Chapter 26.20
FRANCHISES
Sections:
26.20.010 Authority granted by franchise.
26.20.020 Application to existing franchise ordinances, agreements, leases, and permits—Effect of other laws.
26.20.030 Applications for franchises.
26.20.040 Determination by city.
26.20.050 Acceptance.
26.20.060 General conditions of franchises.
26.20.070 Amendment of franchise.
26.20.080 Renewal of franchise.
26.20.090 Personal wireless service facilities in rights-of-way.
26.20.100 Use of poles and conduit.
26.20.110 Abandonment.
26.20.010 Authority granted by franchise.
(1) A franchise authorizes the grantee to use the rights-of-way, and only the rights-of-way, for a specified purpose. Use of city property other than the rights-of-way, including any use of city poles or other facilities, requires a separate site license or lease from the city.
(2) A franchise shall state the specific purpose for which it authorizes the applicant to use the rights-of-way. The issuance of a franchise does not relieve the applicant from obtaining any other legal authority that may be necessary to use the rights-of-way for any other purpose. (Ord. 4853 § 2, 2023)
26.20.020 Application to existing franchise ordinances, agreements, leases, and permits—Effect of other laws.
(1) Except as otherwise provided herein or permitted by applicable federal or state law, this title shall have no effect on any franchise, franchise ordinance, franchise agreement, lease, permit, or other authorization existing on or before the effective date of the ordinance codified in this title, to use or occupy public rights-of-way or city property until:
(a) The expiration of said franchise, franchise ordinance, franchise agreement, lease, permit, or authorization; or
(b) The amendment to an unexpired franchise, franchise ordinance, franchise agreement, lease, permit, or authorization, unless both parties agree to defer full compliance to a specific date not later than the present expiration date.
(2) Nothing in this title shall be deemed to create an obligation upon any person that the city is forbidden to require pursuant to federal, state, or other law. (Ord. 4853 § 2, 2023)
26.20.030 Applications for franchises.
Applications for new franchises shall be submitted to the department and shall include the following information:
(1) Applicant’s name, address, and telephone number and the name, address and telephone number of the duly authorized officer or employee of the applicant. If the application is submitted by an agent of the applicant (i.e., by someone other than a duly authorized officer or employee of the applicant), the following information shall also be provided: (i) the agent’s name, address and telephone number; and (ii) documentation of the agent’s authority to submit the application on behalf of the applicant.
(2) Applicant’s business structure, e.g., corporation, limited liability company, partnership, sole proprietorship.
(3) Identification of the service area for which the franchise is requested, including a map of the area to be covered by the franchise and, if known, specific locations of the initial build-out and proposed future build-out locations, including which proposed facilities will be underground, ground based or aerial. A citywide franchise area may be requested.
(4) Description of the services that the applicant expects to provide within the city, including whether the services will be provided to the general public, to commercial and/or residential customers, or to other utilities or telecommunications providers.
(5) Description of the type(s) of facilities to be installed in the right-of-way.
(6) To the extent locations for installations are known, preliminary engineering plans, specifications and a map showing where the facilities are to be located within the city, all in sufficient detail to identify:
(a) The location and/or route requested for the applicant’s proposed facilities;
(b) The location of applicant’s overhead and underground facilities, other lines and equipment in the rights-of-way in the proposed location and/or along the proposed route;
(c) The specific trees, structures, improvements, facilities, lines and equipment and obstructions, if any, that the applicant proposes to temporarily or permanently remove or relocate.
(7) If the applicant is proposing an underground installation within new ducts or conduits to be constructed within the rights-of-way and to the extent specific locations are known:
(a) The location proposed for the new ducts or conduits;
(b) Evidence that there is sufficient capacity within the rights-of-way for the proposed facilities.
(8) A preliminary construction schedule and completion date.
(9) Evidence that the applicant is registered to participate in the one-number locator service, as described in Chapter 19.122 RCW, if applicable.
(10) If the applicant is proposing small wireless facilities, an accurate map showing the existing locations, if any, of any existing small wireless facilities in the rights-of-way, owned or operated by the applicant.
(11) An application fee which shall be set by the city council to recover city costs in accordance with applicable federal and state law.
(12) Description of applicant’s previous experience providing the proposed services and facilities, including an illustrative list of other franchises awarded applicant in the state of Washington.
(13) The name, address and telephone number of any person, other than applicant, who will have any ownership interest in the proposed facilities.
(14) Proof that applicant possesses all governmental licenses, certificates or authorizations that are necessary to lawfully conduct the proposed franchise activities.
(15) Explanation of whether applicant-proposed services or any portion thereof will be subject to tax under Chapter 5.08.
(16) Information demonstrating applicant’s financial capacity to construct, maintain and operate the proposed franchise facilities in compliance with the requirements of this title, as may be shown by its operations in other cities, financial statements, or other means.
(17) A statement as to whether applicant has had any franchise revoked or been held to be in violation of any franchise and, if so, a full explanation of the reasons for such violation and/or revocation and the steps taken by the applicant to cure all resulting harms and prevent their reoccurrence.
(18) Such other information as the department shall deem appropriate. (Ord. 4853 § 2, 2023)
26.20.040 Determination by city.
(1) Within the time periods established by state and/or federal law, as applicable, after receiving a complete application hereunder, the city council shall grant or deny a franchise application. If the city council denies a franchise, such denial must be based on one of the following:
(a) The capacity of the rights-of-way to accommodate the applicant’s facilities;
(b) The capacity of the rights-of-way to accommodate additional facilities if the application is granted;
(c) The damage or disruption, if any, to public or private facilities, improvements, service, travel or landscaping if the application is granted, giving consideration to an applicant’s willingness and ability to mitigate and/or repair same;
(d) The public interest in minimizing the cost and disruption of construction within the rights-of-way;
(e) The availability of alternate routes or locations that are reasonable for placement of the proposed facilities;
(f) Such other factors as may relate to the city’s authority to manage, regulate and control public rights-of-way.
(2) If the application is denied, the determination shall include the reasons for denial. Denial of a franchise shall be supported by substantial evidence contained in a written record.
(3) If the application is approved, the city shall issue the franchise as a written document with any conditions necessary to preserve and maintain the public health, safety, welfare, and convenience. (Ord. 4853 § 2, 2023)
26.20.050 Acceptance.
(1) No franchise granted hereunder shall be effective until it has been approved by the city council by ordinance and the applicant has accepted the franchise, in writing, in a form acceptable to the city.
(2) Either before the franchise is presented to city council or within sixty days after the effective date of the ordinance or other city action granting a franchise, or within such extended period of time as may be authorized by the city, the applicant shall file written acceptance of the franchise, together with the bonds, certificate(s) of insurance policies, and security fund required by Section 26.40.040. Acceptance of a franchise shall consist of executing the written agreement granting the franchise and returning said franchise to the city within the period of time specified herein.
(3) All franchises granted pursuant to this title shall contain substantially similar terms and conditions. (Ord. 4853 § 2, 2023)
26.20.060 General conditions of franchises.
(1) A franchise shall be nonexclusive.
(2) No franchise shall be in effect for a term of more than five years, unless a different term is expressly specified in the franchise.
(3) The franchise shall authorize the grantee to use only those specific portions of the rights-of-way indicated in the franchise. The franchise area may include all rights-of-way within the city limits.
(4) In accepting any franchise, the grantee acknowledges that its rights thereunder are subject to the lawful exercise of the police power and zoning power of the city to adopt and enforce ordinances necessary to protect the safety and welfare of the public, and it agrees to comply with all applicable laws enacted by the city pursuant to such powers.
(5) No franchise shall convey any right, title or interest in rights-of-way, but shall be deemed an authorization only to use and occupy the rights-of-way for the limited purposes and term stated in the franchise.
(6) No franchise shall excuse the grantee from securing any further easements, leases, permits or other approvals that may be required to lawfully occupy and use rights-of-way.
(7) No franchise shall be construed as any warranty of title.
(8) The provisions of this title shall be incorporated by reference in any franchise approved hereunder. However, in the event of any conflict between this title and the franchise, the franchise shall be the prevailing document.
(9) If a franchise expires, the franchise shall continue on a month-to-month basis until either party requests to terminate or amend the franchise. (Ord. 4853 § 2, 2023)
26.20.070 Amendment of franchise.
(1) If a grantee wishes to modify the conditions of the franchise, including the portions of the rights-of-way it is authorized to use and occupy, the grantee shall submit such amendment request in writing to the director. Upon the director’s recommendation of approval or denial, the amendment request shall be submitted to city council for review and determination.
(2) If a grantee is ordered by the city to locate or relocate its facilities in rights-of-way not included in a previously granted franchise, the city shall grant an amendment making that change without further application. (Ord. 4853 § 2, 2023)
26.20.080 Renewal of franchise.
(1) A grantee that wishes to renew its franchise hereunder shall, not more than one hundred eighty days nor less than ninety days before the expiration of the current franchise, submit an application to the city for renewal on a form prepared by the director.
(2) No franchise shall be renewed until any ongoing violations or defaults in the grantee’s performance of the franchise, or of the requirements of this title, have been cured, or a plan detailing the corrective action to be taken by the grantee has been approved by the city.
(3) After receiving a complete application for franchise renewal, the city shall determine whether to grant or deny the renewal application in whole or in part. If the renewal application is denied, the written determination shall include the reasons for nonrenewal. Prior to granting or denying the renewal of a franchise under this chapter, the city council shall consider the following:
(a) The applicant’s compliance with the requirements of this title and the franchise.
(b) Applicable federal, state and local laws, rules and policies.
(c) Such other factors as may demonstrate that the continued grant to use the rights-of-way will be in the best interests of the community. (Ord. 4853 § 2, 2023)
26.20.090 Personal wireless service facilities in rights-of-way.
(1) The city may impose a site-specific charge consistent with applicable law and pursuant to an agreement with a personal wireless service provider for:
(a) The placement of new facilities in the right-of-way regardless of height, including underground facilities, unless the new facility is the result of a city-mandated relocation, in which case the city will not charge the personal wireless service provider if the previous location was not charged.
(b) The placement of replacement structures when the replacement is necessary for the installation or attachment of facilities, and the overall height of the replacement structure and the facility is more than sixty feet.
(c) The placement of new facilities on structures owned by the city located in the right-of-way.
(2) The city is not required to approve a franchise for the placement of facilities that meets one of the criteria in this section absent such an agreement. If the parties are unable to agree on the amount of the charge, the personal wireless service provider may submit the amount of the charge to binding arbitration by serving notice on the city. Within thirty days of receipt of the initial notice, each party shall furnish a list of acceptable arbitrators. The parties shall select an arbitrator; failing to agree on an arbitrator, each party shall select one arbitrator and the two arbitrators shall select a third arbitrator for an arbitration panel. The arbitrator or arbitrators shall determine the charge based on comparable siting agreements involving rights-of-way and consistent with applicable law. The arbitrator or arbitrators shall not decide any other disputed issues, including but not limited to size, location and zoning requirements. Costs of the arbitration, including compensation for the services of the arbitrator(s), must be borne equally by the parties participating in the arbitration and each party shall bear its own costs and expenses, including legal fees and witness expenses in connection with the arbitration proceeding. (Ord. 4853 § 2, 2023)
26.20.100 Use of poles and conduit.
(1) The city may, in accordance with RCW 35.99.070 and any other applicable law, require a telecommunications provider that is constructing, relocating or placing ducts or conduits in the rights-of-way to provide the city with additional duct or conduit and related structures necessary to access the conduit.
(2) Subject to such reasonable rules and regulations as may be prescribed by the pole owner and subject to the limitations prescribed by RCW 70.54.090 or any other applicable law, the city may post city signs on a pole owner’s poles within the city.
(3) Subject to the pole owner’s prior written consent, which may not be unreasonably withheld, the city may install and maintain city-owned overhead wires upon an owner’s poles, in the right-of-way subject to the following:
(a) Such installation and maintenance shall be done by the city at its sole risk and expense, in accordance with all applicable laws, and subject to such reasonable requirements as the pole owner may specify from time to time (including, without limitation, requirements accommodating its facilities or the facilities of other parties having the right to use the pole);
(b) The pole owner shall have no indemnification obligations in connection with any city-owned wires so installed and maintained;
(c) The pole owner shall not charge the city a fee for the use of such poles in accordance with this section as a means of deriving revenue therefrom; provided, however, that nothing herein shall require the pole owner to bear any cost or expense in connection with such installation and maintenance by the city;
(d) The pole owner shall not enter into an agreement with a third person which would require the pole owner to exclude the city or any other person from use of such poles;
(e) The pole owner may not condition the city’s use of such poles on the city’s acceptance of limitations on the purpose or use of the city’s facilities. (Ord. 4853 § 2, 2023)
26.20.110 Abandonment.
(1) A grantee that has determined to discontinue its operations in the city must submit to the city, within ninety days of the planned date for discontinuance of operation, a proposal and instruments for transferring ownership of its facilities to the city. If a grantee proceeds under this clause, the city may at its option:
(a) Accept assignment of the facilities; or
(b) Require the grantee, at its own expense, to remove the facilities.
(2) Facilities of a grantee who fails to comply with the preceding subsection and which, for one hundred twenty days, remain unused shall be deemed to be abandoned. Abandoned facilities are deemed to be a nuisance. After the lapsing of such one hundred twenty days and upon thirty days’ notice to the grantee, the city may exercise any remedies or rights it has at law or in equity, including but not limited to:
(a) Abating the nuisance; and
(b) Requiring removal of the facilities at the expense of the grantee. (Ord. 4853 § 2, 2023)