Chapter 11.08
FACILITIES LEASE
Sections:
11.08.030 Determination by the city.
11.08.090 Ownership and removal of improvements.
11.08.100 Compensation to the city.
11.08.120 Renewal application.
11.08.130 Renewal determination.
11.08.140 Obligation to cure as a condition of renewal.
11.08.010 Facilities lease.
In its sole discretion, which is hereby reserved, the city council may approve facilities leases for the location of telecommunications facilities and other facilities upon city property, as that term is defined in this title. Neither this section, nor any other provision of this title, shall be construed to create an entitlement or vested right in any person or entity of any type. Facilities leases granted for the installation and/or construction of wireless communications facilities shall also comply with the terms and provisions of TMC Chapter 11.20.
(Ord. O2018-025, Amended, 12/18/2018; Ord. O97-021, Added, 07/21/1998)
11.08.020 Lease application.
Any person that desires to solicit the city’s approval of a facilities lease pursuant to this chapter shall file a lease proposal with the city’s community development department, which shall include the following:
A. A description of the telecommunications facilities or other equipment proposed to be located upon city property;
B. A description of the city property upon which the applicant proposes to locate telecommunications facilities or other equipment;
C. Preliminary plans and specifications in sufficient detail to identify:
1. The location(s) of existing telecommunications facilities or other equipment upon the city property, whether publicly or privately owned.
2. The location and source of electric and other utilities required for the installation and operation of the proposed facilities;
D. Accurate scale conceptual drawings and diagrams of sufficient specificity, including photo simulations, to analyze the aesthetic impacts of the proposed telecommunications facilities or other equipment;
E. A description of the services or facilities that the applicant will offer or make available to the city and other public, educational, and governmental institutions;
F. Such other and further information as may be requested by the city, which shall be reasonably related to the city’s consideration of a lease application for a particular site; and
G. An application fee, which shall be set by the city council by resolution.
(Ord. O2018-025, Amended, 12/18/2018; Ord. O2011-002, Amended, 03/01/2011; Ord. O97-021, Added, 07/21/1998)
11.08.030 Determination by the city.
Recognizing that the city is under no obligation to grant a facilities lease for the use of city property, the city shall strive to consider and take action on applications for facilities leases within one hundred twenty days after receiving a complete application for such a lease. When such action is taken, the city shall issue a written determination granting or denying the lease in whole or in part, applying the standards set forth below, or any other such criteria as the city may choose to apply. If the lease application is denied, the determination shall include the reason for denial, if any.
A. The capacity of the city property and rights-of-way to accommodate the applicant’s proposed facilities.
B. The capacity of the city property and rights-of-way to accommodate additional utility and communications facilities if the lease is granted.
C. The damage or disruption, if any, of public or private facilities, improvements, service, travel, or landscaping if the lease is granted.
D. The public interest in minimizing the cost and disruption of construction upon city property and within the rights-of-way.
E. The service that applicant will provide to the community and region.
F. The effect, if any, on public health, safety, and welfare if the lease requested is approved.
G. The availability of alternate routes and/or locations for the proposed facilities.
H. Whether the applicant is in compliance with applicable federal and state telecommunications laws, regulations, and policies, including, but not limited to, the registration requirements administered by the Washington Utilities and Transportation Commission.
I. The potential for interference with existing public and private telecommunications or other facilities located upon the city property.
J. The potential for interference or impacts upon residential, commercial, and other uses located within the vicinity of the city property.
K. With specific respect to radio frequency interference, the level of confidence in the commitments an applicant is willing to make regarding compliance with all applicable federal standards, the documentation to be provided demonstrating such compliance, and the agreement that an applicant is willing to make regarding the city’s ability to protect threats to public health and safety that may flow from any noncompliance.
L. Such other factors, such as aesthetics, as may demonstrate that the lease to use the city property will serve the community interest.
M. The maximization of colocation opportunities with other similar uses.
(Ord. O2018-025, Amended, 12/18/2018; Ord. O97-021, Added, 07/21/1998)
11.08.040 Agreement.
No facilities lease shall be deemed to have been granted hereunder until the applicant and the city have executed a written agreement setting forth the particular terms and provisions under which the lessee has been granted the right to occupy and use the city property.
(Ord. O2018-025, Amended, 12/18/2018; Ord. O97-021, Added, 07/21/1998)
11.08.050 Nonexclusive lease.
No facilities lease granted under this chapter shall confer any exclusive right, privilege, license, or franchise to occupy or use city property for delivery of telecommunications services or any other purposes.
(Ord. O2018-025, Amended, 12/18/2018; Ord. O97-021, Added, 07/21/1998)
11.08.070 Rights granted.
No facilities lease granted under this chapter shall convey any right, title, or interest in the city property, but it shall be deemed a tenancy only to use and occupy the city property for the limited purposes and term stated in the lease agreement. Further, no facilities lease shall be construed as any warranty of title.
(Ord. O2018-025, Amended, 12/18/2018; Ord. O97-021, Added, 07/21/1998)
11.08.090 Ownership and removal of improvements.
No facilities lease shall be granted under this chapter unless it contains a provision which states that all buildings, landscaping, and all other improvements, except telecommunications equipment, shall become the property of the city upon expiration or termination of the lease. In the event that the city requires removal of such improvements, such removal shall be accomplished at the sole expense of the lessee and completed within ninety days after receiving notice from the city requiring removal of the improvements. In the event that telecommunications facilities or other equipment are left upon city property after expiration or termination of the lease, they shall become the property of the city if not removed by the lessee upon thirty days’ written notice from the city.
(Ord. O2018-025, Amended, 12/18/2018; Ord. O97-021, Added, 07/21/1998)
11.08.100 Compensation to the city.
Each facilities lease granted under this chapter shall include a fair and reasonable compensation to be paid for the rights granted to the lessee in amounts to be negotiated by the parties on a case-by-case basis. Any payments received after the due date shall include a late payment penalty of two percent of the annual rental fee for each day or part thereof past the due date. The compensation shall be negotiated by the city administrator or designee, subject to the city council’s final approval, based on the following criteria:
A. Comparable lease rates for other public or private property;
B. In the case land is leased, an appraisal opinion upon which the land and airspace is rented;
C. If structure of another user is involved, any amount needed to reimburse that user; in addition to the above; and
D. A yearly escalator rate within a range used in comparable leases with public and private property owners in the region.
(Ord. O2018-025, Amended, 12/18/2018; Ord. O97-021, Added, 07/21/1998)
11.08.120 Renewal application.
A lessee that desires to renew its facilities lease under this chapter shall, not more than one hundred eighty days nor less than one hundred twenty days before expiration of the current facilities lease, file an application with the city for renewal of its facilities lease, which shall include the following:
A. The information required pursuant to TMC 11.08.020;
B. Any information required pursuant to the facilities lease agreement between the city and the lessee;
C. All deposits or charges required pursuant to this chapter; and
D. An application fee, which shall be set by the city council by resolution.
(Ord. O2018-025, Amended, 12/18/2018; Ord. O97-021, Added, 07/21/1998)
11.08.130 Renewal determination.
Recognizing that the city is under no obligation to grant a renewal of a facilities lease for the use of city property, the city shall strive to consider and take action on applications for renewal of such leases within sixty days after receiving a complete application for such a lease renewal. When such action is taken, the city shall issue a written determination granting or denying the lease renewal in whole or in part, applying the standards set forth below, or any other such criteria as the city may choose to apply. If the renewal application is denied, the written determination shall include the reason for denial, if any.
A. The financial and technical ability of the applicant.
B. The legal ability of the applicant.
C. The continuing capacity of the city property to accommodate the applicant’s existing facilities.
D. The applicant’s compliance with the requirements of this chapter and the lease agreement.
E. Applicable federal, state, and local laws, rules, and policies.
F. Such other factors as may demonstrate that the continued grant to use the city rights-of-way will serve the community interest.
(Ord. O2018-025, Amended, 12/18/2018; Ord. O97-021, Added, 07/21/1998)
11.08.140 Obligation to cure as a condition of renewal.
No facilities lease shall be renewed until any ongoing violations or defaults in the lessee’s performance of the lease agreement, or of the requirements of this title, have been cured, or a plan detailing the corrective action to be taken by the lessee has been approved by the city.
(Ord. O2018-025, Amended, 12/18/2018; Ord. O97-021, Added, 07/21/1998)