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City of Edgewood ORDINANCE NO. 00-0160
Not an official copy.
City of Edgewood
ORDINANCE NO. 00-0160
AN ORDINANCE OF THE CITY OF EDGEWOOD, WASHINGTON, GRANTING TO WILLIAMS
COMMUNICATIONS, INC., A DELAWARE CORPORATION, A NON-EXCLUSIVE FRANCHISE TO
INSTALL, OPERATE, AND MAINTAIN A COMMUNICATION SYSTEM IN, ON, OVER, UPON,
ALONG, AND ACROSS CERTAIN DESIGNATED PUBLIC RIGHTS-OF-WAY OF THE CITY OF EDGEWOOD,
WASHINGTON, PRESCRIBING CERTAIN RIGHTS, DUTIES, TERMS, AND CONDITIONS WITH
RESPECT THERETO.
WHEREAS, Williams Communications, Inc., has requested that the City grant it
the right to install, operate, and maintain a communications system within the
public ways of the City; and
WHEREAS, the City Council has found it desirable for the welfare of the City
and its residents that such a non-exclusive franchise be granted to the Franchisee;
and
WHEREAS, the City Council has the authority under RCW 35A.47.040 to grant franchises
for the use of its streets and other public properties; and
WHEREAS, the City is willing to grant the rights requested subject to certain
terms and conditions.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF EDGEWOOD, WASHINGTON DO
ORDAIN AS FOLLOWS:
Section 1. Definitions. For the purposes of this Franchise, the
following terms, phrases, words, and abbreviations shall have the meanings ascribed
to them below. When not inconsistent with the context, words used in the present
tense include the future tense, words in the plural number include the singular
number and words in the singular number include the plural number.
A. "Affiliate" means an entity which owns or controls, is owned or controlled
by, or is under common ownership with the Franchisee.
B. "Cable Act" means the Cable Communications Policy Act of 1984, the Cable
Television Consumer Protection and Competition Act of 1987, the Telecommunications
Act of 1996, and other subsequent amendments thereto.
C. "City" means the City of Edgewood, Washington
D. "Communication Service" shall mean any telecommunication services provided
by the Franchisee over its Communication System, 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 information, facsimile reproduction, burglar alarm monitoring, meter
reading and home shopping, or other subsequently developed technology which
carries an electronic signal over fiber optic cable. However, Communications
Services shall not include cable television services as defined in the Cable
Act for which a separate franchise would be required, nor shall it include video
dial-tone services or the operation of an open video system, as defined by applicable
federal law, for which the City has the authority to require a separate franchise.
E. "Communication System" or "Facilities" shall mean the Franchisee's system
of cables, wires, conduits, ducts, pedestals, and any associated converter,
equipment, or facilities within the City designed and constructed for the purpose
of providing Communication Service. A general description of the Facilities
currently planned by Franchisee is set forth in Exhibit A, attached hereto and
incorporated by this reference.
F. "FCC" means the Federal Communications Commission, or any successor governmental
entity hereto.
G. "Franchise" shall mean initial authorization, or renewal thereof, issued
by the City, which authorizes construction and operation of the Franchisee's
Communication System for the purpose of offering Communication Services to Subscribers.
H. "Franchisee" means Williams Communications, Inc., a Delaware Corporation,
or the lawful successor, transferee, or assignee thereof.
I. "Indefeasible Right of User Interest" or "IRU" means a form of acquired
capital in a telecommunications system, in which the holder of the interest
possesses a right to use the telecommunications system, but not the right to
control, maintain, construct or revise the telecommunications system.
J. "Person" means an individual, partnership, association, joint stock company,
trust, corporation, or governmental entity.
K. "Public Way" shall mean the surface of, and any space above or below, any
public street, highway, freeway, bridge, path, alley, court, boulevard, sidewalk,
parkway, lane, drive circle, or other public right-of-way, including, but not
limited to, public utility easements, utility strips, or rights-of-way dedicated
for compatible uses and any temporary or permanent fixtures or improvements
located thereon now or hereafter held by the City in the Service Area which
shall entitle the City and the Franchisee the use thereof for the purpose of
installing, operating, repairing, and maintaining the Communication System.
Public Way shall also mean any easement now or hereafter held by the City within
the Service Area for the purpose of public travel, or for utility or public
service use dedicated for compatible uses, and shall include other easements
or rights-of-way as shall within their proper use and meaning entitle the City
and the Franchisee to the use thereof for the purposes of installing or transmitting
the Franchisee's Communication Services over poles, wires, cable, conductors,
amplifiers, appliances, attachments, and other property as may be ordinarily
necessary and pertinent to the Communication System.
L. "Public Works Director" means that person designated by the City Manager
to administer the provisions of this ordinance.
M. "Service Area" means the present municipal boundaries of the City, and shall
include any additions thereto by annexation or other legal means.
N. "Subscriber" or "Customer" means a Person or grantee of the Communication
System who lawfully receives Communication Services or the service therefrom
with the Franchisee's express permission.
Section 2. Authority Granted. The City hereby grants to the Franchisee,
its heirs, successors, legal representatives, and assigns, subject to the terms
and conditions hereinafter set forth, the right, privilege, and authority to
construct, operate, maintain, replace, and use all necessary equipment and Facilities
thereto for the Franchisee's Communication System. The Franchisee is authorized
to place its communication Facilities in, under, on, across, over, through,
along, or below the Public Ways of the City as set forth on Exhibit B attached
hereto and incorporated herein by this reference, and to provide Communication
Services to persons located within the City.
Section 3. Construction Permits Required.
A. Prior to site-specific location and installation of any portion of its communication
Facilities within a public way, the Franchisee shall apply for and obtain a
Construction Permit pursuant to EMC Chapter 12.34. In addition to any criteria
set forth in EMC Chapter 12.34, the Public Works Director shall apply the following
criteria in the issuance or denial of a Construction Permit application:
1. Whether the Franchisee has received all requisite licenses, certificates,
and authorizations from applicable federal, state, and local agencies with jurisdiction
over the activities proposed by the Franchisee;
2. The capacity of the Public Ways to accommodate the Franchisee's proposed
Facilities;
3. The capacity of the Public Ways to accommodate additional utility, cable,
and telecommunications Facilities if the Construction Permit is granted;
4. The damage or disruption, if any, of public or private Facilities, improvements,
service, travel or landscaping if the Construction Permit is granted;
5. The public interest in minimizing the cost and disruption of construction
within the Public Ways; and
6. The availability of alternate routes and/or locations for the proposed Facilities.
B. Unless otherwise provided in said Permit, the Franchisee shall give the
City at least 48 hours notice of the Franchisee's intent to commence work in
the Public Ways. The Franchisee shall file plans or maps with the City showing
the proposed location of its communication Facilities and pay all duly established
permit and inspection fees associated with the processing of the permit. In
no case shall any work commence within any public way without said Permit, except
as otherwise provided in this Franchise.
Section 4. Grant Limited to Occupation and Service. Nothing contained
herein shall be construed to grant or convey any right, title, or interest in
the Public Ways of the City to the Franchisee, nor shall anything contained
herein constitute a warranty of title.
Section 5. Term of Franchise. The first term of this Franchise
shall be for a period of five (5) years from the date of acceptance as set forth
in Section 33, unless sooner terminated. This Franchise may be renewed for additional
five (5) year terms pursuant to the following process: If the Franchisee desires
to renew, the Franchisee shall notify the City not later than 180 days prior
to the expiration of this Franchise of its desire to renew and its desire, if
any, to renegotiate any of the terms set forth within this Franchise or desires
to add to or delete any such terms. The City shall respond to the request for
the renewal not later than 120 days prior to the expiration date, and may request
renegotiation of any term, or the addition or deletion of any term at that time.
If the Franchisee does not request renewal, this Franchise shall be deemed terminated.
If the Franchisee requests renewal, and either party requests renegotiation,
or addition or deletion of any term or terms, this Franchise shall not renew
unless and until the City and Franchisee reach agreement and said agreement
is approved by ordinance of the City Council. Nothing in this Section prevents
the parties from reaching agreement on renewal earlier than the time periods
indicated.
Section 6. Non-Exclusive Grant. This Franchise shall not in any
manner prevent the City from entering into other similar agreements or granting
other or further franchises in, under, on, across, over, through, along or below
any of said Public Ways of the City. However, the City shall not permit any
such future franchisee to physically interfere with the Franchisee's communication
Facilities. In the event that such physical interference or disruption occurs,
the Public Works Director may assist the Franchisee and such subsequent franchisee
in resolving the dispute. Further, this Franchise shall in no way prevent or
prohibit the City from using any of its Public Ways or affect its jurisdiction
over them or any part of them, and the City shall retain power to make all necessary
changes, relocations, repairs, maintenance, establishment, improvement, dedication
of the same as the City may deem fit, including the dedication, establishment,
maintenance, and improvement of all new Public Ways, and in compliance with
Section 7, below.
Section 7. Relocation of Communication System.
A. The Franchisee agrees and covenants, at its sole cost and expense, to protect,
support, temporarily disconnect, relocate, or remove from any public way any
portion of its communication Facilities when so required by the Public Works
Director by reason of traffic conditions, public safety, dedications of new
Public Ways and the establishment and improvement thereof, widening and improvement
of existing Public Ways, street vacations, freeway construction, change or establishment
of street grade, or the construction of any public improvement or structure
by any governmental agency acting in a governmental capacity; provided that
the Franchisee shall in all cases have the privilege to temporarily bypass,
in the authorized portion of the same public way upon approval by the Public
Works Director, any section of cable or any other facility required to be temporarily
disconnected or removed.
Upon the reasonable request of the Public Works Director and in order to facilitate
the design of City street and right-of-way improvements, the Franchisee agrees
to, at its sole cost and expense, locate, and if reasonably determined necessary
by the City, to excavate and expose portions of its communication Facilities
for inspection so that the location of same may be taken into account in the
improvement design, PROVIDED that, Franchisee shall not be required to excavate
and expose it's Facilities unless the Franchisee's as-built plans and maps of
it's Facilities submitted pursuant to Section 9 of this Franchise are reasonably
determined by the Public Works Director to be inadequate for purposes of this
paragraph. The decision to relocate said Facilities in order to accommodate
the City's improvements shall be made by the Public Works Director upon review
of the location and construction of the Franchisee's Facilities.
If the Public Works Director determines that the project necessitates the relocation
of the Franchisee's then existing Facilities, the City shall:
1. Within a reasonable time, which shall be no less than 30 days, prior to
the commencement of such improvement project, provide the Franchisee with written
notice requiring such relocation. Provided, however, that in the event an emergency
posing a threat to public safety, health or welfare, or in the event of an emergency
beyond the control of the City and which will result in severe financial consequences
to the City, the City shall give the Franchisee written notice as soon as practicable;
and
2. Provide the Franchisee with copies of information for such improvement project
and a proposed location for the Franchisee's Facilities so that the Franchisee
may relocate its Facilities in other Public Ways in order to accommodate such
improvement project.
3. The Franchisee shall complete relocation of its Facilities at no charge
or expense to the City so as to accommodate the improvement project at least
10 days prior to commencement of the project. In the event of an emergency as
described herein, the Franchisee shall relocate its Facilities within the time
period specified by the Public Works Director.
The Franchisee may, after receipt of written notice requesting a relocation
of its Facilities, submit to the City written alternatives to such relocation.
The City shall evaluate such alternatives and advise the Franchisee in writing
if one or more of the alternatives is suitable to accommodate the work which
would otherwise necessitate relocation of the Facilities. If so requested by
the City, the Franchisee shall submit additional information to assist the City
in making such evaluation. The City shall give each alternative proposed by
the Franchisee full and fair consideration, within a reasonable time, so as
to allow for the relocation work to be performed in a timely manner. In the
event the City ultimately determines that there is no other reasonable alternative,
the Franchisee shall relocate its Facilities as otherwise provided in this Section.
The provisions of this Section shall in no manner preclude or restrict the
Franchisee from making any arrangements it may deem appropriate when responding
to a request for relocation of its Facilities by any person or entity other
than the City, where the Facilities to be constructed by said person or entity
are not or will not become City-owned, operated or maintained Facilities provided
that such arrangements do not unduly delay a City construction project.
B. The Franchisee will indemnify, hold harmless, and pay the costs of defending
the City against any and all claims, suits, actions, damages, or liabilities
for delays on City construction projects caused by or arising out of the failure
of the Franchisee to relocate its Facilities in a timely manner; provided, that
the Franchisee shall not be responsible for damages due to delays caused by
the City or circumstances beyond the control of the Franchisee.
Section 8. Undergrounding of Facilities. The undergrounding requirements
of this Section shall apply where the Franchisee's communication Facilities
consists of cable or any other Facilities which are capable of being placed
underground. Where the Franchise's Facilities consists of antennas or other
equipment which are required to remain above ground in order to be functional,
this Section shall not apply.
In any area of the City in which there are no aerial facilities other than
antennas or other equipment required to remain above ground in order to be functional,
or in any public ways in which all telephone, electric power wires and cables
have been placed underground, the Franchisee shall not be permitted to erect
poles or to run or suspend wires, cables or other Facilities thereon, unless
required to do so by the City, but shall lay such wires, cables or other Facilities
underground in the manner required by the City. The Franchisee acknowledges
and agrees that if the City does not require the undergrounding of its Facilities
at the time of initial installation in such area, the City may require the conversion
of the Franchisee's Facilities to underground installation in a non-discriminatory
manner, at any time in the future at the Franchisee's expense.
Whenever the City requires the undergrounding of all aerial utilities in any
area of the City, the Franchisee shall underground its Facilities in the manner
specified by the City, concurrently with and in the area of all the other affected
utilities. The location of any such relocated and underground Facilities shall
be approved by the City. The Franchisee shall underground its Facilities at
its own expense, but the Franchisee is encouraged to contact and agree with
other affected utilities so that all costs for common trenching, common utility
vaults and other costs not specifically attributable to the undergrounding of
any particular facility are shared fairly and proportionately by all the utilities
involved in the underground project. Nothing in this paragraph shall be construed
as requiring the City to pay any costs of undergrounding any of the Franchisee's
Facilities.
Section 9. The Franchisee's Maps and Records. After construction
is complete, the Franchisee shall provide the City with accurate copies of all
as-built plans and maps in a form and content prescribed by the Public Works
Director. These plans and maps shall be provided at no cost to the City, and
shall include hard copies and AutoCad (release14) compatible digital copies
or as may be upgraded in the future.
Section 10. Work in Public Ways. During any period or relocation,
construction, or maintenance, all surface structures, if any, shall be erected
and used in such places and positions within said Public Ways and other public
properties so as to interfere as little as possible with the free passage of
traffic and the free use of adjoining property. The Franchisee shall at all
times post and maintain proper barricades and comply with all applicable safety
regulations during such period of construction as required by the ordinances
of the City or the laws of the State of Washington, including RCW 39.04.180
for the construction of trench safety systems.
During the progress of the work, the Franchisee shall not unnecessarily obstruct
the passage of proper use of the Public Ways, and all work by the Franchisee
in any area covered by this Franchise and as described in this Section shall
be preformed in accordance with City of Edgewood Public Works Construction Standards
and warranted for a period of 1 year.
If the City has plans to improve any public way to which this Franchise applies
within 1 year of the Franchisee's application for a Construction Permit to locate
its Facilities in such public way, the Franchise may be allowed to install its
Facilities above ground, to the extent feasible, until such time as the City's
improvements occur, at which time the Franchisee shall underground its Facilities
concurrent with the City's improvement project.
If either the City or the Franchisee shall at any time after installation of
the Facilities plan to make excavations in area covered by this Franchise and
as described in this Section, the party planning such excavation shall afford
the other, upon receipt of written request to do so, an opportunity to share
such an excavation. PROVIDED THAT:
A. Such joint use shall not unreasonably delay the work of the party causing
the excavation to be made or unreasonably increase its costs;
B. Such joint use shall be arranged and accomplished on terms and conditions
satisfactory to both parties; and
C. Either party may deny such request for safety reasons or if their respective
uses of the trench are incompatible.
The joint use provisions of this Section shall apply only to joint use by the
City and the Franchisee. Nothing in this Section is intended to require the
Franchisee to afford other similar users the opportunity to share the Franchisee's
excavations.
Section 11. Restoration after Construction. The Franchisee shall,
after installation, construction, relocation, maintenance, removal, or repair
of its communication Facilities within the Public Ways, restore the surface
of said Public Ways and any other City-owned property which may be disturbed
by the work, to at least the same condition the public way or City-owned property
was in immediately prior to any such installation, construction, relocation,
maintenance, or repair, reasonable wear and tear excepted. The Public Works
Department shall have final approval of the condition of such Public Ways and
City-owned property after restoration, all in accordance with the Edgewood Municipal
Code and Public Works Construction standards. All survey monuments which are
to be disturbed or displaced by such work shall be referenced and restored,
as per WAC 332-120, as the same now exists or may hereafter be amended, and
all pertinent federal, state and local standards and specifications. The Franchisee
agrees to promptly complete all restoration work and to promptly repair any
damage caused by such work to the Public Ways or other affected area at its
sole cost and expense according to the time and terms specified in the Construction
Permit issued by the City all in accordance with the applicable provisions of
the Edgewood Municipal Code, as the same now exists or as it may hereafter be
amended or superseded. All work and restoration by the Franchisee pursuant to
this Section shall be performed in accord with City of Edgewood Public Works
Construction standards and warranted for a period of 1 year.
Section 12. Emergency Work - Permit Waiver. In the event of any
emergency in which any of the Franchisee's communication Facilities located
in, above, or under any public way breaks, are damaged, or if the Franchisee's
construction area is otherwise in such a condition as to immediately endanger
the property, life, health, or safety of any individual, the Franchisee shall
immediately take the proper emergency measures to repair its Facilities, to
cure or remedy the dangerous conditions for the protection of property, life,
health, or safety of individuals without first applying for and obtaining a
permit as required by this Franchise. However, this shall not relieve the Franchisee
from the requirement of notifying the City of the emergency work and obtaining
any permits necessary for this purpose after the emergency work. The Franchisee
shall notify the City by telephone immediately upon learning of the emergency
and shall apply for all required permits not later than the second succeeding
day during which the Edgewood City Hall is open for business.
Section 13. Dangerous Conditions, Authority for City to Abate.
Whenever construction, installation, or excavation of the communication Facilities
authorized by this Franchise has caused or contributed to a condition that appears
to substantially impair the lateral support of the adjoining public way, street,
or public place, or endangers the public, street utilities, or City-owned property,
the Public Works Director may reasonably require the Franchisee, at the Franchisee's
own expense, to take action to protect the public, adjacent public places, City-owned
property, streets, utilities, and Public Ways. Such action may include compliance
within a prescribed time.
In the event that the Franchisee fails or refuses to promptly take the actions
directed by the City, or fails to fully comply with such directions, or if emergency
conditions exist which require immediate action, the City may enter upon the
property and take such actions as are necessary to protect the public, the adjacent
streets, utilities, Public Ways, to maintain the lateral support thereof, or
actions regarded as necessary safety precautions; and the Franchisee shall be
liable to the City for the reasonable costs thereof.
Section 14. Recovery of Costs. The Franchisee shall be subject
to all permit fees associated with activities undertaken through the authority
granted in this Franchise or under the laws of the City. Where the City incurs
costs and expenses for review, inspection, or supervision of activities undertaken
through the authority granted in this Franchise or any ordinances relating to
the subject for which a permit fee is not established, the Franchisee shall
reimburse the City directly for any and all reasonable costs, after receipt
of an itemized bill.
In addition to the above, the Franchisee shall promptly reimburse the City
for any and all reasonable costs the City incurs in response to any emergency
involving the Franchisee's communication Facilities, after receipt of an itemized
bill.
Finally, the Franchisee shall reimburse the City upon submittal by the City
of an itemized billing, by project, of costs, for the Franchisee's reasonable
and proportionate share of all actual, identified expenses reasonably incurred
by the City in planning, constructing, installing, repairing or altering any
City facility as the result of the presence in the right-of-way of the Franchisee's
Facilities. Such costs and expenses shall include but not be limited to the
Franchisee's reasonable and proportionate cost of City personnel assigned to
oversee or engage in any work in the Public Ways as the result of the presence
of the Franchise's Facility in the Public Ways. Such costs and expenses shall
also include the Franchisee's proportionate share of any time spent reviewing
construction plans in order to either accomplish the relocation of the Franchisee's
Facilities or the routing or rerouting of any utilities so as not to interfere
with the Franchise's Facilities.
The time of City employees shall be charged at their respective rate of salary,
including overtime if applicable, plus benefits and a reasonable overhead. Any
other costs will be billed proportionately on an actual cost basis. All billings
will be itemized as to specifically identify the costs and expenses for each
project for which the City claims reimbursement. The billing may be on an annual
basis, but the City shall provide the Franchise with the City's itemization
of costs at the conclusion of each project for information purposes.
Section 15. City's Reservation of Rights. Pursuant to RCW Section
35.21.860, the City is precluded from imposing a fee on a "telephone business"
as defined in RCW 82.04.065, except for administrative expenses or any applicable
tax authorized by RCW 35.21.865. This Franchise is premised upon the City and
Franchisee's understanding that the activities proposed by the Franchisee constitute
a "telephone business". As such, the rights granted under this Franchise are
not conditioned upon payment of a franchise fee or other compensation for use
of the Public Ways. Provided, however, that the Franchisee's exercise of the
rights granted in this Franchise are conditioned upon reimbursement for administrative
costs as set forth in Section 14 herein, payment of any utility tax, payment
of the fee set forth in Section 17 for use of City-owned poles, and payment
of any other fee set forth herein. The City hereby reserves its right to impose
a fee on the Franchisee, to the extent authorized by law, for purposes other
than to recover its administrative expenses, if the Franchisee's operations
are not those of a "telephone business" as defined in RCW 82.04.065, if the
Franchisee's operations are now those of a telephone business and change in
the future, or if statutory prohibitions on the imposition of such fees are
removed. The City also reserves its right to require that the Franchisee obtain
a separate Agreement for its change in use, which Agreement may include provisions
intended to regulate the Franchisee's operations, as allowed under applicable
law.
Section 16. Administrative Fee. As additional consideration for
the right and privileges granted hereunder, the Franchisee agrees to pay, at
the time of acceptance of this Franchise, a one time administrative fee of Two
Thousand Dollars ($2000.00) to defray the City's legal and administrative costs
and expenses associated with negotiating and approving this Franchise, provided
that such expenses shall not be included in the reimbursement provisions set
forth in Section 14 of this Franchise.
Section 17. Fee for City-Owned Poles. In the event that the Franchisee
desires to use any City-owned poles for the location of its Facilities, it shall
enter into a pole attachment agreement with the City, setting forth the terms
and conditions under which the Franchisee shall be permitted to do so.
Section 18. Indemnification and Waiver.
A. Franchisee hereby releases, covenants not to bring suit and agrees to indemnify,
defend and hold harmless the City, its officers, employees, agents and representatives
from any and all claims, costs, judgements, awards or liability to any person
arising from injury, sickness, or death of any person or damage to property:
1. For which the negligent acts or omissions of Franchisee, its agents, servants,
officers or employees in performing the activities authorized by this Franchise
are the proximate cause;
2. By virtue of the Franchisee's exercise of the rights granted herein;
3. By virtue of the City's permitting Franchisee's use of the City's Public
Ways or other public property;
4. Based on the City's inspection or lack of inspection of work performed by
Franchisee, its agents and servants, officers or employees in connection with
work authorized on the Public Ways or property over which the City has control
pursuant to this Franchise or pursuant to any other permit or approval issued
in connection with this Franchise;
5. Arising as a result of the negligent acts or omissions of Franchisee, its
agents, servants, officers or employees in barricading, instituting trench safety
systems or providing other adequate warnings of any excavation, construction,
or work upon the Public Ways, in any public way, or other public place in performance
of work or services permitted under this Franchise.
B. The provisions of Subsection A of this Section shall apply to claims by
Franchisee's own employees and the employees of the Franchisee's agents, representatives,
contractors, and subcontractors to which Franchisee might otherwise be immune
under Title 51 RCW. This waiver of immunity under Title 51 RCW has been mutually
negotiated by the parties hereto, and Franchisee acknowledges that the City
would not enter into this Franchise without Franchisee's waiver thereof.
C. Inspection or acceptance by the City of any work performed by the Franchisee
at the time of completion of construction shall not be grounds for avoidance
of any of these covenants of indemnification. Provided that Franchisee has been
given prompt written notice by the City of any such claim, said indemnification
obligations shall extend to claims which are not reduced to a suit and any claims
which may be compromised with Franchisee's consent prior to the culmination
of any litigation or the institution of any litigation. The City has the right
to defend or participate in the defense of any such claim, and has the right
to approve any settlement or other compromise of any such claim, provided that
Franchisee shall not be liable for such settlement or other compromise unless
it has consented thereto.
D. In the event that Franchisee refuses the tender of defense in any suit or
any claim, said tender having been made pursuant to this Section, and said refusal
is subsequently determined by a court having jurisdiction (or such other tribunal
that the parties shall agree to the matter), to have been a wrongful refusal
on the part of the Franchisee, then Franchisee shall pay all of the City's costs
for defense of the action, including all reasonable expert witness fees, reasonable
attorney's fees, the reasonable costs of the City, and reasonable fees of recovering
under this Subsection.
E. The obligations of Franchisee under the indemnification provisions of this
Section shall apply regardless of whether liability for damages arising out
of bodily injury to persons or damages to property were caused or contributed
to by the City, its officers, agents, employees or contractors except to the
extent that such claims, actions, damages, costs, expenses, and attorneys fees
were caused by the sole negligence of the City. In the event that a court of
competent jurisdiction determines that this Franchise is subject to the provisions
RCW 4.24.115, the parties agree that the indemnity provisions hereunder shall
be deemed amended to conform to said statute and liability shall be allocated
as provided therein.
F. Notwithstanding any other provisions of this Section, Franchisee assumes
the risk of damage to its communication Facilities located in the Public Ways
and upon City-owned property from such activities conducted by the City, its
officers, agents, employees and contractors, except to the extent any such damage
or destruction is caused by or arises from the sole negligence or any willful
or malicious action on the part of the City, its officers, agents, employees
or contractors. Franchisee releases and waives any and all such claims against
the City, its officers, agents, employees or contractors. Franchisee 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 Franchisee's Facilities as the result
of any interruption of service due to damage or destruction of Franchisee's
Facilities caused by or arising out of activities conducted by the City, its
officers, agents, employees or contractors, except to the extent any such damage
or destruction is caused by or arises from the sole negligence or any willful
or malicious actions on the part of the City, its officers, agents, employees
or contractors.
Section 19. Insurance. The Franchisee shall procure and maintain
insurance against claims for injuries to persons or damages to property which
may arise from or in connection with the exercise of the rights, privileges
and authority granted hereunder to the Franchisee, its agents, representatives
or employees. The Franchisee shall provide an insurance certificate, together
with an endorsement naming the City, its officers, elected officials, agents,
employees, representatives, engineers, consultants and volunteers as additional
insureds, to the City for its inspection prior to the commencement of any work
or installation of any Facilities pursuant to this Franchise, and such insurance
certificate shall evidence:
A. Comprehensive general liability insurance, written on an occurrence basis,
with limits not less than:
(1) $3,000,000.00 for bodily injury or death to each person;
(2) $3,000,000.00 for property damage resulting from any one accident; and
(3) $3,000,000.00 for all other types of liability.
B. Automobile liability for owned, non-owned and hired vehicles with a limit
of $3,000,000.00 for each person and $3,000,000.00 for each accident.
C. Worker's compensation within statutory limits and employer's liability insurance
with limits of not less than $1,000,000.00.
D. Comprehensive form premises-operations, explosions and collapse hazard,
underground hazard and products completed hazard with limits of not less than
$2,000,000.00
E. Excess liability with limits not less than $2,000,000.00 per occurrence
and $2,000,000.00 aggregate limit.
The liability insurance policies required by this Section shall be maintained
by the Franchisee throughout the term of this Franchise, and such other period
of time during which the Franchisee is operating without a Franchise hereunder,
or is engaged in the removal of its Communication System. Any deductibles or
self-insured retentions must be declared to and approved by the City. Payment
of deductibles and self-insured retentions shall be the sole responsibility
of the Franchisee. The insurance certificate required by this Section shall
contain a clause stating that the coverage shall apply separately to each insured
against whom a claim is made or suit is brought, except with respect to the
limits of the insurer's liability. The Franchisee's insurance shall be primary
insurance with respect to the City, its officers, officials, employees, agents,
consultants, and volunteers. Any insurance maintained by the City, its officers,
officials, employees, consultants, agents, and volunteers shall be in excess
of the Franchisee's insurance and shall not contribute with it.
In addition to the coverage requirements set forth in this Section, each such
insurance policy shall contain the following endorsement:
"It is hereby understood and agreed that this policy may not be reduced in
coverage, canceled, nor the intention not to renew be stated until 60 days
after receipt by the City, by registered mail, of a written notice addressed
to the Public Works Director of such intent to cancel or not to renew."
Within 30 days after receipt by the City of said notice, and in no event later
than 15 days prior to said cancellation or intent not to renew, the Franchisee
shall obtain and furnish to the City replacement insurance policies meeting
the requirements of this Section.
Section 20. Abandonment and Removal of the Franchisee's Communication
Facilities. Upon the expiration, termination, or revocation of the rights
granted under this Franchise, the Franchisee shall remove all of its communications
Facilities from the Public Ways of the City within 90 days of receiving notice
from the Public Works Director. Provided, however, that the City may permit
the Franchisee's improvements to be abandoned and placed in such a manner as
the City may prescribe. Upon permanent abandonment, and Franchisee's agreement
to transfer ownership of the communication Facilities to the City, the Franchisee
shall submit to the City a proposal and instruments for transferring ownership
to the City. Any such Facilities which are not permitted to be abandoned in
place which are not removed within ninety (90) days of receipt of said notice
shall automatically become the property of the City. Provided, however, that
nothing contained within this Section shall prevent the City from compelling
the Franchisee to remove any such Facilities through judicial action when the
City has not permitted the Franchisee to abandon said Facilities in place.
Section 21. Construction Bond. Before undertaking any of the
work, installation, improvements, construction, repair, relocation or maintenance
authorized by this Franchise, the Franchisee shall furnish a street repair or
sidewalk bond written by a corporate surety acceptable to the City equal to
at least 150% of the estimated cost of restoring the Public Ways of the City
to the pre-construction condition required by Section 11 of this Franchise.
Said bond shall be required to remain full force until 60 days after completion
of the construction of Grantee's communication Facilities and other improvements
from the Public Ways of the City, and said bond, or separate bond acceptable
to the City, shall warrant all such restoration work for a period of 1 year.
In the event that a bond issued to meet the requirements of this Section is
canceled by the surety, after proper notice and pursuant to the terms of said
bond, Franchisee shall, prior to expiration of said bond, be responsible for
obtaining a replacement bond which complies with the terms of this Section.
Section 22. Modification. The City and the Franchisee hereby
reserve the right to alter, amend or modify the terms and conditions of this
Franchise upon the written agreement of both parties to such alteration, amendment
or modification. Said modifications shall be approved by the City by ordinance
and accepted by the Franchisee consistent with Section 33 hereof.
Section 23. Forfeiture and Revocation. If the Franchisee willfully
violates or fails to comply with any of the material provisions of this Franchise,
or through willful misconduct or gross negligence fails to heed or comply with
any notice given the Franchisee by the City under the provisions of this Franchise,
then the Franchisee shall, at the election of the City Council, forfeit all
rights conferred hereunder and this Franchise may be revoked, terminated or
annulled by the City Council after a hearing held upon reasonable written notice
to Franchisee. The City Council may decide, after consideration of the reasons
for the Franchisee's failure to comply with the Franchise, to allow the Franchisee
additional time to cure before such termination or revocation. The City may
elect, in lieu of the above, and without prejudice to any of its other legal
rights and remedies, to obtain an order from the superior court having jurisdiction
compelling the Franchisee to comply with the provisions of this Franchise and
to recover reasonable and documented damages and costs incurred by the City
by reason of the Franchisee's failure to comply.
Section 24. City Ordinances and Regulations. Nothing herein shall
be deemed to direct or restrict the City's ability to adopt and enforce all
necessary and appropriate ordinances regulating the performance of the conditions
of this Franchise, including any valid ordinance made in the exercise of its
police powers in the interest of public safety and for the welfare of the public.
The City shall have the authority at all times to control by appropriate regulations
the locations, elevation, manner or construction and maintenance of any Facilities
by the Franchisee, and the Franchisee shall promptly conform with all such regulations,
unless compliance would cause the Franchisee to violate other requirements of
the law.
Section 25. Survival. All of the provisions, conditions, and
requirements of this Franchise shall be in addition to any and all other obligations
and liabilities the Franchisee may have to the City at common law, by statute,
or by contract. The provisions, conditions, and requirements of Sections 7,
Relocation of Telecommunications Facilities; 8, Undergrounding of Facilities;
10, Work in the Public Ways; 11, Restoration after Construction; 13, Dangerous
Conditions; 18, Indemnification; 19, Insurance; and 20, Abandonment and Removal
of the Franchisee's Facilities, shall survive the expiration or termination
of this Franchise, and any renewals or extensions thereof and remain effective
until such time as the Franchisee removes its communication Facilities from
the Public Ways, transfers ownership of said Facilities to a third party, or
abandons said System in place, all as provided herein. All of the provisions,
conditions, regulations and requirements contained in this Franchise shall further
be binding upon the heirs, successors, executors, administrators, legal representatives
and assigns of the Franchisee and all privileges, as well as all obligations
and liabilities of the Franchisee shall inure to its heirs, successors, and
assigns equally as if they were specifically mentioned wherever the Franchisee
is named herein.
Section 26. Severability. In any section, sentence, clause, or
phrase of this Franchise should be held to be invalid or unconstitutional by
a court of competent jurisdiction, such invalidity or unconstitutionality shall
not affect the validity or constitutionality of any other section, sentence,
clause, or phrase of this Franchise.
Section 27. Assignment. This agreement may not be assigned or
transferred without the written approval of the City, which approval shall not
be unreasonably withheld or delayed, except that the Franchisee may freely assign
this Franchise in whole or part to a parent, subsidiary, or affiliated corporation
or as part of any corporate financing, reorganization or refinancing. In the
case of transfer or assignment as security by mortgage or other security instrument
in whole or in part to secure indebtedness, such consent shall not be required
unless and until the secured party elects to realize upon the collateral. The
Franchisee shall provide prompt, written notice to the City of any such assignment.
Franchisee may, without the prior written consent of the City: (i) Lease the
Facilities, or any portion thereof, to another Person, provided, that such other
Person shall obtain a City Franchise, if required; (ii) grant an Indefeasible
Right of User Interest in the Facilities, or any portion thereof, to another
Person; or (iii) offer or provide capacity or bandwidth in its Facilities to
another Person, PROVIDED THAT: (i) Franchisee at all times retains exclusive
control over such Facilities and remains responsible for locating, servicing,
repairing, relocating or removing its facilities pursuant to the terms and conditions
of this Franchise; (ii) written notice of said transaction is provided to the
City within 30 days.
Section 28. Notice. Any notice or information required or permitted
to be given to the parties under this Franchise may be sent to the following
addresses unless otherwise specified:
City: Franchisee:
City Manager Williams Communications, Inc.
City of Edgewood Manager of Land Records
2221 Meridian Avenue East 100 West 7th Street, Suite 500
Edgewood, WA 98371 Tulsa OK 74119-1044
Notice shall be deemed given upon receipt in the case of personal delivery,
three days after deposit in the United States Mail in the case of regular mail,
or the next day in the case of overnight delivery.
Section 29. Entire Franchise. This Franchise constitutes the
entire understanding and agreement between the parties as to the subject matter
herein and no other agreements or understandings, written or otherwise, shall
be binding upon the parties upon approval and acceptance of this Franchise.
Section 30. Attorney's Fees. If any suit or other action is instituted
in connection with any controversy arising under this Franchise, the prevailing
party shall be entitled to recover all of its costs and expenses including such
sum as the court may judge reasonable for attorney's fees, including fees upon
appeal of any judgement or ruling.
Section 31. Non-waiver. Failure of the City to declare any such
breach or default immediately upon the occurrence thereof, or delay in taking
any action in connection therewith, shall not waive such breach or default,
but the City shall have the right to declare any such breach or default at any
time. Failure of the City to declare one breach or default does not act as a
waiver of the City's right to declare another breach or default.
Section 32. Governing Law/Venue. This Franchise shall be governed
by and construed in accordance with the laws of the State of Washington. The
venue and jurisdiction over any dispute related to this Franchise shall be with
the Pierce County Superior Court.
Section 33. Acceptance. Within 60 days after the passage and
approval of this ordinance, this Franchise may be accepted by Franchisee by
its filing with the City Clerk an unconditional written acceptance thereof.
Failure of the Franchisee to so accept this Franchise within said period of
time shall be deemed a rejection thereof, and the rights and privileges herein
granted shall, after the expiration of the 60 day period, absolutely cease and
determine, unless the time period is extended by ordinance duly passed for that
purpose.
Section 34. Effective Date. This ordinance, being an exercise
of a power specifically delegated to the City legislative body, is not subject
to referendum, and shall take effect 5 days after the passage and publication
of an approved summary thereof consisting of the title.
Section 35. Dark Fiber. Franchisee shall, at its sole expense,
provide the City with the exclusive indefeasible right to the use of two-pair
(four) dark fibers between the City and Franchisees termination point in Seattle.
The term of the City's indefeasible right to use such fibers shall be coextensive
with the term of this Franchise or any extensions thereof. Such fibers shall
be tested for optical continuity, found and maintained to be satisfactorily
consistent with Franchisee's standard specifications. The City shall pay a maintenance
and repair fee of $10 per month per mile of fibers (not per month per mile per
fiber), but only after one or more of the fibers becomes utilized by the City.
The City shall be entitled to use up to three access points at Franchisee's
splice vaults (Exhibit C). Actual connections at the splice vaults shall be
performed by Franchisee and the City shall reimburse Franchisee the costs associated
therewith. The City intends to use the capacity of these fibers for local businesses,
governments, including consortiums of governments such as the Rainier Communications
Commission and utility providers for governmental and other lawful purposes.
The City may allow local private businesses and individuals to utilize the capacity
of these fibers for telecommunications services originating or ending within
the City limits. The City may contract with private parties or governmental
agencies or consortiums to operate and manage the transmissions through the
fibers, but shall not allow non-governmental agencies to resell to the general
public any excess capacity of the fibers for private profit. The City may not
assign in whole or in part its indefeasible right to use the fibers.
Presented to Council for its First Reading on June 27, 2000.
Presented to Council for its Second Reading on July 11, 2000.
ADOPTED BY THE CITY COUNCIL ON THE 11TH DAY OF July,
2000.
Attest/Authenticated:
Terri Berry, City Clerk
Approved as to form:
City Attorney, Wayne D. Tanaka
Date of Publication: July 20, 2000
Effective Date: July 25, 2000
CITY OF EDGEWOOD
2221 Meridian Avenue East
Edgewood, WA 98371
PH: (253) 952-3299 Fax: (253) 952-3537
LEGAL NOTICE
July 12, 2000
NOTICE OF ORDINANCE PASSED BY EDGEWOOD CITY COUNCIL
The following is a summary of an Ordinance passed by the City of Edgewood City
Council on the 11th day of July, 2000 and shall take effect and be
in full force on the 25th day of July, 2000.
ORDINANCE NO. 00-0160
AN ORDINANCE OF THE CITY OF EDGEWOOD, WASHINGTON, GRANTING TO WILLIAMS
COMMUNICATIONS, INC., A DELAWARE CORPORATION, A NON-EXCLUSIVE FRANCHISE TO
INSTALL, OPERATE, AND MAINTAIN A COMMUNICATION SYSTEM IN, ON, OVER, UPON,
ALONG, AND ACROSS CERTAIN DESIGNATED PUBLIC RIGHTS-OF-WAY OF THE CITY OF EDGEWOOD,
WASHINGTON, PRESCRIBING CERTAIN RIGHTS, DUTIES, TERMS, AND CONDITIONS WITH
RESPECT THERETO.
The full text of the Ordinance is available at the City Clerk's office, Edgewood
City Hall, 2221 Meridian E., Edgewood, Washington, 98371, (253) 952-3299.
Terri Berry, City Clerk
Published in the Pierce County Herald on July 20, 2000.
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