HomeMy WebLinkAbout2020-08-04 - WANRack LLC - TelecommunicationsCity of East Wenatchee,
Washington
Ordinance No. 2020-09
An Ordinance of the City of East Wenatchee granting a non-exclusive Franchise to
WANRack, LLC to construct, install, operate, maintain, repair, or remove fiber optic cables
within the public ways of the City of East Wenatchee.
Una ordenanza de la ciudad de East Wenatchee que otorga una franquicia no exclusiva a
WANRack, LLC para construir, instalar, operar, mantener, reparar o eliminar cables de
fibra optica dentro de las vias publicas de la ciudad de East Wenatchee.
WANRack, 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 35A.11.020 grants the City broad authority to regulate the use of public rights -of -
way and RCW 35A.47.04o 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 2020-09
Page 1 of 32
NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of East
Wenatchee as follows:
Section 1. Definitions. For the purposes of this Ordinance, the following terms,
phrases, words, and their derivations will have the meanings given herein. When not
inconsistent with the context, words used in the present tense include the future, words
in the plural include the singular, and words in the singular include the plural. Words not
defined will have the meaning ascribed to those words in the East Wenatchee Municipal
Code, or in the federal Communications Act of 1934 as amended, unless inconsistent
herewith.
"Affiliate" means any Person who owns or controls, is owned by or controlled by, or is
under common ownership or control with Franchisee.
"Cable Service" means the one-way transmission to subscribers of video programming or
other programming service and subscriber interaction, if any, which is required for the
selection or use of such video programming or other programming service.
"City Council" means the governing body of the City.
"City Property" means all real property owned by the City whether in fee ownership or
other interest within the City's public street and alley rights -of -way.
"Conduit" means optical cable housing, jackets, or casing, and pipes, tubes, or tiles used
for receiving and protecting wires, lines, cables, and communication and signal lines.
"Costs" means costs, expenses, and other financial obligations of any kind whatsoever.
"Dark Fiber" means properly functioning optical cable which is not used or available for
use by Franchisee or the general public.
"Effective Date" means five days following the publication of this Franchise or a
summary thereof occurs in an official newspaper of the City as provided by law.
"Facilities" means, collectively, all telecommunications transmission systems and
appurtenances owned by Franchisee, now and in the future, in the Franchise Area,
including, but "Incremental Costs" means the actual and necessary costs incurred which
exceed costs which would have otherwise been incurred. 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.
City of East Wenatchee
Ordinance 2020-09
Page 2 of 32
"Telecommunications Applications Fees and Charges" includes fees and charges
connected to right-of-way management, construction permit, permit design fee, building
permit, encroachment permit, inspections and pavement restoration.
"Telecommunications Service" means the offering of telecommunications for a fee
directly to the public, or to such classes of users as to be effectively available directly to
the public, regardless of the facilities used.
"Telecommunications System" or "System" means only those facilities necessary for
Franchisee to provide Telecommunications Service.
"Underground Facilities" means facilities located under the surface of the ground, other
than underground foundations or supports for overhead facilities.
"Utility Poles" means poles, and crossarms, devices, and attachments directly affixed to
such poles which are used for the transmission and distribution of electrical energy,
signals, or other methods of communication.
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.
City of East Wenatchee
Ordinance 2020-09
Page 3 of 32
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.
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 -parry 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 parry no less than i8o 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.
City of East Wenatchee
Ordinance 2020-09
Page 4 of 32
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.
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.
City of East Wenatchee
Ordinance 2020-09
Paae 5 of 32
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.
Section 5. Pole, Structures and Property Owned by Others. Franchisee must
obtain written approval from the owners of utility poles, structures and property not
owned by Franchisee prior to attaching to or otherwise using such poles, structures, or
property, and provide proof of such approval to the City. In the cases where the City owns
the utility poles or structures the Franchisee shall comply with the Municipal Code
provisions as preparation for a specific project plan and permit submittal. The City makes
no representation and assumes no responsibility for the availability of utility poles,
structures, and property owned by third parties for the installation of Franchisee's
facilities. The City shall not be liable for the unavailability of utility poles, structures, and
property owned by the City or third parties for any reason whatsoever. The installation of
facilities by Franchisee on or in the poles, structures, or property owned by others shall
be subject to and limited by the owner's authority to enter, occupy, and use public ways.
In the event that the authority of the owner of poles, structures, or property to enter,
occupy, and use the public ways either expires, terminates, or is cancelled, the authority
of Franchisee to construct, install, operate, maintain, and repair Franchisee's facilities at
such locations may be immediately cancelled at the sole option of the City. The City shall
not be liable for the costs for removal of facilities arising from expiration, termination, or
cancellation of any pole owner's authority to enter, occupy, or use public ways for any
reason whatsoever.
Section 6. Construction and Installation Requirements.
A. The technical performance of the facilities must meet or exceed all applicable
technical standards authorized or required by law, regardless of the transmission
technology utilized. The City will have the full authority permitted by applicable
law to enforce compliance with these technical standards.
B. All installations of facilities will be durable and installed in accordance with good
engineering, construction, and installation practices.
C. All facilities shall be constructed and installed in such manner and at such points
so as not to inconvenience City or public use of the public ways or to adversely
affect the public health, safety or welfare and in conformity with plans approved
by the City, except in instances in which deviation may be allowed by the City.
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.
City of East Wenatchee
Ordinance 2020-09
Page 6 of 32
E. The Telecommunications System constructed, maintained and operated by virtue
of this Franchise, shall be so constructed, maintained and operated in accordance
with all applicable engineering codes adopted or approved by the City, State of
Washington, federal government and/or engineering profession and in accordance
with any applicable Statutes of the State of Washington, rules and regulations of
the applicable Washington regulatory authority, Ordinances of the City or of any other
governmental regulatory commission, board or agency having jurisdiction over
Franchisee.
F. Franchisee shall secure the required permits, licenses, or other forms of approval
needed to lawfully occupy and use public ways. Franchisee shall have the sole
responsibility for obtaining, at its own cost and expense, all permits, licenses, or
other forms of approval or authorization necessary to construct, operate, maintain
or repair or expand the System, and to construct, maintain and repair any part
thereof.
G. Franchisee or its designee shall have the authority to trim trees or branches
measuring up to two inches in caliper on public property or which overhang streets,
alleys, sidewalks and public ways of the City so as to prevent the branches of such
trees from coming in contact with wires and cables of the Franchisee. Franchisee
or its designee shall give prior written notice and shall obtain approval from the
Public Works Director before trimming trees measuring more than two inches in
caliper. The City agrees to either approve of Franchisee's request or to meet with
Franchisee to review the proposed tree trimming within two business days of the
receipt of Franchisee's written notice. Franchisee takes full responsibility for
removing debris when the work is complete. All trimming is to be done at the sole
expense and responsibility of Franchisee. Franchisee is solely responsible for
property or tree damage caused by it and must full restore any such property or
tree damage when so requested by the City. In an emergency, Franchisee or its
designee shall have the right to trim trees without prior approval from the City.
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 3o 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.
City of East Wenatchee
Ordinance 2020-09
Page 7 of 32
I. Except as to emergency repairs, Franchisee shall, prior to excavating within any
street, alley or other public place, and installing any conduit, overhead cable or
equipment therein, file with the Public Works Director plans and specifications
thereof showing the work to be done, the location and nature of the installation to
be made, repaired or maintained, and a schedule showing the times of beginning
and completion and shall secure a permit from the City before proceeding with
any such work. The Franchisee shall conform to all requirements of the Municipal
Code (as enacted or as amended).
J. All construction and/or maintenance work as provided herein shall be performed
in conformity with the plans and specifications filed with the City and with the
permit or permits issued, except in instances in which deviation may be allowed
thereafter in writing pursuant to an application by the Franchisee.
K. Street excavations shall be dealt with through the standard Right -of -Way
permitting process (East Wenatchee Municipal Code Chapter 12.04 (as enacted or
as amended)). The City shall not unreasonably withhold or delay issuing the
applicable permit Line extensions also require early consultation with the City to
look at corridors and where Facilities shall be placed. However, in the event of an
emergency requiring immediate action by Franchisee for the protection of the
Facilities, City property or other persons or property, Franchisee may proceed
without first obtaining the normally required permits. In such event Franchisee
must (1) take all necessary and prudent steps to protect, support, and keep safe
from harm the Facilities, or any part thereof; City property; or other persons or
property, and to protect the public welfare, health and safety; and (2) as soon as
possible thereafter, must obtain the required permits and comply with any
mitigation requirements or other conditions in the after -the -fact permit.
L. Unless such condition or regulation is in conflict with a federal or state
requirement, the City may condition the granting of any permit or other approval
that is required under this Franchise, in any manner reasonably necessary for the
safe use and management of the public right-of-way or the City's property
including, by way of example and not limitation, maintaining proper distance from
other utilities, protecting the continuity of pedestrian and vehicular traffic and
Rights -of -Way improvements, private facilities and public safety.
M. Whenever necessary, after construction or maintaining any of Franchisee's
Facilities within the Rights -of -Way, the Franchisee shall, without delay, and at
Franchisee's sole expense, remove all debris and restore the surface disturbed by
Franchisee as nearly as possible to as good or better condition as it was in before
the work began. Franchisee shall replace any property corner monuments, survey
reference or equipment that were disturbed or destroyed during Franchisee's work
in the Rights -of -Way. Such restoration shall be done in a manner consistent with
applicable codes and laws and to the City's satisfaction and specifications where
applicable.
City of East Wenatchee
Ordinance 2020-09
Page 8 of 32
N. Within 3o 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 bylaw.
O. Within 3o 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.
City of East Wenatchee
Ordinance 2020-09
Page 9 of 32
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.
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 adjacent 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.
City of East Wenatchee
Ordinance 2020-09
Page 10 of 32
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. 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.
City of East Wenatchee
Ordinance 2020-09
Page 11 of 32
Section 9. Safety and Maintenance Requirements.
A. All work authorized and required under this Franchise will be performed in a
safe, thorough, and workmanlike manner.
B. Franchisee, in accordance with applicable federal, state, and local safety
requirements shall, at all times, employ ordinary care and shall use commonly
accepted methods and devices for preventing failures and accidents which are
likely to cause damage, injury, or nuisance to occur. All facilities, wherever situated
or located, shall at all times be kept in a good, safe, and suitable condition. If a
violation of a safety code or other applicable regulation is found to exist by the City,
the City may, after discussions with Franchisee, establish a reasonable time for
Franchisee to make necessary repairs. If the repairs are not made within the
established time frame, the City may make the repairs itself at the cost of the
Franchisee or have them made at the cost of Franchisee.
C. If Franchisee fails to commence, pursue or complete any work required by law, this
Franchise or any applicable permit to be done in any public way within the time
prescribed and to the satisfaction of the City, the City may at its discretion cause
the work to be done. Franchisee shall pay to the City the reasonable costs of the
work in an itemized report provided by the City to Franchisee within 3o 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.
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Ordinance 2020-09
Page 12 of 32
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 w. Removal of Unauthorized Facilities. Within 3o 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 godays;
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 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
City of East Wenatchee
Ordinance 2020-09
Page 13 of 32
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 6o 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:
(1) Engineering plans, specifications and a network map of the proposed
facilities and their relation to existing facilities, in a format and media
requested by the City in sufficient detail to identify:
a. The location and route of the proposed facilities;
b. When requested by the City, the location of all overhead and
underground public utility, telecommunication, cable, water, sewer,
drainage and other facilities in the public way along the proposed
route;
C. When requested by the City, the location(s), if any, for
interconnection with the telecommunication facilities of others;
d. The specific trees, structures, improvements, facilities and
obstructions, if any, that Franchisee proposes to temporarily or
permanently alter, remove or relocate.
City of East Wenatchee
Ordinance 2020-09
Page 14 of 32
(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
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 colocation 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 (8o)
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,
City of East Wenatchee
Ordinance 2020-09
Page 15 of 32
or adversely affect public health, safety or welfare, that the optical cable
connection is constructed and installed to conform to all federal, state, local, and
industry codes, rules, regulations, and standards, and that the optical cable
connection does not damage or impair the City's public way or property.
C. The requirements of this section do not apply to repair or maintenance of a
previously approved overhead facility; provided that the location and size of the
previously approved facility is not materially changed, that no additional new
facilities are constructed or installed, that the repair or maintenance activities are
conducted in accordance with good engineering, repair, and maintenance
practices and do not interfere with the public use of the public ways, or adversely
affect public health, safety, or welfare, that maintenance or repair activities
conform to all federal, state, local, and industry codes, rules, regulations, and
standards, and that the repair or maintenance activities comply with the Municipal
Code.
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.
City of East Wenatchee
Ordinance 2020-09
Page 16 of 32
(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 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.
City of East Wenatchee
Ordinance 2020-09
Page 17 of 32
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.
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,OOO,OOO.00 for bodily injury or death to each person;
(2) $5,OOO,OOO.O0 for property damage resulting from any one accident; and
(3) $5,OOO,OOO.O0 for umbrella coverage for all other types of liability.
B. Automobile liability for owned, non -owned and hired vehicles with a limit of
$3,OOO,OOO.O0 for each person and $3,OOO,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
City of East Wenatchee
Ordinance 2020-09
Page 18 of' 2
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:
"It is hereby understood and agreed that this policy may not be
canceled nor the intention not to renew be stated until go 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 3o 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:
City of East Wenatchee
Ordinance 2020-09
Page 19 of 32
(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.
C. Franchisee shall replenish the security fund within fourteen (14) days after
written notice from the City that there is a deficiency in the amount of the fund.
D. Insufficiency of the security fund shall not release or relieve Franchisee of any
obligation or financial responsibility.
Section 17. Taxes, Charges, and Fees.
A. RCW 35.2i.86o prohibits the City from imposing a franchise fee on a franchisee
who is conducting a telephone business. Franchisee represents that it will use the
City's rights -of -way for a telephone business purpose as defined by RCW
82.16.010. If this prohibition is removed or does not apply, Franchisee agrees to
pay the City an annual franchise fee of $4,000. 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 $1,5OO.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 bylaw.
D. In addition to penalties and other remedies for which Franchisee maybe 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 (l00%) of the costs of construction or installation of such structures.
City of East Wenatchee
Ordinance 2020-09
Page 20 of 32
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 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. 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 i9. Access to Facilities and Universal Service. 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.
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 3o 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.
City of East Wenatchee
Ordinance 2020-09
Page 21 of 32
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.
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 (1o) 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.
City of East Wenatchee
Ordinance 2020-09
Page 22 of 32
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 (15o) days
prior to the proposed date of assignment, transfer, or disposal:
(1) Complete information setting forth the nature, terms and conditions of the
proposed assignment, transfer, or disposal;
(2) Any other information reasonably required by the City; and
(3) A transfer application fee in an amount to be determined by the City to
recover actual administrative costs directly related to receiving and
approving the proposed assignment, transfer, or disposal.
D. No assignment, transfer, or disposal may be made or shall be approved unless the
assignee or transferee has the legal, technical, financial, and other requisite
qualifications to operate, maintain, repair, and remove facilities constructed or
installed pursuant to this Franchise and to comply with the terms and conditions
of this Franchise.
E. Any transfer, assignment, or disposal of rights, privileges, and authority under this
Franchise or ownership or working control of facilities constructed or installed
pursuant to this Franchise, without prior written approval of the City pursuant to
this section, shall be void and is cause for termination of this Franchise.
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.
H. Any transaction which otherwise might be an assignment or transfer subject to
these provisions, but after which Rob Oyler remains an officer of Franchisee, shall
be deemed not to be an assignment or transfer.
City of East Wenatchee
Ordinance 2020-09
Page 23 of 32
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 material 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;
() 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.
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 3odays 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.
City of East Wenatchee
Ordinance 2020-09
Page 24 of 32
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;
U 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.
Section 27. Notices.
A. Any regular notice or information required or permitted to be given to the parties
under this Franchise may be sent to the following addresses unless otherwise
specified:
The City: City of East
Wenatchee Attn:
Mayor
2719th St. N.E.
East Wenatchee, WA 98802
Franchisee: WANRack, LLC
15700 College Blvd, Ste. 200
Lenexa, Ks. 66219Attn: Rob Oyler
City of East Wenatchee
Ordinance 2020-09
Page 25 of 32
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.
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.
City of East Wenatchee
Ordinance 2020-09
Page 26 of 32
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.
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.
City of East Wenatchee
Ordinance 2020-09
Page 27 of 32
E. Costs and Attorneys' Fees. If any action or suit arises in connection with this
Franchise, the substantially prevailing parry 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 parry is authorized
to, nor shall either parry 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 subject 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 not in any manner prevent the City from granting other or
further franchises in, on, across, over, along, under or through any public way.
L. Rights Granted. This Franchise does not convey any right, title or interest in public
ways, but shall be deemed only as authorization to enter, occupy, or use public
ways for the limited purposes and terms stated in this Franchise. Further, this
Franchise shall not be construed as any warranty of title.
M. Contractors and Subcontractors. Franchisee's contractors and subcontractors
must be licensed and bonded in accordance with the City's ordinances, rules, and
regulations. Work by contractors and subcontractors is subject to the same
restrictions, limitations, and conditions as if the work were performed by
Franchisee.
Section 35. Publication. The City Clerk is authorized and directed to publish a
summary hereof.
City of East Wenatchee
Ordinance 2020-09
Page 28 of 32
Section 36. Effective Date. This ordinance shall be in full force and effect five days
from and after its passage, approval and publication as required by law, but if, and only
if, the Franchisee has endorsed this ordinance and accepted its terms and conditions
within 3o days of its passage.
PASSED by the City Council of the City of East Wenatchee, at a regular meeting on the
day of August 2020.
The City of East Wenatchee, Washington
By o�
Jerril Crawford, Mayor
Authenticated:
Maria Holman, City Clerk
Approved as to form only:
oux.'--r- K�L
evin Poulson, Ci Attorney
Filed with the City Clerk: _7/15/2020
Passed by the City Council: _8/4/2020_
Published: _8/8/2020_
Effective Date: _8/13/2020
ACCEPTANCE:
By: —
Printed N,,
Title: CEO
Rob Oyler
City of East Wenatchee
Ordinance 2020-09
Page 29 of 32
Summary of
the City of East Wenatchee, Washington
Ordinance No. 2020-09
On the _4th day of August 2020, the City Council of the City of East Wenatchee,
Washington approved Ordinance No. 2020- og, the main point of which maybe
summarized by its title as follows:
An Ordinance of the City of East Wenatchee granting a non-exclusive Franchise to
WANRack, 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 _4L day of August 2020.
-mawL z. VoUnajt_
Maria Holman, City Clerk
City of East Wenatchee
Ordinance 2020-09
Page 30 of 32
FIFTH THIRD BANK
LETTER OF CREDIT NO. S509381
ISSUER:
FIFTH THIRD BANK, N.A.
BENEFICIARY:
CITY OF EAST WENATCHEE
271 9TH N.E.
EAST WENATCHEE, WA 98802
ATTN: DEVIN POULSON
APPLICANT:
WANRACK, LLC
15700 COLLEGE BLVD SUITE 200
LENEXA, KS 66219
LETTER OF CREDIT NO: S509381
ISSUE DATE: JANUARY 07, 2021
EXPIRATION DATE: JANUARY 07, 2022
EXPIRATION PLACE: AT OUR COUNTERS
AMOUNT: 8,000.00 USD EIGHT THOUSAND AND 00/100
PAGE 1
WE HAVE BEEN INFORMED THAT THIS STANDBY IS ISSUED TO FULFILL THE
REQUIREMENTS OF THAT CERTAIN FRANCHISE AGREEMENT (CITY OF EAST
WENATCHEE ORDINANCE NO. 2020-09) ENTERED INTO BETWEEN THE CITY OF EAST
WENATCHEE ("CITY") AND WANRACK, LLC ("PRINCIPAL").
ISSUER HEREBY ISSUES IN FAVOR OF CITY THIS IRREVOCABLE STANDBY LETTER
OF CREDIT ("STANDBY") IN THE MAXIMUM AGGREGATE AMOUNT OF $8,000.00
WHICH IS AVAILABLE BY PRESENTATION OF THE FOLLOWING DOCUMENTS:
1. CITY'S WRITTEN AND DATED STATEMENT, SIGNED BY CITY'S CITY ATTORNEY,
CERTIFYING: "THERE HAS BEEN LOSS, DAMAGE, OR LIABILITY RESULTING FROM
PRINCIPAL'S PERFORMANCE OR NON-PERFORMANCE OF ITS DUTIES AND
OBLIGATION UNDER THE FRANCHISE AGREEMENT, OR FROM THE NEGLIGENCE, ACT
OR OMISSION OF ITSELF, ITS AGENTS OR EMPLOYEES (AS SUBSTANTIATED BY
THE ATTACHED DETAILED REPORT) IN THE AMOUNT HEREBY DEMANDED, WHICH
AMOUNT IS NOW DUE AND PAYABLE."
FIFTH THIRD SANK
LETTER OF CREDIT NO. S509381
2. CITY'S WRITTEN REPORT DETAILING AMOUNT DUE AND OWING.
PAGE 2
ISSUER ENGAGES WITH CITY THAT DOCUMENTS PRESENTED UNDER AND IN
COMPLIANCE WITH THE TERMS OF THIS STANDBY WILL BE HONORED IF PRESENTED
DURING BUSINESS HOURS ON OR BEFORE THE EXPIRATION DATE AT FIFTH THIRD
BANK, N.A., TRADE SERVICES, 5050 KINGSLEY DRIVE, MD 1MOCBR,
CINCINNATI, OH 45263. PAYMENT AGAINST A COMPLYING PRESENTATION SHALL
BE MADE BY WIRE TRANSFER TO A DULY REQUESTED ACCOUNT OF CITY.
THIS STANDBY IS ISSUED SUBJECT TO THE INTERNATIONAL STANDBY PRACTICES
1998 ("ISP98"), INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION 590.
%1
VITO RAGO
OFFICER
ELA LEKARCZYK
OFFICER