HomeMy WebLinkAbout2012-07-10 - Zayo Telecommunications - TelecommunicationsCity of East Wenatchee,Washington
Ordinance No.2012-09
AN ORDINANCE OF THE CITY OF EAST WENATCHEE
granting a non-exclusive Franchise to Zayo Group,LLC to
construct,install,operate,maintain,repair,or remove fiber optic
cables within the public ways of the City of East Wenatchee.
Zayo Group,LLC,a limited liability company organized and existing under the laws of
the State of Delaware ("Franchisee")is a competitive telecommunications company providing
telecommunication services,including voice,Internet and data services,which desires to occupy
the City of East Wenatchee ("City")rights-of-ways to install,construct,operate,and maintain its
telecommunications facilities and network for the purpose of providing services to its customers
at locations within the City;and
Franchisee has applied to the City for a non-exclusive franchise to enter,occupy,and use
public ways to construct,install,operate,maintain,and repair fiber optic facilities to offer and
provide telecommunications service for hire,sale,or resale in the City of East Wenatchee;and
The 1934 Communications Act,as amended by the 1996 Telecommunications Act
relating to telecommunications providers recognizes and provides local government authority to
manage the public rights-of-way and to require fair and reasonable compensation on a
competitively neutral and nondiscriminatory basis;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;and
Franchisee shall be responsible for its actual costs in using,occupying and repairing
public ways;and
The City and Franchisee desire to effectuate good coordination of the use of the rights-
of-way;and
RCW 3 SA.1 I.020 grants the City broad authority to regulate the use of public rights-of-
way and RCW 35A.47.040 authorizes the City 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.
City of East Wenatchee
Ordinance 2012-09
Page 10f32
NOW,THEREFORE,BE IT ORDAINED by the City Council of the City of East
Wenatchee as follows:
Section 1.Defmitions.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
not limited to,wire,radio,optical cable,electromagnetic or other similar types of equipment and
related appurtenances in any way comprising part of the System.
"FCC"means the Federal Communications Commission or its designated representative.
"Franchise Area"means the area within the jurisdictional boundaries of the City,including
annexed area,to be served by Franchisee as specified in this Franchise.
City of East Wenatchee
Ordinance 2012-09
Page 20f32
"Incremental Costs"means the actual and necessary costs incurred which exceed costs which
would have otherwise been incurred.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 cross arms,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.
City of East Wenatchee
Ordinance 2012-09
Page 3 of32
Section 2.Franchise.
A.Subject to the terms and conditions of this Franchise,the City grants Franchisee a non-
exclusive 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 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.
City of East Wenatchee
Ordinance 2012-09
Page 4 of32
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.Franchisee must place its facilities underground except as otherwise expressly provided
herein.Subject to the terms and conditions of this Franchise,Franchisee may place
optical cable,optical cable housing,and splicing connections on existing 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 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,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,public way,other ways or other
property,whether publicly or privately owned.
D.Franchisee shall provide the City with information in such form requested by the City
which accurately reflects the horizontal and vertical location and configuration of all of
Franchisee's facilities.Franchisee shall provide the City with updated information
annually or upon request by the City.
City of East Wenatchee
Ordinance 2012-09
Page 5 of32
E.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;provided,however,in
no event shall a request to the City to relocate overhead facilities to underground
be considered to be made for aesthetic purposes.Franchisee is authorized to place
optical cable and optical cable housing on existing utility poles as overhead
facilities only as an exception to pre-existing City policies which require
undergrounding,and the cost of relocating overhead facilities to underground
shall be paid by the Franchisee except as provided in Section 4(E)(2).
(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.
F.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.
G.Franchisee shall install its Facilities in alleys rather than streets wherever economically
reasonable and technically feasible (unless otherwise authorized by the Public Works
Director).
H.Franchisee shall comply with Municipal Codes and requirements regarding historic
districts.
City of East Wenatchee
Ordinance 2012-09
Page 6 of32
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 proj ect
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.
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
City of East Wenatchee
Ordinance 2012-09
Page 7 of32
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.
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
City of East Wenatchee
Ordinance 2012-09
Page 80f32
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 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 comer 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 GIS level maps in Washington State Plane Coordinates showing the size and
location of the Facilities within the Franchise Area subject to the City's agreement to
maintain the confidentiality of such information to the extent allowed by law.Before
February 1 of each year,Franchisee shall provide the City with updated GIS level maps.
The City agrees that it will comply with all state and federal laws prohibiting disclosure
of Franchisee's maps and information to any third party to the extent allowed by law.
City of East Wenatchee
Ordinance 2012-09
Page 90f32
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 format adequate for geographic information system and Computer Aided
Design (CAD)usage.
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.Such maps and
records shall be kept in Franchisee's district operating office and shall be subject to
inspection at all reasonable times by proper officials or agents of said City.Franchisee
shall provide at the City's request a copy of facilities maps for the City's use.
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.
U.Franchisee shall notify the City in advance of any 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.
City of East Wenatchee
Ordinance 2012-09
Page 10 of32
-----------------------------
Section 7.Coordination of Construction and Installation Activities and Other Work.
A.Franchisee shall coordinate its 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,as
ordered by the City,to minimize public inconvenience,disruption or damages.
C.At least 48 hours prior to entering a public way to perform construction and installation
activities or other work,Franchisee shall give notice,at its cost,to owners and occupiers
of property adj acent to such public ways indicating the nature and location of the work to
be performed.Such notice shall be physically posted by door hanger.Franchisee shall
make a good faith effort to comply with the property owner or occupier's preferences,if
any,on location or placement of underground facilities,consistent with sound
engineering practices.
D.Franchisee shall make available and accept the co-location of property of others within
trenches excavated or used by Franchisee in the public ways provided the costs of the
work are fairly allocated between the parties.
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.
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 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.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 precise horizontal and vertical location of its underground
facilities by excavating upon request of the City.If the City's request is in support of a
City project,the Franchisee shall complete this service within 14 days at no cost to the
City of East Wenatchee
Ordinance 2012-09
Page 11 of32
City.If the City's request is in support of a third party's project,the Franchisee shall be
entitled to recover its cost from the project sponsor.
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 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 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.
E.The temporary removal,adjustment or alteration of the position of Franchisee's facilities
shall not be considered relocation for any purpose whatsoever.
Section 9.Safety and Maintenance Reguirements.
A.All work authorized and required under this Franchise will be performed in a safe,
thorough,and workmanlike manner.
City of East Wenatchee
Ordinance 2012-09
Page 12 of 32
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 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.
City of East Wenatchee
Ordinance 2012-09
Page 13 of32
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 for any
damage,but 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,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;
B.Upon abandonment of the facilities.Facilities shall be deemed abandoned if they are
unused by Franchisee for a period of 90days;
C.If the facilities were constructed or installed prior to the effective date of this Franchise;
unless such facilities were constructed 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;
E.If the facilities were constructed or installed or are operated,maintained or repaired in
violation of the terms or conditions of this Franchise;or
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
City of East Wenatchee
Ordinance 2012-09
Page 14 of32
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.
A.Franchisee shall provide the following information for all facilities that it proposes to
construct or install:
(l)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.
City of East Wenatchee
Ordinance 2012-09
Page 15 of32
(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;
b.The total capacity 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
City of East Wenatchee
Ordinance 2012-09
Page 16 of32
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.
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
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
City of East Wenatchee
Ordinance 2012-09
Page 17 of32
facilities,except to the extent any such damage or destruction is caused by or
arises from the active sole 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'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 damage to or destruction of the Franchisee's
facilities except to the extent any such damage or destruction is caused by or
arises from active sole 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.
City of East Wenatchee
Ordinance 2012-09
Page 18 of32
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.Comprehensive general liability insurance,written on an occurrence basis,with limits not
less than:
(1)$5,000,000.00 for bodily injury or death to each person;
(2)$5,000,000.00 for property damage resulting from anyone accident;and
(3)$5,000,000.00 for umbrella coverage for all other types ofliability.
B.Automobile liability for owned,non-owned and hired vehicles with a limit of
$3,000,000.00 for each person and $3,000,000 for each accident.
C.Workers'compensation within statutory limits and employer's liability insurance with
limit of not less than $1,000,000.
D.Comprehensive form premises-operations,explosions and collapse hazard,underground
hazard and products completed hazard with limit of not less than $3,000,000.
E.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 an insurance certificate,together with
an endorsement naming 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.Any deductibles or self-insured
retentions must be declared to and approved by the City.Payment of deductibles and self-
insured retentions shall be the sole responsibility of Franchisee.The insurance certificate
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.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.
F.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:
City afEast Wenatchee
Ordinance 2012-09
Page 19 of32
"It is hereby understood and agreed that this policy may not be canceled
nor the intention not to renew be stated until 90 days after receipt by the
City,by registered mail,of a written notice addressed to the Mayor of
intent to cancel or not to renew."
G..At least 30 days prior to said cancellation or non-renewal,Franchisee shall obtain and
furnish to the City replacement insurance policies meeting the requirements of this
section.
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
monies,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 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.
City of East Wenatchee
Ordinance 2012-09
Page 20 of32
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 fmancial responsibility.
Section 17.Taxes,Charges,and Fees.
A.As compensation for the Franchise and Franchisee's use of the public ways,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.If another comparable size jurisdiction in the State of Washington
subsequently receives a higher franchise fee from Franchisee,then this franchise fee will
automatically increase.Franchisee will apprise the City annually in writing of this
circumstance on the anniversary date of this Franchise.
B.Franchisee shall also pay and be responsible for all charges and fees imposed to recover
actual administrative expenses incurred by the City that are directly related to receiving
and approving this Franchise,any use and/or development authorizations which may be
required,or any permit which may be required,to inspecting plans and construction,or to
the preparation of a detailed statement.Regular application and processing charges and
fees imposed by the City shall be deemed to be attributable to actual administrative
expenses incurred by the City but shall not excuse Franchisee from paying and being
responsible for other actual administrative expenses incurred 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 sections of the Municipal Code.
C.Franchisee shall pay and be responsible for taxes permitted by law.
D.In addition to penalties and other remedies for which Franchisee may be subjected,the
City reserves the right to impose site-specific charges for placement of structures used to
provide telecommunications services.Unless otherwise agreed by the parties,such
charges shall be an amount equal to at least one hundred percent (100%)of the costs of
construction or installation of such structures.
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 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 not be charged or
City of East Wenatchee
Ordinance 2012-09
Page 21 of32
responsible for any more than the incremental costs to construct and install such ducts
and conduits,and the City shall not be charged or responsible for any use,maintenance,
or repair costs.
B.As a condition of being allowed to place optical cable,optical cable housing,or splicing
connections on existing utility poles as overhead facilities,Franchisee shall construct,
install,maintain,and repair dark fiber,loops,splicing connections,and related structures
necessary to access the dark fiber,for governmental use,at all locations where Franchisee
constructs or installs facilities.Franchisee shall construct,install,maintain,and repair
four (4)strands of dark fiber for governmental use at all locations along any route
constructed by Franchisee,unless some other amount is mutually agreed by the parties
for a particular location.Loops,splicing connections,and related structures necessary to
access such dark fiber shall be constructed and installed by Franchisee at locations
designated by the City along any route constructed by Franchisee under this Franchise.
Such dark fiber,loops,and splicing connections shall be readily accessible and available
for governmental use as determined by the City in its sole discretion.It is the City's
responsibility to reimburse the Franchisee for Franchisee's actual costs to install the dark
fiber service drops from the storage loops into the City's buildings or facilities as
required.Such costs shall be provided to and approved by the City prior to
commencement of any construction of such service drops by Franchisee.All such dark
fiber,loops,splicing connections,and related structures shall be dedicated to
governmental use and shall not be used by Franchisee.All such dark fiber,loops,splicing
connections,and related structures shall not be used by the City to provide
telecommunications or cable service for hire,sale,or resale to the general public unless
otherwise agreed by the parties.
C.Except as expressly provided in this section,Franchisee shall not charge the City for any
costs,of any kind whatsoever,for facilities provided by Franchisee in accordance with
this section.
Section 19.Access to Facilities and Universal Service.
A.Franchisee shall provide access to its facilities by hire,sale,or resale on a
nondiscriminatory basis.Franchisee shall make its telecommunications services available
to any customer within its franchise area who shall request such service whenever
feasible,without discrimination as to the terms,conditions,rates or charges for the
Franchisee's services;provided,however,that nothing in this section shall prohibit
Franchisee from making any reasonable classifications among differently situated
customers.
B.Franchisee shall provide Internet access to users of Eastmont Community Park and to
users of City property,at locations requested by the City,if it is practicable.Franchisee
and the City (or the Eastmont Metropolitan District,as applicable)may enter into a
separate agreement or agreements regarding the allocation of costs to construct,install,
operate,maintain,repair,and remove facilities needed to provide such access;provided,
City of East Wenatchee
Ordinance 2012-09
Page 22 of32
however,that nothing herein shall require the City to accept construction or installation
of facilities on City property.
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;
B.That taxes,fees,charges,or other costs owed or payable by Franchisee have been
properly collected and paid;and
C.The names of the users of Franchisee's facilities and the services and products those users
are providing to the public.
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 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 law
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.
City of East Wenatchee
Ordinance 2012-09
Page 23 of32
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 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.
City of East Wenatchee
Ordinance 2012-09
Page 24 of32
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.
F.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.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.
G.All terms and conditions of this Franchise shall be binding upon all 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)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 or lack of candor by or on behalf of Franchisee in any
application or written or oral 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 taxes,fees,charges or costs when and as due;or
(8)Insolvency or bankruptcy of Franchisee.
City of East Wenatchee
Ordinance 2012-09
Page 25 of32
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
30days 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 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.
City of East Wenatchee
Ordinance 2012-09
Page 26 of32
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:
Franchisee:
City of East Wenatchee
Attn:Mayor
271 9th St.N.E.
East Wenatchee,WA 98802
Zayo Group,LLC
400 Centennial Pkwy,Ste.200
Louisville,CO 80027
Attn:General Counsel,ZFS
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 the City 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 the City and shall
not prevent the City from demanding compliance with such terms or conditions at any future
time or pursuing its rights or remedies.
Section 29.Eminent Domain.This Franchise is subject to the power of eminent domain and
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 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.
City of East Wenatchee
Ordinance 2012-09
Page 27 of32
Section 31.Damage to Facilities.Unless directly and proximately caused by the active sole
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 competitive advantage
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 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;provided that,if any term or condition of this Franchise
relating to Franchisee's right,privilege,or authority to place optical cable,optical cable housing,
and splicing connections on existing utility poles as overhead facilities is held to be invalid or
unconstitutional by a court of competent jurisdiction,Franchisee's authority to construct,install,
operate,maintain,or repair overhead facilities shall be deemed void ab initio,any overhead
facilities shall be deemed to be unauthorized,and Franchisee shall be authorized only to place
facilities underground.
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.Local Employment Efforts.Franchisee will use reasonable efforts to utilize qualified
local contractors,including minority business enterprises and woman business
enterprises,whenever the Franchisee employs contractors to perform work under this
Franchise.
City of East Wenatchee
Ordinance 2012-09
Page 28 of32
C.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.
D.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 non-
performance 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 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.
E.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.
F.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.
G.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.
H.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.
I.Entire Agreement.This Franchise represents the entire understanding and agreement
between the parties with respect to the subj ect matter and supersedes all prior oral and
written negotiations between the parties.
J.Modification.The parties may alter,amend or modify the terms and conditions of this
Franchise upon written agreement of both parties to such alteration,amendment or
modification.
K.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
City of East Wenatchee
Ordinance 2012-09
Page 29 of32
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 subj ect 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 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 tenns and conditions within 30 days of its passage.
PASSED by the City Council of the City of East Wenatchee,at a regular meeting on the
lo'li1dayof Jkkhj ,2012.
ATTEST:
bthw &AtM~
Dana Barnard
City Clerk
Filed with the City Clerk:
Passed by the City Council:
Published:
Effective Date:
City of East Wenatchee
Ordinance 2012-09
Page 30 of 32
ACCEPTANCE:
Zayo Group,LLC
By:~~~'.-==-._"_.~.p~£e:'Gregg Strumberger ..
Title:General Counsel
City of East Wenatchee
Ordinance 2012-09
Page 31 of32
Summary of Ordinance No.2012-09
Of the City of East Wenatchee,Washington
On the ~day of JtJ~,2012,the City Council of the City ofEast
Wenatchee,Washington approved Or nance No.2012-09,the mam pomt of WhICh may be
summarized by its title as follows:
AN ORDINANCE OF THE CITY OF EAST WENATCHEE
granting a non-exclusive Franchise to Zayo Group,LLC to
construct,install,operate,maintain,repair,or remove fiber optic
cables within the public ways of the City of East Wenatchee.
Upon request,the City will mail a full text of this Ordinance.
Dated this \O'-tf\day of ~,2012.
CITY CLERK,DANA BARNARD
City of East Wenatchee
Ordinance 2012-09
Page 32 of32