HomeMy WebLinkAbout5409 ORDINANCE NO. 5 4 0 9
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, (HEREINAFTER REFERRED TO AS THE CITY)
AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A FRANCHISE
AGREEMENT BETWEEN THE CITY AND METROMEDIA.
WHEREAS, on October 15, 1999, the City determined that Metromedia's
application for a telecommunications franchise was complete; and
WHEREAS, a public hearing was conducted on June 5, 2000, regarding
the City entering into a franchise agreement with Metromedia; and
WHEREAS, it has been determined that Metromedia 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
franchise agreement, to accommodate Metromedia's proposed facilities as well
as additional utility and telecommunications facilities; and
WHEREAS, the grant to use the Public Ways, as defined in the franchise
agreement, is in the public interest and the effect, if any, on the public health,
safety and welfare is minimized and addressed in the franchise agreement; and
WHEREAS, the service Metromedia will provide to the community and
region is in the public interest; and
Ordinance 5409
June 8, 2000
Page 1
WHEREAS, the franchise agreement requires that applicable federal and
state telecommunication laws, regulations, and policies are followed during the
term of the franchise agreement.
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 Franchise Agreement between the City and
Metromedia. A copy of said Agreement is attached hereto, designated as
Exhibit "1" and incorporated herein by this reference into this Ordinance.
Section 2. Constitutionality or Invaliditv: If any section, subsection,
clause, phrase, or sentence, of this Ordinance, is for any reason held to be
invalid or unconstitutional, such invalidity or unconstitutionality of the remaining
portions of this ordinance, as it is being hereby expressly declared that this
ordinance and each section, subsection, clause, phrase, or sentence, hereof
would have been prepared, proposed, adopted, and approved and ratified
irrespective of the fact that any one or more section, subsection, clause,
phrase, or sentence, be declared invalid or unconstitutional
Section 3. Iml~lementation. The Mayor is also hereby authorized to
implement such administrative procedures as may be necessary to carry out
the directives of this legislation.
Ordinance 5409
June 8, 2000
Page 2
Section 4. Effective date. This Ordinance shall take effect and be in
force five (5) days from and after its passage, approval and publication, as
provided by law.
DATED this 19th day of June, 2000.
INTRODUCED: Jtme 19, 2000
PASSED: Jtme 19, 2000
June 19, 2000
APPROVED:
CHARLES A. BOOTH
MAYOR
ATTEST:
Damelie E. Daskam
City Clerk
APPROVED AS TO FORM:
Mic~ eyn~olds
City Attorney
PUBLISHED:
Ordinance 5409
June 8, 2000
Page 3
EXHIBIT "1"
CITY OF AUBURN, WASHINGTON
FRANCHISE AGREEMENT WITH METROMEDIA FIBER NETWORK SERVICES, INC.
WHEREAS, METROMEDIA FIBER NETWORK SERVICES, INC.
has applied to the CITY OF AUBURN for a non-exclusive Franchise for the
attachment, installation, operation and maintenance of a Fiber-Optics
Telecommunications System network in, on, upon, along and/or across certain
Public Ways within the CITY OF AUBURN.
WHEREAS, METROMEDIA FIBER NETWORK SERVICES, INC.
is a leading provider of optical network and internet infrastructure communications
and contracts with its customers to provide them with virtually unlimited
bandwidth and secure and reliable communication services while at all times
maintaining exclusive control over its Facilities.
NOW, THEREFORE, the CITY OF AUBURN, a Washington municipal
corporation hereinafter referred to as "CITY" and METROMEDIA FIBER
NETWORK SERVICES, INC. hereinafter referred to as "GRANTEE" agree as
follows:
Exhibit "1"
Ordinance No. 5409
1
TABLE OF CONTENTS
FRANCHISE AGREEMENT WITH METROMEDIA FIBER NETWORK SERVICES,
INC.
SECTION PAGE NO.
Table of Contents 2-6
1. Definition of Terms. 7
1.1. Agency 7
1.2. Affiliate 7
1.3. Cable Act 7
1.4. City Costs 7
1.5. City Property 7
1.6. Communication Service 7
1.7. Grantee 7
1.8. Emergency 7
1.9. Excess Capacity 8
1.10. Facilities 8
1.10.a. Overhead Facilities 8
1.10.b. Telecommunication Facilities 8
1.10.c. Underground Facilities 8
1.11. FCC 8
1.12. Franchise 8
1.13. Franchise Area 8
1.14. Franchise Authority 8
1.15. Franchisee 9
1.16. Gross Revenue 9
1.17. Hubbing Service 9
1.18. Person 9
1.19. Property of Franchisee 9
1.20. Public Way 9
1.21. Subscriber or Customer 9
1.22. Surplus Space 10
1.23. Telecommunication System 10
1.24. The Act 10
1.25. Usable Space 10
2
2. Terms of Franchise. 10
2.1. Grant of Authority, Franchise and Permits Required: 10
2.1.a. Nonexclusive Franchise 10
2.1.b. No Grant of Cable TV 11
2.1.c. Limitation of Authority 11
2.1.d. Franchise Required 11
2.1.e. Compliance with Applicable Law, Rules,
Regulations and Orders 11
2.2. Franchises and Franchise Agreements. 11
2.2.a City Discretion 11
2.2.b. Future Franchises 11
2.2.c. Terms and Conditions 11
2.2.d. Modifications of Franchise 12
2.2.e. Responsibility for Costs 12
3. Application and Determination. 12
3.1 Application. 12
3.1.a. Provision Intent 12
3.1.b. Map of Existing Facilities 12
3.1.c. Description of Services 12
3.1.d. Description of Access and Line Extension Policies 13
3.1.e. Service Area 13
3.1.f. Provision of Service and Use of Utility Poles 13
3.1.g. FCC Licenses and Certificates 13
3.1.h. Franchise and other Washington Cities 13
3.1.I. Other Requested Information 13
3.2. Determination. 13
3.2.a. Financial and Technical Ability 13
3.2.b. Legal Ability 13
3.2.c. Facilities Accommodation 13
3.2.d. Additional Facilities Accommodation 13
3.2.e. Damage or Disruption 13
3.2.f. Minimizing Disruption Cost 13
3.2.g. Service 14
3.2.h. Public Health, Safety and Welfare 14
3.2.i. Alternate Routes 14
3.2.j. Federal and State Laws 14
3.2.k. Other Factors 14
4. Acceptance, Effective Date. 14
5. Police Powers. 14
6. Rules and Regulations of the City 14
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7. Administration. 15
8. Annexation. 15
9. Regulation of the Use of Public Ways. 15
9.1. Conditions of Street Occupancy 15
9.1.a. Compliance with One Number Locator Service 15
9.1.b. Maintenance of Facilities 15
9.1.c. Damage to Facilities 15
9.2. Approval 'of Plans and Specifications 16
9.2.a. Construction Permits 16
9.2.b. Location of Facilities 16
9.3. Restoration of Public Ways 16
9.4. Relocation/Removal 17
9.5. Building Moving 17
10. Tree Trimming. 18
11. Safety Requirements 18
12. Use, Rental or Lease of Utility Poles and Facilities. 19
13. Undergrounding and Landscaping. 19
14. City Use of Franchisee's Poles and Facilities. 19
14.1. City Expense 19
14.2 Impact 19
14.3. City Owned Facilities 20
14.4. No Pole or Trench Charge 20
14.5. City Option to Install 20
15. Use of Franchisee's Poles and Facilities by Others. 20
16. Capacity Sharing and Co-Location. 20
16.1. Timely and Feasible 20
16.2. Agreement to Compensate Grantee 20
16.3. Reservation of Grantee Capacity 21
16.4 Termination of Sharing 21
17. Construction in Right-of-way. 21
17.1. Notification to City Public Works Department. 21
17.2. Facility Planning. 21
17.3. Notice of Entry Private Property. 22
17.4. Installation. 22
17.5. Record of Installation. 23
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17.6. Shared Use of Excavations. 23
17.7. Interference with Use of Public Ways. 23
17.8. Coordination of Work. 24
17.8.a. Schedule of Construction 24
17.8.b. Meet to Coordinate 24
17.8.c. Minimize Inconvenience 24
18. Transfer or Assignment of Franchise Agreement. 24
19. Removal and/or Abandonment of Grantee's Property. 25
20. Franchise Application, Fees, Compensation, Charges,
Reporting Requirements, Franchise Transfer and Best Rates. 25
20.1. Franchise Application and Fee. 25
20.2. Administrative Fee. 25
20.3. Other Required Permits or Inspections. 26
20.4. Compensation for Use of Public Ways. 26
20.4.a. City's Reservation Rights 26
20.4.b. Utility Tax Liability 26
20.4.c. Quarterly Payment 27
20.4.d. Late Payment 27
20.5. Fees and Compensation Not a Tax. 27
20.6. Compensation to City. 27
20.7. Quarterly Report. 27
20.8. Recalculation at End of Compensation Year. 27
20.9. Taxes are Not to be a Credit. 28
20.10. Rights of City. 28
20.11. Annual Report. 28
20.12. Circumventing Payments. 28
20.13. Comparable Rates. 28
21. Accounts, Books and Records. 29
21.1. City to be Informed. 29
21.2. Accounts. 29
21.2.a. Complete and Accurate Books 29
21.2.b. City's Existing Legal Boundaries 29
21.3. Access to Records. 29
21.4. Duty to Provide Information. 30
21.4.a. Compliance 30
21.4.b. Collection and Payment 30
21.5. Access to Records. 30
21.56. FCC and other Filings. 30
22. Indemnification, Insurance, and Bonds or other Surety. 31
22.1. Indemnification. 31-32
22.2. Insurance. 33 '
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22.2a. Commercial General Liability Insurance 33
22.2.b. Automobile Liability Insurance 33
22.3. Performance Bond. 33
22.4. Recourse Against Bonds. 33
22.4.a. Recourse. 34
22.4.b. Restoration. 34
22.4.c. Rights of City. 34
23. Default. 34
24. Enforcement and Termination of Franchise. 35
24.1. Notice of Violation. 35
24.2. Grantee's Right to Cure or Respond. 35
24.3. Public Hearing. 35
24.3.a. Standards for Revocation or Lesser Sanctions 36
24.4. Enforcement. 36
24.4.a. Foreclosure 36
24.4.b. Monetary Damages 37
24.4.c. City May Act 37
24.4.d. Breach of Franchise 37
24.4.e. Specific Performance 37
24.5. Acts of God. 37
25. Franchise Amendment. 37
26. Tariff Changes. 38
27. Miscellaneous Provisions. 38
27.1. Action of City. 38
27.2. Notice. 38
27.3. Descriptive Headings. 39
27.4. Grantee Availability. 39
27.5. Venue of any Court Action. 39
27.6. Exhibits. 39
27.7. Action by the FCC. 39
28. Severability. 40
Signatures 41-42
Exhibit A 43
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1. Definition of Terms.
1.1. "Agency" means any governmental agency or quasi-governmental
agency, including, but not limited to, the FCC and the WUTC or
successor governmental entities thereto.
1.2. "Affiliate" means an entity which (directly or indirectly) owns or
controls, is owned or controlled by, or is under common ownership with
Franchisee. For purposes of this definition, the term "own" means to
own an equity interest (or the equivalent thereof) of more than ten (10)
percent.
1.3. "Cable Act" means the Federal Cable Communications Policy Act of 1984,
as amended.
1.4. "City Costs" means that whenever the CITY incurs costs related to
enforcing the terms of this agreement, GRANTEE'S obligation for
reimbursement will be limited to those costs that are reasonable,
documented and in accordance with RCW 35.21.860.
1.5. "City Property" means and includes all real property owned by the CITY,
other than Public Ways and utility easements as those terms are defined
herein, and all property held in a proprietary capacity by the CITY, which
are not subject to right-of-way licensing and franchising as provided
herein.
1.6. "Communication Service" shall mean any communication services
provided by Grantee covered by the terms of this Franchise agreement
over its "Telecommunication System" (as hereinafter defined) either
directly or as a carrier for its subsidiaries, Affiliates or any other Person
engaged in Communication Services, including, but not limited to,
transmission of voice, data or other electronic intelligence, facsimile
reproduction, burglar alarm, meter reading and home shopping.
Communication Service shall also include non-switched, dedicated and
private line, high capacity fiber optic transmission services to firms,
businesses or institutions within the City. However, Communication
Service shall not include cable television services as defined under the
Cable Act for which a separate Franchise would be required to provide
such cable television services, nor shall it include video dialtone service
as defined by the FCC in which a separate Franchise would also be
required to provide such video dialtone services.
1.7. "Grantee" and/or "Applicant" means the corporation and its respective
successors and assigns.
1.8. "Emergency" means 'a condition of imminent danger to the health,
7
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.
1.9. "Excess Capacity" means the volume or capacity in any existing or future
duct, conduit, manhole, handhole or other utility facility within the
Public Way that is or will be available for use for additional
telecommunications facilities.
1.10. "Facilities" includes "Overhead Facilities", "Telecommunication
Facilities" and "Underground Facilities":
1.10.a."Overhead Facilities" means utility poles, utility facilities and
telecommunications facilities located above the surface of the ground,
including the underground supports and foundations for such facilities;
1.10.b. "Telecommunication Facilities" means the plant, equipment and
property, 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 within the City; and
1.10.c. "Underground Facilities" means utility and Telecommunication
Facilities located under the surface of the ground, excluding the
underground foundations or supports for overhead facilities.
1.11."FCC" means Federal Communications Commission, or successor
governmental entity thereto.
1.12. "Franchise" shall mean the initial authorization, or renewal thereof,
approved by an ordinance of the CITY, which authorizes the Franchisee
to construct, install, operate, or maintain Telecommunications .Facilities
in, under, over, or across Public Ways of the CITY and to also provide
telecommunications service to Persons or areas in the Franchise Area
(the CITY).
1.13. "Franchise Area" means any, every and all of the Public Ways, highways
and electric power company easements within the CITY as now laid out,
platted, dedicated or improved; and any, every and all roads, streets,
avenues, alleys and highways that may thereafter be laid out, platted,
dedicated or improved within the present limits of the CITY and as such
limits may be hereafter extended.
1.14. "Franchise Authority" means the CITY OF AUBURN or the lawful
successor, transferee, or assignee thereof.
8
1.15. "Franchisee" means METROMEDIA FIBER NETWORK SERVICES, INC,
a DELAWARE CORPORATION, or the lawful successor, transferee, or
assignee thereof, with the consent as required in this Franchise
agreement.
1.16. "Gross Revenue" shall mean all receipts collected by Franchisee for all
communications and communication-related operations and services
within the corporate limits of the CITY as well as any other revenue
arising from operation or possession of this Franchise agreement, less
the application and administrative fees mandated in Sections 20.1 and
20.2 of this Franchise agreement and the Franchise fee mandated by
Section 20.4 herein. By way of example, but without limitation, Gross
Revenue includes all revenues from the sale or lease of customer
premise equipment, installation charges, access charges paid to
Franchisee by other carriers, charges to customers, subscribers and other
users of the Telecommunication System, and the lease or re-sale of
Facilities or circuit paths to third parties. Gross Revenues does not
include: (a) taxes, fees, or assessments of any kind or description
imposed on or levied against Franchisee which are not applicable to all
other Persons or entities doing business within the CITY, (b) revenues
uncollectible from customers (bad debts)which have been written off
through generally accepted accounting practices, and (c) discounts. Such
definition shall comply with RCW 35.21.714.
1.17. "Hubbing Service" means the aggregation and/or disaggregation of
customer services from customer locations.
1.18. "Person" means an individual, corporation, partnership, limited liability
company, general or limited partnership, sole proprietorship, joint stock
company, trust corporation, business trust, any other form of business
association or entity, or a governmental entity.
1.19. "Property of Franchisee" means all property owned, installed or used by
Franchisee in the conduct of its business in the CITY under the authority
of the Franchise granted herein.
1.20. "Public Way" shall mean the surface, the air space above the surface and
the area below the surface of any public street, including, but not limited
to, any public alley, boulevard, drive, electric power company easement,
right-of-way or sidewalk under the jurisdiction of the CITY.
1.21."Subscriber" or "Customer" means a person or user of the
Telecommunication System who lawfully receives Communication
Services or other service therefrom with Franchisee's express
permission.
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1.22. "Surplus Space" means that portion of the usable space on a utility pole
which has the necessary clearance from other pole users, as required by
the federal or state law, rules, regulations and/or orders, to allow its use
by a telecommunications carrier for a pole attachment.
1.23."Telecommunication System" shall mean GRANTEE'S system of
conduits, fiber optics cable and Facilities within the City designed and
constructed for the purpose of producing, receiving, amplifying or
distributing by audio, video or other forms of electronic or electric
signals to or from subscribers or locations within the CITY.
1.24. "The Act" means the Federal Telecommunications Act, January 31, 1996.
1.25. "Usable Space" means the total distance between the top of a utility pole
and the lowest possible attachment point that provides the minimum
allowable vertical clearance as specified in any federal or state law, rules,
regulations or orders.
2. Terms of Franchise.
2.1. Grant of Authority, Franchise and Permits Required:
2.1.a. The CITY hereby grants to GRANTEE a nonexclusive Franchise
for a term of five (5) years which authorizes GRANTEE to
construct and operate for transmission its Telecommunication
System within the Public Way and offer Communication
Services for distribution and sale within the Franchise Area.
Within the Franchise Area GRANTEE may erect, install,
construct, repair, replace, reconstruct, maintain, or retain within
any Public Way and all extensions thereof and additions thereto,
such poles, Facilities, conductors, amplifiers, appliances,
attachments and other related property or equipment as may be
necessary or appurtenant to the Communications System subject
to CITY review and any other applicable laws, ordinances,
regulations, codes, rules or orders. This Franchise does not
provide GRANTEE exclusive use of any CITY poles or property
provided., however, during the term of this Franchisee, that the
CITY agrees to obtain in writing from any future
telecommunication provider, covenants that, subsequent to the
installation by GRANTEE of its Telecommunication System in
accordance with the terms and conditions of this Franchise, (a)
such new provider shall not install new equipment if such
equipment causes interference with GRANTEE'S operations and
(b) that in the event such interference occurs, such provider
shall immediately take all steps necessary to eliminate such
10
interference.
2.1.b. This Franchise agreement does not grant GRANTEE the right to
use such Facilities for Cable Television. No privilege or
exemption shall be granted or conferred on GRANTEE except
those specifically prescribed herein, and any use of any Public
Way shall be consistent with any prior and future lawful
occupancy of the Public Way or any subsequent improvement or
installation therein.
2.1.c. This grant of authority to provide the services described herein
shall be limited solely to those services expressly described and
no others. In the event of any ambiguity, this Franchise
agreement shall be strictly construed as to the rights granted
herein.
2.1.d. No Person shall construct or operate a Communications System
nor provide a Communications Service in the CITY without a
Franchise granted by the CITY and a Franchise agreement
executed by the CITY and the Franchisee.
2.1.e. GRANTEE is at all times subject to and must comply with all
applicable federal, state and local laws, including but not limited
to, Chapter 5.84 ACC, entitled "Registration of
Telecommunications Carriers, Operators, Providers, and Other
Commercial Utilities", Title 12 ACC, entitled "Streets, Sidewalks,
and Public Works", Chapter 13.32 ACC, entitled "Underground
Wiring Regulations", Title 18, entitled "Zoning", Title 20 ACC
entitled "Telecommunications and Other Commercial Utilities",
and any other ordinances, codes, rules, regulations and orders as
they apply. GRANTEE shall at all times be subject to the exercise
of the CITY'S police powers.
2.2. Franchises and Franchise Agreements:
2.2.a. The CITY may grant Franchises to other telecommunication
providers at its sole discretion.
2.2.b. All future Franchises granted by the CITY shall be nonexclusive,
and issuance of this Franchise does not expressly or implicitly
preclude the issuance of other Franchises, or affect the CITY'S
right to use or authorize the use of its Public Ways to other
Persons as it determines appropriate.
2.2.c. The terms, conditions. and provisions of this Franchise
agreement when fully executed, together with all applicable
11
laws, ordinances, codes, rules, regulations and orders, enacted
now or in the future, shall define the rights and obligations of
GRANTEE and the CITY relating to the Franchise.
2.2.d. The CITY may modify this Franchise agreement consistent with
its police powers as follows:
1. At the time of renewal, transfer, or other disposition;
2. Upon giving sixty (60) days written notice of the proposed
modification, provided GRANTEE is given an
opportunity to'present arguments to the CITY against the
modification or alternatives in lieu thereof; and
3. If there is any inconsistency between this Franchise
agreement and governing laws, statutes, ordinances,
codes, regulations, rules or orders.
2.2.e. Except as expressly provided to the contrary, all costs incurred by
GRANTEE in complying with this Franchise agreement or any
applicable laws, ordinances, codes, rules, regulations and/or
orders or any action thereunder shall be the sole
responsibility of GRANTEE and shall not be the responsibility of
or charged to the CITY.
3. Application-and Determination.
3.1. Application. An applicant for a new Franchise to construct, operate, and ,
maintain a telecommunications system within the. CITY shall file an
application in a form prescribed by the CITY, accompanied by a non-
refundable filing fee in the amount of Two Thousand Five Hundred
Dollars ($2,500.00). Information submitted by applicant with its
application shall include the following:
3.1.a. Whether the applicant intends to provide cable service, video
dialtone service or other video programming service, and
sufficient information to determine whether such service is
subject to cable franchising;
3.1.b. An accurate map showing the location of any existing
Telecommunications Facilities in the CITY that APPLICANT
intends to use or lease;
3.1.c. A description of the services or Facilities that the Grantee will
offer or make available to the CITY and other public,
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educational, and governmental institutions;
3.1.d. A description of APPLICANT'S access and line extension
policies;
3.1.e. The area or areas of the CITY the APPLICANT desires to serve
and an initial best estimate phased schedule for build-out over
the next 5 years;
3.1.f. The APPLICANT'S intended means and methods of providing
service and whether shared use of other utility poles or conduits
is envisioned;
3.1.g Documentation of all FCC licenses and equipment certifications
required by the FCC;
3.1.h. A list of all cities in Washington where the APPLICANT has
obtained a Franchise; and
3.1.i. Such other and further information as may be requested by the
3.2. Determination. The CITY shall issue a written determination granting
or denying the application in whole or in part. Prior to granting or
denying this Franchise agreement, the City Council shall conduct a
public hearing and make a decision based upon the standards set forth
'below. '
3.2.a. The financial and technical ability of the APPLICANT;
3.2.b. The legal authority of the APPLICANT;
3.2.c. The capacity of the Public Ways to accommodate the
APPLICANT'S proposed Facilities;
3.2.d. The capacity of the Public Ways to accommodate additional
utility and Telecommunications Facilities if the Franchise is
granted;
3.2.e. The damage or disruption, if any, of public or private Facilities,
improvements, service, travel or landscaping if the Franchise is
granted;
3.2.f. The public interest in minimizing the cost and disruption of
construction within the Public Ways;
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3.2.g. The service that APPLICANT will provide to the community
and region;
3.2.h. The effect, if any, on public health, safety and welfare if the
Franchise requested is granted;
3.2.i. The availability of alternate routes and/or locations for the
proposed facilities;
3.2.j. Applicable federal and state telecommunication laws,
regulations and policies; and
3.2.k. Such other factors as may demonstrate that the grant to use the
Public Ways will serve the community interest. Pursuant to
RCW 35A.47.040, the City Council shall not approve this
Franchise agreement until the next regularly scheduled council
meeting following the public hearing. If the application is
denied, the written determination shall include the reason for
denial.
4. Acceptance, Effective Date.
APPLICANT shall accept the Franchise granted pursuant hereto by signing this
Franchise and the statement of acceptance shown in Exhibit "A" and providing
proof of compliance with the bond and insurance requirements in Section 22, and
filing same with the City Clerk or other appropriate official of the CITY within sixty
(60) days after the passage and final adoption of this Franchise. If not accepted and
filed as provided in this section within sixty (60) days, this agreement shall be null
and void and of no effect and no Franchise shall exist between the CITY and the
APPLICANT.
5. Police Powers.
In accepting this Franchise, APPLICANT acknowledges that its rights hereunder are
subject to the police power of the CITY to adopt and enforce general ordinances
necessary to protect the safety and welfare of the public and APPLICANT agrees to
comply with all applicable general laws enacted by the CITY pursuant to such power.
6. Rules and Regulations of the City.
In addition to the inherent powers of the CITY to regulate and control any Franchise
it grants and those powers .expressly reserved by the CITY or agreed to and provided
for in this Franchise, the right and power is hereby reserved by the CITY to
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promulgate such additional regulations as it may find necessary in the exercise of its
lawful powers giving due regard to the rights of the APPLICANT.
7. Administration.
The performance of the GRANTEE under this Franchise shall be under the general
direction of the Public Works Director or his/her designees who shall be the contact
person for all matters relating to telecommunications, including but not limited to,
any required notices, correspondence, communications or actions.
8. Annexation.
In the event that any territory served by the GRANTEE is annexed to the CITY after
the effective date of this Franchise, such territory shall be governed by the terms and
conditions contained herein upon the effective date of such annexation.
9. Regulation of the Use of Public Ways.
9.1. Conditions of Street Occupancy. All transmission and distribution
structures, poles, other facilities, and equipment installed or erected by
the GRANTEE pursuant to the terms hereof shall be located so as to
cause a minimum of interference with the proper and lawful use of
Public Ways and to ensure the rights and reasonable convenience of
property owners who own property that adjoins any of said Public Ways.
This Franchise is subject to the conditions set forth in Chapter 20.10,
ACC.
9.1.a. Compliance with One Number Locator Service. Prior to permit
issuance the Grantee must demonstrate proof of membership in
the local "One Call Service" providing underground location
services in the CITY in accordance with RCW 19.122.
9.1.b. Maintenance of Facilities. The Franchisee shall maintain its
Facilities in good and safe condition and in a manner that
complies with all applicable federal, state and local requirements.
9.1.c. Damage to Facilities. Unless directly and proximately caused by
the negligent, willful, intentional, malicious or criminal acts by
the CITY, the CITY shall not be liable for any damage to or loss of
any cable or telecommunications facility upon CITY property or
within the Public Ways of the CITY as a result of or in
connection with any public works, public improvements,
construction, excavation, grading, filling, or work of any kind on
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such CITY Property or within the Public Ways by or on behalf of
the CITY.
9.2. Approval of Plans and Specifications.
9.2.a. Construction Permits. Prior to commencing work in Public Ways,
the Franchisee is required to obtain Construction Permits for
installing cable and Telecommunications Facilities as required in
Auburn City Code Chapter 12.24. Section 17 outlines the permit
process.
9.2.b. Location of Facilities. All Facilities shall be constructed, installed,
and located in accordance with the following terms and
conditions, unless otherwise specified in this Franchise
agreement.
1. The Franchisee must locate its cable or
Telecommunications Facilities underground i n
accordance with Auburn City Code Chapter 13.32.
2. The Franchis6e must bear the full cost of discovering the
existing location of any existing conflicts, coordination of
the engineering plans to acquire the approvals of parties
already in the ROW, and relocating and/or mitigating
such conflicts with pre-existing Facilities in conflict with
the plans of the Franchisee.
3. Whenever the CITY requires, the Franchisee shall relocate
its facilities underground at no expense to the CITY. Such
relocation shall be made concurrently with other planned
work to minimize the disruption of the Public Ways as
determined by the City Engineer. Where multiple parties
are responsible for completing the undergrounding, the
Franchisee shall pay a pro-rata share of the total project to
include street restoration.
4. Whenever capacity in the ROW is exhausted, the burden
to create new capacity by consolidating facilities will be
solely the responsibility of all the parties currently sharing
the ROW. The CITY shall bear no cost of creating new
capacity. Interested parties must negotiate amongst
themselves to arrive at a mutually agreeable cost sharing
arrangement. The CITY will regulate such new capadty
creation like any other street construction.
9.3. Restoration of Public Ways. If during the course of GRANTEE'S
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construction, operation, or maintenance of the Telecommunication
System there occurs a disturbance of any Public Way by GRANTEE,
GRANTEE shall, at its expense, replace and restore such Public Way
promptly and to a condition reasonably comparable to the condition of
the Public Way existing immediately prior to such disturbance.
9.4. Relocation/Removal. Whenever the CITY determines it is necessary
that any facilities of GRANTEE be removed or relocated to accommodate
public safety, change in traffic conditions, the improvement of any areas,
including but not limited to, conversion of overhead utilities to
underground, the grading or widening of any street within the public
right-of-way or the repair or relocation of any CITY-owned utilities, or
for removal of unauthorized Facilities, GRANTEE shall, within sixty (60)
calendar days of written notice from the CITY, remove or relocate such
facilities as directed, to an area within CITY Public Way mutually agreed
upon, at no cost to the CITY. GRANTEE shall within the first 14 days
after receipt of notice, communicate to the CITY its intention, plan and
schedule for said re-locations or removals. If 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
re-locations required by the CITY may be accomplished with least
interruption of services. In the event GRANTEE fails to complete full
performance within the Sixty (60) 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.
9.5. Building Moving. Whenever any person shall have obtained
permission from the CITY to use any street or Public Way for the
purpose of moving any building, GRANTEE, upon seven (7) days
written notice from the CITY, shall raise or remove, at the expense of the
person desiring to move the building, any of GRANTEE'S facilities
which may obstruct the removal relocation of such building; provided,
that the moving of such building shall be done in accordance with
regulations and general ordinance of the CITY. Where more than one
street is available for the moving of such building, the building shall be
moved on such street as shall cause the least interference and
inconvenience to the public. In such event, the CITY shall have the
authority for and responsibility of determining the route to be utilized.
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10. Tree Trimming.
Upon prior written approval of the CITY and in accordance with CITY ordinances,
GRANTEE shall have the authority to reasonably trim trees upon and overhanging
streets, Public Ways and places in the Franchise Area so as to prevent the branches
of such trees from coming in physical contact with the Facilities of GRANTEE.
GRANTEE shall be responsible for debris removal from such activities. If such
debris is not removed within twenty-four (24) hours of completion of the trimming,
the CITY may, at its sole discretion, remove such debris and charge GRANTEE for
the cost thereof. This section does not, in any instance, grant automatic authority to
clear vegetation for purposes of providing a clear path for radio signals. Any such
general vegetation clearing will require a land clearing permit.
11. Safety Requirements and Emergency Notification.
GRANTEE may be contacted at the following 24-hour telephone number in the
event an Emergency requires repair and/or relocation of any of its Facilities:
Primary Company Representative: Tom Stames
Phone Number: (206) 571-8584
Emergency (24 hour; 7 day) Contact:
Phone Number: 1-800-MFNoASST
Construction, installation, and maintenance of the Telecommunication System
shall be performed in an orderly and workmanlike manner. All such work shall be
performed in substantial accordance with applicable FCC or other federal, state, and
local law and regulations using commonly accepted methods and devices for
preventing failure and accidents which are likely to cause damage, injury, or
nuisance to the public.
All of GRANTEE'S structures, facilities, equipment and connections within Public
Ways or within the Franchise Area, wherever situated or located, shall at all times
be kept and maintained in a safe, suitable condition, and in good order and repair.
The CITY reserves the general right to see that GRANTEE'S telecommunications
system and Telecommunications Facilities are constructed and maintained in a safe
condition. If a violation of the National Electrical Safety Code or other applicable
ordinance(s) or regulation(s) is found to exist by the CITY, GRANTEE shall respond
within a twenty-four (24) hour period of time from receipt of notification of
violation from the CITY to restore the Telecommunications System and/or
Telecommunications Facilities to a condition safe for the public. 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 GRANTEE.
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12. Use, Rental or Lease of Utility Poles and Facilities.
GRANTEE may seek to contract with the holder or owner of any utility Franchise in
the CITY for the use, acquisition, rental or lease of its or their poles and other
structures and facilities for the purpose of extending, carrying or laying GRANTEE'S
facilities, electronic conductors and other facilities and appurtenances necessary or
desirable in conjunction with the operation of its Telecommunication System. The
CITY agrees that any public utility owning or controlling such poles or other
structures or Facilities may, without amendment to its Franchise, allow, and is
encouraged to allow, GRANTEE to make such use thereof pursuant to any
agreement reached between such utility company and GRANTEE. The CITY
reserves the right, however, to refuse the use of any or all of its utility poles and
Facilities.
13. Undergrounding and Landscaping.
The purpose of this section is to declare the necessity to comply' with the CITY'S
Underground Wiring Ordinance, Auburn City Code 13.32, entitled "Underground
Wiring". In those areas and portions of the CITY where the transmission or
distribution Facilities of a utility providing telephone service and those of a utility
providing electric service or any other service are underground, then GRANTEE
shall likewise construct, operate and maintain all of its transmission and
distribution Facilities which are not wireless in the same area underground upon
CITY approval. GRANTEE shall seek and obtain such approvals as are necessary
from other affected utilities and such activities shall be accomplished in concurrence
and cooperation-with the other affected utilities. Should landscaping be disrupted as
a result of this activity, GRANTEE will restore the landscaping and associated
irrigation to their reasonable pre-construction appearance and function.
14. City Use of Franchisee's Poles and Facilities.
With respect to poles and trenches which are Facilities and which are (1) wholly
owned by GRANTEE and (2) within the Franchise Area, the CITY, subject to
GRANTEE'S prior written consent, which may not be unreasonably withheld, may
install and maintain CITY-owned overhead Facilities upon such poles, and conduit
in GRANTEE'S opened trenches, for police, fire and other noncommercial
communications purposes, subject to the following:
14.1. Such installation and maintenance shall be completed at the CITY'S
expense and not alter GRANTEE'S construction schedule;
14.2. Such installation and maintenance shall not interfere with or negatively
impact GRANTEE'S facilities or operations;
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14.3. GRANTEE shall have no obligation under the indemnification
provisions of this Franchise for the installation or maintenance of such
CITY-owned Facilities or conduits.
14.4. GRANTEE shall not charge the CITY a fee for the use of such poles or
trenches in accordance with this section as a means of deriving revenue
therefrom; provided, however, nothing herein shall require GRANTEE
to bear any cost or expense in connection with such installation and
maintenance of CITY~owned facilities or conduits.
14.5. At the option of the CITY, whenever new conduit is installed by
GRANTEE, GRANTEE shall provide the CITY open access to the trench
so that the CITY may install its own similar sized conduit. There shall be
no cost to the CITY associated with the trenching, backfilling, or surface
restoration involved with those activities provided; however, the CITY
must purchase or supply said conduit.
15. Use of Franchisee's Poles and Facilities by Others.
With respect to poles, conduits or other Facilities developed or placed in the
Franchise Area by GRANTEE, 'utilization by others of such Facilities, GRANTEE
shall obtain satisfactory assurances that such others have complied with the CITY'S
registration, franchising, and permitting requirements, if any, in Auburn City Code.
Within 15 calendar days after completion of registration with the City Clerk, where
where such registration is required, the CITY will determine whether the proposed
lessee is subject to Franchise requirements and will notify in writing both
GRANTEE and the proposed lessee of the determination and/or approval and the
process to proceed.
16. Capacity Sharing and Co-Location.
In order to avoid unnecessary disturbance in the Public Ways, and to optimize use
of limited capacity, the CITY may require GRANTEE to share the use of its facilities
with others in accordance with The Act.
GRANTEE shall allow the sharing of its conduit, trenches, and other facilities
constructed by GRANTEE when the following conditions are met:
16.1. The sharing of such facilities is timely7 and technologically feasible and
does not render other portions of GRANTEE's Facilities obsolete.
16.2. Such others have agreed to compensate GRANTEE its standard fees for
the use of such facilities and the parties have agreed to all other terms
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relative to such use.
16.3. Such sharing will not consume that portion of the capacity of such
Facilities reserved for GRANTEE'S future use.
16.4. Such sharing may be terminated by GRANTEE to accommodate the use
of the Facilities by GRANTEE or GRANTEE's customers.
17. Construction in Right-of-way.
17.1. Notification to City Public Works Department. GRANTEE shall submit
an application to the Public Works Department for a permit to perform
work in the CITY'S Public Ways. No work, other than emergency
repairs, shall commence without such a permit. Emergency repairs may
be made immediately with written notification of such repairs given to
the CITY no later than the next business day. The application shall be
accompanied by an initial deposit of $1,000.00 to a separate project
management deposit account to cover the CITY'S actual costs of GIS
mapping, plan review & approval, and project scope and cost estimating
leading up to issuance of the excavation permit. When the CITY is
prepared to call for mylars it will require with mylar submission, a
schedule for completing the work, a construction performance bond, the
second deposit in an amount estimated to pay for the costs of providing
inspection of GRANTEE'S work within CITY right-of-way to be
deposited in an account with the Auburn Finance Department, which
account-shall not bear interest. When GRANTEE has submitted the
revised mylars for CITY approval, an approved construction schedule, a
construction performance bond in the amount designated by the CITY,
and a second deposit sufficient to compensate the CITY for the cost of
inspection as described above, the City Engineer will issue the excavation
permit. As the project progresses, if an additional deposit is required, the
CITY will notify GRANTEE. At the completion of work before the CITY
releases the performance bond, a final accounting will be completed and
either a final bill will be issued or a refund of the remaining balance will
be prepared. Any refund will be without interest.
17.2. Facility Planning. The CITY has established a policy to co-locate
telecommunication cables and conduits in a common corridor in so
much as is technically feasible in order to minimize impact to the CITY'S
pavement and interference with existing and future CITY-owned
utilities. GRANTEE agrees to work with the CITY and other providers
in planning the location of any Facilities in the Public Way. In order to
aid the CITY in such co-location planning, in the event GRANTEE needs
to install underground facilities, GRANTEE shall conduct any
exploratory work as necessary to identify the location of any other
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existing underground telecommunication utilities where CITY records
are inadequate to clearly indicate the same. The CITY will make all
existing relevant records available at no cost to facilitate this cooperative
effort. This section applies to only those sections of the Public Ways
where installation of underground conduit or cables and related support
equipment is planned.
The CITY, in providing record drawings, makes no guarantee of accuracy, either
express or implied.
17.3. Notice of Entry on Private Property. If directed by the CITY, at least 24
hours prior to entering private property or streets or public easements
adjacent to or on such private property to perform new construction or
reconstruction, a notice indicating the nature and location of the work to
be performed shall be physically posted, at no expense to the CITY, upon
the affected property by the grantee or Franchisee. A door hanger may be
used to comply with the notice and posting requirements of this Section.
A grantee or Franchisee shall make a good faith effort to comply with the
property owner/resident's preferences, if any, on location or placement
of underground installations (excluding aerial cable lines utilizing
existing poles and existing cable paths), consistent with sound
engineering practices. Provided, however, that nothing in this Chapter
shall permit a grantee or Franchisee to unlawfully enter or construct
improvements upon the property or premises of another.
17.4. Installation. In accordance with requirements of ACC 12.04, entitled
"Public Works Construction" and ACC 12.28 entitled, "Barricades" and
with the permit issued, all transmission Facilities, equipment, and
structures shall be located and installed so as to cause minimum
interference with the public fight-of-way and reasonable convenience of
adjacent property owners, and at all times shall be maintained in a safe
condition, and in good order and repair. Suitable barricades, flags, lights,
flares, or other devices shall be used at such times and places as are
reasonably required for the safety of the public. Any poles or other
fixtures placed in any street by GRANTEE shall be placed in such manner
as not to interfere with the usual travel on such Public Way. With
respect to excavations within any area, the CITY and GRANTEE shall
comply with the provisions of Chapter 19.122 RCW and any other
applicable state law. To obtain a permit for facility installation,
GRANTEE shall post a performance bond from a resident Washington
State surety company in the amount determined by the CITY, after CITY
review of the scope of work intended. Once the installation and all
related site restoration work is completed to the CITY'S satisfaction, and
record plans for the permitted work are received, the CITY will release
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the bond.
17.5. Record of Installation. GRANTEE shall provide to the CITY in AutoCad
drawing file format, upon the CITY'S written request, copies of available
drawings in current use showing the location of GRANTEE'S Facilities
within the Public Way to include those located on poles of the servicing
electric utility. GRANTEE shall update such map to reflect
improvements to the system. Any such map (or update thereof) so
submitted shall be for informational purposes only and shall not obligate
GRANTEE to undertake any specific improvements, nor shall such map
be construed as a proposal to undertake any specific improvements.
Upon completion of any new work that changes the nature and location
of facilities in the public right-of-way, GRANTEE shall submit to the
CITY an updated record of said changes in AutoCad drawing file format.
As an option, GRANTEE may submit only a map of such changes and
pay the CITY'S cost to prepare the AutoCad record drawings. Each map
revision will clearly distinguish poles owned by the CITY from poles
owned by the electric power utility or other entity.
17.6. Shared Use of Excavations. GRANTEE and the CITY shall exercise best
efforts to coordinate construction work which either entity may
undertake within the Franchise Area so as to promote the orderly and
expeditious performance and completion of such work as a whole. Such
efforts shall include, at a minimum, reasonable and diligent efforts to
keep the other party and other utilities within the Franchise Areas
informed of its intent to undertake any construction work. GRANTEE
and the CITY shall further exercise best efforts to minimize any delay or
hindrance to any construction work undertaken by themselves or other
utilities within the Franchise Area.
17.7. Interference with Use of Public Ways. GRANTEE must obtain a
construction permit to perform work in the Public Way for all work
performed by GRANTEE in such areas. When installing, locating,
laying, or maintaining Facilities, apparatus, or improvements,
GRANTEE shall not interfere with the use of any street to any greater
extent than is necessary, and shall leave the surface of any such street in
as good and stable condition as it was prior to performance by GRANTEE
of such work. Any facility, apparatus, or improvement under this
Ordinance Agreement shall be laid, installed, located, or maintained in
conformance with instructions given by, and to the satisfaction of the
CITY. In any event, GRANTEE shall, at its own expense, and to the
satisfaction of the CITY, in accordance with the terms of the application
for any permit to perform work in the Public Way, restore to CITY
standards and specifications damage or disturbance caused to streets as a
result of GRANTEE'S construction or activity.
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17.8. Coordination of Work. Upon issuance of a Right-of-way construction
permit, GRANTEE shall schedule a pre-construction meeting with the
CITY prior to commencing work in the Public Way. To promote
cooperation with the CITY and other franchisee's, GRANTEE shall:
17.8.a. By November 1st of each year, provide the CITY with a schedule
of proposed construction activities that may affect the Public
Ways during the following year.
17.8.b. Meet with the CITY, other grantees and franchisees and users of
the Public Ways annually or as determined by the CITY to
schedule and coordinate construction in the Public Ways.
17.8.c. All construction locations, activities and schedules shall be
coordinated, as required by the City Public Works Director, to
minimize public inconvenience, disruption or damages.
18. Transfer or Assignment of Franchise Agreement.
This Franchise agreement with GRANTEE shall not be sold, transferred, leased,
assigned, or disposed of directly or indirectly, in whole or in part, either by sale,
voluntary or involuntary merger, consolidation, by operation of law or otherwise,
without the prior written consent of the CITY to ensure a review of unforeseen
circumstances not present at the time of the original Franchise. The CITY'S
approval shall comply with any of its ordinance requirements and shall not be
unreasonably withheld or delayed. Such costs associated with this review process
shall be reimbursed to the CITY by the new prospective Franchisee. Such
reimbursable costs will not exceed those, in constant dollars, incurred in the re-
Franchising process.
An assignment of this Franchise shall be deemed to occur if there is an actual
change in control or working control or where ownership of fifty (50%) percent or
more of the beneficial interests, singly or collectively, are obtained by other parties
("A Change in Control"). The word "control" as used herein is not limited to
majority stock ownership only, but includes actual working control in whatever
manner exercised.
GRANTEE shall promptly notify the CITY prior to any proposed change in control,
or transfer of, or acquisition by any other party in control of GRANTEE'S company
or GRANTEE'S Telecommunications System or facilities, or substantial parts
thereof, Franchisee shall cause a review of the proposed transfer requiring CITY
approval. Transactions involving a Change in Control between affiliated entities
are not exempt from CITY approval. In the event that the CITY adopts a resolution
denying its consent and such change, transfer or acquisition of control has been
affected, the CITY may cancel, terminate or revoke this Franchise agreement.
24
Approval shall not be required for mortgaging purposes or if said transfer is from
GRANTEE to another person or entity controlling, controlled by, or under common
control with GRANTEE.
GRANTEE may without the prior written notice to or consent of the CITY: (i) enter
into contracts with other entities whereby the others may acquire rights to make use
of the optic fibers within GRANTEE'S Facilities; (ii) grant an Indefeasible Right of
User Interest in the Faclilities, or any portion thereof, to another; or (iii) offer or
provide capacity or bandwidth in its Facilities to another, PROVIDED THAT:
GRANTEE at all times retains exclusive control over such Faclilities and remains
responsible for locating, servicing, repairing, relocating or removing its Facilities
pursuant to the terms and conditions of this Franchise.
19. Removal and/or Abandonment of GRANTEE'S Property.
In the event that the use of any part of the Telecommunication System is
discontinued for any reason for a continuous period of, not less than twelve (12)
months, or in the event such system or property has been installed in any Public
Way or public place without complying with the requirements of this Franchise and
all other applicable CITY ordinances and regulations, or this Franchise has been
terminated, canceled or has expired, GRANTEE shall promptly, upon being given
fourteen (14) days written notice, remove within thirty (30) days from the Public
Way or public places all such property and poles of such system other than any the
CITY has authorized to be abandoned in place. The CITY may extend such time
period for removal for an additional period of time not to exceed ninety (90) days.
Upon removal, GRANTEE shall promptly restore the Public Way and/or other
areas from which such property has been removed to a condition reasonably
comparable to the condition of the Public Way existing immediately prior to such
removal or abandonment.
Any property of GRANTEE remaining in place ninety (90) days after the
termination or expiration of the Franchise shall be considered permanently
abandoned.
20. Franchise Application, Fees, Compensation, Charges, Reporting
Requirements, Franchise Transfer and Best Rates.
20.1. Franchise Application Fee. Prior to the processing of this Franchise
agreement, GRANTEE agrees to submit its application on the form
provided by the CITY together with a Two Thousand Five Hundred
Dollars ($2,500) application fee.
20.2. Administrative Fee. An administrative fee will be assessed to
GRANTEE to reimburse the CITY for the administrative processing cost
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incurred in the initial adoption of this Franchise and for the continued
monitoring and enforcement of same which is over and above the
application fee.
20.3. Other Required Permits or Inspections. GRANTEE shall, in addition to
the fees described in Sections 20.1 and 20.2 above, be subject to all permit
fees associated with activities undertaken as a result of the authority
granted in this Franchise and pursuant to any requirements of other
CITY ordinances and regulations. Where the CITY incurs costs and
expenses for review, inspection, or supervision of activities undertaken
through the authority granted in this Franchise and pursuant to any
requirements of other CITY ordinances and regulations relating to the
subject for which a permit fee is not established, GRANTEE shall pay
such actual and direct costs and expenses directly to the CITY. In
addition to the above, GRANTEE shall promptly reimburse the CITY for
all reasonable and documented costs the CITY reasonably incurs in
response to any Emergency involving GRANTEE'S facilities.
20.4. Compensation for Use of the Public. Ways, Franchise Fee, Utility Tax, and
Late Payment Charge.
20.4.a. City's Reservation of Rights. Pursuant to Section 35.21.860 of the
Revised Code of Washington (RCW), the CITY is precluded
from imposing a Franchise fee on a "telephone business" as
defined in RCW 82.04.065, except for administrative expenses or
any tax authorized by RCW 35.21.865 et. seq. GRANTEE hereby
warrants that all of its operations as authorized under this
Franchise are those of a telephone business as defined in RCW
82.04.065. The CITY, relying on GRANTEE'S warranty, is not
authorized at this time to impose a Franchise fee under the
terms of this ordinance, other than as described'herein.
However, the CITY hereby reserves its right to impose a Franchise fee on GRANTEE
for purposes other than to recover its administrative expenses or to exercise its
taxing authority, if any of GRANTEE'S operations, as authorized by this Franchise,
change so that any of GRANTEE'S operations or uses are no longer a "telephone
business" as defined in RCW 82.04.065; or, if statutory prohibitions on the
imposition of such fees are removed. In the former instance, the CITY reserves its
right to require that GRANTEE obtain a separate Franchise for any operation or use
which is not a "telephone business", which Franchise may include provisions
intended to regulate GRANTEE'S operations, as allowed under applicable law.
Given the CITY'S reservation of rights, GRANTEE reserves its right to contest the
CITY'S imposition of any fees or taxes subsequent to this Franchise.
20.4.b. Utility Tax Liability. Revenues derived directly or indirectly from sources within the CITY shall be subject to applicable utility tax.
26
Franchise fees, if applicable, shall be in addition to any utility tax,
but shall be collectible only to the extent as then allowed by law.
The initial utility tax rate shall be 4.5% of Gross Revenues in
accordance with ACC 5.82.
20.4.c. Quarterly Payment. GRANTEE shall make payments forward by
wire transfer on a an amount equal to this quarterly basis.
Payment is due by the thirtieth (30th) day of the first calendar
month immediately following the close of the calendar quarter
for which the payment is calculated.
20.4.d. Late Payment. Any fee, costs, or expense owed or reimbursable
to the CITY shall be considered delinquent if not paid within 30
days of the billing date and simple interest at a twelve percent
(12%) annual percentage rate on the total amount past due shall
accrue.
20.5. Fees and Compensation Not a Tax. The fees, charges and fines provided
for in this Franchise and any compensation charged and paid for the
Public Ways provided for herein, whether fiduciary or in-kind, are
separate from, and additional to, any and all federal, state, local and CITY
taxes as may be levied, imposed or due from a telecommunications
carrier or provider, its customers or subscribers or on account of the
lease, sale, delivery or transmission of telecommunications services.
20.6. Compensation to City. The compensation required from any
telecommunications carrier or provider engaged in the "telephone
business", as defined in RCW 82.04.065, shall be consistent with RCW
35.21.860.
20.7. Quarterly Report. In order to properly determine the Gross Revenues
received by GRANTEE, GRANTEE agrees that on the same date that each
quarterly payment is made, it will file with the Director of Finance, a
sworn copy of a report in sufficient detail to itemize revenues from each .
of the revenue categories. The CITY may, if it sees fit and at its own
expense, have the books and records of GRANTEE examined by a
representative of said CITY to ascertain the correctness of the reports
agreed to be filed herein. Any necessary pro-rations shall be made in
the first and last year of each term of the Franchise.
20.8. Recalculation at End of Compensation Year. At the end of each calendar
year, GRANTEE shall recalculate the total general compensation actually
due. If additional amounts are due the CITY by Franchisee, said
amounts shall be paid by the thirtieth (30th) day of January following the
calendar year during which such amounts were originally due. If
amounts are found to be due GRANTEE by the CITY, said amounts shall
27
be credited by the thirtieth (30th) day of January during which such
amounts were originally due. Any necessary pro-rations will be made.
20.9. Taxes are Not to be a Credit. The compensation paid under this
Franchise shall be exclusive of' and in addition to all special assessments
and taxes of whatever nature which are applicable to all other Persons or
entities doing business within the CITY, including, but not limited to, ad
valorem tax, sales tax, corporate or business occupation taxes or other
taxes or fees imposed or levied by any governmental entity.
20.10. Rights of City. Payment of money under this Franchise shall not in
any way limit or inhibit any of the privileges or rights of the CITY,
whether under this Franchise or otherwise, except insofar as CITY'S
privileges or rights are expressly limited or inhibited by the terms of this
Franchise.
20.11. Annual Report. GRANTEE shall file annually with the Director of
Finance no later than ninety (90) days after the end of GRANTEE'S fiscal
year, an unaudited statement of revenues (for that fiscal year just ended)
attributable to the operations of GRANTEE'S Telecommunication
System within the CITY pursuant to this Franchise agreement. This
statement shall present a detailed breakdown of Gross Revenues and
uncollectible accounts for the year. The CITY may, if it sees fit, have such
report audited by an independent certified public accountant of its
choosing. If the audit reveals an error greater than 5% in underpayment
of Franchise fees or utility taxes by GRANTEE, then GRANTEE shall pay
for the costs of the audit. Otherwise, the CITY shall pay the costs of the
audit. This report will summarize those accounts reconciled to be
within the Franchise Area by the C1TY'S quarterly review.
20.12. Circumventing Payments. Any transaction(s) which have the effect of
circumventing payment of the required Franchise fees or utility taxes
and/or evasion of payment of Franchise fees or utility taxes or any
payments due the CITY under this Franchise by non-collection or non-
reporting of Gross Revenues, bartering, or any other means which evade
the actual collection of revenues for business pursued by GRANTEE are
prohibited.
20.13. Comparable Rates. As part. of the compensation to the CITY for the
grant of this Franchise, the CITY shall be entitled to obtain subscriptions,
at the CITY'S discretion, to the Communication Service at GRANTEE'S
comparable rate applicable to any government body or municipality of
the State of Washington. In addition, CITY shall be entitled to
GRANTEE'S comparable available rate 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
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Washington for purposes of accessing the Communication Service.
21. Accounts, Books and Records.
21.1. City to be Informed. GRANTEE 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
GRANTEE'S system. CITY acknowledges that GRANTEE is a reporting
company under the Securities Exchange Act of 1934 and that shares of its
stock are publicly traded. As such, GRANTEE may be precluded from
disclosing certain sensitive, non-public information by virtue of rules
and regulations promulgated under such act or otherwise.
21.2. Accounts.
21.2.a. GRANTEE shall keep complete and accurate books of account
and records of its business and operations pursuant to this
Franchise ordinance in accordance with generally accepted
accounting principles or in accordance with accounting rules
prescribed by federal or state regulatory agencies.
21.2.b. Exhibit "B", attached hereto and by this reference incorporated
herein as if fully set forth, reflects the CITY'S existing legal
boundaries for purposes of determining taxes and fees under this
Franchise. For audit purposes, GRANTEE will provide a
complete list of all subscribers with an Auburn street and/or post
office address clearly indicating those which are certain to be
subject to this Franchise. For cases where addresses are near the
boundary or are in quesfion, Auburn will review and determine
the specific accounts subject to the Franchise and notify
GRANTEE of adjustments required in subsequent billing. In
order to facilitate the CITY'S review, GRANTEE will submit the
data in the following format on a computer disc in ASCII format:
*Name Address Zip Code Phone Number
*Indicates the specific status is in question.
Such information is confidential and the CITY shall not disclose it to any
person unless such disclosure is necessary for purposes of the audit.
Further, the CITY shall return such information after the audit is
complete.
21.3. Access to Records. Subject to the caveat set forth in Section 21.1,
GRANTEE shall provide the CITY with access at reasonable times and
for reasonable purposes, to examine, audit, and/or review the papers,
29
books, accounts, documents, maps, plans and other records of GRANTEE
pertaining to this Franchise. Pursuant to RCW 42.17.310(1)(c) and RCW
42.17.310(1)(h), the CITY and GRANTEE consider all materials and
records provided by GRANTEE to the C1TY, for the purpose of satisfying
the terms of Section 21, to be exempt from disclosure and/or release.
Any third party seeking review or release of the materials that are subject
to this section, must seek review or release from GRANTEE as the
Custodian and Proprietary party of the original records. Nothing in this
Section shall be construed to require a Franchisee to violate state or
federal law regarding subscriber privacy, nor shall this Section be
construed to require a Franchisee to disclose proprietary or confidential
information without adequate safeguards for its confidential or
proprietary nature.
21.4. Duty to Provide Information. The CITY may, at any time, make
inquiries pertaining to GRANTEE'S operation of its Telecommunication
System within the Franchise Area. GRANTEE shall respond to such
inquiries on a timely basis. Within thirty (30) working days of a written
request from the CITY, the Franchisee shall furnish the C1TY with
information sufficient to demonstrate:
21.4.a. That the Franchisee has complied with all requirements of the
CITY'S Telecommunications code; and
21.4.b. That all sales, utility and/or telecommunications taxes due the
CITY in connection with the cable or telecommunications
services and Facilities provided by the Franchisee have been
properly collected and paid.
21.5. Access to Records. All books, records, maps and other documents
maintained by the Franchisee with respect to its 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 Franchisee to violate state or federal law regarding subscriber
privacy, nor shall this Section be construed to require a Franchisee to
disclose proprietary or confidential information without adequate
safeguards for its confidential or proprietary nature.
21.56. FCC and other Filings. Subject to the caveat set forth in Section 21.1,
GRANTEE shall provide the CITY with notices of all petitions,
applications, communications and reports submitted by GRANTEE to
the Federal or State Legislative bodies and the Washington Utilities and
Transportation Commission or their successor agencies, relating to any
matters affecting the CITY'S current authority to regulate use of right-of-
way in the public interest.
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22. Indemnification, Insurance, and Bonds or other Surety.
22.1 Indemnification. GRANTEE hereby releases, covenants not to bring
suit and agrees to indemnify, defend and hold harmless the CITY, its
elected and appointed officials, officers, employees, agents,
representatives, engineers, consultants, and volunteers from any and all
claims, costs, judgments, awards, or liability to any person, including
claims by GRANTEE'S own employees to which 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 GRANTEE, its agents and servants, officers or employees in
performing under this Franchise Agreement are the proximate cause.
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 GRANTEE'S own
employees, to which 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 GRANTEE'S exercise of the rights granted herein, or by virtue
of the CITY's permitting 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 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
Franchise Agreement, or pursuant to any other permit or approval
issued in connection with this Franchise Agreement. This covenant of
indemnification shall include, but not be limited by this reference,
claims against the CITY arising as a result of the negligent acts or
omissions of 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 Franchise Agreement.
Inspection or acceptance by the CITY of any work performed by 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 GRANTEE refuses the tender of defense in any suit or any claim,
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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 GRANTEE, then 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.
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
GRANTEE, and the CITY, its elected and appointed officials, officers, employees,
agents, representatives, engineers, consultants, and volunteers, GRANTEE'S
liability hereunder shall be only to the extent of GRANTEE'S negligence. It is
further specifically and expressly understood that the indemnification provided
herein constitutes 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
Franchise Agreement.
Notwithstanding any other provisions of this Section, 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. 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 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 Franchise Agreement except to the extent any such damage
or destruction is caused by or arises from the ~olc negligence or any willful, e-~
malicious or criminal action on the part of the CITY, its elected and appointed
officials, officers, employees, agents, representatives, engineers, consultants, and
volunteers. 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 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 negligence or any willful, malicious or
criminal actions on the part of the CITY, its elected and appointed officials, officers,
employees, agents, representatives, engineers, consultants, and volunteers.
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22.2. Insurance. GRANTEE shall maintain in full force and effect throughout
the term of this agreement the following:
22.2.a. Commercial General Liability insurance in an amount of not
less than $5,000,000 per occurrence, $5,000,000 General Aggregate
and $5,000,000 Products/Completed Operations Aggregate,
inclusive of umbrella. The Commercial General Liability
insurance policy shall contain or be endorsed to include the
following:
1. Products and Completed liability operations coverage.
2. Contractual liability coverage.
3. Cross liability/Severability of interest.
4. Broad form property damage.
5. Occurrence form.
6. Independent contractors coverage.
7. No X, C, or U (explosion, collapse, or underground)
exclusion.
8. CITY named as additional insured.
22.2.b. Automobile Liability Insurance covering any auto in an amount
· of not less than $5,000,000 combined single limit, inclusive of
umbrella.
The Automobile Liability and Commercial General Liability insurance shall be
written by companies licensed to do business in the State of Washington. An excess
or umbrella liability policy may be purchased to meet the required insurance limits.
Certificates of insurance evidencing the insurance requirements shall be furnished
to the CITY before granting of the permit and at any time thereafter at the request of
the CITY. Such insurance certificates shall give thirty (30) days notice of cancellation
to the CITY. Any contractors, subcontractors, or agents of GRANTEE shall also meet
all of the insurance requirements of this Section 20 and shall not be allowed on any
CITY right-of-way until certificates of insurance evidencing the insurance
requirements in a satisfactory manner are received by the CITY.
22.3. Performance Bond. GRANTEE shall promptly repair or cause to be
repaired any damage to CITY Property caused by GRANTEE or any agent,
employee or servant of GRANTEE. GRANTEE shall comply with all
present and future ordinances and regulations regarding excavation or
construction and, if deemed necessary by the CITY, shall be required to
post a performance bond acceptable to the CITY in an amount specified
by the CITY in favor of the CITY warranting that all restoration work
will be done promptly and in a workmanlike manner.
22.4. Recourse Against Bonds. Bonds may be utilized by the CITY for
purposes, including, but not limited to, reimbursement to the CITY by
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reason of GRANTEE'S failure to pay the CITY any sums due under the
terms of this Franchise, reimbursement to the CITY for reasonable costs
borne by the CITY to correct GRANTEE'S violations not corrected after
due notice, and monetary remedies or damages assessed against
GRANTEE due to default or violations of the requirements of this
Franchise.
22.4.a. Recourse. In the event GRANTEE has been declared to be in
default by the CITY under this Franchise and if GRANTEE fails,
within thirty (30) days of mailing of the CITY'S notice of default,
to pay the CITY any monetary sanctions, or fails to perform any
of the conditions of the Franchise, the CITY may thereafter
foreclose against the performance bond and/or withdraw from
any security an amount sufficient to compensate the CITY'S
damages, with interest at the legal rate. Upon such foreclosure
or withdrawal, the CITY shall notify GRANTEE in writing, by
First Class Mail, postage prepaid, of the amount and date thereof.
22.4.b. Restoration. Within thirty (30) days after mailing notice to
GRANTEE that the CITY has foreclosed GRANTEE'S
performance bond, GRANTEE shall deposit such further bond,
as the CITY may require, sufficient to meet the requirements of
this Franchise agreement.
22.4.c. Rights of the CITY. The rights reserved to the CITY with respect
to any bond are in addition to all other rights of the CITY
whether reserved by this Franchise agreement or authorized by
law, and no action, proceeding, or exercise of a right with respect
to any bond or other security shall constitute an election or
waiver of any rights or other remedies the CITY may have.
23. Default.
If GRANTEE fails to comply with any of the provisions of this Franchise, unless
otherwise provided for herein, the CITY may serve upon GRANTEE a written
notice to so comply within thirty (30) days from the date of such notice. If
GRANTEE is not in compliance with the terms of this Franchise after expiration of
said thirty (30) day period, the CITY may act to remedy the violation and may charge
the reasonable and documented costs and expenses, inclusive of legal fees, of such
action to GRANTEE. The CITY may act without the thirty (30) days prior notice in
case of an Emergency.
If a Franchise'issue arises in which the CITY questions either GRANTEE'S
compliance with this agreement or the propriety of GRANTEE'S action(s) relating to
this agreement, GRANTEE shall, upon written inquiry, provide a specific reference
34
to either the federal, state, or local law or the WUTC order or action establishing a
basis for GRANTEE'S actions.
If GRANTEE fails to comply with any of the provisions of this Franchise or any
applicable federal, state or local law or the WUTC, the CITY may in addition, by
ordinance, declare an immediate forfeiture of this Franchise, provided, however, if
any failure to comply with this Franchise by GRANTEE cannot be corrected with
due diligence within said thirty (30) day period GRANTEE'S obligation to comply
and to proceed with due diligence being exclusive of unavoidable delays and events
beyond its control), then the time within which GRANTEE may so comply shall be
extended for such time as may be reasonably necessary and so long as GRANTEE
commences promptly and diligently to effect such compliance.
In addition to other remedies provided herein, if GRANTEE is not in compliance
with requirements of this Franchise, and if a good faith dispute does not exist
concerning such compliance, the CITY may place a moratorium on issuance of any
pending GRANTEE right-of-way use permits until compliance is achieved.
24. Enforcement and Termination of Franchise.
24.1. Notice of Violation. In the event that the CITY believes that GRANTEE
has not complied with the terms of the Franchise, the CITY shall notify
GRANTEE in writing of the exact nature of the alleged noncompliance
or violation.
24.2. GRANTEE'S Right to Cure or Respond. EXCEPT in cases involving a
notice of safety violation (Section 11, "Safety") where a cure is required
within twenty-four (24) hours, GRANTEE shall have thirty (30) days
from receipt of a Notice of Violation described in Section 24.1: (1) to
respond to the CITY contesting the assertion of noncompliance or ,
violation, (2) to cure such default, or (3) in the event that, by the nature
of default, such default cannot be cured within the thirty (30) day period,
initiate reasonable steps to remedy such default and notify the CITY of
the steps being taken and the projected date that they will be completed.
24.3. Public Hearing. In the event that GRANTEE fails to respond to the
notice described in Section 11 or Section 24.1 pursuant to the procedures
set forth in Section 24.2, or in the event that the alleged violation is not
remedied within the prescribed period of time after GRANTEE is
notified of the alleged violation pursuant to Section 11 or Section 24.1,
the City Council shall schedule a public hearing to investigate the
violation. Such public hearing shall be held at the next regularly
scheduled hearing of the City Council which is scheduled at a time
which is no less than five (5) business days therefrom. The CITY shall
notify GRANTEE of the time and place of such public hearing and
35
provide GRANTEE with an opportunity to be heard.
24.3.a. Standards for Revocation or Lesser Sanctions. If the City Council
determines that a grantee, Franchisee, or lessee willfully violated
or failed to comply with any of the provisions of its
Telecommunications code, this Franchise, or through willful
misconduct or gross negligence failed to heed or comply with
any notice given the Franchisee by the CITY under the
provisions of this Franchisee or its codes, then the Franchisee
shall, at the election of the City Council, forfeit all rights
conferred hereunder and the Franchise may be revoked or
annulled by the City Council. The City Council may elect, in lieu
of the above and without any prejudice to any of its other legal
rights and remedies, to pursue other remedies, including
obtaining an order from the Superior Court having jurisdiction
compelling the Franchisee to comply with the provisions of this
Franchise or its codes, and to recover damages and costs incurred
by the CITY by reason of the Franchisee's failure to comply. The
City Council shall utilize the following factors in analyzing the
nature, circumstances, extent, and gravity of the violation and in
making its determination under this Section:
1. Whether the misconduct was egregious;
2. Whether substantial harm resulted;
3. Whether the violation was intentional;
4. Whether there is a history of prior violations of the same
or other requirements;
5. Whether there is a history of overall compliance; and
6. Whether the violation was voluntarily disclosed,
admitted or cured.
24.4. Enforcement. Subject to applicable federal and state law, in the event the
CITY, after such public hearing, determines that GRANTEE is in default
of any provision of the Franchise, the CITY may:
24.4.a. Foreclos~ on all or any part of any security provided under this
Franchise, if any, including without limitation, any bonds or
other surety; provided, however, the foreclosure shall only be in
such a manner and in such amount as the CITY reasonably
determines is necessary to remedy the default;
36
24.4.b. Commence an action at law for monetary damages or seek other
equitable relief;
24.4.c. After the expiration of said 30-day period to cure violation, the
CITY may act to remedy the violation and charge the costs and
expenses of such action to the grantee, Franchisee, or lessee;
24.4.d. In the case of a material breach of the Franchise, declare the
Franchise agreement to be terminated or revoked; or
24.4.e. Seek specific performance of any provision, which reasonably
leads itself to such remedy, as an alternative to damages.
GRANTEE shall not be relieved of any of its obligations to comply promptly with a
provision of the Franchise by reason of any failure of the CITY to promptly enforce
compliance.
24.5. Acts of God. GRANTEE shall not be held in default or noncompliance
with the provisions of the Franchise, nor suffer any enforcement or
penalty relating thereto, where such noncompliance or alleged defaults
are caused by strikes, acts of God, power outages, or other events
reasonably beyond its ability to control.
25. Franchise Amendment.
This Franchis~e 'may be amended only by written instrument, signed by both parties,
which specifically states that it is an amendment to this Franchise, and is approved
and executed in accordance with the laws of the State of Washington. Without
limiting the generality of the foregoing, this Franchise (including, without
limitation Section 21 above) shall govern and supersede and shall not be changed,
modified, deleted, added to, supplemented or otherwise amended by any permit,
approval, license, agreement or other document required by or obtained from the
CITY in conjunction with the exercise (or failure to exercise) by GRANTEE of any
and all rights, benefits, privileges, obligations, or duties in and under this Franchise,
unless such permit, approval, license, agreement or document specifically:
1. References this Franchise; and
2. States that it supersedes this Franchise to the extent it
contains terms and conditions which change, modify,
delete, add to, supplement or otherwise amend the terms
and conditions of this Franchise.
This Franchise is subject to the provisions of any applicable tariff now or hereafter
on file with the Washington Utilities and Transportation Commission .or its
37
successor. In the event of any conflict or inconsistency between the provisions of
this Franchise and such tariff, the provisions of such tariff shall control.
26. Tariff Changes.
If GRANTEE shall file, pursuant to Chapter 80.28 RCW, with the Washington
Utilities and Transportation Commission (or its successor) any tariff affecting the
CITY'S right arising under this Franchise, GRANTEE shall give the City Clerk
written notice thereof within thirty (30) calendar days of the date of such filing.
27. Miscellaneous Provisions.
27.1. Action of City. In any action by the CITY or representative thereof
mandated or permitted under the terms hereof, such party shall act in a
reasonable, expeditious, and timely manner. Furthermore, in any
instance where approval or consent is required under the terms hereof,
such approval or consent shall not be unreasonably withheld.
27.2. Notice. Unless otherwise expressly agreed between the parties, every
notice or response to be served upon the CITY or GRANTEE shall be in
writing, and shall be deemed to have been duly given to the required
party five (5) business days after having been posted in a properly sealed
and correctly addressed envelope by certified or registered mail, postage
prepaid, at a Post Office or branch thereof regularly maintained by the
U.S. Postal Service.
The notices or responses to the CITY shall be addressed as follows:
City Clerk
25 West Main Street
Auburn, WA 98001-4998 ,
With a copy to:
City Attorney
City of Auburn
25 West Main Street
Auburn, WA 98001-4998
The notices or responses to GRANTEE shall be addressed as follows:
Metromedia Fiber Network Services, Inc.
ATTN: V.P. Legal Affairs
One North Lexington Avenue
White Plains, NY 10601
38
The CITY and GRANTEE may designate such other address or addresses from time
to time by giving notice to the other.
27.3. Descriptive Headings. The captions to sections contained herein are
intended solely to facilitate the reading thereof. Such captions shall not
affect the meaning or interpretation of the text herein.
27.4. GRANTEE. Availability. GRANTEE shall be available to CITY staff
employees of the a CITY department having jurisdiction over
GRANTEES activities 24 hours a day, 7 days a week, regarding problems
or complaints resulting from the attachment, installation, operation,
maintenance, or removal of GRANTEE'S Telecommunication System.
The CITY may contact GRANTEE by telephone at (800) MFN-ASST, a
telephone number at which a GRANTEE employee can be reached
twenty-four (24) hours a day, seven (7) days a week regarding such
problems or complaints.
27.5. Venue of any Court Action. This Franchise shall be governed and
construed by and in accordance with the laws of the State of Washington.
In the event that suit is brought by a party to this Franchise, the parties
agree that jurisdiction of such action shall be vested exclusively in the
King County Superior Court for the State of Washington, or in the
United States District Court for the Western District of Washington
located in Seattle, Washington, unless another court of an
administrative agency has exclusive or primary jurisdiction.
27.6. Exhibits. All exhibits referred to in this Franchise and any addenda,
attachments, and schedules which may, from time to time, be referred to
in any duly executed amendment to this Franchise are by such reference
incorporated in this Franchise and shall be deemed a part of this
Franchise.
27.7. Action by the FCC. In the event the FCC promulgates more stringent
notice requirements, technical standards, consumer protection or
consumer services requirements than are contained in this agreement,
those more stringent requirements shall prevail. The CITY shall give
reasonable notice when in its their determination more stringent
requirements that has have been implemented occurred. GRANTEE
shall retain and not waive any or all rights and privileges as afforded
either under this contract or pursuant to federal law or FCC regulations
to complain and/or appeal such a determination.
39
28. Severability.
If any section, sentence, paragraph, term, or provision hereof is determined to be
illegal, invalid, or unconstitutional, by any court of competent jurisdiction or by any
state or federal regulatory authority having jurisdiction thereof, such determination
shall have no effect on the validity of any other section, sentence, paragraph, term
or provision hereof, all of which will remain in full force and effect for the term of
the Franchise, or any renewal or renewals thereof.
40
PASSED BY THE CITY COUNCIL OF . ~ITY OF BURN, WASHINGTON, AT
ITS REGULAR MEETING ON THE T~-"day o~ , 2000.
CITY OF AUBURN
MAYOR
ATTEST:
Danielle E. Daskam,
City Clerk
APPROVED AS TO FORM:
...........
City Attorney
41
METROMEDIA FIBER NETWORK, INC.
STATE OF/V~dJ/t/dC,' )
COUNTY OF/,dzdttdTegde F" )
On this _j_ day of _~_/! , 2000, be ore me the unders'gned,
f ~ a
Notary Public in and fjr'/he TZ YTieT_ ydkL,duly commissioned and sworn,
personally appeared Z~d,v,v/.s~'. bd//~O ' of METROMEDIA
FIBER NETWORK SERVICES, INC. the corporation that'executed the within and
foregoing instrument, and acknowledged the 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/she is authorized to execute said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
on the date herein above set forth.
NOTARY PUBLIC in and for the State of
filM yPillS, residing at ~-0/ ~ ~ f7t ~1 aa z/
MY COMMISSION EXPIRES:
42
EXHIBIT "A"
STATEMENT OF ACCEPTANCE
Grantee ,for itself, its successors and assigns, hereby accepts and agrees to be bound by
all terms, conditions and provisions of the Franchise granted pursuant to Ordinance
No.5'qtt~ q, attached hereto and i corporated herein by this reference.
By: ~' ~..~~"
Title:
Date:
Attached hereto is a copy of the executed Ordinance approving the execution of the
Franchise by the CITY and a corporate resolution or corporate secretary certificate
therefor duly executed and approving this Statement of Acceptance, the execution
thereof and authorizing the officer executing this Statement of Acceptance to do so.
43