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ORDINANCE NO. 6 5 4 6
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF AUBURN, WASHINGTON, AMENDING SECTIONS
13.36.040, 13.36.230, 20.04.020, 20.04.120, 20.06.020,
20.06.100, 20.06.130 AND 20.06.180, OF THE AUBURN
CITY CODE RELATING TO THE CITY OF AUBURN FEE
SCHEDULE
WHEREAS, the City of Auburn fees are, generally, set forth in a Fee Schedule ;
and
WHEREAS, postseason the city are set forth in the fee schedule, but several
specific fees are still located in city code sections; and
WHEREAS, it would be prudent and appropriate to take some of the remaining
fees currently set forth in the city code and move those fees to the fee schedule, so that
all fees are generally found in one place; and
WHEREAS, such a change would require an Ordinance to amend the sections of
the City Code where fees were set or identified, if those fees were to be included in the
City of Auburn Fee Schedule.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, DO ORDAIN as follows:
Section1. Amendment to City Code. That Section 13.36.040 of the
Auburn City Code be and the same hereby is amended to read as follows:
13.36.040 Franchise —Application requirements.
An applicant for an initial franchise to construct, operate, and maintain a cable
communication system within the city shall file an application in a form prescribed by the
city, accompanied by a nonrefundable franchise applicationfilang fee in the amountA -be
determiRed by the „ity set forth in the City of Auburn fee Schedule.
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Ordinance No. 6546
December 15, 2014
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Section 2. Amendment to City Code. That Section 13.36.230 of the
Auburn City Code be and the same hereby is amended to read as follows:
13.36.230 Franchise fee.
A franchisee shall pay to the city quarterly, on or before the thirtieth day of each
January, April, July and October, in a sum equal to five perreRt or greater of gross
revere-as defined heFeiR for thep eceding three menthsas set forth in the Auburn
Fee Schedule. Such remittances shall be accompanied by forms furnished by the city to
report detailed information as to the sources of such income. (Ord. 4625 § 2, 1993.)
Section 3. Amendment to City Code. That Section 20.04.020 of the
Auburn City Code be and the same hereby amended to read as follows:
20.04.020 Public way agreement applications.
Any person that desires a public way agreement pursuant to this title shall file an
application with the city which shall include the following information:
A. The identify of the applicant, including all affiliates of the applicant;
B. A description of the commercial utility or telecommunications services that are
or will be offered or provided by the applicant using its facilities;
C. A description of the transmission medium or transporting means that will be
used by the applicant to offer or provide such telecommunications or utility services;
D. Preliminary engineering plans, specifications and a network map of the
facilities to be located within the city all in sufficient detail to identify:
1. The location and route requested for applicant's proposed facilities;
2. The location of all overhead and underground public utility,
telecommunication, cable, water, sewer drainage and other facilities in the public way
along the proposed route;
3. The location(s), if any, for interconnection with the utility or
telecommunications facilities of other utility or telecommunications carriers, operators,
and providers; and
4. The specific trees, structures, improvements, facilities and
obstructions, if any, that applicant proposes to temporarily or permanently remove or
relocate;
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:
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December 15, 2014
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1. The excess capacity currently available in such ducts or conduits
before installation of applicant's utility or telecommunications facilities;
2. The excess capacity, if any, that will exist in such ducts or conduits
after installation of applicant's utility or telecommunications facilities;
3. Evidence of ownership or a right to use such ducts or conduits;
G. If applicant is proposing an underground installation within new ducts or
conduits to be constructed within the public ways:
1 . The location proposed for the new ducts or conduits; and
2. The excess capacity that will exist in such ducts or conduits after
installation of applicant's utility or telecommunications facilities;
H. A preliminary construction schedule and completion date;
I. Information to establish that the applicant has obtained all other governmental
approvals and permits to construct and operate the facilities, and to offer or provide the
utility or telecommunications services, including, but not limited to, evidence that the
applicant has registered with the Washington Utilities and Transportation Commission,
J. All deposits or charges required pursuant to this title;
K. Proof of ability to meet city's bonding requirements in ACC 12.24.050 when
the applicant does not have an existing standing bond on file with the city sufficient to
cover the scope of work proposed and proof of ability to meet security requirements in
ACC 20.10.240 through 20.10.260;
L. A copy of an Auburn business license stamped and signed by the business
license clerk, as designated by the mayor; and
M. A nonrefundable application fee in the amei as set forth in the Auburn Fee
Scheduleef$6909. (Ord. 5897 § 22, 2005; Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
Section 4. Amendment to City Code. That Section 20.04.120 of the
Auburn City Code be and the same hereby is amended to read as follows:
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 as set forth in the Auburn Fee
Schedule. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
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Ordinance No. 6546
December 15, 2014
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Section 5. Amendment to City Code. That Section 20.06.020 of the
Auburn City Code be and the same hereby is amended to read as follows:
20.06.020 Franchise applications.
Any person who desires a telecommunications or a commercial utility franchise
pursuant to this title shall file an application with the city public works department which,
in addition to the information required by ACC 20.04.020, shall include the following:
A. Whether the applicant intends to provide cable service, video dialtone service
or other video programming service, and sufficient information to determine whether
such service is subject to cable franchising;
B. An accurate map showing the location of any existing utility or
telecommunications facilities in the city that applicant intends to use or lease so that the
city can keep track of various systems using the public way(s) to prevent interference
between the users;
C. A description of the services or facilities that the applicant will offer or make
available to the city and other public, educational and governmental institutions, if any;
D. A description of applicant's service, access and line extension policies;
E. The area or areas of the city the applicant desires to serve and an initial
schedule for build-out to the entire franchise area;
F. The applicant's intended means and methods of providing service and
whether shared use of other utility poles or conduits is envisioned;
G. All fees, deposits or charges required pursuant to this chapter;
H. Such other and further information as permitted by federal and state law as
may be requested by the city;
I. Proof of ability to meet city's bonding requirements in ACC 12.24.050 when the
applicant does not have an existing standing bond on file with the city sufficient to cover
the scope of work proposed and proof of ability to meet security requirements in ACC
20.10.240 through 20.10.260;
J. A copy of an Auburn business license stamped and signed by the business
license clerk, as designated by the mayor; and
K. A nonrefundable application fee in as set forth in the
Auburn Fee Schedule. (Ord. 5897 § 23, 2005; Ord. 5271 § 1, 1999; Ord. 5034 § 1,
1998.)
Section 6. Amendment to City Code. That Section 20.06.100 of the
Auburn City Code be and the same hereby is amended to read as follows:
20.06.100 Franchise fees in addition to utility taxes.
Revenue derived directly or indirectly from sources within the city shall be subject
to applicable utility taxes as of the time of commencement of such operations.
Franchise fees shall be in addition to any utility tax, but shall be collectible only to the
extent as then allowed by law, and in no event may the combined utility tax and
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Ordinance No. 6546
December 15, 2014
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franchise fee exceed six pement of gross reeyenuethe amount permitted by law. (Ord.
5271 § 1, 1999; Ord. 5034 § 1, 1998.)
Section 7. Amendment to City Code. That Section 20.06.130 of the
Auburn City Code be and the same hereby is amended to read as follows:
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 ef $500.00 as set forth in the
Auburn Fee Schedule. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
Section 8. Amendment to City Code. That Section 20.06.180 of the
Auburn City Code be and the same hereby is amended to read as follows:
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 the amount permitted by law four and eRe half peFGen of gross
revenues unless and until it is further adjusted by city council. Any such adjustment
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December 15, 2014
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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
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December 15, 2014
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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. 5271 § 1, 1999; Ord. 5034
§ 1, 1998.)
Ordinance No. 6546
December 15, 2014
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Section 9. Implementation. The Mayor is hereby authorized to implement
such administrative procedures as may be necessary to carry out the directions of this
legislation.
Section 10. Severability. The provisions of this ordinance are declared
to be separate and severable. The invalidity of any clause, sentence, paragraph,
subdivision, section or portion of this ordinance, or the invalidity of the application
thereof to any person or circumstance shall not affect the validity of the remainder of
this ordinance, or the validity of its application to other persons or circumstances.
Section 11. Effective date. This Ordinance shall take effect and be in force
five days from and after its passage, approval and publication as provided by law.
INTRODUCED: DEC 15 2014
PASSED: Nc 15 9014
APPROVED: DEC 15 2014
CITY OF AUBURN
ATTEST:
NANCY KUS, M YOR
Danielle E. Daskam, City Clerk
APP aA-&T RM:
iel B. H rney
Published:
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