and proof of ability to meet the
city's security requirements in ACC 20.10.240 through 20.10.260;
K. An nonrefundable application fee in the amount of $500.00; and
L. Such other and further information as may be requested by the city. (Ord.
5034 § 1, 1998.)
20.08.30 Notice of complete application and scheduling of public
hearing.
A. Within 30 calendar days the city will complete an initial review of the
application to determine whether the application contains sufficient information
as outlined in ACC 20.08.020 to proceed with processing. Once satisfied that
the proposal is clear, the mayor will appoint a negotiation team to meet with the
applicant and determine whether additional information is needed. The team
shall as a minimum consist of the finance director, a legal representative, and
the department director affiliated with the property being considered for lease. If
during the 30 calendar day *review period, the application is deemed
incomplete, the city will issue a letter to the applicant specifying the additional
information necessary in order to proceed with processing. The applicant will be
given 30 calendar days to respond. Once the additional information is received
by the city, an additional 14 calendar days will be allowed to determine whether
the application is complete. Once the application is determined complete,
written notice will be provided. If a response is not timely received, the
application will be returned to the applicant with a notice that the application is
rejected due to failure to provide the required information. Any new applications
will require a new application fee.
B. When satisfied that the application is complete, the finance director will
issue a letter of completeness and notifying the applicant of the schedule the
issue will be considered by the appropriate council committee. The appropriate
committee will give initial considerations to the negotiation team to facilitate
completion of a negotiated draft lease agreement. Once the team returns to the
committee with a draft lease agreement, the committee will determine if the
issues merits a separate public hearing, and recommend to the city council
whether a public hearing should be held. The city council will schedule the
hearing and the city clerk will notify the applicant in writing of the scheduled
hearing. (Ord. 5034 § 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 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
applicanrs proposed facilities.
B. The capacity of the city property and public ways to accommodate
additional utility and telecommunications facilities if the lease is granted.
C. The damage or disruption, if any, of public or private facilities,
improvements, service, travel or landscaping if the lease is granted.
D. The public interest in minimizing the cost and disruption of construction
upon city property and within the public ways.
E. The service and public benefit that applicant will provide to the
community and region.
F. The effect, if any, on public health, safety, and welfare if the lease
requested is approved.
G. The availability of alternate routes and/or locations for the proposed
facilities.
H. Whether the applicant is in compliance with applicable federal and state
telecommunications laws, regulations and policies, including, but not limited to,
the registration requirements administered by the Washington Utilities and
Transportation Commission.
I. The potential for radio frequency and other interference with existing
public and private telecommunications or other facilities located upon the city
property.
J. The potential for radio frequency and other interference or impacts upon
residential, commercial, and other uses located within the vicinity of the city
property.
K. Whether the city's property zoning supports the proposed land use.
L. Demonstrated ability and commitment to meet city bonding and security
requirements established in ACC 20.10.240 through 20.10.260.
M. Such other factors as may demonstrate that the lease to use the city
property will serve the community interest.
N. Other criteria determined to be necessary or appropriate to the public
health, safety, or welfare of the community. (Ord. 5034 § 1, 1998.)
20.08.050' Notification of council action and execution of lease.
Upon the city council's decision, the finance director shall notify the
applicant of the decision and instruct the applicant of the procedure to follow to
complete execution of the lease agreement if approved by the city council. No
facilities lease shall be deemed to have been granted hereunder until after any
scheduled public hearing and city council approval of a written agreement
setting forth the particular terms and provisions under which the lessee has
been granted the right to occupy and use the city property specified in the lease
and both the city and applicant have fully executed the lease and the applicant
has provided the security deposits and proof of insurance as required by
Chapter 20.10 ACC. (Ord. 5034 § 1, 1998.)
20.08.060 Nonexclusive lease.
No facilities lease granted under this title shall confer any exclusive right,
privilege, license, or franchise to occupy or use city property for delivery of
utility or telecommunications services or any other purposes. (Ord. 5034 § 1,
1998.)
20.08.070 Term of facilities lease.
By virtue of the uncertainties created by the Act, except as provided in an
existing lease agreement, a facilities lease granted hereunder shall be valid for
a maximum term of five years, subject to renewal as provided in this chapter.
(Ord. 5034 § 1, 1998.)
20.08.080Rights granted.
No facilities lease granted under this chapter shall convey any right, title or
interest, of any kind, in the city property, but shall be deemed a license only to
use and occupy the city property for the limited purposes and term stated in the
lease agreement. Further, no facilities lease shall, be construed as any warranty
of title. (Ord. 5034 § 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 into leases with other tenants for their
equipment and telecommunications facilities. Lessee acknowledges that the
City is also leasing the City property for the purposes of transmitting and
receiving telecommunications signals from the City property. The City, however,
is not in any way responsible or liable for any interference with Lessee's use of
the City property which may be caused by the use and operation of any other
tenant's equipment, even if caused by new technology. In the event that any
other tenant's activities interfere with the Lessee's use of the City property, and
the Lessee cannot work out this interference with the other tenants, the Lessee
may, upon 30 days' notice to the City, terminate this Lease and restore the City
property to its original condition, reasonable wear and tear excepted. The
Lessee shall cooperate with all other tenants to identify the causes of, and work
towards the resolution of, any electronic interference problem. In addition, the
Lessee agrees to eliminate any radio or television interference caused to City-
owned or other public/private facilities or surrounding property owners,
residents, or tenants at Lessee's own expense and without installation of extra
filters on City-owned equipment. Lessee further agrees to accept such
interference as may 'be received from City operated telecommunications or
other facilities located upon the City property subject to this Lease.
(Ord. 5034 § 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, in the event that utility or telecommunications facilities
or other equipment are left upon city property after expiration or termination of
the lease, they shall become the property of the city if not removed by the
lessee after 30 days' written notice from the city. (Ord. 5034 § 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 licenses, it may cancel its lease, and obtain a pro rata refund in
any rents paid, without further obligation by giving 30 days' prior written notice
to the city.
B. In the event that the holder of a facilities lease determines that the city
property is unsuitable for its intended purpose, the lessee shall have the right to
cancel the lease upon 120 days' written notice to the city. However, no prepaid
rent shall be refundable. (Ord. 5034 § 1, 1998.)
20.08.120 Compensation to the city.
Each facilities lease granted under this title is subject to the city's right,
which is expressly reserved, to annually fix a fair and reasonable compensation
to be paid for the rights granted to a lessee; provided, nothing in this title shall
prohibit the city and a lessee from agreeing to the compensation to be paid.
Such compensation shall be payable in advance of the effective date of the
lease and on or before January 31st of each calendar year. Any payments
received after the due date shall include a late payment penalty of two percent
of the annual rental fee for each day or part thereof past the due date. If any or
all of the rental fee is more than 60 calendar days delinquent, the lease will
automatically terminate on the sixty-first calendar day of delinquency, and the
city may proceed to collect against any security provided by the lessee. (Ord.
5034 § 1, 1998.)
20.08.130 Amendment of facilities lease.
Except as provided within an existing lease agreement, 'a new lease
application and lease agreement shall be required of any lessee that desires to
expand, modify, or relocate its facilities or other equipment located upon city
property. If the lessee is required by the city to locate or relocate its facilities or
other equipment on the city property, the city shall grant a lease amendment
without further application. (Ord. 5034 § 1, 1998.)
20.08.140 Renewal of facilities lease.
A lessee that desires to renew its facilities lease in effect under this chapter
shall, not more than 120 days nor less than 90 days before expiration of the
facilities lease then in effect, file an application, which is determined as
complete in accordance with ACC 20.08.030, with the city for renewal of its
facilities lease which shall include the following:
A. The information required pursuant to ACC 20.08.020;
B. Any information required pursuant to the facilities lease agreement
between the city and the lessee;
C. All deposits or charges required pursuant to this chapter;
D. A nonrefundable application renewal fee in the amount of $250.00. (Ord.
5034 § 1, 1998.)
20.08.150 Determination by the city for renewal of facility lease.
All renewals of leases subject to this title shall be renewed in accordance
with the provisions of ACC 20.08.030 and 20.08.040. Recognizing that the city
council is under no obligation to approve a renewal of a facilities lease for the
use of city property, the city council shall attempt to consider and take action on
applications for renewal of such leases within 90 days after receiving a
complete application for such a lease renewal. VVhen such action is taken, the
city shall issue a written determination granting or denying the lease renewal, in
whole or in pad. If the renewal applicatioq 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. 5034 § 1, 1998.)
20.08.160 Obligation to cure as a condition of renewal.
No facilities lease shall be renewed until any ongoing violations or defaults
in the lessee's performance of the lease agreement, or of the requirements of
this title, have been cured, or a plan, secured by bond or deposit account to the
city's satisfaction, detailing the corrective action to be taken by the lessee has
been approved in writing by the city. (Ord. 5034 § 1, 1998.)
Chapter 20.10
CONDITIONS OF PUBLIC WAY AGREEMENTS, FRANCHISES, AND
FACILITIES LEASES
Sections:
20.10.010 Purpose.
20.10.020 Acceptance and effective date.
20.10.030 Police power.
20.10.040 Rules and regulations by the city.
20.10.050 Location of facilities.
20.10.060 Compliance with One Number Locator Service.
20.10.070 Construction permits.
20.10.080 Interference with the public ways.
20.10.090 Damage to property.
20.10.100 Notice of work.
20.10.110 Repair and emergency work.
20.10.120 Maintenance of facilities.
20.10.130 Abandonment, relocation or removal of facilities.
20.10.140 Building moving.
20.10.150 Removal of unauthorized facilities.
20.10.160 Emergency removal or relocation of facilities.
20.10.170 Damage to facilities.
20.10.180 Restoration of public ways, other ways, city property and
public/private utility property.
20.10.190 Facilities maps.
20.10.200 Duty to provide information.
20.10.210 Leased capacity.
20.10.220 Insurance.
20.10.230 General indemnification.
20.10.240 Performance and construction surety.
20.10.250 Security options.
20.10.260 Performance bond.
20.10.270 Coordination of construction activities.
20.10.280 Assignments or transfers of public way agreements,
franchises, or leases.
20.10.290 Transactions affecting control of public way agreements,
franchises, or leases.
20.10.300 Revocation or termination of public way agreements,
franchises, or leases.
20.10.310 Notice and duty to cure.
20.10.320 Public hearing.
20.10.330 Standards for revocation or lesser sanctions.
20.10.340 Civil penalties.
20.10.350 Enforcement.
20.t0.360 Other remedies.
20.10.370 Venue of any court action.
20.10.380 Action by the FCC.
20.10.390 Incorporation by reference.
20.10.400 Notice of entry on private property.
20.10.410 Safety requirements.
20.10.420 Most favored community.
20.10.430 Compliance with zoning standards.
20.10.440 Unfunded mandate.
20.10.450 Care of trees along streets.
20.10.460 Use of utility poles and facilities of others.
20.10.470 Use of poles and facilities by city.
20.10.480 Administration.
20.10.010 Purpose.
The purpose of this chapter is to set forth certain terms and conditions
which are common to all public way agreements, franchises, and facilities
leases granted under the provisions of this title. Except as otherwise provided
in this chapter or in such a public way agreement, franchise, or lease, the
provisions of this chapter apply to all such public way agreements, franchises,
and leases approved or granted by the city. (Ord. 5034 § 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. 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. 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 by the city, or agreed to and provided for in any
public way agreement, franchise, or lease, the right and power is hereby
reserved by the city to promulgate such additional regulations as it may find
necessary in the exercise of its lawful powers giving due regard to the rights of
grantees, franchisees, and lessees. Except as provided in this title, the
foregoing does not allow for amendment by the city of material terms of any
public way agreement, franchise, or lease granted without the written consent
of the grantee, franchisee, or lessee. (Ord. 5034 § 1, 1998.)
20.10.050 Location of facilities.
All facilities shall be constructed, installed, and located in accordance with
'the following terms and conditions, unless otherwise specified in a public way
agreement, franchise, or lease agreement.
A. Unless otherwise provided in a public way agreement, franchise, or
lease, a grantee, franchisee, or lessee with permission to occupy a public way
must locate its cable or telecommunications facilities underground in
accordance with ACC Title 18 and Chapter 13.32 ACC.
B. Any newcomer in the public way must bear the full cost of discovering the
location of any existing conflicts, coordination of the engineering plans to
acquire the approvals of parties already in the public way, and relocating and/or
mitigating such conflicts with preexisting facilities in conflict with the plans of the
newcomer.
C. Whenever the city requires, a grantee, franchisee, or lessee subject to
this title, that currently occupies the public way shall relocate its facilities
underground at no expense to the city. Such relocation shall be made
concurrently with other planned work to minimize the disruption of the public
ways as determined by the city engineer.
D. Should the available capacity of public ways prevent new uses in the
future, all persons subject to this title shall negotiate with any interested
newcomer the means of creating new capacity as required by federal or state
law. The parties shall arrive at a mutually supportable agreement and submit
the same to the city for review and comment. The parties will incorporate any
reasonable city requirements for approval, and resubmit the revised proposal
for city council approval. If approved by the city council, the parties will bear all
costs associated with the proposal, and obtain the necessary permits to
execute the approved plan from the city in accordance with this title and
Chapter 12.24 ACC. The city shall bear no costs associated with resolution of
capacity shortages within the public ways. (Ord. 5034 § 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
P, CW, the One Number Locator Service. (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. 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
public ways by the city, by the general public or by other persons authorized to
use or be present in or upon the public ways. All such facilities which
unreasonably interfere with the use of the city's public ways as determined by
the public works director, shall be moved in accordance with provisions in ACC
20.10.130, by the grantee, franchisee, or lessee, at the grantee, franchisee, or
lessee's cost, temporarily or permanently, as determined by the public works
director. (Ord. 5034 § 1, 1998.)
20.10.090 Damage to property.
No grantee, franchisee, or lessee, nor any person acting on behalf of a
grantee, franchisee, or lessee shall take any action or permit any action to be
taken which may impair or damage any city property, public ways of the city,
other ways or other property, whether publicly or privately owned, located in, on
or adjacent thereto. (Ord. 5034 § 1, 1998.)
20.10.100 Notice of work.
Unless otherwise provided in a public way agreement, franchise, or lease
agreement, no grantee, franchisee, or lessee, nor any person acting on behalf
of the grantee, franchisee, or lessee shall commence any nonemergency work
in or about the public ways of the city, other .ways, or upon city property without
10 working days' advance written notice to the city which notice shall include
the location of the work to be done, a detailed description of the work to be
done, and a schedule for completion. (Ord. 5034 § 1, 1998.)
20.10.110 Repair and emergency work.
In the event of an emergency, a grantee, franchisee, or lessee may
commence such repair and emergency response work as required under the
circumstances, provided the grantee, franchisee, or lessee shall notify the city
in writing as promptly as possible, before such repair or emergency work
commences or as soon thereafter as possible if advance notice is not
practicable. The city may act without prior written notice in case of emergency.
(Ord. 5034 § 1, 1998.)
20.10.120 Maintenance of facilities.
Each grantee, franchisee, or lessee shall maintain its facilities in good and
safe condition and in a manner that complies with all applicable federal, state
and local requirements. (Ord. 5034 § 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. 5034 § 1, 1998.)
20.10.140 Building moving.
Whenever any person shall have obtained permission from the city to use
any street or public way for the purpose of moving any building, a grantee,
franchisee, or lessee, upon seven calendar days' written notice from the city,
shall raise or remove, at the expense of the person desiring to move the
building, any of the grantee, franchisee, or lessee's utility wires, poles, or
facilities which may obstruct the moving of such building; provided, that the
person desiring to move the building shall comply with all requirements of the
city for the moving of buildings. (Ord. 5034 § 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;
D. If the system or facility was constructed or installed without the prior
issuance of a required construction permit;
E. If the system or facility was constructed or installed at a location not
permitted by a public way agreement, franchise or lease.
Provided, however, that the city may, in its sole discretion, allow a grantee,
franchisee, or lessee or other such persons who may own, control, use, or
maintain commercial utility, cable or telecommunications facilities within the
public ways of the city or upon city property to abandon such facilities in place.
No facilities of any type may be abandoned in place without the express written
consent of the city. Any plan for abandonment or removal of a grantee's,
franchisee's, or lessee's facilities must be first approved by the public works
director, and all necessary permits must be obtained prior to such work. Upon
permanent abandonment in place of the facilities such facilities shall become
the city's property, and such persons shall submit to the city an instrument in
writing, to be approved by the city attorney, transferring to the city the
ownership of such property. The provisions of this section shall survive the
expiration, revocation, or termination of a public way agreement, franchise, or
lease granted under this title. (Ord. 5034 § 1, 1998.)
20.10.160 Emergency removal or relocation of facilities.
The city retains the right and privilege to cut or move any commercial utility,
cable or telecommunications facilities located within the public ways of the city
and upon city property, as the city may determine to be necessary, appropriate
or useful in response to any public health or safety emergency. The city shall
not be liable to any utility, cable operator, telecommunications carrier, operator,
or provider, or any other party for any direct, indirect, or any other such
damages suffered by any person or entity of any type as a direct or indirect
result of the city's actions under this section. (Ord. 5034 § 1, 1998.)
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. 5034 § 1, 1998.)
20.10.180 Restoration of publicsways, other ways, city property and
public/private utility property.
A. VVhen 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 properly. Such temporaW restoration shall be at the grantee,
franchisee, or lessee's sole expense and the grantee, franchisee, or lessee
shall promptly undertake and complete the required permanent restoration
when the weather Or other conditions no longer prevent such permanent
restoration.
C. A grantee, franchisee, lessee or other person acting on behalf of such
persons shall use suitable barricades, flags, flagmen, lights, flares, and other
measures as required for the safety of all members of the general public and to
prevent injury or damage to any person, vehicle, or property by reason of such
work in or affecting such public ways, other ways, or property.
D. The public works director shall be responsible for inspection and final
approval of the condition of the public ways, other ways, and city property
following any construction and restoration activities therein. Further, the
provisions of this section shall survive the expiration, revocation, or termination
of a public way agreement, franchise, lease, or other agreement granted
pursuant to this title or Chapter 12.24 ACC. (Ord. 5034 § 1, 1998.)
20.10.190 Facilities maps.
Each grantee, franchisee, and lessee shall provide the city with a map or
maps accurately reflecting the horizontal and vertical location and configuration
of all of their commercial utility or telecommunications facilities within the public
ways and upon city property. Each grantee, franchisee, and lessee shall
provide the city with updated maps annually or upon written request by the city.
(Ord. 5034 § 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.
All books, records, maps and other documents, maintained by the grantee,
franchisee, or lessee with respect to its utility or telecommunications facilities
within the public ways and upon city property shall be made available for
inspection by the city at reasonable times and intervals; provided, however, that
nothing in this section shall be construed to require a grantee, franchisee, or
lessee to violate state or federal law regarding subscriber privacy, nor shall this
section be construed to require a grantee, franchisee, or lessee to disclose
proprietary or confidential information without adequate safeguards for its
confidential or proprietary nature. Such information shall be held in strict
confidence, as allowed by law, by the city and used only for the purpose stated
herein. (Ord. 5034 § 1, 1998.)
20.10.210 Leased capacity.
A grantee, franchisee, or lessee shall have the right to offer or provide
capacity or bandwidth to its customers consistent with such permit, franchise,
or lease; provided:
A. The grantee, franchisee, or lessee shall furnish the city with a copy of any
such lease or agreement between the grantee, franchisee, or lessee and the
customer or sub-lessee or provide to the city's finance director sufficient
information to determine whether the lessee or customer is subject to city taxes
or assessments; and
B. The sub-lessee fulfills all requirements of Chapters 5.82 and 5.88 ACC
regarding the reporting of all revenues subject to city taxes and assessments;
and
C. Lessee must comply with the city's registration requirements in Chapter
5.84 ACC. (Ord. 5034 § 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 insurance policies insuring both the grantee, franchisee, or
lessee and the city, and its elected and appointed officers, officials, agents,
employees, representatives, engineers, consultants, and volunteers as
additional insureds against claims for injuries to persons or damages to
property which may arise from or in connection with the exercise of the rights,
privileges, and authority granted to the grantee, franchisee, or lessee:
A. Comprehensive general liability insurance, written on an occurrence
basis, with limits not less than:
1. Five million dollars for bodily injury or death to each person;
2. Five million dollars for property damage resulting from any one
accident; and
3. Five million dollars for all other types of liability;
B. Automobile liability for owned, nonowned and hired vehicles with a limit of
$3,000,000 for each person and $3,000,000 for each accident;
C. Worker's compensation within statutory limits and employer's liability
insurance with limits of not less than $1,000,000;
D. Comprehensive form premises-operations, explosions and collapse
hazard, underground hazard and products completed hazard with limits of not
less than $3,000,000;
E. The liability insurance policies required by this section shall be
maintained by the grantee, franchisee, or lessee throughout the term of the
public way agreement, franchise, or lease, and such other period of time during
which the grantee, franchisee, or lessee is operating without a public way
agreement, franchise, or lease hereunder, or is engaged in the removal of its
telecommunications facilities. The grantee, franchisee, or lessee shall provide
an insurance certificate, together with an endorsement naming the city, and its
elected and appointed officers, officials, agents, employees, representatives,
engineers, consultants, and volunteers as additional insureds, to the city prior
to the commencement of any work or installation of any utility or
telecommunications facilities pursuant to said public way agreement, franchise,
or lease. Any deductibles or self-insur. ed 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. 5034 § 1, 1998.)
20.10.230 General indemnification.
No public way agreement, franchise, or lease shall be deemed to be
granted under this title unless it includes an indemnity clause substantially
conforming to the following:
The grantee, franchisee, or lessee hereby releases, covenants not to
bring suit and agrees to indemnify, defend and hold harmless the City, its
elected and appointed officials, officers, employees, agents, representatives,
engineers, and consultants from any and all claims, costs, judgments, awards,
or liability to any person, including claims by the grantee, franchisee, or
lessee's own employees to which the grantee, franchisee, or lessee might
otherwise be immune under RCW Title 51, arising from injury or death of any
person or damage to property of which the negligent acts or omissions of the
grantee, franchisee, or lessee, its agents, servants, officers, or employees in
performing under this Public Way Agreement, franchise, or lease are the
proximate cause. The grantee, franchisee, or lessee further releases,
covenants not to bring suit and agrees to indemnify, defend and hold harmless
the City, its elected and appointed officials, officers, employees, agents,
representatives, engineers, and consultants from any and all claims, costs,
judgments, awards, or liability to any person including claims by the grantee,
franchisee, or lessee's own employees, including those claims to which the
grantee, franchisee, or lessee might otherwise have immunity under RCW Title
51, arising against the City solely by virtue of the City's ownership or control of
the rights-of-way or other public properties, by virtue of the grantee, franchisee,
or lessee's exercise of the rights granted herein, or by virtue of the City's
permitting the grantee, franchisee, or lessee's use of the City's rights-of-way or
other public property, based upon the City's inspection or lack of inspection of
work performed by the grantee, franchisee, or lessee, its agents and servants,
officers or employees in connection with work authorized on the City's property
or property over which the City has control, pursuant to this Public Way
Agreement, franchise, or lease, or pursuant to any other permit or approval
issued in connection with this Public Way Agreement, Franchise, or Lease. This
covenant of indemnification shall include, but not be limited by this reference,
claims against the City arising as a result of the negligent acts or omissions of
the grantee, franchisee, or lessee, its agents, servants, officers, or employees
in barricading, instituting trench safety systems or providing other adequate'
warnings of any excavation, construction, or work in any public right of way or
other public place in performance of work or services permitted under this
Public Way Agreement, Franchise, or Lease.
Inspection or acceptance by the City of any work performed by the
grantee, franchisee, or lessee at the time of completion of construction shall not
be grounds for avoidance of any of these covenants of indemnification. Said
indemnification obligations shall extend to claims which' are not reduced to a
suit and any claims which may be compromised prior to the culmination of any
litigation or the institution of any litigation.
In the event that the grantee, franchisee, or lessee refuses the tender of
defense in any suit or any claim, said tender having been made pursuant to the
indemnification clauses contained herein, and said refusal is subsequently
determined by a court having jurisdiction (or such other tribunal that the parties
shall agree to decide the matter), to have been a wrongful refusal on the part of
the grantee, franchisee, or lessee, then the grantee, franchisee, or lessee shall
pay all of the City's costs for defense of the action, including all reasonable
expert witness fees and reasonable attorneys' fees and the reasonable costs of
the City, including reasonable attorneys' fees of recovering under this
indemnification clause.
In the event of liability for damages arising out of bodily injury to persons or
damages to property caused by or resulting from the concurrent negligence of
the grantee, franchisee, or lessee, and the City, its officers, employees and
agents, the grantee, franchisee, or lessee's liability hereunder shall be only to
the extent of the grantee, franchisee, or lessee's negligence. It is further
specifically and expressly understood that the indemnification provided herein
constitutes the grantee, franchisee, or lessee's waiver of immunity under RCW
Title 51, solely for the purposes of this indemnification. This waiver has been
mutually negotiated by the parties.
The provisions of this section shall survive the expiration or termination of any
Public Way Agreement, Franchise, or Lease agreement.
Notwithstanding any other provisions of this Title, the grantee,
franchisee, or lessee assumes the risk of damage to its facilities located in the
City's public ways, rights-of-way, easements, and property from activities
conducted by the City, its officers, agents, employees, and contractors. The
grantee, franchisee, or lessee releases and waives any and all claims against
the City, its officers, agents, employees, or contractors for damage to or
destruction of the grantee, franchisee, or lessee's facilities caused by or arising
out of activities conducted by the city, its officers, agents, employees, and
contractors, in the public ways, rights-of-way, easements, or property subject to
this Public Way Agreement, Franchise, or Lease, except to the extent any such
damage or destruction is caused by or arises from the sole negligence or any
willful or malicious action on the part of the City, its officers, agents, employees,
or contractors. The grantee, franchisee, or lessee further agrees to indemnify,
hold harmless and defend the City against any claims for damages, including,
but not limited to, business interruption damages and lost profits, brought by or
under users of the grantee, franchisee, or lessee's facilities as the result of any
interruption of service due to damage or destruction of the user's facilities
caused by or arising out of activities conducted by the City, its officers, agents,
employees, or contractors, except to the extent any such damage or
destruction is caused by or arises from the sole negligence or any willful or
malicious actions on the part of the City, its officers, agents, employees, or
contractors.
(Ord. 5034 § 1, 1998.)
20.10.240 Performance and construction surety.
Before a public way agreement, franchise, or lease granted pursuant to this
title is effective, and as necessary thereafter, the grantee, franchisee, or lessee
shall provide and deposit such moneys, bonds, letters of credit, or other
instruments in form and substance acceptable to the city as may be required by
this title or by an applicable public way agreement, franchise, or lease
agreement. All performance bonds for grantees, franchisees, and lessees shall
satisfy the minimum standards established by the public works department at
the time of the grantees', franchisees', and lessees' application. (Construction
bond section(s) of Standard Specifications for Road, Bridge, and Municipal
Construction for Washington State Department of Transportation and American
Public Works Association).
Construction bonds sureties shall be provided as required by Washington
State laws. (Ord. 5034 § 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 an Washington state bank utilizing the city's
standard assignment form, or by provision of the letter of credit. The amount of
security shall be 10 percent of the city engineer's estimate of the performance
bond amount (ACC 20.10.260) based upon the total scope of work proposed
within the public ways, or $50,000 whichever is less, or such lesser amount
determined by the public works director to be sufficient. The security shall be
maintained at the sole expense of the grantee, franchisee, or lessee so long as
any of the grantee, franchisee, or lessee's utility, cable or telecommunications
facilities are located within the public ways of the city or upon city property and
until released by the city. In the event a security involves a bank, the grantee,
franchisee, or lessee is responsible for negotiating any interest that may accrue
to the account during the duration of effect. Should the agreement being
secured be terminated, the finance director will coordinate with other
departments and determine if any portion of the security may be released by
the city.
A. The security shall secure the full and complete performance of the
requirements of this title, including any costs, expenses, damages, or loss the
city pays or incurs, including civil penalties, because of any failure attributable
to the grantee, franchisee, or lessee to comply with any applicable legal
requirements including, but not limited to, the codes, ordinances, rules,
regulations, or permits of the city.
B. Before the city executes on the security bond or any sums are withdrawn
from the security fund, the city shall give written notice to the grantee,
franchisee, or lessee:
1. Describing the act, default or failure to be remedied, or the damages,
costs or expenses which the city has incurred by reason of grantee, franchisee,
or lessee's act, default, or failure;
2. Providing a reasonable opportunity for grantee, franchisee, or lessee
to first remedy the existing or ongoing default or failure, if applicable;
3. Providing a reasonable opportunity for grantee, franchisee, or lessee
to pay any moneys due the city before the city executes the bond or withdraws
the amount thereof from the security fund, if applicable; and
4. That the grantee, franchisee, or lessee will be given an opportunity to
review the act, default or failure described in the notice with the city or his or
her designee.
C. Grantees, franchisees and lessees shall replenish the security bond or
fund within 14 calendar days after written notice from the city that there is a
deficiency in the amount of the bond or fund. (Ord. 5034 § 1, 1998.)
20.10.260 Performance bond.
All performance bonds provided in accordance with this title shall comply
with the minimum standards in Chapter 12.24 ACC. (Ord. 5034 § 1, 1998.)
20.10.270 Coordination of construction activities.
ACC 20.10.100 notwithstanding, all grantees, franchisees and lessees, are
required to cooperate with the city and with each other.
A. By November 15th of each year, grantees, franchisees and lessees shall
provide the city with a schedule of their proposed construction activities which
may affect the public ways in any manner.
B. Each grantee, franchisee and lessee shall meet with the city, other
grantees and franchisees and users of the public ways annually or as
determined by the city to schedule and coordinate construction which may
affect the public ways in any manner.
C. All construction locations, activities and schedules shall be coordinated,
as required by the city public works director, to minimize public inconvenience,
disruption or damages.
D. Each grantee, franchisee and lessee shall be available to city staff
employees of a city department having jurisdiction over their respective
activities 24 hours a day, seven days a week, regarding problems or complaints
resulting from the attachment, installation, operation, use, maintenance, or
removal of commercial utility or telecommunications system facilities. The city
must be able to contact by telephone the network control center of each
grantee, franchisee and lessee. A telephone number at which an employee can
be reached 24 hours a day, seven days a week regarding such problems or
complaints must be provided by each grantee, franchisee and lessee before
any public way agreement, franchise, or lease is effective. (Ord. 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, Ownership or control of any commercial utility
syctom, tolocommunicationc syctom, registration, public way agreement,
franchico, or leaco, 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, franchico or lease, subjoc, t to this title, shall be
a6cignod or trancfcrrod in any manner within 12 months after the initial city
council approval of the ros, poc.,tivo agreements, unless othon,vieo provided in the
specific agreement concerned.
A_B. No public way agreement, franchise, or lease, commercial utility
system, tolocommunicatione cystom or integral part of a tolocommunications
system, subject to this title, shall be assigned or transferred before construction
of the such systems has been completed to the city's satisfaction without prior
written 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 approval of the city engineer.
B_G. The grantee, franchisee, or lessee and the proposed assignee or
transferee of the public way agreement, franchise, or lease
tolocommunications system shall provide and certify the following information to
the city not less than 150 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 of $75.00.
C D. No transfer shall be approved unless the assignee or transferee meets
the requirements contained has tho Iogal, tochnical, financial, and othor
roquisito qualifications, as dofinod in ACC 20.04.040(A) and (I), to own, hold
and oporato the utility, cablo, or tolocommunications syctom pursuant to this
t-it4eand can comply with the requirements of the public way agreement,
franchise, or lease.
D_E. Unless otherwise provided in an public way agreement, franchise, or
lease agreement, the grantee, franchisee, or lessee shall reimburse the city for
all direct and indirect costs and expenses reasonably incurred by the city in
considering a request to transfer or assign a public way agreement, franchise,
or lease. No approval shall be deemed approved until all such costs and
expenses have been paid.
E_~. Any transfer or assignment of a public way agreement, franchise, lease,
toloe, ommunicationc cystom, or intogral part of a utility or tolocommunications
systom without prior written approval of the city under this section or pursuant
to an public way agreement, franchise, or lease agreement shall be void and is
cause for termination of the public way agreement, franchise, or lease. (Ord.
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. Transactions between affiliated entities are not exempt from the
required city approval. A grantee, franchisee, or lessee shall promptly notify the
city in writing prior to any proposed change in, or transfer of, or acquisition by
any other party of control of a grantee, franchisee, or lessee's company. Every
change, transfer, or acquisition of control of a grantee, franchisee, or lessee's
company shall cause a review of the proposed transfer. In the event that the
city council adopts a resolution or other appropriate order opposing such
change, transfer or acquisition of control has been effected, the city may
terminate the public way agreement, franchise, or lease. City approval shall not
be required for mortgaging purposes or if said transfer is from a grantee,
franchisee, or lessee to another person or entity controlling, controlled by, or
under common control with a grantee, franchisee, or lessee. (Ord. 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, franchisee, or
lessee's public way agreement, franchise, lease, assets, or a substantial
interest therein;
F. Misrepresentation or lack of candor by or on behalf of a grantee,
franchisee, or lessee in any application or written or oral statement upon which
the city relies in making the decision to approve, review or amend any public
way agreement, franchise, or lease pursuant to this title;
G. Abandonment of cable or telecommunications facilities in the public ways
or upon city property;
H. Failure to relocate or remove facilities as required in this title;
I. Failure to pay taxes, compensation, fees, assessments, or costs when
and as due to the city;
J. Insolvency or bankruptcy of the grantee, franchisee, or lessee;
K. Violation of any material provision of this title; and
L. Violation of the material terms of an public way agreement, franchise, or
lease agreement. (Ord. 5034 § 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
C. That it would be in the public interest to impose some penalty or sanction
less than revocation. (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. 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 0f revocation, termination, or annulment, and without
any prejudice to any of its other legal rights and remedies, to. pursue other
remedies, including obtaining an order from the superior court having
jurisdiction compelling the grantee, franchisee, or lessee to comply with the
provisions of this title and any public way agreement, franchise, or lease
granted hereunder, and to recover reasonable and documented damages and
costs incurred by the city by reason of the grantee, franchisee, or lessee's
failure to comply. The city council shall utilize, but is not limited to, the following
factors in analyzing the nature, circumstances, extent, and gravity of any
violation(s) in making its determination under this section:
A. Whether the misconduct was egregious;
B. Whether substantial harm resulted;
C. Whether the violation was intentional;
D. Whether there is a history of prior violations of the same or other
requirements;
E. Whether there is a history of overall compliance;
F. Whether the violation was voluntarily disclosed, admitted or cured. (Ord.
5034 § 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:
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. 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;
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. 5034 § 1, 1998.)
20.10.360 Other remedies.
Nothing in this title shall be construed as limiting any judicial remedies that
the city may have, at law or in equity, for enforcement of this title. (Ord. 5034 §
1, 1998.)
20.10.370 Venue of any court action.
All public way agreements, franchises, and leases subject to this title shall
be governed and construed by and in accordance with the laws of the state of
Washington. In the event that suit is brought by a party to a public way
agreement, franchise, or lease subject to this title, the parties agree that
jurisdiction of such action shall be vested exclusively in the King County
Superior Court for the State of Washington, or in the United States District
Court for the Western District of Washington located in Seattle, Washington.
(Ord. 5034 § 1, 1998.)
20.10.380 Action by the FCC.
In the event the FCC promulgates more stringent notice requirements,
technical standards, consumer protection or consumer services requirements
than are contained in agreements or franchises subject to this title, those more
stringent requirements shall prevail. The city shall give reasonable written
notice when, in their determination, that has occurred. Grantees, franchisees,
and lessees shall retain and not waive any or all rights and privileges as
afforded either under existing contracts or agreements or pursuant to federal
law or FCC regulations to complain and/or appeal such a determination. (Ord.
5034 § 1, 1998.)
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. 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/residenrs
preferences, if any, on location or placement of underground installations
(excluding aerial cable lines utilizing existing poles and existing cable paths),
consistent with sound engineering practices; provided, however, that nothing in
this title shall permit a grantee or franchisee to unlawfully enter or construct
improvements upon the property or premises of another. (Ord. 5034 § 1, 1998.)
20.10.410 Safety requirements.
A grantee, franchisee, or lessee, in accordance with applicable federal,
state, and local safety .requirements shall, at all times, employ ordinary care
and shall install and maintain and use commonly accepted methods and
devices for preventing failures and accidents which are likely to cause damage,
injury, or nuisance to the public and/or workers. All structures and all lines,
equipment and connections in, over, under, and upon the streets, sidewalks,
alleys, and public ways or places of a permit, public way agreement, franchise,
or lease area, wherever situated or located, shall at all times be kept and
maintained in a safe, suitable condition, and in good order and repair. The city
reserves the general right to see that the telecommunications systems of a
grantee, franchisee, or lessee are constructed and maintained in a safe
condition. If a violation of the National Electrical Safety Code or other applicable
regulation is found to exist by the city, the city will, after discussions with a
grantee, franchisee, or lessee, establish a reasonable time frame for a grantee,
franchisee, or lessee to make necessary repairs. If the repairs are not made
within the established time frame, the city may make the repairs itself or have
them made and collect all reasonable costs thereof from a grantee, franchisee,
or lessee. (Ord. 5034 § 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. 5034 § 1, 1998.)
20.10.430 Compliance with zoning standards.
All applications for leases, franchises, and public way agreements under
this title will comply with the city zoning regulations and siting standards in ACC
Title 18. (Ord. 5034 § 1, 1998.)
20.10.440 Unfunded mandate.
The city intends that no federal or state requirement to promote the
deregulation of utilities or telecommunications shall become an unfunded
mandate requiring funding support from the city over and above its routine
operations and maintenance budget to maintain the public ways. Therefore,
except as expressly provided to the contrary, all costs incurred by a grantee,
franchisee, or lessee in complying with the terms and conditions of any
agreement subject to this title or any applicable laws, ordinances, codes, rules,
regulations and/or orders or any action thereunder shall be the sole
responsibility of the respective grantee, franchisee, or lessee and shall not be
the responsibility of or charged to the city. (Ord. 5034 § 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. 5034 § 1, 1998.)
20.10.460 Use of utility poles and facilities of others.
Grantees and franchisees may seek to contract with the city or any
appropriate board or agency thereof or with the holder or owner of any utility
franchise in the city for the use, rental or lease of its or their poles and other
structures and facilities for the purpose of extending, carrying or laying
telecommunications facilities, electronic conductors and other facilities and
appurtenances necessary or desirable in conjunction with the operation of its
telecommunications system. The city agrees that any public utility owning or
controlling such poles or other structures or facilities may, without amendment
to its franchise, allow, and is encouraged to allow, grantees and franchisees to
make such use thereof pursuant to any agreement reached between the
affected parties. City-owned poles are limited to street light and traffic signal
poles which generally are not intended for use by others. The city reserves the
right to determine on a case by case basis that particular circumstances require
that a certain city-owned pole is not appropriate for use. No grantee or
franchisee will utilize any city-owned poles prior to approval by the city
engineer. Any compensation for uses of city-owned poles will be based upon
the prevailing market rates for similar uses in the region. (Ord. 5034 § 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 franchises or grantee and (2) within the franchise area, the city,
subject to franchisee or grantee's prior written consent, which may not bo
unroar.,onably withhold, may install and maintain city-owned overhead facilities
upon such poles, and conduits in open trenches, for police, fire, illumination,
and other noncommercial communications purposes, subject to the following:
A. Such installation and maintenance shall be completed at the city's
expense;
B. The franchises 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. Tho franchis, oo or grantoe shall not chargo tho city a foo for tho uce of
ouch polos or tronc.,hos in ac, c, ordanoo with thic section as a moans of doriving
rovonuo thorofrom; providod, howovor, Neothing 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. 5034 § 1, 1998.)
20.10.480 Administration.
The public works director or his/her designee shall administer all public way
agreements and franchises subject to this title, and the finance director or
his/her designee shall administer all leases subject to this title. (Ord. 5034 § 1,
1998.)
Chapter 20.12
OPEN VIDEO SYSTEMS
(Reserved)