Chapter 18.06
ADMINISTRATIVE PROVISIONS
Sections:
18.06.020 Determination by the city.
18.06.070 Facilities lease provisions.
18.06.100 Renewal determination.
18.06.110 Obligation to cure as a condition of renewal.
18.06.010 Applications.
A. Right-of-Way License Application.
1. Required Information. Any person that desires a right-of-way license pursuant to this title shall file an application with the city, which application shall be made on the city’s forms, and shall include the following information and materials:
a. The identity of the applicant and persons who are authorized by the applicant to exercise control over the applicant’s operations within the city;
b. A description of the telecommunications services that are or will be offered or provided by the applicant over its telecommunications facilities. Only general, nonproprietary information need be provided;
c. Whether the applicant intends to provide title service, open video system service, or other video programming service, and sufficient information to determine whether such service is subject to the city’s applicable cable franchising ordinances and regulations, in which case a separate cable television franchise from the city must be obtained. Only general, nonproprietary information need be provided;
d. At the time of the application, maps of the applicant’s facilities intended to be located within the city’s public rights-of-way, or on city property. The director shall have the discretion to prescribe the format and/or media of the maps, consistent with city codes and policies. To the extent compatible with the city’s software, the grantee may provide maps in a computer readable format. The maps shall be in sufficient detail to identify:
i. The location and route requested for applicant’s proposed facilities;
ii. The specific trees, structures, improvements, facilities and obstructions, if any, situated within the public right-of-way or on city property that the applicant proposes to temporarily or permanently remove or relocate; provided, that trees with a caliper of less than six inches at a point three feet above grade need not be indicated;
e. A description of the city’s existing available facilities, such as utility poles, conduits, or vaults, that the applicant proposes to use to provide such telecommunications services. Use of the city’s facilities is subject to applicable city regulations and the facilities leases provided in Chapter 18.10 MVMC;
f. A preliminary construction schedule and completion date;
g. Copies of any applicable certificates that authorize the applicant to provide telecommunications services as may be required by federal or state law; and
h. Such other information as the director may reasonably require as it relates to the use of the public rights-of-way.
2. Deposits or Charges and Application Fees. The application shall be accompanied by all deposits or charges and application fees required pursuant to this title.
3. Proprietary Information. In the event any information required by the city is considered by the applicant to be a business or trade secret and/or proprietary information within the meaning of the Public Records Act, Chapter 42.17 RCW and/or the Uniform Trade Secrets Act, Chapter 19.108 RCW, then such information shall be provided to the city in a separate envelope clearly marked “Proprietary information: DO NOT DISCLOSE” on the exterior of the envelope. The city will exercise good faith efforts to protect the confidentiality of the business or trade secrets or proprietary information that are designated as such.
a. In the event a public disclosure request is made for information marked as proprietary, and if the city attorney determines that the information may be subject to being disclosed, or if the city determines that the information should be disclosed in connection with its enforcement of any provision of this title, or in the exercise of its police or regulatory powers, then the city shall make reasonable efforts to immediately notify the applicant of the applicant’s opportunity to seek a protective order from a court with appropriate jurisdiction. Any means of notification may be utilized that is reasonably calculated by the city to reach the applicant, including notices by facsimile, telephone, or electronic medium. It is the sole responsibility of the applicant to provide the city with current information to allow the city to contact the applicant in a timely fashion.
b. In the event that the applicant does not obtain a protective order within 10 days or, if shorter, the time limitation set forth in state law, then the city may disclose the information. It shall be a condition of any permit, license, or lease issued pursuant to this title, and any application therefor, that the applicant shall reimburse and indemnify the city for all costs and damages that may be awarded or assessed by the court for any actions the city took at the request of the applicant, in addition to the city’s reasonable attorney’s fees.
c. In lieu of the foregoing disclosure procedures set forth in subsections (A)(3)(a) and (b) of this section, the proper city officials may enter into a supplemental agreement providing for the protection, and disclosure, of such trade secrets and proprietary information in accordance with the disclosure provisions set forth in RCW 80.04.095; provided, that the applicant agrees to indemnify, defend, and hold the city harmless from any costs and expenses, including reasonable attorney’s fees, incurred by the city in resisting disclosure of the information identified as trade secrets and/or proprietary information by the applicant.
4. Applications for Transfer. An application for a transfer of a license to another person must contain the same information required by subsection (A)(1) of this section, except that, if the transferor submitted an application under subsection (A)(1) of this section, to the extent information provided by the transferor under subsection (A)(1) of this section remains accurate, the transferee may simply cross-reference the earlier application.
B. Facilities Lease Application.
1. Any person that desires to obtain the city’s approval of a facilities lease for telecommunications facilities pursuant to this chapter shall file a lease application with the city which application shall be made on the city’s forms, and which shall include the following information:
a. The identity of the applicant;
b. A description of the telecommunications facilities or other equipment proposed to be located upon city property;
c. A description of the city property upon which the applicant proposes to locate telecommunications facilities or other equipment;
d. Demonstration of compliance with Chapter 17.100 MVMC, Wireless Telecommunications Towers and Antennas, if applicable.
e. Preliminary plans and specifications in sufficient detail to identify:
i. The location(s) of existing telecommunications facilities or other equipment upon the city property if reasonably known, whether publicly or privately owned.
ii. The location and source of electric and other utilities required for the installation and operation of the proposed facilities.
f. Accurate scale conceptual drawings and diagrams of sufficient specificity to analyze the aesthetic impacts of the proposed telecommunications facilities or other equipment;
g. An accurate map showing the location of any existing telecommunications facilities in the city that applicant intends to use or lease;
2. All deposits or charges and application fees required pursuant to this title. (Ord. 2959 § 1, 1999).
18.06.020 Determination by the city.
A. Within 90 days after receiving a complete application under MVMC 18.06.010, the director shall issue a written recommendation to the city council that the application be granted or denied in whole or in part; provided, that if the director requests additional information from the applicant pursuant to MVMC 18.06.010, then in that event the 90-day time period shall be suspended until such time as the requested information is provided to the director; and provided further, that the 90-day review period shall not be construed by the applicant as a guarantee, warranty, or affirmation that the city will complete review within the 90-day time period.
B. If the director recommends that an application be granted, the director’s written recommendation to the city council shall be accompanied by appropriate legislation granting the same, for approval and adoption by the council.
C. If the director recommends that an application be denied, the director’s written recommendation to the city council shall include the reasons for denial.
D. The recommendation to grant or deny an application shall be based upon the following factors:
1. Whether the applicant has received all requisite permits and authorizations from any state or local agency with jurisdiction over the construction activities proposed by the applicant;
2. The capacity of the public ways to accommodate the applicant’s proposed facilities;
3. The capacity of the public ways to accommodate additional utility facilities if the authorization is granted;
4. The disruption, if any, of public or private facilities, improvements, service, or landscaping if the authorization is granted;
5. The anticipated consequences to public safety of disrupting travel within the public rights-of-ways;
6. The effect, if any, on public health, safety and welfare after the completion of construction if the authorization is granted; provided, that the potential effects of electromagnetic radiation shall not be considered;
7. The availability of alternate routes and/or locations for the proposed facilities; and
8. Such other factors as may demonstrate that the grant to use the public ways will adversely affect the public health, safety, and welfare.
E. The director’s recommendation to the city council shall be placed on the next available city council agenda; provided, that the city council may continue the matter to a later date.
F. The city council may accept, reject, or modify the director’s recommendation.
G. An applicant shall not be issued a license or lease if it files or in the previous three years filed materially inaccurate or misleading information in an application, or intentionally withheld information that the applicant lawfully is required to provide.
H. In the case of a transfer, any approval will also be subject to a determination that:
1. The transferee will agree to be bound by all the conditions of the license or lease, and will assume all the obligations of its predecessor; and
2. Any outstanding compliance and compensation issues will be resolved or preserved to the satisfaction of the city prior to the effective date of the transfer. (Ord. 2959 § 1, 1999).
18.06.030 Term.
A. Right-of-Way License. Unless otherwise specified in a right-of-way license, a right-of-way license granted hereunder shall be valid for a term of five years, subject to renewal as provided in this title.
B. Facilities Lease. Unless otherwise specified in a lease agreement, a facilities lease granted hereunder shall be valid for a term of one year, subject to annual renewal as provided in this title. (Ord. 2959 § 1, 1999).
18.06.040 Agreement.
No authorization 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 grantee has been granted the right to occupy and use public rights-of-way of the city. (Ord. 2959 § 1, 1999).
18.06.050 Nonexclusive grant.
No right-of-way license granted under this title shall confer any exclusive right, privilege, license or franchise to occupy or use the public rights-of- way or property of the city for delivery of telecommunications services or any other purposes. (Ord. 2959 § 1, 1999).
18.06.060 Rights granted.
A. General.
1. No right-of-way license or facilities lease granted under this chapter shall convey any right, equitable or legal title, or interest in the public rights-of-way or city property, but shall be deemed a right-of-way license or facilities lease only to use and occupy the public rights-of-way or city property for the limited purposes and on the terms stated in the agreement entered pursuant to MVMC 18.06.040, and subject to the limitations in this title. Further, no right-of-way license or facilities lease shall be construed as a warranty of title.
2. Every license or lease shall be:
a. Interpreted in a manner that conforms to the purposes of this title;
b. Deemed to provide for forfeiture under the circumstances set forth in the provisions of this title and any agreement granted hereunder; and
c. Construed to exclude the grant of any rights in any easement granted to the city for any purpose inconsistent with telecommunications purposes. (Ord. 2959 § 1, 1999).
18.06.070 Facilities lease provisions.
A. Interference with Other Users. No facilities lease shall be granted under this chapter unless it contains a provision substantially similar to the following:
The city may have previously entered into leases with other tenants for their equipment and antennae facilities on the same real property as that leased by lessee, and the lessee’s possessory interest extends only to the discrete area occupied by lessee. 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 makes no warranty that other telecommunications equipment, whether in place at the time of the execution of the lease or installed during the term of the facilities lease, is in compliance with applicable law and will not interfere with lessee’s equipment, and the city shall not in any way be 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 resolve 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 immediately eliminate any radio or television interference caused to city-owned facilities or surrounding residences at lessee’s own expense and without installation of any additional equipment or devices on city-owned equipment without the city’s consent.
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.
By executing this lease, lessee warrants that its facilities and equipment are presently in compliance with all applicable law, including and regulations promulgated by the Federal Communications Commission, and that lessee shall maintain such compliance at lessee’s expense.
B. Miscellaneous Provisions.
1. In each facilities lease, the city shall specifically disclaim any warranties, implied or otherwise, that the premises are fit for the lessee’s intended use, or for any other purpose.
2. In each facilities lease, the city reserves the right to inspect, make repairs, supply services, and show other prospective tenants the facilities. To this extent, the lessee waives its right to quiet enjoyment of the premises.
3. In each facilities lease, the lessee covenants that the premises will be used solely for the use and physical support of telecommunications facilities and associated equipment.
4. In each facilities lease, the lessee shall covenant that it will not create or permit to exist a nuisance on the demised premises.
5. In each facilities lease, the lessee shall consent to the lessor’s efforts to repair and maintain the property, as determined necessary in the lessor’s sole judgment.
6. In the event lessee claims constructive eviction, lessee’s sole remedy shall be termination of the facilities lease, together with repayment of any advance rents and/or deposits.
C. Ownership and Removal of Improvements.
1. No facilities lease shall be granted under this chapter unless it contains a provision which states that all buildings, landscaping, and all other improvements, excepting only telecommunications equipment, shall become the property of the city upon expiration or termination of the lease; provided, that the parties may mutually agree to some other disposition of such property which agreement shall be in writing. In the event that telecommunications equipment is 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 90 days’ written notice from the city, unless agreed to otherwise by the city.
2. 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 30 days after receiving notice from the city requiring removal of the improvements.
D. Cancellation of Lease by Lessee.
1. 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 of any rents paid, without further obligation by giving 30 days’ prior written notice to the city.
2. 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. 2959 § 1, 1999).
18.06.080 Amendment.
A. Except as provided within an existing right-of-way license or lease agreement, a new application shall be required of any person who desires to expand, modify, or relocate its telecommunications facilities in public rights-of-way or city property in any manner not authorized in the right-of-way license or lease agreement previously granted under this title.
B. If ordered by the city to locate or relocate its telecommunications facilities in public rights-of-way not included in a previously granted right-of-way license or lease agreement, the city shall grant an amendment to the right-of-way license or lease agreement without further application. (Ord. 2959 § 1, 1999).
18.06.090 Renewal.
A grantee that desires to renew its right-of-way license or lease agreement under this chapter for an additional term shall, not more than 180 days nor less than 90 days before expiration of the current right-of-way license, file an application with the city for renewal which shall include the following:
A. The information required pursuant to MVMC 18.06.010;
B. Any information specifically required by the existing right-of-way license or lease agreement between the city and the grantee;
C. All deposits or charges and application fees required pursuant to this title. (Ord. 2959 § 1, 1999).
18.06.100 Renewal determination.
Within 90 days after receiving a complete application for renewal of an existing right-of-way or facilities lease, the director shall issue a written recommendation to the city council that the renewal be granted or denied in whole or in part. The renewal of a facilities lease shall be within the sole discretion of the city council, and no facilities lease shall be construed so as to contain an option for an additional term. If the renewal application is denied, the written determination shall include the reasons for denial. The decision to grant or deny a renewal application shall be based upon the following standards, in addition to the standards set forth in MVMC 18.06.020:
A. The continuing capacity of the public rights-of-way to accommodate the applicant’s existing facilities; and
B. The applicant’s compliance with the requirements of this title and the existing right-of-way license or facilities lease. (Ord. 2959 § 1, 1999).
18.06.110 Obligation to cure as a condition of renewal.
No right-of-way license or lease agreement shall be renewed until any ongoing violations or defaults in the grantee’s performance under the right-of-way license or lease agreement, 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. (Ord. 2959 § 1, 1999).