HomeMy WebLinkAbout4723 Ordinance - US Cellular Small Cell Deployment FranchiseOrdinance – US Cellular Franchise - 1
ORDINANCE NO. 4723
AN ORDINANCE OF THE CITY OF PASCO, WASHINGTON,
APPROVING A NON-EXCLUSIVE FRANCHISE TO CONSTRUCT,
INSTALL, OPERATE, MAINTAIN, REPAIR, OR REMOVE SMALL
WIRELESS FACILIITIES, SMALL WIRELESS FACILITY POLES AND
SMALL WIRELESS TOWERS WITHIN THE PUBLIC WAYS OF THE
CITY OF PASCO.
WHEREAS, RCW 35A.11.010 grants the City authority to regulate the use of the public
rights-of-way, subject to applicable state and federal law; and
WHEREAS, the Pasco City Council passed Pasco City Ordinance 1823 on August 3,
1976, adopting the classification of non-chartered code city for the City of Pasco; and
WHEREAS, Article 11, section 11, of the Washington State Constitution provides that
the City of Pasco may make and enforce within its limits all such local police, sanitary and
other regulations as are not in conflict with general laws; and
WHEREAS, the Pasco City Council, by section 35A.11.020 of the Revised Code of
Washington, through section 35A.13.230 of the Revised Code of Washington, has any
authority ever given to any class of municipality or to all municipalities of this state, and all
powers possible for a city or town to have under the Constitution of this state, and not
specifically denied to code cities by law, which may be exercised in regard to the regulation or
use of public ways and property of all kinds and improvements thereto; and
WHEREAS, Section 35A.47.040 of the Revised Code of Washington authorizes the
City to grant, permit, and regulate non-exclusive franchises for the use of public ways;
WHEREAS, a franchise is a legislatively approved master permit granting general
permission to a service provider to enter, use, and occupy the public ways for the purpose of
locating facilities subject to requirements that a Franchisee must also obtain separate use permits
from the City for use of each and every specific location in the public ways in which the Franchisee
intends to construct, install, operate, maintain, repair or remove identified facilities; and
WHEREAS, a franchise does not include, and is not a substitute for any other permit,
agreement, or other authorization required by the City, including without limitation, permits
required in connection with construction activities in public ways which must be
administratively approved by the City after review of specific plans; and
WHEREAS, the grant of a non-exclusive franchise under RCW 35A.47.040 shall not
be adopted or passed by the City’s legislative body on the day of its introduction nor for five
days thereafter, nor at any other than a regular meeting, nor without first being submitt ed to
the City attorney, an affirmative vote of at least a majority of the entire City Council and
publication at least once in newspaper of general circulation before becoming effective; and
Ordinance – US Cellular Franchise - 2
WHEREAS, the City Council finds that the franchise terms and conditions contained
in this ordinance are in the public interest.
WHEREAS, Franchisee has requested that the City grant it the right to install, operate and
maintain small wireless facilities, small wireless facility poles and small wireless facility towers
within the public rights-of-way of the City; and
WHEREAS, Franchisee will submit, conditioned upon the issuance of this Franchise,
applications for Small Cell Wireless Facility Permits (“SCWF Permit”), which shall be processed
in its usual and ordinary course, to locate small wireless facilities within the public ways of the City
and in compliance with Chapter 15.100 of the Pasco Municipal Code.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PASCO,
WASHINGTON, DO ORDAIN AS FOLLOWS:
1. Grant of Franchise. The City hereby grants to Franchisee, its successors and assigns,
subject to the terms and conditions herein set forth, a nonexclusive Franchise within the territory,
as defined below, which authorizes the Franchisee to erect, construct, operate, and maintain small
wireless facilities (as defined by PMC 15.10.025), and other poles, towers or support structures as
might be allowed in PMC 15.100 within the public right-of-way (as defined by PMC 15.10.025).
The authority granted herein is limited authorization to occupy and use of the public right-of-way
of the City for the purpose of providing telecommunication services transmitted by small cell
wireless facilities. Nothing contained herein shall be construed to grant, warrant, or convey any
right, title, or interest in the public right-of-way of the City to the Franchisee, or to grant any rights
for the operation of any services other than those specifically identified above.
2. Franchise Territory. The Franchise granted herein is applicable only within the City
rights-of-way as defined by PMC 15.10.025, including any annexed portions thereto occurring
during the term of this Franchise.
3. Term of Franchise. The first term of this Franchise shall be for an initial period of ten
(10) years from the effective date of this Agreement, unless sooner terminated. Thereafter, this
Franchise will be automatically renewed for an additional five-year term unless either party
notifies the other of its intent to terminate the Franchise at least ninety (90) days prior to the
expiration of the then current term. Either party may terminate this Franchise upon sixty (60) days
prior written notice to the other upon a default of any term hereof by the other party, which default
is not cured within sixty (60) days of receipt of written notice of default, or if such default is not
curable within sixty (60) days, if the defaulting party fails to commence such cure within sixty
(60) days or fails thereafter diligently to prosecute such cure to completion, provided, that the
grace period for any monetary default shall be ten (10) days from receipt of written notice.
Notwithstanding anything to the contrary herein, Franchisee may remove its small wireless
facilities at any time, with or without cause upon notice to the City, subject to restoration as
provided in PMC 15.70.270.
4. Non-Exclusive Grant. This Franchise shall not in any manner prevent the City from
entering into any other similar agreement or granting other or further franchises in the deployment
of small cell wireless facilities, or other utilities, within the public right-of-way. Further, this
Franchise shall in no way prevent or prohibit the City from using any of its public right-of-way or
affect its jurisdiction over them or any part of them, and the City shall retain full power to make
all necessary reasonable changes, relocations, collocations, repairs, maintenance, establishment,
improvement, dedication of the same as the City may deem fit, including the dedication,
establishment, maintenance, vacation, and improvement of all new public rights-of- way.
5. Effective Date. This Franchise shall become effective as of the 5th day of
August, 2024.
6. Terms, Standards and Requirements Incorporated by Reference. Essential
elements of this Franchise include the terms, standards, and requirements as included within PMC
Chapter 15.100 “Small Cell Tower Deployment Within the Public Right-of-Way” and PMC 15.70
“Conditions of Permits, Franchises and Facility Leases.” All such terms, standards, and
requirements, as they currently exist or as they may be amended, are incorporated herein as if
stated in full. To the extent that any provision of the Pasco Municipal Code conflicts with the City’s
adopted Small Cell Infrastructure Design Standards or this agreement, the Municipal Code shall
control.
7. City Owned Poles and Structures. Subject to the limitation on locations as provided
in PMC 15.100.050, in the event Franchisee desires to use City poles or other infrastructure for the
location of its small wireless facilities, such use will be determined on a case- by-case basis pursuant
to a separate License Agreement between the Franchisee and the City, setting forth the terms and
conditions under which the Franchisee shall be permitted to do so, including but not limited to,
whether the current infrastructure is sufficient to support the structural loading, requirements for the
small wireless facility equipment, its design (in compliance with the design standards as provided
in Chapter 15.100 PMC), and its safe application for other uses of the public right-of-way.
8. Relocation. Franchisee is obligated to relocate its facilities in accordance with PMC
15.70.180. Additionally, if during the term of this Franchise any person or entity other than the
City (hereinafter "Third Party") requests the relocation of Franchisee's Facilities to accommodate
work within the Rights-of-Way to be undertaken by or on behalf of such Third Party, and the City
determines that such relocation of Franchisee's Facilities is in the public interest and is necessary,
then the City may, in its discretion, grant such Third Party request. In such event, within thirty (30)
days’ receipt of written notice to the Franchisee from the City, Franchisee shall, at the expense of
the Third Party upon terms acceptable to Franchisee, relocate its Facilities within the Franchise
Territory to accommodate the work of such Third Party.
9. Utility-Owned Poles and Structures. The parties acknowledge that some, or all, of,
the poles or structures desired by the Franchisee to be used for the locations for its small wireless
facilities, are, or may be owned by a utility provider, or a third-party other than the City and that
Franchisee shall secure such consent for such location providing the City notice thereof including
the terms and conditions under which the Franchisee shall be permitted to so locate.
Ordinance – US Cellular Franchise - 3
Ordinance – US Cellular Franchise - 4
10. Indemnification and Waiver.
A. Franchisee hereby indemnifies , defends, and holds harmless the City, its officers,
boards, employees, agents and representatives from any and all claims for damages,
costs, judgments, penalties, awards or liability to any person including, but not
limited to, reasonable attorneys’ fees and costs:
(1) Arising as a result of the acts or omissions of Franchisee, its agents, servants,
officers or employees or the construction, placement, operation or maintenance
of small wireless facilities in the public right-of way except to the extent any
claim, arises out of or results from the sole negligence or willful misconduct of
City, its officers, employees, agents and representatives; or
(2) Based upon the City’s inspection or lack thereof of work performed by
Franchisee, its agents and servants, officers or employees in connection with
work authorized on the public right-of-way or property over which the City has
control pursuant to this Franchise or pursuant to any other permit or approval
issued in connection with this Franchise.
B. The provisions of Subsection A of this Section shall apply to claims by Franchisee’s
own employees and the employees of the Franchisee’s agents, representatives,
contractors, and subcontractors to which Franchisee might otherwise be immune under
Title 51 RCW. This waiver of immunity under Title 51 RCW has been mutually
negotiated by the parties hereto, and Franchisee acknowledges that the City would not
enter into this Franchise without Franchisee’s waiver thereof.
C. Inspection or acceptance by the City of any work performed by the Franchisee at the
time of completion of construction shall not be grounds for avoidance of any of these
covenants of indemnification. Provided that Franchisee has been given prior written
notice by the City of any such claim, said indemnification obligations shall extend to
claims which are not reduced to a suit.
The obligation of Franchisee under the indemnification provisions of this Section shall
apply regardless of whether liability for damages arises out of bodily injury to persons or
damages to property, except to the extent that such claims, actions, damages, costs,
expenses and attorney’s fees were caused by the sole negligence or willful misconduct
of the City. In the event that a Court of competent jurisdiction determines that this
Franchise is subject to the provisions of RCW 4.24.115, the parties agree that the
indemnity provision hereunder shall be deemed amended to conform to said statute and
liability shall be allocated as provided therein.
D. Notwithstanding any other provisions of this Section, Franchisee assumes the risk of
loss or damage to its small wireless facilities located in the public right-of-way, and
upon City-owned property from such activities conducted by the City, its officers,
agents, employees and contractors, except to the extent any such damage or
destruction is caused by or arises from the sole negligence, willful or malicious action
Ordinance – US Cellular Franchise - 5
on the part of the City, its officers, agents, employees or contractors. Franchisee
releases and waives any and all such claims against the City, its officers, agents,
employees or contractors. Franchisee further agrees to indemnify, hold harmless and
defend the City against any claims for damages, including, but not limited to, business
interruption damages and lost profits, brought by or under users of Franchisee’s small
wireless facilities as the result of any interruption of service due to damage or
destruction of Franchisee’s small wireless facilities caused by or arising out of activities
conducted by the City, its officers, agents, employees or contractors, except to the extent
any such damage or destruction is caused by or arises from the s o l e negligent, willful
or malicious actions on the part of the City, its offices, agents, employees or
contractors.
E. Notwithstanding anything contained herein to the contrary, other than in connection
with the foregoing third party claims, indemnification and damages incurred for breach
of confidentiality, neither party shall be liable to the other for consequential, incidental,
special or indirect damages.
11. Insurance.
A. Franchisee shall maintain for so long as Franchisee has Facilities in the Rights -of-
Way, insurance against claims for injuries to persons or damages to property which
may arise from or in connection with the acts or omissions of Franchisee. The
Franchisee shall cause each and every Subcontractor to provide insurance coverage
that complies with all applicable requirements of the Franchise-provided insurance
as set forth herein, except the Franchisee shall have sole responsibility for
determining the limits of coverage required to be obtained by Subcontractors. The
Franchisee shall ensure that the City is an additional insured on each and every
Subcontractor’s Commercial General liability insurance policy using an
endorsement as least as broad as ISO CG 20 10 10 01 for ongoing operations and
CG 20 37 10 01 for completed operations. Franchisee shall maintain insurance from
insurers with a current A.M. Best rating of not less than A-. Franchisee shall provide
a copy of a certificate of insurance and additional insured endorsement (except for
workers compensation) to the City for its inspection at the time of acceptance of
this Franchise, and such insurance certificate shall evidence a policy of insurance
that includes:
(1) Automobile Liability insurance with limits of no less than $5,000,000 combined
single limit per occurrence for bodily injury and property damage.
(2) Commercial General Liability insurance, written on an occurrence basis with
limits of no less than $5,000,000 per occurrence for bodily injury and property
damage and $5,000,000 general aggregate including personal and advertising
injury, blanket contractual; premises; operations; independent contractors;
products and completed operations; and broad form property damage;
explosion, collapse and underground (XCU).
Ordinance – US Cellular Franchise - 6
(3) Pollution liability shall be in effect throughout the entire Franchise term, with a
limit of one million dollars ($1,000,000) per occurrence, and two million dollars
($2,000,000) in the aggregate.
(4) 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. Evidence of qualified self-insurance is
acceptable.
(5) Excess Umbrella liability policy with limits of no less than $5,000,000 per
occurrence and in the aggregate. Franchisee may use any combination of
primary and excess to meet required total limits.
B. Payment of deductible or self-insured retention shall be the sole responsibility of
Franchisee. Franchisee may utilize primary and umbrella liability insurance policies to
satisfy the insurance policy limits required in this Section. Franchisee’s umbrella
liability insurance policy shall provide “follow form” coverage over its primary liability
insurance policies or be at least as broad as such underlying policies.
C. The required insurance policies, with the exception of Workers’ Compensation, and
Employer’s Liability, and Pollution Liability obtained by Franchisee shall include the
City, its officers, officials, employees, agents, and representatives (“Additional
Insureds”), as an additional insured, with coverage at least as broad as ISO endorsement
form CG 20 26, with regard to any work or operations performed under this Franchise
or by or on behalf of the Franchisee. The coverage shall contain no special limitations
on the scope of protection afforded to the Additional Insureds. In addition, the
insurance policy shall contain a clause stating that coverage shall apply separately to
each insured against whom a claim is made, or suit is brought, except with respect to
the limits of the insurer’s liability. Franchisee shall provide to the City upon acceptance
a certificate of insurance and additional insured endorsement. Receipt by the City of
any certificate showing less coverage than required is not a waiver of Franchisee’s
obligations to fulfill the requirements. Franchisee’s required commercial general and
auto liability insurance shall be primary insurance with respect to the indemnification
obligations herein. Any insurance, self-insurance, or insurance pool coverage
maintained by the City shall be in excess of Franchisee’s required insurance and shall
not contribute with it.
D. Upon receipt of notice from its insurer(s) Franchisee shall provide the City with thirty
(30) days prior written notice of any cancellation of any insurance policy, except for
non-payment, in which case a ten (10) day notice will be provided. Franchisee shall,
prior to the effective date of such cancellation, obtain replacement ins urance policies
meeting the requirements of this Section. Failure to provide the insurance cancellation
notice and to furnish to the City replacement insurance policies meeting the
requirements of this Section shall be considered a material breach of this Franchise.
The City may pursue its remedies, including purchasing insurance to cover
Franchisee’s facilities at Franchisee’s expense, immediately upon a failure to furnish
Ordinance – US Cellular Franchise - 7
replacement insurance.
E. Franchisee’s maintenance of insurance as required by this Section 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. If
Franchisee maintains higher insurance limits than the minimums shown above, the City
shall be insured for the full available limits of Commercial General and Excess
Umbrella liability maintained by the Franchisee, irrespective of whether such limits
maintained by the Franchisee are greater than those required by this contract or whether
any certificate of insurance furnished to the City evidences limits of liability lower than
those maintained by the Franchisee.
F. The City may review all insurance limits once every three years during the Term and
may make reasonable adjustments in the limits upon thirty (30) days’ prior written
notice to and review by Franchisee. Franchisee shall then issue or provide a certificate
of insurance to the City showing compliance with these adjustments. Upon request by
the City, Franchisee shall make available for review copies of all required insurance
policies, including endorsements, required in this Franchise and evidence of all
contractors’ coverage.
12. General Provisions. For the purpose of this Agreement, time is of the essence. In the
event of a dispute regarding the enforcement, breach, default, or interpretation of this Agreement, the
designees in Section 13, or their designees, shall first meet in a good faith effort to resolve such dispute.
In the event the dispute cannot be resolved by agreement of the parties, said dispute shall be resolved
by arbitration pursuant to RCW 7.04A, as amended, with both parties waiving the right of a jury trial
upon trial de novo, with venue placed in Pasco, Franklin County, WA. This Agreement shall be
governed by the laws of the State of Washington. The prevailing party shall be entitled to its reasonable
attorney fees and costs as additional award and judgment against the other.
13. Notice. Any notice or information required or permitted to be given to the parties
under this Agreement shall be to the following addresses, unless otherwise specified:
City of Pasco
City Manager
525 North 3rd
Pasco, WA 99301
Franchisee
USCOC of Richland Inc.
Attention: Real Estate Lease Administration
8410 West Bryn Mawr Avenue
Chicago, Illinois 60631
Phone: 1-866-573-4544
Notice shall be deemed given upon receipt of personal delivery, e-mail transmission, or
three (3) days after deposit in the United States Mail in the case of regular mail, or next
day in the case of overnight delivery.
Ordinance – US Cellular Franchise - 8
14. Bonding
A. Maintenance and Performance Bonds. Franchisee shall furnish maintenance and/or
performance financial guarantees for any work in the right-of-way as required by the
Municipal Code or applicable.
B. Franchise Bond. Franchisee shall provide City with a bond in the amount of Fifty
Thousand Dollars ($50,000.00) (“Franchise Bond”) running or renewable for the term
of this Franchise or for as long as Franchisee has facilities in the right of way,
whichever is longer, in a form and substance reasonably acceptable to City. In the event
Franchisee shall fail to substantially comply with any one or more of the provisions of
this Franchise following 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 hereinabove described. Franchisee specifically
agrees that its failure to comply with the terms of this Section shall constitute a material
breach of this Franchise. The amount of the 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. Said bond shall be maintained at the required
level notwithstanding any use of the Bond in the interim.
15. Entire Franchise. This Franchise, together with the SCWF Permit and incorporated
Pasco Municipal Code sections, constitutes the entire understanding and agreement between the
parties as to the subject matter herein, and no other agreements or understandings, written or
otherwise, shall be binding upon the parties upon approval and acceptance of this Small Cell Wireless
Facility Deployment Franchise, except such other agreements for licenses contemplated herein.
16. Hazardous Substances. Franchisee shall not introduce or use any hazardous
substances (chemical or waste) in violation of any applicable law or regulation, and Franchisee
shall not 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 and its
officers, officials, employees, agents, and representatives 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 associated with Franchisee’s use,
storage, or disposal of hazardous substances, whether or not intentional, and/or with 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, after Franchisee’s first occupancy of the
permitted site location.
17. Survival. All of the provisions, conditions, and requirements 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 the City’s Franchise to Franchisee for
the use of the Franchise Area and any renewals or extensions thereof. All of the provisions,
conditions, regulations, and requirements contained in this Franchise shall further be binding upon
the heirs, successors, executors, administrators, legal representatives, and assigns of Franchisee
Ordinance – US Cellular Franchise - 9
and all privileges, obligations, and liabilities of Franchisee shall inure to its heirs, successors, and
assigns equally as if they were specifically mentioned where Franchisee is named herein.
18. Acceptance. This Franchise shall not become effective unless and until the ordinance
granting the same has become effective. Within 30 days after the effective date of said ordinance
Franchisee shall sign this Franchise and provide the bonds, insurance policies, and any other
security required by this Franchise or PMC 15.70.
19. Severability. If any section, subsection, sentence, clause, phrase, or word of this
Ordinance should be held to be invalid or unconstitutional by a court of competent jurisdiction,
such invalidity or unconstitutionality thereof shall not affect the validity or constitutionality of any
other section, subsection, sentence, clause phrase or word of this Ordinance.
20. Corrections. Upon approval by the city attorney, the city clerk or the code reviser are
authorized to make necessary corrections to this Ordinance, including scrivener’s errors or clerical
mistakes; reference to other local, state, or federal laws, rules, or regulation s; or numbering or
referencing of ordinances or their sections and subsections.
21. Effective Date. This Ordinance shall take full force and effect five (5) days after
approval, passage, and publication as required by law.
PASSED by the City Council of the City of Pasco, Washington this 5th day of August,
2024.
_____________________________
Pete Serrano
Mayor
ATTEST: APPROVED AS TO FORM:
_____________________________ ___________________________
Debra Barham, MMC Kerr Ferguson Law, PLLC
City Clerk City Attorneys
Published: Sunday, August 11, 2024
Ordinance – US Cellular Franchise - 10
SUMMARY OF ORDINANCE
AN ORDINANCE OF THE CITY OF PASCO, WASHINGTON, APPROVING A NON-
EXCLUSIVE FRANCHISE TO CONSTRUCT, INSTALL, OPERATE, MAINTAIN, REPAIR,
OR REMOVE SMALL WIRELESS FACILITIES, SMALL WIRELESS FACILITY POLES
AND SMALL WIRELESS TOWERS WITHIN THE PUBLIC WAYS OF THE CITY OF
PASCO
The Pasco City Council passed Municipal Ordinance No. 4723 at its August 5, 2024 regular
meeting which in summary grants a non-exclusive franchise to USCOC of Richland Inc.
to construct, install, operate, maintain, repair, or remove small wireless facilities, small
wireless facility poles and small wireless towers within the City right-of-way.
The full text of Municipal Ordinance No. 4723 will be provided upon request made to the Pasco
City Clerk at Pasco City Hall, 525 N. Third Avenue, Pasco, WA 99301.
Summary approved as to form:
________________________________
Kerr Ferguson Law, PLLC
City Attorneys
ACCEPTANCE:
The provisions of this amended Franchise are agreed to and hereby accepted. By accepting
this Franchise, Franchisee covenants and agrees to perform and be bound by each and all of
the terms and conditions imposed by the franchise and the municipal code and ordinances of
the City.
By: _________________________________________
Printed Name: _________________________________________
Title: ________________________________________
CERTIFICATION OF COMPLIANCE WITH CONDITIONS AND EFFECTIVE DATE:
I certify that I have received confirmation that: (1) the Franchisee returned a signed copy of
this Franchise to the City Council in accordance with this Franchise; (2) the Franchisee has
presented to the City acceptable evidence of insurance and security as required in this
Franchise; and (3) the Franchisee has paid all applicable processing costs set forth in the
Franchise.
The effective date of this Franchise Ordinance is August 5, 2024.
By: _________________________________________
Printed Name: _________________________________________
Title: ________________________________________
Ordinance – US Cellular Franchise - 11
Michael C. Dickover
U.S. Cellular Category Manger, Engineering
Debra Barham
City Clerk, MMC