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Spokane Model Franchise Agreement
Not an official copy.
City of Spokane
Model TELECOMMUNICATIONS (NONCABLE) FRANCHISE
Ordinance No. C-______________
An ordinance granting a non-exclusive franchise to use the public right of
way to provide noncable telecommunications service to the public, to____________________________________,
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 ___________________________________________ as Grantee, hereafter
also "Grantee". Grantee is an ___________ Corporation whose home office is ______________________________________________,
telephone _____________________; email___________________; fax__________________________.
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 in ch. 83, laws of 2000, section 1 (5), 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 ch.
83, laws of 2000, section 1 (3), and is not in lieu of a specific use permit
as referenced under section 1 (8) thereof. 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, but to the extent such other areas may be outside the right of way
as defined by section 1 (5), the protections of ch. 83, laws of 2000, as to
Grantee are specifically disclaimed. In addition, Grantee's use is also subject
to conditions now or hereafter recognized 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.
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 _______________________. 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, a 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:______________________________________________
_______________________________________________________________________________
local agent, address for process:______________________________________________________
voice telephone:__________________________________________
fax telephone:____________________________________________
email:___________________________________________________
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 safe and reliable service to the public at
rates that are fair and reasonable, in accordance with all applicable federal,
state, and local laws. Grantee promises to comply with any other applicable
federal, state and local laws, including municipal regulatory ordinances, resolutions
of the City Council and orders of the Administering Officer relating to use
of the right of way or otherwise to the application, enforcement or interpretation
of this ordinance, as may now or hereafter arise. 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.
C. 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" means the road bed and
road area, street and sidewalk paving, curbing, associated drainage facilities,
bike paths and other construction or improvements pertaining to public travel.
It further includes municipal water and sewer lines or other municipal utility
facilities, as well as municipal traffic signal, street lighting and communications
facilities in the right of way or easements for municipal use. It further includes
skywalks, street trees, plants, shrubs, lawn and other ornamental or beautification
installations owned by the City in the right of way or other ways open for public
travel and accepted for municipal management or control as such. The definition
is intended to encompass any municipal physical plant, equipment, fixtures,
appurtenances or other facilities located in or near the right of way or easements
for municipal use.
D. 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.
E. 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.
F. 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 of way on Grantee’s behalf are similarly
well informed.
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.
C. Procedures to expedite approvals
i. Where Grantee requires action from the City on a use permit as referenced
in section 3 (2) (c), ch. 83, laws of 2000 of the State of Washington in less
than thirty (30) days, it shall make application therefore to the responsible
municipal official, with a copy to the Administering Officer, or if no official
is designated, simply to the Administering Officer. Grantee shall state in writing
the request for expedited action and the full circumstances, including the reasons
why a shortened time period is necessary and the time within which action is
requested, except in case of emergency, verbal contact with the Administering
Officer with a writing complying with this section within 1 business day of
contact is permitted. Grantee shall reference this Section 5 C, and a reference
to the City of Spokane Ordinance number for this number.
ii. The responsible official shall consult with the Administering Officer
and a decision made on the request, in the sound discretion of the responsible
official, or in absence of such designation, by the Administrating Officer.
Grantee is responsible for any municipal expenses, loss or liability in accommodating
the request for expedited approval, including staff overtime or outside support
needed to expedite approvals.
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, also referenced in subsections B-F of this
section. 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.
B. The Administering Officer may require Grantee to relocate permitted facilities
within the right of way, as defined in ch. 83, laws of 2000, section 1 (5),
when reasonably necessary for construction, alteration, repair, or improvement
of the right of way for purposes of public welfare, health, or safety, giving
such notice thereof as may be required by law in any means reasonably calculated
to inform Grantee, including posting the same on the City’s website, publication
in the Official Gazette, or other means. In calculating the date that relocation
must be completed, the Administering Officer shall consult with affected parties
as may be required by law and consider the extent of facilities to be relocated,
the services requirements, and the construction sequence for the relocation,
within the City's overall project construction sequence and constraints, to
safely complete the relocation.
C. Grantee shall complete the relocation by the date specified by the Administering
Officer, unless extended by said official after a showing by Grantee that the
relocation cannot be completed by the date specified using best efforts and
meeting safety and service requirements.
D. Grantee may not seek reimbursement for its relocation expenses from the
City when the City requests relocation under subsection B of this section except:
1. Where Grantee has paid for the relocation cost of the same facilities in
the right of way, as defined, at the request of the City within the past five
years, Grantee's share of the cost of relocation will be paid by the City when
the City is requesting the relocation;
2. Where aerial to underground relocation of authorized facilities in the
right of way as defined is required by the City under subsection B of this section,
where Grantee has any ownership share of the aerial supporting structures, the
additional incremental cost of underground compared to aerial relocation, or
as provided for in the approved tariff if less, will be paid by the City requiring
relocation; and
3. Where the City requests relocation under subsection B of this section in
the right of way as defined solely for aesthetic purposes, unless otherwise
agreed to by the parties.
4. 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 without regard to
municipal request.
E. As provided by state law, where a project referenced in subsection B of
this section is primarily for private benefit, the private party or parties
shall reimburse the cost of relocation in the same proportion to their contribution
to the costs of the project. Grantee understands however that the City has no
obligation to collect such reimbursement and enforcement of any such rights
shall be at Grantee’s sole expense and liability. On submission of the issue
by stipulation of all parties, the Administering Officer may arbitrate any dispute
referenced in this subsection E or refer the matter to the Hearings Examiner,
provided, costs of the same as may be assessed by the City shall be borne by
the participants. Grantee is not otherwise precluded from recovering costs associated
with relocation required under subsection B of this section consistent with
applicable state or federal law.
F. The Administering Officer may require the relocation of facilities at Grantee's
expense at any location in the event of an unforeseen emergency that creates
an immediate threat to the public safety, health, or welfare.
[B.-F. cross ref., ch. 83, laws of 2000, section 6]
G. Where the City determines to abandon or vacate any right or 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 affected by Grantee's construction;
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 or without dark fiber, as directed by the Administering Officer,
making such additional conduit available to others under fair and reasonable
terms and conditions, including full reimbursement of Grantee's costs, unless
Grantee shows such requirement is unreasonable because such requirement operates
to impose unfair an burden or expense upon Grantee.
C. Should Grantee fail or delay in performing any obligation here or elsewhere
stated, or where the Administering Officer deems necessary to protect the right
of way or other permitted areas 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, 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, either 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 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 right of either
party to appeal the decision to superior court within 30 days on the basis of
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 laws.
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,
the edition being that in current 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 reasonably inspect and approve all of Grantee's
installations, now or hereafter, and Grantee shall pay all charges for inspection,
but no action or inaction shall create any duty or obligation by the City to
inspect or approve any installation. 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 the federal Telecommunications Act of 1996.
[cross reference, 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
interests 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 the 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.
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 developed, the City
reserves the right to require Grantee's participation in municipally imposed
undergrounding or related requirements as may now or hereafter arise, as a condition
of Grantee's new installation or major maintenance or restoration construction
activities of overhead facilities under this 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.
A. Consistent with ch. 83, laws of 2000, section 7, at such time when Grantee
is constructing, relocating, or placing ducts or conduits in right of way or
other permitted areas, 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 municipal access for municipal needs,
provided that, where required by law:
1. 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.
2. 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.
3. The City shall not require that the additional duct or conduit space be
connected to the access structures and vaults of the Grantee.
B. This section shall not affect the provision of an institutional network
by a cable television provider under federal law.
[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.
E. Grantee understands it must accept the right of way or any other permitted
areas "as is", and the City has made no assessment and makes no representations
or guarantees as to 1) the suitability or safety of its location of facilities,
2) the safety or security of any other facilities, or 3) possible hazards or
dangers arising from other uses of the right of way or permitted by the City,
other users, or anyone else. Grantee agrees to protect the City from any claims
for refund or damages claimed by its customers or other third parties because
of loss or interruption of service arising from damage or disruption to Grantee’s
facilities placed in the right of way or other areas subject to this instrument.
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 or, in the event the City is self insured, any
Grantee policy shall afford first dollar protection 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, as defined in the applicable
context, 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
tax, adopted in chapter 8.10 SMC, and as may now or hereafter be lawfully amended.
C. Grantee will pay the City all reasonable costs of granting, enforcement,
or as necessary to review the provisions of this franchise, 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. Such obligation
further includes municipal fees related to receiving and approving permits or
licenses, inspecting plans and construction, or relating to the preparation
of a detailed statement pursuant to chapter 43.21C RCW. Upon request of Grantee,
the City will submit proof of any charges or expenses incurred. For any project
or time frame, Grantee can also request a written estimate from the Administering
Officer, in advance of costs planned to be expended by the City, and Grantee
may object to any costs as provided hereafter in the case of a challenged cost
billed by the City. Except as otherwise provided, said fees must be paid within
thirty (30) days of 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 within 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, affecting 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 only where 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, the Administering Officer may grant exceptions or impose additional
requirements in particular circumstances in the exercise of reasonable discretion,
but the same shall not be a defense to any franchise obligation unless set forth
in writing by the Administering Officer. All exceptions shall be revocable.
The Administering Officer may issue inspection orders, compliance orders, with
a compliance schedule and terms thereof, with or without notice, and failure
to adhere to the terms thereof shall be a violation of this franchise. For the
performance of all franchise obligations, Grantee agrees that time is of the
essence.
C. Should Grantee wish to challenge any cost billed, 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 Hearings Examiner shall request the Administering Officer to submit any
response thereto within ten (10) days. After this, the Hearings 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, contrary to law, or not supported by substantial
evidence, 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 and other provisions of this franchise. 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 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 and 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, any payment or award on account of this franchise or permission or
its value. Grantee waives all such claims against the City, and also any claims
for any municipal revision, action, inaction, curtailment, suspension, revocation,
or change in municipal policy or regulation relating to Grantee's franchised
activities. 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 the City Attorney or court of competent jurisdiction
that any section or portion of a section of this franchise is unenforceable,
illegal, preempted, waived or otherwise ineffective, or that the City is exposed
to substantial risk or liability because of Grantee’s enjoyment of franchise
privileges, shall 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 or 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 or 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.
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.
_______________________________________
M A Y O R
Attest: ____________________________________
City Clerk
Approved as to form:
_____________________________________________
Assistant City Attorney
_________________________________________________
ACCEPTANCE OF CITY FRANCHISE
Ordinance No. ________________, effective _______________________, 2000.
I, , am the President and Chief Executive Officer of _________________________________,and
am an authorized representative to accept the above referenced City franchise
ordinance on behalf of ______________________________________.
I certify that this franchise and all terms and conditions thereof are accepted
without qualification or reservation.
DATED this ______ day of ___________________________, 2000.
________________________________________
Witness: _______________________________
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