Chapter 12.34
RIGHT-OF-WAY FRANCHISE POLICY
Sections:
12.34.030 Franchise agreement required.
12.34.040 Construction permits required.
12.34.060 Filing of applications.
12.34.070 Content of application.
12.34.080 Applicant representatives.
12.34.090 Consideration of applications.
12.34.100 Length of agreement.
12.34.120 Franchise agreement revocation.
12.34.140 State and federal preemption.
12.34.010 Policy.
The city requires individual franchises for the construction, operation or repair of communication and utility facilities within the public rights-of-way or upon public property. (Ord. 1571 NS § 1, 2016).
12.34.020 Definitions.
The following terms used in this chapter, unless otherwise indicated, shall be defined as follows:
A. “Activities” includes the installation or maintenance of any assets, structures, or facilities in the public right-of-way.
B. “Applicant” means the entity requesting the grant of a franchise agreement. The applicant shall identify itself as requested herein by providing the following information:
1. Identification of a natural person shall include:
a. Name;
b. Title, if appropriate;
c. Business address;
d. Phone number;
e. Fax number if available.
2. Identification of an entity that is not a natural person:
a. Official name (i.e., the name used to identify the entity in the records of the Washington Secretary of State, or under which the entity has been granted a federal tax identification number if it is not required to file with the Secretary of State);
b. Name and address of agent registered with the Secretary of State for the acceptance of legal service if applicable;
c. Washington State unified business identifier or, if that is not available, federal tax identification number.
C. “Demonstration” means the presentation of any of the following as evidence tending to support the satisfaction of the enumerated requirement:
1. Verifiable historical data;
2. Studies or reports based upon disclosed data sources;
3. Other forms of demonstrations specifically enumerated in this chapter.
D. “Facility” includes, but is not limited to, all structures, equipment, and assets for the operation of railroads and other routes for public conveyances, for poles, conduits, tunnels, towers and structures, pipes and wires and appurtenances thereof for transmission and distribution of electrical energy, signals and other methods of communication, for gas, steam and liquid fuels, for water, sewer and other private and publicly owned and operated systems for public service.
E. “Franchise” means a contractual agreement, under the authority of RCW 35A.47.040, between a utility and the city setting forth the terms and conditions under which the city grants the utility authority to install and maintain facilities in the public right-of-way.
F. “Grantee” means an applicant that has been granted a franchise agreement.
G. “Utility” means persons or private or municipal corporations owning or operating, or proposing to own or operate, facilities that comprise a system or systems for public service. (Ord. 1571 NS § 2, 2016).
12.34.030 Franchise agreement required.
It shall be unlawful to construct, install, maintain or operate any facility in, on, above or below the public right-of-way without a valid franchise agreement obtained pursuant to the provisions of this chapter and subsequent amendments, unless exempted by Washington State or federal statute, or Washington State Constitution. No one shall be permitted to perform activities in the public right-of-way without first obtaining a permit pursuant to the city of Colville development code. No one shall be granted a permit to perform any activities in, on, under, or above the public right-of-way without first obtaining and maintaining a valid franchise agreement. All permits to work in, on, under, or above the public right-of-way will be restricted to those practices specifically allowed by the applicant’s franchise agreement except: a permit to perform activities in the right-of-way other than the installation, construction or maintenance of facilities or to satisfy conditions of any land use approval related to private property adjacent to the right-of-way. (Ord. 1571 NS § 3, 2016).
12.34.040 Construction permits required.
The holder of a franchise granted pursuant to this chapter shall, in addition to said franchise, be required to obtain construction permits from the city. No work, construction, development, excavation, or installation of any equipment or facilities shall take place within the public ways until such time as the construction permits are issued. The permit procedure and requirements are governed by the city of Colville excavation permit procedure. (Ord. 1571 NS § 4, 2016).
12.34.050 Application to existing franchise ordinances, agreements, leases, and permits – Effect of other laws.
A. This chapter shall have no effect on any existing franchise ordinance, lease, or permit to use or occupy a public way in the city until:
1. The expiration of said franchise ordinance, agreement, lease, or permit; or
2. The amendment to an unexpired franchise ordinance, franchise agreement, lease, or permit, unless both parties agree to defer full compliance to a specific date not later than the present expiration date.
B. Nothing in this chapter shall be deemed to create an obligation upon any person for which the city is forbidden to require a permit, license, or franchise by federal, state, or other law. (Ord. 1571 NS § 5, 2016).
12.34.060 Filing of applications.
Applications for a franchise agreement will be considered pursuant to the procedures set forth in this chapter and amendments hereto. For good cause the city council may elect by resolution to waive any requirement set forth herein unless otherwise required by applicable law.
Applications shall be delivered to the city clerk, and shall, subject to applicable law, be accompanied by an application fee of $500.00. (Ord. 1571 NS § 6, 2016).
12.34.070 Content of application.
An application made pursuant to a request for proposal (RFP) shall contain all the information required thereby. Where an application is not filed pursuant to an RFP, it shall contain, at a minimum, the following:
A. All applicants that are not fully owned by, or a division of, a governmental agency, whether municipal, state, or federal, shall provide the following:
1. Identification of the applicant and proposed system owner, and, if the applicant or proposed owner is not a natural person, a list of all partners or stockholders holding 10 percent or more ownership interest in a grantee and any parent corporation; provided, however, that when any parent corporation has in excess of 1,000 shareholders and its shares are publicly traded on a national stock exchange, then identification of the parent corporation and its relationship to the subsidiary, if any, shall be provided.
2. An affirmed statement of whether the applicant, or any person controlling the applicant, or any affiliate of said controlling person, including any officer of a corporation or major stockholder thereof, has voluntarily filed for relief under any provision of the bankruptcy laws of the United States (Title 11 of the United States Code), had an involuntary petition filed against it pursuant to the Bankruptcy Code, been subject of any state law insolvency proceeding such as a transfer for the benefit of creditors, had a franchise agreement revoked, or has been found guilty by any court or administrative agency in the United States of:
a. A violation of a security or antitrust law; or
b. A felony or any other crime involving moral turpitude.
If so, the application shall identify any such person and fully explain the circumstances.
3. A demonstration of the applicant’s financial ability to construct and operate the proposed system, including, at the city’s option:
a. For a sole proprietorship or partnership:
i. A detailed, complete, and audited financial statement of the applicant, duly certified as true and correct by an executive officer of the company, for the five fiscal years last preceding the date of the application hereunder (three years may be substituted if five years of data is not available); or
ii. A letter or other acceptable evidence in writing from a recognized lending institution or funding source, addressed to both the applicant and the city, setting forth the basis of a study performed by such lending institution or funding source, a statement of the criteria used to evaluate that basis, and a clear statement of its intent as a lending institution or funding source to provide whatever capital shall be required by the applicant to construct and operate the proposed system in the city; or
iii. A statement from an independent certified public accountant, certifying that the applicant has available sufficient free, net and uncommitted cash resources to construct and operate the proposed system in the city.
b. For a corporation publicly traded on a national stock exchange:
i. The most recent public annual report filed with the Securities and Exchange Commission; or
ii. For a wholly owned subsidiary, the most recent public annual report filed with the Securities and Exchange Commission of the parent corporation along with a statement of the parent’s responsibility for the obligations of the subsidiary.
c. For any applicant, demonstration of an ability to obtain a bond sufficient, as determined by the director, to ensure adequate performance under the terms of the franchise.
B. All applicants shall provide the following:
1. A description of the physical facility proposed, the area to be served, a description of the technical characteristics of the existing service facilities and a map in a digital format acceptable to the city of the proposed and existing service system and distribution scheme;
2. A description of how any construction will be implemented, identification of areas having above ground or below ground facilities and the proposed construction schedule;
3. A description of the proposed services to be provided over the system;
4. Information as necessary to demonstrate compliance with all relevant requirements contained in this chapter;
5. An affidavit of the applicant, or duly authorized person, certifying, in a form acceptable to the city, the truth and accuracy of the information contained in the application and acknowledging the enforceability of application commitments.
C. In the case of an application by an existing grantee for a renewed franchise agreement, a demonstration that said grantee has substantially complied with the material terms of the existing agreement and with applicable law.
D. Other information that the city, or its agents, may reasonably request of the applicant in a timely manner. (Ord. 1571 NS § 7, 2016).
12.34.080 Applicant representatives.
Any person or entity who submits an application under this chapter shall have a continuing obligation to notify the city, in writing, of the names, addresses and occupations of all persons who are authorized to represent or act on behalf of the applicant in those matters pertaining to the application. The requirement to make such disclosure shall continue until the city has approved or disapproved an applicant’s application or until an applicant withdraws its application. (Ord. 1571 NS § 8, 2016).
12.34.090 Consideration of applications.
A. The city will consider each application for a new or renewed franchise agreement where the application is found to be in substantial compliance with the requirements of this chapter and any applicable RFP. In evaluating an application, the city will consider, among other things: (1) the applicant’s past service record in the city and in other communities, (2) the nature of the proposed facilities and services, (3) the proposed area of service, (4) the proposed rates (if applicable), (5) and whether the proposal would serve the public needs and the overall interests of the city residents.
In addition, where the application is for a renewed franchise agreement, the city shall consider whether: (1) the applicant has substantially complied with the material terms of the existing franchise agreement and with applicable law, (2) the quality of the applicant’s service, response to consumer complaints, and billing practices, (3) whether the applicant has the financial, legal and technical ability to provide the services, facilities, and equipment as set forth in the application, and (4) whether the applicant’s proposal is reasonable to meet the future community needs and interests, taking into account the cost of meeting such needs and interests.
B. If the city determines that an applicant’s proposal, including the proposed service area, would serve the public interest, it may grant a franchise agreement to the applicant, subject to terms and conditions as agreed upon between the applicant and the city. No franchise agreement shall be deemed granted unless and until an agreement has been fully executed by all parties. The franchise agreement will constitute a contract, freely entered into, between the city and the grantee. Any such franchise agreement must be approved by ordinance of the city council in accordance with applicable law.
C. In the course of considering an application for a renewed franchise agreement, the city council shall adhere to all requirements of applicable state and federal law. Neither grantee nor the city shall be deemed to have waived any right it may have under federal or state law by participating in a proceeding pursuant to this subsection. (Ord. 1571 NS § 9, 2016).
12.34.100 Length of agreement.
The period of a franchise agreement shall be as specified in the specific agreement. If a grantee seeks authority to operate in the city beyond the term of its franchise agreement, it shall file an application for a new agreement no later than 12 months prior to the expiration of its term. (Ord. 1571 NS § 10, 2016).
12.34.110 Franchise fee.
A. All franchise agreements executed by the city shall, unless otherwise precluded under state or federal law, include terms requiring a grantee to pay a fee in consideration of the privilege granted under a franchise agreement to use the public right-of-way and the privilege to construct and/or operate in the city. Said franchise fee shall be negotiated and incorporated in each franchise agreement; provided, however, that this fee may be offset by any utility tax paid by grantee or in-kind facilities or services provided to the city. Any grantee that does not provide revenue-generating services within the city shall provide alternate compensation as set out in the franchise agreement.
B. In the event that any franchise payment is not received by the city on or before the applicable due date, interest shall be charged from such date at the statutory rate for judgments.
C. In the event a franchise is revoked or otherwise terminated prior to its expiration date, a grantee who is not otherwise exempt from the franchise fee requirements of this section shall file with the city, within 90 days of the date of revocation or termination, a verified or, if available, an audited financial statement showing the gross revenues received by the grantee since the end of the previous year and shall make adjustments at that time for the franchise fees due up to the date of revocation or termination.
D. Nothing in this chapter shall limit the city’s authority to tax a grantee, or to collect any fee or charge permitted by law, and no immunity from any such obligations shall attach to a grantee by virtue of this chapter. (Ord. 1571 NS § 11, 2016).
12.34.120 Franchise agreement revocation.
Every franchise executed by the city shall contain provisions for revocation and enforcement. (Ord. 1571 NS § 12, 2016).
12.34.130 Enforcement.
Any violation of any provision, or failure to comply with any of the requirements of this chapter, shall be a civil violation subjecting the offender to a civil penalty of up to $100.00 for each of the first five days that a violation exists and up to $500.00 for each subsequent day that a violation exists. Payment of any such monetary penalty shall not relieve any person of the duty to correct the violation as set forth in the applicable notice and order. Any violation existing for a period greater than 30 days may be remedied by the city at the violator’s expense. (Ord. 1571 NS § 13, 2016).
12.34.140 State and federal preemption.
Nothing in this chapter shall authorize the city to impose burdens or apply standards on the applicant beyond those permitted by state and/or federal law. (Ord. 1571 NS § 14, 2016).