Chapter 15.86
FRANCHISES
Sections:
15.86.050 Franchise application – Fees – Deposit.
15.86.060 Determination by the city.
15.86.080 Application of Chapter 15.72 YMC.
15.86.090 Nonexclusive franchise.
15.86.130 Construction permits.
15.86.140 Amendment of franchise.
15.86.150 Renewal applications.
15.86.160 Renewal determinations.
15.86.170 Obligation to cure as a condition of renewal.
15.86.190 Subject to authority.
15.86.200 Violation – Penalties.
15.86.010 Findings.
A. The city right-of-way is critical for personal travel and the transport of goods, that the city uses 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 city to 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 city belongs 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 city has 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 city has the authority to develop and implement public right-of-way policies, management principles, 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 other things:
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 city from 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 lead and 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 flooding and 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 by improper 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 of the 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 city from monetary loss in the event of city liability due to acts of the secondary users of the public right-of-way.
M. The city should 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, nonrecourse, 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 government interest 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 to comply 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 city has 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 repaving, 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 city may assess the potential disruption of the public right-of-way during construction and installation, so that the city can 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 city can determine appropriate amounts of bonding, insurance, and other requirements to protect the public health, safety, and welfare, and so the city can 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 city to manage the number of times its citizens must bear the inconvenience of having its streets excavated and the best times for it to occur. (Ord. 995 § 13 (Exh. B), 2015).
15.86.020 Purpose.
The purpose of this chapter is to exercise the city’s lawful statutory and police power authority to 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. (Ord. 995 § 13 (Exh. B), 2015).
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 YMC 1.04.010 or 18.02.040. Words not defined herein or in Chapter 1.04 or 18.02 YMC 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 authorized by 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 city of Yelm.
“Council” or “city council” means the city council of the city of Yelm.
“Director” means the director of the city of Yelm public works department.
“Franchise” refers to the authorization, and the terms and conditions thereof, granted by the city to 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 and refer to the ordinance enacting the provisions of this chapter.
“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” or “right-of-way” means and includes the surface of and space above and below any property in the city in which the city has 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, stormwater, electric energy, street light, or petroleum or natural gas pipeline, 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. (Ord. 995 § 13 (Exh. B), 2015).
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 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 February 12, 2015, shall be subject to this chapter.
A person with a pending application shall be provided 30 days from February 12, 2015, to 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. (Ord. 995 § 13 (Exh. B), 2015).
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 city to determine whether the applicant is subject to franchising under this chapter;
8. Information sufficient for the city to determine whether the transmission, origination or receipt of the utility services provided or to be provided by the applicant constitutes an occupation or privilege subject to any city tax, 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 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 staff time and resources as well as any outside consultation expenses which the city reasonably 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 city costs and expenses in connection with the review of the application including, but not limited to, actual costs of city staff time and resources as well as any outside consultation expenses which the city reasonably determines are necessary to adequately review and analyze the application.
E. Application of Fee Deposit. 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 city in 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 city costs 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. (Ord. 995 § 13 (Exh. B), 2015).
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 city to 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. (Ord. 995 § 13 (Exh. B), 2015).
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 city within 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 city from 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. (Ord. 995 § 13 (Exh. B), 2015).
15.86.080 Application of Chapter 15.72 YMC.
A. Application of Chapter 15.72 YMC. The provisions of Chapter 15.72 YMC, 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 Chapter 15.72 YMC, 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 Chapter 15.72 YMC, as made applicable pursuant to the provisions of this section, and a franchise issued pursuant to this chapter, such provisions of Chapter 15.72 YMC shall govern unless the franchise clearly states the parties’ intent to have the provisions of the franchise control over the provisions of Chapter 15.72 YMC. (Ord. 995 § 13 (Exh. B), 2015).
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. (Ord. 995 § 13 (Exh. B), 2015).
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. (Ord. 995 § 13 (Exh. B), 2015).
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. (Ord. 995 § 13 (Exh. B), 2015).
15.86.120 Franchise area.
A franchise granted hereunder may be limited to the specific geographic area of the city to be served by the grantee, and the specific rights-of-way and portions thereof, as may be identified in the franchise agreement. (Ord. 995 § 13 (Exh. B), 2015).
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 city and a grantee from agreeing to alternative plan review, permit and construction procedures in a franchise agreement; and further provided, that such alternative procedures provide substantially equivalent safeguards for responsible construction practices. (Ord. 995 § 13 (Exh. B), 2015).
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. (Ord. 995 § 13 (Exh. B), 2015).
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 city for 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 city and related to the grantee’s use of and operation within the right-of-way. (Ord. 995 § 13 (Exh. B), 2015).
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. (Ord. 995 § 13 (Exh. B), 2015).
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. (Ord. 995 § 13 (Exh. B), 2015).
15.86.180 No waiver.
The failure of the city to enforce any provision of this chapter on 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. (Ord. 995 § 13 (Exh. B), 2015).
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 city and to such lawful regulations as the city shall 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 city or any agency of said governments with jurisdiction over said activities. (Ord. 995 § 13 (Exh. B), 2015).
15.86.200 Violation – Penalties.
A. Civil Infraction. A violation of the requirements of YMC 15.86.040 (Franchise required) shall be designated as a 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 city may 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. (Ord. 995 § 13 (Exh. B), 2015).