HomeMy WebLinkAbout6798 ORDINANCE NO. 6798
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
AUBURN, WASHINGTON, RELATING TO UPDATING THE
PROVISIONS FOR FRANCHISES AND LEASES FOR
TELECOMMUNICATIONS, CABLE, AND UTILITIES
CONSISTENT WITH CURRENT FEDERAL AND STATE
REGULATIONS, AND REPLEALING CHAPTERS 13.36 AND
13.44, AND AMENDING TITLE 20 OF THE AUBURN CITY
CODE
WHEREAS, the City of Auburn adopted Ordinance No. 4625 on May 5, 1993
enacting Chapter 13.36 entitled "CATV Systems" pursuant to Federal and State
regulations; and
WHEREAS, the City of Auburn adopted Ordinance No. 3121 on October 4, 1976
enacting Chapter 13.44 entitled "Electrical Franchise"granting to Puget Sound Power and
Light Company, their successor and assigns, a franchise; and
WHEREAS, the City of Auburn adopted Ordinance No. 5034 January 5, 1998
enacting Title 20 entitled "Telecommunications and Other Commercial Utilities" pursuant
to Federal and State regulations; and
WHEREAS, the provisions of Chapter 13.44 ACC are outdated and electrical
franchise agreements have recently been negotiated under current applicable law; and
WHEREAS, the City has made only minor updates as necessary throughout the
entire Auburn City Code since the adoption of Ordinance Nos. 4625 and 5034 as it relates
to the regulation of telecommunications, cable systems and other utilities in the public
ways and on public property; and
WHEREAS, due to changes in Federal and State regulations that govern the
regulation of such industries and their presence within the City, it is necessary to update
Ordinance No. 6798
October 26, 2020
Page 1 of 3 Rev. 2019
the Auburn City Code in all titles, chapters an sections that authorize, regulate, affect or
otherwise govern the review, construction, placement and siting of such
telecommunications, cable and other utility facilities in the public ways and on city
property or facilities; and
WHEREAS, the City also seeks to clarify and update terms, procedural
requirements and approval processes for permits, franchises and leases for
telecommunications, cable and other utility facilities placed in the public ways and on city
owned property or facilities.
WHEREAS, the proposed amendments and changes to the Auburn City Code that
are the subject of this Ordinance were also subject to state agency review by the
Washington State Department of Commerce on or about October 9, 2020 for review; and
WHERAS, the proposed amendment and changes to the Auburn City Code that
are the subject of this Ordinance were also subject to State Environmental Policy Act
review and decision issued October 19, 2020.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, DO ORDAIN as follows:
Section 1. Repeal of City Code. Chapter 13.36 of the Auburn City Code is
repealed as shown in Exhibit A.
Section 2. Repeal of City Code. Chapter 13.44 of the Auburn City Code is
repealed as shown in Exhibit B.
Section 3. Amendment to City Code. Title 20 of the Auburn City Code is
amended to read as shown in Exhibit C.
Ordinance No. 6798
October 26, 2020
Page 2 of 3 Rev 2019
Section 4. Implementation. The Mayor is authorized to implement those
administrative procedures necessary to carry out the directives of this legislation.
Section 5. Severability. The provisions of this ordinance are declared to be
separate and severable. The invalidity of any clause, sentence, paragraph, subdivision,
section, or portion of this ordinance, or the invalidity of the application of it to any person
or circumstance, will not affect the validity of the remainder of this ordinance, or the validity
of its application to other persons or circumstances.
Section 6. Effective date. This Ordinance will take effect and be in force five
days from and after its passage, approval, and publication as provided by law, or on
January 1, 2021, whichever is later.
INTRODUCEDDEC 2 1 2020
PASSED: DEC 2 1 2020
APPROVED:DEG 2 1 2020
ANCY KUS, MAYOR
ATTEST: APPROVED AS TO FORM:
Shawn Campbell, MMC,tity Clerk Kendra Comeau, City Attorney
Published:
DCc.G M 2 ) 2O2--0
Ordinance No. 6798
October 26, 2020
Page 3 of 3 Rev 2019
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ORDINANCE 6798
EXHIBIT A
Chapter 13.36
CATV SYSTEMS
[Repealed]
Sections:
13.36.010 Purpose.
13.36.020 Definitions.
13.36.030 Franchise – Conditions and term.
13.36.040 Franchise – Application requirements.
13.36.050 Public hearing and notice requirements.
13.36.060 Acceptance.
13.36.070 Police powers.
13.36.080 Rules and regulations by the city.
13.36.090 Technical standards and maintenance.
13.36.100 Parental control devices.
13.36.110 Construction standards.
13.36.120 Construction notification.
13.36.130 Undergrounding and landscaping.
13.36.140 Construction in right-of-way.
13.36.150 Safety requirements.
13.36.160 Building moving.
13.36.170 Tree trimming.
13.36.180 Rates.
13.36.190 Discounts.
13.36.200 Customer service.
13.36.210 Telephone response.
13.36.220 Failure to improve customer service.
13.36.230 Franchise fee.
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13.36.240 Cable system evaluation.
13.36.250 Periodic meetings.
13.36.260 Record inspection.
13.36.270 Reports.
13.36.280 Programming.
13.36.290 Nondiscrimination.
13.36.300 Continuity of service.
13.36.310 Franchise renewal.
13.36.320 Transfer of ownership.
13.36.330 Removal and abandonment – Franchisee property.
13.36.340 Termination – Revocation for cause.
13.36.350 Effect of termination for noncompliance.
13.36.360 Indemnity and hold harmless.
13.36.370 Insurance.
13.36.380 Performance bond.
13.36.390 Franchising costs.
13.36.400 Equalization of civic contributions.
13.36.410 Inconsistency.
13.36.420 Severability.
For statutory provisions authorizing third-class cities to manage and control the city
streets, see RCW 35.24.290(3); for provisions authorizing code cities to regulate and
grant nonexclusive franchises for facilities for the transmission of signals and other
methods of communication, see RCW 35A.47.040.
13.36.010 Purpose.
The purpose of this chapter is to set forth an integrated statement of conditions,
requirements, obligations, duties and procedures for granting by the city of a
nonexclusive franchise for the construction, maintenance and operation of a system
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of cable television signal distribution within the territorial limits of the city of Auburn.
(Ord. 4625 § 2, 1993.)
13.36.020 Definitions.
For the purposes of this chapter, the following definitions will apply:
A. “Access channels” (commonly referred to as “PEG” channels”) means free
composite channels to be used for educational purposes and by government and
public agencies and/or their representatives.
B. “The Act” means the Cable Television Consumer Protection and Competition Act
of 1992, and any subsequent amendments thereto.
C. “Addressability” means the ability of a system allowing a franchisee to authorize
by remote control customer terminals to receive, change or to cancel any or all
specified programming.
D. “Affiliate” means a condition of being united, being in close connection, allied, or
attached as a member or branch.
E. “Applicant” means any person or entity that applies for a franchise.
F. “Basic cable” is the tier of service regularly provided to all subscribers that
includes the retransmission of local broadcast television signals.
G. “Cable services” means (1) the one-way transmission to subscriber of video
programming or other programming service, and (2) subscriber interaction, if any,
which is required for the selection by the subscriber of such video programming or
other programming service.
H. “Channel” means a single path or section of the spectrum which carries a
television signal.
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I. “Character generator” means a device used to generate alphanumerical
programming to be cablecast on a cable channel.
J. “City” means the city of Auburn, a municipal corporation of the state of
Washington.
K. “Cable system” means a facility, consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment that is designed
to provide cable service and other service to subscribers.
L. “Council” means the city council of the city of Auburn.
M. “Data communication” means (1) the movement of encoded information by
means of electrical or electronic transmission systems; and (2) the transmission of
data from one point to another over communications channels.
N. “Dwelling units” means residential living facilities as distinguished from temporary
lodging facilities such as hotel and motel rooms and dormitories, and includes single-
family residential units and individual apartments, condominium units, mobile homes
within mobile home parks, and other multiple-family residential units.
O. “FCC” means the Federal Communications Commission, a regulatory agency of
the United States government.
P. “Franchise” means the initial authorization, or renewal thereof, issued by the
franchising authority, whether such authorization is designated as a franchise, permit,
license, resolution, contract, certificate or otherwise, which authorizes construction
and operation of the cable system for the purpose of offering cable service or other
service to subscribers.
Q. “Franchisee” means the person, firm or corporation to whom or which a
franchise, as herein above defined, is granted by the council pursuant to this chapter,
and the lawful successor, transferee or assignee of said person, firm or corporation
subject to such conditions as may be defined in this chapter and in a franchise
granted in compliance with this chapter.
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R. “Gross revenues” means any and all revenue derived directly or indirectly by
franchisee, or by franchisee’s affiliates, as defined in the federal Cable Act, from the
operation of the franchisee’s cable system to provide cable services in the franchise
area. Gross revenues include, by way of illustration and not limitation, monthly and
other fees charged subscribers for cable services including basic service, expanded
basic service, any expanded tiers of cable service, other tiers of cable service,
optional premium service, video on demand, pay-per-view, per-program channels,
cable service installation, disconnection, reconnection and change-in-service fees,
leased access channel fees, remote control rental fees, late fees and administrative
fees, consideration received by the franchisee from programmers for carriage of
cable services on the cable system and recognized as revenue under generally
accepted accounting principles (GAAP), revenues from rentals of converters or other
cable system equipment, advertising sales revenues (including local and a pro rata
share of regional and national advertising carried on the cable system in the
franchise area), net of commissions due to franchisee’s unaffiliated advertising
agencies that arrange for the advertising buy, revenues from program guides,
additional outlet fees, revenue from the sale or carriage of other cable services,
revenues from home shopping, and a fairly apportioned percentage of fees
associated with bundled services (i.e., late fees, NSF fees, etc.). Gross revenues
shall not include (1) bad debt; provided, however, that all or part of any such bad
debt that is written off but subsequently collected shall be included in gross revenues
in the period collected; or (2) any taxes on services furnished by the franchisee that
are imposed directly on any subscriber or user by the state, grantor or other
governmental unit and that are collected by the franchisee on behalf of said
governmental unit; or (3) the PEG fee as required by this franchise. The franchise
fees are not a tax and are therefore included in gross revenues.
This definition shall be construed so as to include all gross revenues to the maximum
extent permitted by federal and state law, except to the extent specifically excluded in
this section, and encompasses revenues that may develop in the future, whether or
not anticipated. If a statutory change in state or federal law or a decision of the FCC
or a court of competent jurisdiction expands or contracts the categories of revenue
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available to the city for the franchise fee assessment beyond those permitted under
this definition as of the effective date, this franchise may be amended to include or
exclude any such category of revenue in the definition of gross revenues under this
franchise; provided, that the city amends the franchises of all other similarly situated
multichannel video provider over which the city has jurisdiction and authority to
impose such fees.
S. “Headend” means the electronic equipment located at the start of a cable system,
usually including antennas, preamplifiers, frequency converters, demodulators and
related equipment.
T. “High definition television (HDTV)” means a television system that will provide
sharper picture definition than the current U.S. Standards, 525 lines per frame.
U. “Insertion point(s)” means location(s) where institutional programming can be
initiated for distribution throughout the secured portion of the subscriber network.
V. “Installation” means the connection of the system from feeder cable to
subscribers’ terminals.
W. “Institutional services” means a cable communications system designated
principally for the provision of nonentertainment services to schools, public agencies
or other nonprofit agencies which is separate and distinct from the subscriber
network or is on secured channels of the subscriber network.
X. “Interactive services” means services provided to subscribers where the
subscriber either (1) receives information consisting of television or other signals and
transmits signals generated by the subscriber or equipment under their control for the
purpose of selecting what information shall be transmitted to the subscriber or for any
other purpose; or (2) transmits signals to any other location for any purpose.
Y. “NCTA” means the National Cable Television Association.
Z. “Office” means the person or entity designated by the city of Auburn as being
responsible for the administration of a franchise for the city.
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AA. “Operator” means the person, firm or corporation to whom a franchise is
granted pursuant to the provisions of chapter.
BB. “Premium services” means programming over and above those provided by
basic services for which there is an additional charge.
CC. “Property of franchisee” means all property owned, installed or used by a
franchisee in the conduct of its business in the city under the authority of a franchise
granted pursuant to this chapter.
DD. “Proposal” means (1) the response by an individual or organization to a request
by the city regarding the provision of cable services; or (2) an unsolicited plan
submitted by an individual or organization seeking to provide cable services in the
city.
EE. “Public way” means the surface of, and the space above and below, any public
street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk,
parkway, way, lane, drive, circle or other public right-of-way, including, but not limited
to, public utility easements, dedicated utility strips or rights-of-way dedicated for
compatible uses and any temporary or permanent fixtures or improvements located
thereon now or hereafter held by the city in the service area which shall entitle the
city and a franchisee to the use thereof for the purpose of installing, operating,
repairing and maintaining the cable system. “Public way” shall also mean any
easement now or hereafter held by the city within the service area for the purpose of
public travel, or for utility or public service use dedicated for compatible uses, and
shall include other easements or rights-of-way as shall within their proper use and
meaning entitle the city and a franchisee to the use thereof for the purpose of
installing or transmitting franchisee’s cable service or other service over poles, wires,
cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appurtenances,
attachments and other property as may be ordinarily necessary and pertinent to the
cable system.
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FF. “Subscriber” means a person or entity or user of the cable system who lawfully
receives cable services or other service therefrom with franchisee’s express
permission. (Ord. 6284 § 1, 2010; Ord. 4625 § 2, 1993.)
13.36.030 Franchise – Conditions and term.
A. Authority to Grant Franchises or Licenses for Cable Television. The council may
by resolution award a nonexclusive franchise to construct, operate and maintain a
cable communications system which complies with the requirements and conditions
of this chapter. Any franchise granted pursuant to this chapter shall be nonexclusive
and shall not preclude the city from granting other or further franchises or permits, or
preclude the city from using any roads, rights-of-way, streets, or other public
properties, or affect its jurisdiction over them or any part of them, or limit the full
power of the city to make such changes as the city shall deem necessary, including
the dedication, establishment, maintenance, and improvement of all new rights-of-
way and thoroughfares and other public properties; provided, that any such changes
shall not materially or substantially impair the rights granted a franchisee pursuant to
this chapter. All franchises granted subsequent to the effective date of this chapter
shall be consistent with the requirements and conditions of this chapter.
B. Incorporation by Reference. The provisions of this chapter shall be incorporated
by reference in any franchises approved pursuant hereto. The provisions of any
proposal for a franchise submitted and accepted by the city shall be incorporated by
reference in the applicable franchise; provided, that in the event of any conflict
between the proposal, this chapter and the franchise, the franchise shall be the
prevailing document.
C. Conditions of a Franchise. Subject to the provisions in this chapter, any franchise
granted hereunder by the city shall authorize a franchisee to: (1) engage in the
business of operating and providing cable service and the distribution and sale of
such service to subscribers within the city; and (2) erect, install, construct, repair,
replace, reconstruct, maintain and retain in, on, over, under, upon, across and along
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any street, such amplifiers and appliances, lines, cables, conductors, vaults,
manholes, pedestals, attachments, supporting structures, and other property as may
be necessary and appurtenant to the cable communications system; and (3) use,
operate and provide similar facilities, or properties rented or leased from other
persons, firms or corporations, including but not limited to any public utility or other
franchisee franchised or permitted to do business in the city; provided, that no
privilege or exemption shall be granted or conferred upon a franchisee by any
franchise except those specifically prescribed therein, and any use of any street shall
be consistent with any prior lawful occupancy of the street or any subsequent
improvement or installation therein.
D. Term of Franchise. The council shall have the right to grant a franchise for a
period of time which in the council’s judgement is the most appropriate to the
circumstances of the particular grant and is in the best interests of the citizens of the
city. (Ord. 4625 § 2, 1993.)
13.36.040 Franchise – Application requirements.
An applicant for an initial franchise to construct, operate, and maintain a cable
communication system within the city shall file an application in a form prescribed by
the city, accompanied by a nonrefundable franchise application fee in the amount set
forth in the city of Auburn fee schedule. (Ord. 6546 § 1, 2014; Ord. 4625 § 2, 1993.)
13.36.050 Public hearing and notice requirements.
A. Prior to the granting of a franchise, the city council shall conduct a public hearing
to determine the following:
1. That the public will be benefited by the granting of a franchise to the
applicant;
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2. That the applicant has requisite financial and technical resources and
capabilities to build, operate and maintain a cable television system in the area;
3. That the applicant has no conflicting interests, either financial or commercial,
which will be contrary to the interests of the city;
4. That the applicant will comply with all terms and conditions placed upon a
franchisee by this chapter;
5. That the applicant is capable of complying with all relevant federal, state, and
local regulations pertaining to the construction, operation and maintenance of the
facilities and systems incorporated in its application for a franchise;
6. The capacity of public rights-of-way to accommodate the cable system;
7. The present and future use of the public rights-of-way to be used by the cable
system; and
8. The potential disruption to existing users of the public rights-of-way to be
used by the cable system and the resultant inconvenience which may occur to
the public.
B. Notice of the public hearing shall comply with the following:
1. Briefly describe the purpose of hearing and state the place where the relevant
information is available to the public, the time and place of the hearing and the
date by which written comments must be submitted.
2. Published at least once during the two-week period preceding the hearing in
a newspaper of general circulation within the city, and in one or as many more
community newspapers as may be necessary to cover the entire cable franchise
area, and be broadcast over the local access channel of the grantee in the cable
franchise area affected at least once each day between the hours of 9:00 a.m.
and 11:00 p.m. during the two weeks immediately preceding the hearing. (Ord.
4625 § 2, 1993.)
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13.36.060 Acceptance.
A. No franchise granted pursuant to the provisions of this chapter shall become
effective unless and until the resolution granting same has become effective and the
grantee has accepted same as provided below.
B. Within 60 days after the effective date of the resolution awarding a franchise, or
within such extended period of time as the council in its discretion may authorize, a
franchisee shall file with the city clerk its written acceptance of the franchise, in a
form satisfactory to the city attorney, together with the bond and insurance policies
required by ACC 13.36.370 and 13.36.380. (Ord. 4625 § 2, 1993.)
13.36.070 Police powers.
In accepting any franchise, a franchisee acknowledges that its rights hereunder are
subject to the legitimate rights of the police power of the city to adopt and enforce
general laws necessary to protect the safety and welfare of the public. The franchisee
also agrees to comply with all applicable general laws enacted by the city pursuant to
such power so long as such regulations do not materially increase the burden or
impair the rights of the franchise as provided for in this chapter. (Ord. 4625 § 2,
1993.)
13.36.080 Rules and regulations by the city.
In addition to the inherent powers of the city to regulate and control any franchise it
issues, the authority granted to the city by the Act, and those powers expressly
reserved by the city or agreed to and provided for in a franchise, the city also
reserves the right and power to promulgate such additional regulations as it may find
necessary in the exercise of its lawful powers. (Ord. 4625 § 2, 1993.)
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13.36.090 Technical standards and maintenance.
A. Subject to federal, state and local law, a franchisee shall comply with FCC Rules,
Part 76, Subpart K, Section 76.601 through 76.610 and as amended hereafter, and,
at the minimum, the following:
1. Applicable city, county, state and national/federal codes, laws and
regulations;
2. Applicable utility joint attachment practices;
3. The National Electric Safety Code; ANSI C2;
4. Local utility code requirements;
5. Local rights-of-way procedures, in accordance with ACC Titles 12, 13 and 20.
B. A comprehensive routine preventive maintenance program shall be developed,
effected and maintained to ensure continued top quality cable communications
operating standards in conformance with FCC Regulations Part 76 and amendments
thereto. (Ord. 6238 § 3, 2009; Ord. 4625 § 2, 1993.)
13.36.100 Parental control devices.
A franchisee will make available at its cost, including applicable handling fees, a
device by which the subscriber can prohibit viewing of a particular cable service
during periods selected by that subscriber. (Ord. 4625 § 2, 1993.)
13.36.110 Construction standards.
All facilities constructed pursuant to the provisions of this chapter shall be placed and
maintained at such places and positions in or upon such streets, avenues, alleys and
public places as shall not interfere with the passage of traffic and the use of adjoining
property, and shall conform to the applicable sections of the National Electrical Code,
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codes of the state of Washington and ACC Titles 12, 13 and 20 pertaining to such
construction. (Ord. 6238 § 4, 2009; Ord. 4625 § 2, 1993.)
13.36.120 Construction notification.
Upon application for each construction permit in compliance with this chapter, a
franchisee shall submit to city its plan for advance notification for the proposed
construction project. In the event that an emergency situation arises which precludes
such advance notification, a franchisee shall subsequently inform the city of the
nature of the extraordinary event and the action taken. (Ord. 4625 § 2, 1993.)
13.36.130 Undergrounding and landscaping.
Undergrounding of all utility facilities will meet the requirements of Chapter 13.32A
ACC. (Ord. 6238 § 5, 2009; Ord. 4625 § 2, 1993.)
13.36.140 Construction in right-of-way.
Whenever, in the sole opinion of the city, any of a franchisee’s facilities or equipment
need to be relocated or altered due to a construction or repair project by the city in a
public way, a franchisee shall move or relocate said facilities or equipment within 30
days from receiving written notice from the city. However, in the event such relocation
is required due to emergency repairs deemed necessary by the city, such relocation
or moving shall be accomplished within 24 hours. Any relocation or alteration of a
franchisee’s facilities or equipment required under this section shall be at the sole
expense of a franchisee. Installation and/or relocation of all underground and aerial
facilities within existing city right-of-way or public ways or city utility easements shall
be permitted under Chapter 12.24 ACC, Construction Permits. (Ord. 5043 § 1 (Exh.
B), 1998; Ord. 4625 § 2, 1993.)
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13.36.150 Safety requirements.
A franchisee, in accordance with applicable national, state, and local safety
requirements shall, at all times, employ ordinary care and shall install and maintain
and use commonly accepted methods and devices for preventing failures and
accidents which are likely to cause damage, injury, or nuisance to the public.
All structures and all lines, equipment and connections in, over, under, and upon the
streets, sidewalks, alleys, and public ways or places of a franchise area, wherever
situated or located, shall at all times be kept and maintained in a safe, suitable
condition and in good order and repair.
The city reserves the general right to see that the system of a franchisee is
constructed and maintained in a safe condition. If a violation of the National Electrical
Safety Code or other applicable regulation is found to exist by the city, the city will,
after discussions with a franchisee, establish a reasonable time for a franchisee to
make necessary repairs. If the repairs are not made within the established time
frame, the city may make the repairs itself or have them made and collect all
reasonable costs thereof from the franchisee. (Ord. 4625 § 2, 1993.)
13.36.160 Building moving.
Whenever any person shall have obtained permission from the city to use any street
for the purpose of moving any building, a franchisee shall, upon seven days’ written
notice from the city, raise or remove, at the expense of the permittee desiring to
move the building, any of a franchisee’s wires which may obstruct the removal of
such building; provided, that the moving of such building shall be done in accordance
with the codes and regulations of the city. Where more than one street is available for
the moving of such building, the building shall be moved on such street as shall
cause the least interference. In such event, the city shall be responsible for
determining the path of least interference. It is further provided that the person or
persons moving such building shall indemnify and save harmless said franchisee
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from any and all damages or claims of any kind or nature caused directly or indirectly
for such temporary arrangement of the lines and poles of a franchisee. (Ord. 4625
§ 2, 1993.)
13.36.170 Tree trimming.
Upon approval of the director of public works, a franchisee shall have the authority to
trim trees upon and overhanging streets, public ways and public places in the
franchise area so as to prevent the branches of such trees from coming into contact
with a franchisee’s wires and cables, and, if necessary, to clear a microwave path. A
franchisee shall be responsible for debris removal from such activities. Failure to
remove debris after a reasonable time shall result in the debris being removed by the
city and the costs involved charged to the franchisee. (Ord. 4625 § 2, 1993.)
13.36.180 Rates.
Within 60 days after the grant of any franchise hereunder, a franchisee shall file with
the city a complete schedule of all rates to be charged to all subscribers.
Prior to implementation of any change in rates or charges for any service or
equipment provided by a franchisee, the franchisee shall provide the city and all
subscribers a minimum of 30 days prior written notice of such change.
Subject to federal, state and local law, the city may regulate the approval of increases
of rates or charges for providing cable service and prescribe reasonable rate
approval procedures. (Ord. 4625 § 2, 1993.)
13.36.190 Discounts.
A franchisee shall offer a discount of 30 percent from the normal charge for basic
services and installation to those individuals age 62 or older or disabled who are the
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legal owner or lessee/tenant of their residence provided that their combined
disposable income from all sources does not exceed the Housing and Urban
Development (HUD) standards for the Seattle-Everett area for the preceding
calendar year.
The city or its designee shall be responsible for certifying to a franchisee that such
applicants conform to the specified criteria. (Ord. 4625 § 2, 1993.)
13.36.200 Customer service.
A. A franchisee shall render repair service to restore the quality of the signal at
approximately the same standards existing prior to the failure or damage of the
component causing the failure and make repairs promptly and interrupt service only
for good cause and for the shortest time possible. Such interruptions, insofar as
possible, shall be preceded by notice and shall occur during a period of minimum use
of the system. A log of all service interruptions shall be maintained for at least a
period of one year. The city, after two working days’ notice, may inspect such logs.
B. An employee of a franchisee shall answer and respond to all individual
complaints received no later than 5:00 p.m. weekdays. A franchisee may use an
answering service to receive complaints after 5:00 p.m. weekdays, weekends and
holidays and will respond to any system outage affecting more than five subscribers.
A copy of the instructions to the answering service by a franchisee shall be furnished
to the city or its designee.
C. A technician shall be on call seven days a week, 24 hours a day. A franchisee
shall respond immediately to service complaints in an efficient manner.
D. A franchisee shall maintain a sufficient repair force to respond to individual
requests for repair service within two working days after receipt of the complaint or
request, except Saturday, Sunday and legal holidays. All complaints shall be
resolved within seven days, to the extent reasonable. If a subscriber has notified a
franchisee of an outage, no charge for the period of the outage shall be made to the
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subscriber if the subscriber was without service for a period exceeding 24 hours,
unless the outage was due to acts of God, force majeure or circumstances
reasonably beyond a franchisee’s ability to control.
E. A franchisee shall supply at the time of a new connection, and periodically at
least once a year, the title, address, and telephone number of the city official or
designee, to whom system subscribers may direct their concerns.
F. In no case will a franchisee’s service standards fall below the standards
established by the National Cable Television Association (NCTA) which are attached
to the ordinance codified in this chapter as Appendix “A” and incorporated within this
chapter1 or any FCC regulation. (Ord. 4625 § 2, 1993.)
1 Code reviser’s note: Appendix “A” is on file in the office of the city clerk.
13.36.210 Telephone response.
A. A franchisee shall maintain an adequate force of customer service
representatives as well as incoming trunk lines so that telephone inquiries are met
promptly and responsively. A franchisee shall have in place procedures for utilization
of other manpower and/or recording devices for handling the flow of telephone calls
at peak periods of large outages or other major causes of subscriber concern. A copy
of such procedures and/or policies shall be made available to the city.
B. In order that the city may be informed of a franchisee’s success in achieving
satisfactory customer relations in its telephone answering functions, a franchisee
shall, upon request by the city, and routinely no less than quarterly, provide the city
with a summary that will provide, at a minimum, the following:
1. Total number of calls received in reporting periods;
2. Time taken to answer;
3. Average talk time;
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4. Number of calls abandoned by the caller;
5. Average hold time;
6. Percentage of time all lines busy;
7. An explanation of any abnormalities.
This data will be compared to minimum standards of the NCTA incorporated in this
chapter by reference or any amendment thereto which increases such NCTA
standards, and shall be monitored by the city.
C. Calls for service generated during period of system outages due to emergency
which affects more than 25 customers may be excluded from the service response
calculations. The city shall have the sole determination as to what constitutes a
system failure due to emergency and which calls shall be excluded from the service
level calculations. (Ord. 4625 § 2, 1993.)
13.36.220 Failure to improve customer service.
A. The city or its designee shall review telephone response and customer service
information with a franchisee. The franchisee shall make improvements in the
appropriate categories which were found deficient pursuant to ACC 13.36.190 and
13.36.200 from the last reporting period. Failure to do so may result in the calling of a
public hearing by the council for the purpose of examining the reasons, if any, why
such improvements were not achieved by a franchisee.
B. An unsatisfactory record will result in the hearings being made part of an exhibit
under Sections 626(c)(1)(A) and (B) of the Act alleging that such practices have
failed to conform with future refranchising requirements as stated therein. In addition,
a franchisee’s corporate office shall be advised of the city’s findings. (Ord. 4625 § 2,
1993.)
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13.36.230 Franchise fee.
A franchisee shall pay to the city quarterly, on or before the thirtieth day of each
January, April, July and October, a sum as set forth in the Auburn fee schedule. Such
remittances shall be accompanied by forms furnished by the city to report detailed
information as to the sources of such income. (Ord. 6546 § 2, 2014; Ord. 4625 § 2,
1993.)
13.36.240 Cable system evaluation.
A. In addition to periodic meetings, the city may require reasonable evaluation
sessions at any time during the term of a franchise. It is intended that such
evaluations cover areas such as customer service, response to the community’s
cable-related needs, and a franchisee’s performance under and compliance with the
terms of a franchise.
B. During an evaluation session, a franchisee shall fully cooperate with the city and
shall provide without cost such reasonable information and documents as the city
may request to perform evaluations.
C. If the city has concerns because of uncorrected and reoccurring problems with
the franchisee’s cable system, the city may retain an independent consultant to
conduct an analysis of the cable system and its performance and submit a report of
such analysis to the city. The city shall take into consideration any efforts taken to
correct such deficiencies.
D. The report prepared by the consultant in response to the city’s request for a
system evaluation shall include:
1. A description of the technical problem in cable system performance which
precipitated the special tests;
2. What cable system components were tested;
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3. The equipment used and procedures employed in testing;
4. The method, if any, by which specific performance problems may be
resolved;
5. Any other information pertinent to said tests and analyses which may be
required by the city, or determined when the test is performed.
E. If the tests indicate that the system is not in compliance with FCC standards or
the requirements of the franchise, a franchisee shall reimburse the city for any costs
involved in conducting such tests, such as consultant fees or other expenses. Such
fees or expenses shall not exceed $2,500 for each evaluation. (Ord. 4625 § 2, 1993.)
13.36.250 Periodic meetings.
Upon request, a franchisee shall meet with designated city officials and/or designated
representative(s) to review the performance of a franchisee for the preceding period.
The subjects may include, but are not limited to, those items covered in the periodic
reports and performance tests. (Ord. 4625 § 2, 1993.)
13.36.260 Record inspection.
Subject to statutory and constitutional limits and two working days’ advance notice,
the city reserves the right to inspect the records of a franchisee necessary for the
enforcement of a franchise and verification of the accuracy of franchise fee payments
at any time during normal business hours; provided, that the city shall maintain the
confidentiality of any trade secrets or other proprietary information in the possession
of a franchisee. Such documents shall include such information as financial records,
subscriber records within the context of Section 631 of the Act, and plans pertaining
to a franchisee’s operation in the city. (Ord. 4625 § 2, 1993.)
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13.36.270 Reports.
A franchisee shall furnish, upon request, a report of its activities as appropriate. Such
report shall include:
A. Most recent annual report;
B. A copy of the 10-K Report, if required by the Securities and Exchange
Commission;
C. The number of homes passed;
D. The number of subscribers with basic services;
E. The number of subscribers with premium services;
F. The number of hook-ups in period;
G. The number of disconnects in period;
H. Total number of miles of cable in city;
I. Summary of complaints received by category, length of time taken to resolve and
action taken to provide resolution;
J. A statement of its current billing practices, and a sample copy of the bill format;
K. A current copy of its subscriber service contract;
L. Report on operations; and
M. Such other reports with respect to its local operation, affairs, transactions or
property that may be appropriate. (Ord. 4625 § 2, 1993.)
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13.36.280 Programming.
For informational purposes, a franchisee shall file a listing of its programing and the
tiers in which they are placed. A franchisee shall consider the city’s suggestions of
general program categories as determined from time to time in residential
questionnaire polls. The results of initial such surveys will be appended to the
respective franchise agreements. (Ord. 4625 § 2, 1993.)
13.36.290 Nondiscrimination.
A. A franchisee shall not, as to rates, charges, service facilities, rules, regulations or
in any other respect, make or grant any preferences or advantage to any person nor
subject any person to any prejudice or disadvantage; provided, that nothing in this
chapter shall be deemed to prohibit the establishment of a graduated scale of
charges and classified rate schedules to which any customer coming within such
classification would be entitled; and, provided further, that connection and/or service
charges may be waived or modified during promotional campaigns of a franchisee.
B. A franchisee will not deny access to cable communications service to any group
of potential residential subscribers because of the income of the residents of the local
area in which the group resides. (Ord. 4625 § 2, 1993.)
13.36.300 Continuity of service.
It shall be the right of all subscribers to continue receiving service so long as their
financial and other obligations to a franchisee are fulfilled.
A. In this regard a franchisee shall act so far as it is within its control to ensure that
all subscribers receive continuous uninterrupted service during the term of the
franchise.
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B. In the event a franchisee fails to operate a system for 72 continuous and
consecutive hours without prior notification to and approval of the city council or
without just cause such as an impossibility to operate the system because of the
occurrence of an act of God or other circumstances reasonably beyond a
franchisee’s control, the city may, after notice and an opportunity for a franchisee to
commence operations at its option, operate the system or designate someone to
operate the system until such time as a franchisee restores service to conditions
acceptable to the city council or a replacement franchisee is selected. If the city is
required to fulfill this obligation for a franchisee, a franchisee shall reimburse the city
for all reasonable costs or damages in excess of revenues from the system received
by the city that are the result of a franchisee’s failure to perform. (Ord. 4625 § 2,
1993.)
13.36.310 Franchise renewal.
The provisions of Section 626 of the Act, or other applicable federal or state law, will
govern the actions of the city and a franchisee in proceedings relating to franchise
renewal. The city expressly reserves the right to establish guidelines and monitoring
systems in accordance with the provisions of the Act to measure the effectiveness of
a franchisee’s performance during the term of such franchise. (Ord. 4625 § 2, 1993.)
13.36.320 Transfer of ownership.
A. A franchisee’s right, title, or interest in the franchise shall not be sold, transferred,
assigned, or otherwise encumbered, other than to an affiliate, without the prior
consent of the city, such consent not to be unreasonably withheld. No such consent
shall be required, however, for a transfer in trust, by other hypothecation, or by
assignment of any rights, title, or interest of the franchisee in the franchise or cable
system in order to secure indebtedness. Approval shall not be required for
mortgaging purposes provided that the collateral does not specifically affect the
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assets of this franchise, or if the transfer is from a franchisee to another person or
entity controlling, controlled by, or under common control with a franchisee.
B. In any transfer of a franchise requiring city approval, the applicant must show
technical ability, financial capability, legal and general qualifications as determined by
the city, and must agree to comply with all provisions of the franchise. All costs
associated with the transfer process shall be reimbursed to the city.
C. An assignment of a franchise shall be deemed to occur if there is an actual
change in control or where ownership of 50 percent or more of the beneficial
interests, singly or collectively, are obtained by other parties. The word “control” as
used herein is not limited to majority stock ownership only, but includes actual
working control in whatever manner exercised.
D. Regardless of the circumstances, a franchisee shall promptly notify the city prior
to any proposed change, transfer, or acquisition by any other party of a franchisee’s
company. In the event that the city adopts a resolution denying its consent and such
change, transfer or acquisition of control has been effected, the city may cancel the
franchise. (Ord. 4625 § 2, 1993.)
13.36.330 Removal and abandonment – Franchisee property.
A. The city may direct a franchisee to temporarily disconnect or bypass any
equipment of a franchisee in order to complete street construction or modification,
install and remove underground utilities, or for other reasons of public safety and
efficient operation of the city. Such removal, relocation or other requirement shall be
at the sole expense of a franchisee.
B. In the event that the use of any part of the cable system is discontinued for any
reason for a continuous period of 12 months, or in the event such system or property
has been installed in any street or public place without complying with the
requirements of the franchise or other city ordinances or the franchise has been
terminated, cancelled or has expired, a franchisee shall promptly, upon being given
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10 days’ notice, remove within 90 days from the streets or public places all such
property and poles of such system other than any which the city may permit to be
abandoned in place. In the event of such removal, a franchisee shall promptly restore
the street or other areas in accordance with local regulations and standards from
which such property has been removed to a condition similar to that existing before
such removal and satisfactory to the city. Such approval shall not be unduly withheld.
C. Any property of a franchisee remaining in place 90 days after the termination or
expiration of the franchise shall be considered permanently abandoned. The city may
extend such time not to exceed an additional 90 days.
D. Any property of a franchisee to be abandoned in place shall be abandoned in
such manner as the city shall prescribe. Upon permanent abandonment of the
property of a franchisee in place, the property shall become that of the city, and a
franchisee shall submit to the city clerk an instrument in writing, to be approved by
the city attorney, transferring to the city the ownership of such property. None of the
foregoing affects or limits franchisee’s rights to compensation for an involuntary
abandonment of its property under state or federal law. In the event the city and a
franchisee are unable to agree as to whether an abandonment is voluntary for the
purposes of this section, either party may invoke arbitration to resolve such question.
(Ord. 4625 § 2, 1993.)
13.36.340 Termination – Revocation for cause.
A. If a franchisee willfully violates or fails to comply with any of the material
provisions of a franchise, the city shall give written notice to a franchisee of the
alleged noncompliance of its franchise. A franchisee shall have 45 days from the date
of notice of noncompliance to cure such alleged default or, if such default cannot be
cured within 45 days, to present to the city a plan of action whereby such default can
be promptly cured.
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B. If such default continues beyond the applicable dates agreed to for such cure,
the city shall give a franchisee written notice that all rights conferred under this
chapter and pursuant to its franchise may be revoked or terminated by the council
after a public hearing. A franchisee shall be entitled to not less than 30 days’ prior
notice of the date, time and place of the public hearing. The city may elect, in lieu of
the above and without any prejudice to any of its other legal rights and remedies, to
obtain an order from the superior court having jurisdiction compelling a franchisee to
comply with the provisions of the franchise and recover damages and costs incurred
by the city by reason of a franchisee’s failure to comply. (Ord. 4625 § 2, 1993.)
13.36.350 Effect of termination for noncompliance.
Subject to state and federal law, if any franchise is terminated by the city by reason of
a franchisee’s noncompliance, that part of the system under such franchise located in
the streets and public property, shall, at the election of the city, become the property
of the city at a cost consistent with the provisions of Section 627(b)(1) of the Act. If
the city, or a third party, does not purchase the system, a franchisee shall, upon order
of the city council, remove the system as required under ACC 13.36.330. (Ord. 4625
§ 2, 1993.)
13.36.360 Indemnity and hold harmless.
A franchisee will indemnify and hold harmless the city from any and all liabilities,
fees, costs and damages, except in the case of judicially determined gross
negligence and/or willful misconduct of the city, whether to person or property, or
expense of any type or nature which may occur to the city by reason of the
construction, operation, maintenance, repair and alteration of a franchisee’s facilities
or any other actions of a franchisee in the city. In any case in which suit or action is
instituted against the city by reason of damage or injury caused by a franchisee, the
city shall cause written notice thereof to be given to a franchisee and a franchisee
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thereupon shall have the duty to appear and defend any such suit or action, without
cost or expense to the city. (Ord. 4625 § 2, 1993.)
13.36.370 Insurance.
A. A franchisee shall, concurrently with the filing of an acceptance of award of any
franchise granted hereunder, furnish to the city and file with the city clerk, and at all
times during the existence of any franchise granted hereunder maintain in full force
and effect, at its own cost and expense, a general comprehensive liability insurance
policy, for the purpose of protecting the city and all persons against liability for loss or
damage, for personal injury, death and property damage, and errors or omissions,
occasioned by the operations of a franchisee under such franchise, such policy to
provide minimum limits of $1,000,000 for both personal injury and/or property
damage.
B. The policies mentioned in the foregoing paragraph shall name the city as
additional insured and shall contain a provision that a written notice of cancellation or
reduction in coverage of said policy shall be delivered to the city 30 days in advance
of the effective date thereof. If such insurance is provided by a policy which also
covers a franchisee or any other entity or person other than those above named,
then such policy shall contain the standard cross-liability endorsement. (Ord. 4625
§ 2, 1993.)
13.36.380 Performance bond.
A franchisee shall promptly repair or cause to be repaired any damage to city
property caused by a franchisee or any agent of a franchisee. A franchisee shall
comply with all present and future ordinances and regulations regarding excavation
or construction and, if deemed necessary by the city, shall be required to post a
performance bond or other surety acceptable to the city in an amount specified by the
city in favor of the city warranting that all restoration work will be done promptly and
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in a workmanlike manner and that penalties, if any, after final adjudication are paid to
the city within 90 days of such finding. (Ord. 4625 § 2, 1993.)
13.36.390 Franchising costs.
A franchisee shall pay to the city upon acceptance of any franchise granted
hereunder the city’s out-of-pocket costs associated with the franchising process. The
city shall provide the franchisee an itemization of its anticipated costs. Such payment
is in addition to franchise fee payments. Payment is due within 30 days of receipt of
appropriate invoice from the city. (Ord. 4625 § 2, 1993.)
13.36.400 Equalization of civic contributions.
A. In the event of one or more franchises being granted pursuant to the provisions
of this chapter, the city may require that such subsequential franchisees pay to the
city an amount proportionally equal to franchising costs contributed by the initial
franchisee. These costs may include, but are not limited to, such features as access
and institutional network costs, bi-directional or equivalent cable installed to municipal
buildings and similar expenses.
B. On the anniversary of the grant of each later awarded franchise, such
franchisees shall pay to the city an amount proportional to the amount contributed by
the original franchisee, based upon the amount of subscribers held by such
franchisees.
C. Additional franchisees shall provide all PEG access channel(s) and the
emergency override system currently available to the subscribers of existing
franchisees. In order to provide these access channels, additional franchisees may
interconnect, at their cost, with existing franchisees, subject to any reasonable terms
and conditions that the existing franchisee providing the interconnection may require.
These interconnection agreements shall be made directly between the franchisees.
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The city council, in such cases of dispute of award, may be called upon to arbitrate
regarding these arrangements. (Ord. 4625 § 2, 1993.)
13.36.410 Inconsistency.
If any portion of chapter should be inconsistent or conflict with any rule or regulation
now or hereafter adopted by the FCC or other federal law, then to the extent of the
inconsistency or conflict, the rule or regulation of the FCC or other federal law shall
control for so long, but only for so long, as such rule, regulation, or law shall remain in
effect; provided the remaining provisions of this chapter shall not be affected thereby.
(Ord. 4625 § 2, 1993.)
13.36.420 Severability.
Each section, subsection or other portion of chapter shall be severable and the
invalidity of any section, subsection, or other portion shall not invalidate the
remainder. (Ord. 4625 § 2, 1993.)
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EXHIBIT B
PAGE 1 of 5
ORDINANCE 6798
EXHIBIT B
Chapter 13.44
ELECTRICAL FRANCHISE
[Repealed]
Sections:
13.44.010 Granted.
13.44.020 Grantee defined.
13.44.030 Public highways and places – Defined – Scope.
13.44.040 Pole and cable maintenance.
13.44.050 Indemnification of city.
13.44.060 Building moving – Wire removal.
13.44.070 Acquisition of grantee’s property.
13.44.080 Franchise not exclusive.
13.44.090 Severability.
13.44.100 Written acceptance required.
13.44.010 Granted.
There is granted to Puget Sound Power and Light Company, a Washington
corporation, its successors and assigns, hereinafter called the grantee, for the term of
25 years beginning on the first day of January, 1977, and ending on the thirty-first
day of December, 2001, the right, privilege, authority and franchise to set, erect,
construct, replace, maintain and use poles and lines of poles (with or without
crossarms) and all convenient appurtenances, equipment and facilities for the
support thereof, or underground cables with appurtenances thereto where such
underground facilities have been specially contracted for, in, upon, over, along and
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across the public highways and places, as hereinafter defined, in the city of Auburn,
and to attach wires and cables to such poles and crossarms and stretch wires and
cables from pole to pole and to the premises of patrons for the transmission,
distribution and sale of electricity for power, heat, light and any other purpose or
purposes for which electricity may be used, whether for municipal, domestic,
manufacturing or other uses and purposes, and to charge and collect tolls, rates and
compensation for such electricity, and also the right to attach to such poles and
crossarms and maintain private telephone wires for the exclusive use of the grantee
in connection with its electric business. (Ord. 3121 § 1, 1976.)
13.44.020 Grantee defined.
The word “grantee” is used in this chapter to refer to and include not only Puget
Sound Power and Light Company, the immediate grantee hereof, but also the
successors and assigns of said Puget Sound Power and Light Company who may
successively become the owners, of the rights granted by this chapter. (Ord. 3121
§ 2, 1976.)
13.44.030 Public highways and places – Defined – Scope.
The grant hereby made is intended to, and does include any, all and every of the
public streets, avenues, alleys, highways, and public grounds and places in the city of
Auburn as now laid out, platted and dedicated, and all public streets, avenues, alleys,
highways and public grounds and places that may be hereafter laid out and
dedicated within the present limits of said city or within the limits thereof as the same
may hereafter be extended, all of which are included within the words “public
highways and places” wherever such words are used in this chapter. (Ord. 3121 § 3,
1976.)
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13.44.040 Pole and cable maintenance.
All poles and/or underground cables shall be constructed and maintained at such
places and in such positions upon said public highways and places as shall least
interfere with the free passage of traffic thereon, and in accordance with the laws of
the state of Washington regulating such construction, such installations to be made
under the supervision of, and with the permission of the director of public works of the
city of Auburn or other assigned by the mayor or city council. Whenever it shall be
necessary to make any excavation in any public highway or place for the erection,
repair or substitution of any pole, underground cables or other equipment or facilities
the grantee shall without delay restore the surface of said public highway or place as
nearly as practicable to the same condition it was in before the doing of such work.
(Ord. 3121 § 4, 1976.)
13.44.050 Indemnification of city.
The grantee shall indemnify the city of Auburn for, and hold it harmless from, all
damages that may result from the construction, maintenance or operation by such
grantee of any of its property in said public highways or places pursuant to this
franchise and shall pay all damages for which the grantee or the city of Auburn shall
be held liable as the result of injuries suffered by any person, association or
corporation by reason of the construction, maintenance or operation of such property;
provided, that in case any claim is filed with the city of Auburn or any suit or action is
instituted against said city by reason of any such damage or injury the city council
shall promptly cause written notice thereof to be given to the grantee and the grantee
shall have the right to defend any such suit or action. (Ord. 3121 § 5, 1976.)
13.44.060 Building moving – Wire removal.
Whenever any person shall have obtained permission from the city of Auburn to use
any public highway or place in said city for the purpose of moving any building the
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grantee, upon seven days’ written notice from the city clerk of said city, shall raise or
remove, at the expense of the person desiring to move said building, any of the wires
which may obstruct the removal of such building; provided, that the moving of such
building shall be done in accordance with the regulations and general ordinances of
the city and at such reasonable hours and in such reasonable manner as shall cause
the least interference with the business of the grantee, and where more than one
street is available for the moving of such building it shall be moved on such street as
shall cause the least interference with the business of the grantee; and provided
further, that the person moving such building shall indemnify the grantee for, and
save it harmless from, any and all damages or claims therefor of whatsoever kind or
nature that may be caused directly or indirectly by such temporary arrangement of
the poles, wires or other property of the grantee. (Ord. 3121 § 6, 1976.)
13.44.070 Acquisition of grantee’s property.
If during the term of this franchise the city of Auburn shall acquire, by purchase or
condemnation any of the grantee’s property maintained or used hereunder no greater
sum shall be allowed for the value of the rights herein granted, in addition to all other
elements affecting the value of such purchased or condemned property, than the
actual cost of obtaining this franchise. (Ord. 3121 § 7, 1976.)
13.44.080 Franchise not exclusive.
This franchise is granted upon the express condition that it shall not be deemed or
held to be an exclusive franchise and shall not in any manner prohibit the city of
Auburn from granting other and further franchises in, upon, over, along or across any
of said public highways and places. (Ord. 3121 § 8, 1976.)
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13.44.090 Severability.
If any term, provision, condition or portion of this franchise shall be held to be invalid,
such invalidity shall not affect the validity of the remaining portions of this franchise
which shall continue in full force and effect. (Ord. 3121 § 9, 1976.)
13.44.100 Written acceptance required1.
In order to claim any right or benefit under this franchise the grantee shall file its
written acceptance of this franchise with the city clerk within 30 days after the
approval hereof by the mayor and the publication of this chapter as required by law.
(Ord. 3121 § 10, 1976.)
1 Puget Sound Power and Light Company executed written acceptance of this
franchise November 30, 1976.
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EXHIBIT C
PAGE 1 of 152
ORDINANCE 6798
EXHIBIT C
Title 20
TELECOMMUNICATIONS AND OTHER COMMERCIAL UTILITIESFRANCHISES,
CABLE FRANCHISES, AND LEASES
Chapters:
20.02 General Provisions
20.04 Public Way AgreementsUtility and Telecommunications Franchises
20.06 Cable Franchise
20.08 Facilities Lease
20.10 Conditions of Public Way Agreements, Franchises, and Facilities
LeasesRepealed
20.12 Open Video Systems Repealed
20.14 Small Wireless Facilities within the Public Rights-of-Way
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Chapter 20.02
GENERAL PROVISIONS
Sections:
20.02.010 Purpose.
20.02.020 Definitions.
20.02.030 Business registration license required.
20.02.040 Public way agreementFranchise required.
20.02.050 Cable television fFranchise required.
20.02.060 Cable television franchiseFacilities lease required.
20.02.070 Facilities lease requiredAuthorizations necessary for
Construction.
20.02.080 Construction permit required.Applications to existing franchise,
cable franchise, leases, and permits and effect of other laws.
20.02.090 Application to existing franchise ordinances, agreements, leases,
and permits and effect of other laws.Fees and Compensation not a tax.
20.02.100 Reserved.Taxes are not to be a credit
20.02.110 Fees and compensation not a taxAccounts, books and records.
20.02.120 Taxes are not to be a credit.Location of facilities
20.02.130 Oversized loads.
20.02.140 Care of trees along streets.
20.02.150 Use of utility poles and facilities of others.
20.02.160 Use of poles and facilities by city.
20.02.170 Interference with the public ways.
20.02.180 Leased capacity.
20.02.190 Damage to property.
20.02.200 Repair and emergency work.
20.02.210 Maintenance, abandonment, relocation, or removal of facilities.
20.02.220 Removal of unauthorized facilities.
20.02.230 Emergency removal or relocation of facilities.
20.02.240 Damage to facilities.
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20.02.250 Restoration of public ways, other ways, city property, and
public/private utility property.
20.02.260 Facilities maps.
20.02.270 Insurance.
20.02.280 Financial security
20.02.290 Assignments or transfers of franchises, cable franchises, or
leases.
20.02.300 Civil penalties.
20.02.310 Unfunded mandate.
20.02.320 Administration.
20.02.010 Purpose.
The purpose and intent of this title is to:
A. Establish a local policy concerning regulation of telecommunications carriers,
operators, providers, cable operators, and other commercial utilities in public ways
and on city and/or public property;
B. Establish, consistent with applicable federal and state law, clear local guidelines,
standards and time frames for the exercise of local authority with respect to the
regulation of activities of telecommunications carriers, operators, providers, cable
operators, and other commercial utilities in public ways and on city and/or public
property;
C. Promote competition in telecommunications and cable service;
D. Minimize unnecessary local regulation of telecommunications carriers, operators,
providers, cable operators, and other commercial utilities;
E. Encourage the provision of advanced and competitive telecommunications
services on the widest possible basis to the businesses, institutions and residents of
the city;
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F. Permit and manage reasonable access to the public ways of the city for
telecommunications, cable and utility purposes on a competitively neutral basis;
G. Conserve the limited physical capacity of the public ways held in public trust by
the city;
H. Assure that the city’s current and ongoing costs of granting and regulating private
access to and use of the public ways are fully paid by the persons seeking or using
such access and causing such costs;
I. To the extent permitted by federal and stateapplicable law, secure fair and
reasonable compensation to the city and the residents of the city for permitting
private use of the public ways;
J. Assure that all telecommunications carriers, operators, providers, cable
operators, and other commercial utilities utilizing public ways or city or public property
within the city comply with the ordinances, rules and regulations of the city;
K. Assure that the city can continue to fairly and responsibly protect the public
health, safety and welfare; and
L. Enable the city to discharge its public trust consistent with rapidly evolving federal
and state regulatory policies, industry competition and technological development.
(Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.02.020 Definitions.
For the purpose of this title, and the interpretation and enforcement thereof, the
following words and phrases shall have the following meanings, unless the context of
the sentence in which they are used shall indicate otherwise:
A. “The Act” means the Federal TelecommunicationsCommunications Act of 1934,
as amended January 31, 1996.
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“Addressability” means the ability of a telecommunications system to allow
telecommunications carriers, operators, or providers to authorize by remote control
customer terminals to receive, change, or to cancel any or all specified programming.
B. “Affiliate” means an entity which (directly or indirectly) owns or controls, is owned
or controlled by, or is under common ownership with franchisee. For purposes of this
definition, the term “own” means to own an equity interest (or the equivalent thereof)
of more than 10 percent.
C. “Applicable Law” means any statute, ordinance, judicial decision, executive order
or regulation having the force and effect of law that determines the legal standing of a
case or issue.
D. “Applicant” means any person or entity that applies for any public way
agreement, franchise, cable franchise, lease, or permit pursuant to this title.
“Cable facilities” means equipment and wiring used to transmit audio and video
signals to subscribers.
E. “Cable operator” means any person or group of persons (A) who provides cable
service over a cable system and directly or through one or more affiliates owns a
significant interest in such cable system, or (B) who otherwise controls or is
responsible for, through any arrangement, the management and operation of such a
cable system.a telecommunications carrier providing or offering to provide “cable
service” within the city as that term is defined in the Cable Act and Chapter 13.36
ACC.
F. “Cable service” means (A) the one-way transmission to subscribers of (i) video
programing, or (ii) other programing service, and (B) subscriber interaction, if any,
which is required for the selection or use of such video programming of other
programming service.for the purpose of this title shall have the same meaning
provided by the Cable Act and Chapter 13.36 ACC.
G. “Cable system” means a facility, consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment that is designed
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to provide cable service and other service to subscribers.which includes video
programing and which is provided to multiple subscribers within a community, but
such term does not include:
1. A facility that serves only to retransmit the television signals of one(1) or more
television broadcast stations;
2. A facility that serves subscribers without using any public way;
3 A facility of a common carrier which is subject, in whole or in part, to the
provisions of Title II of the Federal Communications Act (47 U.S.C. 201 et seq.),
except that such facility shall be considered a cable system (other than for
purposes of Section 621(c)(47 U.S.C. 541(c)) to the extent such facility is used in
the transmission of video programming directly to subscribers, unless the extent
of such use is solely to provide interactive on-demand services;
4. An open video system that complies with federal statutes; or
5. Any facilities of any electric utility used solely for operating its electric utility
system;
H. “Carrier” means any provider of telecommunications services, except that this
term does not include aggregators of telecommunications services as defined in
Section 225 of the Act. (See also “Telecommunications carrier.”)
I “City” means the city of Auburn, Washington as defined in ACC 1.04.010 to include
all future areas annexed into the city.
J. “City property” means and includes all real property owned by the city, other than
public ways and utility easements as those terms are defined herein, and all property
held in a proprietary capacity by the city, which are not subject to public way
agreements and franchising as provided in this title.
“Commercial utility provider” means any natural gas, electric power, pipeline, or
other company desiring to utilize city public ways for transporting, purveying, or
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delivering bulk products, or providing commercial power or gas services within the
city, or needing to transport bulk product or services through the city to other
destinations for commercial purposes.
K. “Council” means the city council of the city of Auburn, Washington acting in its
official capacity constituting the legislative body of the city.
“Data communication” means (1) the transmission of encoded information or (2) the
transmission of data from one point to another.
“Dwelling units” means residential living facilities as distinguished from temporary
lodging facilities such as hospitals, hotel and motel rooms and dormitories, and
includes single-family residential units and individual apartments, condominium units,
mobile homes, extended care facilities and other multiple-family residential units.
L. “Emergency” means a condition of imminent danger to the health, safety, and
welfare of property or persons located within the city including, without limitation,
damage to persons or property from natural consequences, such as storms,
earthquakes, riots or wars.
M. “Excess capacity” means the volume or capacity in any existing or future duct,
conduit, manhole, handhole or other utility facility within the public way that is or will
be available for use for additional telecommunications, cable, or utility facilities.
N. “FCC” or “Federal Communications Commission” means the federal
administrative agency, or lawful successor, authorized to regulate and oversee cable
and telecommunications carriers, services and providers on a national level.
“Fiber optics” means the technology of guiding and projecting light for use as a
communications medium.
O. “Franchise” shall mean the initial authorization, or renewal thereof, approved by
an ordinance of the city, which authorizes the franchisee to construct, install, operate,
or maintain telecommunications, cable or other commercial utility facilities in, under,
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over, or across public ways of the city and to also provide service to persons or areas
in the city.
P. “Franchise area” means all areas within the current city limits and within any
future adjusted boundaries of the city limits. The effective date of any such changes
in the city limits will be the effective date(s) of any future annexations.
Q. “Franchisee” means a person, as defined herein, firm or corporation to whom or
which a franchise, as defined in this section, is granted by the council under this title
and the lawful successor, transferee or assignee of said person, firm or corporation
subject to such conditions as may be defined in the franchise and in this title.
“Grantee” means a holder of a public way agreement, franchise, or lease approved
by the city council of the city of Auburn.
R. “Gross revenue” shall mean a cable operator’s gross revenues derived from the
operation of the cable system to provide cable services. Gross revenues for the
purposed of calculating franchise fees shall be as set forth in any franchise
agreement.all receipts accrued in a franchisee’s books for all commercial utility,
communications and communications-related operations and services from
subscribers, who have a service address within the corporate limits of the city of
Auburn, to franchisee’s business as well as any other revenue arising from operation
or possession of a franchise agreement with the city of Auburn, less the application
and administrative fees mandated in the franchise agreement and the franchise fee
intended for compensation for use of “public ways.” By way of example, but without
limitation, “gross revenue” includes all revenues from the sale or lease of equipment,
installation charges to subscribers who have service addresses within the corporate
limits of the city, charges to customers, subscribers and other users of the
telecommunications system who have service addresses within the corporate limits
of the city. “Gross revenues” does not include: (a) taxes, fees, or assessments of any
kind or description imposed on or levied against franchisee which are not applicable
to all other persons or entities doing business within the city, (b) revenues
noncollectible from customers (bad debts) which have been written off through
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generally accepted accounting practices, (c) discounts, and (d) any applicable
exclusions under the law.
S. “Lessee” means the holder of a lease for use of city or public property which has
been approved by the city council of the city of Auburn.
T. “Other ways” means the highways, streets, alleys, utility easements or other
rights-of-way within the city, but under the jurisdiction and control of a governmental
entity other than the city.
U. “Overhead facilities” means utility poles, utility facilities and telecommunications,
cable, or other commercial utility facilities located above the surface of the ground,
including the underground supports and foundations for such facilities.
“OVS” means open video system which is a telecommunications system having two-
thirds of its capacity set aside for use by other providers, programmers, or
competitive business on a subleasing basis. Because of its self-competitive nature,
an OVS is subject to regulatory restrictions.
V. “Person” means and includes corporations, companies, associations, joint stock
companies or associations, firms, partnerships, limited liability companies and
individuals and includes their lessors, trustees and receivers.
“Property of franchisee” means all plant, or facilities owned, installed or used by a
franchisee in the conduct of its business in the city under the authority of a franchise
granted pursuant to this title.
W. “Proposal” means an application by any person or entity that applies for any
public way agreement, franchise, cable franchise lease, or permit pursuant to this
title.
X. “Public place” means an area generally open to public access including all public
ways, parks, plazas, publicly owned buildings, theaters, and entrances or doorways
to places of business that front on a public way.
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Y. “Public street” means any highway, street, alley or other public right-of-way for
motor vehicle travel under the jurisdiction and control of the city which has been
acquired, established, dedicated or devoted to highway purposes.the movement of
motorized and non-motorized traffic, including city streets as part of state highways
under Chapter 47.24 RCW.
Z. “Public way(s)” shall mean the surface, the air space above the surface, and the
space below the surface of any public street, including, but not limited to, any public
alley, bridge, land path, trail, court, circle, roundabout, boulevard, drive, tracts, right-
of-way or sidewalk under the jurisdiction of the city as is now, or in the future, laid out,
improved or unimproved within the limits of the city presently and as such limits may
be hereafter extended.
AA. “State” means the state of Washington.
BB. “Subscriber” or “customer” means a person or user of the commercial utility, or
telecommunications, or cable system who lawfully receives commercial utility, or
telecommunications, or cable services, or other service therefrom, with franchisee’s
express permission.
CC. “Substantial change” for purposes of this chapter means a modification that
substantially changes the physical dimensions of an eligible support structure located
in the public way if, after the modification, the structure meets any of the following
criteria:
1. It increases the height of the structure by more than ten percent or more than
ten feet, whichever is greater;
2. It involves adding an appurtenance to the body of the structure that would
protrude from the edge of the structure by more than six feet;
3. It involves installation of more than the standard number of new equipment
cabinets for the technology involved, but not to exceed four cabinets; or, for
wireless communication towers in the public way and base stations, it involves
installation of any new equipment cabinets on the ground if there are no
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preexisting ground cabinets associated with the structure, or else involves
installation of ground cabinets that are more than ten percent larger in height or
overall volume than any other ground cabinets associated with the structure;
4. It entails any excavation or deployment outside the current site as that term is
defined in 47 CFR §1.6100;
5. It would defeat the concealment elements of the eligible support structure; or
6. It does not comply with conditions associated with the original approval of the
construction or modification of the eligible support structure or base station
equipment, unless noncompliance is only in a manner that would exceed the
thresholds identified in subsections (1) through (4) of this definition.
For purposes of determining whether a substantial change exists, changes in height
are measured from the original support structure as it existed at the time the first EFR
request was approved for that structure in cases where facilities are or will be
separated horizontally, in other circumstances, changes in height are measured from
the dimensions of the wireless communication tower or base station, inclusive of
originally approved appurtenances and any modifications that were approved prior to
February 22, 2012.
DD. “Surplus space” means that portion of the usable space on a utility pole which
has the necessary clearance from other pole users, as required by federal or
stateapplicable law, orders, and regulations, to allow its use by a utility, cable, or
telecommunications carrier for a pole attachment.
EE. “Telecommunications carrier” means and includes every person that directly or
indirectly owns, controls, operates or manages plant, equipment or facilities within the
city’s public ways, for the purpose of offering telecommunications services within the
city. (See also “Carrier.”)
FF. “Telecommunications facilities or system” means the definition contained in
ACC 5.84.020 with the exception of real estate, easements, and property.plant,
equipment and facilities, including but not limited to, cables, wires, conduits, ducts,
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pedestals, antennae, electronics and other appurtenances used or to be used to
transmit, receive, distribute, provide or offer telecommunications services.
GG. “Telecommunications operator” means and includes every person who
provides telecommunications services within the city over telecommunications
facilities located within the city’s public ways, without any ownership, management or
control of the facilities.
HH. “Telecommunications provider” means and includes every person who utilizes
facilities within the city’s public ways to provide services outside the city only.
II. “Telecommunications service” means the transmission of information by wire,
radio, optical cable, electromagnetic, or other similar means for hire, sale, or resale to
the general public. For the purpose of this subsection, “information” means
knowledge or intelligence represented by any form of writing, signs, signals, pictures,
sounds, or any other symbols. For the purpose of this Chapter, telecommunications
service excludes the over-the-air transmission of broadcast television or broadcast
radio signals.providing or offering for rent, sale or lease, or in exchange for other
value received, of the transmittal of voice, data, image, graphic and video
programming information between or among points by wire, cable, fiber optics, laser,
microwave, radio, satellite or similar facilities, with or without benefit of any closed
transmission medium.
“Telecommunications system,” see “Telecommunications facilities.”
JJ. “Underground facilities” means utility, and telecommunications, and cable
facilities located under the surface of the ground, excluding the underground
foundations or supports for overhead facilities.
KK. “Usable space” means the total distance between the top of a utility pole and
the lowest possible attachment point that provides the minimum allowable vertical
clearance as specified in any federal or state orders and regulations.
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LL. “Utility easement” means any easement in which the city holds an interest in or
an interest has been acquired, established, dedicated or devoted for city utility
purposes.
MM. “Utility facilities” means the plant, equipment and property, including but not
limited to the poles, pipes, mains, conduits, ducts, cables, wires, plant and equipment
located under, on or above the surface of the ground within the public ways of the
city and used or to be used for the purpose of providing utility or telecommunications
services.
NN. “Utility provider” means any natural gas, electric power, pipeline, water or sewer
not owned or operated by the City of Auburn, or other company desiring to utilize the
public ways for transporting, purveying, or delivering bulk products, or providing
power or gas services within the city, or needing to transport bulk product or services
through the city to other destinations for commercial purposes.
OO. “WUTC” means the Washington State Utility and Transportation Commission.
(Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.02.030 Business registration license required.
Except as otherwise provided herein, all commercial utilityies, cable operators,
telecommunications carriers, operators and providers engaged in the business of
transmitting, supplying or furnishing of commercial utility, cable or
telecommunications service of any kind originating or terminating in the city, or
utilizing facilities within the city’s public ways to provide services exclusively outside
of the city only, shall apply for and obtain a business registration license from the city
pursuant to Chapter 5.84 ACC. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
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20.02.040 Public way agreement required.
Except as otherwise provided herein, any commercial utility or telecommunications
provider who desires to construct, install, operate, maintain, or otherwise locate
facilities in, under, over or across any public way of the city for the sole purpose of
providing service to persons and areas outside the city shall first obtain a public way
agreement granting the use of such public ways from the city pursuant to Chapter
20.04 ACC. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.02.05020.02.040 Franchise required.
Except as otherwise provided herein, any commercial utility, telecommunications
carrier or operator who desires to construct, install, operate, maintain or otherwise
locate facilities in, under, over or across any public way of the city, and to also
provide service to persons or areas inside the city or outside of the city, shall first
obtain a franchise granting the use of such public ways from the city pursuant to
Chapter 20.0620.04 ACC. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.02.06020.02.050 Cable television franchise required.
Except as otherwise provided herein, any telecommunications carrier or other person
who desires to construct, install, operate, maintain or locate cable or
telecommunications facilities in any public way in the city for the purpose of providing
cable service to persons in the city shall first obtain a cable franchise from the city
pursuant to Chapter 13.3620.06 ACC. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.02.07020.02.060 Facilities lease required.
No commercial utility, cable, telecommunications carrier, or other entity who desires
to locate facilities or other equipment on city property shall locate such facilities or
equipment on city property that are not public ways unless granted a facilities lease
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from the city pursuant to Chapter 20.08 ACC. The city council reserves unto itself the
sole discretion to lease such city property for utility, cable, telecommunications, and
other facilities, and no vested or other right shall be created by this section or any
provision of this title applicable to such facilities leases. (Ord. 5271 § 1, 1999; Ord.
5034 § 1, 1998.)
20.02.08020.02.070 Authorizations necessary for Construction permit required.
Except as otherwise provided herein, the holder of a public way agreement,
franchise, cable franchise or lease granted pursuant to this title, and the holders of
cable franchises granted pursuant to Chapter 13.36 ACC, shall, in addition to said
public way agreement, franchise, cable franchise, or lease, be required to obtain all
applicable construction permits from the city pursuant to Chapter 12.24 ACC,
Chapter 20.14 ACC and Title 18 ACC. No work, construction, development,
excavation, substantial change, or installation of any equipment or facilities shall take
place within the public ways or upon city property until such time as the construction
appropriate permits areis issued or lease terms are met. (Ord. 5271 § 1, 1999; Ord.
5034 § 1, 1998.)
20.02.09020.02.080 Application to existing franchise, cable franchise, ordinances,
agreements, leases, and permits and effect of other laws.
All grantees, franchisees, and lessees subject to this title are at all times subject to
and must comply with all applicable existing and future federal, state and local laws,
ordinances, codes, rules, regulations and orders.
A. In accepting and executing any franchise, cable franchise, or lease, the
franchisee, or lessee acknowledges that its rights thereunder are subject to the
legitimate rights of the police power of the city to adopt and enforce general
ordinance, rules, and/or regulations necessary to protect the safety, health, and
welfare of the public, subject to applicable law. A franchisee and/or lessee shall
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comply with all applicable general laws, rules, and/or regulations enacted by the
city pursuant to such power.This title shall have no effect on agreements in effect
prior to adoption, unless otherwise provided, in any existing franchise ordinance,
franchise agreement, lease, permit, agreement or other authorization to use or
occupy a public way in the city until:
1. The expiration of said franchise ordinance, agreement, lease, permit, or
authorization; or
2. The amendment to an unexpired franchise ordinance, franchise agreement,
lease, permit, authorization, or agreement unless both parties agree to defer full
compliance to a specific date not later than the expiration date provided therein.
B. Nothing in this title shall be deemed to create an obligation upon any person
for which the city is forbidden to require pursuant to federal, state, or
otherapplicable law.
C. Upon expiration of the electrical and natural gas franchises in effect at time of
adoption of this title, granted by Chapter 13.44 ACC, the franchise shall be
renegotiated under the terms of this title. (Ord. 5271 § 1, 1999; Ord. 5034 § 1,
1998.)
20.02.100 Reserved.
(Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.02.11020.02.090 Fees and compensation not a tax.
The fees, charges and fines provided for in this title and any compensation charged
and paid as provided herein, whether fiduciary or in-kind, are separate from, and
additional to, any and all federal, state, local, and city taxes as may be levied,
imposed or due from a commercial utility, cable, or telecommunications carrier,
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operator, or provider, its customers or subscribers or on account of the lease, sale,
delivery or transmission of utility, cable, or telecommunications services. (Ord. 5271
§ 1, 1999; Ord. 5034 § 1, 1998.)
20.02.12020.02.100 Taxes are not to be a credit.
Any compensation paid as provided for in public way agreements, any franchises,
cable franchises, and/or facility leases shall be exclusive of and in addition to all
special assessments and taxes of whatever nature which are applicable to all other
persons or entities doing business within the city, including, but not limited to, ad
valorem taxes, sales taxes, corporate or business occupation taxes or other taxes or
fees imposed or levied by any governmental entity. (Ord. 5271 § 1, 1999; Ord. 5034
§ 1, 1998.)
20.06.19020.02.110 Accounts, books and records.
The franchisee shall keep the city fully informed as to accounting methods and
procedures in connection with the recording and reporting by the franchisee of all
revenues and uncollectibles.
A. City to Be Informed. Franchisees shall keep the city fully informed as to all
matters in connection with or which may affect the construction, reconstruction,
removal, maintenance, operation and repair of franchisee’s system located in public
way(s), franchisee’s accounting methods and procedures in connection therewith,
and the recording and reporting by franchisees of all revenues and uncollectibles.
Franchisees shall comply with the city’s determination regarding forms for reports,
the time for reports, the frequency with which any reports are to be made, and
whether reports are to be made under oath. The city acknowledges that a franchisee
may be a reporting company under the Securities Exchange Act of 1934 and that
shares of its stock are publicly traded. As such, a franchisee may be precluded from
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disclosing certain sensitive, nonpublic information by virtue of rules and regulations
promulgated under such act or otherwise.
B. Accounts. The franchisee shall keep complete and accurate books of account
and records of its business and operations subject to this franchise chapter in
accordance with generally accepted accounting principles or in accordance with
accounting rules prescribed by applicable federal or state regulatory agencies. The
city may require the keeping of additional records or accounts which are reasonably
necessary for purposes of identifying, accounting for, and reporting gross revenues
and uncollectibles. All subscribers who report a service address in the city of Auburn
shall be subject to taxes and fees under this franchise. When required by the city, the
franchisee shall make available a complete list of all service addresses within the city
of Auburn. This list shall be available for review by the city at a local franchisee’s
business office. The list will be provided on a computer disc in ASCII format sorted by
zip codein a format acceptable to the city. It is understood this data is only needed for
Auburn to perform an audit to ascertain that the correct subscribers are subjected to
Auburn taxes and fees. As the city annexes new areas, those zip codes, if any, will
be added.
C. Access to Records. The franchisee shall provide the city with access at
reasonable times and for reasonable purposes, to examine, audit, review and/or
obtain copies of the papers, books, accounts, documents, maps, plans and other
records of the franchisee pertaining to this franchise chapter. The franchisee shall
fully cooperate in making available its records and otherwise assisting in these
activities. Such information shall be held in strict confidence by the city, as allowed by
law, and used only for the purpose stated herein.
D. Inquiries to Franchisee. The city may, at any time, make inquiries pertaining to
the franchisee’s operation of its utility, cable, or telecommunications system within
the franchise area. The franchisee shall respond to such inquiries on a timely basis.
(Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
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20.10.05020.02.120 Location of facilities.
All facilities shall be constructed, installed, and located in accordance with the
following terms and conditions, unless otherwise specified in a public way agreement,
franchise, or lease agreement.
A. Unless otherwise provided in a public way agreement, franchise, or lease, a
grantee, franchisee, or lessee with permission to occupy a public way or public
property must locate its utility, cable, or telecommunications facilities underground in
accordance with ACC Title 18 and Chapter 13.32A ACC.
B. Any newcomer in the public way must bear the full cost of discovering the
location of any existing conflicts, coordination of the engineering plans to acquire the
approvals of parties already in the public way, and relocating and/or mitigating such
conflicts with preexisting facilities in conflict with the plans of the newcomer.
C. Whenever the city requires, a grantee, franchisee, or lessee subject to this title,
and that currently occupies the public way shall relocate its facilities underground at
no expense to the city. Such relocation shall be made concurrently with other
planned work to minimize the disruption of the public ways as determined by the city
engineer.
D. Should the available capacity of public ways prevent new uses in the future, all
persons subject to this title shall negotiate with any interested newcomer the means
of creating new capacity as required by federal or stateapplicable law. The parties
shall arrive at a mutually supportable agreement and submit the same to the city for
review and comment. The parties will incorporate any reasonable city requirements
for approval, and resubmit the revised proposal for city council approval. If approved
by the city council, the parties will bear all costs associated with the proposal, and
obtain the necessary permits to execute the approved plan from the city in
accordance with this title and Chapter 12.24 ACC. The city shall bear no costs
associated with resolution of capacity shortages within the public ways. (Ord. 5271
§ 1, 1999; Ord. 5034 § 1, 1998.)
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20.10.14020.02.130 Building movingOversized loads.
Whenever any person shall have obtained permission from the city to use any street
or public way for the purpose of moving any buildingoversized loads, a grantee,
franchisee, or lessee, upon seven calendar days’ written notice from the cityperson
with a permit to move the oversized loads, shall raise or remove, at the expense of
the person desiring to move the buildingoversized load, any of the grantee,
franchisee, or lessee’s utility wires, poles, or facilities which may obstruct the moving
of such buildingoversized load; provided, that the person desiring to move the
buildingoversized load shall comply with all requirements of the city for the moving of
buildingsoversized loads. Where more than one street is available for the moving of
such oversized load, the oversized load shall be moved on such streets as shall
cause the least interference, In such event, the city shall be responsible for
determining the path of least interference. It is further provided that the person or
persons moving such oversized load shall indemnify and save harmless said
franchisee or lessee and the city from any and all damages or claims of any kind or
nature caused directly or indirectly for such temporary arrangement of the lines and
poles of a franchisee or lessee (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.45020.02.140 Care of trees along streets.
Upon prior written approval of the city and in accordance with city ordinances, any
grantee, franchisee, or lessee shall have the authority to trim trees upon and
overhanging streets, public ways and places in the franchise area so as to prevent
the branches of such trees from coming in physical contact with the facilities of the
respective grantee, franchisee, or lessee. The grantee, franchisee, or lessee shall be
responsible for debris removal from such activities. If such debris is not removed
within 24 hours, the city may, at its sole discretion, remove such debris and charge
the grantee, franchisee, or lessee for the cost thereof. This section does not, in any
instance, grant automatic authority to clear vegetation for purposes of providing a
clear path for radio signals. Any such general vegetation clearing will require a city
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land clearing permitother permits as necessary from the city. (Ord. 5271 § 1, 1999;
Ord. 5034 § 1, 1998.)
20.10.46020.02.150 Use of utility poles and facilities of others.
Grantees and fFranchisees may seek to contract with the city or any appropriate
board or agency thereof or with the holder or owner of any utility franchise in the city
for the use, rental or lease of its or their poles and other structures and facilities for
the purpose of extending, carrying or laying utility, cable, or telecommunications
facilities, electronic conductors and other facilities and appurtenances necessary or
desirable in conjunction with the operation of its utility, cable, or telecommunications
system. The city agrees that any public utility owning or controlling such poles or
other structures or facilities may, without amendment to its franchise, allow, and is
encouraged to allow, grantees and franchisees to make such use thereof pursuant to
any agreement reached between the affected parties. City-owned poles are limited to
street light and traffic signal poles which generally are not intended for use by others.
The city reserves the right to determine on a case-by-case basis that particular
circumstances require that a certain city-owned pole is not appropriate for use. No
grantee or franchisee will utilize any city-owned poles prior to approval by the city
engineer. Unless otherwise limited by applicable law, Aany compensation for uses of
city-owned poles will be based upon the prevailing market rates for similar uses in the
region. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.47020.02.160 Use of poles and facilities by city.
With respect to poles and trenches which are facilities and which are (1) wholly
owned by a franchisee or grantee, and (2) within the franchise area, the city, subject
to franchisee’s or grantee’s prior written consent, may install and maintain city-owned
overhead facilities upon such poles, and conduits in open trenches, for police, fire,
illumination, and other noncommercial communications purposes, subject to the
following:
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A. Such installation and maintenance shall be completed at the city’s expense;
B. The franchisee or grantee shall have no obligation under the indemnification
provisions of this franchise or public way agreement for the installation or
maintenance of such city-owned facilities or conduits;
C. Nothing herein shall require the franchisee or grantee to bear any cost or
expense in connection with such installation and maintenance of city-owned facilities
or conduits, nor shall such city installation delay or adversely eaffect franchisee’s or
grantee’s construction schedule;
D. In no case shall the city attach to or come into contact with grantee’s or
franchisee’s equipment. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.08020.02.170 Interference with the public ways.
No grantee, franchisee, or lessee may locate or maintain its utility, cable or
telecommunications facilities so as to unreasonably interfere with the use of the
public ways by the city, by the general public or by other persons authorized to use or
be present in or upon the public ways and public property. All such facilities which
unreasonably interfere with the use of the city’s public ways as determined by the
public works director, shall be moved in accordance with provisions in ACC
20.10.13020.02.210, by the grantee, franchisee, or lessee, at the grantee,
franchisee, or lessee’s cost, temporarily or permanently, as determined by the public
works director. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.21020.02.180 Leased capacity.
A grantee, franchisee, or lessee shall have the right to offer or provide sublease
capacity, or bandwidth, or other facilities to its customers consistent with such permit,
franchise, or lease; provided:
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A. The sub-lessee first obtains a franchise, cable franchise, lease, or such
applicable agreement with the City of Auburn in conformance with this Title 20 ACC;
The grantee, franchisee, or lessee shall furnish the city with a copy of any such lease
or agreement between the grantee, franchisee, or lessee and the customer or sub-
lessee or provide to the city’s finance director sufficient information to determine
whether the lessee or customer is subject to city taxes or assessments; and
B. The sub-lessee fulfills all requirements of Chapters 3.84 and 3.88 ACC regarding
the reporting of all revenues subject to city taxes and assessments; and
C. The sub-Llessee must comply with the city’s registration requirements in Chapter
5.84 ACC. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.09020.02.190 Damage to property.
No grantee, franchisee, or lessee, nor any person acting on behalf of a grantee,
franchisee, or lessee shall take any action or permit any action to be taken which
may impair or damage any city property, public ways of the city, other ways or other
property, whether publicly or privately owned, located in, on or adjacent thereto. (Ord.
5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.11020.02.200 Repair and emergency work.
In the event of an emergency, a grantee, franchisee, or lessee may commence such
repair and emergency response work as required under the circumstances, provided
the grantee, franchisee, or lessee shall notify the city in writing as promptly as
possible, before such repair or emergency work commences or as soon thereafter as
possible if advance notice is not practicable. The city may act without prior written
notice in case of emergency. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
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20.10.12020.02.210 Maintenance, abandonment, relocations or removal of facilities.
Each grantee, franchisee, or lessee shall maintain its facilities in good and safe
condition and in a manner that complies with all applicable federal, state and local
requirementsApplicable Law. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.130 Abandonment, relocation or removal of facilities.
Within 30 days or such other time frame as determined by the city, and in accordance
with RCW 35.99.060, following written notice from the city, a grantee, franchisee, or
lessee shall, at its sole expense, temporarily or permanently remove, relocate,
change, or alter the position of any commercialof its utility, cable or
telecommunications facilities within the public ways or upon city property whenever
the city public works director shall have determined that such removal, relocation,
change, or alteration is reasonably necessary for:
A. The construction, repair, maintenance, or installation of any city or other public
improvement in or upon the public ways; and
B. The operations of the city, utility providers, or other governmental entity in or
upon the public ways; and
C. Facilities are deemed by the city as abandoned due to failure to cure of the
grantee, franchisee, or lessee.
However, in the event such relocation is required due to emergency repairs deemed
necessary by the city, such relocation or moving shall be accomplished within 24
hours. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.15020.02.220 Removal of unauthorized facilities.
Within 30 days following written notice from the city, any commercial utility, cable,
telecommunications carrier, operator, lessee or other person who owns, controls, or
maintains any unauthorized cable or telecommunications system, facility, or related
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appurtenances within the public ways or upon property of the city shall, at its own
expense, remove such system, facilities, or appurtenances from the public ways of
the cityor property of the city. A utility, cable or telecommunications system or facility
is unauthorized and subject to removal in the following circumstances:
A. Upon expiration or termination of the grantee, lessee, or franchisee’s public way
agreement, franchise, or lease;
B. Upon leaving any system or facility within the public ways or upon property of the
city, any such property of a grantee, franchisee, or lessee shall be deemed
abandoned if left in place 90 days after expiration or termination of a public way
agreement, franchise, or lease;
C. If the system or facility was constructed or installed without the prior approval of a
public way agreement, franchise or lease;
D. If the system or facility was constructed or installed without the prior issuance of
a required construction permit; or
E. If the system or facility was constructed or installed at a location not permitted by
a public way agreement, franchise or lease.
Provided, however, that the city may, in its sole discretion, allow a grantee,
franchisee, or lessee or other such persons who may own, control, use, or maintain
commercial utility, cable or telecommunications facilities within the public ways of the
city or upon city property to abandon such facilities in place. No facilities of any type
may be abandoned in place without the express written consent of the city. Any plan
for abandonment or removal of a grantee’s, franchisee’s, or lessee’s facilities must be
first approved by the public works director, and all necessary permits must be
obtained prior to such work. If the city, in its sole discretion, permits abandonment of
facilities in place, Uupon permanent abandonment in place of the facilities such
facilities shallmay, at the city’s discretion become the city’s property, and such
persons shall submit to the city an instrument in writing, to be approved by the city
attorney, transferring to the city the ownership of such property. The provisions of this
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section shall survive the expiration, revocation, or termination of a public way
agreement, franchise, or lease granted under this title. (Ord. 5271 § 1, 1999; Ord.
5034 § 1, 1998.)
20.10.16020.02.230 Emergency removal or relocation of facilities.
The city retains the right and privilege to cut or move any commercial utility, cable or
telecommunications facilities located within the public ways of the city and upon city
property, as the city may determine to be necessary, appropriate or useful in
response to any public health or safety emergency. The city shall not be liable to any
utility, cable operator, telecommunications carrier, operator, or provider, or any other
party for any direct, indirect, or any other such damages suffered by any person or
entity of any type as a direct or indirect result of the city’s actions under this section.
(Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.17020.02.240 Damage to facilities.
Unless directly and proximately caused by the willful, intentional, or malicious acts by
the city, the city shall not be liable for any damage to or loss of any commercial utility,
cable, or telecommunications facilities upon city property or within the public ways of
the city as a result of or in connection with any public works, public improvements,
construction, excavation, grading, filling, or work of any kind on such city property or
within the public ways by or on behalf of the city. (Ord. 5271 § 1, 1999; Ord. 5034
§ 1, 1998.)
20.10.18020.02.250 Restoration of public ways, other ways, city property and
public/private utility property.
A. When a grantee, franchisee, lessee, or any person acting on behalf such
persons, does any work in or affecting any public ways, other ways, city property, or
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public/private utilities located in the public ways, it shall, at its own expense, promptly
remove any obstructions therefrom and restore such ways or property to as good a
condition as existed before the work was undertaken, unless otherwise directed by
the city.
B. If weather or other conditions do not permit the complete restoration required by
this section, or other city codes, regulations or policies, the grantee, franchisee, or
lessee shall temporarily restore the affected public ways, other ways, or property.
Such temporary restoration shall be at the grantee’s, franchisee’s, or lessee’s sole
expense and the grantee, franchisee, or lessee shall promptly undertake and
complete the required permanent restoration when the weather or other conditions
no longer prevent such permanent restoration.
C. A grantee, franchisee, lessee or other person acting on behalf of such persons
shall use suitable barricades, flags, flagmen, lights, flares, and other measures as
required for the safety of all members of the general public and to prevent injury or
damage to any person, vehicle, or property by reason of such work in or affecting
such public ways, other ways, or property.
D. The public works director or designee shall be responsible for inspection and
final approval of the condition of the public ways, other ways, and city property
following any construction and restoration activities therein. Further, the provisions of
this section shall survive the expiration, revocation, or termination of a public way
agreement, franchise, or lease, or other agreement granted pursuant to this title or
Chapter 12.24 ACC. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.19020.02.260 Facilities maps.
Each grantee, franchisee, and lessee shall provide the city with a map or maps
accurately reflecting the horizontal and vertical location and configuration of all of
their commercial utility, cable, or telecommunications facilities within the public ways
and upon city property. Each grantee, franchisee, and lessee shall provide the city
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with updated maps annually or upon written request by the city. (Ord. 5271 § 1, 1999;
Ord. 5034 § 1, 1998.)
20.10.22020.02.270 Insurance.
Unless otherwise provided in a public way agreement, franchise, cable franchise, or
lease agreement, each grantee, franchisee, or lessee shall, as a condition of the
permit or public way agreements, franchises, or leases, secure, and maintain at a
minimum the following liability insurance policies insuring both the grantee,
franchisee, or lessee and the city, and its elected and appointed officers, officials,
agents, employees, representatives, engineers, consultants, and volunteers as
additional insureds against claims for injuries to persons or damages to property
which may arise from or in connection with the exercise of the rights, privileges, and
authority granted to the grantee, franchisee, or lessee:
A. Comprehensive general liability insurance, written on an occurrence basis, with
limits not less than:
1. Five million dollars for bodily injury or death to each person;
2. Five million dollars for property damage resulting from any one accident; and
3. Five million dollars for all other types of liability;
B. Automobile liability for owned, non-owned and hired vehicles with a limit of
$3,000,000 for each person and $3,000,000 for each accident;
C. Worker’s compensation within statutory limits and employer’s liability insurance
with limits of not less than $1,000,000;
D. Comprehensive form premises-operations, explosions and collapse hazard,
underground hazard and products completed hazard with limits of not less than
$3,000,000;
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E. The liability insurance policies required by this section shall be maintained by the
grantee, franchisee, or lessee throughout the term of the public way agreement,
franchise, or lease, and such other period of time during which the grantee,
franchisee, or lessee is operating without a public way agreement, franchise, or lease
hereunder, or is engaged in the removal of its telecommunications facilities. The
grantee, franchisee, or lessee shall provide an insurance certificate, together with an
endorsement naming the city, and its elected and appointed officers, officials, agents,
employees, representatives, engineers, consultants, and volunteers as additional
insureds, to the city prior to the commencement of any work or installation of any
utility or telecommunications facilities pursuant to said public way agreement,
franchise, or lease. Any deductibles or self-insured retentions must be declared to
and approved in writing by the city prior to the franchise becoming effective. Payment
of deductibles and self-insured retentions shall be the sole responsibility of the
grantee, franchisee, or lessee. The insurance certificate required by this section shall
contain a clause stating that coverage shall apply separately to each insured against
whom claim is made or suit is brought, except with respect to the limits of the
insurer’s liability. The grantee, franchisee, or lessee’s insurance shall be primary
insurance as respects the city, its officers, officials, employees, agents, consultants,
and volunteers. Any insurance maintained by the city, its officers, officials,
employees, consultants, agents, and volunteers shall be in excess of the grantee,
franchisee, or lessee’s insurance and shall not contribute with it;
F. In addition to the coverage requirements set forth in this section, each such
insurance policy shall contain the following endorsement:
It is hereby understood and agreed that this policy may not be canceled nor
the intention not to renew be stated until 60 days after receipt by the City, by
registered mail, (return receipt requested) of a written notice addressed to the
City Clerk of such intent to cancel or not to renew.
G. Within 30 days after receipt by the city of said notice, and in no event later than
15 days prior to said cancellation or intent not to renew, the grantee, franchisee, or
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lessee shall obtain and furnish to the city replacement insurance policies meeting the
requirements of this section. Any lapse in the required insurance coverage shall be
cause for termination of any public way agreement, franchise, or lease. (Ord. 5271
§ 1, 1999; Ord. 5034 § 1, 1998.)
20.10.24020.02.280 Performance and construction suretyFinancial Security.
Before a public way agreement, franchise, or cable franchiselease granted pursuant
to this title is effective, and as necessary thereafter, the grantee, franchisee, or
lessee shall provide and deposit such moneys, bonds, letters of credit, or other
instruments in form and substance acceptable to the city as may be required by this
title or by an applicable public way agreement, franchise, or lease agreement. All
performance bondsfinancial securities for grantees, franchisees, and lessees shall
satisfy the minimum standards established by the public works
departmentEngineering Design and Construction Standards at the time of the
grantees’, franchisees’ acceptance, and lessees’ application. (Construction bond
section(s) of Standard Specifications for Road, Bridge, and Municipal Construction
for Washington State Department of Transportation and American Public Works
Association).
Construction bonds sureties shall be provided as required by Washington State laws.
(Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.250 Security options.
A. In order to secure the conditions agreed to in any franchise or cable franchise
agreement negotiated under this title, for the full term of such agreements, each
grantee, franchisee, or lessee shall establish a permanent financial security in the
form of a bond, assignment of funds, or an unconditional letter of credit from a
Washington State bank with the city by either providing the city engineer a standing
warranty bond or by depositing the amount of funds as follows in a Washington state
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bank utilizing the city’s standard assignment form, or by provision of the letter of
credit. The amount of the financial security shall be 10 percent of the city engineer’s
estimate of the performance bond amount (ACC 20.10.260) based upon the total
scope of work proposed within the public ways, or a minimum of $50,000, or such
other whichever is less, or such lesser amount as determined by the public works
director to be sufficient. The financial security shall be maintained at the sole
expense of the grantee, franchisee, or lessee so long as any of the grantee,
franchisee’s, or lessee’s utility, cable or telecommunications facilities are located
within the public ways, or the franchisee provides services from facilities located in
the public ways, of the city or upon city property and until released by the city. In the
event a financial security involves a bank, the grantee, franchisee, or lessee is
responsible for negotiating any interest that may accrue to the account during the
duration of effect. Should the franchise or cable franchise agreement being secured
be terminated, the financepublic works director will coordinate with other departments
and determine if any portion of the security may be released by the city.
AB. The security shall secure the full and complete performance of the requirements
of this title, including any costs, expenses, damages, or loss the city pays or incurs,
including civil penalties, because of any failure attributable to the grantee, franchisee,
or lessee to comply with any applicable legal requirements including, but not limited
to, the codes, ordinances, rules, regulations, or permits of the city.
BC. Before the city executes on the financial security bond or any sums are
withdrawn from the financial security fund, the city shall give written notice to the
grantee, franchisee, or lessee:
1. Describing the act, default or failure to be remedied, or the damages, costs or
expenses which the city has incurred by reason of grantee, franchisee’s, or
lessee’s act, default, or failure;
2. Providing a reasonable opportunity for grantee, franchisee, or lessee to first
remedy the existing or ongoing default or failure, if applicable;
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3. Providing a reasonable opportunity for grantee, franchisee, or lessee to pay
any moneys due the city before the city executes the bondfinancial security or
withdraws the amount thereof from the financial security fund, if applicable; and
4. That the grantee, franchisee, or lessee will be given an opportunity to review
the act, default or failure described in the notice with the city or designee.
CD. Grantees, fFranchisees and lessees shall replenish the financial security bond
or fund within 14 calendar days after written notice from the city that there is a
deficiency in the amount of the bond or fundfinancial security. (Ord. 5271 § 1, 1999;
Ord. 5034 § 1, 1998.)
20.10.260 Performance bond.
E. When the value of work proposed to be performed under any permit within the
public way exceeds the amount of the financial security in this provision, the
franchisee may be required to provide an additional financial security in a sufficient
amount as determined by the city. All performance bondsfinancial securities provided
in accordance with this title shall comply with the minimum standards in Chapter
12.24 ACC. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.28020.02.290 Assignments or transfers of public way agreements, franchises,
cable franchises, or leases.
The assignment or transfer of any business registrationlicense, public way
agreement, franchise or lease subject to this title may not, directly or indirectly, be
transferred, assigned or disposed of by sale, lease, merger, consolidation or other act
of the grantee, franchisee, or lessee, by operation of law or otherwise, without the
prior written consent of the city, which consent shall not be unreasonably withheld or
delayed, except as expressed by ordinance and then only on such reasonable
conditions as may be prescribed therein.
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A. No public way agreement, franchise, or lease, subject to this title, shall be
assigned or transferred before construction of such systems has been completed to
the city’s satisfaction without prior written consent of the city, which consent shall not
be unreasonably withheld or delayed, except as expressed by ordinance and then
only on such reasonable conditions as may be prescribed therein.
B. The grantee, franchisee, or lessee and the proposed assignee or transferee of
the public way agreement, franchise, or lease shall provide and certify the following
information to the city not less than 90 calendar days prior to the proposed date of
transfer:
1. Complete information setting forth the nature, terms and conditions of the
proposed transfer or assignment relating to the public way agreement, franchise
or lease;
2. All information required by a public way agreement, franchise, or lease
applicant pursuant to this title with respect to the proposed transferee or
assignee;
3. Any other information reasonably required by the city; and
4. A nonrefundable application fee in the amount established in the city’s fee
schedule.
C. No transfer shall be approved unless the assignee or transferee meets the
requirements contained in ACC 20.04.040(A) and (I)Title 20 ACC and can comply
with the requirements of the public way agreement, franchise, or lease.
D. Unless otherwise provided in a public way agreement, franchise, or lease
agreement, the grantee, franchisee, or lessee shall reimburse the city for all direct
and indirect costs and expenses reasonably incurred by the city in considering a
request to transfer or assign a public way agreement, franchise, or lease. No
approval shall be deemed approved until all such costs and expenses have been
paid.
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E. Any transfer or assignment of a public way agreement, franchise, or lease
without prior written approval of the city under this section or pursuant to a public way
agreement, franchise, or lease agreement shall be void and is cause for termination
of the public way agreement, franchise, or lease.
F. Notwithstanding anything contained herein to the contrary, transfer of cable
franchises shall additionally be governed by applicable provisions of federal law, and
issues involving transfers may be addressed in a cable franchise. (Ord. 6718 § 5
(Exh. E), 2019; Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.290 Transactions affecting control of public way agreements, franchises,
or leases.
G Any transactions which singularly or collectively result in a change of 50 percent
or more of the ownership or working control of any grantee, franchisee, or lessee of
the ownership or working control of a utility, cable, or telecommunications system, of
the ownership or working control of affiliated entities having ownership or working
control of the grantee, franchisee, or lessee or of a utility, cable, or
telecommunications system, or of control of the capacity or bandwidth of the grantee,
franchisee, or lessee’s utility, cable, or telecommunications system, facilities or
substantial parts thereof, shall be considered an assignment or transfer requiring city
approval pursuant to ACC 20.10.280this provision. Transactions between affiliated
entities are not exempt from the required city approval. A grantee, franchisee, or
lessee shall promptly notify the city in writing prior to any proposed change in, or
transfer of, or acquisition by any other party of control of a grantee’s, franchisee’s, or
lessee’s company. Every change, transfer, or acquisition of control of a grantee’s,
franchisee’s, or lessee’s company shall cause a review of the proposed transfer. In
the event that the city council adopts a resolution, ordinance, or other appropriate
order opposing such change, transfer or acquisition of control that has been
completed without prior city approval pursuant to this provisioneffected, the city may
terminate the public way agreement, franchise, or lease. City approval shall not be
required for mortgaging purposes or if said transfer is from a grantee, franchisee, or
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lessee to another person or entity controlling, controlled by, or under common control
with a grantee, franchisee, or lessee. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.34020.02.300 Civil penalties.
A. In accordance with Chapter 1.25 ACC, unless otherwise provided herein, Aany
person, and the officers, directors, managing agents, or partners of any corporation,
firm, partnership or other organization or business violating or failing to comply with
any of the provisions of this title shall be subject to a penalty in an amount not less
than $100.00 nor more than $1,000 per day for each violation from the date of each
violation until compliance is achieved.
B. In addition to any penalty which may be imposed by the city council, any person
violating or failing to comply with any of the provisions of this title shall be liable for all
damage to public or private property arising from such violation, and costs incurred
by the city, including the cost of restoring the affected area to its condition prior to the
violation.
C. The violator may show the city council as full or partial mitigation:
1. That the violation giving rise to the action was caused by the willful act, or
neglect, or abuse of another; or
2. That correction of the violation was commenced promptly upon receipt of the
notice thereof, but that full compliance within the time specified was prevented by
inability to obtain necessary materials or labor, inability to gain access to the
subject structure, or other condition or circumstance beyond the control of the
violator.
D. The penalties which may be imposed by this section shall be collected by civil
action brought by the city if not paid timely after penalty assessment by the city
council. The public works director or designee shall notify the finance director in
writing of the name of any person subject to the penalty, and the finance director
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shall take appropriate action to collect the penalty. (Ord. 5271 § 1, 1999; Ord. 5034
§ 1, 1998.)
20.10.44020.02.310 Unfunded mandate.
The city intends that no federal or state requirement to promote the deregulation of
utilities, cable, or telecommunications shall become an unfunded mandate requiring
funding support from the city over and above its routine operations and maintenance
budget to maintain the public ways. Therefore, except as expressly provided to the
contrary, all costs incurred by a grantee, franchisee, or lessee in complying with the
terms and conditions of any franchise, cable franchise, lease, or other agreement
subject to this title or any applicable laws, ordinances, codes, rules, regulations
and/or orders or any action thereunder shall be the sole responsibility of the
respective grantee, franchisee, or lessee and shall not be the responsibility of or
charged to the city. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.48020.02.320 Administration.
The public works director or designee shall administer all public way agreements and
franchises subject to this title, and the finance directormayor or designee shall
administer all leases subject to this title. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
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Chapter 20.04
PUBLIC WAY AGREEMENTSUTILITY AND TELECOMMUNCATION FRANCHISES
Sections:
20.04.010 Public way agreementsFranchise requirements.
20.04.020 Public way agreementFranchise applications.
20.04.030 Notice of complete application, franchise negotiations and
scheduling of meetingpublic hearing on franchises.
20.04.040 Determination by the city.
20.04.050 Notification of council action and execution of agreement.
20.04.060 Nonexclusive public way agreementsAcceptance and effective
date.
20.04.070 Rights grantedNonexclusive franchise.
20.04.080 Term of telecommunications public wayfranchise agreements.
20.04.090 Specified routeRights granted.
20.04.100 Service to city usersFranchise territory.
20.04.110 Amendment to public way agreementsFranchise fees in addition
to utility taxes.
20.04.120 Renewal of public way agreementsNondiscrimination.
20.04.130 Determination by city for renewal of public way
agreementsAmendment of franchise.
20.04.140 Notification of council action on renewal of public way
agreements and execution of agreementsRenewal of franchise.
20.04.150 Obligation to cure as a condition of renewalDetermination by city
for renewal of franchise.
20.04.160 ReservedObligation to cure as a condition of renewal.
20.04.170 Annual fee for recovery of city costsNotification of council action
on renewal of franchise agreements and execution of agreements.
20.04.180 Other city costs.
20.04.190 Compensation for use of public ways.
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20.04.010 Public way agreements.
A public way agreement shall be required of any commercial utility or
telecommunications provider who desires to occupy specific public ways of the city
for the sole purpose of providing commercial utility or telecommunications services to
persons or areas outside the city. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.04.020 Public way agreement applications.
Any person that desires a public way agreement pursuant to this title shall file an
application with the city which shall include the following information:
A. The identify of the applicant, including all affiliates of the applicant;
B. A description of the commercial utility or telecommunications services that are or
will be offered or provided by the applicant using its facilities;
C. A description of the transmission medium or transporting means that will be used
by the applicant to offer or provide such telecommunications or utility services;
D. Preliminary engineering plans, specifications and a network map of the facilities
to be located within the city all in sufficient detail to identify:
1. The location and route requested for applicant’s proposed facilities;
2. The location of all overhead and underground public utility,
telecommunication, cable, water, sewer drainage and other facilities in the public
way along the proposed route;
3. The location(s), if any, for interconnection with the utility or
telecommunications facilities of other utility or telecommunications carriers,
operators, and providers; and
4. The specific trees, structures, improvements, facilities and obstructions, if
any, that applicant proposes to temporarily or permanently remove or relocate;
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E. If applicant is proposing to install above-ground and/or overhead facilities:
1. Evidence that surplus space is available for locating its utility or
telecommunications facilities on existing utility poles along the proposed route;
2. Proof of compliance with city’s zoning code; and
3. Demonstrate compatibility with existing and future street illumination systems;
F. If applicant is proposing an underground installation in existing ducts or conduits
within the public ways, information in sufficient detail to identify:
1. The excess capacity currently available in such ducts or conduits before
installation of applicant’s utility or telecommunications facilities;
2. The excess capacity, if any, that will exist in such ducts or conduits after
installation of applicant’s utility or telecommunications facilities;
3. Evidence of ownership or a right to use such ducts or conduits;
G. If applicant is proposing an underground installation within new ducts or conduits
to be constructed within the public ways:
1. The location proposed for the new ducts or conduits; and
2. The excess capacity that will exist in such ducts or conduits after installation
of applicant’s utility or telecommunications facilities;
H. A preliminary construction schedule and completion date;
I. Information to establish that the applicant has obtained all other governmental
approvals and permits to construct and operate the facilities, and to offer or provide
the utility or telecommunications services, including, but not limited to, evidence that
the applicant has registered with the Washington Utilities and Transportation
Commission;
J. All deposits or charges required pursuant to this title;
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K. Proof of ability to meet city’s bonding requirements in ACC 12.24.050 when the
applicant does not have an existing standing bond on file with the city sufficient to
cover the scope of work proposed and proof of ability to meet security requirements
in ACC 20.10.240 through 20.10.260;
L. A copy of an Auburn business license stamped and signed by the business
license clerk, as designated by the mayor; and
M. A nonrefundable application fee as set forth in the Auburn fee schedule. (Ord.
6546 § 3, 2014; Ord. 5897 § 22, 2005; Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.04.030 Notice of complete application and scheduling of meeting.
A. Within 30 calendar days after receipt of the public way agreement application, the
city will complete review of the application to determine whether the application
contains sufficient information as outlined in ACC 20.04.020 to proceed with
processing. If during the 30-calendar-day review period, the city engineer determines
that the application is incomplete, the city engineer will issue a letter to the applicant
specifying the additional information necessary to complete the application. The
applicant will be given 30 calendar days to respond to the request for additional
information. Once the additional information is received by the city, an additional 14
calendar days will be allowed to determine whether the application is complete. Once
the application is determined complete, written notice will be provided following the
procedure outlined in this subsection. If the applicant needs additional time to
respond, the applicant may request up to an additional 30 calendar days. If a
response is not timely received, the application will be returned to the applicant with a
notice that the application is rejected due to failure to provide the required
information. Any new applications will require a new application fee.
B. When satisfied that the application is complete, the city engineer will notify the
applicant in writing that the application is complete and inform the applicant of the
schedule for consideration by the city council. The city clerk will notify the applicant in
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writing of the scheduled meeting. (Ord. 6532 § 32, 2014; Ord. 5271 § 1, 1999; Ord.
5034 § 1, 1998.)
20.04.040 Determination by the city.
Within 180 calendar days from the time of notification that the application is complete,
under ACC 20.04.030(A), the city council shall reach a decision. The city council’s
decision to grant or deny, in whole or in part, an application for a public way
agreement shall be based upon the following:
A. Whether the applicant has received all requisite licenses, certificates, and
authorizations from the Federal Communications Commission, the Washington
Utilities and Transportation Commission, and any other federal or state agency with
jurisdiction over the activities proposed by the applicant;
B. The capacity of the public ways to accommodate the applicant’s proposed
facilities;
C. The capacity of the public ways to accommodate additional utility, cable, and
telecommunications facilities if the public way agreement is granted;
D. The damage or disruption, if any, of public or private facilities, improvements,
service, travel or landscaping if the public way agreement is granted;
E. The public interest in minimizing the cost and disruption of construction within the
public ways;
F. The service that applicant will provide to the community and/or the region;
G. The effect, if any, on public health, safety and welfare if the public way
agreement is granted;
H. The availability of alternate routes and/or locations for the proposed facilities;
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I. Applicable federal and state utility and telecommunications laws, regulations and
policies;
J. The ability to avoid or mitigate, to the city’s satisfaction, future conflicts with the
operation, repair, replacement, and maintenance of city-owned and other
public/private utilities;
K. The ability of the applicant to stabilize existing pavement structures prior to
disturbance in a manner sufficient to ensure future deterioration is not accelerated by
virtue of the installed facilities, and/or the ability and willingness of the applicant to
fully mitigate such damages to the extent that they may prove unavoidable to the
satisfaction of the city. Such security for the pavement’s integrity may include
additional periods of warranty bonding for up to five years from the date of completion
of work as determined by the city engineer;
L. Demonstrated ability and commitment to meet city bonding and security
requirements established in ACC 20.10.240 through 20.10.260 and Chapter 12.24
ACC; and
M. Such other factors as may demonstrate that the public way agreement to use the
public ways will serve the community interest. (Ord. 5271 § 1, 1999; Ord. 5034 § 1,
1998.)
20.04.050 Notification of council action and execution of agreement.
Upon the city council’s decision, the public works director shall notify the applicant of
the decision including reason(s) for denial and instruct the applicant of the procedure
to follow to complete execution of the agreement if approved by the city council. No
public way agreement shall be deemed to have been granted hereunder until the
applicant and the city have fully executed a written agreement approved by the city
council setting forth the particular terms and provisions under which the grantee has
been granted the right to occupy and use public ways of the city and the applicant
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has provided the security deposits and proof of insurance as required by Chapter
20.10 ACC. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.04.060 Nonexclusive public way agreements.
No public way agreement granted under this title shall confer any exclusive right,
privilege, license or franchise to occupy or use the public ways of the city for delivery
of telecommunications services or any other purposes. (Ord. 5271 § 1, 1999; Ord.
5034 § 1, 1998.)
20.04.070 Rights granted.
No public way agreement granted under this title shall convey any right, title or
interest in the public ways, but shall be deemed an authorization only to use and
occupy the public ways for the limited purposes and term stated in the public way
agreement. Further, no public way agreement shall be construed as any warranty of
title. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.04.080 Term of telecommunications public way agreements.
By virtue of the uncertainties created by the Act, unless otherwise specified in an
existing public way agreement, no agreement granted hereunder shall be in effect for
a term exceeding five years. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.04.090 Specified route.
A public way agreement granted under this title shall be limited to a use of public
ways specified and defined in the agreement. (Ord. 5271 § 1, 1999; Ord. 5034 § 1,
1998.)
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20.04.100 Service to city users.
A grantee shall be permitted to use public ways to offer or provide utility or
telecommunications services to persons or areas within the city only upon city council
approval of a telecommunications franchise agreement pursuant to this title. (Ord.
5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.04.110 Amendment to public way agreements.
A new application shall be required of any commercial utility or telecommunications
provider who desires to extend or locate its facilities in public ways of the city which
are not included in a public way agreement previously granted under this title. If a
grantee is required by the city to locate or relocate its facilities in public ways not
included in a previously granted public way agreement, the city shall grant an
amendment to the agreement without further application. (Ord. 5271 § 1, 1999; Ord.
5034 § 1, 1998.)
20.04.120 Renewal of public way agreements.
A provider that desires to renew its public way agreement in effect under this chapter
for an additional term not to exceed five years shall, not more than 180 days nor less
than 120 days before expiration of the public way agreement in effect, file an
application, which is determined as complete in accordance with ACC 20.04.030,
with the city for renewal which shall include the following:
A. The information required pursuant to ACC 20.04.020;
B. Any information required pursuant to the public way agreement between the city
and the grantee;
C. All deposits or charges required pursuant to this chapter; and
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D. A nonrefundable application fee as set forth in the Auburn fee schedule. (Ord.
6546 § 4, 2014; Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.04.130 Determination by city for renewal of public way agreements.
The process specified in ACC 20.04.030 for determining and notifying the applicant
of completeness of application shall be used for renewals. Within 120 days after
receiving a complete application for renewal, following the procedures in ACC
20.04.040, the city council shall grant or deny the renewal application in whole or in
part. If the renewal application is denied, the written determination shall include the
reason(s) for denial. The decision to grant or deny an application for the renewal of a
public way agreement shall, in addition to the criteria set forth in ACC 20.04.040, be
based upon the following:
A. The continuing capacity of the public ways to accommodate the applicant’s
existing facilities; and
B. The applicant’s compliance with the requirements of this title and the public way
agreement. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.04.140 Notification of council action on renewal of public way agreements and
execution of agreements.
Once the city council has decided on the renewal application, the procedures
outlined in ACC 20.04.050 shall be followed for execution of any agreement
renewals. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.04.150 Obligation to cure as a condition of renewal.
No public way agreement shall be renewed until any ongoing violations or defaults in
the grantee’s performance under the public way agreement, or of the requirements of
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this title, have been cured, or a plan, secured by a sufficient bond or deposit of funds
to the city’s satisfaction, detailing the corrective action to be taken by the grantee has
been approved in writing by the city. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.04.160 Reserved.
(Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.04.170 Annual fee for recovery of city costs.
Each public way agreement granted under this title is subject to the city’s right, which
is expressly reserved, to annually fix a fair and reasonable compensation to be paid
as reimbursement for the city’s costs in connection with reviewing, inspecting and
supervising the use and occupancy of the public ways on behalf of the public and
existing or future users; provided further, that the compensation required from any
utility or telecommunications provider or carrier engaged in the “telephone business,”
as defined in RCW 82.04.065 shall be consistent with RCW 35.21.860. (Ord. 5271
§ 1, 1999; Ord. 5034 § 1, 1998.)
20.04.180 Other city costs.
All grantees shall, within 30 days after written demand, reimburse the city for all direct
and indirect costs and expenses incurred by the city in connection with any
modification, amendment, renewal or transfer of the public way agreement. In
addition, all grantees shall, within 30 days after written demand, reimburse the city for
any and all costs the city reasonably incurs in response to any emergency involving
the grantee’s facilities. All grantees shall, within 30 days after written demand,
reimburse the city for the grantee’s proportionate share of all actual, identified
expenses incurred by the city in planning, constructing, installing, repairing or altering
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any city facility as a result of the construction or the presence in the public ways of
the grantee’s facilities. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.06.01020.04.010 Franchise requirements.
A franchise shall be required of any commercial utility or telecommunications
operator or carrier or other person who desires to occupy public ways of the city and
to provide telecommunications or commercial utility services to any person or area in
the city or outside the city; provided, however, that a public way agreementRight-of-
Way Use permit may be approved in accordance with the provisions of this title
instead of a franchiseChapter 12.60 ACC in the following circumstances:
A. A privately owned utility or telecommunications network or telecommunications
system which is operated solely for purposes of serving itself. An example of such a
network or telecommunications system includes, but is not limited to, autility or
telecommunications networkfacilities connecting two business facilities under
common ownership or control, when said facilities are not offered to other business
entities or persons.
B. De minimis uses of public ways made in conjunction with a wireless
telecommunications facility located entirely upon publicly or privately owned
propertyA cable system as defined in ACC 5.84.020, shall be governed by the
procedures of Chapter 20.06 ACC rather than the requirements of this Chapter. (Ord.
5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.06.02020.04.020 Franchise applications.
Any person who desires a telecommunications or a commercial utility franchise
pursuant to this title shall file an application with the city public works department
which, in addition to the information required by ACC 20.04.020,An applicant for an
initial franchise to construct, operate, and maintain a utility or telecommunications
system within the city shall file an application in a form prescribed by the city,
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accompanied by a nonrefundable franchise application fee in the amount set forth in
the City of Auburn fee schedule. The application shall include the following:
A. The identity of the applicant, including all affiliates of the applicant;
B. A description of the utility or telecommunications services that are or will be
offered or provided by the applicant;
C. A description of the facilities, transmission medium or transporting means that
will be used by the applicant to offer or provide such utility or telecommunications
services;
D Applications proposing citywide facilities shall submit conceptual plans showing
the general route or locations of facilities. Applications proposing site specific
facilities shall submit plans in compliance with the City’s Engineering Design
Standards;
E Evidence of ownership or a right to use existing utility or telecommunications
facilities such as poles, ducts, conduit or other facilities which the applicant intends to
use or lease;
F Information to establish that the applicant has obtained all other governmental
approvals and permits to construct and operate the facilities, and to offer or provide
the utility or telecommunications services, including, but not limited to, evidence that
the applicant has registered with the Washington Utilities and Transportation
Commission;
AG. Whether the applicant intends to provide cable service, video dialtone service
or other multi-channel video programming service, and sufficient information to
determine whether such service is subject to cable franchising under Chapter 20.06
ACC;
B. An accurate map showing the location of any existing utility or
telecommunications facilities in the city that applicant intends to use or lease so that
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the city can keep track of various systems using the public way(s) to prevent
interference between the users;
C. A description of the services or facilities that the applicant will offer or make
available to the city and other public, educational and governmental institutions, if
any;
D. A description of applicant’s service, access and line extension policies;
EH. The area or areas of the city the applicant desires to serve and an initial
schedule for build-out to the entire franchise area;
F. The applicant’s intended means and methods of providing service and whether
shared use of other utility poles or conduits is envisioned;
G. All fees, deposits or charges required pursuant to this chapter;
HI. Such other and further information as permitted by federal and stateapplicable
law as may be requested by the city;
IJ. Proof of ability to meet city’s bonding requirements in ACC 12.24.050 when the
applicant does not have an existing standing bond on file with the city sufficient to
cover the scope of work proposed and proof of ability to meet financial security
requirements in ACC 20.10.240 through 20.10.26020.02.280;
JK. A copy of an Auburn business license stamped and signed by the business
license clerk, as designated by the mayor; and
KL. A nonrefundable application fee and other charges as set forth in the Auburn
fee schedule. (Ord. 6546 § 5, 2014; Ord. 5897 § 23, 2005; Ord. 5271 § 1, 1999; Ord.
5034 § 1, 1998.)
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20.06.03020.04.030 Notice of complete application, franchise negotiations and
scheduling of public hearing on franchises.
A. Notice of Complete Application. Within 30 calendar days after receipt of the
franchise application, the city will complete review of the application to determine
whether the application contains sufficient information as outlined in ACC
20.06.02020.04.020 to proceed with processing. If during the 30-calendar-day review
period, the city engineer determines that the application is incomplete, the city
engineer will issue a letter to the applicant specifying the additional information
necessary to complete the application. The applicant will be given 30 calendar days
to respond. Once the additional information is received by the city, an additional 14
calendar days will be allowed to determine whether the application is complete. Once
the application is determined complete, written notice will be provided. If the applicant
needs additional time to respond the applicant may request up to an additional 30
calendar days. If a response is not timely received, the application will be returned to
the applicant with a notice that the application is rejected due to failure to provide the
required information. Any new applications will require a new application fee.
B. Franchise Negotiations. When satisfied that the application is complete, the city
will notify the applicant in writing that the application is complete. At such time
franchise negotiations may commence.
BC. Scheduling of Public Hearing. When satisfied that the application is
completeAfter completion of negotiations, the city engineer will notify the applicant in
writing that the application is complete and inform the applicant of the schedule for
consideration by the city council in accordance with RCW 35.99.030. The city council
will schedule the hearing to consider the proposed franchise, and the city clerk will
notify the applicant in writing of the scheduled hearing. (Ord. 6532 § 33, 2014; Ord.
5271 § 1, 1999; Ord. 5034 § 1, 1998.)
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20.06.04020.04.040 Determination by the city.
Within 180120 calendar days from the time of notification that the application is
complete or as otherwise permitted by RCW 35.99.030, under ACC
20.06.030(A)20.04.030(A), the city shall issue a written determination granting or
denying the application in whole or in part. Prior to granting or denying a franchise
under this title, the city council shall conduct a public hearing and make a decision
based upon the criteria set forth below. Pursuant to Section 253(c) of the Federal
Communications Act, public disclosure of any fees as compensation for use of the
public right-of-way is required, and RCW 35A.47.040 provides that the city council
shall not approve any franchise hereunder until the next regularly scheduled council
meeting following the public hearing. If the application is denied, in whole or in part,
the written determination shall include the reason(s) for denial. The decision to grant
or deny, in whole or in part, an application for a utility or telecommunications
franchise shall be based upon the following:
A. Whether the applicant has received all requisite licenses, certificates, and
authorizations from the Federal Communications Commission, the Washington
Utilities and Transportation Commission, and any other federal or state agency with
jurisdiction over the activities proposed services to be provided by the applicant;
B. The capacity of the public ways to accommodate the applicant’s proposed
facilities;
C. The capacity of the public ways to accommodate additional utility and
telecommunications facilities if the franchise is granted;
D. The damage or disruption, if any, of public or private facilities, improvements,
service, travel or landscaping if the franchise is granted;
E. The public interest in minimizing the cost and disruption of construction within the
public ways;
F. The service that applicant will provide to the community and region;
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G. The effect, if any, on public health, safety and welfare if the franchise requested
is granted;
H. The availability of alternate routes and/or locations for the proposed facilities;
I. Applicable federal and state utility and telecommunications laws, regulations and
policies;
J. The ability to avoid, or mitigate to the city’s satisfaction, future conflicts with the
operation, repair, replacement, and maintenance of city-owned and other commercial
utilities;
K. The ability of the applicant to stabilize existing pavement structures prior to
disturbance in a manner sufficient to ensure future deterioration is not accelerated by
virtue of the installed facilities, and/or the ability and willingness of the applicant to
fully mitigate such damages to the extent that they may prove unavoidable to the
satisfaction of the city. Such security for the pavement’s integrity may include
additional periods of warranty bonding for up to five years from date of completion of
work as determined by the city engineer;
L. Demonstrated ability and commitment to meet city bonding and financial security
requirements established in ACC 20.10.240 through 20.10.26020.02.280 and
Chapter 12.24 ACC; and
M. Such other factors as may demonstrate that the franchise to use the public ways
will serve the community interest. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.06.05020.04.050 Notification of council action and execution of franchise.
Upon the city council’s decision, the public works director shall notify the applicant of
the decision, including reason(s) for any denial, and instruct the applicant of the
procedure to follow to complete execution of the agreement if approved by the city
council. No franchise shall be deemed to have been granted hereunder until after the
public hearing and city council approval of a written agreement setting forth the
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particular terms and provisions under which the franchisee has been granted the right
to occupy and use public ways of the city and both the city and applicant have fully
executed the franchise and the applicant has provided the financial security, deposits
and proof of insurance and any outstanding fees as required by Chapter 20.1020.02
ACC. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.02020.04.060 Acceptance and effective date.
No public way agreement, franchise, or lease granted pursuant to the provisions of
this title shall become effective unless and until the ordinance or other city action
granting the same has become effective. Within 30 days after the effective date of the
ordinance or other city action granting a public way agreement, franchise, or lease, or
within such extended period of time as the council in its discretion may authorize, the
applicant shall file with the city clerk an unconditional written acceptance of the public
way agreement, franchise, or lease, in a form satisfactory to the city attorney,
together with the bonds, insurance policies, financial and security, and any
outstanding fees fund required by this title. (Ord. 5271 § 1, 1999; Ord. 5034 § 1,
1998.)
20.06.06020.04.070 Nonexclusive franchise.
No franchise granted under this title shall confer any exclusive right, privilege, license
or franchise to occupy or use the public ways of the city for delivery of utility or
telecommunications services or any other purposes. (Ord. 5271 § 1, 1999; Ord. 5034
§ 1, 1998.)
20.06.07020.04.080 Term of franchise agreements.
By virtue of the uncertainties created by the Act, unless otherwise specified in an
existing franchise agreement, a telecommunications franchise granted by the city
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pursuant to this title shall be valid for a term not to exceed five years.Unless
otherwise specified in a franchise agreement, the term of any franchise agreement,
granted hereunder shall not exceed fifteen years at the sole discretion of the City.
(Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.06.08020.04.090 Rights granted.
No franchise granted under this chapter shall convey any right, title or interest in the
public ways, but shall be deemed a franchise only to use and occupy the public ways
for the limited purposes and term stated in the franchise. Further, no franchise shall
be construed as any warranty of title. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.06.09020.04.100 Franchise territory.
Unless otherwise provided in the franchise ordinance, a franchise granted under this
chapter shall authorize the franchisee to operate in the public ways throughout the
city when a permit to install the necessary facilities has been approved by the city.
(Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.06.10020.04.110 Franchise fees in addition to utility taxes.
Revenue derived directly or indirectly from sources within the city shall be subject to
applicable utility taxes as of the time of commencement of such operations, as
determined by Title 3 ACC. Franchise fees shall be in addition to any utility tax, but
shall be collectible only to the extent as then allowed by applicable law, and in no
event may the combined utility tax and franchise fee exceed the amount permitted by
applicable law. (Ord. 6546 § 6, 2014; Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
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20.06.11020.04.120 Nondiscrimination.
A franchisee which purports to serve the general public shall make its utility or
telecommunications services available to any customer within its franchise area who
shall request such service, without discrimination as to the terms, conditions, rates or
charges for the franchisee’s services; provided, however, that nothing in this title shall
prohibit a franchisee from making any reasonable classifications among differently
situated customers. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.06.12020.04.130 Amendment of franchise.
Except as otherwise provided within an existing franchise ordinance, a new franchise
application shall be required of any commercial utility or telecommunications carrier
or operator that desires to extend its franchise territory or to locate its utility or
telecommunications facilities in public ways of the city which are not included in a
franchise previously granted under this title. If a franchisee is required by the city to
locate or relocate its facilities in public ways not included in a previously granted
franchise, the city shall grant a franchise amendment without further application.
(Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.06.13020.04.140 Renewal of franchise.
A franchisee that desires to renew its franchise under this chapter for an additional
five-year term shall, not more than 240 days nor less than 180 days before expiration
of the franchise in effect, file an application, which is determined as complete in
accordance with ACC 20.06.03020.04.030, with the city for a renewal of its franchise
which shall include the following:
A. The information required pursuant to ACC 20.06.02020.04.020;
B. Any information required pursuant to the franchise agreement between the city
and the franchisee;
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C. All deposits or charges required pursuant to this chapterFinancial security, proof
of insurance and any outstanding fees as required by Chapter 20.02 ACC;
D. A nonrefundable application fee in the amount as set forth in the Auburn fee
schedule. (Ord. 6546 § 7, 2014; Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.06.14020.04.150 Determination by city for renewal of franchise.
The process specified in ACC 20.06.03020.04.030 for determining and notifying of
completeness of application shall be used for renewals. Within 120 calendar days
after receiving a complete application for renewal or such time as permitted by RCW
35.99.030, following the procedures in ACC 20.06.03020.04.030, the city council
shall grant or deny the renewal application in whole or in part. If the renewal
application is denied, the written determination shall include the reason(s) for denial.
Prior to granting or denying renewal of a franchise under this chapter, in whole or in
part, the city council shall conduct a public hearing and make a decision based upon
the criteria set forth below in addition to all criteria in ACC 20.06.04020.04.040.
A. The continuing capacity of the public ways to accommodate the applicant’s
existing facilities.
B. The applicant’s compliance with the requirements of this title and the franchise
agreement.
C. Applicable federal, state and local utility and telecommunications laws, rules and
policies.
D. Such other factors as may demonstrate that the continued franchise to use the
public ways will serve the community interest. (Ord. 5271 § 1, 1999; Ord. 5034 § 1,
1998.)
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20.06.15020.04.160 Obligation to cure as a condition of renewal.
No franchise shall be renewed until any ongoing violations or defaults in the
franchisee’s performance of the franchise agreement, or of the requirements of this
title, have been cured, or a plan detailing the corrective action to be taken by the
franchisee has been approved in writing by the city. (Ord. 5271 § 1, 1999; Ord. 5034
§ 1, 1998.)
20.04.14020.04.170 Notification of council action on renewal of public wayfranchise
agreements and execution of agreements.
Once the city council has decided on the renewal application, the procedures
outlined in ACC 20.04.050 shall be followed for execution of any agreement
renewals. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.06.17020.04.180 Other city costs.
All franchisees shall, within 30 days after written demand, reimburse the city for all
direct and indirect costs and expenses incurred by the city in connection with any
modification, amendment, renewal or transfer of the franchise or any franchise
agreement. In addition, all franchisees shall, within 30 days after written demand,
reimburse the city for any and all costs the city reasonably incurs in response to any
emergency involving the franchisee’s utility or telecommunications facilities. Finally,
all franchisees shall, within 30 days after written demand, reimburse the city for the
franchisee’s proportionate share of all actual, identified expenses incurred by the city
in planning, constructing, installing, repairing or altering any city facility as a result of
the presence in the public way of the franchisee’s utility or telecommunications
facilities. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
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20.06.18020.04.190 Compensation for use of public ways.
A. The city finds that the public ways to be used by commercial utilities andutility or
telecommunications carriers and operators in the operation of utility or
telecommunications systems within the boundaries of the franchise are valuable
public properties, acquired and maintained by the city at great expense to its
taxpayers, and that the grant of use of said public ways is a valuable property right,
without which grantees and franchisees would be required to invest substantial
capital in public way costs and acquisitions; therefore, grantees and franchisees shall
pay the city as a general compensation for the use of the public way during each
year of the term of a franchise a franchise fee as determined by city council, not to
exceed six percent of gross revenues for each quarter of each calendar year.
Franchisees shall pay the franchise fee mandated by this chapter but the city
acknowledges and understands that such amount (and any other fees, assessments,
or taxes imposed on franchisees not described in subsection E of this section) shall
appear as a line item on the bill sent to, and shall be collected from, the subscribers;
provided further, that the compensation required from any telecommunications
operator or carrier engaged in the “telephone business,” as defined in RCW
82.04.065, shall be consistent with RCW 35.21.860.
B. Annual Franchise Fee Adjustments. The initial annual franchise fee percentage
shall be the amount permitted by applicable law of gross revenues unless and until it
is further adjusted by city council. Any such adjustment shall occur at least 60 days
before any subsequent annual anniversary date. Any adjustment shall become
effective on the subsequent annual anniversary date.
C. Quarterly Payment. Franchisees shall forward by check, cashier’s check, other
certified funds or electronic payment in the form of a wire or Direct Deposit (ACH)
wire transfer an amount equal to this quarterly payment by the fifteenth day of the
second calendar month immediately following the close of the calendar quarter for
which the payment is calculated.
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D. Late Payment. In the event any quarterly payment is made after noon on the
date 10 days after the date due, franchisees shall pay a late payment penalty as
shown in the city’s fee schedule.
E. Fees and Compensation Not a Tax. The fees, charges and fines provided for in
this title and any compensation charged and paid for the franchisee’s use of the city’s
public ways, whether “fiduciary or in kind,” are separate from, and additional to, any
and all federal, state, local and city taxes as may be levied, imposed or due from a
commercial utility, telecommunications carrier, operator, or provider, its customers or
subscribers or on account of the lease, sale, delivery or transmission of utility or
telecommunications services.
F. Ruling of Unenforceability. The compensation required from any commercial
utility, telecommunications carrier, operator, or provider shall be as provided by
applicable law. In the event any franchise fee shall be held unenforceable by a court
of law which has jurisdiction over the city, franchisees shall pay the equivalent
amount paid in franchise fees as a city utility tax which shall be applied retroactively
to time periods during which the franchise fee was determined to be unenforceable.
G. Quarterly Report. In order to properly determine the gross revenues received by
franchisees, the franchisee shall, on the same date that each quarterly payment is
made, file with the director of finance a sworn copy of a report, in a form acceptable
to the city, in sufficient detail to itemize revenues from each of the revenue
categories. The city may, if it sees fit and at its own expense, have the books and
records of franchisees examined by a representative of said city to ascertain the
correctness of the reports agreed to be filed herein. Neither the acceptance of any
payment nor any subsequent review shall be deemed an agreement by the city that
the correct payment was paid, absent a fully authorized written release by the city on
any such payments or on such reports. Any necessary prorations shall be made in
the first and last year of each term of the franchise. Any city request for access to
books and records shall be allowed by the franchisee at reasonable times and for
reasonable purposes. Such information shall be held in strict confidence by the city
as allowed by applicable law and used only for the purpose stated herein.
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H. Recalculation at End of Compensation Year. At the end of each calendar year,
franchisees shall recalculate the total general compensation actually due. If
additional amounts are due the city by franchisee, said amounts shall be paid by the
fifteenth day of February following the calendar year during which such amounts
were originally due. If amounts are found to be due the franchisees by the city, said
amounts shall be credited by the fifteenth day of February during which such
amounts were originally due. Any necessary prorations will be made.
I. Taxes Are Not to Be a Credit. The compensation paid under this franchise shall
be exclusive of and in addition to all special assessments and taxes of whatever
nature which are applicable to all other persons or entities doing business within the
city, including, but not limited to, ad valorem tax, sales tax, corporate or business
occupation taxes or other taxes or fees imposed or levied by any governmental
entity.
J. Utility Tax Liability – Franchise Fees. Revenues derived directly or indirectly from
sources within the city shall be subject to applicable utility taxes as of the time of
commencement of such operations. Franchise fees shall be in addition to any utility
tax, but shall be collectible only to the extent as then allowed by applicable law, and
in no event may the combined utility tax and franchise fee exceed six percent of
gross revenues in accordance with RCW 35.21.870. Franchise fees, if applicable,
shall be levied on a nondiscriminatory basis.
K. Rights of City. Payment of money under any franchise shall not in any way limit
or inhibit any of the privileges or rights of the city, except insofar as city’s privileges or
rights are expressly limited or inhibited by the terms of a franchise.
L. Annual Report. Franchisees shall file annually with the director of finance, no later
than 90 days after the end of franchisee’s fiscal year, an unaudited statement of
revenues (for that fiscal year just ended) attributable to the operations of the
franchisee’s utility or telecommunications system within the city pursuant to the
franchise agreement. The statement shall present a detailed breakdown of gross
revenues and uncollectible accounts for the year. The city may, if it sees fit, have
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such report audited by an independent certified public accountant of its choosing. If
the audit reveals an underpayment error in payment by franchisees of more than
fivetwo percent unless otherwise agreed to in a franchise agreement, then
franchisees shall pay for the costs of the audit. If the audit reveals an error in
payment of fivetwo percent or less, the city shall pay the costs of the audit. The report
will summarize those accounts reconciled to be within the franchise area by the city’s
quarterly review.
M. Circumventing Payments. Any transaction(s) which have the effect of
circumventing payment of the required franchise fees and/or evasion of payment of
franchise fees or any payments due the city under a franchise by non-collection or
non-reporting of gross revenues, bartering, or any other means which evade the
actual collection of revenues for business pursued by franchisees are prohibited.
N. Best Rates. As allowed by applicable law, part of the compensation to the city for
the grant of any telecommunications franchise, the city shall be entitled to obtain
subscriptions, at the city’s discretion, to the communications service at franchisee’s
lowest comparable rate applicable to any government body or municipality of the
state of Washington. In addition, city shall be entitled to franchisee’s lowest
comparable rate applicable to any governmental body or municipality of the state of
Washington for purchase and/or lease, should the city determine to purchase and/or
lease equipment or modems applicable to government bodies or municipalities in the
state of Washington for purposes of accessing the communications service. (Ord.
6718 § 3 (Exh. C), 2019; Ord. 6546 § 8, 2014; Ord. 5271 § 1, 1999; Ord. 5034 § 1,
1998.)
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Chapter 20.06
CABLE FRANCHISES
Sections:
20.06.010 Franchise requirementsPurpose.
20.06.020 Franchise applicationsCable franchise conditions and term.
20.06.030 Notice of complete application and scheduling of public
hearingCable franchise application.
20.06.040 Determination by the cityScheduling public hearing; notice;
criteria for approval.
20.06.050 Notification of council action and execution of
franchiseDetermination by the city.
20.06.060 Nonexclusive franchiseApplication instructions and requirements
for competitive cable franchise.
20.06.070 Term of franchiseAcceptance.
20.06.080 Rights grantedRules and regulations by the city.
20.06.090 Franchise territoryTechnical standards and maintenance.
20.06.100 Franchise fees in addition to utility taxesConstruction Standards.
20.06.110 NondiscriminationUndergrounding.
20.06.120 Amendment of franchiseConstruction in public ways.
20.06.130 Renewal of franchiseSafety requirements.
20.06.140 Determination by city for renewal of franchiseRates.
20.06.150 Obligation to cure as a condition of renewalCustomer service.
20.06.160 ReservedTelephone response.
20.06.170 Other city costsFailure to improve customer service.
20.06.180 Compensation for use of public waysFranchise fee.
20.06.190 Accounts, books and recordsRecord Inspection.
20.06.200 Reports.
20.06.210 Programming.
20.06.220 Nondiscrimination.
20.06.230 Inconsistency.
20.06.240 Severability.
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20.06.010 Franchise requirements.
A franchise shall be required of any commercial utility or telecommunications
operator or carrier or other person who desires to occupy public ways of the city and
to provide telecommunications or commercial utility services to any person or area in
the city; provided, however, that a public way agreement may be approved in
accordance with the provisions of this title instead of a franchise in the following
circumstances:
A. A privately owned telecommunications network or telecommunications system
which is operated solely for purposes of serving itself. An example of such a network
or telecommunications system includes, but is not limited to, a telecommunications
network connecting two business facilities under common ownership or control, when
said facilities are not offered to other business entities or persons.
B. De minimis uses of public ways made in conjunction with a wireless
telecommunications facility located entirely upon publicly or privately owned property.
(Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.06.020 Franchise applications.
Any person who desires a telecommunications or a commercial utility franchise
pursuant to this title shall file an application with the city public works department
which, in addition to the information required by ACC 20.04.020, shall include the
following:
A. Whether the applicant intends to provide cable service, video dialtone service or
other video programming service, and sufficient information to determine whether
such service is subject to cable franchising;
B. An accurate map showing the location of any existing utility or
telecommunications facilities in the city that applicant intends to use or lease so that
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the city can keep track of various systems using the public way(s) to prevent
interference between the users;
C. A description of the services or facilities that the applicant will offer or make
available to the city and other public, educational and governmental institutions, if
any;
D. A description of applicant’s service, access and line extension policies;
E. The area or areas of the city the applicant desires to serve and an initial schedule
for build-out to the entire franchise area;
F. The applicant’s intended means and methods of providing service and whether
shared use of other utility poles or conduits is envisioned;
G. All fees, deposits or charges required pursuant to this chapter;
H. Such other and further information as permitted by federal and state law as may
be requested by the city;
I. Proof of ability to meet city’s bonding requirements in ACC 12.24.050 when the
applicant does not have an existing standing bond on file with the city sufficient to
cover the scope of work proposed and proof of ability to meet security requirements
in ACC 20.10.240 through 20.10.260;
J. A copy of an Auburn business license stamped and signed by the business
license clerk, as designated by the mayor; and
K. A nonrefundable application fee as set forth in the Auburn fee schedule. (Ord.
6546 § 5, 2014; Ord. 5897 § 23, 2005; Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.06.030 Notice of complete application and scheduling of public hearing.
A. Notice of Complete Application. Within 30 calendar days after receipt of the
franchise application, the city will complete review of the application to determine
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whether the application contains sufficient information as outlined in ACC 20.06.020
to proceed with processing. If during the 30-calendar-day review period, the city
engineer determines that the application is incomplete, the city engineer will issue a
letter to the applicant specifying the additional information necessary to complete the
application. The applicant will be given 30 calendar days to respond. Once the
additional information is received by the city, an additional 14 calendar days will be
allowed to determine whether the application is complete. Once the application is
determined complete, written notice will be provided. If the applicant needs additional
time to respond the applicant may request up to an additional 30 calendar days. If a
response is not timely received, the application will be returned to the applicant with a
notice that the application is rejected due to failure to provide the required
information. Any new applications will require a new application fee.
B. Scheduling of Public Hearing. When satisfied that the application is complete, the
city engineer will notify the applicant in writing that the application is complete and
inform the applicant of the schedule for consideration by the city council. The city
council will schedule the hearing and the city clerk will notify the applicant in writing of
the scheduled hearing. (Ord. 6532 § 33, 2014; Ord. 5271 § 1, 1999; Ord. 5034 § 1,
1998.)
20.06.040 Determination by the city.
Within 180 calendar days from the time of notification that the application is complete,
under ACC 20.06.030(A), the city shall issue a written determination granting or
denying the application in whole or in part. Prior to granting or denying a franchise
under this title, the city council shall conduct a public hearing and make a decision
based upon the criteria set forth below. Pursuant to Section 253(c) of the Federal Act,
public disclosure of any fees as compensation for use of public right-of-way is
required, and RCW 35A.47.040 provides that the city council shall not approve any
franchise hereunder until the next regularly scheduled council meeting following the
public hearing. If the application is denied, in whole or in part, the written
determination shall include the reason(s) for denial. The decision to grant or deny, in
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whole or in part, an application for a telecommunications franchise shall be based
upon the following:
A. Whether the applicant has received all requisite licenses, certificates, and
authorizations from the Federal Communications Commission, the Washington
Utilities and Transportation Commission, and any other federal or state agency with
jurisdiction over the activities proposed by the applicant;
B. The capacity of the public ways to accommodate the applicant’s proposed
facilities;
C. The capacity of the public ways to accommodate additional utility and
telecommunications facilities if the franchise is granted;
D. The damage or disruption, if any, of public or private facilities, improvements,
service, travel or landscaping if the franchise is granted;
E. The public interest in minimizing the cost and disruption of construction within the
public ways;
F. The service that applicant will provide to the community and region;
G. The effect, if any, on public health, safety and welfare if the franchise requested
is granted;
H. The availability of alternate routes and/or locations for the proposed facilities;
I. Applicable federal and state utility and telecommunications laws, regulations and
policies;
J. The ability to avoid, or mitigate to the city’s satisfaction, future conflicts with the
operation, repair, replacement, and maintenance of city-owned and other commercial
utilities;
K. The ability of the applicant to stabilize existing pavement structures prior to
disturbance in a manner sufficient to ensure future deterioration is not accelerated by
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virtue of the installed facilities, and/or the ability and willingness of the applicant to
fully mitigate such damages to the extent that they may prove unavoidable to the
satisfaction of the city. Such security for the pavement’s integrity may include
additional periods of warranty bonding for up to five years from date of completion of
work as determined by the city engineer;
L. Demonstrated ability and commitment to meet city bonding and security
requirements established in ACC 20.10.240 through 20.10.260 and Chapter 12.24
ACC; and
M. Such other factors as may demonstrate that the franchise to use the public ways
will serve the community interest. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.06.050 Notification of council action and execution of franchise.
Upon the city council’s decision the public works director shall notify the applicant of
the decision, including reason(s) for any denial, and instruct the applicant of the
procedure to follow to complete execution of the agreement if approved by the city
council. No franchise shall be deemed to have been granted hereunder until after the
public hearing and city council approval of a written agreement setting forth the
particular terms and provisions under which the franchisee has been granted the right
to occupy and use public ways of the city and both the city and applicant have fully
executed the franchise and the applicant has provided the security deposits and
proof of insurance as required by Chapter 20.10 ACC. (Ord. 5271 § 1, 1999; Ord.
5034 § 1, 1998.)
20.06.060 Nonexclusive franchise.
No franchise granted under this title shall confer any exclusive right, privilege, license
or franchise to occupy or use the public ways of the city for delivery of utility or
telecommunications services or any other purposes. (Ord. 5271 § 1, 1999; Ord. 5034
§ 1, 1998.)
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20.06.070 Term of franchise.
By virtue of the uncertainties created by the Act, unless otherwise specified in an
existing franchise agreement, a telecommunications franchise granted by the city
pursuant to this title shall be valid for a term not to exceed five years. (Ord. 5271 § 1,
1999; Ord. 5034 § 1, 1998.)
20.06.080 Rights granted.
No franchise granted under this chapter shall convey any right, title or interest in the
public ways, but shall be deemed a franchise only to use and occupy the public ways
for the limited purposes and term stated in the franchise. Further, no franchise shall
be construed as any warranty of title. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.06.090 Franchise territory.
Unless otherwise provided in the franchise ordinance, a franchise granted under this
chapter shall authorize the franchisee to operate in the public ways throughout the
city when a permit to install the necessary facilities has been approved by the city.
(Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.06.100 Franchise fees in addition to utility taxes.
Revenue derived directly or indirectly from sources within the city shall be subject to
applicable utility taxes as of the time of commencement of such operations.
Franchise fees shall be in addition to any utility tax, but shall be collectible only to the
extent as then allowed by law, and in no event may the combined utility tax and
franchise fee exceed the amount permitted by law. (Ord. 6546 § 6, 2014; Ord. 5271
§ 1, 1999; Ord. 5034 § 1, 1998.)
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20.06.110 Nondiscrimination.
A franchisee which purports to serve the general public shall make its utility or
telecommunications services available to any customer within its franchise area who
shall request such service, without discrimination as to the terms, conditions, rates or
charges for the franchisee’s services; provided, however, that nothing in this title shall
prohibit a franchisee from making any reasonable classifications among differently
situated customers. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.06.120 Amendment of franchise.
Except as otherwise provided within an existing franchise ordinance, a new franchise
application shall be required of any commercial utility or telecommunications carrier
or operator that desires to extend its franchise territory or to locate its utility or
telecommunications facilities in public ways of the city which are not included in a
franchise previously granted under this title. If a franchisee is required by the city to
locate or relocate its facilities in public ways not included in a previously granted
franchise, the city shall grant a franchise amendment without further application.
(Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.06.130 Renewal of franchise.
A franchisee that desires to renew its franchise under this chapter for an additional
five-year term shall, not more than 240 days nor less than 180 days before expiration
of the franchise in effect, file an application, which is determined as complete in
accordance with ACC 20.06.030, with the city for a renewal of its franchise which
shall include the following:
A. The information required pursuant to ACC 20.06.020;
B. Any information required pursuant to the franchise agreement between the city
and the franchisee;
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C. All deposits or charges required pursuant to this chapter;
D. A nonrefundable application fee in the amount as set forth in the Auburn fee
schedule. (Ord. 6546 § 7, 2014; Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.06.140 Determination by city for renewal of franchise.
The process specified in ACC 20.06.030 for determining and notifying of
completeness of application shall be used for renewals. Within 120 calendar days
after receiving a complete application for renewal, following the procedures in ACC
20.06.030, the city council shall grant or deny the renewal application in whole or in
part. If the renewal application is denied, the written determination shall include the
reason(s) for denial. Prior to granting or denying renewal of a franchise under this
chapter, in whole or in part, the city council shall conduct a public hearing and make
a decision based upon the criteria set forth below in addition to all criteria in ACC
20.06.040.
A. The continuing capacity of the public ways to accommodate the applicant’s
existing facilities.
B. The applicant’s compliance with the requirements of this title and the franchise
agreement.
C. Applicable federal, state and local utility and telecommunications laws, rules and
policies.
D. Such other factors as may demonstrate that the continued franchise to use the
public ways will serve the community interest. (Ord. 5271 § 1, 1999; Ord. 5034 § 1,
1998.)
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20.06.150 Obligation to cure as a condition of renewal.
No franchise shall be renewed until any ongoing violations or defaults in the
franchisee’s performance of the franchise agreement, or of the requirements of this
title, have been cured, or a plan detailing the corrective action to be taken by the
franchisee has been approved in writing by the city. (Ord. 5271 § 1, 1999; Ord. 5034
§ 1, 1998.)
20.06.160 Reserved.
(Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.06.170 Other city costs.
All franchisees shall, within 30 days after written demand, reimburse the city for all
direct and indirect costs and expenses incurred by the city in connection with any
modification, amendment, renewal or transfer of the franchise or any franchise
agreement. In addition, all franchisees shall, within 30 days after written demand,
reimburse the city for any and all costs the city reasonably incurs in response to any
emergency involving the franchisee’s utility or telecommunications facilities. Finally,
all franchisees shall, within 30 days after written demand, reimburse the city for the
franchisee’s proportionate share of all actual, identified expenses incurred by the city
in planning, constructing, installing, repairing or altering any city facility as a result of
the presence in the public way of the franchisee’s utility or telecommunications
facilities. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.06.180 Compensation for use of public ways.
A. The city finds that the public ways to be used by commercial utilities and carriers
and operators in the operation of telecommunications systems within the boundaries
of the franchise are valuable public properties, acquired and maintained by the city at
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great expense to its taxpayers, and that the grant of use of said public ways is a
valuable property right, without which grantees and franchisees would be required to
invest substantial capital in public way costs and acquisitions; therefore, grantees
and franchisees shall pay the city as a general compensation for the use of the public
way during each year of the term of a franchise a franchise fee as determined by city
council, not to exceed six percent of gross revenues for each quarter of each
calendar year. Franchisees shall pay the franchise fee mandated by this chapter but
the city acknowledges and understands that such amount (and any other fees,
assessments, or taxes imposed on franchisees not described in subsection E of this
section) shall appear as a line item on the bill sent to, and shall be collected from, the
subscribers; provided further, that the compensation required from any
telecommunications operator or carrier engaged in the “telephone business,” as
defined in RCW 82.04.065, shall be consistent with RCW 35.21.860.
B. Annual Franchise Fee Adjustments. The initial annual franchise fee percentage
shall be the amount permitted by law of gross revenues unless and until it is further
adjusted by city council. Any such adjustment shall occur at least 60 days before any
subsequent annual anniversary date. Any adjustment shall become effective on the
subsequent annual anniversary date.
C. Quarterly Payment. Franchisees shall forward by check wire transfer an amount
equal to this quarterly payment by the fifteenth day of the second calendar month
immediately following the close of the calendar quarter for which the payment is
calculated.
D. Late Payment. In the event any quarterly payment is made after noon on the
date 10 days after the date due, franchisees shall pay a late payment penalty as
shown in the city’s fee schedule.
E. Fees and Compensation Not a Tax. The fees, charges and fines provided for in
this title and any compensation charged and paid for the franchisee’s use of the city’s
public ways, whether “fiduciary or in kind,” are separate from, and additional to, any
and all federal, state, local and city taxes as may be levied, imposed or due from a
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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.
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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.
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M. Circumventing Payments. Any transaction(s) which have the effect of
circumventing payment of the required franchise fees and/or evasion of payment of
franchise fees or any payments due the city under a franchise by noncollection or
nonreporting of gross revenues, bartering, or any other means which evade the
actual collection of revenues for business pursued by franchisees are prohibited.
N. Best Rates. As allowed by applicable law, part of the compensation to the city for
the grant of any telecommunications franchise, the city shall be entitled to obtain
subscriptions, at the city’s discretion, to the communications service at franchisee’s
lowest comparable rate applicable to any government body or municipality of the
state of Washington. In addition, city shall be entitled to franchisee’s lowest
comparable rate applicable to any governmental body or municipality of the state of
Washington for purchase and/or lease, should the city determine to purchase and/or
lease equipment or modems applicable to government bodies or municipalities in the
state of Washington for purposes of accessing the communications service. (Ord.
6718 § 3 (Exh. C), 2019; Ord. 6546 § 8, 2014; Ord. 5271 § 1, 1999; Ord. 5034 § 1,
1998.)
20.06.190 Accounts, books and records.
The franchisee shall keep the city fully informed as to accounting methods and
procedures in connection with the recording and reporting by the franchisee of all
revenues and uncollectibles.
A. City to Be Informed. Franchisees shall keep the city fully informed as to all
matters in connection with or which may affect the construction, reconstruction,
removal, maintenance, operation and repair of franchisee’s system located in public
way(s), franchisee’s accounting methods and procedures in connection therewith,
and the recording and reporting by franchisees of all revenues and uncollectibles.
Franchisees shall comply with the city’s determination regarding forms for reports,
the time for reports, the frequency with which any reports are to be made, and
whether reports are to be made under oath. The city acknowledges that a franchisee
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may be a reporting company under the Securities Exchange Act of 1934 and that
shares of its stock are publicly traded. As such, a franchisee may be precluded from
disclosing certain sensitive, nonpublic information by virtue of rules and regulations
promulgated under such act or otherwise.
B. Accounts. The franchisee shall keep complete and accurate books of account
and records of its business and operations subject to this franchise chapter in
accordance with generally accepted accounting principles or in accordance with
accounting rules prescribed by applicable federal or state regulatory agencies. The
city may require the keeping of additional records or accounts which are reasonably
necessary for purposes of identifying, accounting for, and reporting gross revenues
and uncollectibles. All subscribers who report a service address in the city of Auburn
shall be subject to taxes and fees under this franchise. When required by the city, the
franchisee shall make available a complete list of all service addresses within the city
of Auburn. This list shall be available for review by the city at a local franchisee’s
business office. The list will be provided on a computer disc in ASCII format sorted by
zip code. It is understood this data is only needed for Auburn to perform an audit to
ascertain that the correct subscribers are subjected to Auburn taxes and fees. As the
city annexes new areas, those zip codes, if any, will be added.
C. Access to Records. The franchisee shall provide the city with access at
reasonable times and for reasonable purposes, to examine, audit, review and/or
obtain copies of the papers, books, accounts, documents, maps, plans and other
records of the franchisee pertaining to this franchise chapter. The franchisee shall
fully cooperate in making available its records and otherwise assisting in these
activities. Such information shall be held in strict confidence by the city, as allowed by
law, and used only for the purpose stated herein.
D. Inquiries to Franchisee. The city may, at any time, make inquiries pertaining to
the franchisee’s operation of its utility or telecommunications system within the
franchise area. The franchisee shall respond to such inquiries on a timely basis. (Ord.
5271 § 1, 1999; Ord. 5034 § 1, 1998.)
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13.36.01020.06.010 Purpose.
The purpose of this chapter is to set forth an integrated statement of conditions,
requirements, obligations, duties and procedures for granting by the city of a
nonexclusive franchise for the construction, maintenance and operation of a cable
systems of cable television signal distribution within the territorial limits of the cCity of
Auburn. (Ord. 4625 § 2, 1993.)
13.36.03020.06.020 Cable Franchise – Conditions and term.
A. Authority to Grant Cable Franchises or Licenses for Cable Television. The city
council may by resolutionordinance award a nonexclusive franchise to construct,
operate and maintain a cable communications system which complies with the
requirements and conditions of this chapter. Any franchise granted pursuant to this
chapter shall be nonexclusive and shall not preclude the city from granting other or
further franchises or permits, or preclude the city from using any roads, rights-of-
public ways, streets, or other public properties, or affect its jurisdiction over them or
any part of them, or limit the full power of the city to make such changes as the city
shall deem necessary, including the dedication, establishment, maintenance, and
improvement of all new rights-of-public ways and thoroughfares and other public
properties; provided, that any such changes shall not materially or substantially
impair the rights granted a franchisee pursuant to this chapter. All franchises granted
subsequent to the effective date of this chapter shall be consistent with the
requirements and conditions of this chapter.
B. Incorporation by Reference. The provisions of this chapter shall be incorporated
by reference in any franchises approved pursuant hereto. The provisions of any
proposal for a franchise submitted and accepted by the city shall be incorporated by
reference in the applicable franchise; provided, that in the event of any conflict
between the proposal, this chapter and the franchise, the franchise shall be the
prevailing document.
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CB. Conditions of a Franchise. Subject to the provisions in this chapter, any cable
franchise granted hereunder by the city shall authorize a franchisee to: (1) engage in
the business of operating and providing cable service and the distribution and sale of
such service to subscribers within the city; and (2) erect, install, construct, repair,
replace, reconstruct, maintain and retain in, on, over, under, upon, across and along
any street, such amplifiers and appliances, lines, cables, conductors, vaults,
manholes, pedestals, attachments, supporting structures, and other property as may
be necessary and appurtenant to the cable communications system; and (3) use,
operate and provide similar facilities, or properties rented or leased from other
persons, firms or corporations, including but not limited to any public utility or other
franchisee franchised or permitted to do business in the city; provided, that no
privilege or exemption shall be granted or conferred upon a franchisee by any
franchise except those specifically prescribed therein, and any use of any street shall
be consistent with any prior lawful occupancy of the street or any subsequent
improvement or installation therein.
DC. Term of Franchise. The council shall have the right to grant a franchise for a
period of time which in the council’s judgement is the most appropriate to the
circumstances of the particular grant and is in the best interests of the citizens of the
city. (Ord. 4625 § 2, 1993.)
13.36.04020.06.030 Franchise – Application requirementsCable franchise application.
An applicant for an initial franchise to construct, operate, and maintain a cable
communication system within the city shall file an application in a form prescribed by
the city, accompanied by a nonrefundable franchise application fee in the amount set
forth in the city of Auburn fee schedule. The application shall include the following:
(Ord. 6546 § 1, 2014; Ord. 4625 § 2, 1993.)
A. The identity of the applicant, including all affiliates of the applicant that may be
involved in the construction, operation and/or maintenance of the cable system;
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B. A description of the cable services that are or will be offered or provided by the
applicant;
C. A description of the facilities, transmission medium or transporting means that will
be used by the applicant to offer or provide such cable services;
E. Evidence of ownership or a right to use existing facilities such as poles, ducts,
conduit or other facilities which the applicant intends to use or lease.
F. Information to establish that the applicant has obtained any other required
governmental approvals and permits to construct and operate the facilities, and to
offer or provide cable services.
H. The area or areas of the city the applicant desires to serve and a schedule for
build-out to the entire franchise area;
I. Such other and further information as permitted by applicable law as may be
requested by the city;
J. Proof of ability to meet city’s bonding requirements in ACC 12.24.050 when the
applicant does not have an existing standing bond on file with the city sufficient to
cover the scope of work proposed and proof of ability to meet financial security
requirements in ACC 20.02.280;
K. A copy of an Auburn business license stamped and signed by the business
license clerk, as designated by the mayor; and
L. A nonrefundable application fee and other charges as set forth in the Auburn fee
schedule.
20.06.040 Scheduling public hearing; notice; criteria for approval.
A. Notice of Complete Application. Within 30 calendar days after receipt of the
franchise application, the city will complete review of the application to determine
whether the application required by ACC 20.06.030 is complete and can proceed
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with processing. If during the 30-calendar-day review period, the public works director
or designee determines that the application is incomplete, the city will issue a letter to
the applicant specifying the additional information necessary to complete the
application. The applicant will be given 30 calendar days to respond. Once the
additional information is received by the city, an additional 14 calendar days will be
allowed to determine whether the application is complete. Once the application is
determined complete, written notice will be provided. If the applicant needs additional
time to respond the applicant may request up to an additional 30 calendar days. If a
response is not timely received, the application will be returned to the applicant with a
notice that the application is rejected due to failure to provide the required
information. Any new applications will require a new application fee.
B. Franchise Negotiations. When satisfied that the application is complete, the city
will notify the applicant in writing that the application is complete. At such time cable
franchise negotiations may commence. At a minimum, a cable franchise must
provide that access to cable service will not be denied to any group of potential
residential cable subscribers because of the income of the residents of the local area
in which such group resides; that the public will be benefited by the granting of a
franchise to the applicant; that the applicant has the requisite financial and technical
resources and capabilities to build, operate and maintain a cable television system in
the area; and that the applicant will provide adequate public, educational, and
governmental access channel capacity, facilities, or financial support.
C. After completion of negotiations, the city will notify the applicant in writing of the
schedule for consideration by the city council in accordance with RCW 35.99.030.
The city council will schedule a public hearing to consider the proposed cable
franchise, and the city clerk will notify the applicant in writing of the scheduled
hearing. (Ord. 6532 § 33, 2014; Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
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20.06.050 Determination by the city.
Within 120 calendar days from the time of notification that the application is complete
or as otherwise permitted by RCW 35.99.030, under ACC 20.06.040, the city shall
issue a written determination granting or denying the application for a cable franchise
in whole or in part, Prior to granting or denying a franchise under this title, the city
council shall conduct a public hearing and make a determination base on the criteria
set forth in federal law.
20.06.060 Application instruction and requirements for competitive cable
franchises.
A. Non-CFAR franchise applications. Notwithstanding any other provisions, any
competitive cable services franchise applicant may elect to submit a cable franchise
application to the City and/or engage in cable franchise negotiations without regard to
the application of the FCC’s Competitive Franchise Application Rule (CFAR) - the
administrative rule that imposes procedures upon local governments for the issuance
of competitive cable franchises for areas currently served by an existing cable
operator. In such cases, the City will negotiate the terms of a competitive cable
franchise without regard to 47 CFR §76.41 and the other provisions of this Section.
Agreement by any applicant to negotiate a franchise without regard to 47 CFR
§76.41 and the other provisions of this Section shall not be deemed by the City to
effect a waiver of any applicant’s right under applicable law to trigger application of
47 CFR §76.41 and this Section, where applicable.
B. Instructions and definitions.
1. An applicant for a competitive cable franchise (“Applicant”) shall include the
requisite information set forth below, in writing, in its franchise application, in
addition to any information required by 47 CFR §76.41 and applicable state and
local laws and the application fee in the amount set forth in the city of Auburn fee
schedule.
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2. The City shall accept and review only those applications that include
complete responses to every requirement of Subsections B, C, D and E of ACC
20.06.060. Submission of an application that does not include the requisite
information set forth in Sections B, C, D and E, and the application fee shall not
commence the time period for granting or denying the application set forth in 47
C.F.R. §76.41(d). The Applicant shall submit additional or updated information
as necessary to ensure the requisite information provided is complete and
accurate throughout the City’s review of the application.
3. Application shall be made to the Department of Public Works.
4. Upon request, the City will promptly provide access to documents or
information in its possession or control that are necessary for the completion of
this application, provided that the Applicant does not otherwise have access to
such documents or information and that such documents or information are
subject to disclosure under Washington public records act.
5. For the purposes of the application, the terms, phrases, and their derivations
set forth below shall have the meanings given unless the context indicates
otherwise. When not inconsistent with the context, words used in the present
tense include the future tense, words in the plural number include the singular
number, and words in the singular include the plural number. The word “shall” is
always mandatory and not merely directory.
a. “Affiliate(s)” when used in relation to any person, means any other person
who owns or controls, is owned or controlled by, or is under common
ownership or control with, such person.
b. “Applicant” means an applicant for a cable franchise pursuant to the
provisions of the Competitive Franchise Application Rule (“CFAR”) set forth in
Part 76 of Title 47 of the Code of Federal Regulations, §76.41, and includes
the Parent Corporation, its subsidiaries and Principals.
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c “Control” is not limited to majority stock ownership, but includes actual
working control in whatever manner exercised.
d. “Interest” includes officers, directors and shareholders owning five percent
(5%) or more of the Applicant’s outstanding stock or any equivalent voting
interest of a partnership or joint venture.
e “Parent Corporation” includes any entity with ownership or control of the
Applicant.
f “Principal” includes any person, firm, corporation, partnership, joint venture,
affiliates, or other entity, who or which owns or controls five percent or more of
the voting stock (or any equivalent voting interest of a partnership or joint
venture) of the Applicant.
g. “Regulatory Authority” includes any governmental or quasi-governmental
organization or entity with jurisdiction over all or any portion of the Applicant or
its operations.
C. Requisite information:
1. Identification and Ownership Information. The application shall include the
name, address, telephone number and web site (if applicable) of the Applicant
and the proposed franchisee (if different from Applicant), and the name, address,
primary telephone number and primary e-mail address of all individual(s)
authorized to represent the Applicant before the City during its consideration of
the franchise(s) requested, including the Applicant’s primary contact and any
additional authorized contacts.
2. Business structure.
a. If a corporation, the Applicant shall provide: 1) A list all officers and
members of the Board of Directors, their principal affiliations and their
addresses; 2) A certificate of good standing indicating that the Applicant is
licensed to do business in the State of Washington; and 3) A statement
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indicating whether the Applicant is directly or indirectly controlled by another
corporation or legal entity. If so, Applicant shall attach an explanatory
statement and respond to this subsection concerning the controlling
corporation.
b. If a partnership, the Applicant shall describe the structure of the
partnership and the interests of general and limited partners; and state
whether the Applicant is controlled directly or indirectly by any corporation or
other legal entity. If so, Applicant shall attach an explanatory statement and
respond to subsection 2.a above, as applicable, concerning the controlling
entity.
3. Experience.
a. Current Franchises. An Applicant shall list all cable systems in which it or
any Affiliate owns more than five percent of the system; provided that if the
total number of cable systems exceeds ten, the Applicant shall list the ten
systems that are the subject to its most recent cable franchises. For each
system Applicant shall include name of system, address, communities served,
number of subscribers, number of homes passed, date of system award,
duration (start and end date) of franchise, status of construction, and percent
of penetration of homes passed as of the most recent available date (indicate
date).
b. Potential Franchises. An Applicant shall list communities where it or any
Affiliate currently has in the State of Washington a formal or informal request
pending for an initial franchise, the renewal of a franchise, or the approval of a
transfer of ownership. The Applicant shall include the name of communities,
date of application, and date of expected action.
4. Management Structure. Every application for a competitive franchise shall
include a management/organizational chart, showing the management structure
of the Applicant.
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D. Legal qualification.
1. Franchise Violations. An Applicant shall state whether it or any Affiliate has
been found in violation by a Regulatory Authority or franchising authority of any
franchise ordinance or agreement, contract or regulation governing a cable
system. If so, the Applicant shall identify the judicial or administrative
proceeding, giving the date, name of tribunal and result or disposition of that
proceeding.
2. Other Violations. An Applicant shall state whether it has been found in
violation by a Regulatory Authority of any other type (e.g. utility) of franchise,
ordinance, agreement, permit, contract or regulation. If so, the Applicant shall
identify the judicial or administrative proceeding, giving the date, name of tribunal
and result or disposition of that proceeding.
E. E. Financial qualifications. Unless SEC Forms 10K and 10Q are available on the
EDGAR database, Applicants with existing operations shall provide audited financial
statements, including statements of income, balance sheets and cash flow
statements, together with any notes necessary to the understanding of the financial
statements for the last three fiscal years for the Applicant and any Parent
Corporation. Applicants that are new (start-up) entities shall provide pro forma
projections for the next five fiscal years, if available, but at a minimum the next three
fiscal years from the date of the application.
F. Technical qualifications, planned services and operations.
1. The application shall describe the Applicant’s planned initial and proposed
cable services geographic area, including a map of all areas proposed to be
served and proposed dates for offering service to each area. The application
shall additionally state whether the Applicant proposes to provide cable services
to the entire franchise area, and if so, a proposed timetable for meeting that goal;
2. If the Applicant has or asserts existing authority to access the public right of
way in any of the initial or proposed service areas, the Applicant shall state the
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basis for such authority or asserted authority and attach the relevant agreements
or other documentation of such authority;
3. The Applicant shall describe with particularity its planned residential Cable
services, including basic cable services, other cable programming service tiers,
and any additional pay-per-view, on-demand or digital services; and the
projected rates for each category or tier or service;
4. The Applicant shall describe with particularity its planned system technical
design, upstream and downstream capacity and speed, provision for analog or
digital services or packages, distribution of fiber, planned count of households
per residential node, and any other information necessary to demonstrate that
the Applicant’s technology will be deployed so as to be able to successfully offer
cable services in the proposed locations;
5. The Applicant shall describe with particularity its planned non-residential
cable services;
6. The Applicant shall describe its planned construction and extension or phase
schedule, as applicable, including system extension plans or policy; and describe
the current status of the Applicant’s existing or proposed arrangements with area
utilities, including pole attachments, vault, or conduit sharing agreements as
applicable;
7. The Applicant shall describe its plan to ensure that the safety, functioning
and appearance of property and convenience and safety of other persons not be
adversely affected by installation or construction of the Applicant’s facilities, and
that property owners are justly compensated for any damages caused by the
installation, construction, operation or removal of the facilities;
8. The Applicant shall describe its plan to comply with the subscriber privacy
protections set forth in 47 U.S.C. §551, and the privacy protections of the City’s
local cable customer service standards.
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G. Certification of applicant. Each application shall be accompanied by a certificate
in a form required by the City, and declaring that the Applicant’s representations are
truthful
H. Public records/confidentiality. Unless otherwise provided by applicable law,
information submitted as part of an application is open to public inspection and
subject to the Washington Public Records Act.
I. Application fee. An application fee sufficient to cover the reasonable cost of
processing applications under this ordinance will be in the amount set forth in the city
of Auburn fee schedule.
J Review Process
1. Acceptance of Application. The City shall review the application to ensure all
requisite information is included in the application. If the application is not
complete, the City will notify the Applicant in writing, listing the requisite
information that is required to complete the application and notifying the
Applicant that the time period for granting or denying the application set forth in
47 C.F.R. § 76.41(d) will not begin to run until such information is received. If the
application is complete, the City will notify the Applicant in writing that all
requisite information has been received.
2. Staff Review. The City staff shall review all completed applications based on
the review criteria set forth herein. If, during the review of an application, staff
reasonably requires additional information from the Applicant, staff will promptly
request the information from the Applicant, in writing, along with a notification
that the time period for granting or denying the application set forth in 47 C.F.R. §
76.41(d) will be tolled until such information is received by the City. After
completing the review, staff shall provide an analysis of the application to the City
Council.
3. Franchise Negotiations. Within the ninety (90) day time period set forth in 47
C.F.R. § 76.41(d), the City shall attempt to negotiate a cable franchise
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agreement with the applicant, and within that time period, schedule the
application and any proposed franchise for public hearing as set forth in
Subsection K.
K. Public hearing. The City shall hold a public hearing before acting on the
application, affording participants a process substantially equivalent to that required
by 47 U.S.C. §546(c)(2) governing renewal of cable franchises.
L. Review criteria. The City may deny an application if, based on the information
provided in the application, at the public hearing and/or any terms of a proposed
franchise agreement:
1. The Applicant does not have the financial, technical, or legal qualifications to
provide cable service;
2. The Applicant will not provide adequate public, educational, and
governmental access channel capacity, facilities, or financial support; or
3. The Applicant’s proposed terms do not comply with applicable laws and
regulations including, but not limited to, local customer service standards, or
relevant existing contractual obligations of the City.
13.36.06020.06.070 Acceptance.
A. No franchise granted pursuant to the provisions of this chapter shall become
effective unless and until the resolution ordinance granting same has become
effective and the granteefranchisee has accepted same as provided below.
B. Within 6030 days after the effective date of the resolutionordinance awarding a
franchise, or within such extended period of time as the council in its discretion may
authorize, a franchisee shall file with the city clerk its written acceptance of the
franchise, in a form satisfactory to the city attorney, together with the bondfinancial
security, and insurance policies, and any outstanding fees required by ACC
13.36.370 and 13.36.38020.02.270 and 20.02.280. (Ord. 4625 § 2, 1993.)
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13.36.08020.06.080 Rules and regulations by the city.
In addition to the inherent powers of the city to regulate and control any franchise it
issues, the authority granted to the city by the Actapplicable law, and those powers
expressly reserved by the city or agreed to and provided for in a franchise, the city
also reserves the right and power to promulgate such additional regulations as it may
find necessary in the exercise of its lawful powers. (Ord. 4625 § 2, 1993.)
13.36.09020.06.090 Technical standards and maintenance.
A. Subject to federal, state and localapplicable law, a franchisee shall comply with
FCC Rules, Part 76, Subpart K, Section 76.601 through 76.610 and as amended
hereafter, and, at the minimum, the following:
1. Applicable city, county, state and national/federal codes, laws and
regulations;
2. Applicable utility joint attachment practices;
3. The National Electric Safety Code; ANSI C2;
4. Local utility code requirements;
5. Local rights-of-public way procedures, in accordance with ACC Titles 12, 13
and 20 ACC.
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B. A comprehensive routine preventive maintenance program shall be developed,
effected and maintained to ensure continued top quality cable communications
operating standards in conformance with FCC Regulations Part 76 and amendments
thereto. (Ord. 6238 § 3, 2009; Ord. 4625 § 2, 1993.)
13.36.11020.06.100 Construction standards.
All facilities constructed pursuant to the provisions of this chapter shall be placed and
maintained at such places and positions in or upon such streets, avenues, alleys and
public places as shall not interfere with the passage of traffic and the use of adjoining
property, and shall conform to the applicable sections of the National Electrical Code,
codes of the state of Washington and ACC Titles 12, 13 and 20 ACC pertaining to
such construction. (Ord. 6238 § 4, 2009; Ord. 4625 § 2, 1993.)
13.36.13020.06.110 Undergrounding and landscaping.
Undergrounding of all utilitycable facilities will meet the requirements of Chapter
13.32A ACC. (Ord. 6238 § 5, 2009; Ord. 4625 § 2, 1993.)
13.36.14020.06.120 Construction in right-of-the public way.
Whenever, in the sole opinion of the city, any of a franchisee’s facilities or equipment
need to be relocated or altered due to a construction or repair project by the city in a
public way, a franchisee shall move or relocate said facilities or equipment within 30
days from receiving written notice from the city. However, in the event such relocation
is required due to emergency repairs deemed necessary by the city, such relocation
or moving shall be accomplished within 24 hours. Any relocation or alteration of a
franchisee’s facilities or equipment required under this section shall be at the sole
expense of a franchisee. Installation and/or relocation of all underground and aerial
facilities within existing city right-of-way or public ways or city utility easements shall
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be permitted under Chapter 12.24 ACC, Construction Permits. (Ord. 5043 § 1 (Exh.
B), 1998; Ord. 4625 § 2, 1993.)
13.36.15020.06.130 Safety requirements.
A franchisee, in accordance with applicable national, state, and local safety
requirements shall, at all times, employ ordinary care and shall install and maintain
and use commonly accepted methods and devices for preventing failures and
accidents which are likely to cause damage, injury, or nuisance to the public.
All structures and all lines, equipment and connections in, over, under, and upon the
streets, sidewalks, alleys, and public ways or places of a franchise area, wherever
situated or located, shall at all times be kept and maintained in a safe, suitable
condition and in good order and repair.
The city reserves the general right to see that the system of a franchisee is
constructed and maintained in a safe condition. If a violation of the National Electrical
Safety Code or other applicable regulation is found to exist by the city, the city will,
after discussions with a franchisee, establish a reasonable time for a franchisee to
make necessary repairs. If the repairs are not made within the established time
frame, the city may make the repairs itself or have them made and collect all
reasonable costs thereof from the franchisee. (Ord. 4625 § 2, 1993.)
13.36.18020.06.140 Rates.
Within 60 days after the grant of any franchise hereunder, a franchisee shall file with
the city a complete schedule of all rates to be charged to all subscribers.
Prior to implementation of any change in rates or charges for any service or
equipment provided by a franchisee, the franchisee shall provide the city and all
subscribers a minimum of 30 days prior written notice of such change.
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Subject to federal, state and localapplicable law, the city may regulate the approval of
increases of rates or charges for providing cable service and prescribe reasonable
rate approval procedures. (Ord. 4625 § 2, 1993.)
13.36.20020.06.150 Customer service.
A. A franchisee shall render repair service to restore the quality of the signal at
approximately the same standards existing prior to the failure or damage of the
component causing the failure and make repairs promptly and interrupt service only
for good cause and for the shortest time possible. Such interruptions, insofar as
possible, shall be preceded by notice and shall occur during a period of minimum use
of the system. A log of all service interruptions shall be maintained for at least a
period of one year. The city, after two working days’ notice, may inspect such logs.
B. An employee of a franchisee shall answer and respond to all individual
complaints received no later than 5:00 p.m. weekdays. A franchisee may use an
answering service to receive complaints after 5:00 p.m. weekdays, weekends and
holidays and will respond to any system outage affecting more than five subscribers.
A copy of the instructions to the answering service by a franchisee shall be furnished
to the city or its designee.
C. A technician shall be on call seven days a week, 24 hours a day. A franchisee
shall respond immediately to service complaints in an efficient manner.
D. A franchisee shall maintain a sufficient repair force to respond to individual
requests for repair service within two working days after receipt of the complaint or
request, except Saturday, Sunday and legal holidays. All complaints shall be
resolved within seven days, to the extent reasonable. If a subscriber has notified a
franchisee of an outage, no charge for the period of the outage shall be made to the
subscriber if the subscriber was without service for a period exceeding 24 hours,
unless the outage was due to acts of God, force majeure or circumstances
reasonably beyond a franchisee’s ability to control.
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E. A franchisee shall supply at the time of a new connection, and periodically at
least once a year, the title, address, and telephone number of the city official or
designee, to whom system subscribers may direct their concerns.
FE. In no case will a franchisee’s service standards fall below the standards
established by the National Cable Television Association (NCTA) which are attached
to the ordinance codified in this chapter as Appendix “A” and incorporated within this
chapter1 or any FCC regulationRegardless of any franchise provisions, the city
retains the right to adopt any customer service standards to govern the provision of
cable services within the city as may be permitted by applicable law. (Ord. 4625 § 2,
1993.)
1 Code reviser’s note: Appendix “A” is on file in the office of the city clerk.
13.36.21020.06.160 Telephone response.
A. A franchisee shall maintain an adequate force of customer service
representatives as well as incoming trunk lines so that telephone inquiries are met
promptly and responsively. A franchisee shall have in place procedures for utilization
of other manpower and/or recording devices for handling the flow of telephone calls
at peak periods of large outages or other major causes of subscriber concern. A copy
of such procedures and/or policies shall be made available to the city.
B. In order that the city may be informed of a franchisee’s success in achieving
satisfactory customer relations in its telephone answering functions, a franchisee
shall, upon request by the city, and routinely no less than quarterly, provide the city
with a summary that will provide, at a minimum, the following:
1. Total number of calls received in reporting periods;
2. Time taken to answer;
3. Average talk time;
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4. Number of calls abandoned by the caller;
5. Average hold time;
6. Percentage of time all lines busy;
7. An explanation of any abnormalities.
This data will be compared to minimum standards of the NCTA incorporated in this
chapter by reference or any amendment thereto which increases such NCTA
standards, and shall be monitored by the city.
CB. Calls for service generated during period of system outages due to emergency
which affects more than 25 customers may be excluded from the service response
calculations. The city shall have the sole determination as to what constitutes a
system failure due to emergency and which calls shall be excluded from the service
level calculations. (Ord. 4625 § 2, 1993.)
13.36.22020.06.170 Failure to improve customer service.
A. The city or its designee shall review telephone response and customer service
information with a franchisee. The franchisee shall make improvements in the
appropriate categories which were found deficient pursuant to ACC 13.36.190 and
13.36.20020.06.150 from the last reporting period. Failure to do so may result in the
calling of a public hearing by the council for the purpose of examining the reasons, if
any, why such improvements were not achieved by a franchisee.
B. An unsatisfactory record will result in the hearings being made part of an exhibit
under Sections 626(c)(1)(A) and (B) of the Cable Act alleging that such practices
have failed to conform with future refranchising requirements as stated therein. In
addition, a franchisee’s corporate office shall be advised of the city’s findings. (Ord.
4625 § 2, 1993.)
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13.36.23020.06.180 Franchise fee.
A franchisee shall pay to the city quarterly, on or before the thirtieth day of each
January, April, July and October, a sum as set forth in the Auburn fee schedule. Such
remittances shall be accompanied by forms furnished by the city to report detailed
information as to the sources of such income. (Ord. 6546 § 2, 2014; Ord. 4625 § 2,
1993.)
13.36.26020.06.190 Record inspection.
Subject to statutory and constitutional limits and two working days’ advance notice,
the city reserves the right to inspect the records of a franchisee necessary for the
enforcement of a franchise and verification of the accuracy of franchise fee payments
at any time during normal business hours; provided, that the city shall maintain the
confidentiality of any trade secrets or other proprietary information in the possession
of a franchisee. Such documents shall include such information as financial records,
subscriber records within the context of Section 631 of the Communications Act, and
plans pertaining to a franchisee’s operation in the city, and any information
reasonably necessary for the city to evaluate compliance with franchise obligations.
(Ord. 4625 § 2, 1993.)
13.36.27020.06.200 Reports.
A franchisee shall furnish, upon request, a report of its activities as appropriate. Such
report shall include:
A. Most recent annual report;
B. A copy of the 10-K Report, if required by the Securities and Exchange
Commission;
C. The number of homes passed;
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D. The number of subscribers with basic services;
E. The number of subscribers with premium services;
F. The number of hook-ups in period;
G. The number of disconnects in period;
H. Total number of miles of cable in city;
I. Summary of complaints received by category, length of time taken to resolve and
action taken to provide resolution;
J. A statement of its current billing practices, and a sample copy of the bill format;
K. A current copy of its subscriber service contract;
L. Report on operations; and
M. Such other reports with respect to its local operation, affairs, transactions or
property that may be appropriate. (Ord. 4625 § 2, 1993.)
13.36.28020.06.210 Programming.
For informational purposes, a franchisee shall file a listing of its programing and the
tiers in which they are placed. A franchisee shall consider the city’s suggestions of
general program categories as determined from time to time in residential
questionnaire polls. The results of initial such surveys will be appended to the
respective franchise agreements. (Ord. 4625 § 2, 1993.)
13.36.29020.06.220 Nondiscrimination.
A. A franchisee shall not, as to rates, charges, service facilities, rules, regulations or
in any other respect, make or grant any preferences or advantage to any person nor
subject any person to any prejudice or disadvantage; provided, that nothing in this
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chapter shall be deemed to prohibit the establishment of a graduated scale of
charges and classified rate schedules to which any customer coming within such
classification would be entitled; and, provided further, that connection and/or service
charges may be waived or modified during promotional campaigns of a franchisee.
B. A franchisee will not deny access to cable communications service to any group
of potential residential subscribers because of the income of the residents of the local
area in which the group resides. (Ord. 4625 § 2, 1993.)
13.36.41020.06.230 Inconsistency.
If any portion of chapter should be inconsistent or conflict with any rule or regulation
now or hereafter adopted by the FCC or other federalapplicable law, then to the
extent of the inconsistency or conflict, the rule or regulation of the FCC or other
federalapplicable law shall control for so long, but only for so long, as such rule,
regulation, or law shall remain in effect; provided the remaining provisions of this
chapter shall not be affected thereby. (Ord. 4625 § 2, 1993.)
13.36.42020.06.240 Severability.
Each section, subsection or other portion of chapter shall be severable and the
invalidity of any section, subsection, or other portion shall not invalidate the
remainder. (Ord. 4625 § 2, 1993.)
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Chapter 20.08
FACILITIES LEASE
Sections:
20.08.010 Facilities lease.
20.08.020 Lease application.
20.08.030 Notice of complete application and scheduling of public hearing.
20.08.040 Determination by the city.
20.08.050 Notification of council action and execution of lease.
20.08.060 Nonexclusive leaseExtent of leasehold interest granted.
20.08.070 Term of facilities lease.
20.08.080 Rights granted.
20.08.090 Interference with other users.
20.08.100 Ownership and removal of improvements.
20.08.110 Cancellation of lease by lessee.
20.08.120 Compensation to the cityCompliance with zoning standards.
20.08.130 Amendment of facilities leaseRepealed.
20.08.140 Renewal of facilities leaseRepealed.
20.08.150 Determination by the city for renewal of facility leaseRepealed.
20.08.160 Obligation to cure as a condition of renewalRepealed.
20.08.010 Facilities lease.
The city council may, in its sole discretion, which is hereby reserved, approve
facilities leases for the location of commercial utility or telecommunications facilities
and other nontelecommunications facilities upon city real property, as that term is
defined in this title. Neither this chapter, nor any other provision of this title shall be
construed to create an entitlement or vested right in any person or entity of any type
to the use of any city property or city facility. (Ord. 5271 § 1, 1999; Ord. 5034 § 1,
1998.)
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20.08.020 Lease application.
Any person that desires to solicit the city’s approval of a facilities lease pursuant to
this title shall file a lease proposal with the city which, in addition to the information
required by ACC 20.06.02020.04.020 and ACC 20.06.030, shall include the
following:
A. A description of the facilities or other equipment proposed to be located upon city
property;
B. A description of the city property upon which the applicant proposes to locate
facilities or other equipment;
C. Preliminary plans and specifications in sufficient detail to identify:
1. The location(s) of existing utilities or telecommunications facilities or other
equipment upon the city property, whether publicly or privately owned;
2. The location and source of electric and other utilities required for the
installation and/or operation of the proposed facilities or equipment;
D. Accurate scale conceptual drawings and diagrams of sufficient specificity to
analyze the aesthetic impacts of the proposed telecommunications facilities or other
equipment;
E. If applicant is proposing to install aboveground and/or overhead facilities:
1. Evidence that surplus space is available for locating its utilities or
telecommunications facilities on existing utility poles along the proposed route;
2. Proof of compliance with city’s zoning code;
F. Whether the applicant intends to provide cable service, video dialtone service or
other multi-channel video programming service, and sufficient information to
determine whether such service is subject to cable franchising;
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G. An accurate map showing the location of any existing utility or
telecommunications facilities in the city that applicant intends to use or lease;
H. A description of the services or facilities that the applicant will offer or make
available to the city and other public, educational, and governmental institutions;
I. A copy of an Auburn business license stamped and signed by the business
license clerk, as designated by the mayor;
J. Proof of ability to meet city’s bonding requirements in Chapter 12.24 ACC when
the applicant does not have an existing standing bond on file with the city sufficient to
cover the scope of work proposed; and proof of ability to meet the city’s security
requirements in ACC 20.10.240 through 20.10.260;
K. A nonrefundable application fee in the amount established in the city’s fee
schedule, if applicable; and
L. Such other and further information as may be requested by the city. (Ord. 6718
§ 4 (Exh. D), 2019; Ord. 5897 § 24, 2005; Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.08.030 Notice of complete application and scheduling of public hearing.
A. Within 30 calendar days the city will complete an initial review of the application
to determine whether the application contains sufficient information as outlined in
ACC 20.08.020 to proceed with processing. Once satisfied that the proposal is clear,
and if the city in its sole discretion determines that it is in the city’s interests to
negotiate a lease, the mayor will appoint a negotiation team to meet with the
applicant and director or designee responsible for the property will determine whether
additional information is needed. The team shall as a minimum consist of the finance
director, a legal representative, and the department director affiliated with the
property being considered for lease. If during the 30-calendar-day review period, the
application is deemed incomplete, the city will issue a letter to the applicant
specifying the additional information necessary in order to proceed with processing.
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The applicant will be given 30 calendar days to respond. Once the additional
information is received by the city, an additional 14 calendar days will be allowed to
determine whether the application is complete. Once the application is determined
complete, written notice will be provided. If a response is not timely received, the
application will be returned to the applicant with a notice that the application is
rejected due to failure to provide the required information. Any new applications will
require a new application fee, if applicable.
B. When satisfied that the application is complete, the finance director or designee
responsible for the property will issue a letter of completeness and notifying the
applicant of the process for consideration of the matter by the city council. Once an
acceptable draft lease agreement has been prepared, the city clerk will schedule a
hearing before the city council, if applicable, and the city clerk will notify the applicant
in writing of the scheduled hearing. (Ord. 6532 § 34, 2014; Ord. 5271 § 1, 1999; Ord.
5034 § 1, 1998.)
20.08.040 Determination by the city.
Recognizing that the city is under no obligation to approve a facilities lease for the
use of city property, the city shall attempt to consider and take action on applications
for facilities leases within 180 days from the time of reaching a determination of
completeness, under ACC 20.08.030. When such action is taken, the city director or
designee responsible for the property shall issue a written determination granting or
denying the lease in whole or in part. If the lease is denied, in whole or in part, the
written determination shall include the reason(s) for denial. The decision to grant or
deny an application for a facilities lease shall be based upon, but not be limited to,
the following criteria:
A. The capacity of the city property and public ways to accommodate the applicant’s
proposed facilities.
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B. The capacity of the city property and public ways to accommodate additional
utility and telecommunications facilities if the lease is granted.
C. The damage or disruption, if any, of public or private facilities, improvements,
service, travel or landscaping if the lease is granted.
D. The public interest in minimizing the cost and disruption of construction upon city
property and within the public ways.
E. The service and public benefit that applicant will provide to the community and
region.
F. The effect, if any, on public health, safety, and welfare if the lease requested is
approved.
G. The availability of alternate routes and/or locations for the proposed facilities.
HG. Whether the applicant is in compliance with applicable federal and state
telecommunications laws, regulations and policies, including, but not limited to, the
registration requirements administered by the Washington Utilities and Transportation
Commission.
I.H The potential for radio frequency and other interference with existing public and
private telecommunications or other facilities located upon the city property.
JI. The potential for radio frequency and other interference or impacts upon
residential, commercial, and other uses located within the vicinity of the city property.
KJ. Whether the city’s property zoning supports the proposed land use.
LL. Demonstrated ability and commitment to meet city bonding requirements in
Chapter 12.24 ACCand security requirements established in ACC 20.10.240 through
20.10.260.
M. Such other factors as may demonstrate that the lease to use the city property will
does not serve the community interest.
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N. Other criteria determined to be necessary or appropriate to the public health,
safety, or welfare of the community. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.08.050 Notification of council action and execution of lease.
Upon the city council’s decision, the finance director or designee responsible for the
property shall notify the applicant of the decision and instruct the applicant of the
procedure to follow to complete execution of the lease agreement if approved by the
city council. No facilities lease shall be deemed to have been granted hereunder until
after any scheduled public hearing, if applicable, and city council approval of a written
agreement setting forth the particular terms and provisions under which the lessee
has been granted the right to occupy and use the city property specified in the lease
and both the city and applicant have fully executed the lease and the applicant has
provided the security deposits and proof of insurance as required by Chapter
20.1020.02 ACC. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.08.060 Nonexclusive leaseExtent of leasehold interest granted.
No facilitiesAny lease granted under this title shall be limited to the leasehold interest
described in the lease document, and shall not confer any exclusive other right,
privilege, license, or franchise to occupy or use city property for delivery of utility or
telecommunications services or any other purposes not described therein. (Ord. 5271
§ 1, 1999; Ord. 5034 § 1, 1998.)
20.08.070 Term of facilities lease.
By virtue of the uncertainties created by the Act, except as provided in any pre-
existing lease agreements, tThe length of a facilities lease granted hereunder shall
be set forth in the lease agreement, subject to renewal as provided in this chapter.
(Ord. 6521 § 1, 2014; Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
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20.08.080 Rights granted.
No facilities lease granted under this chapter shall convey any right, title or interest,
of any kind, in the city property, but shall be deemed a license grant only to use and
occupy the city property for the limited purposes and term stated in the lease
agreement. Further, no facilities lease shall be construed as any warranty of title.
(Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.08.090 Interference with other users.
No facilities lease shall be granted under this title unless it contains a provision which
is substantially similar to the following:
The City has previously entered or may enter into leases with other tenants
for their equipment andinstallation and operation of utility and
telecommunications facilities. Lessee acknowledges that the City is also
leasing the City property for the purposes of transmitting and receiving
telecommunications signals from the City property. The City, however, is not
in any way responsible or liable for any interference with Lessee’s use of the
City property which may be caused by the use and operation of any other
tenant’s equipment, even if caused by new technology. In the event that any
other tenant’s activities interfere with the Lessee’s use of the City property,
and the Lessee cannot work out this interference with the other tenants, the
Lessee may, upon 30 days’ notice to the City, terminate this Lease and
restore the City property to its original condition, reasonable wear and tear
exceptedaccepted. The Lessee shall cooperate with all other tenants to
identify the causes of, and work towards the resolution of, any electronic
interference problem. In addition, the Lessee agrees to eliminate any radio or
television interference caused to City-owned or other public/private facilities
or surrounding property owners, residents, or tenants at Lessee’s own
expense and without installation of extra filters on City-owned equipment.
Lessee further agrees to accept such interference as may be received from
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City operated telecommunications or other facilities located upon the City
property subject to this Lease.
(Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.08.100 Ownership and removal of improvements.
No facilities lease shall be granted under this title unless it contains a provision which
states that all buildings, landscaping, and all other improvements, except lessee’s
equipment, shall become the property of the city upon expiration or termination of the
lease. In the event that the city requires removal of such improvements, such
removal shall be accomplished at the sole expense of the lessee and completed with
full restoration of the site to the original condition or its practical equivalent as
determined by the city, within 90 days after receiving written notice from the city
requiring removal of the improvements. Further, inIn the event that utility, or
telecommunications facilities or other equipment are left upon city property after
expiration or termination of the lease, at the city’s option, the utility,
telecommunications facilities or other such equipment they shall become the property
of the city if not removed by the lessee after 30 days’ written notice from the city.
However, the city does reserve the right to cause the removal of the facilities and
equipment and restoration of the site for which lessee shall reimburse the city all
costs of such removal and restoration plus ten percent of the cost to cure for
administrative purposes within 30 days of written demand. (Ord. 5271 § 1, 1999; Ord.
5034 § 1, 1998.)
20.08.110 Cancellation of lease by lessee.
A. All facilities leases are contingent upon the prospective lessee obtaining all
necessary permits, approvals, and licenses for the proposed facilities. In the event
that the prospective lessee is unable to obtain all such permits, approvals, and
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licenses, it may cancel its lease, and obtain a pro rata refund in any rents paid,
without further obligation by giving 30 days’ prior written notice to the city.
B. In the event that the holder of a facilities lease determines that the city property is
unsuitable for its intended purpose, the lessee shall have the right to cancel the lease
upon 120 days’ written notice to the city. However, no prepaid rent shall be
refundable. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.43020.08.120 Compliance with zoning standards.
All uses proposed in applications for leases, franchises, and public way agreements
under this title will comply with the city zoning regulations and siting standards in
ACC Title 18 ACC. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.08.120 Compensation to the city.
Each facilities lease granted under this title is subject to the city’s right, which is
expressly reserved, to annually fix a fair and reasonable compensation to be paid for
the rights granted to a lessee; provided, nothing in this title shall prohibit the city and
a lessee from agreeing to the compensation to be paid. Such compensation shall be
payable in advance of the effective date of the lease and on or before January 31st
of each calendar year. Any payments received after the due date shall include a late
payment penalty of two percent of the annual rental fee for each day or part thereof
past the due date. If any or all of the rental fee is more than 60 calendar days
delinquent, the lease will automatically terminate on the sixty-first calendar day of
delinquency, and the city may proceed to collect against any security provided by the
lessee. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
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20.08.130 Amendment of facilities leaseRepealed.
Except as provided within an existing lease agreement, a new lease application and
lease agreement shall be required of any lessee that desires to expand, modify, or
relocate its facilities or other equipment located upon city property. If the lessee is
required by the city to locate or relocate its facilities or other equipment on the city
property, the city shall grant a lease amendment without further application. (Ord.
5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.08.140 Renewal of facilities leaseRepealed.
A lessee that desires to renew its facilities lease in effect under this chapter shall, not
more than 120 days nor less than 90 days before expiration of the facilities lease
then in effect, file an application, which is determined as complete in accordance with
ACC 20.08.030, with the city for renewal of its facilities lease which shall include the
following:
A. The information required pursuant to ACC 20.08.020;
B. Any information required pursuant to the facilities lease agreement between the
city and the lessee;
C. All deposits or charges required pursuant to this chapter;
D. A nonrefundable application renewal fee in the amount established in the city’s
fee schedule. (Ord. 6718 § 4 (Exh. D), 2019; Ord. 5271 § 1, 1999; Ord. 5034 § 1,
1998.)
20.08.150 Determination by the city for renewal of facility leaseRepealed.
All renewals of leases subject to this title shall be renewed in accordance with the
provisions of ACC 20.08.030 and 20.08.040. Recognizing that the city council is
under no obligation to approve a renewal of a facilities lease for the use of city
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property, the city council shall attempt to consider and take action on applications for
renewal of such leases within 90 days after receiving a complete application for such
a lease renewal. When such action is taken, the city shall issue a written
determination granting or denying the lease renewal, in whole or in part. If the
renewal application is denied, the written determination shall include the reason(s) for
denial. The decision to grant or deny an application for renewal of a facilities lease
shall be based upon, but not limited to, the following:
A. The continuing capacity of the city property to accommodate the applicant’s
existing facilities.
B. The applicant’s compliance with the requirements of this title and the lease
agreement.
C. Such other factors as may demonstrate that the continued approval to use the
city property ways will serve the community interest.
D. Any criteria contained in ACC 20.08.040. (Ord. 5271 § 1, 1999; Ord. 5034 § 1,
1998.)
20.08.160 Obligation to cure as a condition of renewalRepealed.
No facilities lease shall be renewed until any ongoing violations or defaults in the
lessee’s performance of the lease agreement, or of the requirements of this title,
have been cured, or a plan, secured by bond or deposit account to the city’s
satisfaction, detailing the corrective action to be taken by the lessee has been
approved in writing by the city. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
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Chapter 20.10
CONDITIONS OF PUBLIC WAY AGREEMENTS, FRANCHISES, AND FACILITIES
LEASESREPEALED
Sections:
20.10.010 Purpose.
20.10.020 Acceptance and effective date.
20.10.030 Police power.
20.10.040 Rules and regulations by the city.
20.10.050 Location of facilities.
20.10.060 Compliance with one number locator service.
20.10.070 Construction permits.
20.10.080 Interference with the public ways.
20.10.090 Damage to property.
20.10.100 Notice of work.
20.10.110 Repair and emergency work.
20.10.120 Maintenance of facilities.
20.10.130 Abandonment, relocation or removal of facilities.
20.10.140 Building moving.
20.10.150 Removal of unauthorized facilities.
20.10.160 Emergency removal or relocation of facilities.
20.10.170 Damage to facilities.
20.10.180 Restoration of public ways, other ways, city property and
public/private utility property.
20.10.190 Facilities maps.
20.10.200 Duty to provide information.
20.10.210 Leased capacity.
20.10.220 Insurance.
20.10.230 General indemnification.
20.10.240 Performance and construction surety.
20.10.250 Security options.
20.10.260 Performance bond.
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20.10.270 Coordination of construction activities.
20.10.280 Assignments or transfers of public way agreements, franchises,
or leases.
20.10.290 Transactions affecting control of public way agreements,
franchises, or leases.
20.10.300 Revocation or termination of public way agreements, franchises,
or leases.
20.10.310 Notice and duty to cure.
20.10.320 Public hearing.
20.10.330 Standards for revocation or lesser sanctions.
20.10.340 Civil penalties.
20.10.350 Enforcement.
20.10.360 Other remedies.
20.10.370 Venue of any court action.
20.10.380 Action by the FCC.
20.10.390 Incorporation by reference.
20.10.400 Notice of entry on private property.
20.10.410 Safety requirements.
20.10.420 Most favored community.
20.10.430 Compliance with zoning standards.
20.10.440 Unfunded mandate.
20.10.450 Care of trees along streets.
20.10.460 Use of utility poles and facilities of others.
20.10.470 Use of poles and facilities by city.
20.10.480 Administration.
20.10.010 Purpose.
The purpose of this chapter is to set forth certain terms and conditions which are
common to all public way agreements, franchises, and facilities leases granted under
the provisions of this title. Except as otherwise provided in this chapter or in such a
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public way agreement, franchise, or lease, the provisions of this chapter apply to all
such public way agreements, franchises, and leases approved or granted by the city.
(Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.020 Acceptance and effective date.
No public way agreement, franchise, or lease granted pursuant to the provisions of
this title shall become effective unless and until the ordinance or other city action
granting the same has become effective. Within 30 days after the effective date of the
ordinance or other city action granting a public way agreement, franchise, or lease, or
within such extended period of time as the council in its discretion may authorize, the
applicant shall file with the city clerk an unconditional written acceptance of the public
way agreement, franchise, or lease, in a form satisfactory to the city attorney,
together with the bonds, insurance policies, and security fund required by this title.
(Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.030 Police power.
In accepting and executing any public way agreement, franchise or lease, the
grantee, franchisee, or lessee acknowledges that its rights thereunder are subject to
the legitimate rights of the police power of the city to adopt and enforce general
ordinances necessary to protect the safety, health, and welfare of the public, and
agrees to comply with all applicable general laws enacted by the city pursuant to
such power. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.040 Rules and regulations by the city.
In addition to the inherent powers of the city to regulate and control any public way
agreement, franchise, or lease granted, the authority granted to the city by the Cable
Act and the Telecommunications Act of 1996, and those powers expressly reserved
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by the city, or agreed to and provided for in any public way agreement, franchise, or
lease, the right and power is hereby reserved by the city to promulgate such
additional regulations as it may find necessary in the exercise of its lawful powers
giving due regard to the rights of grantees, franchisees, and lessees. Except as
provided in this title, the foregoing does not allow for amendment by the city of
material terms of any public way agreement, franchise, or lease granted without the
written consent of the grantee, franchisee, or lessee. (Ord. 5271 § 1, 1999; Ord. 5034
§ 1, 1998.)
20.10.050 Location of facilities.
All facilities shall be constructed, installed, and located in accordance with the
following terms and conditions, unless otherwise specified in a public way agreement,
franchise, or lease agreement.
A. Unless otherwise provided in a public way agreement, franchise, or lease, a
grantee, franchisee, or lessee with permission to occupy a public way must locate its
cable or telecommunications facilities underground in accordance with ACC Title 18
and Chapter 13.32A ACC.
B. Any newcomer in the public way must bear the full cost of discovering the
location of any existing conflicts, coordination of the engineering plans to acquire the
approvals of parties already in the public way, and relocating and/or mitigating such
conflicts with preexisting facilities in conflict with the plans of the newcomer.
C. Whenever the city requires, a grantee, franchisee, or lessee subject to this title,
that currently occupies the public way shall relocate its facilities underground at no
expense to the city. Such relocation shall be made concurrently with other planned
work to minimize the disruption of the public ways as determined by the city engineer.
D. Should the available capacity of public ways prevent new uses in the future, all
persons subject to this title shall negotiate with any interested newcomer the means
of creating new capacity as required by federal or state law. The parties shall arrive
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at a mutually supportable agreement and submit the same to the city for review and
comment. The parties will incorporate any reasonable city requirements for approval,
and resubmit the revised proposal for city council approval. If approved by the city
council, the parties will bear all costs associated with the proposal, and obtain the
necessary permits to execute the approved plan from the city in accordance with this
title and Chapter 12.24 ACC. The city shall bear no costs associated with resolution
of capacity shortages within the public ways. (Ord. 5271 § 1, 1999; Ord. 5034 § 1,
1998.)
20.10.060 Compliance with one number locator service.
All grantees, franchisees, and lessees shall, before commencing any construction in
the public ways, comply with all regulations of Chapter 19.122 RCW, the One
Number Locator Service. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.070 Construction permits.
All grantees of public way agreements, franchisees, and lessees of city properties are
required to obtain construction permits, as required in Chapter 12.24 ACC, for
installing utility, cable and telecommunications facilities. However, nothing in this title
shall prohibit the city and a grantee, franchisee, or lessee from agreeing to alternative
plan review, permit, and construction procedures for a public way agreement,
franchise, or lease granted under this title, provided such alternative procedures
provide substantially equivalent safeguards for responsible construction practices.
(Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.080 Interference with the public ways.
No grantee, franchisee, or lessee may locate or maintain its utility, cable or
telecommunications facilities so as to unreasonably interfere with the use of the
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public ways by the city, by the general public or by other persons authorized to use or
be present in or upon the public ways. All such facilities which unreasonably interfere
with the use of the city’s public ways as determined by the public works director, shall
be moved in accordance with provisions in ACC 20.10.130, by the grantee,
franchisee, or lessee, at the grantee, franchisee, or lessee’s cost, temporarily or
permanently, as determined by the public works director. (Ord. 5271 § 1, 1999; Ord.
5034 § 1, 1998.)
20.10.090 Damage to property.
No grantee, franchisee, or lessee, nor any person acting on behalf of a grantee,
franchisee, or lessee shall take any action or permit any action to be taken which
may impair or damage any city property, public ways of the city, other ways or other
property, whether publicly or privately owned, located in, on or adjacent thereto. (Ord.
5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.100 Notice of work.
Unless otherwise provided in a public way agreement, franchise, or lease agreement,
no grantee, franchisee, or lessee, nor any person acting on behalf of the grantee,
franchisee, or lessee shall commence any nonemergency work in or about the public
ways of the city, other ways, or upon city property without 10 working days’ advance
written notice to the city which notice shall include the location of the work to be
done, a detailed description of the work to be done, and a schedule for completion.
(Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.110 Repair and emergency work.
In the event of an emergency, a grantee, franchisee, or lessee may commence such
repair and emergency response work as required under the circumstances, provided
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the grantee, franchisee, or lessee shall notify the city in writing as promptly as
possible, before such repair or emergency work commences or as soon thereafter as
possible if advance notice is not practicable. The city may act without prior written
notice in case of emergency. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.120 Maintenance of facilities.
Each grantee, franchisee, or lessee shall maintain its facilities in good and safe
condition and in a manner that complies with all applicable federal, state and local
requirements. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.130 Abandonment, relocation or removal of facilities.
Within 30 days following written notice from the city, a grantee, franchisee, or lessee
shall, at its sole expense, temporarily or permanently remove, relocate, change, or
alter the position of any commercial utility, cable or telecommunications facilities
within the public ways or upon city property whenever the city public works director
shall have determined that such removal, relocation, change, or alteration is
reasonably necessary for:
A. The construction, repair, maintenance, or installation of any city or other public
improvement in or upon the public ways; and
B. The operations of the city, utility providers, or other governmental entity in or
upon the public ways; and
C. Facilities are deemed by the city as abandoned due to failure to cure of the
grantee, franchisee, or lessee.
However, in the event such relocation is required due to emergency repairs deemed
necessary by the city, such relocation or moving shall be accomplished within 24
hours. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
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20.10.140 Building moving.
Whenever any person shall have obtained permission from the city to use any street
or public way for the purpose of moving any building, a grantee, franchisee, or
lessee, upon seven calendar days’ written notice from the city, shall raise or remove,
at the expense of the person desiring to move the building, any of the grantee,
franchisee, or lessee’s utility wires, poles, or facilities which may obstruct the moving
of such building; provided, that the person desiring to move the building shall comply
with all requirements of the city for the moving of buildings. (Ord. 5271 § 1, 1999;
Ord. 5034 § 1, 1998.)
20.10.150 Removal of unauthorized facilities.
Within 30 days following written notice from the city, any commercial utility,
telecommunications carrier, operator, lessee or other person who owns, controls, or
maintains any unauthorized cable or telecommunications system, facility, or related
appurtenances within the public ways or upon property of the city shall, at its own
expense, remove such facilities or appurtenances from the public ways of the city. A
utility, cable or telecommunications system or facility is unauthorized and subject to
removal in the following circumstances:
A. Upon expiration or termination of the grantee, lessee, or franchisee’s public way
agreement, franchise, or lease;
B. Upon leaving any system or facility within the public ways or upon property of the
city, any such property of a grantee, franchisee, or lessee shall be deemed
abandoned if left in place 90 days after expiration or termination of a public way
agreement, franchise, or lease;
C. If the system or facility was constructed or installed without the prior approval of a
public way agreement, franchise or lease;
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D. If the system or facility was constructed or installed without the prior issuance of
a required construction permit;
E. If the system or facility was constructed or installed at a location not permitted by
a public way agreement, franchise or lease.
Provided, however, that the city may, in its sole discretion, allow a grantee,
franchisee, or lessee or other such persons who may own, control, use, or maintain
commercial utility, cable or telecommunications facilities within the public ways of the
city or upon city property to abandon such facilities in place. No facilities of any type
may be abandoned in place without the express written consent of the city. Any plan
for abandonment or removal of a grantee’s, franchisee’s, or lessee’s facilities must be
first approved by the public works director, and all necessary permits must be
obtained prior to such work. Upon permanent abandonment in place of the facilities
such facilities shall become the city’s property, and such persons shall submit to the
city an instrument in writing, to be approved by the city attorney, transferring to the
city the ownership of such property. The provisions of this section shall survive the
expiration, revocation, or termination of a public way agreement, franchise, or lease
granted under this title. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.160 Emergency removal or relocation of facilities.
The city retains the right and privilege to cut or move any commercial utility, cable or
telecommunications facilities located within the public ways of the city and upon city
property, as the city may determine to be necessary, appropriate or useful in
response to any public health or safety emergency. The city shall not be liable to any
utility, cable operator, telecommunications carrier, operator, or provider, or any other
party for any direct, indirect, or any other such damages suffered by any person or
entity of any type as a direct or indirect result of the city’s actions under this section.
(Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
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20.10.170 Damage to facilities.
Unless directly and proximately caused by the willful, intentional, or malicious acts by
the city, the city shall not be liable for any damage to or loss of any commercial utility,
cable, or telecommunications facilities upon city property or within the public ways of
the city as a result of or in connection with any public works, public improvements,
construction, excavation, grading, filling, or work of any kind on such city property or
within the public ways by or on behalf of the city. (Ord. 5271 § 1, 1999; Ord. 5034
§ 1, 1998.)
20.10.180 Restoration of public ways, other ways, city property and public/private
utility property.
A. When a grantee, franchisee, lessee, or any person acting on behalf such
persons, does any work in or affecting any public ways, other ways, city property, or
public/private utilities located in the public ways, it shall, at its own expense, promptly
remove any obstructions therefrom and restore such ways or property to as good a
condition as existed before the work was undertaken, unless otherwise directed by
the city.
B. If weather or other conditions do not permit the complete restoration required by
this section, or other city codes, regulations or policies, the grantee, franchisee, or
lessee shall temporarily restore the affected public ways, other ways, or property.
Such temporary restoration shall be at the grantee’s, franchisee’s, or lessee’s sole
expense and the grantee, franchisee, or lessee shall promptly undertake and
complete the required permanent restoration when the weather or other conditions
no longer prevent such permanent restoration.
C. A grantee, franchisee, lessee or other person acting on behalf of such persons
shall use suitable barricades, flags, flagmen, lights, flares, and other measures as
required for the safety of all members of the general public and to prevent injury or
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damage to any person, vehicle, or property by reason of such work in or affecting
such public ways, other ways, or property.
D. The public works director shall be responsible for inspection and final approval of
the condition of the public ways, other ways, and city property following any
construction and restoration activities therein. Further, the provisions of this section
shall survive the expiration, revocation, or termination of a public way agreement,
franchise, lease, or other agreement granted pursuant to this title or Chapter 12.24
ACC. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.190 Facilities maps.
Each grantee, franchisee, and lessee shall provide the city with a map or maps
accurately reflecting the horizontal and vertical location and configuration of all of
their commercial utility or telecommunications facilities within the public ways and
upon city property. Each grantee, franchisee, and lessee shall provide the city with
updated maps annually or upon written request by the city. (Ord. 5271 § 1, 1999;
Ord. 5034 § 1, 1998.)
20.10.200 Duty to provide information.
Within 10 working days of a written request from the city, each grantee, franchisee, or
lessee shall furnish the city with information sufficient to demonstrate:
A. That the grantee, franchisee, or lessee has complied with all requirements of this
title; and
B. That all sales, utility and/or telecommunications or other taxes or assessments
due the city in connection with the commercial utility, cable, or telecommunications
services and facilities provided by the grantee, franchisee, or lessee have been
properly collected and paid by the grantee, franchisee, or lessee.
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All books, records, maps and other documents, maintained by the grantee,
franchisee, or lessee with respect to its utility or telecommunications facilities within
the public ways and upon city property shall be made available for inspection by the
city at reasonable times and intervals; provided, however, that nothing in this section
shall be construed to require a grantee, franchisee, or lessee to violate state or
federal law regarding subscriber privacy, nor shall this section be construed to
require a grantee, franchisee, or lessee to disclose proprietary or confidential
information without adequate safeguards for its confidential or proprietary nature.
Such information shall be held in strict confidence, as allowed by law, by the city and
used only for the purpose stated herein. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.210 Leased capacity.
A grantee, franchisee, or lessee shall have the right to offer or provide capacity or
bandwidth to its customers consistent with such permit, franchise, or lease; provided:
A. The grantee, franchisee, or lessee shall furnish the city with a copy of any such
lease or agreement between the grantee, franchisee, or lessee and the customer or
sub-lessee or provide to the city’s finance director sufficient information to determine
whether the lessee or customer is subject to city taxes or assessments; and
B. The sub-lessee fulfills all requirements of Chapters 3.84 and 3.88 ACC regarding
the reporting of all revenues subject to city taxes and assessments; and
C. Lessee must comply with the city’s registration requirements in Chapter 5.84
ACC. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.220 Insurance.
Unless otherwise provided in a public way agreement, franchise, or lease agreement,
each grantee, franchisee, or lessee shall, as a condition of the permit or public way
agreements, franchises, or leases, secure, and maintain the following liability
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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
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utility or telecommunications facilities pursuant to said public way agreement,
franchise, or lease. Any deductibles or self-insured retentions must be declared to
and approved in writing by the city prior to the franchise becoming effective. Payment
of deductibles and self-insured retentions shall be the sole responsibility of the
grantee, franchisee, or lessee. The insurance certificate required by this section shall
contain a clause stating that coverage shall apply separately to each insured against
whom claim is made or suit is brought, except with respect to the limits of the
insurer’s liability. The grantee, franchisee, or lessee’s insurance shall be primary
insurance as respects the city, its officers, officials, employees, agents, consultants,
and volunteers. Any insurance maintained by the city, its officers, officials,
employees, consultants, agents, and volunteers shall be in excess of the grantee,
franchisee, or lessee’s insurance and shall not contribute with it;
F. In addition to the coverage requirements set forth in this section, each such
insurance policy shall contain the following endorsement:
It is hereby understood and agreed that this policy may not be canceled nor
the intention not to renew be stated until 60 days after receipt by the City, by
registered mail, (return receipt requested) of a written notice addressed to the
City Clerk of such intent to cancel or not to renew.
G. Within 30 days after receipt by the city of said notice, and in no event later than
15 days prior to said cancellation or intent not to renew, the grantee, franchisee, or
lessee shall obtain and furnish to the city replacement insurance policies meeting the
requirements of this section. Any lapse in the required insurance coverage shall be
cause for termination of any public way agreement, franchise, or lease. (Ord. 5271
§ 1, 1999; Ord. 5034 § 1, 1998.)
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20.10.230 General indemnification.
No public way agreement, franchise, or lease shall be deemed to be granted under
this title unless it includes an indemnity clause substantially conforming to the
following:
The grantee, franchisee, or lessee hereby releases, covenants not to bring
suit and agrees to indemnify, defend and hold harmless the City, its elected
and appointed officials, officers, employees, agents, representatives,
engineers, and consultants from any and all claims, costs, judgments,
awards, or liability to any person, including claims by the grantee, franchisee,
or lessee’s own employees to which the grantee, franchisee, or lessee might
otherwise be immune under RCW Title 51, arising from injury or death of any
person or damage to property of which the negligent acts or omissions of the
grantee, franchisee, or lessee, its agents, servants, officers, or employees in
performing under this Public Way Agreement, franchise, or lease are the
proximate cause. The grantee, franchisee, or lessee further releases,
covenants not to bring suit and agrees to indemnify, defend and hold
harmless the City, its elected and appointed officials, officers, employees,
agents, representatives, engineers, and consultants from any and all claims,
costs, judgments, awards, or liability to any person including claims by the
grantee, franchisee, or lessee’s own employees, including those claims to
which the grantee, franchisee, or lessee might otherwise have immunity
under RCW Title 51, arising against the City solely by virtue of the City’s
ownership or control of the rights-of-way or other public properties, by virtue
of the grantee, franchisee, or lessee’s exercise of the rights granted herein,
or by virtue of the City’s permitting the grantee, franchisee, or lessee’s use of
the City’s rights-of-way or other public property, based upon the City’s
inspection or lack of inspection of work performed by the grantee, franchisee,
or lessee, its agents and servants, officers or employees in connection with
work authorized on the City’s property or property over which the City has
control, pursuant to this Public Way Agreement, franchise, or lease, or
pursuant to any other permit or approval issued in connection with this Public
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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
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constitutes the grantee, franchisee, or lessee’s waiver of immunity under
RCW Title 51, solely for the purposes of this indemnification. This waiver has
been mutually negotiated by the parties.
The provisions of this section shall survive the expiration or termination of
any Public Way Agreement, Franchise, or Lease agreement.
Notwithstanding any other provisions of this Title, the grantee, franchisee, or
lessee assumes the risk of damage to its facilities located in the City’s public
ways, rights-of-way, easements, and property from activities conducted by
the City, its officers, agents, employees, and contractors. The grantee,
franchisee, or lessee releases and waives any and all claims against the City,
its officers, agents, employees, or contractors for damage to or destruction of
the grantee, franchisee, or lessee’s facilities caused by or arising out of
activities conducted by the city, its officers, agents, employees, and
contractors, in the public ways, rights-of-way, easements, or property subject
to this Public Way Agreement, Franchise, or Lease, except to the extent any
such damage or destruction is caused by or arises from the sole negligence
or any willful or malicious action on the part of the City, its officers, agents,
employees, or contractors. The grantee, franchisee, or lessee further agrees
to indemnify, hold harmless and defend the City against any claims for
damages, including, but not limited to, business interruption damages and
lost profits, brought by or under users of the grantee, franchisee, or lessee’s
facilities as the result of any interruption of service due to damage or
destruction of the user’s facilities caused by or arising out of activities
conducted by the City, its officers, agents, employees, or contractors, except
to the extent any such damage or destruction is caused by or arises from the
sole negligence or any willful or malicious actions on the part of the City, its
officers, agents, employees, or contractors.
(Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
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20.10.240 Performance and construction surety.
Before a public way agreement, franchise, or lease granted pursuant to this title is
effective, and as necessary thereafter, the grantee, franchisee, or lessee shall
provide and deposit such moneys, bonds, letters of credit, or other instruments in
form and substance acceptable to the city as may be required by this title or by an
applicable public way agreement, franchise, or lease agreement. All performance
bonds for grantees, franchisees, and lessees shall satisfy the minimum standards
established by the public works department at the time of the grantees’, franchisees’,
and lessees’ application. (Construction bond section(s) of Standard Specifications for
Road, Bridge, and Municipal Construction for Washington State Department of
Transportation and American Public Works Association).
Construction bonds sureties shall be provided as required by Washington State laws.
(Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.250 Security options.
In order to secure the conditions agreed to in any agreement negotiated under this
title, for the full term of such agreements, each grantee, franchisee, or lessee shall
establish a permanent security bond, assignment of funds, or an unconditional letter
of credit from a Washington State bank with the city by either providing the city
engineer a standing warranty bond or by depositing the amount of funds as follows in
a Washington state bank utilizing the city’s standard assignment form, or by provision
of the letter of credit. The amount of security shall be 10 percent of the city engineer’s
estimate of the performance bond amount (ACC 20.10.260) based upon the total
scope of work proposed within the public ways, or $50,000, whichever is less, or
such lesser amount determined by the public works director to be sufficient. The
security shall be maintained at the sole expense of the grantee, franchisee, or lessee
so long as any of the grantee, franchisee, or lessee’s utility, cable or
telecommunications facilities are located within the public ways of the city or upon
city property and until released by the city. In the event a security involves a bank,
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the grantee, franchisee, or lessee is responsible for negotiating any interest that may
accrue to the account during the duration of effect. Should the agreement being
secured be terminated, the finance director will coordinate with other departments
and determine if any portion of the security may be released by the city.
A. The security shall secure the full and complete performance of the requirements
of this title, including any costs, expenses, damages, or loss the city pays or incurs,
including civil penalties, because of any failure attributable to the grantee, franchisee,
or lessee to comply with any applicable legal requirements including, but not limited
to, the codes, ordinances, rules, regulations, or permits of the city.
B. Before the city executes on the security bond or any sums are withdrawn from
the security fund, the city shall give written notice to the grantee, franchisee, or
lessee:
1. Describing the act, default or failure to be remedied, or the damages, costs or
expenses which the city has incurred by reason of grantee, franchisee, or
lessee’s act, default, or failure;
2. Providing a reasonable opportunity for grantee, franchisee, or lessee to first
remedy the existing or ongoing default or failure, if applicable;
3. Providing a reasonable opportunity for grantee, franchisee, or lessee to pay
any moneys due the city before the city executes the bond or withdraws the
amount thereof from the security fund, if applicable; and
4. That the grantee, franchisee, or lessee will be given an opportunity to review
the act, default or failure described in the notice with the city or designee.
C. Grantees, franchisees and lessees shall replenish the security bond or fund
within 14 calendar days after written notice from the city that there is a deficiency in
the amount of the bond or fund. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
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20.10.260 Performance bond.
All performance bonds provided in accordance with this title shall comply with the
minimum standards in Chapter 12.24 ACC. (Ord. 5271 § 1, 1999; Ord. 5034 § 1,
1998.)
20.10.270 Coordination of construction activities.
ACC 20.10.100 notwithstanding, all grantees, franchisees and lessees, are required
to cooperate with the city and with each other.
A. By November 15th of each year, grantees, franchisees and lessees shall provide
the city with a schedule of their proposed construction activities which may affect the
public ways in any manner.
B. Each grantee, franchisee and lessee shall meet with the city, other grantees and
franchisees and users of the public ways annually or as determined by the city to
schedule and coordinate construction which may affect the public ways in any
manner.
C. All construction locations, activities and schedules shall be coordinated, as
required by the city public works director, to minimize public inconvenience,
disruption or damages.
D. Each grantee, franchisee and lessee shall be available to city staff employees of
a city department having jurisdiction over their respective activities 24 hours a day,
seven days a week, regarding problems or complaints resulting from the attachment,
installation, operation, use, maintenance, or removal of commercial utility or
telecommunications system facilities. The city must be able to contact by telephone
the network control center of each grantee, franchisee and lessee. A telephone
number at which an employee can be reached 24 hours a day, seven days a week
regarding such problems or complaints must be provided by each grantee, franchisee
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and lessee before any public way agreement, franchise, or lease is effective. (Ord.
5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.280 Assignments or transfers of public way agreements, franchises, or
leases.
The assignment or transfer of any business registration, public way agreement,
franchise or lease subject to this title may not, directly or indirectly, be transferred,
assigned or disposed of by sale, lease, merger, consolidation or other act of the
grantee, franchisee, or lessee, by operation of law or otherwise, without the prior
written consent of the city, which consent shall not be unreasonably withheld or
delayed, except as expressed by ordinance and then only on such reasonable
conditions as may be prescribed therein.
A. No public way agreement, franchise, or lease, subject to this title, shall be
assigned or transferred before construction of such systems has been completed to
the city’s satisfaction without prior written consent of the city, which consent shall not
be unreasonably withheld or delayed, except as expressed by ordinance and then
only on such reasonable conditions as may be prescribed therein.
B. The grantee, franchisee, or lessee and the proposed assignee or transferee of
the public way agreement, franchise, or lease shall provide and certify the following
information to the city not less than 90 calendar days prior to the proposed date of
transfer:
1. Complete information setting forth the nature, terms and conditions of the
proposed transfer or assignment relating to the public way agreement, franchise
or lease;
2. All information required by a public way agreement, franchise, or lease
applicant pursuant to this title with respect to the proposed transferee or
assignee;
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3. Any other information reasonably required by the city; and
4. A nonrefundable application fee in the amount established in the city’s fee
schedule.
C. No transfer shall be approved unless the assignee or transferee meets the
requirements contained in ACC 20.04.040(A) and (I) and can comply with the
requirements of the public way agreement, franchise, or lease.
D. Unless otherwise provided in a public way agreement, franchise, or lease
agreement, the grantee, franchisee, or lessee shall reimburse the city for all direct
and indirect costs and expenses reasonably incurred by the city in considering a
request to transfer or assign a public way agreement, franchise, or lease. No
approval shall be deemed approved until all such costs and expenses have been
paid.
E. Any transfer or assignment of a public way agreement, franchise, or lease
without prior written approval of the city under this section or pursuant to a public way
agreement, franchise, or lease agreement shall be void and is cause for termination
of the public way agreement, franchise, or lease. (Ord. 6718 § 5 (Exh. E), 2019; Ord.
5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.290 Transactions affecting control of public way agreements, franchises,
or leases.
Any transactions which singularly or collectively result in a change of 50 percent or
more of the ownership or working control of any grantee, franchisee, or lessee of the
ownership or working control of a utility, cable, or telecommunications system, of the
ownership or working control of affiliated entities having ownership or working control
of the grantee, franchisee, or lessee or of a telecommunications system, or of control
of the capacity or bandwidth of the grantee, franchisee, or lessee’s utility, cable, or
telecommunications system, facilities or substantial parts thereof, shall be considered
an assignment or transfer requiring city approval pursuant to ACC 20.10.280.
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Transactions between affiliated entities are not exempt from the required city
approval. A grantee, franchisee, or lessee shall promptly notify the city in writing prior
to any proposed change in, or transfer of, or acquisition by any other party of control
of a grantee’s, franchisee’s, or lessee’s company. Every change, transfer, or
acquisition of control of a grantee’s, franchisee’s, or lessee’s company shall cause a
review of the proposed transfer. In the event that the city council adopts a resolution
or other appropriate order opposing such change, transfer or acquisition of control
has been effected, the city may terminate the public way agreement, franchise, or
lease. City approval shall not be required for mortgaging purposes or if said transfer
is from a grantee, franchisee, or lessee to another person or entity controlling,
controlled by, or under common control with a grantee, franchisee, or lessee. (Ord.
5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.300 Revocation or termination of public way agreements, franchises, or
leases.
A public way agreement, franchise, or lease granted by the city to use or occupy
public ways of the city or city property may be terminated or revoked for the following
reasons:
A. Construction or operation in the city or in the public ways of the city or upon city
property without a public way agreement, franchise, or lease;
B. Construction or operation at an unauthorized location;
C. Unauthorized substantial transfer of control of a grantee, franchisee, or lessee;
D. Unauthorized assignment of a public way agreement, franchise, or lease;
E. Unauthorized sale, assignment or transfer of a grantee’s, franchisee’s, or
lessee’s public way agreement, franchise, lease, assets, or a substantial interest
therein;
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F. Misrepresentation or lack of candor by or on behalf of a grantee, franchisee, or
lessee in any application or written or oral statement upon which the city relies in
making the decision to approve, review or amend any public way agreement,
franchise, or lease pursuant to this title;
G. Abandonment of cable or telecommunications facilities in the public ways or
upon city property;
H. Failure to relocate or remove facilities as required in this title;
I. Failure to pay taxes, compensation, fees, assessments, or costs when and as due
to the city;
J. Insolvency or bankruptcy of the grantee, franchisee, or lessee;
K. Violation of any material provision of this title; and
L. Violation of the material terms of a public way agreement, franchise, or lease
agreement. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.310 Notice and duty to cure.
In the event that the city believes that grounds exist for termination or revocation of a
public way agreement, franchise, or lease, the grantee, franchisee, or lessee shall be
given written notice of the apparent violation or noncompliance, providing a short and
concise statement of the nature and general facts of the violation or noncompliance,
and providing the grantee, franchisee, or lessee a reasonable period of time not
exceeding 30 days to correct the violation or furnish evidence as to:
A. That corrective action has been, or is being actively and expeditiously pursued, to
remedy the violation or noncompliance; or
B. That rebuts the alleged violation or noncompliance; or
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C. That it would be in the public interest to impose some penalty or sanction less
than revocation. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.320 Public hearing.
In the event that a grantee, franchisee, or lessee fails to respond to the notice
described in ACC 20.10.310 pursuant to the procedures set forth therein, or in the
event that the alleged violation is not remedied within the prescribed period of time
after notification of the alleged violation pursuant to ACC 20.10.310, the city council
shall schedule a public hearing to investigate the violation. Such public hearing shall
be held at the next regularly scheduled hearing of the city council which is scheduled
at a time which is no less than five business days therefrom. The city shall notify the
grantee, franchisee, or lessee of the time and place of such public hearing and
provide the grantee, franchisee, or lessee with an opportunity to be heard. (Ord. 5271
§ 1, 1999; Ord. 5034 § 1, 1998.)
20.10.330 Standards for revocation or lesser sanctions.
If the city council determines that a grantee, franchisee, or lessee willfully violated or
failed to comply with any of the provisions of this title or any provision of a public way
agreement, franchise, or lease granted under this title, or through willful misconduct
or gross negligence failed to heed or comply with any notice given the grantee,
franchisee, or lessee by the city under the provisions of this title, then the grantee,
franchisee, or lessee shall, at the election of the city council, forfeit all rights
conferred under the public way agreement, franchise, or lease, and the public works
agreement, franchise, or lease may be revoked, terminated, or annulled by the city
council. The city council may elect, in lieu of revocation, termination, or annulment,
and without any prejudice to any of its other legal rights and remedies, to pursue
other remedies, including obtaining an order from the superior court having
jurisdiction compelling the grantee, franchisee, or lessee to comply with the
provisions of this title and any public way agreement, franchise, or lease granted
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hereunder, and to recover reasonable and documented damages and costs incurred
by the city by reason of the grantee, franchisee, or lessee’s failure to comply. The city
council shall utilize, but is not limited to, the following factors in analyzing the nature,
circumstances, extent, and gravity of any violation(s) in making its determination
under this section:
A. Whether the misconduct was egregious;
B. Whether substantial harm resulted;
C. Whether the violation was intentional;
D. Whether there is a history of prior violations of the same or other requirements;
E. Whether there is a history of overall compliance;
F. Whether the violation was voluntarily disclosed, admitted or cured. (Ord. 5271
§ 1, 1999; Ord. 5034 § 1, 1998.)
20.10.340 Civil penalties.
A. Any person, and the officers, directors, managing agents, or partners of any
corporation, firm, partnership or other organization or business violating or failing to
comply with any of the provisions of this title shall be subject to a penalty in an
amount not less than $100.00 nor more than $1,000 per day for each violation from
the date of each violation until compliance is achieved.
B. In addition to any penalty which may be imposed by the city council, any person
violating or failing to comply with any of the provisions of this title shall be liable for all
damage to public or private property arising from such violation, including the cost of
restoring the affected area to its condition prior to the violation.
C. The violator may show the city council as full or partial mitigation:
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1. That the violation giving rise to the action was caused by the willful act, or
neglect, or abuse of another; or
2. That correction of the violation was commenced promptly upon receipt of the
notice thereof, but that full compliance within the time specified was prevented by
inability to obtain necessary materials or labor, inability to gain access to the
subject structure, or other condition or circumstance beyond the control of the
violator.
D. The penalties which may be imposed by this section shall be collected by civil
action brought by the city if not paid timely after penalty assessment by the city
council. The public works director or designee shall notify the finance director in
writing of the name of any person subject to the penalty, and the finance director
shall take appropriate action to collect the penalty. (Ord. 5271 § 1, 1999; Ord. 5034
§ 1, 1998.)
20.10.350 Enforcement.
Subject to applicable federal and state law, in the event the city council, after such
public hearing, determines that a grantee, franchisee, or lessee is in default of any
provision of a public way agreement, franchise, or lease, it may:
A. Require foreclosure on all or any part of any security provided under this title, or
a specific public way agreement, franchise, or lease, if any, including without
limitation, any bonds or other surety; provided, however, the foreclosure shall only be
in such a manner and in such amount as the city reasonably determines is necessary
to remedy the default;
B. Call for commencement of an action at law for monetary damages or other
equitable relief;
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C. After the expiration of said 30-day period to cure violation (ACC 20.10.310), the
city may be directed to act to remedy the violation and charge the reasonable and
documented costs and expenses of such action to the grantee, franchisee, or lessee;
D. In the case of a material breach of the public way agreement, franchise, or lease,
declare the public way agreement, franchise, or lease to be terminated or revoked;
E. Seek specific performance of any provision, which reasonably lends itself to such
remedy, as an alternative to damages;
F. Grantees, franchisees, or lessees shall not be relieved of any obligations to
comply promptly with any provision of a public way agreement, franchise, or lease by
reason of any failure of the city to promptly enforce compliance;
G. In addition to other remedies provided herein, if a grantee, franchisee, or lessee
is not in compliance with requirements of this title, and if a good faith dispute does
not exist concerning such compliance, the city may place a moratorium on issuance
of any pending permits until compliance is achieved;
H. A grantee, franchisee, or lessee shall not be held in default or noncompliance
with the provisions of a public way agreement, franchise, or lease nor suffer any
enforcement or penalty relating thereto, where such noncompliance or alleged
defaults are caused by strikes, acts of God, power outages, or other events
reasonably beyond its ability to control;
I. Assess civil penalties pursuant to ACC 20.10.340;
J. The city may seek legal or equitable relief to enjoin any acts or practices and
abate any condition which constitutes or will constitute a violation of the applicable
provisions of this title when civil penalties are inadequate to effect compliance;
K. In addition to the penalties set forth in this section, violation of the terms of this
title may also result in the revocation or termination of any public way agreement,
franchise, approval, lease, or permit issued or granted hereunder, as set forth in ACC
20.10.300 through 20.10.340. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
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20.10.360 Other remedies.
Nothing in this title shall be construed as limiting any judicial remedies that the city
may have, at law or in equity, for enforcement of this title. (Ord. 5271 § 1, 1999; Ord.
5034 § 1, 1998.)
20.10.370 Venue of any court action.
All public way agreements, franchises, and leases subject to this title shall be
governed and construed by and in accordance with the laws of the state of
Washington. In the event that suit is brought by a party to a public way agreement,
franchise, or lease subject to this title, the parties agree that jurisdiction of such
action shall be vested exclusively in the King County Superior Court for the State of
Washington, or in the United States District Court for the Western District of
Washington located in Seattle, Washington. (Ord. 5271 § 1, 1999; Ord. 5034 § 1,
1998.)
20.10.380 Action by the FCC.
In the event the FCC promulgates more stringent notice requirements, technical
standards, consumer protection or consumer services requirements than are
contained in agreements or franchises subject to this title, those more stringent
requirements shall prevail. The city shall give reasonable written notice when, in their
determination, that has occurred. Grantees, franchisees, and lessees shall retain and
not waive any or all rights and privileges as afforded either under existing contracts or
agreements or pursuant to federal law or FCC regulations to complain and/or appeal
such a determination. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
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20.10.390 Incorporation by reference.
The provisions of this chapter shall be incorporated by reference in any public way
agreement, franchise, or lease approved hereunder. The provisions of this chapter
shall be incorporated by reference in any proposal submitted and accepted by the
city in the applicable public way agreement, franchise, or lease. However, in the
event of any conflict between the proposal, this chapter, and the public way
agreement, franchise, or lease, the public way agreement, franchise, or lease shall
be the prevailing document. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.400 Notice of entry on private property.
If directed by the city, a grantee, franchisee, or lessee shall, at least 24 hours prior to
entering private property or streets or public easements adjacent to or on such
private property to perform new construction or reconstruction, provide a notice
indicating the nature and location of the work to be performed. The notice shall be
physically posted, at no expense to the city or private property owner or resident,
upon the affected property by the grantee, franchisee, or lessee. A door hanger may
be used to comply with the notice and posting requirements of this section. A
grantee, franchisee, or lessee shall make a good faith effort to comply with the
property owner/resident’s preferences, if any, on location or placement of
underground installations (excluding aerial cable lines utilizing existing poles and
existing cable paths), consistent with sound engineering practices; provided,
however, that nothing in this title shall permit a grantee or franchisee to unlawfully
enter or construct improvements upon the property or premises of another. (Ord.
5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.410 Safety requirements.
A grantee, franchisee, or lessee, in accordance with applicable federal, state, and
local safety requirements shall, at all times, employ ordinary care and shall install and
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maintain and use commonly accepted methods and devices for preventing failures
and accidents which are likely to cause damage, injury, or nuisance to the public
and/or workers. All structures and all lines, equipment and connections in, over,
under, and upon the streets, sidewalks, alleys, and public ways or places of a permit,
public way agreement, franchise, or lease area, wherever situated or located, shall at
all times be kept and maintained in a safe, suitable condition, and in good order and
repair. The city reserves the general right to see that the telecommunications
systems of a grantee, franchisee, or lessee are constructed and maintained in a safe
condition. If a violation of the National Electrical Safety Code or other applicable
regulation is found to exist by the city, the city will, after discussions with a grantee,
franchisee, or lessee, establish a reasonable time frame for a grantee, franchisee, or
lessee to make necessary repairs. If the repairs are not made within the established
time frame, the city may make the repairs itself or have them made and collect all
reasonable costs thereof from a grantee, franchisee, or lessee. (Ord. 5271 § 1, 1999;
Ord. 5034 § 1, 1998.)
20.10.420 Most favored community.
In the event that a grantee, franchisee, or lessee enters into any agreement,
franchise or other understanding with any other city, town or county in the state of
Washington which provides terms or conditions more favorable to the city, town or
county than those provided in its agreement with the city, such as, but not limited to,
free or reduced fee hookups, access or service, the city shall be entitled to request at
the city’s option, and the grantee, franchisee, or lessee in question shall be required
to execute, an amendment to its agreement which incorporates the more favorable
terms and conditions at the grantee’s, franchisee’s, or lessee’s lowest comparable
rate applicable to any government body or municipality in the state of Washington.
(See ACC 20.06.180(N), Best Rates). (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
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20.10.430 Compliance with zoning standards.
All applications for leases, franchises, and public way agreements under this title will
comply with the city zoning regulations and siting standards in ACC Title 18. (Ord.
5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.440 Unfunded mandate.
The city intends that no federal or state requirement to promote the deregulation of
utilities or telecommunications shall become an unfunded mandate requiring funding
support from the city over and above its routine operations and maintenance budget
to maintain the public ways. Therefore, except as expressly provided to the contrary,
all costs incurred by a grantee, franchisee, or lessee in complying with the terms and
conditions of any agreement subject to this title or any applicable laws, ordinances,
codes, rules, regulations and/or orders or any action thereunder shall be the sole
responsibility of the respective grantee, franchisee, or lessee and shall not be the
responsibility of or charged to the city. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.450 Care of trees along streets.
Upon prior written approval of the city and in accordance with city ordinances, any
grantee, franchisee, or lessee shall have the authority to trim trees upon and
overhanging streets, public ways and places in the franchise area so as to prevent
the branches of such trees from coming in physical contact with the facilities of the
respective grantee, franchisee, or lessee. The grantee, franchisee, or lessee shall be
responsible for debris removal from such activities. If such debris is not removed
within 24 hours, the city may, at its sole discretion, remove such debris and charge
the grantee, franchisee, or lessee for the cost thereof. This section does not, in any
instance, grant automatic authority to clear vegetation for purposes of providing a
clear path for radio signals. Any such general vegetation clearing will require a city
land clearing permit. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
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20.10.460 Use of utility poles and facilities of others.
Grantees and franchisees may seek to contract with the city or any appropriate board
or agency thereof or with the holder or owner of any utility franchise in the city for the
use, rental or lease of its or their poles and other structures and facilities for the
purpose of extending, carrying or laying telecommunications facilities, electronic
conductors and other facilities and appurtenances necessary or desirable in
conjunction with the operation of its telecommunications system. The city agrees that
any public utility owning or controlling such poles or other structures or facilities may,
without amendment to its franchise, allow, and is encouraged to allow, grantees and
franchisees to make such use thereof pursuant to any agreement reached between
the affected parties. City-owned poles are limited to street light and traffic signal
poles which generally are not intended for use by others. The city reserves the right
to determine on a case-by-case basis that particular circumstances require that a
certain city-owned pole is not appropriate for use. No grantee or franchisee will utilize
any city-owned poles prior to approval by the city engineer. Any compensation for
uses of city-owned poles will be based upon the prevailing market rates for similar
uses in the region. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.470 Use of poles and facilities by city.
With respect to poles and trenches which are facilities and which are (1) wholly
owned by a franchisee or grantee, and (2) within the franchise area, the city, subject
to franchisee’s or grantee’s prior written consent, may install and maintain city-owned
overhead facilities upon such poles, and conduits in open trenches, for police, fire,
illumination, and other noncommercial communications purposes, subject to the
following:
A. Such installation and maintenance shall be completed at the city’s expense;
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B. The franchisee or grantee shall have no obligation under the indemnification
provisions of this franchise or public way agreement for the installation or
maintenance of such city-owned facilities or conduits;
C. Nothing herein shall require the franchisee or grantee to bear any cost or
expense in connection with such installation and maintenance of city-owned facilities
or conduits, nor shall such city installation delay or adversely effect franchisee’s or
grantee’s construction schedule;
D. In no case shall the city attach to or come into contact with grantee’s or
franchisee’s equipment. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.10.480 Administration.
The public works director or designee shall administer all public way agreements and
franchises subject to this title, and the finance director or designee shall administer all
leases subject to this title. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
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Chapter 20.12
OPEN VIDEO SYSTEMS
(Reserved)REPEALED
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Chapter 20.14
SMALL WIRELESS FACILITIES WITHIN THE PUBLIC RIGHTS-OF-WAY
Sections:
20.14.010 Overview.
20.14.020 Application for small wireless facilities permits.
20.14.030 Implementation – Small wireless facilities permits.
20.14.040 Small wireless facility permit review process.
20.14.050 Deviations.
20.14.060 Small wireless facility approvals and processes.
20.14.070 Additional review procedures.
20.14.080 Compliance with federal processing limitations.
20.14.090 Design standards.
20.14.100 Noninterference.
20.14.110 Facility removal.
20.14.010 Overview.
A. Service providers or any other persons or entities who seek to use the public
right-of-way for small wireless facilities deployment to provide personal wireless
service, data transmission, or other related services, must have a valid franchise
under Chapter 20.0620.04 ACC to use the right-of-public way and a small wireless
facility permit to deploy that technology at each proposed location. Entities with
franchises who wish to use a small wireless facility deployment to upgrade or expand
their existing services will use the processes set forth in this chapter to obtain
approval of specific installations. An entity without a franchise will apply for a
franchise as well as a small wireless facility permit for its initial deployment, and the
applications will be processed concurrently.
B. Nothing in this chapter revises or diminishes the rights and obligations of an
existing franchise.
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C. Nothing herein shall exempt Ssmall wireless facilities deployment elements that
requirefrom SEPA review may use these processes only in conjunction with SEPA
reviewcompliance.
D. For purposes of this chapter, “small wireless facilities” are defined as facilities
that meet the following conditions:
1. The facilities:
a. Are mounted on structures 50 feet or less in height, including their
antennas as defined in 47 CFR 1.1320(d); or
b. Are mounted on structures no more than 10 percent taller than other
adjacent structures; or
c. Do not extend existing structures on which they are located to a height of
more than 50 feet or by more than 10 percent, whichever is greater; and
2. Each antenna associated with the deployment, excluding associated antenna
equipment (as defined in the definition of antenna in 47 CFR 1.1320(d)), is no
more than three cubic feet in volume; and
3. All other wireless equipment associated with the structure (including the
wireless equipment associated with the antenna and any preexisting associated
equipment on the structure) is no more than 28 cubic feet in volume; and
4. The facilities do not require antenna structure registration under Code of
Federal Regulations, Title 47, Part 17; and
5. The facilities are not located on Tribal lands, as defined under 36 CFR
800.16(x); and
6. The facilities do not result in human exposure to radio frequency radiation in
excess of the applicable safety standards specified in 47 CFR 1.1307(b); and
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7. The facilities are currently located or are proposed to be located within the
public right-of-way. For facilities currently located or proposed to be located on
private property, please see Chapter 18.31 ACC. For facilities currently located or
proposed to be located on public property or facilities, please see Chapter 20.08
ACC. (Ord. 6707 § 1 (Exh. A), 2018.)
20.14.020 Application for small wireless facilities permits.
For locations in the public right-of-way, the director of public works (“director”) is
charged with administration of small wireless facilities deployments and other small
wireless facilities permit review processes for use of public right-of-way established
under this chapter.
Unless previously provided with an application for a franchise, the following
information will be provided by all applicants seeking to use small wireless facilities
deployment:
A. Specific locational information, including GPS coordinates of all proposed
facilities; and
B. Specific design information and plans, addressing poles or other support
structures, attachments, conduit, and any ground-mounted equipment; and
C. A narrative addressing how the proposed plans are consistent with the franchise
exhibit(s), if applicable, or otherwise meet the design requirements of this chapter,
and otherwise as required within the ACC; and
D. A concealment plan demonstrating how the proposed small wireless facilities
comply with the Ccity of Auburn engineering design and construction standards; and
E. Provision of proof of Federal Communications Commission and other regulatory
approvals required to provide the service(s) or use the technologies sought to be
installed; and
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F. Provision of proof that the proposed facilities will not interfere with the city’s
automated metering infrastructure (AMI), telemetry (SCADA), automated light meter
facilities, or other city communication facilities; and
G. Provision of proof from pole or structure owners that the additional load of small
wireless facilities can be accommodated by the poles or structures or if the city is the
pole or structure owner, proof of compliance with Chapter 20.08 ACC; and
H. Any other information determined by the director to be necessary for processing
the application.
Permits issued under this chapter will not supplant any other permits required under
federal or stateapplicable law, or the Auburn City Code, including, but not limited to,
Chapters 12.24 and 13.32A ACC. (Ord. 6707 § 1 (Exh. A), 2018.)
20.14.030 Implementation – Small wireless facilities permits.
The rights granted under a franchise are implemented through the issuance of small
wireless facilities permits. The franchise application, required under Chapter 20.04
20.06 ACC, may be accompanied by one or more applications for a small wireless
facilities permit to deploy small wireless facilities. An initial franchise and any related
small wireless facilities permit applications will be processed concurrently.
A. Up to five sites may be specified in one small wireless facilities permit application
for processing.
B. Issuance of a small wireless facilities permit to install small wireless facilities will
be contingent upon approval of a franchise under Chapter 20.04 20.06 ACC, or the
possession of a valid franchise.
C. Any element of a deployment that qualifies as an eligible facilities request under
47 CFR 1.40001 1.600 will be specifically designated by the applicant and may be
addressed separately by the director in order to comply with the shot clocks
established by federal applicable law.
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D. The director may approve, deny, or conditionally approve all or any portion of the
sites proposed in a small wireless facilities permit application. Any denial of an
application under this chapter must be made in writing and be supported by
substantial evidence.
E. Any application for a small wireless facilities permit that contains an element that
is not exempt from SEPA review will simultaneously submit a SEPA Environmental
Checklist under Chapter 43.21C RCW and Chapter 16.06 ACC.
F. The city recognizes that the Federal Telecommunications Act of 1996 gives the
Federal Communications Commission sole jurisdiction in the field of regulation based
upon the environmental effects of electromagnetic radio frequency emissions and
small wireless facilities that meet Federal Communications Commission standards
will not be conditioned or denied on the basis of environmental effects of radio
frequency or electromagnetic frequency impacts. Applicants for small wireless
facilities will be required to provide the city information on the projected power density
of the facility and compliance with the Federal Communications Commission
requirements. (Ord. 6707 § 1 (Exh. A), 2018.)
20.14.040 Small wireless facility permit review process.
The following provisions relate to applications for a small wireless facility permit:
A. Federal Law. Review of the site locations proposed by the applicant will be
governed by the provisions of 47 USC 253 and 47 USC 332 and applicable
regulations and case law. Applicants will be treated in a competitively neutral and
nondiscriminatory manner with other service providers whose facilities are similarly
situated in terms of structure, placement, or cumulative impacts. Small wireless
facilities permit review under this chapter will neither prohibit nor have the effect of
prohibiting the ability of an applicant to provide telecommunications services.
B. Concealment. The city will permit small wireless facility deployment on existing or
replacement poles or structures conforming to the city’s generally applicable pole
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design standards, the city’s engineering design and construction standards, the
concealment element plan approved as part of the small wireless facilities permit(s),
and consistent with the relevant franchise exhibit (if applicable). Small wireless
facilities may not be expanded unless the expansion does not defeat the facility’s
required concealment elements.
C. The director will review applications for small wireless facilities permits for
consistency with relevant franchise exhibits, and design standards, and applicable
law.
D. Small wireless facilities permits applications to install facilities will be processed
within the time frames set by applicable federal regulations.
E. The decision of the director to approve a small wireless facility permit will be final
and is not subject to appeal under city code or further legislative review. (Ord. 6707
§ 1 (Exh. A), 2018.)
20.14.050 Deviations.
Any request for deviations from the approved small cell facilities design designated in
the franchise, or any previously approved small wireless facility permit, will be
considered a new small wireless facilities permit request. An applicant seeking
approval of a deviation from an approved small wireless facilities permit will apply for
a new small wireless facilities permit. (Ord. 6707 § 1 (Exh. A), 2018.)
20.14.060 Small wireless facility approvals and processes.
Approval of a small wireless facility permit and/or other approval referenced in this
chapter are conditioned on the following requirements:
A. Satisfy applicable bulk requirements, such as noise and light regulations.
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B. Comply with adopted design and concealment standards as provided by the
city’s engineering design and construction standards.
C. Obtain the written approval of the owner of any pole or structure for the
installation of its facilities on such pole or structure. Approval of a franchise under
Chapter 20.0620.04 ACC does not authorize attachment to city-owned poles or other
structures.
D. Unless specifically provided for in a franchise, obtain a lease or other applicable
authorization from the city to use city-owned poles, ground space or infrastructure for
the installation of any small wireless facility, or to locate any new ground-based
structure, base station, or other attendant equipment on city owned facilities or
property right-of-way.
E. Comply with all city construction standards and state and federal codes when
operating in the right-of-public way and obtain a required permit to enter the right-of-
public way for construction.
F. If the applicant does not take action in good faith, the application will be
considered abandoned after 180 days of non-action. (Ord. 6707 § 1 (Exh. A), 2018.)
20.14.070 Additional review procedures.
Small wireless facilities in shorelines management zones or environmentally critical
areas are subject to review as provided in Chapters 16.08 and/or 16.10 ACC. (Ord.
6707 § 1 (Exh. A), 2018.)
20.14.080 Compliance with federal processing limitations.
Review of small wireless facilities permits will comply with the provisions of 47 CFR
Part 1, subpart U, if applicable. Applications will be reviewed, completeness
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determined, and the time frame tolled as provided in this chapter and Chapter
20.0620.04 ACC. (Ord. 6707 § 1 (Exh. A), 2018.)
20.14.090 Design standards.
All small wireless facilities will be constructed or installed according to applicable
Federal Communications Commission (FCC), Federal Aviation Administration (FAA),
state and city regulations and standards, including the city of Auburn engineering
design and construction standards. (Ord. 6707 § 1 (Exh. A), 2018.)
20.14.100 Noninterference.
Wireless facilities of any kind will not interfere with any emergency, communication,
or utility infrastructure systems of the city.
A. If the city notifies service providers that their equipment is potentially interfering
with public safety communications equipment, the providers will cooperate and
coordinate with the city and among themselves to investigate and mitigate the
interference, if any, utilizing the procedures set forth in the joint wireless industry –
public safety “Best Practices Guide,” released by the FCC in February 2001,
including the “Good Engineering Practices,” as may be amended or revised by the
FCC from time to time.
B. If any service provider or facility owner fails to cooperate with the city in
complying with the owner’s obligations under this section or if the FCC makes a
determination of radio frequency interference with the city communications
equipment, the owner who fails to cooperate and/or the owner of the facility or
facilities which caused the interference will be responsible, upon FCC determination
of radio frequency interference, for reimbursing the city for all costs associated with
ascertaining and resolving the interference, including but not limited to any
engineering studies obtained by the city to determine the source of the interference.
For the purposes of this subsection, failure to cooperate will include failure to initiate
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any response or action as described in the “Best Practices Guide” within 24 hours of
the city’s notification. (Ord. 6707 § 1 (Exh. A), 2018.)
20.14.110 Facility removal.
A small wireless facility will be removed:
A. Within 180 days of the date the facility’s use is discontinued, it ceases to be
operational, the permit is revoked, or, if the facility falls into disrepair and is not
maintained, within 90 days of a notice from the city to effect repairs and maintenance
to the satisfaction of the city. The owner and/or operator of a facility will notify the city
upon the discontinued use of a particular facility.; however,
B. If the owner and/or operator fails to remove the facility as required, then the
facility is a nuisance and subject to appropriate legal proceeding in accordance with
Chapter 1.25 ACC. (Ord. 6707 § 1 (Exh. A), 2018.)