Ordinance 4175ORDINANCE NO.4175
AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, GRANTING TO LEVEL
3 COMMUNICATIONS, LLC, A DELAWARE LIMITED LIABILITY COMPANY, A NON-
EXCLUSIVE FRANCHISE TO INSTALL, OPERATE, AND MAINTAIN A
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,
ESTABLISHING AN EFFECTIVE DATE.
WHEREAS, Level 3 Communications, LLC, is a Delaware limited liability company, and
a wholly -owned subsidiary of CenturyLink, Inc., with its principal offices at: 1025 Eldorado Blvd.
Broomfield, CO 80021, and
WHEREAS, Level 3 Communications, LLC, is a telephone business providing
telecommunications services to customers; and
WHEREAS. Level 3 Communications, LLC, has requested that the City grant it the right
to install, operate, and maintain a telecommunications system within the public ways of the City,
and
WHEREAS, the City Council has found it desirable for the welfare of the City and its
residents that such a non-exclusive franchise be granted to Level 3 Communications, LLC; and
WHEREAS, the City Council has the authority under state law 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.
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. "Facilities" shall mean Franchisee's telecommunications 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
Telecommunications Service,
d. "FCC" means the Federal Communications Commission, or any successor
governmental entity hereto.
e. "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 Facilities for the purpose of
offering Telecommunications Service.
f. "Franchisee" means Level 3 Communications, LLC, a Delaware limited
liability company, or the lawful successor, transferee, or assignee thereof.
g. "Person" means an individual, partnership, association, joint stock
company, trust, corporation, or governmental entity.
h. "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 use thereof for the
purpose of installing, operating, repairing, and maintaining the Facilities. 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 Telecommunications Service over the Facilities.
i. "Service Area" means the present municipal boundaries of the City, and
shall include any additions thereto by annexation or other legal means.
j. "Telecommunications Service" is as defined in RCW § 82.04.065(27) in effect as
of the date of this agreement. "Telecommunications Service" means the electronic transmission,
conveyance, or routing of voice, data, audio, video, or any other information or signals to a point,
or between or among points. "Telecommunications service" includes such transmission,
conveyance, or routing in which computer processing applications are used to act on the form,
code, or protocol of the content for purposes of transmission, conveyance, or routing without
regard to whether such service is referred to as voice over internet protocol services or is
classified by the federal communications commission as enhanced or value added.
"Telecommunications service" does not include:
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(a) Data processing and information services that allow data to be generated,
acquired, stored, processed, or retrieved and delivered by an electronic
transmission to a purchaser where such purchaser's primary purpose for the
underlying transaction is the processed data or information;
(b) Installation or maintenance of wiring or equipment on a customer's premises;
(c) Tangible personal property;
(d) Advertising, including but not limited to directory advertising;
(e) Billing and collection services provided to third parties;
(f) Internet access service;
(g) Radio and television audio and video programming services, regardless of the
medium, including the furnishing of transmission, conveyance, and routing of
such services by the programming service provider. Radio and television audio
and video programming services include but are not limited to cable service as
defined in 47 U.S.C. Sec. 522(6) and audio and video programming services
delivered by commercial mobile radio service providers, as defined in section
20.3, Title 47 C.F.R.;
(h) Ancillary services;
(i) Digital products delivered electronically, including but not limited to music,
video, reading materials, or ring tones; or
0) Software delivered electronically.
The preceding terms have the following meanings as defined by statute:
"Ancillary services" means services that are associated with or incidental to the
provision of "telecommunications services," including but not limited to "detailed
telecommunications billing," "directory assistance," "vertical service," and "voice
mail services.
"Detailed telecommunications billing service" means an ancillary service of
separately stating information pertaining to individual calls on a customer's billing
statement.
"Directory assistance" means an ancillary service of providing telephone number
information, and/or address information.
"Vertical service" means an ancillary service that is offered in connection with
one or more telecommunications services, that offers advanced calling features
that allow customers to identify callers and to manage multiple calls and call
connections, including conference -bridging services.
"Voice mail service" means an ancillary service that enables the customer to store,
send, or receive recorded messages. "Voice mail service" does not include any
vertical services that the customer may be required to have in order to use the
voice mail service.
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 Facilities 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 Facilities, and to provide
Telecommunications Service.
Section 3. Construction Permits Required.
A. Prior to site -specific location and installation of any portion of its Facilities 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 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;
5. The public interest in minimizing the cost and disruption of construction
within the Public Ways. If all costs at issue are entirely born by Franchisee,
then cost would not be a concern; and
6. If any criteria lead the City Engineer to deny Franchisee a Construction
Permit, then City will consider any alternate routes and/or locations that
may be proposed by Franchisee.
B. Unless otherwise provided in said Permit and except for emergency repairs, 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 Facilities and pay all duly established permit and inspection fees associated
with the processing of the permit. Except as otherwise provided in this Franchise, including in the
case of an emergency for which permitting is covered by Section 12 of this Franchise, no work
shall commence within any Public Way without said Permit.
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 term of this Franchise shall be for a period of five (5)
years from the date of acceptance as set forth in Section 31 (Acceptance), unless sooner
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terminated. This Franchise shall not renew unless and until the City and Franchisee reach
agreement on a renewal 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. If Franchisee requests renewal of this Franchise, then during the period
that the parties are conducting good faith discussions concerning renewal, this Franchise shall not
terminate in the event the term of this Franchise as set forth in this Section 5 expires, PROVIDED
THAT the request for renewal must occur prior to the expiration date to take advantage of this
continuation provision.
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 Facilities and
any such rights shall be granted pursuant to applicable law. 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 as authorized by law or not prohibited by law 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 and applicable law.
Section 7. Relocation of Facilities.
A. Where relocation of Facilities is required by the City, City and Franchisee shall comply
with RCW § 35.99.060(2). If RCW 35.99.060(2) is amended after the date of this franchise, then
the parties' obligations are likewise amended.
B. Upon such notice issued pursuant to RCW§ 35.99.060(2), the Franchisee agrees and
covenants, to protect, support, temporarily disconnect, relocate, or remove from any Public Way
any portion of its 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 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
its Facilities unless the Franchisee's as -built plans and maps of its Facilities submitted pursuant to
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Section 9 (Maps and Records) 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:
1. Within a reasonable time, which shall be no less than 30 days, prior to the
commencement of such improvement project, provide the Franchisee with written
notice requiring such relocation. Provided, however, that in the event 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,
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 are 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 reasonable 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 the Franchisee had paid for the installation or
relocation cost of the same Facilities within the past five years. Notwithstanding any other
provision of this Ordinance, in the event of a conflict between this Ordinance and the provisions
of applicable state law, the provisions of the applicable state law shall control.
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 in 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.
Section 8. UndeLgrounding 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. Provided that the City
won't require Franchisee to provide a format not already used by Franchisee.
Section 10. Work M 11011c Mws.
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 performed 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 in 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 070 (Relocation of
Communications System) of RCW Chapter 35.99.
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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 coordination of construction
activities and joint trenching projects. By February lst of each calendar year, the Franchisee shall
provide the City with a schedule of its proposed construction activities for that calendar year in,
around, or that may affect 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 RCW Chapter 35.99, 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 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 party 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 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 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 as promptly as reasonably possible 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 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 reasonably 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 after receipt of an itemized bill.
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
Facilities, after receipt of an itemized bill.
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The time of City employees shall be charged at their respective rate of salary, including
overtime if applicable. plus benefits and 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 a fee
schedule duly established by the City.
Section 15. Consideration.
A. State Prohibition of Franchise Fee. Pursuant to RCW 35.21.860, the City is precluded from
imposing a fee on a "telephone business" as defined in RCW 82.16.010 and RCW 82.04.065.
or a service provider for use of the right-of-way, except for certain authorized costs and
expenses or any applicable tax authorized by the RCW including RCW 35.21.865 and RCW
35.21.870.
This Franchise is premised upon the City and Franchisee's understanding that the activities
proposed by the Franchisee constitute a "telephone business" or Franchisee is acting as a
service provider in its use of the City Public Way. If state law is changed or clarified to indicate
that Franchisee is not a "telephone business" or service provider, as referenced above, then
the City may provide notice to Franchisee that a new Franchise must be agreed to within a
year of the notice to continue operating under the Franchise.
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.
B. Franchisee Obligated to Pay Administrative Costs. The rights granted under this Franchise
are not conditioned upon payment of compensation in addition to reimbursement for costs
and expenses as set forth in Section 14 (Recovery of Costs) herein and payment of the cost
recovery fees as set forth by the City.
C. Franchisee Obligated to Pay Taxes: Nothing in this Ordinance is intended to alter, amend,
or modify the taxes and fees that may lawfully be assessed on Franchisee's business
activities under this Ordinance pursuant to applicable law. This Franchise does not limit
the City's power of taxation.
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(1) Franchisee Subject to the City Telephone Business Tax. Franchisee agrees that all of
its activities in the City of Edmonds authorized by this Franchise are specifically
taxable as a telephone business under Edmonds Municipal Code Chapter 3,
including EMC 3.20.050 and are taxable at the rate specified therein now in effect
or as amended, which at the time of the execution of this Franchise Agreement is 6
percent on amounts specified therein. The City recognizes that its ability to impose
taxes on Franchisee is subject to continued lawfulness and that its imposition of the
same is subject to standards of equal application. It is agreed that the amount to be
taxed will include the amount of tax imposed on Franchisee by City ordinance.
(2) Franchisee Subject to All Taxes Authorized by the RCW. Franchisee is subject to
payment of any applicable local utility tax and any other tax of whatever kind
applicable to Franchisee's operations. Franchisee agrees that all of its activities in the
City of Edmonds authorized by this Franchise constitute Telecommunications
Services under RCW 82.04.065 and are subject to local sales tax per RCW 82.14.030
and WAC 458-20-245 as well as any other applicable taxes under the RCW, now or
as amended during the term of this Franchise.
Section 15A. Manner of Payment; Audit.
Franchisee shall make all required payments under this Franchise, including taxes, in
the form, intervals, and manner requested by the City Treasurer, and furnish him/her any
information related to his/her revenue collection functions reasonably requested. In case of audit,
the City Treasurer may require Franchisee to furnish a verified statement of compliance with
Franchisee's obligations or in response to any questions. Said certificate may be required from an
independent, certified public accountant, at Franchisee's expense. Franchisee agrees, upon request
of the City Treasurer, to provide copies of all documents filed with any federal, state, or local
regulatory agency affecting any of Franchisee's Facilities or business operations in the City of
Edmonds.
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, judgments, awards or liability to any person arising from injury, sickness, or
death of any person or damage to property:
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;
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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 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. Franchisee shall control the defense of any
claim under which it is providing indemnification, and the City has the right to 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 attorney's
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
12
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 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, 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 including the City as an additional insured as its respective interests may
appear under this Agreement on the commercial general liability and commercial automobile
liability prior to the commencement of any work or installation of any Facilities pursuant to this
Franchise. Such insurance certificate shall evidence:
A. Commercial general liability insurance, written on an occurrence basis, including
contractual liability coverage, with limits of $5,000,000 per occurrence for bodily injury and
property damage,
B. Commercial Automobile liability covering all owned, non -owned and hired
vehicles with a combined single limit of $3,000,000.00 each accident for bodily injury and
property damage.
C. Worker's compensation within statutory limits and employer's liability insurance
with limits of $1,000,000.00 each accident/disease/policy limit.
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
Facilities. Payment of deductibles and self -insured retentions shall be the sole responsibility of
the Franchisee. The commercial general liability insurance 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. The Franchisee's insurance shall be primary insurance with respect to the
City. Any insurance maintained by the City shall be in excess of the Franchisee's insurance and
shall not contribute with it.
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Upon receipt of notice from its insurer(s) Franchisee shall provide the city with thirty (30)
days prior written notice of cancellation. 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 Facilities. Upon the
expiration, termination, or revocation of the rights granted under this Franchise, the Franchisee
shall remove all of its 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 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 (Restoration after Construction) of this
Franchise. Said bond shall be required to remain in full force until 60 days after completion of the
construction of Grantee's 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 (Acceptance)
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 in accordance with the terms of the Franchise herein.
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:
14
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 a reasonable 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.
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 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)
15
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 Facilities; 8, Undergiounding of Facilities, 10, Work in Public
Ways; 11, Restoration after Construction,• 13, Dangerous Conditions. Authority for City to
Abate; 16, Indemnification and Waiver, 17, Insurance; and 18, Abandonment and Removal of the
Franchisee's 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
Facilities from the Public Ways. All of the provisions, conditions, regulations and requirements
contained in this Franchise shall further be binding upon the heirs, successors, executors,
administrators, legal representatives and assigns of 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. Assignment: 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.
16
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:
CITY:
City of Edmonds
City Engineer
121 Su, Avenue North
Edmonds, WA 98020
Telephone: (425) 771-0220
FRANCHISEE:
Level 3 Communications, LLC
1025 Eldorado Blvd, ROW
Broomfield, CO 80021
Attn: National Infrastructure Services - Director
and a copy of Notice (which alone will not constitute notice)
CenturyLink Law Department
931 141" Street
Denver, CO 80202
Attn: Vice President of Commercial Law
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
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
17
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 judgment 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
RYOR MIKE NELSON
ATTEST/AUTHENTICATED:
SCOTT PASSEY
18
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY:
By:
JEFF "TARADAY
FILED WITH THE CITY CLERK:
PASSED BY THE CITY COUNCIL:
PUBLISHED:
EFFECTIVE DATE:
ORDINANCE NO.:
February 28, 2020
March 3, 2020
March 6, 2020
March 11, 2020
4175
19
SUMMARY ORDINANCE NO. 4175
of the City of Edmonds, Washington
On the 3`d day of March, 2020, the City Council of the City of Edmonds, passed Ordinance
No. 4175. 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 LEVEL 3 COMMUNICATIONS,
LLC, A DELAWARE LIMITED LIABILITY COMPANY, A NON-
EXCLUSIVE FRANCHISE TO INSTALL, OPERATE, AND
MAINTAIN A 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, ESTABLISHING
AN EFFECTIVE DATE.
The full text of this Ordinance will be mailed upon request.
DATED this 3`d day of March, 2020.
.Z!; ;__
Y CLERK, S PASSEY
20
Everett Daily Herald
Affidavit of Publication
State of Washington }
County of Snohomish } ss
Leanna Hartell being first duly sworn, upon
oath deposes and says: that he/she is the legal
representative of the Everett Daily Herald a
daily newspaper. The said newspaper is a legal
newspaper by order of the superior court in the
county in which it is published and is now and
has been for more than six months prior to the
date of the first publication of the Notice
hereinafter referred to, published in the English
language continually as a daily newspaper in
Snohomish County, Washington and is and
always has been printed in whole or part in the
Everett Daily Herald and is of general
circulation in said County, and is a legal
newspaper, in accordance with the Chapter 99
of the Laws of 1921, as amended by Chapter
213, Laws of 1941, and approved as a legal
newspaper by order of the Superior Court of
Snohomish County, State of Washington, by
order dated June 16, 1941, and that the annexed
is a true copy of EDH893282 ORDINANCE 4175
as it was published in the regular and entire
issue of said paper and not as a supplement
form thereof for a period of 1 issue(s), such
publication commencing on 03/06/2020 and
ending on 03/06/2020 and that said newspaper
was regularly distributed to its subscribers
during all of said period.
The amount of the fee for such ublication is
$36.2
Subscribed and sworn bMt�th
day of
Notary Public in and for the State of
Washington.
City d Edmonds - LEGAL ADS 114101416
SCOTT PASSEY
L"do PNIVPi r r
VVW
No"PU Ilc
MYA " Wfthln
%k4AAAA._ _ _
Classified Proof
ORDINANCE SUMMARY
4f We Clty of Edmondr, Washingtun
On Ina Ord day of March, 2028, ate City Council of the City of
Edmond8, pasuao the fokoWlflg Ordnance, Me summery of said
ordinance consisting of "'0 N pmvlded ee fallowORDIHANC£ "14i76
AN ORDINANCE OF THE CITY OF EDMONDS. WASHINGTON,
GRANTING TO LEVEL 3 COMMUNICATIONS, LLC, A
DELAWARE LIMITED LIABILITY COMPANY- A
NON•EXCLUSiVE FRANCHISE TO INSTALL, OPERATE, AND
MAINTAIN A TELECOMMUNICATIONS SYSTEM IN, ON, OVER,
UPON. ALON G, AND ACROSS Tt IC
"LIC RIGHT"F•WAY OF THE CITY OF EDMONDS.
WASHINGTON, PRESCRI"G CERTAIN RIGHTS. DUTIES,
TERMS, AND CONDITIONS WITH RESPECT THERETO,
ESTA13LISHiNGAN EFFECTNE DATE
The full togt of this Ordinance w111174 mailed upon request
DATED this 3rd day of Match, 2020.
CITY CLERK, $GOTT PASSEY
Published: March 6, 2020, EDHE93242
Proofed by Hartell, Leanna, 03/06/2020 10:08:19 am Page: 2