Ordinance 03-068 Grants Eman Networks Franchise CITY OF SPOKANE VALLEY
SPOKANE COUNTY, WASHINGTON
ORDINANCE NO. 68
AN ORDINANCE OF THE CITY OF SPOKANE VALLEY, SPOKANE
COUNTY, WASHINGTON, GRANTINC A NON-EXLUSIVE FRANCHISE
TO EMAN NETWORKS TO CONSTRUCT, MAINTAIN AND OPERATE
CERTAIN FACILITIES WITHIN THE PUBLIC RIGHT-OF-WAY AND
PUBLIC PROPERTIES OF THE CITY OF SPOKANE VALLEY.
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
WHEREAS, 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 finds 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" shall mean the City Manager or his/her designee..
2. "day" means a twenty-four (24) hour period beginning at 2.: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.
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. 3
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 vvay.4
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 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. 5
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 statute, 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.6
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. 7
8. "Pennittee" shall mean a person or entity who has been granted a
permit by the Permitting Authority.8
9. "Permitting Authority" shall mean the City Manager or designee
authorized to process and grant pen-nits required to perform work in the
rights of way (ie. Obstruction Permits). 9
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. "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.
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13. "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 EMAN NETWORKS, a Washington not-
for-profit corporation (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 for purposes described on Exhibit A, system, in,
under, on, across, over, through, along or below the public right-of-ways and public places
located in the City of Spokane Valley, as approved under City permits issued pursuant to this
franchise (hereinafter the "Franchise").
Section 3. Fee. No right-of-way use fee shall be imposed for the term of this
Franchise. At such time as a right-of-way use or franchise fee may be imposed by a City
ordinance, applicable to Grantee, however, the same shall be imposed after sixty (60) days'
written notice from the City to the Grantee. Any such right-of-way use or franchise fee that may
be imposed would apply to any subsequent franchise, if any, between the parties.
Section 4. City Use.. The following provisions shall apply regarding City use.
1. Grantee agrees to grant to the City, at no cost to City, an indefeasible right
of use of six (6) dark fiber strands at every location passed by Grantee's facilities, for sole
and exclusive municipal use or designation, with access to any building or facility
designated by the City. Said dark fiber shall be reserved for use by the City or its
designees for govermnental, educational, or other public benefit purpose, 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 for-profit public utility provider of
telecommunications business service to the public. The City reserves the right to connect
its six dark fiber strands to other fiber network providers, with the goal of achieving
maximum, City-wide connectivity for the City and its citizens.
2. The City shall have the right to access by connection to the six dark fiber
strands at any location served by this Franchise. 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 not pay Grantee any fee or
recurring monthly charge related to use of the fiber optic lines unless specifically agreed
by the parties in writing.
4. Subject to Subsection 1, the designation of either conduit or fiber shall be
at the sole discretion of the City Manager, PROVIDED, Grantee may submit a written
request to the City Manager asking him/her to advise of the City's election of conduit or
fiber for a specific installation or area, whereupon the City Manager shall promptly
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designate a choice. In the absence of a response from the City Manager, the designation
shall be deemed the fiber option. In the event of expansion, upgrade, or major repair or
maintenance operations affecting conduit installation or transmission capacity, the City
may change or exercise its option as in the instance of an initial installation.
Section 5. Recovery 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.
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 in,
under, on, across, over, through, along or below any right-of-ways, 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 right-of-ways, 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, establishments, improvements,
dedications or vacation of same as the City may deem fit, including the dedication,
establishment, maintenance, and improvement of all new right-of-ways, streets, avenues,
thoroughfares and other public properties of every type and description.
Section 7. Non-interference with Existing 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.
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 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 system shall be constructed and maintained in such manner as not to interfere
with sewers, water pipes, or any other property of the City, 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. Right to Roads Not Superseded. The City, in the granting of this
Franchise, does not waive any rights which it now holds or may hereafter acquire, 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 domain, 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
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such manner as the City, or its representatives may elect. The City shall retain 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 and/or 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 removed
or replaced. Any and all such removal or replacement shall be at the sole expense of the
Grantee. Should Grantee fail to remove, adjust or relocate its facilities by the date established by
the City Engineer's written notice to Grantee, 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 ninety (90) 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 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 City Engineer 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, resolutions, 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 City Engineer. 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 Standards. During any period of work relating to
Grantee's facilities, all surface structures and equipment, if any, shall be erected and used in such
places and positions within or adjacent to public right-of-ways 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
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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, 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 facilities or safety thereof. When deemed appropriate by the City,joint users may be
required to contribute to the costs of excavation and filling.
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 property to at least the condition that the same was in immediately prior to
any such work. 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. Damage and Non-Compliance. 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 to
the satisfaction of the City Engineer; and in the event the Grantee shall fail, neglect, or refuse to
immediately repair and reconstruct said damage or injury to said City right of way or facilities,
the same may be done by the City and the cost and expense shall be immediately paid by the
Grantee to the City.
If it is discovered by the City that Grantee has damaged, injured, or failed to restore the
right of way in accordance with this Franchise, the City shall provide the Grantee with written
notice including a description of actions the City believes necessary to restore the right of way.
if the right of way is not restored within ten (10) days' from written notice, the City, or its
authorized agent, may restore the right of way and facilities. The Grantee is responsible for all
costs and expenses incurred by the City to repair and restore the right of way and facilities in
accordance with this Franchise. The rights granted to the City under this Section 10 shall be in
addition to those otherwise provided by this Franchise.
Section 14. Protection of Monuments. Before any work is performed under this
Franchise which may affect any existing monuments or markers of any nature relating to
subdivisions, plats, roads, and all other surveys, the Grantee shall reference all such monuments
and markers. The reference points shall be so located that they will not be disturbed during the
Grantee's operations under this Franchise. The method of referencing these monuments or other
points to be referenced shall be approved by the City Engineer. All concrete encased recorded
monuments which have been disturbed or displaced by such work shall be restored pursuant to
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 City Engineer. The cost of monuments or other markers lost, destroyed, or
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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.
Section 15. Drainage. 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
City Engineer.
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 right-of-ways, roads, streets, or other public
property, hereinafter collectively referred to as the "Plans." All work within any public rights-
of-way or other public property shall be pursuant to permit 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, installation, backlll, 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
right-of-ways. Grantee shall file as-built plans and maps with the City showing the final location
of the facilities. All restoration of right-of-ways, 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 maintain 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. Emergency Response. 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 City Engineer 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.
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in the event the Grantee fails or 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 19. Emergency 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 System. Pursuant to RCW 19.122, 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 21. Inspections 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. Safety. The Grantee, in accordance with applicable federal, state, and
local safety rules and regulations, shall, at all times, employ ordinary care 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
Right 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. Building Moving. 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.
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
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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 - Authority of City to Abate. Whenever
excavation, installation, construction, repair, maintenance, or relocation of facilities authorized
by this Franchise has caused or contributed to a condition that appears to substantially impair 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 safety precautions; and
Grantee shall be liable to the City for all costs and expenses thereof.
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 right of way. Grantee shall maintain and inspect its facilities located in
the rights of way. Upon reasonable notice to Grantee and in the presence of an authorized
representative of Grantee, the City may inspect 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 Hazardous Substances in
compliance with applicable environmental clean-up standards related thereto. Grantee agrees to
forever 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.
Section 27. 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 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.
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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 by reason of traffic conditions or public safety,
dedications of new right-of-ways and the establishment and improvement thereof, freeway
construction, change or establishment of street grade, or the construction of any public
improvement or structure, 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
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 right-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 is 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 are 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 obtained prior to such work.
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,
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, potential improvement plans,
field locates, maps, plats, specifications, profiles, and records of its facilities within City right of
way. Such documents shall be provided within six months of the execution of said Franchise by
Grantee. These records shall be in a digital electronic format acceptable to the City, unless the
City Engineer deems it to be a hardship to the Grantee, in which case a hard copy in a format
acceptable to the City Engineer shall be provided. Grantee shall provide the City a plan map
updated annually showing all Grantee's facilities located within the City right of way or public
properties.
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 area;
provided, however, any such plan so submitted shall be for informational purposes only, and
shall not obligate Grantee to undertake any specific improvements within the Franchise area.
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 until the Grantee can file a legal action under RC\V 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
for a period of five (5) years absent emergency circumstances, unless otherwise agreed by the
City.
Section 32. Remedies to Enforce Compliance. in addition to any other remedy
provided herein, the City reserve 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 33. City Ordinances and Regulations. Nothing herein shall be deemed to
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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 34. Vacation. If, at any time, the City shall vacate any City road, right-of-way
or other City property which is subject to rights granted by this Franchise and said vacation shall
be for the purpose of acquiring the fee or other property interest in said road, right-of-way or
other City property for the use of the City, in either its proprietary or governmental capacity, then
the City may, at its option and by giving thirty (30) days written notice to the grantee, terminate
this Franchise with reference to such City road, right-of-way or other City property so vacated,
and the City shall not be liable for any damages or loss to the grantee by reason of such
termination.
Section 35. 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 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 right-of-ways 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 right-of-
ways 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 permitted 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. 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.
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in the event that Grantee refuses to accept the tender of defense in any suit or any claim,
said tender having been made 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 35 shall survive the expiration or termination of this
Franchise agreement, for a period of three (3) years.
Section 36. 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. Grantee shall provide a copy of
such insurance certificate to the City for its inspection prior to the adoption of this Ordinance,
and such insurance shall evidence:
1. Automobile Liability insurance with limits no less than $1,000,000 Combined
Single Limit per accident for bodily injury and property damage. Such liability
insurance shall only be required from Grantee for vehicles owned or controlled by
Grantee. Any contractor hired by Grantee to perform labor in the performance of
this franchise shall be required to obtain auto insurance as stated in this
subsection; and
2. Commercial General Liability insurance written on an occurrence basis with
limits no less than $1,000,000 Combined Single Limit per occurrence and
$2,000,000 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.
Any deductibles or self-insured retentions must be declared to and approved by the City.
Payment of deductible or self-insured retention shall be the sole responsibility of Grantee.
Recognizing the term of this Franchise, the City Council may unilaterally adjust the insurance
liability limits to reflect the degree of risk and market conditions.
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The insurance obtained by Grantee shall name the City, its officers, employees and
volunteers as insureds with regard to activities performed by or on behalf of Grantee. The
coverage shall contain no special limitations on the scope of protection afforded to the City, its
officers, officials, employees or volunteers. In addition, the insurance certificate shall contain a
clause stating that coverage shall apply separately to each insured against whom a claim is made
or suit is brought, except with respect to the limits of the insurer's liability. Grantee's insurance
shall be the primary insurance as respects the City, its officers, officials, employees and
volunteers. Any insurance maintained by the City, its officers, officials, employees or volunteers
shall be in excess of Grantee's insurance and shall not contribute to it. The insurance certificate
required by this clause shall be endorsed to state that coverage shall not be suspended, voided,
canceled by either party, or reduced in coverage or in limits except after thirty (30) days' prior
written notice by certified mail, return receipt requested, has been given to the City.
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 37. Bond. 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, 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 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.
Section 38. 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 39. Compliance With New Regulations. The City reserves for itself the right
to change, amend, modify, or amplify this Franchise to conform to any state statute, or Spokane
County and/or City regulation, Utility Accommodation Plan, or right of way regulation, State
and National Codes, Standards, and Regulations 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 and upon termination the City shall have a lien upon all equipment and materials
erected or placed under this Franchise, which lien may be enforced to reimburse the City for any
reasonable expenses and payments incurred in terminating this Franchise and to cure defaults by
the Grantee.
Section 40. Forfeiture and Revocation. If Grantee willfully violates or fails to
comply with any of the provisions of this Franchise, or through willful or unreasonable
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negligence fails to heed or comply with any notice given Grantee by the City under the
provisions of this Franchise, 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 41. Assignment. This Franchise may not be assigned or transferred without
the written approval of the City. For purposes hereof, the grant of any security agreement or
security interest in the facilities of the Grantee to secure any financing or refinancing, shall
constitute an assignment of this Franchise for which written approval would be required. in the
case of the transfer or assignment as collateral for a mortgage or other security instrument in
whole or in part to secure indebtedness, such consent shall not be required unless and until the
secured party elects to realize upon the collateral. Grantee shall provide prompt, written notice to
the City of any such assignment.
Section 42. Costs of Publication. The cost of the preliminary and/or final publication
of this Ordinance and/or its Ordinance Summary shall be borne by Grantee.
Section 43. Acceptance. Not later than thirty (30) 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 five day 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:
5, 11, 24, 25, 34 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 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 all privileges, as well as all obligations and liabilities of Grantee shall inure to its
heirs, successors and assigns equally as if they were specifically mentioned wherever Grantee is
named herein.
Section 45. 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 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.
Section 46. Renewal. Application for extension or renewal of the term of this
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Franchise shall be made no sooner 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
Spokane Valley, WA 99206
With a Copy to: City of Spokane Valley
Public Works Director
11707 E. Sprague
Spokane Valley, WA 99206
Grantee: EMAN Networks
Attn: Ed Jacobs
114 East Meeker
Puyallup, WA 98371
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.
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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 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 County roads as herein described.
Section 51. Effective Date. This Ordinance shall be in full force and effect on the
official date of incorporation provided publication of this 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 V day of May, 2003.
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Mayor, Michael DeVleming
ATTEST:
(27367/eitt-ed
Interim City Clerk, Ruth Muller
Approved as to Form:
City A o •ey, Stanle M. Schwartz
Date of Publication: j ts,y e 3, czoaq
Effective Date: -Su.,,- 8, o3
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