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Spokane, WA Ordinance No. C32786
Not an official copy.
Spokane, WA
Ordinance No. C-32786
TIME WARNER TELECOM OF WASHINGTON LLC TELECOMMUNICATIONS (NONCABLE) FRANCHISE
AN ORDINANCE GRANTING A NON-EXCLUSIVE FRANCHISE TO USE THE PUBLIC RIGHT OF
WAY TO PROVIDE NONCABLE TELECOMMUNICATIONS SERVICE TO THE PUBLIC, TO TIME WARNER
TELECOM OF WASHINGTON LLC, LOCATED AT 10475 PARK MEADOWS DRIVE, LITTLETON, CO
80124, SUBJECT TO CERTAIN CONDITIONS AND DUTIES AS FURTHER PROVIDED.
THE CITY OF SPOKANE DOES ORDAIN:
Section 1. Parties, grant.
Section 2. Limits on permission.
Section 3. Term.
Section 4. Grantee’s general promises.
Section 5. Plans to be submitted; expedited approvals.
Section 6. Location or relocation.
Section 7. Grantee to restore affected areas.
Section 8. Information, good engineering, inspections.
Section 9. Limited access, no obstruction, accommodation.
Section 10. Undergrounding.
Section 11. City use.
Section 12. Waiver, indemnity, no estoppel, no duty.
Section 13. Insurance.
Section 14. Taxes, fees.
Section 15. Franchise administration.
Section 16. Acts discretionary, reservation of authority.
Section 17. No transfer, no stock to be issued.
Section 18. Additional.
Section 19. Effective date.
Section 1. Parties, grant.
A. This is a franchise agreement between the City of Spokane as Grantor, hereafter
also "City", and Time Warner Telecom of Washington LLC, as Grantee,
hereafter also "Grantee". Grantee is a Delaware LLC whose home office
is 10475 Park Meadows Drive, Littleton, CO 80124, telephone: 800-565-TWTC or
303-566-1000;
Fax Number: 303-566-1011 or 303-566-1010.
B. In return for promises made and subject to the stipulations and conditions
stated, the City grants to Grantee general permission to enter, use, and occupy
the right of way, as defined SMC 12.09.010, to locate facilities to provide
telecommunications service to the public in the City of Spokane. This grant
is in the nature of a master permit, as referenced in SMC 12.09.010, and is
not in lieu of a more specific use permit as also referenced under said section.
General permission is similarly granted to Grantee to use other areas reserved
by regulation, practice, or dedication for public telecommunications utilities,
as determined by the Administering Officer as generally applicable to telecommunications
or underground conduit utilities. In accepting this franchise, Grantee stipulates
and agrees to the City’s authority to issue and require the franchise and stipulates
and agrees to the other terms and conditions hereof.
Section 2. Limits on permission.
A. As used in Section 1, "telecommunications service" means the
transmission of information by wire, radio, optical cable, electromagnetic,
or other similar means for hire, sale, or resale to the general public. For
the purpose of this subsection, "information" means knowledge or intelligence
represented by any form of writing, signs, signals, pictures, sounds, or any
other symbols. "Telecommunications service" excludes the over-the-air
transmission of broadcast television or broadcast radio signals and "cable
service" as defined in 42 USC 522 (5) or other distribution of multichannel
video programming. Grantee stipulates that this instrument extends no rights
or privileges relative to the use of the right of way or other areas for such
excluded purposes or any other purpose beyond telecommunications service. Should
the Administering Officer, with the advice of the City Attorney, determine Grantee
is functioning as a cable operator or performing other business functions beyond
the scope of permission extended to use the public right of way, the City reserves
the right to cancel this franchise and require Grantee to follow any applicable
requirements to obtain a cable franchise or other franchise from the City.
B. Permission granted is in the nature of a quitclaim of any interest or authority
the City may now or hereafter hold to grant general permission. It should not
be construed to warrant or guarantee any rights or extend beyond such interest
or authority. Permission does not extend to areas outside those listed in Section
1 B or activities outside those stated in Section 2 A, or otherwise to any area
outside the authority of the City to extend franchised or general permit access
permission, such as buildings or private areas not reserved for general utility
access. Grantee is solely responsible to make its own arrangements for any access
needed to such places. Permission granted is nonexclusive. Grantee stipulates
that the City may grant similar permission to others. The City reserves the
right itself to engage in Grantee’s business at any time, as may be permitted
by law.
C. The grant of permission from the City does not extend to municipal buildings
or other municipally owned or leased structures or premises held in a proprietary
or ownership capacity. For such locations, Grantee should make specific written
lease arrangements directly with the municipal department controlling such building
or other structure or area.
Section 3. Term.
This franchise expires at midnight May 8, 2011. This does not affect the
City’s right to revoke the franchise for cause, abandonment, or because of breach
of any promise, condition or stipulation stated.
Section 4. Grantee’s general promises.
As general promises in return for the grant of franchise:
A. Grantee promises to become and remain in good standing a corporation registered
to do business in the State of Washington, and pay all taxes or fees applicable
thereto. Grantee further promises to maintain a reliable mailing address, with
a named responsible individual person as necessary for consumer contact and
a local agent for service of process, as toll free public telephone number,
fax number, and accessible email address 24 hours a day, seven days a week for
customer access. Currently, the pertinent information is:
Responsible official and mailing address:
Suzanne Ford, Vice President- Business Development and Integration
5411 E. Mill Plain
Vancouver, WA 98611
Email: suzanne.ford@twtelecom.com
Local agent, address for process: [see franchise acceptance sheet]
The voice and fax telephone numbers shall be personally staffed at least during
normal business hours, Pacific time zone. Any changes to this information shall
be stated in writing and sent to the Administering Officer, with copies to the
City Clerk, referencing the title of this franchise, ordinance number, and this
Section 4 A.
B. Grantee promises to provide fair, safe and reliable service to the public
at rates which are reasonable in accord with applicable federal and state laws,
including, but not limited to, RCW 80.36, 170 and RCW 80.36.080. Grantee promises
to comply with any other applicable federal and state legal requirements, together
with all lawful municipal ordinances, resolutions of the City Council or orders
of the Administering Official, provided such requirements are not in conflict
with state or federal laws.
C. Besides obligations specific to new construction, Grantee stipulates that
all construction, operation, maintenance and repair activity in permitted areas
is subject to the City’s street obstruction or use permit ordinances or other
applicable City ordinances or regulations, including Ch. 12.09 SMC.
D. Grantee promises to coordinate its activities with other utilities and
users of permitted areas scrupulously to avoid any unnecessary cutting, damage
or disturbance to the public right of way and other permitted areas, and to
conduct its planning, design, installation, construction and repair operations
at all times so to maximize the life and usefulness of the paving and municipal
infrastructure. "Municipal infrastructure" is defined in SMC 12.09.010.
E. Grantee promises that its uses of the right of way or other permitted areas,
and any rights granted herein, shall at all times be subordinated to and subject
to municipal infrastructure needs and uses, the general public travel and access
uses and the public convenience, except as may be otherwise required by law.
F. Grantee promises to conduct all operations in or near the right of way and
other permitted areas so to minimize or entirely avoid any hazard, danger or
inconvenience to municipal infrastructure needs and uses, public travel, and
the public convenience.
G. Grantee promises to maintain membership in good standing with the Inland
Empire Utility Coordinating Council (IEUCC) or other similar or successor organization
designated to coordinate underground fixture locations and installations. Grantee
is familiar with ch. 19.122 RCW, Washington State’s "Underground Utilities"
statute. Grantee certifies it understands local procedures, custom and practice
relating to the one-call locator service program, and will see to it that its
contractors or others working in the right or way on Grantee’s behalf are similarly
well informed.
H. To the extent not otherwise stated, the conditions of SMC 12.09.080 are
further incorporated herein by reference.
Section 5. Plans to be submitted: expedited approvals.
A. Grantee’s initial construction and installation plan shall be submitted
to the Administering Officer as requested under such advance notification as
the Administering Officer may reasonably require.
B. As requested, Grantee promises to submit all new or remodel construction
plans to the Administering Officer for review and approval, with a copy of such
plans to the Director of Transportation and any other information requested
by the City. Grantee promises that all its installations shall be placed in
the standard location for telephone conduit or overhead lines, as determined
by local regulation, custom and practice, or as designated by the Administering
Officer.
Section 6. Location or relocation.
A. The City reserves the right to change, regrade, relocate, abandon, or
vacate the right of way, and/or any skywalk or other permitted area, at no expense
or liability to the City except as may be required by section 6, ch. 83, laws
of 2000 of the State of Washington, and as further provided in SMC 12.09.120.
Except as otherwise so required by law, Grantee promises to relocate, remove,
or reroute its facilities, as ordered by the Administering Officer, at its sole
expense and liability. Grantee promises to protect and save harmless the City,
its officers, agents and employees from any customer or other third party claims
for service interruption or other losses in connection with any such change,
relocation or vacation of the right of way or other permitted areas. The parties
agree that "relocation" refers to a permanent movement of facilities
required of Grantee by the City, and not a temporary or incidental movement
of facilities, such as a raising of lines to accommodate housemoving and the
like, or other revisions Grantee would accomplish and charge to third parties
without regard to municipal request.
B. Where the City determines to abandon or vacate any right of way or other
permitted area, it is the Grantee’s responsibility to resolve any question of
Grantee’s continued occupancy or use of such areas directly with the owner of
such areas, and the City has no obligation whatsoever with respect thereto.
Section 7. Grantee to restore affected areas.
Subject always to the cost apportionment requirements of section 6, as
may apply:
A. Whenever Grantee damages or disturbs any location in or near the right of
way or other permitted area, Grantee agrees promptly to restore such area to
its original or better condition at its sole expense and liability, to the satisfaction
of the Administering Officer. Grantee promises likewise to restore and patch
all surfaces cut and to repave entirely any such portions of the right of way
or other permitted areas as determined necessary by the Administering Officer
to maintain and preserve the useful life thereof. Grantee promises that any
damage or disturbance to facilities, fixtures or equipment of the City or others
shall be promptly repaired to standards approved by the Administering Officer.
For pavement restorations, any resulting patch or restoration shall be thereafter
properly maintained in good condition and repair by Grantee until such time
as the area is resurfaced or reconstructed.
B. Whenever Grantee damages or disturbs any area in or near the public right
of way or permitted areas, or plans to do so, Grantee stipulates the City may:
1) require Grantee to repave an entire lane within any cut or disturbed location,
or greater area, to the extent it may be affected by Grantee’s activities;
2) require Grantee to common trench with any other underground installation
in the right of way, with cost sharing to be negotiated between the parties
involved, or in absence of agreement, as directed by the Administering Officer;
and/or
3) to avoid frequent or needless street cuts, require Grantee to install additional
conduit, with our without dark fiber, as directed by the Administering Officer.
Except where the City affirmatively demonstrates it is necessary to preserve
the value of the right of way, the City agrees that this requirement may not
exceed double the number of conduits installed at the time the right of way
is opened by Grantee. For example, if Grantee installs two conduits, the additional
conduits absent a demonstrated showing by the City would be an additional two
conduits of like size and character. This provision does not affect the right
of Grantee to negotiate alternate arrangements with the Administering Officer
on mutually fair terms and conditions, understanding the City’s right to protect
and preserve the value of its right of way infrastructure and avoid needless
cuts which diminish the value and life of the right of way and other permitted
areas. Where additional conduit is installed under this provision, Grantee must
make it available to competitors for a fair market value price, on fair terms
and conditions as Grantee and its lessee may agree. The Administering Officer
is authorized to excuse Grantee from requirements of installing further facilities
under this section upon a showing of economic hardship or anticompetitive effect,
but may impose additional conditions because of further cost or damage to the
right of way relating to such action.
C. Should Grantee fail or delay in performing any obligation here or elsewhere
stated, or where the Administering Officer deems necessary to protect the public
right of way or to avoid liability, risk or injury to the public or the City,
the Administering Officer may proceed to perform such obligation, including
any remedial or preventive action deemed necessary, at Grantee's sole expense
and liability, except where otherwise required by law, but no action or inaction
by the Administering Officer shall relieve Grantee of its obligation to indemnify
and hold the City harmless set forth hereafter. Prior to undertaking corrective
effort, the Administering Officer shall make a reasonable attempt to notify
to Grantee, except no notice is needed if the Administering Officer declares
an emergency or determines a need for expedient action. This remedy is supplemental
and not in alternative to any other municipal right.
Section 8. Information, good engineering, inspections.
A. Grantee promises to supply and maintain updated, at no cost and locally
available, any information requested by the Administering Officer or City Director
of Transportation to coordinate municipal functions with Grantee’s activities
and fulfill any municipal obligations under state law. Said information may
include an installation inventory, location of existing or planned facilities,
maps, plans, operational data, and as-built drawings of Grantee’s installations,
in the City or County of Spokane. Said information may be requested either in
hard copy and/or electronic format compatible with the City’s data base system,
as now or hereafter existing, including the City’s geographic information service
(GIS) data base. Grantee shall keep the Administering Officer informed of its
long-range plans for coordination with the City’s long range plans.
B. The parties understand that Washington law limits the ability of the City
to shield from public disclosure any information given to the City. Accordingly,
the parties agree to work together to avoid disclosures of information which
would result in economic loss or damage to Grantee because of anticipated mandatory
disclosure requirements to third persons. In the event the parties cannot agree,
the dispute shall be submitted to the City Hearings Examiner, subject to the
record before the Hearings Examiner because the decision is arbitrary and capricious,
rests on an error of law, or is not supported by substantial evidence. Notwithstanding
this option, Grantee must indemnify and hold harmless the City for any loss
or liability for costs or attorneys fees because of nondisclosures requested
by Grantee under Washington’s open public records law, provided reasonable notice
and opportunity to defend is given or Grantee is or should be aware of the pendancy
of a request or claim.
C. Grantee promises all of its property and facilities shall be constructed,
operated and maintained in good order and condition and in accordance with good
engineering practice. In connection with the civil works of Grantee’s system,
such as, but not limited to, trenching, paving, compaction and locations, Grantee
promises to comply with the American Public Works Association Standard Specifications,
edition currently in use by the City, together with the City’s Supplemental
Specifications thereto, all as now or hereafter amended.
D. Grantee promises its system shall comply with the applicable federal, state
and local laws, and the National Electric Safety Code and Washington Electrical
Construction Code, where applicable.
E. The City reserves the right to inspect and approve Grantee’s installations
during construction, repair or installation, and after completion, as deemed
necessary, considering SMC 12.02.020. For other than routine inspections associated
with installation or cutting or repairs relating to the right of way, the Administering
Officer normally gives reasonable notice to the Grantee of the nature of the
municipal concern and an opportunity for Grantee to respond prior to taking
further enforcement action. No prior notice is needed in the event the Administering
Officer deems there is a risk to the public health or safety or Grantee has
previously been advised of the nature of the problem. Where the Administering
Officer determines Grantee has created a problem within the area of municipal
regulatory authority and requiring a municipal response and remedial action,
an order may be issued with a compliance schedule. All costs of municipal inspections
and enforcement, including staff time, are to be paid by Grantee. Additionally,
when deemed necessary, but not more than once every three (3) years, the Administering
Officer may require the Grantee to furnish at Grantee’s expense a verified certificate
by an independent professional engineer that he/she has inspected Grantee’s
installations in the public right of way, and that the facilities are reasonably
protected from damage and injury, and the system is maintained in accord with
good engineering practice any applicable legal system standards.
Section 9. Limited access, no obstruction, accommodation.
A. The City reserves the right to limit or exclude Grantee’s access to
a specific route, public right of way or other location when, in the judgment
of the Administering Officer, there is inadequate space, a pavement cutting
moratorium, subject to the requirements of applicable law, unnecessary damage
to public property, public expense, inconvenience, interference with City utilities,
or for any other reasonable cause determined by the Administering Officer, provided,
it shall do so consistent with state and federal law.
[cross reference, SMC 12.09.110; ch. 83, laws of 2000, section 5]
B. Grantee will not obstruct, hinder, damage, or otherwise interfere with municipal
infrastructure uses of the right of way or other permitted areas. Except where
otherwise authorized in writing, Grantee shall maintain a minimum underground
horizontal separation of five (5) feet from City water facilities and ten (10)
feet from above-ground City water facilities; PROVIDED, that for development
in new areas, the City, together with Grantee and other utility purveyors or
authorized users of the right of way, will develop and follow the Administering
Officer’s determination of a consensus for guidelines and procedures for determining
specific utility locations, subject additionally to this franchise.
C. In addition, subject however to Ch. 83, laws of 2000, the Administering Officer
may determine with respect to franchised uses, in the exercise of reasonable
discretion, when and where reasonable accommodation shall be made by Grantee
to the City for public needs or, where requested, other third party needs, how
such accommodation should be made, and a reasonable apportionment of any expenses
of the same, PROVIDED, that this franchise creates no third party beneficial
interest in any other entity, or any enforceable contractual right to require
the City to order such accommodation. Notwithstanding the foregoing, it remains
the responsibility of Grantee to anticipate and avoid conflicts with other right
of way occupants or users, other utilities, franchisees, or permittees. The
City assumes no responsibility for such conflicts.
D. In administering this provision, the City understands that private property
may not be taken or damaged without just compensation as required by Article
I, Section 16 of the Washington State Constitution with respect to any specific
loss or damage occasioned to Grantee’s lawfully permitted facilities and equipment
authorized to be located in the public right of way. Grantee likewise understands
that it does not hold any leasehold or ownership interest in the public right
of way and occupies it at the sufferance of the franchising municipal authority,
subject to the primary purposes and principles as outlined in SMC 12.09.020.
Section 10. Undergrounding.
A. The purpose of this section is to recognize and preserve the City’s
control over uses of the public right of way, consistent with the municipal
policy favoring undergrounding of overhead lines for aesthetic reasons.
B. The City finds that overhead lines and aboveground wire facilities and installations
in the right of way and other permitted areas adversely impact upon the public
use and enjoyment of such areas. Consistent with any general municipal undergrounding
policy or program now or hereafter arise, as a condition of Grantee’s new installation
or major maintenance or restoration construction activities of overhead facilities
under their franchise. Grantee agrees to coordinate its underground installation
and planning activities with the City’s underground plan and policies; provided,
in no event shall any third party beneficiary rights be implied or created.
C. Nothing in this section shall be permitted in conflict with section 6 of
Ch. 83, laws of 2000, and the provisions of this section shall be applied in
conformity thereto.
Section 11. Facilities for City use.
Consistent with ch. 83, laws of 2000, section 7, at such time when Grantee
is constructing, relocating, or placing ducts or conduits in public rights of
way, the Administering Officer may require Grantee to provide the City with
additional duct or conduit and related structures necessary to access the conduit
at mutually convenient locations. In such event, the parties further agree that
the City’s access points to City fiber in Grantee’s system shall be at least
sufficient to permit reasonable municipal access for municipal needs, provided
that:
A. The City enters into a contract with the Grantee consistent with RCW 80.36.150.
The contract rates to be charged should recover the incremental costs of Grantee.
If the City makes the additional duct or conduit and related access structures
available to any other entity for the purposes of providing telecommunications
or cable television service for hire, sale, or resale to the general public,
the rates to be charged, as set forth in the contract with the entity that constructed
the conduit or duct, shall recover at least the fully allocated costs of Grantee.
Grantee shall state both contract rates in the contract. The Administering Officer
shall inform the Grantee of the use, and any change in use, of the requested
duct or conduit and related access structures to determine the applicable rate
to be paid by the City.
B. Except as otherwise agreed by Grantee and the City, the City agrees that
the requested additional duct or conduit space and related access structures
will not be used by the City to provide telecommunications or cable television
service for hire, sale, or resale to the general public.
C. The City shall not require that the additional duct or conduit space be
connected to the access structures and vaults of the Grantee.
D. This section shall not affect the provision of an institutional network
by a cable television provider under federal law.
E. Grantee shall notify the City MIS Director at least 14 days prior to opening
a trench at any location to allow the City to exercise its options as provided
herein.
[cross ref., ch. 83, laws of 2000, section 7]
Section 12. Waiver, indemnity, no estoppel, no duty.
A. Grantee waives all claims, direct or indirect, for loss or liability, whether
for property damage, bodily injury or otherwise, against the City arising out
of Grantee’s enjoyment of franchise or permit privileges.
B. Grantee shall at all times fully defend, indemnify, and hold harmless the
City, its boards, officers, agents and employees harmless from any and all claims,
accidents, losses, or liabilities arising from or by reason of any intentional
or negligent act, occurrence or omission of the Grantee, whether singularly
or jointly with others, its representatives, permittees, employees or contractors,
in the construction, operation, use, or maintenance of any of the Grantee's
property or facilities, and/or enjoyment of any privileges granted by this franchise,
or because of Grantee's performance or failure to perform any franchise obligations.
Such indemnity includes costs of negotiation or defense, any other costs incurred,
and reasonable attorneys fees.
C. Grantee hereby waives immunity under Title 51 RCW in any cases involving
the City of Spokane and affirms that the City and Grantee have specifically
negotiated this provision, as required by RCW 4.24.115, to the extent it may
apply.
_________________________
(Grantee must initial)
D. Whenever any judgment is recovered against the City or any other indemnitee
for any such liability, costs, or expenses, such judgment shall be conclusive
against the Grantee, not only as to the amount of such damage, but as to its
liability, provided the Grantee has reasonable notice or actually knew, or should
have known, of the pendency of such suit. Under such circumstances, Grantee
may request the opportunity to defend the suit with legal counsel of its choice,
at its expense, said request not to be unreasonably denied.
F. No action, error, or omission, or failure to act by the City, its agents
or employees, in connection with administering its rights, duties, or regulatory
functions related to this ordinance shall be asserted by the Grantee, directly,
indirectly, or by way of seeking indemnification or as an assertion that the
City has waived or is estopped to assert any municipal right hereunder, against
the City, its agencies, boards, officers, agents, or employees.
G. It is not the intent of this ordinance to acknowledge, create, imply, or
expand any duty or liability of the City with respect to its role as permitting
authority, in the exercise of its police power or for any other purpose. Any
City duty nonetheless deemed created shall be a duty to the general public and
not to any specific party, group, or entity.
Section 13. Insurance.
A. During the term of this franchise, the Administering Officer, with the advice
of the City Risk Manager and City Attorney may review the relative risk of Grantee’s
installation and operations and direct changes to insurance and liability protections
as he/she may require. Unless so modified, Grantee shall furnish satisfactory
evidence of commercial general liability insurance and maintain the same in
good standing, with limits of at least five hundred thousand dollars ($500,000)
per occurrence and one million dollars ($1,000,000) aggregate, with the City
of Spokane named as an additional insured.
B. Any Grantee insurance policy or approved self insurance arrangements addressing
requirements of this franchise, including this section, section 12, or otherwise
because of Grantee’s negligent or intentional acts or omissions shall be primary
to any City insurance coverage for risks included in Grantee’s operations. On
or before June 1st of each year and at the time of granting this
franchise, Grantee shall file with the City Clerk, with Copy to the City Risk
Manager, proof of continued insurance coverage, at least in the amounts required
in this Section, through a Certificate of Insurance, including the additional
insured endorsement indicating City coverage required herein and a provision
that said coverage may not be cancelled or reduced without at least thirty (30)
days notice to the City, filed as above provided.
Section 14. Taxes, fees.
A. The parties understand that RCW 35.21.860 currently prohibits a municipal
franchise fee for permission to use the right of way for telephone business
purposes, as that activity is legally defined in that context. Grantee agrees
if this prohibition is removed, that the City may assess a reasonable franchise
fee, consistent with any applicable requirements of the 1996 federal Telecommunications
Act. In addition, Grantee acknowledges and accepts section 8 of Ch. 83, Laws
of 2000.
B. The parties further understand that RCW 35.21.870 currently limits the rate
of City tax upon telephone business activities to six percent (6%) of gross
receipts, unless a higher rate is approved by vote of the people. The parties
agree however that nothing in this franchise shall limit the City's power of
taxation, as may now or hereafter exist. Grantee stipulates that all of its
business activities now or hereafter conducted in the City of Spokane are taxable
activities subject to the six percent (6%) rate to be included in gross receipts
received, as imposed under the City's telephone business tax, adopted in chapter
8.10 SMC. This provision does not limit the City's power to amend chapter 8.10
SMC as may be permitted by law.
C. Grantee will pay the City all reasonable costs of granting, enforcement,
renewal, transfer or otherwise relating to administration of Grantee’s interests
or activities in the City of Spokane, as ordered by the Administering Officer,
whether as a result of accrued in house staff time or out-of-pocket expenses
or administrative costs, as well as expenses of retaining independent technical,
legal or financial consultants or advisors. Normally, if the expenses may be
anticipated to exceed five thousand dollars ($5,000) in any calendar year, the
Administering Officer gives the Grantee at least thirty (30) days prior notice
before incurring costs except in case of emergency or where there is a danger
to the public health and safety, or if Grantee has previously been notified
of the problem generating the costs. Grantee may seek review of such notice
within ten (10) days of notification to the Hearings Examiner as provided hereafter
in paragraph 15D. Such costs may further be based on receiving and approving
permits or licenses, inspecting plans and construction, or relating to the preparation
of a detailed statement pursuant to chapter 43.21 C RCW. Upon request of Grantee,
the City will submit proof of any charges or expenses incurred. To the extent
not included previously, Grantee may also request a written estimate from the
Administering Officer, in advance or costs planned to be expended by the City,
and Grantee may object to any cost as provided hereafter in the case of a challenged
cost billed by the City. Except as otherwise provided or pending review by the
Hearings Examiner, said fees must be paid within thirty (30) days or receipt
of the City’s billing. Grantee will pay all other taxes applicable to its operations
or activities within the City of Spokane, all such obligations also being a
condition of this franchise.
D. Grantee shall make all required payments in the form, intervals and manner
requested by the City Treasurer, and furnish him/her any information related
to his/her revenue collection functions reasonably requested. In case of audit,
the Treasurer may require Grantee to furnish a verified statement of compliance
with Grantee’s obligations or in response to any questions. Said certificate
may be required from an independent, certified public accountant, at Grantee’s
expense. All audits will take place on Grantee’s premises or offices furnished
by Grantee, which shall be a location in the City of Spokane. Grantee agrees,
upon request of the City Auditor, to provide copies of all documents filed with
any federal, state, or local regulatory agency, to be mailed to the City Auditor
on the same day as filed, postage prepaid, affection any of Grantee’s facilities
or business operations in the State of Washington.
Section 15. Franchise administration.
A. General administration of this franchise for the City is through the office
of the Administering Officer, an official appointed by the City Manager until
January 1, 2001, and thereafter by the Mayor. All questions of application,
interpretation, conflict or ambiguity arising out of or in connection with this
franchise are determined by the Administering Officer, except as otherwise specifically
stated.
B. The Administering Officer may promulgate rules, interpret provisions, resolve
conflicts and develop procedures needed to implement and enforce the franchise
provisions. Considering Sections 1, 2, 4, 16, and the other portions of this
franchise and Ch. 12.09 SMC, the Administering Officer may grant exceptions
or impose additional requirements relating to the public interest in particular
circumstances in the exercise of reasonable discretion, guided by but the same
shall not be defense to any franchise obligation unless set forth in writing
by the Administering Officer. Exceptions are revocable. The Administering Officer
may issue inspection or compliance orders with or without notice, together with
a compliance schedule as deemed necessary. For the performance of all franchise
obligations, Grantee understands that time is of the essence.
C. Should Grantee wish to challenge any obligation or requirement arising under
this franchise, Grantee must submit its complete file, with verification, showing
the basis of Grantee's position. The Administering Officer may also request
any additional information deemed necessary. Within twenty (20) days after receiving
Grantee's submittal and any requested information, the Administering Officer
shall issue a decision, and in the case of any challenged cost, a finding determining
the true and allowed amount of said cost. The Administering Officer may set
off any allowed cost against any other cost owing the City, whether under this
franchise or otherwise arising between Grantee and the City.
D. Grantee may appeal any decision of the Administering Officer to the City
Hearings Examiner by filing a written notice of appeal within ten (10) days
of the date of issuance by the Administering Officer, with copies also sent
to the Administering Officer and City Attorney. The notice must include a copy
of the decision and record submitted to the Administering Officer by Grantee.
The Hearing Examiner shall request the Administering Officer to submit any response
thereto within ten (10) days. After this, the Hearing Examiner shall schedule
an administrative hearing within twenty (20) days and decide the question submitted.
The Examiner's decision is final, PROVIDED, the parties agree it may be subject
to judicial review solely on the question of whether the decision is arbitrary
and capricious, clearly erroneous, or contrary to law, considering the record
presented to the Hearings Examiner.
Section 16. Acts discretionary, reservation of authority.
A. All City acts undertaken pursuant to this franchise shall be deemed
discretionary, guided by considerations of the public health, safety, esthetics
and convenience, sections 1, 2, 4, other provisions of this franchise and SMC
12.09.020. Grantee stipulates and agrees that this franchise is subject to the
City Charter of the City of Spokane. Grantee understands the Charter’s provisions
are incorporated herein, where applicable. Grantee agrees that the City reserves
all municipal powers now or hereafter granted by law, including without limitation
the power to tax and license, regulate activities (except those under exclusive
WUTC or FCC authority or as otherwise preempted) and land use, protect the public
health and safety, and regulate and control use of public right of way.
B. Should Grantee have any question as to a conflict or ambiguity with respect
to its rights under this franchise or applicable federal or state law, it agrees
to first submit the same first to the Administering Officer, with any supporting
materials or authorities. The Administering Officer may hold a hearing or refer
the matter to the Hearings Examiner for prompt resolution. The intent of this
provision is to provide a quick and efficient means of understanding an resolving
problems arising under this instrument, consistent with the objectives of any
general municipal regulatory program, as now or hereafter arising and other
applicable laws.
Section 17. No transfer, no stock to be issued.
A. This franchise shall not be sold, leased, assigned, or otherwise alienated
without the express consent of the City, expressed by ordinance of the City
Council passed for that purpose, and no rule of estoppel shall be invoked against
the City in case the City shall assert the invalidity of any attempted transfer
in violation of this section. The City agrees not to withhold consent where
Grantee demonstrates that the requested assignment is in the nature of a change
of name or a change in the nature of a reorganization or merger of or with an
entity controlled by, controlling, or under the common control of the Grantee,
there being no other change in the resulting entity's ability to meet its franchise
obligations.
B. The City reserves the right to invoke any or all provisions of this franchise
upon the Grantee’s successors or assigns, judgment creditors, or distributees
of facilities or property used in enjoyment of privileges conferred herein,
whether or not stated elsewhere, all without waiver of the right to withhold
consent not expressly given of any such transfer and/or require a new franchise.
C. Grantee will not permit installations by others in franchised areas, without
written approval from the Administering Officer. Such approval shall not be
in lieu of a franchise or other requirements of the City. Whether or not permitted,
Grantee remains responsible for all third party users permitted or allowed by
Grantee for compliance with this franchise. The intent of this provision is
so third parties who might otherwise desire to use Grantee’s facilities are
also required to comply with City requirements regarding franchises, as may
apply.
D. Grantee promises never to issue any capital stock on account of this franchise
or any permission granted under the terms of this ordinance, or the value thereof.
Grantee further agrees that it will not have any right to receive, upon a condemnation
proceeding or other negotiation by the City to acquire the properties of the
Grantee, and payment or award on account of this franchise or permission or
its value. Grantee waives all such claims against the City. The City shall have
no obligation to make any payment to Grantee or award in condemnation for any
other asset or interest of Grantee, except as required under the State of Washington
and United States Constitutions or as state or federal laws may preemptively
require.
Section 18. Additional.
A. A determination by a court of competent jurisdiction that any section
or portion of a section of this franchise is unenforceable or by the Administering
Officer, acting in good faith, that the City is exposed to substantial risk
of liability because of Grantee’s enjoyment of franchise privileges, may comprise,
at the City’s option, an expiration event, effective upon ninety (90) days’
written notice by the City to Grantee; PROVIDED, that under non-emergent circumstances,
Grantee shall first be afforded a right of cure of thirty (30) days written
notice. No notice is required in case of emergent conditions. Except as provided
heretofore, if any provision is held unlawful or unenforceable, in general or
in any specific circumstance, it shall not affect the remainder. The parties
agree also as an option in this case that affected portions of the franchise
may be renegotiated, and that such agreement may include severability of any
affected portion.
B. In the event of significant change in the law regulating Grantee’s activities
under this franchise or change in municipal authority to act under the terms
of the franchise, or significant change or advancement in technology governing
Grantee’s functions, the parties, upon mutual agreement, may renegotiate any
or all provisions of this franchise, but no obligation to do so is created by
this section.
C. This franchise may be revoked by the City Council by resolution in event
the Grantee or any of Grantee’s lessees or other users shall fail, after notice
or demand, to comply with any of the terms, conditions, or obligations imposed
upon the Grantee hereunder, but the City shall have no obligation to do so.
No forbearance by the City of any term of condition of this franchise in any
instance or at any time shall ever comprise a waiver or estoppel of the City’s
right to enforce said term condition.
D. Grantee may abandon and surrender its franchise to the City upon six (6)
months written notice to the Administering Officer, with copies thereof served
upon the City Manager and City Attorney. Abandonment shall be subject to acceptance
by the City, by a resolution of acceptance adopted by the City Council.
E. Upon abandonment, non renewal, revocation, or expiration of this franchise
and if no extension is granted, Grantee may, at the discretion of the Administering
Officer, be required in part or entirely, to remove all its fiber, wire, poles,
fixtures, and other facilities or equipment installed or used in the enjoyment
of the franchise. Alternatively, the Administering Officer may direct, limit
or condition Grantee’s removal, sale or continued use or abandonment of Grantee’s
facilities and equipment, either by agreement or through means of any other
lawful municipal power or right. The City may continue to invoke any provision
of this franchise against Grantee or any successor entity enjoying de
facto franchise privileges after revocation or expiration. The City may
take all other actions deemed necessary and proper by the City to accommodate
the transition to any successor as may be in the best interests of the City
and its residents.
The City should have a reasonable basis to declare an abandonment, such as
not providing service for a period of six months or longer, or a letter expressing
such intent from the Grantee.
F. This franchise is governed by the laws of the State of Washington, and
venue for any litigation arising out of or in connection with privileges extended
herein is stipulated to be in Spokane County.
Section 19. Effective date.
The provisions of this ordinance and grant of franchise permission shall be
effective as of ______________________, 2000, and remain in force and effect
for the remainder of the term, as specified in Section 3; PROVIDED, that it
shall not be effective unless and until the written acceptance of this ordinance
by the Grantee, signed by its proper officers, shall be filed with the City
Clerk prior to ____________________, 2000.
Passed the City Council___________________________,2000
_______________________________
MAYOR
Attest:___________________________
City Clerk
Approved as to form:
_________________________________
Assistant City Attorney
__________________________________________
ACCEPTANCE OF CITY FRANCHISE
Ordinance No. _________________, effective_____________________, 2001.
I, ___________________, am the President and Chief Executive Officer of Time
Warner Telecom of Washington, LLC, and am an authorized representative to accept
the above referenced City franchise ordinance on behalf of Time Warner Telecom
of Washington, LLC.
I certify that this franchise and all terms and conditions thereof are accepted
without qualification or reservation.
DATED this _______ day of __________________, 2001.
__________________________________
Witness: ___________________________
Local agent, address for process:
_______________________________________________________________________
voice telephone: ____________________
fax telephone: ______________________
email: _____________________________
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