Chapter 20.08
FACILITIES LEASE
Sections:
20.08.010 Facilities lease.
20.08.020 Lease application.
20.08.030 Notice of complete application and scheduling of public hearing.
20.08.040 Determination by the city.
20.08.050 Notification of council action and execution of lease.
20.08.060 Nonexclusive lease.
20.08.070 Term of facilities lease.
20.08.080 Rights granted.
20.08.090 Interference with other users.
20.08.100 Ownership and removal of improvements.
20.08.110 Cancellation of lease by lessee.
20.08.120 Compensation to the city.
20.08.130 Amendment of facilities lease.
20.08.140 Renewal of facilities lease.
20.08.150 Determination by the city for renewal of facility lease.
20.08.160 Obligation to cure as a condition of renewal.
20.08.010 Facilities lease.
The city council may, in its sole discretion, which is hereby reserved, approve facilities leases for the location of commercial utility or telecommunications facilities and other nontelecommunications facilities upon city property, as that term is defined in this title. Neither this chapter, nor any other provision of this title shall be construed to create an entitlement or vested right in any person or entity of any type to the use of any city property or city facility. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.08.020 Lease application.
Any person that desires to solicit the city’s approval of a facilities lease pursuant to this title shall file a lease proposal with the city which, in addition to the information required by ACC 20.06.020, shall include the following:
A. A description of the facilities or other equipment proposed to be located upon city property;
B. A description of the city property upon which the applicant proposes to locate facilities or other equipment;
C. Preliminary plans and specifications in sufficient detail to identify:
1. The location(s) of existing telecommunications facilities or other equipment upon the city property, whether publicly or privately owned.
2. The location and source of electric and other utilities required for the installation and/or operation of the proposed facilities or equipment;
D. Accurate scale conceptual drawings and diagrams of sufficient specificity to analyze the aesthetic impacts of the proposed telecommunications facilities or other equipment;
E. If applicant is proposing to install aboveground and/or overhead facilities:
1. Evidence that surplus space is available for locating its telecommunications facilities on existing utility poles along the proposed route;
2. Proof of compliance with city’s zoning code;
F. Whether the applicant intends to provide cable service, video dialtone service or other video programming service, and sufficient information to determine whether such service is subject to cable franchising;
G. An accurate map showing the location of any existing utility or telecommunications facilities in the city that applicant intends to use or lease;
H. A description of the services or facilities that the applicant will offer or make available to the city and other public, educational, and governmental institutions;
I. A copy of an Auburn business 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 of $500.00; and
L. Such other and further information as may be requested by the city. (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, the mayor will appoint a negotiation team to meet with the applicant and determine whether additional information is needed. The team shall as a minimum consist of the finance director, a legal representative, and the department director affiliated with the property being considered for lease. If during the 30-calendar-day review period, the application is deemed incomplete, the city will issue a letter to the applicant specifying the additional information necessary in order to proceed with processing. The applicant will be given 30 calendar days to respond. Once the additional information is received by the city, an additional 14 calendar days will be allowed to determine whether the application is complete. Once the application is determined complete, written notice will be provided. If a response is not timely received, the application will be returned to the applicant with a notice that the application is rejected due to failure to provide the required information. Any new applications will require a new application fee.
B. When satisfied that the application is complete, the finance director will issue a letter of completeness and notifying the applicant of the schedule the issue will be considered by the appropriate council committee. The appropriate committee will give initial considerations to the negotiation team to facilitate completion of a negotiated draft lease agreement. Once the team returns to the committee with a draft lease agreement, the committee will determine if the issues merit a separate public hearing, and recommend to the city council whether a public hearing should be held. The city council will schedule the hearing and the city clerk will notify the applicant in writing of the scheduled hearing. (Ord. 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 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.
B. The capacity of the city property and public ways to accommodate additional utility and telecommunications facilities if the lease is granted.
C. The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the lease is granted.
D. The public interest in minimizing the cost and disruption of construction upon city property and within the public ways.
E. The service and public benefit that applicant will provide to the community and region.
F. The effect, if any, on public health, safety, and welfare if the lease requested is approved.
G. The availability of alternate routes and/or locations for the proposed facilities.
H. Whether the applicant is in compliance with applicable federal and state telecommunications laws, regulations and policies, including, but not limited to, the registration requirements administered by the Washington Utilities and Transportation Commission.
I. The potential for radio frequency and other interference with existing public and private telecommunications or other facilities located upon the city property.
J. The potential for radio frequency and other interference or impacts upon residential, commercial, and other uses located within the vicinity of the city property.
K. Whether the city’s property zoning supports the proposed land use.
L. Demonstrated ability and commitment to meet city bonding and security requirements established in ACC 20.10.240 through 20.10.260.
M. Such other factors as may demonstrate that the lease to use the city property will serve the community interest.
N. Other criteria determined to be necessary or appropriate to the public health, safety, or welfare of the community. (Ord. 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 shall notify the applicant of the decision and instruct the applicant of the procedure to follow to complete execution of the lease agreement if approved by the city council. No facilities lease shall be deemed to have been granted hereunder until after any scheduled public hearing and city council approval of a written agreement setting forth the particular terms and provisions under which the lessee has been granted the right to occupy and use the city property specified in the lease and both the city and applicant have fully executed the lease and the applicant has provided the security deposits and proof of insurance as required by Chapter 20.10 ACC. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.08.060 Nonexclusive lease.
No facilities lease granted under this title shall confer any exclusive right, privilege, license, or franchise to occupy or use city property for delivery of utility or telecommunications services or any other purposes. (Ord. 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 an existing lease agreement, a facilities lease granted hereunder shall be valid for a maximum term of five years, subject to renewal as provided in this chapter. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
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 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 into leases with other tenants for their equipment and telecommunications facilities. Lessee acknowledges that the City is also leasing the City property for the purposes of transmitting and receiving telecommunications signals from the City property. The City, however, is not in any way responsible or liable for any interference with Lessee’s use of the City property which may be caused by the use and operation of any other tenant’s equipment, even if caused by new technology. In the event that any other tenant’s activities interfere with the Lessee’s use of the City property, and the Lessee cannot work out this interference with the other tenants, the Lessee may, upon 30 days’ notice to the City, terminate this Lease and restore the City property to its original condition, reasonable wear and tear excepted. The Lessee shall cooperate with all other tenants to identify the causes of, and work towards the resolution of, any electronic interference problem. In addition, the Lessee agrees to eliminate any radio or television interference caused to City-owned or other public/private facilities or surrounding property owners, residents, or tenants at Lessee’s own expense and without installation of extra filters on City-owned equipment. Lessee further agrees to accept such interference as may be received from City operated telecommunications or other facilities located upon the City property subject to this Lease.
(Ord. 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, in the event that utility or telecommunications facilities or other equipment are left upon city property after expiration or termination of the lease, they shall become the property of the city if not removed by the lessee after 30 days’ written notice from the city. (Ord. 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 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.)
20.08.120 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.)
20.08.130 Amendment of facilities lease.
Except as provided within an existing lease agreement, a new lease application and lease agreement shall be required of any lessee that desires to expand, modify, or relocate its facilities or other equipment located upon city property. If the lessee is required by the city to locate or relocate its facilities or other equipment on the city property, the city shall grant a lease amendment without further application. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.08.140 Renewal of facilities lease.
A lessee that desires to renew its facilities lease in effect under this chapter shall, not more than 120 days nor less than 90 days before expiration of the facilities lease then in effect, file an application, which is determined as complete in accordance with ACC 20.08.030, with the city for renewal of its facilities lease which shall include the following:
A. The information required pursuant to ACC 20.08.020;
B. Any information required pursuant to the facilities lease agreement between the city and the lessee;
C. All deposits or charges required pursuant to this chapter;
D. A nonrefundable application renewal fee in the amount of $250.00. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.08.150 Determination by the city for renewal of facility lease.
All renewals of leases subject to this title shall be renewed in accordance with the provisions of ACC 20.08.030 and 20.08.040. Recognizing that the city council is under no obligation to approve a renewal of a facilities lease for the use of city property, the city council shall attempt to consider and take action on applications for renewal of such leases within 90 days after receiving a complete application for such a lease renewal. 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 renewal.
No facilities lease shall be renewed until any ongoing violations or defaults in the lessee’s performance of the lease agreement, or of the requirements of this title, have been cured, or a plan, secured by bond or deposit account to the city’s satisfaction, detailing the corrective action to be taken by the lessee has been approved in writing by the city. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)