995 Attach Exhibit B - Title 15 Franchises
TITLE15
FRANCHISES
Table of Contents
TITLE 15 ................................................................................................................................................................. 1
FRANCHISES ........................................................................................................................................................... 1
15.86.010F. ................................................................................................................................................... 1
INDINGS
15.86.020P. .................................................................................................................................................... 5
URPOSE
15.86.030D. ............................................................................................................................................... 5
EFINITIONS
15.86.040.FR. .................................................................................................................................. 8
RANCHISE EQUIRED
15.86.050FA;F;D........................................................................................................... 9
RANCHISE PPLICATION EES EPOSIT
15.86.060DC. ....................................................................................................................... 11
ETERMINATION BY THE ITY
15.86.070A. ............................................................................................................................................. 12
GREEMENT
15.86.080AC15.72YMC. ......................................................................................................... 13
PPLICATION OF HAPTER
15.86.090N............................................................................................................................ 13
ONEXCLUSIVE FRANCHISE
15.86.100U. ........................................................................................................................................... 14
SE GRANTED
15.86.110T. ................................................................................................................................... 14
ERM OF FRANCHISE
15.86.120FA. ....................................................................................................................................... 14
RANCHISE REA
15.86.130C. ............................................................................................................................. 14
ONSTRUCTION PERMITS
15.86.140A. ........................................................................................................................ 14
MENDMENT OF FRANCHISE
15.86.150R. .............................................................................................................................. 14
ENEWAL APPLICATIONS
15.86.160R. ......................................................................................................................... 15
ENEWAL DETERMINATIONS
15.86.170OCCR. ........................................................................................ 15
BLIGATION TO URE AS A ONDITION OF ENEWAL
15.86.180N. .............................................................................................................................................. 15
O WAIVER
15.86.190S. ............................................................................................................................... 15
UBJECT TO AUTHORITY
15.86.200V;P. ................................................................................................................................ 16
IOLATIONENALTIES
15.86.010 Findings.
A.The Cityright-of-way is critical for personal travel and the transport of
goods, that the Cityuses the right-of-way to provide critical services to
its citizens, including public safety and electric, water, sewer, and other
utilities, and that right-of-way is intended for public use and must be
managed and controlled consistent with that intent; in particular, that
the right-of-way should be managed so that the installation,
maintenance, and operation of a utility system does not unreasonably
interfere with public use.
B.The public right-of-way can be partially occupied by private utilities and
other public service entities for facilities used in the delivery,
conveyance, and transmission of utility and public services to the
enhancement of the health, welfare, and general economic well-being of
the City, the region and its residents and businesses.
C.The public right-of-way is a valuable and scarce community resource
physically limited in dimension requiring the Cityto manage it for the
most efficient and best use and to minimize the costs to the taxpayers of
the foregoing uses, to protect against foreclosure of future economic
expansion because of premature exhaustion of the public right-of-way as
an economic resource, and to minimize the inconvenience to and
negative effects upon the public from such facilities’ construction,
emplacement, relocation, and maintenance in the public right-of-way.
D.The public right-of-way within the Citybelongs to the public and is built
and maintained at public expense for the use of the general public, the
primary purpose of which is public travel, and must be managed and
controlled consistent with that intent.
E.The Cityhas an obligation under state law to plan for and implement
transportation improvements and must identify sources for future
transportation improvements and maintenance of the public right-of-
way.
F.The use of public right-of-way for uses unrelated to public travel, such as
water mains, gas pipes, pipelines, and telecommunications and cable
facilities, is secondary and subordinate to the primary use for travel;
such secondary use is permissible only when not inconsistent with the
primary purpose of the establishment of such public right-of-way, and
such use by a private business is a mere privilege under state law and
there is no inherent right in a private individual to conduct private
business in the public streets.
G.The Cityhas the authority to develop and implement public right-of-way
policies, management principals, standards, and regulatory ordinances in
order to balance the interests of both secondary and primary uses of the
public right-of-way, meet the obligations of local government to manage
and maintain the public right-of-way, ensure the efficient use of the
public right-of-way, and protect the public health, safety, and welfare.
H.Public right-of-way management is a substantial and legitimate public
interest and requires establishment of appropriate standards for the use
of the public right-of-way that take into account, among otherthings:
1.Availability of and demand for a variety of services and delivery
technologies has dramatically increased the demand for use of the
public right-of-way;
2.The present and future use of the public right-of-way;
3.The potential disruption to existing users of the public right-of-way
and resultant inconvenience;
4.Protection of the public and the Cityfrom any harm that may flow
from such private use of public right-of-way;
5.The desire to encourage competition;
6.The need to establish standard terms and conditions so that
operators with facilities located in the public right-of-way will have
notice of how it may use the public right-of-way;
7.The City’s obligation to carry out its regulatory authority in a manner
consistent with federal and state law;
8.The City’s right to recover its regulatory and administrative costs;
and
9.The City’s obligation to protect its interests in using the public right-
of-way for the provision of services to the public, other governmental
agencies, and itself.
I.The City has an obligation to ensure the orderly and efficient use of this
limited resource among multiple users and to treat all users fairly while
preserving public safety, essential services, and economical access to its
own facilities which have added greatly to the complexity of modern
public right-of-way management.
J.The failure of service providers to abide by public right-of-way
management standards and the failure of local government to
adequately control the public right-of-way can leadand has led to
damage to the use of the public right-of-way and other property interests
such as:
1.Explosion of facilities in the public right-of-way;
2.Forced evacuation of homes;
3.Spillage of raw sewage;
4.Broken water mains resulting in floodingand damage to property;
5.Severing of communications and power lines;
6.Interruption of emergency communications systems;
7.Damage to public streets and sidewalks;
8.Hazards from improperly installed overhead facilities;
9.Excavations made without notice to the City;
10.Excavations and restorations done in violation of community
standards;
11.Use of improper materials and methods in restoring utility street
cuts;
12.Slow repairs that inconvenience the traveling public;
13.Poor workmanship in trench reinstatement and pavement restoration;
14.Public dissatisfaction with traffic delays and interrupted utility service;
15.Disruption of adjoining public facilities such as gutters and sidewalks;
16.Damage to adjoining utility facilities disturbed byimproper
excavation;
17.Increased maintenance costs from repeatedly cutting pavement to
access utilities;
18.Increased danger for the public and excavators; and
19.Street cuts into the public right-of-way that significantly diminish the
average life ofthe street.
K.The requirement of a performance bond or security fund ensures that
work done in the public right-of-way complies with or can be made to
comply with permitting and other requirements that ensure public safety
and limit liability of the City.
L.Insurance and indemnity requirements protect the Cityfrom monetary
loss in the event of Cityliability due to acts of the secondary users of the
public right-of-way.
M.The Cityshould not be exposed to liability of any kind as a result of the
presence in the public right-of-way of the facilities of secondary users
because the secondary user controls the design, construction, and
installation of those facilities, profits from use of those facilities, is better
suited and positioned to protect against such harms, and, but for the
existence of those facilities, no injury would have occurred.
N.Insurance, bonding, indemnity, non-recourse, and other financial security
requirements serve important and substantial government interests and
are reasonable requirements necessary to protect the public health,
safety, and welfare and to protect the City from financial loss from
liability arising from acts of third parties operating within and using the
public right-of-way.
O.The City has a substantial governmentinterest in knowing the identity of
those persons with facilities in its public right-of-way so that it may,
among other things, provide notice of hazardous or defective conditions,
violations of regulatory or contractual requirements, joint trenching
opportunities, relocation requirements for public or private
improvements, identify locations of facilities, or identify the proper
parties in the event of litigation.
P.The City has a substantial government interest in requiring notice and
approval of a transfer of the rights, duties, and obligations of those
persons permitted to be in the public right-of-way to ensure that the City
does not lose any legal rights or protection as a result of the transfer, to
ensure that such persons are aware of and agree tocomply with all
rights, duties, and obligations previously agreed to, to ensure that
companies do not simply transfer agreements to avoid complying with
regulatory or contractual requirements, and to ensure that the Cityhas
accurate contact information for the operator of the facilities in the public
right-of-way in the event of an emergency.
Q.Increasing demand for use of public right-of-way is causing, and will
continue to cause, local governments to expand management services
and responsibilities, including more frequent inspections, repairs, and re-
paving, sophisticated mapping technologies and systems, and increased
personnel.
R.The City has a substantial government interest in requiring persons with
facilities in the public right-of-way to provide record drawings and
descriptions of its facilities so that, among other things, the Citymay
assess the potential disruption of the public right-of-way during
construction and installation, so that the Citycan plan future
improvements and installations within the public right-of-way, so the City
can assess the physical capacity of the public right-of-way; so the City
can provide notice to other users of the public right-of-way of the
location of facilities to avoid disruption to such facilities and unnecessary
excavation, so the Citycan determine appropriate amounts of bonding,
insurance, and other requirements to protect the public health, safety,
and welfare, and so the Citycan ensure compliance with its regulatory
requirements and the terms and conditions of its agreements with the
secondary users.
S.The recovery of administrative costs incurred by the City in preparing,
considering, and authorizing the use, construction, or installation of
facilities within the public right-of-way is a cost of regulation and
management of the public right-of-way and authorized under state and
federal law.
T.Construction and operation of facilities in the public right-of-way is
intrusive and disruptive, and requires the Cityto manage the number of
times its citizens must bear the inconvenience of having its streets
excavated and the best times for it to occur.
15.86.020 Purpose.
The purpose of this chapter is to exercise the City’s lawful statutory and
police power authorityto regulate in the public interest the use of the right-
of-way by establishing procedures for the granting and termination of utility
franchises and by prescribing the rights, duties and obligations of a utility
operating within the rights-of-way.
15.86.030 Definitions.
The following terms, phrases, words and their derivations as used in this
Chapter shall have the meanings given herein.Words not defined herein
shall have the meaning given in Section 15.52.020 or Section 1.04.010 of
the Yelm Municipal Code.Words not defined herein or in Chapter 15.52
Chapter 1.04 of the Yelm Municipal Code, shall have the meaning given
pursuant to such federal statutes, rules, or regulations that apply to and
regulate the services provided by the Grantee.Words not otherwise defined,
shall be given their common and ordinary meaning.When not inconsistent
with the context, words used in the present tense include the future, words
in the plural include the singular, and words in the singular include the
plural.
The word “shall” is always mandatory and not merely directory.
References to governmental entities (whether persons or entities) refer to
those entities or their successors in authority.If specific provisions of law,
regulation or rule referred to herein be renumbered, then the reference shall
be read to refer to the renumbered provision.
“Administrator” means the Yelm City Administrator, or his/her designee.
“Applicant” is the entity to which a franchise will be granted.
“Authorized Person” is the person authorizedby applicant to complete and
file an application on behalf of Applicant and who is authorized to receive
any notices on behalf of applicant of any action taken by the City regarding
the franchise application.
“City” means Cityof Yelm.
“Council” or “CityCouncil” means the City Council of the Cityof Yelm.
“Director” means the director of the Cityof Yelm public works department.
“Franchise” refers to the authorization, and the terms and conditions
thereof, granted by the Cityto a utility operator, giving the utility operator
the non-exclusive right to occupy the space, or use utility facilities upon,
across, beneath, or over any right-of-way within the franchise area to
provide utility service.Any franchise shall be issued in the form of an
ordinance, and must be accepted by the grantee to become effective in the
time and manner specified in the Yelm Municipal Code or the franchise
ordinance.
Such Franchise shall not include or be a substitute for:
1.Any other license or authorization required for the privilege of
transacting and carrying on business within the City;
2.Any permit, agreement, or authorization required in connection with
operations on or in public streets or property, including, by way of
example and not limitation, utility permits; or
3.Any permits or agreements for occupying any other property in the
City for which access is not specifically granted by the franchise
including, without limitation, permits and agreements for placing
devices on or in poles, conduits, other structures, or railroad
easements, whether owned by the City or a private entity.
“Franchise Area” means the area of the City that a utility operator is
authorized to serve by the terms of its franchise or by operation of law.
“Franchise Ordinance” shall mean the ordinance granting a franchise to an
applicant.
“Grantee” means utility operators granted rights and bound by obligations as
more fully described in a franchise granted pursuant to this Chapter.
“Ordinance” shall, unless a different meaning is intended, mean andrefer to
the ordinance enacting the provisions of this Chapter 15.86 of the Yelm
Municipal Code.
“Overhead facilities” means utility facilities located above the surface of the
ground, including the underground supports and foundations for such
facilities.
“Person” means and refers to corporations, companies, associations, firms,
partnerships, limited liability companies, other entities and individuals;
provided that, this term shall not mean or refer to the City of Yelm.
“Rights-of-way” of “Right-of-way” means and includes the surface of and
space above and below any property in the Cityin which the Cityhas any
interest whether in fee, through right of way dedication, easements or
otherwise, or interest as a trustee for the public, as they now or hereafter
exist, and used or dedicated for public transportation, including, but not
limited to, all public streets, highways, avenues, roads, reservoirs, alleys,
sidewalks, tunnels, viaducts, bridges, skyways, parks, trails, or any other
public place, area or property under the control of the City.
“State” means the state of Washington.
“Underground facilities” means utility facilities located under the surface of
the ground, alone or in combination, direct buried or in utility tunnels or
conduits, excluding the underground foundations or supports for overhead
utility facilities.
“Utility” or “Utility operator” means any person owing, operating, managing
or maintaining a water, sanitary sewer, storm-water, electric energy, street
light, or petroleum or natural gaspipeline, whether or not utility service is
made generally available to the public.
“Utility facilities” or “facilities” means the plant, equipment and property
including, but not limited to, the poles (with or without cross-arms), wires,
lines, pipes, mains, conduits, ducts, cables, mains, laterals, conduits,
feeders, regulators, braces, guys, anchors, vaults, meters, meter-reading
devices, communication systems, distribution and transmission systems, and
any and all other equipment, appliances, attachments, appurtenances and
other items necessary, convenient, or in any way appertaining to any and all
of the foregoing, located under, on or above the surface of the ground within
rights-of-way and used or to be used for the purpose of providing utility
services.
“Utility service” shall mean the service or services provided by the utility
operator.
“Utility System” shall mean collectively the utility facilities that together with
other facilities, appurtenances and equipment of grantee or other persons
are used to provide a utility service or services whether or not such service
is provided to the public in general.
“Washington Utilities and Transportation Commission” or “WUTC” means the
state administrative agency, or lawful successor, authorized to regulate and
oversee telecommunications carriers and telecommunications services in the
state of Washington to the extent prescribed by law.
“YMC” means the Yelm Municipal Code.
15.86.040. Franchise Required.
A.Franchise Required.No utility operator shall own, manage, maintain, or
operate utility facilities within the right-of-way without having in place a
current and valid franchise except as provided in the subsections below.
B.Transitional provisions.The operator of any utility facility, the operation
of which is required to be franchised under this Chapter, shall have six
(6) months from February 12, 2015 to file an application for a Franchise
under this Chapter.
Any utility operator timely filing such an application shall not be subject
to a penalty under this Chapter for failure to have such a franchise, as
long as said application remains pending; provided, however, nothing
herein shall relieve any utility operator of any liability for its failure to
obtain any permit, or other authorization required under other provisions
of the Yelm Municipal Code, and nothing herein shall prevent the City
from requiring removal of any facilities installed in violation of the Yelm
Municipal Code.
C.Persons holding Franchises. Any person holding an outstanding franchise
from the City for a utility system may continue to operate under the
existing franchise to the conclusion of its present term (but not any
renewal or extension thereof) with respect to those activities expressly
authorized by the franchise; provided, however, that such grantee may
elect at any time to apply for a superseding franchise under this Chapter
and must seek additional franchises to provide other services; and,
provided further, that, such person shall be subject to the other
applicable provisions of the Yelm Municipal Code to the extent permitted
by law.
D.Persons with pending applications. Applications pending on February12,
2015 shall be subject to this Chapter.
A person with a pending application shall be provided 30 days from
February 12, 2015to submit additional information to comply with the
requirements of this Chapter governing applications.
E.Transitional rules to be narrowly interpreted. It is the intent of the City to
apply the provisions of this Chapter to utility operators that now occupy
or may in the future occupy rights-of-way, except to the extent federal
or state law prevents it from doing so.
F.Nothing herein requires the City to enforce this Chapter against other
governmental agencies providing utility service in the City if the City is
prevented from doing so as a matter of law or if the City has entered into
an agreement or agreements with a utility operator or operators to
provide utility service within the City, or to manage, maintain, or operate
utility facilities within the City.
15.86.050 Franchise Application; Fees; Deposit.
A.City Forms; Application Information.Any utility operator required to
obtain a franchise hereunder, or seeking to renew a franchise, shall file
an application with the City for a franchise provided on a form by the
administrator.
The applicant shall include the following information with the application,
unless the requirement for such information is waived by the
Administrator for cause:
1.The following contact information for the Authorized Person:
a.Name;
b.Title;
c.Mailing Address;
d.URL;
e.Phone Number; and
f.Electronic Mail Address (Optional).
2.The legal and d/b/a names, mailing address, Washington tax number,
and phone number of applicant.
3.If a corporation, state the name and address of the registered agent
of applicant in Washington State, and the state of incorporation of
applicant.
4.If applicant is something other than a corporation, such as a
partnership or limited liability company, state the names and
business addresses of the principals.
5.As to any portion of the utility system applicant proposes to initially
install, and to any such portion of the utility system currently
existing, within the public rights-of-way of the City of Yelm, describe
and identify:
a.The general route of the existing or proposed utility system;
b.The approximate linear feet of overhead and underground utility
system facilities;
c.The construction techniques that applicant proposes to use for
underground installations;
d.The type of overhead and underground utility facilities, including
any equipment proposed to be installed related thereto;
e.The power sources that will be used, if any, and a description of
the noise, exhaust, and pollutants, if any, that will be generated
by the operation of the same.
6.If the Applicant intends to provide, or is providing, services to
residents or businesses located within the corporate boundaries of
the City, a description of the services applicant provides or intends to
provide.
7.Information sufficient for the Cityto determine whether the applicant
is subject to franchising under this Chapter;
8.Information sufficient for the Cityto determine whether the
transmission, origination or receipt of the utility services provided or
to be provided bythe applicant constitutes an occupation or privilege
subject to any Citytax, permit, license or franchise fee;
9.A statement from the applicant documenting that it has complied with
all registration and related filings requirements of the WUTC or such
other governmental body having regulatory and/or licensing
jurisdiction and authority over the applicant;
10.Such other information as the City may request and that it finds
reasonable and necessary to the determination to grant or deny a
franchise or franchise renewal application and which may be lawfully
required.
B.Completed Application.The application will not be deemed complete
without applicant providing the information required by the City and the
applicant attaching a declaration of an authorized person certifying the
truth and accuracy of the information provided in the application and
depositing the application fee as required under this Chapter.
The City shall within fifteen (15) business days of receipt of an
application, notify the applicant that the application is not complete.
If such notice is not timely given the applicant shall be deemed complete
from the date the application is received by the City.
Any notice provided under this subsection shall be deemed given upon
personal service of applicant, or upon deposit in the United States mail in
a properly stamped envelope addressed to the mailing address provided
in the application for the applicant.
C.Application Fees.The application fee shall be the actual costs of City
stafftime and resources as well as any outside consultation expenses
which the Cityreasonably determines are necessary to adequately review
and analyze the application. Each application under this Chapter for a
franchise, or renewal thereof, shall be accompanied by an application fee
deposit in the initial amount of $5,000, which shall be deposited with the
City.
D.Purpose.The purpose of the application fee is to ensure full recovery of
Citycosts and expenses in connection with the review of the application
including, but not limited to, actual costs of Citystaff time and resources
as well as any outside consultation expenses which the Cityreasonably
determines are necessary to adequately review and analyze the
application.
E.Application of FeeDeposit.The application fee deposit shall be credited
towards other fees or deposits due to the City, less any ascertainable
costs and expenses incurred by the Cityin connection with the
application. The City may draw upon the application fee deposit to pay
for such expenses.
F.Duty to Replenish.To the extent that the initial deposit is insufficient to
fund full recovery of Citycosts and expenses, within 30 days after
written demand, the applicant shall replenish the application fee.
Applicant shall be entitled to a refund of any unencumbered amounts
remaining from the application fee upon conclusion of the process for
review and approval or denial of a franchise.
G.The outcome of the City’s process for review and approval of a franchise
is independent of and is in no way biased, prejudiced or predetermined in
any way by the submission of an application fee.
15.86.060 Determination by the City.
Within 120 days after receiving a complete application hereunder, the City
Council shall make a determination granting or denying a franchise
application.
The grant of a franchise application shall be made by ordinance approving a
franchise upon the terms and conditions set forth in the franchise.
If the application is denied, the determination shall include the reasons for
denial. The following enumerated criteria shall apply when determining
whether to grant or deny the application:
A.The financial and technical ability of the applicant to fulfill its obligations
under a franchise;
B.The legal status of the applicant;
C.The capacity of the rights-of-way to accommodate the applicant’s utility
facilities;
D.The capacity of the rights-of-way to accommodate additional utility
facilities if the application is granted;
E.The damage or disruption, if any, to public or private facilities,
improvements, services, travel or landscaping if the application is
granted, giving consideration to an applicant’s willingness and ability to
mitigate and/or repair same;
F.The public interest in minimizing the cost and disruption of construction
within the rights-of-way;
G.The service that applicant will provide to the region;
H.The effect, if any, on general public health, safety and welfare in the
City’s sole opinion if the application is granted;
I.The availability of alternate routes or locations for the proposed utility
facilities;
J.Applicable federal, state and local laws, regulations, rules and policies;
and
K.Such other factors as may demonstrate that the grant to use the rights-
of-way will serve the community interest.
If an existing grantee is required by the WUTC, or other applicable law, to
provide service to anyone requesting it within the franchise area, the
determination by the Cityto deny the application is not applicable, and the
City shall grant a franchise upon reasonable and lawful terms and conditions
that, in the judgment of the City, serve and protect the public interest.
15.86.070 Agreement.
A.No franchise shall be effective unless the City Council has approved the
grant of a franchise by ordinance and the applicant/grantee has accepted
the terms and conditions of the franchise by written instrument, in a
form acceptable to the City Attorney, which shall be executed and filed
with the Citywithin 30 days of the effective date of the franchise
ordinance.
In its acceptance, a grantee shall declare that it has carefully read the
terms and conditions of this chapter and the franchise and accepts all of
the terms and conditions of this chapter and the franchise and agrees to
abide by same.
In accepting a franchise, a grantee shall indicate that it has relied upon
its own investigation of all relevant facts, that it had the assistance of
counsel, that it was not induced to accept a franchise, and that it accepts
all reasonable risks related to the interpretation of the franchise.
B.All franchises granted pursuant to this Chapter shall contain substantially
similar terms and conditions which, taken as a whole and considering
relevant characteristics of the applicants, do not provide more or less
favorable terms and conditions than those required of other grantees;
provided that, notwithstanding the foregoing, nothing herein shall
prevent the Cityfrom requiring terms and conditions that conform to
standards, rules, orders, design guidelines and regulations that are
issued, promulgated or made pursuant to the provisions of this chapter
or other lawful authority, and which are applicable to grantee.
C.A franchise issued pursuant to the provisions of this Chapter shall be
deemed to constitute a contract between a grantee and the City. In the
event of a conflict between the provisions of this Chapter and a franchise
issued pursuant hereto, the provisions of this Chapter shall govern unless
the franchise clearly states the parties’ intent to have the provisions of
the franchise control over the provisions of this Chapter. Each party shall
be deemed to have contractually committed itself to comply with the
terms, conditions and provisions of the franchise granted, and a grantee
shall further comply with all written standards, rules, orders, design
guidelines and regulations issued, promulgated or made pursuant to the
provisions of this chapter or other lawful authority and which are
applicable to grantee.
15.86.080 Application of Chapter 15.72 YMC.
A.Application of Chapter 15.72 YMC. The provisions of Chapter 15.72 of
the Yelm Municipal Code, as now or may hereafter be amended, are
hereby made applicable to all utility operators.
For purposes of this Chapter, any reference therein to
telecommunications or cable facilities shall mean and refer to utility
facilities, and any reference therein to grantee shall mean and refer a
grantee of a utility franchise as provided under this Chapter.
B.Conflict. In the event of a conflict between a requirement or condition
of this chapter and a requirement or condition under YMC Ch. 15.72,
such requirement or condition of this Chapter shall control to the extent
of the conflict, except to the extent such requirement or condition is
controlled by state or federal law or regulation, in which case the state or
federal law or regulation shall control to the extent of the conflict.
C.Franchise May Govern. In the event of a conflict between the provisions
of Ch. 15.72 YMC, as made applicable pursuant to the provisions of this
Section, and a franchise issued pursuant to this Chapter, such provisions
of YMC Ch. 15.72 shall govern unless the franchise clearly states the
parties’ intent to have the provisions of the franchise control over the
provisions of YMC Ch. 15.72.
15.86.090 Nonexclusive franchise.
No franchise granted hereunder shall confer any exclusive right, privilege or
franchise to occupy or use the rights-of-way for delivery of utility services or
any other purposes.
15.86.100 Use granted.
A.No franchise granted hereunder shall convey any right, title or interest in
the rights-of-way but shall be deemed a franchise only to use and occupy
the rights-of-way for the limited purposes and term stated in the grant.
B.No franchise granted hereunder shall authorize or excuse a grantee from
securing such further easements, leases, permits or other approvals as
may be required to lawfully occupy and use rights-of-way.
C.No franchise granted hereunder shall be construed as any warranty of
title.
15.86.110 Term of franchise.
Unless otherwise specified in a franchise agreement, a franchise granted
hereunder shall be valid for a term of not more than 10 years.
15.86.120 Franchise Area.
A franchise granted hereunder may be limited to the specific geographic
area of the Cityto be served by the grantee, and the specific rights-of-way
and portions thereof, as may be identified in the franchise agreement.
15.86.130 Construction permits.
All grantees are required to obtain permits and pay all fees as may be
lawfully required by the City; provided, however, that nothing in this
Chapter shall prohibit the Cityand a grantee from agreeing to alternative
plan review, permit and construction procedures in a franchise agreement;
and further provided, that such alternative procedures providesubstantially
equivalent safeguards for responsible construction practices.
15.86.140 Amendment of franchise.
A.The grantee shall apply for an amendment to an existing franchise when
a grantee desires to extend its franchise area or to locate its utility
facilities in rights-of-way which are not included in a franchise previously
granted hereunder or when it desires to offer services beyond those
authorized in the franchise.
All amendments shall be approved by ordinance of the City Council.
B.It shall not be a violation of this Chapter for the grantee, upon request or
order of the City, to locate or relocate its utility facilities in rights-of-way
to a portion of the right-of-way not included in the franchise area.
15.86.150 Renewal applications.
A grantee that desires to renew its franchise hereunder shall, not more than
180 days or less than 120 days before expiration of the current franchise,
file an application with the Cityfor renewal of its franchise which shall
include the following information:
A.The applicable information required pursuant to YMC 15.86.050.
B.Any other information reasonably required by the Cityand related to the
grantee’s use of and operation within the right-of-way.
15.86.160 Renewal determinations.
Within 120 days after receiving a complete application hereunder for
renewal, the council shall make a determination on behalf of the City
granting or denying the renewal application in whole or in part.
If the renewal application is denied, the determination shall include the
reasons for nonrenewal. The criteria enumerated in YMC 15.86.060 shall
apply when determining whether to grant or deny the application, and may
further consider whether the applicant has substantially complied with the
material terms of the existing franchise and with applicable law, whether the
applicant’s construction, installation, operation or maintenance practices for
the utility system are or have been conducted in an unsafe or dangerous
manner, and whether the applicant has the ability to provide the services,
facilities and equipment as set forth in the application.
The grant of renewal shall be by ordinance of the City Council.
15.86.170 Obligation to Cure as a Condition of Renewal.
No franchise shall be renewed until any ongoing violations or defaults in the
grantee’s obligations under the franchise agreement, the requirements of
this Chapter, and all applicable laws, statutes, codes, ordinances, rules and
regulations have been cured, or a plan detailing the corrective action to be
taken by the grantee has been approved by the administrator. Failure to
comply with the terms of an approved plan shall be grounds for nonrenewal
or immediate revocation of the franchise.
15.86.180 No waiver.
The failure of the City to enforce any provision of this Chapteron any
occasion shall not operate as a waiver or estoppel of the right to enforce any
provision of this Chapter on any other occasion, nor shall the failure to
enforce any prior ordinance affecting utility operators or utility systems act
as a waiver or estoppel against application of this Chapter any other
provision of applicable law.
15.86.190 Subject to authority.
A grantee shall, at all times during the term of a franchise, be subject to all
lawful exercise of the police power by the Cityand to such lawful regulations
as the Cityshall hereafter enact. A grantee shall construct, operate and
utility facilities or other improvements in full compliance with all other
applicable rules and regulations now in effect or hereafter adopted by the
United States,the state of Washington, the Cityor any agency of said
governments with jurisdiction over said activities.
15.86.200 Violation; Penalties.
A.Civil Infraction. A violation of the requirements of YMC 15.86.040
(Franchise Required) shall be designated asa Class 1 civil infraction
pursuant to Chapter 7.80 RCW. A separate and distinct violation shall be
deemed committed each day on which a violation occurs or continues.
B.Termination or Revocation. In addition to the civil penalties set forth in
this section, violation of any provision of this Chapter or any franchise
issued pursuant thereto may also result in the revocation and
termination of any such franchise.
C.Other Remedies. Notwithstanding any other provision in this Chapter,
the Citymay 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 Chapter or any franchise issued pursuant
thereto when civil or criminal penalties are inadequate to effect
compliance.