Chapter 11.08
FACILITIES LEASE
11.08.000 Chapter Contents
Sections:
11.08.010 Facilities lease.
11.08.020 Lease application.
11.08.030 Determination by the city.
11.08.040 Agreement.
11.08.050 Nonexclusive lease.
11.08.060 Term of facilities lease.
11.08.070 Rights granted.
11.08.080 Interference with other users.
11.08.090 Ownership and removal of improvements.
11.08.100 Compensation to the city.
11.08.110 Amendment of facilities lease.
11.08.120 Renewal application.
11.08.130 Renewal determination.
11.08.140 Obligation to cure as a condition of renewal.
11.08.010 Facilities lease
The City Council may, in its sole discretion which is hereby reserved, approve Facilities Leases for the location of telecommunications facilities and other facilities upon City property, as that term is defined in these Chapters. Neither this Section, nor any other provision of these Chapters shall be construed to create an entitlement or vested right in any person or entity of any type. Facilities Leases granted for the installation and/or construction of Wireless Communications Facilities shall also comply with the terms and provisions of Chapter 18 of the Olympia Municipal Code.
(Ord. 5816 §5, 1998).
11.08.020 Lease application
Any person that desires to solicit the City’s approval of a Facilities Lease pursuant to this Chapter shall file a lease proposal with the City Manager which, in addition to the information required by Section 11.04.020, shall include the following:
A. A description of the telecommunications 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 telecommunications 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 operation of the proposed facilities.
D. Accurate scale conceptual drawings and diagrams of sufficient specificity to analyze the aesthetic impacts of the proposed telecommunications facilities or other equipment;
E. Whether the applicant intends to provide cable service, video dial tone service or other video programming service, and sufficient information to determine whether such service is subject to cable franchising;
F. An accurate map showing the location of any existing telecommunications facilities in the City that applicant intends to use or lease,
G. 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;
H. An analysis of the availability of alternate routes and/or locations, including locations outside of a residential zone, for the proposed facilities and, if the application is for property that is not occupied by a City water reservoir, an explanation as to why the proposed location is in the best interest of the City and the public. Such explanation shall include, if applicable, an explanation of the relative visual, aesthetic, or other impacts of the proposed facility on adjacent residential zones, as compared with the alternative routes and/or locations.
I. Such other and further information as may be requested by the City; and
J. An application fee which shall be set by the City Manager.
K. Such other and further information as may be requested by the City; and
L. An application fee which shall be set by the City Manager.
(Ord. 6234 §1, 2002; Ord. 5816 §5, 1998).
11.08.030 Determination by the city
Recognizing that the City is under no obligation to grant a Facilities Lease for the use of City property, the City shall strive to consider and take action on applications for Facilities Leases within 120 days after receiving a complete application for such a lease. When such action is taken, the City shall issue a written determination granting or denying the lease in whole or in part, in accordance with the procedure and standards set forth below, or any other such criteria as the City Council may choose to apply.
A. Determination by City Manager for water reservoir sites.
When a lease is proposed for City property on which a water reservoir is located, the City Manager shall issue the written determination required by this section. The City Manager’s determination whether to approve or deny the lease application shall be based on the following:
1. The capacity of the City property and public ways to accommodate the applicant’s proposed facilities.
2. The capacity of the City property and public ways to accommodate additional utility and telecommunications facilities if the lease is granted.
3. The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the lease is granted.
4. The public interest in minimizing the cost and disruption of construction upon City property and within the public ways.
5. The service that applicant will provide to the community and region with particular consideration given to public emergency service providers.
6. The effect, if any, on public health, safety, and welfare if the lease requested is approved.
7. The availability or desirability of alternate routes and/or locations for the proposed facilities.
8. 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.
9. The potential for radio frequency and other interference with existing public and private telecommunications or other facilities located upon the City property.
10. The potential for radio frequency and other interference or impacts upon residential, commercial, and other uses located within the vicinity of the City property.
11. Such other factors, such as aesthetics, as may demonstrate that the lease to use the City property will serve the community interest.
12. The maximization of co-location opportunities with other similar uses.
B. Determination by the City Council for non-water reservoir sites.
When a lease is proposed for City property other than property on which a water reservoir is located, the City Manager shall prepare a recommendation to the City Council, which shall then issue the written determination required by this section. If the lease is proposed for property for which the Olympia Municipal Code does not otherwise require a conditional use permit, the City Manager’s recommendation shall outline a process for appropriate public notification and participation. The City Manager’s recommendation, and the City Council’s determination whether to approve or deny the lease application, shall be based on the following:
1. The capacity of the City property and public ways to accommodate the applicant’s proposed facilities.
2. The capacity of the City property and public ways to accommodate additional utility and telecommunications facilities if the lease is granted.
3. The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the lease is granted.
4. The public interest in minimizing the cost and disruption of construction upon City property and within the public ways.
5. The service the applicant will provide to the community and region with particular consideration given to public emergency service providers.
6. The effect, if any, on public health, safety, and welfare if the lease requested is approved.
7. The availability of alternate routes and/or locations outside of a residential zone for the proposed facilities.
8. 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.
9. The potential for radio frequency and other interference with existing public and private telecommunications or other facilities located upon the City property.
10. The potential for radio frequency and other interference or impacts upon residential, commercial, and other uses located within the vicinity of the City property.
11. Such other factors, such as aesthetics, as may demonstrate that the lease to use the City property will serve the community interest.
12. The maximization of co-location opportunities with other similar uses.
13. Whether the proposed lease of City-owned property not occupied by a water reservoir is in the best interest of the City and the public. Where applicable, consideration of this factor may include, but not be limited to, a comparison of the relative visual, aesthetic, or other impacts of the proposed facility on adjacent residential zones, as compared with the alternative routes and/or locations.
(Ord. 6234 §2, 2002; Ord. 5816 §5, 1998).
11.08.040 Agreement
No Facilities Lease shall be deemed to have been granted hereunder until the applicant and the City have executed 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.
(Ord. 5816 §5, 1998).
11.08.050 Nonexclusive lease
No Facilities Lease granted under this Chapter shall confer any exclusive right, privilege, license, or franchise to occupy or use City property for delivery of telecommunications services or any other purposes.
(Ord. 5816 §5, 1998).
11.08.060 Term of facilities lease
A Facilities Lease granted hereunder shall be valid for a term of no longer than five (5) years, unless approved by the City Council.
(Ord. 5816 §5, 1998).
11.08.070 Rights granted
No Facilities Lease granted under this Chapter shall convey any right, title or interest 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. 5816 §5, 1998).
11.08.080 Interference with other users
No Facilities Lease shall be granted under this Chapter 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 antennae facilities. Lessee acknowledges that the City is also leasing the City property for the purposes of transmitting and receiving telecommunication 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 thirty (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 facilities or surrounding residences 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. 5816 §5, 1998).
11.08.090 Ownership and removal of improvements
No Facilities Lease shall be granted under this Chapter unless it contains a provision which states that all buildings, landscaping, and all other improvements, except telecommunications 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 within ninety (90) days after receiving notice from the City requiring removal of the improvements. In the event that 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 upon thirty (30) days written notice from the City.
(Ord. 5816 §5, 1998).
11.08.100 Compensation to the city
Each Facilities Lease granted under this Chapter 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 the lessee; provided, nothing in these Chapters 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 31 of each calendar year. Any payments received after the due date shall include a late payment penalty of two percent (2%) of the annual rental fee for each day or part thereof past the due date. The compensation shall be negotiated and established by the City Manager based on the following criteria:
A. Comparable lease rates for other public or private property;
B. In the case land is leased, an appraisal opinion upon which the land and air space is rented;
C. If structure of another user is involved, any amount needed to reimburse that user; in addition to the above.
D. A yearly escalator rate commonly used in comparable leases.
For leases involving a public agency or private nonprofit organization serving a public purpose, the City Manager may negotiate lower compensation rates, or waive this compensation requirement if the agency or organization provides some form of public benefit, under a contract, which is roughly equal in value to the reduced or waived compensation.
(Ord. 5816 §5, 1998).
11.08.110 Amendment of facilities lease
Except as provided within an existing lease agreement, a new lease application and lease agreement shall be required of any telecommunications carrier or other entity that desires to expand, modify, or relocate its telecommunications facilities or other equipment located upon City property. If ordered by the City to locate or relocate its telecommunications facilities or other equipment on the City property, the City shall grant a lease amendment without further application.
(Ord. 5816 §5, 1998).
11.08.120 Renewal application
A lessee that desires to renew its Facilities Lease under this Chapter shall, not less than one hundred eighty (180) days before expiration of the current Facilities Lease, file an application with the City for renewal of its Facilities Lease which shall include the following:
A. The information required pursuant to Section 11.04.020 of this Chapter;
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; and
D. An application fee which shall be set by the City Council by resolution.
(Ord. 5816 §5, 1998).
11.08.130 Renewal determination
Recognizing that the City is under no obligation to grant a renewal of a Facilities Lease for the use of City property, the City shall strive to consider and take action on applications for renewal of such leases within sixty (60) 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, applying the standards set forth below, or any other such criteria as the City Council may choose to apply. If the renewal application is denied, the written determination shall include the reason for denial, if any.
A. The financial and technical ability of the applicant.
B. The legal ability of the applicant.
C. The continuing capacity of the City property to accommodate the applicant’s existing facilities.
D. The applicant’s compliance with the requirements of this Chapter and the lease agreement.
E. Applicable federal, state and local telecommunications laws, rules and policies.
F. Such other factors as may demonstrate that the continued grant to use the City property ways will serve the community interest.
(Ord. 5816 §5, 1998).
11.08.140 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 these Chapters, have been cured, or a plan detailing the corrective action to be taken by the lessee has been approved by the City."
(Ord. 5816 §5, 1998).