HomeMy WebLinkAbout26-049.00 Forged Fiber 37, LLC - Franchise Ordinance 26-001CITY OF SPOKANE VALLEY
SPOKANE COUNTY, WASHINGTON
ORDINANCE NO.26-001
AN ORDINANCE OF THE CITY OF SPOKANE VALLEY, SPOKANE COUNTY,
WASHINGTON, GRANTING A NON-EXCLUSIVE FRANCHISE TO FORGED FIBER
37, LLC TO CONSTRUCT, MAINTAIN AND OPERATE TELECOMMUNICATIONS
FACILITIES WITHIN THE PUBLIC RIGHTS -OF -WAY OF THE CITY OF SPOKANE
VALLEY, AND OTHER MATTERS RELATING THERETO.
WHEREAS, RCW 35A.47.040 authorizes the City to grant, permit, and regulate
"nonexclusive franchises for the use of public streets, bridges or other public ways, structures or
places above or below the surface of the ground for railroads and other routes and facilities for
public conveyances, for poles, conduits, tunnels, towers and structures, pipes and wires and
appurtenances thereof for transmission and distribution of electrical energy, signals and other
methods of communication, for gas, steam and liquid fuels, for water, sewer and other private and
publicly owned and operated facilities for public service"; and
WHEREAS, RCW 35A.47.040 further requires that "no ordinance or resolution granting
any franchise in a code city for any purpose shall be adopted or passed by the city's legislative
body on the day of its introduction nor for five days thereafter, nor at any other than a regular
meeting nor without first being submitted to the city attorney, nor without having been granted by
the approving vote of at least a majority of the entire legislative body, nor without being published
at least once in a newspaper of general circulation in the city before becoming effective"; and
WHEREAS, this Ordinance has been submitted to the city attorney prior to its passage;
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, and protects the health,
safety, and welfare of the citizens of this City.
NOW, THEREFORE, the City Council of the City of Spokane Valley, Spokane County,
Washington, do ordain as follows:
Section 1. Definitions. For the purpose of this Ordinance, the following words and terms shall
have the meaning set forth below:
"City Manager" means the City Manager or designee.
"Community and Public Works Director" shall mean the Spokane Valley
Community and Public Works Director or his/her designee.
"construction" or "construct" shall mean constructing, digging, excavating, laying,
testing, operating, extending, upgrading, renewing, removing, replacing, and
repairing a facility.
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"day" shall mean a 24-hour period beginning at 12:01 AM. If a thing or act is to be
done in less than seven days, intermediate Saturdays, Sundays and legal holidays
shall be excluded in the computation of time.
"franchise" (sometimes referred to as Ordinance) shall mean the legal document
issued by the City which grants rights to Grantee to construct and operate its
telecommunication facilities as set forth herein.
"franchise area" shall mean the entire geographic area within the City as it is now
constituted or may in the future be constituted.
"hazardous substance" shall have the same meaning as RCW 70A.305.020(13).
"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.
"permittee" shall mean a person or entity who has been granted a permit by the
Permitting Authority.
"permitting authority" shall mean the City Manager or designee authorized to
process and grant permits required to perform work in the rights -of -way.
"product" shall refer to the item, thing or use provided by the Grantee.
"public property" shall mean any real estate or any facility owned by the City.
"relocation" shall mean any required move or relocation of an existing installation or
equipment owned by Grantee whereby such move or relocation is necessitated by
installation, improvement, renovation or repair of another entity's facilities in the rights -
of -way, including Grantor's facilities.
"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 public way now or hereafter held or
administered by the City.
"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.
"telecommunications facilities" shall mean any of the plant, equipment, fixtures,
appurtenances, antennas, and other facilities necessary to furnish and deliver
telecommunications services, including but not limited to poles with crossarms,
poles without crossarms, wires, lines, conduits, cables, communication and signal
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lines and equipment, braces, guys, anchors, vaults, and all attachments,
appurtenances, and appliances necessary or incidental to the distribution and use of
telecommunications services. The abandonment by Grantee of any
telecommunications facilities as defined herein shall not act to remove the same
from this definition.
"telecommunications services" means any telecommunication service pursuant to
RCW 35.99.010(7), excluding cable television service pursuant to RCW
35.99.010(1) and further excluding personal wireless services pursuant to RCW
35.99.010(4). For clarity and the avoidance of doubt, telecommunications services
include broadband internet access service.
Section 2. Grant of Franchise. The City of Spokane Valley, a Washington municipal
corporation (hereinafter the "City"), hereby grants unto Forged Fiber 37, LLC, a Delaware limited
liability company (hereinafter "Grantee"), a franchise for a period of 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 telecommunications facilities in, under, on, across,
over, through, along or below the public rights -of -way located in the City of Spokane Valley, as
approved under City permits issued pursuant to this franchise (hereinafter the "franchise"). This
franchise does not permit Grantee to use such facilities to provide cable services as defined by 47
C.F.R. § 76.5(ff).
Section 3. Fee. No franchise fee is assessed for telecommunications services providers in
accord with the prohibition in state law (RCW 35.21.860). If the prohibition of
telecommunications service provider franchise fees is removed or modified to allow a franchise
fee, the parties agree to negotiate this provision as a material term on which agreement is required
for continuation of this franchise, PROVIDED, the City must give one hundred eighty (180) days'
notice to invoke this provision and any franchise fee imposed hereunder shall be prospective in
nature. Nothing herein shall limit the City's power to tax or recover any lawful expenses in
connection with this Franchise.
Section 4. City Use. Consistent with RCW 35.99.070, at such time when Grantee is
constructing, relocating, or placing ducts or conduits in public rights -of -way, the Community and
Public Works Director may require Grantee to provide the City with additional duct or conduit and
related structures, at incremental cost, 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, non-commercial purposes.
1. The City shall not require that the additional duct or conduit space be connected to the
access structures and vaults of the Grantee.
2. This section shall not affect the provision of an institutional network by a cable television
provider under federal law.
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3. Grantee shall notify the Community and 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. Recovery of Costs. Grantee shall reimburse the City for all costs of one publication
of this franchise in a local newspaper, and required legal notices prior to any public hearing regarding
this franchise, contemporaneous with its acceptance of this franchise. Grantee shall be subject to all
permit and inspection fees associated with activities undertaken through the authority granted in
this franchise or under City Code.
Section 6. Non -Exclusivity. This franchise is granted upon the express condition that it shall
not in any manner prevent the City from granting other or further franchises or permits in any
rights -of -way. This and other franchises shall, in no way, prevent or prohibit the City from using
any of its rights -of -way or affect its jurisdiction over them or any part of them.
Section 7. Non -Interference with Existing Facilities. The City shall have prior and superior
right to the use of its rights -of -way and public properties for installation and maintenance of its
facilities and other governmental purposes. The City hereby retains full power to make all
changes, relocations, repairs, maintenance, establishments, 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. 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 telecommunications facilities by the date established by the Community and 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.
The owners of all utilities, public or private, installed in or on such public properties prior to the
installation of the telecommunications facilities of the Grantee, shall have preference as to the
positioning and location of such utilities so installed 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 telecommunications facilities 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. If the work done under this
franchise damages or interferes in any way with the public use or other facilities, the Grantee shall
wholly and at its own expense make such provisions necessary to eliminate the interference or
damage to the satisfaction of the Community and Public Works Director.
Section 8. Construction Standards. All work authorized and required hereunder shall comply
with all generally applicable City Codes and regulations. Grantee shall also comply with all
applicable federal and state regulations, laws and practices. Grantee is responsible for the
supervision, condition, and quality of the work done, whether it is by itself or by contractors,
assigns or agencies. Application of said federal, state, and City Codes and regulations shall be for
the purposes of fulfilling the City's public trustee role in administering the primary use and purpose
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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 telecommunications
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.
If Grantee shall at any time be required, or plan, to excavate trenches in any area covered by this
franchise, the Grantee shall afford the City an opportunity to permit other franchisees and utilities
to share such excavated trenches, provided 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
telecommunications facilities or safety thereof. Joint users will be required to contribute to the
costs of excavation and filling on a pro-rata basis.
Section 9. Protection of Monuments. Grantee shall comply with applicable state laws relating
to protection of monuments.
Section 10. Tree Trimming. The Grantee shall have the authority to conduct pruning and
trimming for access to Grantee's telecommunications facilities in the rights -of -way subject to
compliance with the City Code including obtaining all necessary permits. All such trimming shall be
done at the Grantee's sole cost and expense.
Section 11. Emergency Response. The Grantee shall, within 30 days of the execution of this
franchise, designate one or more responsible people and an emergency 24-hour on -call personnel
and the procedures to be followed when responding to an emergency. After being notified of an
emergency, Grantee shall cooperate with the City to immediately respond with action to aid in the
protection of the health and safety of the public.
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 property and the Grantee shall be responsible to reimburse the
City for its costs and any expenses.
Section 12. One -Call System. Pursuant to chapter 19.122 RCW, Grantee is responsible for
becoming familiar with, and understanding, the provisions of Washington's One -Call statutes.
Grantee shall comply with the terms and conditions set forth in the One -Call statutes.
Section 13. Safe . All of Grantee's telecommunications 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
telecommunications facilities.
Section 14. Movement of Grantee's Telecommunications Facilities for Others. Whenever any
third party 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 at least 14 days' written notice
from the City, shall move, at the expense of the third party desiring to move the building or
structure, any of Grantee's telecommunications facilities that may obstruct the movement thereof;
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provided, that the path for moving such building or structure is the path of least interference to
Grantee's telecommunications 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
telecommunications facilities.
Section 15. Acquiring New Telecommunications Facilities. Upon Grantee's acquisition of any
new telecommunications facilities in the rights -of -way, or upon any addition or annexation to the
City of any area in which Grantee retains any such telecommunications facilities in the rights -of -
way, the Grantee shall submit to the City a written statement describing all telecommunications
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 16. Dangerous Conditions - Authority of City to Abate. Whenever excavation,
installation, construction, repair, maintenance, or relocation of telecommunications facilities
authorized by this franchise has caused or contributed to a condition that substantially impairs the
lateral support of the adjoining right-of-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 17. Hazardous Substances. Grantee shall comply with all applicable federal, state and
local laws, statutes, regulations and orders concerning hazardous substances relating to Grantee's
telecommunications facilities in the rights —of -way. Except to the extent caused by or arising from
the negligent, willful, or malicious acts or omissions of the City, its officers, agents, employees,
or contractors, when acting within their scope of agency or contract, 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 telecommunications facilities within the City's right-of-
way.
Section 18. Environmental. Grantee shall comply with all environmental protection laws,
rules, recommendations, and regulations of the United States and the State of Washington, and
their various subdivisions and agencies as they presently exist or may hereafter be enacted,
promulgated, or amended and, except to the extent caused by or arising from the negligent, willful,
or malicious acts or omissions of the City, its officers, agents, employees, or contractors, when
acting within their scope of agency or contract, 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
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Grantee fully to comply with any such laws, rules, recommendations, or regulations, whether or
not Grantee's acts or activities were intentional or unintentional. Except to the extent caused by
or arising from the negligent, willful, or malicious acts or omissions of the City, its officers, agents,
employees, or contractors, when acting within their scope of agency or contract, 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 by Grantee, whether said requirement is
during the term of the franchise or subsequent to its termination.
Section 19. Relocation of Telecommunications 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 telecommunications 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 its telecommunications facilities required to be temporarily disconnected or removed.
If the City determines that the project necessitates the relocation of Grantee's then- existing
telecommunications facilities, the City shall:
A. At least 60 days prior to the commencement of such improvement project, provide Grantee with
written notice requiring such relocation; and
B. Provide Grantee with copies of pertinent portions of the plans and specifications for such
improvement project and a proposed location for Grantee's telecommunications facilities so that
Grantee may relocate its telecommunications 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 telecommunications facilities at no charge or expense to the City in order to accommodate
the improvement project in accordance with RCW 35.99.060(2).
Grantee may, after receipt of written notice requesting a relocation of its telecommunications
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 telecommunications
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 telecommunications 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
telecommunications facilities by any person or entity other than the City, where the
telecommunications 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
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a City construction project.
If the City or a contractor for the City is delayed at any time in the progress of the work by an act
or neglect of the Grantee or those acting for or on behalf of Grantee, then Grantee shall indemnify,
defend and hold the City, its officers, officials, employees and volunteers harmless from any and
all claims, costs, injuries, damages, losses or suits including attorneys' fees to the extent arising
out of or in connection with such delays, except for delays and damages caused by or arising from
the negligent, willful, or malicious acts or omissions of the City, its officers, agents, employees,
or contractors, when acting within the scope of their agency or contract. This provision may not
be waived by the parties except in writing.
Section 20. Abandonment of Grantee's Telecommunications Facilities.
A. Underground facilities: Grantee shall remove any facilities which have not been used to provide
telecommunications services for a period of at least 90 days when: (a) a City project involves
digging that will encounter the abandoned facility; (b) the abandoned facility poses a hazard to the
health, safety, or welfare of the public; (c) the abandoned facility is 24 inches or less below the
surface of the rights -of -way and the City is reconstructing or resurfacing a street over the rights -
of -way; or (d) the abandoned facility has collapsed, broke, or otherwise failed.
Grantee may, upon written approval by the City, delay removal of the abandoned facility until
such time as the City commences a construction project in the rights -of -way unless (b) or (d) above
applies. When (b) or (d) applies, Grantee shall remove the abandoned facility from the rights -of -
way as soon as weather conditions allow, unless the City expressly allows otherwise in writing.
B. Aboveground facilities: Grantee shall remove any facilities which have not been used to provide
telecommunications services for a period of at least 90 days.
C. The expense of the removal, and restoration of improvements in the rights -of -way that were
damaged by the facility or by the removal process, shall be the sole responsibility of the Grantee.
If Grantee fails to remove the abandoned facilities in accordance with the above, then the City may
incur costs to remove the abandoned facilities and restore the rights -of -way, and is entitled to
reimbursement from Grantee for such costs, including reasonable attorney's fees and costs.
Section 21. Maps and Records Required. Grantee shall provide the City, at no cost to the City:
A. A route map that depicts the general location of the Grantee's telecommunications facilities placed
in the rights -of -way. The route map shall identify telecommunications facilities as aerial or
underground and is not required to depict cable types, number of fibers or cables, electronic
equipment, and service lines to individual subscribers. The Grantee shall also provide an electronic
format of the aerial/underground telecommunications facilities in relation to the right-of-way
centerline reference to allow the City to add this information to the City's Geographic Information
System ("GIS") program. The information in this subsection shall be delivered to the City by
December 1, annually.
B. In addition to subsection A of this section, the City may request that Grantee provide the
information described in subsection A of this section as needed for specific projects to avoid harm
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to Grantee's facilities. To the extent such requests are limited to specific telecommunications
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 telecommunications facilities.
Grantee shall field locate its telecommunications facilities in order to facilitate design and planning
of City improvement projects.
C. 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 telecommunications facilities within the
franchise area; 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.
D. In addition to the requirements of subsection A of this section, the parties agree to periodically
share GIS files upon written request, provided Grantee's GIS files are to be used solely by the
City for governmental purposes. Any files provided to Grantee shall be restricted to information
required for Grantee's engineering needs for construction or maintenance of telecommunications
facilities that are the subject of this franchise. Grantee is prohibited from selling any GIS
information obtained from City to any third parties.
E. 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
42.56 RCW. Grantee shall mark as "PROPRIETARY/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 timely 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 "PROPRIETARY/CONFIDENTIAL" prior to
allowing any inspection and/or copying as well as provide the Grantee with a time frame,
consistent with RCW 42.56.520, 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 a reasonable amount of time to allow Grantee an opportunity to file a legal action under
RCW 42.56.540.
Section 22. 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 23. Reservation of Rights by City. The City reserves the right to refuse any request for
a permit to extend telecommunications facilities. Any such refusal shall be supported by a written
statement from the Community and Public Works Director that extending the telecommunications
facilities, as proposed, would interfere with the public health, safety, or welfare.
Section 24. 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
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shall not prevent the City from thereafter declaring a forfeiture or revocation for breach of the
conditions herein.
Section 25. 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 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 telecommunications facilities by
Grantee, and Grantee shall promptly conform with all such regulations, unless compliance would
cause Grantee to violate other requirements of law.
In the event of a conflict between Spokane Valley Municipal Code and this franchise, the Spokane
Valley Municipal Code shall control.
Section 26. Vacation. The City may vacate any City road, right-of-way, or other City property
which is subject to rights granted by this franchise in accordance with state and local law. Any
relocation of telecommunications facilities resulting from a street vacation shall require a
minimum of 180 days notice as provided for in section 37.
Section 27. Indemnification.
A. Grantee hereby 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 of any nature whatsoever relating to or arising out of this franchise
agreement. This includes but is not limited to injury:
1. For which the negligent acts or omissions of Grantee, its agents, servants, officers or
employees in performing the activities authorized by a franchise are the proximate cause;
2. By virtue of Grantee's exercise of the rights granted herein;
3. By virtue of the City permitting Grantee's use of the City's rights -of -ways or other public
property;
4. Based upon the City's inspection or lack of inspection of work performed by Grantee,
its agents and servants, officers or employees in connection with work authorized on the
facility or property over which the City has control, pursuant to a franchise or pursuant to
any other permit or approval issued in connection with a franchise;
5. 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 other
adequate warnings of any excavation, construction or work upon the facility, in any right-
of-way, or other public place in performance of work or services permitted under a
franchise; or
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6. Based upon radio frequency emissions or radiation emitted from Grantee's equipment
located upon the facility, regardless of whether Grantee's equipment complies with
applicable federal statutes and/or FCC regulations related thereto.
B. Grantee's indemnification obligations pursuant to subsection A of this section shall include
assuming liability for actions brought by Grantee's own employees and the employees of Grantee's
agents, representatives, contractors and subcontractors even though Grantee might be immune
under RCW Title 51 from direct suit brought by such an employee. It is expressly agreed and
understood that this assumption of potential liability for actions brought by the aforementioned
employees is limited solely to claims against the City arising by virtue of Grantee's exercise of
the rights set forth in a franchise. The obligations of Grantee under this subsection have been
mutually negotiated by the parties, and Grantee acknowledges that the City would not enter into a
franchise without Grantee's waiver. To the extent required to provide this indemnification and
this indemnification only, Grantee waives its immunity under RCW Title 51.
C. 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. Provided, that Grantee 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 prior to the culmination of any litigation or the
institution of any litigation. The City has the right to defend or participate in the defense of any
such claim, and has the right to approve any settlement or other compromise of any such claim.
D. In the event that Grantee 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 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, reasonable attorneys' fees, the
reasonable costs of the City, and reasonable attorneys' fees of recovering under this subsection.
E. Grantee's duty to defend, indemnify and hold harmless City against liability for injuries
or damages caused by or arising from the concurrent negligent, willful, or malicious acts or
omissions of (a) City or City's officers, agents, employees, or contractors, when acting within the
scope of their agency or contract, and (b) Grantee or Grantee's agents, employees, or contractors,
when acting within the scope of their agency or contract, shall apply only to the extent of the
negligent, willful, or malicious acts or omissions of Grantee or Grantee's agents, employees, or
contractors, when acting within the scope of their agency or contract. In the event that a court of
competent jurisdiction determines that a franchise is subject to the provisions of RCW 4.24.115,
the parties agree that the indemnity provisions hereunder shall be deemed amended to conform to
said statute and liability shall be allocated as provided herein.
F. Notwithstanding any other provisions of this section, Grantee assumes the risk of damage
to its telecommunication facilities located in the rights -of -way and upon City -owned property from
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 any grossly negligent, willful,
Ordinance 26-001, Forged Fiber 37, LLC Franchise 11 of 16
or malicious acts or omissions on the part of the City, its officers, agents, employees, or
contractors, when acting within the scope of their agency or contract. Grantee releases and waives
any and all such claims against the City, its officers, agents, employees, or contractors except to
the extent the claims are caused by or arise from the grossly negligent, willful or malicious acts or
omissions of City, its officer, agents, employees, or contractors, when acting within the scope of
their agency or contract. Grantee 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 Grantee's facilities as the result of any interruption of
service due to damage or destruction of Grantee'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 grossly negligent, willful or malicious acts
or omissions on the part of the City, its officers, agents, employees, or contractors, when acting
within the scope of their agency or contract.
G. The provisions of this section shall survive the expiration, revocation or termination of this
franchise.
Section 28. Insurance. Grantee shall procure and maintain for the duration of the franchise,
insurance against claims for injuries to persons or damages to third -party 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 or otherwise limit the City's recourse to any remedy available at law or
in equity.
A. 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 01 or a substitute form providing equivalent
liability coverage. If necessary, the policy shall be endorsed to provide contractual liability
coverage; and
B. Commercial General Liability insurance shall be written on Insurance Services Office
(ISO) occurrence form CG 00 01, or a substitute form providing equivalent liability coverage
acceptable to the City, and shall cover products liability. The City shall be included as an
additional 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
acceptable to the City providing equivalent coverage. Coverage shall be written on an occurrence
basis with limits no less than $2,000,000 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 (XCM; and Employer's Liability.
The insurance policies are to contain, or be endorsed to contain, the following provisions for
Commercial General Liability insurance:
Ordinance 26-001, Forged Fiber 37, LLC Franchise 12 of 16
1. The Grantee's insurance coverage shall be primary insurance with respect to the City as
outlined in the Indemnification section of this franchise. Any insurance, self-insurance, or
insurance pool coverage maintained by the City shall be in excess of the Grantee's
insurance and shall not contribute with it.
2. The Grantee's insurance coverage shall not be cancelled without being immediately
replaced by a substantially similar policy that meets the requirements of this franchise,
except after 30 days prior written notice has been given to the City by Grantee.
Insurance is to be placed with insurers with a current A.M. Best rating of not less than ANII.
Grantee shall furnish the City with original certificates and a copy of any amendatory
endorsements, which (a) evidence Grantee has the insurance required herein and (b) expressly
identify the City as an additional insured protected by said insurance.
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 29. Performance Bond Relating to Construction Activity. Before undertaking 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 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 the
amount of $100,000 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.
Section 30. 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 31. 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 (but in no event less than 30 days) 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 advance notice (but in no event less than 30 days) 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
Ordinance 26-001, Forged Fiber 37, LLC Franchise 13 of 16
provisions of this franchise and to recover damages and costs incurred by the City by reason of
Grantee's failure to comply.
Section 32. Assignment. 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 parent, 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 33. Acceptance. Not later than 60 days after passage 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 60-day period, absolutely cease, unless the time period is extended by ordinance
duly passed for that purpose.
Section 34. Survival. All of the provisions, conditions and requirements of sections: 5, 6, 7, 8,
13, 16, 17, 18, 19, 20, 27, 28, 29, 37, 38 and 39 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 contract, 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 its respective heirs, successors and assigns equally as if they
were specifically mentioned herein.
Section 35. Severability. 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 Ordinance are
held to be invalid by a court of competent jurisdiction, the parties shall, in good faith, attempt to
revise the clause to reflect the intent of the parties as closely as possible.
Section 36. Renewal. Application for extension or renewal of the term of this franchise shall
be made no later than 180 days of the 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 37. 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
10210 East Sprague Avenue
Spokane Valley, WA 99206
Ordinance 26-001, Forged Fiber 37, LLC Franchise 14 of 16
Grantee: Forged Fiber 37, LLC c/o AT&T
Attn.: Legal Dept — Network Operations
Re: Spokane Valley Franchise (WA)
208 S. Akard Street
Dallas, TX 75202-4206
With a Grantee e-mail copy to: FF—Right_OCWay@att.com
Section 38. 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 39. 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 40. Entire Agreement. 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 City roads as herein described.
Section 41. 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.
PASSED by the City Council this 1 Oth day o bruary 2
Laura Padden, Mayor
A EST:
Mardi Patterson, City Clerk
Ap r ve as t rm:
44
Offic of the ty Atto ey
Date of Publicatio b 2 Z U
Effective Date: 4t20 � 20 20
Ordinance 26-001, Forged Fiber 37, LLC Franchise 15 of 16
Accepted by Forged Fiber 37, LLC, a Delaware limited liability company:
By:
Its: 4-),W t�ze('Rve oir tLa-'
The Grantee, Forged Fiber 37, LLC, a Delaware 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, Kevlh 1*v(4VN has signed this
day of VjjxA2026. Subscribed and sworn before me this day of , 2026.
Notary Public in and for the State
residing in
My commission expires jell QDb�
KARLA GUILLORY
My Notary ID # 10268710
'?;a► � EVIMS May 19, 2027
Ordinance 26-001, Forged Fiber 37, LLC Franchise 16 of 16
4C-1
c OKane
,,;0o*Valley
KNOW ALL BY THESE PRESENTS
BOND NO: 800234612
Effective: 2/10/2026
Franchise Bond
to City of Spokane Valley, Washington
THAT we, Forged Fiber 37, LLC, as Principal, and ATLANTIC SPECIALTY INSURANCE COMPANY as Surety, a
corporation, organized under the laws of New York and licensed to do business in the State of Washington as surety
and named in the current list of"Surety Companies Acceptable in Federal Bonds" as published in the Federal Register by the Audit
Staff Bureau of Accounts, U.S. Treasury Dept., are held and firmly bound unto the City of Spokane Valley, 10210 E. Sprague Ave.
Spokane Valley, WA 99206, as Obligee, in the sum of One Hundred Thousand and 00/100 Dollars ($100,000.00), for the payment
of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors, and assigns, jointly
and severally, firmly by these presents.
WHEREAS, the above bound Principal has entered into a written agreement, Franchise Ordinance #26-001 (hereinafter the
"Franchise") which grants a franchise to Principal to install, construct, operate, maintain, and replace telecommunication facilities
located within the rights -of -way of the City. Principal has agreed to faithfully perform and observe and fulfill all terms and
conditions of said Franchise and said agreement is hereby made a part of this bond with like force and effect as if herein set forth
in length.
NOW, THEREFORE, the condition of this obligation is such that this Franchise Bond shall become null and void, if and when the
Principal, its heirs, executors, administrators, successors, or assigns shall well and faithfully perform, observe, and fulfill all of the
Principal's obligations of the Franchise and perform, observe, and fulfill all terms and conditions of any and all duly authorized
modifications, additions, and changes to said Franchise that may hereafter be made, at the time and in the manner therein specified;
and if such performance obligations have not been fulfilled, this bond shall remain in full force and effect.
The Surety for value received agrees that no change, extension of time, alteration or addition to the terms of the Franchise shall in
any way affect its obligation on this bond, and waives notice of any change, extension of time, alteration or addition to the terms
of the Franchise or the work performed.
This bond may be executed in two original counterparts, and shall be signed by the parties' duly authorized officers. This bond will
only be accepted if it is accompanied by a fully executed and original power of attorney for the officer executing on behalf of the
Surety.
7nnciCpal
IP FORGED FIBEf� 37, Ls� 7rl Signatt�ure �/I Date
Printed Name
/''i i
Title
S ATLANTIC SPECI INSURANCE COMPANY
2 c� C-( L1.8/2026
Sure Signature Date
Elizabeth P. Cervini
Printed Name
Attorney -in -Fact
Title
Name, address, and telephone of local office/agent of Surety Company is:
R&P Surety. LLC
595 E. Swedesford Road, Suite 350, Wayne, PA 19087
1-800-394-9200
intact
INSURANCE
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS, that ATLANTIC SPECIALTY INSURANCE COMPANY, a New York corporation with its principal office in Plymouth,
Minnesota, does hereby constitute and appoint: Austin E. Trimbur, Christine M. Hrusovsky, David A. Johnson, David C. Rosenberg, Denise M. Bruno, Elizabeth
B. Pendleton, Elizabeth P. Cervini, James M. DiSciullo, Jamie K. Geyer, John E. Rosenberg, John M. Wescott, Jonathan F. Black, Julia R. Burnet, Kyle W.
Koziol, Matthew J. Rosenberg, Melissa J. Hinde, Stephanie S. Helmig, each individually if there be more than one named, its true and lawful Attorney -in -Fact, to make,
execute, seal and deliver, for and on its behalf as surety, any and all bonds, recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof; provided
that no bond or undertaking executed under this authority shall exceed in amount the sum of: unlimited and the execution of such bonds, recognizances, contracts of indemnity,
and all other writings obligatory in the nature thereof in pursuance of these presents, shall be as binding upon said Company as if they had been fully signed by an authorized
officer of the Company and sealed with the Company seal. This Power of Attorney is made and executed by authority of the following resolutions adopted by the Board of
Directors of ATLANTIC SPECIALTY INSURANCE COMPANY on the twenty-fifth day of September, 2012:
Resolved: That the President, any Senior Vice President or Vice -President (each an "Authorized Officer") may execute for and in behalf of the Company any and
all bonds, recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof, and affix the seal of the Company thereto; and that the
Authorized Officer may appoint and authorize an Attorney -in -Fact to execute on behalf of the Company any and all such instruments and to affix the Company
seal thereto; and that the Authorized Officer may at any time remove any such Attorney -in -Fact and revoke all power and authority given to any such Attorney -in -
Fact.
Resolved: That the Attorney -in -Fact may be given full power and authority to execute for and in the name and on behalf of the Company any and all bonds,
recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof, and any such instrument executed by any such Attorney -in -Fact shall
be as binding upon the Company as if signed and sealed by an Authorized Officer and, further, the Attomey-in-Fact is hereby authorized to verify any affidavit
required to be attached to bonds, recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof.
This power of attorney is signed and sealed by facsimile under the authority of the following Resolution adopted by the Board of Directors of ATLANTIC SPECIALTY
INSURANCE COMPANY on the twenty-fifth day of September, 2012:
Resolved: That the signature of an Authorized Officer, the signature of the Secretary or the Assistant Secretary, and the Company seal may be affixed by
facsimile to any power of attorney or to any certificate relating thereto appointing an Attomey-in-Fact for purposes only of executing and sealing any bond,
undertaking, recognizance or other written obligation in the nature thereof, and any such signature and seal where so used, being hereby adopted by the Company
as the original signature of such officer and the original seal of the Company, to be valid and binding upon the Company with the same force and effect as though
manually affixed.
IN WITNESS WHEREOF, ATLANTIC SPECIALTY INSURANCE COMPANY has caused these presents to be signed by an Authorized Officer and the seal of the Company
to be affixed this first day of January, 2023.
a" SY iNg
SEAL `r^=
1986 ?o= By
STATE OF MINNESOTA=ti`"tiFw YOP+
HENNEPIN COUNTY 4y4�Y1yy "' ��r�• Sarah A. Kolar, Vice President and General Counsel
On this first day of January, 2023, before me personally came Sarah A. Kolar, Vice President and General Counsel of ATLANTIC SPECIALTY INSURANCE COMPANY, to
me personally known to be the individual and officer described in and who executed the preceding instrument, and she acknowledged the execution of the same, and being by me
duly sworn, that she is the said officer of the Company aforesaid, and that the seal affixed to the preceding instrument is the seal of said Company and that the said seal and the
signature as such officer was duly affixed and subscribed to the said instrument by the authority and at the direction of the Company.
EC,111E,S,ALISON D. NASH-TROUT
NOTARY PUBLIC - MINNESOTAMy Commission Expires
ip` January 31, 2030 Notary Public
I, the undersigned, Secretary of ATLANTIC SPECIALTY INSURANCE COMPANY, a New York Corporation, do hereby certify that the foregoing power of attomey is in full
force and has not been revoked, and the resolutions set forth above are now in force.
Signed and sealed. Dated 18th - day of March 2026
This Power of Attorney expires
January 31, 2030
.'.14Hs< �
.i
QG GpRPliggTF;9n
SEAL
`-`—' 1986 0
Please direct bond verifications to surely(a)inta tin ,ran . om
01
Kara L.B. Barrow, Secretary
�Ttaspecialty
IIIf Ya.Yfl�t] solutillm
Atlantic Specialty Insurance Company
Period Ended 12/31/2024
Dollars displayed in thousands
Admitted Assets
Investments:
Bonds
Preferred Stocks
Common Stocks
Mortgage Loans
Reel Estate
Contract Loans
Derivatives
Cash, Cash Equveients & Short Tern Investments
Other Investments
Total Cash & Investments
Premiums and Considerations Due
Reinsurance Recoverable
Receivable from Parent, Subsidiary or Affiliates
All Other Admitted Assets
Total Admitted Assets
State of Minnesota
County of Hennepin
Liabilities and Surplus
Liabilities
$ 2,894,094
Loss Resems
$ 1,264,802
-
Loss Adjustment Expense Reserves
423.323
987,702
Total Loss& LAE Reserves
1,688,125
Unearned Premium Reserve
011,551
Total Reinsurance Liabilities
64,571
-
Commissions, Other Expenses, and Taxes due
75,922
383,175
Demetives
-
36,178
Payable to Parent, Subs or Affiliates
-
4,301,149
All Other Liabilities
1,121,125
350,792
Total Liabilities
3,761,294_
60,063
11,764
Capital and Surplus
94,008
Common Capital Stock
9,001
Preferred Capital Stock
-
4,817,776
Surplus Notes
-
Unassigned Surplus
476,697
Other Including Gross Cortributed
570384
Capital & Surplus
1,056.482
Total Llabilitiesand C&S
4.817,776
I, Kara Barrow, Secretary of Atlantic Specialty Insurance Company do hereby certify that
the foregoing statement is a correct exhibit of the assets and liabilities of the said
Company, on the 3 1 " day of December, 2024, according to the best of my information,
knowledge and belief, a "f
Secretary
Subscribed and sworn to, before me, a Notary Public of the State of Minnesota on this
1 Oth day of March, 2025.
ieKERRI RIECHERS
NOTARY PUBLIC
MINNESOTAMy ConrNssion &on Jlta 31,200
Notary Public