Ordinance No. 1113 - Consolidated Communications Franchise AgreementCITY OF YELM
ORDINANCE NO. 1113
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF YELM, WASHINGTON, AUTHORIZING A
TEN YEAR NON-EXCLUSIVE, FRANCHISE WITH CONSOLIDATED COMMUNICATIONS OF
WASHINGTON COMPANY, LLC TO PROVIDE TELECOMMUNICATIONS SERVICES WITHIN THE
CITY LIMITS; PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE.
WHEREAS, the original terms of the City of Yelm's previous agreement with
Consolidated Communications of Washington Company, LLC, respectively, have expired; and
WHEREAS, the City and Consolidated Communications of Washington Company, LLC,
desire to have telecommunications provided for the current and future citizens and businesses
of the City; and
WHEREAS, Consolidated Communications of Washington Company, LLC, currently is a
direct, wholly-owned subsidiary of Consolidated Communications of Comerco Company
("CCCC") and pursuant to a Purchase and Sale Agreement dated July 10, 2023 NextCape LLC,
will acquire all issued and outstanding interests in CCCC, and indirectly all of the issued and
outstanding interests of Consolidated Communications of Washington Company, LLC (the
"Transaction").
WHEREAS, Upon completing the Transaction, Consolidated Communications of
Washington Company, LLC, under the ownership of NextCape LLC, will continue to be the
telecommunications provider operating telecommunications facilities and serving customers in
the City; and
WHEREAS, The City and Consolidated Communications of Washington Company, LLC,
desire to formalize their cooperative and mutually beneficial relationships for the provision of
telecommunications with the City;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF YELM, WASHINGTON, DOES HEREBY
ORDAIN AS FOLLOWS:
Section 1. Grant of Franchise. The Mayor is authorized to execute a non-exclusive
Franchise Agreement with Consolidated Communications of Washington Company, LLC to
provide telecommunications service for a period of ten (10) years within the City of Yelm on the
terms and conditions set forth in the Franchise Agreement attached hereto as Exhibit 1.
Section 2. Effective Date. This Ordinance shall be in full force and effect five (5) days
after its publication as provided by law. A summary of this Ordinance may be published in lieu
of publishing the Ordinance in its entirety. The "Effective Date" of the Franchise Agreement,
however, shall be the date on which Consolidated Communications of Washington Company,
LLC has executed and filed with the City Clerk a form signifying its acceptance of the terms and
conditions of the Franchise agreement, per YMC 15.86.070(A). The Franchise Agreement shall
be of no force or effect if Consolidated Communications of Washington Company, LLC fails to
file its written acceptance within 30 days of the date of publication of this Ordinance.
Section 3. Severability If any section, sentence, clause or phrase of this Ordinance and
Franchise Agreement is held to be invalid or unconstitutional by a court of competent
jurisdiction, such invalidity or unconstitutional shall not affect the validity or constitutionality of
any other section, sentence, clause or phrase of this Ordinance and Franchise Agreement.
Adopted by the Yelm City Council at the regular meeting this 26th day of March, 2024.
r
J ePinto, May6r
r
ATTEST:
Kat y Linne er,70tyClerkPUBLISHED: (i3
EFFECTIVE DATE: i�f ti I Ci i t
EXHIBIT 1
To
City of Yelm Ordinance No. 1113
TELECOMMUNICATION FRANCHISE AGREEMENT
This Telecommunications Franchise Agreement ("AGREEMENT" or "FRANCHISE") is
entered into by and between Consolidated Communications of Washington Company, LLC
("FRANCHISEE") and the municipal corporation of the City of Yelm, Washington ("CITY").
RECITALS
WHEREAS, the CITY recognizes that the use of public rights-of-way must be restricted to
allow for the construction of amenities necessary to serve the needs within the CITY for all parcels
located within the CITY. The coordination, planning,, and management of the CITY'S rights-of-way is
necessary to ensure that the burden of costs for the operations of non -municipal interests are not borne
by the citizenry; and
WHEREAS, the CITY has determined that the development of a comprehensive plan for
rights-of-way use, and management is the most effective means for managing the current use of rights-
of-way and ensuring prudent and appropriate decisions concerning the use of rights-of-way in the
future; and
WHEREAS, as a result of a series of prior transactions and intra -corporate restructuring,
FRANCHISEE became the successor -in -interest to prior certificates, franchises, licenses, and
agreements originally held by Yelm Telephone Company, Inc. and has provided telecommunications
services within the City and deployed its telecommunications facilities in the public right-of-way
within the City; and
WHEREAS, Franchisee is an Incumbent Local Exchange Carrier authorized to provide
telecommunications services in the state of Washington pursuant to an Order issued by the Washington
Utilities and Transportation Commission; and
WHEREAS, FRANCHISEE currently is a direct, wholly-owned subsidiary of Consolidated
Communications of Comerco Company ("CCCC"). CCCC is a Washington corporation and a direct,
wholly-owned subsidiary of Consolidated Communications, Inc. ("CCP'), a Washington corporation.
CC[ provides broadband and communications services to residential and commercial customers and
other carriers in over 20 states through its operating subsidiaries, including CCWC in Washington; and
WHEREAS, pursuant to a Purchase and Sale Agreement dated July 10, 2023 by and between
Consolidated Communications, Inc. and NextCape LLC, NextCape, LLC will acquire all issued and
outstanding interests in CCCC, and indirectly all of the issued and outstanding interests of FRANCHISEE
(the "Transaction"). The Transaction is expected to be completed upon certain conditions prescribed in the
Agreement, and currently is expected to occur early in the second quarter of 2024; and
WHEREAS, Following the Transaction, FRANCHISEE will continue to be a direct wholly-owned
subsidiary of CCCC and will be an indirect, wholly-owned subsidiary of NextCape. NextCape is indirectly,
wholly-owned by Palisade Diversified Infrastructure Fund No. 3 ("I'DIF3"), an Australia infrastructure fund,
and is indirectly owned by funds managed by Palisade Americas Management, LLC ("PAM") and Palisade
Investment Partners Limited ("PIPE"). an Australia specialist infrastructure investment manager, and
WHEREAS, FRANCHISEE is and, after completion of the Transaction, will remain the
telecommunications provider operating telecommunications facilities and serving customers in the City. The
legal name of FRANCHISEE may change shortly after completion of the Transaction. To the extent a change
in legal name occurs, FRANCHISEE will notify the City of the change; and
WHEREAS, FRANCHISEE has determined that it is in its best interests to move forward with
the installation and maintenance of telecommunications facilities within the public rights-of-way of
CITY.
NOW THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
Section 1. Non-exclusive Franchise Granted. CITY hereby grants to FRANCHISEE, subject to the
conditions prescribed in this AGREEMENT, a franchise to use and occupy the CITY -owned rights-
of-way ("FRANCHISE AREA").
Such franchise shall not be deemed to be exclusive to FRANCHISEE and shall in no way prohibit or
limit the CITY's ability to grant other franchises, permits, or rights along, over, or under the areas to
which this FRANCHISE has been granted to FRANCHISEE; provided that, any other franchise(s) do
not unreasonably interfere with FRANCHISEE'S exercise of its franchise. This FRANCHISE shall in
no way interfere with existing utilities or in any way limit, prohibit, or prevent, the CITY from using
the FRANCHISE AREA or affect the CITY'S jurisdiction over any area in any way.
Section 2. Authority. The CITY'S Public Services Director or his/her designee is hereby granted the
authority to administer and enforce the terms and provisions of this FRANCHISE and may develop
such rules, policies, and procedures, as he/she deems necessary to carry out the provisions contained
herein.
Section 3. Construction Provisions and Standards. The following provisions shall be considered
mandatory and failure to abide by any conditions described herein shall be deemed as non-compliance
with the terms of this FRANCHISE:
A. Permit Required — No construction, maintenance, or repairs (except for emergency
repairs) shall be undertaken in the FRANCHISE AREA without first obtaining a pen -nit to
perform such work from CITY'S Public Services Department and paying any applicable fees
as may be lawfully required by the CITY. FRANCHISEE and any person acting on the
FRANCHISEE'S behalf, shall not commence any nonemergency work involving
undergrounding, excavation or obstructing in or about the rights-of-way without five working
days' advance written notice to the CITY. Any private property owner whose property will be
affected by FRANCHISEE'S work shall be afforded the same notice.
B. Coordination — All work and inspection shall be coordinated with the Engineering
Division of CITY'S Public Services Department to ensure consistency with CITY'S
infrastructure, CITY'S future capital improvement projects, all developer improvements, and
pertinent codes and franchises. By February 1 st of each year, FRANCHISEE shall provide the
city administrator or designee with a schedule of their planned construction activities which
may affect the rights-of-way for that year. FRANCHISEE shall meet with the city, other
FRANCHISEES and users of the rights-of-way annually or as determined by the city to
schedule and coordinate construction. All construction locations, activities and schedules shall
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be coordinated, as ordered by the city administrator or designee, to minimize public
inconvenience, disruption or damages.
C. Construction Standards — Any construction, installation, maintenance, and
restoration activities performed by or for FRANCHISEE within the FRANCHISE AREA shall
be conducted and located so as to produce the least amount of interference with the free passage
of pedestrian and vehicular traffic. All construction, installation, maintenance, traffic control
and restoration activities shall be conducted so as to conform to CITY'S most -current standards
in effect at the time that such activities take place, and as may be detailed in a Manual on
Accommodating Utilities. FRANCHISEE shall maintain its facilities in good and safe
condition and in a manner that complies with all applicable federal, state and local
requirements.
D. Undergrounding—The parties agree that this FRANCHISE does not limit the CITY'S
authority under federal law, state law or local ordinance, to require the undergrounding of
utilities or other facilities. FRANCHISEE shall not be required to convert existing facilities or
install new facilities underground in any areas where other service providers (e.g., power,
cable, telecommunications, etc.) have aerial facilities.
E. Removal or Abandonment — Upon the removal from service of any
telecommunication components or other associated structures, facilities and amenities,
FRANCHISEE shall comply with all applicable standards and requirements prescribed by
CITY'S Public Services Department for the removal or abandonment of said structures and
telecommunication service facilities.
F. "One -Call' Location & Liability — CITY will not locate private infrastructure. The
"One -Call" locate will be the responsibility of the FRANCHISEE.
G. As -Built Plans Required — FRANCHISEE shall present as -built plans to be inspected
and approved by CITY'S Public Services Director or his/her designee.
H. Protect Public Interest — FRANCHISEE understands and agrees that the Yelm
Municipal Code incorporates provisions necessary to protect the public interest and investment
with regard to utilization of CITY -owned roads and rights-of-way.
1. Relocation — Whenever CITY determines that it is necessary for any of
FRANCHISEE'S facilities, or for other system components, to be moved or relocated to
accommodate the construction, or enhancement of any CITY -owned public amenity in the
FRANCHISE AREA, CITY shall notify FRANCHISEE in writing of such determination, and
FRANCHISEE shall promptly submit plans for such relocation. Within sixty (60) days (or a
longer period if mutually agreed upon by the FRANCHISEE and CITY) of the approval by
CITY of the plans for relocation, FRANCHISEE shall relocate those facilities or structures
designated by CITY. The costs of moving or relocating FRANCHISEE facilities or structures,
including but not limited to costs for design, engineering and construction is the responsibility
of FRANCHISEE.
Section 4. Franchise Compliance.
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A. Franchise Violations — The failure by FRANCHISEE to comply fully with any of
the provisions of this AGREEMENT may result in a written notice from CITY, which
describes the violation(s) and requests remedial action within thirty (30) days of receipt of
such notice. If FRANCHISEE has not attained full compliance at the end of the thirty (30)
day period following receipt of the violation notification, CITY may declare an immediate
termination of all franchise rights and authority, provided that full compliance was
reasonably possible within that thirty (30) day period. The demonstration of due diligence
on the part of FRANCHISEE may be grounds for the grant of an extension in the period
during which compliance is to be attained; provided that, FRANCHISEE continues to pursue
correction of any violation(s) of the AGREEMENT that are or were noted by CITY.
B. Emergency Actions — If any of FRANCHISEE'S actions, or any failure by
FRANCHISEE to act, to correct a situation caused by FRANCHISEE is deemed by CITY to
create a threat to life or property, CITY may order FRANCHISEE to immediately correct said
situation threat or, at CITY'S discretion, CITY may undertake measures to correct said
situation threat itself, provided that, when possible, CITY shall notify FRANCHISEE of said
threat and give FRANCHISEE an opportunity to correct said threat before undertaking such
measures itself. FRANCHISEE shall be liable for all costs, expenses, and damages
attributable to the correction of such an emergency situation as undertaken by CITY to the
extent that such situation was caused by FRANCHISEE, and shall further be liable for all
costs, expenses, and damages resulting to CITY from such situation and any reimbursement
of such costs to CITY shall be made within thirty (30) days of written notice of the completion
of such action or determination of damages by CITY. The failure by FRANCHISEE to take
appropriate action to correct a situation caused by FRANCHISEE and identified by CITY as
a threat to public or private safety or property shall be considered a violation of this
FRANCHISE and each day that such a situation continues to exist and FRANCHISEE fails
to take appropriate action to abate said situation shall be regarded as a separate violation. In
the event of an unexpected repair or emergency, FRANCHISEE may commence such repair
and emergency response work as required under the circumstances, provided that
FRANCHISEE shall notify the CITY'S public works director as promptly as possible before
such repair or emergency work or as soon thereafter as possible if advance notice is not
practicable.
C. Other Remedies — Nothing contained in this FRANCHISE shall limit CITY'S
available remedies in the event if FRANCHISEE fails to comply with the provisions of this
FRANCHISE, including but not limited to, CITY'S right to sue for specific performance and/or
damages.
D. Removal of System — In the event that this FRANCHISE is terminated as a result of
violation(s), FRANCHISEE shall at its sole expense, promptly remove all components and
facilities, provided that, CITY, at its discretion, may allow FRANCHISEE to abandon its
facilities in place.
Section 5. Insurance. FRANCHISEE shall present to CITY proof that FRANCHISEE has (1) general
liability insurance in the amounts specified in the City Code
Section 6, Other Permits & Annrovals. Nothing in this FRANCHISE shall relieve FRANCHISEE from
any obligation to obtain approvals or necessary permits from applicable federal, state, and CITY authorities
for all activities in the FRANCHISE AREA.
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Section 7. FRANCHISEE'S Successors. Notwithstanding Yelm Municipal Code 15.72.220, the rights,
privileges, benefits, title, or interest provided by this FRANCHISE shall automatically transfer to any
assign(s) or successor(s) in interest of FRANCHISEE and, in such event, each instance of the word and
reference to the position of "Franchi see" within this AGREEMENT shall henceforth be read, construed and
interpreted as stating the name of the successor(s). It is the intent of FRANCHISEE and CITY for this
section to control over any contrary provisions of law, including the Yelm Municipal Code. Provided,
however, that FRANCHISEE shall notify CITY of any subsequent proposed change in, transfer of, or
acquisition by any other party of control of FRANCHISEE and request approval of such in accordance with
Yelm Municipal Code 15.72.230.
Section 8. Franchise Term. The franchise rights and authority granted by this FRANCHISE shall remain
in full force and effect for a period of ten (10) years from the effective date of this FRANCHISEE and will
be renegotiable at the end of that time.
Section 9. Administrative Fees. (NOT APPLICABLE)
Section 10. Franchise Fee. (NOT APPLICABLE)
Section 11. Capacity For CITV Use. As long as FRANCHISEE is in compliance and good standing
with CITY, any new expansion into a new service area within the City of Yelm will be subject to
substantially the same terms and conditions set forth in this FRANCHISE and such permission will be
given within sixty (60) days following notice by FRANCHISEE to CITY'S Public Services Director.
However, if FRANCHISEE is not in compliance and good standing with CITY, prior to expanding into
a new service area within the City of Yelm, FRANCHISEE shall contact CITY'S Public Services
Department and provide notice of the proposed area of expansion and negotiations shall then occur
between FRANCHISEE and CITY on specific public benefit projects within the proposed expanded
service area. FRANCHISEE and CITY will agree on the specific public benefit within the proposed
expanded service area prior to FRANCHISEE obtaining a right-of-way use permit for action within
the expanded service area.
Section 12. Notices. Any notices to be served upon CITY or FRANCHISEE shall be delivered to the
following addresses respectively:
CITY:
City of Yelm
ATTN: Public Services Director
901 Rhoton Road
Yelm, WA 98597
FRANCHISEE:
Consolidated Communications of Washington, LLC
ATTN: Contracts Department
2116 South 17" St.
Mattoon, IL 61938
Section 13. C:lairns for Damages. In the construction, installation, repair, operation, and maintenance
of its structures and facilities, neither FRANCHISEE nor or any person acting on a FRANCHISEE'S
behalf shall take any action or permit any action to be done which may impair or damage any rights-
of -way, or other property located in, on or adjacent thereto except in accordance with Yelm Municipal
Code 15.72.130. FRANCHISEE shall indemnify, hold harmless, and also defend CiTY and its
officers, agents, employees, insurers and liability risk pools from all claims, actions or damages of
every kind or description, including reasonable attorney's and expert witness fees, which may accrue
to or be suffered by any person or persons, corporation or property to the extent caused in part or in
whole by any negligent act or omission of FRANCHISEE, its officers, agents, employees and
contractors, carried on in the furtherance of the rights, benefits, and privileges granted to
FRANCHISEE by this FRANCHISE. In the event any claim or demand is presented to or filed with
the CITY which gives rise to FRANCHISEE'S obligation(s) pursuant to this section. CITY shall
within a reasonable time notify FRANCHISEE thereof and FRANCHISEE shall have a right, at its
election, to settle or compromise such claim or demand. In the event any claim or action is commenced
in which CITY is named as a party, and which suit or action is based on a claim or demand which
gives rise to FRANCHISEE'S obligation(s) pursuant to this section, CITY shall promptly notify
FRANCHISEE thereof, and FRANCHISEE shall, at its sole cost and expense, defend such suit or
action by attorneys of its own election. In defense of such suit or action, FRANCHISEE may, at its
election and at its sole cost and expense, settle or compromise such suit or action. This section shall
not be construed to require FRANCHISEE to: (i) protect and save CITY harmless from any claims,
actions, or damages; (ii) settle or compromise any claim, demand, suit, or action; (iii) appear in or
defend any suit or action; or, (iv) pay any judgment or reimburse the CITY'S costs and expenses
(including reasonable attorney's fees), to the extent such claim arises out of the sole negligence of
CITY. To the extent of any concurrent negligence between FRANCHISEE and CiTY,
FRANCHISEE'S obligations under this section shall only extend to its own share of negligence or
fault. CITY shall have the right at all times to participate through its own attorney in any suit or action
which arises out of any right, privilege, and authority= granted by or exercised pursuant to this
FRANCHISE when CITY determines that such participation is required to protect the interests of
CiTY or the public. Such participation by CITY shall be at CiTY'S sole cost and expense.
Section 14. Severability, if any section, sentence, clause, or phrase of this FRANCHISE is held to be
invalid or unconstitutional by a court of competent jurisdiction, CiTY may, at its sole discretion, deem
the entire FRANCHISE to be affected and thereby nullified. However, in the event that a determination
is made that a section, sentence, clause, or phrase in this FRANCHISE is invalid or unconstitutional,
CiTY may elect to treat the portion declared invalid or unconstitutional as severable and enforce the
remaining provisions of this FRANCHISE; provided that, if CITY elects to enforce the remaining
provisions of the FRANCHISE, FRANCHISEE shall have the option to terminate the FRANCHISE.
Section 15. Indemnification. FRANCHISEE, and each of its successors and assigns, agrees and
covenants to indemnify and hold harmless CITY from and against any and all liability, loss, cost,
damages, whether to persons or property, or expense of any type or nature, including reasonable
attorney's fees and expert witness fees, to the extent it arises from any negligent act or omission or
willful misconduct of FRANCHISEE or one of its successors or assigns, arising from or connected to
work under this FRANCHISE; provided however, that in case any suit or action is instituted against
CITY by reason of any such damage or injury, CITY shall: (i) cause written notice thereof to be given
unto FRANCHISEE; (ii) provide all reasonably requested assistance in defense or settlement of such
claim at FRANCHISEE'S expense; and, (iii) retain the right to control the defense of settlement or such
claims.
Section 16. Effective Date. This FRANCHISE shall take effect and be in full force and effect after
approval of the City ofYelm City Council via an Ordinance.
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Section 17. Other Conditions. (None)
This FRANCHISE is not valid until accepted and signed by FRANCHISEE
DATED this 26" day of March 2024, at Yelm, Washington.
YELM CITY Mayor
By:. r --
Mayor Joe DePinto
City of Yelm
Date: 3/26/2024
V EL��MrrppCITY CLERK
Kathy--LYYYinnemeyer
City of Yelm
Date: 3126/2024
YELM�ITY fTO NEV
By� IL
Brent Dille
City of Yelm
Date: 312612024
CONSOLIDATED COMMUNICATIONS OF WASHINGTON COMPANY. LLC
(FRANCHISEE)
UBI No. 60A4-378-974
By:1 4�C
Michael J. Shultz
Senior Vice President Regulatory & Public Policy
Date:
r�5T, 1924
WASHINGTON
�,/y��
.AArw HINGTO 1
Meeting Date: March 26`", 2024
CITY COUNCIL AGENDA ITEM SUMMARY
City of Yelm, Washington
AGENDA ITEM: Ordinance 1113, Franchise Agreement
ACTION REQUESTED
Approve Ordinance 1113 establishing a franchise agreement with Consolidated
Communications LLC
KEY FACTS AND INFORMATION SUMMARY:
Larger commercial organizations that have large amounts of infrastructure in city right-of-way
often create franchise agreements to easier maintain and manage that infrastructure. With
Consolidated selling to another entity, it makes sense to replace the original franchise
agreement from 1997 with a new updated agreement that will stick with the new company for
years to come.
ATTACHMENTS:
Ordinance 1113
i, Franchise Agreement
Respectfully Submitted:
Cady Colt
Public Services Director
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