HomeMy WebLinkAbout5211 1 ORDINANCE NO. 5 2 i 1
2
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN,
3 WASHINGTON, (HEREAFTER REFERRED TO AS THE CITY) AUTHORIZING
THE MAYOR AND CITY CLERK TO EXECUTE A FRANCHISE AGREEMENT
4 BETWEEN THE CITY AND ELECTRIC LIGHTWAVE, INC., (HEREAFTER
REFERRED TO AS ELI).
5
6 WHEREAS, on March 13, 1998, the City determined that
7 ELI's application for a telecommunications franchise was
8 complete; and
9 WHEREAS, a public hearing was conducted January 19, 1999
]0 regarding the City entering into a franchise agreement with
11 ELI; and
12 WHEREAS, it has been determined that ELI, has the
13 financial, technical and legal ability to provide the services
14 proposed in its application; and
]5 WHEREAS, there is capacity in the City's Public Ways, as
16 defined in the franchise agreement, to accommodate ELI'S
17 proposed facilities as well as additional utility and
]8 telecommunications facilities; and
19 WHEREAS, the grant to use the Public Ways, as defined in
20 the franchise agreement, is in the public interest and the
2] effect, if any, on the public health, safety and welfare is
22 minimized and addressed in the franchise agreement; and
23 WHEREAS, the service ELI will provide to the community
24 and region is in the public interest; and
25
26
Ordinance No. 5211
January 13, 1999
Page 1
1 WHEREAS, the franchise agreement requires that applicable
2 federal and state telecommunication laws, regulations and
3 policies are followed during the term of the franchise
4 agreement.
5 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
6 KING COUNTY, WASHINGTON, DO ORDAIN AS FOLLOWS:
7 Section 1. The Mayor and City Clerk of the City of
8
Auburn are hereby authorized to execute a Franchise Agreement
9
between the City and ELECTRIC LIGHTWAVE, INC. A copy of said
10
Agreement is attached hereto, designated as Exhibit "A" and
11
incorporated herein by this reference into this Ordinance.
Section 2. The Mayor is hereby authorized to implement
13
such administrative procedures as may be necessary to carry
]4
out the directives of this legislation.
15
Section 3. This Ordinance shall take effect and be in
17 force five days from and after its passage, approval and
]8 publication as provided by law.
19
20
21
22
23
24
26
Ordinance No. 5211
January 13, 1999
Page 2
]
2 INTRODUCED: February 1, 1999
PASSED: Feb~_~ry 1, 1999
4
5 APPROVED: FebD~ry 1, 1999
CHARLES A. BOOTH
8 MAYOR
9
10 ATTEST:
]1
~'elle E. Daskam,
13 City Clerk
14
15
APPROVED AS TO FORM:
~2 M'chmae~lds
City Attorney
19
20
2] Published:
22
23
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26
Ordinance No. 5211
January 13, 1999
Page 3
CITY OF AUBURN, WASHINGTON
FRANCHISE AGREEMENT WITH ELECTRIC LIGHTWAVE, INC.
WHEREAS, ELECTRIC LIGHTWAVE, INC. has applied to the CITY OF AUBURN
for a non-exclusive Franchise for the attachment, installation, operation and maintenance of a
Fiber-Optics Telecommunications System network in, on, upon, along and/or across certain
Public Ways within the CITY OF AUBURN.
NOW, THEREFORE, the CITY OF AUBURN, hereinafter referred to as "CITY" and
ELECTRIC LIGHTWAVE, INC. hereinafter referred to as "ELI" agree as follows:
TABLE OF CONTENTS
FRANCHISE AGREEMENT WITH ELECTRIC LIGHTWAVE
SECTION PAGE NO.
1. Definition of Terms. 7
1.1. Agency 7
1.2. Affiliate 7
1.3. Cable Act 7
1.4. City Costs 7
1.5. City Property 7
1.6. Communication Service 7
1.7. Dark Fiber 8
1.8. Electric Lightwave, Inc. 8
1.9. Emergency 8
1.10. Excess Capacity 8
1.11. Facilities 8
1.11 .a. Overhead Facilities 8
1.11 .b. Telecommunication Facilities 8
1.11 .c. Underground Facilities 9
1.12. FCC 9
1.13. Franchise 9
Exhibit "A", Ordinance No. 5211
ELECTRIC LIGHTWAVE, INC. Franchise Agreement
November 13, 1998
Page 1 of 58
1.14. Franchise Area 9
1.15. Franchise Authority 9
1.16. Franchisee 9
1.17. Gross Revenue 10
1.18. Hubbing Service 10
1.19. Person 10
1.20. Property of Franchisee 11
1.21. Public Way 11
1.22. Subscriber or Customer 11
1.23. Surplus Space 11
1.24. Telecommunication System 11
1.25. The Act 11
1.26. Usable Space 11
2. Terms of Franchise. 12
2.1. Grant of Authority, Franchise and
Permits Required: 12
2.1 .a. Nonexclusive Franchise 12
2.1.b. No Grant of Cable TV 12
2.1.c. Limitation of Authority 13
2.1 .d. Franchise Required 13
2.1.e. Compliancewith
Applicable Law, Rules,
Regulations and Orders 13
2.2. Franchises and Franchise Agreements. 13
2.2.a. City Discretion 13
2.2.b. Future Franchises 14
2.2.c. Terms and Conditions 14
2.2.d. Modifications of Franchise 14
2.2.e. Responsibility for Costs 14
3. Application and Determination. 14
3.1 Application. 15
3.1 .a. Provision Intent 15
3.1 .b. Map of Existing Facilities 15
3.1 .c. Description of Services 15
3.1 .d. Description of Access and
Line Extension Policies 15
3.1.e. Service Area 15
3.1 .f. Provision of Service and
Use of Utility Poles 15
ELECTRIC LIGHTWAVE, INC. Franchise Agreement
November 13, 1998
Page 2 of 58
3.1 .g.FCC Licenses and Certificates 15
3.1 .h.Franchise and Other
Washington Cities 15
3.1. i. Other Requested Information 16
3.2. Determination. 16
3.2.a. Financial and Technical Ability 16
3.2.b. LegalAbility 16
3.2.c. Facilities Accommodation 16
3.2.d. Additional Facilities
Accommodation 16
3.2.e. Damage or Disruption 16
3.2.f. Minimizing Disruption Cost 16
3.2.g. Service 16
3.2.h. Public Health, Safety and Welfare 16
3.2.i. Alternate Routes 16
3.2.j. Federal and State Laws 16
3.2 .k.Other Factors 17
4. Acceptance, Effective Date. 17
5. Police Powers. 17
6. Rules and Regulations of the City 18
7. Administration. 18
8. Annexation. 18
9. Reeulation of the Use of Public Ways. 18
9.1. Conditions of Street Occupancy 18
9.1 .a.Compliance with One Number
Locator Service 19
9.1.b. Maintenance of Facilities 19
9.1.c. Damage to Facilities 19
9.2. Approval of Plans and Specifications 19
9.2.a. Construction Permits 19
9.2.b. Location of Facilities 19
9.3. Restoration of Public Ways 20
9.4. Relocation/Removal 21
9.5. Building Moving 21
10. Tree Trimming. 22
ELECTRIC LIGHTWAVE, INC. Franchise Agreement
November 13, 1998
Page 3 of 58
11. Safety Requirements, 23
12. Use, Rental or Lease of Utility Poles
and Facilities. 24
13. Undergrounding and Landscaping. 24
14. City Use of Franchisee's Poles and Facilities. 25
14.1. City Expense 25
14.2. City Owned Facilities 25
14.3. No Pole or Trench Charge 25
14.4. City Option to Install 25
15. Use of Franchisee's Poles and
Facilities by Others. 26
16. Capacity Sharine and Co-Location. 26
16.1. Timely and Feasible 26
16.2. Agreement to Compensate ELI 26
16.3. Reservation of ELI Capacity 26
17. Construction in Right-of-way. 27
17.1. Notification to City Public
Works Department. 27
17.2. Facility Planning. 27
17.3. Notice of Entry Private Property. 28
17.4. Installation. 29
17.5. Record of Installation. 29
17.6. Shared Use of Excavations. 30
17.7. Interference with Use of Public Ways. 30
17.8. Coordination of Work. 31
17.8 .a. Schedule of Construction 31
17.8.b. Meet to Coordinate 31
17.8.c. Minimize Inconvenience 31
18. Transfer or Assigument of
Franchise Agreement. 31
!9. Removal and/or Abandonment of
ELECTRIC LIGHTWAVE, INC. 'S Property. 32
ELECTRIC LIGHTWAVE, INC. Franchise Agreement
November 13, 1998
Page 4 of 58
20. Franchise Application, Fees, Conlpensation,
Char~es, Reporting Requirements,
Franchise Transfer and Best Rates. 33
20.1. Franchise Application and Fee. 33
20.2. Administrative Fee. 33
20.3. Other Required Permits or Inspections. 33
20.4. Compensation for Use of Public Ways. 34
20.4.a. CITY'S Reservation Rights 34
20.4.b. Utility Tax Liability 35
20.4.c. Quarterly Payment 35
20.4.d. Late Payment 35
20.5. Fees and Compensation Not a Tax. 35
20.6. Compensation to CITY. 36
20.7. Quarterly Report. 36
20.8. Recalculation at End of
Compensation Year. 36
20.9. Taxes are Not to be a Credit. 36
20.10. Rights of CITY. 37
20.11. AnnualReport. 37
20.12. Circumventing Payments. 37
20.13. Comparable Rates. 37
21. Accounts, Books and Records. 38
21.1. CITY to be Informed. 38
21.2. Accounts. 38
21.2.a. Complete and Accurate Books 38
21.2.b. CITY'S Existing Legal Boundaries 38
21.3. Access to Records. 39
21.4. Duty to Provide Information. 39
21.4.a. Compliance 40
21.4.b. Collection and Payment 40
21.5. FCC and other Filings. 40
22. Indemnification, Insurance, and 40
Bonds or other Surety.
22.1. Indemnification. 40-42
22.2. Insurance. 43
22.2.a. Commercial General
Liability Insurance 43
22.2.b. Automobile Liability Insurance 44
22.3. Performance Bond. 44
22.4. Recourse Against Bonds. 45
22.4.a. Recourse. 45
ELECTRIC LIGHTWAVE, INC. Franchise Agreement
November 13, 1998
Page 5 of 58
22.4.b. Restoration. 45
22.4.c. Rights of CITY. 45
23. Default. 46
24. Enforcement and Termination of Franchise. 47
24.1. Notice of Violation. 47
24.2. ELI'S Right to Cure or Respond. 47
24.3. Public Hearing. 47
24.3.a. Standards for Revocation or
Lesser Sanctions 48
24.4. Enforcement. 49
24.4.a. Foreclosure 49
24.4.b. Monetary Damages 49
24.4.c. CITY May Act 49
24.4.d. Breach of Franchise 49
24.4.e. Specific Performance 49
24.5. Acts of God. 49
25. Franchise Amendment. 50
26. Tariff ChanCes. 50
27. Miscellaneous Provisions. 51
27.1. Action of CITY. 51
27.2. Notice. 52
27.3. Descriptive Headings. 53
27.4. ELI Availability. 53
27.5. Venue of any Court Action. 53
27.6. Exhibits. 53
27.7. Action by the FCC. 53
28. Severability. 54
Signatures 54-56
Exhibit A 57
Exhibit B 58
ELECTRIC LIGHTWAVE, INC. Franchise Agreement
November 13, 1998
Page 6 of 58
1. Definition of Terms.
1.1. "Agency" means any governmental agency or quasi-governmental agency,
including, but not limited to, the FCC and the WUTC or successor governmental entities
thereto.
1.2. "Affiliate" means an entity which (directly or indirectly) owns or controls, is
owned or controlled by, or is under common ownership with Franchisee. For purposes of this
definition, the term "own" means to own an equity interest (or the equivalent thereof) of more
than ten (10) percent.
1.3. "Cable Act" means the Federal Cable Communications Policy Act of 1984, as
amended.
1.4. "City Costs" means that whenever the CITY incurs costs related to enforcing
the terms of this agreement, ELI'S obligation for reimbursement will be limited to those costs
that are reasonable, documented and in accordance with RCW 35.21.860.
1.5. "City Property" means and includes all real property owned by the CITY, other
than Public Ways and utility easements as those terms are defined herein, and all property held
in a proprietary capacity by the CITY, which are not subject to right-of-way licensing and
franchising as provided herein.
1.6. "Communication Service" shall mean any communication services provided
by ELI covered by the terms of this Franchise agreement over its "Telecommunication System"
(as hereinafter defined) either directly or as a carrier for its subsidiaries, Affiliates or any other
Person engaged in Communication Services, including, but not limited to, transmission of
voice, data or other electronic intelligence, facsimile reproduction, burglar alarm, meter reading
ELECTRIC LIGHTWAVE, INC. Franchise Agreement
November 13, 1998
Page 7 of 58
and home shopping. However, Communication Service shall not include cable television
services as defined under the Cable Act for which a separate Franchise would be required to
provide such cable television services, nor shall it include video dialtone service as defined by
the FCC in which a separate Franchise would also be required to provide such video dialtone
services.
1.7 "Dark Fiber" means individual or multiple optic fibers to which no optronics
are connected by the Franchisee.
1.8 "ELECTRIC LIGHTWAVE, INC." and/or (ELI) means the corporation and
its respective successors and assigns.
1.9. "Emergency" means a condition of imminent danger to the health, safety and
welfare of Persons or property located within the CITY including, without limitation, damage
to Persons or property from natural consequences, such as storms, earthquakes, dots or wars.
1.10. "Excess Capacity" means the volume or capacity in any existing or future duct,
conduit, manhole, handhole or other utility facility within the Public Way that is or will be
available for use for additional telecommunications facilities.
1.11. "Facilities" includes "Overhead Facilities", "Telecommunication Facilities" and
"Underground Facilities":
1.11.a. "Overhead Facilities" means utility poles, utility facilities and
telecommunications facilities located above the surface of the ground, including the
underground supports and foundations for such facilities;
1.11.b. "Telecommunication Facilities" means the plant, equipment and
property, including but not limited to, cables, wires, conduits, ducts, pedestals, antennae,
ELECTRIC LIGHTWAVE, INC. Franchise Agreement
November 13, 1998
Page 8 of 58
electronics and other appurtenances used or to be used to transmit, receive, distribute, provide
or offer telecommunications services; and
1.11 .c. "Underground Facilities" means utility and telecommunication facilities
located under the surface of the ground, excluding the underground foundations or supports for
overhead facilities.
1.12. "FCC" means Federal Communications Commission, or successor
governmental entity thereto.
1.13. "Franchise" shall mean the initial authorization, or renewal thereof, approved
by an ordinance of the CITY, which authorizes the Franchisee to construct, install, operate, or
maintain Telecommunications Facilities in, under, over, or across Public Ways of the CITY and
to also provide telecommunications service to Persons or areas in the Franchise Area (the
CITY).
1.14. "Franchise Area" means any, every and all of the Public Ways, highways
within the CITY as now laid out, platted, dedicated or improved; and any, every and all roads,
streets, avenues, alleys and highways that may thereafter be laid out, platted, dedicated or
improved within the present limits of the CITY and as such limits may be hereafter extended.
1.15. "Franchise Authority" means the CITY OF AUBURN or the lawful successor,
transferee, or assignee thereof.
1.16. "Franchisee" means ELECTRIC LIGHTWAVE, INC., a Delaware corporation,
or the lawful successor, transferee, or assignee thereof, with the consent as required in this
Franchise agreement.
ELECTRIC LIGHTWAVE, INC. Franchise Agreement
November 13, 1998
Page 9 of 58
1.17. "Gross Revenue" shall mean all receipts collected by Franchisee for all
communications and communication-related operations and services within the corporate limits
of the CITY as well as any other revenue arising from operation or possession of this Franchise
agreement, less the application and administrative fees mandated in Sections 20.1 and 20.2 of
this Franchise agreement and the Franchise fee mandated by Section 20.4 herein. By way of
example, but without limitation, Gross Revenue includes all revenues from the sale or lease of
customer premise equipment, installation charges, access charges paid to Franchisee by other
carriers~ charges to customers, subscribers and other users of the Telecommttnication System,
and the lease or re-sale of Facilities or circuit paths to third parties. Gross Revenues does not
include: (a) taxes, fees, or assessments of any kind or description imposed on or levied against
Franchisee which are not applicable to all other Persons or entities doing business within the
CITY, (b) revenues uncollectible from customers (bad debts) which have been written off
through generally accepted accounting practices, and (c) discounts. Such definition shall
comply with RCW 35.21.714.
1.18. "Hubbing Service" means the aggregation and/or disaggregation of customer
services from customer locations.
1.19. "Person" means an individual, corporation, partnership, limited liability
company, general or limited partnership, sole proprietorship, joint stock company, trust
corporation, business trust, any other form of business association or entity, or a governmental
entity.
ELECTRIC LIGHTWAVE, INC. Franchise Agreement
November 13, 1998
Page 10 of 58
1.20. "Property of Franchisee" means all property owned, installed or used by
Franchisee in the conduct of its business in the CITY under the authority of the Franchise
granted herein.
1.21. "Public Way" shall mean the surface, the air space above the surface and the
area below the surface of any public street, including, but not limited to, any public alley,
boulevard, drive, right-of-way or sidewalk under the jurisdiction of the CITY.
1.22. "Subscriber" or "Customer" means a person or user of the Telecommunication
System who lawfully receives Communication Services or other service therefrom with
Franchisee's express permission.
1.23. "Surplus Space" means that portion of the usable space on a utility pole which
has the necessary clearance from other pole users, as required by the federal or state law, rules,
regulations and/or orders, to allow its use by a telecommunications carrier for a pole
attachment.
1.24. "Telecommunication System" shall mean ELI's system of conduits, fiber
optics cable and Facilities designed and constructed for the purpose of producing, receiving,
amplifying or distributing by audio, video or other forms of electronic or electric signals to or
from subscribers or locations within the CITY.
1.25. "The Act" means the Federal Telecommunications Act, January 31, 1996.
1.26. "Usable Space" means the total distance between the top of a utility pole and
the lowest possible attachment point that provides the minimum allowable
vertical clearance as specified in any federal or state law, rules, regulations or
orders.
ELECTRIC LIGHTWAVE, INC. Franchise Agreement
November 13, 1998
Page 11 of 58
2. Terms of Franchise.
2.1. Grant of Authority, Franchise and Permits Required:
2.1 .a. The CITY hereby grants to ELI a nonexclusive Franchise for a term of
five (5) years which authorizes ELI to construct and operate for transmission its
Telecommunication System within the Public Way and offer Communication Services
for distribution and sale within the Franchise Area. Within the Franchise Area ELI may
erect, install, construct, repair, replace, reconstruct, maintain, or retain within any Public
Way and all extensions thereof and additions thereto, such poles, Facilities, conductors,
amplifiers, appliances, attachments and other related property or equipment as may be
necessary or appurtenant to the Communications System subject to CITY review and
any other applicable laws, ordinances, regulations, codes, rules or orders. This
Franchise does not provide ELI exclusive use of any CITY poles or property provided.
However, during the term of this Franchise, the CITY agrees to obtain in writing from
any future telecommunication provider, covenants that, subsequent to the installation by
ELI of its Telecommunication System in accordance with the terms and
conditions of this Franchise, (a) such new provider shall not install new equipment if
such equipment causes interference with ELI'S operations and (b) that in the event such
interference occurs, such provider shall immediately take all steps necessary to
eliminate such interference.
2.1.b. This Franchise agreement does not grant ELI the right to use such
Facilities for Cable Television. No privilege or exemption shall be granted or conferred
ELECTRIC LIGHTWAVE, INC. Franchise Agreement
November 13, 1998
Page 12 of 58
on ELI except those specifically prescribed herein, and any use of any Public Way shall
be consistent with any prior and future lawful occupancy of the Public Way or any
subsequent improvement or installation therein.
2.1 .c. This grant of authority to provide the services described herein shall be
limited solely to those services expressly described and no others. In the event of any
ambiguity, this Franchise agreement shall be strictly construed as to the rights granted
herein.
2.1.d. No Person shall construct or operate a Communications System nor
provide a Communications Service in the CITY without a Franchise granted by the
CITY and a Franchise agreement executed by the CITY and the Franchisee.
2. 1 .e. ELI is at all times subject to and must comply with all applicable federal,
state and local laws, including but not limited to, Chapter 5.84 ACC, entitled
"Registration of Telecommunications Carriers, Operators, Proriders, and Other
Commercial Utilities", Title 12 ACC, entitled "Streets, Sidewalks, and Public Works",
Chapter 13.32 ACC, entitled "Underground Wiring Regulations", Title 18, entitled
"Zoning", Title 20 ACC entitled "Telecommunications and Other Commercial
Utilities", and any other ordinances, codes, rules, regulations and orders as they apply.
ELI shall at all times be subject to the exercise of the CITY' S police powers.
2.2. Franchises and Franchise Agreements:
2.2.a. The CITY may grant Franchises to other telecommunication proriders at
its sole discretion.
ELECTRIC LIGHTWAVE, INC. Franchise Agreement
November 13, 1998
Page 13 of 58
2.2.b. All future Franchises granted by the CITY shall be nonexclusive, and
issuance of this Franchise does not expressly or implicitly preclude the issuance of other
Franchises, or affect the CITY'S right to use or authorize the use of its Public Ways to
other Persons as it determines appropriate.
2.2.c. The terms, conditions and provisions of this Franchise agreement when
fully executed, together with all applicable laws, ordinances, codes, rules, regulations
and orders, enacted now or in the future, shall define the rights and obligations of ELI
and the CITY relating to the Franchise.
2.2.d. The CITY may modify this Franchise agreement consistent with its
police powers as follows:
1. At the time of renewal, transfer, or other disposition;
2. Upon giving sixty (60) days written notice of the proposed
modification, provided ELI is given an opportunity to present arguments to the
CITY against the modification or altematives in lieu thereof; and
3. If there is any inconsistency between this Franchise agreement
and governing laws, statutes, ordinances, codes, regulations, rules or orders.
2.2.e. Except as expressly provided to the contrary, all costs incurred by ELI in
complying with this Franchise agreement or any applicable laws, ordinances, codes,
rules, regulations and/or orders or any action thereunder shall be the sole responsibility
of ELI and shall not be the responsibility of or charged to the CITY.
3. Application and Determination.
ELECTRIC LIGHTWAVE, INC. Franchise Agreement
November 13, 1998
Page 14 of 58
3.1. Application. An applicant for a new Franchise to construct, operate, and
maintain a telecommunications system within the CITY shall file an application in a form
prescribed by the CITY, accompanied by a non-refundable filing fee in the amount of Two
Thousand Five Hundred Dollars ($2,500.00). Information submitted by Franchisee applicant
with its application shall include the following:
3.1.a. Whether the applicant intends to provide cable service, video dialtone
service or other video programming service, and sufficient information to determine
whether such service is subject to cable franchising;
3.1.b. An accurate map showing the location of any existing
Telecommunications Facilities in the CITY that applicant intends to use or lease;
3.1 .c. A description of the services or Facilities that the applicant will offer or
make available to the CITY and other public, educational, and governmental
institutions;
3.1 .d. A description of applicant's access and line extension policies;
3. 1 .e. The area or areas of the CITY the applicant desires to serve and an initial
best estimate phased schedule for build-out over the next 5 years;
3.1.f. The applicant's intended means and methods of providing service and
whether shared use of other utility poles or conduits is envisioned;
3.1 .g Documentation of all FCC licenses and equipment certifications required
by the FCC;
3.1.h A list of all cities in Washington where the applicant has obtained a
Franchise; and
ELECTRIC LIGHTWAVE, INC. Franchise Agreement
November 13, 1998
Page 15 of 58
3.1 .i. Such other and further information as may be requested by the CITY.
3.2. Determination. The CITY shall issue a written determination granting or
denying the application in whole or in part. Prior to granting or denying this Franchise
agreement, the City Council shall conduct a public heating and make a decision based upon the
standards set forth below.
3.2.a. The financial and technical ability of the applicant;
3.2.b. The legal authority of the applicant;
3.2.c. The capacity of the Public Ways to accommodate the applicant's
proposed Facilities;
3.2.d. The capacity of the Public Ways to accommodate additional utility and
Telecommunications Facilities if the Franchise is granted;
3.2.e. The damage or disruption, if any, of public or private Facilities,
improvements, service, travel or landscaping if the Franchise is granted;
3.2.f. The public interest in minimizing the cost and disruption of construction
within the Public Ways;
3.2.g. The service that applicant will provide to the community and region;
3.2.h. The effect, if any, on public health, safety and welfare if the Franchise
requested is granted;
3.2.i. The availability of alternate routes and/or locations for the proposed
Facilities;
3.2.j. Applicable federal and state telecommunication laws, regulations and
policies; and
ELECTRIC LIGHTWAVE, INC. Franchise Agreement
November 13, 1998
Page 16 of 58
3.2.k. Such other factors as may demonstrate that the grant to use the Public
Ways will serve the community interest. Pursuant to RCW 35A.47.040, the City
Council shall not approve this Franchise agreement until the next regularly scheduled
council meeting following the public hearing. If the application is denied, the written
determination shall include the reason for denial.
4. Acceptance, Effective Date.
ELI shall accept the Franchise granted pursuant hereto by signing this Franchise and the
statement of acceptance shown in Exhibit "A" and providing proof of compliance with the bond
and insurance requirements in Section 22, and filing same with the City Clerk or other
appropriate official of the CITY within thirty (30) days after the passage and final adoption of
this Franchise. If not accepted and filed as provided in this section within thirty (30) days, this
agreement shall be null and void and of no effect and no Franchise shall exist between the
CITY and ELI.
5. Police Powers.
In accepting this Franchise, ELI acknowledges that its fights hereunder are subject to
the police power of the CITY to adopt and enforce general ordinances necessary to protect the
safety and welfare of the public and ELI agrees to comply with all applicable general laws
enacted by the CITY pursuant to such power.
ELECTRIC LIGHTWAVE, INC. Franchise Agreement
November 13, 1998
Page 17 of 58
6. Rules and ReEulations of the City.
In addition to the inherent powers of the CITY to regulate and control any Franchise it
grants and those powers expressly reserved by the CITY or agreed to and provided for in this
Franchise, the fight and power is hereby reserved by the CITY to promulgate such additional
regulations as it may find necessary in the exercise of its lawful powers giving due regard to the
rights of ELI.
7. Administration.
The performance of ELI under this Franchise shall be under the general direction of the
Public Works Director or his/her designees who shall be the contact Person for all matters
relating to telecommunications, including but not limited to, any required notices,
correspondence, communications or actions.
8. Annexation.
In the event that any territory served by ELI is annexed to the CITY after the effective
date of this Franchise, such territory shall be governed by the terms and conditions contained
herein upon the effective date of such annexation.
9. Regulation of the Use of Public Ways.
9.1. Conditions of Street Occupancy. All transmission and distribution structures,
poles, other Facilities, and equipment installed or erected by ELI pursuant to the terms hereof
shall be located so as to cause a minimum of interference with the proper and lawful use of
Public Ways and to ensure the fights and reasonable convenience of property owners who own
property that adjoins any of said Public Ways. This Franchise is subject to the conditions set
forth in Chapter 20.10, ACC.
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November 13, 1998
Page 18 of 58
9.1 .a. Compliance with One Number Locator Service. Prior to permit issuance
the applicant must demonstrate proof of membership in the local "One Call Service"
providing underground location services in the CITY in accordance with RCW 19.122.
9.1 .b. Maintenance of Facilities. The Franchisee shall maintain its Facilities in
good and safe condition and in a manner that complies with all applicable federal, state
and local requirements.
9.1.c. Damage to Facilities. Unless directly and proximately caused by the
willful, intentional, or malicious acts by the CITY, the CITY shall not be liable for any damage
to or loss of any cable or telecommunications facility upon CITY Property or within the Public
Ways of the CITY as a result of or in connection with any public works, public improvements,
construction, excavation, grading, filling, or work of any kind on such CITY Property or within
the Public Ways by or on behalf of the CITY.
9.2. Approval of Plans and Specifications.
9.2.a. Construction Permits. Prior to commencing work in Public Ways, the
Franchisee is required to obtain Construction Permits for installing cable and
Telecommunications Facilities as required in Aubum City Code Chapter 12.24. Section
17 outlines the permit process.
9.2.b. Location of Facilities. All Facilities shall be constructed, installed, and
located in accordance with the following terms and conditions, unless otherwise
specified in this Franchise agreement.
1. The Franchisee must locate its cable or Telecommunications
Facilities underground in accordance with Aubum City Code Chapter 13.32.
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November 13, 1998
Page 19 of 58
2. The Franchisee must bear the full cost of discovering the existing
location of any existing conflicts, coordination of the engineering plans to
acquire the approvals of parties already in the ROW, and relocating and/or
mitigating such conflicts with pre-existing Facilities in conflict with the plans of
the Franchisee.
3. Whenever the CITY requires, the Franchisee shall relocate its
Facilities underground at no expense to the CITY. Such relocation shall be
made concurrently with other planned work to minimize the disruption of the
Public Ways as determined by the City Engineer. Where multiple parties are
responsible for completing the undergrounding, the Franchisee shall pay a pro-
rata share of the total project to include street restoration.
4. Whenever capacity in the ROW is exhausted, the burden to create
new capacity by consolidating Facilities will be solely the responsibility of all
the parties currently sharing the ROW. The CITY shall bear no cost of creating
new capacity. Interested parties must negotiate amongst themselves to arrive at
a mutually agreeable cost sharing arrangement. The CITY will regulate such
new capacity creation like any other street construction.
9.3. Restoration of Public Ways. If during the course of ELI'S construction,
operation, or maintenance of the Telecommunication System there occurs a disturbance of any
Public Way by ELI, ELI shall, at its expense, replace and restore such Public Way promptly
and to a condition reasonably comparable to the condition of the Public Way existing
immediately prior to such disturbance.
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November 13, 1998
Page 20 of 58
9.4. Reloeation/Removal. Whenever the CITY determines it is necessary that any
Facilities of ELI be removed or relocated to accommodate public safety, change in traffic
conditions, the improvement of any areas, including but not limited to, conversion of overhead
utilities to underground, the grading or widening of any street within the public right-of-way or
the repair or relocation of any CITY-owned utilities, or for removal of unauthorized Facilities,
ELI shall, within thirty (30) calendar days of written notice from the CITY, remove or relocate
such Facilities as directed, to an area within CITY Public Way mutually agreed upon, at no cost
to the CITY. ELI shall within the first 14 days after receipt of notice, communicate to the
CITY its intention, plan and schedule for said re-locations or removals. If ELI fails to comply
with the requirements of the initial 14-day period, the CITY has the unilateral right to proceed
with the necessary relocation and removal using its own employees or contractor, and ELI
agrees to reimburse the CITY all reasonable, documented costs for any relocation, removal or
delay costs incurred by the CITY and/or its contractors. ELI will design and install its system
in such manner that future relocations required by the CITY may be accomplished with least
interruption of services. In the event ELI fails to complete full performance within the thirty
(30) day period, ELI agrees to reimburse the CITY for all damages incurred by the CITY or its
contractors for delays of future CITY work in the Public Way related to equipment, conduit and
cable routing conflicts related to ELI'S failure to comply with the requirements of this
subsection.
9.5. Building Moving. Whenever any Person shall have obtained permission from
the CITY to use any street or Public Way for the purpose of moving any building, ELI, upon
seven (7) days written notice from the CITY, shall raise or remove, at the expense of the Person
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November 13, 1998
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desiring to move the building, any of ELI'S Facilities which may obstruct the relocation of
such building; provided, that the moving of such building shall be done in accordance with
regulations and general ordinance of the CITY. Where more than one street is available for the
moving of such building, the building shall be moved on such street as shall cause the least
interference and inconvenience to the public. In such event, the CITY shall have the authority
for and responsibility of determining the route to be utilized.
10. Tree Trimming.
Upon prior written approval of the CITY and in accordance with CITY ordinances, ELI
shall have the authority to reasonably trim trees upon and overhanging streets, Public Ways and
places in the Franchise Area so as to prevent the branches of such trees from coming in physical
contact with the Facilities of ELI. ELI shall be responsible for debris removal from such
activities. If such debris is not removed within twenty-four (24) hours of completion of the
trimming, the CITY may, at its sole discretion, remove such debris and charge ELI for the cost
thereof. This section does not, in any instance, grant automatic authority to clear vegetation for
purposes of providing a clear path for radio signals. Any such general vegetation clearing will
require a land clearing permit.
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November 13, 1998
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11. Safety Requirements and Emereency Notification.
ELI may be contacted at the following 24-hour telephone number in the event an
Emergency requires repair and/or relocation of any of its Facilities:
Primary Company Representative (Senior OSP Engineer):
Phone Number: (206) 812-2000
Emergency (24 hour; 7 day) Contact:
Phone Number: (800) 622-4354
Construction, installation, and maintenance of the Telecommunication System shall be
performed in an orderly and workmanlike manner. All such work shall be performed in
substantial accordance with applicable FCC or other federal, state, and local law and
regulations using commonly accepted methods and devices for preventing failure and accidents
which are likely to cause damage, injury, or nuisance to the public.
All Of ELI'S structures, Facilities, equipment and connections within Public Ways or
within the Franchise Area, wherever situated or located, shall at all times be kept and
maintained in a safe, suitable condition, and in good order and repair.
The CITY reserves the general right to see that ELI'S telecommunications system and
Telecommunications Facilities are constructed and maintained in a safe condition. If a
violation of the National Electrical Safety Code or other applicable ordinance(s) or
regulation(s) is found to exist by the CITY, ELI shall respond within a twenty-four (24) hour
period of time from receipt of notification of violation from the CITY to restore the
Telecommunications System and/or Telecommunications Facilities to a condition safe for the
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November 13, 1998
Page 23 of 58
public. If the repairs are not made within the established time flame, the CITY may make the
repairs itself or have them made and collect all reasonable costs thereof from ELI.
12. Use, Rental or Lease of Utility Poles and Facilities.
ELI may seek to contract with the holder or owner of any utility Franchise in the CITY
for the use, rental or lease of its or their poles and other structures and Facilities for the purpose
of extending, carrying or laying ELI' S Facilities, electronic conductors and other Facilities and
appurtenances necessary or desirable in conjunction with the operation of its
Telecommunication System. The CITY agrees that any public utility owning or controlling
such poles or other structures or Facilities may, without amendment to its Franchise, allow, and
is encouraged to allow, ELI to make such use thereof pursuant to any agreement reached
between such utility company and ELI. The CITY reserves the right, however, to refuse the use
of any or all of its utility poles and Facilities.
13. Undergrounding and Landscaping.
The purpose of this section is to declare the necessity to comply with the CITY'S
Underground Wiring Ordinance, Auburn City Code 13.32, entitled "Underground Wiring". In
those areas and portions of the CITY where the transmission or distribution Facilities of a
utility providing telephone service and those of a utility providing electric service or any other
service are underground, then ELI shall likewise construct, operate and maintain all of its
transmission and distribution Facilities which are not wireless in the same area underground
upon CITY approval. ELI shall seek and obtain such approvals as are necessary from other
affected utilities and such activities shall be accomplished in concurrence and cooperation with
the other affected utilities. Should landscaping be disrupted as a result of this activity, ELI will
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November 13, 1998
Page 24 of 58
restore the landscaping and associated irrigation to their reasonable pre-constmction appearance
and function.
14. City Use of Franehisee's Poles and Facilities.
With respect to poles and trenches which are Facilities and which are (1) wholly owned
by ELI and (2) within the Franchise Area, the CITY, subject to ELI'S prior written consent,
which may not be unreasonably withheld, may install and maintain CITY-owned overhead
Facilities upon such poles, and conduit in ELI'S opened trenches, for police, fire and other
noncommercial communications purposes, subject to the following:
14.1. Such installation and maintenance shall be completed at the CITY'S
expense and not alter ELI'S construction schedule;
14.2. ELI shall have no obligation under the indemnification provisions of this
Franchise for the installation or maintenance of such CITY-owned Facilities or
conduits.
14.3. ELI shall not charge the CITY a fee for the use of such poles or trenches
in accordance with this section as a means of deriving revenue therefrom; provided,
however, nothing herein shall require ELI to bear any cost or expense in connection
with such installation and maintenance of CITY-owned Facilities or conduits.
14.4. At the option of the CITY, whenever new conduit is installed by ELI,
ELI shall provide the CITY open access to the trench so that the CITY may install its
own similar sized conduit. There shall be no cost to the CITY associated with the
trenching, backfilling, or surface restoration involved with those activities provided;
however, the CITY must purchase or supply said conduit.
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November 13, 1998
Page 25 of 58
15. Use of Franchisee's Poles and Facilities by Others.
With respect to poles, conduits or other Facilities developed or placed in the Franchise
Area by ELI, prior to the Franchisee entering into agreements with others to utilize such
Facilities, ELI shall assure that Lessee complies with the CITY'S registration, franchising, and
permitting requirements in Auburn City Code.
Within 15 calendar days after completion of registration with the City Clerk, the CITY
will determine whether the proposed lessee is subject to Franchise requirements and will notify
in writing both ELI and the proposed lessee of the determination and/or approval and the
process to proceed.
16. Capacity Sharing and Co-Location.
In order to avoid unnecessary disturbance in the Public Ways, and to optimize use of
limited capacity, the CITY may require ELI to share the use of its Facilities with others in
accordance with The Act.
ELI shall allow the sharing of its conduit, trenches, and other Facilities constructed by
ELI when the following conditions are met:
16.1. The sharing of such Facilities is both timely and technologically feasible.
16.2. Potential service providers have agreed to compensate ELI fair and
reasonable fees for the use of such Facilities and the parties have agreed to all other
terms relative to such use.
16.3. Such sharing will not consume that portion of the capacity of such
Facilities reserved for ELI'S future use.
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November 13, 1998
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17. Construction in Right-of-way.
17.1. Notification to City Public Works Department. ELI shall submit an
application to the Public Works Department for a permit to perform work in the CITY'S Public
Ways. No work, other than Emergency repairs, shall commence without such a permit.
Emergency repairs may be made immediately with written notification of such repairs given to
the CITY no later than the next business day. The application shall be accompanied by an
initial deposit of $1,000.00 to a separate project management deposit account to cover the
CITY'S actual costs of GIS mapping, plan review & approval, and project scope and cost
estimating leading up to issuance of the excavation permit. When the CITY is prepared to call
for mylars it will require with mylar submission, a schedule for completing the work, a
construction performance bond, the second deposit in an amount estimated to pay for the costs
of providing inspection of ELI'S work within CITY right-of-way to bc deposited in an account
with the Auburn Finance Department, which account shall not bear interest. When ELI has
submitted the revised mylars for CITY approval, an approvable construction schedule, a
construction performance bond in the amount designated by the CITY, and a second deposit
sufficient to compensate the CITY for the cost of inspection as described above, the City
Engineer will issue the excavation permit. As the project progresses, if an additional deposit is
required, the CITY will notify ELI. At the completion of work before the CITY releases the
performance bond, a final accounting will be completed and either a final bill will be issued or
a refund of the remaining balance will be prepared. Any refund will be without interest.
17.2. Facility Planning. The CITY has established a policy to co-locate
telecommunication cables and conduits in a common corridor in so much as is technically
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November 13, 1998
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feasible in order to minimize impact to the CITY'S pavement and interference with existing
and future CITY-owned utilities. ELI agrees to work with the CITY and other providers in
planning the location of any Facilities in the Public Way. In order to aid the CITY in such co-
location planning, in the event ELI needs to install underground Facilities, ELI shall conduct
any exploratory work as necessary to identify the location of any other existing underground
telecommunication utilities where CITY records are inadequate to clearly indicate the same.
The CITY will make all existing relevant records available at no cost to facilitate this
cooperative effort. This section applies to only those sections of the Public Ways where
installation of underground conduit or cables and related support equipment is planned.
The CITY, in providing record drawings, makes no guarantee of accuracy, either
express or implied.
17.3. Notice of Entry on Private Property. If directed by the CITY, at least 24
hours prior to entering private property or streets or public easements adjacent to or on such
private property to perform new construction or reconstruction, a notice indicating the nature
and location of the work to be performed shall be physically posted, at no expense to the CITY,
upon the affected property by the grantee or Franchisee. A door hanger may be used to comply
with the notice and posting requirements of this Section. A grantee or Franchisee shall make a
good faith effort to comply with the property owner/resident's preferences, if any, on location or
placement of underground installations (excluding aerial cable lines utilizing existing poles and
existing cable paths), consistent with sound engineering practices. Provided, however, that
nothing in this Chapter shall permit a grantee or Franchisee to unlawfully enter or construct
improvements upon the property or premises of another.
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November 13, 1998
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17.4. Installation. In accordance with requirements of ACC 12.04, entitled "Public
Works Construction" and ACC 12.28 entitled, "Barricades" and with the permit issued, all
transmission Facilities, equipment, and structures shall be located and installed so as to cause
minimum interference with the public right-of-way and reasonable convenience of adjacent
property owners, and at all times shall be maintained in a safe condition, and in good order and
repair. Suitable barricades, flags, lights, flares, or other devices shall be used at such times and
places as are reasonably required for the safety of the public. Any poles or other fixtures placed
in any street by ELI shall be placed in such manner as not to interfere with the usual travel on
such Public Way. With respect to excavations within any area, the CITY and ELI shall comply
with the provisions of Chapter 19.122 RCW and any other applicable state law. To obtain a
permit for facility installation, ELI shall post a performance bond from a resident Washington
State surety company in the amount determined by the CITY, after CITY review of the scope of
work intended. Once the installation and all related site restoration work is completed to the
CITY'S satisfaction, and record plans for the permitted work are received, the CITY will
release the bond.
17.5. Record of Installation. ELI shall provide to the CITY in AutoCad drawing file
format, upon the CITY'S written request, copies of available drawings in current use showing
the location of ELI'S Facilities within the Public Way to include those located on poles of the
servicing electric utility. ELI shall update such map to reflect improvements to the system.
Any such map (or update thereof) so submitted shall be for informational purposes only and
shall not obligate ELI to undertake any specific improvements, nor shall such map be construed
as a proposal to undertake any specific improvements. Upon completion of any new work that
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November 13, 1998
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changes the nature and location of Facilities in the public fight-of-way, ELI shall submit to the
CITY an updated record of said changes in AutoCad drawing file format. As an option, ELI
may submit only a map of such changes and pay the CITY'S cost to prepare the AutoCad
record drawings. Each map revision will clearly distinguish poles owned by the CITY from
poles owned by the electric power utility or other entity.
17.6. Shared Use of Excavations. ELI and the CITY shall exercise best efforts to
coordinate construction work which either entity may undertake within the Franchise Area so as
to promote the orderly and expeditious performance and completion of such work as a whole.
Such efforts shall include, at a minimum, reasonable and diligent efforts to keep the other party
and other utilities within the Franchise Areas informed of its intent to undertake any
construction work. ELI and the CITY shall further exercise best efforts to minimize any delay
or hindrance to any construction work undertaken by themselves or other utilities within the
Franchise Area.
17.7. Interference with Use of Pnblic Ways. ELI must obtain a construction permit
to perform work in the Public Way for all work performed by ELI in such areas. When
installing, locating, laying, or maintaining Facilities, apparatus, or improvements, ELI shall not
interfere with the use of any street to any greater extent than is necessary, and shall leave the
surface of any such street in as good and stable condition as it was prior to performance by ELI
of such work. Any facility, apparatus, or improvement under this Agreement shall be laid,
installed, located, or maintained in conformance with instructions given by, and to the
satisfaction of the CITY. In any event, ELI shall, at its own expense, and to the satisfaction of
the CITY, in accordance with the terms of the application for any permit to perform work in the
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November 13, 1998
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Public Way, restore to CITY standards and specifications damage or disturbance caused to
streets as a result of ELI'S construction or activity.
17.8. Coordination of Work. Upon issuance of a Right-of-way construction permit,
ELI shall schedule a pre-constmction meeting with the CITY prior to commencing work in the
Public Way. To promote cooperation with the CITY and other Franchisee's, ELI shall:
17.8.a. By November 1st of each year, provide the CITY with a schedule of
proposed construction activities that may affect the Public Ways during the following
year.
17.8.b. Meet with the CITY, other grantees and Franchisees and users of the
Public Ways annually or as determined by the CITY to schedule and coordinate
construction in the Public Ways.
17.8.c. All construction locations, activities and schedules shall be coordinated,
as required by the City Public Works Director, to minimize public inconvenience,
disruption or damages.
18. Transfer or Assignment of Franchise Agreement. This Franchise agreement with
ELI shall not be sold, transferred, leased, assigned, or disposed of directly or indirectly, in
whole or in part, either by sale, voluntary or involuntary merger, consolidation, by operation of
law or otherwise, without the prior written consent of the CITY to ensure a review of
unforeseen circumstances not present at the time of the original Franchise. The CITY'S
approval shall comply with any of its ordinance requirements and shall not be unreasonably
withheld or delayed. Such costs associated with this review process shall be reimbursed to the
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November 13, 1998
Page 31 of 58
CITY by the new prospective Franchisee. Such reimbursable costs will not exceed those, in
constant dollars, incurred in the refranchising process.
An assignment of this Franchise shall be deemed to occur if there is an actual change in
control or working control or where ownership of fil~y (50%) percent or more of the beneficial
interests, singly or collectively, are obtained by other parties. The word "control" as used
herein is not limited to majority stock ownership only, but includes actual working control in
whatever manner exercised.
ELI shall promptly notify the CITY prior to any proposed change in, or transfer of, or
acquisition by any other party in control of ELI'S company or ELI'S Telecommunications
System or Facilities, or substantial parts thereof, Franchisee shall cause a review of the
proposed transfer requiring CITY approval. Transactions between Affiliated entities are not
exempt from CITY approval. In the event that the CITY adopts a resolution denying its
consent and such change, transfer or acquisition of control has been affected, the CITY may
cancel, terminate or revoke this Franchise agreement. Approval shall not be required for
mortgaging purposes or if said transfer is from ELI to another Person or entity controlling,
controlled by, or under common control with ELI.
19. Removal and/or Abandonment ofEI,F. CTRIC LIGHTWAVE, INC.'S Property.
In the event that the use of any part of the Telecommunication System is discontinued
for any reason for a continuous period of twelve (12) months, or in the event such system or
property has been installed in any Public Way or public place without complying with the
requirements of this Franchise and all other applicable CITY ordinances and regulations, or this
Franchise has been terminated, canceled or has expired, ELI shall promptly, upon being given
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November 13, 1998
Page 32 of 58
fourteen (14) days written notice, remove within thirty (30) days from the Public Way or public
places all such property and poles of such system other than any the CITY has authorized to be
abandoned in place. The CITY may extend such time period for removal for an additional
period of time not to exceed ninety (90) days. Upon removal, ELI shall promptly restore the
Public Way and/or other areas from which such property has been removed to a condition
reasonably comparable to the condition of the Public Way existing immediately prior to such
removal or abandonment.
Any property of ELI remaining in place ninety (90) days after the termination or
expiration of the Franchise shall be considered permanently abandoned.
20. Franchise Application, Fees, Compensation, Charges, Reporting Requirements,
Franchise Transfer and Best Rates.
20.1. Franchise Application Fee. Prior to the processing of this Franchise
agreement, ELI agrees to submit its application on the form provided by the CITY together
with a Two Thousand Five Hundred Dollars ($2,500) application fee.
20.2. Administrative Fee. An administrative fee will be assessed to ELI as
consideration for the administrative processing cost incurred in the initial adoption of this
Franchise and for the continued monitoring and enforcement of same which is over and above
the application fee.
20.3. Other Required Permits or Inspections. ELI shall, in addition to the fees
described in Sections 20.1 and 20.2 above, be subject to all permit fees associated with
activities undertaken as a result of the authority granted in this Franchise and pursuant to any
requirements of other CITY ordinances and regulations. Where the CITY incurs costs and
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November 13, 1998
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expenses for review, inspection, or supervision of activities undertaken through the authority
granted in this Franchise and pursuant to any requirements of other CITY ordinances and
regulations relating to the subject for which a permit fee is not established, ELI shall pay such
actual and direct costs and expenses directly to the CITY. In addition to the above, ELI shall
promptly reimburse the CITY for all reasonable and documented costs the CITY reasonably
incurs in response to any Emergency involving ELI'S Facilities.
20.4. Compensation for Use of the Public Ways, Franchise Fee, Utility Tax, and
Late Payment Charge.
20.4.a. City's Reservation of Rights. Pursuant to Section 35.21.860 of the
Revised Code of Washington (RCW), the CITY is precluded from imposing a Franchise
fee on a "telephone business" as defined in RCW 82.04.065, except for administrative
expenses or any tax authorized by RCW 35.21.865 et. seq. ELI hereby warrants that all
of its operations as authorized under this Franchise are those of a telephone business as
defined in RCW 82.04.065. The CITY, relying on ELI'S warranty, is not authorized at
this time to impose a Franchise fee under the terms of this ordinance, other than as
described herein.
However, the CITY hereby reserves its right to impose a Franchise fee on ELI
for purposes other than to recover its administrative expenses or to exercise its taxing
authority, if any of ELI'S operations, as authorized by this Franchise, change so that any
of ELI'S operations or uses are no longer a "telephone business" as defined in RCW
82.04.065; or, if statutory prohibitions on the imposition of such fees are removed. In
the former instance, the CITY reserves its right to require that ELI obtain a separate
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November 13, 1998
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Franchise for any operation or use which is not a "telephone business", which Franchise
may include provisions intended to regulate ELI'S operations, as allowed under
applicable law.
20.4.b. Utility Tax Liability. Revenues derived directly or indirectly from
sources within the CITY shall be subject to applicable utility tax. Franchise fees, if
applicable, shall be in addition to any utility tax, but shall be collectible only to the
extent as then allowed by law. The initial utility tax rate shall be 4.5% of Gross
Revenues in accordance with ACC 5.82.
20.4.c. Quarterly Payment. ELI shall make payments by wire transfer on a
quarterly basis. Payment is due by the thirtieth (30th) day of the first calendar month
immediately following the close of the calendar quarter for which the payment is
calculated.
20.4.d. Late Payment. Any fee, costs, or expense owed or reimbursable to the
CITY shall be considered delinquent if not paid within 30 days of the billing date and
simple interest at a twelve percent (12%) annual percentage rate on the total amount
past due shall accrue.
20.5. Fees and Compensation Not a Tax. The fees, charges and fines provided for
in this Franchise and any compensation charged and paid for the Public Ways provided for
herein, whether fiduciary or in-kind, are separate from, and additional to, any and all federal,
state, local and CITY taxes as may be levied, imposed or due from a telecommunications
carrier or prorider, its customers or subscribers or on account of the lease, sale, delivery or
transmission oftelecommunications services.
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November 13, 1998
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20.6. Compensation to City. The compensation required from any
telecommunications carrier or prorider engaged in the "telephone business", as defined in
RCW 82.04.065, shall be consistent with RCW 35.21.860.
20.7. Quarterly Report. In order to properly determine the Gross Revenues received
by ELI, ELI agrees that on the same date that each quarterly payment is made, it will file with
the Director of Finance, a swom copy of a report in sufficient detail to itemize revenues from
each of the revenue categories. The CITY may, if it sees fit and at its own expense, have the
books and records of ELI examined by a representative of said CITY to ascertain the
correctness of the reports agreed to be filed herein. Any necessary pro-rations shall be made
in the first and last year of each term of the Franchise.
20.8. Recalculation at End of Compensation Year. At the end of each calendar
year, ELI shall recalculate the total general compensation actually due. If additional amounts
are due the CITY by Franchisee, said amounts shall be paid by the thirtieth (30th) day of
January following the calendar year during which such amounts were originally due. If
amounts are found to be due ELI by the CITY, said amounts shall be credited by the thirtieth
(30th) day of January during which such amounts were originally due. Any necessary pro-
rations will be made.
20.9. Taxes are Not to be a Credit. The compensation paid under this Franchise
shall be exclusive of and in addition to all special assessments and taxes of whatever nature
which are applicable to all other Persons or entities doing business within the CITY, including,
but not limited to, ad valorem tax, sales tax, corporate or business occupation taxes or other
taxes or fees imposed or levied by any governmental entity.
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November 13, 1998
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20.10. Rights of City. Payment of money under this Franchise shall not in any way
limit or inhibit any of the privileges or rights of the CITY, whether under this Franchise or
otherwise, except insolaf as CITY'S privileges or fights are expressly limited or inhibited by
the terms of this Franchise.
20.11. Annual Report. ELI shall file annually with the Director of Finance no later
than ninety (90) days after the end of ELI'S fiscal year, an unaudited statement of revenues (for
that fiscal year just ended) attributable to the operations of ELI'S Telecommunication System
within the CITY pursuant to this Franchise agreement. This statement shall present a detailed
breakdown of Gross Revenues and uncollectible accounts for the year. The CITY may, if it
sees fit, have such report audited by an independent certified public accountant of its choosing.
If the audit reveals an error greater than 5% in underpayment of Franchise fees or utility taxes
by ELI, then ELI shall pay for the costs of the audit. Otherwise, the CITY shall pay the costs of
the audit. This report will summarize those accounts reconciled to be within the Franchise Area
by the CITY'S quarterly review.
20.12. Circumventing Payments. Any transaction(s) which have the effect of
circumventing payment of the required Franchise fees or utility taxes and/or evasion of
payment of Franchise fees or utility taxes or any payments due the CITY under this Franchise
by non-collection or non-reporting of Gross Revenues, bartering, or any other means which
evade the actual collection of revenues for business pursued by ELI are prohibited.
20.13. Comparable Rates. As part of the compensation to the CITY for the grant of
this Franchise, the CITY shall be entitled to obtain subscriptions, at the CITY'S discretion, to
the Communication Service at ELI'S comparable rate applicable to any government body or
ELECTRIC LIGHTWAVE, INC. Franchise Agreement
November 13, 1998
Page 37 of 58
municipality of the State of Washington. In addition, CITY shall be entitled to ELI'S
comparable available rate for purchase and/or lease, should the CITY determine to purchase
and/or lease equipment or moderns applicable to government bodies or municipalities in the
State of Washington for purposes of accessing the Communication Service.
21. Accounts, Books and Records.
21.1. City to be Informed. ELI shall keep the CITY fully informed as to all matters
in connection with or which may affect the construction, reconstruction, removal, maintenance,
operation and repair of ELI'S system. CITY acknowledges that ELI is a reporting company
under the Securities Exchange Act of 1934 and that shares of its stock are publicly traded. As
such, ELI may be precluded from disclosing certain sensitive, non-public information by virtue
of rules and regulations promulgated under such act or otherwise.
21.2. Accounts.
21.2.a. ELI shall keep complete and accurate books of account and records of its
business and operations pursuant to this Franchise ordinance in accordance with
generally accepted accounting principles or in accordance with accounting rules
prescribed by federal or state regulatory agencies.
21.2.b. Exhibit "B", attached hereto and by this reference incorporated herein as
if fully set forth, reflects the CITY'S existing legal boundaries for purposes of
determining taxes and fees under this Franchise. For audit purposes, ELI will provide a
complete list of all subscribers with an Auburn street and/or post office address clearly
indicating those which are certain to be subject to this Franchise. For cases where
addresses are near the boundary or are in question, Auburn will review and determine
ELECTRIC LIGHTWAVE, INC. Franchise Agreement
November 13, 1998
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the specific accounts subject to the Franchise and notify ELI of adjustments required in
subsequent billing. In order to facilitate the CITY'S review, ELI will submit the data in
the following format on a computer disc in ASCII format: *Name Address
Zip Code Phone Number
*Indicates the specific status is in question.
21.3. Access to Records. Subject to the caveat set forth in Section 21.1, ELI shall
provide the CITY with access at reasonable times and for reasonable purposes, to examine,
audit, and/or review the papers, books, accounts, documents, maps, plans and other records of
ELI pertaining to this Franchise. Pursuant to RCW 42.17,310(1)(c) and RCW 42.17.310(1)(h),
the CITY and ELI consider all materials and records provided by ELI to the CITY, for the
purpose of satisfying the terms of this section, to be exempt from disclosure and/or release.
Any third party seeking review or release of the materials that are subject to this section, must
seek review or release from ELI as the Custodian and Proprietary party of the original records.
Nothing in this Section shall be construed to require a Franchisee to violate state or federal law
regarding subscriber privacy, nor shall this Section be construed to require a Franchisee to
disclose proprietary or confidential information without adequate safeguards for its confidential
or proprietary nature.
21.4. Duty to Provide 0Information. The CITY may, at any time, make inquiries
pertaining to ELI'S operation of its Telecommunication System within the Franchise Area. ELI
shall respond to such inquiries on a timely basis. Within thirty (30) working days of a written
request from the CITY, the Franchisee shall furnish the CITY with information sufficient to
demonstrate:
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November 13, 1998
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21.4.a. That the Franchisee has complied with all requirements of the CITY'S
Telecommunications code; and
21.4.b. That all sales, utility and/or telecommunications taxes due the CITY in
connection with the cable or telecommunications services and Facilities provided by the
Franchisee have been properly collected and paid.
21.5. FCC and other Filings. Subject to the caveat set forth in Section 21.1, ELI
shall provide the CITY with notices of all petitions, applications, communications and reports
submitted by ELI to the Federal or State Legislative bodies and the Washington Utilities and
Transportation Commission or their successor agencies, relating to any matters affecting the
CITY'S current authority to regulate use of right-of-way in the public interest.
22. Indemnification, Insurance, and Bonds or other Surety.
22.1 Indemnification. ELI hereby releases, covenants not to bring suit and
agrees to indemnify, defend and hold harmless the CITY, its elected and appointed officials,
officers, employees, agents, representatives, engineers, consultants, and volunteers from any
and all claims, costs, judgments, awards, or liability to any person, including claims by ELI's
own employees to which ELI might otherwise be immune under Title 51 RCW, arising from
injury or death of any person or damage to property of which the negligent acts or omissions of
ELI, its agents and servants, officers or employees in performing under this Franchise
Agreement are the proximate cause. ELI further releases, covenants not to bring suit and agrees
to indemnify, defend and hold harmless the CITY, its elected and appointed officials, officers,
employees, agents, representatives, engineers, consultants, and volunteers from any and all
ELECTRIC LIGHTWAVE, INC. Franchise Agreement
November 13, 1998
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claims, costs, judgments, awards, or liability to any person including claims by ELI's own
employees, to which ELI might otherwise have immunity under Title 5 1 RCW, arising against
the CITY solely by virtue of the CITY's ownership or control of the rights-of-way or other
public properties, by virtue of ELI's exercise of the rights granted herein, or by virtue of the
CITY's permitting ELI's use of the CITY's rights-of-way or other public property, based upon
the CITY's inspection or lack of inspection of work performed by ELI, its agents and servants,
officers or employees in connection with work authorized on the CITY's property or property
over which the CITY has control, pursuant to this Franchise Agreement, or pursuant to any
other permit or approval issued in connection with this Franchise Agreement. This covenant of
indemnification shall include, but not be limited by this reference, claims against the CITY
arising as a result of the negligent acts or omissions of ELI, its agents, servants, officers, or
employees in barricading, instituting trench safety systems or providing other adequate
warnings of any excavation, construction, or work in any public right of way or other public
place in performance of work or services permitted under this Franchise Agreement.
Inspection or acceptance by the CITY of any work performed by ELI at the time of
completion of construction shall not be grounds for avoidance of any of these covenants of
indemnification. Said indemnification 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.
In the event that ELI refuses the tender of defense in any suit or any claim, said tender
having been made pursuant to the indemnification clauses contained herein, and said refusal is
subsequently determined by a court having jurisdiction (or such other tribunal that the parties
ELECTRIC LIGHTWAVE, INC. Franchise Agreement
November 13, 1998
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shall agree to decide the matter), to have been a wrongful refusal on the part of ELI, then ELI
shall pay all of the CITY's costs for defense of the action, including all reasonable expert
witness fees and reasonable attomeys' fees and the reasonable costs of the CITY, including
reasonable attorneys' fees for recovering costs under this indemnification clause.
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 ELI, and the CITY, its
elected and appointed officials, officers, employees, agents, representatives, engineers,
consultants, and volunteers, ELI's liability hereunder shall be only to the extent of ELI's
negligence. It is further specifically and expressly understood that the indemnification
provided herein constitutes ELI's waiver of immunity under Title 5 1 RCW, solely for the
purposes of this indemnification. This waiver has been mutually negotiated by the parties.
The provisions of this Section shall survive the expiration or termination of this
Franchise Agreement.
Notwithstanding any other provisions of this Section, ELI assumes the risk of damage
to its facilities located in the CITY's public ways, rights-of-way, easements, and property from
activities conducted by the CITY, its elected and appointed officials, officers, employees,
agents, representatives, engineers, consultants, and volunteers. ELI releases and waives any
and all claims against the CITY, its elected and appointed officials, officers, employees, agents,
representatives, engineers, consultants, and volunteers, for damage to or destruction of ELI's
facilities caused by or arising out of activities conducted by the CITY, its elected and appointed
officials, officers, employees, agents, representatives, engineers, consultants, and volunteers, in
the public ways, rights-of-way, easements, or property subject to this Franchise Agreement
ELECTRIC LIGHTWAVE, INC. Franchise Agreement
November 13, 1998
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except to the extent any such damage or destruction is caused by or arises from the sole
negligence or any willful or malicious action on the part of the CITY, its elected and appointed
officials, officers, employees, agents, representatives, engineers, consultants, and volunteers.
ELI further agrees to indemnify, hold harmless and defend the CITY against any claims for
damages, including, but not limited to, business interruption damages and lost profits, brought
by or under users of ELI'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 activities conducted by the CITY,
its elected and appointed officials, officers, employees, agents, representatives, engineers,
consultants, and volunteers, except to the extent any such damage or destruction is caused by or
arises from the sole negligence or any willful or malicious actions on the part of the CITY, its
elected and appointed officials, officers, employees, agents, representatives, engineers,
consultants, and volunteers.
22.2. Insurance. ELI shall maintain in full force and effect throughout the term of
this agreement the following:
22.2.a. Commercial General Liability insurance in an amount of not less than
$5,000,000 per occurrence, $5,000,000 General Aggregate and $5,000,000
Products/Completed Operations Aggregate. The Commercial General Liability
insurance policy shall contain or be endorsed to include the following:
1. Products and Completed liability operations coverage.
2. Contractual liability coverage.
3. Cross liability/Severability of interest.
4. Broad form property damage.
ELECTRIC LIGHTWAVE, INC. Franchise Agreement
November 13, 1998
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5. Occurrence form.
6. Independent contractors coverage.
7. No X, C, or U (explosion, collapse, or underground) exclusion.
8. CITY named as additional insured.
22.2.b. Automobile Liability Insurance coveting any auto in an amount of not
less than $5,000,000 combined single limit.
The Automobile Liability and Commercial General Liability insurance shall be written
by companies licensed to do business in the State of Washington. An excess or umbrella
liability policy may be purchased to meet the required insurance limits. Certificates of
insurance evidencing the insurance requirements shall be furnished to the CITY before granting
of the permit and at any time thereafter at the request of the CITY. Such insurance certificates
shall give thirty (30) days notice of cancellation to the CITY. Any contractors, subcontractors,
or agents of ELI shall also meet all of the insurance requirements of this Section and shall not
be allowed on any CITY tight-of-way until certificates of insurance evidencing the insurance
requirements in a satisfactory manner are received by the CITY.
22.3. Performance Bond. ELI shall promptly repair or cause to be repaired any
damage to CITY Property caused by ELI or any agent, employee or servant of ELI. ELI shall
comply with all present and future ordinances and regulations regarding excavation or
construction and, if deemed necessary by the CITY, shall be required to post a performance
bond acceptable to the CITY in an amount specified by the CITY in favor of the CITY
warranting that all restoration work will be done promptly and in a workmanlike manner.
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November 13, 1998
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22.4. Recourse Against Bonds. Bonds may be utilized by the CITY for purposes,
including, but not limited to, reimbursement to the CITY by reason of ELI'S failure to pay the
CITY any sums due under the terms of this Franchise, reimbursement to the CITY for
reasonable costs borne by the CITY to correct ELI'S violations not corrected after due notice,
and monetary remedies or damages assessed against ELI due to default or violations of the
requirements of this Franchise.
22.4.a. Recourse. In the event ELI has been declared to be in default by the
CITY under this Franchise and if ELI fails, within thirty (30) days of mailing of the
CITY'S notice of default, to pay the CITY any monetary sanctions, or fails to perform
any of the conditions of the Franchise, the CITY may thereafter foreclose against the
performance bond and/or withdraw from any security an amount sufficient to
compensate the CITY'S damages, with interest at the legal rate. Upon such foreclosure
or withdrawal, the CITY shall notify ELI in writing, by First Class Mail, postage
prepaid, of the amount and date thereof.
22.4.b. Restoration. Within thirty (30) days after mailing notice to ELI that the
CITY has foreclosed ELI'S performance bond, ELI shall deposit such further bond, as
the CITY may require, sufficient to meet the requirements of this Franchise agreement.
22.4.c. Rights of the CITY. The rights reserved to the CITY with respect to any
bond are in addition to all other rights of the CITY whether reserved by this Franchise
agreement or authorized by law, and no action, proceeding, or exercise of a right with
respect to any bond or other security shall constitute an election or waiver of any rights
or other remedies the CITY may have.
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November 13, 1998
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23. Default.
If ELI fails to comply with any of the provisions of this Franchise, unless otherwise
provided for herein, the CITY may serve upon ELI a written notice to so comply within thirty
(30) days from the date of such notice. If ELI is not in compliance with the terms of this
Franchise after expiration of said thirty (30) day period, the CITY may act to remedy the
violation and may charge the reasonable and documented costs and expenses, inclusive of legal
fees, of such action to ELI. The CITY may act without the thirty (30) days prior notice in case
of an Emergency.
If a Franchise issue arises in which the CITY questions either ELI'S compliance with
this agreement or the propriety of ELI'S action(s) relating to this agreement, ELI shall, upon
written inquiry, provide a specific reference to either the federal, state, or local law or the
WUTC order or action establishing a basis for ELI'S actions.
The CITY may in addition, by ordinance, declare an immediate forfeiture of this
Franchise, provided, however, if any failure to comply with this Franchise by ELI cannot be
corrected with due diligence within said thirty (30) day period (ELI'S obligation to comply and
to proceed with due diligence being exclusive of unavoidable delays and events beyond its
control), then the time within which ELI may so comply shall be extended for such time as may
be reasonably necessary and so long as ELI commences promptly and diligently to effect such
compliance.
In addition to other remedies provided herein, if ELI is not in compliance with
requirements of this Franchise, and if a good faith dispute does not exist concerning such
ELECTRIC LIGHTWAVE, INC. Franchise Agreement
November 13, 1998
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compliance, the CITY may place a moratorium on issuance of any pending ELI right-of-way
use permits until compliance is achieved.
24. Enforcement and Termination of Franchise.
24.1. Notice of Violation. In the event that the CITY believes that ELI has not
complied with the terms of the Franchise, the CITY shall notify ELI in writing of the exact
nature of the alleged noncompliance or violation.
24.2. ELI'S Right to Cure or Respond. EXCEPT in cases involving a notice of
safety violation (Section 11, "Safety") where a cure is required within twenty-four (24) hours,
ELI shall have thirty (30) days from receipt of a Notice of Violation described in Section 24.1:
(1) to respond to the CITY contesting the assertion of noncompliance or violation, (2) to cure
such default, or (3) in the event that, by the nature of default, such default cannot be cured
within the thirty (30) day period, initiate reasonable steps to remedy such default and notify the
CITY of the steps being taken and the projected date that they will be completed.
24.3. Public Hearing. In the event that ELI fails to respond to the notice described in
Section 11 or Section 24.1 pursuant to the procedures set forth in Section 24.2, or in the event
that the alleged violation is not remedied within the prescribed period of time after ELI is
notified of the alleged violation pursuant to Section 11 or Section 24.1, the City Council shall
schedule a public hearing to investigate the violation. Such public hearing shall be held at the
next regularly scheduled hearing of the City Council which is scheduled at a time which is no
less than five (5) business days therefrom. The CITY shall notify ELI of the time and place of
such public hearing and provide ELI with an opportunity to be heard.
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November 13, 1998
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24.3.a. Standards for Revocation or Lesser Sanctions. If the City Council
determines that a grantee, Franchisee, or lessee willfully violated or failed to comply
with any of the provisions of its Telecommunications code, this Franchise, or through
willful misconduct or gross negligence failed to heed or comply with any notice given
the Franchisee by the CITY under the provisions of this Franchisee or its codes, then the
Franchisee shall, at the election of the City Council, forfeit all rights conferred
hereunder and the Franchise may be revoked or annulled by the City Council. The City
Council may elect, in lieu of the above and without any prejudice to any of its other
legal fights and remedies, to pursue other remedies, including obtaining an order from
the Superior Court having jurisdiction compelling the Franchisee to comply with the
provisions of this Franchise or its codes, and to recover damages and costs incun'ed by
the CITY by reason of the Franchisee's failure to comply. The City Council shall utilize
the following factors in analyzing the nature, circumstances, extent, and gravity of the
violation and in making its determination under this Section:
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.
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November 13, 1998
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24.4. Enforcement. Subject to applicable federal and state law, in the event the
CITY, after such public hearing, determines that ELI is in default of any provision of the
Franchise, the CITY may:
24.4.a. Foreclose on all or any part of any security provided under this
Franchise, if any, including without limitation, any bonds or other surety; provided,
however, the foreclosure shall only be in such a manner and in such amount as the
CITY reasonably determines is necessary to remedy the default;
24.4.b. Commence an action at law for monetary damages or seek other
equitable relief;
24.4.c. After the expiration of said 30-day period to cure violation, the CITY
may act to remedy the violation and charge the costs and expenses of such action to the
grantee, Franchisee, or lessee;
24.4.d. In the case of a material breach of the Franchise, declare the Franchise
agreement to be terminated or revoked; or
24.4.e. Seek specific performance of any provision, which reasonably leads
itself to such remedy, as an alternative to damages.
ELI shall not be relieved of any of its obligations to comply promptly with a provision
oft he Franchise by reason of any failure of the CITY to promptly enforce compliance.
24.5. Acts of God. ELI shall not be held in default or noncompliance with the
provisions of the Franchise, nor suffer any enforcement or penalty relating thereto, where such
noncompliance or alleged defaults are caused by strikes, acts of God, power outages, or other
events reasonably beyond its ability to control.
ELECTRIC LIGHTWAVE, INC. Franchise Agreement
November 13, 1998
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25. Franchise Amendment.
This Franchise may be amended only by written instrument, signed by both parties;
which specifically states that it is an amendment to this Franchise, and is approved and
executed in accordance with the laws of the State of Washington. Without limiting the
generality of the foregoing, this Franchise (including, without limitation Section 21 above)
shall govern and supersede and shall not be changed, modified, deleted, added to, supplemented
or otherwise amended by any permit, approval, license, agreement or other document required
by or obtained from the CITY in conjunction with the exercise (or failure to exercise) by ELI of
any and all rights, benefits, privileges, obligations, or duties in and under this Franchise, unless
such permit, approval, license, agreement or document specifically:
1. References this Franchise; and
2. States that it supersedes this Franchise to the extent it contains terms and
conditions which change, modify, delete, add to, supplement or otherwise amend the terms and
conditions of this Franchise.
This Franchise is subject to the provisions of any applicable tariff now or hereafter on
file with the Washington Utilities and Transportation Commission or its successor. In the event
of any conflict or inconsistency between the provisions of this Franchise and such tariff, the
provisions of such tariff shall control.
26. Tariff Chan~es.
If ELI shall file, pursuant to Chapter 80.28 RCW, with the Washington Utilities and
Transportation Commission (or its successor) any tariff affecting the CITY'S fight arising
ELECTRIC LIGHTWAVE,/NC. Franchise Agreement
November 13, 1998
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under this Franchise, ELI shall give the City Clerk written notice thereof within thirty (30)
calendar days of the date of such filing.
27. Miscellaneous Provisions.
27.1. Action of City. In any action by the CITY or representative thereof mandated
or permitted under the terms hereof, such party shall act in a reasonable, expeditious, and
timely manner. Furthermore, in any instance where approval or consent is required trader the
terms hereof, such approval or consent shall not be unreasonably withheld.
ELECTRIC LIGHTWAVE, INC. Franchise Agreement
November 13, 1998
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27.2. Notice. Unless otherwise expressly agreed between the parties, every notice or
response to be served upon the CITY or ELI shall be in writing, and shall be deemed to have
been duly given to the required party five (5) business days after having been posted in a
properly sealed and correctly addressed envelope by certified or registered mail, postage
prepaid, at a Post Office or branch thereof regularly maintained by the U.S. Postal Service.
The notices or responses to the CITY shall be addressed as follows:
City Clerk
25 West Main Street
Auburn, WA 98001-4998
With a copy to:
City Attomey
City of Auburn
25 West Main Street
Auburn, WA 98001-4998
The notices or responses to ELI shall be addressed as follows:
ELECTRIC LIGHTWAVE, INC.
ATTN: Legal Department
4400 NE 77 Avenue
Vancouver, WA 98662
With a courtesy copy to:
ELECTRIC LIGHTWAVE, INC.
ATTN: Senior OSP Engineer
1218 3'd Avenue, #915
Seattle, WA 98101
The CITY and ELI may designate such other address or addresses from time to time by
giving notice to the other.
ELECTRIC LIGHTWAVE, INC. Franchise Agreement
November 13, 1998
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27.3. Descriptive Headings. The captions to sections contained herein are intended
solely to facilitate the reading thereof. Such captions shall not affect the meaning or
interpretation of the text herein.
27.4. ELECTRIC LIGHTWAVE, INC. Availability. ELI shall be available to
CITY staff of the CITY department having jurisdiction over ELI'S activities 24 hours a day, 7
days a week, regarding problems or complaints resulting from the attachment, installation,
operation, maintenance, or removal of ELI'S Telecommunication System. The CITY may
contact by telephone the network control center at (800) 622-4354, a telephone number at
which an ELI employee can be reached twenty-four (24) hours a day, seven (7) days a week
regarding such problems or complaints.
27.5. Venue of any Court Action. This Franchise shall be governed and construed
by and in accordance with the laws of the State of Washington. In the event that suit is brought
by a party to this Franchise, the parties agree that jurisdiction of such action shall be vested
exclusively in the King County Superior Court for the State of Washington, or in the United
States District Court for the Westem District of Washington located in Seattle, Washington.
27.6. Exhibits. All exhibits referred to in this Franchise and any addenda,
attachments, and schedules which may, from time to time, be referred to in any duly executed
amendment to this Franchise are by such reference incorporated in this Franchise and shall be
deemed a part of this Franchise.
27.7. Action by the FCC. In the event the FCC promulgates more stringent notice
requirements, technical standards, consumer protection or consumer services requirements than
are contained in this agreement, those more stringent requirements shall prevail. The CITY
ELECTRIC LIGHTWAVE, INC. Franchise Agreement
November 13, 1998
Page 53 of 58
shall give reasonable notice when in its determination more stringent requirements have been
implemented. ELI shall retain and not waive any or all rights and privileges as afforded either
under this contract or pursuant to federal law or FCC regulations to complain and/or appeal
such a determination.
28. Severability.
If any section, sentence, paragraph, term, or provision hereof is determined to be illegal,
invalid, or unconstitutional, by any court of competent jurisdiction or by any state or federal
regulatory authority having jurisdiction thereof, such determination shall have no effect on the
validity of any other section, sentence, paragraph, term or provision hereof, all of which will
remain in full force and effect for the term of the Franchise, or any renewal or renewals thereof.
ELECTRIC LIGHTWAVE, INC. Franchise Agreement
November 13, 1998
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PASSED BY THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON,
AT ITS REGULAR MEETING ON THE /~'LP day o~'~4-a~J~, 199fl
CITY OF AUBURN
CHARLES A. BOOTH
MAYOR
ATTEST:
City Clerk
APPROVED AS TO FORM:
Michael J. Reynolds,
City Attorney
ELECTRIC LIGHTWAVE, INC. Franchise Agreement
November 13, 1998
Page 55 of 58
ELECTRIC LIGHTWAVE, INC.
Title:
STATE OF WASHINGTON )
~ )ss.
COUNTY OF/KIIqG )
On this ~-~' day of ci-~,~, 199~/,before me the undersigned, a Notary
Pub 'c in and fo~t'~eSt.ate of W ington, duly commissioned and sworn, personally appeared
instrument to be the flee and voluntary act and deed of said corporation, for the uses and
purposes therein mentioned, and on oath stated that he/she is authorized to execute said
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the date hereinabove set forth.
MY COMMISSION EXPIRES: ~)~,_x. r, '~ ~
ELECTRIC LIGHTWAVE, INC. Franchise Agreement
November 13, 1998
Page 56 of 58
EXHIBIT "A"
STATEMENT OF ACCEPTANCE
ELECTRIC LIGHTWAVE, INC. for itself, its successors and assigns, hereby accepts
and agrees to be bound by all terms, conditions and provisions of the Franchise granted
pursuant to Ordinance No..ffpil, attached hereto and incorporated herein by this reference.
ZY:
Title:
Date:
Attached hereto is a copy of the executed Ordinance approving the execution of the
Franchise by the CITY and a corporate resolution or corporate secretary certificate therefor
duly executed and approving this Statement of Acceptance, the execution thereof and
authorizing the officer executing this Statement of Acceptance to do so.
ELECTRIC LIGHTWAVE, INC. Franchise Agreement
November 13, 1998
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