HomeMy WebLinkAbout3040ORDINANCE NO.
AN ORDINANCE of the City of Kent,
Washington, granting unto Electric
Lightwave, Inc., a Delaware corporation,
its successors and assigns, the right,
privilege, authority and franchise for ten
years, to construct, maintain, operate,
replace and repair a telecommunications
system, in, across, over, along, under,
through and below certain designated public
rights-of-way and public properties of the
City of Kent, Washington.
THE CITY COUNCIL OF THE CITY OF KENT, WASHINGTON DOES
HEREBY ORDAIN AS FOLLOWS:
Section 1. Franchise Granted. Pursuant to RCW
35A.47.040, the City of Kent, a Washington municipal corporaticn
(hereinafter the "City"), hereby grants to Electric Lightwave,
Inc., a corporation organized under the laws of the State of
Delaware (hereinafter "ELI"), its heirs, successors, legal
representatives and assigns, subject to the terms and conditions
hereinafter set forth, a franchise for a period of ten years,
beginning on the effective date of this ordinance.
This franchise shall grant ELI the right, privilege and
authority to construct, operate, maintain, replace, and use all
necessary equipment and facilities thereto for a
telecommunications system, in, under, on, across, over, through,
along or below the public right-of-ways and public places located
in the City of Kent, as approved under City permits issued
pursuant to this franchise.
Section 2. Non -Exclusive Franchise Grant. This
franchise is granted upon the express condition that it shall not
in any manner prevent the City from granting other or further
franchises in, along, over, through, under, below or across any
of said right-of-ways, streets, avenues or all other public lands
and properties of every type and description. Such franchise
shall in no way prevent or prohibit the City from using any of
said roads, streets or other public properties or affect its
jurisdiction over them or any part of them, and the City shall
retain power to make all necessary changes, relocations, repairs,
maintenance, establishment, improvement, dedication of same as
the City may deem fit, including the dedication, establishment,
maintenance, and improvement of all new rights -of -ways,
thoroughfares and other public properties of every type and
description.
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C7i Section 3. Relocation of Telecommunications System
Facilities. ELI agrees and covenants at its sole cost and
expense, to protect, support, temporarily disconnect, relocate or
remove from any street any of its installations when so required
by the City by reason of traffic conditions or public safety,
dedications of new right-of-ways and the establishment and
improvement thereof, freeway construction, change or
establishment of street grade, or the construction of any public
improvement or structure by any governmental agency acting in a
governmental capacity, provided that ELI shall in all such cases
have the privilege to temporarily bypass, in the authorized
portion of the same street upon approval by the City, any section
of cable required to be temporarily disconnected or removed.
If the City determines that the project necessitates the
relocation of ELI's then existing facilities, the City shall:
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a) At least sixty (60) days prior to the commencement
of such improvement project, provide ELI with written notice
requiring such relocation; and
b) Provide ELI with copies of pertinent portions of
the plans and specifications for such improvement project and a
proposed location for ELI's facilities so that ELI may relocate
its facilities in other City right-of-way in order to accommodate
such improvement project.
Iry c) After receipt of such notice and such plans and
C specifications, ELI shall complete relocation of its facilities
at no charge or expense to the City so as to accommodate the
C� improvement project at least ten (10) days prior to commencement
of the project.
ELI may, after receipt of written notice requesting
a relocation of its facilities, submit to the City written
alternatives to such relocation. The City shall evaluate such
alternatives and advise ELI in writing if one or more of the
alternatives is suitable to accommodate the work which would
otherwise necessitate relocation of the facilities. If so
requested by the City, ELI shall submit additional information to
assist the City in making such evaluation. The City shall give
each alternative proposed by ELI full and fair consideration. In
the event the City ultimately determines that there is no other
reasonable alternative, ELI shall relocate its facilities as
otherwise provided in this Section.
The provisions of this Section shall in no manner
preclude or restrict ELI from making any arrangements it may deem
appropriate when responding to a request for relocation of its
facilities by any person or entity other than the City, where the
facilities to be constructed by said person or entity are not or
will not become City -owned, operated or maintained facilities,
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provided that such arrangements do not unduly delay a City
construction project.
Section 4. ELI's Maps and Records. After construction
is complete, and as a condition of this franchise, ELI shall
provide to the City upon request and at no cost, a copy of all as
built plans, maps and records.
Section 5. Excavations. During any period of
relocation or maintenance, all surface structures, if any, shall
Q be erected and used in such places and positions within said
Ll� public right-of-ways and other public properties so as to
interfere as little as possible with the free passage of traffic
and the free use of adjoining property, and ELI shall at all
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C7 times post and maintain proper barricades and comply with all
applicable safety regulations during such period of construction
as required by the ordinances of the City or the laws of the
State of Washington, including RCW 39.04.180 for the construction
of trench safety systems.
Whenever ELI shall excavate in any public right-of-way
or other public property for the purpose of installation, con-
struction, repair, maintenance or relocation of its cable or
equipment, it shall apply to the City for a permit to do so and
shall give the City at least three (3) working days notice
thereof. In no case shall any work commence within any public
right-of-way or other public property without a permit, except as
otherwise provided in this franchise ordinance. During the
progress of the work, ELI shall not unnecessarily obstruct the
passage or proper use of the right-of-way, and shall file as
built plans or maps with the City showing the proposed and final
location of the cable.
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If either the City or ELI shall at any time plan to make
excavations in any area covered by this franchise and as
described in this section, the party planning such excavation
shall afford the other, upon receipt of a written request to do
so, an opportunity to share such excavation, PROVIDED THAT: (1)
such joint use shall not unreasonably delay the work of the party
causing the excavation to be made; (2) such joint use shall be
arranged and accomplished on terms and conditions satisfactory to
both parties; and (3) either party may deny such request for
safety reasons.
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Section 6. Restoration after Construction. ELI shall,
after abandonment approved under Section 13 herein, or
installation, construction, relocation, maintenance, or repair of
cable/facilities within the franchise area, restore the surface
f� of the right-of-way or public property to at least the condition
same was in immediately prior to any such installation,
construction, relocation, maintenance or repair. All concrete
encased monuments which have been disturbed or displaced by such
work shall be restored pursuant to all federal, state and local
standards and specifications. ELI agrees to promptly complete
all restoration work and to promptly repair any damage caused by
such work to the franchise area or other affected area at its
sole cost and expense.
Section 7. Emergency Work -- Permit Waiver. In the
event of any emergency in which any facilities located in or
under any street, breaks, are damaged, or if ELI's construction
area is otherwise in such a condition as to immediately endanger
the property, life, health or safety of any individual, ELI shall
immediately take the proper emergency measures to repair its
facilities, to cure or remedy the dangerous conditions for the
protection of property, life, health or safety of individuals
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without first applying for and obtaining a permit as required by
this franchise. However, this shall not relieve ELI from the
requirement of obtaining any permits necessary for this purpose,
and ELI shall apply for all such permits not later than the next
succeeding day during which the Kent City Hall is open for
business.
In the event that ELI fails or refuses to promptly take
the actions directed by the City, or fails to fully comply with
such directions, or if emergency conditions exist which require
immediate action, the City may enter upon the property and take
such actions as are necessary to protect the public, the adjacent
streets, or street utilities, or to maintain the lateral support
thereof, or actions regarded as necessary safety precautions; and
ELI shall be liable to the City for the costs thereof.
Section 9. Recovery of Costs. ELI shall pay a filing
fee for the City's administrative costs in drafting and
processing this franchise agreement and all work related thereto.
ELI shall further be subject to all permit fees associated with
activities undertaken through the authority granted in this
franchise ordinance or under the laws of the City. Where the
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Section 8. Dangerous Conditions, Authority
for City to
Abate.
Whenever construction, installation or excavation
of
facilities authorized by this franchise has caused
or contributed
to a condition that appears to substantially impair
the lateral
support
of the adjoining street or public place, or
endangers the
public,
an adjoining public place, street utilities
or City
property, the Public Works Director may direct ELI,
at ELI's own
Cp
expense,
to take actions to protect the public, adjacent
public
places,
City property or street utilities; and such
action may
include
compliance within a prescribed time.
In the event that ELI fails or refuses to promptly take
the actions directed by the City, or fails to fully comply with
such directions, or if emergency conditions exist which require
immediate action, the City may enter upon the property and take
such actions as are necessary to protect the public, the adjacent
streets, or street utilities, or to maintain the lateral support
thereof, or actions regarded as necessary safety precautions; and
ELI shall be liable to the City for the costs thereof.
Section 9. Recovery of Costs. ELI shall pay a filing
fee for the City's administrative costs in drafting and
processing this franchise agreement and all work related thereto.
ELI shall further be subject to all permit fees associated with
activities undertaken through the authority granted in this
franchise ordinance or under the laws of the City. Where the
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City incurs costs and expenses for review, inspection or
supervision of activities undertaken through the authority
granted in this franchise or any ordinances relating to the
subject for which a permit fee is not established, ELI shall pay
such costs and expenses directly to the City. In addition to the
above, ELI shall promptly reimburse the City for any and all
costs it reasonably incurs in response to any emergency involving
ELI's cable and facilities.
Section 10. City's Reservation of Rights. Pursuant to
Section 35.21.860 of the Revised Code of Washington (RCW), the
City is precluded from imposing a franchise fee on a telephone
business as defined in RCW 82.04.065, except for administrative
Qj expenses or any tax authorized by RCW 35.21.865. ELI hereby
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warrants that its operations as authorized under this franchise i
are those of a telephone business as defined in RCW 82.04.065.
As a result, the City will not impose a franchise fee under the
terms of this ordinance, other than as described herein.
However, the City hereby reserves its right to impose a
franchise fee on ELI for purposes other than to recover its
administrative expenses or taxing, if ELI's operations as
authorized by this franchise change so that not all uses of the
franchise are those of a 'telephone business' as defined in RCW
82.04.065; or, if statutory prohibitions on the imposition of
such fees are removed. In the former instance, the City reserves
its right to require that ELI obtain a separate franchise for its
change in use, which franchise may include provisions intended to
regulate ELI's operations, as allowed under applicable law.
Section 11. Indemnification. ELI hereby releases,
covenants not to bring suit and agrees to indemnify, defend and
hold harmless the City, its officers, employees, agents and
7
representatives from any and all claims, costs, judgments, awards
or liability to any person, including claims by ELI's own
employees to which ELI might otherwise be immune under Title 51
RCW, arising from injury or death of any person or damage to
property of which the negligent acts or omissions of ELI, its
agents, servants, officers or employees in performing this
franchise are the proximate cause. ELI further releases,
covenants not to bring suit and agrees to indemnify, defend and
hold harmless the City, its officers and employees from any and
all claims, costs, judgments, awards or liability to any person
C (including claims by ELI's own employees, including those claims
to which ELI might otherwise have immunity under Title 51 RCW)
arising against the City solely by virtue of the City's ownership
or control of the rights-of-way or other public properties, by
virtue of ELI's exercise of the rights granted herein, or by
C� virtue of the City's permitting ELI's use of the City's
rights-of-way or other public property based upon the inspection
or lack of inspection of work performed by ELI, its agents and
servants, officers or employees in connection with work
authorized on the City's property or property over which the City
has control, pursuant to this franchise or pursuant to any other
permit or approval issued in connection with this franchise.
This covenant of indemnification shall include, but not be
limited by this reference, claims against the City arising as a
result of the negligent acts or omissions of ELI, its agents,
servants, officers or employees in barricading, instituting
trench safety systems or providing other adequate warnings of any
excavation, construction, or work in any public right-of-way or
other public place in performance of work or services permitted
under this franchise.
Inspection or acceptance by the City of any work
performed by ELI at the time of completion of construction shall
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not be grounds for avoidance of any of these covenants of
indemnification. Said indemnification obligations shall extend
to claims which are not reduced to a suit and any claims which
may be compromised prior to the culmination of any litigation or
the institution of any litigation.
In the event that ELI refuses the tender of defense in
any suit or any claim, said tender having been made pursuant to
the indemnification clauses contained herein, and said refusal is
subsequently determined by a court having jurisdiction (or such
other tribunal that the parties shall agree to decide the
matter), to have been a wrongful refusal on the part of ELI, then
O ELI shall pay all of the City's costs for defense of the action,
including all reasonable expert witness fees and reasonable
® attorneys' fees and the reasonable costs of the City, including
C� reasonable attorneys' fees of recovering under this
indemnification clause.
Should a court of competent jurisdiction determine that
this franchise agreement is subject to RCW 4.24.115, then, in the
event of liability for damages arising out of bodily injury to
persons or damages to property caused by or resulting from the
concurrent negligence of ELI and the City, its officers,
employees and agents, ELI's liability hereunder shall be only to
the extent of ELI's negligence. It is further specifically and
expressly understood that the indemnification provided herein
constitutes ELI's waiver of immunity under Title 51 RCW, solely
for the purposes of this indemnification. This waiver has been
mutually negotiated by the parties.
The provisions of this Section shall survive the
expiration or termination of this franchise agreement.
Section 12. Insurance. ELI shall procure and maintain
for the duration of the franchise, insurance against claims for
injuries to persons or damages to property which may arise from
or in connection with the exercise of the rights, privileges and
authority granted hereunder to ELI, its agents, representatives
or employees. ELI shall provide a copy of such insurance policy
to the City for its inspection prior to the adoption of this
franchise ordinance, and such insurance shall evidence:
Any deductibles or self-insured retentions must be
declared to and approved by the City. Payment of deductible or
self-insured retention shall be the sole responsibility of ELI.
The insurance obtained by ELI shall name the City, its
officers, employees and volunteers as insureds with regard to
activities performed by or on behalf of ELI. The coverage shall
contain no special limitations on the scope of protection
afforded to the City, its officers, officials, employees or
volunteers. In addition, the insurance policy shall contain a
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1. Automobile Liability insurance with limits no less
than $1,000,000 Combined Single Limit per accident
714
7n
for bodily injury and property damage; and
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2. Commercial General Liability insurance policy
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written on an occurrence basis with limits no less
than $1,000,000 Combined Single Limit per
occurrence and $1,000,000 aggregate for personal
injury, bodily injury and property damage.
Coverage shall include but not be limited to:
blanket contractual; products/completed operations;
broad form property; explosion, collapse and
underground (XCU); and Employer's Liability.
Any deductibles or self-insured retentions must be
declared to and approved by the City. Payment of deductible or
self-insured retention shall be the sole responsibility of ELI.
The insurance obtained by ELI shall name the City, its
officers, employees and volunteers as insureds with regard to
activities performed by or on behalf of ELI. The coverage shall
contain no special limitations on the scope of protection
afforded to the City, its officers, officials, employees or
volunteers. In addition, the insurance policy shall contain a
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clause stating that coverage shall apply separately to each
insured against whom claim is made or suit is brought, except
with respect to the limits of the insurer's liability. ELI's
insurance shall be primary insurance as respects the City, its
officers, officials, employees and volunteers. Any insurance
maintained by the City, its officers, officials, employees or
volunteers shall be excess of ELI's insurance and shall not
contribute with it. The insurance policy or polices required by
this clause shall be endorsed to state that coverage shall not be
suspended, voided, canceled by either party, reduced in coverage
or in limits except after thirty (30) days' prior written notice
by certified mail, return receipt requested, has been given to
the City.
Any failure to comply with the reporting provisions of
the policies required herein shall not affect coverage provided
to the City, its officers, officials, employees or volunteers.
Section 13. Abandonment of ELI's Cable or
Telecommunication System Facilities. No cable, section of cable
or facility laid in the street by ELI may be abandoned by ELI
without the express written consent of the City. Any plan for
abandonment or removal of ELI's cable and facilities must be
first approved by the Public Works Director, and all necessary
permits must be obtained prior to such work.
Section 14. Commencement of Construction. Construction
of the facilities contemplated by this franchise ordinance shall
commence no later than July 1, 1992, provided that such time
limit shall not apply to delays caused by acts of God, strikes or
other occurrences over which ELI has no control, or eminent
domain litigation.
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Section 15. Bond. Before undertaking any of the work,
installation, improvements, construction, repair, relocation or
maintenance authorized by this franchise, ELI shall, upon the
request of the City, furnish a bond executed by ELI and a
corporate surety authorized to do a surety business in the State
of Washington, in a sum to be set and approved by the Director of
Public Works as sufficient to ensure performance of ELI's
obligations under this franchise. The bond shall be conditioned
so that ELI shall observe all the covenants, terms and conditions
and faithfully perform all of the obligations of this franchise,
® and to erect or replace any defective work or materials
discovered in the replacement of the City's streets or property
within a period of two years from the date of the replacement and
acceptance of such repaired streets by the City.
Section 16. Modification. The City and ELI hereby
reserve the right to alter, amend or modify the terms and
conditions of this franchise upon written agreement of both
parties to such alteration, amendment or modification.
Section 17. Forfeiture and Revocation. If ELI
willfully violates or fails to comply with any of the provisions
of this franchise, or through willful or unreasonable negligence
fails to heed or comply with any notice given ELI by the City
under the provisions of this franchise, then ELI shall, at the
election of the Kent City Council, forfeit all rights conferred
hereunder and this franchise may be revoked or annulled by the
Council after a hearing held upon reasonable notice to ELI. The
City may elect, in lieu of the above and without any prejudice to
any of its other legal rights and remedies, to obtain an order
from the superior court having jurisdiction compelling ELI to
comply with the provisions of this Ordinance and to recover
12
damages and costs incurred by the City by reason of ELI's failure
to comply.
Section 18. Remedies to Enforce Compliance. In
addition to any other remedy provided herein, the City reserves
the right to pursue any remedy to compel or force ELI and/or its
successors and assigns to comply with the terms hereof, and the
B pursuit of any right or remedy by the City shall not prevent the
R?' City from thereafter declaring a forfeiture or revocation for
in
O breach of the conditions herein.
C?
Section 19. City Ordinances and Regulations. Nothing
herein shall be deemed to direct or restrict the City's ability
to adopt and enforce all necessary and appropriate ordinances
regulating the performance of the conditions of this franchise,
including any reasonable ordinance made in the exercise of its
police powers in the interest of public safety and for the
welfare of the public. The City shall have the authority at all
times to control by appropriate regulations the location,
elevation, and manner of construction and maintenance of any
fiber optic cable or cable facilities by ELI, and ELI shall
promptly conform with all such regulations, unless compliance
would cause ELI to violate other requirements of law.
Section 20. Cost of Publication. The cost of the
publication of this Ordinance shall be borne by ELI.
Section 21. Acceptance. After the passage and approval
of this Ordinance and within sixty days after such approval, this
franchise shall be accepted by ELI by its filing with the City
Clerk an unconditional written acceptance thereof. Failure of
ELI to so accept this franchise within said period of time shall
be deemed a rejection thereof by ELI, and the rights and
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privileges herein granted shall, after the expiration of the
sixty day period, absolutely cease and determine, unless the time
period is extended by ordinance duly passed for that purpose.
Section 22. Survival. All of the provisions,
conditions and requirements of Sections 3, Relocation of
Telecommunication Facilities; 5, Excavation; 6 Restoration after
® Construction; 8, Dangerous Conditions; 11, Indemnification; and
�13, Abandonment of ELI's Facilities, of this franchise shall be
in addition to any and all other obligations and liabilities ELI
q.4 may have to the City at common law, by statute, or by contract,
W and shall survive the City's franchise to ELI for the use of the
areas mentioned in Section 1 herein, and any renewals or
extensions thereof. All of the provisions, conditions,
regulations and requirements contained in this franchise
Ordinance shall further be binding upon the heirs, successors,
executors, administrators, legal representatives and assigns of
ELI and all privileges, as well as all obligations and
liabilities of ELI shall inure to its heirs, successors and
assigns equally as if they were specifically mentioned wherever
ELI is named herein.
Section 23. Severability. If any section, sentence,
clause or phrase of this Ordinance should be held to be invalid
or unconstitutional by a court of competent jurisdiction, such
invalidity or unconstitutionality shall not affect the validity
or constitutionality of any other section, sentence, clause or
phrase of this franchise Ordinance. In the event that any of the
provisions of this franchise are held to be invalid by a court of
competent jurisdiction, the City reserves the right to reconsider
the grant of this franchise and may amend, repeal, add, replace
or modify any other provision of this franchise, or may terminate
this franchise.
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Section 24. Assignment. This agreement may not be
assigned or transferred without the written approval of the City,
except ELI may freely assign this Agreement in whole or in part
to a parent, subsidiary, or affiliated corporation or as part of
any corporate financing, reorganization or refinancing. In the
case of transfer or assignment as security by mortgage or other
security instrument in whole or in part to secure indebtedness,
such consent shall not be required unless and until the secured
party elects to realize upon the collateral. ELI shall provide
prompt, written notice to the City of any such assignment.
Section 25. Notice. Any notice or information required
or permitted to be given to the parties under this franchise
agreement may be sent to the following addresses unless otherwise
specified:
City of Kent Earl Kamsky
Director of Public Works Vice President
220 4th Avenue So. Electric Lightwave, Inc.
Kent WA 98032 Post Office Box 4959
Vancouver WA 98662
Section 26. Effective Date. This Ordinance has first
been submitted to the Kent City Attorney; granted an approving
vote of at least a majority of the City Council at a regular
meeting after initial introduction on day 5 , 1992;
and been published at least once in a newspaper of general
circulation in the City of Kent. \This franchise ordinance shall
be effective thirty (30) days after execution.
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DAN KELLEHER, MAYOR
ATTEST:
BRENDA JACOBER, CITY FLERK
APPROVED AS TO FORM:
Ordinance No.3 0q6) passed by the City Council of the City of
Kent, Washington, and approved by the Mayor of the City of Kent
as hereon indicated.
ELI. ORD
16
(SEAL)
BRENDA JACOBER, CITY CLERK
ROGE A. BOVICH, CITY __ATTOR-49Y
LO
0
�
71't�
PASSED the day of
, 1992.
APPROVED the day of
��i"`r�
, 1992.
PUBLISHED the;, f day of
r/ '` °
, 1992.
r J
I hereby certify
that this
is a true copy of
Ordinance No.3 0q6) passed by the City Council of the City of
Kent, Washington, and approved by the Mayor of the City of Kent
as hereon indicated.
ELI. ORD
16
(SEAL)
BRENDA JACOBER, CITY CLERK