Ordinance 3333ORDINANCE NO. 3333
AN ORDINANCE OF THE CITY OF EDMONDS,
WASHINGTON, GRANTING TO ADELPHIA BUSINESS
SOLUTIONS OPERATIONS, INC., A NON-EXCLUSIVE
FRANCHISE TO INSTALL, OPERATE, AND MAINTAIN A
FIBER OPTIC TELECOMMUNICATIONS SYSTEM IN, ON,
OVER, UPON, ALONG, AND ACROSS THE PUBLIC RIGHTS -
OF -WAY OF THE CITY OF EDMONDS, WASHINGTON,
PRESCRIBING CERTAIN RIGHTS, DUTIES, TERMS, AND
CONDITIONS WITH RESPECT THERETO, AND
ESTABLISHING AN EFFECTIVE DATE.
WHEREAS, Adelphia Business Solutions Operations, Inc., has requested that the City
grant it the right to install, operate, and maintain a fiber optic -based 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 authority 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 EDMONDS, WASHINGTON DO ORDAIN
AS FOLLOWS:
Section 1. Definitions. For the purposes of this Franchise, the following terms, phrases,
words, and abbreviations shall have the meanings ascribed to them below. When not
inconsistent with the context, words used in the present tense include the future tense, words in
the plural number include the singular number, and words in the singular number include the
plural number.
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a. "Affiliate" means an entity which owns or controls, is owned or controlled
by, or is under common ownership with the Franchisee.
b. "City" means the City of Edmonds, Washington.
C. "Communication Service" shall mean any telecommunications services,
telecommunications capacity, or dark fiber, provided by the Franchisee using its
Communication System or Facilities, either directly or as a carrier for its subsidiaries,
Affiliates, or any other person engaged in Communication Services, including, but not
limited to, the transmission of voice, data or other electronic information, facsimile
reproduction, burglar alarm monitoring, meter reading and home shopping, or other
subsequently developed technology that carries an electronic signal over fiber optic cable.
Communication Service shall also include non -switched, dedicated and private line, high
capacity fiber optic transmission services to firms, businesses or institutions within the
City. However, Communications Services shall not include the provision of cable
television, open video, or similar services, as defined in the Communications Act of
1934, as amended, for which a separate franchise would be required.
d. "Communication System" or "Facilities" shall mean the Franchisee's fiber
optic cable system constructed and operated within the City's Public Ways, and shall
include all cables, wires, conduits, ducts, pedestals, and any associated converter,
equipment, or other facilities within the City's Public Ways, designed and constructed for
the purpose of providing Communication Service.
e. "FCC" means the Federal Communications Commission, or any successor
governmental entity hereto.
f. "Franchise" shall mean the initial authorization, or renewal thereof,
granted by the City, through this Ordinance, or a subsequently adopted Ordinance, which
authorizes construction and operation of the Franchisee's Communication System and
associated Facilities for the purpose of offering Communication Service.
g. "Franchisee" means Adelphia Business Solutions Operations, Inc., a
Delaware corporation, or the lawful successor, transferee, or assignee thereof.
h. "Person" means an individual, partnership, association, joint stock
company, trust, corporation, or governmental entity.
i. "Public Way" shall mean the surface of, and any space above or below,
any public street, highway, freeway, bridge, path, alley, court, boulevard, sidewalk,
parkway, lane, drive, circle, or other public right-of-way, including, but not limited to,
public utility easements, utility strips, or rights -of -way dedicated for compatible uses and
any temporary or permanent fixtures or improvements located thereon now or hereafter
held by the City in the Service Area, which shall entitle the City and the Franchisee the
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use thereof for the purpose of installing, operating, repairing, and maintaining the
Communication System. Public Way shall also mean any easement now or hereafter held
by the City within the Service Area for the purpose of public travel, or for utility or
public service use dedicated for compatible uses, and shall include other easements or
rights -of -way, which within their proper use and meaning entitle the City and the
Franchisee to the use thereof for the purposes of installing or transmitting the
Franchisee's Communication Service over wires, cable, conductors, amplifiers,
appliances, attachments, and other property as may be ordinarily necessary and pertinent
to the Communication System.
j. "Service Area" means the present municipal boundaries of the City, and
shall include any additions thereto by annexation or other legal means.
Section 2. 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 right, privilege, and authority to utilize the Public Ways of the City for construction
and operation of the Franchisee's Communication System and to acquire, construct, operate,
maintain, replace, use, install, remove, repair, reconstruct, inspect, sell, lease, transfer or to
otherwise utilize in any lawful manner, all necessary equipment and Facilities thereto for
Franchisee's Communication System, and to provide Communication Service to persons located
within, the City.
Section 3. Construction Permits Required.
A. Prior to site -specific location and installation of any portion of its Communication
System within a Public Way, the Franchisee shall apply for and obtain a Construction Permit
pursuant to ECDC Chapter 18.60. In addition to any criteria set forth in ECDC Chapter 18.60,
the City Engineer shall apply the following criteria in the issuance or denial of a Construction
Permit application:
1. Whether the Franchisee has received all requisite licenses, certificates, and
authorizations from applicable federal, state, and local agencies with
jurisdiction over the activities proposed by the Franchisee;
2. Whether there is sufficient capacity in the Public Ways to accommodate
the Franchisee's proposed Facilities;
3. The capacity of the Public Ways to accommodate additional utility, cable,
and Communication Facilities if the Construction Permit is granted;
4. The damage or disruption, if any, of public or private Facilities, utilities,
improvements, service, travel or landscaping if the Construction Permit is
granted;
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5. The public interest in minimizing the cost and disruption of construction
within the Public Ways; and
6. The availability of alternate routes and/or locations for the proposed
Facilities.
B. Unless otherwise provided in said Permit, the Franchisee shall give the City at
least 48 hours notice of the Franchisee's intent to commence work in the Public Ways. The
Franchisee shall file plans or maps with the City showing the proposed location of its
Communication 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.
Section 4. Grant Limited to Occupation. Nothing contained herein shall be construed to
grant or convey any right, title, or interest in the Public Ways of the City to the Franchisee, nor
shall anything contained herein constitute a warranty of title.
Section 5. Term of Franchise. The first term of this Franchise shall be for a period of
five (5) years from the date of acceptance as set forth in 31, unless sooner terminated. This
Franchise shall automatically renew for two (2) additional five (5) year terms. Provided,
however, that either party may notify the other of its desire to renegotiate any of the terms set
forth herein or of its desire to add to or delete any such terms not later than 180 days prior to
expiration of the initial term hereof or any subsequent renewal terms. If either party makes such
a request, this Franchise shall not renew unless and until the City and Franchisee reach
agreement on said modification, addition, and/or deletion, and said agreement is approved by
ordinance of the City Council. In the event that agreement cannot be reached, this Franchise
shall terminate at the end of the then current term. Nothing in this Section prevents the parties
from reaching agreement on renewal earlier than the time periods indicated.
Section 6. 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. However, the City
shall not permit any such future franchisee to physically interfere with the Franchisee's
communication Facilities. In the event that such physical interference or disruption occurs, the
City Engineer may assist the Franchisee and such subsequent franchisee in resolving the dispute.
Further, this Franchise shall in no way prevent or prohibit the City from using any of its Public
Ways or affect its jurisdiction 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, all in compliance with this Franchise.
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Section 7. Relocation of Communication System.
A. The Franchisee agrees and covenants, to protect, support, temporarily disconnect,
relocate, or remove from any Public Way any portion of its Communication Facilities when so
required by the City Engineer by reason of traffic conditions, 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 Franchisee shall in all cases have the
privilege to temporarily bypass, in the authorized portion of the same public way upon approval
by the City Engineer, any section of cable or any other facility required to be temporarily
disconnected or removed.
B. Upon the reasonable request of the City Engineer and in 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 reasonably determined necessary by the City, to excavate and expose
portions of its communication Facilities for inspection so that the location of same may be taken
into account in the improvement design, PROVIDED that, Franchisee shall not be required to
excavate and expose it's Facilities unless the Franchisee's as -built plans and maps of it's
Facilities submitted pursuant to Section 9 of this Franchise are reasonably determined by the City
Engineer to be inadequate for purposes of this paragraph. The decision to relocate said Facilities
in order to accommodate the City's improvements shall be made by the City Engineer upon
review of the location and construction of the Franchisee's Facilities.
C. If the City Engineer determines that the project necessitates the relocation of the
Franchisee's then existing Facilities, the City shall:
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 an
emergency posing a threat to public safety, health or welfare, or in the event of an
emergency beyond the control of the City and which will result in severe financial
consequences to the City, the City shall give the Franchisee written notice as soon
as practicable; and
2. Provide the Franchisee with copies of information for such improvement project
and a proposed location for the Franchisee's Facilities so that the Franchisee may
relocate its Facilities in other Public Ways in order to accommodate such
improvement project.
3. 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. In the event of an emergency as described herein,
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the Franchisee shall relocate its Facilities within the time period specified by the
City Engineer.
D. 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.
E. The provisions of this Section shall in no manner preclude or restrict the
Franchisee from making any arrangements it may deem appropriate 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.
F. 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 arising 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 by the City or circumstances beyond the control of the Franchisee.
G. The cost and expenses associated with relocation of the Franchisee's Facilities
shall be the responsibility of the Franchisee unless: (1) the Franchisee had paid for the relocation
cost of the same Facilities at the request of the City within the past five years; (2) aerial to
underground relocation of Facilities is required by the City and the Franchisee has an ownership
share of the aerial supporting structures, in which case the City shall be responsible for the
additional incremental costs of underground relocation compared to aerial relocation, or as
provided for in the Franchisee's tariff, if said amount is less; and, (3) when the City requests
relocation solely for aesthetic purposes, unless the Franchisee agrees to be responsible for the
costs thereof.
H. In the event that the City orders the Franchisee to relocate its Facilities for a
project which is primarily for private benefit, the private party or parties causing the need for
such project shall reimburse the Franchisee for the cost of relocation and the same proportion as
their contribution to the cost of the project. In the event of an unforeseen emergency that creates
a threat to the public safety, health, or welfare, the City may require the Franchisee to relocate its
Facilities at its own expense, any other portion of this Section notwithstanding.
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Section 8. Undergrounding of Facilities. Consistent with ECDC Chapter 18.05, all of
Franchisee's facilities shall be placed underground.
Section 9. Maps and Records. After construction is complete, the Franchisee shall
provide the City with accurate copies of as -built plans and maps in a form and content prescribed
by the City Engineer. These plans and maps shall be provided at no cost to the City, and shall
include hard copies and digital copies in a format specified by the City Engineer.
Section 10. Work in Public Ways.
A. During any period of relocation, construction, or maintenance, all surface
structures, if any, shall be erected and used in such places and positions within 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. The Franchisee shall at all times post and maintain proper
barricades and comply with all applicable safety regulations during such period of construction
as required by the ordinances of the City or the laws of the state of Washington, including RCW
39.04.180 for the construction of trench safety systems.
B. During 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 in any area covered
by this Franchise and as described in this Section shall be preformed in accordance with City of
Edmonds Public Works Construction Standards and warranted for a period of one year.
C. The City may require the Franchisee, and its construction, relocation, or
placement of ducts or conduits within the Public Ways to provide the City with additional ducts
or conduits and related structures necessary to access the same. The terms and conditions under
which additional ducts and/or conduits shall be provided shall be consistent with Section 7 of
Engrossed Substitute Senate Bill 6676, Chapter 83, Laws of 2000.
D. The Franchisee shall cooperate with the City and all other persons with authority
from the City to occupy and use the Public Ways of the City in coordinate of construction
activities and joint trenching projects. By February 1" of each calendar year, the Franchisee
shall provide the City with a schedule of its proposed construction activities in, around, or that
may effect the Public Ways of the City. The Franchisee shall also meet with the City and other
grantees, franchisees, permittees, and users of the Public Ways of the City annually, or as
determined by the City, to schedule and coordinate construction activities. The City Engineer
shall coordinate all construction locations, activities, and schedules to minimize public
inconvenience, disruption, or damage to the Public Ways of the City.
E. Consistent with Engrossed Substitute Senate Bill 6676, the Franchisee may, on an
annual basis, file notice with the City Clerk and the City Engineer of its desire to receive notices
related to public improvement projects within the Public Ways of the City. In the event that the
Franchisee is mailed such a notice and fails to coordinate installation or construction of its
Facilities with the public improvement project, the City Engineer may deny the Franchisee's
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construction permit application for those portions of any of the Franchisee's construction projects
which seek to disrupt the surface of any said street for a period of up to five years, as reasonably
determined by the City Engineer for the purpose of protecting the City's investment in said
public improvement projects. In the alternative, the City Engineer may require -the Franchisee to
fully restore the surface and sub -surface areas of such street to the condition that it was in
immediately after completion of the public improvement project.
F. If either the City or the Franchisee shall at any time after installation of the
Facilities plan to make excavations in area covered by this Franchise and as described in this
Section, the party planning such excavation shall afford the other, upon receipt of written request
to do so, an opportunity to share such an excavation. PROVIDED THAT:
1. Such joint use shall not unreasonably delay the work of the parry causing
the excavation to be made or unreasonably increase its costs;
2. Such joint use shall be arranged and accomplished on terms and
conditions satisfactory to both parties; and
3. Either party may deny such request for safety reasons or if their respective
uses of the trench are incompatible.
Section 11. Restoration after Construction. The Franchisee shall, after installation,
construction, relocation, maintenance, removal, or repair of its communication Facilities within
the Public Ways, restore the surface of said Public Ways and any other City -owned property that
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 installation, construction, relocation, maintenance,
or repair, reasonable wear and tear excepted. The Public Works Department shall have final
approval of the condition of such Public Ways and City -owned property after restoration, all in
accordance with the Edmonds Municipal Code and Public Works Construction standards. 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 in the Construction Permit issued by the City all in accordance with the applicable
provisions of the Edmonds Municipal Code, as the same now exists or as it may hereafter be
amended or superseded. All work and restoration by the Franchisee pursuant to this Section
shall be performed in accord with City of Edmonds Public Works Construction standards and
warranted for a period of one year.
Section 12. Emergency Work — Permit Waiver. In the event of any emergency in which
any of the Franchisee's communication Facilities located in, above, or under any Public Way
break, 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
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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 telephone immediately upon learning of the emergency and shall apply for all
required permits not later than the second succeeding day during which the Edmonds City Hall is
open for business.
Section 13. Dangerous Conditions, Authority for City to Abate. Whenever construction,
installation, or excavation of the communication Facilities authorized by this Franchise has
caused or contributed 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 City Engineer may reasonably require 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 reasonable costs thereof.
Section 14. Recovery of Costs. The Franchisee shall be subject to all permit fees
associated with activities undertaken through the authority granted in this Franchise or under the
laws of the City. Where the City incurs costs and expenses for review, inspection, or supervision
of activities undertaken through the authority 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 reasonable costs, after receipt of an itemized bill.
In addition to the above, the Franchisee shall promptly reimburse the City for any and all
reasonable costs the City incurs in response to any emergency involving the Franchisee's
communication Facilities, after receipt of an itemized bill.
The time of City employees shall be charged at their respective rate of salary, including
overtime if applicable, plus benefits and a reasonable overhead. All billings will be itemized as
to specifically identify the costs and expenses for each project for which the City claims
reimbursement. The billing may be on an annual basis, but the City shall provide the Franchise
with the City's itemization of costs at the conclusion of each project for information purposes.
Provided, however, that this Section shall not be construed to allow the City to invoice
Franchisee for costs incurred during the processing of Franchisee's initial franchise application
to the extent that such costs were covered by application fees paid to the City pursuant to
Resolution No. 967.
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Section 15. Consideration. Pursuant to RCW 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 authorized 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 in addition to reimbursement for administrative costs as set forth in
Section 14 herein, payment of the cost recovery fees as set forth in Resolution No. 941, and
payment of any applicable local utility tax applicable to Franchisee's operations. The City hereby
reserves its right to impose a fee on the Franchisee, to the extent authorized 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. Franchisee reserves its right to contest: (i)
Any and all fee(s) imposed by the City on Franchisee and, (ii) any separate agreement(s)the City
requires Franchisee to obtain.
Section 16. Indemnification and Waiver.
A. Franchisee hereby releases, covenants not to bring suit and agrees to indemnify,
defend and hold harmless the City, its officers, employees, agents and representatives from any
and all claims, costs, judgements, awards or liability to any person arising from injury, sickness,
or death of any person or damage to property:
1. For which the negligent acts or omissions of Franchisee, its agents,
servants, officers or employees in performing the activities authorized by
this Franchise are the proximate cause;
2. By virtue of the Franchisee's exercise of the rights granted herein;
3. By virtue of the City permitting Franchisee use of the City's Public Ways
or other public property;
4. Based on the City's inspection or lack of inspection of work performed by
Franchisee, its agents and servants, officers or employees in connection
with work authorized on the Public Ways 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;
5. Arising as a result of the negligent acts or omissions of Franchisee, its
agents, servants, officers or employees in barricading, instituting trench
safety systems or providing other adequate warnings of any excavation,
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construction, or work upon the Public Ways, in any Public Way, or other
public place in performance of work or services permitted under this
Franchise.
B. The provisions of Subsection A of this Section shall apply to claims by
Franchisee's own employees and the employees of the Franchisee's agents, representatives,
contractors, and subcontractors to which Franchisee might otherwise be immune under Title 51
RCW. This waiver of immunity under Title 51 RCW has been mutually negotiated by the
parties hereto, and Franchisee acknowledges that the City would not enter into this Franchise
without Franchisee's waiver thereof.
C. Inspection or acceptance by the City of any work performed by the Franchisee at
the time of completion of construction shall not be grounds for avoidance of any of these
covenants of indemnification. Provided that Franchisee has been given prompt written notice by
the City of any such claim, said indemnification obligations shall extend to claims which are not
reduced to a suit and any claims which may be compromised with Franchisee's consent prior to
the culmination of any litigation or the institution of any litigation. The City has the right to
defend or participate in the defense of any such claim, and has the right to approve any
settlement or other compromise of any such claim, provided that Franchisee shall not be liable
for such settlement or other compromise unless it has consented thereto.
D. In the event that Franchisee refuses the tender of defense in any suit or any claim,
said tender having been made pursuant to this Section, and said refusal is subsequently
determined by a court having jurisdiction (or such other tribunal that the parties shall agree to the
matter), to have been a wrongful refusal on the part of the Franchisee, then Franchisee shall pay
all of the City's costs for defense of the action, including all reasonable expert witness fees,
reasonable attorney's fees, the reasonable costs of the City, and reasonable fees of recovering
under this Subsection.
E. The obligations of Franchisee under the indemnification provisions of this Section
shall apply regardless of whether liability for damages arising out of bodily injury to persons or
damages to property were caused or contributed to by the City, its officers, agents, employees or
contractors except to the extent that such claims, actions, damages, costs, expenses, and attorneys
fees were caused by the sole negligence or any willful, malicious, or criminal act on the part of
the City, its officers, agents, employees or contractors. In the event that a court of competent
jurisdiction determines that this Franchise is subject to the provisions 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.
F. Notwithstanding any other provisions of this Section, Franchisee assumes the risk
of damage to its communication Facilities located in the Public Ways and upon City -owned
property from such activities conducted by the City, its officers, agents, employees and
contractors, except to the extent any such damage or destruction is caused by or arises from the
sole negligence or any willful, malicious, or criminal act on the part of the City, its officers,
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agents, employees or contractors. Franchisee releases and waives any and all such claims against
the City, its officers, agents, employees or contractors. Franchisee further agrees to indemnify,
hold harmless and defend the City against any claims for damages, including, but not limited to,
business interruption damages and lost profits, brought by or under users of Franchisee's
Facilities as the result of any interruption of service due to damage or destruction of 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.
Section 17. Insurance. The Franchisee shall procure and maintain insurance 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 hereunder to the Franchisee, its agents,
representatives or employees. The Franchisee shall provide to the City, for its inspection, an
insurance certificate naming the City as an additional insured as its respective interests may
appear prior to the commencement of any work or installation of any Facilities pursuant to this
Franchise. Such insurance certificate shall evidence:
A. Comprehensive general liability insurance, written on an occurrence basis,
including contractual liability coverage, with limits, inclusive of umbrella or excess liability
coverage, not less than:
(1) $3,000,000.00 for bodily injury or death to each person; and
(2) $3,000,000.00 for property damage resulting from any one
accident.
B. Automobile liability for owned, non -owned and hired vehicles with a limit,
inclusive of umbrella or excess liability coverage, of $3,000,000.00 for each person and
$3,000,000.00 for each accident.
C. Worker's compensation within statutory limits and employer's liability insurance
with limits, inclusive of umbrella or excess liability coverages, of not less than $1,000,000.00.
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 in the removal of its
Communication System. Payment of deductibles and self -insured retentions shall be the sole
responsibility of the Franchisee. The insurance certificate required by this Section shall contain
a clause stating that the coverage shall apply separately to each insured against whom a claim is
made or suit is brought, except with respect to the limits of the insurer's liability. The
Franchisee's insurance shall be primary insurance with respect to the City. Any insurance
maintained by the City, its officers, officials, employees, consultants, agents, and volunteers shall
be in excess of the Franchisee's insurance and shall not contribute with it.
I RJM439289.DOC;1 /00006.080045/080045 } 12
In addition to the coverage requirements set forth in this Section, the insurance certificate
required by this Section shall contain language which provides that the policy may not be
cancelled, reduced in coverage, nor the intention not to renew be stated until at least 30 days
after receipt by the City of written notice of the same via U.S. mail. Within 15 days after receipt
by the City of said notice, and in no event later than 5 days prior to said cancellation or non -
renewal, the Franchisee shall obtain and furnish to the City replacement insurance certificate(s)
meeting the requirements of this Section
Section 18. Abandonment and Removal of the Franchisee's Communication Facilities.
Upon the expiration, termination, or revocation of the rights granted under this Franchise, the
Franchisee shall remove all of its communications Facilities from the Public Ways of the City
within 90 days of receiving notice from the City Engineer. Provided, however, that the City may
permit the Franchisee's improvements to be abandoned in place in such a manner as the City
may prescribe. Upon permanent abandonment, and Franchisee's agreement to transfer
ownership of the communication Facilities to the City, the Franchisee shall submit to the City a
proposal and instruments for transferring ownership to the City. Any such Facilities which are
not permitted to be abandoned in place which are not removed within ninety (90) days of receipt
of said notice shall automatically become the property of the City. Provided, however, that
nothing contained within this Section shall prevent the City from compelling the Franchisee to
remove any such Facilities through judicial action when the City has not permitted the
Franchisee to abandon said Facilities in place.
Section 19. Construction Bond.. Before undertaking any of the work, installation,
improvements, construction, repair, relocation or maintenance authorized by this Franchise, the
Franchisee shall furnish a street repair or sidewalk bond written by a corporate surety acceptable
to the City equal to at least 125% of the estimated cost of restoring the Public Ways of the City
to the pre -construction condition required by Section 11 of this Franchise. Said bond shall be
required to remain in full force until 60 days after completion of the construction of Grantee's
communication Facilities and other improvements from the Public Ways of the City, and said
bond, or separate bond acceptable to the City, shall warrant all such restoration work for a period
of one year. In the event that a bond issued to meet the requirements of this Section is canceled
by the surety, after proper notice and pursuant to the terms of said bond, Franchisee shall, prior
to expiration of said bond, be responsible for obtaining a replacement bond which complies with
the terms of this Section.
Section 20. Modification. The City and the Franchisee hereby reserve the right to alter,
amend or modify the terms and conditions of this Franchise. upon the written agreement of both
parties to such alteration, amendment or modification. Said modifications shall be approved by
the City by ordinance and accepted by the Franchisee consistent with Section 31 hereof.
I RJM439289.DOC;1 /00006.080045/080045) 13
Section 21. Forfeiture and Revocation.
A. This Franchise may be terminated for failure by Franchisee to comply with the
material provisions hereof and other provisions of the Edmonds Municipal Code. In addition to
termination, the City may impose lesser sanctions, including, but not limited to, monetary
penalties, for violation of this Franchise.
B. If the City has reason to believe that Franchisee is in violation of this Franchise or
other provisions of the Edmonds Municipal Code, the following procedures shall be followed by
the City:
1. The City shall provide Franchisee with a detailed written notice, by
certified mail, detailing the violation, the steps necessary to cure such violation, and time period
within which the violation must be cured. Within thirty days (30) thereafter, Franchisee shall
respond demonstrating that no violation occurred, that any problem has been corrected, or with a
proposal to correct the problem within a specified period of time.
2. Franchisee may request an extension of time to cure an alleged violation if
construction is suspended or delayed by the City, or where unusual weather, natural
consequences (e.g. earthquakes, floods, etc.), extraordinary acts of third parties, or other
circumstances which are reasonably beyond the control of Franchisee delay progress, provided
that Franchisee has not, through its own actions or inactions, contributed to the delay. The
amount of additional time allowed will be determined by the City. The extension of time in any
case shall not be greater than the extent of the actual non-contributory delay experienced by
Franchisee.
3. If said response is not satisfactory to City, the City may declare Franchisee
to be in default, with written notice, by certified mail, to Franchisee. Within ten business days
after notice to Franchisee, Franchisee may deliver to the City a request for a hearing before the
City Council. If no such request is received, the City may declare the Franchise terminated for
cause or impose lesser sanctions.
4. If Franchisee files a timely written request for a hearing, such hearing
shall be held within thirty (30) days after the City's receipt of the request therefor. Such hearing
shall be open to the public and Franchisee and other interested parties may offer written and/or
oral evidence explaining or mitigating such alleged non-compliance. Within ten days after the
hearing, the City Council, on the basis of the record, will make the determination as to whether
there is cause for termination, whether the Franchise will be terminated, or whether lesser
sanctions should be imposed. The City Council may in its sole discretion fix an additional time
period to cure violations. If the deficiency has not been cured at the expiration of any additional
time period or if the City Council does not grant any additional period, the City Council may by
resolution declare the Franchise to be terminated and forfeited or impose lesser sanctions.
{ RJM439289.DOC;1 /00006.080045/080045 } 14
5. If Franchisee appeals revocation and termination, such revocation may be
held in abeyance pending judicial review by a court of competent jurisdiction, provided the
Franchisee is otherwise in compliance with this Franchise. In any such appeal, Franchisee shall
be responsible for the costs of preparing and filing the City's administrative record with the
Court and such costs shall be paid prior to the City's filing thereof.
C. In the event that the City elects to impose monetary penalties upon the Franchisee
for failure by to comply with the material provisions of this Franchise, said penalties shall be
assessed at five hundred ($500.00) per day, per violation, for each day beyond thirty (30) days
that Franchisee has been in violation.
D. Monetary penalties may be assessed retroactive to the date that notification was
provided to Franchisee in such cases where Franchisee has been non -responsive in correcting the
violation or in the case of flagrant violations. If payment of any penalty is delinquent by three
(3) months or more, the City may: (1) require partial or total forfeiture of any performance bond
or other surety posted by Franchisee; (2) terminate this Franchise; and/or (3) commence a civil
action in a court of competent jurisdiction to collect said penalty.
E. Franchisee shall not be deemed to be in default, failure, violation, or non-
compliance with any provision of this Franchise where performance was rendered impossible
due to materially, substantially, and reasonably to an act of God, fire, flood, storm, or other
element or casualty, theft,- war, disaster, strike, lock -out, boycott, prevailing war or war
preparation, or bona fide legal proceedings, beyond the control of Franchisee.
Section 22. 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 in the exercise of its police powers in the interest of public safety and for the welfare of the
public. The City shall have the authority at all times to control by appropriate regulations the
locations, elevation, manner or construction and maintenance of any 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 the law.
Section 23. Survival. All of the provisions, conditions, and requirements of this
Franchise shall be in addition to any and all other obligations and liabilities the Franchisee may
have to the City at common law, by statute, or by contract. The provisions, conditions, and
requirements of Sections 7, Relocation of Communication System; 8, Underuoundin,g of
Facilities: 10, Work in Public Ways; 11, Restoration after Construction; 13, Dan eg rous
Conditions. Authority for City to Abate; 16, Indemnification and Waiver: 17, Insurance; and 18,
Abandonment and Removal of the Franchisee's Communication Facilities, shall survive the
expiration or termination of this Franchise, and any renewals or extensions thereof and remain
effective until such time as the Franchisee removes its communication Facilities from the Public
Ways, transfers ownership of said Facilities to a third party, or abandons said System in place, all
as provided herein. All of the provisions, conditions, regulations and requirements contained in
{RJM439289.DOC;1 /00006.080045/080045 } 15
this Franchise shall further be binding upon the heirs, successors, executors, administrators, legal
representatives and assigns of the Franchisee and all privileges, 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.
Section 24. Severability. In any section, sentence, clause, or phrase of this Franchise
should be held to be invalid or unconstitutional by a court of competent jurisdiction, such
invalidity or unconstitutionality shall not affect the validity or constitutionality of any other
section, sentence, clause, or phrase of this Franchise.
Section 25. Assigmnent. This agreement may not be assigned or transferred without
prior written notice to the City, except that the Franchisee may freely assign this Franchise
without notice in whole or 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 security instrument in whole or in part to secure indebtedness, such
notice shall not be required unless and until the secured party elects to realize upon the collateral.
Franchisee may, without the prior written notice to the City: (i) Lease the Facilities, or
any portion thereof, to another; (ii) Grant an Indefeasible Right of User Interest in the Facilities,
or any portion thereof, to another; or (iii) Offer or provide capacity or bandwidth in its Facilities
to another, PROVIDED THAT: Franchisee at all times retains exclusive control over such
Facilities and remains responsible for locating, servicing, repairing, relocating or removing its
Facilities pursuant to the terms and conditions of this Franchise.
Section 26. 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:
it
City of Edmonds
City Engineer
121 5th Avenue North
Edmonds, WA 98020
Telephone: (425) 771-0220
Fax: (425) 771-0221
Franchisee:
Adelphia Business Solutions Operations, Inc.
Manager, Legal and Regulatory Affairs
West Region
One North Main Street
Coudersport, PA 15017
Telephone: (412) 221-1888
Fax:
Notice shall be deemed given upon receipt in the case of personal delivery, three days after
deposit in the United States Mail in the case of regular mail, or the next day in the case of
overnight delivery.
Section 27. Entire Franchise. This Franchise constitutes the entire understanding and
agreement between the parties as to the subject matter herein and no other agreements or
understandings, written or otherwise, shall be binding upon the parties upon approval and
{RJM439289.DOC;1 /00006.080045/080045 } 16
acceptance of this Franchise. Provided further, that the City and Franchisee reserve all rights
they may have under law to the maximum extent possible and neither the City nor Franchisee
shall be deemed to have waived any rights they may now have or may acquire in the future by
entering into this Franchise.
Section 28. Attorney's Fees. If any suit or other action is instituted in connection with
any controversy arising under this Franchise, the prevailing party shall be entitled to recover all
of its costs and expenses including such sum as the court may judge reasonable for attorney's
fees, including fees upon appeal of any judgement or ruling.
Section 29. Non -waiver. Failure of the City to declare any such breach or default
immediately upon the occurrence thereof, or delay in taking any action in connection therewith,
shall not waive such breach or default, but the City shall have the right to declare any such
breach or default at any time. Failure of the City to declare one breach or default does not act as
a waiver of the City's right to declare another breach or default.
Section 30. Governing Law/Venue. This Franchise shall be governed by and construed
in accordance with the laws of the state of Washington. The venue and jurisdiction over any
dispute related to this Franchise shall be with the Snohomish County Superior Court, or, with
respect to any federal question, with the United States District Court for the Western District of
Washington, at Seattle.
Section 31. Acceptance. Within 60 days after the passage and approval of this
ordinance, this Franchise shall be accepted by Franchisee by its filing with the City Clerk an
unconditional written acceptance thereof. Failure of the Franchisee to so accept this Franchise
within said period of time shall be deemed a rejection thereof, and the rights and privileges
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.
Section 32. 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 the passage and publication of an approved summary thereof consisting of the title.
CITY OF EDMONDS
M YOR, ARY HAAKENSEN
ATTEST/AUTHENTICATED :
CITY CLERK SANDRA S. CHASE
{ RJM439289.DOC;1 /00006.080045/080045 } 17
APPROVED AS TQ FROM:
OFFICE O T CITY T RNEY:
By:
W. SCOTT SNYDER
FILED WITH THE CITY CLERK: 11/17/2000
PASSED BY THE CITY COUNCIL: 11/21/2000
PUBLISHED: 11/30/2000
EFFECTIVE DATE: 12/05/2000
ORDINANCE NO.: 3333
{ RJM439289.DOC;1 /00006.080045/080045 } 18
SUMMARY ORDINANCE NO. 3333
of the City of Edmonds, Washington
On the 21 st day of November, 2000, the City Council of the City of Edmonds, passed
Ordinance No. 3333. A summary of the content of said ordinance, consisting of the title,
provides as follows:
AN ORDINANCE OF THE CITY OF EDMONDS,
WASHINGTON, GRANTING TO ADELPHIA BUSINESS
SOLUTIONS OPERATIONS, INC., A NON-EXCLUSIVE
FRANCHISE TO INSTALL, OPERATE, AND MAINTAIN A
FIBER OPTIC TELECOMMUNICATIONS SYSTEM IN, ON,
OVER, UPON, ALONG, AND ACROSS THE PUBLIC RIGHTS -
OF -WAY OF THE CITY OF EDMONDS, 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 22"d day of November, 2000.
"w,440, Sal
City Clerk, Sandra S. Chase
{RJM439289.DOC;1 /00006.080045/0800451 19
Im
Document
I
Adopted by Reference
Ordinance # 333 3 on
1999 REVISED CODE of WASHINGTON
__........-..._.....__._.._.........__._............---...._...._._.........._..—_..._...._..........................................
Title 35 CITIES AND TOWNS
Chapter 35.21 RCW MISCELLANEOUS PROVISIONS
........._._.._._..
.........
RCW 35.21.860 Electricity, telephone, or natural gas business --Franchise fees prohibited --
Exceptions.
RCW 35.21.860 Electricity, telephone, or natural gas business --Franchise fees prohibited --
Exceptions.
_Applicable Cases
(1) No city or town may impose a franchise fee or any other fee or charge of whatever nature or
description upon the light and power, or gas distribution businesses, as defined in RCW 82.16.010, or
telephone business, as defined in RCW 82.04.065, except that (a) a tax authorized by RCW
35.21.865 may be imposed and (b) a fee may be charged to such businesses that recovers actual
administrative expenses incurred by a city or town that are directly related to receiving and approving
a permit, license, and franchise, to inspecting plans and construction, or to the preparation of a
detailed statement pursuant to chapter 43.21C RCW.
(2) Subsection (1) of this section does not prohibit franchise fees imposed on an electrical
energy, natural gas, or telephone business, by contract existing on April 20, 1982, with a city or town,
for the duration of the contract, but the franchise fees shall be considered taxes for the purposes of the
limitations established in RCW 35.21.865 and 35.21.870 to the extent the fees exceed the costs
allowable under subsection (1) of this section.
[1983 2nd ex.s. c 3 § 39; 1982 1st ex.s. c 49 § 2.]
Notes:
Construction--Severability--Effective dates--1983 2nd ex.s. c 3: See notes following RCW 82.04.255.
Intent--Construction--Effective date --Fire district funding-4982 1st ex.s. c 49: See notes following RCW 35.21.710.
RCW 35.21.865 Electricity, telephone, or natural gas business --Limitations on tax rate changes.
Applicable Cases
No city or town may change the rate of tax it imposes on the privilege of conducting an electrical
energy, natural gas, or telephone business which change applies to business activities occurring
before the effective date of the change, and no rate change may take effect before the expiration of
sixty days following the enactment of the ordinance establishing the change except as provided in
RCW 35.21.870.
[1983 c 99 § 4; 1982 1st ex.s. c 49 § 3.]
Notes:
Severability-4983 c 99: See note following RCW 82.14.200.
Intent--Construction--Effective date --Fire district funding--1982 1st ex.s. c 49: See notes following RCW 35.21.710.
RCW 35.21.870 Electricity, telephone, natural gas, or steam energy business --Tax limited to six
percent --Exception.
Applicable Cases
(1) No city or town may impose a tax on the privilege of conducting an electrical energy, natural
gas, steam energy, or telephone business at a rate which exceeds six percent unless the rate is first
approved by a majority of the voters of the city or town voting on such a proposition.
(2) If a city or town is imposing a rate of tax under subsection (1) of this section in excess of six
percent on April 20, 1982, the city or town shall decrease the rate to a rate of six percent or less by
reducing the rate each year on or before November 1 st by ordinances to be effective on January 1 st of
the succeeding year, by an amount equal to one -tenth the difference between the tax rate on April 20,
1982, and six percent.
Nothing in this subsection prohibits a city or town from reducing its rates by amounts greater
than the amounts required in this subsection.
Voter approved rate increases under subsection (1) of this section shall not be included in the
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Document
1999 REVISED CODE of WASHINGTON
Title 35A OPTIONAL MUNICIPAL CODE
_....................._...................._._............................................_..............__..................._.__.........
Chapter. 35A.47 RCW HIGHWAYS AND STREETS
..............._........... .......__............ ____
RCW 35A.47.040 Franchises and permits --Streets :and public ways.
RCW 35A.47.040 Franchises and permits --Streets and public ways.
Applicable Cases
Every code city shall have authority to permit and regulate under such restrictions and conditions
as it may set by charter or ordinance and to grant nonexclusive franchises for the use of public streets,
bridges or other public ways, structures or places above or below the surface of the ground for
railroads and other routes and facilities for public conveyances, for poles, conduits, tunnels, towers
and structures, pipes and wires and appurtenances thereof for transmission and distribution of
electrical energy, signals and other methods of communication, for gas, steam and liquid fuels, for
water, sewer and other private and publicly owned and operated facilities for public service. The
power hereby granted shall be in addition to the franchise authority granted by general law to cities.
No ordinance or resolution granting any franchise in a code city for any purpose shall be adopted
or passed by the city's legislative body on the day of its introduction nor for five days thereafter, nor
at any other than a regular meeting nor without first being submitted to the city attorney, nor without
having been granted by the approving vote of at least a majority of the entire legislative body, nor
without being published at least once in a newspaper of general circulation in the city before
becoming effective.
The city council may require a bond in a reasonable amount for any person or corporation
obtaining a franchise from the city conditioned upon the faithful performance of the conditions and
terms of the franchise and providing a recovery on the bond in case of failure to perform the terms
and conditions of the franchise.
A code city may exercise the authority hereby granted, notwithstanding a contrary limitation of
any preexisting charter provision.
[1967 ex.s. c 119 § 35A.47.040.]
Chapter 35A.49 RCW
LABOR AND SAFETY REGULATIONS
RCW
35A.49.010 Labor regulations --Safety regulations, discrimination in employment, hours, wages.
RCW 35A.49.010 Labor regulations --Safety regulations, discrimination in employment, hours,
wages.
Applicable Cases
Provisions of state laws relating to labor and safety regulations as provided in Title 49 RCW
shall apply to code cities to the same extent as such laws apply to other classes of cities.
[1967 ex.s. c 119 § 35A.49.010.]
Chapter 35A.56 RCW
LOCAL SERVICE DISTRICTS
RCW
35A.56.010 Laws relating to special service districts, application to code cities.
RCW 35A.56.010 Laws relating to special service districts, application to code cities.
Applicable Cases
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1999 REVISED CODE of WASHINGTON
Title 82 EXCISE TAXES
..................................... __................. __.... .................................. ......
Chapter 82.04 RCW BUSINESS AND OCCUPATION TAX
.................................---.......................................... ----...........
RCW 82.04.065 "Competitive telephone service, "network telephone service," "telephone ser
RCW 82.04.065 "Competitive telephone service," "network telephone service," "telephone
service," "telephone business."
Applicable Cases
(1) "Competitive telephone service" means the providing by any person of telecommunications
equipment or apparatus, or service related to that equipment or apparatus such as repair or
maintenance service, if the equipment or apparatus is of a type which can be provided by persons that
are not subject to regulation as telephone companies under Title 80 RCW and for which a separate
charge is made.
(2) "Network telephone service" means the providing by any person of access to a local
telephone network, local telephone network switching service, toll service, or coin telephone
services, or the providing of telephonic, video, data, or similar communication or transmission for
hire, via a local telephone network, toll line or channel, cable, microwave, or similar communication
or transmission system. "Network telephone service" includes interstate service, including toll
service, originating from or received on telecommunications equipment or apparatus in this state if
the charge for the service is billed to a person in this state. "Network telephone service" includes the
provision of transmission to and from the site of an internet provider via a local telephone network,
toll line or channel, cable, microwave, or similar communication or transmission system. "Network
telephone service" does not include the providing of competitive telephone service, the providing of
cable television service, the providing of broadcast services by radio or television stations, nor the
provision of internet service as defined in RCW 82.04.297, including the reception of dial -in
connection, provided at the site of the internet service provider.
(3) "Telephone service" means competitive telephone service or network telephone service, or
both, as defined in subsections (1) and (2) of this section.
(4) "Telephone business" means the business of providing network telephone service, as defined
in subsection (2) of this section. It includes cooperative or farmer line telephone companies or
associations operating an exchange.
[1997 c 304 § 5; 1983 2nd ex.s. c 3 § 24.]
Notes:
Findings--Severability--Effective date--1997 c 304: See notes following RCW 35.21.717.
Construction--Severability--Effective dates--1983 2nd ex.s. c 3: See notes following RCW 82..04.255.
RCW 82.04.070 "Gross proceeds of sales."
Applicable Cases
"Gross proceeds of sales" means the value proceeding or accruing from the sale of tangible
personal property and/or for services rendered, without any deduction on account of the cost of
property sold, the cost of materials used, labor costs, interest, discount paid, delivery costs, taxes, or
any other expense whatsoever paid or accrued and without any deduction on account of losses.
[1961 c 15 § 82.04.070. Prior: 1955 c 389 § 8; prior: 1949 c 228 § 2, part; 1945 c 249 § 1, part; 1943 c 156 § 2, part;
1941 c 178 § 2, part; 1939 c 225 § 2, part; 1937 c 227 § 2, part; 1935 c 180 § 5, part; Rem. Supp. 1949 § 8370-5, part.]
RCW 82.04.080 "Gross income of the business."
Applicable Cases
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Ch. 82, § 1 REGULAR, SESSION
t within nine
eood cause.
shall issue an order accepting, modifying, or rejecting the
as proposed or
considerations stated m subsection (z) or teas section.
(4) Not later than sixty days from the entry of the commission's order, the company or
companies affected by the order may file with the commission an election not to proceed with
the alternative form of regulation as authorized by the commission.
(5) The commission may waive such regulatory requirements under Title 80 RCW for a
telecommunications company subject to an alternative form of regulation as may be appropri-
ate to facilitate the implementation of this section- RRll14DED mi At the a ^,, m *
of legal rights to my per -son An-TI-taintad in- thi� ehapter and ethaoter 90.04 -RCIA1 As am -en
However the commission may not waive any grant I
of legal rights to any person contained in this chapter and chapter 80.04 RCW. The
commission may waive different regulatory requirements for different companies or services
if such different treatment is in the public interest.
(6) Upon petition by the company, and after notice an
hearing, the commission may rescind „its ap G*al of or mo ' an alternative form of
requested by the company.
(7) The commission or any person may file a complaint under RCW 80.04.110 alleging that
a telecommunications company under an alternative form of regulation has not complied with
the terms and conditions set forth in the alternative form of regulation. The complainant
shall bear the burden of proving the allegations in the complaint.
Approved March 24, 2000.
Effective June 8, 2060.
TELECOMMUNICATIONS —CABLE TELEVISION PROVIDERS
a CHAPTER 83
i
S.S.B. No. 6676 i
{y AN ACT Relating to the use of city or town rights of way by telecommunications and cable
television providers; amending RCW 35.21.860; adding a new section to chapter 35A.21 RCW; i
and adding a new chapter to Title 35 RCW.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON.
k
354 .Additions are indicated by underline; deletions by strikeeat
Adopted by Reference
Ordinance
City Clerk
2000 LAWS Ch. 83, § 3
NEW SECTION. Sec: 1. The definitions in this section apply throughout this chapter
unless the context clearly requires otherwise.
(1) "Cable television service" means the one-way transmission to subscribers of video
programming and other programming service and subscriber interaction, if any, that is
required for the selection or use of the video programming or other programming service.
(2) "Facilities" means all of the plant, equipment, fixtures, appurtenances, antennas, and
other facilities necessary to furnish and deliver telecommunications services and cable
television services, including but not limited to poles with crossarms, poles without crossanns,
wires, lines, conduits, cables, communication and signal lines and equipment, braces, guys,
anchors, vaults, and all attachments, appurtenances, and appliances necessary or incidental to
the distribution and use of telecommunications services and cable television services.
(3) "Master permit" means the agreement in whatever form whereby a city or town may
grant general permission to a service provider to enter, use, and occupy the right of way for
the purpose of locating facilities. This definition is not intended to limit, alter, or change the
extent of the existing authority of a city or town to require a franchise nor does it change the
status of a service provider asserting an existing state-wide grant based on a predecessor
telephone or telegraph company's existence at the time of the adoption of the Washington
state Constitution to occupy the right of way. For the purposes of this subsection, a
franchise, except for a cable television franchise, is a master permit. A master permit does
not include cable television franchises.
(4) "Personal wireless services" means commercial mobile services, unlicensed wireless
services, and common carrier wireless exchange access services, as defined by federal laws
and regulations.
(5) "Right of way" means land acquired or dedicated for public roads and streets, but does
not include:
(a) State highways;
(b) Land dedicated for roads, streets, and highways not opened and not improved for
motor vehicle use by the public;
(c) Structures, including poles and conduits, located within the right of way;
(d) Federally granted trust lands or forest board trust lands;
(e) Lands owned or managed by the state parks and recreation commission; or
(f) Federally granted railroad rights of way acquired under 43 U.S.C. Sec. 912 and related
provisions of federal law that are not open for motor vehicle use.
(6) "Service provider" means every corporation, company, association, joint stock associa-
tion, firm, partnership, person, city, or town owning, operating, or managing any facilities
used to provide and providing telecommunications or cable television service for hire, sale, or
resale to the general public. Service provider includes the legal successor to any such
corporation, company, association, joint stock association, firm, partnership, person, city, or
town.
(7) "Telecommunications service" means the transmission of information by wire, radio,
optical cable, electromagnetic, or other similar means for hire, sale, or resale to the general
public. For the purpose of this subsection, "information" means knowledge or intelligence
represented by any form of writing, signs, signals, pictures, sounds, or any other symbols.
For the purpose of this chapter, telecommunications service excludes the over -the -air
transmission. of broadcast television or broadcast radio signals.
I (8) "Use permit" means the authorization in whatever form whereby a city or town may
grant permission to a service provider to enter and use the specified right of way for the
1
purpose of installing, maintaining, repairing, or removing identified facilities.
i NEW SECTION. Sec. 2. A city or town may grant, issue, or deny permits for the use of
the right of way by a service provider for installing, maintaining, repairing, or removing
facilities for telecommunications services or cable television services pursuant to ordinances,
consistent with this act.
NEW SECTION. Sec. 3. (1) Cities and towns may require a service provider to obtain a
master permit. A city or town may request, but not require, that a service provider with an
Additions are indicated by underline; deletions by strikedut 355
Ch. 83, § 3 REGULAR SESSION
iexisting state-wide grant to occupy the right of way obtain a master permit for wireline
facilities.
(a) The procedures for the approval of a master permit and the requirements for a
complete application for a master permit shall be available in written form.
(b) Where a city or town requires a master permit, the city or town shall act upon a
complete application within one hundred twenty days from the date a service provider files
the complete application for the master permit to use the right of way, except:
' (i) With the agreement of the applicant; or
i (ii) Where the master permit requires action of the legislative body of the city or town and
such action cannot reasonably be obtained within the one hundred twenty day period.
(2) A city or town may require that a service provider obtain a use permit. A city or town
must act on a request for a use permit by a service provider within thirty days of receipt of a
completed application, unless a service provider consents to a different time period or the
f service provider has not obtained a master permit requested by the city or town.
p (a) For the purpose of this section, "act" means that the city makes the decision to grant,
f{� condition, or deny the use permit, which may be subject to administrative appeal, or notifies
the applicant in writing of the amount of time that will be required to make the decision and
the reasons for this time period.
(b) Requirements otherwise applicable to holders of master permits shall be deemed
satisfied by a holder of a cable franchise in good standing.
(c) Where the master permit does not contain procedures to expedite approvals and the
service provider requires action in less than thirty days, the service provider shall advise the
city or town in writing of the reasons why a shortened time period is necessary and the time
kk; period within which action by the city or town is requested. The city or town shall
reasonably cooperate to meet the request where practicable.
(d) A city or town may not deny a use permit to a service provider with an existing state-
wide grant to occupy the right of way for wireline facilities on the basis of failure to obtain a
master permit.
1i4 (3) The reasons for a denial of a master permit shall be supported by substantial evidence
contained in a written record. A service provider adversely affected by the final action
denying a master permit, or by an unreasonable failure to act on a master permit as set forth
in subsection (1) of this section, may commence an action within thirty days to seek relief,
which shall be limited to injunctive relief.
(4) A service provider adversely affected by the final action denying a use permit may
commence an action within thirty days to seek relief, which shall be limited to injunctive
j relief. In any appeal of the final action denying a use permit, the standard for review and
burden of proof shall be as set forth in RCW 36.70C.130.
(5) A city or town shall:
(a) In order to facilitate the scheduling and coordination of work in the right of way,
provide as much advance notice as reasonable of plans to open the right of way to those
service providers who are current users of the right of way or who have filed notice with the
clerk of the city or town within the past twelve months of their intent to place facilities in the
city or town. A city is not liable for damages for failure to provide this notice. Where the
city has failed to provide notice of plans to open the right of way consistent with this
subsection, a city may not deny a use permit to a service provider on the basis that the
service provider failed to coordinate with another project.
(b) Have the authority to require that facilities are installed and maintained within the
right of way in such a manner and at' such points so as not to inconvenience the public use of
the •right of way or to adversely affect the public, health, safety, and welfare.
(6) A service provider shall:
a
is (a) Obtain all permits required by the city or town for the installation, maintenance, repair,
or removal of facilities in the right of way;
(b) Comply with applicable ordinances, construction codes, regulations, and standards
subject to verification by the city or town of such compliance;
356 Additions are indicated by underline; deletions by strikeout
2000 LAWS Ch. 83, § 5
(c) Cooperate with the city or town in ensuring that facilities are installed, maintained,
repaired, and removed within the right of way in such a manner and at such points so as not
to inconvenience the public use of the right of way or to adversely affect the public health,
safety, and welfare; l;
(d) Provide information and plans as reasonably necessary to enable a city or town to
comply with subsection (5) of this section, including, when notified by the city or town, the
provision of advance planning information pursuant to the procedures established by the city
or town;
(e) Obtain the written approval.of the facility or structure owner, if the' service provider
does not own it, prior to attaching to or otherwise using a facility or structure in the right of
way;
(f) Construct, install, operate, and maintain its facilities at its expense; and
(g) Comply with applicable federal and state safety laws and standards.
(7) Nothing in'this section shall be construed as:
(a) Creating a new duty upon city or towns to be responsible for construction of facilities
for service providers or to modify the right of way to accommodate such facilities; .
(b) Creating, expanding, or extending any liability of a,city or town to any third=party user
of facilities or .third -party beneficiary; or
(c) Limiting the right of a city or town to require an indemnification agreement as a
condition of a service provider's facilities occupying the right of way.
(8) Nothing in this section creates, modifies, expands, or diminishes a priority of use of the '
right of way by a service provider or other utility, either in relation to other service providers
or in relation to .other users of the right of way for other purposes.
NEW SECTION. 'Sec. 4. (1) A city or town shall not adopt or enforce regulations or
ordinances specifically relating to use of the right of way by a service provider that: s
(a) Impose requirements that regulate the services or business operations of the service
provider, except where otherwise authorized in state or federal law;
(b). Conflict with federal or state laws, rules, or regulations that specifically apply to. the
design, construction, and operation of facilities or with federal or state worker safety or public
safety laws, rules, or regulations;
(c) . Regulate the services provided based upon the content or kind , of signals that are
carried or'are capable of being carried over the facilities, except where otherwise authorized
in or federal law; or
(d)• Unreasonably deny the use of the right of way by a service provider for installing,
maintaining, repairing, or removing facilities for telecommunications services or cable .televi-
sion services.
(2) Nothing in this chapter, including but not limited to the provisions of subsection (1)(d)
of this section, limits the authority of a city or town to regulate the placement of facilities
through its local zoning or police power, if the regulations do -not otherwise:
(a) Prohibit the. placement of all wireless or of all wireline facilities within the city or town;
(b) Prohibit the placement of all wireless or of all wireline facilities within city or town
rights of way, unless the city or town is less than five square miles in size and has no
commercial areas, in which case the city or town may make available land other than city or
town rights of way for the placement of wireless facilities; or
(c) Violate section 253 of the telecommunications act of 1996, P.L. 104-104 (110 Stat. 56).
(3) This section does not amend, limit, repeal, or otherwise modify the authority 'of cities or
towns to regulate cable television services pursuant to federal law. y
NEW SECTION. • Sec. 5. (1) A city or town shall not place or extend a moratorium on
the acceptance and processing of applications, permitting, construction, maintenance, repair,
replacement, extension,, operation, or use of any facilities for personal wireless services,
except as consistent with the guidelines for facilities siting implementation, as agreed to on
August 5, 1998, by the federal communications commission's local and state government
advisory committee, the cellular telecommunications industry association,the personal com-
Additions are indicated by underline; deletions by stfilce M 357
or
2000 LAWS Cal. 83, § . 10
(3) The city or town shall not require that the additional duct or conduit- space be
connected to the access structures and vaults of the service provider.
(4) The value of the additional duct or conduit requested by a city or town shall not be
considered a public works construction contract.
(5) This .section shall not affect the provision of an institutional network by a cable
television provider under federal law.
Sec_. 8. RCW 35.21.860 and 1983 2nd ex.s. c 3 s 39 are each amended to read as follows:
(1) No city or town may impose a franchise fee or any other fee or charge of whatever
nature or description upon the light and power, or gas distribution businesses, as defined in
RCW 82.16.010, or telephone business, as defined in RCW 82.04.065, or service provider for
use of the right of way, except that:
(a) A tax authorized by RCW 35.21.865 may be imposed and!
(b) A fee may be charged to such • businesses or service providers that recovers actual
administrative expenses incurred by a city or town that are directly related to receiving and
approving a permit, license, and franchise, to inspecting plans and construction, or to the
preparation of a detailed statement pursuant to chapter 43.21C RCW!
(c) Taxes permitted by state law on service providers;
(d) Franchise requirements and fees for cable television services as allowed by federal law;
and
(e) A site -specific charge_pursuant to an agreement between the city or town and a service
The placement of new structures in the right of way regardless of height, unless the new
4a,- .,._.,i+ ..f rPinen.t,nn inwhich case no charge will be unposed if the
us location was not cnargea;
The placement of replacement structures when the replacement is necessary for the
or-
nr town_
(2) Subsection (1) of this section does not prohibit trancrose lees imposeu ui, all
energy, natural gas, or telephone business, by contract existing on April 20, 1982, with a city
or town, for the duration of the contract, but the franchise fees shall be considered taxes for
the purposes of the limitations established in RCW 35.21.865 and 35.21.870 to the extent the
fees exceed the costs allowable under subsection (1) of this section.
NEW SECTION. Sec. 9. This act shall not preempt specific provisions in existing
franchises or contracts between_ cities or towns and service providers.
NEW SECTION. Sec. 10. A new section is added to chapter 35A.21 RCW to read as
follows:
Additions are indicated by underline; deletions by strike" 359
Document
Title 332 WAC NATURAL RESOURCES, BOARD AND DEPARTMENT OF
- - -_.................. ----......................................___.............._...........................................__._......_...._....._........._
Chapter 332-120 WAC SURVEY MONUMENTS --REMOVAL OR DESTRUCTION
Chapter 332-120 WAC
SURVEY MONUMENTS --REMOVAL OR DESTRUCTION
Last Update: 2/25/94
WAC
332-120-010
Authority.
332-120-020
Definitions.
332-120-030
Applicability.
332-120-040
Monument removal or destruction.
332-120-050
Application process.
332-120-060
Project completion --Perpetuation of the original position.
332-120-070
Application/permit form.
WAC 332-120-010 Authority.
The department of natural resources, in accordance with RCW 58.24.030 and 58.24.040 (1) and
(8), prescribes the following regulations concerning the removal or destruction of survey monuments
and the perpetuation of survey points.
[Statutory Authority: RCW 58.24.040(8). 94-06-034 (Order 617), § 332-120-010, filed 2/25/94, effective 3/28/94; Order
131, § 332-120-010, filed 3/1/72, effective 4/7/72.]
WAC 332-120-020 Definitions.
The following definitions shall apply to this chapter:
Department: The department of natural resources.
Engineer: Any person authorized to practice the profession of engineering under the provisions
of chapter 18.43 RCW who also has authority to do land boundary surveying pursuant to RCW
36.75.110, 36.86.050, 47.36.010 or 58.09__090.
Geodetic control point: Points established to mark horizontal or vertical control positions that
are part of the National Geodetic Survey Network.
Land boundary survey corner: A point on the boundary of any easement, right of way, lot, tract,
or parcel of real property; a controlling point for a plat; or a point which is a General Land Office or
Bureau of Land Management survey corner.
Land corner record: The record of corner information form as prescribed by the department of
natural resources pursuant to chapter 58.09 RCW.
Land surveyor: Any person authorized to practice the profession of land surveying under the
provisions of chapter 18.43 RCW.
Local control point: Points established to mark horizontal or vertical control positions that are
part of a permanent government control network other than the National Geodetic Survey network.
Parcel: A part or portion of real property including but not limited to GLO segregations,
easements, rights of way, aliquot parts of sections or tracts.
Removal or destruction: The physical disturbance or covering of a monument such that the
survey point is no longer visible or readily accessible.
Survey monument: The physical structure, along with any references or accessories thereto,
used to mark the location of a land boundary survey corner, geodetic control point, or local control
point.
Survey Recording Act: The law as established and designated in chapter 58.09 RCW.
[Statutory Authority: RCW 58.24.040(8). 94-06-034 (Order 617), § 332-120-020, filed 2/25/94, effective 3/28/94; Order
131, § 332-120-020, filed 3/1/72, effective 4/7/72.]
Adopted by Reference
Ordinance # 3333 on
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City Clerk
Document
WAC 332-120-030 Applicability.
(1) No survey monument shall be removed or destroyed before a permit is obtained as required
by this chapter.
(2) Any person, corporation, association, department, or subdivision of the state, county or
municipality responsible for an activity that may cause a survey monument to be removed or
destroyed shall be responsible for ensuring that the original survey point is perpetuated. It shall be the
responsibility of the governmental agency or others performing construction work or other activity
(including road or street resurfacing projects) to adequately search the records and the physical area
of the proposed construction work or other activity for the purpose of locating and referencing any
known or existing survey monuments.
A government agency, when removing a local control point that it has established, shall be
exempted from the requirements of this chapter.
(3) Survey monuments subject to this chapter are those monuments marking local control points,
geodetic control points, and land boundary survey corners.
In regard to local or geodetic control points the department will defer authorization for the
removal or destruction of the survey monument to the agency responsible for the establishment or
maintenance of the control point. Such agency may, at their discretion, exempt the applicant from the
remonumentation requirements of this chapter. Such exemption shall be noted by the agency on the
application form.
[Statutory Authority: RCW 58.24.040(8). 94-06-034 (Order 617), § 332-120-030, filed 2/25/94, effective 3/28/94; Order
131, § 332-120-030, filed 3/1/72, effective 4/7/72.]
WAC 332-120-040 Monument removal or destruction.
(1) All land boundary survey monuments that are removed or destroyed shall be replaced or
witness monuments shall be set to perpetuate the survey point.
(2) A land boundary survey corner shall be referenced to the Washington Coordinate System of
1983, adjusted in 1991, prior to removal or destruction. See WAC 332-130-060, Geodetic control,
survey standards.
An applicant may request a variance from this referencing requirement by so noting in the
applicant information section on the permit and providing the justification on the back of the form.
The department shall note whether the variance is approved or not approved and shall provide the
reason for not approving the request.
[Statutory Authority: RCW 58.24.040(8). 94-06-034 (Order 617), § 332-120-040, filed 2/25/94, effective 3/28/94; Order
131, § 332-120-040, filed 3/1/72, effective 4/7/72.]
WAC 332-120-050 Application process.
(1) Whenever a survey monument needs to be removed or destroyed the application required by
this chapter shall be submitted to the department.
It shall be completed, signed and sealed by a land surveyor or engineer as defined in this chapter.
(2) Upon receipt of a properly completed application, the department shall promptly issue a
permit authorizing the removal or destruction of the monument; provided that:
(a) In extraordinary circumstances, to prevent hardship or delay, a verbal authorization may be
granted, pending the processing and issuance of a written permit. A properly completed application
shall be submitted by the applicant within fifteen days of the verbal authorization.
(b) Applications received by the department concerning local or geodetic control points will be
referred to the appropriate agency for action. The applicant will be notified when such action is taken.
(3) One application may be submitted for multiple monuments to be removed or destroyed as
part of a single project; however, there shall be separate attachments to the application form detailing
the required information for each monument removed or destroyed.
[Statutory Authority: RCW 58.24.040(8). 94-06-034 (Order 617), § 332-120-050, fled 2/25/94, effective 3/28/94; Order
131, § 332-120-050, filed 3/l/72, effective 4/7/72.]
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WAC 332-120-060 Project completion --Perpetuation of the original position.
(1) After completion of the activity that caused the removal or destruction of the monument, a
land surveyor or engineer shall, unless specifically authorized otherwise:
(a) Reset a suitable monument at the original survey point or, if that is no longer feasible;
(b) Establish permanent witness monuments easily accessible from the original monument to
perpetuate the position of the preexisting monument.
(2) Land boundary survey monumentation required by this chapter shall meet the requirements
of the RCW 58.09.120 and 58.09.130.
(3) After completion of the remonumentation, the land surveyor or engineer shall complete the
report form required by this chapter and forward it to the department.
(4) Additionally, after remonumenting any corner originally monumented by the GLO or BLM,
a land corner record form shall also be filed with the county auditor as required by the Survey
Recording Act.
[Statutory Authority: RCW 58.24.040(8). 94-06-034 (Order 617), § 332-120-060, filed 2/25/94, effective 3/28/94.]
WAC 332-120-070 Application/permit form.
--...---...----...—
The following form shall be used when making application to remove or destroy a survey
monument:
APPLICATION FOR. PERMIT PERMIT NO..
TQ' ..REMOVE :OR- DESTROY
A SURVEY .MONUMENT
You are hereiby authorized to remove
the described survey monument(s):
AUTHORIZING SIGNATtRE/DATE
(DUR or Other Authorizing Agent
APPLICANT INFORMATION:
NAME: TELEPHONE NO::. DATE:.
COMPANVOR AGENCY NAME AND ADDRESS:
i estimate that this work will be finished by.(date)
1 request.a variance from the requirement to reference to the Washington Coordinate System.
provide your justification in the space below.)
The variance request is approved; not 4pproved. .(FOR OUR USE ONLY) Reason for not approv
MULTIPLE -MONUMENTS:
'Check here if this form is being used for more than. one monument.. .You must aitach separate
ehnwinn tho infnrmatinn raniti"rar3 fie}nu fnr amen m "ii f.* effa^4-md v.... —.F . 1 ._-- -..a a.a- ---&
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Document
j L! h r Dui u v t u f M V Y ive are ner euy aut.norizeu Lu rempre
the described survey aonument(s):
A SURVEY MONUMENT
AUTHORIZING SIGNATURE/DATE
(DHR or Other Authorizing Agenc
APPLICANT INFORMATION:
NAME: TELEPHONE No:. DATE:.
COMPANVOR AGENCY HAMS AND ADDRESS:
I estimate that this work will be finished by.(date)
1 request.a variance from the requirement to reference to the Washington Coordinate System.
provide your justification in the space below.)
D
The variance request is approved; not epproved. .(F00 ORR USE ONLY) Reason for not appro%
COMPLETION REPORT FOR MONUMENT
REMOVAL OR DESTRUCTION
(TO BE COMPLETED AND SENT TO THE DNR AFTER THE WORK 'IS DOME.) "
1 have perpetuated the position(s) as per the detail sham on the application form.
SEAL/SIGNATURE/OATS SIDED
OR
I was unable to fulfill the plan as shown on the application form. 8e10w is the detail of what I did do
to perpetuate the original position(s). (If the application covered multiple monuasnts attach sheets providing the
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Document
KEIVIUVHL UK UtZ) t rWu I lulm
(To BE COWILETED AND SETT TO THE DNR AFTER THE PORK 95 DONE.)
l have perpetuated the position(&) as per the detail shown on the application form.
OR
SEAL/SIBNAARE/DATE SIGkED
[Statutory Authority: RCW 58.24.040(8). 94-06-034 (Order 617), § 332-120-070, filed 2/25/94, effective 3/28/94.]
Chapter 332-130 WAC
MINIMUM STANDARDS FOR LAND BOUNDARY SURVEYS AND GEODETIC
CONTROL SURVEYS AND GUIDELINES FOR THE PREPARATION OF LAND_
DESCRIPTIONS
Last Update: 12/31/96
WAC
332-130-010
Authority.
332-130-020
Definitions.
332-130-025
Corner restoration --Recording form.
332-130-030
Land subdivision and corner restoration standards --Recording.
332-130-040
Land description guidelines.
332-130-050
Survey map requirements.
332-130-060
Geodetic control survey standards.
332-130-070
Survey standards.
332-130-080
Relative accuracy --Principles.
332-130-090
Field traverse standards for land boundary surveys.
332-130-100
Equipment and procedures.
WAC 332-130-010 Authority.
The department of natural resources, in accordance with RCW 58.24.040, 58.09.050, and
58.17.160, prescribes the following regulations setting minimum standards for land boundary surveys
and geodetic control surveys and providing guidelines for the preparation of land descriptions.
[Statutory Authority: RCW 58.09.050 and 58.24.040(1). 92-03-007 (Order 597), § 332-130-010, filed 1/3/92, effective
2/3/92. Statutory Authority: RCW 58.24.040(1). 89-11-028 (Order 561), § 332-130-010, filed 5/11/89; Order 275, §
332-130-010, filed 5/2/77.]
WAC 332-130-020 Definitions.
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RECE1VE;D
DEC 0 1 2000
Affidavit of Publication EDMONDS CITY CLERK
STATE Or WASHINGTON, ca
COUNTY Or SNOHOMISH.
The undersigned, being first duly sworn on oath deposes and says
that she is Principal Clerk of THE HERALD, a daily newspaper
printed and published in the City of Everett, County of Snohomish,
and State of Washington; that said newspaper is a newspaper of
general circulation in said County and State; that said newspaper
has been approved as a legal newspaper by order of the Superior
Court of Snohomish County and that the notice ...............
Ordinance #3333
City of Edmonds
.................................... I.....
........................................................ .... I......... ..................... --.......................................
a printed copy of which is hereunto attached, was published in said
newspaper proper and not in supplement form, in the regular and
entire edition of said paper on the following days and times, namely:
November 30, 2000
........................................................................................................
30th
Subscribed and sworn to before me this ......................
November /'1 00
......i.-
Notary Public in �d or the tale of Washington,
I residing �pmis County.
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Facilities, utilities, improvements, service, travel or
landscaping if the Construction Permit is granted:
5. T4p public interest in minimizing the cost and disruption
• of construction within the Public Ways; and
' 6. The availability of alternate routes and/or locations for the
proposed Facilities.
B. Unless otherwise provided in said Permit, the Franchisee
shall give the City at least 48 hours notice of the Franchisee's intent
to commence work in the Public Ways. The Franchisee shall file
plans or maps with the City showing the proposed location of its
Communication 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.
Section 4. Grant Limited to Occupation. Nothing contained
• herein shall be construed to grant or convey any right, title, or
interest in the Public Ways of the City to the Franchisee, nor shall
anything contained herein constitute a warranty of title.
Section 5. Term of Franchise. The first term of this Franchise
shall be for a period of five (5) years from the date of acceptance as
set forth in 31, unless sooner terminated. This Franchise shall
automatically renew for two (2) additional five (5) year terms.
Provided, however, that either party may notify the other of its desire
to renegotiate any of the terms set forth herein or of its desire to add
to or delete any such terms not later than 180 days prior to
expiration of the initial term hereof or any subsequent renewal
terms. If either party makes such a request, this Franchise shall not
renew unless and until the City and Franchise reach agreement on
said modification, addition, and/or deletion, and said agreement is
' approved by ordinance of the City Council. In the event that
agreement cannot be reached, this Franchise shall terminate at the
end of the then current term. Nothing in this Section prevents the
parties from reaching agreement on renewal earlier than the time
periods indicated.
Section 6. Non -Exclusive Grant. This Franchise shall not in any
manner prevent the cityfrom entering into other similar agreements
or
i hroughtinal ntgeorobelowfurther
any f franchises
sadin,
Publcunder,
Ways ofothe City.
However, the City shall not permit any such future franchisee to
pphysically interfere with the Franchisee's communication Facilities.
In the event that such physical interference or disruption occurs, the
' City Engineer may assist the Franchisee and such subsequent
franchisee in resolving the dispute. Further, this Franchise shall in
' no way prevent or prohibit the City from using any of its Public Ways
or affect its jurisdiction 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, all in compliance with this Franchise.
Section 7. Relocation of Communication System.
A. The Franchisee agrees and covenants, to protect, support,
temporarily disconnect, relocate, or remove from any Public Way
' any portion of its Communication Facilities when so required by the
City Engineer by reason of traffic conditions, public safety,
' dedications of new Public Ways and the establishment and
improvement thereof, wideningg and improvement of existing Public
Ways, street vacations, fleeway 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 Franchisee* shall in all
cases have the privilege to temporarily bypass, in the authorized
portion of the same public way upon approval by the City Engineer,
any section of cable or any other facility required to be temporarily
disconnected or removed.
B. Upon the reasonable request of the City Engineer and in
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 reasonably determined necessary by the
• City, to excavate and expose portions of its communication Facilities
for inspection so that the location of same may be taken into
account in the improvement design, PROVIDED that, Franchisee
shall not be required to excavate and expose it's Facilities unless the
Franchisee's as -built plans and maps of it's Facilities submitted
ppursuant to Section 9 of this Franchise are reasonably determined
by the City Engineer to be inadequate for purposes of this
paragraph. The decision to relocate said Facilities in order to
accommodate the Cfty's improvements shall be made by tie"City
Engineer upon review of the location and construction of the
t Franchisee's Facilities.
C. If the City Engineer determines that the project necessitates
the relocation of the Franchisee's then existing Facilities, the City
shall:
i. Within a reasonable time, which shall be no less than 30
days, prior to the commencement of such improvement
project, provide he Franchisee with written notice requiring
such relocation. Provided, however, that in the event an
r, emergency posing a threat to public safety, health or welfare,
or in the event of an emergency beyond the control of the City
and which will result in severe financial consequences to the
City, the City shall give the Franchisee written notice as soon
as practicable; and
2. Provide the Franchisee with copies of information for such
improvement project and a proposed location for the
Franchisee's Facilities so that the Franchisee may relocate its
Facilities in other Public Ways in order to accommodate such
improvement project.
3. 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 he project. In the event of an emergency as described
herein, the Franchisee shall relocate its Facilities within the
time Period specified by the City Engineer.
D. 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.
E. The provisions of this Section shall in no manner preclude or
restrict the Franchisee from making any arrangements it may deem
appropriate 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 maintainedFacilities; provided,
that such arrangements do not unduly delay a City construction
project.
applicable provisions of the Edmonds Municipal Code, as the same
now exists or as it may hereafter be amended or superseded. All
work and restoration by the Franchisee pursuant to this Section shall
be pnrfomed in accord with City of Edmonds Public Works
Construction standards and warranted for a period of one year.
Section 12. Emer gnc Work — Permit Waiver. In the event of
any emergency in w ich any of theFranchisee's communication
Facilities located in, above, or under any Public Way break, 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 telephone immediately upon learning of the emergency and
shall apply for all required permits not later than the second
succeeding day during which the Edmonds City Hall is open for
business.
Section 13. Dangerous Conditions. Authority for City to Abate.
Whenever construction, installation, or excavation of the
communication Facilities authorized by this Franchise has caused or
contributed 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 City
Engineer may reasonably require the Franchisee, at the
Franchisee's own expense, to take action to protect the public,
adjacent public places, City -owner 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 reasonable costs thereof.
Section 14. Recovery of Costs. The Franchisee shall be subject
to all permit fees associated with activities undertaken through the
authority granted in this Franchise or under the laws of the City.
Where the City incurs costs and expenses for review, inspection, or
supervision of activities undertaken through the authority 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 reasonable costs, after receipt of an itemized
bill.
In addition to the above, the Franchisee shall promptly reimburse
the City for any and all reasonable costs the City incurs in response
to any emergency involving the Franchisee's communication
Facilities, after receipt of an itemized bill.
The time of City employees shall be charged at their respective
rate of salary, including overtime if applicable, plus benefits and a
reasonable overhead. All billings will be itemized as to specifically
identify the costs and expenses for each project for which the City
claims reimbursement. The billing may be on an annual basis, but
the City shall provide the Franchise with the City's itemization of
costs at the conclusion of each project for information purposes.
Provided, however, that this Section shall not be construed to allow
the City to invoice Franchisee for costs incurred during the
processing of Franchisee's initial franchise application to the extent
that such costs were covered by application fees paid to the City
pursuant to Resolution No. 967.
Section 15. Consideration. Pursuant to RCW 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 authorized 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 in addition to
reimbursement for administrative costs as set forth in Section 14
herein, payment of the cost recovery :ees as set forth in Resolution
No. 941, and payment of any applicable local utility tax applicable to
Franchisee's operations. The City hereby reserves its right to
impose a fee on the Franchisee, to the extent authorized 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. Franchisee reserves its fight to
contest: (i) Any and all fee(s) imposed by the City on Franchisee
and, (ii) any separate agreement(s) the City requires Franchisee to
obtain.
Section 16. Indemnification and Waiver.
A. Franchisee hereby releases, covenants not to bring suit and
agrees to indemnify, defend and hold harmless the City, its officers,
employees, agents and representatives from any and all claims,
costs, judgements, awards or liability to any person arising from
injury, sickness, or death of any person or damage to property:
1. For which the negligent acts or omissions of Franchisee,
its agents, servants, officers or employees in performing
the activities authorized by this Franchise are the
proximate cause;
2. by virtue of the Franchisee's exercise of the rights
granted herein;
3. By virtue of the City permitting Franchisee use of the
City's Public Ways or other public property;
4. Based on the City's inspection or lack of inspection of
work performed by Franchisee, its agents and servants,
officers or employees in connection with work authorized
on the Public Ways 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;
5. Arising as a result of the negligent acts or omissions of
Franchisee, its agents, servants, officers or employees in
barricading, instituting trench safety systems or providing
other adequate warnings of any excavation, construction,
or work upon the Public Ways, in any Public Way, or
other public lace in performance of work or services
P p P
permitted under this Franchise.
B. The provisions of Subsection A of this Section shall apply to
claims by Franchisee's own employees and the employees of the
Franchisee's agents, representatives, contractors, and
subcontractors to which Franchisee might otherwise be immune
under Title 51 RCW. This waiver of immunitv under Title 51 RCW
Section 1y- GOnsiru lion DVi .u. omure uuuc,,y „r - -
work. installation, improvements, construction, repair, relocation or
maintenance authorized by this Franchise, the Franchisee shall
furnish a street repair or sidewalk bond written by a corporate surety
acceptable to the City equal to at least 125 % of the estimated cost
of restoring the Public Ways of the City to the pre -construction
condition required by Section 11 of this Franchise. Said bond shall
be required to remain in full force until 60 days after completion of
the construction of Grantee's communication Facilities and other
improvements from the Public Ways of the City, and said bond, or
separate bond acceptable to the City, shall warrant all such
restoration work for a period of one year. In the event that a bond
issued to meet the requirements of this Section is canceled by the
surety, after proper notice and pursuant to the terms of said bond,
Franchisee shall, prior to expiration of said bond, be responsible for
obtaining a replacement bond which complies with the terms of this
Section.
Section 20. Modification. The City and the Franchisee hereby
reserve the right to alter, amend or modify the terms and conditions
of this Franchise upon the written agreement of both parties to such
alteration, amendment or modification. Said modifications shall be
approved by the City by ordinance and accepted by the Franchisee
consistent with Section 31 hereof.
Section 21. Forfeiture and Revocation.
A. This Franchise may be terminated for failure by Franchisee to
comply with the material provisions hereof and other provisions of
the Edmonds Municipal Code. In addition to termination, the City
may impose lesser sanctions, including, but not limited to, monetary
penalties, for violation of this Franchise.
B. If the City has reason to believe that Franchisee is in violation
of this Franchise or other provisions of the Edmonds Municipal
Code, the following procedures shall be followed by the City:
1. The City shall provide Franchisee with a detailed written
notice, by certified mail, detailing the violation, the steps necessary
to cure such violation, and time period within which the violation
must be cured. Within thirty days (30) thereafter, Franchisee shalt
respond demonstrating that no violation occurred, that any problem
has been corrected, or with a proposal to correct the problem within
a specified period of time.
2. Franchisee may request an extension of time to cure an
alleged violation if construction Is suspended or delayed by the City,
or where unusual weather, natural consequences (e.g. earthquakes,
floods, etc.), extraordinary acts of third parties, or other
circumstances which are reasonably beyond the control of
Franchisee delay progress, provided that Franchisee has not,
through its own actions or inactions, contributed to the delay. The
amount of additional time allowed will be determined by the City.
The extension of time in any case shall not be greater than the
extent of the actual non-contributory delay experienced by
If said response is not satisfactory to City, the City may
ranchisee to be in default, with written notice, by certified
Franchisee. Within ten business days after notice to
e, Franchisee may deliver to the City a request for a
efore the City Council. It no such request is received, the
declare the Franchise terminated for cause or impose
lesser sanctions.
4. If Franchisee files a timely written request for a hearing,
such hearing shall be held within thirty (30) days after the City s
receipt of the request therefor. Such hearing shall be open to the
public and Franchisee and other interested parties may offer written
and/or oral evidence explaining or mitigating such alleged non-
compliance. Within ten days after the hearing: the City Council, on
the basis of the record, will make the determination as to whether
there is cause for termination, whether the Franchise will be
terminated, or whether lesser sanctions should be imposed. The
City Council may in its sole discretion fix an additional time period to
cure violations. If the deficiency has not been cured at the expiration
of any additional time period or if the City Council does not grant any
additional period, the City Council may by resolution declare the
Franchise to be terminated and forfeited or impose lesser sanctions.
5. If Franchisee appeals revocation and termination, such
revocation may be held in abeyance pending judicial review by a
court of competent jurisdiction, provided the Franchisee is otherwise
in compliance with this Franchise. In any such appeal, Franchisee
shall be responsible for the costs of preparing and filing the City's
administrative record with the Court and such costs shall be paid
prior to the City's filing thereof.
C. In the event that the City elects to impose monetary penalties
upon the Franchisee for failure by to comply with the material
provisions of this Franchise, said penalties shall be assessed at five
hundred ($500.00) per day, per violation, for each day beyond thirty
(30) days that Franchisee has been in violation.
D. Monetary penalties may be assessed retroactive to the date
that notification was provided to Franchisee in such cases where
Franchisee has been non -responsive in correcting the violation or in
the case of flagrant violations. If payment of any penalty is
delinquent by three (3) months or more, the City may: (1) require
partial or total forfeiture of any performance bond or other surety
posted by Franchisee; (2) terminate this Franchise; and/or (3)
commence a civil action in a court of competent jurisdiction to collect
said penalty.
E. Franchisee shall not be deemed to be in default, failure,
violation, or non-compfiance with any provision of this Franchise
where performance was rendered impossible due to materially,
substantially, and reasonably to an act of God, fire, flood, storm, or
other element or casualty, theft, war, disaster, strike, lock -out,
boycott, prevailing war or war preparation, or bona fide legal
proceedings, beyond the control of Franchisee.
E Section E. Cit Ordinances and Rectulations. Nothing herein
shall be deemed to direct or restrict the Citys ability to adopt and
enforce all necessary and appropriate ordinances regulating the
performance of the conditions of this Franchise, including any valid
ordinance made in the exercise of its police powers in the interest of
public safety and for the welfare of the public. The City shall have
the authority at all times to control by appropriate regulations the
locations, elevation, manner or construction and maintenance of any
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 the law.
Section 23. Survival. All of the provisions, conditions, and
requirements of this Franchise shall be in addition to any and all
other obligations and liabilities the Franchisee may have to the City
at common law, by statute, or by contract. The provisions,
conditions. and requirements of Sections 7, Relocation of
ration of this Franchise, and any renewals or extensions
and remain effective until such time as the Franchisee
its communication Facilities from the Public Ways,
ownership of said Facilities to a third party, or abandons
Item in place, all as provided herein. All of the provisions,