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HomeMy WebLinkAboutZayo Group LLC - Ordinance 4184FILED FOR RECORD AT REQUEST OF: City of Pasco, Washington AFN # 1823479 AGREE WHEN RECORDED RETURN TO: 12/3012014 11:14 AM City of Pasco, Washington 14 Page(s) $85,00 525 North 3rd Klatt Beaton, Auditor Pasco WA 99301 Franklin co.. USA FRANCHISE AGREEMENT THIS FRANCHISE AGREEMENT entered into this 15f day of . T)e6e1lk_2e1 , 2014, by and between the City of Pasco, Washington, a Washington Municipal Corporation (hereinafter referred to as "City", and Zayo Group, LLC, a Delaware Corporation (hereinafter referred to as "Franchisee"). WHEREAS, Section 35A.47.040 of the Revised Code of Washington authorizes the City to grant, permit, and regulate non-exclusive franchises for the use of public ways; and WHEREAS, Franchisee has applied to the City for a non-exclusive franchise to enter, occupy, and use public ways to construct, install, operate, maintain, and repair fiber optic facilities to offer and provide telecommunications service for hire, sale, or resale in the City of Pasco; and WHEREAS, a franchise is a legislatively approved master permit granting general permission to a service provider to enter, use, and occupy the public ways for the purpose of locating facilities subject to requirements that a franchisee must also obtain separate use permits from the City for use of each and every specific location in the public ways in which the franchisee intends to construct, install, operate, maintain, repair or remove identified facilities; and WHEREAS, a franchise does not include, and is not a substitute for any other permit, agreement, or other authorization required by the City, including without limitation, permits required in connection with construction activities in public ways which must be administratively approved by the City after review of specific plans; and WHEREAS, the City has conducted a public hearing on the 1St day of December, 2014, and reviewed the application based upon the standards set forth in Pasco Municipal Code Section 15.10.050 (A); and Franchise Agreement - Page 1 WHEREAS, the City approved this Franchise Agreement pursuant to RCW 35A.47.040 at the next regularly scheduled Council meeting following the public hearing pursuant to Ordinance No. ; and WHEREAS, the City finds that the franchise terms and conditions contained in this Agreement are in the public interest. NOW, THEREFORE, in consideration of the mutual covenants contained herein, and other valuable consideration, the Parties do agree as follows: 1. DEFINITIONS. For the purposes of this Agreement, all terms shall have the meaning as defined in PMC 15.10.020. Terms not specifically defined therein shall be given their ordinary meaning. 2. FRANCHISE. A. The City grants to Franchisee, subject to the terms and conditions of this Agreement and PMC Title 15, a non-exclusive franchise for providing wholesale and enterprise telecommunications (i.e., data transmission) services and bandwidth infrastructure services, not including voice, cable, video or other residential services; and to enter, occupy, and use public ways for constructing, installing, operating, maintaining, repairing, and removing wireline facilities necessary to provide telecommunications services. Franchisee shall construct, install, operate, maintain, repair, and remove its facilities at its expense. B. Any rights, privileges, and authority granted to Franchisee under this Franchise are subject to the legitimate rights of the police power of the City to adopt and enforce general ordinances necessary to protect the safety and welfare of the public, and nothing in this Franchise excuses Franchisee from its obligation to comply with all applicable general laws enacted by the City pursuant to such power. Any conflict between the terms or conditions of this Franchise and any other present or future exercise of the City's police powers will be resolved in favor of the exercise of the City's police power. C. Nothing in this Franchise excuses Franchisee of its obligation to identify its facilities and proposed facilities and their location or proposed location in the public ways and to obtain use and/or development authorization and permits from the City before entering, occupying, or using public ways to construct, install, operate, maintain, repair, or remove such facilities. Franchise Agreement - Page 2 D. Nothing in this Franchise excuses Franchisee of its obligation to comply with applicable codes, rules, regulations, and standards subject to verification by the City of such compliance. E. Nothing in this Franchise shall be construed to create a duty upon the City to be responsible for construction of facilities or to modify public ways to accommodate Franchisee's facilities. F. Nothing in this Franchise grants authority to Franchisee to provide or offer cable television service. G. Nothing in this Franchise shall be construed to create, expand, or extend any liability to the City or to any third party user of Franchisee's facilities or to otherwise recognize or create third party beneficiaries to this Franchise. 3. TERM. Authorization granted under this Franchise shall be for a period of ten (10) years from the effective date of this Franchise. The Franchise may be renewed as provided in PMC Chapter 15.20. This Agreement shall be effective five (5) days following the passage of an authorizing Ordinance and publication of this Franchise, or a summary thereof, occurs in a newspaper of general circulation in the City pursuant to RCW 35A.47.040, or upon execution by all parties hereto whichever occurs later. 4. LOCATION OF FACILITIES. Franchisee will locate its facilities as identified in the Route Design drawings, attached hereto and incorporated herein by this reference as Exhibit A; and will locate its facilities consistent with the requirements of PMC Title 15. Prior to installation of any facilities, Franchisee shall obtain all required City permits. 5. COORDINATION OF CONSTRUCTION AND INSTALLATION ACTIVITIES AND OTHER WORK. A. All construction or installation locations, activities and schedules shall be coordinated, as ordered by the City, to minimize public inconvenience, disruption or damages. B. At least twenty four (24) hours prior to entering a public way to perform construction and installation activities or other work, Franchisee shall give notice, at its cost, to owners and occupiers of property adjacent to such public ways indicating the nature and location of the work to be performed. Such notice shall be physically posted by door hanger. Franchisee shall make a good faith effort to comply with the property owner or occupier's preferences, if any, on location or placement of underground facilities, consistent with sound engineering practices. Franchise Agreement - Page 3 6. HOLD HARMLESS AND ASSUMPTION OF RISK. A. Hold Harmless. (1) Franchisee hereby releases, covenants not to bring suit and agrees to indemnify, defend and hold harmless the City, its elected officials, officers, employees, servants, agents, and representatives against any and all claims, costs, damages, judgments, awards, or liability, of any kind whatsoever, to any person, including claims by Franchisee's own employees to which Franchisee might otherwise be immune under Title 51 RCW, arising from injury or death of any person or damage to property arising out of the acts or omissions of Franchisee, its officers, employees, servants, agents or representatives. (2) Franchisee further releases, covenants not to bring suit and agrees to indemnify, defend and hold harmless the City, its elected officials, officers, employees, servants, agents, and representatives from any and all claims, costs, damages, judgments, awards, or liability to any person, including claims by Franchisee's own employees, including those claims to which Franchisee might otherwise have immunity under Title 51 RCW, arising out of Franchisee's exercise of the rights, privileges, or authority granted by this Franchise which are made against the City, in whole or in part, due to the City's ownership or control of the public ways or other City property, by virtue of the City permitting the Franchisee's entry, occupancy or use of the public ways, or based upon the City's inspection or lack of inspection of work performed by Franchisee, its officers, employees, servants, agents or representatives. (3) These hold harmless covenants include, but are not limited to claims against the City arising as a result of the acts or omissions of Franchisee, its officers, employees, servants, agents or representatives in barricading, instituting trench safety systems or providing other adequate warnings of any excavation, construction, or work in any public way or other public place in performance of work or services permitted under this Franchise. (4) Franchisee further agrees to indemnify, hold harmless and defend the City, its elected officials, officers, employees, servants, agents, and representatives 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 user's facilities caused by or arising out of damage or destruction of Franchisee's facilities, except to the Franchise Agreement - Page 4 extent any such damage or destruction is caused by or arises from the active sole negligence of the City. (5) In the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of Franchisee and the City, Franchisee's liability hereunder shall be only to the extent of Franchisee's negligence. (6) It is further specifically and expressly understood that the hold harmless covenants provided herein constitutes the Franchisee's waiver of immunity under Title 51 RCW. This waiver has been mutually negotiated by the parties. (7) Inspection or acceptance by the City of any work performed by Franchisee at the time of completion of construction or installation shall not be grounds for avoidance of any of these hold harmless covenants. Said hold harmless 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. (8) In the event that Franchisee refuses the tender of defense in any suit or any claim, said tender having been made pursuant to the hold harmless covenants 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 Franchisee, then Franchisee shall pay and be responsible for 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 hold harmless clause. B. Assumption of Risk. (1) Franchisee assumes the risk of damage to its facilities located in the City's public ways from activities conducted by third parties or the City, its elected officials, officers, employees, servants, agents, or representatives. Franchisee releases and waives any and all claims against the City, its elected officials, officers, employees, servants, agents, and representatives for damage to or destruction of the Franchisee's facilities except to the extent any such damage or destruction is caused by or arises from active sole negligence of the City. Franchise Agreement - Page 5 (2) Franchisee bears sole responsibility to insure its property. Franchisee shall ensure that its insurance contracts waive subrogation claims against the City, its elected officials, officers, employees, servants, agents, and representatives, and Franchisee shall indemnify, defend and hold harmless the City, its elected officials, officers, employees, servants, agents, and representatives against any and all subrogation claims if it fails to do so. 7. INSURANCE. Franchisee shall obtain and maintain, at its cost, worker's compensation insurance and the following liability insurance policies insuring both Franchisee and the City, and its elected and appointed officers, officials, agents, employees, representatives, engineers, consultants, and volunteers as additional insureds against claims for injuries to persons or damages to property which may arise from or in connection with the exercise of the rights, privileges, and authority granted to Franchisee: 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 $1,000,000.00 per occurrence. C. The liability insurance policies required by this section shall be maintained by Franchisee throughout the term of this Franchise, such other periods of time during which Franchisee's facilities occupy public ways, and while Franchisee is engaged in the removal of its facilities. 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 construction or installation of any facilities pursuant to this Franchise or other work in a public way. Any deductibles or self-insured retentions must be declared to and approved by the City. Payment of deductibles and self-insured retentions shall be the sole responsibility of Franchisee. The insurance certificate required by this section shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. Franchisee's insurance shall be primary insurance with respect to the City, its officers, officials, employees, agents, consultants, and volunteers. Any insurance maintained by the City, its officers, officials, employees, consultants, agents, and Franchise Agreement - Page 6 volunteers shall be in excess of the Franchisee's insurance and shall not contribute with it. D. In addition to the coverage requirements set forth in this section, each such insurance policy shall contain an endorsement in a form which substantially complies with the following: "It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew be stated until 10 days after receipt by the City, by registered mail, of a written notice addressed to the Pasco City Manager of intent to cancel or not to renew for reason of nonpayment of premium and until 30 days after receipt by the City, by registered mail, of a written notice addressed to the Pasco City Manager of intent to cancel or not to renew for reason for any other reason." E. At least ten (10) days prior to said cancellation or non -renewal, Franchisee shall obtain and furnish to the City replacement insurance policies meeting the requirements of this section. 8. SECURITY FUND. The fund described herein shall be considered an additional security and protection above, beyond and in addition to those rights and remedies already provided by other law including, but not limited to, PMC Title 15. Franchisee shall establish and maintain a security fund in the amount of twenty thousand dollars ($20,000), at its cost, with the City by depositing such monies, bonds, letters of credit, or other instruments in such form and amount acceptable to the City. No sums may be withdrawn from the fund by Franchisee without consent of the City. The security fund shall be maintained at the sole expense of Franchisee so long as any of the Franchisee's facilities occupy a public way. A. The fund shall serve as security for the full and complete performance of this Franchise, including any claims, costs, damages, judgments, awards, or liability, of any kind whatsoever, the City pays or incurs, including civil penalties, because of any failure attributable to Franchisee to comply with the provisions of this Franchise or the codes, ordinances, rules, regulations, standards, or permits of the City. B. Before any sums are withdrawn from the security fund, the City shall give written notice to Franchisee: (1) Describing the act, default or failure to be remedied, or the claims, costs, damages, judgments, awards, or liability which the City has incurred or may pay by reason of Franchisee's act or default; Franchise Agreement - Page 7 (2) Providing a reasonable opportunity for Franchisee to first remedy the existing or ongoing default or failure, if applicable; (3) Providing a reasonable opportunity for Franchisee to pay any monies due the City before the City withdraws the amount thereof from the security fund, if applicable; and (4) Franchisee will be given an opportunity to review the act, default or failure described in the notice with the City or his or her designee. C. Franchisee shall replenish the security fund within fourteen (14) days after written notice from the City that there is a deficiency in the amount of the fund. D. Insufficiency of the security fund shall not release or relieve Franchisee of any obligation or financial responsibility. 9. TAXES, CHARGES, AND FEES. A. Franchisee shall pay and be responsible for all charges and fees imposed to recover actual administrative expenses incurred by the City that are directly related to receiving and approving this Franchise, any use and/or development authorizations which may be required, or any permit which may be required, to inspect plans and construction, or to the preparation of a detailed statement pursuant to RCW Ch. 43.21C. Regular application and processing charges and fees imposed by the City shall be deemed to be attributable to actual administrative expenses incurred by the City but shall not excuse Franchisee from paying and being responsible for other actual administrative expenses incurred by the City. (1) Within fourteen (14) days of execution of this Franchise Agreement, Franchisee shall pay to the City reimbursement for actual administrative expenses incurred including, but not limited to, expenses for staff time, legal review and publication in the amount of $2,000.00. B. Franchisee shall pay and be responsible for taxes permitted by law. 10. VACATION OF PUBLIC WAYS. The City reserves the right to vacate any public way which is subject to rights, privileges, and authority granted by this Franchise. If Franchisee has facilities in such public way, the City shall reserve an easement for Franchisee. Franchise Agreement - Page 8 11. DUTY TO PROVIDE INFORMATION. Within ten (10) days of a written request from the City, Franchisee shall furnish the City with all requested information sufficient to demonstrate: A. That Franchisee has complied with all requirements of this Franchise; B. That taxes, fees, charges, or other costs owed or payable by Franchisee have been properly collected and paid; and 12. RECORDS. A. Franchisee will manage all of its operations in accordance with a policy of keeping its documents and records open and accessible to the City. The City will have access to, and the right to inspect, any documents and records of Franchisee and its affiliates that are reasonably necessary for the enforcement of this Franchise or to verify Franchisee's compliance with terms or conditions of this Franchise. Franchisee will not deny the City access to any of Franchisee's records on the basis that Franchisee's documents or records are under the control of any affiliate or a third party. Franchisee will take all steps necessary to assist the City in complying with the Public Records Act, RCW Chapter 42.56, including providing the City with a written statement identifying how long it will take to produce records not immediately available, and for any records that are not disclosed in whole or in part, a written statement from Franchisee's legal counsel stating the authority upon which the documents are withheld. B. All documents and records maintained by Franchisee shall be made available for inspection by the City at reasonable times and intervals; provided, however, that nothing in this section shall be construed to require Franchisee to violate state or federal law regarding subscriber privacy, nor shall this section be construed to require Franchisee to disclose proprietary or confidential information without adequate safeguards for its confidential or proprietary nature. C. One copy of documents and records requested by the City will be furnished to the City at the cost of Franchisee. If the requested documents and records are too voluminous or for security reasons cannot be copied or removed, then Franchisee may request, in writing within ten (10) days of the City's request, that the City inspect them at Franchisee's local office. If any documents or records of Franchisee are not kept in a local office and/or are not made available in copies to the City, and if the City determines that an examination of such documents or records is necessary or appropriate for the enforcement of this Franchise, or to verify Franchisee's compliance with terms or conditions of this Franchise, then all reasonable travel and related costs incurred in making such examination shall be paid by Franchisee. Franchise Agreement - Page 9 13. NOTICES. A. Any regular 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: The City: City of Pasco Attn: Dave Zabell, City Manager 525 North 3rd Pasco WA 99301 Phone: (509) 545-3404 E -Mail Address: zabelld@pasco-wa.gov Franchisee: Zayo Group, LLC Attn: Dylan DeVito 1805 29th Street Boulder CO 80301 (303) 414-1721 E -Mail Address: dylan.devito@zayo.com B. Franchisee shall additionally provide a phone number and designated responsible officials to respond to emergencies. After being notified of an emergency, Franchisee shall cooperate with the City and make best efforts to immediately respond to minimize damage, protect the health and safety of the public and repair facilities to restore them to proper working order. 14. NON -WAIVER. The failure of the City to exercise any rights or remedies under this Franchise or to insist upon compliance with any terms or conditions of this Franchise shall not be a waiver of any such rights, remedies, terms or conditions of this Franchise by the City and shall not prevent the City from demanding compliance with such terms or conditions at any future time or pursuing its rights or remedies. 15. EMINENT DOMAIN. This Franchise is subject to the power of eminent domain and the right of the City Council to repeal, amend or modify the Franchise in the interest of the public. In any proceeding under eminent domain, the Franchise itself shall have no value. 16. DAMAGE TO FACILITIES. Unless directly and proximately caused by the active sole negligence of the City, the City shall not be liable for any damage to or loss of any facilities as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling, or work of any kind on, in, under, over, across, or within a public way done by or on behalf of the City. Franchise Agreement - Page 10 17. GOVERNING LAW AND VENUE. This Franchise and use of the applicable public ways will be governed by the laws of the State of Washington, unless preempted by federal law. Franchisee agrees to be bound by the laws of the State of Washington, unless preempted by federal law, and subject to the jurisdiction of the courts of the State of Washington. Any action relating to this Franchise must be brought in the Superior Court of Washington for Franklin County, or in the case of a Federal action, the United States District Court for the Eastern District of Washington at Richland, Washington, unless an administrative agency has primary jurisdiction. Prior to initiating any litigation under this Agreement, the parties shall meet in a good faith effort to mutually resolve disputes. 18. SEVERABILITY. If any section, sentence, clause or phrase of this Franchise or its application to any person or entity should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality will not affect the validity or constitutionality of any other section, sentence, clause or phrase of this Franchise nor its application to any other person or entity. 19. MISCELLANEOUS. A. Equal Employment and Nondiscrimination. Throughout the term of this Franchise, Franchisee will fully comply with all equal employment and nondiscrimination provisions and requirements of federal, state, and local laws, and in particular, FCC rules and regulations relating thereto. B. Local Employment Efforts. Franchisee will use reasonable efforts to utilize qualified local contractors, including minority business enterprises and woman business enterprises, whenever the Franchisee employs contractors to perform work under this Franchise. C. Descriptive Headings. The headings and titles of the sections and subsections of this Franchise are for reference purposes only and do not affect the meaning or interpretation of the text herein. D. Costs and Attorneys' Fees. If any action or suit arises in connection with this Franchise, the substantially prevailing party will be entitled to recover all of its reasonable costs, including attorneys' fees, as well as costs and reasonable attorneys' fees on appeal, in addition to such other relief as the court may deem proper. E. No Joint Venture. Nothing herein will be deemed to create a joint venture or principal -agent relationship between the parties, and neither party is authorized to, nor shall either party act toward third persons or the public in any manner that would indicate any such relationship with the other. Franchise Agreement - Page 11 F. Mutual Negotiation. This Franchise was mutually negotiated by the Franchisee and the City and has been reviewed by the legal counsel for both parties. Neither party will be deemed to be the drafter of this Franchise. G. Third -Party Beneficiaries. There are no third -party beneficiaries to this Franchise. H. Actions of the City or Franchisee. In performing their respective obligations under this Franchise, the City and Franchisee will act in a reasonable, expeditious, and timely manner. Whenever this Franchise sets forth a time for any act to be performed by Franchisee, such time shall be deemed to be of the essence, and any failure of Franchisee to perform within the allotted time may be considered a material breach of this Franchise, and sufficient grounds for the City to invoke any relevant remedy. I. Entire Agreement. This Franchise represents the entire understanding and agreement between the parties with respect to the subject matter and supersedes all prior oral and written negotiations between the parties. J. Modification. The parties may alter, amend or modify the terms and conditions of this Franchise upon written agreement of both parties to such alteration, amendment or modification. Nothing in this subsection shall impair the City's exercise of authority reserved to it under this Franchise. K. Non -exclusivity. This Franchise does not confer any exclusive right, privilege, or authority to enter, occupy or use public ways for delivery of telecommunications services or any other purposes. This Franchise is granted upon the express condition that it will not in any manner prevent the City from granting other or further franchises in, on, across, over, along, under or through any public way. L. Rights Granted. This Franchise does not convey any right, title or interest in public ways, but shall be deemed only as authorization to enter, occupy, or use public ways for the limited purposes and term stated in this Franchise. Further, this Franchise shall not be construed as any warranty of title. M. Contractors and Subcontractors. Franchisee's contractors and subcontractors must be licensed and bonded in accordance with the City's ordinances, rules, and regulations. Work by contractors and subcontractors is subject to the same restrictions, limitations and conditions as if the work were performed by Franchisee. Franchise Agreement - Page 12 20. INCORPORATION BY REFERENCE. This Agreement, specifically by this reference, incorporates PMC Title 15. In the event of any dispute between the terms of this Agreement and the provisions of Title 15 as they now exist, the provisions of Title 15 shall control. 21. PUBLICATION. The City Clerk is authorized and directed to publish a summary hereof in accordance with Revised Code of Washington §§ 35A.13.200 and 35A.12.160. 22. EFFECTIVE DATE. This agreement shall take effect five (5) days following the passage of an authorizing ordinance and publication of this Franchise, or a summary thereof, occurs in a newspaper of general circulation in the City pursuant to RCW 35A.47.040, or upon execution by all parties hereto, whichever occurs later. DATED this day of '2014. CITY OF PASCO ,"Dave ZaKell<,City-Wnager Att t: D ark, y . ferk Appr as to Form: Leland B. Kerr, City Attorney Franchise Agreement - Page 13 ZAYO GROUP, "AAA-D44C l_ _ • STATE OF WASHINGTON ) :ss County of Franklin ) On this day personally appeared before me Dave Zabell, City Manager of the City of Pasco, to me known to be the individual described in and who executed the within and foregoing instrument, and acknowledged that he signed the same as his free and voluntary deed for the uses and purposes therein mentioned. SUBSCRIBED and sworn to before me this ePqday of 1014. `e�ttttllh�i Notary Public in and for th S e pf Washi o• •o�t.�+�sS�oy'•.•�ji.� Residing at ,C.(�— �+ ; `' rq ;tt► �, My Commission Expires ( R 9 yam. .. e3LIC 06* STATE OF COLORADO :ss County of h. ) I�tCst, On this day personally appeared before me_0{ 'Leyjd APresident of Zayo Group, LLC, to me known to be the individual described in and who executed the within and foregoing instrument, and acknowledged that he signed the same as his free and voluntary deed for the uses and purposes therein mentioned. h SUBSCRIBED and sworn to before me this�day of Gestil 014. MICHELLE MARLATTARLEDGE 0jLUJ-__ pod Z� NOTARY PUBLIC No ary Public in and or the State of Colorado STATE OF COLORAD4t_ O Residing at i63 0`J—�'�` if f3d u_Ic 2 , ro e o5c) I NOTARY ID 20144015146 My Commission Expires MY COMMISSION EXPIRES APRIL 07, 2018 Franchise Agreement - Page 14