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1/10/2017 - City Council - City Council Meeting Agenda Packet
In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact the City Clerk at 509-884-9515 Notification of 3 working days prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting. Page 1 of 2 CITY OF EAST WENATCHEE REGULAR COUNCIL MEETING AGENDA JANUARY 10, 2017 6:30 P.M. ROLL CALL PLEDGE OF ALLEGIENCE PROCLAMATION(S) East Wenatchee School Choice Week PRESENTATION Mark Miller - Town Toyota Center Annual Update. Erik Howe - RH2 PUBLIC COMMENTS DEPARTMENT REPORT(S) Lori Barnett, Community Development – Department Report Nick Gerde, Finance Director BUDGET ISSUES MAYOR’S REPORT 1. 2017 Council Assignments 2. 2017 Budget Committee 3. Our Valley Our Future requested a joint meeting with Wenatchee City Council on January 24, 2017 at 5:30 pm prior to the Regular Council Meeting. 4. Thank you letter from Mayor Taneichi CONSENT CALENDAR 5. Consideration of Minutes – Regular Session, December 13, 2016 6. Consideration of Payables – December 27, 2016 Payables 7. Consideration of Payables – January 10, 2017 RESOLUTION(S) 8. 17-01 Resolution No. 2017-01 to revoke Resolution 2016-14 and authorize the Mayor to Approve 2017 Right of Way Procedures. (Greg Pezoldt, City Engineer) ACTION ITEM(S) 9. Approval to solicit request for qualifications from law firms to negotiate a Franchise Agreement with Mobilitie. (Devin Poulson, City Attorney) In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact the City Clerk at 509-884-9515 Notification of 3 working days prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting. Page 2 of 2 ORDINANCE(S) 10. 16-12 Second reading of Ordinance No. 2017-01 of the City of East Wenatchee granting a non-exclusive franchise to Falcon Video Communications, L.P., locally known as Charter Communications. (Devin Poulson, City Attorney) 11. 17-01 First reading of Ordinance No. 2017-02 granting a non-exclusive Franchise to CenturyLink Communications, LLC to construct, install, operate, maintain, repair, or remove fiber optic cables within the public ways of the City of East Wenatchee. (Devin Poulson, City Attorney) 12. 17-01 Ordinance 2017-03: An Ordinance of the City of East Wenatchee adopting an immediate moratorium on the acceptance of applications for use permits, wireless telecommunications facility permits, building permits, right of way use authorizations and franchises for wireless communication facilities within the City, to be effective for a period of six months, declaring an emergency and providing for severability. COUNCIL REPORTS Councilmember Sterk - Chelan-Douglas Health District Packet for December 19, 2016 ADJOURNMENT This page intentionally left blank CITY OF EAST WENATCHEE COUNCIL MINUTES DECEMBER 13, 2016 1 REGULAR SESSION OF THE CITY COUNCIL CONVENED MAYOR STEVEN C. LACY, PRESIDING DECEMBER 13, 2016 6:30 P.M. OATH OF OFFICE Jerrilea Crawford was sworn in for Council Position No. 4 ROLL CALL Mayor Steven C. Lacy Councilmember Tim Detering Councilmember Sandra McCourt Councilmember Wayne Barnhart Councilmember John Sterk Councilmember Harry Raab Councilmember Chuck Johnson - Excused Councilmember Jerrilea Crawford EMPLOYEES IN ATTENDANCE City Attorney Devin Poulson Executive Secretary/Accounting Assistant Teresa Allen Community Development Director Lori Barnett Finance Director Nick Gerde Public Works Director/City Engineer Greg Pezoldt Police Chief Randy Harrison Permit Technician Marcia Martz PRESENTATION Adele Wolford Founder and President and Wendy Pippel Vice President of Art on the Avenues gave a brief presentation regarding the program and how it works within the Community. They were contacted by Councilmember Johnson to give a presentation to the City Council. They are a nonprofit organization and have 5 openings on the board. They would like to include East Wenatchee in the program. There are over 80 Sculptures out in the Valley currently, 27 owned by the City of Wenatchee, 8 are privately owned, and 29 are owned by the Art on the Avenue organization. They would like to include the East Wenatchee School district in the Beauty of Bronze program. It is an annual, grant-funded program to give fifth graders the opportunity to discover sculpture in their community while working with a real artist and creating their own small bronze sculptures. They had approximately 633 children from the Wenatchee School District go through the program this year. Mayor Lacy asked Ms. Pippel to provide Teresa Allen with information on the financial commitment that would be required from the City of East Wenatchee. PUBLIC COMMENTS Sally Brawley reported on the passing of the park bond and the parks board will be having a workshop to discuss when the improvements will take place. Mayor Lacy asked Mrs. Brawley CITY OF EAST WENATCHEE COUNCIL MINUTES DECEMBER 13, 2016 2 to let him know the date of the workshop as he would like to attend. DEPARTMENT REPORTS Dan White Events Coordinator gave an update on the Wings and Wishes Event for 2016. The Wings and Wishes Tree Lighting was held December 1st with a record crowd. Empire Press and Wenatchee World were on site taking photos of the event. Numerica Credit Union (naming sponsor) brought in live reindeer, which was a huge hit with the crowd. Approximately 125 Sterling Middle School students sang Christmas Carols this year which was also a huge success. Community Development Director Lori Barnett submitted and reported on the study to support the proposed Minimum Density Standards. She presented the results of the study from SJC Alliance, the Scope of the proposal was 1) analyze the Briarwood subdivision to determine the net density of the project using the formula and criteria in the proposed Density Standards; Planner Barnett submitted a Density Worksheet for the council to review, it showed a Net Density of 4.86 DU/Acre. 2) evaluate the density of residential properties within the urban growth area. The results of the analysis showed an average gross density in the R-L District at 3.4 SU/AC, the R-M District at 8.7 DU/AC, and R-H District at 7.2 DU/AC. Council directed staff to share the information with Douglas County and prepare for a Joint meeting with City Council/Douglas County Commissioners in February. Public Works Director Greg Pezoldt reported on the status of the proposed public works building project, he explained that the original estimated cost of approximately $1.5 million may cost at least twice that amount. There was discussion on a re-evaluation of the design criteria and Architectural firms available. The 3rd Street property was revisited for discussion. Finance Director Nick Gerde provided the November 2016 financial statement explaining that operational revenue for the month of November was ahead of projections due primarily to timing of revenue receipts. Real Estate Excise Tax, Gambling tax, car tab receipts, Hotel/Motel taxes and Criminal Justice receipts for the month were higher than expected and higher for the year. Capital revenue was higher for the month but behind forecast for the last eleven months. Mr. Gerde provided an explanation on why the City is ahead in operational spending. BUDGET ISSUE(S) Finance Director Nick Gerde provided an update on the December 8, 2016 budget meeting. Discussions included the 2017 Budget by Fund Schedule; a capital project schedule; a schedule reflecting trends of spending in the General Fund; a project status report from Public Works Director Greg Pezoldt on the public works building project; and a report from Mayor Lacy on the GEWSWU Management meeting. MAYOR’S REPORT(S) Mayor Lacy and Councilmember Barnhart met with the Storm Water Utility Management Team on December 8th to discuss the disparity regarding the amount approved by the SWU Management Team for Baker Street and the amount the City had proposed for the Baker Street Project. After discussing the approach the County was using to approve stormwater funds for Street projects. Mayor Lacy indicated that the approach had never been adopted by the County or CITY OF EAST WENATCHEE COUNCIL MINUTES DECEMBER 13, 2016 3 City and the City had issues with using that approach to dictate the Baker Street Project. The SWU Management Team approved an additional $150,000 for the Baker Street Project bringing the total to $535,000 rather than the $630,000 previously requested. As a compromise the County approved an additional $150,000 for their Baker Street Improvement project. Mayor Lacy recommended the Stormwater Budget as amended be approved by Council. Mayor Lacy indicated that the County would be bringing the policy before the County Commissioners and City Council for formal adoption. The Policy would dictate future design and requests through the SWU. Mayor Lacy noted the Employee Luncheon will be on December 20th this year. Deb Lacy will be preparing the luncheon. CONSENT CALENDAR Items listed below were distributed to Councilmember’s in advance for study and were enacted in one motion. Council Action: A motion was made by Councilmember Detering, second by Councilmember Barnhart, to approve the Consent Calendar as amended. The motion carried, 6-0. 1. Consideration of Minutes – Regular Session, November 8, 2016 2. Consideration of Payables i. 2016 Payables – As of this date, December 13, 2016, Council does approve check numbers 47030; 47044 thru 47135 in the total amount of $575,460.85. PUBLIC HEARING 16-12-01 A Public Hearing to obtain public comment regarding the Community Development Block Grant Program draft 2015 Consolidated Performance and Evaluation Report (CAPER). Presented by: Lori Barnett, Community Development Director Mayor Lacy opened the Public Hearing at 7:39 pm, no public comment. Mayor Lacy closed the Public Hearing at 7:39 pm. RESOLUTIONS 16-12-02 Resolution No. 2016-15 of the City of East Wenatchee, Washington to approve the 2015 Consolidated Annual Performance and Evaluation Report (CAPER). Presented by: Lori Barnett, Community Development Director Council Action: A motion was made by Councilmember Raab, second by Councilmember Barnhart, to approve the Resolution No. 2016-15 as presented, including Exhibit A - 2015 Consolidated Annual Performance and Evaluation Report. The motion carried, 6-0. CITY OF EAST WENATCHEE COUNCIL MINUTES DECEMBER 13, 2016 4 16-12-03 Resolution No. 2016-16 of the City of East Wenatchee, Washington authorizing the Mayor to sign a Professional Services Agreement for Support Services of Events for the City of East Wenatchee. Presented by: Steven C. Lacy, Mayor Council Action: A motion was made by Councilmember Barnhart, second by Councilmember McCourt, to approve the Resolution No. 2016-16 as presented, including the Professional Services Agreement. The motion carried, 6-0. ACTION ITEMS 16-12-04 Amendment to Interlocal Agreement between Chelan County and the City of East Wenatchee, Washington, for the housing of inmates in the Chelan County Regional Justice Center. Presented by: Steven C. Lacy Council Action: A motion was made by Councilmember Barnhart, second by Councilmember Detering, to approve the proposed Interlocal Agreement as presented effective January 1, 2017. The motion carried, 6-0. 16-12-05 Change Order Preservation No. 1-FY 2017 Arterial Preservation Project Presented by: Greg Pezoldt, Public Works Director Council Action: A motion was made by Councilmember Barnhart, second by Councilmember Detering, to approve the Change Order Preservation No. 1-FY 2017 in the amount of $8,685.00 as presented. The motion carried, 6-0. 16-12-06 Right-of-Way Negotiation Services for the Baker Avenue Project Presented by: Greg Pezoldt, Public Works Director Council Action: A motion was made by Councilmember Detering, second by Councilmember Crawford, to approve the Universal Field Services Agreement for the ROW negotiation for Baker Avenue. The motion carried, 6-0. 16-12-07 PACE Engineers Consultant Supplemental Agreement- Baker Avenue Presented by: Greg Pezoldt, Public Works Director Council Action: A motion was made by Councilmember Barnhart, second by Councilmember Sterk, to authorize the Mayor to approve the PACE Engineers Consultant Supplemental Agreement for Baker Avenue in the amount of $59,601.98 The motion carried, 6-0. ORDINANCES 16-12-08 Ordinance No. 2016-24 of the City of East Wenatchee adopting the final budget of the Greater East Wenatchee Stormwater Utility in the amount of $2,966,964 for the fiscal year commencing on January 1, 2017. Presented by: Greg Pezoldt, Public Works Director CITY OF EAST WENATCHEE COUNCIL MINUTES DECEMBER 13, 2016 5 Mayor Lacy elevated Item to a second reading, without objection. Council Action: A motion was made by Councilmember Crawford, second by Councilmember Barnhart, to adopt Ordinance No. 2016-24 the final 2017 Greater East Wenatchee Stormwater Utility Budget. The motion carried, 6-0. 16-12-09 Ordinance No. 2016-25 of the City of East Wenatchee, Washington, amending Ordinance Number 2015-23 as amended, which set the East Wenatchee Budget for 2016. Presented by: Nick Gerde, Finance Director Council Action: A motion was made by Councilmember Detering, second by Councilmember Sterk, to adopt Ordinance No. 2016-25 amending Ordinance No. 2015-23 as amended, which set the East Wenatchee Budget for 2016. The motion carried, 6-0. 16-11-08 Ordinance No. 2016-23 of the City Council of the City of East Wenatchee, Washington, adopting the annual budget of the City for the fiscal year commencing January 1, 2017. Presented by: Nick Gerde, Finance Director/Treasurer Mayor Lacy explained that there is a potential for change due to ongoing negotiations with Local 846. Council Action: A motion was made by Councilmember Detering, second by Councilmember Barnhart, to adopt Ordinance 2016-23, with the potential for amendment. The motion carried, 6-0. 16-12-11 First reading of Ordinance No. 2017-01 of the City of East Wenatchee granting a nonexclusive franchise to Falcon Video Communications, L.P., locally known as Charter Communications. The second reading is scheduled for January 10, 2017. Presented by: Devin Poulson, City Attorney 16-12-12 Ordinance No. 2016-26 amending Ordinance No. 2016-22 which fixed and confirmed the salaries and compensation to be paid to certain officials and employees of the City of East Wenatchee during the year 2017, containing a severability date, and establishing an effective date. Presented by: Steven C. Lacy, Mayor Council Action: A motion was made by Councilmember Raab, second by Councilmember Barnhart, to approve Ordinance No. 2016-26, amending Ordinance No. 2016-22 for 2017 Salaries and the associated step-plan exhibit. The motion carried, 6-0 ADJOURNMENT 8:04 p.m. CITY OF EAST WENATCHEE COUNCIL MINUTES DECEMBER 13, 2016 6 _______________________ Dana Barnard City Clerk CHECK NUMBERS: 47136-47140; 47177-47182; 47196-47263 VOIDED CHECKS: 47175 DEPARTMENT/FUND AMOUNT General Fund 001 $84,582.97 Street Fund 101 $41,919.93 Community Dev Grants Funds 102 $0.00 Transportation Benefit District Fund 105 $0.00 Debt Reserve Fund 110 $0.00 Library Fund 112 $227.98 Hotel/Motel Tax Fund 113 $0.00 Drug Fund 114 $0.00 Criminal Justice Fund 116 $0.00 Events Board Fund 117 $1,119.49 Bond Redemption Fund 202 $0.00 Street Improvements Fund 301 -$6,070.40 Storm Water Improvements Fund 308 $0.00 Capital Improvements Fund 314 $5,183.75 Equipment R&R Fund 501 $3,720.05 Transportation Benefit District 630 $0.00 Grand Total All Funds $130,683.77 CITY OF EAST WENATCHEE CHECK REGISTER December 27 , 2016 Payables Fund Number Description Amount 001 Current Expense $84,582.97 101 Street Department $41,919.93 112 Library Fund $227.98 117 East Wenatchee Events Brd Fund $1,119.49 301 Street Improvement Fund ($6,070.40) 314 Capital Improvement Fund $5,183.75 501 Equipment Rental & Replacement $3,720.05 Count: 7 $130,683.77 Fund Transaction Summary Transaction Type: Invoice Fiscal: 2016 - December 2016 - December 2nd Council Meeting Printed by EASTWENATCHEE\tallen on 1/4/2017 10:25:01 AM Page 1 of 1 East Wenatchee - Fund Transaction Summary Vendor Number Reference Account Number Description Amount 48 North, PLLC 47196 2016 - December 2016 - December 2nd Council Meeting 225 Property Survey For New Street Dept Buildings 314-000-000-594-22-60-45 Street Dept Storage Building $5,183.75 Total 225 $5,183.75 Total 47196 $5,183.75 Total 48 North, PLLC $5,183.75 A.L. Central LLC Dba A Central LLC 47197 2016 - December 2016 - December 2nd Council Meeting 2807 Asbestos Inspections 101-000-430-543-50-49-00 Miscellaneous $1,190.00 Total 2807 $1,190.00 Total 47197 $1,190.00 Total A.L. Central LLC Dba A Central LLC $1,190.00 Adela M Valaas 47198 2016 - December 2016 - December 2nd Council Meeting Invoice - 1/3/2017 2:13:46 PM Civil Service Secretary 001-000-160-521-10-10-00 Salaries $66.00 Total Invoice - 1/3/2017 2:13:46 PM $66.00 Total 47198 $66.00 Total Adela M Valaas $66.00 AG Supply Company INC 47199 2016 - December 2016 - December 2nd Council Meeting Invoice - 12/28/2016 9:29:48 AM Planning/Fuel 001-000-580-558-60-32-00 Fuel Consumed $54.94 Total Invoice - 12/28/2016 9:29:48 AM $54.94 Total 47199 $54.94 Total AG Supply Company INC $54.94 Voucher Directory Printed by EASTWENATCHEE\tallen on 1/4/2017 10:22:20 AMExecution Time: 21 second(s)Page 1 of 27 East Wenatchee - Voucher Directory Vendor Number Reference Account Number Description Amount Alpine Products Inc. 47200 2016 - December 2016 - December 2nd Council Meeting TM-163733 Winter Mix Cold Patch 101-000-420-542-30-30-00 Supplies $2,181.34 Total TM-163733 $2,181.34 Total 47200 $2,181.34 Total Alpine Products Inc.$2,181.34 American Building Maintenance CO 47201 2016 - December 2016 - December 2nd Council Meeting 10291845 December 2016 Building Maintenance 001-000-180-518-30-41-01 Contracted Custodial Services $1,375.51 112-000-000-572-50-41-00 Facilities -- Professional Services $214.67 Total 10291845 $1,590.18 Total 47201 $1,590.18 Total American Building Maintenance CO $1,590.18 Andrea M Sharp 47202 2016 - December 2016 - December 2nd Council Meeting Invoice - 1/3/2017 1:11:27 PM Clothing Allowance 001-000-210-521-10-20-01 Clothing Allowance $141.60 Total Invoice - 1/3/2017 1:11:27 PM $141.60 Total 47202 $141.60 Total Andrea M Sharp $141.60 Ballard Services, Inc. 47203 2016 - December 2016 - December 2nd Council Meeting 365753 Police/DUI Blood Draw 001-000-210-521-10-41-00 Professional Services $85.00 Total 365753 $85.00 365754 Police/DUI Blood Draw 001-000-210-521-10-41-00 Professional Services $85.00 Total 365754 $85.00 Total 47203 $170.00 Total Ballard Services, Inc.$170.00 Banner Bank Mastercard 47204 2016 - December 2016 - December 2nd Council Meeting Invoice - 1/4/2017 8:52:45 AM Police/Fuel and Vehicle Repair 001-000-210-521-10-32-00 Fuel Consumed $39.63 001-000-210-521-10-48-00 Repairs & Maintenance $38.75 Total Invoice - 1/4/2017 8:52:45 AM $78.38 Printed by EASTWENATCHEE\tallen on 1/4/2017 10:22:20 AMExecution Time: 21 second(s)Page 2 of 27 East Wenatchee - Voucher Directory Vendor Number Reference Account Number Description Amount Invoice - 1/4/2017 8:54:51 AM Events/Cookies for Xmas Lighting 117-000-500-557-30-40-05 Christmas Events & Decorations $380.75 Total Invoice - 1/4/2017 8:54:51 AM $380.75 Invoice - 1/4/2017 8:56:07 AM City Hall Display Case 117-000-500-557-30-40-05 Christmas Events & Decorations $61.05 Total Invoice - 1/4/2017 8:56:07 AM $61.05 Invoice - 1/4/2017 8:56:42 AM Re-wrap Presents under tree 117-000-500-557-30-40-05 Christmas Events & Decorations $17.11 Total Invoice - 1/4/2017 8:56:42 AM $17.11 Invoice - 1/4/2017 8:57:21 AM Street/Supplies 101-000-430-543-30-30-00 Supplies $35.76 Total Invoice - 1/4/2017 8:57:21 AM $35.76 Invoice - 1/4/2017 8:58:20 AM Street/Events Lights 101-000-430-543-30-30-00 Supplies $130.05 Total Invoice - 1/4/2017 8:58:20 AM $130.05 Invoice - 1/4/2017 8:58:57 AM Street/Events Lights 101-000-430-543-30-30-00 Supplies $130.05 Total Invoice - 1/4/2017 8:58:57 AM $130.05 Invoice - 1/4/2017 9:00:11 AM Events/Xmas Lighting 117-000-500-557-30-49-01 Christmas Miscellaneous $227.67 Total Invoice - 1/4/2017 9:00:11 AM $227.67 Invoice - 1/4/2017 9:01:39 AM Budget Committee Meeting 001-000-110-511-60-49-00 Miscellaneous $50.74 Total Invoice - 1/4/2017 9:01:39 AM $50.74 Invoice - 1/4/2017 9:02:28 AM Police/Evidence Supplies 001-000-210-594-21-60-00 Capital Outlay $1,230.45 Total Invoice - 1/4/2017 9:02:28 AM $1,230.45 Invoice - 1/4/2017 9:03:38 AM City Clerk/Charger 001-000-145-514-20-49-00 Miscellaneous $29.35 Total Invoice - 1/4/2017 9:03:38 AM $29.35 Invoice - 1/4/2017 9:04:43 AM Wellness 001-000-001-518-91-50-00 Wellness $8.65 Total Invoice - 1/4/2017 9:04:43 AM $8.65 Printed by EASTWENATCHEE\tallen on 1/4/2017 10:22:20 AMExecution Time: 21 second(s)Page 3 of 27 East Wenatchee - Voucher Directory Vendor Number Reference Account Number Description Amount Total 47204 $2,380.01 Total Banner Bank Mastercard $2,380.01 Battery Systems Inc 47205 2016 - December 2016 - December 2nd Council Meeting 3798855 Street/Truck Number 4 Maintenance 501-000-000-542-90-48-20 Street Vehicle Repairs & Maintenance $265.96 Total 3798855 $265.96 Total 47205 $265.96 Total Battery Systems Inc $265.96 Capital One Commercial/ Costco 47206 2016 - December 2016 - December 2nd Council Meeting Invoice - 1/3/2017 3:18:34 PM Events-supplies 117-000-500-557-30-49-01 Christmas Miscellaneous $188.91 Total Invoice - 1/3/2017 3:18:34 PM $188.91 Total 47206 $188.91 Total Capital One Commercial/ Costco $188.91 Cascade Natural Gas Corp 47181 2016 - December 2016 - December 2nd Council Meeting Invoice - 12/30/2016 11:11:50 AM Garage 101-000-430-543-50-47-00 Utilities $369.17 Total Invoice - 12/30/2016 11:11:50 AM $369.17 Invoice - 12/30/2016 11:12:19 AM Shop 101-000-430-543-50-47-00 Utilities $232.20 Total Invoice - 12/30/2016 11:12:19 AM $232.20 Total 47181 $601.37 Total Cascade Natural Gas Corp $601.37 Chelan County Treasurer 47207 2016 - December 2016 - December 2nd Council Meeting 150001-00545 November 2016 Housing of Inmates 001-000-230-523-21-10-00 Housing & Monitoring Prisoners $47,280.50 Total 150001-00545 $47,280.50 Total 47207 $47,280.50 Total Chelan County Treasurer $47,280.50 Printed by EASTWENATCHEE\tallen on 1/4/2017 10:22:20 AMExecution Time: 21 second(s)Page 4 of 27 East Wenatchee - Voucher Directory Vendor Number Reference Account Number Description Amount Cities Ins Assoc of Wash 47208 2016 - December 2016 - December 2nd Council Meeting 151600 Insurance on Kubota 101-000-430-543-30-46-00 Insurance $85.37 Total 151600 $85.37 Total 47208 $85.37 Total Cities Ins Assoc of Wash $85.37 City of Wenatchee 47209 2016 - December 2016 - December 2nd Council Meeting Invoice - 12/29/2016 8:29:51 AM Stormwater Utilitie Fees 101-000-313-542-42-20-10 Benefits - SWA Sweeping $245.00 Total Invoice - 12/29/2016 8:29:51 AM $245.00 Total 47209 $245.00 Total City of Wenatchee $245.00 Classic One East 47210 2016 - December 2016 - December 2nd Council Meeting Invoice - 12/14/2016 11:42:29 AM Police/Uniform Dry Cleaning 001-000-210-521-10-49-02 Dry Cleaning Services $63.28 Total Invoice - 12/14/2016 11:42:29 AM $63.28 Total 47210 $63.28 Total Classic One East $63.28 Clifford E Hahn 47211 2016 - December 2016 - December 2nd Council Meeting Invoice - 12/28/2016 9:13:06 AM LEOFF Medical Reimbursement 001-000-001-521-10-29-00 Leoff 1 Ins Premiums/misc $73.90 Total Invoice - 12/28/2016 9:13:06 AM $73.90 Total 47211 $73.90 Total Clifford E Hahn $73.90 Coleman Oil Company 47212 2016 - December 2016 - December 2nd Council Meeting 0093355-IN oil-shop 501-000-000-542-90-48-25 Street Vehicle R&M Supplies $747.17 Total 0093355-IN $747.17 Total 47212 $747.17 Total Coleman Oil Company $747.17 Printed by EASTWENATCHEE\tallen on 1/4/2017 10:22:20 AMExecution Time: 21 second(s)Page 5 of 27 East Wenatchee - Voucher Directory Vendor Number Reference Account Number Description Amount Columbia River Steel dba: Moses Lake Steel Supply, Inc 47213 2016 - December 2016 - December 2nd Council Meeting 21608442 Police/Vehicle Repairs 001-000-210-594-21-60-00 Capital Outlay $151.05 Total 21608442 $151.05 21608476 Street/Banners 101-000-420-542-69-30-00 Supplies $82.84 Total 21608476 $82.84 21608477 Police/Vehicle Repairs 001-000-210-594-21-60-00 Capital Outlay $51.73 Total 21608477 $51.73 21608650 Street/Snow Plow Repair 101-000-420-542-66-48-00 Repairs & Maintenance $104.92 Total 21608650 $104.92 Total 47213 $390.54 Total Columbia River Steel dba: Moses Lake Steel Supply, Inc $390.54 Commercial Printing CO 47214 2016 - December 2016 - December 2nd Council Meeting 98619 Court/Envelopes 001-000-120-512-50-31-00 Office Supplies $317.53 Total 98619 $317.53 98620 Court/Envelopes 001-000-120-512-50-31-00 Office Supplies $203.57 Total 98620 $203.57 98621 Court/Envelopes 001-000-120-512-50-31-00 Office Supplies $147.09 Total 98621 $147.09 Total 47214 $668.19 Total Commercial Printing CO $668.19 Crown Paper & Janitorial Supply Inc 47215 2016 - December 2016 - December 2nd Council Meeting 220200 Cleaning Supplies 001-000-180-518-30-31-06 Cleaning & Sanitation Supplies $87.86 Total 220200 $87.86 Total 47215 $87.86 Total Crown Paper & Janitorial Supply Inc $87.86 Printed by EASTWENATCHEE\tallen on 1/4/2017 10:22:20 AMExecution Time: 21 second(s)Page 6 of 27 East Wenatchee - Voucher Directory Vendor Number Reference Account Number Description Amount DOSH Cashier Dept of L&I 47139 2016 - December 2016 - December 2nd Council Meeting 317942809 L&I Citation-Street 001-000-110-511-60-49-00 Miscellaneous $250.00 Total 317942809 $250.00 Total 47139 $250.00 Total DOSH Cashier Dept of L&I $250.00 Douglas County Auditor 47216 2016 - December 2016 - December 2nd Council Meeting 12116 Medical for Inmates 001-000-230-523-60-20-00 Medical Care For Prisoners $2,188.43 Total 12116 $2,188.43 Total 47216 $2,188.43 Total Douglas County Auditor $2,188.43 Douglas County Fire District #2 47217 2016 - December 2016 - December 2nd Council Meeting Invoice - 1/4/2017 9:14:31 AM 4th quarter-Fire Code Services 001-000-590-558-50-41-01 Fire Marshal Services $4,859.61 Total Invoice - 1/4/2017 9:14:31 AM $4,859.61 Total 47217 $4,859.61 Total Douglas County Fire District #2 $4,859.61 Douglas County MIS 47218 2016 - December 2016 - December 2nd Council Meeting MIS-EWPD122216 Police/Nemtotion Device License 001-000-145-514-20-40-20 Annual License - Spillman & Net-Motion $962.50 Total MIS-EWPD122216 $962.50 Total 47218 $962.50 Total Douglas County MIS $962.50 Doug's Diesel Repair Inc 47219 2016 - December 2016 - December 2nd Council Meeting 36250 Street/Snow Plow 501-000-000-542-90-48-20 Street Vehicle Repairs & Maintenance $135.83 Total 36250 $135.83 Total 47219 $135.83 Total Doug's Diesel Repair Inc $135.83 Printed by EASTWENATCHEE\tallen on 1/4/2017 10:22:20 AMExecution Time: 21 second(s)Page 7 of 27 East Wenatchee - Voucher Directory Vendor Number Reference Account Number Description Amount East Wenatchee Water Dist 47179 2016 - December 2016 - December 2nd Council Meeting Invoice - 12/28/2016 9:34:57 AM Utilities 101-000-420-542-75-47-00 Utilities $21.64 Total Invoice - 12/28/2016 9:34:57 AM $21.64 Invoice - 12/30/2016 11:14:10 AM Shop 101-000-420-542-75-47-00 Utilities $59.31 Total Invoice - 12/30/2016 11:14:10 AM $59.31 Invoice - 12/30/2016 11:14:31 AM 307 9th St 001-000-180-518-30-47-00 Utilities $59.31 Total Invoice - 12/30/2016 11:14:31 AM $59.31 Invoice - 12/30/2016 11:14:58 AM 397 9th west 101-000-420-542-75-47-00 Utilities $74.14 Total Invoice - 12/30/2016 11:14:58 AM $74.14 Invoice - 12/30/2016 11:15:23 AM City Hall 001-000-180-518-30-47-00 Utilities $85.27 112-000-000-572-50-47-00 Facilities--Utilities $13.31 Total Invoice - 12/30/2016 11:15:23 AM $98.58 Total 47179 $312.98 Total East Wenatchee Water Dist $312.98 Envirotech Services, Inc 47220 2016 - December 2016 - December 2nd Council Meeting CD201703232 Ice Slicer Rental 101-000-420-542-66-30-00 Supplies $5,897.88 Total CD201703232 $5,897.88 CD201703236 Ice Slicer Rental 101-000-420-542-66-30-00 Supplies $5,767.84 Total CD201703236 $5,767.84 CD201703264 Ice Slicer Rental 101-000-420-542-66-30-00 Supplies $5,158.63 Total CD201703264 $5,158.63 Printed by EASTWENATCHEE\tallen on 1/4/2017 10:22:20 AMExecution Time: 21 second(s)Page 8 of 27 East Wenatchee - Voucher Directory Vendor Number Reference Account Number Description Amount CD201703265 Ice Slicer Rental 101-000-420-542-66-30-00 Supplies $5,279.76 Total CD201703265 $5,279.76 Total 47220 $22,104.11 Total Envirotech Services, Inc $22,104.11 Equipment Mfg, Inc 47221 2016 - December 2016 - December 2nd Council Meeting 33064A Street/Parts 101-000-420-542-66-48-00 Repairs & Maintenance $622.75 Total 33064A $622.75 Total 47221 $622.75 Total Equipment Mfg, Inc $622.75 Erika Rodriquez 47222 2016 - December 2016 - December 2nd Council Meeting Invoice - 1/3/2017 1:22:52 PM Interpreting Services 001-000-120-512-50-49-01 Interpreting $35.00 Total Invoice - 1/3/2017 1:22:52 PM $35.00 Invoice - 1/3/2017 2:38:59 PM Interpreting Service 10/29/16 001-000-210-521-10-41-00 Professional Services $70.00 Total Invoice - 1/3/2017 2:38:59 PM $70.00 Total 47222 $105.00 Total Erika Rodriquez $105.00 Fastenal Company 47223 2016 - December 2016 - December 2nd Council Meeting WAWEF123443 Street/Supplies 501-000-000-542-90-48-20 Street Vehicle Repairs & Maintenance $60.06 Total WAWEF123443 $60.06 WAWEN122645 Street/Supplies 501-000-000-542-90-48-25 Street Vehicle R&M Supplies $66.22 Total WAWEN122645 $66.22 WAWEN122708 Street/Supplies 501-000-000-542-90-48-25 Street Vehicle R&M Supplies $41.66 Total WAWEN122708 $41.66 WAWEN122795 Street/Supplies 101-000-420-542-66-30-00 Supplies $37.11 Printed by EASTWENATCHEE\tallen on 1/4/2017 10:22:20 AMExecution Time: 21 second(s)Page 9 of 27 East Wenatchee - Voucher Directory Vendor Number Reference Account Number Description Amount 101-000-420-542-69-30-00 Supplies $155.80 Total WAWEN122795 $192.91 WAWEN122816 Street/Supplies 101-000-420-542-66-30-00 Supplies $195.00 Total WAWEN122816 $195.00 WAWEN123044 Street/Supplies 101-000-420-542-66-30-00 Supplies $74.24 Total WAWEN123044 $74.24 WAWEN123202 Street Snowplow 101-000-420-542-66-48-00 Repairs & Maintenance $55.66 Total WAWEN123202 $55.66 WAWEN123306 Street/Supplies 101-000-420-542-66-30-00 Supplies $18.56 Total WAWEN123306 $18.56 WAWEN123348 Street/Supplies 501-000-000-542-90-48-20 Street Vehicle Repairs & Maintenance $36.81 Total WAWEN123348 $36.81 WAWEN123587 Street/Supplies 501-000-000-542-90-48-25 Street Vehicle R&M Supplies $1.76 Total WAWEN123587 $1.76 WAWEN123592 Street Supplies 101-000-430-543-30-30-00 Supplies $2.47 Total WAWEN123592 $2.47 WAWEN123697 Street Snowplow 101-000-420-542-66-48-00 Repairs & Maintenance $69.63 Total WAWEN123697 $69.63 WAWEN1237503 Street/Supplies 501-000-000-542-90-48-20 Street Vehicle Repairs & Maintenance $205.46 Total WAWEN1237503 $205.46 WAWEN125310 Street/ supplies 101-000-430-543-30-30-00 Supplies $44.73 Total WAWEN125310 $44.73 Printed by EASTWENATCHEE\tallen on 1/4/2017 10:22:20 AMExecution Time: 21 second(s)Page 10 of 27 East Wenatchee - Voucher Directory Vendor Number Reference Account Number Description Amount WAWEN125440 Street/Supplies 501-000-000-542-90-48-25 Street Vehicle R&M Supplies $37.07 Total WAWEN125440 $37.07 Total 47223 $1,102.24 Total Fastenal Company $1,102.24 Frontier 47180 2016 - December 2016 - December 2nd Council Meeting Invoice - 12/13/2016 3:33:25 PM Police Laptops 001-000-210-521-10-42-01 Telephone $619.29 Total Invoice - 12/13/2016 3:33:25 PM $619.29 Invoice - 12/21/2016 3:12:26 PM Street Modems 101-000-420-542-64-47-00 Utilities $53.14 Total Invoice - 12/21/2016 3:12:26 PM $53.14 Invoice - 12/21/2016 3:13:49 PM Street Modems 101-000-420-542-64-47-00 Utilities $53.21 Total Invoice - 12/21/2016 3:13:49 PM $53.21 Invoice - 12/21/2016 3:14:29 PM Street Modems 101-000-420-542-64-47-00 Utilities $53.14 Total Invoice - 12/21/2016 3:14:29 PM $53.14 Invoice - 12/21/2016 3:15:02 PM Street Modems 101-000-420-542-64-47-00 Utilities $53.14 Total Invoice - 12/21/2016 3:15:02 PM $53.14 Invoice - 12/21/2016 3:15:24 PM Street Modems 001-000-180-518-30-47-00 Utilities $210.74 Total Invoice - 12/21/2016 3:15:24 PM $210.74 Invoice - 12/28/2016 9:33:53 AM Street Modems 101-000-420-542-64-47-00 Utilities $53.32 Total Invoice - 12/28/2016 9:33:53 AM $53.32 Invoice - 12/30/2016 11:11:17 AM Street Modems 101-000-420-542-64-47-00 Utilities $55.22 Total Invoice - 12/30/2016 11:11:17 AM $55.22 Total 47180 $1,151.20 Total Frontier $1,151.20 Printed by EASTWENATCHEE\tallen on 1/4/2017 10:22:20 AMExecution Time: 21 second(s)Page 11 of 27 East Wenatchee - Voucher Directory Vendor Number Reference Account Number Description Amount Gavins Personalized Attire, INC DBA GPA Embroidery 47224 2016 - December 2016 - December 2nd Council Meeting 28802 City Logo Shirt for Crawford 001-000-110-511-60-49-00 Miscellaneous $35.75 Total 28802 $35.75 Total 47224 $35.75 Total Gavins Personalized Attire, INC DBA GPA Embroidery $35.75 Jack and Dad's Dump Trucking 47225 2016 - December 2016 - December 2nd Council Meeting Invoice - 12/29/2016 8:25:20 AM Reimbursement for Overpayment 001-000-000-321-99-00-00 Business Licenses & Permits $40.00 Total Invoice - 12/29/2016 8:25:20 AM $40.00 Total 47225 $40.00 Total Jack and Dad's Dump Trucking $40.00 Jeanette S Bryant 47138 2016 - December 2016 - December 2nd Council Meeting Invoice - 12/7/2016 3:26:57 PM per diem/Spokane travel 001-000-210-521-10-49-00 Miscellaneous $16.00 Total Invoice - 12/7/2016 3:26:57 PM $16.00 Invoice - 12/7/2016 3:27:44 PM Evidence Destruction Fee 001-000-210-521-10-49-00 Miscellaneous $25.00 Total Invoice - 12/7/2016 3:27:44 PM $25.00 Total 47138 $41.00 47226 2016 - December 2016 - December 2nd Council Meeting December 15, 2016 2016 Clothing Allowance 001-000-210-521-10-20-01 Clothing Allowance $20.64 Total December 15, 2016 $20.64 Invoice - 1/4/2017 9:20:34 AM 2016 Clothing Allowance 001-000-210-521-10-20-01 Clothing Allowance $20.64 Total Invoice - 1/4/2017 9:20:34 AM $20.64 Total 47226 $41.28 Total Jeanette S Bryant $82.28 Printed by EASTWENATCHEE\tallen on 1/4/2017 10:22:20 AMExecution Time: 21 second(s)Page 12 of 27 East Wenatchee - Voucher Directory Vendor Number Reference Account Number Description Amount Jeremy Lovold 47227 2016 - December 2016 - December 2nd Council Meeting Invoice - 12/29/2016 3:15:30 PM Boot allowance per contract 101-000-430-543-30-30-00 Supplies $296.70 Total Invoice - 12/29/2016 3:15:30 PM $296.70 Total 47227 $296.70 Total Jeremy Lovold $296.70 Joe Hinkle 47228 2016 - December 2016 - December 2nd Council Meeting Invoice - 12/21/2016 4:28:38 PM 2016 Clothing allowance reimbursement 001-000-210-521-10-20-01 Clothing Allowance $226.61 Total Invoice - 12/21/2016 4:28:38 PM $226.61 Total 47228 $226.61 Total Joe Hinkle $226.61 John Phillips 47229 2016 - December 2016 - December 2nd Council Meeting Invoice - 12/14/2016 11:53:24 AM Clothing Allowance Reimbursement 001-000-210-521-10-20-01 Clothing Allowance $454.93 Total Invoice - 12/14/2016 11:53:24 AM $454.93 Total 47229 $454.93 Total John Phillips $454.93 John Randall Harrison 47230 2016 - December 2016 - December 2nd Council Meeting Invoice - 12/13/2016 3:18:41 PM Clothing Allowance 001-000-210-521-10-20-01 Clothing Allowance $139.75 Total Invoice - 12/13/2016 3:18:41 PM $139.75 Total 47230 $139.75 Total John Randall Harrison $139.75 Kcda Purchasing Cooperative INC 47231 2016 - December 2016 - December 2nd Council Meeting 300109650 Garbage Can Liners 001-000-180-518-30-31-06 Cleaning & Sanitation Supplies $63.67 Total 300109650 $63.67 Total 47231 $63.67 Total Kcda Purchasing Cooperative INC $63.67 Printed by EASTWENATCHEE\tallen on 1/4/2017 10:22:20 AMExecution Time: 21 second(s)Page 13 of 27 East Wenatchee - Voucher Directory Vendor Number Reference Account Number Description Amount Kelly Gregory 47232 2016 - December 2016 - December 2nd Council Meeting Invoice - 12/13/2016 3:18:07 PM Clothing Allowance 001-000-210-521-10-20-01 Clothing Allowance $600.00 Total Invoice - 12/13/2016 3:18:07 PM $600.00 Invoice - 12/20/2016 4:20:46 PM Meal-per diem Spokane 001-000-210-521-10-49-00 Miscellaneous $16.00 Total Invoice - 12/20/2016 4:20:46 PM $16.00 Total 47232 $616.00 Total Kelly Gregory $616.00 Key Methods, LLC 47233 2016 - December 2016 - December 2nd Council Meeting CF52842 Computer Maintenance 001-000-145-514-20-40-00 Network Services $3,683.13 Total CF52842 $3,683.13 Total 47233 $3,683.13 Total Key Methods, LLC $3,683.13 Keyhole Security Center Inc 47234 2016 - December 2016 - December 2nd Council Meeting 275580 Key for Police HVAC Door 001-000-180-518-30-49-00 Miscellaneous $12.44 Total 275580 $12.44 Total 47234 $12.44 Total Keyhole Security Center Inc $12.44 Les Schwab Tire Center Inc 47140 2016 - December 2016 - December 2nd Council Meeting 34300673623 Police/Repair Vehicle 501-000-000-521-10-48-00 Police Vehicle Repairs & Maintenance $802.47 Total 34300673623 $802.47 34300673921 Police/Repair Vehicle 501-000-000-521-10-48-00 Police Vehicle Repairs & Maintenance $703.41 Total 34300673921 $703.41 34300674165 Police/Repair Vehicle 501-000-000-521-10-48-00 Police Vehicle Repairs & Maintenance ($802.47) Total 34300674165 ($802.47) Printed by EASTWENATCHEE\tallen on 1/4/2017 10:22:20 AMExecution Time: 21 second(s)Page 14 of 27 East Wenatchee - Voucher Directory Vendor Number Reference Account Number Description Amount 34300677269 Police/Repair Vehicle 501-000-000-521-10-48-00 Police Vehicle Repairs & Maintenance $64.92 Total 34300677269 $64.92 34300683509 Police/Repair Vehicle 501-000-000-521-10-48-00 Police Vehicle Repairs & Maintenance $406.48 Total 34300683509 $406.48 34300689060 Credit 001-000-210-521-10-48-00 Repairs & Maintenance ($480.00) Total 34300689060 ($480.00) Total 47140 $694.81 47235 2016 - December 2016 - December 2nd Council Meeting 34300693927 Street/Vehicle Repair 501-000-000-542-90-48-20 Street Vehicle Repairs & Maintenance $486.93 Total 34300693927 $486.93 Total 47235 $486.93 Total Les Schwab Tire Center Inc $1,181.74 Localtel Communications 47236 2016 - December 2016 - December 2nd Council Meeting Invoice - 12/21/2016 3:08:04 PM Phone/Internet-October 2016 001-000-001-528-70-51-00 River Com $50.45 001-000-141-514-20-42-01 Telephone Line Charges $1,016.53 Total Invoice - 12/21/2016 3:08:04 PM $1,066.98 Total 47236 $1,066.98 Total Localtel Communications $1,066.98 Master Gardener Foundation of Chelan County 47237 2016 - December 2016 - December 2nd Council Meeting 59 November 2016-Japanese Garden 101-000-420-542-80-48-00 Maint Agmt - Japanese Gdn $2,000.00 Total 59 $2,000.00 August 2016 August 2016-Japanese Garden 101-000-420-542-80-48-00 Maint Agmt - Japanese Gdn $2,000.00 Total August 2016 $2,000.00 Total 47237 $4,000.00 Total Master Gardener Foundation of Chelan County $4,000.00 Printed by EASTWENATCHEE\tallen on 1/4/2017 10:22:20 AMExecution Time: 21 second(s)Page 15 of 27 East Wenatchee - Voucher Directory Vendor Number Reference Account Number Description Amount Melton Law PLLC 47238 2016 - December 2016 - December 2nd Council Meeting 55 Conflict Case 001-000-110-511-60-30-00 Public Defender Conflicts $217.50 Total 55 $217.50 Total 47238 $217.50 Total Melton Law PLLC $217.50 Mitchell's Rock & Landscape Supply, Inc 47239 2016 - December 2016 - December 2nd Council Meeting 14832 Landscape Materials 101-000-313-542-42-30-00 Supplies - SWA $64.92 Total 14832 $64.92 14833 Landscape Materials 101-000-313-542-42-30-00 Supplies - SWA $324.60 Total 14833 $324.60 Total 47239 $389.52 Total Mitchell's Rock & Landscape Supply, Inc $389.52 Moon Security 47240 2016 - December 2016 - December 2nd Council Meeting Invoice - 1/3/2017 2:36:05 PM Police Security 001-000-210-521-10-41-00 Professional Services $33.00 Total Invoice - 1/3/2017 2:36:05 PM $33.00 Total 47240 $33.00 Total Moon Security $33.00 NCW Towing 47241 2016 - December 2016 - December 2nd Council Meeting Invoice - 1/4/2017 8:17:09 AM Police DUI Impound 001-000-210-521-10-41-00 Professional Services $195.13 Total Invoice - 1/4/2017 8:17:09 AM $195.13 Total 47241 $195.13 Total NCW Towing $195.13 North Cascades Heating & Air Conditioning, Inc 47242 2016 - December 2016 - December 2nd Council Meeting 18242 HVAC Quarterly Maintenance 001-000-180-518-30-41-00 Professional Services $2,637.38 Total 18242 $2,637.38 Total 47242 $2,637.38 Total North Cascades Heating & Air Conditioning, Inc $2,637.38 Printed by EASTWENATCHEE\tallen on 1/4/2017 10:22:20 AMExecution Time: 21 second(s)Page 16 of 27 East Wenatchee - Voucher Directory Vendor Number Reference Account Number Description Amount Northwest Geodimensions Inc 46023-V 2016 - December 2016 - December 2nd Council Meeting Invoice - 12/14/2016 11:33:45 AM 301-000-000-595-20-50-10 ROW - Highline Drive ($6,070.40) Total Invoice - 12/14/2016 11:33:45 AM ($6,070.40) Total 46023-V ($6,070.40) Total Northwest Geodimensions Inc ($6,070.40) Office Depot 47178 2016 - December 2016 - December 2nd Council Meeting 875294644001 Central Stores 001-000-140-514-20-31-01 Central Stores $1,362.89 Total 875294644001 $1,362.89 876422577001 Street/Black Inck Pens 101-000-430-543-30-30-00 Supplies $27.03 Total 876422577001 $27.03 8779979633001 Court/Supplies 001-000-120-512-50-31-00 Office Supplies $77.88 Total 8779979633001 $77.88 878116759001 Central Storews 001-000-140-514-20-31-01 Central Stores $23.36 Total 878116759001 $23.36 880488045001 Centrlal Stores 001-000-140-514-20-31-00 Office Supplies $77.08 Total 880488045001 $77.08 880488231001 Central Stores/Shop Container 001-000-180-518-30-49-00 Miscellaneous $10.80 Total 880488231001 $10.80 Total 47178 $1,579.04 Total Office Depot $1,579.04 Okanogan County Jail 47243 2016 - December 2016 - December 2nd Council Meeting Invoice - 12/13/2016 3:54:46 PM November 2016 Housing of Inmates 001-000-230-523-21-10-00 Housing & Monitoring Prisoners $1,877.00 Total Invoice - 12/13/2016 3:54:46 PM $1,877.00 Total 47243 $1,877.00 Total Okanogan County Jail $1,877.00 Printed by EASTWENATCHEE\tallen on 1/4/2017 10:22:20 AMExecution Time: 21 second(s)Page 17 of 27 East Wenatchee - Voucher Directory Vendor Number Reference Account Number Description Amount Oxarc, Inc 47244 2016 - December 2016 - December 2nd Council Meeting F347670 Street/Hazardous Material Costs 101-000-430-543-30-30-00 Supplies $232.64 Total F347670 $232.64 Total 47244 $232.64 Total Oxarc, Inc $232.64 Public Safety Testing 47245 2016 - December 2016 - December 2nd Council Meeting 2016-7185 Police Officer Testing 001-000-210-521-10-41-00 Professional Services $360.00 Total 2016-7185 $360.00 Total 47245 $360.00 Total Public Safety Testing $360.00 Pud #1 of Douglas County 47177 2016 - December 2016 - December 2nd Council Meeting Invoice - 12/21/2016 3:09:01 PM City Lights 001-000-180-518-30-47-00 Utilities $22.00 101-000-420-542-63-47-00 Utilities $962.00 101-000-420-542-64-47-00 Utilities $531.00 Total Invoice - 12/21/2016 3:09:01 PM $1,515.00 Invoice - 12/28/2016 9:43:08 AM Circle Street Light 101-000-420-542-63-47-00 Utilities $94.00 Total Invoice - 12/28/2016 9:43:08 AM $94.00 Invoice - 12/28/2016 9:43:44 AM Street Lighting 101-000-420-542-63-47-00 Utilities $190.00 101-000-420-542-75-47-00 Utilities $24.00 Total Invoice - 12/28/2016 9:43:44 AM $214.00 Invoice - 12/28/2016 9:46:38 AM Metered and Street Lighting 001-000-180-518-30-47-00 Utilities $28.00 101-000-420-542-63-47-00 Utilities $147.00 101-000-420-542-75-47-00 Utilities $23.00 Total Invoice - 12/28/2016 9:46:38 AM $198.00 Invoice - 12/28/2016 9:48:00 AM Residence, Garage, Shop and Street Lighting 001-000-180-518-30-47-00 Utilities $133.33 101-000-420-542-63-47-00 Utilities $34.00 Printed by EASTWENATCHEE\tallen on 1/4/2017 10:22:20 AMExecution Time: 21 second(s)Page 18 of 27 East Wenatchee - Voucher Directory Vendor Number Reference Account Number Description Amount 101-000-430-543-50-47-00 Utilities $189.00 Total Invoice - 12/28/2016 9:48:00 AM $356.33 Invoice - 12/30/2016 11:18:32 AM Kentucky & Grant 101-000-420-542-64-47-00 Utilities $75.00 Total Invoice - 12/30/2016 11:18:32 AM $75.00 Invoice - 12/30/2016 11:18:57 AM 15th & Hwy 28 101-000-420-542-63-47-00 Utilities $41.00 Total Invoice - 12/30/2016 11:18:57 AM $41.00 Invoice - 12/30/2016 11:19:24 AM Street Lights 101-000-420-542-63-47-00 Utilities $5,990.00 Total Invoice - 12/30/2016 11:19:24 AM $5,990.00 Total 47177 $8,483.33 Total Pud #1 of Douglas County $8,483.33 Ralph Ochoa DBA Aztec Interpreting 47246 2016 - December 2016 - December 2nd Council Meeting Invoice - 12/20/2016 3:17:39 PM November 2016 Interpreting Services 001-000-120-512-50-49-01 Interpreting $1,435.00 Total Invoice - 12/20/2016 3:17:39 PM $1,435.00 Total 47246 $1,435.00 Total Ralph Ochoa DBA Aztec Interpreting $1,435.00 Randy's Auto Parts & Towing 47247 2016 - December 2016 - December 2nd Council Meeting 54562 Street/Tow Truck Repairs 501-000-000-542-90-48-30 Street Equipment R&M $365.18 Total 54562 $365.18 Total 47247 $365.18 Total Randy's Auto Parts & Towing $365.18 Richard Mott 47248 2016 - December 2016 - December 2nd Council Meeting Invoice - 12/13/2016 3:16:28 PM Clothing Allowance 001-000-210-521-10-20-01 Clothing Allowance $188.09 Total Invoice - 12/13/2016 3:16:28 PM $188.09 Total 47248 $188.09 Total Richard Mott $188.09 Printed by EASTWENATCHEE\tallen on 1/4/2017 10:22:20 AMExecution Time: 21 second(s)Page 19 of 27 East Wenatchee - Voucher Directory Vendor Number Reference Account Number Description Amount Ridgeline Graphics Inc 47249 2016 - December 2016 - December 2nd Council Meeting 17973 Police Car-City logo 501-000-000-521-10-48-00 Police Vehicle Repairs & Maintenance $95.13 Total 17973 $95.13 Total 47249 $95.13 Total Ridgeline Graphics Inc $95.13 Shea Car & Jewell Inc DBA Alliance Consulting Group Inc 47250 2016 - December 2016 - December 2nd Council Meeting 50175 Briarwood Development Density Review 001-000-580-558-60-41-00 Professional Services $1,012.50 Total 50175 $1,012.50 Total 47250 $1,012.50 Total Shea Car & Jewell Inc DBA Alliance Consulting Group Inc $1,012.50 Sirchie Finger Print Laboratories 47251 2016 - December 2016 - December 2nd Council Meeting 0282888-IN Police/Photo ID and Body Bag 001-000-210-594-21-60-00 Capital Outlay $264.98 Total 0282888-IN $264.98 Total 47251 $264.98 Total Sirchie Finger Print Laboratories $264.98 Staples 47252 2016 - December 2016 - December 2nd Council Meeting 336 keyboard-Planning 001-000-580-558-60-31-00 Office Supplies $124.65 Total 336 $124.65 3854 office supplies-Planning 001-000-580-558-60-31-00 Office Supplies $31.40 Total 3854 $31.40 Total 47252 $156.05 Total Staples $156.05 Tele-Lite Inc. 47253 2016 - December 2016 - December 2nd Council Meeting 4020 Generator-Police Evidence trailer 001-000-210-594-21-60-00 Capital Outlay $2,139.00 Total 4020 $2,139.00 Total 47253 $2,139.00 Total Tele-Lite Inc.$2,139.00 Printed by EASTWENATCHEE\tallen on 1/4/2017 10:22:20 AMExecution Time: 21 second(s)Page 20 of 27 East Wenatchee - Voucher Directory Vendor Number Reference Account Number Description Amount Teresa Allen 47137 2016 - December 2016 - December 2nd Council Meeting Invoice - 12/7/2016 3:25:26 PM Mailings-post office reimbursement 001-000-110-511-60-49-00 Miscellaneous $79.94 Total Invoice - 12/7/2016 3:25:26 PM $79.94 Total 47137 $79.94 Total Teresa Allen $79.94 Thompson Towing 47254 2016 - December 2016 - December 2nd Council Meeting 3765 Police/DUI Impound 001-000-210-521-10-41-00 Professional Services $193.68 Total 3765 $193.68 3973 Police/DUI Impound 001-000-210-521-10-41-00 Professional Services $193.68 Total 3973 $193.68 Total 47254 $387.36 Total Thompson Towing $387.36 Town Ford Inc 47255 2016 - December 2016 - December 2nd Council Meeting 41377 Police/Vehicle Parts 001-000-210-521-50-10-00 Ancillary (interfund vehicle maintenance)$327.67 Total 41377 $327.67 Total 47255 $327.67 Total Town Ford Inc $327.67 Tye Sheats 47136 2016 - December 2016 - December 2nd Council Meeting Invoice - 12/7/2016 3:22:59 PM Per Diem-training Burien 001-000-210-521-10-43-00 Travel $560.08 Total Invoice - 12/7/2016 3:22:59 PM $560.08 Total 47136 $560.08 47256 2016 - December 2016 - December 2nd Council Meeting Invoice - 12/21/2016 4:27:49 PM Fuel-training 001-000-210-521-10-43-00 Travel $20.00 Total Invoice - 12/21/2016 4:27:49 PM $20.00 Total 47256 $20.00 Total Tye Sheats $580.08 Printed by EASTWENATCHEE\tallen on 1/4/2017 10:22:20 AMExecution Time: 21 second(s)Page 21 of 27 East Wenatchee - Voucher Directory Vendor Number Reference Account Number Description Amount Verizon Wireless 47182 2016 - December 2016 - December 2nd Council Meeting 9776392215 Police/Cell Phones 001-000-210-521-10-42-01 Telephone $106.91 Total 9776392215 $106.91 9776392224 Police/Cell Phones 001-000-210-521-10-42-01 Telephone $670.24 Total 9776392224 $670.24 9776421468 Police/Cell Phones 001-000-210-521-10-42-01 Telephone $54.71 Total 9776421468 $54.71 Invoice - 12/28/2016 12:03:13 PM Legislative Cell Phone 001-000-110-511-60-49-00 Miscellaneous $55.41 Total Invoice - 12/28/2016 12:03:13 PM $55.41 Total 47182 $887.27 Total Verizon Wireless $887.27 Wash ST Dept of Licensing 47257 2016 - December 2016 - December 2nd Council Meeting EWP000385 Conley Gun Permit 001-001-000-586-00-03-00 State Share of Gun Permits $18.00 Total EWP000385 Conley $18.00 EWP000386 Burgess Gun Permit 001-001-000-586-00-03-00 State Share of Gun Permits $18.00 Total EWP000386 Burgess $18.00 EWP000395 Siler Gun Permit 001-001-000-586-00-03-00 State Share of Gun Permits $18.00 Total EWP000395 Siler $18.00 EWP000396 Siler Gun Permit 001-001-000-586-00-03-00 State Share of Gun Permits $18.00 Total EWP000396 Siler $18.00 EWP000399 Kimball Gun Permit 001-001-000-586-00-03-00 State Share of Gun Permits $18.00 Total EWP000399 Kimball $18.00 Printed by EASTWENATCHEE\tallen on 1/4/2017 10:22:20 AMExecution Time: 21 second(s)Page 22 of 27 East Wenatchee - Voucher Directory Vendor Number Reference Account Number Description Amount EWP000401 Carl Gun Permit 001-001-000-586-00-03-00 State Share of Gun Permits $18.00 Total EWP000401 Carl $18.00 EWP000402 Patterson Gun Permit 001-001-000-586-00-03-00 State Share of Gun Permits $18.00 Total EWP000402 Patterson $18.00 EWP000403 Vangog Gun Permit 001-001-000-586-00-03-00 State Share of Gun Permits $18.00 Total EWP000403 Vangog $18.00 EWP000404 Thomas Gun Permit 001-001-000-586-00-03-00 State Share of Gun Permits $18.00 Total EWP000404 Thomas $18.00 EWP000405 Lueders Gun Permit 001-001-000-586-00-03-00 State Share of Gun Permits $18.00 Total EWP000405 Lueders $18.00 EWP000406 Emme Gun Permit 001-001-000-586-00-03-00 State Share of Gun Permits $18.00 Total EWP000406 Emme $18.00 EWP000407 Emme Gun Permit 001-001-000-586-00-03-00 State Share of Gun Permits $18.00 Total EWP000407 Emme $18.00 EWP000408 Anderson Gun Permit 001-001-000-586-00-03-00 State Share of Gun Permits $18.00 Total EWP000408 Anderson $18.00 EWP000409 Rennie Gun Permit 001-001-000-586-00-03-00 State Share of Gun Permits $18.00 Total EWP000409 Rennie $18.00 EWP000410 Johnston Gun Permit 001-001-000-586-00-03-00 State Share of Gun Permits $18.00 Total EWP000410 Johnston $18.00 EWP000411 Bell Gun Permit 001-001-000-586-00-03-00 State Share of Gun Permits $18.00 Total EWP000411 Bell $18.00 Printed by EASTWENATCHEE\tallen on 1/4/2017 10:22:20 AMExecution Time: 21 second(s)Page 23 of 27 East Wenatchee - Voucher Directory Vendor Number Reference Account Number Description Amount EWP000412 Strop Gun Permit 001-001-000-586-00-03-00 State Share of Gun Permits $18.00 Total EWP000412 Strop $18.00 EWP000414 Martinez Gun Permit 001-001-000-586-00-03-00 State Share of Gun Permits $18.00 Total EWP000414 Martinez $18.00 EWP000415 Martinez Gun Permit 001-001-000-586-00-03-00 State Share of Gun Permits $18.00 Total EWP000415 Martinez $18.00 EWP000416 Ribellia Gun Permit 001-001-000-586-00-03-00 State Share of Gun Permits $18.00 Total EWP000416 Ribellia $18.00 EWP000417 Snoke Gun Permit 001-001-000-586-00-03-00 State Share of Gun Permits $18.00 Total EWP000417 Snoke $18.00 EWP000418 Snoke Gun Permit 001-001-000-586-00-03-00 State Share of Gun Permits $18.00 Total EWP000418 Snoke $18.00 EWP000419 Yarnell Gun Permit 001-001-000-586-00-03-00 State Share of Gun Permits $18.00 Total EWP000419 Yarnell $18.00 EWP000420 Parker Gun Permit 001-001-000-586-00-03-00 State Share of Gun Permits $18.00 Total EWP000420 Parker $18.00 EWP000421 Aldrich Gun Permit 001-001-000-586-00-03-00 State Share of Gun Permits $18.00 Total EWP000421 Aldrich $18.00 EWP000422 Dedmon Gun Permit 001-001-000-586-00-03-00 State Share of Gun Permits $18.00 Total EWP000422 Dedmon $18.00 EWP000423 Head Late Gun Permit 001-001-000-586-00-03-00 State Share of Gun Permits $21.00 Total EWP000423 Head $21.00 Printed by EASTWENATCHEE\tallen on 1/4/2017 10:22:20 AMExecution Time: 21 second(s)Page 24 of 27 East Wenatchee - Voucher Directory Vendor Number Reference Account Number Description Amount EWP000424 Iverson Late Gun Permit 001-001-000-586-00-03-00 State Share of Gun Permits $21.00 Total EWP000424 Iverson $21.00 EWP000425 Lewman Gun Permit 001-001-000-586-00-03-00 State Share of Gun Permits $18.00 Total EWP000425 Lewman $18.00 EWP000426 Timboe Gun Permit 001-001-000-586-00-03-00 State Share of Gun Permits $18.00 Total EWP000426 Timboe $18.00 EWP000427 Flannery Gun Permit 001-001-000-586-00-03-00 State Share of Gun Permits $18.00 Total EWP000427 Flannery $18.00 EWP000428 Hauff Gun Permit 001-001-000-586-00-03-00 State Share of Gun Permits $18.00 Total EWP000428 Hauff $18.00 EWP000429 Kaufer Late Gun Permit 001-001-000-586-00-03-00 State Share of Gun Permits $21.00 Total EWP000429 Kaufer $21.00 EWP000430 Cheek Gun Permit 001-001-000-586-00-03-00 State Share of Gun Permits $18.00 Total EWP000430 Cheek $18.00 Total 47257 $621.00 Total Wash ST Dept of Licensing $621.00 Washington State Patrol 47258 2016 - December 2016 - December 2nd Council Meeting EAS300 Access User Fee 001-000-210-521-10-41-00 Professional Services $534.00 Total EAS300 $534.00 I17003408 Background Checks 001-001-000-586-00-03-00 State Share of Gun Permits $216.00 Total I17003408 $216.00 Total 47258 $750.00 Total Washington State Patrol $750.00 Printed by EASTWENATCHEE\tallen on 1/4/2017 10:22:20 AMExecution Time: 21 second(s)Page 25 of 27 East Wenatchee - Voucher Directory Vendor Number Reference Account Number Description Amount Washington State Transit Insurance Pool 47259 2016 - December 2016 - December 2nd Council Meeting 125413 Driver Record moitoring+ 101-000-430-543-30-46-00 Insurance $8.26 Total 125413 $8.26 Total 47259 $8.26 Total Washington State Transit Insurance Pool $8.26 Weinstein Beverage Co. 47260 2016 - December 2016 - December 2nd Council Meeting 0505828 0 117-000-400-557-30-35-11 W & W Small Tools & Equipment $244.00 Total 0505828 $244.00 Total 47260 $244.00 Total Weinstein Beverage Co.$244.00 Wenatchee Sand & Gravel Inc 47261 2016 - December 2016 - December 2nd Council Meeting 2365222 Parking Curb 101-000-420-542-75-30-00 Supplies $22.76 Total 2365222 $22.76 Total 47261 $22.76 Total Wenatchee Sand & Gravel Inc $22.76 Woods & Brangwin PLLC 47262 2016 - December 2016 - December 2nd Council Meeting Invoice - 12/13/2016 3:35:31 PM Conflict Cases 001-000-110-511-60-30-00 Public Defender Conflicts $292.50 Total Invoice - 12/13/2016 3:35:31 PM $292.50 Total 47262 $292.50 Total Woods & Brangwin PLLC $292.50 Xerox Corporation 47263 2016 - December 2016 - December 2nd Council Meeting 087207075 Police/Copier Fees 001-000-210-521-10-31-05 Office Machine Costs $297.00 Total 087207075 $297.00 Printed by EASTWENATCHEE\tallen on 1/4/2017 10:22:20 AMExecution Time: 21 second(s)Page 26 of 27 East Wenatchee - Voucher Directory Vendor Number Reference Account Number Description Amount 087271764 Copier Fees 001-000-141-514-20-31-01 Office Machine Costs $1,245.36 Total 087271764 $1,245.36 Total 47263 $1,542.36 Total Xerox Corporation $1,542.36 Grand Total Vendor Count 77 $130,683.77 Printed by EASTWENATCHEE\tallen on 1/4/2017 10:22:20 AMExecution Time: 21 second(s)Page 27 of 27 East Wenatchee - Voucher Directory CHECK NUMBERS: 47195; 47264-47281 VOIDED CHECKS: NONE DEPARTMENT/FUND AMOUNT General Fund 001 $69,254.95 Street Fund 101 $50.00 Community Dev Grants Funds 102 $0.00 Transportation Benefit District Fund 105 $0.00 Debt Reserve Fund 110 $0.00 Library Fund 112 $0.00 Hotel/Motel Tax Fund 113 $0.00 Drug Fund 114 $0.00 Criminal Justice Fund 116 $0.00 Events Board Fund 117 $0.00 Bond Redemption Fund 202 $0.00 Street Improvements Fund 301 $0.00 Storm Water Improvements Fund 308 $0.00 Capital Improvements Fund 314 $0.00 Equipment R&R Fund 501 $0.00 Transportation Benefit District 630 $0.00 Grand Total All Funds $69,304.95 CITY OF EAST WENATCHEE CHECK REGISTER January 10, 2017 Payables Fund Number Description Amount 001 Current Expense $69,254.95 101 Street Department $50.00 Count: 2 $69,304.95 Fund Transaction Summary Transaction Type: Invoice Fiscal: 2017 - January 2017 - January 2017 1st Council Meeting Printed by EASTWENATCHEE\tallen on 1/5/2017 9:57:46 AM Page 1 of 1 East Wenatchee - Fund Transaction Summary Vendor Number Reference Account Number Description Amount Assoc of Wash Cities 47264 2017 - January 2017 - January 2017 1st Council Meeting 12202016 2017 Membership Fee 001-000-110-511-60-41-20 Awc Annual Membership Fee $8,567.00 Total 12202016 $8,567.00 Total 47264 $8,567.00 Total Assoc of Wash Cities $8,567.00 Darin Darnell 47195 2017 - January 2017 - January 2017 1st Council Meeting Invoice - 1/4/2017 8:30:04 AM Per Diem-Per contract 001-000-210-521-10-43-00 Travel $44.25 Total Invoice - 1/4/2017 8:30:04 AM $44.25 Total 47195 $44.25 Total Darin Darnell $44.25 Erika Rodriquez 47265 2017 - January 2017 - January 2017 1st Council Meeting Invoice - 1/4/2017 10:23:28 AM Court/Interpreter 001-000-120-512-50-49-01 Interpreting $70.00 Total Invoice - 1/4/2017 10:23:28 AM $70.00 Invoice - 1/4/2017 11:43:49 AM Court/Interpreter 001-000-120-512-50-49-01 Interpreting $35.00 Total Invoice - 1/4/2017 11:43:49 AM $35.00 Total 47265 $105.00 Total Erika Rodriquez $105.00 Esri, Inc 47266 2017 - January 2017 - January 2017 1st Council Meeting 93228063 GIS Maintenance-2017 Total 93228063 Total 47266 Total Esri, Inc Voucher Directory Printed by EASTWENATCHEE\tallen on 1/5/2017 9:59:22 AMExecution Time: 1 minute(s), 13 second(s)Page 1 of 4 East Wenatchee - Voucher Directory Vendor Number Reference Account Number Description Amount In-Print 47267 2017 - January 2017 - January 2017 1st Council Meeting 9914 City Hall Newsletters 001-000-110-511-60-31-05 Newsletter Printing & Mailing $2,450.32 Total 9914 $2,450.32 Total 47267 $2,450.32 Total In-Print $2,450.32 In-Print Printing Inc DBA Congdon Mailing Service 47268 2017 - January 2017 - January 2017 1st Council Meeting 9914M Newsletter List Processing and Postage 001-000-110-511-60-31-05 Newsletter Printing & Mailing $2,002.18 Total 9914M $2,002.18 Total 47268 $2,002.18 Total In-Print Printing Inc DBA Congdon Mailing Service $2,002.18 Judicial Conference Registration 47269 2017 - January 2017 - January 2017 1st Council Meeting Invoice - 1/4/2017 10:37:58 AM Court/Phillips Training 001-000-120-512-50-40-00 Training $40.00 Total Invoice - 1/4/2017 10:37:58 AM $40.00 Total 47269 $40.00 Total Judicial Conference Registration $40.00 Key Methods, LLC 47270 2017 - January 2017 - January 2017 1st Council Meeting CF53179 Computer Support 001-000-145-594-14-60-25 Capital - Cmptr Hdwe Admin $2,562.71 Total CF53179 $2,562.71 Total 47270 $2,562.71 Total Key Methods, LLC $2,562.71 Kottkamp & Yedinak, Pllc 47271 2017 - January 2017 - January 2017 1st Council Meeting Invoice - 1/5/2017 9:44:04 AM Public Defender-December 2016 001-000-110-511-60-21-50 Public Defender $3,772.00 Total Invoice - 1/5/2017 9:44:04 AM $3,772.00 Total 47271 $3,772.00 Total Kottkamp & Yedinak, Pllc $3,772.00 Printed by EASTWENATCHEE\tallen on 1/5/2017 9:59:22 AMExecution Time: 1 minute(s), 13 second(s)Page 2 of 4 East Wenatchee - Voucher Directory Vendor Number Reference Account Number Description Amount MCA, Monica Schneider Treasurer 47272 2017 - January 2017 - January 2017 1st Council Meeting Invoice - 1/4/2017 11:41:28 AM \ 001-000-120-512-50-40-00 Training $40.00 Total Invoice - 1/4/2017 11:41:28 AM $40.00 Total 47272 $40.00 Total MCA, Monica Schneider Treasurer $40.00 NCW EDD 47273 2017 - January 2017 - January 2017 1st Council Meeting Invoice - 1/4/2017 11:08:06 AM 2017 Annual Chelan Douglas Trends 001-000-110-511-60-49-00 Miscellaneous $1,500.00 Total Invoice - 1/4/2017 11:08:06 AM $1,500.00 Total 47273 $1,500.00 Total NCW EDD $1,500.00 Rivercom 47274 2017 - January 2017 - January 2017 1st Council Meeting Invoice - 1/5/2017 9:42:36 AM Jnauary 2017 Dispatch Services 001-000-001-528-70-51-00 River Com $26,083.41 Total Invoice - 1/5/2017 9:42:36 AM $26,083.41 Total 47274 $26,083.41 Total Rivercom $26,083.41 Tony Ditommaso PS 47275 2017 - January 2017 - January 2017 1st Council Meeting Invoice - 1/5/2017 9:45:36 AM Public Defender December 2016 001-000-110-511-60-21-50 Public Defender $3,772.00 Total Invoice - 1/5/2017 9:45:36 AM $3,772.00 Total 47275 $3,772.00 Total Tony Ditommaso PS $3,772.00 Vision Municipal Solutions, Llc 47276 2017 - January 2017 - January 2017 1st Council Meeting 09-4986 2017 Software Assurance 001-000-145-514-20-40-30 Annual Fee - Vision Financial Software $3,063.08 Total 09-4986 $3,063.08 Total 47276 $3,063.08 Total Vision Municipal Solutions, Llc $3,063.08 Printed by EASTWENATCHEE\tallen on 1/5/2017 9:59:22 AMExecution Time: 1 minute(s), 13 second(s)Page 3 of 4 East Wenatchee - Voucher Directory Vendor Number Reference Account Number Description Amount Washington Association 47277 2017 - January 2017 - January 2017 1st Council Meeting Invoice - 1/4/2017 3:22:37 PM Morrison-Membership 2017 001-000-590-558-50-49-00 Miscellaneous $95.00 Total Invoice - 1/4/2017 3:22:37 PM $95.00 Total 47277 $95.00 Total Washington Association $95.00 Washington State Association of Permit Techs 47278 2017 - January 2017 - January 2017 1st Council Meeting Invoice - 1/4/2017 3:03:22 PM Martz-membership renewal 2017 001-000-590-558-50-49-00 Miscellaneous $35.00 Total Invoice - 1/4/2017 3:03:22 PM $35.00 Total 47278 $35.00 Total Washington State Association of Permit Techs $35.00 Wenatchee Valley Humane Society 47279 2017 - January 2017 - January 2017 1st Council Meeting Invoice - 1/5/2017 9:43:34 AM January 2017 Animal Control Services 001-000-001-539-30-51-00 Animal Control $5,850.00 Total Invoice - 1/5/2017 9:43:34 AM $5,850.00 Total 47279 $5,850.00 Total Wenatchee Valley Humane Society $5,850.00 Wenatchee Valley Museum & Cultural Center 47280 2017 - January 2017 - January 2017 1st Council Meeting Invoice - 1/5/2017 9:41:47 AM January 2017 Contract 001-000-001-558-70-41-15 Wenatchee Valley Museum & CC $9,273.00 Total Invoice - 1/5/2017 9:41:47 AM $9,273.00 Total 47280 $9,273.00 Total Wenatchee Valley Museum & Cultural Center $9,273.00 WSU Conference Mgmt. ATTN: Stormwater Conference 47281 2017 - January 2017 - January 2017 1st Council Meeting Invoice - 1/4/2017 10:45:15 AM Street/Stormwater Training 101-000-313-542-42-40-00 Training $50.00 Total Invoice - 1/4/2017 10:45:15 AM $50.00 Total 47281 $50.00 Total WSU Conference Mgmt. ATTN: Stormwater Conference $50.00 Grand Total Vendor Count 19 $69,304.95 Printed by EASTWENATCHEE\tallen on 1/5/2017 9:59:22 AMExecution Time: 1 minute(s), 13 second(s)Page 4 of 4 East Wenatchee - Voucher Directory Page 1 of 1 CITY OF EAST WENATCHEE CITY COUNCIL AGENDA BILL COUNCIL AGENDA BILL # 17-01 AGENDA ITEM # 8 PRESENTER: Greg Pezoldt AGENDA DATE: January 10, 2017 POSITION: City Engineer DEPARTMENT: Public Works TITLE: Resolution to revoke Resolution 2016-14 and authorize the Mayor to Approve 2017 Right of Way Procedures BACKGROUND/HISTORY: WSDOT requires that all local agencies revise their Right of Way Procedures every three years or when personnel changes occur. WSDOT approved procedures are required for whenever the agency is required to purchase right of way on projects utilizing federal funding. Furthermore, Right of Way Procedures are also required by State Law whenever right of way is to be acquired. This will allow the city to fully comply with the requirements of Transportation Improvement Board (TIB) projects. New federal and state right of way rules allow for the Waiver of Appraisal Procedures and Administrative Offer Summaries to be made for property valued at less than $25,000. This is increased from the previous value of $10,000 The city approved right of Way procedures in November 2016, but the WSDOT revised the standard forms since then. This resolution updates the previous Right of Way Procedures Resolution. EXHIBITS: Resolution for the Mayor to approve new 2017 Right of Way Procedures. RECOMMENDED ACTION: Revoke Resolution 2016-14 and approve the resolution to establish 2017 Right of Way Procedures. FINANCIAL DATA: Expenditure Required Amount Budgeted Appropriation Required N/A $ 0.00 ACTION TAKEN: Motion Made By: Second By: Councilmember Sterk Councilmember Raab Councilmember Johnson Councilmember Crawford Councilmember McCourt Councilmember Detering Councilmember Barnhart Passed: Failed: Mayor Lacy (in case of tie) City of East Wenatchee Resolution 2017-01 Page 1 of 2 City of East Wenatchee, Washington Resolution No. 2017-01 A Resolution of the City of East Wenatchee, Washington authorizing the Mayor to approve new 2017 Right of Way Procedures 1. Alternate format. 1.1. Para leer este documento en otro formato (español, Braille, leer en voz alta, etc.), póngase en contacto con el vendedor de la ciudad al alternateformat@east-wenatchee.com, al (509) 884-9515 o al 711 (TTY). 1.2. To read this document in an alternate format (Spanish, Braille, read aloud, etc.), please contact the City Clerk at alternateformat@east-wenatchee.com, at (509) 884-9515, or at 711 (TTY). 2. Authority. 2.1. RCW 35A.11.020 and RCW 35A.12.190 authorize the City Council to organize and regulate its internal affairs and to define the powers, functions and duties of its officers and employees. THE CITY COUNCIL OF THE CITY OF EAST WENATCHEE DO RESOLVE AS FOLLOWS: 3. Authorization. The City Council authorizes the Mayor to sign new 2017 Right of Way Procedures for the City of East Wenatchee. These procedures are specified in Attachment A. 4. These procedures rescind Resolution 2016-14 and all previous Right of Way Procedures for the City. 5. Severability. If a court of competent jurisdiction declares any provision in this resolution to be contrary to law, such declaration shall not affect the validity of the other provisions of this Resolution. 6. Effective date. This Resolution becomes effective immediately. City of East Wenatchee Resolution 2017-01 Page 2 of 2 Passed by the City Council of East Wenatchee, at a regular meeting thereof on this 10th day of January, 2017. The City of East Wenatchee, Washington By _________________________________ Steven C. Lacy, Mayor Attest: ___________________________ Dana Barnard, City Clerk Approved as to form only: ___________________________ Devin Poulson, City Attorney Filed with the City Clerk: __________ Passed by the City Council: __________ Effective Date: __________ LPA-001 Right of Way Procedures Page 1 of 4 Revised 10/2016 Attachment A Right of Way Procedures The City of East Wenatchee hereinafter referred to as “AGENCY”, desiring to acquire real property (obtain an interest in, and possession of, real property) in accordance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act and applicable federal regulations (49 CFR Part 24) and state law (Ch. 8.26 RCW), and state regulations (Ch. 468-100 WAC) hereby adopts the following procedures to implement the above statutes and Washington Administrative Code. The AGENCY is responsible for the real property acquisition and relocation activities on projects administered by the AGENCY. To fulfill the above requirements the AGENCY will acquire right-of-way (ROW) in accordance with the policies set forth in the Right of Way Manual M 26-01 and Local Agency Guidelines. The AGENCY has the following expertise and personnel capabilities to accomplish these functions: 1. The following relate to the AGENCY’s request. a. Below is a list of responsible AGENCY individual names and positions, for which the AGENCY has qualified staff to perform the specific right-of-way function(s). Attached are resumes for each individual AGENCY staff listed to perform those functions below, and a brief summary of their qualifications pertaining to the specific ROW function(s) for which they are listed. The procedures shall be updated whenever staffing changes occur. The AGENCY will be approved to acquire based upon staff qualifications. i. PROGRAM ADMINISTRATION : Oversee delivery of the R/W Program on federal aid projects for the agency. Ensures R/W functions are carried out in compliance with federal and state laws, regulations, policies and procedures. Responsibilities/Expectations: • Ensures agency’s approved R/W Procedures are current, including staff qualifications, and provides copies to consultants and agency staff; • Oversight of ROW consultants; o use of consultant contract approved by WSDOT (under construction) o management of ROW contracts o management of ROW files o reviews and approves actions and decisions recommended by consultants o Overall responsibility for decisions that are outside the purview of consultant functions • Sets Just Compensation prior to offers being made; • Approves administrative offer summaries per policy; • Ensure agency has a relocation appeal process in place prior to starting relocation activities; • Oversight of Administrative Settlements; • Obligation authority for their agency; • Obtain permits (Non-Uniform Relocation Act (URA)); • Ensures there is a separation of functions to avoid conflicts of interest. • Verifies whether or not ROW is needed, and that the property rights and/or interests needed are sufficient to construct, operate and maintain the proposed projects (see Appendix 25.176). Greg Pezoldt, City Engineer LPA-001 Right of Way Procedures Page 2 of 4 Revised 10/2016 (Insert Name and Title of AGENCY Position above & attach resume of qualifications) ii. APPRAISAL Prepare and deliver appraisals on federal aid projects for the agency. Ensures that appraisals are consistent and in compliance with state and federal laws, regulations, policies and procedures. Responsibilities/Expectations: • Use only qualified agency staff approved by WSDOT to perform appraisal work; • Use appraiser from WSDOT’s Approved Appraiser List if agency does not have qualified staff; • Prepare Project Funding Estimates (PFE) or, when applicable, True Cost Estimates (TCE); • Prepare Administrative Offer Summaries (AOS or Appraisal Waiver); • Obtain specialist reports; • Coordinate with engineering, program administration, acquisition, relocation, and/or property management as necessary. Qualified Consultant (Insert Name and Title of AGENCY Position above & attach resume of qualifications) iii. APPRAISAL REVIEW: Review appraisals on federal aid projects for the agency to make sure they are adequate, reliable, and have reasonable supporting data, and approve appraisal reports. Ensures appraisals are adequately supported and represent fair market value and applicable costs to cure and are completed in compliance with state and federal laws, regulations, policies and procedures. Responsibilities/Expectations: • Use only qualified agency staff approved by WSDOT to perform appraisal review work; • Use review appraiser from WSDOT’s Approved Appraiser List if agency does not have qualified staff; • Ensures project wide consistency in approaches to value, use of market data and costs to cure; • Coordinate with engineering, program administration, acquisition, relocation, and/or property management as necessary. Qualified Consultant (Insert Name and Title of AGENCY Position above & attach resume of qualifications) iv. ACQUISITION: Acquire, through negotiation with property owners, real property or real property interests (rights) on federal aid projects for the agency. Ensures acquisitions are completed in compliance with federal and state laws, regulations, and policies and procedures. Responsibilities/Expectations: • Use only qualified staff to perform acquisition activities for real property or real property interests, including donations; LPA-001 Right of Way Procedures Page 3 of 4 Revised 10/2016 • To avoid a conflict of interest, when the acquisition function prepares an AOS, only acquires property valued at $10,000 or less; • Provide and maintain a comprehensive written account of acquisition activities for each parcel; • Prepare administrative settlement justification and obtain approval; • Prepare Project Funding Estimates (PFE) or, when applicable, True Cost Estimates (TCE); • Prepare Administrative Offer Summaries (AOS or Appraisal Waiver); • Review title, and recommend and obtain approval for acceptance of encumbrances; • Ensure acquisition documents are consistent with ROW plans, valuation, and title reports; • Provide a negotiator disclaimer; • Coordinate with engineering, program administration, appraisal, relocation, and/or property management as necessary; • Maintain a complete, well organized parcel file for each acquisition. Qualified Consultant (Insert Name and Title of AGENCY Position above & attach resume of qualifications) v. RELOCATION: Provide relocation assistance to occupants of property considered displaced by a federally funded projects for the agency. Ensures relocations are completed in compliance with federal and state laws, regulations, policies and procedures. Responsibilities/Expectations: • Prepare and obtain approval of relocation plan prior to starting relocation activities; • Confirm relocation appeal procedure is in place; • Provide required notices and advisory services; • Make calculations and provide recommendations for agency approving authority prior to making payment; • Provide and maintain a comprehensive written account of relocation activities for each parcel; • Coordinate with engineering, program administration, appraisal, acquisition, and/or property management as necessary; • Maintain a complete, well organized parcel file for each displacement; • Ensure occupants and personal property is removed from the ROW. Qualified Consultant (Insert Name and Title of AGENCY Position above & attach resume of qualifications) vi. PROPERTY MANAGEMENT: Establish property management policies and procedures that will assure control and administration of ROW, excess lands, and improvements acquired on federal aid projects for the agency. Ensures property management activities are completed in compliance with federal and state laws, regulations, policies and procedures. Responsibilities/Expectations: • Account for use of proceeds from the sale/lease of property acquired with federal funds on other title 23 eligible activities; • Keep R/W free of encroachments; LPA-001 Right of Way Procedures Page 4 of 4 Revised 10/2016 • Obtain WSDOT/FHWA approval for change in access control along interstate; • Maintain property records; • Coordinate with engineering, program administration, appraisal, acquisition, and/or property management as necessary; • Maintain a complete, well organized parcel file for each displacement; • Ensure occupants and personal property is removed from the ROW. Greg Pezoldt, City Engineer (Insert Name and Title of AGENCY Position above & attach resume of qualifications) b. Any functions for which the AGENCY does not have qualified staff, the Agency will contract with another local agency with approved procedures, an outside contractor, or the Washington State Department of Transportation (WSDOT). An AGENCY that proposes to use outside contractors for any of the above functions will need to work closely with the WSDOT Local Agency Coordinator (LAC) and Local Programs to ensure all requirements are met. When the AGENCY proposes to have a staff person approved to negotiate who is not experienced in negotiation for FHWA funded projects, the LAC must be given a reasonable opportunity to review all offers and supporting data before they are presented to the property owners. c. An AGENCY wishing to take advantage of an Appraisal Waiver (aka Administrative Offer Summary or AOS) procedure on properties valued up to $25,000 or less should make their proposed waiver procedure a part of these procedures. The procedure outlined in LAG manual has already been approved using form LPA-003. The AGENCY may submit a procedure different than that shown and it will be reviewed and approved if it provides sufficient information to determine value. d. Attached is a copy of the AGENCY’s administrative settlement procedure showing the approving authority(s) and the procedure involved in making administrative settlements. 2. All projects shall be available for review by the FHWA and WSDOT at any time and all project documents shall be retained and available for inspection during the plan development, right-of-way and construction stages, and for a three year period following acceptance of the projects by WSDOT. 3. Approval of the AGENCY’s procedures by WSDOT may be rescinded at any time the AGENCY is found to no longer have qualified staff or is found to be in non-compliance with the regulations. The rescission may be applied to all or part of the functions approved. Mayor or Chairman Date Washington State Department of Transportation Approved By: Local Programs Right of Way Manager Date LPA-003 10/2014 WAIVER OF APPRAISAL PROCEDURE The ___City of East Wenatchee_______________________________, hereinafter referred to as “AGENCY”, desiring to acquire Real Property according to 23 CFR, Part 635, Subpart C and State directives, and desiring to take advantage of the $25,000.00 appraisal waiver process approved by the Federal Highway Administration (FHWA) for Washington State, hereby agrees to follow the procedure approved for the Washington State Department of Transportation (WSDOT) as follows: Rules A. The AGENCY may elect to waive the requirement for an appraisal if the acquisition is simple and the compensation estimate indicated on the Project Funding Estimate (PFE) is $25,000.00 or less including cost-to cure items. A True Cost Estimate shall not be used with this procedure. B. The AGENCY must make the property owner(s) aware that an appraisal has not been completed on the property for offers $10,000 or less. C. The AGENCY must make the property owner(s) aware that an appraisal has not been completed on the property for offers over $10,000 and up to $25,000, and that an appraisal will be prepared if requested by the property owner(s). D. Special care should be taken in the preparation of the waiver. As no review is mandated, the preparer needs to assure that the compensation is fair and that all the calculations are correct. Procedures A. An Administrative Offer Summary (AOS) is prepared using data from the PFE. B. The AOS is submitted to the Mayor for approval. C. The Mayor signs the AOS authorizing a first offer to the property owner(s). APPROVED: AGENCY By: _____________________________ _____________________________ Local Programs Right of Way Manager Page 1 of 2 CITY OF EAST WENATCHEE CITY COUNCIL AGENDA BILL COUNCIL AGENDA BILL # 17-01 AGENDA ITEM # 9 PRESENTER: Devin Poulson AGENDA DATE: 1/10/2016 POSITION: City Attorney DEPARTMENT: Legal Title: Approval to solicit request for qualifications from law firms to negotiate a Franchise Agreement with Mobilitie. History: Mobilitie has approached the City about entering a Franchise Agreement with the City that would allow Mobilitie to attach “small cell” wireless facilities to City street poles and that would allow Mobilitie to install their own poles with city right of way. According to industry reports, over the upcoming years, phone carriers will need to substantially increase their capacity. Thus, someone who understands the technical complexities and the legal complexities in negotiating an agreement. This knowledge is needed to appropriately determine the sources of revenue available to the City and what the fair market value of these revenue sources should be. Potential areas of negotiation are: Street Light Pole Annual Attachment Fee, New Facility Installation Fee, Permit Application Fee, Inspection Fees, Unauthorized Attachment Penalty Fee, Make Ready fees, Utility Fees, Failure to Timely Transfer. Exhibits: See documents attached to the City’s propose moratorium. Recommended Action: Motion to approve the City to send out written solicitations to qualified law firms. FINANCIAL DATA: Expenditure Required Amount Budgeted Appropriation Required $ 0 $ 0 $ 0 Page 2 of 2 ACTION TAKEN: Motion Made By: Second By: Councilmember Collings Councilmember Raab Councilmember Johnson Councilmember Buckner Councilmember McCourt Councilmember Detering Councilmember Barnhart Passed: Failed: Mayor Lacy (in case of tie) Page 1 of 2 CITY OF EAST WENATCHEE CITY COUNCIL AGENDA BILL COUNCIL AGENDA BILL # 16-12 AGENDA ITEM # 10 PRESENTER: Devin Poulson AGENDA DATE: December 13, 2016 POSITION: City Attorney DEPARTMENT: Legal Title: Ordinance No. 2017-01 An Ordinance of the City of East Wenatchee granting a nonexclusive franchise to Falcon Video Communications, L.P., locally known as Charter Communications. History: The City’s current Franchise Agreement with Charter Communications expires at the end of this year. The attached Franchise Agreement is the same as the existing Agreement, except for the following changes: Auto liability insurance was increase from $1 Million to $2 Million (4.2), a provision was added to address undergrounding of new facilities (7.3), and the provision setting aside a community programming channel was deleted. The City asked for a community programming channel in the last agreement, but took no steps in producing the amount of programming necessary to maintain such a channel. The City has no plans to produce programming in the near future. Legal Considerations: 1. An Ordinance granting a franchise may not be adopted on the day it was introduced to the City Council. 2. The Ordinance must be adopted at a regular meeting. 3. A majority of the City Council must vote for the Ordinance, not just a majority of a quorum. 4. The City Clerk must publish the Ordinance before it is adopted. Exhibits: Page 2 of 2 Recommended Action: Second reading. FINANCIAL DATA: Expenditure Required Amount Budgeted Appropriation Required $ 0 $ 0 $ 0 ACTION TAKEN: Motion Made By: Second By: Councilmember Collings Councilmember Raab Councilmember Johnson Councilmember Crawford Councilmember McCourt Councilmember Detering Councilmember Barnhart Passed: Failed: Mayor Lacy (in case of tie) City of East Wenatchee Ordinance 2017-01 Page 1 of 4 City of East Wenatchee, Washington Ordinance No. 2017-01 An Ordinance of the City of East Wenatchee granting a nonexclusive franchise to Falcon Video Communications, L.P., locally known as Charter Communications. Una Ordenanza de la Ciudad de East Wenatchee otorgando una licencia no exclusiva a Falcon Video Communications, L.P., conocida localmente como Charter Communications. 1.Alternate format. 1.1. Para leer este documento en otro formato (español, Braille, leer en voz alta, etc.), póngase en contacto con el vendedor de la ciudad al alternatformat@east-wenatchee.com, al (509) 884-9515 o al 711 (TTY). 1.2. To read this document in an alternate format (Spanish, Braille, read aloud, etc.), please contact the City Clerk at alternateformat@east-wenatchee.com, at (509) 884-9515, or at 711 (TTY). 2.Recitals. 2.1. The City of East Wenatchee (“City”) is a non-charter code City duly incorporated and operating under the laws of the State of Washington. 3.Authority. 3.1. RCW 35A.11.020 and RCW 35A.12.190 authorize the City Council to adopt ordinances of all kinds to regulate its municipal affairs and appropriate to the good government of the City. 3.2. RCW 35A.11.030, RCW 35A.47.040, and 47 U.S.C. § 541(a)(1) authorize the City Council to grant and renew City of East Wenatchee Ordinance 2017-01 Page 2 of 4 franchises for the installation, operation and maintenance of cable television systems within the City. 3.3. The proposed franchise was read and introduced to the City Council at its regular meeting on December 13, 2016 in accordance with law. THE CITY COUNCIL OF THE CITY OF EAST WENATCHEE DO ORDAIN AS FOLLOWS: 4.Franchise Granted. The City of East Wenatchee grants a non-exclusivefranchise to Falcon Video Communications, L.P., locally known asCharter Communications (“Charter”). A copy of the FranchiseAgreement is attached as Exhibit A. 5.Severability. If a court of competent jurisdiction declares any provisionin this Ordinance to be contrary to law, such declaration shall not affectthe validity of the other provisions of this Ordinance. 6.Publication. The City Council directs the City Clerk to publish asummary of this Ordinance. The summary shall consist of the title ofthis Ordinance. 7.Effective Date. This Ordinance and the Franchise Agreement (Attachedas Exhibit A) becomes effective on the date that Charter accepts theterms of the Franchise Agreement. If Charter fails to accept theFranchise Agreement within 60 days, this Ordinance and the Franchiseis void. City of East Wenatchee Ordinance 2017-01 Page 3 of 4 Passed by the City Council of East Wenatchee, at a regular meeting thereof on this __________ day of ______________________________, 2017. The City of East Wenatchee, Washington By _________________________________ Steven C. Lacy, Mayor Authenticated: _____________________________________ Marcia Martz, Acting City Clerk Approved as to form only: _____________________________________ Devin Poulson, City Attorney __________ __________ __________ Filed with the Acting City Clerk: Passed by the City Council: Published: Effective Date: __________ City of East Wenatchee Ordinance 2017-01 Page 4 of 4 Summary of City of East Wenatchee, Washington Ordinance No. 2017-01 On the 10th day of January, 2017, the City Council of the City of East Wenatchee, Washington approved Ordinance No. 2017-01, the main point of which may be summarized by its title as follows: An Ordinance of the City of East Wenatchee granting a nonexclusive franchise to Falcon Video Communications, L.P., locally known as Charter Communications. The full text of this Ordinance is available at www.east-wenatchee.com. Dated this ______ day of ___________________________, 2017. _____________________________ Marcia Martz, Acting City Clerk FRANCHISE AGREEMENT Page 1 of 14 FRANCHISE AGREEMENT This Franchise Agreement (“Franchise”) is between the CITY of EAST WENATCHEE, WASHINGTON (“Grantor”) and FALCON VIDEO COMMUNICATIONS, L.P., locally known as CHARTER COMMUNICATIONS (“Grantee”). Grantor finds that the Grantee has substantially complied with the material terms of the current Franchise under applicable laws, and that the financial, legal and technical ability of the Grantee is sufficient to provide services, facilities and equipment necessary to meet the future cable- related needs of the community. Having afforded the public adequate notice and opportunity for comment, Grantor desires to enter into this Franchise with the Grantee for the construction and operation of a cable system on the terms set forth herein; and Grantor and Grantee have complied with all federal and State-mandated procedural and substantive requirements pertinent to this franchise renewal; NOW, THEREFORE, Grantor and Grantee agree as follows: SECTION 1 Definition of Terms 1.1 Terms. For the purpose of this franchise the following terms, phrases, words and their derivations shall have the meaning ascribed to them in the Cable Communications Policy Act of 1984, as amended from time to time (the “Cable Act”), unless otherwise defined herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The word “shall” is mandatory and “may” is permissive. Words not defined shall be given their common and ordinary meaning. A.“Cable System,” “Cable Service,” and “Basic Cable Service” shall be defined as set forth in the Cable Act B.“Board/Council” shall mean the governing body of the Grantor. C.“Cable Act” shall mean the Cable Communication Policy Act of 1984, as amended, 47 U.S.C. §§ 521, et. seq. D.“FCC” shall mean the Federal Communications Commission and any successor governmental entity thereto. E.“Franchise” shall mean the non-exclusive rights granted pursuant to this Franchise to construct operate and maintain a Cable System along the public ways within all or a specified area in the Service Area. F.“Gross Revenue” means any revenue, as determined in accordance with generally accepted accounting principles, received by the Grantee from the operation of the Exhibt A to Ordinance 2017-01 FRANCHISE AGREEMENT Page 2 of 14 Cable System to provide Cable Services in the Service Area, provided, however, that such phrase shall not include: (1) any taxes, fees or assessments collected by the Grantee from Subscribers for pass-through to a government agency, including, without limitation, the FCC user fee, the franchise fee, or any sales or utility taxes; (2) unrecovered bad debt; (3) credits, refunds and deposits paid to Subscribers; and (4) any exclusions available under applicable State law. G.“Person” shall mean an individual, partnership, association, organization, corporation, trust or governmental entity. H.“Service Area” shall mean the geographic boundaries of the Franchise Authority, and shall include any additions thereto by annexation or other legal means, subject to the exception in subsection 6.1 hereto. I.“State” shall mean the State of WASHINGTON. J.“Street” shall include each of the following located within the Service Area: public streets, roadways, highways, bridges, land paths, boulevards, avenues, lanes, alleys, sidewalks, circles, drives, easements, rights of way and similar public ways and extensions and additions thereto, including but not limited to public utility easements, dedicated utility strips, or rights-of-way dedicated for compatible uses now or hereafter held by the Grantor in the Service Area, which shall entitle the Grantee to the use thereof for the purpose of installing, operating, repairing and maintaining the Cable System. K.“Subscriber” shall mean any Person lawfully receiving Cable Service from the Grantee. SECTION 2 Grant of Franchise 2.1 Grant. The Grantor grants to the Grantee a nonexclusive Franchise which authorizes the Grantee to erect, construct, operate and maintain in, upon, along, across, above, over and under the Streets, now in existence and as may be created or established during its terms; any poles, wires, cable, underground conduits, manholes, and other conductors and fixtures necessary for the maintenance and operation of a Cable System. Nothing in this Franchise shall be construed to prohibit the Grantee from offering any service over its Cable System that is not prohibited by federal, State or local law. 2.2 Term. The Franchise and the rights, privileges and authority hereby granted shall be for an initial term of seven (7) years, commencing on the Effective Date of this Franchise as set forth in Section 14.10. This Franchise will be automatically extended for an additional term of five (5) years from the expiration date as set forth in Section 14.10, unless either party notifies the other in writing of its desire to not exercise this automatic extension (and enter renewal negotiations under the Cable Act) at least three (3) years before the expiration of this Franchise. If such a notice is given, the parties will then proceed under the federal Cable Act renewal procedures. Exhibt A to Ordinance 2017-01 FRANCHISE AGREEMENT Page 3 of 14 2.3 Police Powers and Conflicts with Franchise. The Grantee agrees to comply with the terms of any generally applicable local ordinance necessary to the safety, health, and welfare of the public which is lawfully adopted pursuant to the Grantor’s general police power. This Franchise is a contract and except as to those changes which are the result of the Grantor’s lawful exercise of its general police power, the Grantor may not take any unilateral action which materially changes the explicit mutual promises in this contract. Any changes to this Franchise must be made in writing signed by the Grantee and the Grantor. In the event of any conflict between this Franchise and any Grantor ordinance or regulation that has the effect of limiting the benefits or expanding the obligations of the Grantee that are granted by this Franchise, this Franchise will prevail, except as to those ordinances and regulations which are the result of the Grantor’s lawful exercise of its general police power. 2.4 Cable System Franchise Required. No Cable System shall be allowed to occupy or use the streets or public rights-of-way of the Service Area or be allowed to operate without a Cable System Franchise. SECTION 3 Franchise Renewal 3.1 Procedures for Renewal. The Grantor and the Grantee agree that any proceedings undertaken by the Grantor that relate to the renewal of the Grantee’s Franchise shall be governed by and comply with the provisions of Section 626 of the Cable Act, or any such successor statute. SECTION 4 Indemnification and Insurance 4.1 Indemnification. The Grantee shall, by acceptance of the Franchise granted herein, defend the Grantor , its officers, boards, commissions, agents, and employees for all claims for injury to any Person or property caused by the negligence of Grantee in the construction or operation of the Cable System and in the event of a determination of liability shall indemnify and hold Grantor, its officers, boards, commissions, agents, and employees harmless from any and all liabilities, claims, demands, or judgments growing out of any injury to any Person or property as a result of the negligence of Grantee arising out of the construction, repair, extension, maintenance, operation or removal of its wires, poles or other equipment of any kind or character used in connection with the operation of the Cable System, provided that the Grantor shall give the Grantee written notice of its obligation to indemnify the Grantor within ten (10) days of receipt of a claim or action pursuant to this section. In the event any such claim arises, the Grantor shall tender the defense thereof to the Grantee and the Grantee shall have the right to defend, settle or compromise any claims arising hereunder and the Grantor shall cooperate fully herein. If the Grantor determined in good faith that its interests cannot be represented by the Grantee, the Grantee shall be excused from any obligation to represent the Grantor. Notwithstanding the foregoing, the Grantee shall not be obligated to indemnify the Grantor for any damages, liability or claims resulting from the willful misconduct or negligence of the Grantor or for the Grantor’s use of the Cable System. Exhibt A to Ordinance 2017-01 FRANCHISE AGREEMENT Page 4 of 14 4.2 Insurance. A.The Grantee shall maintain throughout the term of the Franchise insurance in amounts at least as follows: Workers’ Compensation Statutory Limits Commercial General Liability $2,000,000 per occurrence, Combined Single Limit (C.S.L.) $5,000,000 General Aggregate Auto Liability including coverage on all owned, non-owned hired autos $2,000,000 per occurrence C.S.L. Umbrella Liability $1,000,000 per occurrence C.S.L. B.The Grantor shall be added as an additional insured, arising out of work performed by Charter, to the above Commercial General Liability, Auto Liability and Umbrella Liability insurance coverage. C.The Grantee shall furnish the Grantor with current certificates of insurance evidencing such coverage upon request. SECTION 5 Service Obligations 5.1 No Discrimination. Grantee shall not deny service, deny access, or otherwise discriminate against Subscribers, channel users, or general citizens on the basis of applicable law, specifically RCW 49.06.030. 5.2 Privacy. The Grantee shall fully comply with the privacy rights of Subscribers as contained in Cable Act Section 631 (47 U.S.C. § 551). SECTION 6 Service Availability 6.1 Service Area. The Grantee shall continue to provide Cable Service to all residences within the Service Area where Grantee currently provides Cable Service. Grantee shall have the right, but not the obligation, to extend the Cable System into any other portion of the Service Area, including annexed areas. Cable Service offered to Subscribers pursuant to this Franchise shall be conditioned upon Grantee having legal access to any such Subscriber’s dwelling unit or other units wherein such Cable Service is provided. 6.2 New Development Underground. In cases of new construction or property development where utilities are to be placed underground, the Grantor agrees to require as a condition of issuing a permit for open trenching to any developer or property owner that such Exhibt A to Ordinance 2017-01 FRANCHISE AGREEMENT Page 5 of 14 developer or property owner give Grantee at least thirty (30) days prior written notice of such construction or development, and of the particular dates on which open trenching will be available for Grantee’s installation of conduit, pedestals and/or vaults, and laterals to be provided at Grantee’s expense. Grantee shall also provide specifications as needed for trenching. Costs of trenching and easements required to bring service to the development shall be borne by the developer or property owner; except that if Grantee fails to install its conduit, pedestals and/or vaults, and laterals within five (5) working days of the date the trenches are available, as designated in the written notice given by the developer or property owner, then should the trenches be closed after the five-day period, the cost of new trenching is to be borne by Grantee. 6.3 Annexation. The Grantor shall promptly provide written notice to the Grantee of its annexation of any territory which is being provided Cable Service by the Grantee or its affiliates. Such annexed area will be subject to the provisions of this Franchise upon sixty (60) days ‘written notice from the Grantor, subject to the conditions set forth below and Section 6.1 above. The Grantor shall also notify Grantee in writing of all new street address assignments or changes within the Service Area. Grantee shall within ninety (90) days after receipt of the annexation notice, pay the Grantor franchise fees on revenue received from the operation of the Cable System to provide Cable Services in any area annexed by the Grantor if the Grantor has provided a written annexation notice that includes the addresses that will be moved into the Service Area in an Excel format or in a format that will allow Grantee to change its billing system. If the annexation notice does not include the addresses that will be moved into the Service Area, Grantee shall pay franchise fees within ninety (90) days after it receives the annexed addresses as set forth above. All notices due under this section shall be sent by certified mail, return receipt requested to the addresses set forth in Section 14.5 with a copy to the Director of Government Relations. In any audit of franchise fees due under this Franchise, Grantee shall not be liable for franchise fees on annexed areas unless and until Grantee has received notification and information that meets the standards set forth in this section. SECTION 7 Construction and Technical Standards 7.1 Compliance with Codes. All construction practices and installation of equipment shall be done in accordance with all applicable sections of the National Electric Safety Code. 7.2 Construction Standards and Requirements. All of the Grantee’s plant and equipment, including but not limited to the antenna site, head end and distribution system, towers, house connections, structures, poles, wire, cable, coaxial cable, fixtures and appurtenances shall be installed, located, erected, constructed, reconstructed, replaced, removed, repaired, maintained and operated in accordance with good engineering practices and performed by experienced maintenance and construction personnel. 7.3 Underground Construction. Grantee shall comply with generally applicable non- discriminatory local ordinances related to right-of-way construction. Grantee shall restore the public way to pre-construction condition or better. Grantee shall restore all landscaping as close to preconstruction condition as possible. Grantee agrees to pay all costs and expenditures required on Rights-of-Way as a result of settling, subsidence, or any other need for repairs or maintenance resulting from excavations made by Grantee for necessary trench patch maintenance until the next Exhibt A to Ordinance 2017-01 FRANCHISE AGREEMENT Page 6 of 14 paving job. To the extent required of other users of the public rights-of-way in the City and applied on a non-discriminatory basis, favorable weather conditions permitting, Grantee shall repair Rights- of-Way as a result of settling, subsidence, or other needed repairs or maintenance resulting from excavations made by the Grantee upon 72 hours’ notice excluding weekends and holidays. If Grantee fails to undertake such repairs as herein provided, the City may perform the repairs at Grantee’s expense. 7.4 Safety. The Grantee shall at all times employ ordinary care and shall use commonly accepted methods and devices preventing failures and accidents which are likely to cause damage. 7.5 Network Technical Requirements. The Cable System shall be designed, constructed and operated so as to meet those technical standards adopted by the FCC relating to Cable Systems contained in part 76 of the FCC’s rules and regulations as may be amended from time to time, regardless of the transmission technology utilized. 7.6 Performance Monitoring. Grantee shall test the Cable System consistent with the FCC regulations. SECTION 8 Conditions on Street Occupancy 8.1 General Conditions. Grantee shall have the right to utilize existing poles, conduits and other facilities whenever possible, and shall not construct or install any new, different, or additional poles, conduits, or other facilities on public property without obtaining all legally required permits of the Grantor. 8.2 Underground Construction. The facilities of the Grantee shall be installed underground in those Service Areas where existing telephone and electric services are both underground at the time of system construction. In areas where either telephone or electric utility facilities are installed aerially at the time of system construction, the Grantee may install its facilities aerially with the understanding that at such time as the existing aerial facilities are required to be placed underground by the Grantor, the Grantee shall likewise place its facilities underground. In the event that any telephone or electric utilities are reimbursed by the Grantor or any agency thereof for the placement of cable underground or the movement of cable, Grantee shall be reimbursed upon the same terms and conditions as any telephone, electric or other utilities. 8.3 Construction Codes and Permits. Grantee shall obtain all legally required permits before commencing any work requiring a permit, including the opening or disturbance of any Street within the Service Area. The Grantor shall cooperate with the Grantee in granting any permits required, providing such grant and subsequent construction by the Grantee shall not unduly interfere with the use of such Streets. The Grantee shall adhere to all building and zoning codes currently or hereafter applicable to construction, operation or maintenance of the Cable System in the Service Area, provided that such codes are of general applicability and such codes are uniformly and consistently applied by the Grantor as to other public utility companies and other entities operating in the Service Area. Notwithstanding the above, the Grantee may set off any administrative permit fees or other fees required by the Grantor related to the Grantee’s use Exhibt A to Ordinance 2017-01 FRANCHISE AGREEMENT Page 7 of 14 of Grantor rights-of-way against the franchise fee payments required under Section 10.1 of this Franchise. 8.4 System Construction. All transmission lines, equipment and structures shall be so installed and located as to cause minimum interference with the rights and reasonable convenience of property owners and at all times shall be kept and maintained in a safe, adequate and substantial condition, and in good order and repair. The Grantee shall, at all times, employ ordinary care and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to the public. Suitable barricades, flags, lights, flares or other devices shall be used at such times and places as are reasonably required for the safety of all members of the public. Any poles or other fixtures placed in any public way by the Grantee shall be placed in such a manner as not to interfere with the usual travel on such public way. 8.5 Restoration of Public Ways. Whenever necessary, after construction or maintenance of the Cable System within a right-of-way, Grantee shall, without delay, and at Grantee’s sole expense, remove all debris and restore the right-of-way disturbed by Grantee as nearly as possible to as good or better condition as it was in before the work began. Grantee shall replace any property corner monuments, survey reference or equipment that were disturbed or destroyed by Grantee’s work in a right-of-way. Such restoration shall be done in a manner consistent with applicable codes and laws and to Grantor’s satisfaction and specifications where applicable. 8.6 Removal in Emergency. Whenever, in case of fire or other disaster, it becomes necessary in the judgment of the Grantor to remove any of the Grantee’s facilities, no charge shall be made by the Grantee against the Grantor for restoration and repair, unless such acts amount to gross negligence by the Grantor. 8.7 Tree Trimming. Grantee or its designee shall have the authority to trim trees on public property at its own expense as may be necessary to protect its wires and facilities. 8.8 Relocation for the Grantor. The Grantee shall, upon receipt of reasonable advance written notice, to be not less than ten (10) business days, protect, support, temporarily disconnect, relocate, or remove any property of Grantee when lawfully required by the Grantor pursuant to its police powers. Grantee shall be responsible for any costs associated with these obligations to the same extent all other users of the Grantor rights-of-way are responsible for the costs related to the relocation of their facilities. 8.9 Relocation for a Third Party. The Grantee shall, on the request of any Person holding a lawful permit issued by the Grantor, protect, support, raise, lower, temporarily disconnect, relocate in or remove from the Street as necessary any property of the Grantee, provided that the expense of such is paid by any such Person benefiting from the relocation and the Grantee is give reasonable advance written notice to prepare for such changes. The Grantee may require such payment in advance. For purposes of this subsection, “reasonable advance written notice” shall be no less than ten (10) business days in the event of a temporary relocation and no less than one hundred twenty (120) days for a permanent relocation. Exhibt A to Ordinance 2017-01 FRANCHISE AGREEMENT Page 8 of 14 8.10 Reimbursement of Costs. If funds are available to any Person using the Streets for the purpose of defraying the cost of any of the foregoing, the Grantor shall reimburse the Grantee in the same manner in which other Persons affected by the requirement are reimbursed. If the funds are controlled by another governmental entity, the Grantor shall make application for such funds on behalf of the Grantee. 8.11 Emergency Use. If the Grantee provides an Emergency Alert System (“EAS”), then the Grantor shall permit only appropriately trained and authorized Persons to operate the EAS equipment and shall take reasonable precautions to prevent any use of the Grantee’s Cable System in any manner that results in inappropriate use thereof, or any loss or damage to the Cable System. The Grantor shall hold the Grantee, its employees, officers and assigns harmless from any claims or costs arising out of use of the EAS, including, but not limited to, reasonable attorneys’ fees and costs. SECTION 9 Service and Rates 9.1 Phone Service. The Grantee shall maintain a toll-free telephone number and a phone service operated such that complaints and requests for repairs or adjustments may be received at any time. 9.2 Notification of Service Procedures. The Grantee shall furnish each Subscriber at the time service is installed, written instructions that clearly set forth information concerning the procedures for making inquiries or complaints, including the Grantee’s name, address and local telephone number. Grantee shall give the Grantor thirty (30) days prior notice of any rate increases, channel lineup or other substantive service changes. 9.3 Rate Regulation. Grantor shall have the right to exercise rate regulation to the extent authorized by law, or to refrain from exercising such regulation for any period of time, at the sole discretion of the Grantor. If and when exercising rate regulation, the Grantor shall abide by the terms and conditions set forth by the FCC. 9.4 Continuity of Service. It shall be the right of all Subscribers to continue receiving Cable Service insofar as their financial and other obligations to the Grantee are honored, and subject to Grantee’s rights under Section 14.1 of this Franchise. 9.5 Federal Rules and Regulations. Grantee shall comply with all FCC rules and regulations, as amended from time to time, related to customer service standards. SECTION 10 Franchise Fee 10.1 Amount of Fee. Grantee shall pay to the Grantor an annual franchise fee in an amount equal to five percent (5%) of the annual Gross Revenue. Such payment shall be in addition to taxes of general applicability owed to the Grantor by the Grantee that are not included as franchise fees under federal law. Franchise fees may be passed through to Subscribers as a line item on Subscriber bills or otherwise as Grantee chooses, consistent with federal law. Exhibt A to Ordinance 2017-01 FRANCHISE AGREEMENT Page 9 of 14 A.The parties acknowledge that, at present, applicable federal law limits City to collection of a maximum franchise fee of five percent (5%) of Gross Revenue in any twelve month period. In the event that at any time during the duration of this Franchise applicable federal law changes the maximum allowable Franchise Fee, to be collected in any twelve month period, then this Franchise shall be amended by the parties with sixty days written notice by either party to the other party. The City agrees that all Cable operators in the Franchise Area over which the City has jurisdiction will be treated in an equivalent manner. 10.2 Payment of Fee. Payment of the fee due the Grantor shall be made on a quarterly basis, within forty-five (45) days of the close of each calendar quarter and transmitted by electronic funds transfer to a bank account designated by Grantor. The payment period and the collection of the franchise fees that are to be paid to the Grantor pursuant to the Franchise shall commence sixty (60) days after the Effective Date of the Franchise as set forth in Section 14.10. In the event of a dispute, the Grantor, if it so requests, shall be furnished a statement of said payment, reflecting the Gross Revenues and the applicable charges. 10.3 Accord and Satisfaction. No acceptance of any payment by the Grantor shall be construed as a release or as an accord and satisfaction of any claim the Grantor may have for additional sums payable as a franchise fee under this Franchise. 10.4 Limitation on Recovery. The period of limitation for recovery of any franchise fee payable hereunder shall be three (3) years from the date on which payment by the Grantee was due. If any Franchise payment or recomputed payment is not made on or before the dates specified herein, Grantee shall pay an interest charge, computed from the last day of the fiscal year in which payment was due, at the annual rate of one (1%) percent over the prime interest rate. SECTION 11 Transfer of Franchise 11.1 Franchise Transfer. The Franchise granted hereunder shall not be assigned, other than by operation of law or to an entity controlling, controlled by, or under common control with the Grantee, without the prior consent of the Grantor, such consent not to be unreasonably withheld or delayed. No such consent shall be required, however, for a transfer in trust, by mortgage, by other hypothecation, or by assignment of any rights, title, or interest of the Grantee in the Franchise or Cable System to secure indebtedness. Within thirty (30) days of receiving a request for transfer, the Grantor shall notify the Grantee in writing of any additional information it reasonably requires to determine the legal, financial and technical qualifications of the transferee. If the Grantor has not taken action on the Grantee’s request for transfer within one hundred twenty (120) days after receiving such request, consent by the Grantor shall be deemed given. Exhibt A to Ordinance 2017-01 FRANCHISE AGREEMENT Page 10 of 14 SECTION 12 Records, Reports and Maps 12.1 Reports Required. The Grantee’s schedule of charges for regular Subscriber service, its policy regarding the processing of Subscriber complaints, delinquent Subscriber disconnect and reconnect procedures and any other terms and conditions adopted as the Grantee’s policy in connection with its Subscribers shall be filed with the Grantor upon request. 12.2 Records Required. The Grantee shall at all times maintain: A.A record of all written complaints received regarding interruptions or degradation of Cable Service, which record shall be maintained for one (1) year. B.A full and complete set of plans, records and strand maps showing the location of the Cable System. 12.3 Inspection of Records. Grantee shall permit any duly authorized representative of the Grantor, upon receipt of advance written notice, to examine during normal business hours and on a non-disruptive basis any and all of Grantee’s records maintained by Grantee as is reasonably necessary to ensure Grantee’s compliance with the Franchise. Such notice shall specifically reference the subsection of the Franchise that is under review so that the Grantee may organize the necessary books and records for easy access by the Grantor. The Grantee shall not be required to maintain any books and records for Franchise compliance purposes longer than three (3) years, except for service complaints, which shall be kept for one (1) year as specified above. The Grantee shall not be required to provide Subscriber information in violation of Section 631 of the Cable Act. The Grantor agrees to treat as confidential any books, records or maps that constitute proprietary or confidential information to the extent Grantee make the Grantor aware of such confidentiality. If the Grantor believes it must release any such confidential books or records in the course of enforcing this Franchise, or for any other reason, it shall advise Grantee in advance so that Grantee may take appropriate steps to protect its interests. Until otherwise ordered by a court or agency of competent jurisdiction, the Grantor agrees that, to the extent permitted by State and federal law, it shall deny access to any of Grantee’s books and records marked confidential, as set forth above, to any Person. 12.4 Grantee will comply with RCW Chapter 19.122 and the rules of the Washington Utility Notification Center (Call 811 – Call Before You Dig) regarding facility location. SECTION 13 Enforcement or Revocation 13.1 Notice of Violation. If the Grantor believes that the Grantee has not complied with the terms of the Franchise, the Grantor shall first informally discuss the matter with Grantee. If these discussions do not lead to resolution of the problem, the Grantor shall notify the Grantee in writing of the exact nature of the alleged noncompliance (the “Violation Notice”). Exhibt A to Ordinance 2017-01 FRANCHISE AGREEMENT Page 11 of 14 13.2 Grantee’s Right to Cure or Respond. The Grantee shall have thirty (30) days from receipt of the Violation Notice to (i) respond to the Grantor, contesting the assertion of noncompliance, or (ii) to cure such default, or (iii) if, by the nature of default, such default cannot be cured within the thirty (30) day period, initiate reasonable steps to remedy such default and notify the Grantor of the steps being taken and the projected date that they will be completed. 13.3 Public Hearing. If the Grantee fails to respond to the Violation Notice received from the Grantor, or if the default is not remedied within the cure period set forth above, the Board shall schedule a public hearing if it intends to continue its investigation into the default. The Grantor shall provide the Grantee at least twenty (20) days prior written notice of such hearing, which specifies the time, place and purpose of such hearing, notice of which shall be published by the Clerk of the Grantor in a newspaper of general circulation within the Grantor in accordance with subsection 14.5 hereof. The Grantee shall have the right to present evidence and to question witnesses. The Grantor shall determine if the Grantee has committed a violation and shall make written findings of fact relative to its determination. If a violation is found, the Grantee may petition for reconsideration before any competent tribunal having jurisdiction over such matters. 13.4 Enforcement. Subject to applicable federal and State law, in the event the Grantor, after the hearing set forth in subsection 13.3 above, determines that the Grantee is in default of any provision of the Franchise, the Grantor may: A.Seek specific performance of any provision, which reasonably lends itself to such remedy, as an alternative to damages; or B.Commence an action at law for monetary damages or seek other equitable relief; or C.In the case of a substantial default of a material provision of the Franchise, seek to revoke the Franchise itself in accordance with subsection 13.5 below. 13.5 Revocation. A.Prior to revocation or termination of the Franchise, the Grantor shall give written notice to the Grantee of its intent to revoke the Franchise on the basis of a pattern of noncompliance by the Grantee, including one or more instances of substantial noncompliance with a material provision of the Franchise. The notice shall set forth the exact nature of the noncompliance. The Grantee shall have sixty (60) days from such notice to either object in writing and to state its reasons for such objection and provide any explanation or to cure the alleged noncompliance. If the Grantor has not received a satisfactory response from Grantee, it may then seek to revoke the Franchise at a public hearing. The Grantee shall be given at least thirty (30) days prior written notice of such public hearing, specifying the time and place of such hearing and stating its intent to revoke the Franchise. B.At the hearing, the Board shall give the Grantee an opportunity to state its position on the matter, present evidence and question witnesses, after which it Exhibt A to Ordinance 2017-01 FRANCHISE AGREEMENT Page 12 of 14 shall determine whether or not the Franchise shall be revoked. The public hearing shall be on the record and a written transcript shall be made available to the Grantee within ten (10) business days. The decision of the Board shall be made in writing and shall be delivered to the Grantee. The Grantee may appeal such determination to an appropriate court, which shall have the power to review the decision of the Board de novo. The Grantee may continue to operate the Cable System until all legal appeals procedures have been exhausted. C.Notwithstanding the above provisions, the Grantee does not waive any of its rights under federal law or regulation. D.Upon revocation of the Franchise, Grantee may remove the Cable System from the Streets of the Grantor, or abandon the Cable System in place. SECTION 14 Miscellaneous Provisions 14.1 Force Majeure. The Grantee shall not be held in default under, or in noncompliance with the provisions of the Franchise, nor suffer any enforcement or penalty relating to noncompliance or default, where such noncompliance or alleged defaults occurred or were caused by circumstances reasonably beyond the ability of the Grantee to anticipate and control. This provision includes, but is not limited to, severe or unusual weather conditions, fire, flood, or other acts of God, strikes, work delays caused by failure of utility providers to service, maintain or monitor their utility poles to which Grantee’s Cable System is attached, as well as unavailability of materials and/or qualified labor to perform the work necessary. 14.2 Minor Violations. Furthermore, the parties hereby agree that it is not the Grantor’s intention to subject the Grantee to penalties, fines, forfeitures or revocation of the Franchise for violations of the Franchise where the violation was a good faith error that resulted in no or minimal negative impact on the Subscribers within the Service Area, or where strict performance would result in practical difficulties and hardship to the Grantee which outweighs the benefit to be derived by the Grantor and/or Subscribers. 14.3 Action of Parties. In any action by the Grantor or the Grantee that is mandated or permitted under the terms hereof, such party shall act in a reasonable, expeditious and timely manner. Furthermore, in any instance where approval or consent is required under the terms hereof, such approval or consent shall not be unreasonably withheld. 14.4 Equal Protection. If any other provider of cable services or video services (without regard to the technology used to deliver such services) is lawfully authorized by the Grantor or by any other State or federal governmental entity to provide such services using facilities located wholly or partly in the public rights-of-way of the Grantor, the Grantor shall within thirty (30) days of a written request from Grantee, modify this Franchise to insure that the obligations applicable to Grantee are no more burdensome than those imposed on the new competing provider. If the Grantor fails to make modifications consistent with this requirement, Grantee’s Franchise shall be deemed so modified thirty (30) days after the Grantee’s initial written notice. As an alternative to the Franchise modification request, the Grantee shall have the right and may Exhibt A to Ordinance 2017-01 FRANCHISE AGREEMENT Page 13 of 14 choose to have this Franchise with the Grantor be deemed expired thirty (30) days after written notice to the Grantor. Nothing in this Franchise shall impair the right of the Grantee to terminate this Franchise and, at Grantee’s option, negotiate a renewal or replacement franchise, license, consent, certificate or other authorization with any appropriate government entity. Grantor: City of East Wenatchee Attn: Mayor 271 9th Street NE East Wenatchee, WA 98802 Email: Grantee: Charter Communications Director of Government Affairs 222 NE Park Plaza Dr., Ste 231 Vancouver, WA 98684 Email: marian.jackson@charter.com Copy to: Charter Communications Attn: Vice President, Government Affairs 12405 Powerscourt Drive St. Louis, MO 63131 14.5 Notices. Unless otherwise provided by federal, State or local law, all notices, reports or demands pursuant to this Franchise shall be in writing and shall be deemed to be sufficiently given upon delivery to a Person at the address set forth below, or by U.S. certified mail, return receipt requested, nationally or internationally recognized courier service such as Federal Express or electronic mail communication to the designated electronic mail address provided below. Grantee shall provide thirty (30) days’ written notice of any changes in rates, programming services or channel positions using any reasonable written means. As set forth above, notice served upon the Grantor shall be delivered or sent to: 14.6 Public Notice. Minimum public notice of any public meeting relating to this Franchise or any such grant of additional franchises, licenses, consents, certificates, authorizations, or exemptions by the Grantor to any other Person(s) to provide Cable Services, video services, or other television services utilizing any system or technology requiring use of the public rights of way shall be by publication at least once in a newspaper of general circulation in the area at least ten (10) days prior to the meeting and a posting at the administrative buildings of the Grantor. 14.6.1 Grantor shall provide written notice to Grantee within ten (10) days of Grantor’s receipt from any other Person(s) of an application or request for a franchise(s), license(s), consent(s), certificate(s), authorization(s), or exemption(s) to provide Cable Services, video services, or other television services utilizing any system or technology requiring use of the public rights of way. Any public hearings to consider such application or request shall have the same notice requirement as outlined in Paragraph 14.6 above. 14.7 Severability. If any section, subsection, sentence, clause, phrase, or portion of this Franchise is, for any reason, held invalid or unconstitutional by any court of competent Exhibt A to Ordinance 2017-01 FRANCHISE AGREEMENT Page 14 of 14 jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions of this Franchise. 14.8 Entire Agreement. This Franchise and any Exhibits hereto constitute the entire agreement between Grantee and the Grantor and they supersede all prior or contemporaneous agreements, representations or understandings (whether written or oral) of the parties regarding the subject matter hereof. 14.9 Administration of Franchise. This Franchise is a contract and neither party may take any unilateral action that materially changes the explicit mutual promises and covenants contained herein. Any changes, modifications or amendments to this Franchise must be made in writing, signed by the Grantor and the Grantee. Except as provided in Section 13.5, any determination by either party regarding the interpretation or enforcement of this Franchise shall be subject to de novo judicial review, as provided by applicable law. 14.10 Effective Date. The Franchise granted herein will take effect and be in full force from such date of acceptance by Grantee recorded on the signature page of this Franchise (“Effective Date”). This Franchise shall expire seven years from the Effective Date, unless extended in accordance with Section 2.2 of the Franchise or by the mutual of the parties. If any fee or grant that is passed through to Subscribers is required by this Franchise, other than the franchise fee, such fee or grant shall go into effect sixty (60) days after the Effective Date of this Franchise. Considered and approved this ___ day of ____________, 2017. CITY OF EAST WENATCHEE __________________________________ By Mayor Steven C. Lacy Accepted this ___ day of __________________, _20_____, subject to applicable federal, State and local law. Falcon Video Communications, L.P. By: Charter Communications VII, LLC, its General Partner By: Charter Communications, Inc., its Manager Signature: ___________________________________ Name/Title: _________________________________ Exhibt A to Ordinance 2017-01 Page 1 of 2 CITY OF EAST WENATCHEE CITY COUNCIL AGENDA BILL COUNCIL AGENDA BILL # 17-01 AGENDA ITEM # 11 PRESENTER: Devin Poulson AGENDA DATE: 1/10/2016 POSITION: City Attorney DEPARTMENT: Legal Title: Ordinance No. 2017-02 AN ORDINANCE OF THE CITY OF EAST WENATCHEE granting a non-exclusive Franchise to CenturyLink Communications, LLC to construct, install, operate, maintain, repair, or remove fiber optic cables within the public ways of the City of East Wenatchee History: This is a new franchise agreement with Centurylink. Because Centurylink is a telecommunications company, who intends to operate fiber optic facilities, state law prohibits the City from charging a franchise fee. However, as a reasonable and agreed proxy of the actual costs incurred by the City in administering this Franchise, Centurylink has agreed to pay to the City an annual fee of $4,000.00. This Franchise Agreement is similar to the one the City approved for Zayo Communications. Legal Considerations: 1. An Ordinance granting a franchise may not be adopted on the day it was introduced to the City Council. 2. The Ordinance must be adopted at a regular meeting. 3. A majority of the City Council must vote for the Ordinance, not just a majority of a quorum. 4. The City Clerk must publish the Ordinance before it is adopted. Page 2 of 2 Exhibits: Recommended Action: First reading. FINANCIAL DATA: Expenditure Required Amount Budgeted Appropriation Required $ 0 $ 0 $ 0 ACTION TAKEN: Motion Made By: Second By: Councilmember Collings Councilmember Raab Councilmember Johnson Councilmember Buckner Councilmember McCourt Councilmember Detering Councilmember Barnhart Passed: Failed: Mayor Lacy (in case of tie) Ordinance No. 2017-02 Page 1 of 37 City of East Wenatchee, Washington Ordinance No. 2017-02 AN ORDINANCE OF THE CITY OF EAST WENATCHEE granting a non-exclusive Franchise to CenturyLink Communications, LLC to construct, install, operate, maintain, repair, or remove fiber optic cables within the public ways of the City of East Wenatchee. CenturyLink Communications, LLC, a limited liability company organized and existing under the laws of the State of Delaware (“Franchisee”) is a competitive telecommunications company, which desires to occupy the City of East Wenatchee (“City”) public rights-of-ways to install, construct, operate, and maintain its telecommunications facilities and network; and Franchisee has applied to the City for a non-exclusive franchise to enter, occupy, and use public ways in the City to construct, install, operate, maintain, and repair fiber optic facilities; and A franchise does not include, and is not a substitute for any other permit, agreement, or other authorization required by the City, including without limitation, permits required in connection with construction activities in public ways which must be administratively approved by the City after review of specific plans; Franchisee shall be responsible for its actual costs in using, occupying and repairing public ways; The City and Franchisee desire to effectuate good coordination of the use of the rights-of-way; and RCW 35A.21.245 and RCW 35.99 grants the City authority to regulate the use of public rights-of-way and to grant franchises for the use of its streets, public ways, and properties. The City Council finds that the franchise terms and conditions contained in this ordinance are in the public interest. Ordinance No. 2017-02 Page 2 of 37 NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of East Wenatchee as follows: Section 1. Definitions. For the purposes of this Ordinance, the following terms, phrases, words, and their derivations will have the meanings given herein. 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. Words not defined will have the meaning ascribed to those words in the East Wenatchee Municipal Code, or in the federal Communications Act of 1934 as amended, unless inconsistent herewith. “Affiliate” means any Person who owns or controls, is owned by or controlled by, or is under common ownership or control with Franchisee. "Cable Service" means the one-way transmission to subscribers of video programming or other programming service and subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service. “City Council” means the governing body of the City. “City Property” means all real property owned by the City whether in fee ownership or other interest within the City’s public street and alley rights-of-way. "Conduit" means optical cable housing, jackets, or casing, and pipes, tubes, or tiles used for receiving and protecting wires, lines, cables, and communication and signal lines. "Costs" means costs, expenses, and other financial obligations of any kind whatsoever. "Dark Fiber" means properly functioning optical cable which is not used or available for use by Franchisee or the general public. “Effective Date” means five days following the publication of this Franchise or a summary thereof occurs in an official newspaper of the City as provided by law. “Facilities” means, collectively, any and all telecommunications transmission systems and appurtenances owned by Franchisee, now and in the future, in the Franchise Area, including, but "Incremental Costs" means the actual and necessary costs incurred which exceed costs which would have otherwise been incurred. Ordinance No. 2017-02 Page 3 of 37 Incremental costs shall not include any part, portion, or pro-ration of costs, of any kind whatsoever, including without limitation overhead or labor costs, which would have otherwise been incurred. "Optical Cable" means wires, lines, cables and communication and signal lines used to convey communications by fiber optics. “Person” means any individual, firm, partnership, association, corporation, company or organization of any kind. "Public Way" or “Right-of-Way” means any highway, street, road, sidewalk, alley or other public right of way or public utility easement under the jurisdiction and control of the City which has been acquired, established, dedicated or devoted to such purposes. “Telecommunications” means the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received. “Telecommunications Applications Fees and Charges” includes fees and charges connected to right-of-way management, construction permit, permit design fee, building permit, encroachment permit, inspections and pavement restoration. “Telecommunications Service” means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used. “Telecommunications System” or “System” means only those facilities necessary for Franchisee to provide Telecommunications Service. "Underground Facilities" means facilities located under the surface of the ground, other than underground foundations or supports for overhead facilities. "Utility Poles" means poles, and crossarms, devices, and attachments directly affixed to such poles which are used for the transmission and distribution of electrical energy, signals, or other methods of communication. Ordinance No. 2017-02 Page 4 of 37 Section 2. Franchise. A. Subject to the terms and conditions of this Franchise, the City grants Franchisee a nonexclusive franchise and master permit to enter, occupy, and use public ways for constructing, installing, operating, maintaining, repairing, and removing telecommunications facilities necessary to provide telecommunications services. Except as expressly provided otherwise in this Franchise, Franchisee shall construct, install, operate, maintain, repair, and remove its facilities at its expense. B. Nothing in this Franchise grants authority to Franchisee to enter, occupy, or use City property. C. Any rights, privileges, and authority granted to Franchisee under this Franchise are subject to the legitimate rights of the police power of the City to adopt and enforce general ordinances necessary to protect the safety and welfare of the public, and nothing in this Franchise excuses Franchisee from its obligation to comply with all applicable general laws enacted by the City pursuant to such power. Any conflict between the terms or conditions of this Franchise and any other present or future exercise of the City's police powers will be resolved in favor of the exercise of the City's police power. D. Nothing in this Franchise excuses Franchisee of its obligation to identify its facilities and proposed facilities and their location or proposed location in the public ways and to obtain use and/or development authorization and permits from the City before entering, occupying, or using public ways to construct, install, operate, maintain, repair, or remove such facilities. E. Nothing in this Franchise excuses Franchisee of its obligation to comply with applicable codes, rules, regulations, and standards subject to verification by the City of such compliance. F. Nothing in this Franchise shall be construed to limit taxing authority or other lawful authority to impose charges or fees, or to excuse Franchisee of any obligation to pay lawfully imposed charges or fees. G. Nothing in this Franchise grants authority to Franchisee to impair or damage any City property, public way, other ways or other property, whether publicly or privately owned. H. Nothing in this Franchise shall be construed to create a duty upon Ordinance No. 2017-02 Page 5 of 37 the City to be responsible for construction of facilities or to modify public ways to accommodate Franchisee's facilities. I. Nothing in this Franchise grants authority to Franchisee to provide or offer cable service as cable service is defined in 47 U.S.C. 522(6) or Internet Protocol Television (“IPTV”) Service. J. Franchisee may use the wired facilities authorized by this Franchise for the transmission of telecommunications service only as expressly provided in this Franchise. K. Nothing in this Franchise shall be construed to create, expand, or extend any liability of the City to any third party user of Franchisee's facilities or to otherwise recognize or create third party beneficiaries to this Franchise. L. Nothing in this Franchise shall be construed to permit Franchisee to unlawfully enter or construct improvements upon the property or premises of another. Section 3. Term. The primary term of this Franchise is five years from the effective date of this Franchise. The Franchise will automatically renew for successive periods of five years (successive terms) each unless cancelled at the end of a term by either party by written notice to the other party no less than 180 calendar days prior to the end of the primary term or the then current successive term. Section 4. Location of Facilities. A. Subject to the terms and conditions of this Franchise, Franchisee may place optical cable, optical cable housing, and splicing connections on utility poles as overhead facilities if approved by the owner of the utility poles. All other facilities, including, without limitation, facilities required to operate or maintain such optical cable and optical cable housing, and splicing connections must be underground facilities if they are located in a public way. Nothing contained in this Section requires Franchisee to construct, operate, and maintain underground any ground-mounted appurtenances such as cross-connect boxes, meters, terminals, subscriber taps, line extenders, system passive devices (splitters, directional couplers), amplifiers, stand-by and other power supplies, network reliability units, pedestals, or other related equipment. B. Franchisee's facilities shall not unreasonably interfere with the use of public ways or City property by the City, the general public, Ordinance No. 2017-02 Page 6 of 37 or other persons or entities authorized to enter, occupy, or use public ways or City property. Whenever new facilities will exhaust the capacity of a public way to reasonably accommodate future users or facilities, the Franchisee shall provide nondiscriminatory access to its facilities to future users and facilities. C. Franchisee shall not impair or damage any City property or public way D. Franchisee shall relocate its facilities at the reasonable request of the City when there is construction, alteration, repair or improvement of a public way. Franchisee shall complete the relocation by the date specified by the City, unless the City, or a reviewing court, establishes a later date for completion, after a showing by Franchisee that the relocation cannot be completed by the dates specified using best efforts and meeting safety and service requirements. Franchisee shall relocate its facilities at its expense except: (1) Where the Franchisee had paid for the relocation costs of the same facilities at the request of the City within the past five years, the Franchisee's share of the cost of relocation will be paid by the City if it requested the subsequent relocation. (2) Where the Franchisee has an ownership share of the existing utility poles upon which its optical cable and optical cable housing are located as overhead facilities, the additional incremental cost of underground relocation, or as provided for in an approved tariff if less, will be paid by the City if the City requires the underground relocation. (3) Where the City requests relocation of underground facilities solely for aesthetic purposes, the cost of relocation shall be paid by the City (4) Where the construction, alteration, repair or improvement of a public way is primarily for private benefit (be it a developer or otherwise), the Franchisee may seek reimbursement from the private party or parties for the cost of relocation in the same proportion as their contribution to the costs of the project, taking into account the impact of the project; provided, however, in no event shall the City be considered a private party for purposes of seeking reimbursement under this section. E. Franchisee shall relocate its facilities at its expense at the request of the City in the event of an unforeseen emergency that creates an immediate threat to the public safety, health or welfare. Ordinance No. 2017-02 Page 7 of 37 F. Franchisee shall comply with Municipal Codes and requirements regarding historic districts. Section 5. Pole, Structures and Property Owned by Others. Franchisee must obtain written approval from the owners of utility poles, structures and property not owned by Franchisee prior to attaching to or otherwise using such poles, structures or property, and provide proof of such approval to the City. In the cases where the City owns the utility poles or structures the Franchisee shall comply with the Municipal Code provisions as preparation for a specific project plan and permit submittal. The City makes no representation and assumes no responsibility for the availability of utility poles, structures, and property owned by third parties for the installation of Franchisee's facilities. The City shall not be liable for the unavailability of utility poles, structures, and property owned by the City or third parties for any reason whatsoever. The installation of facilities by Franchisee on or in the poles, structures, or property owned by others shall be subject to and limited by the owner's authority to enter, occupy, and use public ways. In the event that the authority of the owner of poles, structures, or property to enter, occupy, and use the public ways either expires, terminates, or is cancelled, the authority of Franchisee to construct, install, operate, maintain, and repair Franchisee's facilities at such locations may be immediately cancelled at the sole option of the City. The City shall not be liable for the costs for removal of facilities arising from expiration, termination, or cancellation of any pole owner's authority to enter, occupy, or use public ways for any reason whatsoever. Section 6. Construction and Installation Requirements. A. The technical performance of the facilities must meet or exceed all applicable technical standards authorized or required by law, regardless of the transmission technology utilized. The City will have the full authority permitted by applicable law to enforce compliance with these technical standards. B. All installations of facilities will be durable and installed in accordance with good engineering, construction, and installation practices. C. All facilities shall be constructed and installed in such manner and at such points so as not to inconvenience City or public use of the public ways or to adversely affect the public health, safety or welfare and in conformity with plans approved by the City, except in instances in which deviation may be allowed by the City. Ordinance No. 2017-02 Page 8 of 37 D. The construction plans and Franchisee’s operations shall conform to all federal, state, local, and industry codes, rules, regulations, standards and laws. Franchisee must cease work immediately if the City determines that Franchisee is not in compliance with such codes, rules, regulations, or standards, and may not begin or resume work until the City determines that Franchisee is in compliance. The City shall not be liable for any costs arising out of delays occurring as a result of such work stoppage. E. The Telecommunications System constructed, maintained and operated by virtue of this Franchise, shall be so constructed, maintained and operated in accordance with all applicable engineering codes adopted or approved by the City, State of Washington, federal government and/or engineering profession and in accordance with any applicable Statutes of the State of Washington, rules and regulations of the applicable Washington regulatory authority, Ordinances of the City or of any other governmental regulatory commission, board or agency having jurisdiction over Franchisee. F. Franchisee shall secure the required permits, licenses, or other forms of approval needed to lawfully occupy and use public ways. Franchisee shall have the sole responsibility for obtaining, at its own cost and expense, all permits, licenses, or other forms of approval or authorization necessary to construct, operate, maintain or repair or expand the System, and to construct, maintain and repair any part thereof. G. Franchisee or its designee shall have the authority to trim trees or branches measuring up to two inches in caliper on public property or which overhang streets, alleys, sidewalks and public ways of the City so as to prevent the branches of such trees from coming in contact with wires and cables of the Franchisee. Franchisee or its designee shall give prior written notice and shall obtain approval from the Public Works Director before trimming trees measuring more than two inches in caliper. The City agrees to either approve of Franchisee’s request or to meet with Franchisee to review the proposed tree trimming within two business days of the receipt of Franchisee’s written notice. Franchisee takes full responsibility for removing debris when the work is complete. All trimming is to be done at the sole expense and responsibility of Franchisee. Franchisee is solely responsible for property or tree damage caused by it, and must full restore any such property or tree damage when so requested by the City. In an emergency, Franchisee or its designee shall have the right to trim trees without prior approval from the City. Ordinance No. 2017-02 Page 9 of 37 Trimming of trees and shrubbery within or overhanging the public ways to prevent contact with Franchisee’s Facilities shall be done in such a manner to cause the minimum amount of damage to trees and shrubs. If trees are excessively damaged as a result of the work undertaken by or on behalf of Franchisee, Franchisee shall pay the City, within 30 days of submission of a statement by the City, the reasonable cost of any treatment required to preserve a tree or shrub or the cost for removal and replacement of the tree or shrub with landscaping of equal value or the value of the tree or shrub prior to the damage or removal, as determined by the Public Works Director or other authorized agent of the City. Any trimming or removal of trees or shrubs shall be done in full compliance with the City’s Ordinances and all other laws or regulations of the City. H. Neither approval of plans by the City nor any action or inaction by the City shall relieve Franchisee of any duty, obligation, or responsibility for the competent design, construction, and installation of its facilities. Franchisee is solely responsible for the supervision, condition, and quality of the work done, whether it is performed by itself or by its contractors, agents, or assigns. I. Except as to emergency repairs, Franchisee shall, prior to excavating within any street, alley or other public place, and installing any conduit, overhead cable or equipment therein, file with the Public Works Director plans and specifications thereof showing the work to be done, the location and nature of the installation to be made, repaired or maintained, and a schedule showing the times of beginning and completion and shall secure a permit from the City before proceeding with any such work. The Franchisee shall conform to all requirements of the Municipal Code (as enacted or as amended). J. All construction and/or maintenance work as provided herein shall be performed in conformity with the plans and specifications filed with the City and with the permit or permits issued, except in instances in which deviation may be allowed thereafter in writing pursuant to an application by the Franchisee. K. Street excavations shall be dealt with through the standard Right-of-Way permitting process (East Wenatchee Municipal Code Chapter 12.04 (as enacted or as amended)). The City shall not unreasonably withhold or delay issuing the applicable permit. Line extensions also require early consultation with the City to look at corridors and where Facilities shall be placed. However, in the event of an emergency requiring immediate action by Franchisee Ordinance No. 2017-02 Page 10 of 37 for the protection of the Facilities, City property or other persons or property, Franchisee may proceed without first obtaining the normally required permits. In such event Franchisee must (1) take all necessary and prudent steps to protect, support, and keep safe from harm the Facilities, or any part thereof; City property; or other persons or property, and to protect the public welfare, health and safety; and (2) as soon as possible thereafter, must obtain the required permits and comply with any mitigation requirements or other conditions in the after-the-fact permit. L. Unless such condition or regulation is in conflict with a federal or state requirement, the City may condition the granting of any permit or other approval that is required under this Franchise, in any manner reasonably necessary for the safe use and management of the public right-of-way or the City’s property including, by way of example and not limitation, maintaining proper distance from other utilities, protecting the continuity of pedestrian and vehicular traffic and Rights-of-Way improvements, private facilities and public safety. M. Whenever necessary, after construction or maintaining any of Franchisee’s Facilities within the Rights-of-Way, the Franchisee shall, without delay, and at Franchisee’s sole expense, remove all debris and restore the surface disturbed by Franchisee as nearly as possible to as good or better condition as it was in before the work began. Franchisee shall replace any property corner monuments, survey reference or equipment that were disturbed or destroyed during Franchisee’s work in the Rights-of-Way. Such restoration shall be done in a manner consistent with applicable codes and laws and to the City’s satisfaction and specifications where applicable. N. Within 30 days of the effective date of this Franchise, Franchisee shall provide the City with as built maps showing Facilities within the Franchise Area subject to the City’s agreement to maintain the confidentiality of such information to the extent allowed by law. The City agrees that any records turned over by Franchisee constitute trade secrets and that City will comply with all state and federal laws prohibiting disclosure of Franchisee’s maps and information to any third party to the maximum extent allowed by law, and will provide Franchisee with advance notice sufficient to provide Franchisee an opportunity to challenge such disclosure under law. Ordinance No. 2017-02 Page 11 of 37 O. Within 30 days of receiving a written request from the City, Franchisee must provide the City with maps identifying the location of Franchisee’s Facilities located within a specific public way in a Computer Aided Design (CAD) format. P. Franchisee shall at all times keep up-to-date maps and records showing the location and sizes of all Franchisee facilities installed by it in the Franchise Area. Franchisee shall provide - a copy of facilities maps for the City’s use subject to the confidentiality restrictions stated in subsection N, above. Q. Any map or information furnished to the City pursuant to this Franchise shall remain the Franchisee’s proprietary information for all purposes to the extent allowed by law. R. Franchisee shall provide locates and field verify its facilities at no cost to the City. S. Franchisee shall be solely and completely responsible for workplace safety and safe working practices on its job sites within the Franchise area, including safety of all persons and property during the performance of any work. T. All of Franchisee’s underground facilities shall be laid in accordance with current City regulations and project permit requirements. Unless otherwise approved by the Public Works Director, underground facilities must maintain (parallel) ten feet of separation from water mains and sewer mains. Franchisee shall restore the public way to pre-construction condition or better. Franchisee shall restore all landscaping as close to preconstruction condition as possible. Franchisee agrees to pay all costs and expenditures required on Rights-of-Way as a result of settling, subsidence, or any other need for repairs or maintenance resulting from excavations made by Franchisee for necessary trench patch maintenance until the next paving job. Favorable weather conditions permitting, Franchisee agrees to repair Rights-of-Way as a result of settling, subsidence, or other needed repairs or maintenance resulting from excavations made by the Franchisee upon 48 hours’ notice excluding weekends and holidays. If Franchisee fails to undertake such repairs as herein provided, the City may perform the repairs at Franchisee’s expense. Ordinance No. 2017-02 Page 12 of 37 U. Franchisee shall notify the City in advance of any nonemergency work in the Right-of-Way that involves excavation. Franchisee shall provide documentation in advance to the City for street cuts. Design review is not required where trenching does not occur or for routine repair and maintenance. Section 7. Coordination of Construction and Installation Activities and Other Work. A. Franchisee shall coordinate its planned construction and installation activities and other work with the City and other users of the public ways at least annually or as determined by the City. B. All construction or installation locations, activities and schedules shall be coordinated to the extent possible, as reasonably ordered by the City, to minimize public inconvenience, disruption or damages. C. At least 48 hours prior to entering a public way to perform nonemergency construction and installation activities or other work, Franchisee shall give notice, at its cost, to properties adjacent to such public ways indicating the nature and location of the work to be performed. Such notice shall be mailed to the property address, or physically posted by door hanger. D. Franchisee shall make available and accept, to the extent in accordance with all codes and applicable law and not otherwise in conflict with Franchisee’s facilities, the co-location of communications facilities of others within trenches excavated or used by Franchisee in the public ways. E. By February 1 of each year, Franchisee shall provide the City with a schedule of its proposed construction or installation activities and other work in, around, or that may affect the public ways or City property, if any. F. By May 1 of each year, the respective representatives of the City, Franchisee, and other utilities and service providers shall meet to share and discuss their multi-year plan for public way construction. The City shall coordinate the meetings and provide notice to Franchisee. G. The City shall give reasonable advance notice to Franchisee of plans to open public ways for construction or installation of facilities; provided, however, the City shall not be liable for damages for failure to provide such notice. When such notice has Ordinance No. 2017-02 Page 13 of 37 been given, Franchisee shall provide information requested by the City regarding Franchisee's future plans for use of the public way to be opened. When notice has been given, Franchisee may only construct or install facilities during such period that the City has opened the public way for construction or installation. Section 8. Temporary Removal, Adjustment or Alteration of Facilities. A. Except as otherwise provided by this Franchise, including section 4.E., or as otherwise required by law, Franchisee shall temporarily remove, adjust or alter the position of its facilities at its cost at the request of the City for public projects, events, or other public operations or purposes. B. Franchisee shall locate the horizontal location of its underground facilities in accordance with state excavation laws and shall report upon request the standard depth of its underground facilities. C. If any person requests permission from the City to use a public way for the moving or removal of any building or other object, the City shall, prior to granting such permission, require such person or entity to make any necessary arrangements with Franchisee for the temporary removal, adjustment or alteration of Franchisee's facilities to accommodate the moving or removal of said building or other object. In such event, Franchisee shall, at the cost of the person desiring to move or remove such building or other object, remove, adjust or alter the position of its facilities which may obstruct the moving or removal of such building or other object, provided that: (1) The moving or removal of such building or other object which necessitates the temporary removal, adjustment or alteration of facilities shall be done at a reasonable time and in a reasonable manner so as to not unreasonably interfere with Franchisee's business, consistent with the maintenance of proper service to Franchisee's customers; (2) Where more than one route is available for the moving or removal of such building or other object, such building or other object shall be moved or removed along the route which causes the least interference with the operations of Franchisee, in the sole discretion of the City; (3) The person obtaining such permission from the City to move or remove such building or other object may be required to indemnify and save Franchisee harmless from any and all claims and demands made against it on account of injury or damage to the person or property of another arising out of or Ordinance No. 2017-02 Page 14 of 37 in conjunction with the moving or removal of such building or other object, to the extent such injury or damage is caused by the negligence of the person moving or removing such building or other object or the negligence of the agents or employees of the person moving or removing such building or other object; and (4) Completion of notification requirements by a person who has obtained permission from the City to use a public way for the moving or removal of any building or other object shall be deemed to be notification by the City. D. The City may require Franchisee to temporarily remove, adjust or alter the position of Franchisee's facilities as the City may reasonably determine to be necessary at no cost to the City for public work deemed needed by the City in the Rights-of-Way. The City shall not be liable to Franchisee or any other party for any direct, indirect, consequential, punitive, special or other damages suffered as a direct or indirect result of the City's actions, except to the extent caused by the negligence or willful misconduct of City or its contractors. Section 9. Safety and Maintenance Requirements. A. All work authorized and required under this Franchise will be performed in a safe, thorough, and workmanlike manner. B. Franchisee, in accordance with applicable federal, state, and local safety requirements shall, at all times, employ ordinary care and shall use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injury, or nuisance to occur. All facilities, wherever situated or located, shall at all times be kept in a good, safe, and suitable condition. If a violation of a safety code or other applicable regulation is found to exist by the City, the City may, after discussions with Franchisee, establish a reasonable time for Franchisee to make necessary repairs. If the repairs are not made within the established time frame, the City may make the repairs itself at the cost of the Franchisee or have them made at the cost of Franchisee. C. If Franchisee fails to commence, pursue or complete any work required by law, this Franchise or any applicable permit to be done in any public way within the time prescribed and to the satisfaction of the City, the City may at its discretion cause the work to be done. Franchisee shall pay to the City the reasonable costs of the work in an itemized report provided by the City to Ordinance No. 2017-02 Page 15 of 37 Franchisee within 30 days after receipt of such report. D. Franchisee, and any person acting on its behalf, shall provide a traffic control plan that conforms to the latest edition of the Manual of Uniform Traffic Control Devices (MUTCD). Said plan shall use suitable barricades, flags, flagmen, lights, flares, and other measures as required for the safety of all members of the general public during the performance of work, of any kind whatsoever, in public ways to prevent injury or damage to any person, vehicle, or property. Franchisee shall implement and comply with its approved traffic control plan during execution of its work. The traffic control plan shall be developed and kept on site in Franchisee’s possession for all work impacting vehicular and pedestrian traffic. Prior approval is not required of traffic control plans. Traffic control plans may be modified as necessary by the Franchisee to achieve effective and safe traffic control. All road closures requested by Franchisee require a detour plan submitted at least 48 hours in advance and prior City approval unless there is an emergency. E. Franchisee shall maintain its facilities in proper working order. Franchisee shall restore its facilities to proper working order upon receipt of notice from the City that facilities are not in proper working order. The City may, after discussions with Franchisee, establish a reasonable time for Franchisee to restore its facilities to proper working order. If the facilities are not restored to proper working order within the established time frame, the City may restore the facilities to proper working order or have them restored at the cost of Franchisee. F. The City shall have the right to inspect all construction and installation work performed by Franchisee pursuant to this Franchise to the extent necessary to ensure compliance by Franchisee. On an ongoing basis, Franchisee shall certify to the City that Franchisee’s work is being performed and completed in a satisfactory manner. G. The City reserves the right to lay, and permit to be laid, sewer, electric, phone, gas, water and other pipelines, cables, conduits and related appurtenances and to do, or permit to be done, any underground or overhead work in, across, along, over or under a public way or other public place occupied by Franchisee. The City also reserves the right to construct new streets and public utilities and to alter the design of existing streets and public utilities. In performing such work, the City shall not be liable to Franchisee Ordinance No. 2017-02 Page 16 of 37 for any damage except to the extent caused by the negligence or willful misconduct of City or its contractors , and nothing herein shall relieve any other person or entity from the responsibility for damages to Franchisee’s Facilities. The City will use its best efforts to provide Franchisee with reasonable advance notice of plans by other persons to open the public ways. H. On notice from the City that any work is being performed contrary to the provisions herein, or in an unsafe or dangerous manner or in violation of the terms of any applicable permit, laws, regulations, ordinances or standards, the City may issue a stop work order and Franchisee shall stop the work immediately. The City shall issue a stop work order in writing, unless given verbally in the case of an emergency, and provide the order to the individual doing work or post it on the work site. A copy of the order shall be sent to Franchisee, and the order must indicate the nature of the alleged violation or unsafe condition and the conditions under which Franchisee may resume work. Section 10. Removal of Unauthorized Facilities. Within 30 days following written notice from the City, and unless otherwise agreed to by the parties, Franchisee shall, at its expense, remove unauthorized facilities and restore public Rights-of-Way and other property to as good a condition as existed prior to construction or installation of its facilities. Any plan for removal of said facilities must be approved by the City prior to such work. Facilities are unauthorized and subject to removal in the following circumstances: A. Upon expiration, termination, or cancellation of this Franchise, except where the parties are engaged in good faith negotiations of a renewal of this Franchise or new agreement; B. Upon notice by Licensee of abandonment of the Facilities or where such Facilities shall be deemed abandoned due to evidence of inoperability for a period of 90 days; C. If the facilities were constructed or installed prior to the effective date of this Franchise; unless such facilities were constructed via other form of approval or installed upon the condition of subsequent approval of this Franchise with the consent of the City; D. If the facilities were constructed, installed, operated, maintained, or repaired without the prior issuance of required use and/or development authorization and permits; or E. If the facilities were constructed or installed or are operated, Ordinance No. 2017-02 Page 17 of 37 maintained or repaired in violation of the terms or conditions of this Franchise. F. If the facilities are unauthorized for any reason whatsoever. Provided, however, that the City may, in its sole discretion, allow a Franchisee to abandon facilities in place. No facilities may be abandoned in place without the express written consent of the City. Upon consensual abandonment in place of facilities, the facilities shall become property of the City, and Franchisee shall submit to the City an instrument in writing, to be approved by the City, transferring to the City the ownership of such facilities. The failure of Franchisee to submit an instrument shall not prevent, delay, or impair transfer of ownership to the City. Section 11. Restoration of Public Ways and Other Property. A. When Franchisee, or any person acting on its behalf, does any work in or affecting any public way or other property, it shall, at its own expense, promptly remove any obstructions therefrom and restore, at Franchisee's cost, such ways and property to as good a condition as existed before the work was undertaken, unless otherwise directed by the City. B. If weather or other conditions do not permit the complete restoration required by this section, the Franchisee shall temporarily restore the affected ways or property. Such temporary restoration shall be at the Franchisee's cost, and Franchisee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration. C. All restoration work is subject to inspection and final approval by the City. If restoration is not made to the satisfaction of the City within the established timeframe, the City may make the restoration itself at the cost of Franchisee or have them made at the cost of Franchisee. Section 12. Use and/or Development Authorization and Permits. Franchisee shall obtain use, right-of-way construction, and/or development authorization and required permits from the City and all other appropriate regulatory authorities prior to constructing or installing facilities or performing other work in a public way. The City must act on applications for use and/or development authorization or required permits within 60 days of receipt of a completed application, unless Franchisee consents to a different time period. Ordinance No. 2017-02 Page 18 of 37 A. Franchisee shall provide the following information for all facilities that it proposes to construct or install: (1) Engineering plans, specifications and a network map of the proposed facilities and their relation to existing facilities, in a format and media requested by the City in sufficient detail to identify: a. The location and route of the proposed facilities; b. When requested by the City, the location of all overhead and underground public utility, telecommunication, cable, water, sewer, drainage and other facilities in the public way along the proposed route; c. When requested by the City, the location(s), if any, for interconnection with the telecommunication facilities of others; d. The specific trees, structures, improvements, facilities and obstructions, if any, that Franchisee proposes to temporarily or permanently alter, remove or relocate. (2) If Franchisee is proposing to install overhead facilities, evidence of Franchisee’s authorization to use each utility pole along the proposed route together with any conditions of use imposed by the pole owner(s) for each pole; if the overhead facilities are subsequently relocated underground, the Franchisee shall relocate underground at no cost to the City. If the Franchisee proposes to install overhead facilities on City-owned poles or structures, the Franchisee shall comply with all applicable provisions of the East Wenatchee Municipal Code. (3) If Franchisee is proposing to install underground facilities in existing ducts or conduits within the public ways, information in sufficient detail to identify: a. Evidence of ownership or authorization to use such ducts or conduits; b. Conditions of use imposed by the owner(s) of the ducts or conduits; c. If known to Franchisee or reasonably ascertainable to Franchisee, the total capacity of such ducts or conduits; and d. If known to Franchisee or reasonably ascertainable to Franchisee, the amount of the total capacity within such ducts or conduits which will be occupied by Franchisee’s facilities. (4) If Franchisee is proposing to install underground facilities in new ducts or conduits within the public ways: a. The location proposed for new ducts or conduits; Ordinance No. 2017-02 Page 19 of 37 b. The total number of such ducts or conduits; and c. The initial listing of colocated facilities located within Franchisee constructed or installed ducts or conduits. (5) A preliminary construction schedule and completion date together with a traffic control plan in compliance with the MUTCD for any construction. (6) Information to establish that the applicant has obtained all other governmental approvals and permits to construct and operate the facilities. (7) Such other documentation and information regarding the facilities requested by the City. B. The requirements of this section do not apply to installation of optical cable necessary to connect a customer of Franchisee to a previously approved facility; provided that neither excavation nor trenching in the public right-of-way is required, that the optical cable does not cross a distance of more than eighty (80) feet from its point of connection to the approved facility and the point where it exits the public right-of-way, that the optical cable connection meets or exceeds all applicable technical standards required by law, that the optical cable connection is durable and installed in accordance with good engineering, construction, and installation practices and does not interfere with the public use of the public ways, or adversely affect public health, safety or welfare, that the optical cable connection is constructed and installed to conform to all federal, state, local, and industry codes, rules, regulations, and standards, and that the optical cable connection does not damage or impair the City’s public way or property. C. The requirements of this section do not apply to repair or maintenance of a previously approved overhead facility; provided that the location and size of the previously approved facility is not materially changed, that no additional new facilities are constructed or installed, that the repair or maintenance activities are conducted in accordance with good engineering, repair, and maintenance practices and do not interfere with the public use of the public ways, or adversely affect public health, safety, or welfare, that maintenance or repair activities conform to all federal, state, local, and industry codes, rules, regulations, and standards, and that the repair or maintenance activities comply with the Municipal Code. Ordinance No. 2017-02 Page 20 of 37 D. Franchisee shall not be granted development authorization or issued permits for construction or installation of new facilities unless Franchisee is in full compliance with the provisions of this Franchise and all of Franchisee’s existing facilities have been expressly approved by the City in writing. Section 13. Hold Harmless and Assumption of Risk. A. Hold Harmless. (1) Franchisee hereby releases, covenants not to bring suit and agrees to indemnify, defend and hold harmless the City, its elected officials, officers, employees, agents, and representatives against any and all claims, costs, damages, judgments, awards, attorneys’ fees or liability, of any kind whatsoever, to any person, including claims by Franchisee's own employees to which Franchisee might otherwise be immune under Title 51 RCW, arising from injury or death of any person or damage to property arising out of the negligent acts or omissions of Franchisee, its officers, employees, agents or representatives. (2) Franchisee further releases, covenants not to bring suit and agrees to indemnify, defend and hold harmless the City, its elected officials, officers, employees, agents, and representatives from any and all claims, costs, damages, judgments, awards, attorneys’ fees or liability to any person arising out of Franchisee's exercise of the rights, privileges, or authority granted by this Franchise which are made against the City, in whole or in part, due to the City's ownership or control of the public ways or other City property, by virtue of the City permitting the Franchisee's entry, occupancy or use of the public ways, or based upon the City's inspection or lack of inspection of work performed by Franchisee, its officers, employees, agents or representatives. (3) These hold harmless covenants include, but are not limited to claims against the City arising as a result of the acts or omissions of Franchisee, its officers, employees, agents or representatives in barricading, instituting trench safety systems or providing other adequate warnings of any excavation, construction, or work in any public way or other public place in performance of work or services permitted under this Franchise. (4) Franchisee further agrees to indemnify, hold harmless and defend the City, its elected officials, officers, employees, agents, and representatives against any claims for damages, including, but not limited to, business interruption damages Ordinance No. 2017-02 Page 21 of 37 and lost profits, brought by or under users of the Franchisee's facilities as the result of any interruption of service due to damage or destruction of the user's facilities caused by or arising out of damage or destruction of Franchisee's facilities, except to the extent any such damage or destruction is caused by or arises from the active gross negligence of the City. (5) In the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of Franchisee and the City, Franchisee shall have no duty to indemnify or defend City and Franchisee’s liability hereunder shall be only to the extent of Franchisee's negligence. (6) It is further specifically and expressly understood that the hold harmless covenants provided herein constitutes the Franchisee's waiver of immunity under Title 51 RCW. This waiver has been mutually negotiated by the parties. (7) Inspection or acceptance by the City of any work performed by Franchisee at the time of completion of construction or installation shall not be grounds for avoidance of any of these hold harmless covenants. Said hold harmless obligations shall extend to claims which are not reduced to a suit and any claims which may be compromised prior to the culmination of any litigation or the institution of any litigation. (8) In the event that Franchisee refuses the tender of defense in any suit or any claim, said tender having been made pursuant to the hold harmless covenants contained herein, and said refusal is subsequently determined by a court having jurisdiction (or such other tribunal that the parties shall agree to decide the matter), to have been a wrongful refusal on the part of Franchisee, then Franchisee shall pay and be responsible for all of the City's costs for defense of the action, including all reasonable expert witness fees and reasonable attorneys' fees and the reasonable costs of the City, including reasonable attorneys' fees of recovering under this hold harmless clause. B. Assumption of Risk. (1) Franchisee assumes the risk of damage to its facilities located in the City's public ways from activities conducted by third parties or the City, its elected officials, officers, employees, agents, or representatives. Franchisee releases and waives any and all claims against the City, its elected officials, officers, employees, agents, and representatives for Ordinance No. 2017-02 Page 22 of 37 damage to or destruction of the Franchisee's facilities except to the extent any such damage or destruction is caused by or arises from the gross negligence of the City. (2) Franchisee bears sole responsibility to insure its property. Franchisee shall ensure that its insurance contracts waive subrogation claims against the City, its elected officials, officers, employees, agents, and representatives, and Franchisee shall indemnify, defend and hold harmless the City, its elected officials, officers, employees, agents, and representatives against any and all subrogation claims if it fails to do so. Section 14. Insurance. Franchisee shall obtain and maintain, at its cost, worker's compensation insurance in accordance with State law requirements and the following liability insurance policies insuring both Franchisee and the City, and the City’s elected and appointed officers, officials, agents, employees, representatives, engineers, consultants, and volunteers as additional insureds against claims for injuries to persons or damages to property which may arise from or in connection with the exercise of the rights, privileges, and authority granted to Franchisee: A. The Franchisee shall maintain throughout the term of the Franchise insurance in amounts at least as follows: Workers’ Compensation Statutory Limits Commercial General Liability $2,000,000 per occurrence, Combined Single Limit (C.S.L.) $5,000,000 General Aggregate Auto Liability including coverage on all owned, non- owned hired autos $2,000,000 per occurrence C.S.L. Umbrella Liability $1,000,000 per occurrence C.S.L. B. The City shall be added as an additional insured, arising out of work performed by Charter, to the above Commercial General Liability, Auto Liability and Umbrella Liability insurance coverage. Ordinance No. 2017-02 Page 23 of 37 C. The liability insurance policies required by this section shall be maintained by Franchisee throughout the term of this Franchise, such other periods of time during which Franchisee's facilities occupy public ways, and while Franchisee is engaged in the removal of its facilities. Franchisee shall provide a memorandum of insurance, which contains a blanket endorsement including the City, and its elected and appointed officers, officials, agents, employees, representatives, engineers, consultants, and volunteers as additional insureds, to the City prior to the commencement of any construction or installation of any facilities pursuant to this Franchise or other work in a public way. Payment of deductibles and self-insured retentions shall be the sole responsibility of Franchisee. The evidence of insurance required by this section shall contain a clause stating that coverage shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer's liability. Franchisee's insurance shall be primary insurance with respect to the City, its officers, officials, employees, agents, consultants, representatives, engineers and volunteers and any insurance maintained by the City, its officers, officials, employees, consultants, agents, and volunteers shall be in excess of the Franchisee's insurance and shall not contribute to it (but only for the actions of Franchisee or those whom Franchisee is responsible). D. In addition to the coverage requirements set forth in this section, each such insurance policy shall contain an endorsement in a form which substantially complies with the following: The aforesaid policies shall provide that said insurance shall not be canceled unless thirty (30) days prior written notice (ten days for non-payment of premium) shall have been given to City (provided, however, that in the event that Franchisee’s insurance carrier will not provide such notice to City, then Franchisee must provide such written notice to City within the time frames set forth above on any of the required coverages that are not replaced). Ordinance No. 2017-02 Page 24 of 37 E. At least five (5) days prior to said cancellation or non-renewal, Franchisee shall obtain and make available to the City, evidence of replacement insurance policies meeting the requirements of this section. Evidence of Franchisee’s insurance is available at www.centurylink.com/moi. Section 15. Performance Bond. Franchisee shall file with the City a performance bond in the amount specified by the City at the time the City grants Franchisee a requested construction permit. This bond shall be maintained throughout the period of time that Franchisee is performing work under such applicable construction permit. In the event Franchisee fails to comply with any law, ordinance, or regulation governing the Franchise, or fails to perform, observe, and fulfill each term, condition and covenant of the Franchise, there shall be recoverable, jointly and severally from the principal and surety of the bond, any damage or loss suffered by the City. Section 16. Security Fund. In addition to the performance bond, Franchisee shall establish and maintain a security fund in the amount of $8,000, at its cost, with the City by depositing such bond, letters of credit, or other instruments in such form and amount acceptable to the City within 30 calendar days of the effective date of this Franchise. No sums may be withdrawn from the fund by Franchisee without consent of the City. The security fund shall be maintained at the sole expense of Franchisee so long as any of the Franchisee’s facilities occupy a public way. A. The fund shall serve as security for the performance of this Franchise, including any claims, costs, damages, judgments, awards, attorneys’ fees or liability, of any kind whatsoever, the City pays or incurs, including civil penalties, because of any failure attributable to Franchisee to comply with the provisions of this Franchise or the codes, ordinances, rules, regulations, standards, or permits of the City. B. Before any sums are withdrawn from the security fund, the City shall give written notice to Franchisee: (1) Describing the act, default or failure to be remedied, or the claims, costs, damages, judgments, awards, attorneys’ fees or liability which the City has incurred or may pay by reason of Franchisee's act or default; (2) Providing a reasonable opportunity for Franchisee to first remedy the existing or ongoing default or failure, if Ordinance No. 2017-02 Page 25 of 37 applicable; (3) Providing a reasonable opportunity for Franchisee to pay any monies due the City before the City withdraws the amount thereof from the security fund, if applicable; and (4) Franchisee will be given an opportunity to review the act, default or failure described in the notice with the City or his or her designee. C. Franchisee shall replenish the security fund within fourteen (14) days after written notice from the City that there is a deficiency in the amount of the fund. D. Insufficiency of the security fund shall not release or relieve Franchisee of any obligation or financial responsibility. Section 17. Taxes, Charges, and Fees. A. As a reasonable and agreed proxy of the actual costs incurred by the City in administering this Franchise, Franchisee shall pay to the City an annual franchise fee of $4,000.00 during each year, or portion thereof, in which the Franchise is in effect. Such fee shall be due and payable by Franchisee not later than 30 calendar days after the effective date and each anniversary date of the Franchise. B. Franchisee shall also pay and be responsible for any permit which may be required, or for such out of pocket costs that the City incurs due to this Franchise that can lawfully be attributed to Franchisee, including reasonable application and processing charges and fees imposed by the City. (1) Franchisee shall pay a franchise processing fee of $1,500.00 within 30 calendar days of the effective date of this Franchise. (2) Franchisee shall pay fees according to applicable fee schedules and sections of the Municipal Code. C. Franchisee shall pay and be responsible for taxes permitted by law. Section 18. Additional Ducts and Conduits. A. Franchisee shall construct and install additional ducts and conduits when and where requested by the City and related structures necessary to access the ducts and conduits. Such ducts and conduits shall be readily accessible and available for governmental use as determined by the City in its reasonable Ordinance No. 2017-02 Page 26 of 37 discretion. Such ducts and conduits shall not be used to provide telecommunications or cable service for hire, sale, or resale to the general public unless otherwise agreed by the parties. The City shall be responsible for incremental costs to construct and install such ducts and conduits, and for its pro rata share of any maintenance removal or repair costs. Section 19. Omitted. Section 20. Acquisition of Facilities. Upon Franchisee’s acquisition of any facilities in the public way, or upon any addition or annexation to the City of any area in which Franchisee has facilities, such facilities shall immediately be subject to the terms of this Franchise without further action of the City or Franchisee. Section 21. One-Call. Franchisee is responsible for complying with the provisions of Washington’s One-Call statutes. Section 22. Vacation of Public Ways. The City reserves the right to vacate any public way which is subject to rights, privileges, and authority granted by this Franchise. If Franchisee has facilities in such public way, the City shall reserve an easement for Franchisee. Section 23. Duty to Provide Information. Within 30 days of a written request from the City, Franchisee shall furnish the City with all requested information sufficient to demonstrate: A. That Franchisee has complied with all requirements of this Franchise; and B. That taxes, fees, charges, or other costs owed or payable by Franchisee have been properly collected and paid. Franchisee's obligations under this section are in addition to those provided elsewhere in this Franchise. Section 24. Records. A. Franchisee will manage all of its operations in accordance with a policy of keeping its documents and records open and accessible to the City. The City will have access to, and the right to inspect, any documents and records of Franchisee and its affiliates that are reasonably necessary for the enforcement of this Franchise or to verify Franchisee's compliance with terms or conditions of this Franchise. Franchisee will not deny the City access to any of Franchisee's records on the basis that Franchisee's documents or Ordinance No. 2017-02 Page 27 of 37 records are under the control of any affiliate or a third party. B. All documents and records maintained by Franchisee shall be made available for inspection by the City at reasonable times and intervals; provided, however, that nothing in this section shall be construed to require Franchisee to violate state or federal laws, including those regarding subscriber privacy, nor shall this section be construed to require Franchisee to disclose proprietary or confidential information without adequate safeguards for its confidential or proprietary nature. C. One copy of documents and records requested by the City will be furnished to the City at the cost of Franchisee. If the requested documents and records are too voluminous or for security reasons cannot be copied or removed, then Franchisee may request, in writing within ten (10) days of the City's request, that the City inspect them at Franchisee's local office. If any documents or records of Franchisee are not kept in a local office and/or are not made available in copies to the City, and if the City determines that an examination of such documents or records is necessary or appropriate for the enforcement of this Franchise, or to verify Franchisee's compliance with terms or conditions of this Franchise, then all reasonable travel and related costs incurred in making such examination shall be paid by Franchisee. Section 25. Assignment or Transfer. Franchisee's rights, privileges, and authority under this Franchise, and ownership or working control of facilities constructed or installed pursuant to this Franchise, may not, directly or indirectly, be transferred, assigned or disposed of by sale, lease, merger, consolidation or other act of Franchisee, by operation of law or otherwise, except as provided herein, or without the prior written consent of the City, which consent shall not be unreasonably withheld or delayed. Any transfer, assignment or disposal of Franchisee's rights, privileges, and authority under this Franchise, or ownership or working control of facilities constructed or installed pursuant to this Franchise, may be subject to reasonable conditions as may be prescribed by the City. A. No rights, privileges, or authority under this Franchise shall be assigned, transferred, or disposed of in any manner within twelve (12) months after the effective date of this Franchise. B. Absent extraordinary and unforeseeable circumstances, no facility shall be assigned, transferred, or disposed of before construction of the facility has been completed and restoration has been performed Ordinance No. 2017-02 Page 28 of 37 to the satisfaction of the City. C. Franchisee and the proposed assignee or transferee shall provide and certify the following information to the City not less than one hundred and fifty (150) days prior to the proposed date of assignment, transfer, or disposal: (1) Complete information setting forth the nature, terms and conditions of the proposed assignment, transfer, or disposal; (2) Any other information reasonably required by the City; and (3) A transfer application fee in an amount to be determined by the City to recover actual administrative costs directly related to receiving and approving the proposed assignment, transfer, or disposal. D. No assignment, transfer, or disposal may be made or shall be approved unless the assignee or transferee has the legal, technical, financial, and other requisite qualifications to operate, maintain, repair, and remove facilities constructed or installed pursuant to this Franchise and to comply with the terms and conditions of this Franchise. E. Any transfer, assignment, or disposal of rights, privileges, and authority under this Franchise or ownership or working control of facilities constructed or installed pursuant to this Franchise, without prior written approval of the City pursuant to this section, shall be void and is cause for termination of this Franchise. E. Any transactions which singularly or collectively result in a change of fifty percent (50%) or more of the ownership or working control (regardless of the percentage) of the Franchisee or affiliated entities having fifty percent (50%) or more of the ownership or actual working control (regardless of the percentage) of Franchisee, or of control of the telecommunications capacity or bandwidth of Franchisee, shall be considered an assignment or transfer requiring City approval. Transactions between affiliated entities are exempt from City approval; provided that, Franchisee shall promptly notify the City prior to any proposed change in, or transfer of, or acquisition by any other party of control of Franchisee. Except for affiliate transactions, every change, transfer, or acquisition of control of Franchisee shall cause a review of the proposed transfer. City approval shall not be required for mortgaging purposes or if said transfer is from Franchisee to another person controlled by Franchisee. F. All terms and conditions of this Franchise shall be binding upon all Ordinance No. 2017-02 Page 29 of 37 permitted successors and assigns of Franchisee and all persons who obtain ownership or working control of any facility constructed or installed pursuant to this Franchise. Section 26. Violations, Noncompliance, and Other Grounds for Termination or Cancellation. A. This Franchise, and any right, privilege or authority of Franchisee to enter, occupy or use public ways may be terminated or cancelled by the City for the following reasons: (1) Violation of or noncompliance with any term or condition of this Franchise by Franchisee; (2) Violation of or noncompliance with the material terms of any use and/or development authorization or required permit by Franchisee; (3) Nonemergency construction, installation, operation, maintenance, or repair of facilities on, in, under, over, across, or within any public way without Franchisee first obtaining use and/or development authorization and required permits from the City and all other appropriate regulatory authorities; (4) Unauthorized construction, installation, operation, maintenance, or repair of facilities on City property; (5) Misrepresentation by or on behalf of Franchisee in any application or written statement upon which the City relies in making the decision to grant, review or amend any right, privilege or authority to Franchisee; (6) Abandonment of facilities; (7) Failure of Franchisee to pay undisputed taxes, fees, charges or costs related to this Franchise when and as due; or (8) Insolvency or bankruptcy of Franchisee. B. If the City believes that grounds exist for termination or cancellation of this Franchise or any right, privilege or authority of Franchisee to enter, occupy or use public ways, Franchisee shall be given written notice and a reasonable period of time not exceeding 30 days to furnish evidence: (1) That corrective action has been, or is being actively and expeditiously pursued, to remedy the violation, noncompliance, or other grounds for termination or cancellation; (2) That rebuts the alleged violation, noncompliance, or other grounds for termination or cancellation; or (3) That it would be in the public interest to impose some Ordinance No. 2017-02 Page 30 of 37 penalty or sanction less than termination or cancellation. C. In the event that Franchisee fails to provide evidence reasonably satisfactory to the City as provided in subsection (B) of this section, the City shall refer the apparent violation, noncompliance, or other grounds for termination or cancellation to the City Council. The City Council shall provide the Franchisee with notice and a reasonable opportunity to be heard concerning the matter. D. If the City Council determines that the violation, noncompliance, or other grounds above for termination or cancellation exist, then, Franchisee shall, at the election of the City Council, forfeit all rights, privileges and authority conferred under this Franchise or any use and/or development authorization or permit granted by the City, and this Franchise and any such use and/or development authorization or permit may be terminated or cancelled by the City Council. The City Council may elect, in lieu of the foregoing and without any prejudice to any of its other legal rights and remedies, to pursue other remedies, including obtaining an order compelling Franchisee into compliance or to take corrective action, or to recover damages and costs incurred by the City by reason of Franchisee's actions or omissions. The City Council shall utilize the following factors in analyzing the nature, circumstances, extent, and gravity of the actions or omissions of Franchisee: (1) Whether the misconduct was egregious; (2) Whether substantial harm resulted; (3) Whether the violation was intentional; (4) Whether there is a history of prior violations of the same or other requirements; (5) Whether there is a history of overall compliance; and (6) Whether the violation was voluntarily disclosed, admitted or cured. E. The City Council's choice of remedy shall not excuse Franchisee from compliance with any term or condition of this Franchise or the material terms of any use and/or development authorization or required permit. Franchisee shall have a continuing duty to remedy any violation, noncompliance, or other grounds for termination or cancellation. Further, nothing herein shall be construed as limiting any remedies that the City may have, at law or in equity, for enforcement of this Franchise and any use and/or development authorization or permit granted to Franchisee. Ordinance No. 2017-02 Page 31 of 37 Section 27. Notices. A. Any regular notice or information required or permitted to be given to the parties under this Franchise may be sent to the following addresses unless otherwise specified: The City: City of East Wenatchee Attn: Mayor 271 9th St. N.E. East Wenatchee, WA 98802 Franchisee: CenturyLink Communications, LLC Core Network Right-of-Way 700 W Mineral Ave Littleton, CO 80120 B. Franchisee shall additionally provide a phone number and designated responsible officials to respond to emergencies. After being notified of an emergency, Franchisee shall cooperate with the City and make its best efforts to immediately respond to minimize damage, protect the welfare, health and safety of the public and repair facilities to restore them to proper working order. Annually, on request of the City, Franchisee will meet with City emergency response personnel to coordinate emergency management operations and, at least once a year, at the request of the City, actively participate in emergency preparations. Section 28. Non-Waiver. The failure of a party to exercise any rights or remedies under this Franchise or to insist upon compliance with any terms or conditions of this Franchise shall not be a waiver of any such rights, remedies, terms or conditions of this Franchise by such party and shall not prevent such party from demanding compliance with such terms or conditions at any future time or pursuing its rights or remedies. Section 29. Eminent Domain. This Franchise does not affect the right of eminent domain held by either party or the right of the City Council to repeal, amend or modify the Franchise in the interest of the public. In any proceeding under eminent domain, the Franchise itself shall have no value. Section 30. Limitation of Liability. Administration of this Franchise may not be construed to create the basis for any liability on the part of the City, its elected officials, officers, employees, agents, and representatives for any injury or damage; or by reason of any schedule Ordinance No. 2017-02 Page 32 of 37 or specification review, inspection, notice and order, permission, or other approval or consent by the City; for any action or inaction thereof authorized or done in connection with the implementation or enforcement of this Franchise by the City; or for the accuracy of plans submitted to the City. Section 31. Damage to Facilities. Unless directly and proximately caused by the negligence of the City, the City shall not be liable for any damage to or loss of any facilities as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling, or work of any kind on, in, under, over, across, or within a public way done by or on behalf of the City. Section 32. Competitive Neutrality. In order to maintain a level playing field among all similarly situated franchisees of the City, upon the grant or renewal of another franchise in the Rights-of-Way where material terms or conditions of this Franchise conflict with a change in the Municipal Code, or the provisions of this Franchise provide a material ly competitive disadvantage over another similarly situated provider (such that it negatively impacts the City’s ability to effectively manage the Rights-of-Way), then the City may elect to renegotiate with the Franchisee in good faith to modify the terms and provisions of this Franchise to obtain material terms and conditions that, as a whole, are competitively neutral between franchisees. Section 33. Governing Law and Venue. This Franchise and use of the applicable public ways will be governed by federal law, the laws of the State of Washington and local law. Franchisee agrees to be subject to the jurisdiction of the courts of the State of Washington. Any action relating to this Franchise must be brought in the Superior Court of Washington for Chelan County, or in the case of a federal action, the United States District Court for the Eastern District of Washington, unless an administrative agency has primary jurisdiction. Section 34. Severability. If any section, sentence, clause or phrase of this Franchise or its application to any person or entity should be held to be invalid or unconstitutional by a court or agency of competent jurisdiction, such invalidity or unconstitutionality will not affect the validity or constitutionality of any other section, sentence, clause or phrase of this Franchise or its application to any other person or entity. Ordinance No. 2017-02 Page 33 of 37 Section 35. Miscellaneous. A. Equal Employment and Nondiscrimination. Throughout the term of this Franchise, Franchisee will fully comply with all equal employment and nondiscrimination provisions and requirements of federal, state, and local laws, and in particular, FCC rules and regulations relating thereto. B. Descriptive Headings. The headings and titles of the sections and subsections of this Franchise are for reference purposes only and do not affect the meaning or interpretation of the text herein. C. Force Majeure. Franchisee shall not be required to perform any covenant or obligation in this Franchise, or be liable in damages to the City, so long as the performance or nonperformance of the covenant or obligation is delayed, caused or prevented by an act of God or force majeure. An “act of God” or “force majeure” is defined for purposes of this Franchise as strikes, lockouts, sit-downs, material or labor shortages, restrictions by any governmental authority, unusual transportation delays, riots, floods, washouts, explosions, earthquakes, fire, storms, weather (including inclement weather which prevents construction), acts of the public enemy, wars, terrorism, insurrections, and/or any other cause not reasonably within the control of Franchisee. D. Costs and Attorneys' Fees. If any action or suit arises in connection with this Franchise, the substantially prevailing party will be entitled to recover all of its costs and attorneys' fees, as well as costs and attorneys’ fees on appeal, in addition to such other relief as the court may deem proper. E. No Joint Venture. Nothing herein will be deemed to create a joint venture or principal-agent relationship between the parties, and neither party is authorized to, nor shall either party act toward third persons or the public in any manner that would indicate any such relationship with the other. F. Actions of the City or Franchisee. In performing their respective obligations under this Franchise, the City and Franchisee will act in a reasonable, expeditious, and timely manner. Whenever this Franchise sets forth a time for any act to be performed by Franchisee, such time shall be deemed to be of the essence, and any failure of Franchisee to perform within the allotted time may be considered a material breach of this Franchise, and sufficient grounds for the City to invoke any relevant remedy. Ordinance No. 2017-02 Page 34 of 37 G.Counterparts. This Franchise may be executed in one or morecounterparts, and each originally executed duplicate counterpart ofthis Franchise shall be deemed to possess the full force and effectof the original. H.Entire Agreement. This Franchise represents the entireunderstanding and agreement between the parties with respect tothe subject matter and supersedes all prior oral and writtennegotiations between the parties. I.Modification. The parties may alter, amend or modify the termsand conditions of this Franchise only upon written agreement ofboth parties to such alteration, amendment or modification. J.Non-exclusivity. This Franchise does not confer any exclusiveright, privilege, or authority to enter, occupy or use public ways fordelivery of telecommunications services or any other purposes.This Franchise is granted upon the express condition that it willnot in any manner prevent the City from granting other or furtherfranchises in, on, across, over, along, under or through any publicway. L.Rights Granted. This Franchise does not convey any right, title orinterest in public ways, but shall be deemed only as authorizationto enter, occupy, or use public ways for the limited purposes andterms stated in this Franchise. Further, this Franchise shall notbe construed as any warranty of title. M.Contractors and Subcontractors. Franchisee's contractors andsubcontractors must be licensed and bonded in accordance withthe City's ordinances, rules, and regulations. Work by contractorsand subcontractors is subject to the same restrictions, limitationsand conditions as if the work were performed by Franchisee. Section 35. Publication. The City Clerk is authorized and directed to publish a summary hereof. Section 36. Effective Date. This ordinance shall be in full force and effect five days from and after its passage, approval and publication as required by law, but if, and only if, the Franchisee has endorsed this ordinance and accepted its terms and conditions within 30 days of its passage. Ordinance No. 2017-02 Page 35 of 37 Passed by the City Council of East Wenatchee, at a regular meeting thereof on this __________ day of ______________________________, 2016. The City of East Wenatchee, Washington By _________________________________ Steven C. Lacy, Mayor Authenticated: _____________________________________ Marcia Martz, Acting City Clerk Approved as to form only: _____________________________________ Devin Poulson, City Attorney __________ __________ __________ Filed with the Acting City Clerk: Passed by the City Council: Published: Effective Date: __________ Ordinance No. 2017-02 Page 36 of 37 Acceptance: CenturyLink Communications, LLC By:_______________________________ Printed Name: ____________________ Title: ____________________________ Ordinance No. 2017-02 Page 37 of 37 Summary of City of East Wenatchee, Washington Ordinance No. 2017-02 On the _____ day of _______________________________, 2017, the City Council of the City of East Wenatchee, Washington approved Ordinance No. 2017-02, the main point of which may be summarized by its title as follows: AN ORDINANCE OF THE CITY OF EAST WENATCHEE granting a non-exclusive Franchise to CenturyLink Communications, LLC to construct, install, operate, maintain, repair, or remove fiber optic cables within the public ways of the City of East Wenatchee. The full text of this Ordinance is available at www.east-wenatchee.com. Dated this ______ day of ___________________________, 2017. ____________________________, Marcia Martz, Acting City Clerk CITY OF EAST WENATCHEE CITY COUNCIL AGENDA BILL COUNCIL AGENDA BILL # 17-01 AGENDA ITEM # 12 PRESENTER: Lori Barnett AGENDA DATE: January 10, 2017 POSITION: Director DEPARTMENT: Community Development TITLE: Ordinance 2017-03: An Ordinance of the City of East Wenatchee adopting an immediate moratorium on the acceptance of applications for use permits, wireless telecommunications facility permits, building permits, right of way use authorizations and franchises for wireless communication facilities within the City, to be effective for a period of six months, declaring an emergency and providing for severability. BACKGROUND/HISTORY: The Telecommunications Act of 1996 was adopted by Congress as a way to remove regulatory barriers and encourage competition among all types of communications companies. Limitations were placed on local governments regarding regulation of such facilities to ensure that adequate locations would be available for siting facilities. On November 12, 2002, the City adopted Ordinance No. 2002-22 adding Chapter 17.70 to the East Wenatchee Municipal Code (“EWMC”) establishing standards applicable to wireless communication facilities. Certain sections of that chapter were amended on January 12, 2010 (Ordinance No. 2010-03), mostly to provide more options for attached wireless facilities and to address amateur radio towers. Recent changes to federal laws, regulations and court cases related to wireless communication services as well as the development of new technology has increased the demand for and complexity of siting wireless facilities within the City. A thorough review of City’s telecommunications standards has not occurred since 2002. The City needs to review its codes and ordinances related to wireless communications facilities and right of way use permits in a comprehensive manner to determine if amendments are necessary to more adequately address the siting and permitting process for such facilities. The ordinance attached to this Agenda Bill will place a six-month moratorium on the acceptance of applications for use permits, wireless telecommunications facility permits, building permits, right of way use authorizations and franchises for wireless communication facilities within the City to allow time for this review. Two informational packets have been included with this Agenda Bill to provide additional background information regarding the issues. Due to the complexity of this topic, it is likely staff will request, at a later date, authorization to contract with an outside expert to assist in this project. EXHIBITS: 1. Ordinance 2017-03 2. “Zoning Practice - Practice Wireless Facility Siting”, American Planning Association, 11/2016 3. “Federal Law Issues Relating to Wireless Facilities Leases on Municipal Property” Tillman L. Lay and Jessica R. Bell, March 27, 2014 RECOMMENDED ACTION: Since this is an emergency moratorium, staff requests that Council take action to elevate the Ordinance to second reading and adopt. FINANCIAL DATA: Expenditure Required Amount Budgeted Appropriation Required $ N/A $ N/A $ N/A ACTION TAKEN: Motion Made By: Second By: Councilmember Detering Councilmember Raab Councilmember Johnson Councilmember Crawford Councilmember McCourt Councilmember Sterk Councilmember Barnhart Passed: Failed: Mayor Lacy (in case of tie) City of East Wenatchee Ordinance 2017-03 Page 1 of 5 Exhibit 1 City of East Wenatchee, Washington Ordinance No. 2017-03 An Ordinance of the City of East Wenatchee adopting an immediate moratorium on the acceptance of applications for use permits, wireless telecommunications facility permits, building permits, right of way use authorizations and franchises for wireless communication facilities within the City, to be effective for a period of six months, declaring an emergency and providing for severability. Una Ordenanza de la Ciudad de East Wenatchee adoptar una suspensión inmediata de la aceptación de las solicitudes de permisos de uso, permisos de instalaciones de telecomunicaciones inalámbricas, permisos de construcción, derecho de las autorizaciones de uso de vías y franquicias para instalaciones de comunicación inalámbrica dentro de la ciudad, para ser eficaz durante un período de seis meses, y modo de divisibilidad declarar una emergencia. 1. Alternate format. 1.1. Para leer este documento en otro formato (español, Braille, leer en voz alta, etc.), póngase en contacto con el vendedor de la ciudad al alternatformat@east-wenatchee.com, al (509) 884-9515 o al 711 (TTY). 1.2. To read this document in an alternate format (Spanish, Braille, read aloud, etc.), please contact the City Clerk at alternateformat@east-wenatchee.com, at (509) 884-9515, or at 711 (TTY). 2. Recitals. 2.1.1. The City of East Wenatchee (“City”) is a non-charter code city, duly incorporated and operating under the laws of the State of Washington. 2.2. The Telecommunications Act of 1996 (Public Law No. 104-104, 110 Stat. 56, 31-136 (the "Act"), was designed to remove regulatory barriers and encourage competition among all types of communications companies. 2.3. The Act ratified the authority of local government to regulate the construction and modification of wireless communications service facilities, but also limits local governments' authority in certain respects. City of East Wenatchee Ordinance 2017-03 Page 2 of 5 2.4. The City, on November 12, 2002 through the adoption of Ordinance No. 2002-22, added Chapter 17.70 of the East Wenatchee Municipal Code (“EWMC”) establishing zoning standards applicable to wireless communication facilities. 2.5. The City, on January 12, 2010, through the adoption of Ordinance No. 2010- 03, amended certain sections of Chapter 17.70. 2.6. In 2012, Congress passed the “Middle Class Tax Relief and Job Creation Act of 2012” (the “Spectrum Act”) (Public Law No. 112-96; codified at 47 U.S.C. § 1455(a)), which in part, amended the Act. 2.7. Recent changes to federal laws, regulations and court cases related to wireless communication services as well as technological developments and changes in consumer demand and usage have reshaped the wireless industry and increased the demand for and complexity of siting wireless facilities within the City. 2.8. A comprehensive review of City’s telecommunications standards has not occurred since 2002. The City Council has determined that the EWMC currently lacks adequate provisions to regulate wireless communication facilities within the City in compliance with current federal laws and technologies. 2.9. The City needs to review its codes and ordinances related to wireless communications facilities and right of way use permits in a comprehensive manner to determine if amendments are necessary to more adequately address the siting and permitting process for such facilities. 2.10. The City Council finds that the vesting of permits applications for construction of wireless communication facilities under the existing EWMC would be detrimental to public health, safety and welfare. 2.11. Washington State’s vested rights doctrine, which allows certain land use applications to vest to land use regulations which are in effect on the date of complete application, could allow application for wireless communications facilities to vest under inadequate regulations while the City studies the changes that may be needed in those regulations, thereby undermining effective City planning for those facilities and constituting an emergency. 2.12. In accordance with WAC 197-11-880, the adoption of this ordinance is exempt from the requirements of a threshold determination under the State Environmental Policy Act. 2.13. The City Council finds that it is in the best interests of the City and its City of East Wenatchee Ordinance 2017-03 Page 3 of 5 citizens to impose a moratorium for a period of 6 months prohibiting the acceptance of applications for use permits, wireless telecommunications facility permits, building permits, right of way use authorizations and franchises for wireless communication facilities within the City to provide more time to investigate this issue further to evaluate the best alternatives for the community. 3. Authority. 3.1. RCW 35A.11.020 and RCW 35A.12.190 authorize the City Council to adopt ordinances of all kinds to regulate its municipal affairs and appropriate to the good government of the City. 3.2. RCW 35A.63.220 and RCW 36.70A.390, authorize the City Council to establish a moratorium. 4. Purpose. The purpose of the moratorium is to allow the City adequate time to comprehensively review and possibly amend its regulations relating to the siting of wireless communications facilities in a manner that addresses the Telecommunications Act of 1996, the Spectrum Act, other recently adopted FCC rules, changes in technology, local concerns and efforts to provide the public with access to wireless services for its safety, convenience and productivity. THE CITY COUNCIL OF THE CITY OF EAST WENATCHEE DO ORDAIN AS FOLLOWS: 5. Moratorium. The City Council hereby enacts a 6-month moratorium prohibiting the acceptance of applications for use permits, wireless telecommunications facility permits, building permits, right of way use authorizations and franchises for wireless communication facilities within the City of East Wenatchee. 6. Public hearing. A duly advertised public hearing shall be conducted within 60 days of the adoption of this ordinance. 7. Findings of Fact. The City Council adopts as its preliminary findings of fact the recitals set forth above. The Council may adopt additional findings in the event that additional public hearings are held or evidence is presented to the City Council. 8. Duration/Renewal. The moratorium imposed by the Ordinance shall be effect for a period of six months from the date this ordinance is passed and shall automatically expire at the conclusion for that six-month period unless extended City of East Wenatchee Ordinance 2017-03 Page 4 of 5 as provided for in RCW 35A.63.220 and RCW 36.70A.390, or unless terminated sooner by the City Council. 9. Severability. If a court of competent jurisdiction declares any provision in this Ordinance to be contrary to law, such declaration shall not affect the validity of the other provisions of this Ordinance. 10. Publication. The City Council directs the City Clerk to publish a summary of this Ordinance. The summary shall consist of the title of this Ordinance. The City Council directs the City Clerk to publish a copy of this Ordinance on the City’s website 11. Effective Date. This Ordinance, as a public emergency ordinance necessary for the protection of the public health, public safety, public property, or public peace, shall take effect and be in full force immediately upon its adoption. The underlying facts necessary to support this emergency declaration are included in the Recitals clauses above. To remain in effect, however, the City Council must hold a public hearing regarding this Ordinance within 60 days. Passed by the City Council of East Wenatchee, at a regular meeting thereof on this __________ day of _____________________________, 2017. The City of East Wenatchee, Washington By _________________________________ Steven C. Lacy, Mayor Authenticated: _____________________________________ Marcia Martz, Acting City Clerk Approved as to form only: _____________________________________ Devin Poulson, City Attorney Filed with the City Clerk: __________ Passed by the City Council: __________ Published: __________ Effective Date: __________ City of East Wenatchee Ordinance 2017-03 Page 5 of 5 Summary of Ordinance No. 2017-03 Of the City of East Wenatchee, Washington . On the __________ day of ____________________________________, 2017, the City Council of the City of East Wenatchee, Washington approved Ordinance No. 2017- 03, the main point of which may be summarized by its title as follows: An Ordinance of the City of East Wenatchee adopting an immediate moratorium on the acceptance of applications for use permits, wireless telecommunications facility permits, building permits, right of way use authorizations and franchises for wireless communication facilities within the City, to be effective for a period of six months, declaring an emergency and providing for severability. The full text of this Ordinance is available at www.east-wenatchee.com. Dated this __________ day of ________________________________, 2017. _____________________________ Marcia Martz, Acting City Clerk This page intentionally left blank. ZONING PRACTICE NOVEMBER 2016 ISSUE NUMBER 11 PRACTICE WIRELESS FACILITY SITING 11 AMERICAN PLANNING ASSOCIATION Exhibit 2 ZONINGPRACTICE 11.16 AMERICAN PLANNING ASSOCIATION |page 2 Regulating Wireless Facilities in Public Rights-of-Way By L.S. (Rusty) Monroe and Jackie Hicks Communities nationwide are being faced with a new wireless facility siting issue: applicants claiming the need and right to locate new tall communications support structures, and related equipment, in public rights-of-way. When first discussing the issue of new wire- less facilities in the public right-of-way (PROW), all too frequently we hear comments such as these from local officials and staff: • “We were told that most of this issue was preempted and that we had little to say about it anymore.” • “With all the changes in the law and tech- nology, we don’t even know what choices of policies we have.” • “We just took the company’s word with respect to our rights.” • “How are we expected to deal with the number of applications the Federal Com- munications Commission (FCC) and other experts say to expect?” It’s disheartening to hear such com- ments and to hear the frustration in their voices. This article is intended to end that frustration and enable local officials to better understand the issue in context, appreciate the significant regulatory rights communities still have in most states, and make informed decisions related to the issue of siting wire- less facilities in the PROW. Understanding the Matter in Context Wireless carriers face a demand by the con- suming public for ever-increasing capacity, speed, and reliability. This multifaceted demand is rooted in the seemingly endless number of new wireless services being of- fered, coupled with the new myriad uses of the Internet—many of which seemed like mere pipe dreams less than a decade ago. Because of this, carriers are reducing the traffic on each original high-power macrocell site by building a number of smaller sites, each serving only a portion of the original area and thus reducing the amount of traffic on any given site. This shift to smaller sites, coupled with the shorter transmission and receive distances involved, is intended to result in the increased capacity, speed, and reliability the public demands. As a consequence, communities will be faced with the challenge of finding ways to accom- modate the number of new facilities needed to meet the public’s demand without upset- ting a large segment of the same public by allowing structures that change neighborhood character, negatively impact property values, or present a threat to public safety. It’s a clas- sic NIMBY (not-in-my-backyard) situation. What’s Coming? The wireless industry has (finally) acknowl- edged that the number of new sites it needs over the next several years is a magnitude greater than currently exists. Currently there are slightly more than 300,000 wireless facili- ties nationally. However, going forward (make sure you’re sitting down) each carrier is go- ing to need—at a minimum—a site to serve no more than 50 to 75 of its customers. (You can do the arithmetic for your community.) In some communities it may be twice as many sites as that, depending upon the number of living units and the demand in a particular area of the community. Of course, in densely populated areas containing large apartment or condominium complexes, the density of sites will be significantly greater, as many complexes will need multiple sites to serve that complex. ©1997–2016 CellTowerSites.com. Used with permission.This small cell monopole facility is located near the University of California, Los Angeles; the base station equipment is located underground. ZONINGPRACTICE 11.16 AMERICAN PLANNING ASSOCIATION |page 3 The need for the number of new sites is because of the (exponentially) ever-increasing demand for bandwidth, the very limited range of the newly available higher frequencies, the emergence of the Internet of Things (IoT), and the desire to use the most economical means of “backhauling” the signal to the local or net- work switch. Experts estimate the demand for bandwidth may be as much as 1,000 times the bandwidth used three years ago. Meanwhile, the higher the frequency of the transmission, the less robust the signal, meaning higher fre- quency signals have a maximum usable range that is significantly less than has historically been the case. Most experts agree that the amount of traffic on the IoT— the demand cre- ated by Internet-enabled appliances, vehicles, buildings, and other objects—is expected to exceed that of the entire Internet today. Com- bined, this situation is creating a sea change, both for the industry and for those charged with regulating wireless facilities. The area served by a typical macrocell site today covers an area of about one mile radius or two miles in diameter. Going for- ward, this same service area could require a half-dozen or more sites (for each carrier), with each site covering a few hundred yards in each direction. In most instances this will be done using distributed antenna system (DAS) or “small cell” technologies. DAS is a system that accommodates multiple carriers using a single smaller and lower powered antenna and a single central base station, with all an- tenna sites (nodes) connected via optical fiber cables, thus creating a (local or regional) net- work. Small cell is another newer technology employing smaller, lower-powered antennas serving a single carrier, and the sites are not connected via fiber. In most communities, these new sites will need to be located in all zoning designa- tions, and frequently the request will be to locate in the PROW, often attaching to existing utility poles, light standards, signs, and simi- lar structures. A New Type of Player In virtually every state across the nation there is a new type of player who wants to place support structures (monopoles) ranging in height from 60 to 180 feet in the PROW. The primary purpose of these installations is to provide backhaul service to carriers. “Back- haul” refers to the links between cell sites, controllers, and switches. Generally, the traffic arriving at a cell site is backhauled to a central location, which is the local switch or the op- erator’s mobile switch. This new player typi- cally wants to use microwave transmissions to provide this function, but microwave is not the only option. In many instances it’s simply the least costly and can often allow the wireless signals of multiple carriers to be aggregated. The companies who want to install these taller support structures may claim to have all the rights of a regulated utility. In fact, many communities have received a letter from one of these companies that makes certain asser- tions regarding who they are, what they do, and what rights they have, as well as implicitly what rights communities do not have with re- spect to the siting of their facilities. Based on the letters and proposals to communities we have seen (coast to coast), and those we have dealt with in the context of applications, the visual and physical impact of such facilities can be significant. However, in most cases, most of the negative effects can be prevented and still allow for a win-win situation. It’s important to understand that these entities are not wireless carriers, and without a specifically identified carrier as a joint ap- plicant, they have no standing (i.e., benefits) under federal law or FCC rules. They’re tower/ wireless support structure companies. The problem is that they often claim that they are exempt from local zoning, land-use, or simi- lar regulations, simply because they have a “Certificate of Necessity and Convenience” (or David MorleyDAS nodes are mounted on many existing light standards in and near Chicago’s Loop. ZONINGPRACTICE 11.16 AMERICAN PLANNING ASSOCIATION |page 4 of the authority itself. The authority exists, but as with all things it must be implemented and administered in accordance with the law. Backhauling Options While the new player’s business model in- volves erecting tall monopoles in the PROW to enable carriers to use microwave to backhaul the signal to the switch, microwaving is not a technical necessity, but rather a means of backhauling the signal. The alternative is fiber. Consequently, a community that prohib- its new, separate wireless communications support structures in the PROW taller than the existing poles or light standards should not run afoul of the federal prohibition against communities acting in a manner that has the effect of “prohibiting” the provision of service. A New Type of Support Structure There has been a new development in support structures specifically for use in the PROW. These new structures allow accommodation of multiple carriers, with all antennas housed internally, and they do not exceed the height of the adjacent utility or light poles. They can function as a utility pole for incumbent utilities and others, such as a fiber transport company, and can also be designed as a light pole, or both. However, before local governments can effectively promote these structures as alternatives to tall monopoles, the owner(s) of the existing utility or light poles must be on board with the concept, and there must be someone on staff, or available to staff, who truly knows the applicable laws that allow local governments to achieve their goals. That person also needs to know and understand the new technology and its true siting needs, as opposed to the merely as- serted need. Then the two areas of knowledge can be “married” to create a win-win regula- tory situation. SECTION 6409(A) AND FCC RULEMAKING 14-153 In addition to the 1996 Telecommunications Act, the federal legislation and FCC rules that are most directly applicable to the deployment of new facilities and the modification of exist- ing facilities today are Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, the FCC Declaratory Ruling 09-99, and the FCC Report and Order 14-153 (clarifying 6409(a) and Declaratory Ruling 09-99). Under Section 6409(a), state and local governments must approve “eligible facility” requests to modify existing towers or base stations. There have been numerous articles that discuss in detail the specifics of what constitutes an eligible facility, so that is not addressed here. Notably, Section 6409(a) applies only to state and local governments acting in their role as land-use regulators, and does not apply to them acting in their propri- etary capacities (i.e., as the owners of public property, including the PROW vis-à-vis fran- chise or encroachment agreements). These remain contractual in nature and are not en- cumbered by the new regulations. What’s Preempted Under 6409(a) and 14-153? The FCC Report and Order 14-153 expressly protect and reconfirm local authority to en- force and condition approval on compliance with generally applicable building, structural, electrical, and safety codes and with other ©1997–2016 CellTowerSites.com. Used with permission.the functional equivalent) from the applicable state’s utility regulatory agency. This assertion is not factually correct and in most states is an example of putting a self-serving “spin” on the law. These companies are not utilities in the traditional sense. They do not provide a retail service to the consuming public as do utilities, and their operations, rates, rate-of-return on invested capital, and customer service stan- dards are not regulated by the state’s utility regulatory agency, as is the case with utilities. We have spoken with several state utility regu- latory agencies, and not one could explain how or in what manner these new players were regulated by the agency. They are simply the holder of a certificate that effectively gives them the right to locate in the PROW (if per- mitted under local law and regulation), and in a few states (e.g., New York) enables them to be subject to somewhat less stringent zoning variance or waiver standards. However, they are still subject to local regulations, including but not limited to zoning, construction, land- use, and safety regulations (FCC 14-153§(A) (249,259)&(B)(3)). In no state that we know of does the certificate they hold exempt them from properly adopted local regulations deal- ing with the location, size/height, aesthetics/ appearance, physical design, construction, safety, and maintenance of the facility. Contrary to what many local officials and staff have been [mis]led to believe, under current federal law and FCC rules, local gov- ernments still retain most of their regulatory authority over these issues, including com- pliance with operational safety regulations. These include compliance with FCC limits on human exposure to radio frequency fields (as explained in the Office of Engineering and Technology’s Bulletin 65) and TIA 222, the Telecommunications Industry Association’s tower safety standards addressing the design and the ongoing physical state or condition of a tower and the equipment attached to it. Compliance with TIA 222, or in a few states’ the functional equivalent, is the elephant in the room that few applicants are address- ing. In handling hundreds of applications for modifications or colocations for communities in just the last 24 months, we’ve found it to be the exception rather than the rule when a wireless facility passes a TIA 222 safety inspection (done by a third party). It’s largely a matter of how that authority is implemented and administered, rather than the existence This facility uses microwave antennas to provide backhaul to the mobile telephone switching office. ZONINGPRACTICE 11.16 AMERICAN PLANNING ASSOCIATION |page 5 laws codifying objective standards reasonably related to health and safety, including local zoning and wireless siting, design, and con- struction regulations. However, 6409(a) and 14-153 do preempt the following: • The definitions of what constitute an “eli- gible facility” and a “substantial modifica- tion” of a facility, both inside the PROW and outside the PROW. • The maximum time allowed for determina- tion of completeness/incompleteness and action on an application (i.e., the “Shot Clock” requirement). The allowed time periods are 60 days for an eligible facility and 150 days for a substantial modifica- tion or for a new support structure/tower (unless a longer period of time is mutually agreeable). • Certain National Environmental Policy Act requirements, under certain conditions, for an eligible facility application. • Proof of technical need for eligible facili- ties. Conditions for Eligible Facilities Permits Given that a community must permit an eligi- ble facility application, and may not deny it, a key issue is that of being able to attach condi- tions. We are not aware of any FCC rule or case law that prohibits attaching conditions to a wireless facility permit, including eligible facil- ity applications. However, for an eligible facil- ity application on an existing structure, the law does prohibit attaching any condition(s) in excess of or more stringent than are needed to assure compliance with the permit issued for the original facility. HANDLING TODAY’S SITUATION The current situation, as it has developed, is a game changer for planners and local officials. Regrettably, in our experience many, if not most, municipalities are unprepared for what will be the large number of applications, often submitted simultaneously, for small cell sites, DAS nodes, and microwave backhaul instal- lations, especially in public rights-of-way. We have seen communities as small as 1,500 residential units have as many as a half-dozen applications filed simultaneously by a single carrier. In other larger communities as many as 20 applications, or notices of intent for as many, if not more applications, have been filed simultaneously by a single applicant. Both of these situations place an unreason- able burden on staff and, because of the Shot Clock requirement, often force them to place these applications ahead of other types of ap- plications awaiting action. Staff is often forced to “rubber-stamp” the applications (as sub- mitted), rather than having the time to review the applications in the detail needed, and intended, by both Congress and the FCC. Because the requests to place new (tall) wireless facilities in the PROW is new terri- tory for many municipalities, we recommend that they immediately start thinking carefully about the end result(s) they want to achieve. This includes what they want to prevent, what they want to encourage, and what they want to assure happens, as well as the policies needed to achieve those results. As examples, does the community want to regulate any of the following vis-à-vis the PROW? • The maximum allowable height of facilities in the PROW • The minimum separation distances be- tween wireless facilities • The location vis-à-vis the PROW in front of residences • Appearance/aesthetics (e.g., camouflag- ing to minimize the impact on the nature and character of the area) • Setback distances • Placement and appearance of ancillary equipment (e.g., equipment enclosures) • The amount of rent charged for the private, commercial use of the PROW Since these facilities will likely be need- ed throughout most communities, and are often attempted to be placed directly in front of residences and in sensitive historic pres- ervation and view shed areas, planners and local officials should be very careful in making the necessary new policy decisions regarding placement, size, and appearance vis-à-vis the PROW. In doing so, it is critical to keep in mind the law of unintended or unforeseen con- sequences. Knowledge of the industry, and especially what it considers its confidential and proprietary plans and goals, is the key to preventing this! To attempt to do this without an intimate knowledge of the industry can be dangerous and can have both short- and long- term undesired consequences. RECOMMENDATIONS The following recommendations for consider- ation by planners and local officials are based upon what have been unchallenged policies and practices to date. Priority of Types of Permits Make sure the community’s wireless facility regulations expressly state that even though a new structure may be proposed to go in the PROW, and notwithstanding anything else to the contrary, such a new structure, regardless of its location, height, or appearance, should be defined as first, foremost, and always a (wireless) communications tower or facility that is subject to the local wireless facility These wireless communications equipment cabinets are located in the public right-of-way between the curb and the sidewalk.©1997–2016 CellTowerSites.com. Used with permission. ZONINGPRACTICE 11.16 AMERICAN PLANNING ASSOCIATION |page 6 regulations. Any other permitting regulations should be secondary to this and should re- quire a zoning or land-use permit under the local wireless facility regulations before ob- taining any other permit. Maximum Permitted Height We recommend that communities establish a maximum permitted height for wireless facili- ties in the PROW. Communities may want to consider different height limits for different zoning districts, or different geographic parts of the community regardless of the zoning district. For taller facilities proposed in less re- strictively zoned districts (such as industrial or commercial districts), but near more re- strictively zoned districts (such as residential districts), there is an easy way to mitigate the impact and possibly prevent a good deal of political dissatisfaction from the public. A community may want to require that, within a given distance of the boundary of an adjacent zoning district that is more restrictive (e.g., within 1,000 feet of an R-1 zoning dis- trict), the height limit is the same as the more restrictive district. Otherwise, residents living on or near the district border will likely have to live with the effects of a facility only a short distance from their home that would not oth- erwise be allowed in the residential district. Communities can also stipulate that the maximum permitted height in the PROW (or within reasonable proximity to the PROW) may be no taller than the existing, immediately ad- jacent utility poles or light standards. This is not an unreasonable limit, since the vast ma- jority of the new wireless facilities going in the PROW are for capacity and are not primarily to increase coverage. They are intended to serve only a portion of the area currently served, and thus increased coverage is not normally an issue, other than to improve service to residents in some small areas on the border of the current service area. The goal is to have no service borders. Since they’re generally going to be serv- ing only a portion of the area currently served, these sites seldom need to be taller than the existing adjacent utility poles. Providers may need to construct two shorter facilities, rather than a single taller facility or one shorter facil- ity in combination with a colocation on an ex- isting structure, but most communities would prefer either of these situations to a single tall facility (that’s really not needed technically). Federal law does not require a commu- nity to grant a permit for a single facility if two or more smaller/shorter facilities can achieve substantially the same result, or better; nor does it require a community to take into ac- count the capital cost to a carrier to achieve what it desires while complying with land- use and zoning regulations. Those costs are capitalized under an accelerated depreciation schedule. Minimizing Visual Impact in the PROW To minimize the visual impact and control the appearance of a specific facility in the PROW, communities might want to consider requir- ing, as the number one siting priority, that any proposed (new) array of antennas be mounted on a structure that enables the antennas to be placed inside a new pole, unless the applicant can prove (by clear and convincing techni- cal evidence) that doing so would serve to “prohibit” the provision of service to at least a substantial portion of the area intended to be served by the new facility (47 U.S.C. §332(c) (7,B,II). This is a very high bar that Congress intentionally set, and in most instances involv- ing the PROW is extremely difficult to prove technically, if one knows and understands the technical intricacies and nuances involved. Another slightly different approach would be to prohibit any new antenna array from being visibly identifiable as such to the average per- son—different wording, but the same effect. Rather than just accepting another ugly new array of antennas attached to an existing utility pole or light standard, and notwith- standing 6409(a), some communities require that, instead of just colocating on an existing utility or light pole with the antennas mounted on the outside around the pole, an applicant must arrange to have the pole replaced with one that houses the antenna(s) inside. They may still locate in the PROW, but they must do it in accordance with this “stealthing” or “camouflaging” policy in the community’s wireless facility siting regulations. Revenue and Rent For reasons of generating revenue, a com- munity may prefer new wireless facilities to be located in the PROW as the number one siting priority. The rent for the commercial use of the PROW can be deemed an encroachment fee, a franchise fee, or any functional equivalent. In most states this can be accomplished easily in the local regulations. This rent can be sig- nificantly more than many communities real- ize they can demand, and regrettably, all too ©1997–2016 CellTowerSites.com. Used with permission.Two different wireless providers have placed antenna arrays on this utility pole in Santa Monica, California. ZONINGPRACTICE 11.16 AMERICAN PLANNING ASSOCIATION |page 7 Cover: David Morley Vol. 33, No. 11 Zoning Practice is a monthly publication of the American Planning Association. Subscriptions are available for $95 (U.S.) and $120 (foreign). David Rouse, , Managing Director of Research and Advisory Services. Zoning Practice (ISSN 1548–0135) is produced at APA. Jim Schwab,, and David Morley, , Editors; Julie Von Bergen, Senior Editor. Missing and damaged print issues: Contact Customer Service, American Planning Association, 205 N. Michigan Ave., Suite 1200, Chicago, IL 60601 (312-431-9100 or customerservice@planning.org) within 90 days of the publication date. Include the name of the publication, year, volume and issue number or month, and your name, mailing address, and membership number if applicable. Copyright ©2016 by the American Planning Association, 205 N. Michigan Ave., Suite 1200, Chicago, IL 60601–5927. The American Planning Association also has offices at 1030 15th St., NW, Suite 750 West, Washington, DC 20005–1503; planning.org. All rights reserved. No part of this publication may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the American Planning Association. Printed on recycled paper, including 50-70% recycled fiber and 10% postconsumer waste. ABOUT THE AUTHORS L.S. (Rusty) Monroe is an owner of Monroe Telecom Associates, LLC, and a co-owner of The Center for Municipal Solutions (CMS), both of which for 20 years have assisted local governments in dealing with the regulation of towers and wireless facilities. Collectively, they currently represent approximately 900 communities in 38 states. Monroe has con- ducted workshops and seminars for more than 30 local and national government or- ganizations on the regulation of towers and wireless facilities, including multiple times for a number of them. Questions may be sent to lmonroe8@nc.rr.com. Jackie Hicks is the owner of Carolina Telecom- munications Services and has been a tower and wireless facilities consultant exclusively to local governments for more than a decade. She has handled more than 1,000 applica- tions without a single challenge to her recom- mendations to clients. Questions may be sent to hicksja@carolinatelecomservices.com. many undervalue this asset or are convinced that charging less will gain them something or In more than four decades assisting hundreds of communities, we do not recall a single instance when a community gained negative by charging a low rent. Rent for the private commercial use of the PROW should be a set amount, which could be dependent upon location. On a related note, pay close attention to the entire proposed lease agree- ment. A number of issues may be buried there to avoid scrutiny, and seldom is the language in the lessor’s favor. One example of this is the industry pref- erence to slip in what seems a “reasonable” requirement for a periodic rent escalator to be a percent increase (e.g., 15 percent over the year approach is accepted for the common 20- to 30-year lease, the community (unknow- ingly) may give up more than half the revenue it would otherwise have realized from the rent. Another example is the trap of tying the initial rent to the “prevailing” rent paid in the area. That sounds reasonable, but most leas- es, for both towers and antennas attached to less rent than the landlord could have ob- tained, commonly as much as two-thirds less. In such instances, if all the rents in the area are based on the prevailing amount at the that base amount never changes, not unlike with rent-controlled apartments. When the State Prohibits Requiring the Use of the Community’s Property Some states, such as North Carolina, prohibit communities from requiring outright that their property be the number one location priority. However, there are almost always multiple owners of the PROW in a community (e.g., the municipality, the county, or the state). Simply requiring that the PROW in general (not just the ones owned by the community) are deemed to be the number one priority should steer clear of state prohibitions against requir- ing the use of “the community’s” property. It then becomes a general land-use issue and is not tied to the ownership of the land. For a facility proposed to be located out- side the PROW, but within a given distance of the PROW, a community could require “clear and convincing” (technical) evidence of the inability to locate in the PROW, perhaps even using a couple of sites instead of just one, and still accommodate the need or goal of the carrier and likely provide even better service. Thus, there would be no “prohibition” of the provision of service vis-à-vis federal law. Con- versely, if the community does not want new facilities to be located in the PROW, the PROW can be placed further down in the list of siting priorities, perhaps even last. CONCLUSION The rise in applications for wireless facilities in public rights-of-way is a classic NIMBY situ- ation, but in this case it’s one that actually win-win situations without giving up rights or regulatory control. Permitting can be done so that carriers can get what they need technical- ly, but with a minimum of public controversy and with minimal visual intrusion and impact on property values. the type of regulations they really need and should have, it will discourage and slow down deployment by the industry. But history has shown this to not to be factually accurate. One need only compare the situation in communi- an in-depth knowledge of the industry and the law to the situation in communities with mini- mal or even no regulation. Arguably, some of the best wireless service in the nation is found in communities with strict regulations. never make assumptions, unless they know for a fact that their assumptions are correct. We recommend that communities consult an expert (who has no ties with the industry) and discuss with that person their objectives and the several options they have to achieve their policy goals. Remember, the industry largely sees part of its job as being to avoid regulations and is constantly looking for ways around—or inherent legal problems with—regulations, whether the regulations are federal, state, or local. That doesn’t necessarily make them bad actors, though. They’re simply not charged with protecting the public interest as are local expert who knows how to assure that both the public and the public interest are protected. IS YOUR COMMUNITY READY FOR WIRELESS FACILITIES IN PUBLIC RIGHTS-OF-WAY?ZONING PRACTICEAMERICAN PLANNING ASSOCIATION205 N. Michigan Ave.Suite 1200Chicago, IL 60601–59211NON-PROFIT ORGU.S. POSTAGEPAIDAPPLETON, WIPERMIT NO. 39 Federal Law Issues Relating to Wireless Facilities Leases on Municipal Property Tillman L. Lay Jessica R. Bell Spiegel & McDiarmid LLP 1333 New Hampshire Ave.,NW Washington, DC 20036 (202) 879-4000 Local Government Attorneys of Virginia Spring 2014 Conference OMNI Charlottesville Hotel, Charlottesville, VA March 27, 2014 Exhibit 3 Spiegel & McDiarmid LLP 1 About the Authors Tillman L. Lay is a partner in the Washington, D.C., law firm of Spiegel &McDiarmid LLP. He specializes in representing local governments and other clients on telecommunications, cable television, franchising, public safety, municipal broadband, rights-of-way, tax, property law, land use, constitutional law, antitrust and other federal law matters before the courts, the Federal Communications Commission (FCC) and Congress. His clients include scores of local governments across the nation. He has represented local government clients before the FCC, the courts and Congress on wireless siting issues. He also testified before a House Subcommittee on behalf of National Association of Counties, the U.S. Conference of Mayors, the National League of Cities and the Government Finance Officers Association against legislation that would impose a moratorium on state and local cell phone taxes. He received his undergraduate degree with highest honors from the University of Tennessee, and he is a magna cum laude graduate of the University of Michigan Law School. After law school, he clerked for the Honorable John C. Godbold, Chief Judge of the United States Court of Appeals for the Fifth Circuit. Jessica R.Bell is an associate at Spiegel & McDiarmid LLP. Since joining the firm, she has worked on a range of telecommunications, transportation, and energy law matters. She graduated cum laude from Wellesley College and received her J.D. from the Columbia University School of Law. After law school, she clerked for the Honorable Andrew M. Mead of the Maine Supreme Judicial Court and completed a two-year Honors Attorney Fellowship in the Office of General Counsel of the United States Environmental Protection Agency. Spiegel & McDiarmid LLP 2 Ta ble of Contents I.Introduction .............................................................................................................................2 II.Section 332(c)(7).....................................................................................................................3 A)Statutory Background .......................................................................................................3 B)FCC Implementation of Section 332(c)(7).......................................................................5 C)Application to Municipal Property ...................................................................................6 1.Distinguishing Between Regulatory and Proprietary Action ........................................7 2.Municipal Property Siting “Preferences”......................................................................9 III.Section 6409(a)...................................................................................................................12 A)The Spectrum Act ...........................................................................................................12 B)Rulemaking to Implement Section 6409(a)....................................................................13 IV.Conclusion ..........................................................................................................................16 V.Appendix ...............................................................................................................................17 A)Text of Section 332(c)(7)................................................................................................17 B)Text of Section 6409(a)..................................................................................................18 I.INTRODUCTION Demand for wireless services and the development and deployment of new technologies are increasing. The siting of wireless facilities is governed by federal, state, and local laws. In 1996 Congress enacted the Telecommunications Act of 1996 (“TCA”) that preserved most state and local zoning authority in the siting of personal wireless service facilities while preempting certain exercises of that authority in order to balance local concerns with a growing need for wireless deployment. The Federal Communications Commission (“FCC” or “the Commission”) is charged with interpreting and implementing the TCA. Notably, though, “the TCA does not federalize telecommunications law[,]”1 and state and local governments have a significant role to play. As part of the Middle Class Tax Relief and Job Creation Act of 2012, Congress enacted another provision, Section 6409(a), to advance wireless siting. The scope of the preemption of 1 Sw. Bell Mobile Sys., Inc. v. Todd, 244 F.3d 51, 57 (1st Cir. 2001). Spiegel & McDiarmid LLP 3 state and local authority by the TCA and Section 6409(a), as well as the overall implementation of Section 6409(a), is the subject of a current Commission rulemaking. This paper discusses how the two statutory provisions affect the siting of wireless facilities on municipal property.2 II.SECTION 332(c)(7) A)Statutory Background Section 704(a) of the TCA added Section 332(c)(7) to the Communications Act of 1934, as amended.3 Section 332(c)(7) provides for limited preemption of state and local zoning authority in the siting of personal wireless service facilities. As part of an overall goal of promoting competition and encouraging rapid deployment of new wireless telecommunications technologies, Section 332(c)(7) aimed to reduce what were perceived to be local zoning impediments to the installation of facilities for wireless communications.4 The provision “prevents Commission preemption of local and State land use decisions and preserves the authority of State and local governments over zoning and land use matters except in the limited circumstances set forth in the conference agreement.”5 The provision “is a deliberate 2 An additional issue may be raised by the interaction between 47 U.S.C. §§ 253(a) and 332(c)(7). See, e.g., Sprint Telephony PCS, L.P. v. Cnty. of San Diego, 543 F.3d 571, 579 (9th Cir. 2008)(en banc) (discussing meaning of prohibition under two statutory provisions). Section 253(a) provides: “No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.” 47 U.S.C. § 253(a).Section 332(c)(7)(A), however, preserves general local zoning authority, stating “[e]xcept as provided in this paragraph, nothing in this chapter shall limit or affect the authority” of local governments over the “placement, construction, and modification of personal wireless service facilities.” 47 U.S.C. § 332(c)(7)(A). Arguably, this provision precludes the application of Section 253(a) to an exercise of local zoning authority covered by Section 332(c)(7). The Section 253 issue will not be addressed in further detail in this paper, but it is an issue that municipal attorneys should keep in mind in dealing with wireless siting issues. 3 Telecommunications Act of 1996, Pub. L. No. 104-104, § 704(a), 110 Stat. 56 (1996) (codified at 47 U.S.C. §332(c)(7)). Section 332(c)(7) was the first provision of the federal Communications Act to explicitly address local land use and zoning authority over wireless facilities. 4 See Rancho Palos Verdes v. Abrams, 544 U.S. 113, 115 (2005). 5 H.R. Conf. Rep. No. 104-458, at 207-08 (1996), U.S. Code Cong. & Admin. News 1996, pp. 207-208 (“Conference Report”). Spiegel & McDiarmid LLP 4 compromise between two competing aims—to facilitate nationally the growth of wireless telephone service and to maintain substantial local control over siting of towers.”6 The provisions of Section 332(c)(7)(B)set limits on the general principle of the preservation of local authority established in Section 332(c)(7)(A).7 The statute disallows unreasonable discrimination “among providers of functionally equivalent services”8 and local government actions that “prohibit or have the effect of prohibiting the provision of personal wireless services.”9 State or local governments may not regulate wireless facilities on the basis of the environmental effects of radio frequency emissions to the extent that a facility complies with FCC regulations on such emissions.10 State or local governments are also required to act on “any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time.”11 The statute requires denials to be in writing and supported by substantial evidence12 and provides for expedited judicial review.13 6 Town of Amherst, N.H. v. Omnipoint Commc’ns Enters., Inc., 173 F.3d 9, 13 &n.3 (1st Cir. 1999) (discussing initial House version of provision that would have charged the FCC with developing a uniform national policy for the deployment of wireless communication towers that was rejected in favor of a bill that “rejected such a blanket preemption of local land use authority”). 7 See Omnipoint Commc’ns, Inc. v. City of Huntington Beach, 738 F.3d 192, 196 (9th Cir. 2013) (concluding that the preemptive scope of Section 332(c)(7) is that “(1) it preempts local land use authorities’ regulations if they violate the requirements of § 332(c)(7)(B)(i) and (iv); and (2) it preempts local land use authorities’ adjudicative decisions if the procedures for making such decisions do not meet the minimum requirements of § 332(c)(7)(B)(ii) and (iii).”). 8 47 U.S.C. § 332(c)(7)(B)(i)(I). See AT&T Wireless PCS, Inc. v. City Council of Va. Beach, 155 F.3d 423, 426-28 (4th Cir. 1998) (finding no unreasonable discrimination). 9 47 U.S.C. § 332(c)(7)(B)(i)(II). See New Cingular Wireless PCS, LLC v. Fairfax Cnty. Bd. Of Supervisors, 674 F.3d 270, 275-77 (4th Cir. 2012) (discussing what constitutes a prohibition under Section 332(c)(7)(B)(i)(II)); APT Pittsburgh Ltd. v. Penn Twp. Butler Cnty., 196 F.3d 469,480 (3d Cir. 1999). 10 47 U.S.C. § 332(c)(7)(B)(iv). But see Sprint Spectrum L.P. v. Mills, 283 F.3d 404, 420-21 (2d Cir. 2002) (upholding governmental entity’s lease provision addressing radiofrequency emissions). 11 47 U.S.C. § 332(c)(7)(B)(ii) (emphasis added). See Section II(B), infra. 12 47 U.S.C. § 332(c)(7)(B)(iii). See Conference Report at p. 208 (“The phrase ‘substantial evidence contained in a written record’ is the traditional standard used for judicial review of agency actions.”). See also MetroPCS, Inc. v. City and Cnty. of San Francisco, 400 F.3d 715, 721-23 (9th Cir. 2005) (discussing how different Courts of Appeal have interpreted the “in writing” requirement); Sw. Bell Mobile Sys., Inc., 24 F.3d at 58-59 (describing substantial evidence standard). 13 47 U.S.C. § 332(c)(7)(B)(v). See Conference Report at p. 209 (noting that the party making the appeal may choose to seek judicial review in the appropriate Federal district court or a State court of competent jurisdiction). Spiegel & McDiarmid LLP 5 B) FCC Implementation of Section 332(c)(7) For more than a decade after its 1996 enactment, interpretation and application of Section 332(c)(7) was the province of the courts, just as Congress envisioned by including a specific court remedy in Section 332(c)(7)(B)(v). In 2008, however, CTIA –The Wireless Association filed a petition requesting the Commission to address, among other things, what constitutes a “reasonable period of time” for the purpose of Section 332(c)(7)(B)(ii).14 In response to the petition, the Commission defined what constitutes a “presumptively ‘reasonable period to time’ beyond which inaction on a personal wireless service facility siting application will be deemed a ‘failure to act’” as 90 days for collocation applications,and 150 days for applications other than collocations.15 These timeframes take into account whether applications are complete, and the local government must notify the applicant within 30 days if it finds an application to be incomplete.16 Several cities sought review of the Shot Clock Ruling.17 The Fifth Circuit granted the Commission deference with respect to its exercise of authority to implement Section 332(c)(7).18 The Fifth Circuit then rejected the cities’ argument that the FCC’s timeframes improperly place the burden on a state or local government, creating a “presumption for preemption,”finding Courts have held that the appropriate remedy is an injunction ordering the local government to issue the permit. See, e.g., Omnipoint Corp. v. Zoning Hearing Bd., 181 F.3d 403, 409-10 (3d Cir. 1999); Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 497 (2d Cir. 1999). In a recent rulemaking that remains ongoing, however, the Commission solicited comment on whether to adopt additional remedies. Notice of Proposed Rulemaking ¶ 162, WT 13-238, WC 11-59, RM 11688 (terminated), WT 13-32, FCC 13-122 (Sept. 26, 2013) (“NPRM”). 14 Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review and to Preempt Under Section 253 State and Local Ordinances that Classify All Wireless Siting Proposals as Requiring a Variance, WT Docket No. 08-165, Declaratory Ruling, 24 FCC Rcd 13994 ¶ 2 (2009) (“Shot Clock Ruling”), recon. denied, 25 FCC Rcd 11157, aff’d sub nom., City of Arlington, Tex. v. FCC, 668 F.3d 229 (5th Cir. 2012), aff’d, 133 S.Ct. 1863 (2013). 15 Shot Clock Ruling ¶ 19. The Commission found that defining timeframes would lend clarity to Section 332(c)(7) and “ensur[e] that the point at which a State or local authority ‘fails to act’ is not left so ambiguous that it risks depriving a wireless siting applicant of its right to redress.” Id.¶ 41. 16 Id.¶ 53. 17 City of Arlington, Tex. v. FCC, 668 F.3d 229, 236-36 (5th Cir. 2012), aff’d, 133 S.Ct. 1863, 1873 (2013) (considering whether “a court should apply Chevron to review an agency’s determination of its own jurisdiction”). 18 City of Arlington, 668 F.3d at 254. Spiegel & McDiarmid LLP 6 instead that this was not the effect of the presumptively reasonable time periods.19 The court explained that a presumption in a civil proceeding operates according to a “bursting-bubble” theory of presumption, and “the only effect of a presumption is to shift the burden of producing evidence with regard to the presumed fact.”20 Applying this theory to the Shot Clock Ruling, the court stated: True, the wireless provider would likely be entitled to relief if it showed a state or local government’s failure to comply with the time frames and the state or local government failed to introduce evidence demonstrating that its delay was reasonable despite its failure to compl y. But, if the state or local government introduced evidence demonstrating that its delay was reasonable, a court would need to weigh that evidence against the length of the government’s delay—as well as any other evidence of the unreasonable delay that the wireless provider might submit—and determine whether the state or local government’s actions were unreasonable under the circumstances.21 The state or local government must produce evidence challenging the presumed reasonableness of the FCC’s “shot clock”period in a particular case, and then the presumption disappears, leaving the reviewing court to judge competing evidence. C)Application to Municipal Property Preemption doctrines generally apply only to state regulation and not when a state owns and manages property.22 Accordingly, courts have generally ruled that Section 332(c)(7) does not apply to local government actions or decisions relating to the siting of wireless facilities on municipal property. A related issue is whether ordinances or practices that incentivize in some way wireless facility siting on municipal property (as opposed to neighboring private property) run afoul of Section 332(c)(7). 19 Id.at 256. 20 Id.(emphasis in original) (internal quotation marks and citation omitted). 21 Id.at 257. 22 See Bldg. & Constr. Trades Council v. Associated Builders & Contractors, 507 U.S. 218, 226-27 (1993) (“When a State owns and manages property … it must interact with private participants in the marketplace. In doing so, the State is not subject to pre-emption by the [federal statute], because pre-emption doctrines apply only to state regulation.” (emphasis in original)). Spiegel & McDiarmid LLP 7 1. Distinguishing Between Regulatory and Proprietary Action The Ninth Circuit recently addressed the application of Section 332(c)(7) to municipal propert y. In this case, T-Mobile and the City of Huntington Beach entered into lease agreements for the siting of wireless facilities in City parks.23 The City Council then determined that notwithstanding T-Mobile’s lease agreement with the City and valid land use and building permits, T-Mobile also had to obtain voter approval under a city charter measure that gave voters authority over construction on public lands.24 T-Mobile sought relief in federal court, arguing that Section 332(c)(7)barred the application of the voter approval measure to the proposed project; the district court found that the measure, as applied to T-Mobile’s wireless siting application,ran afoul of Section 332(c)(7),and remanded to the City, at which point the City followed Section 332(c)(7) procedures to revoke the permits.25 On appeal, the Ninth Circuit reversed. It determined that the city charter measure at issue “is not the sort of local land use regulation or decision that is subject to the limitations of §332(c)(7), but rather is a voter-enacted rule that the City may not lease or sell city-owned property for certain types of construction unless authorized by a majority of the electors.”26 Because the charter provision “simply provides a mechanism for the City, through voters, to decide whether to allow construction on its own land,”27 it is not a form of local zoning or land use regulation to which Section 332(c)(7)(B) applies. The court held: “By its terms, the TCA applies only to local zoning and land use decisions and does not address a municipality’s propert y rights as a landowner.”28 As a rule dealing with the City’s management of its own propert y, the measure was therefore outside the scope of Section 332(c)(7) preemption. 23 Omnipoint Commc’ns, Inc., 738 F.3d at 198. 24 Id.at 196, 198. 25 Id.at 198-99. 26 Id.at 199. 27 Id. 28 Id.at 201. Spiegel & McDiarmid LLP 8 The Second Circuit has similarly found that Section 332(c)(7)does not limit proprietary actions of a municipality and concluded that Congress intended Section 332(c)(7)’s preemption to be narrow and its preservation of local governmental authority to be broad.29 Examining the language of the statute, the court observed that the preservation of local governmental “authority” in Section 332(c)(7)(A) refers to “decisions,” whereas the limitations on local authority in Section 332(c)(7)(B) language refer to “regulation.”30 These contrasting terms highlight that the limitations of Section 332(c)(7)(B) apply to a different, and more limited,set of local government actions than what is covered, and preserved,in Section 332(c)(7)(A). The court also noted that a municipality or an instrumentality thereof—in this case a school district— has “the same right in its proprietary capacity as [a private] property owner to refuse to lease” its propert y, and Section 332(c)(7) does not preempt a governmental body’s right to refuse to lease its property.31 Further, a public entity, just like a private party, is permitted to decline to lease its property except subject to agreed-upon conditions, and the party seeking a lease may look for other eligible sites if it does not accept those conditions.32 It is also worth noting that compelling local governments to allow applicants access to municipal property to site wireless facilities would run afoul of the Fifth Amendment as a taking of municipal property with no mechanism for determining or awarding just compensation.33 This is an additional argument against wireless providers that seek access, or unconditional access, to municipal property. 29 Sprint Spectrum L.P. v. Mills, 283 F.3d at 420. 30 Id. 31 Id.at 421. Accord Omnipoint Commc’ns Enters., L.P. v. Twp. of Nether Providence, 232 F.Supp.2d 430, 435 (E.D. Pa. 2002) (“[T]he Township had no duty under the TCA to negotiate or ultimately to lease portions of municipal property to Omnipoint for the purpose of installing an antenna.”). 32 Sprint Spectrum L.P. v. Mills,283 F.3d at 421 (“We see no indication that Congress meant the TCA to apply any different set of principles to a telecommunications company’s negotiated agreement with a public property owner.”). 33 See Ark. Game & Fish Comm’n v. United States, 133 S.Ct. 511, 518 (2012); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426 (1982); Gulf Power Co. v. United States, 187 F.3d 1324, 1328-29 (11th Cir. 1999). The law is clear that local governments, no less than private landowners, are entitled to the protection of the Takings Clause of the Fifth Amendment. See, e.g., United States v. 50 Acres of Land, 469 U.S. 24, 31 & n.15 (1984). Spiegel & McDiarmid LLP 9 2.Municipal Property Siting “Preferences” Some wireless providers have expressed concern over municipal ordinances or practices that create a so-called “preference” for siting on municipal property rather than private property and have questioned whether such ordinances or practices rise to the level of unreasonable discrimination prohibited by Section 332(c)(7)(B)(i)(I).34 These preferences may arise in at least two ways. First, local land use and zoning ordinances may not apply, or apply to a lesser extent, to municipal propert y, creating a natural incentive to site there.35 Second, the wireless industry has alleged that some local governments may have ordinances that more directly favor siting facilities on municipal property. At the wireless industry’s behest, the issue of whether so-called “preferences” for siting on municipal property violate the anti-discrimination provision of Section 332(c)(7)(B)(i)(I) has been raised in the pending FCC rulemaking discussed in Section III(B) below. Local governments have responded in the rulemaking, arguing that industry’s municipal “preference” discrimination argument is wrong as a matter of policy and law. As a practical matter, allowing wireless facilities to be sited on municipal property in areas (such as residential zones) where they are not allowed on private property promotes the deployment of wireless facilities. For example, in many municipalities, wireless towers are generally not permitted in areas zoned residential. Fire or police stations in these residential areas, which already typically contain public safety wireless facilities,may be the only eligible propert y on which wireless facilities are permitted. If this municipal property had to be treated the same as the surrounding residential properties in the area, then either no wireless deployment would be permitted in the area (including the fire or police station), or every home in the area would become a potential site for a wireless tower. The absurdity of this result reveals the fallacy of industry’s position and makes clear the positive effects of encouraging facilities to be sited on municipal property. 34 See, e.g.,Comments of PCIA and DAS Forum at 43-44, WC Docket No. 11-59 (filed July 18, 2011). 35 Local land use law is typically directed at placing limits on private property owners’ use of their property. The control and use of public property, in contrast, is subject to direct public oversight by voters—who essentially own public property indirectly through their municipal government. Spiegel & McDiarmid LLP 10 Moreover, legislative history and subsequent case law interpreting Section 332(c)(7) do not support the argument that a preference for siting on municipal property would be unreasonable discrimination. The Conference Report used “functionally equivalent services” to refer only to personal wireless service providers that directly compete against one another.36 A preference for siting on municipal property, as long as it is applied equally to all wireless providers, is thus not even “discrimination,” much less “unreasonable discrimination,” within the meaning of Section 332(c)(7)(B)(i)(I).37 Further, the Conference Report sets forth Congress’ intent that local governments must have “the flexibility to treat facilities that create different visual, aesthetic, or safety concerns differently to the extent permitted under generally applicable zoning requirements even if those facilities provide functionally equivalent services.”38 As an example, the conferees stated that they did “not intend that if a State or local government grants a permit in a commercial district, it must also grant a permit for a competitor’s 50-foot tower in a residential district.”39 This recognizes the legitimate goals of zoning and that a local government can distinguish between types of property.40 Put simply, Section 332(c)(7)(B)(i)(I) prohibits unreasonable discrimination among wireless providers. It does not prohibit discrimination among the different kinds of propert y on which a wireless provider may seek to place its facilities. A provider that challenges the application of a municipal preference cannot show that it has been “treated differently from other providers whose facilities are similarly situated in terms of the structure, placement or 36 Conference Report at p. 208. 37 But see New Cingular Wireless PCS, LLC v. City of W. Haven, Conn., No. 3-11-cv-1967, 2013 U.S. Dist. LEXIS 95321 at * 17 (D.Conn. July 9, 2013) (finding that although new zoning regulations apply equally to all carriers, they have the effect of discriminating in favor of wireless providers that have existing facilities and against providers that do not). 38 Conference Report at p. 208. 39 Id. 40 See, e.g., T-Mobile Ne. v. Fairfax County Bd. Of Supervisors, 672 F.3d 259, 272 (4th Cir. 2012) (finding no unreasonable discrimination where local government’s denial was based on “legitimate, traditional zoning principles” and facilities that had been approved for other providers “can be distinguished on several grounds”). Spiegel & McDiarmid LLP 11 cumulative impact as the facilities in question.”41 A local government may distinguish among different kinds of property without being unreasonably discriminatory.42 A municipality’s decision to encourage wireless siting on municipal property is therefore not unreasonable discrimination within the meaning of Section 332(c)(7)(B)(i)(I). As mentioned above, however, the Commission is currently considering this issue in a Notice of Proposed Rulemaking issued September 26, 2013 (“NPRM”).43 The NPRM requested comment on whether “ordinances establishing preferences for the placement of wireless facilities on municipal property are unreasonably discriminatory under Section 332(c)(7).”44 Initial industry comments advocated a “deployment at all costs” position where anything that makes siting on municipal property more attractive is permissible, but to the extent that any such preference makes siting on private property less attractive,a municipal preference is an impermissible impediment.45 Local governments argued that having different processes for siting on municipal property versus private property, applying equally to all functionally equivalent providers, is not “unreasonable discrimination.”46 To the extent a municipal preference might raise an issue, commenters urged the Commission that a rule was unnecessary due to the fact-specific inquiry that would be necessary in those instances.47 41 MetroPCS, Inc., 400 F.3d at 727 (internal quotation marks omitted) (emphasis in original). See also Omnipoint Commc’n Enters., L.P. v. Zoning Hearing Bd. of Easttown Twp., 331 F.3d 386, 395 (3d Cir. 2003) (stating that plaintiff must first show that the relevant providers are functionally equivalent and must then show that the government body unreasonably discriminated). 42 See, e.g., id.; Sprint Spectrum L.P. v. Willoth, 176 F.3d 630, 639 (2d Cir. 1999) (“[L]ocal governments may reasonably take the location of the telecommunications tower into consideration when deciding whether: (1) to require a more probing inquiry, and (2) to approve an application for construction of wireless telecommunications facilities, even though this may result in discrimination between providers of functionally equivalent services.”); Sprint Spectrum L.P. v. Bd. of Zoning Appeals of Brookhaven, 244 F.Supp.2d 108, 117 (E.D.N.Y. 2003). 43 Notice of Proposed Rulemaking, WT 13-238, WC 11-59, RM 11688 (terminated), WT 13-32, FCC 13-122 (Sept. 26, 2013) (“NPRM”). 44 NPRM ¶ 160. 45 Comments of PCIA –The Wireless Infrastructure Ass’n and the HetNet Forum at 5 n.21, WT Docket No. 13-238 (filed Feb. 3, 2014). 46 Comments of Fairfax County, Virginia at 26, WT Docket No. 13-238 (filed Feb. 3, 2014). 47 See, e.g., Comments of the City of Alexandria, Virginia et al.at 57, WT Docket No. 13-238 (filed Feb. 3, 2014); Reply Comments of the City of San Antonio, Texas at 25, WT Docket No. 13-238 (filed March 5, 2014). Spiegel & McDiarmid LLP 12 While we believe local governments have the better of the arguments before the FCC, this does not necessarily mean they will prevail on this issue. The NPRM therefore warrants local governments’ attention and continued participation. III.SECTION 6409(a) A)The Spectrum Act The Spectrum Act was enacted as part of the Middle Class Tax Relief and Job Creation Act of 2012. The Spectrum Act, generally, was intended to “advance wireless broadband service”for public safety and commercial purposes and provided for the creation of a broadband communications network (known as “FirstNet”) for first responders per the recommendation of the 9/11 Commission.48 Section 6409(a) of the Spectrum Act provides, in pertinent part,that “a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.”49 Section 6409(a) applied to all local governments upon its enactment in 2012. However, there has been little precedent construing Section 6409(a) to date, and the ambiguity of the statute’s language has resulted in differing interpretation by industry and local governments. For example, the statute does not define what constitutes a “substantial[] change.” It is unclear exactly what Section 6409(a)requires, or if it is even constitutional.50 One district court treated Section 6409(a) as “further evidence of a clear congressional policy demanding the prompt 48 H.R. Rep. 112-399 at 136 (2012), U.S. Code Cong. & Admin. News 2012,p. 220. 49 Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. No. 112-96, § 6409(a), 126 Stat. 156 (2012) (“Spectrum Act”) (codified at 47 U.S.C. § 1445(a)). 50 A federal law that compels a state or local government to approve an application or take other specific action may impermissibly commandeer state and local government in violation of the Tenth Amendment. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S.Ct. 2566, 2602 (2012); Printz v. United States, 521 U.S. 898, 933 (1997). Spiegel & McDiarmid LLP 13 removal of locally imposed, unreasonably discriminatory obstacles to modifications of existing facilities that would further the rapid deployment of wireless technology[.]”51 B)Rulemaking to Implement Section 6409(a) In the September 26, 2013, NPRM, the Commission issued multiple proposals to interpret and implement Section 6409(a).52 As an initial note, local governments and industry disagree on the need for a rulemaking to implement Section 6409(a) at this point. The FCC tentatively found that it would serve the public interest to establish “rules clarifying the requirements of Section 6409(a) to ensure that the benefits of a streamlined review process for collocations and other minor facility modifications are not unnecessarily delayed.”53 The NPRM proposes to clarify and implement Section 6409 in a variety of ways. Recognizing that the scope of Section 6409(a) depends on what its terms mean, the NPRM seeks comment on, among other things,how to interpret the terms “transmission equipment,” “existing wireless tower or base station,” “substantially change the physical dimensions,” and “collocation” as they apply to an “eligible facilities request.”54 If these terms are defined broadly,that would greatly extend the preemptive reach of Section 6409(a). The scope of Section 6409(a) will also affect whether and how it applies to different sorts of property. In particular, wireless industry commenters in the proceeding argue that Section 6409(a) should apply to access to utility or light poles or to municipal rights-of-way (“ROW”). Utility and light poles are often municipally owned, and local ROW is almost always public propert y. Industry argues that ROW and poles in the ROW are desirable locations to deploy distributed antenna sys tems (“DAS”) and small cell facilities. This leads to the question of whether Section 6409(a) applies to wireless providers’ requests for access to municipal property. 51 New Cingular Wireless PCS, 2013 U.S. Dist. LEXIS 95321 at * 27. 52 See note 43,supra. Opening comments were due February 3, 2014, and reply comments were due March 5, 2014. 53 NPRM ¶ 95. 54 Id.¶ 102. Spiegel & McDiarmid LLP 14 The Commission’s NPRM proposes to interpret Section 6409(a) to apply only to state and local governments acting as land use regulators and not as property owners.55 This is in accordance with the suggestion of the FCC’s Intergovernmental Advisory Committee (“IAC”).56 This interpretation would be consistent with court decisions holding that Section 332(c)(7) does not apply to a municipality’s decisions as a property owner rather than as a zoning authority,57 as well as the broader principle that “pre-emption doctrines apply only to state regulation.”58 This market participant doctrine is well-established and distinguishes between actions that a municipality takes as a regulator and actions it takes as a market participant.59 In the case of Section 6409(a), there is no indication that Congress intended to impose restrictions on a state or local government managing its own property that are not imposed on analogous private conduct.60 In examining a municipal action to determine if it is proprietary rather than an attempt to regulate, the Fifth Circuit focused on two questions: First, does the challenged action essentially reflect the entity’s own interest in its efficient procurement of needed goods and services, as measured by comparison with the typical behavior of private parties in similar circumstance? Second, does the narrow scope of 55 Id. ¶ 129. 56 Intergovernmental Advisory Committee to the FCC: Advisory Recommendation Number 2013-9, “Response to Wireless Telecommunications Bureau’s Guidance on Interpretation of Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012” at 3-4, dated July 31, 2013, available at http://transition.fcc.gov/statelocal/recommendation2013-09.pdf. 57 See, e.g.,Omnipoint Commc’ns, Inc., 738 F.3d at 200 (holding that a decision whether or not to allow construction on a municipality’s own land “does not regulate or impose generally applicable rules on the placement, construction, and modification of personal wireless service facilities … and so the substantive limitations imposed by [Sections 332(c)(7)(B)(i) and (iv)] are inapplicable” (quotation marks omitted)). 58Bldg. & Constr. Trades Council, 507 U.S. at 227 (emphasis in original). 59 See Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 498 F.3d 1031, 1040-42 (9th Cir.2007) (discussing market participant doctrine and its application to proprietary action by states’ political subdivisions). See also Cardinal Towing & Auto Repair v. City of Bedford, Tex., 180 F.3d 686, 693 (5th Cir. 1999) (“Courts have similarly shielded contract specifications from preemption when they applied to a single discreet contract and were designed to insure efficient performance rather than advance abstract policy goals.”). 60 See Engine Mfrs. Ass’n,498 F.3d at 1041 (“‘In the absence of any express or implied indication by Congress that a State may not manage its own property when it pursues its purely proprietary interests, and where analogous private conduct would be permitted, this Court will not infer such a restriction.’” (quoting Bldg. & Constr. Trades Council, 507 U.S. at 231-32)). Spiegel & McDiarmid LLP 15 the challenged action defeat an inference that its primary goal was to encourage a general policy rather than address a specific proprietary problem?61 Local government leases of municipal property for wireless facility siting fall squarely within the first question.62 Several municipal commenters in the NPRM discussed the practical, and inappropriate, consequences if Section 6409(a) were to apply to wireless providers’ requests to locate their facilities on municipal property. Several water districts described the control they must exercise over their facilities for safety, operational, and other reasons, stressing that they can only allow wireless facilities to be placed at a location on a case-by-case basis, which would be defeated by an FCC rule requiring mandatory collocation.63 Another water district similarly described the efforts it undertakes to strictly control and secure its facilities that would be incompatible with mandatory collocation under Section 6409(a).64 In addition to highlighting the distinction between regulatory actions and proprietary actions, local governments commenting on the NPRM argued that construing Section 6409(a) to apply to municipal property—essentially requiring local governments to grant access to municipal property—would be a taking within the meaning of the Fifth Amendment.65 By restricting what sorts of activity a local government may allow or prohibit on its property, Section 6409(a) would rise to the level of a taking, and lacking a provision for determining or awarding just compensation, would be unconstitutional. 61 Cardinal Towing & Auto Repair, 180 F.3d at 693. 62 See Chamber of Commerce of U.S. v. Lockyer, 463 F.3d 1076, 1084 (9th Cir. 2006), rev’d sub nom on other grounds Chamber of Commerce of U.S. v. Brown, 554 U.S. 60 (2008) (“Each question constitutes a separate method of determining whether the state action at issue actually constitutes regulation, and a state need not satisfy both questions to be deemed to act as a market participant.”). 63 Comments of the Valley Center Municipal Water District at 4, WT Docket No. 13-238 (filed Feb. 3, 2014); Comments of the Sweetwater Authority at 4, WT Docket No. 13-238 (filed Feb. 3, 2014). 64 Comments of the Padre Dam Municipal Water District at 2-3, WT Docket No. 13-238 (filed Feb. 3, 2014). 65 Comments of the City of San Antonio, Texas at 8, in WT Docket No. 13-238 (filed Feb. 3, 2014); Comments of the City of Eugene, Oregon at 6, in WT Docket No. 13-238 (filed Feb. 3, 2014). Spiegel & McDiarmid LLP 16 Industry commenters largely agreed with the IAC’s recommendation that Section 6409(a) does not apply to municipalities acting as property owners. However, several wireless industry commenters sought to distinguish between the ROW and other public property on the ground that the ROW is held in trust for the public rather than in a proprietary capacity.66 These arguments are vulnerable to rebuttal on state property law grounds. But the issue of whether Section 6409(a) can, or should, be applied to municipal property—and especially to ROW access—remains open in the pending Commission NPRM proceeding. Local governments would be well-advised both to monitor and participate in that proceeding. IV.CONCLUSION Properly read, neither Section 332(c)(7) nor Section 6409(a) evidences any congressional intent to restrict the decisions that local governments make regarding the siting of wireless facilities on public property. The FCC, however,is considering these issues in a pending rulemaking. Although many local governments and governmental entities have argued in that proceeding against any attempt at applying these federal wireless siting provisions to municipal property, local government lawyers should be alert to the issue and keep a sharp eye on Section 332(c)(7) and Section 6409(a) case law and the FCC’s pending NPRM. 66 Reply Comments of PCIA –The Wireless Infrastructure Ass’n and the HetNet Forum at 22, in WT Docket No. 13-238 (filed March 5, 2014); Reply Comments of T-Mobile USA, Inc. at 20, in WT Docket No. 13-238 (filed March 5, 2014). Spiegel & McDiarmid LLP 17 V.APPENDIX A)Text of Section 332(c)(7) Sec. 332. Mobile Services.67 … (7) Preservation of local zoning authority (A) General authority Except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities. (B) Limitations (i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof— (I) shall not unreasonably discriminate among providers of functionally equivalent services; and (II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services. (ii) A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request. (iii) Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record. (iv) No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission’s regulations concerning such emissions. (v) Any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with this 67 Telecommunications Act of 1996, Pub. L. No. 104-104, § 704(a), 110 Stat. 56 (1996) (codified at 47 U.S.C. § 332(c)(7)). Spiegel & McDiarmid LLP 18 subparagraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction. The court shall hear and decide such action on an expedited basis. Any person adversely affected by an act or failure to act by a State or local government or any instrumentality thereof that is inconsistent with clause (iv) may petition the Commission for relief. (C)Definitions For purposes of this paragraph— (i) the term “personal wireless services” means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services; (ii) the term “personal wireless service facilities” means facilities for the provision of personal wireless services; and (iii) the term “unlicensed wireless service” means the offering of telecommunications services using duly authorized devices which do not require individual licenses, but does not mean the provision of direct-to-home satellite services (as defined in section 303(v)of this title). B)Text of Section 6409(a) Sec.6409. Wireless Facilities Deployment.68 (a) Facility modifications.-- (1) In General.--Notwithstanding section 704 of the Telecommunications Act of 1996 (Public Law 104–104) or any other provision of law, a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station. (2) Eligible Facilities Request.--For purposes of this subsection, the term ‘‘eligible facilities request’’ means any request for modification of an existing wireless tower or base station that involves— (A) collocation of new transmission equipment; (B)removal of transmission equipment; or (C) replacement of transmission equipment. 68 Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. No. 112-96, § 6409(a), 126 Stat. 156 (2012) (codified at 47 U.S.C. § 1445(a)). Spiegel & McDiarmid LLP 19 (3) Applicability of Environmental Laws.--Nothing in paragraph (1) shall be construed to relieve the Commission from the requirements of the National Historic Preservation Act or the National Environmental Policy Act of 1969.