Chapter 20.04
PUBLIC WAY AGREEMENTS
Sections:
20.04.010 Public way agreements.
20.04.020 Public way agreement applications.
20.04.030 Notice of complete application and scheduling of public hearing.
20.04.040 Determination by the city.
20.04.050 Notification of council action and execution of agreement.
20.04.060 Nonexclusive public way agreements.
20.04.070 Rights granted.
20.04.080 Term of telecommunications public way agreements.
20.04.090 Specified route.
20.04.100 Service to city users.
20.04.110 Amendment to public way agreements.
20.04.120 Renewal of public way agreements.
20.04.130 Determination by city for renewal of public way agreements.
20.04.140 Notification of council action on renewal of public way agreements and execution of agreements.
20.04.150 Obligation to cure as a condition of renewal.
20.04.160 Reserved.
20.04.170 Annual fee for recovery of city costs.
20.04.180 Other city costs.
20.04.010 Public way agreements.
A public way agreement shall be required of any commercial utility or telecommunications 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 identity of the applicant, including all affiliates of the applicant;
B. A description of the commercial utility or telecommunications services that are or will be offered or provided by the applicant using its facilities;
C. A description of the transmission medium or transporting means that will be used by the applicant to offer or provide such telecommunications or utility services;
D. Preliminary engineering plans, specifications and a network map of the facilities to be located within the city, all in sufficient detail to identify:
1. The location and route requested for applicant’s proposed facilities;
2. The location of all overhead and underground public utility, telecommunication, cable, water, sewer drainage and other facilities in the public way along the proposed route;
3. The location(s), if any, for interconnection with the utility or telecommunications facilities of other utility or telecommunications carriers, operators, and providers; and
4. The specific trees, structures, improvements, facilities and obstructions, if any, that applicant proposes to temporarily or permanently remove or relocate;
E. If applicant is proposing to install aboveground and/or overhead facilities:
1. Evidence that surplus space is available for locating its utility or telecommunications facilities on existing utility poles along the proposed route;
2. Proof of compliance with city’s zoning code; and
3. Demonstrate compatibility with existing and future street illumination systems;
F. If applicant is proposing an underground installation in existing ducts or conduits within the public ways, information in sufficient detail to identify:
1. The excess capacity currently available in such ducts or conduits before installation of applicant’s utility or telecommunications facilities;
2. The excess capacity, if any, that will exist in such ducts or conduits after installation of applicant’s utility or telecommunications facilities;
3. Evidence of ownership or a right to use such ducts or conduits;
G. If applicant is proposing an underground installation within new ducts or conduits to be constructed within the public ways:
1. The location proposed for the new ducts or conduits; and
2. The excess capacity that will exist in such ducts or conduits after installation of applicant’s utility or telecommunications facilities;
H. A preliminary construction schedule and completion date;
I. Information to establish that the applicant has obtained all other governmental approvals and permits to construct and operate the facilities, and to offer or provide the utility or telecommunications services, including, but not limited to, evidence that the applicant has registered with the Washington Utilities and Transportation Commission;
J. All deposits or charges required pursuant to this title;
K. Proof of ability to meet city’s bonding requirements in ACC 12.24.050 when the applicant does not have an existing standing bond on file with the city sufficient to cover the scope of work proposed and proof of ability to meet security requirements in ACC 20.10.240 through 20.10.260;
L. A copy of an Auburn business license stamped and signed by the business license clerk, as designated by the mayor; and
M. A nonrefundable application fee in the amount of $500.00. (Ord. 5897 § 22, 2005; Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.04.030 Notice of complete application and scheduling of public hearing.
A. Within 30 calendar days after receipt of the public way agreement application, the city will complete review of the application to determine whether the application contains sufficient information as outlined in ACC 20.04.020 to proceed with processing. If during the 30-calendar-day review period, the city engineer determines that the application is incomplete, the city engineer will issue a letter to the applicant specifying the additional information necessary to complete the application. The applicant will be given 30 calendar days to respond to the request for additional information. Once the additional information is received by the city, an additional 14 calendar days will be allowed to determine whether the application is complete. Once the application is determined complete, written notice will be provided following the procedure outlined in this subsection. If the applicant needs additional time to respond, the applicant may request up to an additional 30 calendar days. If a response is not timely received, the application will be returned to the applicant with a notice that the application is rejected due to failure to provide the required information. Any new applications will require a new application fee.
B. When satisfied that the application is complete, the city engineer will notify the applicant in writing that the application is complete and inform the applicant of the schedule for consideration by the public works committee. If the public works committee determines that the application merits a separate public hearing, it shall recommend to the city council that it schedule a public hearing. The city clerk will notify the applicant in writing of the scheduled hearing. (Ord. 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;
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 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.)
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
D. A nonrefundable application fee of $75.00. (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 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 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.)