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HomeMy WebLinkAbout5333ORDINANCE NO. 5 3 3 3 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A PUBLIC WAY AGREEMENT BETWEEN THE CITY AND LEVEL 3 COMMUNICATIONS, L.L.C. WHEREAS, LEVEL 3 COMMUNICATIONS L.L.C. has made application for a non-exclusive Public Way Agreement and the CITY has determined that the application is complete; and WHEREAS, it has been determined that LEVEL 3 COMMUNICATIONS L.L.C. has the financial, technical and legal ability to provide the services proposed in its application; and WHEREAS, there is capacity in the City's Public Ways, as defined in the Public Way Agreement, to accommodate LEVEL 3 COMMUNICATIONS' proposed facilities; and WHEREAS, the damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping, including remedies, are addressed in the Public Way Agreement to the satisfaction of the CITY; and WHEREAS, the cost and disruption of construction within the Public Ways, as defined in the Public Way Agreement, will be minimized; and WHEREAS, permission to use the Public Ways, as provided in the Public Way Agreement, is in the public interest and the effect, if any, on the public ------------------------ Ordinance No. 5333 12/28/99 Page 1 health, safety and welfare is minimized and addressed in the Public Way Agreement; and WHEREAS, the service LEVEL 3 COMMUNICATIONS L.L.C. will provide to the region is in the public interest; and WHEREAS, the Public Way Agreement requires that applicable federal, state, and City of Auburn telecommunication laws, ordinances, regulations and policies will be followed during the term of the Public Way Agreement; and WHEREAS, LEVEL 3 COMMUNICATIONS L.L.C. warrants that there are no plans or intentions to utilize the proposed Telecommunication System to provide Local Service, and recognizes the necessity to obtain a Franchise from the City prior to any offering of Local Service; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. Purpose. The Mayor and City Clerk of the City of Auburn are hereby authorized to execute a Public Way Agreement between the City and LEVEL 3 COMMUNICATIONS L.L.C. A copy of said Agreement is attached hereto, designated as Exhibit "A" and incorporated by reference in this Ordinance. ------------------------ Ordinance No. 5333 12/28/99 Page 2 Section 2. Implementation. The Mayor is hereby authorized to implement such administrative procedures as may be necessary to carry out the directives of this legislation. Section 3. Constitutionality or Invalidity. If any section, subsection, clause or phrase of this Ordinance is for any reason held to be invalid or unconstitutional such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of this Ordinance, as it is being hereby expressly declared that this Ordinance and each section, subsection, sentence, clause and phrase hereof would have been prepared, proposed adopted and approved and ratified irrespective of the fact that any one or more section, subsection, sentence, clause or phrase be declared invalid or unconstitutional. Section 4. Effective Date. This Ordinance shall take effect and be in force five days from and after its passage, approval and publication as provided by law. INTRODUCED: January 3, 2000 PASSED: January 3, 2000 APPROVED: January 2000 C-"� lf), CHARLES A. GOTH MAYOR ------------------------------ Ordinance No. 5333 12/28/99 Page 3 ATTEST: Dani Ile E. Daskam, City Clerk APPROVED AS TO FORM: Michael J. Reynolds, City Attorney Published: 17ko ------------------------ Ordinance No. 5333 12/28/99 Page 4 o,-rg; V1 uQ CITY OF AUBURN, WASHINGTON PUBLIC WAY AGREEMENT LEVEL 3 COMMUNICATIONS WHEREAS, LEVEL 3 COMMUNICATIONS, L.L.C. has applied to the CITY OF AUBURN for a non-exclusive Public Way Agreement for the installation, operation and maintenance of a Fiber -Optics Telecommunications System trunk through, in, on, upon, along and/or across certain Public Ways within the CITY OF AUBURN, and WHEREAS, LEVEL 3 COMMUNICATIONS, L.L.C. warrants by acceptance of this Public Ways Agreement that Local Service to the Auburn area, requiring a Franchise Agreement, is not contemplated at this time. NOW, THEREFORE, the CITY OF AUBURN, hereinafter referred to as "CITY" and LEVEL 3 COMMUNICATIONS, L.L.C. hereinafter referred to as "GRANTEE" agree as follows: PUBLIC WAYS AGREEMENT WITH LEVEL 3 COMMUNICATIONS, L.L.C. TABLE OF CONTENTS PAGE NO. Public Ways Agreement. 1-14 Attachment 1, Location and Identification of Rights Granted 15 Attachment 2, Terms and Conditions 16-18 Attachment 3, Title 20 Auburn City Code 19-80 1 PUBLIC WAYS AGREEMENT SECTION 1. The CITY of Auburn (hereinafter called the "CITY") hereby grants to LEVEL 3 COMMUNICATIONS, L.L.C. (hereinafter called "GRANTEE"), the right to use that CITY right-of-way hereinafter described in Attachment 1, which is by this reference incorporated herein, to construct, replace, maintain and use equipment and Facilities for an underground fiber optic cable system under the specific terms and conditions contained herein for an initial term of five (5) years, and as provided in Attachment 2 entitled "Terms and Conditions", which is by this reference incorporated herein, and all applicable federal, state and local laws, including but not limited to, Chapter 5.84 ACC, entitled "Registration of Telecommunications Carriers, Operators, Providers, and Other Commercial Utilities", Title 12 ACC, entitled "Streets, Sidewalks, and Public Works", Chapter 13.32 ACC, entitled "Underground Wiring Regulations", Title 18 ACC, entitled "Zoning", Title 20 ACC entitled "Telecommunications and Other Commercial Utilities", and any other ordinances, codes, rules, regulations and orders as they apply. LEVEL 3 COMMUNICATIONS, L.L.C. shall at all times be subject to the exercise of the CITY'S police powers. Title 20 ACC entitled "Telecommunications and Other Commercial Utilities" and any future amendments is incorporated herein by this reference. Attached hereto as Attachment 3 is a courtesy copy of Title 20. SECTION 2. DEFINITIONS. "Affiliate" means a person that (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with another person. "Conduit" means the duct or protective enclosure of the fiber optic cable system. "Conflict" means a future planned CITY street or utility capital improvement requiring the CITY's use of the same physical space occupied by GRANTEE'S Conduit, and relocation of said Conduit is a pre -requisite to construction of the CITY's planned improvement. "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, riots or wars. "Excess Capacity" means the volume or capacity in any existing or future duct, Conduit, manhole, hand -hole, or other utility Facility within the public way that is or will be available for use for additional telecommunications facilities. Exhibit "A", Ordinance No. 5333 2 "Facility" means the plant, equipment, and property, including but not limited to, cables, wires, Conduits, ducts, pedestals, hubs, antennae, electronics, and other appurtenances used or to be used for the purpose of offering telecommunications services. "Local Service" means that local exchange service would be provided to customers (business and/or residential) within the corporate CITY limits of Auburn. SECTION 3. INSTALLATION OF EQUIPMENT. All Facilities shall be installed and maintained at such places and locations as shall least interfere with existing utilities and franchise rights, and with the free passage of traffic and in accordance with federal law and the laws of the State of Washington and Ordinances and Standards of the CITY regulating such construction. This includes the terms and conditions of any permit required and issued for construction of such Facilities. GRANTEE warrants as a condition of this Agreement that any equipment, Facilities and system installed constitutes a trunk - through system only which will not directly and separately service local businesses or residents in the CITY. Prior to selling, leasing, or otherwise transferring any Excess Capacity to any other person who intends to offer Local Service, GRANTEE shall provide written notice to the CITY, at least 30 days prior to such transfer, of its intent to make such a transfer. In addition, GRANTEE shall not complete such lease, sale or transfer of Excess Capacity, until the transferee has obtained a Franchise from the CITY. As referenced in this section, Excess Capacity means the actual physical plant of the GRANTEE. Therefore notification is not required to sell, lease or transfer separate signals or portions of bandwidth within the physical plant itself. SECTION 4. RELOCATION OF EQUIPMENT. Emergencies: Whenever the CITY determines it is necessary that any Facilities of GRANTEE be removed or relocated to repair an adjacent CITY utility or to protect and assure the public safety during an Emergency event, GRANTEE shall, within 24 hours of written notice from the CITY, remove or relocate such Facilities as directed to an area within the CITY public way mutually agreed upon, at no cost to the CITY. Routine: Whenever the CITY determines it necessary that any Facilities of GRANTEE be moved or relocated to accommodate the improvement by or on behalf of the CITY of any areas, including, but not limited to, the grading or widening of any street within the public right-of-way defined herein, GRANTEE shall, within 30 days of written notice from the CITY, move or relocate such Facilities as directed, to an area within CITY right-of-way mutually agreed upon, at no cost to the CITY. GRANTEE shall within the first 14 days after receipt of notice, communicate to the CITY its intention, plan and schedule for said or removals. If 3 GRANTEE 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 GRANTEE agrees to reimburse the CITY all reasonable, documented costs for any relocation, removal or delay costs incurred by the CITY and/or its contractors. GRANTEE 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 GRANTEE fails to complete full performance within the thirty (30) day period, GRANTEE 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 GRANTEE's failure to comply with the requirements of this subsection. SECTIONS. RECORD OF INSTALLATION. GRANTEE shall provide to the CITY, upon the CITY'S request, copies of available current drawings in use by GRANTEE showing the location of GRANTEE'S Facilities within public right-of-way. With respect to excavations within any area, the CITY and GRANTEE shall comply with the provisions of Chapter 19.122 RCW and any other applicable State law or CITY Ordinance. Before issuance of the excavation permit, GRANTEE shall post a performance bond from a Washington State based surety company in the amount of 125% of the cost of construction within the CITY. The amount of the performance bond for this agreement is $82,500.00. Once the installation and all related site restoration work has been completed to the CITY'S satisfaction and GRANTEE has submitted record plans as required by the CITY for the completed project, the CITY will release the bond. The performance bond amount will be established by the CITY when you provide the CITY with an engineer's estimate of the actual cost of construction at the street crossing. In order to complete this calculation please have your engineer submit an estimate to us for review by the CITY Engineer. SECTION 6. FEES. As reimbursement for administration expenses, GRANTEE shall pay an initial fee to the CITY of $ 3,450.00 based upon the CITY'S estimated administrative costs and for inspecting, mapping and other work described in Attachment 1, throughout this agreement's five year term. Public Way Agreement renewals at 5 - year intervals will require the fee applicable at that time. Fees are due and payable at time of permit issuance and renewal in accordance with Chapter 20.04 of the CITY Code. The fees are calculated based upon the estimated inspection costs. In order to complete this calculation please have your engineer submit a plan of the intended work at each crossing to us for review by the CITY Engineer. SECTION 7. INDEMNITY. The GRANTEE hereby releases, covenants not to bring suit and agrees to indemnify, defend and hold harmless the CITY, its elected and appointed officials, 4 officers, employees, agents, representatives, engineers, consultants, and volunteers from any and all claims, costs, judgments, awards, or liability to any person, including claims by the GRANTEE's own employees to which the GRANTEE 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 the GRANTEE, its agents, servants, officers, or employees in performing under this Public Ways Agreement are the proximate cause. The GRANTEE 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 claims, costs, judgments, awards, or liability to any person including claims by the GRANTEE's own employees, to which the GRANTEE might otherwise have immunity under Title 51 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 the GRANTEE's exercise of the rights granted herein, or by virtue of the CITY's permitting the GRANTEE'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 the GRANTEE, 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 Public Ways Agreement, or pursuant to any other permit or approval issued in connection with this Public Ways 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 the GRANTEE, 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 Public Ways Agreement. Inspection or acceptance by the CITY of any work performed by the GRANTEE 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 the GRANTEE 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 shall agree to decide the matter), to have been a wrongful refusal on the part of the GRANTEE, then the GRANTEE shall pay all of the CITY's costs for defense of the action, including all reasonable expert witness fees and reasonable attorneys' fees and the reasonable costs of the CITY, including reasonable attorneys' fees for recovering costs under this indemnification clause. 5 In the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the GRANTEE, and the CITY, its elected and appointed officials, officers, employees, agents, representatives, engineers, consultants, and volunteers, the GRANTEE's liability hereunder shall be only to the extent of the GRANTEE's negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes the GRANTEE's waiver of immunity under Title 51 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 Public Ways Agreement. Notwithstanding any other provisions of this Section, the GRANTEE 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. The GRANTEE 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 the GRANTEE'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 Public Ways Agreement 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. The GRANTEE 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 the GRANTEE'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. SECTION 8. INSURANCE. GRANTEE shall, as a condition of this Public Way Agreement, secure and maintain the following liability insurance policies insuring both the GRANTEE and the CITY, and its elected and appointed officers, officials, agents, employees, representatives, engineers, consultants, and volunteers as additional insureds against claims for injuries to persons or damages to property which may arise from R or in connection with the exercise of the rights, privileges, and authority granted to the GRANTEE: A. Comprehensive general liability insurance, written on an occurrence basis, with limits not less than: (1) $5,000,000.00 for bodily injury or death to each person; (2) $5,000,000.00 for property damage resulting from any one accident; and (3) $5,000,000.00 for all other types of liability. B. Automobile liability for owned, non -owned and hired vehicles with a limit of $3,000,000.00 for each person and $3,000,000.00 for each accident; C. Worker's compensation within statutory limits and employer's liability insurance with limits of not less than $1,000,000.00; D. Comprehensive form premises -operations, explosions and collapse hazard, underground hazard and products completed hazard with limits of not less than $3,000,000.00; E. The liability insurance policies required by this Section shall be maintained by the GRANTEE throughout the term of this Public Ways Agreement and such other period of time during which the GRANTEE is operating without a Public Ways Agreement hereunder, or is engaged in the maintenance or removal of its telecommunications facilities. The GRANTEE shall provide an insurance certificate, together with an endorsement naming the CITY, and its elected and appointed officers, elected officials, agents, employees, representatives, engineers, consultants, and volunteers as additional insureds, to the CITY prior to the commencement of any work or installation of any utility or telecommunications facilities pursuant to this Public Ways Agreement. Any deductibles or self-insured retentions must be declared to and approved in writing by the CITY prior to the Public Ways Agreement becoming effective. Payment of deductibles and self- insured retentions shall be the sole responsibility of the GRANTEE. The insurance certificate required by this Section shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. The GRANTEE's insurance shall be primary insurance as respects the CITY, its officers, elected officials, employees, representatives, engineers, agents, consultants, and volunteers. Any insurance maintained by the CITY, its officers, elected officials, employees, representatives, engineers, agents, consultants, and volunteers shall be in excess of the GRANTEE's insurance and shall not contribute with it; 7 F. In addition to the coverage requirements set forth in this Section, each such insurance policy shall contain the following endorsement: "It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew be stated until 60 days after receipt by the CITY, by registered mail, (return receipt requested) of a written notice addressed to the City Clerk of such intent to cancel or not to renew." G. Within 30 days after receipt by the CITY of said notice, and in no event later than 15 days prior to said cancellation or intent not to renew, the GRANTEE shall obtain and furnish to the CITY replacement insurance policies meeting the requirements of this Section. Any lapse in the required insurance coverage shall be cause for termination of this Public Ways Agreement. SECTION 9. NON-EXCLUSIVE. The rights and privileges herein granted shall not be deemed exclusive and the right is hereby reserved to the CITY to grant to any other person, company, corporation or association, or entity, including the CITY, the right to exercise the rights and privileges herein granted. SECTION 10. POLICE POWERS. Nothing herein shall be deemed to affect the CITY'S ability to exercise its police powers. Further, nothing shall be deemed to grant GRANTEE vested rights or franchise rights. SECTION 11. MODIFICATIONS OF TERMS AND CONDITIONS. The CITY and GRANTEE hereby reserve the right to alter, amend or modify the terms and conditions of this Agreement upon written agreement by both parties to such alteration, amendment or modification. SECTION 12. RENEWAL OF AGREEMENT. This Agreement shall be automatically renewed for additional five-year periods upon payment of the renewal fee, unless either the CITY or GRANTEE provides written notice of its intent not to renew the Agreement 120 days prior to January 1st of said renewal year. In the event that GRANTEE shall decide to offer at any time Local Service from its equipment, Facilities, or underground fiber optic cable system to business and/or residential customers within Auburn's incorporated area, it shall apply for and obtain a franchise agreement from the CITY prior to the offer of or delivery of such Local Services. In order to assure adequate time to apply for and negotiate the terms of such a franchise, GRANTEE shall provide written notice of its intent to offer Local Services and submit an application for franchise 120 days prior to the desired date of commencing Local Service. If a franchise is granted 0 by the CITY, this Agreement shall terminate and the use, operation, and maintenance of such equipment, Facilities, and underground fiber optic cable system, and all related appurtenances, shall be subject solely to the provisions of said franchise. SECTION 13. TERMINATION. The CITY and GRANTEE recognize the paramount public interest in the right-of-way subject to this Agreement. Should the public interest, determined by the CITY, require consideration of termination of this Agreement, such procedures as outlined in Title 20, Auburn CITY Code shall control termination. SECTION 14. VALIDITY OF TERMS. If any terms, provisions, condition, or portion of this Agreement shall be held to be invalid or unconstitutional for any reason, the CITY may, at its own option, deem the entire Agreement to be affected and thereby nullified. However, in the event of said determination of invalidity of any part of this Agreement, the CITY may elect to treat the portion declared invalid as severable and enforce the remaining portions of this Agreement until such time as a new Agreement is negotiated and approved by both parties. The CITY does not, by executing this Agreement, waive any rights to later require a franchise agreement under CITY Code in the event GRANTEE shall decide to offer point services from its equipment, Facilities, or underground fiber optic cable system to CITY area businesses and/or residential customers. SECTION 15. NON -TRANSFERABLE. The rights granted by this Agreement inure to the benefit of GRANTEE, and any parent, subsidiary, Affiliate, heir, successor, or assigns now or hereafter existing. GRANTEE may assign its rights under this Agreement to a parent, subsidiary, Affiliate, heir, or successor so long as (1) such parent, subsidiary, Affiliate or successor, assumes all obligations of GRANTEE hereunder; (2) such parent, subsidiary, Affiliate, heir or successor is bound to the same extent as GRANTEE hereunder; and (3) the CITY receives sufficient evidence of such agreement and notice to confirm that the above conditions are satisfied. The rights shall not be assignable to parties other than a parent, subsidiary, or Affiliate, or successor without the express, written consent of the governing body of the CITY, which shall be determined by the CITY within 60 days. Any consent is to be evidenced by written agreement with the CITY that fully recites the terms and conditions, if any, upon which consent is given. SECTION 16. ENFORCEMENT. If the CITY seeks enforcement of any terms or conditions of this Agreement in court, or if a lawsuit is instituted with respect to this Agreement, GRANTEE 0 agrees to pay the CITY'S reasonable attorney's fees and costs and other allied expenses incurred by the CITY regarding said enforcement or lawsuit if the CITY is the substantially prevailing party. SECTION 17. GRANTEE AVAILABILITY. GRANTEE shall be available to the CITY 24 hours a day, 7 days a week, regarding problems or complaints related to GRANTEE's Telecommunication System. The CITY may contact Mr. Gary Inman, Construction Manager or Mr. Chris Waibel, Project Engineer at (253) 862-2404, at which a GRANTEE employee can be reached twenty-four (24) hours a day, seven (7) days a week regarding such problems or complaints. SECTION 18. EFFECTIVE DATE. This Agreement shall take effect and be in force upon execution by the undersigned CITY official and the authorized authority of LEVEL 3 COMMUNICATIONS, L.L.C. SECTION 19. NOTICE. Unless otherwise expressly agreed between the parties, every notice or response to be served upon the CITY or LEVEL 3 COMMUNICATIONS,L.L.C. 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. SECTION 20. VENUE OF ANY COURT ACTION. This Public Way Agreement 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 Public Way Agreement 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 Western District of Washington located in Seattle, Washington. 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 Attorney CITY of Auburn 10 25 West Main Street Auburn, WA 98001-4998 The notices or responses to LEVEL 3 COMMUNICATIONS, L.L.C. shall be addressed as follows: LEVEL 3 COMMUNICATIONS, L.L.C. 14023 Denver West Pkwy. Golden, CO 80401 The CITY and LEVEL 3 COMMUNICATIONS, L.L.C. may designate such other address or addresses from time to time by giving notice to the other. 11 PASSED BY THE CITY COUNCIL OF THE CITY OF/ AUBURN, WASHINGTON, AT ITS REGULAR MEETING ON THE J r _ DAY OF CITY OF AUBURN: Mayor, Charles A. Booth 25 W. Main Auburn WA 98001-4998 Attest: o /- e q-Cer ---- Date Z---__ D _ ----------------------- Dan Ile E. askam, City Clerk JAPMOVED S TO FORM: -------------------------------------- Mike Reynolds, City Attorney Acknowledged and Accepted by: LEVEL 3 COMMUNICATIONS, L.L.C.: "'? / �P,- -- 01 - 13 - Zoe thorized Signature Date _ Jctk�1 tr_Sc ------------- ------------ Print Name and Title ----------------------------------------- _GoL.pL��__gdyou�_ --------------- 3o3-za S- 8sno ----------------------------------------- Name, Address and Phone # 12 C0{.O0ADO STATE OF COUNTY OF IeNG-A - )ss. TE t:F�RTeN ZaaO On this--La"N- day of__�A►iod?-q________ - W, before me, the undersigned, a Notary Public in and for the State of - dotw ......... personally appeared doing business as -rcceL- t= Lq 3_ 54 -------, who executed the within and foregoing instrument, and acknowledged said instrument. to be the free and voluntary act and deed of said corporation for the uses and purposes therein mentioned, and on oath stated that he is authorized to execute said instrument on behalf of said corporation. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the date hereinabove set forth. ••��A J. per• � ----------- 0 ------------ NOTARY PUBLIC in and for the State of Gcwrt.�j� A Washingteft, residing in 'Sµwworr C %-v- z• -I MY COMMISSION expires:-sha1z=12 A F • •••.••• ' O� 13 STATEMENT OF ACCEPTANCE LEVEL 3 COMMUNICATIONS, L.L.C. itself, its successors and assigns, hereby accepts and agrees to be bound by all terms, conditions and provisions of the Public Ways Agreement granted pursuant to Ordinance No. 5333 , attached hereto and incorporated herein by this reference. By: Name:.. Title:, 12i�.Tv►c_. Date: ,�A�ut (3, Z000 Attached hereto is a copy of the executed Ordinance approving the execution of the Public Ways Agreement by the CITY and a corporate resolution or corporate secretary certificate therefore duly executed and approving this Statement of Acceptance, the execution thereof and authorizing the officer executing this Statement of Acceptance to do so. 14 ATTACHMENT 1 CITY OF AUBURN, WASHINGTON PUBLIC WAY AGREEMENT WITH LEVEL 3 COMMUNICATIONS, L.L.C. LOCATION AND IDENTIFICATION OF RIGHTS GRANTED 15 ATTACHMENT 2 TERMS AND CONDITIONS OF PUBLIC WAY AGREEMENT LEVEL 3 COMMUNICATIONS, L.L.C. 1. A pre -construction conference shall be required at least 24 hours prior to commencing work within CITY right-of-way. (Seven days notice required to schedule conference. Call (253) 931-3010 for the Contracts Administrator or the Construction Manager.) 2. GRANTEE shall notify all affected property owners, in writing, a minimum of seven days prior to starting construction in the area. 3. Construction shall be in compliance with plans submitted to and approved by the CITY Department of Public Works. 4. GRANTEE, its successors and assigns, is given permission to enter upon the right-of-way or public place for the purpose of performing the work described in a construction permit which must be approved by the City Engineer or his/her designee. 5. After the installation, operation, maintenance, or removal of a utility or Facility the GRANTEE shall restore all rights-of-way and public places to the same or equivalent condition that existed prior to work commencement. All such work must meet the approval of the City Engineer. 6. In the event that any damage of any kind, as determined solely by the CITY, to the CITY'S property or rights-of-way is caused by the GRANTEE in the course of performing work authorized by this Agreement, the GRANTEE will repair said damage at its sole cost and expense. Repair work shall begin without delay, as directed by the CITY, and continue without interruption until completed. If damage is extensive, the time allowed for repair will be prescribed by the City Engineer and/or his/her designee. Failure to properly restore any damages within 30 days notice will be referred to the City Attorney under Section 16. entitled "ENFORCEMENT". 7. The City Engineer or his/her designee may at any time, do, order, or have done any and all work considered necessary to restore to a safe condition any area left by the GRANTEE in a condition dangerous to life or property. The GRANTEE shall be notified of any substandard condition requiring correction by the CITY'S Construction Manager, and upon failure of the GRANTEE to make said correction within the specific time frame allowed, the CITY shall perform the correction and the GRANTEE shall pay to the CITY all costs of such work, labor and materials. If GRANTEE fails to compensate the CITY for actual costs, the CITY will exercise the performance bond to pay for any work of emergency nature. 16 8. When the CITY deems it advisable to change the alignment or grade of any street or right-of-way or public place or structure by widening, grading, re -grading, paving, improving, altering or repairing same, the CITY and the GRANTEE will diligently pursue alternative methods of achieving the CITY'S preferred alignment or grade of subject structure including, but not limited to, sharing engineering expenses. If the GRANTEE has no alternatives acceptable to the CITY, the GRANTEE shall, at its own cost and expense, raise, lower, move, change or reconstruct such installations to conform with the plans of work ordered by the CITY according to the time schedules described in Section 4 of this Agreement titled "RELOCATION OF EQUIPMENT". 9. All provisions, conditions, requirements and regulations herein contained shall be binding upon the heirs, successors and assigns of the GRANTEE and all privileges of the GRANTEE shall be given to such heirs, successors and assigns as if they were specifically mentioned. 10. The CITY and GRANTEE recognize the paramount public interest in the right-of-way subject to this Agreement. Should the public interest, determined by the CITY, require consideration of termination of this Agreement, such procedures as outlined in Title 20, Auburn CITY Code shall control termination. 11. GRANTEE, by accepting permits pursuant to this Agreement, agrees to obtain information from all utility departments and existing franchises regarding location and current status of their installations before starting work. GRANTEE shall notify private property owners adjoining, or in proximity to the right-of-way, including existing franchises, in writing when such property is exposed to the possibility of injury or damage through performance of work by GRANTEE. The GRANTEE shall make all advance arrangements necessary to protect such property and/or utility from injury or damage. 12. The issuance of this Agreement to the GRANTEE does not in any way relieve GRANTEE from compliance with any other applicable laws in performing the work subject to this Agreement. 13. All road crossings shall be reviewed independently for feasibility of open cuts as opposed to a push or bore. 14. GRANTEE shall, to the extent practicable, maintain a minimum five (5) feet horizontal separation and one (1) foot vertical separation from any and all CITY utilities. An accuracy of one (1) foot per one hundred (100) feet horizontal and vertical control will be required in the certified record drawings provided to the CITY at completion of project. 15. GRANTEE shall, within 60 days after completion of construction, provide to the CITY a computer disc containing record drawings in AutoCAD drawing file format and a complete set of plans, drawn to scale and certified to the CITY as 17 accurately depicting the horizontal and vertical location and configuration of all Facilities constructed pursuant to the agreement. The City Engineer shall have the discretion to prescribe the format and/or media of said record drawings, consistent with CITY codes and policies. 16. Contractors or agents of GRANTEE shall obtain any and all other necessary permits, licenses, and approvals as required by law. 17. GRANTEE shall provide and maintain a means of locating said improvements upon request in accordance with RCW 19.122. 18 ATTACHMENT 3 Title 20 TELECOMMUNICATIONS AND OTHER COMMERCIAL UTILITIES Chapters: 20.02 General Provisions 20.04 Public Way Agreements 20.06 Franchise 20.08 Facilities Lease 20.10 Conditions of Public Way Agreements, Franchises, and Facilities Leases 20.12 Open Video Systems (OVS) Chapter 20.02 GENERAL PROVISIONS Sections: 20.02.010 Purpose. 20.02.020 Definitions. 20.02.030 Business registration required. 20.02.040 Public way agreement required. 20.02.050 Franchise required. 20.02.060 Cable television franchise required. 20.02.070 Facilities lease required. 20.02.080 Construction permit required. 20.02.090 Application to existing franchise ordinances, agreements, leases, and permits and effect of other laws. 20.02.100 Reserved. 20.02.110 Fees and compensation not a tax. 20.02.120 Taxes are not to be a credit. 20.02.010 Purpose. The purpose and intent of this title is to: A. Establish a local policy concerning regulation of telecommunications carriers, operators, providers, and other commercial utilities in public ways and on City and/or public property; B. Establish, consistent with federal and state law, clear local guidelines, standards and time frames for the exercise of local authority with respect to the regulation of activities of telecommunications carriers, operators, providers, and other commercial utilities in public ways and on City and/or 19 public property; C. Promote competition in telecommunications; D. Minimize unnecessary local regulation of telecommunications carriers, operators, providers, and other commercial utilities; E. Encourage the provision of advanced and competitive telecommunications services on the widest possible basis to the businesses, institutions and residents of the City; F. Permit and manage reasonable access to the public ways of the City for telecommunications purposes on a competitively neutral basis; G. Conserve the limited physical capacity of the public ways held in public trust by the City; H. Assure that the City's current and ongoing costs of granting and regulating private access to and use of the public ways are fully paid by the persons seeking or using such access and causing such costs; I. To the extent permitted by federal and state law, secure fair and reasonable compensation to the City and the residents of the City for permitting private use of the public ways; J. Assure that all telecommunications carriers, operators, providers, and other commercial utilities utilizing public ways or City or public property within the City comply with the ordinances, rules and regulations of the City; K. Assure that the City can continue to fairly and responsibly protect the public health, safety and welfare; and L. Enable the City to discharge its public trust consistent with rapidly evolving federal and state regulatory policies, industry competition and technological development. (Ord. 5034 9 1, 1998.) 20.02.020 Definitions. For the purpose of this title, and the interpretation and enforcement thereof, the following words and phrases shall have the following meanings, unless the context of the sentence in which they are used shall indicate otherwise: "The Act" means the Federal Telecommunications Act, January 31, 1996. "Addressability" means the ability of a telecommunications system to allow 20 telecommunications carriers, operators, or providers to authorize by remote control customer terminals to receive, change, or to cancel any or all specified programming. "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 10 percent. "Applicant" means any person or entity that applies for any public way agreement, franchise, lease, or permit pursuant to this title. "Cable Facilities" means equipment and wiring used to transmit audio and video signals to subscribers. "Cable Operator" means a telecommunications carrier providing or offering to provide "cable service" within the City as that term is defined in the Cable Act and Chapter 13.36 ACC. "Cable Service" for the purpose of this title shall have the same meaning provided by the Cable Act and Chapter 13.36 ACC. "Cable System" means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service and other service to subscribers. "Carrier" means any provider of telecommunications services, except that this term does not include aggregators of telecommunications services as defined in Section 225 of the Act. (See also "Telecommunications carrier".) "City" means the City of Auburn, Washington as defined in ACC 1.04.010 to include all future areas annexed into the City. "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 public way agreements and franchising as provided in this title. "Commercial Utility Provider" means any natural gas, electric power, pipeline, or other company desiring to utilize City public ways for transporting, purveying, or delivering bulk products, or providing commercial power or gas services within the City, or needing to transport bulk product or services through the City to other destinations for commercial purposes. "Council" means the City council of the City of Auburn, Washington acting in its official capacity constituting the legislative body of the City. 21 "Data Communication" means (1) the transmission of encoded information or (2) the transmission of data from one point to another. "Dwelling Units" means residential living facilities as distinguished from temporary lodging facilities such as hospitals, hotel and motel rooms and dormitories, and includes single-family residential units and individual apartments, condominium units, mobile homes, extended care facilities and other multiple -family residential units. "Emergency" means a condition of imminent danger to the health, safety, and welfare of property or persons located within the City including, without limitation, damage to persons or property from natural consequences, such as storms, earthquakes, riots or wars. "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. "FCC" or "Federal Communications Commission" means the federal administrative agency, or lawful successor, authorized to regulate and oversee telecommunications carriers, services and providers on a national level. "Fiber Optics" means the technology of guiding and projecting light for use as a communications medium. "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 or other commercial utility facilities in, under, over, or across public ways of the City and to also provide service to persons or areas in the City. "Franchise Area" means all areas within the current City limits and within any future adjusted boundaries of the City limits. The effective date of any such changes in the City limits will be the effective date(s) of any future annexations. "Franchisee" means a person, as defined herein, firm or corporation to whom or which a franchise, as defined in this section, is granted by the council under this title and the lawful successor, transferee or assignee of said person, firm or corporation subject to such conditions as may be defined in the franchise and in this title. "Grantee" means a holder of a public way agreement, franchise, or lease approved by the City council of the City of Auburn. "Gross Revenue" shall mean all receipts accrued in a franchisee's books for all commercial utility, communications and communications -related operations and M) services from subscribers, who have a service address within the corporate limits of the City of Auburn, to franchisee's business as well as any other revenue arising from operation or possession of a franchise agreement with the City of Auburn, less the application and administrative fees mandated in the franchise agreement and the franchise fee intended for compensation for use of "public ways". By way of example, but without limitation, "gross revenue" includes all revenues from the sale or lease of equipment, installation charges to subscribers who have service addresses within the corporate limits of the City, charges to customers, subscribers and other users of the telecommunications system who have service addresses within the corporate limits of the City. "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 noncollectible from customers (bad debts) which have been written off through generally accepted accounting practices, (c) discounts, and (d) any applicable exclusions under the law. "Lessee" means the holder of a lease for use of City or public property which has been approved by the City council of the City of Auburn. "Other Ways" means the highways, streets, alleys, utility easements or other rights- of-way within the City, but under the jurisdiction and control of a governmental entity other than the City. "Overhead Facilities" means utility poles, utility facilities and telecommunications or other commercial utility facilities located above the surface of the ground, including the underground supports and foundations for such facilities. "OVS" means open video system which is a telecommunications system having two-thirds of its capacity set aside for use by other providers, programmers, or competitive business on a subleasing basis. Because of its self -competitive nature, an OVS is subject to regulatory restrictions. "Person" means and includes corporations, companies, associations, joint stock companies or associations, firms, partnerships, limited liability companies and individuals and includes their lessors, trustees and receivers. "Property of Franchisee" means all plant, or facilities owned, installed or used by a franchisee in the conduct of its business in the City under the authority of a franchise granted pursuant to this title. "Proposal" means an application by any person or entity that applies for any public way agreement, franchise, lease, or permit pursuant to this title. "Public Place" means an area generally open to public access including all public ways, parks, plazas, publicly owned buildings, theaters, and entrances or doorways to places of business that front on a public way. 23 "Public Street" means any highway, street, alley or other public right of way for motor vehicle travel under the jurisdiction and control of the City which has been acquired, established, dedicated or devoted to highway purposes. "Public Way(s)" shall mean the surface of, the air space above the surface, and the space below the surface of any public street, including, but not limited to, any public alley, bridge, land path, trail, court, circle, roundabout, boulevard, drive, tracts, right- of-way or sidewalk under the jurisdiction of the City as now, or in the future, laid out, improved or unimproved within the limits of the City presently and as such limits may be hereafter extended. "State" means the state of Washington. "Subscriber" or "Customer" means a person or user of the commercial utility or telecommunications system who lawfully receives commercial utility or communications services or other service therefrom with franchisee's express permission. "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 federal or state law, orders, and regulations, to allow its use by a telecommunications carrier for a pole attachment. "Telecommunications Carrier" means and includes every person that directly or indirectly owns, controls, operates or manages plant, equipment or facilities within the City's public ways, for the purpose of offering telecommunications services within the City. (See also "Carrier".) "Telecommunications Facilities" means the plant, equipment and facilities, including but not limited to, cables, wires, conduits, ducts, pedestals, antennae, electronics and other appurtenances used or to be used to transmit, receive, distribute, provide or offer telecommunications services. "Telecommunications Operator" means and includes every person who provides telecommunications services within the City over telecommunications facilities located within the City's public ways, without any ownership, management or control of the facilities. "Telecommunications Provider" means and includes every person who utilizes facilities within the City's public ways to provide services outside the City only. "Telecommunications Service" means the providing or offering for rent, sale or lease, or in exchange for other value received, of the transmittal of voice, data, image, graphic and video programming information between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities, with or 24 without benefit of any closed transmission medium. "Telecommunications system," see "Telecommunications Facilities." "Underground Facilities" means utility and telecommunications facilities located under the surface of the ground, excluding the underground foundations or supports for overhead facilities. "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 orders and regulations. "Utility Easement" means any easement in which the City holds an interest in or an interest has been acquired, established, dedicated or devoted for City utility purposes. "Utility Facilities" means the plant, equipment and property, including but not limited to the poles, pipes, mains, conduits, ducts, cables, wires, plant and equipment located under, on or above the surface of the ground within the public ways of the City and used or to be used for the purpose of providing utility or telecommunications services. "WUTC" means the Washington State Utility and Transportation Commission. (Ord. 5034 13 1, 1998.) 20.02.030 Business Registration Required. Except as otherwise provided herein, all commercial utilities, cable operators, telecommunications carriers, operators and providers engaged in the business of transmitting, supplying or furnishing of commercial utility or telecommunications service of any kind originating or terminating in the City, or utilizing facilities within the City's public ways to provide services exclusively outside of the City only, shall apply for and obtain a business registration from the City pursuant to Chapter 5.84 ACC. (Ord. 5034 91,1998.) 20.02.040 Public Way Agreement Required. Except as otherwise provided herein, any commercial utility or telecommunications provider who desires to construct, install, operate, maintain, or otherwise locate facilities in, under, over or across any public way of the City for the sole purpose of providing service to persons and areas outside the City shall first obtain a public way agreement granting the use of such public ways from the City pursuant to Chapter 20.04 ACC. (Ord. 5034 91,1998.) 25 20.02.050 Franchise Required. Except as otherwise provided herein, any commercial utility, telecommunications carrier or operator who desires to construct, install, operate, maintain or otherwise locate facilities in, under, over or across any public way of the City, and to also provide service to persons or areas in the City, shall first obtain a franchise granting the use of such public ways from the City pursuant to Chapter 20.06 ACC. (Ord. 5034 131,1998.) 20.02.060 Cable Television Franchise Required. Except as otherwise provided herein, any telecommunications carrier or other person who desires to construct, install, operate, maintain or locate cable or telecommunications facilities in any public way in the City for the purpose of providing cable service to persons in the City shall first obtain a cable franchise from the City pursuant to Chapter 13.36 ACC. (Ord. 5034 !31,1998.) 20.02.070 Facilities Lease Required. No commercial utility, telecommunications carrier or other entity who desires to locate facilities or other equipment on City property shall locate such facilities or equipment on City property unless granted a facilities lease from the City pursuant to Chapter 20.08 ACC. The City council reserves unto itself the sole discretion to lease City property for telecommunications and other facilities, and no vested or other right shall be created by this section or any provision of this title applicable to such facilities leases. (Ord. 503413 1, 1998.) 20.02.080 Construction Permit Required. Except as otherwise provided herein, the holder of a public way agreement, franchise, or lease granted pursuant to this title, and the holders of cable franchises granted pursuant to Chapter 13.36 ACC, shall, in addition to said public way agreement, franchise, or lease, be required to obtain a construction permit from the City pursuant to Chapter 12.24 ACC. No work, construction, development, excavation, or installation of any equipment or facilities shall take place within the public ways or upon City property until such time as the construction permit is issued. (Ord. 5034 91,1998.) 20.02.090 Application to Existing Franchise Ordinances, Agreements, Leases, and Permits and Effect of Other Laws. 26 All grantees, franchisees, and lessees subject to this title are at all times subject to and must comply with all applicable existing and future federal, state and local laws, ordinances, codes, rules, regulations and orders. A. This title shall have no effect on agreements in effect prior to adoption, unless otherwise provided, in any existing franchise ordinance, franchise agreement, lease, permit, agreement or other authorization to use or occupy a public way in the City until: 1. The expiration of said franchise ordinance, agreement, lease, permit, or authorization; or 2. The amendment to an unexpired franchise ordinance, franchise agreement, lease, permit, authorization, or agreement unless both parties agree to defer full compliance to a specific date not later than the expiration date provided therein. B. Nothing in this title shall be deemed to create an obligation upon any person for which the City is forbidden to require pursuant to federal, state, or other law. C. Upon expiration of the electrical and natural gas franchises in effect at time of adoption of this title, granted by Chapter 13.44 ACC, the franchise shall be renegotiated under the terms of this title. (Ord. 5034 9 1, 1998.) 20.02.100 Reserved. 20.02.110 Fees and Compensation Not a Tax. The fees, charges and fines provided for in this title and any compensation charged and paid as provided 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 commercial utility, telecommunications carrier, operator, or provider, its customers or subscribers or on account of the lease, sale, delivery or transmission of telecommunications services. (Ord. 5034 19 1, 1998.) 20.02.120 Taxes are not to be a Credit. Any compensation paid as provided for in public way agreements, franchises, and/or facility leases 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 taxes, sales taxes, corporate or business occupation taxes or other taxes or fees imposed or levied by any governmental entity. (Ord. 5034 Q 1, 1998.) 27 Chapter 20.04 PUBLIC WAY AGREEMENTS Sections: 20.04.010 Public way agreements. 20.04.020 Public way agreement applications. 20.04.030 Notice of complete application and scheduling of public hearing. 20.04.040 Determination by the City. 20.04.050 Notification of council action and execution of agreement. 20.04.060 Nonexclusive public way agreements. 20.04.070 Rights granted. 20.04.080 Term of telecommunications public way agreements. 20.04.090 Specified route. 20.04.100 Service to City users. 20.04.110 Amendment to public way agreements. 20.04.120 Renewal of public way agreements. 20.04.130 Determination by City for renewal of public way agreements. 20.04.140 Notification of council action on renewal of public way agreements and execution of agreements. 20.04.160 Reserved. 20.04.150 Obligation to cure as a condition of renewal. 20.04.170 Annual fee for recovery of City costs. 20.04.180 Other City costs. 20.04.010 Public Way Agreements. A public way agreement shall be required of any commercial utility or telecommunications providers who desires to occupy specific public ways of the City for the sole purpose of providing commercial utility or telecommunications services to persons or areas outside the City. (Ord. 5034 9 1, 1998.) W. 20.04.020 Public Way Agreement Applications. Any person that desires a public way agreement pursuant to this title shall file an application with the City which shall include the following information: A. The identity of the applicant, including all affiliates of the applicant; B. A description of the commercial utility or telecommunications services that are or will be offered or provided by the applicant using its facilities.- C. acilities; C. A description of the transmission medium or transporting means that will be used by the applicant to offer or provide such telecommunications or utility services; D. Preliminary engineering plans, specifications and a network map of the facilities to be located within the City, all in sufficient detail to identify: 1. The location and route requested for applicant's proposed facilities; 2. The location of all overhead and underground public utility, telecommunication, cable, water, sewer drainage and other facilities in the public way along the proposed route; 3. The location(s), if any, for interconnection with the utility or telecommunications facilities of other utility or telecommunications carriers, operators, and providers; and 4. The specific trees, structures, improvements, facilities and obstructions, if any, that applicant proposes to temporarily or permanently remove or relocate; E. If applicant is proposing to install aboveground and/or overhead facilities: 1. Evidence that surplus space is available for locating its utility or telecommunications facilities on existing utility poles along the proposed route; 2. Proof of compliance with City's zoning code; and 3. Demonstrate compatibility with existing and future street illumination systems; F. If applicant is proposing an underground installation in existing ducts or conduits within the public ways, information in sufficient detail to identify: 29 1. The excess capacity currently available in such ducts or conduits before installation of applicant's utility or telecommunications facilities; 2. The excess capacity, if any, that will exist in such ducts or conduits after installation of applicant's utility or telecommunications facilities; 3. Evidence of ownership or a right to use such ducts or conduits; G. If applicant is proposing an underground installation within new ducts or conduits to be constructed within the public ways: 1. The location proposed for the new ducts or conduits; and 2. The excess capacity that will exist in such ducts or conduits after installation of applicant's utility or telecommunications facilities; H. A preliminary construction schedule and completion date; I. Information to establish that the applicant has obtained all other governmental approvals and permits to construct and operate the facilities, and to offer or provide the utility or telecommunications services, including, but not limited to, evidence that the applicant has registered with the Washington Utilities and Transportation Commission; J. All deposits or charges required pursuant to this title; K. Proof of ability to meet City's bonding requirements in ACC 12.24.050 when the applicant does not have an existing standing bond on file with the City sufficient to cover the scope of work proposed and proof of ability to meet security requirements in ACC 20.10.240 through 20.10.260; L. A copy of an Auburn business registration stamped and signed by the City clerk; and M. A nonrefundable application fee in the amount of $500.00. (Ord. 5034 9 1, 1998.) 20.04.030 Notice of Complete Application and Scheduling of Public Hearing. A. Within 30 calendar days after receipt of the public way agreement application, the City will complete review of the application to determine whether the application contains sufficient information as outlined in ACC 20.04.020 to 30 proceed with processing. If during the 30 calendar day review period, the City engineer determines that the application is incomplete, the City engineer will issue a letter to the applicant specifying the additional information necessary to complete the application. The applicant will be given 30 calendar days to respond to the request for additional information. Once the additional information is received by the City, an additional 14 calendar days will be allowed to determine whether the application is complete. Once the application is determined complete, written notice will be provided following the procedure outlined in this subsection. If the applicant needs additional time to respond the applicant may request up to an additional 30 calendar days. If a response is not timely received, the application will be returned to the applicant with a notice that the application is rejected due to failure to provide the required information. Any new applications will require a new application fee. B. When satisfied that the application is complete, the City engineer will notify the applicant in writing that the application is complete and inform the applicant of the schedule for consideration by the public works committee. If the public works committee determines that the application merits a separate public hearing, it shall recommend to the City council that it schedule a public hearing. The City clerk will notify the applicant in writing of the scheduled hearing. (Ord. 5034 Q 1, 1998.) 20.04.040 Determination by the City. Within 180 calendar days from the time of notification that the application is complete, under ACC 20.04.030(A), the City council shall reach a decision. The City council's decision to grant or deny, in whole or in part, an application for a public way agreement shall be based upon the following: A. Whether the applicant has received all requisite licenses, certificates, and authorizations from the Federal Communications Commission, the Washington Utilities and Transportation Commission, and any other federal or state agency with jurisdiction over the activities proposed by the applicant; B. The capacity of the public ways to accommodate the applicant's proposed facilities; C. The capacity of the public ways to accommodate additional utility, cable, and telecommunications facilities if the public way agreement is granted; D. The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the public way agreement is granted; 31 E. The public interest in minimizing the cost and disruption of construction within the public ways; F. The service that applicant will provide to the community and/or the region; G. The effect, if any, on public health, safety and welfare if the public way agreement is granted; H. The availability of alternate routes and/or locations for the proposed facilities; I. Applicable federal and state utility and telecommunications laws, regulations and policies; j. The ability to avoid or mitigate, to the City's satisfaction, future conflicts with the operation, repair, replacement, and maintenance of City -owned and other public/private utilities; K. The ability of the applicant to stabilize existing pavement structures prior to disturbance in a manner sufficient to ensure future deterioration is not accelerated by virtue of the installed facilities, and/or the ability and willingness of the applicant to fully mitigate such damages to the extent that they may prove unavoidable to the satisfaction of the City. Such security for the pavement's integrity may include additional periods of warranty bonding for up to five years from the date of completion of work as determined by the City engineer; L. Demonstrated ability and commitment to meet City bonding and security requirements established in ACC 20.10.240 through 20.10.260 and Chapter 12.24 ACC; and M. Such other factors as may demonstrate that the public way agreement to use the public ways will serve the community interest. (Ord. 5034 B 1, 1998.) 20.04.050 Notification of Council Action and Execution of Agreement. Upon the City council's decision, the public works director shall notify the applicant of the decision including reason(s) for denial and instruct the applicant of the procedure to follow to complete execution of the agreement if approved by the City council. No public way agreement shall be deemed to have been granted hereunder until the applicant and the City have fully executed a written agreement approved by the City council setting forth the particular terms and provisions under which the grantee has been granted the right to occupy and use public ways of the City and the applicant has provided the security deposits and proof of insurance as required by Chapter 20.10 ACC. (Ord. 5034131,1998.) 32 20.04.060 Nonexclusive Public Way Agreements. No public way agreement granted under this title shall confer any exclusive right, privilege, license or franchise to occupy or use the public ways of the City for delivery of telecommunications services or any other purposes. (Ord. 5034 9 1, 1998.) 20.04.070 Rights Granted. No public way agreement granted under this title shall convey any right, title or interest in the public ways, but shall be deemed an authorization only to use and occupy the public ways for the limited purposes and term stated in the public way agreement. Further, no public way agreement shall be construed as any warranty of title. (Ord. 5034 91,1998.) 20.04.080 Term of Telecommunications Public Way Agreements. By virtue of the uncertainties created by the Act, unless otherwise specified in an existing public way agreement, no agreement granted hereunder shall be in effect for a term exceeding five years. (Ord. 5034 9 1, 1998.) 20.04.090 Specified Route. A public way agreement granted under this title shall be limited to a use of public ways specified and defined in the agreement. (Ord. 5034 S 1, 1998.) 20.04.100 Service to City Users. A grantee shall be permitted to use public ways to offer or provide utility or telecommunications services to persons or areas within the City only upon City council approval of a telecommunications franchise agreement pursuant to this title. (Ord. 5034 !31,1998.) 20.04.110 Amendment to Public Way Agreements. A new application shall be required of an commercial utility or telecommunications provider who desires to extend or locate its facilities in public ways of the City which are not included in a public way agreement previously granted under this title. If a grantee is required by the City to locate or relocate its facilities in public ways not included in a previously granted public way agreement, the City shall grant an amendment to the agreement without further application. (Ord. 5034 t3 1, 1998.) 33 20.04.120 Renewal of Public Way Agreements. A provider that desires to renew its public way agreement in effect under this chapter for an additional term not to exceed five years shall, not more than 180 days nor less than 120 days before expiration of the public way agreement in effect, file an application, which is determined as complete in accordance with ACC 20.04.030, with the City for renewal which shall include the following: A. The information required pursuant to ACC 20.04.020; B. Any information required pursuant to the public way agreement between the City and the grantee; C. All deposits or charges required pursuant to this chapter; and D. A nonrefundable application fee of $75.00. (Ord. 5034 9 1, 1998.) 20.04.130 Determination by City for Renewal of Public Way Agreements. The process specified in ACC 20.04.030 for determining and notifying the applicant of completeness of application shall be used for renewals. Within 120 days after receiving a complete application for renewal, following the procedures in ACC 20.04.040, the City council shall grant or deny the renewal application in whole or in part. If the renewal application is denied, the written determination shall include the reason(s) for denial. The decision to grant or deny an application for the renewal of a public way agreement shall, in addition to the criteria set forth in ACC 20.04.040, be based upon the following: A. The continuing capacity of the public ways to accommodate the applicant's existing facilities; and B. The applicant's compliance with the requirements of this title and the public way agreement. (Ord. 5034 91,1998.) 20.04.140 Notification of Council Action on Renewal of Public Way Agreements and Execution of Agreements. Once the City council has decided on the renewal application, the procedures outlined in ACC 20.04.050 shall be followed for execution of any agreement renewals. (Ord. 5034 91,1998.) 34 20.04.150 Obligation to Cure as a Condition of Renewal. No public way agreement shall be renewed until any ongoing violations or defaults in the grantee's performance under the public way agreement, or of the requirements of this title, have been cured, or a plan, secured by a sufficient bond or deposit of funds to the City's satisfaction, detailing the corrective action to be taken by the grantee has been approved in writing by the City. (Ord. 503413 1, 1998.) 20.04.160 Reserved. 20.04.170 Annual Fee for Recovery of City Costs. Each public way agreement granted under this title is subject to the City's right, which is expressly reserved, to annually fix a fair and reasonable compensation to be paid as reimbursement for the City's costs in connection with reviewing, inspecting and supervising the use and occupancy of the public ways on behalf of the public and existing or future users; provided further, that the compensation required from any utility or telecommunications provider or carrier engaged in the "telephone business," as defined in RCW 82.04.065 shall be consistent with RCW 35.21.860. (Ord. 5034131,1998.) 20.04.180 Other City Costs. All grantees shall, within 30 days after written demand, reimburse the City for all direct and indirect costs and expenses incurred by the City in connection with any modification, amendment, renewal or transfer of the public way agreement. In addition, all grantees shall, within 30 days after written demand, reimburse the City for any and all costs the City reasonably incurs in response to any emergency involving the grantee's facilities. All grantees shall, within 30 days after written demand, reimburse the City for the grantee's proportionate share of all actual, identified expenses incurred by the City in planning, constructing, installing, repairing or altering any City facility as a result of the construction or the presence in the public ways of the grantee's facilities. (Ord. 5034 9 1, 1998.) 35 Chapter 20.06 FRANCHISE Sections: 20.06.010 20.06.020 20.06.030 20.06.040 20.06.050 20.06.060 20.06.070 20.06.080 20.06.090 20.06.100 20.06.110 20.06.120 20.06.130 20.06.140 20.06.150 20.06.170 20.06.180 20.06.190 20.06.010 Franchise requirements. Franchise applications. Notice of complete application and Determination by the City. Notification of council action and Nonexclusive franchise. Term of franchise. Rights granted. Franchise territory. Franchise fees in addition Nondiscrimination. Amendment of franchise. Renewal of franchise. scheduling of public hearing. execution of franchise. to utility taxes. Determination by City for renewal of franchise. Obligation to cure as a condition of renewal. Other City costs. Compensation for use of public ways. Accounts, books and records. Franchise Requirements. A franchise shall be required of any commercial utility or telecommunications operator or carrier or other person who desires to occupy public ways of the City and to provide telecommunications or commercial utility services to any person or area in the City; provided, however, that a public way agreement may be approved in accordance with the provisions of this title instead of a franchise in the following circumstances: A. A privately owned telecommunications network or telecommunications system which is operated solely for purposes of serving itself. An example of such a network or telecommunications system includes, but is not limited to, a telecommunications network connecting two business facilities under common ownership or control, when said facilities are not offered to other business entities or persons. B. De minimus uses of public ways made in conjunction with a wireless telecommunications facility located entirely upon publicly or privately owned property. (Ord. 5034 91,1998.) 36 20.06.020 Franchise Applications. Any person who desires a telecommunications or a commercial utility franchise pursuant to this title shall file an application with the City public works department which, in addition to the information required by ACC 20.04.020, shall include the following: 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; B. An accurate map showing the location of any existing utility or telecommunications facilities in the City that applicant intends to use or lease so that the City can keep track of various systems using the public way(s) to prevent interference between the users; 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, if any; D. A description of applicant's service, access and line extension policies; E. The area or areas of the City the applicant desires to serve and a initial schedule for build -out to the entire franchise area; F. The applicant's intended means and methods of providing service and whether shared use of other utility poles or conduits is envisioned; G. All fees, deposits or charges required pursuant to this chapter; H. Such other and further information as permitted by federal and state law as may be requested by the City; I. Proof of ability to meet City's bonding requirements in ACC 12.24.050 when the applicant does not have an existing standing bond on file with the City sufficient to cover the scope of work proposed and proof of ability to meet security requirements in ACC 20.10.240 through 20.10.260; J. A copy of an Auburn business registration stamped and signed by the City clerk; and K. An nonrefundable application fee in the amount of $2,500. (Ord. 5034 8 1, 1998.) 37 20.06.030 Notice of Complete Application and Scheduling of Public Hearing. A. Notice of Complete Application. Within 30 calendar days after receipt of the franchise application, the City will complete review of the application to determine whether the application contains sufficient information as outlined in ACC 20.06.020 to proceed with processing. If during the 30 calendar day review period, the City engineer determines that the application is incomplete, the City engineer will issue a letter to the applicant specifying the additional information necessary to complete the application. The applicant will be given 30 calendar days to respond. Once the additional information is received by the City, an additional 14 calendar days will be allowed to determine whether the application is complete. Once the application is determined complete, written notice will be provided. If the applicant needs additional time to respond the applicant may request up to an additional 30 calendar days. If a response is not timely received, the application will be returned to the applicant with a notice that the application is rejected due to failure to provide the required information. Any new applications will require a new application fee. B. Scheduling of Public Hearing. When satisfied that the application is complete, the City engineer will notify the applicant in writing that the application is complete and inform the applicant of the schedule for consideration by the public works committee. The public works committee shall review the proposal to include the planned use of the public ways and recommend any modifications required prior to recommending setting the public hearing by the City council. Once satisfied as to the terms of the negotiated draft franchise agreement, the public works committee shall recommend that the City council set the date for the public hearing. The City council will schedule the hearing and the City clerk will notify the applicant in writing of the scheduled hearing. (Ord. 5034 Q 1, 1998.) 20.06.040 Determination by the City. Within 180 calendar days from the time of notification that the application is complete, under ACC 20.06.030(A), the City shall issue a written determination granting or denying the application in whole or in part. Prior to granting or denying a franchise under this title, the City council shall conduct a public hearing and make a decision based upon the criteria set forth below. Pursuant to Section 253(c) of the Federal Act, public disclosure of any fees as compensation for use of public right-of- way is required, and RCW 35A.47.040 provides that the City council shall not approve any franchise hereunder until the next regularly scheduled council meeting following the public hearing. If the application is denied, in whole or in part, the written determination shall include the reason(s) for denial. The decision to grant or deny, in whole or in part, an application for a telecommunications franchise shall be based upon the following: M A. Whether the applicant has received all requisite licenses, certificates, and authorizations from the Federal Communications Commission, the Washington Utilities and Transportation Commission, and any other federal or state agency with jurisdiction over the activities proposed by the applicant; B. The capacity of the public ways to accommodate the applicant's proposed facilities; C. The capacity of the public ways to accommodate additional utility and telecommunications facilities if the franchise is granted; D. The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the franchise is granted; E. The public interest in minimizing the cost and disruption of construction within the public ways; F. The service that applicant will provide to the community and region; G. The effect, if any, on public health, safety and welfare if the franchise requested is granted; H. The availability of alternate routes and/or locations for the proposed facilities; I. Applicable federal and state utility and telecommunications laws, regulations and policies; j. The ability to avoid, or mitigate to the City's satisfaction, future conflicts with the operation, repair, replacement, and maintenance of City -owned and other commercial utilities; K. The ability of the applicant to stabilize existing pavement structures prior to disturbance in a manner sufficient to ensure future deterioration is not accelerated by virtue of the installed facilities, and/or the ability and willingness of the applicant to fully mitigate such damages to the extent that they may prove unavoidable to the satisfaction of the City. Such security for the pavement's integrity may include additional periods of warranty bonding for up to five years from date of completion of work as determined by the City engineer; L. Demonstrated ability and commitment to meet City bonding and security requirements established in ACC 20.10.240 through 20.10.260 and Chapter 12.24 ACC; and M. Such other factors as may demonstrate that the franchise to use the public 39 ways will serve the community interest. (Ord. 5034 9 1, 1998.) 20.06.050 Notification of Council Action and Execution of Franchise. Upon the City council's decision the public works director shall notify the applicant of the decision, including reason(s) for any denial, and instruct the applicant of the procedure to follow to complete execution of the agreement if approved by the City council. No franchise shall be deemed to have been granted hereunder until after the public hearing and City council approval of a written agreement setting forth the particular terms and provisions under which the franchisee has been granted the right to occupy and use public ways of the City and both the City and applicant have fully executed the franchise and the applicant has provided the security deposits and proof of insurance as required by Chapter 20.10 ACC. (Ord. 5034 91, 1998.) 20.06.060 Nonexclusive Franchise. No franchise granted under this title shall confer any exclusive right, privilege, license or franchise to occupy or use the public ways of the City for delivery of utility or telecommunications services or any other purposes. (Ord. 5034 !3 1, 1998.) 20.06.070 Term of Franchise. By virtue of the uncertainties created by the Act, unless otherwise specified in an existing franchise agreement, a telecommunications franchise granted by the City pursuant to this title shall be valid for a term not to exceed five years. (Ord. 5034 9 1, 1998.) 20.06.080 Rights Granted. No franchise granted under this chapter shall convey any right, title or interest in the public ways, but shall be deemed a franchise only to use and occupy the public ways for the limited purposes and term stated in the franchise. Further, no franchise shall be construed as any warranty of title. (Ord. 5034 Q 1, 1998.) 20.06.090 Franchise Territory. Unless otherwise provided in the franchise ordinance, a franchise granted under this chapter shall authorize the franchisee to operate in the public ways throughout the City when a permit to install the necessary facilities has been approved by the City. (Ord. 5034 (31,1998.) 40 20.06.100 Franchise Fees in Addition to Utility Taxes. Revenue derived directly or indirectly from sources within the City shall be subject to applicable utility taxes as of the time of commencement of such operations. Franchise fees shall be in addition to any utility tax, but shall be collectible only to the extent as then allowed by law, and in no event may the combined utility tax and franchise fee exceed six percent of gross revenue. (Ord. 5034 S 1, 1998.) 20.06.110 Nondiscrimination. A franchisee which purports to serve the general public shall make its utility or telecommunications services available to any customer within its franchise area who shall request such service, without discrimination as to the terms, conditions, rates or charges for the franchisee's services; provided, however, that nothing in this title shall prohibit a franchisee from making any reasonable classifications among differently situated customers. (Ord. 5034 Q 1, 1998.) 20.06.120 Amendment of Franchise. Except as otherwise provided within an existing franchise ordinance, a new franchise application shall be required of any commercial utility or telecommunications carrier or operator that desires to extend its franchise territory or to locate its utility or telecommunications facilities in public ways of the City which are not included in a franchise previously granted under this title. If a franchisee is required by the City to locate or relocate its facilities in public ways not included in a previously granted franchise, the City shall grant a franchise amendment without further application. (Ord. 5034 9 1, 1998.) 20.06.130 Renewal of Franchise. A franchisee that desires to renew its franchise under this chapter for an additional five-year term shall, not more than 240 days nor less than 180 days before expiration of the franchise in effect, file an application, which is determined as complete in accordance with ACC 20.06.030, with the City for a renewal of its franchise which shall include the following: A. The information required pursuant to ACC 20.06.020; B. Any information required pursuant to the franchise agreement between the City and the franchisee; C. All deposits or charges required pursuant to this chapter; 41 D. A nonrefundable application fee in the amount of $500.00. (Ord. 5034 f3 1, 1998.) 20.06.140 Determination by City for Renewal of Franchise. The process specified in ACC 20.06.030 for determining and notifying of completeness of application shall be used for renewals. Within 120 calendar days after receiving a complete application for renewal, following the procedures in ACC 20.06.030, the City council shall grant or deny the renewal application in whole or in part. If the renewal application is denied, the written determination shall include the reason(s) for denial. Prior to granting or denying renewal of a franchise under this chapter, in whole or in part, the City council shall conduct a public hearing and make a decision based upon the criteria set forth below in addition to all criteria in ACC 20.06.040. A. The continuing capacity of the public ways to accommodate the applicant's existing facilities. B. The applicant's compliance with the requirements of this title and the franchise agreement. C. Applicable federal, state and local utility and telecommunications laws, rules and policies. D. Such other factors as may demonstrate that the continued franchise to use the public ways will serve the community interest. (Ord. 5034 f3 1, 1998.) 20.06.150 Obligation to Cure as a Condition of Renewal. No franchise shall be renewed until any ongoing violations or defaults in the franchisee's performance of the franchise agreement, or of the requirements of this title, have been cured, or a plan detailing the corrective action to be taken by the franchisee has been approved in writing by the City. (Ord. 5034 9 1, 1998.) 20.06.170 Other City Costs. All franchisees shall, within 30 days after written demand, reimburse the City for all direct and indirect costs and expenses incurred by the City in connection with any modification, amendment, renewal or transfer of the franchise or any franchise agreement. In addition, all franchisees shall, within 30 days after written demand, reimburse the City for any and all costs the City reasonably incurs in response to any emergency involving the franchisee's utility or telecommunications facilities. Finally, all franchisees shall, within 30 days after written demand, reimburse the 42 City for the franchisee's proportionate share of all actual, identified expenses incurred by the City in planning, constructing, installing, repairing or altering any City facility as a result of the presence in the public way of the franchisee's utility or telecommunications facilities. (Ord. 5034 B 1, 1998.) 20.06.180 Compensation for Use of Public Ways. A. The City finds that the public ways to be used by commercial utilities and carriers and operators in the operation of telecommunications systems within the boundaries of the franchise are valuable public properties, acquired and maintained by the City at great expense to its taxpayers, and that the grant of use of said public ways is a valuable property right, without which grantees and franchisees would be required to invest substantial capital in public way costs and acquisitions; therefore, grantees and franchisees shall pay the City as a general compensation for the use of the public way during each year of the term of a franchise a franchise fee as determined by City council, not to exceed six percent of gross revenues for each quarter of each calendar year. Franchisees shall pay the franchise fee mandated by this chapter but the City acknowledges and understands that such amount (and any other fees, assessments, or taxes imposed on franchisees not described in ACC 20.06.180(E)) shall appear as a line item on the bill sent to, and shall be collected from, the subscribers; provided further, that the compensation required from any telecommunications operator or carrier engaged in the "telephone business," as defined in RCW 82.04.065 shall be consistent with RCW 35.21.860. B. Annual Franchise Fee Adjustments. The initial annual franchise fee percentage shall be four and one-half percent of gross revenues unless and until it is further adjusted by City council. Any such adjustment shall occur at least 60 days before any subsequent annual anniversary date. Any adjustment shall become effective on the subsequent annual anniversary date. C. Quarterly Payment. Franchisees shall forward by check wire transfer an amount equal to this quarterly payment by the fifteenth day of the second calendar month immediately following the close of the calendar quarter for which the payment is calculated. D. Late Payment. In the event any quarterly payment is made after noon on the date 10 days after the date due, franchisees shall pay a late payment penalty of the greater of: 1. Twenty-five dollars; or 2. Simple interest at a 12 percent annual percentage rate on the total amount past due. 43 E. Fees and Compensation Not a Tax. The fees, charges and fines provided for in this title and any compensation charged and paid for the franchisee's use of the City's public ways, 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 commercial utility, telecommunications carrier, operator, or provider, its customers or subscribers or on account of the lease, sale, delivery or transmission of utility or telecommunications services. F. Ruling of Unenforceability. The compensation required from any commercial utility, telecommunications carrier, operator, or provider shall be as provided by law. In the event any franchise fee shall be held unenforceable by a court of law which has jurisdiction over the City, franchisees shall pay the equivalent amount paid in franchise fees as a City utility tax which, shall be applied retroactively to time periods during which the franchise fee was determined to be unenforceable. G. Quarterly Report. In order to properly determine the gross revenues received by franchisees, the franchisee shall on the same date that each quarterly payment is made, file with the director of finance a sworn copy of a report, in a form acceptable to the City, 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 franchisees examined by a representative of said City to ascertain the correctness of the reports agreed to be filed herein. Neither the acceptance of any payment nor any subsequent review shall be deemed an agreement by the City that the correct payment was paid, absent a fully authorized written release by the City on any such payments or on such reports. Any necessary prorations shall be made in the first and last year of each term of the franchise. Any City request for access to books and records shall be allowed by the franchisee at reasonable times and for reasonable purposes. Such information shall be held in strict confidence by the City as allowed by law and used only for the purpose stated herein. H. Recalculation at End of Compensation Year. At the end of each calendar year, franchisees shall recalculate the total general compensation actually due. If additional amounts are due the City by franchisee, said amounts shall be paid by the fifteenth day of February following the calendar year during which such amounts were originally due. If amounts are found to be due the franchisees by the City, said amounts shall be credited by the fifteenth day of February during which such amounts were originally due. Any necessary prorations will be made. I. 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 ,S tax, corporate or business occupation taxes or other taxes or fees imposed or levied by any governmental entity. J. Utility Tax Liability n Franchise Fees. Revenues derived directly or indirectly from sources within the City shall be subject to applicable utility taxes as of the time of commencement of such operations. Franchise fees shall be in addition to any utility tax, but shall be collectible only to the extent as then allowed by law, and in no event may the combined utility tax and franchise fee exceed six percent of gross revenues in accordance with RCW 35.21.870. Franchise fees, if applicable, shall be levied on a nondiscriminatory basis. K. Rights of City. Payment of money under any franchise shall not in any way limit or inhibit any of the privileges or rights of the City, except insofar as City's privileges or rights are expressly limited or inhibited by the terms of a franchise. L. Annual Report. Franchisees shall file annually with the director of finance no later than 90 days after the end of franchisee's fiscal year, an unaudited statement of revenues (for that fiscal year just ended) attributable to the operations of the franchisee's telecommunications system, within the City pursuant to the franchise agreement. The 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 underpayment error in payment by franchisees of more than five percent, then franchisees shall pay for the costs of the audit. If the audit reveals an error in payment of five percent or less, the City shall pay the costs of the audit. The report will summarize those accounts reconciled to be within the franchise area by the City's quarterly review. M. Circumventing Payments. Any transaction(s) which have the effect of circumventing payment of the required franchise fees and/or evasion of payment of franchise fees or any payments due the City under a franchise by noncollection or nonreporting of gross revenues, bartering, or any other means which evade the actual collection of revenues for business pursued by franchisees are prohibited. N. Best Rates. As allowed by applicable law, part of the compensation to the City for the grant of any telecommunications franchise, the City shall be entitled to obtain subscriptions, at the City's discretion, to the communications service at franchisee's lowest comparable rate applicable to any government body or municipality of the state of Washington. In addition, City shall be entitled to franchisee's lowest comparable rate applicable to any governmental body or municipality of the state of Washington for purchase and/or lease, should the City determine to purchase and/or lease, equipment or modems applicable to government bodies or municipalities in the state of Washington for purposes 45 of accessing the communications service. (Ord. 5034 9 1, 1998.) 20.06.190 Accounts, Books and Records. The franchisee shall keep the City fully informed as to accounting methods and procedures in connection with the recording and reporting by the franchisee of all revenues and uncollectibles. A. City to Be Informed. Franchisees 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 franchisee's system located in the public way(s), franchisee's accounting methods and procedures in connection therewith, and the recording and reporting by franchisees of all revenues and uncollectibles. Franchisees shall comply with the City's determination regarding forms for reports, the time for reports, the frequency with which any reports are to be made, and whether reports are to be made under oath. The City acknowledges that a franchisee may be a reporting company under the Securities Exchange Act of 1934 and that shares of its stock are publicly traded. As such, a franchisee may be precluded from disclosing certain sensitive, nonpublic information by virtue of rules and regulations promulgated under such act or otherwise. B. Accounts. The franchisee shall keep complete and accurate books of account and records of its business and operations subject to this franchise ordinance in accordance with generally accepted accounting principles or in accordance with accounting rules prescribed by applicable federal or state regulatory agencies. The City may require the keeping of additional records or accounts which are reasonably necessary for purposes of identifying, accounting for, and reporting gross revenues and uncollectibles. All subscribers who report a service address in the City of Auburn shall be subject to taxes and fees under this franchise. When required by the City, the franchisee shall make available a complete list of all service addresses within the City of Auburn. This list shall be available for review by the City at a local franchisee's business office. The list will be provided on a computer disc in ASCII format sorted by zip code. It is understood this data is only needed for Auburn to perform an audit to ascertain that the correct subscribers are subjected to Auburn taxes and fees. As the City annexes new areas, those zip codes, if any, will be added. C. Access to Records. The franchisee shall provide the City with access at reasonable times and for reasonable purposes, to examine, audit, review and/or obtain copies of the papers, books, accounts, documents, maps, plans and other records of the franchisee pertaining to any franchise ordinance. The franchisee shall fully cooperate in making available its records and otherwise assisting in these activities. Such information shall be held in strict confidence by the City, as allowed by law, and used only for the purpose stated 46 herein. D. Inquires to Franchisee. The City may, at any time, make inquires pertaining to the franchisee's operation of its utility or telecommunications system within the franchise area. The franchisee shall respond to such inquiries on a timely basis. Chapter 20.08 FACILITIES LEASE Sections: 20.08.010 Facilities lease. 20.08.020 Lease application. 20.08.030 Notice of complete application and scheduling of public hearing. 20.08.040 Determination by the City. 20.08.050 Notification of council action and execution of lease. 20.08.060 Nonexclusive lease. 20.08.070 Term of facilities lease. 20.08.080 Rights granted. 20.08.090 Interference with other users. 20.08.100 Ownership and removal of improvements. 20.08.110 Cancellation of lease by lessee. 20.08.120 Compensation to the City. 20.08.130 Amendment of facilities lease. 20.08.140 Renewal of facilities lease. 20.08.150 Determination by the City for renewal of facility lease. 20.08.160 Obligation to cure as a condition of renewal. 20.08.010 Facilities Lease. The City council may, in its sole discretion, which is hereby reserved, approve facilities leases for the location of commercial utility or telecommunications facilities and other nontelecommunications facilities upon City property, as that term is defined in this title. Neither this chapter, nor any other provision of this title shall be construed to create an entitlement or vested right in any person or entity of any type to the use of any City property or City facility. (Ord. 5034131, 1998.) 20.08.020 Lease Application. Any person that desires to solicit the City's approval of a facilities lease pursuant to this title shall file a lease proposal with the City which, in addition to the information required by ACC 20.06.020, shall include the following: 47 A. A description of the facilities or other equipment proposed to be located upon City property; B. A description of the City property upon which the applicant proposes to locate facilities or other equipment; C. Preliminary plans and specifications in sufficient detail to identify: 1. The location(s) of existing telecommunications facilities or other equipment upon the City property, whether publicly or privately owned. 2. The location and source of electric and other utilities required for the installation and/or operation of the proposed facilities or equipment; D. Accurate scale conceptual drawings and diagrams of sufficient specificity to analyze the aesthetic impacts of the proposed telecommunications facilities or other equipment; E. If applicant is proposing to install aboveground and/or overhead facilities: 1. Evidence that surplus space is available for locating its telecommunications facilities on existing utility poles along the proposed route; 2. Proof of compliance with City's zoning code; F. 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; G. An accurate map showing the location of any existing utility or telecommunications facilities in the City that applicant intends to use or lease; H. 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; I. A copy of an Auburn business registration stamped and signed by -the City clerk; j. Proof of ability to meet City's bonding requirements in Chapter 12.24 ACC when the applicant does not have an existing standing bond on file with the City sufficient to cover the scope of work proposed and proof of ability to meet the City's security requirements in ACC 20.10.240 through 20.10.260; K. An nonrefundable application fee in the amount of $500.00; and L. Such other and further information as may be requested by the City. (Ord. 5034 B 1, 1998.) 20.08.030 Notice of Complete Application and Scheduling of Public Hearing. A. Within 30 calendar days the City will complete an initial review of the application to determine whether the application contains sufficient information as outlined in ACC 20.08.020 to proceed with processing. Once satisfied that the proposal is clear, the mayor will appoint a negotiation team to meet with the applicant and determine whether additional information is needed. The team shall as a minimum consist of the finance director, a legal representative, and the department director affiliated with the property being considered for lease. If during the 30 calendar day review period, the application is deemed incomplete, the City will issue a letter to the applicant specifying the additional information necessary in order to proceed with processing. The applicant will be given 30 calendar days to respond. Once the additional information is received by the City, an additional 14 calendar days will be allowed to determine whether the application is complete. Once the application is determined complete, written notice will be provided. If a response is not timely received, the application will be returned to the applicant with a notice that the application is rejected due to failure to provide the required information. Any new applications will require a new application fee. B. When satisfied that the application is complete, the finance director will issue a letter of completeness and notifying the applicant of the schedule the issue will be considered by the appropriate council committee. The appropriate committee will give initial considerations to the negotiation team to facilitate completion of a negotiated draft lease agreement. Once the team returns to the committee with a draft lease agreement, the committee will determine if the issues merits a separate public hearing, and recommend to the City council whether a public hearing should be held. The City council will schedule the hearing and the City clerk will notify the applicant in writing of the scheduled hearing. (Ord. 5034 9 1, 1998.) 20.08.040 Determination by the City. Recognizing that the City is under no obligation to approve a facilities lease for the use of City property, the City shall attempt to consider and take action on applications for facilities leases within 180 days from the time of reaching a 49 determination of completeness, under ACC 20.08.030. When such action is taken, the City shall issue a written determination granting or denying the lease in whole or in part. If the lease is denied, in whole or in part, the written determination shall include the reason(s) for denial. The decision to grant or deny an application for a facilities lease shall be based upon, but not be limited to, the following criteria: A. The capacity of the City property and public ways to accommodate the applicant's proposed facilities. B. The capacity of the City property and public ways to accommodate additional utility and telecommunications facilities if the lease is granted. C. The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the lease is granted. D. The public interest in minimizing the cost and disruption of construction upon City property and within the public ways. E. The service and public benefit that applicant will provide to the community and region. F. The effect, if any, on public health, safety, and welfare if the lease requested is approved. G. The availability of alternate routes and/or locations for the proposed facilities. H. Whether the applicant is in compliance with applicable federal and state telecommunications laws, regulations and policies, including, but not limited to, the registration requirements administered by the Washington Utilities and Transportation Commission. I. The potential for radio frequency and other interference with existing public and private telecommunications or other facilities located upon the City property. J. The potential for radio frequency and other interference or impacts upon residential, commercial, and other uses located within the vicinity of the City property. K. Whether the City's property zoning supports the proposed land use. L. Demonstrated ability and commitment to meet City bonding and security requirements established in ACC 20.10.240 through 20.10.260. A Such other factors as may demonstrate that the lease to use the City property will serve the community interest. 50 N. Other criteria determined to be necessary or appropriate to the public health, safety, or welfare of the community. (Ord. 5034 Q 1, 1998.) 20.08.050 Notification of Council Action and Execution of Lease. Upon the City council's decision, the finance director shall notify the applicant of the decision and instruct the applicant of the procedure to follow to complete execution of the lease agreement if approved by the City council. No facilities lease shall be deemed to have been granted hereunder until after any scheduled public hearing and City council approval of a written agreement setting forth the particular terms and provisions under which the lessee has been granted the right to occupy and use the City property specified in the lease and both the City and applicant have fully executed the lease and the applicant has provided the security deposits and proof of insurance as required by Chapter 20.10 ACC. (Ord. 5034 9 1, 1998.) 20.08.060 Nonexclusive Lease. No facilities lease granted under this title shall confer any exclusive right, privilege, license, or franchise to occupy or use City property for delivery of utility or telecommunications services or any other purposes. (Ord. 5034 9 1, 1998.) 20.08.070 Term of Facilities Lease. By virtue of the uncertainties created by the Act, except as provided in an existing lease agreement, a facilities lease granted hereunder shall be valid for a maximum term of five years, subject to renewal as provided in this chapter. (Ord. 5034 13 1, 1998.) 20.08.080 Rights Granted. No facilities lease granted under this chapter shall convey any right, title or interest, of any kind, in the City property, but shall be deemed a license only to use and occupy the City property for the limited purposes and term stated in the lease agreement. Further, no facilities lease shall be construed as any warranty of title. (Ord. 5034 B 1, 1998.) 20.08.090 Interference with Other Users. No facilities lease shall be granted under this title unless it contains a provision which is substantially similar to the following: 51 The City has previously entered into leases with other tenants for their equipment and telecommunications facilities. Lessee acknowledges that the City is also leasing the City property for the purposes of transmitting and receiving telecommunications signals from the City property. The City, however, is not in any way responsible or liable for any interference with Lessee's use of the City property which may be caused by the use and operation of any other tenant's equipment, even if caused by new technology. In the event that any other tenant's activities interfere with the Lessee's use of the City property, and the Lessee cannot work out this interference with the other tenants, the Lessee may, upon 30 days' notice to the City, terminate this Lease and restore the City property to its original condition, reasonable wear and tear excepted. The Lessee shall cooperate with all other tenants to identify the causes of, and work towards the resolution of, any electronic interference problem. In addition, the Lessee agrees to eliminate any radio or television interference caused to City -owned or other public/private facilities or surrounding property owners, residents, or tenants at Lessee's own expense and without installation of extra filters on City -owned equipment. Lessee further agrees to accept such interference as may be received from City operated telecommunications or other facilities located upon the City property subject to this Lease. (Ord. 5034 Q 1, 1998.) 52 20.08.100 Ownership and Removal of Improvements. No facilities lease shall be granted under this title unless it contains a provision which states that all buildings, landscaping, and all other improvements, except lessee's equipment, shall become the property of the City upon expiration or termination of the lease. In the event that the City requires removal of such improvements, such removal shall be accomplished at the sole expense of the lessee and completed with full restoration of the site to the original condition or its practical equivalent as determined by the City, within 90 days after receiving written notice from the City requiring removal of the improvements. Further, in the event that utility or telecommunications facilities or other equipment are left upon City property after expiration or termination of the lease, they shall become the property of the City if not removed by the lessee after 30 days' written notice from the City. (Ord. 5034 !31,1998.) 20.08.110 Cancellation of Lease by Lessee. A. All facilities leases are contingent upon the prospective lessee obtaining all necessary permits, approvals, and licenses for the proposed facilities. In the event that the prospective lessee is unable to obtain all such permits, approvals, and licenses, it may cancel its lease, and obtain a pro rata refund in any rents paid, without further obligation by giving 30 days' prior written notice to the City. B. In the event that the holder of a facilities lease determines that the City property is unsuitable for its intended purpose, the lessee shall have the right to cancel the lease upon 120 days' written notice to the City. However, no prepaid rent shall be refundable. (Ord. 5034 9 1, 1998.) 20.08.120 Compensation to the City. Each facilities lease granted under this title is subject to the City's right, which is expressly reserved, to annually fix a fair and reasonable compensation to be paid for the rights granted to a lessee; provided, nothing in this title shall prohibit the City and a lessee from agreeing to the compensation to be paid. Such compensation shall be payable in advance of the effective date of the lease and on or before January 31st of each calendar year. Any payments received after the due date shall include a late payment penalty of two percent of the annual rental fee for each day or part thereof past the due date. If any or all of the rental fee is more than 60 calendar days delinquent, the lease will automatically terminate on the sixty-first calendar day of delinquency, and the City may proceed to collect against any security provided by the lessee. (Ord. 5034 f3 1, 1998.) 53 20.08.130 Amendment of Facilities Lease. Except as provided within an existing lease agreement, a new lease application and lease agreement shall be required of any lessee that desires to expand, modify, or relocate its facilities or other equipment located upon City property. If the lessee is required by the City to locate or relocate its facilities or other equipment on the City property, the City shall grant a lease amendment without further application. (Ord. 5034 (31,1998.) 20.08.140 Renewal of Facilities Lease. A lessee that desires to renew its facilities lease in effect under this chapter shall, not more than 120 days nor less than 90 days before expiration of the facilities lease then in effect, file an application, which is determined as complete in accordance with ACC 20.08.030, with the City for renewal of its facilities lease which shall include the following: A. The information required pursuant to ACC 20.08.020; B. Any information required pursuant to the facilities lease agreement between the City and the lessee; C. All deposits or charges required pursuant to this chapter; D. A nonrefundable application renewal fee in the amount of $250.00. (Ord. 5034 B 1, 1998.) 20.08.150 Determination by the City for Renewal of Facility Lease. All renewals of leases subject to this title shall be renewed in accordance with the provisions of ACC 20.08.030 and 20.08.040. Recognizing that the City council is under no obligation to approve a renewal of a facilities lease for the use of City property, the City council shall attempt to consider and take action on applications for renewal of such leases within 90 days after receiving a complete application for such a lease renewal. When such action is taken, the City shall issue a written determination granting or denying the lease renewal, in whole or in part. If the renewal application is denied, the written determination shall include the reason(s) for denial. The decision to grant or deny an application for renewal of a facilities lease shall be based upon, but not limited to, the following: A. The continuing capacity of the City property to accommodate the applicant's existing facilities. B. The applicant's compliance with the requirements of this title and the lease 54 agreement. C. Such other factors as may demonstrate that the continued approval to use the City property ways will serve the community interest. D. Any criteria contained in ACC 20.08.040. (Ord. 5034 91, 1998.) 20.08.160 Obligation to Cure as a Condition of Renewal. No facilities lease shall be renewed until any ongoing violations or defaults in the lessee's performance of the lease agreement, or of the requirements of this title, have been cured, or a plan, secured by bond or deposit account to the City's satisfaction, detailing the corrective action to be taken by the lessee has been approved in writing by the City. (Ord. 5034 B 1, 1998.) Chapter 20.10 CONDITIONS OF PUBLIC WAY AGREEMENTS, FRANCHISES, AND FACILITIES LEASES Sections: 20.10.010 Purpose. 20.10.020 Acceptance and effective date. 20.10.030 Police power. 20.10.040 Rules and regulations by the City. 20.10.050 Location of facilities. 20.10.060 Compliance with One Number Locator Service. 20.10.070 Construction permits. 20.10.080 Interference with the public ways. 20.10.090 Damage to property. 20.10.100 Notice of work. 20.10.110 Repair and emergency work. 20.10.120 Maintenance of facilities. 20.10.130 Abandonment, relocation or removal of facilities. 20.10.140 Building moving. 20.10.150 Removal of unauthorized facilities. 20.10.160 Emergency removal or relocation of facilities. 20.10.170 Damage to facilities. 20.10.180 Restoration of public ways, other ways, City property and public/private utility property. 20.10.190 Facilities maps. 20.10.200 Duty to provide information. 20.10.210 Leased capacity. 20.10.220 Insurance. 55 20.10.230 General indemnification. 20.10.240 Performance and construction surety. 20.10.250 Security options. 20.10.260 Performance bond. 20.10.270 Coordination of construction activities. 20.10.280 Assignments or transfers of public way agreements, franchises, or leases. 20.10.290 Transactions affecting control of public way agreements, franchises, or leases. 20.10.300 Revocation or termination of public way agreements, franchises, or leases. 20.10.310 Notice and duty to cure. 20.10.320 Public hearing. 20.10.330 Standards for revocation or lesser sanctions. 20.10.340 Civil penalties. 20.10.350 Enforcement. 20.10.360 Other remedies. 20.10.370 Venue of any court action. 20.10.380 Action by the FCC. 20.10.390 Incorporation by reference. 20.10.400 Notice of entry on private property. 20.10.410 Safety requirements. 20.10.420 Most favored community. 20.10.430 Compliance with zoning standards. 20.10.440 Unfunded mandate. 20.10.450 Care of trees along streets. 20.10.460 Use of utility poles and facilities of others. 20.10.470 Use of poles and facilities by City. 20.10.480 Administration. 20.10.010 Purpose. The purpose of this chapter is to set forth certain terms and conditions which are common to all public way agreements, franchises, and facilities leases granted under the provisions of this title. Except as otherwise provided in this chapter or in such a public way agreement, franchise, or lease, the provisions of this chapter apply to all such public way agreements, franchises, and leases approved or granted by the City. (Ord. 5034 91,1998.) 20.10.020 Acceptance and Effective Date. No public way agreement, franchise, or lease granted pursuant to the provisions of this title shall become effective unless and until the ordinance or other City action granting the same has become effective. Within 30 days after the effective date of the 56 ordinance or other City action granting a public way agreement, franchise, or lease, or within such extended period of time as the council in its discretion may authorize, the applicant shall file with the City clerk an unconditional written acceptance of the public way agreement, franchise, or lease, in a form satisfactory to the City attorney, together with the bonds, insurance policies, and security fund required by this title. (Ord. 5034 (31,1998.) 20.10.030 Police Power. In accepting and executing any public way agreement, franchise or lease, the grantee, franchisee, or lessee acknowledges that its rights thereunder are subject to the legitimate rights of the police power of the City to adopt and enforce general ordinances necessary to protect the safety, health, and welfare of the public, and agrees to comply with all applicable general laws enacted by the City pursuant to such power. (Ord. 5034:9 1, 1998.) 20.10.040 Rules and Regulations by the City. In addition to the inherent powers of the City to regulate and control any public way agreement, franchise, or lease granted, the authority granted to the City by the Cable Act and the Telecommunications Act of 1996, and those powers expressly reserved by the City, or agreed to and provided for in any public way agreement, franchise, or lease, the right 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 grantees, franchisees, and lessees. Except as provided in this title, the foregoing does not allow for amendment by the City of material terms of any public way agreement, franchise, or lease granted without the written consent of the grantee, franchisee, or lessee. (Ord. 5034 i3 1, 1998.) 20.10.050 Location of Facilities. All facilities shall be constructed, installed, and located in accordance with the following terms and conditions, unless otherwise specified in a public way agreement, franchise, or lease agreement. A. Unless otherwise provided in a public way agreement, franchise, or lease, a grantee, franchisee, or lessee with permission to occupy a public way must locate its cable or telecommunications facilities underground in accordance with ACC Title 18 and Chapter 13.32 ACC. B. Any newcomer in the public way must bear the full cost of discovering the location of any existing conflicts, coordination of the engineering plans to acquire the approvals of parties already in the public way, and relocating 57 and/or mitigating such conflicts with preexisting facilities in conflict with the plans of the newcomer. C. Whenever the City requires, a grantee, franchisee, or lessee subject to this title, that currently occupies the public way 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. D. Should the available capacity of public ways prevent new uses in the future, all persons subject to this title shall negotiate with any interested newcomer the means of creating new capacity as required by federal or state law. The parties shall arrive at a mutually supportable agreement and submit the same to the City for review and comment. The parties will incorporate any reasonable City requirements for approval, and resubmit the revised proposal for City council approval. If approved by the City council, the parties will bear all costs associated with the proposal, and obtain the necessary permits to execute the approved plan from the City in accordance with this title and Chapter 12.24 ACC. The City shall bear no costs associated with resolution of capacity shortages within the public ways. (Ord. 5034 9 1, 1998.) 20.10.060 Compliance with One Number Locator Service. All grantees, franchisees, and lessees shall, before commencing any construction in the public ways, comply with all regulations of Chapter 19.122 RCW, the One Number Locator Service. (Ord. 5034 9 1, 1998.) 20.10.070 Construction Permits. All grantees of public way agreements, franchisees, and lessees of City properties are required to obtain construction permits, as required in Chapter 12.24 ACC, for installing utility, cable and telecommunications facilities. However, nothing in this title shall prohibit the City and a grantee, franchisee, or lessee from agreeing to alternative plan review, permit, and construction procedures for a public way agreement, franchise, or lease granted under this title, provided such alternative procedures provide substantially equivalent safeguards for responsible construction practices. (Ord. 5034 9 1, 1998.) 20.10.080 Interference with the Public Ways. No grantee, franchisee, or lessee may locate or maintain its utility, cable or telecommunications facilities so as to unreasonably interfere with the use of the public ways by the City, by the general public or by other persons authorized to use or be present in or upon the public ways. All such facilities which unreasonably interfere with the use of the City's public ways as determined by the public works director, shall be moved in accordance with provisions in ACC 20.10.130, by the grantee, franchisee, or lessee, at the grantee, franchisee, or lessee's cost, temporarily or permanently, as determined by the public works director. (Ord. 5034 9 1, 1998.) 20.10.090 Damage to Property. No grantee, franchisee, or lessee, nor any person acting on behalf of a grantee, franchisee, or lessee shall take any action or permit any action to be taken which may impair or damage any City property, public ways of the City, other ways or other property, whether publicly or privately owned, located in, on or adjacent thereto. (Ord. 5034 C 1, 1998.) 20.10.100 Notice of Work. Unless otherwise provided in a public way agreement, franchise, or lease agreement, no grantee, franchisee, or lessee, nor any person acting on behalf of the grantee, franchisee, or lessee shall commence any nonemergency work in or about the public ways of the City, other ways, or upon City property without 10 working days' advance written notice to the City which notice shall include the location of the work to be done, a detailed description of the work to be done, and a schedule for completion. (Ord. 5034 Q 1, 1998.) 20.10.110 Repair and Emergency Work. In the event of an emergency, a grantee, franchisee, or lessee may commence such repair and emergency response work as required under the circumstances, provided the grantee, franchisee, or lessee shall notify the City in writing as promptly as possible, before such repair or emergency work commences or as soon thereafter as possible if advance notice is not practicable. The City may act without prior written notice in case of emergency. (Ord. 5034 B 1, 1998.) 20.10.120 Maintenance of Facilities. Each grantee, franchisee, or lessee shall maintain its facilities in good and safe condition and in a manner that complies with all applicable federal, state and local requirements. (Ord. 5034 9 1, 1998.) 20.10.130 Abandonment, Relocation or Removal of Facilities. 59 Within 30 days following written notice from the City, a grantee, franchisee, or lessee shall, at its sole expense, temporarily or permanently remove, relocate, change, or alter the position of any commercial utility, cable or telecommunications facilities within the public ways or upon City property whenever the City public works director shall have determined that such removal, relocation, change, or alteration is reasonably necessary for: A. The construction, repair, maintenance, or installation of any City or other public improvement in or upon the public ways; and B. The operations of the City, utility providers, or other governmental entity in or upon the public ways; and C. Facilities are deemed by the City as abandoned due to failure to cure of the grantee, franchisee, or lessee. However, in the event such relocation is required due to emergency repairs deemed necessary by the City, such relocation or moving shall be accomplished within 24 hours. (Ord. 5034 Q 1, 1998.) 20.10.140 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, a grantee, franchisee, or lessee, upon seven calendar days' written notice from the City, shall raise or remove, at the expense of the person desiring to move the building, any of the grantee, franchisee, or lessee's utility wires, poles, or facilities which may obstruct the moving of such building; provided, that the person desiring to move the building shall comply with all requirements of the City for the moving of buildings. (Ord. 5034 91, 1998.) 20.10.150 Removal of Unauthorized Facilities. Within 30 days following written notice from the City, any commercial utility, telecommunications carrier, operator, lessee or other person who owns, controls, or maintains any unauthorized cable or telecommunications system, facility, or related appurtenances within the public ways or upon property of the City shall, at its own expense, remove such facilities or appurtenances from the public ways of the City. A utility, cable or telecommunications system or facility is unauthorized and subject to removal in the following circumstances: A. Upon expiration or termination of the grantee, lessee, or franchisee's public way agreement, franchise, or lease; B. Upon leaving any system or facility within the public ways or upon property of the City, any such property of a grantee, franchisee, or lessee shall be deemed abandoned if left in place 90 days after expiration or termination of a public way agreement, franchise, or lease; C. If the system or facility was constructed or installed without the prior approval of a public way agreement, franchise or lease; D. If the system or facility was constructed or installed without the prior issuance of a required construction permit; E. If the system or facility was constructed or installed at a location not permitted by a public way agreement, franchise or lease. Provided, however, that the City may, in its sole discretion, allow a grantee, franchisee, or lessee or other such persons who may own, control, use, or maintain commercial utility, cable or telecommunications facilities within the public ways of the City or upon City property to abandon such facilities in place. No facilities of any type may be abandoned in place without the express written consent of the City. Any plan for abandonment or removal of a grantee's, franchisee's, or lessee's facilities must be first approved by the public works director, and all necessary permits must be obtained prior to such work. Upon permanent abandonment in place of the facilities such facilities shall become the City's property, and such persons shall submit to the City an instrument in writing, to be approved by the City attorney, transferring to the City the ownership of such property. The provisions of this section shall survive the expiration, revocation, or termination of a public way agreement, franchise, or lease granted under this title. (Ord. 5034 Q 1, 1998.) 20.10.160 Emergency Removal or Relocation of Facilities. The City retains the right and privilege to cut or move any commercial utility, cable or telecommunications facilities located within the public ways of the City and upon City property, as the City may determine to be necessary, appropriate or useful in response to any public health or safety emergency. The City shall not be liable to any utility, cable operator, telecommunications carrier, operator, or provider, or any other party for any direct, indirect, or any other such damages suffered by any person or entity of any type as a direct or indirect result of the City's actions under this section. (Ord. 5034 91,1998.) 20.10.170 Damage to Facilities. Unless directly and proximately caused by the City, the City shall not be liable utility, cable, or telecommunications by the willful, intentional, or malicious acts for any damage to or loss of any commercial facilities upon City :BM 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. (Ord. 5034 9 1,1998.) 20.10.180 Restoration of Public Ways, Other Ways, City Property and Public/Private Utility Property. A. When a grantee, franchisee, lessee, or any person acting on behalf such persons, does any work in or affecting any public ways, other ways, City property, or public/private utilities located in the public ways, it shall, at its own expense, promptly remove any obstructions therefrom and restore such ways or property to as good a condition as existed before the work was undertaken, unless otherwise directed by the City. B. If weather or other conditions do not permit the complete restoration required by this section, or other City codes, regulations or policies, the grantee, franchisee, or lessee shall temporarily restore the affected public ways, other ways, or property. Such temporary restoration shall be at the grantee, franchisee, or lessee's sole expense and the grantee, franchisee, or lessee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration. C. A grantee, franchisee, lessee or other person acting on behalf of such persons shall use suitable barricades, flags, flagmen, lights, flares, and other measures as required for the safety of all members of the general public and to prevent injury or damage to any person, vehicle, or property by reason of such work in or affecting such public ways, other ways, or property. D. The public works director shall be responsible for inspection and final approval of the condition of the public ways, other ways, and City property following any construction and restoration activities therein. Further, the provisions of this section shall survive the expiration, revocation, or termination of a public way agreement, franchise, lease, or other agreement granted pursuant to this title or Chapter 12.24 ACC. (Ord. 5034 B 1, 1998.) 20.10.190 Facilities Maps. Each grantee, franchisee, and lessee shall provide the City with a map or maps accurately reflecting the horizontal and vertical location and configuration of all of their commercial utility or telecommunications facilities within the public ways and upon City property. Each grantee, franchisee, and lessee shall provide the City with updated maps annually or upon written request by the City. (Ord. 5034 9 1, 1998.) oG►? 20.10.200 Duty to Provide Information. Within 10 working days of a written request from the City, each grantee, franchisee, or lessee shall furnish the City with information sufficient to demonstrate: A. That the grantee, franchisee, or lessee has complied with all requirements of this title; and B. That all sales, utility and/or telecommunications or other taxes or assessments due the City in connection with the commercial utility, cable, or telecommunications services and facilities provided by the grantee, franchisee, or lessee have been properly collected and paid by the grantee, franchisee, or lessee. All books, records, maps and other documents, maintained by the grantee, franchisee, or lessee with respect to its utility or telecommunications facilities within the public ways and upon City property shall be made available for inspection by the City at reasonable times and intervals; provided, however, that nothing in this section shall be construed to require a grantee, franchisee, or lessee to violate state or federal law regarding subscriber privacy, nor shall this section be construed to require a grantee, franchisee, or lessee to disclose proprietary or confidential information without adequate safeguards for its confidential or proprietary nature. Such information shall be held in strict confidence, as allowed by law, by the City and used only for the purpose stated herein. (Ord. 5034 9 1, 1998.) 20.10.210 Leased Capacity. A grantee, franchisee, or lessee shall have the right to offer or provide capacity or bandwidth to its customers consistent with such permit, franchise, or lease; provided: A. The grantee, franchisee, or lessee shall furnish the City with a copy of any such lease or agreement between the grantee, franchisee, or lessee and the customer or sub -lessee or provide to the City's finance director sufficient information to determine whether the lessee or customer is subject to City taxes or assessments; and B. The sub -lessee fulfills all requirements of Chapters 5.82 and 5.88 ACC regarding the reporting of all revenues subject to City taxes and assessments; and C. Lessee must comply with the City's registration requirements in Chapter 5.84 ACC. (Ord. 5034 B 1, 1998.) 63 20.10.220 Insurance. Unless otherwise provided in a public way agreement, franchise, or lease agreement, each grantee, franchisee, or lessee shall, as a condition of the permit or public way agreements, franchises, or leases, secure, and maintain the following liability insurance policies insuring both the grantee, franchisee, or lessee and the City, and its elected and appointed officers, officials, agents, employees, representatives, engineers, consultants, and volunteers as additional insureds against claims for injuries to persons or damages to property which may arise from or in connection with the exercise of the rights, privileges, and authority granted to the grantee, franchisee, or lessee: A. Comprehensive general liability insurance, written on an occurrence basis, with limits not less than: 1. Five million dollars for bodily injury or death to each person; 2. Five million dollars for property damage resulting from any one accident; and 3. Five million dollars for all other types of liability; B. Automobile liability for owned, nonowned and hired vehicles with a limit of $3,000,000 for each person and $3,000,000 for each accident; C. Worker's compensation within statutory limits and employer's liability insurance with limits of not less than $1,000,000; D. Comprehensive form premises -operations, explosions and collapse hazard, underground hazard and products completed hazard with limits of not less than $3,000,000; E. The liability insurance policies required by this section shall be maintained by the grantee, franchisee, or lessee throughout the term of the public way agreement, franchise, or lease, and such other period of time during which the grantee, franchisee, or lessee is operating without a public way agreement, franchise, or lease hereunder, or is engaged in the removal of its telecommunications facilities. The grantee, franchisee, or lessee shall provide an insurance certificate, together with an endorsement naming the City, and its elected and appointed officers, officials, agents, employees, representatives, engineers, consultants, and volunteers as additional insureds, to the City prior to the commencement of any work or installation of any utility or telecommunications facilities pursuant to said public way agreement, franchise, or lease. Any deductibles or self-insured retentions must be 64 declared to and approved in writing by the City prior to the franchise becoming effective. Payment of deductibles and self-insured retentions shall be the sole responsibility of the grantee, franchisee, or lessee. The insurance certificate required by this section shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. The grantee, franchisee, or lessee's insurance shall be primary insurance as respects the City, its officers, officials, employees, agents, consultants, and volunteers. Any insurance maintained by the City, its officers, officials, employees, consultants, agents, and volunteers shall be in excess of the grantee, franchisee, or lessee's insurance and shall not contribute with it; F. In addition to the coverage requirements set forth in this section, each such insurance policy shall contain the following endorsement: It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew be stated until 60 days after receipt by the City, by registered mail, (return receipt requested) of a written notice addressed to the City Clerk of such intent to cancel or not to renew. G. Within 30 days after receipt by the City of said notice, and in no event later than 15 days prior to said cancellation or intent not to renew, the grantee, franchisee, or lessee shall obtain and furnish to the City replacement insurance policies meeting the requirements of this section. Any lapse in the required insurance coverage shall be cause for termination of any public way agreement, franchise, or lease. (Ord. 5034 19 1, 1998.) 65 20.10.230 General Indemnification. No public way agreement, franchise, or lease shall be deemed to be granted under this title unless it includes an indemnity clause substantially conforming to the following: The grantee, franchisee, or lessee 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, and consultants from any and all claims, costs, judgments, awards, or liability to any person, including claims by the grantee, franchisee, or lessee's own employees to which the grantee, franchisee, or lessee might otherwise be immune under RCW Title 51, arising from injury or death of any person or damage to property of which the negligent acts or omissions of the grantee, franchisee, or lessee, its agents, servants, officers, or employees in performing under this Public Way Agreement, franchise, or lease are the proximate cause. The grantee, franchisee, or lessee 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, and consultants from any and all claims, costs, judgments, awards, or liability to any person including claims by the grantee, franchisee, or lessee's own employees, including those claims to which the grantee, franchisee, or lessee might otherwise have immunity under RCW Title 51, 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 the grantee, franchisee, or lessee's exercise of the rights granted herein, or by virtue of the City's permitting the grantee, franchisee, or lessee'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 the grantee, franchisee, or lessee, 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 Public Way Agreement, franchise, or lease, or pursuant to any other permit or approval issued in connection with this Public Way Agreement, Franchise, or Lease. 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 the grantee, franchisee, or lessee, 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 Public Way Agreement, Franchise, or Lease. Inspection or acceptance by the City of any work performed by the grantee, franchisee, or lessee 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 the grantee, franchisee, or lessee refuses the tender of defense i n 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 shall agree to decide the matter), to have been a wrongful refusal on the part of the grantee, franchisee, or lessee, then the grantee, franchisee, or lessee shall pay all of the City's costs for defense of the action, including all reasonable expert witness fees and reasonable attorneys' fees and the reasonable costs of the City, including reasonable attorneys' fees of recovering under this 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 the grantee, franchisee, or lessee, and the City, its officers, employees and agents, the grantee, franchisee, or lessee's liability hereunder shall be only to the extent of the grantee, franchisee, or lessee's negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes the grantee, franchisee, or lessee's waiver of immunity under RCW Title 51, 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 any Public Way Agreement, Franchise, or Lease agreement. Notwithstanding any other provisions of this Title, the grantee, franchisee, or lessee 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 officers, agents, employees, and contractors. The grantee, franchisee, or lessee releases and waives any and all claims against the City, its officers, agents, employees, or contractors for damage to or destruction of the grantee, franchisee, or lessee's facilities caused by or arising out of activities conducted by the City, its officers, agents, employees, and contractors, in the public ways, rights-of-way, easements, or property subject to this Public Way Agreement, Franchise, or Lease, 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 officers, agents, employees, or contractors. The grantee, franchisee, or lessee 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 the grantee, franchisee, or lessee'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 officers, agents, employees, or contractors, 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 officers, agents, employees, or contractors. (Ord. 5034 9 1, 1998.) 67 20.10.240 Performance and Construction Surety. Before a public way agreement, franchise, or lease granted pursuant to this title is effective, and as necessary thereafter, the grantee, franchisee, or lessee shall provide and deposit such moneys, bonds, letters of credit, or other instruments in form and substance acceptable to the City as may be required by this title or by an applicable public way agreement, franchise, or lease agreement. All performance bonds for grantees, franchisees, and lessees shall satisfy the minimum standards established by the public works department at the time of the grantees', franchisees', and lessees' application. (Construction bond section(s) of Standard Specifications for Road, Bridge, and Municipal Construction for Washington State Department of Transportation and American Public Works Association). Construction bonds sureties shall be provided as required by Washington State laws. (Ord. 5034 91,1998.) 20.10.250 Security Options. In order to secure the conditions agreed to in any agreement negotiated under this title, for the full term of such agreements, each grantee, franchisee, or lessee shall establish a permanent security bond, assignment of funds, or an unconditional letter of credit from a Washington State bank with the City by either providing the City engineer a standing warranty bond or by depositing the amount of funds as follows in an Washington state bank utilizing the City's standard assignment form, or by provision of the letter of credit. The amount of security shall be 10 percent of the City engineer's estimate of the performance bond amount (ACC 20.10.260) based upon the total scope of work proposed within the public ways, or $50,000 whichever is less, or such lesser amount determined by the public works director to be sufficient. The security shall be maintained at the sole expense of the grantee, franchisee, or lessee so long as any of the grantee, franchisee, or lessee's utility, cable or telecommunications facilities are located within the public ways of the City or upon City property and until released by the City. In the event a security involves a bank, the grantee, franchisee, or lessee is responsible for negotiating any interest that may accrue to the account during the duration of effect. Should the agreement being secured be terminated, the finance director will coordinate with other departments and determine if any portion of the security may be released by the City. A. The security shall secure the full and complete performance of the requirements of this title, including any costs, expenses, damages, or loss the City pays or incurs, including civil penalties, because of any failure attributable to the grantee, franchisee, or lessee to comply with any applicable legal requirements including, but not limited to, the codes, ordinances, rules, regulations, or permits of the City. B. Before the City executes on the security bond or any sums are withdrawn from the security fund, the City shall give written notice to the grantee, franchisee, or lessee: 1. Describing the act, default or failure to be remedied, or the damages, costs or expenses which the City has incurred by reason of grantee, franchisee, or lessee's act, default, or failure; 2. Providing a reasonable opportunity for grantee, franchisee, or lessee to first remedy the existing or ongoing default or failure, if applicable; 3. Providing a reasonable opportunity for grantee, franchisee, or lessee to pay any moneys due the City before the City executes the bond or withdraws the amount thereof from the security fund, if applicable; and 4. That the grantee, franchisee, or lessee will be given an opportunity to review the act, default or failure described in the notice with the City or his or her designee. C. Grantees, franchisees and lessees shall replenish the security bond or fund within 14 calendar days after written notice from the City that there is a deficiency in the amount of the bond or fund. (Ord. 5034 19 1, 1998.) 20.10.260 Performance Bond. All performance bonds provided in accordance with this title shall comply with the minimum standards in Chapter 12.24 ACC. (Ord. 5034 Q 1, 1998.) 20.10.270 Coordination of Construction Activities. ACC 20.10.100 notwithstanding, all grantees, franchisees and lessees, are required to cooperate with the City and with each other. A. By November 15th of each year, grantees, franchisees and lessees shall provide the City with a schedule of their proposed construction activities which may affect the public ways in any manner. B. Each grantee, franchisee and lessee shall 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 which may affect the public ways in any manner. 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. D. Each grantee, franchisee and lessee shall be available to City staff employees of a City department having jurisdiction over their respective activities 24 hours a day, seven days a week, regarding problems or complaints resulting from the attachment, installation, operation, use, maintenance, or removal of commercial utility or telecommunications system facilities. The City must be able to contact by telephone the network control center of each grantee, franchisee and lessee. A telephone number at which an employee can be reached 24 hours a day, seven days a week regarding such problems or complaints must be provided by each grantee, franchisee and lessee before any public way agreement, franchise, or lease is effective. (Ord. 503413 1, 1998.) 20.10.280 Assignments or Transfers of Public Way Agreements, Franchises, or Leases. The assignment or transfer of any business registration, public way agreement, franchise or lease, subject to this title, may not, directly or indirectly, be transferred, assigned or disposed of by sale, lease, merger, consolidation or other act of the grantee, franchisee, or lessee, by operation of law or otherwise, without the prior written consent of the City, which consent shall not be unreasonably withheld or delayed, except as expressed by ordinance and then only on such reasonable conditions as may be prescribed therein. A. No public way agreement, franchise or lease, subject to this title, shall be assigned or transfered before construction of such systems has been completed to the city's satisfaction without prior written consent of the city, which consent shall not be unreasonably withheld or delayed, except as expressed by ordinance and then only on such reasonable conditions as may be prescribed therein. B. The grantee, franchisee, or lessee and the proposed assignee or transferee of the public way agreement, franchise, or lease shall provide and certify the following information to the city not less than 90 calendar days prior to the proposed date of transfer: 1. Complete information setting forth the nature, terms and conditions of the proposed transfer or assignment relating to the public way agreement, franchise or lease; 2. All information required by a public way agreement, franchise, or lease applicant pursuant to this title with respect to the proposed transferee or assignee; 70 3. Any other information reasonably required by the City; and 4. A nonrefundable application fee in the amount of $75.00. C. No transfer shall be approved unless the assignee or transferee meets the requirements contained in ACC 20.04.040(A) and (I), and can comply with the requirements of the public way agreement, franchise, or lease. D. Unless otherwise provided in an public way agreement, franchise, or lease agreement, the grantee, franchisee, or lessee shall reimburse the City for all direct and indirect costs and expenses reasonably incurred by the City in considering a request to transfer or assign a public way agreement, franchise, or lease. No approval shall be deemed approved until all such costs and expenses have been paid. E. Any transfer or assignment of a public way agreement, franchise, lease, without prior written approval of the City under this section or pursuant to an public way agreement, franchise, or lease agreement shall be void and is cause for termination of the public way agreement, franchise, or lease. (Ord. 5034131,1998.) 20.10.290 Transactions Affecting Control of Public Way Agreements, Franchises, or Leases. Any transactions which singularly or collectively result in a change of 50 percent or more of the ownership or working control of any grantee, franchisee, or lessee of the ownership or working control of a utility, cable, or telecommunications system, of the ownership or working control of affiliated entities having ownership or working control of the grantee, franchisee, or lessee or of a telecommunications system, or of control of the capacity or bandwidth of the grantee, franchisee, or lessee's utility, cable, or telecommunications system, facilities or substantial parts thereof, shall be considered an assignment or transfer requiring City approval pursuant to ACC 20.10.280. Transactions between affiliated entities are not exempt from the required City approval. A grantee, franchisee, or lessee shall promptly notify the City in writing prior to any proposed change in, or transfer of, or acquisition by any other party of control of a grantee, franchisee, or lessee's company. Every change, transfer, or acquisition of control of a grantee, franchisee, or lessee's company shall cause a review of the proposed transfer. In the event that the City council adopts a resolution or other appropriate order opposing such change, transfer or acquisition of control has been effected, the City may terminate the public way agreement, franchise, or lease. City approval shall not be required for mortgaging purposes or if said transfer is from a grantee, franchisee, or lessee to another person or entity controlling, controlled by, or under common control with a grantee, franchisee, or lessee. (Ord. 503413 1, 1998.) 71 20.10.300 Revocation or Termination of Public Way Agreements, Franchises, or Leases. A public way agreement, franchise, or lease granted by the City to use or occupy public ways of the City or City property may be terminated or revoked for the following reasons: A. Construction or operation in the City or in the public ways of the City or upon City property without a public way agreement, franchise, or lease; B. Construction or operation at an unauthorized location; C. Unauthorized substantial transfer of control of a grantee, franchisee, or lessee; D. Unauthorized assignment of a public way agreement, franchise, or lease; E. Unauthorized sale, assignment or transfer of a grantee, franchisee, or lessee's public way agreement, franchise, lease, assets, or a substantial interest therein; F. Misrepresentation or lack of candor by or on behalf of a grantee, franchisee, or lessee in any application or written or oral statement upon which the City relies in making the decision to approve, review or amend any public way agreement, franchise, or lease pursuant to this title; G. Abandonment of cable or telecommunications facilities in the public ways or upon City property; H. Failure to relocate or remove facilities as required in this title; I. Failure to pay taxes, compensation, fees, assessments, or costs when and as due to the City; J. Insolvency or bankruptcy of the grantee, franchisee, or lessee; K. Violation of any material provision of this title; and L. Violation of the material terms of an public way agreement, franchise, or lease agreement. (Ord. 5034 91, 1998.) 20.10.310 Notice and Duty to Cure. In the event that the City believes that grounds exist for termination or revocation of a public way agreement, franchise, or lease, the grantee, franchisee, or lessee shall be given written notice of the apparent violation or noncompliance, providing a 72 short and concise statement of the nature and general facts of the violation or noncompliance, and providing the grantee, franchisee, or lessee a reasonable period of time not exceeding 30 days to correct the violation or furnish evidence as to: A. That corrective action has been, or is being actively and expeditiously pursued, to remedy the violation or noncompliance; or B. That rebuts the alleged violation or noncompliance; or C. That it would be in the public interest to impose some penalty or sanction less than revocation. (Ord. 5034 9 1, 1998.) 20.10.320 Public Hearing. In the event that a grantee, franchisee, or lessee fails to respond to the notice described in ACC 20.10.310 pursuant to the procedures set forth therein, or in the event that the alleged violation is not remedied within the prescribed period of time after notification of the alleged violation pursuant to ACC 20.10.310, 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 business days therefrom. The City shall notify the grantee, franchisee, or lessee of the time and place of such public hearing and provide the grantee, franchisee, or lessee with an opportunity to be heard. (Ord. 5034 B 1, 1998.) 20.10.330 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 this title or any provision of a public way agreement, franchise, or lease granted under this title, or through willful misconduct or gross negligence failed to heed or comply with any notice given the grantee, franchisee, or lessee by the City under the provisions of this title, then the grantee, franchisee, or lessee shall, at the election of the City council, forfeit all rights conferred under the public way agreement, franchise, or lease, and the public works agreement, franchise, or lease may be revoked, terminated, or annulled by the City council. The City council may elect, in lieu of revocation, termination, or annulment, and without any prejudice to any of its other legal rights and remedies, to pursue other remedies, including obtaining an order from the superior court having jurisdiction compelling the grantee, franchisee, or lessee to comply with the provisions of this title and any public way agreement, franchise, or lease granted hereunder, and to recover reasonable and documented damages and costs incurred by the City by reason of the grantee, franchisee, or lessee's failure to comply. The City council shall utilize, but is not limited to, the following factors in analyzing the nature, circumstances, extent, and gravity of any violation(s) in making its 73 determination under this section: A. Whether the misconduct was egregious; B. Whether substantial harm resulted; C. Whether the violation was intentional; D. Whether there is a history of prior violations of the same or other requirements; E. Whether there is a history of overall compliance; F. Whether the violation was voluntarily disclosed, admitted or cured. (Ord. 5034 81, 1998.) 20.10.340 Civil Penalties. A. Any person, and the officers, directors, managing agents, or partners of any corporation, firm, partnership or other organization or business violating or failing to comply with any of the provisions of this title shall be subject to a penalty in an amount not less than $100.00 nor more than $1,000 per day for each violation from the date of each violation until compliance is achieved. B. In addition to any penalty which may be imposed by the City council, any person violating or failing to comply with any of the provisions of this title shall be liable for all damage to public or private property arising from such violation, including the cost of restoring the affected area to its condition prior to the violation. C. The violator may show the City council as full or partial mitigation: 1. That the violation giving rise to the action was caused by the willful act, or neglect, or abuse of another; or 2. That correction of the violation was commenced promptly upon receipt of the notice thereof, but that full compliance within the time specified was prevented by inability to obtain necessary materials or labor, inability to gain access to the subject structure, or other condition or circumstance beyond the control of the violator. D. The penalties which may be imposed by this section shall be collected by civil action brought by the City if not paid timely after penalty assessment by the City council. The public works director or designee shall notify the finance 74 director . in writing of the name of any person subject to the penalty, and the finance director shall take appropriate action to collect the penalty. (Ord. 5034 Q 1,1998.) 20.10.350 Enforcement. Subject to applicable federal and state law, in the event the City council, after such public hearing, determines that a grantee, franchisee, or lessee is in default of any provision of a public way agreement, franchise, or lease, it may: A. Require foreclosure on all or any part of any security provided under this title, or a specific public way agreement, franchise, or lease, 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; B. Call for commencement of an action at law for monetary damages or other equitable relief; C. After the expiration of said 30 -day period to cure violation (ACC 20.10.310), the City may be directed to act to remedy the violation and charge the reasonable and documented costs and expenses of such action to the grantee, franchisee, or lessee; D. In the case of a material breach of the public way agreement, franchise, or lease, declare the public way agreement, franchise, or lease to be terminated or revoked; E. Seek specific performance of any provision, which reasonably lends itself to such remedy, as an alternative to damages; F. Grantees, franchisees, or lessees shall not be relieved of any obligations to comply promptly with any provision of a public way agreement, franchise, or lease by reason of any failure of the City to promptly enforce compliance; G. In addition to other remedies provided herein, if a grantee, franchisee, or lessee is not in compliance with requirements of this title, and if a good faith dispute does not exist concerning such compliance, the City may place a moratorium on issuance of any pending permits until compliance is achieved; H. A grantee, franchisee, or lessee shall not be held in default or noncompliance with the provisions of a public way agreement, franchise, or lease 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 75 events reasonably beyond its ability to control; I. Assess civil penalties pursuant to ACC 20.10.340; J. The City may seek legal or equitable relief to enjoin any acts or practices and abate any condition which constitutes or will constitute a violation of the applicable provisions of this title when civil penalties are inadequate to effect compliance; K. In addition to the penalties set forth in this section, violation of the terms of this title may also result in the revocation or termination of any public way agreement, franchise, approval, lease, or permit issued or granted hereunder, as set forth in ACC 20.10.300 through 20.10.340. (Ord. 5034 Q 1, 1998.) 20.10.360 Other Remedies. Nothing in this title shall be construed as limiting any judicial remedies that the City may have, at law or in equity, for enforcement of this title. (Ord. 5034 8 1, 1998.) 20.10.370 Venue of Any Court Action. All public way agreements, franchises, and leases subject to this title 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 a public way agreement, franchise, or lease subject to this title, 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 Western District of Washington located in Seattle, Washington. (Ord. 5034 Q 1, 1998.) 20.10.380 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 agreements or franchises subject to this title, those more stringent requirements shall prevail. The City shall give reasonable written notice when, in their determination, that has occurred. Grantees, franchisees, and lessees shall retain and not waive any or all rights and privileges as afforded either under existing contracts or agreements or pursuant to federal law or FCC regulations to complain and/or appeal such a determination. (Ord. 5034 9 1, 1998.) 20.10.390 Incorporation by Reference. 76 The provisions of this chapter shall be incorporated by reference in any public way agreement, franchise, or lease approved hereunder. The provisions of this chapter shall be incorporated by reference in any proposal submitted and accepted by the City in the applicable public way agreement, franchise, or lease. However, in the event of any conflict between the proposal, this chapter, and the public way agreement, franchise, or lease, the public way agreement, franchise, or lease shall be the prevailing document. (Ord. 5034 9 1, 1998.) 20.10.400 Notice of Entry on Private Property. If directed by the City, a grantee, franchisee, or lessee shall, 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, provide a notice indicating the nature and location of the work to be performed. The notice shall be physically posted, at no expense to the City or private property owner or resident, upon the affected property by the grantee, franchisee, or lessee. A door hanger may be used to comply with the notice and posting requirements of this section. A grantee, franchisee, or lessee 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 title shall permit a grantee or franchisee to unlawfully enter or construct improvements upon the property or premises of another. (Ord. 5034 B 1, 1998.) 20.10.410 Safety Requirements. A grantee, franchisee, or lessee, in accordance with applicable federal, state, and local safety requirements shall, at all times, employ ordinary care and shall install and maintain and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injury, or nuisance to the public and/or workers. All structures and all lines, equipment and connections in, over, under, and upon the streets, sidewalks, alleys, and public ways or places of a permit, public way agreement, franchise, or lease 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 the telecommunications systems of a grantee, franchisee, or lessee are constructed and maintained in a safe condition. If a violation of the National Electrical Safety Code or other applicable regulation is found to exist by the City, the City will, after discussions with a grantee, franchisee, or lessee, establish a reasonable time frame for a grantee, franchisee, or lessee to make necessary repairs. If the repairs are not made within the established time frame, the City may make the repairs itself or have them made and collect all reasonable costs thereof from a grantee, franchisee, or lessee. (Ord. 5034 B 1, 1998.) 77 20.10.420 Most Favored Community. In the event that a grantee, franchisee, or lessee enters into any agreement, franchise or other understanding with any other City, town or county in the state of Washington which provides terms or conditions more favorable to the City, town or county than those provided in its agreement with the City, such as, but not limited to, free or reduced fee hookups, access or service, the City shall be entitled to request at the City's option, and the grantee, franchisee, or lessee in question shall be required to execute, an amendment to its agreement which incorporates the more favorable terms and conditions at the grantee's, franchisee's, or lessee's lowest comparable rate applicable to any government body or municipality in the state of Washington. (See ACC 20.06.180(N), Best Rates). (Ord. 5034 9 1, 1998.) 20.10.430 Compliance with Zoning Standards. All applications for leases, franchises, and public way agreements under this title will comply with the City zoning regulations and siting standards in ACC Title 18. (Ord. 5034 Q 1, 1998.) 20.10.440 Unfunded Mandate. The City intends that no federal or state requirement to promote the deregulation of utilities or telecommunications shall become an unfunded mandate requiring funding support from the City over and above its routine operations and maintenance budget to maintain the public ways. Therefore, except as expressly provided to the contrary, all costs incurred by a grantee, franchisee, or lessee in complying with the terms and conditions of any agreement subject to this title or any applicable laws, ordinances, codes, rules, regulations and/or orders or any action thereunder shall be the sole responsibility of the respective grantee, franchisee, or lessee and shall not be the responsibility of or charged to the City. (Ord. 5034 B 1, 1998.) 20.10.450 Care of Trees Along Streets. Upon prior written approval of the City and in accordance with City ordinances, any grantee, franchisee, or lessee shall have the authority to 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 the respective grantee, franchisee, or lessee. The grantee, franchisee, or lessee shall be responsible for debris removal from such activities. If such debris is not removed within 24 hours, the City may, at its sole discretion, remove such debris and charge the grantee, franchisee, or lessee for the cost thereof. This section does not, in any 78 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 City land clearing permit. (Ord. 5034 8 1, 1998.) 20.10.460 Use of Utility Poles and Facilities of Others. Grantees and franchisees may seek to contract with the City or any appropriate board or agency thereof or 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 telecommunications facilities, electronic conductors and other facilities and appurtenances necessary or desirable in conjunction with the operation of its telecommunications 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, grantees and franchisees to make such use thereof pursuant to any agreement reached between the affected parties. City -owned poles are limited to street light and traffic signal poles which generally are not intended for use by others. The City reserves the right to determine on a case by case basis that particular circumstances require that a certain City -owned pole is not appropriate for use. No grantee or franchisee will utilize any City -owned poles prior to approval by the City engineer. Any compensation for uses of City -owned poles will be based upon the prevailing market rates for similar uses in the region. (Ord. 5034 B 1, 1998.) 20.10.470 Use of Poles and Facilities by City. With respect to poles and trenches which are facilities and which are (1) wholly owned by a franchisee or grantee and (2) within the franchise area, the City, subject to franchisee or grantee's prior written consent, may install and maintain City - owned overhead facilities upon such poles, and conduits in open trenches, for police, fire, illumination, and other noncommercial communications purposes, subject to the following: A. Such installation and maintenance shall be completed at the City's expense; B. The franchisee or grantee shall have no obligation under the indemnification provisions of this franchise or public way agreement for the installation or maintenance of such City -owned facilities or conduits; C Nothing herein shall require the franchisee or grantee to bear any cost or expense in connection with such installation and maintenance of City -owned facilities or conduits, nor shall such City installation delay or adversely effect franchisee's or grantee's construction schedule; D. In no case shall the City attach to or come into contact with grantee's or 79 franchisee's equipment. (Ord. 5034 f3 1, 1998.) 20.10.480 Administration. The public works director or his/her designee shall administer all public way agreements and franchises subject to this title, and the finance director or his/her designee shall administer all leases subject to this title. (Ord. 5034 9 1, 1998.) Chapter 20.12 OPEN VIDEO SYSTEMS (Reserved) Ordinance Table a