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ORD 17-833ORDINANCE NO. 17 -833 AN ORDINANCE of the City of Federal Way, Washington, relating to franchise and application requirements under Chapter 35.99 RCW for service providers to utilize City right -of -way; amending FWRC 4.25.030; and adding new Chapter 4.22. (Amending Ordinance Nos. 08 -578 and 90 -50) WHEREAS, the City of Federal Way is the steward of the City's right -of -way within its corporate limits and holds such right -of -way for its primary purpose of street and transportation uses and for many secondary uses including the construction and maintenance of utility facilities; and WHEREAS, Chapter 35.99 RCW requires the City to provide application requirements in written form as well as the requirements for a complete application; and WHEREAS, due to the changing technical environment, the amount of staff and consultant time necessary to process such applications is difficult to determine; and WHEREAS, RCW 35.21.860 authorizes the City to recover its administrative costs and fees incurred in such processing; and WHEREAS, the City Council deems it to be in the public interest to adopt requirements for such applications. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. FWRC 4.25.030 is hereby amended to read as follows: 4.25.030 Permit Required for Improvement or Use. A city right -of -way shall not be privately improved or used unless a permit has been issued pursuant to this Chapter. Applications seeking to utilize the right -of -way by a public utility or otherwise qualified service provider for the delivery of services to the general public shall also comply with the provisions of Chapter 4.22 FWRC. No development approval shall be issued which requires use of Ordinance No. 17 -833 Page 1 of 7 privately maintained city right -of -way unless a permit has been issued pursuant to this chapter. This section shall not apply to driveway connections from private property to city right -of -way, utility construction work otherwise authorized pursuant to Chapter 4.22 FWRC, rights -of -way activities or general transportation and travel along the right -of -way. Section 2. Title 4 of the Federal Way Revised Code is hereby amended to add a new Chapter 4.22 to read as follows: Chapter 4.22 Franchise for Use of Right -of -Way 4.22.010 Franchise for Use of Right -of -Way. Purpose. The City Council as steward of the City's right -of -way has the authority to authorize right- of-way use by utilities and other entities seeking to serve the public if an agreement consistent with state and federal law and the best interests of the City and it citizens can be reached. This chapter establishes application requirements for a Franchise for the use of the right -of -way, provisions for fee deposits, and requirements for determining the completeness of applications for a Franchise. 4.22.020 Definitions. The following words and phrases shall have the meanings assigned for use in this chapter: (1) Director. The Director is the City's Public Works Director or his/her designee. (2) Franchise. A Franchise is the contractual authorization whereby a public utility or other qualified service provider is granted permission to utilize the right -of -way in order to provide services to the general public or to provide infrastructure for such a service provider. A Franchise is a Master Permit within the meaning of RCW 35.99.010(3). (3) Right -of -Way. Right -of -way means land acquired or dedicated for public roads and streets, but does not include: Ordinance No. 17 -833 Page 2 of 7 (a) State highways; (b) Road dedicated for roads, streets, and highways not opened and not improved for motor vehicle use by the public; (c) Structures including poles and conduits located within the right -of -way; (d) Federally granted trust lands or forest board trust lands; (e) Lands owned or managed by the state parks and recreation commission; (f) Federally granted railroad rights -of -way acquired under 43 USC § 912 and related provisions of federal law that are not open for vehicular use; or (g) Leasehold or City owned property to which the City holds fee title or other title and which is utilized for park, utility, or a governmental or proprietary use and not primarily for road, street, or highway use. (4) Right -of -Way Use Permit. A right -of -way use permit is an administrative permit issued to a Franchisee pursuant to Chapter 4.25 Rights -of -Way to enter the right -of -way in order to exercise the rights granted under a Franchise. (5) Telecommunications facilities are those facilities defined in RCW 35.99.010(2) and utilized by a provider in the provision of telecommunications service. (6) Telecommunications service is defined as provided in RCW 35.99.010(7) as the same exists or is hereafter amended. 4.22.03 Application; Contents. The Director is authorized to establish an application form or forms appropriate for telecommunications entities, public utilities. and other qualified service providers to apply for a Franchise. The form shall contain at a minimum: (1) Information identifying the applicant, its corporate or other organizational structure, and the agent Ordinance No. 17 -833 Page 3 of 7 or individual filling out the application. (2) Property and facility information, including, but not limited to: (a) The nature of the application as an application for a new Franchise, an application for renewal or amendment, or an application for the transfer of a Franchise. (b) A description of the specific services that the applicant expects to provide within the city including whether the services will be provided to the general public, to commercial and /or residential customers, or to other utilities and service providers. (c) A general description of the facilities to be located in the right -of -way including, but not limited to, wireline facilities, cable wireless, and telecommunications service facilities, conduits, pipelines, and other facilities appropriate to the specific utility or service provider's utilization of the right -of -way. (d) Where appropriate, information relating to pole attachment or lease agreements with the owners of other facilities located in the right -of -way. (e) Any licenses, certificates, or authorizations required from the Federal Communications Commission, the Washington Utilities and Transportation Commission, and any other federal or state agency with jurisdiction over the proposed activities to be conducted in the right -of -way. (f) Information relating to utility taxes including a description of the services provided and any and all state and local taxes which may apply. (g) The service area for which the Franchise is requested, including a map of the area to be covered by the Franchise and specific locations of the initial build out and, if known, proposed future build out locations including which proposed facilities will be underground, ground based, and /or aerial. (h) Upon request from the City, financial statements prepared in accordance with generally Ordinance No. 17 -833 Page 4 of 7 accepted accounting principles demonstrating the applicant's financial ability to construct, operate, maintain, relocate, and remove its facilities. This provision shall not apply when prohibited by the federal Telecommunications Act. (i) A list of all cities or towns in which the applicant holds a franchise. (j) Such other information as the Director, in his/her discretion, shall deem appropriate. 4.22.040 Fee Deposit. The Director shall establish a fee deposit based upon the nature of the facility. The fee deposit shall generally be set at Five Thousand Dollars ($5,000) and may be increased or decreased at the discretion of the Director based upon preliminary information provided by the applicant prior to or contemporaneous with the filing of the application. The fee deposit shall be supplemented from time to time when the actual administrative costs authorized for collection by the City from the applicant pursuant to RCW 35.21.860 have been exceeded. Failure to make or supplement a deposit within ten (10) business days of notification of the need to supplement shall suspend processing of any application and toll any period established for review by this ordinance or state or federal law as an incomplete application. Any unexpended portion of the deposit shall be returned to the applicant when the application has been approved or denied. 4.22.050 Completeness; Review and Notification. The Director shall review the application upon submittal. If the Director finds that any applicant has failed to provide an application which reasonably fulfills the requirements of this ordinance and the application form, and/or is not accompanied by the fee deposit established by the Director, the Director shall, within twenty (20) business days of receipt of the application notify the applicant that the application is incomplete. The notification shall generally outline the information which the applicant has failed to provide or which must be supplemented in order to comply with the terms of Ordinance No. 17 -833 Page 5 of 7 this ordinance and the application form established by the Director. The time periods established in Section 4.22.060 shall not commence until the City has received a completed application and fee deposit and shall be tolled if the applicant fails to supply a supplemented fee deposit as provided above. 4.22.060 Telecommunications Services; Time Period for Consideration. (1) Applications for a Franchise for a telecommunications service shall be acted upon by the City within one hundred twenty (120) days from the date the service provider files a complete application and fee deposit with the City except: (a) With the agreement of the applicant; or (b) Where the Franchise requires action of the City Council and such action cannot reasonably be obtained within the one hundred twenty (120) day period. (2) The City shall act upon a request for a Right -of -Way Use Permit under Chapter 4.25 FWRC within thirty (30) days of receipt of a complete application and permit fee, unless the applicant consents to a different time period or the applicant has not obtained a Franchise from the City. 4.22.070 Written Agreement; No Construction Until Issued. No authorization shall be deemed to have been approved or granted hereunder until the applicant and the City have executed a written right -of -way use agreement consistent with the City Council's authorization and no construction may begin without the issuance by the City of a use permit. Section 3. Severability. Should any section, subsection, paragraph, sentence, clause, or phrase of this chapter, or its application to any person or situation, be declared unconstitutional or invalid for any reason, such decision shall not affect the validity of the remaining portions of this chapter or its application to any other person or situation. The City Council of the City of Federal Way hereby declares that it would have adopted this chapter and each section, subsection, sentence, clauses, Ordinance No. 17 -833 Page 6 of 7 phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. Section 4. Corrections. The City Clerk and the codifiers of this ordinance are authorized to make necessary corrections to this ordinance including, but not limited to, the correction of scrivener /clerical errors, references, ordinance numbering, section/subsection numbers and any references thereto. Section 5. Ratification. Any act consistent with the authority and prior to the effective date of this ordinance is hereby ratified and affirmed. Section 6. Effective Date. This ordinance shall take effect and be in force thirty (30) days from and after its passage and publication, as provided by law. PASSED by the City Council of the City of Federal Way this 4th day of April, 2017. CITY OF FEDERAL WAY: ATTEST: ANIE COURTNEY, APPROVED AS TO FORM: 3ROJ1 C, CITY CLERK J. RYAN CALL, CITY ATTORNEY FILED WITH THE CITY CLERK: 03/22/2017 PASSED BY THE CITY COUNCIL: 04/04/2017 PUBLISHED: 04/07/2017 EFFECTIVE DATE: 05/08/2017 ORDINANCE NO.: 17 -833 Ordinance No. 17 -833 Page 7of7