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HomeMy WebLinkAbout3289 OrdinanceORDINANCE NO . 3489 AN ORDINANCE OF THE CITY OF PASCO, WASHINGTON, GRANTING TO ELECTRIC LIGHTWAVE, INC, A DELAWARE CORPORATION, A NON-EXCLUSIVE FRANCHISE TO INSTALL, OPERATE, AND MAINTAIN A TELECOMMUNICATIONS SYSTEM IN, ON, OVER, UPON, ALONG, AND ACROSS CERTAIN DESIGNATED PUBLIC RIGHTS-OF-WAY OF THE CITY OF PASCO, WASHINGTON, PRESCRIBING CERTAIN RIGHTS, DUTIES, TERMS, AND CONDITIONS WITH RESPECT THERETO, AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, Electric Lightwave, Inc (hereinafter "the Franchisee") has requested that the City grant it the nght to install, operate and mamtam a telecommunications system within the public ways of the City, and WHEREAS, the City Council has found it desirable for the welfare of the City and its residents that such a non-exclusive franchise be granted to the Franchisee, and WHEREAS, the City Council has the authonty under RCW 35A 47 040 to grant franchises for the use of its streets and other public properties, and WHEREAS, the City is willing to grant the rights requested subject to certain terms and conditions, NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PASCO, WASHINGTON DO ORDAIN AS FOLLOWS 1 Authority Granted The City hereby grants to the Franchisee, its heirs, successors, legal representatives, and assigns, subject to the terms and conditions hereinafter set forth, the nght, pnvilege, and authonty to construct, operate, maintain, replace, and use all necessary equipment and facilities thereto for the telecommunications facilities descnbed in Exhibit A, which is attached hereto and incorporated by this reference The Franchisee is authonzed to place its telecommunications facilities in, under, on, across, over, through, along, or below the public ways of the City which are designated m Exhibit A and the plans attached thereto or as subsequently approved by the City, and to provide telecommunications services to persons located within the City Provided, however, that the Franchisee shall apply for and obtain a Construction Permit pursuant to PMC Chapter 12 24 pnor to site-specific location and installation of any and all such telecommunications facilities, as referred to m Section 9 below 2 Grant Limited to Occupation and Service Nothing contained herein shall be construed to grant or convey any nght, title, or interest in the public ways of the City to the Franchisee 3 Terms, Conditions, and Provisions of PMC Title 15 Incorporated by Reference The terms, conditions, and provisions of PMC Title 15 are incorporated herein by reference All nghts granted hereunder are subject to the terms, conditions, and requirements of PMC Title 15 unless this Franchise specifically provides to the contrary In the event that a conflict exists between the terms of this Franchise and the terms of PMC Title 15, the terms of this Franchise shall control 1 4 Term of Franchise The term of this Franchise shall be for a period of 5 years from the effective date set forth m Section 33, below, unless sooner termmated This Franchise may be renewed pursuant to the provisions of PMC Section 15 20 070, as that Section presently exists or is hereafter amended 5 Non-Exclusive Grant This Franchise shall not in any manner prevent the City from entering into other similar agreements or granting other or further franchises in, under, on, across, over, through, along or below any of said public ways of the City or other City-owned properties Further, this Franchise shall in no way prevent or prohibit the City from using any of it's public ways or other City- owned properties or affect its junsdiction over them or any part of them, and the City shall retain power to make all necessary changes, relocations, repairs, maintenance, establishment, improvement, dedication of the same as the City may deem fit, including the dedication, establishment, maintenance, and improvement of all new public ways and other City-owned properties of every type and description 6 Relocation of Telecommunications Facilities A The Franchisee agrees and covenants at its sole cost and expense, to protect, support, temporarily disconnect, relocate, or remove from any public ways any of its telecommunications facilities when so required by the Public Works Director by reason of traffic conditions and public safety, dedications of new public ways and the establishment and improvement thereof, widening and improvement of existing public ways, street vacations, freeway construction, change or establishment of street grade, or the construction of any public improvement or structure by any governmental agency acting in a governmental capacity, provided that the Grantee shall in all such cases have the privilege to temporarily bypass, in the authorized portion of the same public way upon approval by the Public Works Director, any section of cable or any other facility required to be temporarily disconnected or removed Upon request of the Public Works Director and m order to facilitate the design of City street and right-of-way improvements, the Franchisee agrees to, at its sole cost and expense, locate, and if determined necessary by the City, to excavate and expose it's telecommunications facilities for inspection so that the location of the same may be taken into account m the improvement design The decision as to whether said facilities need to be relocated m order to accommodate the City's improvements shall be made by the Public Works Director upon review of the location and construction of the Franchisee's facilities If the Public Works Director determines that the project necessitates the relocation of the Franchisee's then existing facilities, the City shall 1 Within a reasonable time, which shall be no less than 30 days, prior to the commencement of such improvement project, provide the Franchisee with written notice requiring such relocation, provided, however, that in the event of an emergency posing a threat to the public safety or welfare, or in the event of an emergency beyond the control of the City and which will result in impacts to the public health, safety and welfare,_the City shall give the Franchisee written notice as soon as practicable, and 2 Provide the Franchisee with copies of pertinent information for such improvement project and a proposed location for the Franchisee's facilities so that 2 the Franchisee may relocate its facilities in other public ways m order to accommodate such improvement project 3 After receipt of such notice and such pertinent information, the Franchisee shall complete relocation of its facilities at no charge or expense to the City so as to accommodate the improvement project at least 10 days prior to commencement of the project The Franchisee may, after receipt of written notice requesting a relocation of its facilities, submit to the City written alternatives to such relocation The City shall evaluate such alternatives and advise the Franchisee in writing if one or more of the alternatives is suitable to accommodate the work which would otherwise necessitate relocation of the facilities If so requested by the City, the Franchisee shall submit additional information to assist the City in making such evaluation The City shall give each alternative proposed by the Franchisee full and fair consideration, within a reasonable time so as to allow for the relocation work to be performed in a timely manner In the event the City ultimately determines that there is no other reasonable alternative, the Franchisee shall relocate its facilities as otherwise provided in this Section The provisions of this Section shall survive the expiration, revocation, or termination of this Franchise, provided that relocation shall not be required after expiration of this Franchise if the City consents to the Franchisee abandoning its facilities in place The provisions of this Section shall in no manner preclude or restrict the Franchisee from making any arrangements it may deem appropnate when responding to a request for relocation of its facilities by any person or entity other than the City, where the facilities to be constructed by said person or entity are not or will not become city-owned, operated or maintained facilities provided that such arrangements do not unduly delay a City construction project B. The Franchisee will indemnify, hold harmless, and pay the costs of defending the City against any and all claims, suits, actions, damages, or liabilities for delays on City construction projects caused by or ansmg out of the failure of the Franchisee to relocate its facilities in a timely manner, provided, that the Franchisee shall not be responsible for damages due to delays caused Ly circumstances beyond the control of the Franchisee The indemnity provisions of this Section shall survive the expiration, revocation, or termination of this Franchise 7 Undergroundmg of Facilities The undergroundmg requirements of this Section shall apply where the Franchisee's facilities consist of cable or any other facilities which are capable of being placed underground Where the Franchisee's facilities consist of antennae or other facilities which are required to remain above ground in order to be functional, this Section shall not apply In any area of the City in which there are no aenal facilities other than antennae or other facilities required to remain above ground in order to be functional, or in any public way m which all telephone, electric power wires and cables have been placed underground, the Franchisee shall not be permitted to erect poles or to run or suspend wires, cables or other facilities thereon, but shall lay such wires, cables or other facilities underground in the manner required Ly the City The Franchisee acknowledges and agrees that if the City does not require the undergrounding of its facilities at the time of initial installation, the City may, at any time in the future, require the conversion of the Franchisee's aenal facilities, 3 along with other aenal facilities of other functionally equivalent telecommunications providers or carriers to underground mstallation at the Franchisee's expense as provided by PMC Section 15 70 110, or as such Section may hereafter be amended Whenever the City requires the undergroundmg of all aenal utilities m any area of the City which the City has the legal authonty to require to underground without the payment of costs under any tariff, the Franchisee shall underground its aenal facilities m the manner specified by the City, concurrently with and in the area of all the other affected utilities The location of any such relocated and underground utilities shall be approved by the City The Franchisee shall underground its facilities at its own expense, but the Franchisee is encouraged to contact and agree with other affected utilities so that all costs for common trenching, common utility vaults and other costs not specifically attnbutable to the undergroundmg of any particular facility are borne fairly and proportionately by all the utilities involved in the underground project The provisions of this section shall survive the expiration, revocation, or termination of this Franchise Nothing m this paragraph shall be construed as requinng the City to pay any costs of undergroundmg any of the Franchisee's facilities 8 The Franchisee's Maps and Records After construction is complete, the Franchisee shall provide the City with accurate copies of all as-built plans, maps, and records These plans, maps, and records shall be provided at no cost to the City, and shall conform to the requirements of PMC Section 15 70 100 9 Work m Public Ways Durmg any period of relocation, construction, or maintenance, all surface structures, if any, shall be erected and used m such places and positions withm said public ways and other public properties so as to interfere as little as possible with the free passage of traffic and the free use of adjoining property, and the Franchisee shall at all times post and maintain proper barncades and comply with all applicable safety regulations durmg such penod of construction as required by the ordinances of the City or the laws of the State of Washmgton, including RCW 39 04 180 for the construction of trench safety systems Whenever the Franchisee shall excavate m any public way, or shall commence any work within a public way not requinng excavation, for the purpose of installation, construction, repair, maintenance, or relocation of its telecommunications facilities, it shall apply to the City for a Construction Permit to do so and, in addition, shall give the City at least 10 working days notice of the Franchisee's intent to commence work m the public ways The Franchisee shall file plans or maps with the City showing the proposed location of its telecommunications facilities and pay all duly established permit and inspection fees associated with the processing of the permit In no case shall any work commence within any public way without said permit, except as otherwise provided in this Franchise Durmg the progress of the work, the Franchisee shall not unnecessarily obstruct the passage or proper use of the public ways, and all work by the Franchisee m any area covered by this Franchise and as described in this Section shall be performed in accordance with City of Pasco Public Works Construction Standards and warranted for a penod of 2 years If the City has plans to improve any public way to which this Franchise applies within 2 years of the Franchisee's application for a Construction Permit to locate its facilities m such public way, the Franchisee may be allowed to install its facilities above ground, to the extent feasible, until such time as the City's 4 improvements occur, at which time the Franchisee shall underground its facilities concurrent with the City's improvement project If either the City or the Franchisee shall at any time plan to make excavations m any area covered by this Franchise and as descnbed m this Section, the party planning such excavation shall afford the other, upon receipt of a written request to do so, an opportunity to share such excavation, PROVIDED THAT A Such joint use shall not unreasonably delay the work of the party causing the excavation to be made, B. Such joint use shall be arranged and accomplished on terms and conditions satisfactory to both parties, and C Either party may deny such request for safety reasons The joint use provisions of this Section shall apply only to joint use by the City and the Franchisee Nothing in this Section is intended to require the Franchisee to afford other similar users the opportunity to share the Franchisee's excavations The provisions of this Section shall survive the expiration, revocation, or termination of this Franchise 10 Restoration after Construction The Franchisee shall, after installation, construction, relocation, maintenance, removal, or repair of its telecommunications facilities within the public ways, restore the surface of said public ways and any other City-owned property which may be disturbed by the work, to at least the same condition the public way or City-owned property was in immediately prior to any such mstallation, construction, relocation, maintenance, or repair The Public Works Director shall have final approval of the condition of such public ways and City-owned property after restoration All survey monuments which are to be disturbed or displaced by such work shall be referenced and restored, as per WAC 332-120, as the same now exists or may hereafter be amended, and all pertinent federal, state and local standards and specifications The Franchisee agrees to promptly complete all restoration work and to promptly repair any damage caused by such work to the Public ways or other affected area at its sole cost and expense according to the time and terms specified m the Construction Permit issued by the City and in Chapter 12 24 of the Pasco Municipal Code, as the same now exists or as it may hereafter be amended or superseded The provisions of this Section shall survive the expiration, revocation, or termination by other means of this Franchise All work by the Franchisee pursuant to this Section shall be performed in accord with City of Pasco Public Works Construction standards and warranted for a penod of 2 years 11 Emergency Work -- Permit Waiver In the event of any emergency in which any of the Franchisee's telecommunications facilities located in, above, or under any public way breaks, are damaged, or if the Franchisee's construction area is otherwise in such a condition as to immediately endanger the property, life, health, or safety of any individual, the Franchisee shall immediately take the proper emergency measures to repair its facilities, to cure or remedy the dangerous conditions for the protection of property, life, health, or safety of individuals without first applying for and obtaining a permit as required by this Franchise However, this shall not relieve the Franchisee from the requirement of notifying the City of the emergency work and obtaining any permits necessary for this purpose after the emergency work The Franchisee shall notify the City by 5 telephone immediately upon learning of the emergency and shall apply for all required permits not later than the second succeeding day dunng which the Pasco City Hall is open for business 12 Dangerous Conditions, Authonty for City to Abate Whenever construction, installation, or excavation of telecommunications facilities authonzed by this Franchise has caused or contnbuted to a condition that appears to substantially impair the lateral support of the adjoining public way, street, or public place, or endangers the public, street utilities, or City-owned property, the Public Works Director may direct the Franchisee, at the Franchisee's own expense, to take action to protect the public, adjacent public places, City-owned property, streets, utilities, and public ways Such action may include compliance within a prescribed time In the event that the Franchisee fails or refuses to promptly take the actions directed by the City, or fails to fully comply with such directions, or if emergency conditions exist which require immediate action, the City may enter upon the property and take such actions as are necessary to protect the public, the adjacent streets, utilities, public ways, to maintain the lateral support thereof, or actions regarded as necessary safety precautions, and the Franchisee shall be liable to the City for the costs thereof The provisions of this Section shall survive the expiration, revocation, or termination by other means of this Franchise 13 Recovery of Costs The Franchisee shall be subject to all permit fees associated with activities undertaken through the authonty 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 undertaken through the authonty granted in this Franchise or any ordinances relating to the subject for which a permit fee is not established, the Franchisee shall reimburse the City directly for any and all costs In addition to the above, the Franchisee shall promptly reimburse the City for any and all costs the City reasonably incurs in response to any emergency involving the Franchisee's telecommunications facilities Finally, the Franchisee shall reimburse the City upon submittal by the City of an itemized billing by project of costs, for the Franchisee's proportionate share of all actual, identified expenses incurred by the City in planning, constructing, installing, repairing or altering any City facility as the result of the presence in the right-of-way of the Franchisee's facilities Such costs and expenses shall include but not be limited to the Franchisee's proportionate cost of City personnel assigned to oversee or engage in any work in the public ways as the result of the presence of the Franchisee's facility in the public ways Such costs and expenses shall also include the Franchisee's proportionate share of any time spent reviewing construction plans in order to either accomplish the relocation of the Franchisee's facilities or the routing or rerouting of any utilities so as not to interfere with the Franchisee's facilities The time of City employees shall be charged at their respective rate of salary, including overtime if applicable, plus benefits and 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 prepanng the billing may also be included in said billing The billing may be on an annual basis, 6 but the City shall provide the Franchisee with the City's itemization of costs at the conclusion of each project for information purposes 14 City's Reservation of Rights Pursuant to RCVV Section 35 21 860, the City is precluded from imposing a fee on a "telephone business" as defined in RCW 82 04 065, except for administrative expenses or any applicable tax authonzed by RCW 35 21 865 This Franchise is premised upon the City and Franchisee's understanding that the activities proposed by the Franchisee constitute a "telephone business" As such, the rights granted under this Franchise are not conditioned upon payment of compensation m addition to reimbursement for administrative costs as set forth in Section 13 herein, payment of the utility tax set forth in PMC Chapter 5 32, and payment of the fee set forth in Section 15 for use of City-owned poles The City hereby reserves its right to impose a fee on the Franchisee, to the extent authonzed by law, for purposes other than to recover its administrative expenses, if the Franchisee's operations are not those of a "telephone business" as defined in RCW 82 04 065, if the Franchisee's operations are now those of a telephone business and change in the future, or if statutory prohibitions on the imposition of such fees are removed The City also reserves its right to require that the Franchisee obtain a separate Agreement for its change in use, which Agreement may include provisions intended to regulate the Franchisee's operations, as allowed under applicable law 15 Fee for City-Owned Poles In addition to any other fees or taxes for which the Franchisee is required to pay the City, the Franchisee shall pay the City an annual fee in the amount of $9 00 for the use of each City-owned pole upon which the Franchisee's telecommunications facilities are installed pursuant to this Franchise The initial annual fee shall be due and payable not later than the date of installation on the first City-owned pole pursuant to this Franchise, and shall equal the total number of City-owned poles the Franchisee then estimates it will mstall dunng the remaining portion of the calendar year multiplied by the annual fee Provided, however, that if the Franchisee utilizes more City-owned poles than initially estimated, the Franchisee shall include full payment for the additional poles at the time payment is made for the subsequent year's use of the City-owned poles In all subsequent years, the annual fee shall equal the total number of City- owned poles occupied for any portion of the calendar year multiplied by the annual fee The fee imposed by this Section shall be due by January 31st of each year following the initial year of installation Provided further, that the terms of this Section shall not apply to proposals to locate cellular telephone, personal communication system (PCS), or other similar wireless communications facilities upon City-owned poles Compensation for the placement of such facilities upon City-owned poles shall be negotiated on a case-by-case basis through the Facilities Lease process set forth in PMC Title 15 16 Indemnification The Franchisee hereby releases, covenants not to bnng suit and agrees to indemnify, defend and hold harmless the City, its officers, employees, agents and representatives from any and all claims, costs, judgments, awards or liability to any person, including claims by the Franchisee's own employees to which the Franchisee might otherwise be immune under Title 51 RCW, arising from injury, sickness, or death of any person or damage to property of which the negligent acts or omissions of the Franchisee, its agents, servants, officers or employees in performing the activities authorized by this Franchise are the proximate cause The Franchisee further releases, covenants not to bring suit, and agrees to indemnify, defend and hold harmless the City, its officers and employees from any and all claims, costs, judgments, awards or liability to any 7 person including claims by the Franchisee's own employees, mcludmg those claims to which the Franchisee might otherwise have immunity under Title 51 RCW, arismg against the City by virtue of the Franchisee's exercise of the nghts granted herein or by virtue of the City's permitting the Franchisee's use of the City's public ways or other public property, or based upon the City's inspection or lack of inspection of work performed by the Franchisee, its agents and servants, officers or employees in connection with work authonzed on the City's property or property over which the City has control, pursuant to this Franchise or pursuant to any other permit or approval issued in connection with this Franchise This covenant of indemnification shall include, but not be limited by this reference, to claims against the City arising as a result of the negligent acts or omissions of the Franchisee, its agents, servants, officers or employees m barncading, instituting trench safety systems or providing other adequate warnmgs of any excavation, construction, or work in any public way or other public place m performance of work or services permitted under this Franchise In the event that the Franchisee's transmission technology or facilities emit electromagnetic impulses (EMF), the Franchisee expressly agrees that this indemnity provision extends to any and all claims for injury, sickness or death of any person, including employees of the Franchisee, ansmg out of or caused by said emissions 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 Said indemnification obligations shall extend to claims which are not reduced to a suit and any claims which may be compromised prior to the culmination of any litigation or the institution of any litigation Provided that the Franchisee has been given prompt written notice by the City of any such claim, the City has the right to defend or participate in the defense of any such claim, and has the nght to approve any settlement or other compromise of any such claim In the event that the Franchisee refuses the tender of defense in any suit or any claim, said tender having been made pursuant to the indemnification clauses contained herein, and said refusal is subsequently determined by a court having jurisdiction (or such other tribunal that the parties shall agree to decide the matter), to have been a wrongful refusal on the part of the Franchisee, then the Franchisee shall pay all of the City's costs for defense of the action, including all reasonable expert witness fees and reasonable attorneys' fees and the reasonable costs of the City, including reasonable attorneys' fees of recovering under this indemnification clause The obligations of the Franchisee under the indemnification provisions of this paragraph shall apply regardless of whether liability for damages ansmg out of bodily injury to persons or damages to property were caused or contributed to by the concurrent negligence of the City, its officers, agents, employees or contractors The provisions of this Section, however, are not be construed to require the Franchisee to hold harmless, defend or mderrmify the City as to any claim, demand, suit or action which anses out of the sole negligence of the City It is further specifically and expressly understood that the indemnification provided herein constitutes the 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 In the event that any court of competent junsdiction determines that this contract is subject to the provisions of RCW 4 24 115, the parties agree that the indemnity provisions hereunder shall be deemed amended to conform to said statute and liability shall be allocated as provided therein 8 Notwithstanding any other provisions of this Section, the Franchisee assumes the nsk of damage to its telecommunications facilities located in the public ways and upon City-owned property from activities conducted by the City, its officers, agents, employees and contractors The Franchisee releases and waives any and all claims against the City, its officers, agents, employees or contractors for damage to or destruction of the Franchisee's telecommunications facilities caused by or ansing out of activities conducted by the City, its officers, agents, employees and contractors, in the public ways and upon City-owned property subject to this Franchise, except to the extent any such damage or destruction is caused by or arises from the sole negligence or any willful or malicious action on the part of the City, its officers, agents, employees or contractors The 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 the Franchisee's facilities as the result of any interruption of service due to damage or destruction of the Franchisee's 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 sole negligence or any willful or malicious actions on the part of the City, its officers, agents, employees or contractors The provisions of this Section shall survive the expiration, revocation, or termination of this Franchise 17 Insurance The Franchisee shall procure and maintain for the duration of the Franchise, insurance against claims for mjunes to persons or damages to property which may arise from or m connection with the exercise of the rights, privileges and authonty granted hereunder to the Franchisee, its agents, representatives or employees The Franchisee shall provide an insurance certificate, together with an endorsement naming the City, its officers, elected officials, agents, employees, representatives, engineers, consultants and volunteers as additional insureds, to the City for its inspection prior to the commencement of any work or installation of any facilities pursuant to this Franchise, and such insurance certificate shall evidence A Comprehensive general liability insurance, written on an occurrence basis, with limits not less than (1) $5,000,000 00 for bodily injury or death to each person, (2) $5,000,000 00 for property damage resulting from any one accident, and (3) $5,000,000 00 for all other types of liability B. Automobile liability for owned, non-owned and hired vehicles with a limit of $3,000,000 00 for each person and $3,000,000 00 for each accident Worker's compensation within statutory limits and employer's liability insurance with limits of not less than $1,000,000 00 Comprehensive form premises-operations, explosions and collapse hazard, underground hazard and products completed hazard with limits of not less than $3,000,000 00 9 The liability insurance policies required by this Section shall be maintained by the Franchisee throughout the term of this Franchise, and such other period of time during which the Franchisee is operating without a Franchise hereunder, or is engaged m the removal of its telecommunications facilities The Franchisee shall provide an insurance certificate, together with an endorsement naming the City, and its elected and appointed officers, officials, agents, employees, representatives, engineers, consultants, and volunteers as additional insureds, to the City prior to the commencement of any work or mstallation of any facilities pursuant to this Franchise Any deductibles or self-insured retentions must be declared to and approved by the City Payment of deductibles and self-msured retentions shall be the sole responsibility of the Franchisee The msurance certificate required by this Section shall contam a clause stating that coverage shall apply separately to each insured agamst whom claim is made or suit is brought, except with respect to the limits of the insurer's liability The Franchisee's msurance shall be primary msurance with respect to the City, its officers, officials, employees, agents, consultants, and volunteers Any msurance mamtamed by the City, its officers, officials, employees, consultants, agents, and volunteers shall be m excess of the Franchisee's insurance and shall not contribute with it In addition to the coverage requirements set forth in this Section, each such msurance policy shall contain the following endorsement "It is hereby understood and agreed that this policy may not be reduced in coverage, canceled, nor the intention not to renew be stated until 30 days after receipt by the City, by registered mail, of a written notice addressed to the Public Works Director of such intent to cancel or not to renew" Within 15 days prior to said cancellation or intent not to renew, the Franchisee shall obtain and furmsh to the City replacement msurance policies meeting the requirements of this Section 18 Abandonment and Removal of the Franchisee's Telecommunications Facilities Upon the expiration, termination, or revocation of the rights granted under this Franchise, and consistent with the provisions of PMC Section 15 70 260, the Franchisee shall remove all of its telecommunications facilities from the public ways of the City within 90 days of receiving notice from the Public Works Director Except as specifically provided by PMC Title 15, the Franchisee shall not be allowed to abandon any of its telecommunications facilities within the public ways of the City or upon City-owned property 19 Commencement of Construction Unless the parties agree otherwise m writing, construction of the facilities contemplated by this Franchise shall commence no later than one year after the effective date of this Franchise, provided, that such time limit shall not apply to delays caused by acts of God, strikes, eminent domain litigation or other occurrences over which the Franchisee has no control 20 Construction Bond Before undertaking any of the work, installation, improvements, construction, repair, relocation or maintenance authorized by this Franchise, the Franchisee shall furrush a performance bond written by a corporate surety acceptable to the City, which acceptance shall not be unreasonably withheld, equal to at least 100% of the estimated cost of constructing the Franchisee's telecommunications equipment and facilities and restoring the public ways of the 10 City to their pre-construction condition Said bond shall be required to remain in full force until 60 days after completion of the construction of Grantee's telecommunications equipment and other improvements from the public ways of the City, and shall warrant all such restoration work for a penod of 2 years 21 Modification Subject to the provisions of PMC Title 15, the City and the Franchisee hereby reserve the right to alter, amend or modify the terms and conditions of this Franchise upon written agreement of both parties to such alteration, amendment or modification 22 Forfeiture and Revocation The nghts granted under this Franchise may be revoked or forfeited as provided in PMC Chapter 15 90 as said Chapter presently exists or is hereafter amended Provided that the City may elect, m lieu of the above and without any prejudice to any of its other legal nghts and remedies, to obtain an order from the supenor court having junsdiction compelling the Franchisee to comply with the provisions of this Franchise and to recover damages and costs incurred by the City by reason of the Franchisee's failure to comply 23 Remedies to Enforce Compliance In addition to any other remedy provided in this Franchise or within PMC Title 15, the City reserves the right to pursue any remedy to compel or force the Franchisee and/or its successors and assigns to comply with the terms hereof, and the pursuit of any nght or remedy by the City shall not prevent the City from thereafter declaring a forfeiture or revocation for breach of the conditions herein 24 City Ordinances and Regulations Nothing herein shall be deemed to direct or restrict the City's ability to adopt and enforce all necessary and appropriate ordinances regulating the performance of the conditions of this Franchise, including any valid ordinance made m the exercise of its police powers in the interest of public safety and for the welfare of the public The City shall have the authonty at all times to control by appropnate regulations the location, elevation, manner of construction and maintenance of any telecommunications facilities by the Franchisee, and the Franchisee shall promptly conform with all such regulations, unless compliance would cause the Franchisee to violate other requirements of law 25 Technological Changes To address technological changes in the state-of-the-art communication services provided by the Franchisee during the term of this Franchise, the City may elect to review the Franchisee's telecommunications facilities after 30 months m light of City needs and interests Should such review identify a needed change in facilities or the provisions of this Franchise, the City and the Franchisee shall meet and confer concerning the need for any such changes 26 Survival All of the provisions, conditions and requirements of Sections 6, Relocation of Telecommunications Facilities, 7, Undergroundmg of Facilities, 9, Work in the Public Ways, 10, Restoration after Construction, 12, Dangerous Conditions, 16, Indemnification, 17, Insurance, and 18, Abandonment and Removal of the Franchisee's Facilities, of this Franchise shall be m addition to any and all other obligations and liabilities the Franchisee may have to the City at common law, by statute, or by contract, and shall survive the expiration or termination of this Franchise, 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 11 representatives and assigns of the Franchisee and all pnvileges, as well as all obligations and liabilities of the Franchisee shall inure to its heirs, successors and assigns equally as if they were specifically mentioned wherever the Franchisee is named herein 27 Most Favored Community In the event that the Franchisee enters into any agreement, franchise or other understanding with any other city, town or county m the state of Washington and which provides terms or conditions more favorable to the city, town, or county than those provided m this Franchise, such as, but not limited to, free or reduced fee hookups, access or service, the City of Pasco shall be entitled to request at the City's option, and the Franchisee shall be required to execute, an amendment to this Franchise which incorporates the more favorable terms and conditions 28 Non-Severability Each term and condition of this Franchise is an integral part of the consideration given by each party and as such, the terms and conditions of this Franchise are not severable If any section, sentence, clause or phrase of this Franchise should be held to be invalid or unconstitutional by a court of competent junsdiction, this Franchise shall terminate unless suitable replacement terms can be agreed to by the parties 29 Assignment This agreement may not be assigned or transferred except as provided in PMC Sections 15 70 320 and 15 70 330, except that the Franchisee may freely assign this Franchise m whole or in part to a parent, subsidiary, or affiliated corporation or as part of any corporate financing, reorganization or refinancing In the case of transfer or assignment as security by mortgage or other secunty instrument in whole or in part to secure indebtedness, such consent shall not be required unless and until the secured party elects to realize upon the collateral The Franchisee shall provide prompt, written notice to the City of any such assignment 30 Notice Any notice or information required or permitted to be given to the parties under this Franchise may be sent to the following addresses unless otherwise specified City. City of Pasco Director of Public Works P0 Box 293 Pasco, WA 99301 Franchisee: Electric Lightwave, Inc P0 Box 4678 Vancouver, WA 98662 31 Entire Franchise This Franchise constitutes the entire understanding and agreement between the parties as to the subject matter herein and no other agreements or understandmgs, written or otherwise, shall be binding upon the parties upon execution of this Franchise 32 Acceptance Within 60 days after the passage and approval of this ordinance, this Franchise may be accepted by Electric Lightwave, Inc by its filing with the City Clerk an unconditional wntten acceptance thereof Failure of the Franchisee to so accept this franchise within said penod of time shall be deemed a rejection thereof, and the nghts and pnvileges herein granted shall, after the expiration of the 60 day period, absolutely cease and determine, unless the time period is extended by ordinance duly passed for that purpose 12 LELAND B lERR, CITY ATTORNEY 33 Effective Date This ordinance, being an exercise of a power specifically delegated to the City legislative body, is not subject to referendum, and shall take effect 5 days after passage and publication of an approved summary thereof consisting of the title MA OR C ES UR ATTEST/AUTHENTICATED DEPUTY CITY CLERK, CATHERINE D SEAMAN APPROVED AS TO FORM FILED WITH THE CITY CLERK PASSED BY THE CITY couNpi4 L/k k SIGNED BY THE MAYOR 4-06--/RTs PUBLISHED i EFFECTIVE DATE /in --1 I 13 ELI PROPRIETARY AND CONFIDENTIAL INFORMATION £01;1:1;4- "A" ELI PROPRIETARY AND CONFIDENTIAL INFOR ELECTRIC LIGHTVVAVE, INC. Engurteeruag Depaurtment Tr-Cities, Wa. Raisin Mille Z2/1/te1-129.7 ELI/BPA Proposed Longhaul Route ELI Proposed Hut Site L . • iibl- II Milind IIMMEMS AN11121 "lid ad i AtatimillINT 01111:1."111:: /1 traraMit alat i IMMinglilikiler - -- a Appfiritiii.41 111‘61:11c %le 1 lb re web 1 tha to 401,01. ine.-4,,, 0/4)10. %Vivi; itt/-44 ‘ -Al onnontV OM* t Ifinetit _ Ii•r- -- - Area Businesses Businesses Sorted by Employee Size Data Purchased 1997 0100-249 (68) 01000-2499 (5) •250-499 (11) 02500-4999 (1) 050-99 (102) 0500-999 (5) °Unknown (328) mswilbitS1 i 91111111111111tillk • my lawrivszuns —..w EN..minira. atainirl-lp • 1111EVINE VIRM110ta-grapagraieglittlii. OP ririlliglitir ."1 1 . Ir.. 1 . _ 60 _,. I MilillairgeMog WWI .0 . 0 I 1130 ',1 Ore .igirerildr 1 E lel 11444* k li rav—,410 Wittqr Ii it101 • ELI PROPRIETARY AND CONFIDENTIAL INFORMATION ELI PROPRIETARY AND CONFIDENTIAL INFORMATION ELI PROPRIETARY AND CONFIDENTIAL INFORMATION E 41,1 "A " U t...timmati .,._47,,, A " Ale..Mi if 4301E11 0 .<4411111;71," 0 11,4. oplatiNrefr repwillitiiiiiiriOjti oteromuto If 1 ziapipre!, a 'Ft. 511111mi v•-, n l 1-: i . An. twe,...41 e, ip, i-o.. \ *Vit. V i — •14. irt.-.... :irk lir gougui0 • Tfija....,..„ pt„ .4., 0-aiii.mga, (11 Area Businesses Sorted by Employee Size Data Purchased 1997 )1 00-249 (68) •1000-2499 (5) •250-499 (11) *2500-4999 (1) 050-99 (102) a 500-999 (5) °Unknown (328) P. ARP ,440 1111t0411 • ,/ KNWCIN 12°1 MI -t-6 I ELI PROPRIETARY AND CONFIDENTIAL INFORMATION • ' z Malik langmeernig Department Tr-Cities, Wa. Planning Profile December 1997 ELI/BPA Proposed Longhaul Route ELI Proposed Hut Site Dun & Bradstreet Data (see D&B Legend below) ELI PROPRIETARY AND CONFIDENTI81 [NIP III IIII cr.= sus 1 0 011 -400 1 rm Lei R I I I I , 11.111111016, IBMI NEFIZZUCE . irr" AirpiPial =4111111112.. A.111.1..mp arl 1 11111FMATIA 0"n111111.111 r .42,6,„wern .46.10.74,116; n Et 4. i II: .16-Nati.11.47-6416.1goirL• -.0......, 10111M=Iiit WE/ _ in. Alm= it . 01. I 11.11111!Igrir111711°1" ..mi 1111 11/41111 111.1111 :1141:14404:419w 1111 1411141131r7"00-1 No". ijitilIM10 11/ Ojintmlf; • MI147/10 ...aurre • - i v+ —„,,,bri*. Ne-1411,„,,Alliiiroll, '4011 93T '41"111111.' 01WCWABB1 M ELI PROPRIETARY AND CONFIDENTIAL INFORMATION ORDINANCE NO SUMMARY OF ORDINANCE NO of the City of Pasco, Washmgton On the day of , 1998, the City Council of the City of Pasco, passed Ordinance No A summary of the content of said ordinance, consisting of the title, provides as follows AN ORDINANCE OF THE CITY OF PASCO, WASHINGTON, GRANTING TO ELECTRIC LIGHTWAVE, IN, A WASHINGTON CORPORATION, A NON-EXCLUSIVE FRANCHISE TO INSTALL, OPERATE, AND MAINTAIN A TELECOMMUNICATIONS SYSTEM IN, ON, OVER, UPON, ALONG, AND ACROSS CERTAIN DESIGNATED PUBLIC RIGHTS-OF-WAY OF THE CITY OF PASCO, WASHINGTON, PRESCRIBING CERTAIN RIGHTS, DUTIES, TERMS, AND CONDITIONS WITH RESPECT THERETO, AND ESTABLISHING AN EFFECTIVE DATE. The full text of this Ordinance will be mailed upon request DATED this day of , 1998 Deputy City Clerk, Cathenne D Seaman 14 PASCO, WASHINGTON 99302-2608 PHONE (509) 582-1500 LMALfr)VE MO@ INVOICE SOLD TO PASCO, CITY OF LEGALS P.O. BOX 2D7 PASCO WA 3 D701 VII‘b‘ 60, gtet.. - P BOX 2608 • rECIIVE IN APR 1 7 MO FINANCE DEPT SUMMARY OF ORDI- NANCE NO 3289 of the City of Pasco Washington On the 6th Day of April 1998 the City Council of the City of Pasco passed Ordinance No 3289 A summary of the cdntent of said ordinance consisting of the title provides as fol- lows AN ORDINANCE OF THE CITY OF PASCO WASH- INGTON GRANTING TO ELECTRIC L1GHTWAVE IN A WASHINGTON COR- PORATION A NON EXCLUSIVE FRANCHISE TO INSTALL OPERATE AND MAINTAIN A TELECOMMUNICATIONS SYSTEM IN ON OVER UPON ALONG AND ACROSS CERTAIN DES IGNATED PUBLIC RIGHTS-OF-WAY OF THE CITY OF PASCO WASH INGTON PRESCRIBING CERTAIN RIGHTS DUTIES TERMS AND CONDITIONS WITH RESPECT THERETO AND ESTABLISHING AN EFFECTIVE DATE The full text of this ordinance will be mailed upon request Dated , this 6th day of April 1998 s Cathenne D Seaman Denutv_Citv_Clerk DATE 04/12/ 98 LEGAL NO #048 7 ACCOUNT NO 50550 DESCRIPTION #0437 SUMMARY OF ORDINANCE TIMES 001 LINES 0 ?CFA& &3 40.,2i 8101111CIE This Is an invoice for legal advertising space Please pay from this invoice as no statement will be rendered Please detach at perforation and return with payment L?FilDAKY LDUSDOODALY -11100 COUNTY OF BENTON SS STATE OF WASHINGTON T IF FANY MAGNUS , being duly sworn, deposes and says, I am the Legal Clerk of the Tn-City Herald, a daily newspaper That said newspaper is a legal newspaper and has been approved as a legal newspaper by order of the superior court in the county in which it is published and it is now and has been for more than six months prior to the date of the publication hereinafter referred to, published countinually as a daily newspa- per in Benton County, Washington That the attached is a true copy of a #0487 SUMMARY OF ORDINANCE as it was printed in the regular and entire issue of the Tn-City Herald itself and not in a supplement thereof, time(s), commencing on 04/12/79F) , and ending on 04/12/d , and that said newspaper was regulary distributed to its subscribers during all of this period SUBSCRIBED AND SWORN BEFORE ME THIS DAY OF , \c\cQs, ,aelh Notary public on and for the State of Wash- ington, residing at R CHLAND , WA COMMISSION EXPIRES 08/1 /to