HomeMy WebLinkAbout2017-01-24 - CenturyLink Communications LLC - TelecommunicationsCity 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.
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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.
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Incremental costs shall not include any part, portion, or proration 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.
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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
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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. 5220 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,
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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.
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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.
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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.
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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.
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
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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.
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0. 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 43 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.
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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
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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 S. 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
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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
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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
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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
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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 andlor 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.
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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;
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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
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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. Mold 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
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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
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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
Commercial General
Liability
Statutory Limits
$2,000,000 per occurrence,
Combined Single Limit (C.S.L.)
$5,000,000 General Aggregate
Auto Liability including $2,000,000 per occurrence
coverage on all owned, non- C.S.L.
owned hired autos
Umbrella Liability $1,000,000 per occurrence
C.S.L.
s. 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
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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
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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
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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
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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
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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
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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
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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 29 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 30 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 Citv, its elected officials, officers, employees, agents, and
representatives for any injury or damage; or by reason of any schedule
Ordinance No. 2017-02
Page 31 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 materially
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 32 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 33 of 37
G. Counterparts. This Franchise may be executed in one or more
counterparts, and each originally executed duplicate counterpart of
this Franchise shall be deemed to possess the full force and effect
of the original.
H. Entire Agreement. This Franchise represents the entire
understanding and agreement between the parties with respect to
the subject matter and supersedes all prior oral and written
negotiations between the parties.
I. Modification. The parties may alter, amend or modify the terms
and conditions of this Franchise only upon written agreement of
both parties to such alteration, amendment or modification.
J. Non -exclusivity. This Franchise does not confer any exclusive
right, privilege, or authority to enter, occupy or use public ways for
delivery of telecommunications services or any other purposes.
This Franchise is granted upon the express condition that it will
not in any manner prevent the City from granting other or further
franchises in, on, across, over, along, under or through any public
way.
L. Rights Granted. This Franchise does not convey any right, title or
interest in public ways, but shall be deemed only as authorization
to enter, occupy, or use public ways for the limited purposes and
terms stated in this Franchise. Further, this Franchise shall not
be construed as any warranty of title.
M. Contractors and Subcontractors. Franchisee's contractors and
subcontractors must be licensed and bonded in accordance with
the City's ordinances, rules, and regulations. Work by contractors
and subcontractors is subject to the same restrictions, limitations
and 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 hate. 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 34 of 37
Passed by the City Council of East Whee, at a regular meeting
thereof on this -21— day of INIA&Ag 201-7
The City of East Wenatchee,
Washington
By
�—
Ste en C. Lacy, Mayor
Authenticated:
IRz
Ylh6 Martz, Acting 6ty grerk
App7ved as to form only:
hu.�T- sal
Devin Poulson, City Attorney
Filed with the Acting City Clerk: 13c /5 aof 6
Passed by the City Council: 134-lbi�
Published- / -,A 7 - oil
Effective Date JIA7IZeZ
Ordinance No. 2017-02
Page 35 of 37
Acceptance:
CenturyLink Communications, LLC
By:
Printed Name:
Title:
kn em
MGR Network Real Estate
Ordinance No.2017-02
Page 36 of 37