HomeMy WebLinkAbout6513 ORDINANCE NO. 6 5 1 3
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF AUBURN, WASHINGTON, GRANTING TO
ELECTRIC LIGHTWAVE, LLC, A WHOLLY OWNED
SUBSIDIARY OF INTEGRA TELECOM HOLDINGS,
INC, A DELEWARE CORPORATION, A FRANCHISE
FOR TELECOMMUNICATIONS TYPE OF UTILITY
WHEREAS, Electric Lightwave LLC ("ELI") ("Grantee") has applied to the
City of Auburn ("City") for a non-exclusive Franchise for the right of entry, use,
and occupation of certain public right(s)-of-way within the City, expressly to
install, construct, erect, operate, maintain, repair, relocate and remove its
facilities in, on, over, under, along and/or across those right(s)-of-way; and
WHEREAS, following proper notice, the City Council held a public hearing
on Grantee's request for a Franchise, at which time representatives of Grantee
and interested citizens were heard in a full public proceeding affording
opportunity for comment by any and all persons desiring to be heard; and
WHEREAS, from information presented at such public hearing, and from
facts and circumstances developed or discovered through independent study and
investigation, the City Council now deems it appropriate and in the best interest
of the City and its inhabitants that the franchise be granted to Grantee,
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN
WASHINGTON, DO ORDAIN as follows:
Section 1. Grant of Right to Use Franchise Area
A. Subject to the terms and conditions stated herein, the City grants to
the Grantee general permission to enter, use, and occupy the right(s)-of-way
and/or other public property within the City of Auburn (the "Franchise Area").
B. The Grantee is authorized to install, remove, construct, erect,
operate, maintain, relocate and repair the types of facilities specified in Exhibit
"B," attached hereto and incorporated by reference, and all necessary
appurtenances thereto, ("Grantee Facilities") for provision of those services set
forth in Exhibit "C" ("Grantee Services") in, along, under and across the
Franchise Area.
C. At the time of initial application Grantee represented that it did not I
currently own, lease, or have indefeasible rights of use for any facilities that
would be defined as Grantee Facilities under this Franchise. This Franchise does
Ortlinance No. 6513
Franchise Agreement No. 13-28
June 9, 2014
Page 1 of 1
not authorize the use of the Franchise Area for any facilities or services other
than Grantee Facilities and Grantee Services, and it extends no rights or
privilege relative to any facilities or services of any type, including Grantee
Facilities and Grantee Services, on public or private property elsewhere within
the City. If Grantee intends to install, construct, erect, operate, or maintain new
Grantee Facilities, it shall submit an application to amend this Franchise, which
amendment may be approved by the City administratively.
D. This Franchise is non-exclusive and does not prohibit the City from
entering into other agreements, including Franchises, impacting the Franchise
Area, unless the City determines that entering into such agreements interFeres
with Grantee's right set forth herein.
E. Except as explicitly set forth herein, this Franchise does not waive
any rights that the City has or may hereafter acquire with respect to the
Franchise Area or any other City roads, rights-of-way, property, or any portions
thereof. This Franchise shall be subject to the power of eminent domain, and in
any proceeding under eminent domain, the Grantee acknowledges its use of the
Franchise Area shall have no value.
F. The City reserves the right to change, regrade, relocate, abandon,
or vacate any right-of-way within the Franchise Area. If, at any time during the
term of this Franchise, the City vacates any portion of the Franchise Area
containing Grantee Facilities, the City shall reserve an easement for public
utilities within that vacated portion, pursuant to RCW 35.79.030, within which the
Grantee may continue to operate any existing Grantee Facilities under the terms
of this Franchise for the remaining period set forth underSection 3.
G. The Grantee agrees that its use of Franchise Area shall at all times
be subordinated to and subject to the City and the public's need for municipal
infrastructure, travel, and access to fhe Franchise Area, except as may be
otherwise required by law.
Section 2. Notice
A. Written notice.s to the parties shall be s.ent by certified mail to the
following addresses, unless a different address shall be designated in writing and
delivered to the other party.
City: Engineering Aide,
Community Development and
Public Works Department - Transportation
City of Auburn
25 West Main Street
Ordinance No 6513
Franchise Agreement No. 13-28
June 9, 2014
Page 2 of 2
Auburn, WA 98001-4998
Telephone: (253) 931-3010; Fax: (253) 931-3048
with a copy to: Gity Clerk
City of Auburn
25 West Main Street
Auburn, WA 98001-4998
Grantee: Electric Lightwave LLC, ( ELI)
1201 NE Lloyd Blvd, Suite 500
Portland, OR 97232
Attn: Contract Administra4ion
Telephone: 503-453-8000
Fax: 503-453-8221
B. Any changes to the above-stated Grantee information shall be sent
to the City's Engineering Aide, Community Development and Public Works
Department — Transportation Division, with copies to the City Clerk, referencing
fhe fitle of this agreement.
C. The above-stated Grantee voice and fax telephone numbers shall
be staffed at least during normal business hours, Pacific time zone.
Section 3. Term of Agreement
A. This Franchise shall run for a period of five (5) years, from the date
of execution specified in Section 5.
B. Renewal Option of Term: The Grantee may renew this Franchise
for an additional five (5) year period upon submission and approval of the
application specified under ACC 20.06.130, as it now exists or is amended,
within the timeframe set forth therein (currently 240 to 180 days prior to
expira4ion of the then-current term). Any materials submitted by the Grantee for
a previous application may be wnsidered by the City in reviewing a current
application, and the Grantee shall only submit those materials deemed
necessary by the City to address changes in the Grantee Facilities or Grantee
Services, or to reflect specific reporting periods mandated by the ACC.
C. Failure to Renew Franchise — Automatic Extension. If the Parties
fail to formally renew this Franchise prior to the expiration of its term or any
extension thereof, 4he Franchise automatically continues month to month until
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Franchise Agreement No. 13-28
June 9, 2014
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renewed or either party gives written notice at least one hundred and eighty (180)
days in advance of intent not to renew the Franchise.
Section 4. Definitions
For the purpose of this agreement;
"ACC" means the Auburn City Code.
"Emergency" means a condition of imminent danger to the health, safety and
welfare of persons or prope.rty located within the City including, without limitation,
damage to persons or property from natural consequences, such as storms,
earthquakes, riots, acts of terrorism or wars.
"Maintenance or Maintain" shall mean examining, testing, inspecting, repairing,
maintaining and replacing the existing Grantee Facilities or any part thereof as
required and necessary for safe operation.
"Relocation" means permanent movement of Grantee facilities required by the
City, and not temporary or incidental movement of such facilities, or other
revisions Grantee would accomplish and charge to third parties without regard to
municipal request.
"Rights-of-Way" means the surFace and the space above and below streets,
roadways, highways, avenues, courts, lanes, alleys, sidewalks, easements,
rights-of-ways and similar public properties and areas.
Section 5. Acceptance of Franchise
A. This Franchise, and any rights granted hereunder, shall not
become effective for any purpose unless and until Grantee files with the City
Clerk (1) the Statement of Acceptance, attached hereto as Exhibit "D," and
incorporated by reference, (2) all verifications of insurance coverage specified
under Section 15, and (3) the financial guarantees specified in Section 16
(collectively, "Franchise Acceptance"). The date that such Franchise Acceptance
is filed with the City Clerk shall be the effective date of this Franchise.
B. Should the Grantee fail to file the Franchise Acceptance with the
City Clerk within 30 days after the effective date of the ordinance approving the
Franchise, the City's grant of the Franchise will be null and void.
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frenchise Agreement No. 13-28
June 9, 2014
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Section 6. Construction and Maintenance
A. The Grantee shall apply for, obtain, and comply with the terms of all
permits required under ACC Chapter 12.24 for any work done within the City.
Grantee shall comply with all applicable Gity, State, and Federal codes, rules,
regulations, and orders in undertaking such work, which shall be done in a
thorough and proficient manner.
B. Grantee agrees to coordinate its activities with the City and all other
utilifies located within the public right-of-way within which Grantee is under taking
its activity.
C. The City expressly reserves the right to prescribe how and where
Grantee Facilities shall be installed within the public right-of-way and may from
time to time, pursuant to the applicable sections of this Franchise, require the
removal, relocation and/or replacement there.of in the public interest and safety at
the expense of the Grantee.
D. Before commencing any work within the public right-of-way, the
Grantee shall comply with the One Number Locator provisions of RCW Chapter
19.122 to identify existing utility infrastructure.
E. Tree Trimming. Upon prior written approval of the City and in
accoriiance with City ordinances, Grantee shall have the authority to reasonably
trim trees upon and overhanging streets, public rights-of-way, and places in the
Franchise Area so as to prevent the branches of such trees f�om coming in
physical contact with the Grantee Facilities. 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 4he cost thereof. This sec4ion 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.
Section 7. Repair and Emergency Work
In the event of an emergency, the Grantee may commence such repair
and emergency response work as required under the circumstances, provided
fhat fhe Grantee shall notify the City Engineering Aide in writing as promptly as
possible, before such repair or emergency work commences, or as soon
thereafter as possible, if advance notice is not practical. The City may act, at
any time, without prior written notice in the case of emergency, but shall notify
the Grantee in writing as promptly as possible under the circumstances.
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June 9, 2014
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Section 8. Damages to City and Third-Party Property
Grantee agrees that if any of its actions under this Franchise impairs or
damages any City property, survey monument, or property owned by a third-
party, Grantee will restore, at its own cost and expense, said properry to a safe
condition. Such repair work shall be performed and completed to the satisfaction �
of the City Engineer.
Section 9. Location Preference
A. Any structure, equipment, appurtenance or tangible property of a
utility, other than the Grantee's, which was installed, constructed, completed or in
place prior in time to Grantee's application for a permit to construct or repair
Grantee Facilities under this Franchise shall have preference as to positioning
and location with respect to the Grantee Facilities. However, to the extent that
the Grantee Facilities are completed and installed prior to another utility's
submittal of a permit for new or additional structures, equipment, appurtenances
or tangible property, then the Grantee Facilities shall have priority. These rules
governing preference shall continue in the event of the necessity of relocafing or
changing fhe grade of any City road or right-of-way. A relocating utility shall not
necessitate the relocation of another utility that otherwise would not require
relocation. This Section shall not apply to any City facilities or utilities that may in
the future require the relocation of Grantee Facilities. Such relocations shall be
governed by Section 11.
B. Grantee shall maintain a minimum underground horizontal
separation of five (5) feet from City water, sanitary sewer and storm sewer
facilities and ten (10) feet from above-ground City water facilities; provided, that
for development of new areas, the City, in consultation with Grantee and other
utility purveyors or aufhorized users of the Public Way, will develop guidelines
and procedures for determining specific utility locations.
Section 10. Grentee Information
A. Grantee agrees to supply, at no cost to the City, any information
reasonably requested by the City Engineering Aide to coordinate municipal
functions with Grantee's activities and fulfll any municipal obligations under state
law. Said information shall include, at a minimum, as-built drawings of Grantee
Facilities, installation inyentory, and maps and plans showing the Iocation of
existing or planned facilities within the City. Said information may be requested
either in hard copy or electronic format, compatible uvith the City's data base
system, as now or hereinafter existing, including the City's geographic
informafion Service (GIS) data base. Grantee shall keep fhe City Engineering
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Aide informed of its long-range plans for coordination with the City's long-range
plans.
B. The parties understand that Washington law limits the ability of the
City to shield from public disclosure any information given to fhe City.
Accordingly, the City agrees to notify the Grantee of requests for public records
related to the Grantee, and to give the Grantee a reasonable amount of time to
obtain an injunction to prohibit the City's release of records.
Grantee shall indemnify and hold harmless 4he City for any loss or liability
, for fines, penalties, and costs (including attorneys fees) imposed on the City
because of non-disclosures requested by Grantee under Washington's open
public records act, provided the City has notified Grantee of the pending request.
` Section 11. Relocation of Grantee Facilities
A. Except as otherwise so required by law, Grantee agrees to
relocate, remove, or reroute its facilities as ordered by the City Engineer at no
expense or liability to the City, ezcept as may be required by RCW Chapter
35.99. Pursuant to the provisions of Section 14, Grantee agrees to protect and
save harmless the Gity from any customer or third-party claims for service
interruption or other losses in connection with any such change, relocation,
abandonment, or vacation of the Pubic Way.
B. If a readjustment or relocation of the Grantee Facilities is
necessitated by a request from a party other than the City, that party shall pay
the Grantee the actual costs thereof.
Section 12. Abandonment and or Removal of Grantee Facilities
A. Within one hundred and eighty days (180) of Grantee's permanent
cessation of use of the Grantee Facilities, or any portion thereof, the Grantee
shall, at the City's discretion, either abandon in place or remove the affected
facilities.
B. The parties expressly agree that this Section shall survive the �
expiration, revocation or termination of this Franchise.
Section 13. Undergrounding
A. The parties agree that this Franchise does not limit the City's
authority under federal law, state law, or local ordinance, to require the
undergrounding of ufilities.
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Franchise Ag�eement No. 13-28
June 9, 2014
• Page 7 of 7
B. Whenever 4he City requires the undergrounding of aerial utilities in
the Franchise Area, the Grantee shall underground the Grantee Facilities in the
manner specified by the City Engineer at no expense or liability to the City,
except as may be required by RCW Chapter 35.99 Where other utilities are
present and involved in the undergrounding project, Grantee shall only be
required to pay its fair share of common costs borne by all utilities, in addition to
the costs specifcally attributable to the undergrounding of Grantee Facilities.
Common costs shall include necessary costs for common trenching and utility
vaults. Fair share shall be determined in comparison to the total number and
size of all other ufility facilities being undergrounded.
Section 14. Indemnification and Hold Harmless
A. The Grantee shall defend, indemnify, and hold fhe City and its
officers, o�cials, agents, employees, and volunteers harmless from any and all
costs, claims, injuries, damages, losses, suits, or liabilities of any nature including
attorneys' fees arising out of or in connection with the Grantee's performance
under this Franchise, except to the extent such costs, claims, injuries, damages,
losses, suits, or liabilities are caused by the negligence of the City. Should a
court of competent jurisdiction determine that this Agreement is subject to RCW
4.24.115, then, in the event of liability for damages arising out of bodily injury to
persons or damages to property caused by or resulting from the concurrent
negligence of the Contractor and the City, its officers, officials, employees, and
volunteers, the Contractor's liab'ility hereunder shall be only to 4he extent of the
Contractor's negligence.
B. The Grantee shall hold the City harmless from any liability arising
out of or in connection with any damage or loss to the Grantee Facilities caused
by maintenance and/or construction work perFormed by, or on behalf of, the City
within the Franchise Area or any other City road, right-of-way, or other property,
except to the extent any such damage or loss is directly caused by the
negligence of the City, or its agent performing such work.
C. The Grantee acknowledges that neither the City nor any other �
public agency with responsibility for fire fighting, emergency rescue, public safety
or similar duties within the City has the capability to provide trench, close trench
or confined space rescue. The Grantee, and its agents, assigns, successors, or
contractors, shall make such arrangements as Grantee deems fit for the
provision of such services. The Grantee shall hold the City harmless from any
liability arising out of or in connection with any damage or loss to the Grantee for
the City's failure or inability to provide such services, and, pursuant to the terms
of Section 14(A), the Grantee shall indemnify the City against any and all third-
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Frahchise Agreement No. 13-28
June 9, 2014
Page 8 of 8
party costs, claims, injuries, damages, lo.sses, suits, or liabilities based on the
City's failure or inability to provide such services. .
D. Acceptance by fhe City of any work perFormed by the Grantee shall
not be grounds for avoidance of this section.
E. It is further specifically and expressly understood that the
indemnification provided herein constitutes the Grantee's waiver of immunity
under Industrial Insurance. Title 51 RCW, solely for the purposes of 4his
indemnification. This waiver has been mutually negotiated by the parties. The
provisions of this section shall survive the expiration or termination of this
Agreement.
Section 15. Insurance
A. The Grantee shall procure and maintain for the du�ation of this I
Franchise, insurance against claims for injuYies to persons or damage to property '
which may arise from or in connection wi4h the pertormance of the work
hereunder by the Grantee, its agents, representatives, or employees in the
amounts and types set forth below:
1. Automobile Liability insurance covering all owned, non-
owned, hired, and leased vehicles with a minimum combined single limit for
bodily injury and property damage ofi $1,000,000.00 per accident. Coverage
shall be written on Insurance Services Offce (ISO) form CA 00 01 or a substitute
form providing equivalent liability coverage. If necessary, the policy shall be
endorsed to provicle contractual liatiility coverage.
2. Commercial General Liability insurance with limits no less
than $1,000,000.00 each occurrence, $2,000,000.00 general aggregate and a
$2,000,000.00 products-completed operations agg�egate limit. Coverage shall
be written on ISO occurrence form CG 00 01 or a substitute form providing
equivalent coverage and shall cover liability arising from premises, operations,
independent contractors, products-completed operations, stop gap liability, and
personal injury and advertising injury and liability assumed under an insured
contract. The Commercial General Liability insurance shall be endorsed to
provide fhe Aggregate PerProject Endorsement ISO form CG 25 03 11 85 or an
equivalent form. There shall be no endorsement or modification of the
Commercial General Liability insurance for liability arising from explosion,
collapse, or underground property damage. The City shall be named as an
additional insured under the Grantee's Commercial General Liability insurance
policy wifh respect to the work performed under this Franchise using ISO
Additional Insured Endorsement CG 20 10 10 01 and Additional Insured-
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Franchise Agreement No. 13-28
June 9, 2014
Page 9 of 9
Completed Operations endorsement CG 20 37 10 01 or substitute endorsements
providing equivalent coverage.
3. Professional Liability insurance with limits no less than
$1,000,000.00 per claim for all professional employed or retained Grantee to
perform services under this Franchise.
4. Worlcers' Compensation coverage as required by the
Industrial Insurance laws of the State of Washington.
B. The insurance policies are to contain, or be endorsed to contain,
the following provisions for Automobile Liability, Professional Liability, and
Commercial General Liability insurance:
1. The Grantee's insurance coverage shall be primary
insurance as respects the City. Any insurance, self-insurance, or insurance pool
coverage maintained by the City shall be in excess of the Grantee's insurance
and shall not contribute with it.
2. The Grantee's insurance shall be endorsed to state that
coverage shall not be cancelled by the insurers except after thirty (30) days' prior
written notice has been given to Grantee. Upon receipt of such notice, Grantee
shall immediately notify by certified mail, return receipt reque5ted, the City.
C. Acceptability of Insurers. Insurance is to be placed with insurers
with a current A.M. Best rating of not less than A:VII.
D. Verification of Coverage. Grantee shall furnish the City with
documentation of insurer's A.M. Best rating and with original certificates and a
copy of amendatory endorsements, including but not necessarily limited to 4he
additional insured endorsement, evidencing the insurance requirements of
Grantee before commencement of the work,
E. Grantee shall have 4he right to self-insure any or all of the above-
required insurance. Any such self insurance is subject to approval by the City.
F. Grantee's maintenance of insurance as required by this Franchise
shall not be construed to limit the liability of Grantee to the coverage provided by
such insurance, or otherwise limit the City's recourse to any remedy to which the
City is otherwise entitled at law or in equity.
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Franchise Agreement No. 13-28
June 9, 2014
Page 10 of 10
Section 16. PerFormance Security
The Grantee shall provide the City with a financial guarantee in the amount of
Fifty Thousand Dollars ($50,000.00) running for, or renewable for, the term of this
Franchise, in a form and substance acceptable to the City. In the event Grantee
shall fail to substantially comply with any one or more of the prdvisions of this
Franchise, then there shall be recovered jointly and severally from 4he principal
and any surety of such financial guarantee any damages suffered by City as a
result thereof, including but not limited to staff time, material and equipment
costs, c.ompensation or indemnification of third parties, and the cost of removal or
abandonment of facilities hereinabove described. Grantee specifically agrees
that its failure to comply with the terms of Section 19 shall cons4itute damage to
the City in the monetary amount set forth therein. Such a financial guarantee
shall not be construed to IimiYthe Grantee's liability to the guarantee amount, or
otherwise limit the City's recourse to any remedy to which the City is otherwise
entitled at law or in equity.
Section 17. Successors and Assignees
A. All the provisions, conditions, regulations and requirements herein
contained shall be binding upon the successors, assigns of, and independent
contractors of the Grantee, and all rights and privileges, as well as all obligations
and liabilities of the Grantee shall inure to its successors, assignees and
contractors equally as if they were specifically mentioned herein wherever the
Grantee is mentioned.
B. This Franchise shall not.be leased, assigned or otherwise alienated
wi4hout the express prior consent of the City by ordinance.
C. Grantee and any proposed assignee or transferee shall provide and
certify the following to the City not less than sizty (60) days prior to the proposed
date of transfer: (a) Complete information setting forth the nature, term and
conditions of the propo.sed assignment or transfer; (b) All information required by
the City of an applicant for a Franchise with respect to the proposed assignee or
transferee; and, (c) An application fee which shall be set by the City, plus any
other costs actually and reasonably incurred by the City in proce.ssing, and
investigating the proposed assignment or transfer.
D. Prior to the City's consideration of a request by Grantee to consent
to a Franchise assignment or transfer, #he proposed Assignee or Transferee shall
file wi4h the City a wriften promise to unconditionally accept all terms of the
Franchise, effective upon such transfer or assignment of the Franchise. The City
is under no obligation to undertake any investigation of the transferor's state of
compliance and failu�e of the City to insist on full compliance prio� fo transfer
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does not waive any right to insist on full compliance thereafter.
Section 18. Dispute Resolution
A. In the event of a dispute between the City and the Grantee arising
by reason of this Agreement, the dispute shall first be referred to the operational
officers or representatives designated by Grantor and Grantee to have oversight
over the administration of this Agreement. The officers or representatives shall
meet within thirty (30) calendar days of either party's request for a meeting,
whichever request is first, and the parties shall make a good faith effort to
achieve a resolution of the dispute.
B. If the parties fail to achieve a resolution of the dispute in this
manner, either party may then pursue any available judicial remedies. This
Franchise shall be governed by and construed in accordance wi4h the laws of the
State of Washington. In the event any suit, arbitration, or other proceeding is
instituted to enforce any term of this Agreement, the parties specifically
understand and agree that venue shall be exclusively in King County,
Washington. The prevailing party in ariy such action shall be enti4led to its
attorneys' fees and costs of suit, which shall be fixed by the judge hearing the
case, and such fees shall be included in the judgment.
Section 19. Enforcement and Remedies
A. If the Grantee shall willfully violate, orfail to comply with any of the
provisions of this Franchise through willful or unreasonable negligence, or should
it fail to heed or comply with any notice given to Grantee under the provisions of
this agreement, the City may, at its discretion, provide Grantee with written notice
to cure the breach within thirty (30) days of notification. If the City determines the
breach cannot be cured within thirty days, the City may specify a longer cure
period, and condition the extension of time on Grantee's submittal of a plan to
cure the breach within the specifed period, commencement of work within the
original thirty day cure period, and diligent prosecution of the work to completion.
If the breach is not cured within the specified time, or the Grantee does not
comply with the specified conditions, the City may, at its discretion, either (1)
revoke the Franchise with no further notification, or (2) claim damages of Two
Hundred Fifty Dollars ($250.00) per day against the financial guarantee set forth
in Section 16 for every day after 4he expiration of the cure period that the breach
is not cured.
B. Should the City determine that Grantee is acting beyond the scope
of permission granted herein for Grantee Facilities and Grantee Services, the
City reserves the right to cancel this Franchise and require the Grantee to apply
for, obtain, and comply with all applicable City permits, franchises, or other City
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Page 12 of 12
permissions for such actions, and if 4he Grantee's actions are not allowed under
applicable federal and state or City laws, to compel Grantee to cease such
actions.
Section 20. Compliance with Laws and Regulations
A. This Franchise is subject to, and the Grantee shall comply with all
applicable federal and state or City laws, regulations and policies (including all
applicable elements of the City's comprehensive plan), in conformance with
federal laws and regula4ions, affecting perFormance under this Franchise.
Furthermore, nohnrithstanding any o4her terms of this agreement appearing to the
contrary, the Grantee shall be subject to the police power of the City to adopt and
enforce general ordinances necessary to protect the safety and welfare of the
general public in relation to the rights granted in the Franchise Area.
B. The City reserves fhe right at any time to amend this Franchise to
conform to any hereafter enacted, amended, or adopted federal or state statute
or regulation relating to the public health, safety, and welfare, or relating to
roadway regulation, or a City Ordinance enacted pursuant to such federal or
state statute or regulation upon providing Grantee with thirty (30) days written
notice of its action setting forth the full text of the amendment and identifying the
statute, regulation, or ordinance requiring the amendment. Said amendment
shall become automatically effective upon expiration of the notice period unless,
before expiration of that period, the Grantee makes a written call for negotiations
over the terms of the amendment. If the parties do not reach agreement as to
the terms of 4he amendment within thirty (30) days of the call for negotiations, the
City may enact the proposed amendment, by incorporating the Grantee's
concerns to the maximum extent the City deems possible.
C. The City may terminate this Franchise upon thirty (30) days written
notice to 4he Grantee, if the Grantee fails to comply with such amendment or
modification.
Section 21. License, Tax and Other Charges
This Franchise shall not exempt the Grantee from any future license, tax,
or charge which the City may hereinafter adopt pursuant to authority granted to it
under state or federal law for revenue or as reimbursement for use and
occupancy of the Franchise Area,
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Section 22. Consequential Damages Limitation
Notwithstanding any other provision of this Agreement, in no event shall
either party be liable for any special, incidental, indirect, punitive, reliance,
consequential or similar damages.
Section 23. Severability
If any portion of this Franchise is deemed invalid, the remainder portions
shall remain in effect.
Section 24. Titles
The section titles used herein are for reference only and should not be
used for the purpose of interpreting this Franchise.
Section 25. Implementation.
The Mayor is hereby authorized to implement such administrative
procedures as may be nece.ssary to carry out the directions of this legislation.
Section 26. Effective date.
This Ordinance shall take effect and be in force five days from and after its
passage, approval and publication as provided by law.
INTRODUCED: SEP 1 b 2014
PASSED: S
APPROVED: SEP 16 2014
NANCY KUS, MAYOR
ATTEST:
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Darnelle E. Daskam, City Clerk
APP VED FOR �
iel B. �d, ' A orne
---------------------------
Ordinance No. 6513
Franchise Agreement No. 13-28
June 9, 2014
Page 14 of 14
Published: �e��,..�.e�� ���e/S�.�L;�,, �w ���'��`�'`'`J
Ordinance No. 6513
Franchise Agreement No. 13-28
June 9, 2014
Page 15 of 15
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Exhibit B
Grantee Facilities
Leased and owned telecommunication and communication conduit and fiber �
facilities within the Right of Ways. As of the date of this Ordinance ELI does not
own facilities but may at a future date install ELI owned facilities at and pursuant I
to the lawful permitting process of the City. ;
Ordinance No 6513
Franchise Agreement No. 13-28
June 9, 2014
Page 17 of 17
Exhibit C
Grantee Services
Telecommunications and communication services.
Ordinance No. 6513
Franchise Agreement No. 13-28
June 9, 2014
Page 18 of 18
EXHIBIT "D"
STATEMENT OF ACCEPTANCE
Electric Li4htwave, LLC. ( ELI), for itself, its successors and assigns, hereby
accepts and agrees to be bound by all lawful terms, conditions and provisions of
the FrancFiise attached hereto and incorporated herein by this reference.
Electric Lightwave LLC ( ELI)
By: Date:
Name:
Title:
STATE OF )
)ss.
COUNTY OF )
On this day of , 2014, before me the undersigned, a
Notary Public in and for the State of , duly commissioned and sworn,
personally appeared, of , the company that
executed fhe within and foregoing instrument, and acknowledged the said
instrument to be the free and voluntary act and deed of said company, 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 hereinabove set forth.
Signature
NOTARY PUBLIC in and for the State of
, residing at
MY COMMISSION EXPIRES:
Ordinance No. 6513
Franchise Agreement No. 13-28
June 9, 2014
Page 19 of 19