HomeMy WebLinkAbout4253oRDTNANcE No. qL53
AN ORDINANCE of the city council of the city of Kent,
Washington, granting to MCIMETRO Access Transmission
Services Corp. dlbla Verizon Access Transmission Services,
a Delaware corporation, and its successors and assigns, the
right, privilege, authority and nonexclusive franchise for ten
years, to construct, maintain, operate, replace, and repair a
telecommunications network, in, across, over, along, under,
through, and below certain designated public rights-of-way
of the City of Kent, Washington.
RECITALS
A. MCIMETRO Access Transmission Services Corp. d/bla Verizon
Access Transmission Services, a Delaware corporation ("Franchisee") has
requested that the city council grant it a nonexclusive franchise to
construct, maintain and operate a telecommunications network in the
city's right-of-way; and
B. The city council has the authority to grant franchises for the
use of its streets and other public properties pursuant to RCW 35A.47.040.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT,
WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
ORDINANCE
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SECTION 7, - Definitions. In addition to terms otherwise defined
herein, the following definitions shall apply generally to the provisions of
this Franchise.
1.1 Director means the Public Works Director or his/her designee
L.2 Emergency means a condition posing an imminent threat to
property, life, health, or safety of any person or entity.
1.3 Facilities mean one or more elements of Franchisee's
telecommunications network, with all necessary cables, wires, conduits,
ducts, pedestals, antennas, electronics, and other necessary
appurtenances; except that new utility poles or towers for overhead wires,
cabling or antennas are specifically excluded. Facilities shall not include:
microcells or small cells. Equipment enclosures with air conditioners or
other noise generating equipment are also excluded from Facilities, to the
extent any such equipment is located in zoned residential areas of the
City.
L.4 Rights-of-Way (singular "Right-of-Way") as used in this Franchise,
means the surface of, and the space above and below, âñy public street,
highway, freeway, bridge, land path, alley, court, boulevard, sidewalk,
wêy, lane, public way, drive, circle, pathways, spaces, or other public
right-of-way, and over which the City has authority to grant permits,
licenses or franchises for use thereof, or has regulatory authority
thereover. Right-of-Way does not include railroad right-of-way, airports,
harbor areas, buildings, parks, poles, conduits, open spaces, nature traíls,
poles, dedicated but un-opened right-of-way, environmentally sensitive
areas and any land, facilities, or property owned, maintained, or leased by
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the City in its governmental or proprietary capacity or as an operator of a
utility.
SECTION 2. - Franchise Granted.
2.t Pursuant to RCW 35A.47.040, the City of Kent, a Washington
municipal corporation ("City"), hereby grants to Franchisee, its successors,
legal representatives and assigns, subject to the terms and conditions set
forth below, a non-exclusive Franchise for a period of ten (10) years,
beginning on the effective date of this ordinance, set forth in Section 41.
This Franchise supersedes and replaces in its entirety the Temporary
License entered into by the City and Franchisee on June t5,20L7, except
that any and all permits issued pursuant to the Temporary License shall
remain valid and be deemed issued pursuant to this Franchise.
2.2 This Franchise grants Franchisee the right, privilege, and authority
to construct, operate, maintain, replace, acquire, sell, lease, and use all
necessary Facilities for a telecommunications network iñ, under, oñ,
across, over, through, along or below the public Rights-of-Ways located in
the City, and any areas added to the corporate limits of the City during the
term of this Franchise (the "Franchise Area"). All Facilities require City
permits issued pursuant to Section 8.3.
2.3 This Franchise shall not prevent the City from granting other or
further franchises in, along, over, through, under, below, or across any
Rights-of-Way. This Franchise shall not prevent or prohibit the City from
using any Rights-of-Way or affect its jurisdiction over any Rights-of-Way
or any part of Right-of-Way. The City shall retain power to make all
necessary changes, relocations, repairs, maintenance, establishment,
improvement, dedication of Right-of-Way as the City deems fit, including
the dedication, establishment, maintenance, and improvement of all new
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Rights-of-Way, thoroughfares, and other public properties of every type
and description.
SECTION 3, - Grant of Authoríty Limited.
3.1 The authority granted by this Franchise is a limited, non-exclusive
authorization to occupy and use the City's Rights-of-Way. Franchisee
represents that it currently provides or intends to provide the following
services within the City: data transport, internet access, and local and
long distance voice services, including IP voice services, cell site fronthaul
and backhaul and Facilities leasing to third parties (the "Services"). If
Franchisee desires to expand the Services provided within the City, it shall
provide written notification of the addition of such services prior to the
addition of the service or within a reasonable time (not to exceed ninety
(90) days) after such services are offered; except that Franchisee may not
offer Cable Services as that term is defined in 47 U.S.C. 5 522(6).
3.2 Nothing within this Franchise shall be construed to grant or convey
any right, title, or interest in the Rights-of-Way of the City to Franchisee
other than for the purpose of providing the Services.
3.3 This Franchise does not and shall not convey any right to Franchisee
to install its Facilities on, under, over, across, or to otherwise use City
owned or leased properties of any kind outside of the incorporated area of
the City or to install Facilities on, under, over, across, or otherwise use
any City owned or leased property other than the City's Rights-of-Way.
This Franchise does not convey any right to Franchisee to install its
Facilities on, under, over, or across any facility or structure owned by a
third-party without such written approval of the third-party.
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3.4 Franchisee is authorized without prior City approval, to offer or
provide capacity or bandwidth to its customers consistent with this
Franchise provided:
a. Franchisee at all times retains exclusive control over its
telecommunications system, Facilities and Services and remains
responsible for constructing, installing, and maintaining its Facilities
pursuant to the terms and conditions of this Franchise;
b. Franchisee may not grant rights to any customer or lessee
that are greater than any rights Franchisee has pursuant to this Franchise;
c. Such customer or lessee shall not be construed to be a third-
party beneficiary under this Franchise; and
d. No such customer or lessee that accesses Franchisee's
telecommunications Facilities within the City limits may use the
telecommunications system or Services for any purpose not authorized by
this Franchise, unless that customer has a franchise agreement with the
City and then the customer may use Franchisee's Facilities or Services
consistent with the terms of its franchise.
SECTtrON 4. - Location of Facilities. Franchisee may locate its
Facilities anywhere within the Franchise Area consistent with the City's
Design and Construction Standards and subject to the City's applicable
permit requirements. Franchisee shall not be required to amend this
Franchise to construct or acquire Facilities within the Franchise Area.
SECTION 5, - Relocation of Facilities
5.1 Franchisee agrees to protect, support, temporarily disconnect,
relocate, or remove from any Rights-of-Way any of its Facilities when
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reasonably required by the City, including but not limited to the following
reasons:
a To improve traffic conditions or public safety;
b. Dedications of new Rights-of-Way and the establishment and
improvement thereof, widening and improvement of existing Rights-of-
Wuy, street vacations, freeway construction, change or establishment of
street grade;
c. The construction of any public improvement or structure by
any governmental agency or as otherwise necessary for the operations of
the City or other governmental entity; and
5.2 Except as otherwise provided by law, the costs and expenses
associated with relocations required pursuant to Section 5.1 shall be borne
by Franchisee. Nothing contained within this Franchise shall limit
Franchisee's ability to seek reimbursement for relocation costs when
authorized by RCW 35.99.060.
5.3 Upon request of the City and in order to facilitate the design of City
street and Right-of-Way improvements, Franchisee agrees, at its sole cost
and expense, to locate, and if determined necessary by the City, to
excavate and expose its Facilities for inspection so that the Facilities'
location may be taken into account in the improvement design. The
decision as to whether any Facilities need to be relocated in order to
accommodate the City's improvements shall be made by the City upon
review of the location and construction of Franchisee's Facilities. The City
shall provide Franchisee at least fourteen (14) days'written notice prior to
any excavation or exposure of Facilities. Franchisee shall be responsible
for any delays due to failure to locate its facilities when requested, except
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that Franchisee shall not be responsible for delays or damages due to
circumstances beyond the control of the Franchisee.
5.4 If the City determines that the relocation of Franchisee's existing
Facilities is necessary, the City shall:
a. At least forty-five (a5) days prior to commencing the project,
provide Franchisee with written notice requiring such relocation; except
that in the event of an emergency, the City shall give Franchisee written
notice as soon as practicable; and
b. At least forty-five (45) days prior to commencing the project,
provide Franchisee with copies of pertinent portions of the plans and
specifications for the improvement project and at the City's discretion, a
proposed location for Franchisee's Facilities so that Franchisee may
relocate its Facilities in other City Rights-of-Way in order to accommodate
such improvement project; and
c. After receipt of such notice and such plans and specifications,
Franchisee shall complete relocation of its Facilities at least ten (10) days
prior to commencement of the City's project at no charge or expense to
the City, except as otherwise provided by law. Relocation shall be
accomplished in such a manner as to accommodate the City's project and
is subject to permit requirements in Section 8.3. In the event of an
emergency, Franchisee shall relocate its Facilities within the time period
specified by the City.
5.5 Franchisee ffiêy, after receipt of written notice requesting a
relocation of its Facilities, submit to the City written alternatives to such
relocation. Such alternatives must be submitted to the City at least
twenty (20) days prior to commencement of the project. The City shall
evaluate the alternatives and advise Franchisee in writing if one or more of
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the alternatives are suitable to accommodate the work that would
otherwise necessitate relocation of the Facilities. If so requested by the
City, Franchisee shall submit at its sole cost and expense additional
information to assist the City in making such evaluation. The City shall
give each alternative proposed by Franchisee full and fair consideration. If
the City ultimately determines that there is no other reasonable or feasible
alternative, Franchisee shall relocate its Facilities as otherwise provided in
this Section 5.
5.6 The Franchisee may make its own appropriate arrangements in
response to a request for relocation of its Facilities from a person or entity
other than the City, so long as any improvements being constructed are
not or will not become City-owned, operated or maintained; except that
any such arrangements shall not unduly delay a City construction project.
5.7 If any person has obtained permission from the City to use any
Right-of-Way for the purpose of moving any building, upon thirty (30)
days' written notice from the City, Franchisee, shall raise, remove, or
relocate to another part of the Right-of-Way, any of Franchisee's Facilities
that may obstruct the removal of such building, at the expense of the
person desiring to move the building.
5.8 If Franchisee, after making all commercially reasonable efforts,
fails, neglects, or refuses to remove or relocate its Facilities as directed by
the City, the City may perform such work or cause it to be done, and the
City's costs shall be paid by Franchisee pursuant to Section 16.3 and
Section t6.4.
5.9 Franchisee shall indemnify, hold harmless, and pay the costs of
defending the City, in accordance with the provisions of Section 18.3,
against any and all claims, suits, actions, damages, or liabilities for delays
on City construction projects caused by or arising out of the failure of
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Franchisee to locate, remove or relocate its Facilities in a timely manner;
provided, that Franchisee shall not be responsible for damages due to
delays caused by circumstances beyond the reasonable control of
Franchisee or the negligence, willful misconduct, or unreasonable delays
by the City or delays by any unrelated third party.
5.10 The provisions of this Section 5 shall survive the expiration or
termination of this Franchise during such time as Franchisee continues to
have Facilities in the Rights-of-Way. Additionally, the provisions of this
Section 5 are applicable only so long as the Right-of-Way is owned and/or
controlled by the City.
SECTION 6. - Undergrounding of Facilities
6.1 Franchisee shall install all wires, cables or other facilities
underground (unless specifically authorized by permit of the City) in the
manner required by the City as described in Kent City Code Chapter 7.LO.
Unless otherwise permitted by the City, Franchisee shall also underground
its Facilities in all new developments and subdivisions and in any
development or subdivision where utilities are currently underground.
Except as specifically authorized by the City, Franchisee shall not erect
poles or run or suspend wires, cables, or any other facilities on existing
poles.
6.2 Franchisee acknowledges and agrees that if the City does not
require the undergrounding of its Facilities at the time of a permit
application, the City ffiây, at any time in the future, require that the
Franchisee to underground its Facilities at Franchisee's expense.
6.3 If the City requires the undergrounding of the aerial utilities in any
area of the City, Franchisee shall underground its aerial Facilities in the
manner specified by the City, concurrently with and in the area of the
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other affected utilities. The location of any relocated and underground
utilities shall be approved by the City. Where other utilities are present
and involved in the undergrounding project, Franchisee shall only be
required to pay its fair share of common costs borne by all utilities, in
addition to the costs specifically attributable to the undergrounding of
Franchisee's own Facilities. "Common costs" shall include necessary costs
not specifically attributable to the undergrounding of any particular facility,
such as costs for common trenching and utility vaults. "Fair share" shall
be determined for a project on the basis of the number of conduits of
Franchisee's Facilities being undergrounded in comparison to the total
number of conduits of all other utility facilities being undergrounded. This
Section 6.3 shall only apply to the extent Franchisee has existing aerial
Facilities in the City or is specifically authorized to build aerial Facilities by
the City.
6.4 Within forty-eight (48) hours (excluding weekends and City-
recognized holidays) following a request from the City, Franchisee shall, at
its sole cost and expense, locate underground Facilities by marking the
location on the ground. The location of the underground Facilities shall be
identified using orange spray paint, unless otherwise specified by the City,
and within two feet of the actual location.
6.5 Franchisee shall be entitled to reasonable access to open utility
trenches, provided that such access does not interfere with the City's
placement of utilities or increase the City's costs. Franchisee shall pay the
City's actual costs resulting from providing Franchisee access to an open
trench, including without limitation the pro rata share of the costs of
access to an open trench and any costs associated with the delay of the
completion of a public works project. Franchisee shall reimburse the City
in accordance with the provisions of Section 16.3 and Section t6.4.
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6.6 Franchisee shall not remove any underground cable or conduit that
requires trenching or other opening of the Rights-of-Way along the
extension of cable to be removed, except as provided in this Section 6.6.
Franchisee may remove any underground cable from the Right-of-Way
that can be removed without trenching or other opening of the Right-of-
Way along the extension of cable to be removed, or if otherwise permitted
by the City. Franchisee may remove any underground cable from the
Rights-of-Way where reasonably necessary to replace, upgrade, or
enhance its Facilities, or pursuant to Section 5. Franchisee must apply
and receive a permit, pursuant to Section 8.3, prior to any such removal
of underground cable or conduit from the Right-of-Way and must provide
as-built plans and maps pursuant to Section 7.1.
6.7 When the City determines, in the City's sole discretion, that
Franchisee's underground Facilities must be removed in order to eliminate
or prevent a hazardous condition, Franchiseg shall remove the Facilities at
Franchisee's sole cost and expense.
6.8 Underground cable and conduit in the Right-of-Way that is not
removed will be deemed abandoned and title thereto shall vest in the City
at no cost to the City. The City may also pursue any available remedy set
forth in Section 5 and Section 20.
6.9 The provisions of this Section 6 shall survive the expiration,
revocation, or termination of this Franchise during such time as Franchisee
continues to have Facilities in the Rights-of-Way. Nothing in this Section 6
shall be construed as requiring the City to pay any costs of
undergrounding any of Franchisee's Facilities.
SECTION 7. - Maps and Records.
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7.L No later than sixty (60) days after construction is complete,
Franchisee shall provide the City with accurate copies of as-built plans and
maps stamped and signed by a professional land surveyor having a form
and content reasonably prescribed by the Director. These plans and maps
shall be provided at no cost to the City, and shall include hard copies and
digital files in AutoCAD or other industry standard readable formats that
are acceptable to the City. The Franchisee shall also provide any as-built
plans, maps and records (digital and/or hard copies) within ten (10) days
following a request from the City. Franchisee shall warrant the accuracy
of all plans, maps and as-builts provided to the City.
7.2 Within thirty (30) days of a written request from the City,
Franchisee shall furnish the City with information sufficient to
demonstrate: 1) that Franchisee has complied with all applicable
requirements of this Franchise; and 2) that all taxes, including but not
limited to sales, utility and/or telecommunications taxes due the City in
connection with Franchisee's Services and Facilities have been properly
collected and paid by Franchisee.
7.3 , All books, records, maps, and other documents maintained by
Franchisee with respect to its Facilities within the Rights-of-Way shall be
made available for inspection by the City at reasonable times and
intervals; except that nothing in this Section 7.3 shall be construed to
require Franchisee to violate state or federal law regarding customer
privacy. This Section 7.3 shall not be construed to require Franchisee to
disclose proprietary or confidential information without adequate
safeguards for its confidential or proprietary nature. Unless otherwise
prohibited by State or federal law, nothing in this Section 7.3 shall be
construed as permission to withhold relevant customer data from the City
that the City requests in conjunction with a tax audit or review; except
that Franchisee may redact identifying information such as names, street
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addresses (excluding City and zip code), Social Security Numbers, or
Employer Identification Numbers related to any confidentiality agreements
Franchisee has with third parties.
7.4 Franchisee acknowledges that information submitted to the City is
subject to the Washington Public Records Act, chapter 42.56 RCW, and is
open to public inspection, subject to any exceptions permitted by law
(unless an exemption applies).
7.5 Franchisee may identify documents submitted to the City that
Franchisee believes are non-disclosable, such as trade secrets. Franchisee
shall be responsible for clearly and conspicuously identifying the work as
confidential or proprietary, and shall provide a brief written explanation as
to why such information is confidential and how it may be treated as such
under State or federal law. The City agrees to keep confidential any
proprietary or confidential books or records to the extent perm¡tted by
law. If the City receives a public records request under chapter 42.56
RCW or similar law for the disclosure of the documents or any part of the
documents Franchisee has designated as confidential, trade secret, or
proprietary, the City shall provide Franchisee with written notice of the
request, including a copy of the request prior to disclosure so that
Franchisee can take appropriate steps to protect its interests. Nothing in
this Section 7.5 prohibits the City from complying with chapter 42.56 RCW
or any other applicable law or court order requiring the release of public
records, and the City shall not be liable to Franchisee for compliance with
any law or court order requiring the release of public records. The City
will not assert an exemption from disclosure or production on Franchisee's
behalf. The City shall comply with any injunction or court order obtained
by Franchisee that prohibits the disclosure of any such confidential
records. If a higher court overturns an injunction or court order and such
higher court action is or has become final and non-appealable, Franchisee
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shall reimburse the City for any fines or penalties imposed for failure to
disclose such records within forty-five (a5) days of a request from the
City, unless additional time is reasonably necessary under the
circumstances and is agreed to by the parties.
SECTION 8. - Work in the Rights-of-Way.
8.1 During any period of relocation, construction or maintenance, all
work performed by Franchisee or its contractors shall be accomplished in a
safe and workmanlike manner and only after obtaining permits pursuant
to Section 8.3. Franchisee shall minimize interference with the free
passage of traffic and the free use of adjoining property, whether public or
private. Franchisee shall at all times post and maintain proper traffic
control to warn and direct the road users. Traffic control devices include
but are not limited to barricades, traffic cones, traffic drums, tubular
markers, flags, certified flaggers, lights, flares, and other measures as
required for the safety of all members of the general public. Franchisee
shall also 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 requirement of
trench safety systems for trench excavations.
8.2 Franchisee shall, at its own expense, maintain its Facilities in a safe
condition, in good repair, and in a manner suitable to the City.
Additionally, Franchisee shall keep its Facilities free of debris and anything
of a dangerous, noxious, or offensive nature or which would create a
hazard or undue vibration, heat, noise, or any interference with City
services. The provisions of this Section B shall survive the expiration of
this Franchise during such time as Franchisee continues to have Facilities
in the Rights-of-Way.
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8.3 Whenever Franchisee shall commence work in any public Rights-of-
Way for the purpose of excavation, installation, construction, repair,
maintenance, or relocation of its cable or equipment, it shall apply to the
City for a permit to do so and, in addition, shall give the City at least ten
(10) working days prior notice of íts intent to commence work in the
Rights-of-Way. All work by Franchisee in the area shall be performed in
accordance with applicable City standards and specifications and
warranted for a period of two (2) years, normal wear and tear excepted.
In no case shall any work commence within any Rights-of-Way without a
permit, except as otherwise provided in this Franchise.
8.4 If either the City or Franchisee plans to make excavations in any
area covered by this Franchise and as described in this Section 8.4, the
party planning such excavation shall afford the other, an opportunity to
share such excavation, PROVIDED THAT:
a. The joint use shall not unreasonably delay the work of the
party causing the excavation to be made;
b. The joint use shall be arranged and accomplished on terms
and conditions satisfactory to both parties; and
The initiating party may deny such request for safety
reasons.
8.5 Except for emergency situations, Franchisee shall give at least
seven (7) days' prior written notice of intended construction to residents
within 300 feet of the construction area. This notice shall contain the
dates, contact number, nature and location of the work to be performed; a
door hanger is permissible. At least twenty-four (24) hours prior to
entering private property or streets or public easements adjacent to or on
such private property, Franchisee shall physically post a notice on the
c
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property indicating the nature and location of the work to be performed; a
door hanger is permissible. Nothing in this Franchise gives the Franchisee
the right to enter onto private property without the permission of the
private property owner,
8.6 Franchisee shall make a good faith effort to comply with the
property owner/resident's preferences, if any, on location or placement of
underground installations (excluding aerial cable lines utilizing existing
poles and existing cable paths), consistent with sound engineering
practices. Following performance of the work, Franchisee shall restore the
private property as nearly as possible to its condition prior to construction,
except for any change in condition not caused by Franchisee. Any
disturbance of landscaping, fencing, or other improvements on private
property caused by Franchisee's work shall, at the sole expense of
Franchisee, be promptly repaired and restored to the reasonable
satisfaction of the property owner/resident.
8.7 Franchisee shall at all times comply with the safety requirements
contained in Section 11 and all applicable federal, State and local safety
requirements.
8.8 Upon prior written notice from the City, Franchisee shall meet with
the City and other franchise holders to schedule and coordinate
construction in the Rights-of-Way. To minimize public inconvenience,
disruption or damage, the Franchisee shall coordinate all construction
locations, activities, and schedules as directed by the City.
8.9 Franchisee acknowledges that it shall be solely responsible for
compliance with all marking and lighting requirements of the FAA and the
FCC with respect to Franchisee's Facilities. Franchisee shall indemnify and
hold the City harmless from any fines or other liabilities caused by
Franchisee's failure to comply with these requirements. Should Franchisee
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or the City be cited by either the FCC or the FAA because the Facilities or
Franchisee's equipment is not in compliance and should Franchisee fail to
cure the conditions of noncompliance within the timeframe allowed by the
citing agency, the City may elect any or all of the following remedies: (1)
cure the conditions of noncompliance at Franchisee's expense, and collect
all reasonable costs from Franchisee in accordance with the provisions of
Section 16.3 and Section L6.4; (2) collect damages pursuant to Section
22.2; and (3) revoke this Franchise pursuant to Section 23. Franchisee
shall not be liable for any claims, damages or liability resulting from City's
acts in effecting the cure on behalf of Franchisee.
SECTION 9. - Trees
9.1 Franchisee may trim trees upon and overhanging on public ways,
streets, alleys, sidewalks, and other public places of the City so as to
prevent the branches of any such trees from coming in contact with
Franchisee's Facilities. The right to trim trees in this Section 9.1 only
applies to the extent necessary to protect above ground Facilities.
Franchisee shall ensure that its tree trimming activities protect the
appearance, integrity, and health of the trees to the extent reasonably
possible. Franchisee shall be responsible for all debris removal from such
activities.
9.2 Franchisee shall prepare and maintain a tree trímming schedule to
ensure compliance with this Section 9.2 and to avoid exigent
circumstances where tree cutting, trimming, or removal is necessary to
protect the public safety or continuity of service. Franchisee shall submit
the tree trimming schedule to the Director. Franchisee shall notify and
obtain written approval from the City before completing any trimming,
except in an emergency.
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9.3 All tree trimming shall be completed at the expense of Franchisee.
Franchisee may contract for such services, however, City approval is
required prior to commencing such trimming. Nothing in this Franchise
grants Franchisee any authority to act on behalf of the City, to enter upon
any private property, ot to trim any tree or natural growth not owned by
the City. Franchisee shall be solely responsible and liable for any damage
to any third parties' trees or natural growth caused by Franchisee's
actions. Franchisee shall indemnify, defend and hold harmless the City
from claims of any nature arising out of any act or negligence of
Franchisee with regard to tree and/or natural growth trimming, damage,
and/or removal. Franchisee shall reasonably compensate the City or the
property owner for any damage caused by trimming, damage, or removal
by Franchisee. Except in an emergency, all tree trimming must be
performed under the direction of an arborist certified by the International
Society of Arboriculture, unless otherwise approved by the Director.
SECTION 70. - One Call Locator Service. Prior to doing any work
in the Rights-of-Way, the Franchisee shall follow established procedures,
including contacting the Utility Notification Center in Washington and
comply with all applicable State statutes regarding the One Call Locator
Service pursuant to chapter 19.122 RCW. The City shall not be liable for
any damages to Franchisee's Facilities or for interruptions in service to
Franchisee's customers that are a direct result of Franchisee's failure to
accurately locate its Facilities within the prescribed time limits and
guidelines established by the One Call Locator Service regardless of
whether the City issued a permit.
SECTION 77. - Safety Requirements.
11.1 Franchisee shall, at all times, employ professional care and shall
install and maintain and use industry-standard methods for preventing
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failures and accidents that are likely to cause damage, injuries, or
nuisances to the public. All structures and all lines, equipment, and
connections irì, over, under, and upon the Rights-of-Ways, wherever
situated or located, shall at all times be kept and maintained in a safe
condition. Franchisee shall comply with all federal, State, and City safety
requirements, rules, regulations, laws, and practices, and employ all
necessary devices as required by applicable law during the construction,
operation, maintenance, upgrade, repair, or removal of its Facilities. By
way of illustration and not limitation, Franchisee shall also comply with the
applicable provisions of the National Electric Code, National Electrical
Safety Code, FCC regulations, and Occupational Safety and Health
Administration (OSHA) Standards. Upon reasonable notice to Franchisee,
the City reserves the general right to inspect the Facilities to evaluate if
they are constructed and maintained in a safe condition.
Lt.z If an unsafe condition or a violation of Section 11.1 is found to
exist, and becomes known to the City, the City agrees to give Franchisee
written notice of any such condition and afford Franchisee a reasonable
opportunity to repair the condition. If Franchisee fails to start to make the
necessary repairs and alterations within the time frame specified in such
notice (and pursue the cure to completion), then the City may make such
repairs or contract for them to be made. All costs, including
administrative costs, incurred by the City in repairing any unsafe
conditions shall be borne by Franchisee and reimbursed to the City
pursuant to Section 16.3 and Section L6.4.
11.3 Additional safety standards include:
a. Franchisee shall endeavor to maintain all equipment lines and
facilities in an orderly manner, including, but not limited to, the removal of
all bundles of unused cable.
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b. All installations of equipment, lines, and ancillary facilities
shall be installed in accordance with industry-standard engineering
practices and shall comply with all federal, State, and local regulations,
ordinances, and laws.
c. The Franchisee shall protect any opening or obstruction in the
Rights-of-Way or other public places made by Franchisee in the course of
its operations with adequate barriers, fences, or boarding, the bounds of
which, during periods of dusk and darkness, shall be clearly marked and
visible at night.
SECTION 72, Work of Contractors and Subcontractors.
Franchisee's contractors and subcontractors shall be licensed and bonded
in accordance with State law and the City's ordinances, regulations, and
requirements. Work by contractors and subcontractors is subject to the
same restrictions, limitations, and conditions as if the work were
performed by Franchisee. Franchisee shall be responsible for all work
performed by its contractors and subcontractors and others performing
work on its behalf as if the work were performed by Franchisee and shall
ensure that all such work is performed in compliance with this Franchise
and applicable laws.
SECTION 73. - Provision of Conduit.
13.1 The City may request that Franchisee provide the City with a single
two (2) inch conduit, and related structures necessary to access the
conduit pursuant to RCW 35.99.070 in one or more of the locations where
Franchisee constructs, installs or relocates Facilities underground.
Franchise shall install a locator wire and cap off all conduit ends. Conduit
ends shall be marked on the as-built plans and maps required in Section
7.
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L3.2 Except in emergency situations, Franchisee shall provide the
Director with at least thirty (30) days' advance written notice of any
construction, relocation, or placement of ducts or conduits in the Rights-
of-Way and provide the City an opportunity to request that Franchisee
provide the City with additional duct or conduit, and related structures
necessary to access the conduit pursuant to RCW 35.99.070. This
notification shall be in addition to the requirement to apply for and obtain
permits pursuant to Section 8.3.
SECTION 74, - Restoration after Construction.
L4.L Franchisee shall repair any damage to the Rights-of-Way, and the
property of any third party, after installation, construction, relocation,
maintenance, or repair of its Facilities or after abandonment approved
pursuant to Section 20, within ten (10) days following the date of any of
these activities at Franchisee's sole cost and expense. Franchisee shall
restore the Rights-of-Way and the surface of the Rights-of-Way to the
same or better condition as it was immediately prior to any installatíon,
construction, relocation, maintenance or repair by Franchisee. Franchisee
shall not be responsible for any changes to the Rights-of-Way not caused
by Franchisee or anyone doing work for Franchisee. No survey monument
may be removed (or replaced) without a professional land surveyor
obtaining a permit in advance from the Washington State Department of
Natural Resources and submitting a copy of the approved permit to the
City. Franchisee shall restore all concrete encased monuments that will be
disturbed or displaced by such work to City standards and specifications.
The Director shall have final approval of the condition of the Rights-of-Way
after repair or restoration by the Franchisee.
t4.2 Franchisee agrees to complete all restoration work to the Franchise
Area or other affected area at its sole costs and expense and according to
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the time and terms specified in the construction permit issued by the City.
Franchisee also agrees to repair any damage caused by work to the
Franchise Area within fourteen (14) days unless otherwise approved by
the Director. All work by Franchisee pursuant to this Franchise shall be
performed in accordance with applicable City standards and warranted for
a period of two (2) years and for undiscovered defects as is standard and
customary for this type of work.
L4.3 If conditions (e.9., weather) make the complete restoration required
under Section 14 impracticable, Franchisee shall temporarily restore the
affected Right-of-Way or property at its sole cost and expense. Franchisee
shall promptly undertake and complete the required permanent
restoration as soon as conditions no longer make such permanent
restoration i m practica ble.
t4.4 If Franchisee does not repair a Right-of-Way or an improvement in
or to a Right-of-Way within the time prescribed by this Section 14, the
City may repair the damage and shall be reimbursed its actual cost within
sixty (60) days of submitting an itemized invoice to Franchisee in
accordance with the provisions of Section 16.3 and Section t6.4. The City
may also bill Franchisee for any expenses associated with the inspection of
such restoration work.
t4.5 The provisions of this Section 14 shall survive the expiration or
termination of this Franchise so long as Franchisee continues to have
Facilities in the Rights-of-Way and has not completed all restoration to the
City's standards.
SECTION 75. - Emergencies.
15.1 In the event of any emergency in which any of Franchisee's
Facilities located in or under any street endangers the property, life,
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health, or safety of any person, entity or the City, or if Franchisee's
construction area is otherwise in such a condition as to immediately
endanger the property, life, health, or safety of any person, entity or the
City, Franchisee shall immediately repair its Facilities and cure or remedy
the dangerous conditions for the protection of property, life, health, or
safety of any person, entity or the City, without first applying for and
obtaining a permit as required by this Franchise. The Franchisee shall
apply for any necessary permits on the next day Kent City Hall is open for
business.
L5.2 Whenever the 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, an adjoining public place, street utilities, City pÈoperty,
Rights-of-Way, or private property (collectively "Endangered Property") or
endangers the public, the Director may direct Franchisee, at Franchisee's
own expense, to take reasonable action to protect the Endangered
Property or the public within a prescribed time. If Franchisee fails or
refuses to promptly take the actions directed by the City, or fails to fully
comply with such directions, or if an emergency situation exists that
requires immediate action before the City can timely contact Franchisee to
request Franchisee effect the immediate repair, the City may enter upon
the Endangered Property and take such reasonable actions as are
necessary to protect the Endangered Property or the public. Franchisee
shall be liable to the City for the costs of any such repairs in accordance
with the provisions of Sections 16.3 and 16.4.
15.3 The City retains the right and privilege to cut or move any Facilities
located within the Rights-of-Way of the City, as the City may determine to
be necessary, appropriate, or useful in response to any public health or
safety emergency. The City shall notify Franchisee by telephone promptly
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upon learning of the emergency and shall exercise reasonable efforts to
avoid an interruption of Franchisee's operations.
L5.4 The City shall not be liable for any damage to or loss of Facilities
within the Rights-of-Way as a result of or in connection with any public
works, public improvements, construction, grading, excavation, filling, oF
work of any kind in the Rights-of-Way by or on behalf of the City, unless
directly and proximately caused by the gross negligence or willful acts of
the City, its employees, contractors, or agents. The City shall further not
be liable to Franchisee for any direct, indirect, or any other such damages
suffered by any person or entity of any type as a dírect or indirect result of
the City's actions under this Section 15 unless caused by the gross
negligence or willful acts of the City, its employees, contractors, or agents.
15,5 Franchisee shall promptly reimburse the City in accordance with the
provisions of Section 16.3 and Section 16.4 for any and all costs the City
reasonably incurs in response to any emergency situation involving
Franchisee's Facilities, to the extent said emergency is not the fault of the
City. The City agrees to simultaneously seek reimbursement from any
franchisee or permit holder who caused or contributed to the emergency
situation.
SECTION 76, - Recovery of Costs
16.1 Franchisee shall reimburse the City for its actual and documented
administrative, legal, and other costs incurred in drafting and processing
this Franchise and all work related thereto pursuant to RCW
35.2L.860(lxb), in an amount not to exceed $6,000.00. No construction
permits shall be issued for the installation of Facilities authorized until the
City has received this reimbursement.
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L6.2 Franchisee shall further be subject to all permit fees associated with
activities undertaken through the authority granted in this Franchise or
under the laws of the City. Where the City incurs costs and expenses for
review, inspection, or supervision of activities, including but not limited to
reasonable fees associated with attorneys, consultants, City Staff and City
Attorney time, undertaken through the authority granted in this Franchise
or any ordinances relating to the subject for which a permit fee is not
established, Franchisee shall pay such costs and expenses directly to the
City in accordance with the provisions of Section 16,3.
16.3 Franchisee shall reimburse the City within sixty (60) days of
submittal by the City of an itemized billing for reasonably incurred costs,
itemized by project, for Franchisee's proportionate share of all actual,
identified expenses incurred by the City in planning, constructing,
installing, repairing, altering, or maintaining any City facility as the result
of the presence of Franchisee's Facilities in the Rights-of-Way. Such costs
and expenses shall include but not be limited to Franchisee's proportionate
cost of City personnel assigned to oversee or engage in any work in the
Rights-of-Way as the result of the presence of Franchisee's Facilities in the
Rights-of-Way. Such costs and expenses shall also include Franchisee's
proportionate share of any time spent reviewing construction plans in
order to either accomplish the relocation of Franchisee's Facilities or the
routing or rerouting of any utilities so as not to interfere with Franchisee's
Facilities.
L6.4 The time of City employees shall be charged at their respective rate
of salary, including overtime if applicable, plus benefits and reasonable
overhead. Any other costs will be billed proportionately on an actual cost
basis. All billings will be itemized so as to specifically identify the costs
and expenses for each project for which the City claims reimbursement. A
charge for the actual costs incurred in preparing the billing may also be
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included in said billing. At the City's option, the billing may be on an
annual basis, but the City shall provide the Franchisee with the City's
itemization of costs, in writing, at the conclusion of each project for
information purposes.
SECTION 77, - City's Reservatíon of Rlghts.
L7.L Franchisee represents that its Services, as authorized under this
Franchise, are a telephone business as defined in RCW 82.16.010, or that
it is a service provider as used in RCW 35.2t.860 and defined in RCW
35.99.010. As a result, the City will not impose franchise fees under the
terms of this Franchise. The City reserves its right to impose a franchise
fee on Franchisee if Franchisee's Services as authorized by this Franchise
change such that the statutory prohibitions of RCW 35.21.860 no longer
apply or if statutory prohibitions on the imposition of such fees are
otherwise removed. The City also reserves its right to require that
Franchisee obtain a separate franchise for a change in use, which
franchise may include provisions intended to regulate Franchisee's
operations as allowed under applicable law. Nothing contained within this
Franchise shall preclude Franchisee from challenging any such new fee or
separate agreement under applicable federal, State, or local laws.
L7.2 Franchisee acknowledges that certain of its operations within the
City may constitute a telephone business subject to the utility tax imposed
pursuant to the Kent City Code Chapter 3.18. Franchisee understands
that RCW 35.2L.870 currently limits the rate of city tax upon telephone
business activities to six percent (60/o) of gross income (as that term is
defined in Kent City Code Chapter 3.18), unless a higher rate is otherwise
approved. Franchisee stipulates and agrees that certain of its business
activities may be subject to taxation as a telephone business and that
Franchisee shall pay to the City the rate applicable to such taxable
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services under Kent City Code Chapter 3.18, and consistent with state and
federal law. The parties agree however, that nothing in this Franchise
shall limit the City's power of taxation as may exist now or as later
imposed by the City. This provision does not limit the City's power to
amend KentCity Code Chapter 3.18 as may be permitted by law. Nothing
in this Section L7 is intended to alter, amend, modify or expand the taxes
and fees that may lawfully be assessed on Verizon's business activities
under this franchise under applicable law.
SECTION 78, - Indemnification.
18.1 General Indemnification. Franchisee shall indemnify, defend, and
hold the City, its officers, officials, boards, commissions, agents, and
employees, harmless from any action or claim for injury, damage, loss,
liability, cost or expense, including court and appeal costs and reasonable
attorneys' fees or reasonable expenses, arising from any casualty or
accident to Person or property, includihg, without limitation, damages in
any way arising out of, or by reason of, any construction, excavation,
operation, maintenance, reconstruction, or any other act done under this
Franchise, by or for Franchisee, its agents, or its employees, or by reason
of any neglect or omission of Franchisee. Franchisee shall consult and
cooperate with the City while conducting its defense of the City under this
Franchise. Franchisee shall not be obligated to indemnify the City to the
extent of the City's negligence or willful misconduct.
L8.2 Indemnification for Relocation. Franchísee shall defend, indemnify,
and hold the City harmless for any damages, claims, additional costs or
reasonable expenses and attorneys' fees, including contractor construction
delay damages, assessed against or payable by the City and arising out of
or resulting from Franchisee's negligence or willful misconduct contributing
to Franchisee's failure to remove, adjust, or relocate any of its facilities in
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the Rights-of-Way in accordance with any relocation required by the City,
provided that Franchisee shall not be liable under this section in the event
Franchisee's failure to remove, adjust or relocate any of its facilities is the
result of a force majeure event or events beyond the control of
Franchisee.
18.3 Procedures and Defense. If a claim or action arises, the City or any
other indemnified party shall promptly notify Franchisee of such claim or
action and tender the defense of the claim or action to Franchisee, which
defense shall be at Franchisee's expense. The City's failure to so notify
and request indemnification shall not relieve Franchisee of any liability that
Franchisee might have, except to the extent that such failure prejudice
Franchisee's ability to defend such claim or suit. The City may participate
in the defense of a claim, but if Franchisee provides a defense at
Franchisee's expense then Franchisee shall not be liable for any attorneys'
fees, expenses, or other costs the City may incur if it chooses to
participate in the defense of a claim, unless and until separate
representation as described in Section 18.5 is required. In that event, the
provisions of Section 18.5 shall govern Franchisee's responsibility for City's
attorney's fees, expenses, or other costs. In any event, Franchisee may
not agree to any settlement of claims affecting the City without the City's
consent, such consent not to be unreasonable withheld or delayed.
LB.4 Non-waiver. The fact that Franchisee carries out any activities
under this Franchise through independent contractors shall not constitute
an avoidance of or defense to Franchisee's duty of defense and
indemnification under this subsection.
18.5 Expenses. If separate representation to fully protect the interests
of both parties is or becomes necessary, such as a conflict of interest
between the City and the counsel selected by Franchisee to represent the
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City, Franchisee shall pay, from the date such separate representation is
required forward, all reasonable expenses incurred by the City in
defending itself with regard to any action, suit, or proceeding subject to
indemnification by Franchisee. Provided, however, that in the event that
such separate representation is or becomes necessary, and the City
desires to hire counsel or any other outside experts or consultants and
desires Franchisee to pay those expenses, then the City shall be required
to obtain Franchisee's consent to the engagement of such counsel,
experts, or consultants, such consent not to be unreasonably withheld.
The City's expenses shall include all reasonable out-of-pocket costs and
expenses, such as consultants' fees and court costs, but shall not include
outside attorneys' fees for services that are unnecessarily duplicative of
services provided the City by Franchisee, except in the event of a conflict
of interest where such duplication may be required. Each party agrees to
cooperate and to cause its employees and agents to cooperate with the
other party in the defense of any claim or action.
18.6 The parties acknowledge that this Franchise is subject to RCW
4.24.Lts. Accordingly, 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 Franchisee and the City, its officers,
officials, employees, and volunteers, Franchisee's liability shall be only to
the extent of Franchisee's negligence. It is further specifically and
expressly understood that the indemnification provided constitutes
Franchisee's waiver of immunity under Title 51 RCW, solely for the
purposes of this indemnification. This waiver has been mutually
negotiated by the parties,
LB.7 The provisions of this Section 18 shall survive the expiration,
revocation, or termination of this Franchise.
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SECTION 79. - Insurance.
19.1 Franchisee shall maintain in full force and effect at its own cost and
expense each of the following policies of insurance:
a. Commercial General Liability insurance with limits of no less
than $5,000,000 per occurrence and $5,000,000 general aggregate.
Coverage shall be at least as broad as that provided by ISO CG 00 01
I/96 or its equivalent and include severability of interests. Such insurance
shall name the City, its officers, officials and employees as additional
insureds per ISO CG 2026 or its equivalent. There shall be a waiver of
subrogation and rights of recovery against the City, its officers, officials
and employees. Coverage shall apply as to claims between insureds on
the policy, if applicable. Coverage may take the form of a primary layer
and a secondary or umbrella layer, but the combination of layers must
equal $5,000,000 at a minimum.
b. Commercial Automobile Liability insurance with minimum
combined single limits of $5,000,000.00 each occurrence with respect to
each of Franchisee's owned, hired and non-owned vehicles assigned to or
used in the operation of the Facilities in the City. The policy shall contain
a severability of interests provision.
c. Workers' Compensation coverage as required by the
Industrial Insurance laws of the State of Washington and employer's
liability with a limit of $1,000,000 each accident/disease/policy limit; and
L9.2 Deductibles/Certificate of Insurance. Any deductible of the policies
shall not in any way limit Franchisee's liability to the City.
19.3 Endorsements. All policies shall contain, or shall be endorsed so
that:
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a. The City, its officers, officials, boards, commissions,
employees, and agents are to be covered as, and have the rights of,
additional insureds with respect to liability arising out of activities
performed by, or on behalf of, Franchisee under this Franchise or
Applicable Law, or in the construction, operation or repair, or ownership of
the Cable System;
b. Franchisee's insurance coverage shall be primary insurance
with respect to the City, its officers, officials, boards, commissions,
employees, and agents. Any insurance or self-insurance maintained by
the City, its officers, officials, boards, commissions, employees, and
agents shall be in excess of the Franchisee's insurance and shall not
contribute to it; and
c. Franchisee's insurance shall apply separately to each insured
against whom a claim is made or lawsuit is brought, except with respect to
the limits of the insurer's liability.
L9.4 Acceptability of Insurers. The insurance obtained by Franchisee
shall be placed with insurers with a Best's rating of no less than "A VII."
19.5 Verification of Coverage. The Franchisee shall furnish the City with
certificates of insurance and endorsements or a copy of the page of the
policy reflecting blanket additional insured status. The certificates and
endorsements for each insurance policy are to be signed by a Person
authorized by that insurer to bind coverage on its behalf. The certificates
and endorsements for each insurance policy are to be on standard forms
or such forms as are consistent with standard industry practices.
19.6 Franchisee's maintenance of insurance as required by this Section
19 shall not be construed to limit the liability of Franchisee to the coverage
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provided by such insurance, or otherwise limit the City's recourse to any
remedy available at law or equity. Further, Franchisee's maintenance of
insurance policies required by this Franchise shall not be construed to
excuse unfaithful performance by Franchisee.
SECTION 20. - Abandonment of Franchisee's Telecommunications
Network. Upon the expiration, termination, or revocation of the rights
granted under this Franchise, Franchisee shall remove all of its Facilities
from the Rights-of-Way within thirty (30) days of receiving written notice
from the Director. The Facilities, in whole or in pärt, may not be
abandoned by Franchisee without written approval by the City. Any plan
for abandonment or removal of Franchisee's Facilities must be first
approved by the Director, and all necessary permits must be obtained
prior to this work. The plan for abandonment shall include a proposal and
instruments for transferring ownership to the City. Any Facilities that are
not permitted to be abandoned in place and that are not removed within
thirty (30) days of receipt of City's notice shall automatically become the
property of the City. Except that nothing contained within this Section 20
shall prevent the City from compelling Franchisee to remove any such
Facilities through judicial action when the City has not permitted the
Franchisee to abandon the Facilities in place. The provisions of this
Section 20 shall survive the expiration, revocation, or termination of this
Franchise.
SECTION 27. - Bonds.
2L.L Construction Guarantee. As a condition of performing work in the
Right-of-Way, the timely, complete, and faithful performance of all
construction work in the Right-of-Way shall be guaranteed in an amount
equal to one hundred twenty five percent (125%) of the cost estimate
(prepared by a licensed contractor, professional engineer, or architect) of
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the construction work. The guarantee may be by performance bond or
irrevocable letter of credit. If Franchisee, in the sole judgment of the City,
has a history of corrections or defaults, Franchisee must provide the full
guarantee by assignment of funds. These funds shall guarantee the
following: (1) timely completion of construction; (2) construction in
compliance with all applicable plans, permits, technical codes, and
standards; (3) proper location of the Facilities as specified by the City; ( )
restoration of the Rights-of-Way and other City properties affected by the
construction; (5) submission of as-built drawings after completion of
construction; and (6) timely payment and satisfaction of all claims,
demands, or liens for labor, materials, or services provided in connection
with the work that could be asserted against the City or City property.
The guarantee must remain in full force until the completion of
construction, including final inspection, corrections, and final approval of
the work, recording of all easements, provision of as-built drawings, and
the posting of a maintenance guarantee as described in Section 2L.2.
Compliance with the performance guarantee requirement of the City's
current Design and Construction Standards shall satisfy the provisions of
this Section 21.1.
2t.2 Maintenance Guarantee. Maintenance and the successful operation
of the Right-of-Way improvements shall be bonded for a period of at least
two (2) years (or other period as required by Kent City Code) from the
date of final construction approval. The bond shall be in an amount to be
determined by the Cíty. The minimum maintenance guarantee shall be
Five Thousand Dollars ($5,000.00) or twenty percent (20o/o) of the original
performance construction guarantee as described in Section 20.I,
whichever is greater. At six (6)-month intervals during this maintenance
period, the City will inspect the improvements and identify to Franchisee
any noted deficiencies. Franchisee will have thirty (30) days to correct
any deficiencies. The satisfactory correction of the work may commence a
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new two (2)-year maintenance period for the improvements as corrected,
as determined by the City. The City will initiate collection against the
financial guarantee if deficiencies are not satisfactorily addressed by the
end of the thirty (30)-day response period. Compliance with the
maintenance guarantee requirement of the City's current Design and
Construction Standards shall satisfy the provisions of this Section 2L.2.
2L.3 Original financial guarantee amounts described in Section 21.1 and
Section 2t.2 above may be reduced one time only prior to the
maíntenance period, at the discretion of the City. If an extension to any
associated permits are granted, the financial guarantees may be increased
based on an updated engineer's cost estimate or as determined by the
City. Financial guarantees will be fully released only after all final
punchlist items are accomplished, final construction approval, and the
elapse of the two (2)-year maintenance guarantee period with all
corrective actions complete and accepted by the City.
2I.4 Franchisee shall provide City with a bond in the amount of Twenty-
Five Thousand Dollars ($25,000.00) ("Franchise Bond") running or
renewable for the term of this Franchise, in a form and substance
reasonably acceptable to City. In the event Franchisee shall fail to
substantially comply with any one or more of the provisions of this
Franchise, following written notice and a reasonable opportunity to cure,
then there shall be recovered jointly and severally from Franchisee and
the bond any actual damages suffered by City as a result thereof,
including but not limited to staff time, material and equipment costs,
compensation or indemnification of third parties, and the cost of removal
or abandonment of Facilities, Franchisee specifically agrees that its failure
to comply with the terms of this Section 21.4 shall constitute a material
breach of this Franchise, subject to the notice and cure provisions of
Section 22.2. Franchisee further agrees to replenish the Franchise Bond
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within fourteen (14) days after written notice from the City that there is a
deficiency in the amount of the Franchise Bond. The amount of the
Franchise Bond shall not be construed to limit Franchisee's liability or to
limit the City's recourse to any remedy to which the City is otherwise
entitled at law or in equity.
21-5 All bonds provided to the City under this Section 21 shall be on
forms provided by the City and with sureties registered with the
Washington State Insurance Commissioner or other financial institutions
acceptable to the City.
SECTION 22. - Remedies to Enforce Compliance.
22.1 In addition to any other remedy provided in this Franchise, the City
reserves the right to pursue any remedy available at law or in equity to
compel or require Franchisee and/or its successors and assigns to comply
with the terms of this Franchise. The pursuit of any right or remedy by
the City shall not prevent the City from thereafter declaring a revocation
for breach of the conditions. In addition to any other remedy provided in
this Franchise, Franchisee reserves the right to pursue any remedy
available at law or in equity to compel or require the City, its officers,
employees, volunteers, contractors and other agents and representatives,
to comply with the terms of this Franchise. Further, all rights and
remedies provided in this Franchise shall be in addition to and cumulative
with any and all other rights and remedies available to either the City or
Franchisee. Such rights and remedies shall not be exclusive, and the
exercise of one or more rights or remedies shall not be deemed a waiver
of the right to exercise at the same time or thereafter any other right or
remedy. Provided, further, that by entering into this Franchise, it is not
the intention of the City or Franchisee to waive any other rights, remedies,
or obligations as provided by law, equity or otherwise, and nothing
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contained in this Franchise shall be deemed or construed to effect any
such waiver. The parties reserve the right to seek and obtain injunctive
relief with respect to this Franchise to the extent authorized by applicable
law. The execution of this Franchise shall not constitute a waiver or
relinquishment of this right. The parties agree that if a party obtains
injunctive relief, neither party shall be required to post a bond or other
security and the parties agree not to seek the imposition of such a
requirement.
22.2 If either party violates or fails to comply with any of the provisions
of this Franchise or a permit issued as required by Section 8.3, or should it
fail to heed or comply with any notice given to such party under the
provisions of this Franchise (the "Defaulting Party"), the other Party (the
"Non-defaulting Party") shall provide the Defaulting Party with written
notice specifying with reasonable particularity the nature of any such
breach and the Defaulting Party shall undertake all commercially
reasonable efforts to cure such breach within thirty (30) days of receipt of
notification. If the Non-defaulting Party reasonably determines the breach
cannot be cured within thirty (30) days, the Non-defaulting Party may
specify a longer cure period, and condition the extension of time on the
Defaulting Party's submittal of a plan to cure the breach within the
specified period, commencement of work within the original thirty (30)-
day cure period, and diligent prosecution of the work to completion. If the
breach is not cured within the specified time, or the Defaulting Party does
not comply with the specified conditions, the Non-defaulting Party may
pursue any available remedy at law or in equity as provided in Section
22.L, or in the event Franchisee has failed to timely cure the breach, the
City, at its sole discretion, ffiây elect to: (1) revoke this Franchise
pursuant to Section 23; (2) claim damages of Two Hundred Fifty Dollars
($250.00) per day against Franchisee (and collect from the Franchise Bond
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if necessary); or (3) extend the time to cure the breach if under the
circumstances additional time is reasonably required.
SECTION 23, - Revocation. If Franchisee willfully violates or fails
to comply with any material provisions of this Franchise, the City may
revoke this Franchise after (1) providing at least thirty (30) days'written
notice to Franchisee specifying the alleged violation or failure; and (2)
holding a hearing before City Council. This hearing shall be open to the
public and Franchisee and other interested parties may offer written
and/or oral evidence explaining or mitigating such alleged noncompliance.
Within thirty (30) days after the hearing, the Kent City Council, on the
basis of the record, shall make the determination as to whether there is
cause for revocation, whether the Franchise will be terminated, or whether
lesser sanctions should otherwise be imposed, The Kent City Council may
in its sole discretion fix an additional time period to cure violations. If the
deficiency has not been cured at the expiration of any additional time
period or if the Kent City Council does not grant any additional period, the
Kent City Council may by resolution declare the Franchise to be revoked
and forfeited or impose lesser sanctions. If Franchisee appeals revocation
and termination, such revocation may be held in abeyance pending judicial
review by a court of competent jurisdiction, provided Franchisee is
otherwise in compliance with the Franchise.
SECTION 24, - Non-Waiver. The failure of either party to insist
upon strict performance of any of the covenants and agreements of this
Franchise or to exercise any option conferred in any one or more instances
shall not be construed to be a waiver or relinquishment of any such
covenants, agreements, or option or any other covenants, agreements or
option.
SECTION 25. - Police Powers and City Regulations. Nothing within
this Franchise shall be deemed to restrict the City's ability to adopt and
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enforce all necessary and appropr¡ate ordinances regulating the
performance of the conditions of this Franchise, including any valid
ordinance made in the exercise of its police powers in the interest of public
safety and for the welfare of the public. The City shall have the authority
at all times to reasonably control by appropriate regulations, consistent
with 47 U.S.C. S 253, the location, elevation, manner of construction, and
maintenance of any Facilities by Franchisee, and Franchisee shall promptly
conform with all such regulations, unless compliance would cause
Franchisee to violate other requirements of law. The City reserves the
right to promulgate any additional regulations of general applicability as it
may find necessary in the exercise of its lawful police powers consistent
with 47 U,S.C. S 253. In the event of a conflict between the provisions of
this Franchise and any other ordinance(s) enacted under the City's police
power authority, such other ordinances(s) shall take precedence over this
Franchise.
SECTION 26. - Cost of Publication. The cost of publication of this
Franchise shall be borne by Franchisee.
SECTION 27. - Acceptance. This Franchise may be accepted by
Franchisee by its filing with the City Clerk of an unconditional written
acceptance, within sixty (60) days from the City's execution of this
Franchise, in the form attached as Exhibit A. Failure of Franchisee to so
accept this Franchise shall be deemed a rejection by Franchisee and the
rights and privileges granted shall cease. In addition, Franchisee shall file
the certificate of insurance and the additional insured endorsements
obtained pursuant to Section 19, any construction guarantees, if
applicable, pursuant to Section 2L.L, the Franchise Bond required
pursuant to Section 2L.4, and the costs described in Section 16.1.
SECTION 28. - Survival. All of the provisions, conditions, and
requirements of Section 5, Section 6, Section 8, Section 14, Section 18,
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Section 20, and this Section 28 of this Franchise shall be in addition to any
and all other obligations and liabilities Franchisee may have to the City at
common law, by statute, or by contract, and shall survive this Franchise,
and any renewals or extensions, to the extent provided for in those
sections. All of the provisions, conditions, regulations, and requirements
contained in this Franchise shall further be binding upon the successors,
executors, administrators, legal representatives, and assigns of Franchisee
and all privileges, as well as all obligations and liabilities of Franchisee
shall inure to its successors and assigns equally as if they were specifically
mentioned where Franchisee is named.
SECTION 29. - Changes of Ownership or Control.
29.t This Franchise may not be directly or indirectly assigned,
transferred, or disposed of by sale, lease, merger, consolidation or other
act of Franchise€, by operation of law or otherwise, unless approved in
writing by the City, which approval shall not be unreasonably withheld,
conditioned or delayed. The above notwithstanding, Franchisee may
freely assign this Franchise in whole or in part to a parent, subsidiary, or
affiliated entity, unless there is a change of control as described in Section
29.2. Franchisee shall provide prompt, written notice to the City of any
such assignment. 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. For purposes of this
Section 29, no assignment or transfer of this Franchise shall be deemed to
occur based on the public trading of Franchisee's stock; provided,
however, any tender offer, merger, or similar transaction resulting in a
change of control shall be subject the provisions of this Franchise.
29.2 Any transactions that singularly or collectively result in a change of
more than fifty percent (50o/o) of the: ultimate ownership or working
Franchise - Verizon
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39
control of Franchisee, ownership or working control of the Facilities,
ownership or working control of affiliated entities having ownership or
working control of Franchisee or of the Facilities, or of control of the
capacity or bandwidth of Franchisee's Facílities, shall be considered an
assignment or transfer requiring City approval. Transactions between
affiliated entities are not exempt from City approval if there is a change in
control as described in the preceding sentence. Franchisee shall promptly
notify the City prior to any proposed change ir'ì, or transfer of, or
acquisition by any other party of control of Franchisee. Every change,
transfer, or acquisition of control of Franchisee shall cause a review of the
proposed transfer. The City shall approve or deny such request for an
assignment or transfer requiring City's consent within one hundred twenty
(120) days of a completed application from Franchisee, unless a longer
period of time is mutually agreed to by the parties or when a delay in the
action taken by the City is due to the schedule of the City Council and
action cannot reasonably be obtained within the one hundred twenty (120)
day period. If the City adopts a resolution denying its consent and such
change, transfer, or acquisition of control has been effected, the City may
revoke this Franchise, following the revocation procedure described in
Section 23. The assignee or transferee must have the legal, technical,
financial, and other requisite qualifications to own, hold, and operate
Franchisee's Services. Franchisee shall reimburse the City for all direct
and indirect costs and expenses reasonably incurred by the City in
considering a request to transfer or assign this Franchise, in accordance
with the provisions of Section 16.3 and Section 16.4, and shall pay the
applicable application fee.
29.3 Franchisee may, without prior consent from the City: (1) lease the
Facilities, or any portion, to another person; (2) grant an indefeasible right
of user interest in the Facilities, or any portion, to another person; or (3)
offer to provide capacity or bandwidth in its Facilities to another person,
Franchise - Verizon
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provided further, that Franchisee shall at all times retain exclusive control
over its Facilities and remain fully responsible for compliance with the
terms of this Franchise, and Franchisee shall furnish, upon request from
the City, a copy of any such lease or agreement, provided that Franchisee
may redact the name, street address (except for City and zip code), Social
Security Numbers, Employer Identification Numbers or similar identifying
information, and other information considered confidential under
applicable laws provided in such lease or agreement, and the lessee
complies, to the extent applicable, with the requirements of this Franchise
and applicable City codes. Franchisee's obligation to remain fully
responsible for compliance with the terms under this Section 29.3 shall
survive the expiration of this Franchise but only if and to the extent and
for so long as Franchisee is still the owner or has exclusive control over
the Facilities used by a third party.
SECTION 30, - Entire Agreement This Franchise constitutes the
entire understanding and agreement between the parties as to the subject
matter within this Franchise and no other agreements or understandings,
written or otherwise, shall be binding upon the parties upon execution of
this Franchise.
SECTION 37. - Eminent Domain. The existence of this Franchise
shall not preclude the City from acquiring by condemnation in accordance
with applicable law, all or a portion of Franchisee's Facilities for the fair
market value. In determining the value of such Facilities, no value shall
be attributed to the right to occupy the area conferred by this Franchise.
SECTION 32, - Vacation. If at any time the City, by ordinance and
in accordance with applicable laws, vacates all or any portion of the area
affected by this Franchise, the City shall not be liable for any damages or
loss to the Franchisee by reason of such vacation. The City shall notify
Franchisee in writing not less than sixty (60) days before vacating all or
Franchise - Verizon
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4T
any portion of any such area. The City will, if practicable, reserve an
easement for Franchisee's telecommunications network under the same
terms and conditions as this Franchise at the location vacated by City, and
if not practicable, the City may, after sixty (60) days' written notice to
Franchisee, terminate this Franchise with respect to such vacated area.
SECTION 33. - Notice. Any notice or information required or
permitted to be given to the parties under this Franchise shall be sent to
the following addresses unless otherwise specified by personal delivery,
overnight mail by a nationally recognized courier, or by U.S. certified mail,
return receipt requested and shall be effective upon receipt or refusal of
delivery:
CITY OF KENT
Attn: City Clerk
220 Fourth Avenue South
Kent, WA 98032
Company Address:
MCImetro Access Transmission Services Corp
ATTN : Franchise manager
600 Hidden Ridge
Mailcode: HQE02G295
Irving, TX 75038
With Copies (except for invoices) to:
Verizon Business Network Services
L32O Nofth Courthouse Road, Suite 900
Arlington, VA, USA 222Ot
Attn: Deputy General Counsel, Network and Technology
SECTION 34. - Severability. If any section, sentence, clause, or
phrase of this Franchise should be held to be invalid or unconstitutional by
a court of competent jurisdiction, such invalidity or unconstitutionality
shall not affect the validity or constitutionality of any other section,
sentence, clause, or phrase of this Franchise unless such invalidity or
Franchise - Verizon
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unconstitutionality materially alters the rights, privileges, duties, or
obligations, in which event either party may request renegotiation of those
remaining terms of this Franchise materially affected by such court's
ruling.
SECTION 35, - Compliance with all Applicable Laws. Each party
agrees to comply with all present and future federal, state, and local laws,
ordinances, rules, and regulations. This Franchise is subject to ordinances
of general applicability enacted pursuant to the City's police powers. The
City reserves the right at any time to amend this Franchise to conform to
any enacted, amended, or adopted federal or state statute or regulation
relating to the public health, safety, and welfare, or relating to roadway
regulation, or a City ordinance enacted pursuant to such federal or state
statute or regulation, when such statute, regulation, or ordinance
necessitates this Franchise be amended in order to remain in compliance
with applicable laws, but only upon providing Franchisee with thirty (30)
days' written notice of its action setting forth the full text of the
amendment and identifying the statute, regulation, or ordinance requiring
the amendment, This amendment shall become automatically effective
upon expiration of the notice period unless, before expiration of that
period, Franchísee makes a written request for negotiations regarding the
terms of the amendment. If the parties do not reach agreement as to the
terms of the amendment within thirty (30) days of the call for
negotiations, either party may pursue any available remedies at law or in
equity.
SECTION 36, - Attorney Fees. If a suit or other action is instituted
in connection with any controversy arising out of this Franchise, each
party shall pay all its legal costs and attorney fees incurred in defending or
bringing such claim or lawsuit, including all appeals, in addition to any
other recovery or award provided by law; except that nothing in this
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section shall be construed to limit the City's right to indemnification under
Section 18 of this Franchise.
SECTION 37. Hazardous Substances. Franchisee shall not
introduce or use any hazardous substances (chemical or waste), in
violation of any applicable law or regulation, nor shall Franchisee allow any
of its agents, contractors, or any person under its control to do the same.
Franchisee will be solely responsible for and will defend, indemnify, and
hold the City, its officers, officials, employees, agents, and volunteers
harmless from and against any and all claims, costs, and liabilities
including reasonable attorney fees and costs, arising out of or in
connection with the cleanup or restoration of the property to the extent
caused by Franchisee's use, storage, or disposal of hazardous substances,
whether or not intentional, and the use, storage, or disposal of such
substances by Franchisee's agents, contractors, or other persons acting
under Franchisee's control, whether or not intentional. Franchisee shall
have only that responsibility or liability for managing, monitoring, or
abating a hazardous condition that it may have under state or federal law
and this Franchise shall not be interpreted to expand Franchisee's legal
obligations relating to any pre-existing hazardous substances undisturbed
by Franchisee.
SECTION 38. - Licenses, Fees and Taxes. Prior to constructing
any Facilities or providing Services within the City, Franchisee shall obtain
a business or utility lícense from the City, if so required. Franchisee shall
pay all applicable taxes on personal property and Facilities owned or
placed by Franchisee in the Rights-of-Way and shall pay all applicable
license fees, permit fees, and any applicable tax unless documentation of
exemption is provided to the City and shall pay utility taxes and license
fees properly imposed by the City under this Franchise. However, nothing
in this Franchise is intended to alter, amend, modify or expand the taxes
Franchise - Verizon
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and fees that may lawfully be assessed on Franchisee's business activities
under applicable law.
SECTION 39. - Miscellaneous.
39.1 The City and Franchisee respectively represent that their respective
signatories are duly authorized and have full right, power, and authority to
execute this Franchise on such party's behalf.
39.2 This Franchise shall be construed in accordance with the laws of the
State of Washington. The United States District Court for the Western
District of Washington, and King County Superior Court have proper venue
for any dispute related to this Franchise.
39.3 Section captions and headings are intended solely to facilitate the
reading of this Franchise. These captions and headings shall not affect the
meaning or interpretation of the text within this Franchise.
39.4 Where the context so requires, the singular shall include the plural
and the plural includes the singular.
39.5 Franchisee shall be responsible for obtaining all other required
approvals, authorizations, and agreements from any party or entity and it
is acknowledged and agreed that the City is making no representation,
warranty, or covenant whether any of the foregoing approvals,
authorizations, or agreements are required or have been obtained by
Franchisee.
39.6 This Franchise is subject to all applicable federal, State and local
laws, regulations and orders of governmental agencies as amended,
including but not limited to the Communications Act of t934, as amended,
the Telecommunications Act of 1996, as amended, and the Rules and
Franchise - Verizon
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45
Regulations of the FCC. Neither the City nor Franchisee waive any rights
they may have under any such laws, rules or regulations.
39.7 There are no third party beneficiaries to this Franchise.
39.8 This Franchise may be enforced at both law and in equity.
SECTION 40. - Corrections by City Clerk or Code Reviser. Upon
approval of the City Attorney, the City Clerk and the code reviser are
authorized to make necessary corrections to this ordinance, including the
correction of clerical errors; ordinance, section or subsection numbering;
or references to other local, state or federal laws, codes, rules, or
regulations.
SECTION 47, - Effective Date. This ordinance shall take effect and
be in force five (5) days from and after its publication as provided by law.
tø /, z /¿7
oKE, MAYOR ouÉ Ño/oved
ATTEST:
ta lotl tt
KIMBERLY oTo,CLERK Date Ardoptéd
tolouln
oate Cublished
APPROVED AS TO FORM:
Franchise - Verizon
Ordinance
TO BRUBAKER, CIry ATTORNEY
46
EXHIBIT A
STATEM ENT OF ACCEPTANCE
MClmetro Access Transmission Services Corp. d/b/a Verizon Access
Transmission, a Delaware Corporation ("Verizon") for itself, its successors
and assigns, accepts and agrees to be bound by all lawful terms,
conditions and provisions of the Franchise attached and incorporated by
this reference. Verizon declares that it has carefully read the terms and
conditions of this Franchise and unconditionally accepts all of the terms
and conditions of the Franchise and agrees to abide by such terms and
conditions. Verizon has relied upon its own investigation of all relevant
facts and it has not been induced to accept this Franchise and it accepts all
reasonable risks related to the interpretation of this Franchise.
MCImetro Access Transmission Services Corp. d/b/a Verizon Access
Transmission, a Delaware Corporation
By:Date l1
N ame:Ê-
Title:
Franchise - Verizon
Ordinance
47
STATE OF WASHTNGTON, COUNTY Or KrNG ÌAFFIDAVIT OF PUBLICATIONPUBLIC NOTICELinda M Mills, being first duly sworn on oath that she is the LegalAdvertising Representative of theI(ent Reportera weekly newspaper, which newspaper is a legal newspaper ofgeneral circulation and is now and has been for more than six monthsprior to the date of publication hereinafter referred to, published inthe English language continuously as a weekly newspaper in KingCounty, Washington. The Kent Reporter has been approved as a LegalNewspaper by order of the Superior Court of the State of 'Washingtonfor King County.The notice in the exact form annexed was published in regularissues of the Kent Reporter (and not in supplement form) which wasregularly distributed to its subscribers during the below stated period.The annexed notice, a:Public Noticewas published on October 6,2OI7The full amount of the fee charged for said foregoing publication isthe sum of $149.61.Z/zø--MillsCITYOFKENTNOTICE OFORDINANCESPASSED BYTIIECITYCOUNCILThe following a¡e summa¡ies ofthe ordinances adopted by theKent City Council on October 3,2017:ORDINANCE NO. 4253 - ANORDINANCE of the city coun-cil of the city of Kent, Washing-ton, granting to MCIMETROAccess Transmission ServicesCorp. dlbla Verizon AccessTransmission Services, a Dela-ware corporation, and its succes-sors and assigns, the right, privilege, authority and nonexclusivefranchise for ten years, to con-struct, maintain, operate, replace,and repair a telecommunicationsnetwork, in, across, over, along,under, through, and belowcertain designated public rights-of-way of the City of Kent,Washington.This ordinance shall take effectand be in force five days fromand after its as provided by law.ORDINANCE NO. 4254 - ANORDINANCE of the City Coun-cil of the City of Kent, Washing-ton, providing for the acquisitionof real property and/or propertyrights located generally betweenS. 212th St., S. 222nd St., andbetween the Burlington NorthemSanta Fe Railway tracks and 84thAve S. This action is being takenin order to consfuct the S. 224thSfeet Improvements from 88thAve. S. to 94th Place S. This or-dinance provides for the condem-nation, appropriation, taking, anddamaging of real property andlorproperty rights as are necessaryfor that purpose and provides forthe payment thereof out of theS. 2241h Street ImprovementsProject Fund (Fund No. R90067.64420.220). This ordinance alsodirects the City Attomey ordesignee to prosecute the appro-priate legal proceedings, togetherwith the authority to enter intosettlements, stipulations, or otheragrcements, and acknowledgesthat all of the real property af-fected is located within KingComty, Washington.This ordinance shall take etrectand be in force five days fromand after its publication æ pro-vided by law.A copy of the complete text ofany ordinance will be mailedupon request ofthe City Clerk.KimberleyA. Komoto,City ClerkPublished in the Kent Reporteron October 6, 2017 . #1971647 .'ä"#fffåÏå ber'2or7 ,---. ,t *,r*,Gale Gwin,liotl{y Public for the Srate of Washingron, n"ri¿inã4 i l,?;1,:t ti iCovington, Washington. =--l*r.*-st/(,âf¡ir