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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