HomeMy WebLinkAbout4338 ORDINANCE NO. 4338
AN ORDINANCE of the City Council of the
City of Kent, Washington, granting to Zayo Group,
LLC, a Delaware limited liability company, and its
successors and assigns the right, privilege,
authority and non-exclusive franchise for 10 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. Zayo Group, LLC, a Delaware limited liability company duly
authorized to transact business as a foreign limited liability company in the
state of Washington ("Franchisee") has requested that the City Council
grant it a non-exclusive franchise to construct, maintain and operate a
telecommunications network in the City's right-of-way. This franchise does
not authorize the installation of small cells.
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
1 Telecommunications Franchise
Authorized - Zayo Group, LLC
SECTION 1. - Franchise Granted. The Telecommunications
Franchise Agreement between the City of Kent and Zayo Group, LLC,
substantially in the form attached and incorporated as Exhibit A, is hereby
granted. The Mayor is authorized to execute the same on behalf of the City
of Kent, subject to those changes that are not material in nature and may
be authorized by the City Attorney.
SECTION 2. - Mayoral Authorization. The Mayor is further
authorized to execute all documents necessary to implement the full terms
of the negotiated franchise.
SECTION 3. - City Clerk Directed to Publish. The City Clerk is
directed to publish notice of the franchise's grant prior to its effective date,
which publication shall occur at least once in a newspaper of general
circulation in the City. The publication shall include language substantially
similar to the following, which the City Clerk is authorized to amend to
properly identify the web address where a complete copy of the
Telecommunications Franchise Agreement may be located:
AN ORDINANCE of the City Council of the City of Kent,
Washington, was adopted on which granted Zayo Group, LLC,
a 10-year non-exclusive telecommunications franchise agreement;
authorized the Mayor to sign all documents necessary to implement
the full terms of the negotiated agreement; and directed the City
Clerk to publish notice of Council's grant of this telecommunications
franchise. A complete copy of the Telecommunications Franchise
Agreement is available through the City Clerk's office, located at 220
Fourth Avenue South in the City of Kent, or online at
https://Documents.kentwa.gov/.
SECTION 4. - Severability. If any one or more section, subsection,
or sentence of this ordinance is held to be unconstitutional or invalid, such
decision shall not affect the validity of the remaining portion of this
ordinance and the same shall remain in full force and effect.
2 Telecommunications Franchise
Authorized - Zayo Group, LLC
SECTION 5. - 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 6. - Effective Date. This ordinance, being an exercise of
a power specifically delegated to the City's legislative body, is not subject
to referendum. It shall be published and will take effect thirty (30) days
after its passage. The Franchise Agreement, however, shall become
effective only upon its acceptance by Zayo Group, LLC and execution by
the Mayor. Should Zayo fail to timely file its written acceptance of the
Franchise Agreement, Zayo will be deemed to have rejected and
repudiated the Franchise Agreement and the franchise will be voidable by
the City.
November 19, 2019
DANA RALPH, MAY R Date Approved
ATTEST:
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yt
November 19, 2019
KIMBERLEY A. KOMOTO, CI LERK Date Adopted
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November 22, 2019
Date Publish4eia
APPROVED AS TO FORM:- ;; z vs
THUR -PAT"'FITZPATRICK CITY ATTORNEY ° - y "((tt' 0" a e
3 Teiecommuni ions Franchise
Authorized - Zayo Group, LLC
EXHIBIT A
Fiber Franchise Agreement
ZAYO GROUP, LLC, AND THE CITY OF KENT, WASHINGTON
FIBER FRANCHISE AGREEMENT
TABLE OF CONTENTS
SECTION 1. DEFINITIONS..................................................................1
SECTION 2. FRANCHISE GRANTED..................................................... 2
SECTION 3. GRANT OF AUTHORITY LIMITED......................................3
SECTION 4. LOCATION OF FACILITIES...............................................4
SECTION 5. RELOCATION OF FACILITIES...........................................4
5.1 Relocation Requirement......................................................4
5.2 Relocation.........................................................................5
5.3 Locate..............................................................................5
5.4 Notice and Relocation Process............................................. 6
5.5 Alternative Arrangements................................................... 6
5.6 Contractor Delay Claims..................................................... 7
5.7 Indemnification..................................................................7
5.8 Moving of Buildings or Other Objects.................................... 7
5.9 City's Costs.......................................................................7
5.10 Survival............................................................................7
SECTION 6. UNDERGROUNDING OF FACILITIES.................................8
SECTION 7. INFORMATION, INVENTORY AND RECORDS...................10
7.1 Information Request..........................................................10
7.2 Current Inventory.............................................................11
7.3 Inspection........................................................................11
7.4 Public Records Act.............................................................12
7.5 Annual Audit....................................................................13
SECTION S. UNAUTHORIZED FACILITIES..........................................13
SECTION 9. WORK IN THE RIGHTS-OF-WAY.....................................14
SECTION 10. TREES............................................................................17
SECTION 11. ONE CALL LOCATOR SERVICE.........................................18
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SECTION 12. SAFETY REQUIREMENTS...............................................18
SECTION 13. WORK ON CONTRACTORS AND SUBCONTRACTORS........19
SECTION 14. PROVISION OF CONDUIT AND DARK FIBER...................20
SECTION 15. RESTORATION AFTER CONSTRUCTION..........................21
SECTION 16. EMERGENCIES...............................................................23
SECTION 17. RECOVERY OF COSTS.....................................................24
SECTION 18. CITY'S RESERVATION OF RIGHTS..................................26
SECTION 19. INDEMNIFICATION; LIABILITY......................................27
19.1 General Indemnification.....................................................27
19.2 Indemnification for Relocation............................................27
19.3 Procedures and Defense.....................................................28
19.4 Avoidance........................................................................28
19.5 Expenses.........................................................................28
19.6 RCW 4.24.115..................................................................29
19.7 Survival...........................................................................29
SECTION 20. INSURANCE...................................................................29
20.1 Policies............................................................................30
20.2 Deductible/Certificate of Insurance......................................30
20.3 Requirements...................................................................30
20.4 Acceptability of Insurers....................................................31
20.5 Verification of Coverage.....................................................31
20.6 Maintenance of Insurance..................................................31
SECTION 21. ABANDONMENT OF FRANCHISEE'S
TELECOMMUNICATIONS NETWORK...........................................................32
SECTION22. BONDS...........................................................................32
22.1 Construction Guarantee.....................................................32
22.2 Maintenance Guarantee.....................................................33
22.3 Franchise Bond.................................................................34
22.4 Form of Bonds..................................................................34
SECTION 23. REMEDIES TO ENFORCE COMPLIANCE............................35
SECTION 24. REVOCATION.................................................................36
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SECTION 25. NON-WAIVER................ ............. .............37
. .....................
SECTION 26. POLICE POWERS AND CITY REGULATIONS....................37
SECTION 27. COST OF PUBLICATION..................................................38
SECTION 28. ACCEPTANCE.................................................................38
SECTION 29. SURVIVAL......................................................................38
SECTION 30. ASSIGNMENT AND CHANGES OF OWNERSHIP OR
CONTROL..................................................................................................38
SECTION 31. ENTIRE AGREEMENT......................................................40
SECTION 32. EMINENT DOMAIN.........................................................40
SECTION 33. VACATION.....................................................................41
SECTION34. NOTICE..........................................................................41
SECTION 35. SEVERABILITY...............................................................42
SECTION 36. COMPLIANCE WITH ALL APPLICABLE LAWS...................42
SECTION 37. ATTORNEY'S FEES..........................................................43
SECTION 38. HAZARDOUS SUBSTANCES.............................................43
SECTION 39. LICENSES, FEES AND TAXES..........................................44
SECTION 40. MISCELLANEOUS...........................................................44
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ZAYO GROUP, LLC, AND THE CITY OF KENT, WASHINGTON
FIBER FRANCHISE AGREEMENT
SECTION 1. - 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.
1.2 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 to be owned or operated by Franchisee.
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.
1.4 Rights-of-Way (singular "Right-of-Way") as used in this Franchise, means the
surface of, and the space above and below, any public street, highway, freeway,
bridge, land path, alley, court, boulevard, sidewalk, way, 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 trails, poles,
dedicated but un-opened right-of-way, environmentally sensitive areas and any
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land, facilities, or property owned, maintained, or leased by the City in its
governmental or proprietary capacity or as an operator of a utility.
SECTION 2. - Franchise Granted
2.1 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 42. This Franchise supersedes and
replaces in its entirety the Limited Street License entered into by the City and
Franchisee on October 7, 2013, as amended, except that any and all permits issued
pursuant to the Limited Street License, as amended, 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 in, under, on, 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 9.3.
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 Rights-of-Way, thoroughfares, and other public properties of every type
and description.
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SECTION 3. - Grant of Authority 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, and all other such regulated services that the Washington
Transportation and Utilities Commission has authorized Franchisee to offer and
provide as well as all other such non-regulated and lawful services that the
Franchisee may now or in the future offer (the "Services"). If Franchisee desires to
expand the regulated Services provided within the City, it shall provide written
notification of the addition of such regulated services prior to the addition of the
regulated service or within a reasonable time (not to exceed ninety (90) days) after
such regulated services are offered; except that Franchisee may not offer Cable
Services as that term is defined in 47 U.S.C. § 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.
3.4 Franchisee is authorized without prior City approval, to offer or provide
capacity or bandwidth, leased fiber or leased conduits or any other Services set
forth in Section 3.1 to its customers consistent with this Franchise provided:
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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.
SECTION 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.
SECTIONS. - Relocation of Facilities
5.1 Relocation Requirement. Franchisee agrees to protect, support, temporarily
disconnect and then reconnect, relocate, or remove from any rights-of-way any of
its Facilities when reasonably required by the City by reason of traffic conditions,
public safety, dedications of new Rights-of-Way, the establishment and
improvement of new Rights-of-Way, widening or improvement of existing Rights-of-
Way or both, street vacations, freeway construction, change or establishment of
street grade, or the construction of any public improvement or structure by any
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governmental agency acting in a governmental capacity or as otherwise necessary
for the operations of the City or other governmental entity. Collectively, such
matters are referred to within this Franchise with the term 'Public Improvement."
5.2 Relocation. If the request for relocation from the City arises from a Public
Improvement, in which structures or poles are either replaced or removed, then
Franchisee shall relocate or remove its Facilities as required by the City, and at no
cost to the City, subject to the procedure in Section 5.4. Franchisee acknowledges
and agrees that the placement of Facilities on third party-owned or City owned
structures does not convey an ownership interest in such structures. Franchisee
acknowledges and agrees, that to the extent Franchisee's Facilities are on poles
owned by third parties, the City shall not be responsible for any costs associated
with requests for relocation which the City makes solely for aesthetic purposes and
where such request arises out of a Public Improvement.
5.3 Locate. Upon written request of the City, or a third party performing work in
the Right-of-Way, 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 Public Improvement 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) calendar 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 that Franchisee shall
not be responsible for delays or damages due to circumstances beyond the control
of the Franchisee.
5.4 Notice and Relocation Process. If the City determines that the project
necessitates the relocation of Franchisee's existing Facilities, the City shall:
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a. At least ninety (90) calendar days prior to commencing the project,
provide Franchisee with written notice requiring such relocation and a
date by which relocation must be complete; provided, however, that in
the event of an emergency situation, defined for purposes of this
Franchise as a condition posing an imminent threat to property, life,
health, or safety of any person or entity, the City shall give Franchisee
written notice as soon as practicable; and
b. At least ninety (90) calendar days prior to commencing the project,
provide Franchisee with copies of pertinent portions of the plans and
specifications for the improvement project and 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 consistent with the
date for relocation established in accordance with this Section 5.4 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 Public Improvement.
5.5 Alternative Arrangements. 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.
5.6 Contractor Delay Claims. Franchisee shall be solely responsible for the out-
of-pocket costs incurred by the City for delays in a Public Project to the extent the
delay is caused by or arises out of Franchisee's failure to comply with the final
schedule for the relocation (other than as a result of a Force Majeure Event or
causes or conditions caused by the acts or omissions of the City or any third party
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unrelated to Franchisee; franchisee vendors and contractors shall not be considered
unrelated third parties). Such out-of-pocket costs may include, but are not limited
to, payment to the City's contractors and/or consultants for increased costs and
associated court costs, interest, and reasonable attorneys' fees incurred by the City
to the extent directly attributable to such Franchisee's caused delay in the Public
Project.
5.7 Indemnification. Franchisee will indemnify, hold harmless, and pay the costs
of defending the City, in accordance with the provisions of Section 19.
5.8 Moving of Buildings or Other Objects. Franchisee shall, on the request of any
individual or private entity holding a valid permit issued by a governmental
authority, temporarily remove, raise or ►ower its Facilities to permit the moving of
buildings or other objects. The expense of such temporary removal, raising or
lowering of Facilities shall be at the expense of the requestor.
5.9 City's Costs. If Franchisee fails, neglects, or refuses to remove or relocate its
Facilities as directed by the City following the procedures outlined in this Section 5,
the City may perform such work or cause it to be done, and the City's costs shall be
paid by Franchisee pursuant to Sections 17.3 and 17.4.
5.10 Survival. 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.
SECTION 6. — Undergroundin4 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 chapter 7.10, Kent City Code. 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
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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 may, 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 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.
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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 17.3 and Section 17.4.
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 9.3, 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.
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, Franchisee 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 23.
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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. — Information, Inventory and Records
7.1 Information Request.
a. Franchisee shall supply and maintain updated, at no cost to the City,
any information reasonably requested by the City to coordinate its
functions with the Franchisee's activities and fulfill any municipal
functions under state law. This required information may include, but
is not limited to, any installation inventory, location of existing or
planned Facilities, maps, plans, operational data, and as-built drawings
of Franchisee's Facilities in the City. Franchisee shall warrant the
accuracy of all information provided to the City.
b. Within thirty (30) calendar days of a written request from the Director,
but in no event more than once annually, the Franchisee shall furnish
the City with information sufficient to demonstrate: 1) that the
Franchisee has complied with all applicable requirements of this
Franchise; and 2) that all utility taxes due the City in connection with
the Franchisee's services and Facilities provided by the Franchisee
have been properly collected and paid by the Franchisee.
7.2 Current Inventory. Franchisee shall maintain a current inventory of Facilities
throughout the Term of this Franchise. Franchisee shall provide to City a copy of
the inventory report no later than one hundred eighty (180) calendar days after the
Effective Date of this Franchise, and an updated inventory report shall be provided
by December 31 of each year and within thirty (30) calendar days of a reasonable
request by the City. The inventory report shall include a route map of those basic
portions of the fiber system that are located within the right-of-way and be in a
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digital format. The inventory report shall include the vertical and horizontal
location of the facilities, including the height from the bottom of the pole to the
fiber or depth below the finished surface. The format of the data for overlaying on
the City's GIS mapping system shall utilize NAD 83 HARN State Plane as the
horizontal datum.
7.3 Inspection. 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, nor shall this Section 7.3 be construed
to require Franchisee to disclose proprietary or confidential information without
adequate safeguards for its confidential or proprietary nature. Unless otherwise
permitted or required 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; provided, however,
Franchisee may redact identifying information such as names, street 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 Public Records Act.
a. 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 (i.e., unless an exemption applies).
b. 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
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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 permitted by law.
C. 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 7.4 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.
d. 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 shall reimburse the City for any fines or penalties imposed
for failure to disclose such records within forty-five (45) days of a
request from the City, unless additional time is reasonably necessary
under the circumstances and is agreed to by the parties.
7.5 Annual Audit. On an annual basis, upon thirty (30) calendar days prior
written notice, the City shall have the right to conduct an independent audit of
Franchisee's records reasonably related to the administration or enforcement of this
Franchise, in accordance with GAAP. If the audit shows that tax or fee payments
have been underpaid by three percent (3%) or more, Franchisee shall pay the total
cost of the audit.
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SECTION S. - Unauthorized Facilities
Any Facilities installed in the City Right-of-Way that were not authorized under this
Franchise or other required City Approval ("Unauthorized Facilities") will be subject
to the payment of an Unauthorized Facilities charge by Franchisee. City shall
provide written notice to Franchisee of any Unauthorized Facilities identified by City
staff and Franchisee shall have thirty (30) calendar days thereafter in which to
establish that this installation was authorized or obtain the applicable permit.
Failure to establish that the installation is authorized will result in the imposition of
an Unauthorized Facilities charge in the amount of One Thousand Dollars
($1,000.00) per Unauthorized Facility per day starting on the thirty-first (31st) day.
Franchisee may submit an application to the City under this Franchise for approval
of the Unauthorized Facilities. If the application for the Unauthorized Facilities is
not approved, Franchisee shall remove the Unauthorized Facilities from the City's
Right-of-Way within thirty (30) calendar days after the expiration of all appeal
periods for such denial. The City shall not refund any Unauthorized Facilities
charges, unless Franchisee is successful in an appeal. This Franchise remedy is in
addition to any other remedy available to the City at law or equity.
SECTION 9. - Work in the Rights-of-Way
9.1 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 9.3.
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
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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.
9.2 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 9
shall survive the expiration of this Franchise during such time as Franchisee
continues to have Facilities in the Rights-of-Way.
9.3 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 its
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.
9.4 If either the City or Franchisee plans to make excavations in any area
covered by this Franchise and as described in this Section 9.4, 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
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C. The initiating party may deny such request for safety reasons.
9.5 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 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.
9.6 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.
9.7 Franchisee shall at all times comply with the safety requirements contained
in Section 12 and all applicable federal, State and local safety requirements.
9.8 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.
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9.9 Franchisee acknowledges that it shall be solely responsible for compliance
with all applicable 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 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 17.3 and Section 17.4; (2) collect damages pursuant to Section 23.2; and
(3) revoke this Franchise pursuant to Section 24. 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 10. - Trees
10.1 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 10.1 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.
10.2 Franchisee shall prepare and maintain a tree trimming schedule to ensure
compliance with this Section 10.2 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.
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Franchisee shall notify and obtain written approval from the City before completing
any trimming, except in an emergency.
10.3 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, or 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 11. - 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.
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SECTION 12. - Safety Requirements
12.1 Franchisee shall, at all times, employ professional care and shall install and
maintain and use industry-standard methods for preventing failures and accidents
that are likely to cause damage, injuries, or nuisances to the public. All structures
and all lines, equipment, and connections in, 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 applicable 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.
12.2 If an unsafe condition or a violation of Section 12.1 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 17.3 and Section 17.4.
12.3 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 13. - 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 14. - Provision of Conduit and Dark Fiber
14.1 The City may request that Franchisee provide the City with a single inch and
a quarter (1.25") 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. If requested by the City,
such conduit shall be provided at Franchisee's incremental cost for providing the
conduit and shall only be used for the City's own internal use and shall not be
resold, leased, exchanged to any third party. Franchise shall install a locator wire
and cap off all conduit ends. Conduit ends shall be marked on the as-built plans
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and maps required in Section 7. Any conduit delivered to the City pursuant to this
Section will become property of the City, and Franchisee will have no ongoing
maintenance, liability or other obligations to the City or any third party with respect
to such conduit. Should City request any conduit as contemplated in this Section,
City must make the request in writing prior to issuance of the permit to Franchisee.
14.2 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 9.3.
14.3 Zayo will provide two (2) unlit "dark" fiber optic strands to the City wherever
Zayo has previously constructed fiber optic cables as well as two (2) dark fiber optic
strands wherever Zayo constructs fiber optic cables in the future within the City
(the "City Fiber Strands") to fully compensate the City for Zayo not installing
conduit for City in accordance with the terms of the prior limited license agreement.
The City Fiber Strands are for the City's own internal use and may not be resold,
leased, exchanged to any third party.
14.4 The City Fiber Strands will be provided to the City subject to the terms and
conditions of this Section 14 and Exhibit B. Franchisee shall be responsible for
performing all work on the City Fiber Strands. City shall not perform its own
maintenance or repair on the City Fiber or otherwise access the City Fiber without
Franchisee's written permission which shall not be unreasonably withheld. City
splice points will be limited to Franchisee-designated locations only. If the City
requests additional splice points, such requests are subject to Franchisee approval,
such approval not to be unreasonably withheld, and if approved City shall pay
Franchisee's then current market rates for such work.
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SECTION 15. - Restoration after Construction
15.1 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 21, 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
installation, 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.
15.2 Franchisee agrees to complete all restoration work to the Franchise Area or
other affected area at its sole costs and expense and according to 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.
15.3 If conditions (e.g., weather) make the complete restoration required under
Section 15 impracticable, Franchisee shall temporarily restore the affected Right-of-
Way or property at its sole cost and expense. Franchisee shall promptly undertake
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and complete the required permanent restoration as soon as conditions no longer
make such permanent restoration impracticable.
15.4 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 15, 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 17.3
and Section 17.4. The City may also bill Franchisee for any expenses associated
with the inspection of such restoration work.
15.5 The provisions of this Section 15 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 16. - Emergencies
16.1 In the event of any emergency in which any of Franchisee's Facilities located
in or under any street endangers the property, life, 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.
16.2 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 property, 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
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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 17.3 and
17.4.
16.3 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, or work of any kind in the
Rights-of-Way by or on behalf of the City, unless directly and proximately caused
by the 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 direct or
indirect result of the City's actions under this Section 16 unless caused by the
negligence or willful acts of the City, its employees, contractors, or agents.
16.4 Franchisee shall promptly reimburse the City in accordance with the
provisions of Section 17.3 and Section 17.4 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 17. - Recovery of Costs
17.1 Franchisee shall reimburse the City for its actual and documented
administrative, legal, and other costs incurred in drafting and processing this
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Franchise and all work related thereto pursuant to RCW 35.21.860(1)(b), 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.
17.2 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 17.3.
17.3 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.
17.4 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
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preparing the billing may also be 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 18. - City's Reservation of Rights
18.1 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 35.21.860 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 fee, this Franchise, or separate agreement under applicable federal,
State, or local laws.
18.2 Franchisee acknowledges that certain of its operations within the City may
constitute a telephone business subject to the utility tax imposed pursuant to
chapter 3.18, Kent City Code. Franchisee understands that RCW 35.21.870
currently limits the rate of city tax upon telephone business activities to six percent
(6%) of gross income (as that term is defined in chapter 3.18, Kent City Code),
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
services under chapter 3.18, Kent City Code, and consistent with state and federal
law. The parties agree however, that nothing in this Franchise shall limit the City's
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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 chapter 3.18, Kent City Code as may be
permitted by law. Nothing in this Section 18 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 19. - Indemnification; Liability
19.1 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, including,
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.
19.2 Indemnification for Relocation. Franchisee 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 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.
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19.3 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 19.5 is required. In that event, the provisions of Section 19.5
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.
19.4 Avoidance.
a. Inspection or acceptance by the City of any work performed by
Franchisee at the time of completion of construction shall not be
grounds for avoidance by Franchisee of any of its obligations under
this Section 19.
b. 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.
19.5 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 City, Franchisee shall pay, from
the date such separate representation is required forward, all reasonable expenses
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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.
19.6 RCW 4.24.115. The parties acknowledge that this Franchise is subject to
RCW 4.24.115. 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.
19.7 Survival. The provisions of this Section 19 shall survive the expiration,
revocation, or termination of this Franchise.
SECTION 20. - Insurance
20.1 Policies. Franchisee shall maintain in full force and effect at its own cost and
expense each of the following policies of insurance:
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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
1/96 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.
20.2 Deductibles/Certificate of Insurance. Any deductible of the policies shall not
in any way limit Franchisee's liability to the City.
20.3 Requirements. All policies shall contain, or shall be endorsed so that:
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;
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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.
20.4 Acceptability of Insurers. The insurance obtained by Franchisee shall be
placed with insurers with a Best's rating of no less than "A VII."
20.5 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.
20.6 Maintenance of Insurance. Franchisee's maintenance of insurance as
required by this Section 20 shall not be construed to limit the liability of Franchisee
to the coverage 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.
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SECTION 21. - 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 part, 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 21 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 21 shall survive the expiration, revocation, or termination of this
Franchise.
SECTION 22. - Bonds
22.1 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 the construction work, by either the
Franchisee or the Franchisee's contractor performing the actual construction work.
The guarantee may be by performance bond or irrevocable letter of credit, or cash
deposit, as may be determined by the Franchisee or the Franchisee's contractor. 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
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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; (4)
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 22.2. Compliance with
the performance guarantee requirement of the City's current Design and
Construction Standards shall satisfy the provisions of this Section 22.1.
22.2 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 City. The
minimum maintenance guarantee shall be Five Thousand Dollars ($5,000.00) or
twenty percent (20%) of the original performance construction guarantee as
described in Section 22.1, 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 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 22.2. Original financial guarantee amounts described in Section 22.1 and
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Section 22.2 may be reduced one time only prior to the maintenance 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.
22.3 Franchise Bond. 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. If Franchisee fails 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 22.4 will constitute a material breach of this Franchise, subject to the
notice and cure provisions of Section 23.2. Franchisee further agrees to replenish
the Franchise Bond within thirty (30) 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.
22.4 Form of Bonds. All bonds provided to the City under this Section 22 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.
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SECTION 23. - Remedies to Enforce Compliance
23.1 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
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.
23.2 If either party violates or fails to comply with any of the provisions of this
Franchise or a permit issued as required by Section 9.3, 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
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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 23.1, or in
the event Franchisee has failed to timely cure the breach, the City, at its sole
discretion, may elect to: (1) revoke this Franchise pursuant to Section 24; (2) claim
damages of Two Hundred Fifty Dollars ($250.00) per day against Franchisee (and
collect from the Franchise Bond if necessary); or (3) extend the time to cure the
breach if under the circumstances additional time is reasonably required.
SECTION 24. - 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
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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 25. - 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 26. - Police Powers and City Regulations
Nothing within this Franchise shall be deemed to restrict the City's ability to adopt
and enforce all necessary and appropriate ordinances regulating the performance of
the conditions of this Franchise, including any valid ordinance made in the exercise
of its police powers in the interest of public safety and for the welfare of the public.
The City shall have the authority at all times to reasonably control by appropriate
regulations, consistent with 47 U.S.C. § 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. §
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.
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SECTION 27. - Cost of Publication
The cost of publication of this Franchise shall be borne by Franchisee.
SECTION 28. - 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
20, any construction guarantees, if applicable, pursuant to Section 22.1, the
Franchise Bond required pursuant to Section 22.4, and the costs described in
Section 17.1.
SECTION 29. - Survival
All of the provisions, conditions, and requirements of Section 5, Section 6, Section
9, Section 15, Section 189, Section 21, and this Section 29 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.
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SECTION 30. - Assignment and Changes of Ownership or Control
30.1 This Franchise may not be directly or indirectly assigned, transferred, or
disposed of by sale, lease, merger, consolidation or other act of Franchisee, 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 30.2. 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 30, 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.
30.2 Any transactions that singularly or collectively result in a change of more
than fifty percent (50%) of the: ultimate ownership or working 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 Facilities,
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 in, 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
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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 30. 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 30.3 and Section 30.4, and shall pay the applicable application fee.
30.3 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, 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. Franchisee's obligation to remain
fully responsible for compliance with the terms under this Section 30.3 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 31. — 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.
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SECTION 32. - 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 33. - 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 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 34. - 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
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Company Address:
Zayo Group, LLC
Attn. General Counsel (Fiber Solutions)
1805 29th, Suite 2050
Boulder, CO 80301
With Copies to:
Zayo Group, LLC
Attn. Underlying Rights
1805 29th , Suite 2050
Boulder, CO 80301
SECTION 35. - 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
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 36. - 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,
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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, Franchisee 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.
Nothing shall preclude either party from challenging the lawfulness of any provision
of this Franchise under state or federal law.
SECTION 37. - Attornev's 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 section
shall be construed to limit the City's right to indemnification under Section 19 of
this Franchise.
SECTION 38. - 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
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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 39. - Licenses, Fees and Taxes
Prior to constructing any Facilities or providing Services within the City, Franchisee
shall obtain a business or utility license 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 and fees that may lawfully be assessed on Franchisee's
business activities under applicable law.
SECTION 40. - Miscellaneous
40.1 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.
40.2 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.
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40.3 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.
40.4 Where the context so requires, the singular shall include the plural and the
plural includes the singular.
40.5 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.
40.6 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 1934, as amended, the Telecommunications
Act of 1996, as amended, and the Rules and Regulations of the FCC. Neither the
City nor Franchisee waive any rights they may have under any such laws, rules or
regulations.
40.7 There are no third party beneficiaries to this Franchise.
40.8 This Franchise may be enforced at both law and in equity.
IN WITNESS WHEREOF, this Franchise is signed in the name of the City of
Kent, Washington this day of , 2019.
ATTEST: CITY OF KENT, WASHINGTON:
City Clerk Mayor
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APPROVED AS TO FORM:
City Attorney
Accepted and approved this day of , 2019.
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DocuSign Envelope ID:8F10B5C8-4D32-4DBA-85D3-6BB94D94COBB
STATEMENT OF ACCEPTANCE
Zayo Group, LLC, a Delaware limited liability company, ("Zayo") 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. Zayo 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. Zayo 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.
Zayo Group, LLC, a Delaware limited liability company
F
cu Signed by:
By:
i tZaw Date: December 18, 2019
Name: Ted-', ,am
Title: General counsel , strategic Networks
1 Franchise —
Ordinance
Exhibit B
Franchisee reserves the right to modify these procedures.
1. Routine Maintenance. Routine Maintenance is maintenance and repairs that
Franchisee deems necessary to ensure proper functioning of the Franchisee
network. Franchisee shall perform routine and preventative maintenance and all
cable and locate activities as a part of the local "Call Before You Dig" program.
Planned network maintenance that does or does not potentially involve the
disruption of functionality of the Dark Fiber Offerings is also considered Routine
Maintenance. The nature of such a planned Routine Maintenance activity is such
that it can be pre-scheduled so as to allow notification to City as appropriate.
The Franchisee NOC will generally conduct such planned Routine Maintenance
outside normal working hours anytime between 12:00 AM to 5:00 AM (local
time) seven (7) days a week. Franchisee will provide City with ten (10) business
days prior notice of Routine Maintenance that affects availability. All
maintenance other than Routine Maintenance as described above shall be
deemed to be Non-Routine Maintenance.
2. Non-Routine & Emergency Maintenance. Non-Routine Maintenance is
maintenance that restores the functionality of the Dark Fiber Offerings. For any
Non-Routine and/or emergency Maintenance (including, but not limited to,
repairs required due to cable cuts, fires, remodeling work or other acts of third
parties or Force Majeure events), City will first use commercially reasonable
efforts to determine that any disruption in the functionality of the Dark Fiber
Offering is not on the City's side of the Demarcation Point. After verifying that
the problem is not on City's side of the Demarcation Point, City shall open a
Trouble Case for Technical Support by contacting Franchisee City Support at 1-
866-236-2824 (US and Canada) / +4420 3846 4222 (Europe) / 00800 4997
0737 (France), or ncc@Franchisee.com. Escalation procedures following opening
of a Trouble Case can be found at
https://tranzact.Franchisee.com/#!/escalation-lists.
3. Optical Fiber Repair & Restoration. Following receipt of City's notification of
a Trouble Case, Franchisee shall reasonably endeavor to respond on-site (if
necessary) to the affected location(s) within four (4) hours of the initial Trouble
Case, provided Franchisee has all necessary access to the City Location(s),
including City's Premises. In the event of a fiber failure, Franchisee shall
reasonably endeavor to begin Dark Fiber Offering restoration within six (6) hours
following identification of such failure. Franchisee shall use its best efforts to
then restore the functionality of the Dark Fiber Offering no later than twelve
hours (12) hours following initiation of restoration activities and uninterrupted
access to the damaged area. During an outage Franchisee shall contact City on
a regular basis, to update the status of restoration. Franchisee is responsible for
ensuring that the maintenance personnel are properly trained and otherwise
qualified to perform the maintenance on the Offerings. City shall procure for
4. Franchisee reasonable 24x7x365 access to City's Location(s) for purposes of both
Routine and Non-Routine Maintenance.
STATE OF WASHINGTON, COUNTY OF KING }
AFFIDAVIT OF PUBLICATION
PUBLIC NOTICE
Polly Shepherd,being first duly sworn on oath that she is the Publisher of the
Kent - Covington Reporter
a weekly newspaper, which newspaper is a legal newspaper of general
circulation and is now and has been for more than six months prior to the date
of publication hereinafter referred to,published in the English language
continuously as a weekly newspaper in King County, Washington. The
Kent - Covington Reporter has been approved as a Legal Newspaper by order of
the Superior Court of the State of Washington for King County.
The notice in the exact form annexed was published in regular issues of
the Kent- Covington Reporter(and not in supplement form) which was regularly
distributed to its subscribers during the below stated period. The annexed
notice (881426), a:
Public Notice
was published on November 22"d, 2019.
Thel-zmro e fee charged for said foregoing publication is the sum of$542.99.
`\,�1►IILII///`
Gp,LE• Gl j, "_
Polly Shepherd, Publisher, Kent - Covington Reporter 6
U):Z NOTARY N: -
nd o
= —4.* PUBLIC ";Z
Subscribed and sworn to me this 22 day of November, 2019. ;y�:mo :O
�`.• oti� .,` `
Gale Gwin,Notary Public for the State of Washington, Residing in Covington,WA
f
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Classified Proof
CITY OF KENT
( NOTICE OF
f ORDINANCES
PASSED BY THE
CITY COUNCIL
The following are sum-
maries of ordinances
passed by the Kent City
iE Council on November
19,2019:
ORDINANCE NO. 4338
AN ORDINANCE of
the City Council of the
City of Kent, Washing-
ton,was adopted on No-
vember 5, 2019, which
granted Zayo Group,
LLC, a 10-year non-ex-
clusive telecommunica-
tions franchise
agree-ment; authorized the
Mayor to sign all docu-
ments necessary to im-
element the full terms of
f! the negotiated agree-
ment; and directed the
City Clerk to publish no-
tice of Council's grant of
this telecommunications
franchise. A complete
COPY of the Telecommu-
nications Franchise
Agreement is available
through the City Clerk's
office, located at 220
j Fourth Avenue South in
i the City of Kent, or on-
line at https:!/Docu-
ments.kentwa.gov/.
l This ordinance,being an
exercise of a power spe-
cifically delegated to the
City's legislative body,is
not subject to referen-
dum. It shall be pub-
lished and will take ef-
fect 30 days after its
f passage. The Franchise
l Agreement, however,
shall become effective
i only upon its acceptance
f by Zayo Group,LLC and
execution by the Mayor.
Should Zayo fail to time-
ly file its written accep-
tance of the Franchise
Agreement,Zayo will be
deemed to have rejected
Classified Proof
and repudiated the Fran-
chise Agreement and
the franchise will be
voidable by the City.
ORDINANCE NO. 4339
AN ORDINANCE of
the City Council of the
City of Kent, Washing-
ton, amending chapters
15.02 and 15.04 of the
j Kent City Code relating ?
to group homes, board-
ing homes, short-term
rentals and communal
residences.
This ordinance shall take
effect and be in force 30
days from and after its
passage,as provided by
law.
ORDINANCE NO. 4340
AN ORDINANCE of
the City Council of the
City of Kent, Washing-
ton, amending sections
6.07.020 and 6.07.050
of the Kent City Code,
regulating signage in the
public right of way, and
amending chapters
15.02 and 15.06 of the
Kent City Code, regulat-
ing signage generally
within the City.
This ordinance shall take
effect and be in force
thirty days from and after
its passage,as provided
by law.
ORDINANCE NO. 4341
AN ORDINANCE of
the City Council of the
City of Kent, Washing-
ton, relating to local
sales or use taxes; im-
posing the maximum ca-
pacity of the tax author-
ized under the
provisions of RCW
82.14.540 for affordable
and supportive housing;
amending Chapter 3.16
of the Kent City Code by
adding a new section
3.16.035, entitled
"Additional sales or use
tax for housing";and au-
thorizing the Mayor to
use the funds and pool
resources with South
King Housing and
Homelessness Partners.
This ordinance,pursuant
to RCW 35A.11.090(7),
shall take effect and be
in force five days after its
publication, as provided
by law.
ORDINANCE NO. 4342
- AN ORDINANCE of
the City Council of the
City of Kent, Washing-
ton, amending chapters
3,18, 3.21, 3.26, 3.28
and 3.29, of the Kent
City Code to consolidate
administrative provisions
for all taxes, align the
City's B&O tax provi-
sions with the model or-
dinance, and add vari-
ous clarifications.
This ordinance shall take
effect and be in force
thirty days from and after
its passage,as provided
by law. The amend-
ments to the Kent City
Code herein, however,
shall not be effective un-
til January 1,2020.
ORDINANCE NO. 4343
AN ORDINANCE of
Classified Proof
me Crry uouncu of the
City of Kent„ Washing-
ton, approving the con-
solidating budget adjust-
ments made between
July 1, 2019 and Sep-
tember 30,2019,reflect-
ing an overall budget in-
crease of$12,002,345.
This ordinance shall take
effect and be in force
five days after publica-
tion,as provided by law.
ORDINANCE NO. 4344
AN ORDINANCE of
the City Council of the
City of Kent, Washing-
ton, relating to the mid-
biennial review and
modification of the 2019-
2020 biennial budget as
required by RCW
35A.34.130 and Ordi-
nance No. 4230; adopt-
ing certain modifications
to the 2020 budget;and
establishing an effective
date.
This ordinance shall take
effect and be in force
January 1, 2020, which
Is more than five days
after its publication, as
provided by law.
ORDINANCE NO. 4345
- AN ORDINANCE of
the City Council of the
City of Kent, Washing-
ton,levying 2019 proper-
ty taxes for the 2020 bi-
ennial budget for the
City of Kent.
This ordinance shall take
effect and be in force
January 1, 2020, which
is more than five days
after its publication, as
provided by law.
ORDINANCE NO. 4346
- AN ORDINANCE of
the City Council of the
City of Kent, Washing-
ton, amending the Kent
Comprehensive Plan
and its Capital Facilities
Element to reflect a six-
year plan for capital im-
provement projects
(2)020-2025)(CPA-2019-
This ordinance shall take
effect and be in force 30
days from and after its
passage,as provided by
law.
ORDINANCE NO. 4347
- AN ORDINANCE of
the City Council of the
City of Kent, Washing-
ton, amending the Kent
Comprehensive Plan
and its Capital Facilities
Element to include the
Capital Facilities Plans
of the Kent, Federal
Way, Auburn and High-
line School Districts
(CPA-2019-1).
This ordinance will take
effect and be in force 30
days from and after its
Passage,as provided by
law.
ORDINANCE NO. 4348
- AN ORDINANCE of
the City Council of the
City of Kent, Washing-
ton, amending Section
12.13.160 of the Kent
City Code to adjust the
school impact fee sched-
ules(CPA-2019-1).
This ordinance shall take
Classified Proof
errect ano De in rorce av
days from and after its
passage,as provided by
law.
ORDINANCE NO.4349
- AN ORDINANCE of
the City Council of the
City of Kent, Washing-
ton,providing for the ac-
quisition by eminent do- I
main of real property °
generally located on the
north side of the Green t
River and commonly f(
known as 7641 S.259th
St., which property is
needed for the construc-
tion of the Milwaukee II
Levee Improvement Pro-
ject.This ordinance pro-
vides for the condemna-
tion, appropriation,
taking,and damaging of
real property necessary
for that project and pro- !I
vides for the payment
thereof out of the Mil- j
waukee 11 Levee Im-
provement Project(Fund
No. D20090). This ordi-
nance also directs the
City Attorney to prose-
cute the appropriate le-
gal condemnation pro-
ceedings in King County
Superior Court,to retain
any legal counsel re-
quired,and to enter into
settlements,stipulations,
or other agreements as
may be necessary.
This ordinance shall take
effect and be in force
thirty days from and after
its passage,as provided
by law.
ORDINANCE NO. 4360
- AN ORDINANCE of
the City Council of the
City of Kent, Washing- i
ton,providing for the ac-
quisition by eminent do-
main of real property
generally located on the
north side of the Green
River, along S. 251st
Street,west of Washing-
ton Ave.S.,which prop- I
erty is needed for the
construction of the Sig-
nature Pointe Levee Irr>-
provement Project. This
ordinance provides for
the condemnation, ap-
propriation, taking, and
damaging of real proper-
ty necessary for that pro-
ject and provides for the
payment thereof out of
the Signature Pointe
Levee Improvement Pro-
ject(Fund No. D20085). I
This ordinance also di-
rects the City Attorney to
prosecute the appropri-
ate legal condemnation
proceedings in King
County Superior Court,
to retain any legal coun-
sel required, and to en-
ter into settlements,
stipulations, or other
agreements as may be
necessary.
This ordinance shall take
effect and be in force
thirty days from and after
its passage,as provided
by law.
A copy of the complete
text of any ordinance will
be mailed upon request
of the City Clerk.
Classified Proof
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City Cleric u V'
Kkomoto(alKentWA aov
253=56-5725
j Published in the Kent-
Covington Reporter
November 22, 2019.
#881426
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