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Edmonds, WA Ordinance No. 3333 granting a telecommunications franchise
Not an official copy.
City of Edmonds
ORDINANCE NO. 3333
AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, GRANTING TO ADELPHIA BUSINESS
SOLUTIONS OPERATIONS, INC., A NON-EXCLUSIVE FRANCHISE TO INSTALL, OPERATE,
AND MAINTAIN A FIBER OPTIC TELECOMMUNICATIONS SYSTEM IN, ON, OVER, UPON, ALONG,
AND ACROSS THE PUBLIC RIGHTS-OF-WAY OF THE CITY OF EDMONDS, WASHINGTON, PRESCRIBING
CERTAIN RIGHTS, DUTIES, TERMS, AND CONDITIONS WITH RESPECT THERETO, AND ESTABLISHING
AN EFFECTIVE DATE.
WHEREAS, Adelphia Business Solutions Operations, Inc., has requested that the
City grant it the right to install, operate, and maintain a fiber optic-based
telecommunications 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 EDMONDS, 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. "City" means the City of Edmonds, Washington.
c. "Communication Service" shall mean any telecommunications services, telecommunications
capacity, or dark fiber, provided by the Franchisee using its Communication
System or Facilities, either directly or as a carrier for its subsidiaries,
Affiliates, or any other person engaged in Communication Services, including,
but not limited to, the transmission of voice, data or other electronic information,
facsimile reproduction, burglar alarm monitoring, meter reading and home shopping,
or other subsequently developed technology that carries an electronic signal
over fiber optic cable. 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, Communications
Services shall not include the provision of cable television, open video, or
similar services, as defined in the Communications Act of 1934, as amended,
for which a separate franchise would be required.
d. "Communication System" or "Facilities" shall mean the Franchisee's fiber
optic cable system constructed and operated within the City's Public Ways, and
shall include all cables, wires, conduits, ducts, pedestals, and any associated
converter, equipment, or other facilities within the City's Public Ways, designed
and constructed for the purpose of providing Communication Service.
e. "FCC" means the Federal Communications Commission, or any successor governmental
entity hereto.
f. "Franchise" shall mean the initial authorization, or renewal thereof, granted
by the City, through this Ordinance, or a subsequently adopted Ordinance, which
authorizes construction and operation of the Franchisee's Communication System
and associated Facilities for the purpose of offering Communication Service.
g. "Franchisee" means Adelphia Business Solutions Operations, Inc., a Delaware
corporation, or the lawful successor, transferee, or assignee thereof.
h. "Person" means an individual, partnership, association, joint stock company,
trust, corporation, or governmental entity.
i. "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, which 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 Service over wires, cable, conductors, amplifiers,
appliances, attachments, and other property as may be ordinarily necessary and
pertinent to the Communication System.
j. "Service Area" means the present municipal boundaries of the City, and shall
include any additions thereto by annexation or other legal means.
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
utilize the Public Ways of the City for construction and operation of the Franchisee's
Communication System and to acquire, construct, operate, maintain, replace,
use, install, remove, repair, reconstruct, inspect, sell, lease, transfer or
to otherwise utilize in any lawful manner, all necessary equipment and Facilities
thereto for Franchisee's Communication System, and to provide Communication
Service 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
System within a Public Way, the Franchisee shall apply for and obtain a Construction
Permit pursuant to ECDC Chapter 18.60. In addition to any criteria set forth
in ECDC Chapter 18.60, the City Engineer 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. Whether there is sufficient capacity in the Public Ways to accommodate
the Franchisee's proposed Facilities;
3. The capacity of the Public Ways to accommodate additional utility, cable,
and Communication Facilities if the Construction Permit is granted;
4. The damage or disruption, if any, of public or private Facilities, utilities,
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. 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 31, unless sooner terminated. This Franchise shall automatically renew for
two (2) additional five (5) year terms. Provided, however, that either party
may notify the other of its desire to renegotiate any of the terms set forth
herein or of its desire to add to or delete any such terms not later than 180
days prior to expiration of the initial term hereof or any subsequent renewal
terms. If either party makes such a request, this Franchise shall not renew
unless and until the City and Franchisee reach agreement on said modification,
addition, and/or deletion, and said agreement is approved by ordinance of the
City Council. In the event that agreement cannot be reached, this Franchise
shall terminate at the end of the then current term. 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 City Engineer 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, all in compliance with
this Franchise.
Section 7. Relocation of Communication System.
A. The Franchisee agrees and covenants, to protect, support, temporarily disconnect,
relocate, or remove from any Public Way any portion of its Communication Facilities
when so required by the City Engineer 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 City Engineer, any section of cable or any other facility
required to be temporarily disconnected or removed.
B. Upon the reasonable request of the City Engineer 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 City Engineer 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 City Engineer upon review of the location
and construction of the Franchisee's Facilities.
C. If the City Engineer 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 City Engineer.
D. 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.
E. 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.
F. 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.
G. The cost and expenses associated with relocation of the Franchisee's Facilities
shall be the responsibility of the Franchisee unless: (1) the Franchisee had
paid for the relocation cost of the same Facilities at the request of the
City within the past five years; (2) aerial to underground relocation of Facilities
is required by the City and the Franchisee has an ownership share of the aerial
supporting structures, in which case the City shall be responsible for the
additional incremental costs of underground relocation compared to aerial
relocation, or as provided for in the Franchisee's tariff, if said amount
is less; and, (3) when the City requests relocation solely for aesthetic purposes,
unless the Franchisee agrees to be responsible for the costs thereof.
H. In the event that the City orders the Franchisee to relocate its Facilities
for a project which is primarily for private benefit, the private party or
parties causing the need for such project shall reimburse the Franchisee for
the cost of relocation and the same proportion as their contribution to the
cost of the project. In the event of an unforeseen emergency that creates
a threat to the public safety, health, or welfare, the City may require the
Franchisee to relocate its Facilities at its own expense, any other portion
of this Section notwithstanding.
Section 8. Undergrounding of Facilities. Consistent with ECDC
Chapter 18.05, all of Franchisee's facilities shall be placed underground.
Section 9. Maps and Records. After construction is complete,
the Franchisee shall provide the City with accurate copies of as-built plans
and maps in a form and content prescribed by the City Engineer. These plans
and maps shall be provided at no cost to the City, and shall include hard
copies and digital copies in a format specified by the City Engineer.
Section 10. Work in Public Ways.
A. During any period of 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.
B. During the progress of the work, the Franchisee shall not unnecessarily
obstruct the passage or 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 Edmonds Public Works
Construction Standards and warranted for a period of one year.
C. The City may require the Franchisee, and its construction, relocation,
or placement of ducts or conduits within the Public Ways to provide the City
with additional ducts or conduits and related structures necessary to access
the same. The terms and conditions under which additional ducts and/or conduits
shall be provided shall be consistent with Section 7 of Engrossed Substitute
Senate Bill 6676, Chapter 83, Laws of 2000.
D. The Franchisee shall cooperate with the City and all other persons with
authority from the City to occupy and use the Public Ways of the City in coordinate
of construction activities and joint trenching projects. By February 1st
of each calendar year, the Franchisee shall provide the City with a schedule
of its proposed construction activities in, around, or that may effect the
Public Ways of the City. The Franchisee shall also meet with the City and
other grantees, franchisees, permittees, and users of the Public Ways of the
City annually, or as determined by the City, to schedule and coordinate construction
activities. The City Engineer shall coordinate all construction locations,
activities, and schedules to minimize public inconvenience, disruption, or
damage to the Public Ways of the City.
E. Consistent with Engrossed Substitute Senate Bill 6676, the Franchisee
may, on an annual basis, file notice with the City Clerk and the City Engineer
of its desire to receive notices related to public improvement projects within
the Public Ways of the City. In the event that the Franchisee is mailed such
a notice and fails to coordinate installation or construction of its Facilities
with the public improvement project, the City Engineer may deny the Franchisee's
construction permit application for those portions of any of the Franchisee's
construction projects which seek to disrupt the surface of any said street
for a period of up to five years, as reasonably determined by the City Engineer
for the purpose of protecting the City's investment in said public improvement
projects. In the alternative, the City Engineer may require the Franchisee
to fully restore the surface and sub-surface areas of such street to the condition
that it was in immediately after completion of the public improvement project.
F. 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:
1. Such joint use shall not unreasonably delay the work of the party causing
the excavation to be made or unreasonably increase its costs;
2. Such joint use shall be arranged and accomplished on terms and conditions
satisfactory to both parties; and
3. Either party may deny such request for safety reasons or if their respective
uses of the trench are incompatible.
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 that 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 Edmonds 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 Edmonds 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 Edmonds
Public Works Construction standards and warranted for a period of one 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 break, 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 Edmonds 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 City Engineer 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.
The time of City employees shall be charged at their respective rate of salary,
including overtime if applicable, plus benefits and a reasonable overhead.
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.
Provided, however, that this Section shall not be construed to allow the City
to invoice Franchisee for costs incurred during the processing of Franchisee's
initial franchise application to the extent that such costs were covered by
application fees paid to the City pursuant to Resolution No. 967.
Section 15. Consideration. Pursuant to RCW 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 compensation in addition to reimbursement
for administrative costs as set forth in Section 14 herein, payment of the
cost recovery fees as set forth in Resolution No. 941, and payment of any
applicable local utility tax applicable to Franchisee's operations. 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. Franchisee reserves its right
to contest: (i) Any and all fee(s) imposed by the City on Franchisee and,
(ii) any separate agreement(s) the City requires Franchisee to obtain.
Section 16. 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 permitting Franchisee 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 or any willful, malicious, or criminal act
on the part of the City, its officers, agents, employees or contractors. 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,
malicious, or criminal act 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 17. 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 to the City, for its inspection,
an insurance certificate naming the City as an additional insured as its respective
interests may appear prior to the commencement of any work or installation of
any Facilities pursuant to this Franchise. Such insurance certificate shall
evidence:
A. Comprehensive general liability insurance, written on an occurrence basis,
including contractual liability coverage, with limits, inclusive of umbrella
or excess liability coverage, not less than:
(1) $3,000,000.00 for bodily injury or death to each person; and
(2) $3,000,000.00 for property damage resulting from any one accident.
B. Automobile liability for owned, non-owned and hired vehicles with a limit,
inclusive of umbrella or excess liability coverage, 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, inclusive of umbrella or excess liability coverages, of not less
than $1,000,000.00.
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. 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. 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, the insurance
certificate required by this Section shall contain language which provides that
the policy may not be cancelled, reduced in coverage, nor the intention not
to renew be stated until at least 30 days after receipt by the City of written
notice of the same via U.S. mail. Within 15 days after receipt by the City of
said notice, and in no event later than 5 days prior to said cancellation or
non-renewal, the Franchisee shall obtain and furnish to the City replacement
insurance certificate(s) meeting the requirements of this Section
Section 18. 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 City Engineer. Provided, however, that the City may permit the Franchisee's
improvements to be abandoned in place 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 19. 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 125% 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 in 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 one 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 20. 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 31 hereof.
Section 21. Forfeiture and Revocation.
A. This Franchise may be terminated for failure by Franchisee to comply with
the material provisions hereof and other provisions of the Edmonds Municipal
Code. In addition to termination, the City may impose lesser sanctions, including,
but not limited to, monetary penalties, for violation of this Franchise.
B. If the City has reason to believe that Franchisee is in violation of this
Franchise or other provisions of the Edmonds Municipal Code, the following procedures
shall be followed by the City:
1. The City shall provide Franchisee with a detailed written notice, by certified
mail, detailing the violation, the steps necessary to cure such violation,
and time period within which the violation must be cured. Within thirty days
(30) thereafter, Franchisee shall respond demonstrating that no violation
occurred, that any problem has been corrected, or with a proposal to correct
the problem within a specified period of time.
2. Franchisee may request an extension of time to cure an alleged violation
if construction is suspended or delayed by the City, or where unusual weather,
natural consequences (e.g. earthquakes, floods, etc.), extraordinary acts
of third parties, or other circumstances which are reasonably beyond the control
of Franchisee delay progress, provided that Franchisee has not, through its
own actions or inactions, contributed to the delay. The amount of additional
time allowed will be determined by the City. The extension of time in any
case shall not be greater than the extent of the actual non-contributory delay
experienced by Franchisee.
3. If said response is not satisfactory to City, the City may declare Franchisee
to be in default, with written notice, by certified mail, to Franchisee. Within
ten business days after notice to Franchisee, Franchisee may deliver to the
City a request for a hearing before the City Council. If no such request is
received, the City may declare the Franchise terminated for cause or impose
lesser sanctions.
4. If Franchisee files a timely written request for a hearing, such hearing
shall be held within thirty (30) days after the City's receipt of the request
therefor. Such hearing shall be open to the public and Franchisee and other
interested parties may offer written and/or oral evidence explaining or mitigating
such alleged non-compliance. Within ten days after the hearing, the City Council,
on the basis of the record, will make the determination as to whether there
is cause for termination, whether the Franchise will be terminated, or whether
lesser sanctions should be imposed. The City Council may in its sole discretion
fix an additional time period to cure violations. If the deficiency has not
been cured at the expiration of any additional time period or if the City
Council does not grant any additional period, the City Council may by resolution
declare the Franchise to be terminated and forfeited or impose lesser sanctions.
5. If Franchisee appeals revocation and termination, such revocation may
be held in abeyance pending judicial review by a court of competent jurisdiction,
provided the Franchisee is otherwise in compliance with this Franchise. In
any such appeal, Franchisee shall be responsible for the costs of preparing
and filing the City's administrative record with the Court and such costs
shall be paid prior to the City's filing thereof.
C. In the event that the City elects to impose monetary penalties upon the
Franchisee for failure by to comply with the material provisions of this Franchise,
said penalties shall be assessed at five hundred ($500.00) per day, per violation,
for each day beyond thirty (30) days that Franchisee has been in violation.
D. Monetary penalties may be assessed retroactive to the date that notification
was provided to Franchisee in such cases where Franchisee has been non-responsive
in correcting the violation or in the case of flagrant violations. If payment
of any penalty is delinquent by three (3) months or more, the City may: (1)
require partial or total forfeiture of any performance bond or other surety
posted by Franchisee; (2) terminate this Franchise; and/or (3) commence a civil
action in a court of competent jurisdiction to collect said penalty.
E. Franchisee shall not be deemed to be in default, failure, violation, or
non-compliance with any provision of this Franchise where performance was rendered
impossible due to materially, substantially, and reasonably to an act of God,
fire, flood, storm, or other element or casualty, theft, war, disaster, strike,
lock-out, boycott, prevailing war or war preparation, or bona fide legal proceedings,
beyond the control of Franchisee.
Section 22. 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 23. 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 Communication System; 8, Undergrounding of Facilities;
10, Work in Public Ways; 11, Restoration after Construction; 13,
Dangerous Conditions, Authority for City to Abate; 16, Indemnification
and Waiver; 17, Insurance; and 18, Abandonment and Removal of
the Franchisee's Communication 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 24. 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 25. Assignment. This agreement may not be assigned or
transferred without prior written notice to the City, except that the Franchisee
may freely assign this Franchise without notice 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 notice shall not be required unless and until the secured party elects
to realize upon the collateral.
Franchisee may, without the prior written notice to the City: (i) Lease the
Facilities, or any portion thereof, to another; (ii) Grant an Indefeasible Right
of User Interest in the Facilities, or any portion thereof, to another; or (iii)
Offer or provide capacity or bandwidth in its Facilities to another, PROVIDED
THAT: 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.
Section 26. 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 of Edmonds Adelphia Business Solutions Operations, Inc.
City Engineer Manager, Legal and Regulatory Affairs
121 5th Avenue North West Region
Edmonds, WA 98020 One North Main Street
Telephone: (425) 771-0220 Coudersport, PA 15017
Fax: (425) 771-0221 Telephone: (412) 221-1888
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 27. 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.
Provided further, that the City and Franchisee reserve all rights they may
have under law to the maximum extent possible and neither the City nor Franchisee
shall be deemed to have waived any rights they may now have or may acquire
in the future by entering into this Franchise.
Section 28. 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 29. 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 30. 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 Snohomish County Superior Court, or, with respect to any federal
question, with the United States District Court for the Western District of
Washington, at Seattle.
Section 31. Acceptance. Within 60 days after the passage and
approval of this ordinance, this Franchise shall 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 32. 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.
CITY OF EDMONDS
MAYOR, GARY HAAKENSEN
ATTEST/AUTHENTICATED:
CITY CLERK SANDRA S. CHASE
APPROVED AS TO FROM:
OFFICE OF THE CITY ATTORNEY:
By:
FILED WITH THE CITY CLERK: 11/17/2000
PASSED BY THE CITY COUNCIL: 11/21/2000
PUBLISHED: 11/30/2000
EFFECTIVE DATE: 12/05/2000
ORDINANCE NO.: 3333
SUMMARY ORDINANCE NO. 3333
of the City of Edmonds, Washington
On the 21st day of November, 2000, the City Council of the City of Edmonds,
passed Ordinance No. 3333. A summary of the content of said ordinance, consisting
of the title, provides as follows:
AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, GRANTING TO ADELPHIA BUSINESS
SOLUTIONS OPERATIONS, INC., A NON-EXCLUSIVE FRANCHISE TO INSTALL, OPERATE,
AND MAINTAIN A FIBER OPTIC TELECOMMUNICATIONS SYSTEM IN, ON, OVER, UPON,
ALONG, AND ACROSS THE PUBLIC RIGHTS-OF-WAY OF THE CITY OF EDMONDS, WASHINGTON,
PRESCRIBING CERTAIN RIGHTS, DUTIES, TERMS, AND CONDITIONS WITH RESPECT THERETO,
AND ESTABLISHING AN EFFECTIVE DATE.
The full text of this Ordinance will be mailed upon request.
DATED this 22nd day of November, 2000.
City Clerk, Sandra S. Chase
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