HomeMy WebLinkAboutO-2669 - Adds Ch. 5.73, wireless communication facility franchise regulations (5.73)CITY OF MARYSVILLE
Marysville,Washington
ORDINANCE NO.d-'l,Cf
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AN ORDINANCE OF THE CITY OF MARYSVILLE
ADOPTING WIRELESS COMMUNICATION FACILITY
FRANCHISE REGULATIONS AND ADOPTING A NEW
CHAPTER 5.73 OF THE MARYSVILLE MUNICIPAL
CODE.
WHEREAS,the City has been approached by wireless communication service
providers seeking a franchise to operate in the City's rights-of-way;and
WHEREAS,RCW 35.99.030 allows a city to require a telecommunications
service provider to obtain a master permit ("franchise")and to comply with city
regulations that govern the use of city rights-of-way;and
WHEREAS,it is in the public interest for the City to adopt regulations that
require a master permit or franchise for the use of City rights-of-way for wireless
communications facilities;
NOW,THEREFORE,THE CITY COUNCIL OF THE CITY OF MARYSVILLE
DO ORDAIN AS FOLLOWS:
Section I.A new Chapter 5.73 is hereby added to the Marysville Municipal Code to read
as follows.
5.73.010 Short Title
This chapter shall constitute the "wireless communication facility franchise regulations"
of the City of Marysville and may be referred to as such.
5.73.020 Definitions
For the purposes of this chapter,the following words, terms, phrases and their derivations
have the meanings given herein. When not inconsistent with the context, words used in
the present tense include the future tense, words in the singular number include the plural
number and words in the plural number include the singular number.
(I)"Applicant"means any person or entity that applies for an initial franchise.
(2)"City"means the city of Marysville,a municipal corporation of the state of
Washington,and all of the area within its boundaries,as such may change from time to
time.
(3)"City council"means the Marysville city council,or its successor, the governing body
of the city.
(4)"FCC"means the Federal Communications Commission.
Ordinance -Wireless Franchise
(5)"Franchise"or "master permit"or "Wireless Right-of-Way Use Agreement"means
an agreement adopted by ordinance that authorizes a person or entity to construct,
operate,maintain or reconstruct wireless facilities in city rights-of-way.Upon the written
acceptance by a franchisee,the agreement constitutes a contract between the city and
franchisee.
(6)"Franchise area"means the area within the jurisdictional boundaries of the city to be
served by a franchisee,including any areas annexed by the city during the term of a
franchise.
(7)"Franchisee"means the person, firm,corporation or entity to whom or which a
franchise, as hereinabove defined, is granted by the city council under this chapter and
the lawful successor,transferee or assignee of said person, firm,corporation or entity.
(8)"Right-of-way"or "rights-of-way"means all of the following which have been
dedicated to the public or are hereafter dedicated to the public and maintained under
public authority or by others and are located within the city: streets,roadways,highways,
avenues, lanes, alleys,bridges,sidewalks,easements and similar public property and
areas.
(9)"Site Fee Agreement"means the Addendum to Wireless Right-of-Way Use
Agreement:Site-Specific Right-of-Way Fee Agreement for Wireless Facilities,which
provides for site specific authorization by, and payment to, the city for use of city right-
of-way for a wireless communications facility.
(10)"Wireless operator"means any person or group of persons,including a franchisee,
who provide(s)wireless service over a wireless communication facility and directly or
through one or more affiliates owns a significant interest in such wireless communication
facility or who otherwise control(s)or is (are)responsible for,through any arrangement,
the management and operation of such a wireless communication facility.
(II)"Wireless service"means service through a wireless communication facility.
(12)"Wireless communication facility" or "WCF"shall have the meaning given in MMC
19.06.785.
5.73.030 Franchise Grant
It is unlawful to engage in or commence construction,operation,or maintenance of a
WCF in city rights-of-way without a franchise issued under this chapter. The city council
may, by ordinance,issue a nonexclusive franchise to construct,operate and maintain a
WCF within all or any portion of the city to any person or entity,whether operating under
an existing franchise or not, who applies for authority to do so in compliance with the
terms and conditions of this chapter, and provided that such person or entity also agrees
to comply with all of the provisions of the franchise.However,this shall not be deemed
to require the grant of a franchise to any particular person or entity. The city council may
restrict the number of franchisees should it determine such a restriction would be in the
public interest.
5.73.040 Franchise Purposes
A franchise granted by the city under the provisions of this chapter shall:
(I)Permit the franchisee to engage in or commence construction,operation,or
maintenance of a WCF within the city;
Ordinance - Wireless Franchise
(2)Permit the franchisee to erect,install,construct,repair,reconstruct,replace and retain
wires,cables,related electronic equipment,conduits and other property in connection
with the operation of a WCF in rights-of-way within the city; and
(3) Set forth the obligations of the franchisee under the franchise.
5.73.050 Nonexclusive Franchises
Any franchise granted pursuant to this chapter shall be nonexclusive and not preclude the
city from granting other or future franchises or permits.
5.73.060 Application
(I)An applicant for an initial franchise with the city shall submit to the city a written
application in a format provided by the city, at the time and place specified by the city for
accepting applications,and accompanied by the designated application fee. As permitted
by RCW 35.21.860,an application fee in the amount of $5,000 shall accompany the
application to cover costs associated with processing the application,including,without
limitation,costs of administrative review,financial,legal and technical evaluation of the
applicant,the costs of consultants,notice and publication requirements,and document
preparation expenses.In the event such costs exceed the application fee, the applicant
shall pay the difference to the city within 30 days following receipt of an itemized
statement of such costs.Conversely,if such costs are less than the application fee, the
city shall refund the difference to the applicant.
(2)Application -Contents.An application for an initial franchise with the city for a WCF
shall contain,at a minimum:
(a) A statement as to the proposed franchise and information relating to the
characteristics and location of the proposed WCF;
(b) A resume of prior history of the applicant,including the expertise of the applicant in
the wireless field;
(c)Information demonstrating the applicant's legal,technical and financial ability to
construct and operate the proposed WCF;
(d) A list of the partners,general and limited,of the applicant,if a partnership;members,
if a limited liability company;or the percentage of stock owned or controlled by each
stockholder having a five percent or greater interest,if a corporation;
(e) A list of officers,directors and key employees ofthe applicant,together with a
description of the background of all such persons;
(f) The names and addresses of any parent entity or subsidiary of the applicant or any
other business entity owning or controlling the applicant in whole or in part, or owned or
controlled in whole or in part by the applicant;
(g) A proposed construction and service schedule;
(h) Any other reasonable information that the city may request.
The city shall be allowed the opportunity to ask relevant follow-up questions and obtain
further information from whatever source. A refusal by an applicant to cooperate or
provide requested information is sufficient grounds for the city to deny an application.
(3)Consideration of Initial Franchise.Upon receipt of an application for an initial
franchise with the city and after obtaining any additional information the city in its sole
discretion deems appropriate from any source,a hearing shall be scheduled to allow
Ordinance - Wireless Franchise
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public comment.At the hearing,the city council shall receive public comment regarding
the following:
(a) Public Benefit.Whether the public will benefit from granting a franchise to the
applicant;
(b)Qualifications.Whether the applicant appears to have adequate legal, financial and
technical qualifications and capabilities to build,operate and maintain a WCF in the city;
(c) No Conflicting Interests.Whether the applicant has any conflicting interests,either
financial or commercial,that will be contrary to the interests of the city;
(d)Compliance with the Franchise and Local Laws.Whether the applicant will comply
with all of the terms and conditions placed upon a franchisee by the franchise, this
chapter,customer service standards and other applicable local laws and regulations;
(e)Compliance with Other Requirements.Whether the applicant will comply with all
relevant federal and state laws and regulations pertaining to the construction,operation
and maintenance of the WCF.
(4) Within 120 days after the submission of a complete application as provided in RCW
35.99.030,the city council shall decide whether to grant a franchise and on what
conditions. The city council's decision shall be based upon the application, any additional
information submitted by the applicant or obtained by the city from any source, and
public comments.The city council may grant one or more franchises,or may decline to
grant any franchise.
5.73.070 Duration
The term of any franchise,and all rights,privileges,obligations and restrictions
pertaining thereto, shall be specified in the franchise. The effective date of any franchise
shall be as specified in the franchise.
5.73.080 Franchise Area
Any franchise granted hereunder shall be valid for those geographic areas specified in the
franchise.
5.73.090 Police Powers
In accepting any franchise,the franchisee acknowledges that its rights thereunder are
subject to the police powers of the city to adopt and enforce general ordinances necessary
for the health,safety and welfare of the public, and it agrees to comply with all applicable
laws enacted by the city pursuant to such power.
5.73.100 Use of Rights of Way
For the purposes of operating and maintaining a system in the city, a franchisee may
place and maintain within the rights-of-way such property and equipment as are
necessary and appurtenant to the operation of the WCF.Prior to construction or
alteration ofthe WCF in the rights-of-way,the franchisee shall procure all necessary
permits,pay all applicable fees in connection therewith,and comply with all applicable
laws,regulations,resolutions and ordinances,including,but not limited to, and the
requirements in MMC 19.43.
5.73.110 Site Fee Agreements
Ordinance -Wireless Franchise
The franchisee shall comply with all obligations set forth in Site Fee Agreements,as
provided in, and attached to, the franchise.
5.73.120 Franchise Fees
The franchisee shall pay the city franchise fees in accordance with the terms of the
franchise.
5.73.130 Taxes
Nothing in this chapter shall limit the franchisee's obligation to pay applicable local, state
and federal taxes.
5.73.140 Other Authorizations
Franchisee shall comply with and obtain, at its own expense,all permits, licenses and
other authorizations required by federal, state and local laws, rules,regulations and
applicable resolutions and ordinances which are now existing or hereafter lawfully
adopted.
5.73.150 Rules and Regulations of the City
In addition to the inherent powers of the city to regulate and control any franchise it
issues and those powers expressly reserved by the city, or agreed to and provided for in a
franchise, the right and power is reserved by the city to promulgate such additional rules
and regulations as it may fmd necessary in the exercise of its lawful powers and in
furtherance of the terms and conditions of a franchise and this chapter, and as permitted
by applicable state and federallaw.
5.73.160 Delegation of Powers
Any right or power of the city may be delegated by the city to any officer,employee,
department or board of the city, or to such other person or entity as the city may designate
to act on its behalf.
5.73.170 Technical Standards
Franchisee shall construct,install, operate and maintain its WCF in a manner consistent
with all enacted and applicable federal, state and local laws and regulations,including
MMC 19.43, FCC technical standards and any other applicable standards set forth in the
franchise.
5.73.180 Safety Requirements
The franchisee shall, at all times, employ professional care and install,maintain and use
commonly accepted methods and devices for preventing failures and accidents which are
likely to cause damage,injuries,or nuisances to the public. In furtherance thereof, the
franchisee must comply with the city's traffic control requirements,including, for
example, but without limitation,the use of signal devices,warning signs and flaggers
when appropriate. All of franchisee's structures, cables, lines, equipment and connections
in, over, under and upon the rights-of-way and public ways or other places in the
franchise area,wherever situated or located, shall at all times be kept and maintained in a
safe condition.
Ordinance -Wireless Franchise
5.73.190 Construction Standards
(I)All facilities constructed or operated under this chapter shall be installed and
maintained at such places in or upon such rights-of-way and public places as shall not
interfere with the free passage of traffic and the free use of adjoining property,and shall
conform to federal standards,Washington requirements,and city regulations.
(2)Franchisee shall be subject to any and all requirements established by the city with
regard to the placement and screening of franchisee's facilities and equipment located in
the rights-of-way and on other public property.Such requirements may include,but are
not limited to, the use oflandscaping to screen pedestals and cabinets and a requirement
that construction be flush with the natural grade of the surrounding area.
(3) The franchisee shall comply with any applicable ordinances,resolutions,rules,
regulations and policies of the city regarding geographic information systems mapping
for users of the rights-of-way;provided,that all similarly situated users of the rights-of-
way must also accordingly comply.
5.73.200 Street Cut or Repair
The franchisee shall guarantee the durability and structural integrity of any street cut or
repair made by it or its agents which are necessary for the construction,installation,.
operation,repair or maintenance of franchisee's facilities for the life of the street;
provided,that no action by a third party materially affects the integrity of franchisee's
street cut or repair.Franchisee shall repair or replace, at no expense to the city, any failed
street cut or repair which was completed by franchisee or franchisee's agent(s), as
determined by the city engineer.
5.73.210 Privacy
The franchisee will be bound by all of the provisions of applicable federal, state and local
privacy laws.
5.73.220 Discriminatory Practices Prohibited
The franchisee shall not deny cable service or otherwise discriminate against subscribers
or others on the basis of race, color, religion,national origin, sex, age,disability or other
protected classes.
5.73.230 Equal employment opportunity
The franchisee shall strictly adhere to and comply with the equal employment
opportunity requirements of federal, state and Jocallaws.
5.73.240 Reimbursement
To the extent allowed by applicable law, the city may require a franchisee to reimburse
the city for the city's reasonable processing and review expenses in connection with a
sale or transfer of a franchise or a change in control of a franchise or franchisee,
including,without limitation,costs of administrative review,financial, legal and technical
evaluation of the proposed transferee or controlling party,costs of consultants,notice and
publication costs, and document preparation expenses.In connection with the foregoing,
Ordinance -Wireless Franchise
the city will send franchisee an itemized description of all such charges, and franchisee
shall pay such amount within 30 days after the receipt of such description.
5.73.250 Franchise renewal
Franchise renewals shall be conducted in accordance with applicable law. The city and
franchisee, by mutual consent, may enter into renewal negotiations at any time during the
term of a franchise.
5.73.260 Franchise revocation
Any franchise granted by the city may be revoked during the period of such franchise, as
provided in the franchise,subject to the procedural requirements provided for therein. A
failure by the franchisee to comply with any of the material provisions of this chapter
shall be deemed a material violation of a franchise.
5.73.270 Acceptance
No franchise granted pursuant to the provisions of this chapter shall become effective
unless and until the ordinance granting the same has become effective.Within 45 days
after the adoption by the city council of the ordinance awarding a franchise, or within
such extended period oftime as the city council in its discretion may authorize,the
franchisee shall file with the city clerk its written and unconditional acceptance of the
franchise.
5.73.280 Conflicts
Where a franchise and this chapter conflict, both shall be liberally interpreted to achieve a
common meaning or requirement. In the event that this is not possible within reasonable
limits, the franchise shall prevail.Where this chapter or a franchise conflict with MMC
19.43, MMC 19.43 shall prevail.
5.73.290 Miscellaneous
(I)This chapter shall be construed in a manner consistent with all applicable federal,
state and local laws, and shall apply to any franchise hereafter accepted by a franchisee.
(2) The captions throughout this chapter are intended to facilitate the reading hereof.
Such captions shall not affect the meaning or interpretation of any part of this chapter.
(3) A franchisee shall not be relieved of its obligations to comply with any or all of the
provisions of this chapter by reason of any failure of the city to demand prompt
compliance.
(4) The provisions of this chapter shall apply to all wireless operators and WCFs to the
greatest extent permissible under applicable law.
Effective Date. This ordinance shall become effective five (5) days after
publication.
PASSED by the City Council and APPROVED by the Mayor thi~rJday of
October, 2006.
CITY OF MARYSVILLE
Ordinance -Wireless Franchise
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By ~~~;Z /~4j/
DENNIS L.KENDALL,Mayor
ATTEST:
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GERRY BECIffiR,CityClerk (perk,'"
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Approved as to form:
By~g(J.?eQ
GRANT K.WEED,City Attorney
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Ordinance -Wireless Franchise