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
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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
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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,
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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
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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
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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,
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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
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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
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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
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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
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ELECTRIC LIGHTVVAVE, INC.
Engurteeruag Depaurtment
Tr-Cities, Wa.
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Data Purchased 1997
0100-249 (68)
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ELI PROPRIETARY AND
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langmeernig Department
Tr-Cities, Wa.
Planning Profile
December 1997
ELI/BPA Proposed Longhaul Route
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Dun & Bradstreet Data
(see D&B Legend below)
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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