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Ordinance No 06-016 CO06-106 CITY OF SPOKANE VALLEY SPOKANE COiTN1'Y, WASHINGTON ORDINANCE NO. 06-016 AN ORDINANCE OF THE CITY OF SPOKANE VALLEY, SPOKANE COUNTY, WASHINGTOIV, GItANTING A NON-EXCLUS~ FRANCI3ISE TO TIME WARNER TELECOM OF WASBONGTON I.LC, TO CONSTRUCT,IVIAINTAIN AND OPERATE CE1tTAIN FACILITEES WITHIN THE PUBLIC RIGHTS-OF-WAY AND PUBLIC PROPER'TYES OF THE CITY OF SPOKANE VAI.LEY. WHEREAS, RCW 35A.47.040 authorizes the City to grant, permit, and regulate non-exclusive 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; and WIMREAS, the grant of such non-exclusive franchises requires the approving vote of at least a majority of the entire City Council and publication at least once in a newspaper of general circulation in the City; and WHEREAS, the Council fmds that the grant of the franchise contained in this Ordinance, subject to its terms and conditions, is in the best interests of the public. NOW, THEREFORE, the City Council of the City of Spokane Valley, Spokane County, Washington, does ordain as follows: Section 1. Definitions. For the purpose of this Ordinance, the following words and terms ' shall have the meaning set forth below: 1. "City Manager" means the City Manager or designee. 2. "construction" or "construct" shall mean constructing, digging, excavating, laying, testing, operating, extending, upgrading, renewing, removing, replacing, and repairing a facility. 3. "day" means a twenty-four (24) hour period beginning at 12:01 a.m. If a thing or act is to be done in less than seven (7) days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation of time. 4. "distribution system, system and lines" used either in the singular or plural shall mean and include the poles, conductor, pipe, mains, laterals, conduits, feeders, regulators, meters, fixtures, connections, and all attachments, appurtenances equipment and appliances necessary and incidental thereto or in any way appertaining to the distribution of the service or product and which are located within a right-of-way. 5. "facility" used either in the singular or plural shall mean any tangible component of the transmission and distribution system within the right of way or on public property, including supporting structures, located in the operation of Ordinance 06-016 Time Warner Page 1 of 15 activities authorized by this Franchise. The abandonment by Grantee of any facilities as defined herein shall not act to remove the same from this definition. 6. "hazardous substances" shall mean any substance or material defined or ' designated as hazardous or toxic waste, hazardous or toxic material, a hazardous, toxic or radioactive substance, or other similar term, by any federal, state or local environmental sta.tute, regulation, or ordinance or decision of a state or federal court or administrative agency or body, presently in effect or that may be promulgated in the future, and as such statutes, regulations and ordinances may be amended from time to time. 7. "maintenance, maintaining or maintain" shall mean the work involved in the replacement and/or repair of Facilities; including constructing, relaying, repairing, replacing, examining, testing, inspecting, removing, digging and excavating, and restoring operations incidental thereto. 8. "Permittee" shall mean a person or entity who has been granted a permit by the Permitting Authority. 9. "Permitting Authority" shall mean the City Manager or designee authorized to process and grant permits required to perform work in the rights-of- way (ie. Obstruction Permits). 10. "product" shall refer to the item, thing or use provided by the Grantee. 11. "public property" shall mean any real estate or any facility owned by the City. 12. "Public Works Director" shall mean the Spokane Valley Public Works Director or his/her designee. 13. "right-of-way" shall refer to the surface of and the space along, above, and below any street, road, highway, freeway, lane, sidewalk, alley, court, . boulevard, parkway, drive, Grantee easement, and/or road right-of- way now or hereafter held or administered by the City. 14. "streets" or "highways" shall mean the surface of, and the space above and below, any public street, road, alley or highway, within the City used or intended to be used by the general public, to the extent the City has the right to allow the Grantee to use them. Section 2. Grant of Franchise. The City of Spokane Valley, a Washington municipal corporation (hereinafter the "City"), hereby grants unto Time . Warner Telecom of Washington LLC, a Delawaxe limited liability company doing business in Washington (hereinafter "Grantee"), a franchise for a period of ten (10) years, beginning on the effective date of this Ordinance, to install, construct, operate, maintain, replace and use all necessary equipment and facilities to place facilities in, under, on, across, over, through, along or below the public rights-of-way and public places located in the City of Spokane Valley, as approved under City permits issued pursuant to this franchise (hereinafter the "Franchise"). Ordinance 06-016 Time Warner Page 2 of 15 Section 3. Fee. No right-of-way use fee is imposed for the term of this Franchise. Any such right-of-way use or franchise fee that may be imposed by subsequent ordinance would apply to any subsequent franchise, if any, between the parties. Section 4. Citv Use. The following provisions shall apply regaxding City use. 1. Grantee agrees to reserve to the City the right to access two (2) dark fiber strands at every location passed by Grantee's facilities within the boundaxies of the City, for sole and exclusive municipal use or designation, with access to any building or facility designated by the City, subject to the provisions of paragraph 3 below of this Section 4. Said dark fiber shall be reserved for use by the City for govemmental purposes, PROVIDED, that as to the fiber resources granted to the City under the terms of this provision, the City agrees that it will not use such fiber as a public utility provider of telecommunications business service to the public. The City reserves the right to connect its two daxk fiber strands to other fiber network providers, with the goal of achieving maximum connectivity for City purposes. 2. The City shall have the right to access by connection to the two dark fiber strands at any location served by this Franchise within the City limits. The City shall provide at least 30 days written notice of intent to access Grantee's service. 3. The City shall pay all costs associated with constructing any City connection to Grantee's Franchise service. The City shall pay Grantee a recurring monthly charge of $20.00 per fiber pair per mile in use by the City unless otherwise specifically agreed by both the parties in writing. Said monthly recurring charge shall not be imposed until such time as the fiber is put into use by City. A fiber pair refers to two strands of cable. At such time that Grantee runs out of capacity in the fiber bundle in which the City's reserved fiber pair is contained, then the City shall begin paying Grantee's standard recurring monthly rate upon thirty (30) days' written notiee. 4. Consistent with Washington Ch. 83, laws of 2000, section 7, at such time when Grantee is constructing, relocating, or placing ducts or conduits in public rights-of -way, the Public Works Director may require Grantee to provide the City with additional duct or conduit and related structures necessary to access the conduit at mutually convenient locations. Any ducts or conduits provided by Grantee under this Section shall only be used for City municipal purposes. A. The City shall not require that the additional duct or conduit space be_ connected to the access structures and vaults of the Grantee. B. This section shall not affect the provision of an institutional network by a cable television provider under federal law. C. Grantee shall notify the Public Works Director at least 14 days prior to opening a trench at any location to allow the City to exercise its options as provided herein. Section 5. Recoverv of Costs. Grantee shall be subject to all permit fees associated with activities undertaken through the authority granted in this Franchise or under ordinances of the City. Where the City incurs costs and expenses for review or inspection 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, Grantee shall pay such costs and expenses directly to the City. In addition to the above, Grantee shall promptly reimburse the City for any and all costs it reasonably incurs in response to any emergency involving Grantee's facilities. Ordinance 06-0I6 Time Warner Page 3 of 15 , Section 6. Non-Exclusivitv. This Franchise is granted upon the express condition that it shall not in any manner prevent the City from granting other or further franchises in, under, on, across, over, through, along or below any rights-of-way, streets, avenues and any other public lands and properties of every type and description. This and other franchises shall, in no way, prevent or prohibit the City from using any of its rights-of-way, roads, streets or other public properties or affect its jurisdiction over them or any part of them. The City hereby retains full power to make all changes, relocations, repairs, maintenance, esta.blishments, improvements, dedications or vacation of same as the City may deem fit, including the dedication, establishment, maintenance, and improvement of all new rights-of- way, streets, avenues, thoroughfares and other public properties of every type and description. Section 7. Non-Interference with Existiniz Facilities. The City shall have prior and superior right to the use of its roads, streets, and alleys, and public properties for installation and maintenance of its facilities and other governmental purposes, and should in the sole discretion of the City a conflict arise with the Grantee's facilities, the Grantee shall, at its own expense and cost, conform to the City's facilities and other government purposes of the City, unless RCW 35.99.060 provides otherwise. . The owners of all utilities, public or private, installed in or on such public properties prior to the installation of the lines and facilities of the Grantee, shall have preference as to the positioning and location of such utilities so insta.lled with respect to the Grantee. Such preference shall continue in the event of the necessity of relocating or changing the grade of any such public properties. Grantee's system shall be constructed and maintained in such manner as not to interfere with any public use, or with any other pipes, wires, conduits or other facilities that may have been laid in the rights- of-way by or under the City's authority. _ Section 8. Riaht to Roads Not Sunerseded. The City, in the granting of this Franchise, does not waive any rights which it now holds or may hereafter acyuire, and this Franchise shall not be construed so as to deprive the City of any powers, rights, or privileges which it now has, or may hereafter acquire, including the right of eminent doma.in, to regulate the use and control of its roads covered by this Franchise, or to go upon any and all City roads and highways for any purpose including constructing, repairing, or improving the same in any such manner as the City, or its representatives may elect. The City shall reta.in full authoritative power in the same and like manner as though this Franchise had never been granted. Nothing in this Franchise shall be construed to prevent the City from constructing facilities, grading, paving, repairing andlor altering any street, or laying down, repairing or removing facilities or constructing or establishing any other public work or improvement. All such work shall be done, insofar as practicable, so as to not obstruct, injure or prevent the unrestricted use and operation of the facilities of the Grantee under this Franchise. If, however, any of the Grantee's facilities interfere with City projects, Grantee's facilities shall be rernoved or replaced upon reasonable written notice to Grantee. Any and all such removal or replacement shall be at the sole expense of the Grantee, unless RCW 35.99.060 provides otherwise. Should Grantee fail to remove, adjust or relocate its facilities by the date established by the Public Works Director's written notice to Grantee and in accordance with RCW 35.99.060, the City may cause and/or effect such removal, adjustment or relocation, and the expense thereof shall be paid by Grantee. Section 9. Commencement of Construction. Construction of the facilities contemplated by this Franchise may commence within five (5) days of the effective date of this Ordinance, provided that such time limit shall not apply to delays caused by acts of God, strike or other occurrences over which Ordinance 06-016 Time Warner Page 4 of 15 Grantee has no control. Failure to begin construction of facilities within one (1) year of this franchise shall automatically result in termination of this franchise. Section 10. Construction Standards. All facilities shall be installed in conformity with the plans and specifications filed with the City, except in instances in which deviation may be allowed in writing by the Public Works Director pursuant to application by the Grantee. All plans and specifications shall specify the class and type of material and equipment to be used, manner of excavation, construction and installation, backfill, erection of temporary structures, erection of permanent structures, and the traffic control mitigation measures as provided by the Manual on Uniform TrafFic Control Devices, or similar standards as may be applicable from time to time. The plans must meet all Federal, State, County and City Codes and the Utility Accommodation Plan Standards. Notwithstanding any provision herein to the contrary, any excavations and installations by the Grantee in any of the public properties within the corporate limits of the City shall be done in accordance with such reasonable rules, regulations, and resolutions of general application now enacted or to be enacted by City Council, relating to excavations in public properties of the City, and authorized by the Public Works Director. Said rules, regulations, authorizations, and resolutions shall be for the purposes of fulfilling the City's public trustee role in administering the primary use and purpose of public properties, and not for relieving the Grantee of any duty, obligation, or responsibility for the competent design, construction, maintenance, and operation of its facilities. Grantee is responsible for the supervision, condition, and quality of the work done, whether it is by itself or by contractors, assigns or agencies. Section 11. Special Construction Sta.ndards. During any period of work relating to Grantee's facilities, all surface structures and equipmerit, if any, shall be erected and used in such places and positions within or adjacent to public rights-of-way and other public properties so as to interfere as little as possible with the free passage of vehicular and pedestrian traffic and the free use of adjoining property. Grantee 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, conditions of permits, and laws and regulations of the State of Washington, specifically including RCW 39.04.180 for the construction of trench safety systems. If Grantee shall at any time be required, or plan, to excavate trenches in any area covered by this Ordinance, the Grantee shall afford the City an opportunity to permit other franchisees and utilities to share such excavated trenches, nrovided that: (1) such joint use shall not unreasonably delay the work of the Grantee; and (2) such joint use shall not adversely affect Grantee's facilities or safety thereof. Joint users will be required to contribute to the costs of excavation and filling on a pro-rata basis. Section 12. Restoration After Construction. Grantee shall, after abandonment approved under Section 29 herein, or any other installation, construction, relocation, maintenance, or repair of facilities within the area of this Franchise, restore the surface of the right-of-way or public properiy to at least the currently adopted City standards or as required by the Public Works Director through a right-of- way permit, depending upon special circumstances. Grantee agrees to promptly complete all restoration work and to promptly repair any damage caused by such work within the area of this Franchise or other affected area at its sole cost and expense. Section 13. Dama2e and Non-Comvliance. Any and all damage, or injury, done or caused to City right-of-way, City facilities, or any portion thereof in the construction, operation, maintenance or repair of Grantee's facilities shall be immediately repaired and reconstructed in conformance with city ordinance, regulation or policy as adopted or hereby amended. Ordinance 06-016 Time Warner Page 5 of 15 Sectaon 14. Protection of Monuments. Before any work is performed under this Franchise which may affect any existing monuments or maxkers of any natur.e relating to subdivisions, plats, roads, and all other surveys, the Grantee shall reference all such monuments and maxkers. The reference points shall be so located that they will not be disturbed during the Grantee's operations under this Franchise. The rnethod of referencing these monuments or other points to be referenced shall be approved by the Public Works Director All concrete encased recorded monuments which have been disturbed or displaced by such work shall be restored pursuant to Sta.te and Federal standards and specifications. The replacement of all such monuments or markers disturbed during construction shall be made as expeditiously as the conditions permit, and as directed by the Public Works Director. The cost of monuments or other markers lost, destroyed, or disturbed, and the expense of replacement of approved monuments and other marker ties which have been re-established or disturbed shall be borne by the Grantee. Sectiom 15. Draina2e. If the work done under this Franchise interferes in any way with the drainage of a City right-of-way, the Grantee shall wholly and at its own expense make such provisions necessary to eliminate the interference to the drainage to the satisfaction of the Public Works Director. Section 16. Obstruction Permits Required. Whenever Grantee shall occupy or excavate in any public right-of-way or other public property for the purpose of installation, construction, repair, maintenance or relocation of its facilities, it shall apply to the City for a permit to do so, together with detailed plans and specifications showing the position, depth, and location of all such facilities in relation to existing rights-of-way, roads, streets, or other public property, hereinafter collectively referred to as the "Plans." All work within any public rights-of-way or on other public properly shall be pursuant to a valid permit. The facilities shall be installed or constructed in exact conformity with said Plans except in instances in which deviation may be allowed by the City, in writing, in response to written application by Grantee. The Plans shall specify the class and type of material and equipment to be used, manner of excavation, construction, insta.llation, backfill, erection of temporary structures and facilities, erection of permanent structures and facilities, traffic control, traffic turnouts and road obstructions, and all other necessary information including a schedule for the work. During the progress of the work, Grantee shall not unnecessarily obstruct the passage or proper use of the rights-of-way. Grantee shall file as-built plans and maps with the City showing the final location of the facilities. All restoration of rights-of-way, roads, streets, storm drainage and the surface of other public property shall be in conformance with City standards, and conditions of the permit. Section 17. Maintenance. Grantee shall provide and put in use all facilities necessary to control and carry Grantee's products so as to prevent injury to the City's property or property belonging to any person within the City. Grantee, solely at its own expense, shall repair, renew, change, and improve said facilities from time to time as may be necessary to mainta.in the same in good condition. Grantee shall not construct its facilities in a manner that requires any customer to install cables, ducts, conduits, or other facilities, in, under, or over the City's rights- of-way. Section 18. Emerizencv Resnonse. The Grantee shall, within six months of the execution of this Franchise by the Grantee, prepare and file with the City and adhere to an Emergency Management Plan (the "Plan") for responding to any spill, break, or other emergency condition. The Plan shall designate responsible officials and emergency 24-hour on-call personnel and the procedures to be followed when responding to an emergency. When developing such Plan, the Grantee shall work with the Public Works Director and the City's Police Department to determine when and how the same should be contacted during emergencies. After being notified of an emergency, Grantee shall cooperate with the , City and make every effort to immediately respond with action to minimize damage and to protect the health and safety of the public. ~ Ordinance 06-016 Time Warner Page 6 of 15 . In the event the Grantee refuses to promptly take the directed action or fails to fully comply with such direction, or if emergency conditions exist which require immediate action to prevent imminent injury or damages to persons or property, the City may take such actions as it believes are necessary to protect persons or properiy and the Grantee shall be responsible to reimburse the City for its costs and any expenses. . Section 19. Emer2encv Work. In the event of any emergency in which any of Grantee's facilities break, are damaged, or if Grantee's facilities or construction areas are otherwise in such a condition as to immediately endanger any property, life, health, or safety, Grantee shall immediately inform the City of the location and condition and shall immediately take all necessary actions to repair its facilities, and to cure or remedy any dangerous conditions. Such emergency work may be commenced , without first applying for and obtaining a permit as required by this Franchise. However, this provision shall not relieve Grantee from the requirement of obtaining any permits necessary for this purpose, and Grantee shall apply for all such permits not later than the next succeeding day during which the City is open for business. Section 20. One-Call Svstem. Pursuant to RCW 19.122, Grantee is responsible for becoming familiar with, and understa.nding, the provisions of Washington's One-Call statutes. Grantee shall comply with the terms and conditions set forth in the One-Call statutes. Section 21. Insoections and Fees. All work performed by Grantee shall be subject to inspection by and approval of the City. The Grantee shall reimburse the City for all expenses incurred by the City in the examination, inspection, and approval of Grantee's work. Such reimbursement shall be in addition to any other fees or charges levied by the City. Section 22. Safetv. The Grantee, in accordance with applicable federal, state, and local safety rules and regulations, shall, at all times, employ ordinary caxe in the installation, abandonment, relocation, construction, maintenance, and/or repair, utilizing methods and devices commonly accepted in their industry of operation to prevent failures and accidents that are likely to cause damage, injury, or nuisance to persons or property. All of Grantee's facilities in the rights-of-way shall be constructed and maintained in a safe and operational condition. Grantee shall follow all safety codes and other applicable regulations in the installation, operation, and maintenance of the facilities. Section 23. Buildine Movine. Whenever any person shall have obtained permission from the City to use any right-of-way for the purpose of moving any building or other oversized structure, Grantee, upon fourteen (14) days' written notice from the City, shall raise or remove, at the expense of the Permittee desiring to move the building or structure, any of Grantee's facilities that may obstruct the movement thereof; provided, that the path for moving such building or structure is the path of least interference to Grantee's facilities, as determined by the City. Upon good cause shown by Grantee, the City may require more than 14 days' notice to Grantee to move its facilities. Section 24. Acquiring New Facilities. Upon Grantee's acquisition of any new facilities in the rights-of-way, or upon any addition or annexation to the City of any area in which Grantee retains any such facilities in the rights-of-way, the Grantee shall submit to the City a written statement describing all facilities involved, whether authorized by Franchise or any other form of prior right, and specifying the location of all such facilities. Such facilities shall immediately be subject to the terms of this Franchise. Section 25. Dangerous Conditions - Authoritv of Citv to Abate. Whenever excavation, installation, construction, repair, maintenance, or relocation of facilities authorized by this Franchise has caused or contributed to a condition that substantially impairs the lateral support of the adjoining right-of- Ordinance 06-016 Time Warner Page 7 of 15 way, road, street or other public place, or endangers the public, adjoining public or private property or street utilities, the City may direct Grantee, at Grantee's sole expense, to take all necessary actions to protect the public and property. The City may require that such action be completed within a prescribed time. In the event that Grantee 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, adjacent public or private property, or street utilities, or to maintain the lateral support thereof, and all other actions deemed by the City to be necessary to preserve the public safety and welfare; and Grantee shall be liable to the City for all costs and expenses thereof to the extent caused by Grantee. Section 26. Hazardous Substances. Grantee shall comply with all applicable state and federal laws, statutes, regulations and orders concerning hazardous substances relating to Grantee's facilities in the rights-of-way. Grantee shall maintain and inspect its facilities located in the rights-of- way. Upon reasonable written notice to Grantee and in the presence of an authorized representative of Grantee, the City may inspect, at City's sole cost, Grantee's facilities in the rights-of-way to determine if any release of hazardous substances has occurred, or may occur, from or related to Grantee's facilities. This inspection is not to remove the burden of inspection from the Grantee on a periodic basis of its facilities for hazardous substances, nor is to remove the responsibility of the hazardous substance from the Grantee. In removing or modifying Grantee's facilities as provided in this Franchise, Grantee shall also remove all residue of hazaxdous substances caused by Grantee's ownership or operation of its facilities within the City's right-of-way in compliance with applicable environmental clean-up standaxds related thereto. Grantee agrees to indemnify the City against any claims, costs, and expenses, of any kind, whether direct or indirect, incurred by the City arising out of the release or threat of release of hazardous substances caused by Grantee's ownership or operation of its facilities within the City's right-of-way, but not beyond any applicable statute of limitations period. Section 27. Environmental. Grantee shall comply with all environmental protection laws, rules, recommendations, and regulations of the United States and the Sta.te of Washington, and their , . various subdivisions and agencies as they presently exist or may hereafter be enacted, promulgated, or amended, and shall indemnify and hold the City harmless from any and all damages arising, or which may arise, or be caused by, or result from the failure of Grantee fully to, comply with any such laws, rules, recommendations, or regulations, whether or : not Grantee's acts or activities were intentional or unintentional. Grantee shall further indemnify the City against all losses, costs, and expenses (including legal expenses) which the City may incur as a result of the requirement of any government or governmental subdivision or agency to clean and/or remove any pollution caused or permitted by Grantee, whether said requirement is during the term of the Franchise or subsequent to its termination. Section 28. Relocation of Facilities. Grantee agrees and covenants, at its sole cost and expense, to protect, support, temporarily disconnect, relocate or remove from any street any of its facilities when so required by the City in accordance with the provisions of RCW 35.99.060, provided that Grantee shall in all such cases have the privilege to temporarily bypass, in the authorized portion of the same street upon approval by the City, any section of their facilities required to be temporarily disconnected or removed. If the City determines that the project necessitates the relocation of Grantee's then- existing facilities, the City shall: a) At least sixty (60) days prior to the commencement of such improvement project, provide Grantee with written notice requiring such relocation; and Ordinance 06-016 Time Warner Page 8 of 15 b) Provide Grantee with copies of pertinent portions of the plans and specifications for such improvement project and a proposed location for Grantee's facilities so that Grantee may relocate its facilities in other City rights-of-way in order to accommodate such improvement project. c) After receipt of such notice and such plans and specification, Grantee shall complete relocation of its facilities at no charge or expense to the City so as to accommodate the improvement project at least ten (10) days prior to commencement of the project. Grantee 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 Grantee 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, Grantee shall submit additional information to assist. the City in making such evaluation. The City shall give each alternative proposed by Grantee full and fair consideration. In the event the City ultimately determines that there is no other reasonable alternative, Grantee shall relocate its facilities as otherwise provided in this Section. The provisions of this Section shall in no manner preclude or restrict Grantee 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 axe not or will not become City owned, operated or maintained facilities, provided that such arrangements do not unduly delay a City construction project. Section 29. Abandonment of Grantee's Facilities. No facility constructed or owned by Grantee may be abandoned without the express written consent of the City. Any plan for abandonment or removal of Grantee's facilities must be first approved by the City, and all necessary permits must be obta.ined prior to such work. Section 30. Records. As a condition of this Franchise, and at its sole expense, Grantee agrees to provide the City with available as-built plans, field locates, maps, plats, specifications, profiles, and records of its facilities within City rights-of-way upon request. Such documents shall be provided upon request by Grantor within five business days of Grantor's request. These records shall be in a digital electronic format acceptable to the City, unless the Public Works Director deems it to be a hardship to the Grantee, in which case a hard copy in a format acceptable to the Public Works Director shall be provided. To the extent such requests are limited to specific facilities at a given location within the Franchise area in connection with the construction of any City project, Grantee shall provide to the City, upon the City's reasonable request, copies of available drawings in use by Grantee showing the location of such facilities. Grantee shall field locate its facilities in order to facilitate design and planning of City improvement projects. Upon written request of the City, Grantee shall provide the City with the most recent update available of any plan of potential improvements to its facilities within the Franchise axea; provided, however, any such plan so submitted shall be deemed confidential and for informational purposes only, and shall not obligate Grantee to undertake any specific improvements within the Franchise area. The parties agree to periodically share Geographic Information System (GIS) files upon written request, provided Grantee's GIS files are to be used solely by Grantor for governmental purposes.. Any Ordinance 06-016 Time Warner Page 9 of 15 , files provided to Grantee shall be restricted to information required for Grantee's engineering needs for ` installation, repair or replacement of facilities that are the subject of this franchise. Grantee is prohibited from selling any GIS information obtained from City to any third parties. Public Disclosure Act: Grantee acknowledges that information submitted to the City may be subject to inspection and copying under the Washington Public Disclosure Act codified in chapter 42.17 RCW. Grantee shall mark as "CONFIDENTIAL" each page or portion thereof of any documentation/information which it submits to the City and which it believes is exempt from public inspection or copying. The City agrees to provide the Grantee with a copy of any public disclosure request to inspect or copy documentation/information which the Grantee has provided to the City and marked as "CONFIDENTIAL" prior to allowing any inspection and/or copying as well as provide the Grantee with a time frame, consistent with RCW 42.17.320, to provide the City with its written basis for non-disclosure of the requested documentation/information. In the event the City disagrees with the Grantee's basis for non-disclosure, the City agrees to withhold release of the requested documentation/information in dispute for twenty (20 days until the Grantee can file a legal action under RCW 42.17.330. Section 31. Limitation on Future Work. In the event that the City constructs a new street or reconstructs an existing street, the Grantee shall not be permitted to excavate such street except as set forth in the City's then-adopted regulations relating to street cuts and excavations. Section 32. Reservation of RiLyhts bv Citv. The City reserves the right to refuse any request for a permit to extend franchise facilities. Any such refusal shall be supported by a written statement from the Public Works Director that extending the franchise facilities, as proposed, would interfere with the public health, safety or welfaxe. Section 33. Remedies to Enforce Compliance. In addition to any other remedy provided herein, the City reserves the right to pursue any remedy to compel or force Grantee and/or its successors and assigns to comply with the terms hereof, and the pursuit of any right or remedy by the City shall not prevent the City from thereafter declaring a forfeiture or revocation for breach of the conditions herein. Section 34. Citv Ordinances and Reeulations. 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 reasonable ordinances 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 location, elevation, and manner of construction and maintenance of any facilities by Grantee, and Grantee shall promptly conform with all such regulations, unless compliance would cause Grantee to violate other requirements of law. Section 35. Vacation: The City may vacate any City road, right-of-way or other City properiy which is subject to rights granted by this Franchise because said road, right-of-way or other City properiy is no longer necessary for public use. Any relocation of facilities resulting from a street vacation shall require a minimum of 180 days notice as provided for in Section 47. Section 36. Indemnification. Grantee 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, including claims by Grantee's own employees to which Grantee might otherwise be immune under Title 51 RCW, arising from injury or death of any person or damage to property of which the negligent acts or omissions of Grantee, its agents, servants, officers or employees in performing services under this Franchise are the proximate cause. Grantee further releases, covenants not to bring suit and agrees to indemnify, defend and hold harmless Ordinance 06-016 Time Warner Page 10 of 15 the City, its officers and employees from any and all claims, costs, judgments, awards or liability to any person, including claims by Grantee's own employees to which Grantee might otherwise have immunity under Title 51 RCW, arising against the City solely by virtue of the City's ownership or control of the rights-of-way or other public properties, by virtue of Grantee's exercise of the rights granted herein, or by virtue of the City's permitting Grantee's use of the City's rights-of-way or other public property based upon the inspection or lack of inspection of work performed by Grantee, its agents and servants, officers or employees in connection with work authorized on the City's property.or property over which the City has control, pursuant to this Franchise or pursuant to any other permit or approval issued in connection with this Franchise. This covenant of indemnification shall include, but not be limited by this reference, to claims against the City arising as a result of the negligent acts or omissions of Grantee, its agents, servants, officers or employees in barricading, instituting trench safety systems or providing adequate warnings of any excavation, construction, or work in any public right-of-way or other public place in performance of work or services perniitted under this Franchise. Inspection or acceptance by the City of any work performed by Grantee at the time of completion of construction shall not be grounds for avoidance of any of these covenants of indemnification, except to the extent of the negligence or willful misconduct of City, its officers, employees or agents. Said indemnification obligations shall extend to claims which are not reduced to a suit and any claims which may be compromised prior to the culmination of any litigation or the institution of any litigation. In the event that Grantee refuses to accept the tender of defense in any suit or ariy claim, said tender having been made in writing pursuant to the indemnification clauses contained herein, and said refusal is subsequently determined by a court having jurisdiction (or such other tribunal that the parties shall agree to decide the matter), to have been a wrongful refusal on the part of Grantee, then Grantee shall pay all of the City's costs for defense of the action, including all reasonable expert witness fees and reasonable attorneys' fees and the reasonable costs of the City, including reasonable attorneys' fees of ~ recovering under this indemnification clause. Should a court of competent jurisdiction (or such other tribunal that the parties shall agree to decide the matter) determine that this Franchise, or work conducted under authority of this Franchise, is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of Grantee and the City, its officers, employees and agents, Grantee's liability hereunder shall be only to the extent of Grantee's negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes Grantee's waiver of immunity under Title 51 RCW, solely for the purpose of this indemnification. This waiver has been mutually negotiated by the parties. The provisions of this Section 36 shall survive the expiration or termination of this Franchise agreernent, for a period of three (3) years, unless the applicable statute of limitations period is less, in which case the provisions shall survive no longer than the applicable statute of limitations period. Section 37. Insurance. Grantee shall procure and maintain for the duration of the Franchise, 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 Grantee, its agents, representatives or employees. Applicant's maintenance of insurance as required by this franchise shall not be construed to limit the liability of the Grantee to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy available at law or in equity. Ordinance 06-016 Time Warner Page 11 of 15 1. Automobile Liability insurance with limits no less than $1,000,000 Combined Single Limit per accident for bodily injury and property damage. This insurance shall cover all owned, non-owned, hired or leased vehicles used in relation to this franchise. Coverage shall be written on Insurance Services Office (ISO) form CA 00 Ol or a substitute form providing equivalent liability coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage; and 2. Commercial General Liability insurance shall be written on Insurance Services Office (ISO) occurrence form CG 00 Ol or a substitute form and shall cover products liability. The City shall be a named as an insured under the Applicant's Commercial General Liability insurance policy using ISO Additional Insured-State or Political Subdivisions- Permits CG 20 12 or a substitute endorsement providing equivalent coverage. Coverage shall be written on an occurrence basis with limits no less than $1,000,000 Combined Single Limit per occurrence and $2,000,000 general aggregate for personal injury, bodily injury and property damage. Coverage shall include but not be limited to: blanket contractual; products/completed operations; broad form property; explosion, collapse and underground (XCU); and Employer's Liability. The insurance policies are to contain, or be endorsed to contain, the following provisions for Commercial General Liability insurance: 1. The Grantee's insurance coverage shall be primary insurance with respect to the City as outlined in the Indemnification section of this Agreement. Any insurance, self-insurance, or insurance pool coverage maintained by the City shall be in excess of the franchisee's insurance and shall not contribute with it. 2. The Grantee's insurance shall be endorsed to state that coverage shall not be cancelled, except after thirty (30) days prior written notice has been given to the City. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII. Grantee shall furnish the City with original certificates and a copy of any amendatory endorsements, including the additional insured endorsement, evidencing the insurance requirements of the Grantee prior to the adoption of this Ordinance. Any failure to comply with the reporting provisions of the policies required herein shall not affect coverage provided to the City, its officers, officials, employees or volunteers. Section 38. Bond. Before underta.king any of the work, installation, improvements, construction, repair, relocation or maintenance authorized by this Franchise, Grantee, or any parties Grantee contracts with to perform labor in the performance of this franchise, shall, upon the request of the City, furnish a bond executed by Grantee or Grantee's contractors and a corporate surety authorized to operate a surety business in the State of Washington, in such sum as may be set and approved by the City, not to exceed twenty-five thousand dollars, as sufficient to ensure performance of Grantee's obligations under this Franchise. The bond shall be conditioned so that Grantee shall observe all the covenants, terms and conditions and shall faithfully perform all of the obligations of this Franchise, and to repair or replace any defective work or materials discovered in the City's road, streets, or property. Said bond shall remain in effect for the life of this Franchise. In the event Grantee proposes to construct a project for which the above-mentioned bond would not ensure performance of Grantee's obligations under this Franchise, the City is entitled to require such larger bond as may be appropriate under the circumstances. Ordinance 06-016 Time Warner Page 12 of 15 Section 39. Modification. The City and Grantee hereby reserve the right to alter, amend or modify the terms and conditions of this Franchise upon written agreement of both parties to such alteration, amendment or modification. Section 40. Comnliance With New Re2ulations. Grantee shall promptly comply with all lawful City orders, resolutions, ordinance and provisions of the City's code related to Grantee's operation of the facilities; provided that (a) the same either (i) are not inconsistent with this Franchise or (ii) are a lawful exercise of the City's police power, are limited to reasonably regulating time, place and manner of Grantee's entry onto or activity within City's rights-of-way and (b) Grantee shall not be subject to any fees, compensation or other payments except those provided for under this Franchise, if any, subject to Section 5. The City and Grantee each reserve the right to request that this Franchise be changed, amended, modified, or amplified to conform to any applicable Federal or Sta.te statute or judicial or administrative decision, State and National Codes, Standards, and Regulations as may hereafter be enacted, adopted or promulgated. Further, Grantee reserves the right to contest any provision of this Franchise under any applicable Federal or State statute or judicial or administrative decision, State and Nationa.l Codes, Standards, and Regulations as are in effect upon the effective date of this Franchise or as may hereafter be enacted, adopted or promulgated. If the Grantee fails to comply with its terms and conditions, or if the Grantee fails to comply with such changes, amendments, modifications, and/or amplifications, this Franchise may be terminated at any time upon ninety (90) days' written notice to the Grantee to terminate this Franchise. Section 41. Forfeiture and Revocation. If Grantee willfully violates or fails to comply with any of the provisions of this Franchise, or through willful or unreasonable negligence fails to heed or comply with any notice given Grantee by the City under the provisions of this Franchise, and an adequate opportunity to cure the violation or non-compliance has been given in writing to Grantee, then Grantee shall, at the election of the City, forfeit all rights conferred hereunder and this Franchise may be revoked or annulled by the City after a hearing held upon reasonable notice to Grantee. The City may elect, in lieu of the above and without any prejudice to any of its other legal rights and remedies, to obtain an order from the Spokane County Superior Court compelling Grantee to comply with the provisions of this Franchise and to recover damages and costs incurred by the City by reason of Grantee's failure to comply. Section 42. Assimnment. This Franchise may not be assigned or transferred without the written approval of the City, except that Grantee can assign this Franchise without approval of but upon notice to the City to any paxent, affiliate or subsidiary of Grantee or to any entity that acquires all or substantially all the assets or equity of Grantee, by merger, sale, consolidation or otherwise. Section 43. Acceptance. Not later than thirty days after passage and publication of this Ordinance, the Grantee must accept the Franchise herein by filing with the City Clerk an unconditional written acceptance thereof. Failure of Grantee to so accept this Franchise within said period of time shall be deemed a rejection thereof by Grantee, and the rights and privileges herein granted shall, after the expiration of the thirty days period, absolutely cease, unless the time period is extended by ordinance duly passed for that purpose. Section 44. Survival. All of the provisions, conditions and requirements of Sections: 4, 5, 13, 25, 26, 27, 36 and 48 of this Franchise shall be in addition to any and all other obligations and liabilities Grantee may have to the City at common law, by statute, by ordinance, or by confract, and shall survive termination of this Franchise, and any. renewals or extensions hereof. 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 Grantee and City and all privileges, as well as all obligations and liabilities of Grantee shall inure to their respective heirs, Ordinance 06-016 Time Warner Page 13 of 15 successors and assigns equally as if they were specifically mentioned herein. Section 45. Severabilitv. If any section, sentence, clause or phrase of this Ordinance 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 Ordinance. In the event that any of the provisions of the Franchise are held to be invalid by a court of competent jurisdiction, the City reserves the right to reconsider the grant of the Franchise and may amend, repeal, add, replace or modify any other provision of the Franchise, or may terminate the Franchise. Sectioa 46. Renewal. Application for extension or renewal of the term of this Franchise shall be made no later than one year before expiration thereof. In the event the time period granted by this'Franchise expires without being renewed by the City, the terms and conditions hereof shall continue in effect until this Franchise is either renewed or terminated by the City. Section 47. Notice. Any notice or information required or permitted to be given by or to the parties under this Franchise may be sent to the following addresses unless otherwise specified, in writing:' The City: City of Spokane Valley Attn: City Clerk 11707 E. Sprague, Suite 106 Spokane Valley, WA 99206 Grantee: Time Warner Telecom of Washington LLC Attn: V.P. & Deputy General Counsel 10475 Park Meadows Drive Littleton, CO 80124 - Phone: (303) 566-1279 Fax: (303) 566-1010 Section 48. Choice of Law. Any litigation between the City and Grantee arising under or regarding this Franchise shall occur, if in the state courts, in the Spokane County Superior Court, and if in the federal courts, in the United States District Court for the Eastern District of Washington. Section 49. Non-Waiver. The City shall be vested with the power and authority to reasonably regulate the exercise of the privileges permitted by this Franchise in the public interest. Grantee shall not be relieved of its obligations to comply with any of the provisions of this Franchise by reason of any failure of the City to enforce prompt compliance, nor does the City waive or limit any of its rights under this Franchise by reason of such failure or neglect. Section 50. Entire A2reement. 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 execution and acceptance hereof. This Franchise shall also supersede and cancel any previous right or claim of Grantee to occupy the County roads as herein described. Section 51. Effective Date. This Ordinance shall be in full force and effect five days after publication of the ordinance or a summary thereof occurs in the official newspaper of the City of Spokane Valley as provided by law. Ordinance 06-016 Time Warner Page 14 of 15 Section 52. Most Favored Nation Status. If at any time subsequent to the execution of this Franchise, any other provider of telecommunications services shall enter into an agreement with the City governing the use of public rights-of-way whose material terms and conditions are more favorable to that provider than are the tertns of this Franchise to Grantee, then this Franchise shall be modified such that the material terms and conditions as applicable to Grantee, are just as favorable as the material terms and condition of such other agreement are to such other telecommunications provider. PASSED by the City Council this 13`h day of June, 2006. ! , W Mayor, Diana Wilhite ATTEST: , hristine Bainbridge, City Clerk Approved as to Form: ~ ~ ~ . C-m-BrslcellCity A6rney yie'dia e/ll- : vle1/ Date of Publication: og 3- ~ ~ Effective Date:-d-J(-* 0 Accepted by Time Warner Telecom of Washington LLC, By: Time Warner Telecom Holdings Inc., Its solSmembe By: The Grantee, Time Warner Telecom of Washington LLC., a limited liability company, for itself, and for its successors and assigns, does accept all of the terms and conditions of the foregoing franchise. • IN WITNESS WHEREOF, Alpy has si~ed this aq `"daY of_ ~ ' 2006. Subscribed and sworn before me this,,Vday of ,i /F , 2006. EL.AINE '''[=-A-~SE fVOTARY F'l..ORLIC Notary Public in and for the State of W on, 1~06 STAI"E OF C-:RADO residing in My commission expires ~ ~ o~f.S~a~%~~ MM~N ~PIRES 4~2008 Ordinance 06-016 Time Warner Page 15 of 15 ~