HomeMy WebLinkAbout4496 ORDINANCE NO. 4496
AN ORDINANCE of the City Council of the
City of Kent, Washington, granting Ziply Fiber
Pacific, LLC a 10-year non-exclusive franchise, and
authorizing the Mayor to sign all documents
necessary to implement the full terms of the
negotiated agreement.
RECITALS
A. Ziply Fiber Pacific, LLC, a Delaware Limited Liability Company,
("Franchisee") has requested that the City Council grant it a non-exclusive
franchise to construct, maintain and operate a fiber optic network in the
City's Right-of-Way to provide telecommunications services, including
internet access services and Voice over Internet Protocol services.
B. RCW 35A.47.040 allows the City to grant nonexclusive
franchises to utility and cable providers for their use of City Right of Way,
but prohibits an ordinance granting a franchise from being adopted until at
least five days have passed after it is first introduced to the City Council.
This franchise was presented to the Committee of the Whole on July 16,
2024 and first introduced to Council at its regular meeting on that same
date. Then, it was presented to Council a second time at its regular
meeting on August 6, 2024.
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C. Through this ordinance, the City grants a 10-year franchise to
Ziply and authorizes the Mayor to sign all documents necessary to fully
implement the agreement negotiated between the City and Ziply.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT,
WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
ORDINANCE
SECTION 1. - Franchise Granted. The Fiber Franchise Agreement
between the City of Kent and Ziply Fiber Pacific, LLC, substantially in the
form attached and incorporated as Exhibit A, is hereby granted. Upon
Ziply's acceptance of the Fiber Franchise Agreement, 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. - 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.
SECTION 4. - 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 Fiber Franchise Agreement, however, shall become
effective only upon its acceptance by Ziply Fiber Pacific, LLC and execution
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Ziply Fiber Pacific, LLC
by the Mayor. Should Ziply fail to timely file its written acceptance of the
Fiber Franchise Agreement, Ziply will be deemed to have rejected and
repudiated the Fiber Franchise Agreement and the franchise will be
voidable by the City.
August 6, 2024
D�ANARALPH�MOR Date Approved
ATTEST:
August 6, 2024
KIMBERLEY � KOMOTO, CI ERK Date Adopted
August 9, 2024
Date Published
APPROVED AS TO FORM:
TAMMY WHITE, CITY ATTORNEY naT�t/
Y ' W`�BdRiflf3pl�}Y' .
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EXHIBIT A
ZIPLY FIBER PACIFIC, 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 "Affiliate" means any Person that now or in the future, directly or indirectly
controls, is controlled with or by, or is under common control with Franchisee.
1.2 "Applicable Laws" means any local, federal, or state statute, law, regulation,
or other legal authority governing any of the matters addressed in this Franchise, as
all now exist or as later amended or superseded.
1.3 "City" means the City of Kent, Washington, a Washington municipal
corporation.
1.4 "Control" means, with respect to: (i) a U.S. corporation, the ownership,
directly or indirectly, of 50% or more of the voting power to elect directors thereof,
or (ii) a non-U.S. corporation, if the voting power to elect directors thereof is less
than 50%, the maximum amount allowed by Applicable Laws; and (iii) any other
Person, 50% or more ownership interest in this Person, or the power to direct the
management of such Person.
1.5 "Director" means the Public Works Director, Economic and Community
Development Director or designee.
1.6 "Emergency Situation" means a condition posing an imminent threat to
property, life, health, or safety of any Person or entity.
1.7 "Facilities" or "Network" means one or more elements of Franchisee's fiber
network, with all necessary aerial or underground fiber optic cables, lines, wires, or
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strands and associated appurtenances; underground conduits, vaults, access
manholes and handholes; electronic equipment; power generators; batteries;
pedestals; boxes; cabinets; vaults; and other similar facilities. New utility poles or
towers for overhead wires, cabling or antennas are specifically excluded.
1.8 "Force Majeure Event" means natural disasters, civil disturbances, work
stoppages or labor disputes, power outages, telephone network outages, and severe
or unusual weather conditions which have a direct and substantial impact on the
Franchisee's ability to provide Services in the City and which was not caused and
could not have been avoided by the Franchisee which used its best efforts in its
operations to avoid such results.
1.9 "'Franchisee" means Ziply Fiber Pacific, LLC a Delaware Limited Liability
Company.
1.10 "Hazardous Substances" means any substance or material that is regulated
by any current or future federal, state, or local statutes, regulations, ordinances, and
rules relating to: the emission, discharge, release or threatened release of any
hazardous substance into the air, surface water, groundwater or land; the
manufacturing, processing, use, generation, treatment, storage, disposal,
transportation, handling, removal, remediation or investigation of a hazardous
material; and the protection human health, safety, or the indoor or outdoor
environment, including without limitation the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. §§ 9601, et seq.; the Hazardous
Materials Transportation Act, 49 U.S.C. §§ 5101, et seq.; the Resource Conservation
and Recovery Act, 42 U.S.C. §§ 6901, et seq.; the Toxic Substances Control Act, 15
U.S.C. §§ 2601, et seq.; the Clean Water Act, 33 U.S.C. §§ 1251, et seq.; the Clean
Air Act, 42 U.S.C. §§ 7401, et seq.; the Occupational Safety and Health Act, 29 U.S.C.
§§ 651, et seq.; all applicable environmental statutes of the State of Washington;
and all other federal, state or local statutes, laws, ordinances, resolutions, codes,
rules, regulations, orders or decrees regulation, relating to, or imposing liability or
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standards of conduct concerning any hazardous, toxic or dangerous waste, substance
or material, as now or at any time hereafter in effect.
1.11 "Microtrenching" means a technique for installing conduit to house fiberoptic
cable, utilizing a shallower and narrower cut, up to 2" wide with a depth up to 16".
1.12 "Parties" (singular "'Party") refers to both the City and Franchisee.
1.13 "Person" means any natural person, or public or private legal entity of any
kind.
1.14 "Public Improvement" means the establishment and improvement of new
Rights-of-Way, widening or improvement of existing Rights-of-Way or both, freeway
construction, change or establishment of street grade, or the construction of any
public infrastructure by any governmental agency acting in a governmental capacity
as approved by the City, or as otherwise necessary for the operations of the City or
other governmental entity.
1.15 "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 land,
facilities, or property owned, maintained, or leased by the City in its governmental or
proprietary capacity or as an operator of a utility.
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SECTION 2. - Franchise Granted.
2.1 Franchise and Term. Pursuant to RCW 35A.47.040, the City hereby grants to
Franchisee, its successors, legal representatives and assigns, subject to the terms
and conditions set forth herein, a non-exclusive Franchise for a period of 10 years,
beginning on the effective date of the ordinance authorizing this Franchise (the
"Effective Date").
2.2 Termination.
2.2.1 Termination by City. The City may terminate this Franchise if Franchisee
is in material breach of the Franchise and has failed to cure the breach within the
applicable notice and cure period as specified in Section 17. No termination under
this subsection will be effective until the applicable notice and cure period has
expired. Additionally, if Franchisee fails to apply for any permits to install Facilities
within two years of the Effective Date of this Franchise, the City may terminate this
Franchise after providing Franchisee with 90 days' written notice.
2.2.2 Termination by Franchisee. Franchisee may terminate this Agreement
for convenience upon 180 days' written notice to the City.
2.3 Franchise Purpose. This Franchise grants Franchisee the right, privilege, and
authority to construct, operate, maintain, replace, relocate, restore, upgrade,
remove, excavate, acquire, sell, lease, and use all necessary Facilities for a fiber optic
infrastructure Network in, under, on, across, over, through, along or below the public
Rights-of-Way located in the City, and any areas added to the corporate limits of the
City during the term of this Franchise (the 'Franchise Area") for the purpose of
providing the Services (as defined in Section 2.5.1).
2.4 Limited Authorization.
2.4.1 The authority granted by this Franchise is a limited, non-exclusive
authorization to occupy and use the City's Rights-of-Way and does not authorize
Franchisee to use any property other than the Rights-of-Way as agreed herein.
Nothing within this Franchise shall be construed to grant or convey any right, title,
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or interest in the Rights-of-Way of the City to Franchisee other than for the purpose
of providing the Services defined within Section 2.5.1. Franchisee's use of any other
City property, including City-owned or leased property, or poles and conduits, must
be governed under a separate agreement.
2.4.2 This Franchise shall not prevent the City from granting other franchises
within its Rights-of-Way, nor shall it 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 retains power to make all necessary changes, relocations, repairs,
maintenance, establishment, improvement, dedication of Right-of-Way as it 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.
2.4.3 The City also reserves the right to amend this Franchise to conform to
any hereafter enacted, amended, or adopted Applicable Laws relating to the public
health, safety, and welfare or relating to roadway regulation, upon providing
Franchisee with 30 days' written notice of its action setting forth the full text of the
amendment and identifying the Applicable Laws. This amendment shall become
automatically effective upon expiration of the notice period unless, before expiration
of that period, Franchisee requests in writing to negotiate the terms of the
amendment. If the Parties do not reach agreement as to the amendment terms within
30 days of the request to negotiate, the City may enact the proposed amendment by
incorporating Franchisee's concerns to the maximum extent that the City, in its sole
discretion, deems reasonable.
2.5 Authorized Services.
2.5.1 Franchisee represents that it intends to provide the following services
within the City (the "Services"): telecommunications services, including Internet
access services as defined RCW 82.04.297 and Voice over Internet Protocol services,
but excluding multichannel video programming services that would be subject to a
video services franchise, to residents and businesses within the City (the
`Customers"). Franchisee may not offer Cable Services as that term is defined in 47
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U.S.C. § 522(6). This Franchise does not authorize any wireless communications
services.
2.5.2 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 this Section 2.5 to its Customers consistent with this Franchise provided:
a. Franchisee at all times retains exclusive control over its Facilities and
Services; remains responsible for constructing, installing, and
maintaining its Facilities pursuant to the terms and conditions of this
Franchise; and solely responsible for providing and maintaining Services
to its Customers;
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 will not be construed to be a third-party
beneficiary under this Franchise; and
d. No Customer or lessee that accesses Franchisee's Facilities within the
City limits may use the Facilities or Services for any purpose not
authorized by this Franchise, unless that Customer has a franchise with
the City. Then, the Customer may use Franchisee's Facilities or Services
consistent with the terms of its franchise.
SECTION 3. — Work in the Riahts:: Way.
3.1 Location of Facilities. Franchisee may locate its Facilities within the Franchise
Area consistent with the City's Design and Construction Standards and subject to the
City's applicable permit requirements. Except that, until the City adopts a code
amendment or administrative regulations addressing Microtrenching, Franchisee may
only install Facilities by Microtrenching or in a micro trench under conditions imposed
in a separate agreement.
3.2 Permits Required. Franchisee shall not commence any work within any Rights-
of-Way without first obtaining all necessary permits as required by Applicable Laws.
Franchisee shall pay the standard permit fee, then all lawful processing,
field
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marking, engineering, and inspection fees associated with the issuance of permits by
the City.
3.3 Work Requirements. 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 or
other authorization pursuant to Section 3.2 and this Section 3.3. 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, consistent with the
requirements of Applicable Law. Traffic control devices include but are not limited to
barricades, traffic cones, traffic drums, tubular markers, flags, certified flaggers,
lights, flares, and other measures as required for the safety of all members of the
general public. Franchisee shall also comply with all applicable safety regulations
during such period of construction as required by all Applicable Laws, including,
without limitation, RCW 39.04.180 for the requirement of trench safety systems for
trench excavations.
3.4 Work of Contractors and Subcontractors. Franchisee's contractors and
subcontractors shall be licensed and bonded in accordance with Applicable Laws.
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.
3.5 Maintenance of Facilities. 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.
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3.6 Shared Excavation. If either the City or Franchisee plans to make excavations
in any area covered by this Franchise and as described in this Section 3.6, the Party
planning the excavation shall endeavor to afford the other an opportunity to share
the 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
C. The initiating Party may deny a request for constructability and/or safety
reasons.
3.7 Coordination of Construction.
3.7.1 Except for Emergency Situations, Franchisee shall give advance written
notice of intended construction to property owners and/or residents within 100 feet
of the construction area as follows: if construction is ground disturbing - at least
seven days; otherwise - 48 hours. This notice shall contain the dates, contact
number, nature, and location of the work to be performed; a door hanger is
permissible. At least 24 hours before 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.
3.7.2 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,
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be promptly repaired and restored to the reasonable satisfaction of the property
owner/resident.
3.7.3 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.
3.8 One Call Locator Service. Before 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 Laws regarding the
One Call Locator Service pursuant to chapter 19.122 RCW. Neither the City nor its
contractors, shall 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.
3.9 Restoration and Repair of Rights-of Way.
3.9.1 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 15,
within 30 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.
3.9.2 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 or other agreement.
Franchisee also agrees to repair any damage caused by work to the Franchise Area
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within 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 shall be warranted for as long as Franchisee has Facilities within the
Rights-of-Way and also for undiscovered defects including the condition of the
pavement surface altered by the installation, repair, relocation, or removal of
Franchisee's Facilities. The warranty for Franchisee's work in a specified location will
end if the City completes a Public Improvement modifying or altering the pavement
surface, such as: overlays, slurry seals, or chip seals.
3.9.3 If conditions (e.g., weather) make the complete restoration required
under this Section 3 impracticable, Franchisee shall temporarily restore the affected
Right-of-Way or property at its sole cost and expense to the City's satisfaction.
Franchisee shall promptly undertake and complete the required permanent
restoration as soon as conditions no longer make permanent restoration
impracticable.
3.9.4 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 3, the City may repair
the damage and shall be reimbursed its actual costs within 60 days of submitting an
itemized invoice to Franchisee in accordance with the provisions of Section 11. The
City may also bill Franchisee for any expenses associated with the inspection of this
repair work and for costs incurred by the City for delays impacting Public
Improvements.
3.10 Survey Monuments. 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.
3.11 Trees. Franchisee may trim trees within the Right-of-Way so as to prevent the
branches of these trees from coming in contact with Franchisee's above ground
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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 these activities. 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.
3.12 Graffiti Removal. Franchisee shall remove all graffiti on any of its Facilities no
later than 14 days from the date Franchisee receives written notice from the City or
is otherwise made aware of the graffiti.
SECTION 4, — Relocation of Facilities.
4.1 Relocation Requirement.
4.1.1 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 for Public Improvement.
4.1.2 If the City's request for relocation arises from a Public Improvement, in
which Facilities must be either replaced or removed, then Franchisee shall relocate
or remove its Facilities at its sole cost and expense, subject to the procedure in
Section 4.3. Franchisee acknowledges and agrees that the placement of Facilities on
third party-owned or City owned structures does not convey an ownership interest in
these structures.
4.2 Design Locates. To facilitate the design of City street and Right-of-Way
improvements, upon written request of the City, or a third party performing work in
the Right-of-Way, Franchisee shall, at its sole cost and expense, locate, and if
determined necessary by the City, excavate, and/or survey its Facilities so that as
the Facilities' location may be taken into account in the design of the improvements.
The decision as to whether any Facilities need to be relocated to accommodate the
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Public Improvement shall be made by the City. The Franchisee shall respond to the
City's request for excavation and/or survey within 30 days.
4.3 Notice and Relocation Procedure. If the City determines a Public Improvement
necessitates the relocation of Franchisee's existing Facilities, the City shall:
a. At least 90 days before commencing the Public Improvement, provide
Franchisee with written notice requiring such relocation and a date by
which relocation must be complete; except that in the event of an
Emergency Situation, the City shall give Franchisee written notice as
soon as practicable; and
b. At least 90 days before commencing the Public Improvement, 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 this notice and such plans and specifications, Franchisee
shall complete relocation of its Facilities by the date established in
accordance with this Section 4.3 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.
4.4 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.
4.5 Contractor Delay Claims. Franchisee shall be solely responsible for the out-of-
pocket costs incurred by the City for delays in a Public Improvement 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
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or conditions caused by the acts or omissions of the City or any third party unrelated
to Franchisee; Franchisee vendors and contractors shall not be considered unrelated
third parties). The 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 Franchisee's caused delay in the Public Improvement.
4.6 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 lower its Facilities to permit the moving of buildings or
other objects. The expense of the temporary removal, raising or lowering of Facilities
shall be at the expense of the requestor.
4.7 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 4,
the City may perform this work or cause it to be done, and the Franchisee shall pay
the City's costs in accordance with Section 11.
SECTION 5. - Und -rcrounding of Facilities.
5.1 Underground Installation. 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 ("KCC"),
where all other utilities are required to underground. Unless otherwise permitted by
the City, Franchisee shall also underground its Facilities in all new developments and
subdivisions and in any development or subdivision where utilities are currently
underground.
5.2 Future Requirement to Underground. If the City requires the undergrounding
of 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, in a location approved by the City and at Franchisee's
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expense. This requirement applies even if the City did not require the undergrounding
of Franchisee's Facilities at the time of a permit application and/or subsequent
construction.
5.3 Utility Trench Access. Franchisee may be provided reasonable access to open
utility trenches constructed as part of a Public Improvement, so long as this 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 of 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 the project.
Franchisee shall reimburse the City in accordance with the provisions of Section 11.
5.4 Removal of Fiber. 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 without a permit as may be required by Applicable
Laws.
SECTION 6. — Information, Inventory, and Records.
6.1 Information Request.
6.1.1 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 Applicable Laws. 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.
6.1.2 Within 30 days of a written request from the Director, but no 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
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Franchisee's Services and Facilities have been properly collected and paid by the
Franchisee.
6.2 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 within 60 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 digital format and 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. Franchisee shall cooperate with the
City to furnish this information in an electronic mapping format compatible with the
current City electronic mapping format using the approved City datum.
6.3 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 6.3 shall be construed to require Franchisee to violate
Applicable Laws regarding customer privacy, nor shall this Section 6.3 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 Applicable Laws, nothing in this Section 6.3 shall be
construed as permission to withhold relevant customer data from the City that the
City requests in conjunction with a tax audit or review; except that Franchisee may
redact identifying information such as names, street addresses (excluding City and
zip code), Social Security Numbers, or Employer Identification Numbers related to
any confidentiality agreements Franchisee has with third parties.
6.4 Public Records Act. 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 Applicable Laws.
6.4.1 Franchisee may identify documents submitted to the City that
Franchisee believes are non-disclosable, such as trade secrets. Franchisee shall be
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responsible for clearly and conspicuously identifying the work as confidential or
proprietary, and shall provide a brief written explanation as to why the information
is confidential and how it may be treated as such under Applicable Laws. The City
agrees to keep confidential any proprietary or confidential books or records to the
extent permitted by Applicable Laws.
6.4.2 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
before disclosure so that Franchisee can take appropriate steps to protect its
interests. Nothing in this Section 6.4 prohibits the City from complying with chapter
42.56 RCW or any other Applicable Laws 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.
6.4.3 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 the 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 these records within 45 days of a request
from the City, unless additional time is reasonably necessary under the circumstances
and is agreed to by the Parties.
6.5 Annual Audit. On an annual basis, upon 30 days' 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
generally accepted accounting practices and any standards adopted by the
Governmental Accounting Standards Board. If the audit shows that tax or fee
payments have been underpaid by 3% or more, Franchisee shall pay the total cost
of the audit.
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SECTION 7. — 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 30 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 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 denied,
Franchisee shall remove the Unauthorized Facilities from the City's Right-of-Way
within 30 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 S. — Safety Requirements.
8.1 Safe Condition. Franchisee shall at all times, at its own expense, maintain its
Facilities in, over, under, and upon the Rights-of-Way 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. Upon reasonable notice to Franchisee, the City reserves the
general right to inspect the Facilities to evaluate if they are being maintained in a
safe condition. If an unsafe condition or a violation of this Section 8.1 becomes known
to the City, the City agrees to give Franchisee written notice of the condition and
afford Franchisee a reasonable opportunity to repair the condition. If Franchisee fails
to start to make the necessary repairs and alterations within a reasonable time frame
specified in the notice (and pursue the cure to completion), then the City may make
the repairs or contract for them to be made. All costs, including administrative costs,
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incurred by the City in repairing any unsafe conditions shall be borne by Franchisee
and reimbursed to the City.
8.2 Additional Safety Standards. Additional safety standards include:
a. Franchisee shall maintain all equipment lines and Facilities in an orderly
manner, including, but not limited to, the removal of all bundles of
unused cable.
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.
8.3 Hazardous Substances. Franchisee shall not introduce or use any Hazardous
Substances,in violation of any Applicable Laws, 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 claims,
costs, and liabilities including reasonable attorney fees and costs, arising out of or in
connection with the cleanup or restoration of the property to the extent caused by
Franchisee's use, storage, or disposal of Hazardous Substances, whether or not
intentional, and the use, storage, or disposal of such substances by Franchisee's
agents, contractors, or other Persons acting under Franchisee's control, whether or
not intentional. Franchisee shall have only that responsibility or liability for managing,
monitoring, or abating a hazardous condition that it may have under state or federal
law and this Franchise shall not be interpreted to expand Franchisee's legal
obligations relating to any pre-existing Hazardous Substances undisturbed by
Franchisee.
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SECTION 9. — Provision of Conduit. Except in Emergency Situations,
Franchisee shall provide the Director with at least 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 in one or more of the locations where Franchisee
constructs, installs, or relocates Facilities underground. If so requested, the conduit
shall be provided at Franchisee's incremental cost and per the terms of a separate
agreement. Franchise shall install a locator wire and cap off all conduit ends. Conduit
ends shall be marked on any as-built plans and maps requested pursuant to Section
6. Any conduit delivered to the City pursuant to this Section 9 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 the conduit. The City shall
make any request for conduit per this Section 9 request in writing before issuance of
the applicable permit to Franchisee.
SECTION 10. — Emeraency Situations.
10.1 Immediate Action Required. In the event of any Emergency Situation 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.
10.2 Lateral Support. 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
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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 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 the 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 Section 11.
10.3 Reimbursement. Franchisee shall promptly reimburse the City in accordance
with the provisions of Section 11 for any and all costs the City reasonably incurs in
response to any Emergency Situation involving Franchisee's Facilities, to the extent
this emergency is not the City's fault. The City agrees to simultaneously seek
reimbursement from any other franchisee or permit holder who caused or contributed
to the Emergency Situation.
SECTION 11. — Recovery of Costs.
11.1 Franchise Costs. Franchisee shall reimburse the City for its actual and
documented administrative, legal, and other costs incurred in drafting and processing
this Franchise and all work related thereto pursuant to RCW 35.21.860(1)(b), The
Franchisee shall also pay the cost of publication of this Franchise. No construction
permits shall be issued for the installation of Facilities authorized until the City has
received this reimbursement.
11.2 Additional Costs. 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
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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 these costs
and expenses directly to the City in accordance with the provisions of Section 11.4.
11.3 City Project Costs. Franchisee shall reimburse the City 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. These 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. These 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.
11.4 Payment of Costs. The time of City employees shall be charged at their
respective rate of salary, including overtime if applicable, plus benefits and
reasonable overhead. Any other costs will be billed proportionately on an actual cost
basis. All billings will be itemized so as to specifically identify the costs and expenses
for each project for which the City claims reimbursement. A charge for the actual
costs incurred in preparing the billing may also be included in the billing. Franchisee
shall reimburse the City within 60 days of submittal by the City of an itemized billing
for costs incurred under this Section 11.
SECTION 12. — City's Reservation of Rights.
12.1 Franchise Fees. The City is not seeking to impose any franchise fee or similar
compensation for the benefits and privileges granted under this Franchise and in
consideration of the permission to use the City's Rights-of-Way as of the effective
date of this Franchise. However, the City reserves the right to impose a franchise fee
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upon 120 days' notice to Franchisee, if it believes it is consistent with Applicable
Laws. Franchisee reserves the right to challenge the imposition of any such
compensation if it believes it is inconsistent with Applicable Laws. Payment of a
franchise fee under this Franchise shall not exempt Franchisee from the payment of
any generally applicable fee, tax, or charge on the business, occupation, property, or
income of Franchisee that may be imposed by the City. 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 Laws.
12.2 Utility Tax. 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 KCC. Franchisee understands that RCW 35.21.870 currently limits
the rate of city tax upon telephone business activities to 6% of gross income (as that
term is defined in chapter 3.18 KCC), 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
applicable rate under chapter 3.18 KCC, and consistent with state and federal law.
The Parties agree however, that nothing in this Franchise shall limit the City's power
of taxation as may exist now or as later imposed by the City. This provision does not
limit the City's power to amend chapter 3.18 KCC as may be permitted by law.
Nothing in this Section 12.2 is intended to alter, amend, modify, or expand the taxes
and fees that may lawfully be assessed on Franchisee's business activities under this
Franchise under Applicable Laws.
SECTION 13. — Indemnification; Liability.
13.1 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
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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.
13.2 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 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 if
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.
13.3 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 prejudices 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 is necessary. Then, the provisions
of Section 13.5 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
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of claims affecting the City without the City's consent, such consent not to be
unreasonable withheld or delayed.
13.4 Avoidance. 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 13. Whether
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.
13.5 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
incurred by the City in defending itself with regard to any action, suit, or proceeding
subject to indemnification by Franchisee. Except that, if 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 or delayed. 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.
13.6 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
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negligence. It is 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.
SECTION 14. — Insurance.
14.1 Policies. Franchisee shall maintain in full force and effect at its own cost and
expense each of the following policies of insurance:
a. Commercial General Liability insurance with limits of no less than
$5,000,000 per occurrence and $5,000,000 general aggregate.
Coverage shall be at least as broad as that provided by ISO CG 00 01
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.
If the Franchisee maintains broader coverage and/or higher limits than the
minimums within this Section 14.1, the City requires and shall be entitled to the
broader coverage and/or the higher limits maintained by the Franchisee. Any
available insurance proceeds in excess of the specified minimum limits of
insurance and coverage shall be available to the City.
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14.2 Deductibles. Any deductible of the policies shall not in any way limit
Franchisee's liability to the City.
14.3 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 Laws, or in the
construction, operation or repair, or ownership of the Network;
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.
14.4 Acceptability of Insurers. The insurance obtained by Franchisee shall be placed
with insurers with a Best's rating of no less than "A VII. '
14.5 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
shall be signed by a Person authorized by that insurer to bind coverage on its behalf.
The certificates and endorsements for each insurance policy shall be on forms that
are consistent with standard industry practices.
14.6 Maintenance of Insurance. Franchisee's maintenance of insurance as required
by this Section 14 shall not be construed to limit the liability of Franchisee to the
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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.
SECTION 15. — 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 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 before 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 30 days of receipt of City's notice
may be removed by the City and the area restored at Franchisee's cost. Franchisee
shall pay these costs to the City within 30 days of receiving an invoice. If Franchisee
fails to pay the City within this timeframe, the City may avail itself of any remedy
available at law or equity.
SECTION 16, — Bonds.
16.1 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 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 funds shall guarantee the following: (1) timely
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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) repair and restoration of any damage to public or
private property caused by the construction; (6) submission of as-built drawings after
completion of construction; and (7) 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 and/or any necessary repairs,
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 16.2. Compliance with the performance guarantee
requirement of the City's current Design and Construction Standards shall satisfy the
provisions of this Section.
16.2 Maintenance Guarantee. Maintenance and the successful operation of
the Right-of-Way improvements shall be bonded for a period of at least two 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 20% of the
original performance construction guarantee as described in Section 16.1, whichever
is greater. At six-month intervals during this maintenance period, the City will inspect
the improvements and identify to Franchisee any noted deficiencies. Franchisee will
have 30 days to correct any deficiencies. The satisfactory correction of the work may
commence a new two-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 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 16.2. Original financial guarantee amounts described in Section 16.1 and this
Section 16.2 may be reduced one time only before the maintenance period, at the
discretion of the City. If an extension to any associated permits are granted, the
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financial guarantees may be increased based on an updated engineer's cost estimate
or as determined by the City. Financia► guarantees will be fully released only after all
final punchlist items are accomplished, final construction approval, and the elapse of
the two-year maintenance guarantee period with all corrective actions complete and
accepted by the City.
16.3 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 16.3 will constitute a material
breach of this Franchise, subject to the notice and cure provisions of Section 17.2.
Franchisee further agrees to replenish the Franchise Bond within 30 days after written
notice from the City that the amount of the Franchise Bond is deficient. 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.
16.4 Form of Bonds. All bonds provided to the City under this Section 16 shall be
on forms provided by the City and with sureties registered with the Washington State
Insurance Commissioner or other financial institutions acceptable to the City.
SECTION 17. - Remedies to Enforce Compliance.
17.1 Reservation of Rights.
17.1.1 In addition to the remedies provided in this Franchise, the City reserves
the right to pursue any remedy available at law or in equity to compel or require
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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.
17.1.2 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. These rights and remedies are not exclusive, and the exercise of
one or more rights or remedies may not be deemed a waiver of the right to exercise
any other right or remedy at any time. Neither Party intends to waive any other
rights, remedies, or obligations as provided by law, equity, or otherwise, and nothing
contained in this Franchise shall be construed to effect any such waiver.
17.2 Procedure upon Breach. If either Party violates or fails to comply with any of
the provisions of this Franchise or a permit issued as required by Section 3.2, or fails
to heed or comply with any notice given under the provisions of this Franchise (the
"Defaulting Party"), the other Party (the "Non-defaulting Party") shall provide the
Defaulting Party with written notice specifying with reasonable particularity the
nature of the breach and the Defaulting Party shall undertake all commercially
reasonable efforts to cure the breach within 30 days of receipt of notification. If the
Non-defaulting Party reasonably determines the breach cannot be cured within 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 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. Or if Franchisee has failed to timely cure the
breach, the City, at its sole discretion, may elect to: (1) terminate this Franchise
pursuant to Section 2.2; (2) claim liquidated damages of Two Hundred Fifty Dollars
($250.00) per day against Franchisee (and collect from the Franchise Bond if
necessary) as an estimate for damages that the Parties understand will be difficult to
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calculate in the event of a default; or (3) extend the time to cure the breach if under
the circumstances additional time is reasonably required.
SECTION 18. — 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 19. — Police Powers and City Regulations. Nothing within this
Franchise may 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, the other ordinances(s) shall take precedence over
this Franchise.
SECTION 20. — Acceptance. This Franchise may be accepted by Franchisee
by its filing with the City Clerk of an unconditional written acceptance, within 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 will constitute 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
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City of Kent - Ziply Fiber Pacific, LLC
Fiber Franchise Agreement
to Section 14, any construction guarantees and bonds, if applicable, and the costs
described in Section 16.
SECTION 21. — Survival, All of the provisions, conditions, and requirements
in Sections 3, 4, 5, and 13 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. All of the provisions, conditions, regulations, and requirements
contained in this Franchise shall further be binding upon the successors, executors,
administrators, legal representatives, and assigns of Franchisee and all privileges, as
well as all obligations and liabilities of Franchisee shall inure to its successors and
assigns equally as if they were specifically mentioned where Franchisee is named.
SECTION 22. — Assignment and Changes of Ownership or Control.
22.1 Written Consent. Except as set forth below, neither Party may assign or
transfer its rights or obligations under this Agreement, in whole or part, to a third
party, without the written consent of the other Party which shall not be unreasonably
withheld, conditioned, or delayed. Any agreed upon assignee will take the place of
the assigning Party, and the assigning Party will be released from all of its rights and
obligations upon such assignment.
22.1.1 Notwithstanding the foregoing, Franchisee may at any time, on written
notice to Municipality, assign this Agreement or any or all of its rights and obligations
under this Agreement:
a. to any Affiliate of Franchisee;
b. to any successor in interest of Franchisee's business operations in
Municipality in connection with any merger, acquisition, or similar
transaction if Franchisee determines after a reasonable investigation
that the successor in interest has the resources and ability to fulfill the
obligations of this Agreement; or
C. to any purchaser of all or substantially all of Franchisee's Network
Facilities in Municipality if Franchisee determines after a reasonable
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City of Kent - Ziply Fiber Pacific, LLC
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investigation that the purchaser has the resources and ability to fulfill
the obligations of this Agreement.
The written notice required by this Section shall be 30 days before the closing of the
transaction under subsection a, and 90 days before the closing of any transaction
under subsections b and c. In connection with any proposed transaction under
subsections b and c, Franchisee shall cooperate with any requests from the City for
any information related to the legal, technical and/or financial ability of a proposed
purchaser or successor in interest to comply with the terms of this Franchise.
22.2 Franchisee Responsibility. Following any assignment of this Agreement to an
Affiliate, Franchisee will remain responsible for the Affiliate's performance under the
terms of this Agreement.
SECTION 23. — Eminent Domain. The existence of this Franchise shall not
preclude the City from acquiring by condemnation in accordance with Applicable
Laws, all or a portion of Franchisee's Facilities for the fair market value. In
determining the value of Facilities, no value shall be attributed to the right to occupy
the area conferred by this Franchise.
SECTION 24. — 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 the vacation. The City shall notify Franchisee in writing not less than 60
days before vacating all or any portion of any such area. The City will, if practicable,
reserve an easement for Franchisee's Facilities under the same terms and conditions
as this Franchise at the location vacated by City, and if not practicable, the City may,
after 60 days' written notice to Franchisee, terminate this Franchise with respect to
such vacated area.
SECTION 25. — Notice. Any notice or information required or permitted to
be given to the Parties under this Franchise shall be sent to the following addresses
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City of Kent - Ziply Fiber Pacific, LLC
Fiber Franchise Agreement
unless otherwise specified by personal delivery, overnight mail by a nationally
recognized courier, or by U.S. certified mail, return receipt requested and shall be
effective upon receipt or refusal of delivery:
CITY OF KENT
Attn: City Clerk
220 Fourth Avenue South
Kent, WA 98032
Company Address:
Ziply Fiber Pacific, LLC
Attn: Legal Department
135 Lake Street South, Suite 155
Kirkland, WA 98033
legal@ziply.com
SECTION 26. -,Compliance with all Applicable Laws. Each Party agrees
to comply with all Applicable Laws. This Franchise is subject to ordinances of general
applicability enacted pursuant to the City's police powers. Franchisee acknowledges
that it shall be solely responsible for compliance with any applicable law or regulation
of the Federal Communications Commission ("FCC") to engage in business associated
with use of the Rights-of-Way.
SECTION 27. - Attorney'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 13 of this Franchise.
SECTION 28. - Licenses, Fees and Taxes. Before 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
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City of Kent - Ziply Fiber Pacific, LLC
Fiber Franchise Agreement
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
Laws.
SECTION 29. — Miscellaneous.
29.1 Entire Agreement. This Franchise constitutes the entire understanding and
agreement between the Parties as to the subject matter herein and no other
agreements or understandings, written or otherwise, will be binding upon the Parties
upon execution of this Franchise.
29.2 Severability. If any section, sentence, clause, or phrase of this Franchise is
held to be invalid or unconstitutional by a court of competent jurisdiction, such
invalidity or unconstitutionality will 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 the court's ruling.
29.3 Authorized Signatories. 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.
29.4 Venue. This Franchise is governed by 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.
29.5 Section Headings. Section headings are intended solely to facilitate the
reading of this Franchise and may not affect the meaning or interpretation of the text
within this Franchise.
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29.6 No Third-Party Beneficiaries. There are no third party beneficiaries to this
Franchise.
29.7 Enforcement. 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 (2t"day of , 2024.
ATTEST: CITY OF (CENT, WASHINGTON
City Cl r Mayor
APPROVED AS TO FORM:
O-k&- -)F�e k-----
City Attorney
Accepted and approved this day of _, 2024.
ZIPLY FIBER PACIFIC, LLC
Name/Title:
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City of Kent - Ziply Fiber Pacific, LLC
Fiber Franchise Agreement
9,6 Rp Thirq- arty Egjjg caries. There are no third party beneficiaries to this
ranchise.
29.7 Eff'oNement, This Franchise may be enforced at both law and in equity.
IN WITNESS WHEREOF, this Franchise is signed in the name of the City o
Kent, Washington this "- ay of „ lt- ~- 2024
ATTEST: CITY OF KENT, WASHINGTON
Mayor
City Cler(e
APPROVED AS TO FORM:
City Attorney
l /A UL v�N 2024.
Accepted and approved this day of
ZIPLY FIBER PACIFIC, LLC ,ram
Name/Title
vp/ E4 G Cav����
Paae 35
.Itv of Kent - Ziply Fiber pacific, LLC
.=fiber Franchise Agreement
EXHIBIT A
STATEMENT OF ACCEPTANCE
Ziply Fiber Pacific, LLC 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. Ziply Fiber Pacific LLC 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. Ziply Fiber Pacific LLC 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.
Ziply Fiber Pacific, LLC
(�
L -= 4 Y _. Date:
By: _
Name: George Baker Thomson, )r.
Title: VP, Associate General Counsel
STATE OF WASHINGTON
) ss.
County of King
I certify that I know or have satisfactory evidence that
is the person who appeared before me, and said
person acknowledged that (he/she) signed this instrument, on oath stated that
(he/she) was authorized to execute the instrument and acknowledged it as the
U6-491A, Ziply Fiber Pacific, LLC to be free and voluntary acts of
such party for the uses and purposes mentioned in the instrument.
mated this - dayof
....../IS,- 4ril 2024,
Nota6in and for t
ryPubli , in and for t
State of Washington res Ing at
My commission expires
BYRON E SPRINGER
I Notary Public
State of Washington
commission#211055
My Comm. Expires Nov 11, 2027
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City of Kent - Ziply Fiber Pacific, LLC
Fiber Franchise Agreement
Kent Reporter
Affidavit of Publication
State of Washington }
County of King } ss
Amanda Kahlke being first duly sworn, upon
oath deposes and says: that he/she is the legal
representative of the Kent Reporter a weekly
newspaper. The said newspaper is a legal
newspaper by order of the superior court in the
county in which it is published and is now and
has been for more than six months prior to the
date of the first publication of the Notice
hereinafter referred to, published in the English
language continually as a weekly newspaper in
King County, Washington and is and always
has been printed in whole or part in the Kent
Reporter and is of general circulation in said
County, and is a legal newspaper, in accordance
with the Chapter 99 of the Laws of 1921, as
amended by Chapter 213, Laws of 1941, and
approved as a legal newspaper by order of the
Superior Court of King County, State of
Washington, by order dated June 16. 1941, and
that the annexed is a true copy of KEN1000059
ORD 4495" 4496 as it was published in the
regular and entire issue of said paper and not as
a supplement form thereof for a period of 2
issue(s), such publication commencing on
08/09/2024 and ending on 08/09/2024 and that
said newspaper was regularly distributed to its
subscribers during all of said period.
The amount of the fee for such publication is
S 142.04.
Subscribed and sworn before me ,own this
day of
CaQ
'``{�15111111111d)j�j�P
T
RY
N /.blic in and for the State of —
Washington_ i B0
Cq aI K�-Cin:Rsk-Lr:G1LADS 5:};1143_ d ep \
H1tlillllt4tt'�
Classified Proof
CITY OF KENT
NOTICE OF
ORDINANCES
PASSED BY THE KENT
CITY COUNCIL
The following are sum-
maries of ordinances
passed by the Kent City
Council August 6,2024.
ORDINANCE NO. "95
-AN ORDI NANCE of the
City Council of the City
of Kent, Washington, to
repeal section 3.18.030
of the Kent City Code,
entitled'Utility tax,when
due', and amending
3.29.210 of the Kent City
Code.entitled"Tax con-
stitutes debt",in order to
cansotidate and align tax
reporting periods,and to
clarify that tax informa-
tion may be disclosed for
collection purposes.This
ordinance shall take ef-
fect and be in force thirty
days from and after its
passage,as provided by
taw.
ORDINANCE NO, "SO
-AN ORDINANCE of the
City Council of the City
of Kent, Washington,
granting Zipty Fiber Pa-
cific,LLC a 10-year non-
exclusive franchise, and
authorizing the Mayor to
sign all documents nec-
essary to implement the
full terms of the neclotiat-
ed aqteomenL THs ordi-
nance, being an exer-
cise of a power
specifically delegated to
the City's ley�laWa
body, is flat sub,�act to
referendum. It shall be
published and will take
effect thirty(30)days af-
ter its passage. The Fi-
ber Franchise Agree-
ment, however, shall
become effective only
upon its acceptance by
Ziply Fiber Pacific, LLC
and execution by the
Mayor. Should Ziptyy fait
Proofed by Jennifer Tribbett,07/29/2024 09:14:28 am Page:2
Classified Proof
to Urneey file its writtan
acceptar.rre of the Fiber
Franchise Agra naent,
Zply will be deerned to
have mlertel and repu-
diated the Fiber Fran-
chise Agreerreant and
the franchise will be
voidtabie by Iha City.
A copy of the cornpiete
text of any ordinance will
be mailed upon request
of tho City cleft
Kimbedey A. Koonoto,
City clerk
Kkonoto,§Keni A4kgry
253-855-5725
KEN10000,159
M/29
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