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05 26 2015 Agenda PacketAGENDA YELM CITY COUNCIL MEETING TIIF.Rnay May 9R 9015 R•00 P M Website Viewing: Clicking on agenda items will open associated documents including staff reports, resolutions, ordinances, etc. Note: some agenda items may not have attachments. 1. Call to Order 2. Roll Call 3. Agenda Approval ACTION 4. Special Presentations- none scheduled 5. Public Comment — Please complete a blue speaker's card and present it to the meeting recorder. Comment topics should not appear elsewhere on the agenda. Time (three minutes per speaker) and the number of speakers (five) are limited and may be adjusted to meet agenda requirements. 6. Consent Agenda ACTION a. Minutes; Regular Meeting May 12, 2015 b. Payables Checks # C. YCP- Yelm Area Chamber of Commerce Circus, June 5, 2015, Open to the Public 7. Public Hearings - a. Yelm East Gateway Planned Action pursuant to the State Environmental Policy Act b. Astound Broadband, LLC (DBA Wave) Telecommunication Franchise 8. New Business a. Ordinance No. 1000, Establishing the Yelm East Gateway Planned ACTION Action pursuant to the State Environmental Policy Act Presenter: Grant Beck Attachments: Staff Report, Ordinance No. 1000 b. Ordinance No. 1001, Astound Broadband, LLC (DBA Wave) Franchise ACTION Presenter: Shelly Badger Attachments: Staff Report, Ordinance No. 1001 C. Ordinance No. 999, Chapter 15.72 YMC — Relating to Franchises and ACTION 15 min adopting conditions for the use of rights -of -way Presenter: Grant Beck Attachments: Staff Report, Ordinance No. 999 d. Yelm Avenue Sidewalk Improvement Construction Award to Iversen ACTION 10 min and Sons, Inc Presenter: Shelly Badger Attachments: Staff Report, 9. Old Business — none scheduled 10. Council and Mayor Councilmember Foster represents Yelm on the following committees. • Thurston County Solid Waste • Nisqually River Council Advisory Committee (SWAC) • Yelm Finance Committee Councilmember Baker represents Yelm on the following committees. • Intercity Transit Board • Yelm Adult Community Center Councilmember Isom represents Yelm on the following committees. • Thurston Regional Planning Yelm Economic Development Council Committee (TRPC) • Yelm Finance Committee Councilmember Littlefield represents Yelm on the following committees. • Thurston County HOME Yelm Finance Committee Consortium Councilmember Wood represents Yelm on the following committees. • (TRPC) Transportation Policy • Yelm Transportation Committee Board • TComm 911 Admin Board Councilmember Garmann represents Yelm on the following committees. • Yelm Transportation Committee Thurston County Law and Justice Councilmember Hendrickson represents Yelm on the following committees. • Medic One Yelm Emergency Operations Board Mayor Harding represents Yelm on the following committees. • Thurston County Economic • Yelm Finance Committee Development Council • Yelm Emergency Operations Board • Yelm Transportation Committee • Thurston County Mayor's Forum • Yelm Economic Development • (TRPC) Transportation Policy Committee Board 11. Executive Session -none scheduled 12. Correspondence (Correspondence is available upon request) Thurston County Solid Waste Reduction News, May 19, 2015 Thurston County News Release from Auditor Mary Hall, May 19, 2015 Chamber of Commerce After Hours May 21, 5 -7pm The Yelm Business Association, May 15, 2015 13. Adjourn Upcoming Meetings Council Study Session, Wednesday, May 27, 2015, 5:00 pm, Public Safety Building Regular City Council Meeting, Tuesday, June 9, 2015, 6:00 pm, Public Safety Building Regular City Council Meeting, Tuesday, June 23, 2015 6:00 pm, Public Safety Building CITY OF YELM MEETING INFORMATION All regular Yelm City Council meetings are audio recorded. A $5.00 per CD (prepaid) fee is required. For information about obtaining a copy of the proceedings, please call 360.458.8402. Public comments are welcome. However, in order to proceed with scheduled agenda items the allowable time per speaker is limited to 3 minutes and the number of speakers limited to five. Comments during the public comment portion of the meeting should not be associated with measures or topics appearing elsewhere on the agenda and should not address topics for which public hearings have been conducted or are anticipated. It is the City of Yelm's policy to provide reasonable accommodations for people with disabilities. If you are a person with a disability and in need of reasonable accommodations to conduct business or participate in government processes or activities, please contact Janine Schnepf, at 360.458.8402 at least four (4) working days prior to the scheduled event. The City of Yelm is an equal opportunity provider and employer. The Preliminary Agenda and Approved Council Minutes are available at AwL , ie I rn wwa.us Agenda Item 6. a. Minutes Page 1 of 3 YELM CITY COUNCIL REGULAR MEETING TUESDAY, MAY 12, 2015 MINUTES 1. Mayor Harding called the meeting to order at 6:00 pm. 2. Roll Call Present: JW Foster, Joe Baker, Bob Isom, Jennifer Littlefield, Tracey Wood, Ken Garmann and Russ Hendrickson. Agenda Approval 15 -035 MOTION BY JOE BAKER APPROVING THE AGENDA AS PRESENTED. CARRIED. 4. Special Presentations - Bike Commuter Month Mayor Harding read the Proclamation and presented it to Duncan Green, Intercity Transit Bicycle Commuter Month Coordinator. Mr. Green thanked the Mayor and Council for the proclamation. This is the 281h Annual Bicycle Commuter Contest and he would like to encourage people to bike to work instead of driving. This is the 81h year in a row that Washington has been recognized as the Bike Friendliest state. Last year more than 1450 participants rode over 100,000 miles and reduced the CO2 emissions by 55 tons. They hope to break those records in 2015. Councilmember Baker thanked Duncan Green and stated it is a great thing you are doing. Mayor Harding also thanked Mr. Green. 5. Public Comment - David Pierce, Thurston County resident thanked the Mayor and Council for their service. Mr. Pierce stated he is against Title 26 of the Thurston County Code relating to code compliance. He does not feel that attaching a misdemeanor to a land use violation is right. Mr. Pierce urged Council to vote no on Title 26. Christine Hardy, Thurston County resident lives by the Highway 510 Alternate and frequently walks the paved path and picks up garage and debris. Ms. Hardy would like to spread the word that there is a lot of garage to be picked up and requested help keeping the 510 Alternate clean. Mayor Harding thanked Ms. Hardy for coming tonight and addressing the Council. He also stated that this subject came up at the City Beautification meeting and different programs were discussed. Washington State Department of Transportation has jurisdiction over the Hwy 510 Alternate. Ms. Hardy has seen Yelm Public Works employees cleaning up the roundabout and she appreciates their hard work. Mayor Harding stated the committee is looking into multiple angles and programs to keep the area clean. 6. Consent Agenda Minutes - Regular Meeting April 28, 2015 & Study Session April 29, 2015 Payables - Checks #64582 - #64684 Totaling $1,017,704.88. 15 -036 MOTION BY TRACEY WOOD APPROVING THE CONSENT AGENDA AS PRESENTED. CARRIED. 7. Public Hearing -none scheduled 8. New Business - none scheduled 9. Old Business -none scheduled 10. Mayor and Council Initiatives Page 1 of 3 Agenda Item 6. a. Minutes Page 2 of 3 Councilmember Baker attended the Intercity Transit Board meeting and reported they authorized more bus shelters in Thurston County. There will be one in Yelm. They are also looking for Yelm High School students to join the citizen advisory committee. Councilmember Baker reported that improvements are being made to the Olympia Transit Center and the walk -a -thon throughout some Thurston County schools went well. Councilmember Isom attended the Thurston County HOME Consortium committee meeting in Councilmember Littlefield's absence. Councilmember Isom reported that they looked at the RFP Committee recommendations for the distribution of the 2015 funds and South County did not receive any funding this yea r. Councilmember Littlefield thanked Councilmember Isom for attending the Thurston County HOME Consortium meeting in her absence. Councilmember Wood attended the TComm 911 Admin Board meeting and stated the Next Generation 911 phone system update is complete and they are currently working out the bugs. Councilmember Hendrickson attended the Yelm Emergency Operations Board meeting and reported the Thrive meals will be available next week and there was more discussion regarding the fuel alternatives. The notification system update is moving forward. Mayor Harding attended the Yelm Emergency Operations Board meeting as well and thought it was very informative. Mayor Harding attended the Thurston County Economic Development Council meeting and reported that they have a new program that will begin with Roxy Radio and will be putting out an EDC Minute broadcast throughout the week with different sponsors. Mayor Harding was asked to help facilitate a Visioning session for the City of Tenino in which 40 people attended. Mayor Harding will be attending an upcoming Tenino Council meeting to present the minutes from that meeting and do a presentation on the next steps for them. Mayor Harding also attended the City of Yelm Beautification Committee meeting where they continue to discuss beautification programs like adopt a highway program', events and areas in general that could be improved in our area. There will be a program that will be unveiled soon where service men and women will be recognized in the community with banners on the light poles. Council will learn more at the next Study Session. Councilmember Foster asked how Spring Clean Up went last weekend. Mayor Harding stated it was again a successful event. The dumpsters were filled and the event went well. The City of Yelm partners with Pacific Disposal to bring in dumpsters and collect yard debris or any other items from the community for no charge. All residents were mailed a permit to attend the event. Councilmember Littlefield asked for an update on the Skate Park Conceptual Design that was presented to the Stakeholders group for approval. Mayor Harding stated that the Stakeholders group, which is made up of BCRA Design, New Line Skate parks, skateboarding youth and city staff, came up with a fantastic design. Mayor Harding is thoroughly impressed by the young people on the committee who thought about not only the design elements but also, how it would fit into the community. The committee will come up with a final design to go to bid after Page 2 of 3 Agenda Item 6. a. Minutes Page 3 of 3 reviewing all the comments from the last meeting. The Skate Park is scheduled to be completed later this year. Councilmember Baker asked for an update on the Mosman Realignment Project and stated it is a hazardous intersection. Mayor Harding stated the paving window from Washington State Department of Transportation (WSDOT) started in May. There was a redesign of the light poles in the intersection and is currently awaiting approval from WSDOT. 11. Executive Session - none scheduled 12. Correspondence included - Comcast Channel Changes, April 28, 2015 2015 AWC Annual Conference, June 23 -26, 2015 Thurston County Chamber of Commerce Voice Magazine, May /June 2015 Municipal Research News, Spring 2015 13. Adjourned at 6:33 pm. Attest: Ron Harding, Mayor Lori Mossman, Deputy City Clerk Page 3 of 3 Park Use Re nest Form for YeIm City Park (Located at & �- r-1- da�w ,Up Street (SR 507) and Mosman Avenue) Completion of this form is required to 'reserve` the Pavilion area at Yelm City Park, and/or for one of the events Iisted below"`_ As per the YeIm Municipal Code (YMC) Title 9, Chapter 9,68 — The Yelm City Park is open to the public, and for all events not requiring the approval of the City Council, is available on a "first come first served basis." The following events reatuire City Council approval: *Circus, carnival and traveling exhibition, "any religious or political meeting, am „ anycommunity witf ..." event. Yelm City Park Facilities: (AIl available on "first corne first served basis:'— except * Pavilion). Restroorns I Sall Field I Stage V/� " "�,d TIME GROUP SIZE Booths Pla Pavilion ground / (Center covered w tI/ tables). with picnic I hereby agree on my part and for the organization i represent to abide by the City of Yelm Parks rules and policies (as per the YeIm Municipal Code) related to the use of park facilities which includes the following section on "applicant's responsibility." s Applicant is responsible for obtaining all necessary permits, including appropriate health permit as needed. • Any applicant using park grounds and facilities accepts financial responsibility for any damage done to said grounds. Application for use of a park facility wiII constitute acceptance by the applicant of the responsibility stated above and willingness to comply with all rules and regulations regarding the use of park facilities as prescribed by the City Council of the City of Yelm. In the event of damage, applicant will accept the City Council's estimate of the amount of same. The applicant must exercise the utmost care in tl)e use of Yeln,i's parks and agrees to protect ndernnify and save the City of Yelm harmless frorn use of requested facilities. Groupsforganizahons f 'community-wide' events must provide the city with proof of self - Insurance. Adult leaders of organizations using park facilities wilt remain with their groups during all activities and will be responsible for tame observance of all rater;;. All organizations and groups wits, in all cases, clean and put in order the park grounds used by them before leaving. • Consumption of any intoxicating liquor on park premises without first obtaining lawful authority, is considered an act constituting disorderly conduct, Smoking tobacco products by use of cigarette, cigar, pipe or any other smoking device inside the boundaries of any park, without first obtaining lawful authority, is unlawful. Remaining after closing time prohibited. Hours of park accessibility at all parks is as follows - Winter hours: 6 am to 8 pm, (October 1 to March 34) and Summer hours: 6 am to I I pm (April 1 to September 30.) • * A $25 refundable cleaning deposit is required when reserving' the City Park Pavilion facility, and must be paid at time of request submittal_ Upon inspection of the park area by city staff after your function, the deposit you provided will be refunded during the next regular payment period. Currently there is not a fee charged for use of the Parks, but donations are gladly accepted. ■ The City of Yelm is not responsible for Iost and/or stolen items on city park property. Yelm City Park is a p4blic park, and is available on a "first tonne first served basis." Please be aware that when you reserve the pavilion facility, this does not restrict other activities In other areas of the park. _ w. ■ PIease initial that you have read and understand all of the above rules and or person ma C DW Agenda Item 6. c. Park Request Policy Number. CPS- 1879133 Date Entered: 0 20 201. MIDDfYYYYI CERTIFICATE OF LIABILITY INSURANCE DATE tM M 01 THIS CERTIFICATE 1S ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an .ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the Certificate holder In Iieu of such endorsernent(s). PRODUCER CONTACT Stillwell Insurance Agency NAME: 9 PHONE (253)531-4181 Pacific Ave #102 19,E {253y 531 -4181 µµµWW WWWW mt�I {253) 536- 089 E•MA,IL Tacoma, WA 48444 ADDREiS_S; ---- ................ -. .. .. .. ....., IN SURER(S) AFFORDING COVERAGE NAtC 4 INSURED Yelm Area Chamber of Commerce PO Box 444 Yelm, WA 58597 COVERAGES CERTIFICATE NUMBER; INSURER A INSURER B „ SCottSdale Insurance Company' INSURER C INSURER D u INSURER E INSURER F' REVISION NUMBER- 105 YelM Aye W THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT. TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS, INSR ADDL SUER POLICY EFF POLlCYExP TYPE OF INSURANCE POLICY NUMBER IiYIMlDDfMn I rMom IYYYYk LTR iN4r] WVp LIMITS ------------------- COMMERCIAL GENERAL LIABILITY A EACH OCCURRENCE S i win ()()n x DAMAGE TO RENTED i i CLAIMS -MADE OCCUR CPS- 1879133 11/19/2014 '11119/2615 PREWSES (Ea occuarrenco) S 1,000,000 7) S 1. P E RSON A & ADV IN Y 000 si, 000,000 GEWL AGGREGATE LIMIT APPLIES PER, GENERAL AGGREGATE S 2,000,000 P4TLBG "P JEC Loc PRODUCTS - CO MPIOP AGG ,. S 2,000,000 OTHER: S ------------ - ..._... -------- ----- - _— _______________�. AUTO MOSiLE LIABILITY COMBINED SINGLE LIMIT ........ ......... S .......... ... (Ea mccibunl) ANY AUTO BODILY INJURY (Per person) S' ALL OWNED SCHEDULED 80DILY INJURY (Per accidenq S AUTOS AUTOS NON -OWNED PR OP ER TY DAAMA G E S ., HIRED AUTOS AUTOS (FelYacridaMl ._____.- _,_,_ ........,. ..... LIRE'... ---- - - - - -- ------- I'.,..„.- m...,.,...,., OCCUR ,.......,. EACH OCCURRENCE S EKCESELLA S LIMAS CLAIM MADE „. -.... AGGREGATE S. R.L:[D 0...R'. U NTII NS .. ., m ................... m,,.......,._....,......... ............................... ------------ ...........,..,m.... _.__ .I WORKERS COMPENSATION PER OTH- - - -- -- AND EMPLOYERS' LIABILITY Y f N __ STATUTE ,. _ER ANY PROPRIE TORIPARTNE RIE XEC U TIVE E..L EACH ACCIDENT S OFFICERfMEMBER EXCLUDED) ❑NIA ... (Mandatory in NH) EL DISEASE - EA EMPLOYEE $ IY yes. describe under DESCRitl6' T ON' OF OPERATIONS 0aldw E-L DISEASE • POLICY LIMIT ;S .........,.� .. . - ------------- .................. ., ,. ..... _ ....... __ .. ...... ........ _________ _ ... -.__ __...__.._.`.____ ......___ DESCRIPTION OF OPERATIONS f LOCATIONS VEMCL ES (AGO RD 707, AddRio naI Remo *S Se 11 edule, may be attactled if more space is required) ........... ..... ... ... ....�....... Circus /III II I Il.il Ij., II Ii � I CERTIFICATE HOLDER CANCELLATION City Of Ya] At SHOULD ANY OF THE ASDVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL HE DELIVERED IN 105 YelM Aye W ACCORDANCE WITH THE POLICY PROVISIONS. Yelm, WA 98597 AUTHORIIED REPRESENTATIVE © 7588 -2014 ACORD CORPORATION. Alt rights reserved. ACORD 25 (2014101) The ACORD name and logo are registered marks of ACORD Producedusing Forms Boss Plus software www..Farms8oss comIrnpressivsPublishing S0o-208 -1877 To: Mayor Ron Harding Yelm City Council Agenda Item 8. a. Yelm E. Gateway Planned Action Page 1 of 11 City of Yelm From: Tami Merriman, Associate Planner STAFF REPORT Date: May 15, 2015 (for May 26, 2015 City Council Meeting) Subj: East Gateway Planned Action Recommendation Adopt Ordinance No. 1000 establishing the Yelm East Gateway Planned Action pursuant to the State Environmental Policy Act. Background The owners of the undeveloped commercial properties in the area of Grove Road and Walmart Boulevard petitioned the City to conduct an environmental review of the potential development of this area. Specifically, the property owners wished to understand the impacts and required mitigation measures which would be required to undertake commercial development in order to understand the costs associated with the development of the property. A Planned Action is a tool that the City of Yelm may use to provide regulatory certainty and encourage economic development. This tool is permitted by state law (RCW 43.21C.031 and WAC 197 -11 -164) and uses up -front State Environmental Policy Act (SEPA) review for a subarea plan or a distinct geographic area as a way to streamline review for subsequent projects that are consistent with the plan. It can also help attract growth and development to designated areas of the City. Reviewing the properties' impacts all together, as a planned action, provides a coordinated development strategy. The City of Yelm has prepared a Draft Environmental Impact Statement (EIS) for the East Yelm Gateway Planned Action, accepted public review and comment on the Draft EIS, and issued a Final EIS on April 7, 2015. The EIS covered transportation and high groundwater impacts and pr oposed potential mitigation measures for both these elements of the environment. The entire environmental review process was funded by the property owners. Agenda Item 8. a. Yelm E. Gateway Planned Action Page 2 of 11 To implement the mitigation measures proposed in the EIS outside the normal development process, the City Council may adopt a Planned Action Ordinance. If adopted, development within the planned action area may proceed through a streamlined environmental review process if the proposed development is consistent with the EIS. Current Situation The City Council may approve, approve with amendments, or deny the adoption of the proposed Planned Action. Staff recommends that the Council adopt Ordinance 1000 establishing the planned action and adopting mitigation measures for impacts to cultural resources, high groundwater, and transportation. Agenda Item 8. a. Yelm E. Gateway Planned Action Page 3 of 11 City of Yeh4 Community Development DepartmerM 105 Yelm Avertue West Y�Itn, WA 98,597 The Telm City Council has scheduled a public hearing to receive comments on Ordinance 1OOiO establishing the Yelm East Gateway Planned Action pursuant to the State Environmental PoHcy ,kct. The property owners in the East Gateway area of Yelm, in the vicinity of Grove Road and SR 507, prepared an Environmental Impact Statement to determine required mitigation measures for the commercial development of this area, specifically relating to transportation and high groundwater impacts, The City issued a Final Environmental Impact Statement which identifies impacts and potential mitigation measures from the development of this area. A planned action ordinance has been prepared to establish specific mitigation measures for future development, which would not need to undergo further environmental review, if consistent with the proposed planned action, CREEMIMMUS-311121 For additional information, p�ease contact Grant Beck, at 360-458-3835. Written comments will be received up to the close of the publ'ic hearing. Written comments may be submitted at the hearing, or may be mailed to Grant Beck, City of Yelm, 105 Yelm Avenue West, Yelm, WA 98597 It is the City • Yelm's policy to provide reasonable accommodations for people with disabilities. If you are a person with a disabifity in need of accommodations to conduct business • to participate in government processes or activities, please contact Janine Schnepf, at 360-458- 8402 at least five working days prior to the scheduled event. � /r anine Schnepf, City Clerk .', Published: Nisqually Valley News, May 15, 2015 *'osted Yelm City Hall and Yelm Timberiand Library Agenda Item 8. a. Yelm E. Gateway Planned Action Page 4 of 11 CITY OF YELM ORDINANCE NO. 1000 AN ORDINANCE of the City of Yelm establishing the Yelm East Gateway Planned Action pursuant to the State Environmental Policy Act WHEREAS, the City of Yelm is required to plan under Section 36.70A.040 RCW; and WHEREAS, in compliance with the Washington State Growth Management Act, Chapter 36.70A RCW, the City of Yelm adopted a Comprehensive Plan in 1994, and has amended the plan on several occasions since that time; and WHEREAS, the State Environmental Policy Act (SEPA) and its implementing regulations authorize cities planning under the Growth Management Act (GMA) to designate planned actions that have had their significant impacts adequately addressed in an Environmental Impact Statement (EIS) prepared in conjunction with a comprehensive plan, sub -area plan, or a master planned development; and WHEREAS, the City of Yelm in its Joint Comprehensive Plan, Chapter II GMA Planning Parameters and Appendix F Yelm Vision Plan, addresses the East Planning Area; and WHEREAS, Section 43.21C.031 RCW and Sections 197 -11 -164, 168, and 172 WAC allow and govern the application of a Planned Action designation; and WHEREAS, the designation of a Planned Action expedites the permitting process for subsequent projects whose impacts have been previously addressed in a Planned Action EIS; and WHEREAS, the City of Yelm has prepared the Yelm East Gateway Planned Action EIS under the State Environmental Policy Act, Chapter 43.21C RCW, that considered impacts of the anticipated development within the East Gateway subarea consistent with the Subarea Plan, provides for mitigation measures, and other conditions to ensure future development will not create adverse environmental impacts; and WHEREAS, on February 1, 2013 the City as SEPA lead agency provided public comment opportunities through an EIS 21 -day scoping period, and a final scoping issued on March 11, 2013, in compliance with Section 197 -11- 408 WAC; and WHEREAS, on January 5, 2015, the City issued the Yelm East Gateway Draft EIS, which identified the impacts and mitigation measures associated with planned Yelm East Gateway subarea, and requested public comments within 30 days as allowed in Section 197- 11 -455 WAC; and WHEREAS, after public comment and coordination with all affected parties, the City issued the Yelm East Gateway Final EIS, dated April 7, 2015, which identifies the impacts and mitigation measures associated with planned Yelm East Gateway subarea; and WHEREAS, the City Council held a required community meeting through a public hearing on the Yelm East Gateway Planned Action Ordinance at their regularly scheduled meeting on May 26, 2015; and Agenda Item 8. a. Yelm E. Gateway Planned Action Page 5 of 11 WHEREAS, adopting a SEPA Planned Action for the Yelm East Gateway Planned Action area with appropriate standards and procedures will help achieve permit processing efficiency and promote environmental quality, Now, THEREFORE, the Yelm City Council do ordain as follows: SECTION 1. PURPOSE. The City of Yelm declares that the purpose of this ordinance is to: 1. Combine environmental analysis with land use planning; and 2. Set forth a procedure designating certain project actions in the Yelm East Gateway sub -area as "Planned Actions" consistent with Section 43.21C.031 RCW; and 3. Streamline and expedite land use permit review process by relying on completed and existing environmental analysis for the Planned Action area; and 4. Apply the Yelm Municipal Code together with the mitigation framework in Section 2 of this Ordinance for the purpose of processing of Planned Action development applications. SECTION 2. PROCEDURES AND CRITERIA FOR EVALUATING AND DETERMINING PROJECTS AS PLANNED ACTIONS. 1. Planned Action Site. The Planned Action designation applies to seven parcels, approximately 46 acres of land, three parcels are north of Yelm Avenue (SR 507) and four parcels are south of Yelm Avenue (SR 507). The parcels are east of Creek Street, Grove Road, and Yelm Creek, west and south of Walmart Boulevard. The parcels and site boundaries are shown in Exhibit A. 2. Environmental Documentation. A Planned Action designation for a site specific application shall be based on the environmental analysis contained in the Yelm East Gateway Planned Action EIS completed by the City on April 7, 2015. The term "EIS" means the Yelm East Gateway Planned Action Environmental Impact Statement composed of the Draft EIS (January 5, 2015) and the Final EIS (April 7, 2015). The mitigation document Exhibit B, is based upon the analysis of the EIS. The mitigation document, together with the applicable City codes and standards shall provide the framework for the decisions by the City to impose conditions on a Planned Action project. 3. Planned Action Qualifications. a. Land Uses: The following shopping center uses are the primary uses analyzed in the EIS: • Offices • Banks (including drive through) • Health /Fitness • Auto Services • Grocery • Sit Down Restaurants • Retail Shops • Fast Food Restaurants (including drive through) Agenda Item 8. a. Yelm E. Gateway Planned Action Page 6 of 11 b. Development Thresholds. The Planned Action designation applies to future development proposals that cumulatively do not exceed 500,000 square feet of uses on the site and do not exceed the trip generation of 2,000 new -to- network trips as provided in the Traffic Impact Analysis, Appendix A of the EIS. c. The project is located within the Planned Action Area. 4. Planned Action Determination. The following circumstances would not qualify as a Planned Action: a. Proposed development that would exceed the cumulative total of 2,000 PM New -to- network trips. b. A project that would result in a significant change in impacts to any of the environmental elements identified in the EIS. c. Should environmental conditions significantly change from those analyzed in the EIS, the City's SEPA Official may determine that the Planned Action designation is no longer applicable unless additional, supplementary environmental review is conducted, regardless of date. 5. Planned Action Review Criteria a. Uses and activities described in the EIS, subject to the qualifications described in this section, and the mitigation measures in Exhibit B, may be designated Planned Actions pursuant to Section 43.21C.031 RCW. b. The SEPA Official or designee is authorized to designate a project application as a Planned Action pursuant to Section 43.21C.031(2)(a) RCW, if the project meets all of the following conditions: ✓ The project is otherwise exempt from SEPA; ✓ The project is consistent with the City of Yelm Comprehensive Plan adopted under Chapter 36.70A RCW; ✓ The project falls within the Planned Action qualifications identified in this section; ✓ The SEPA Official has determined that the project's adverse impacts are able to be mitigated through the application and /or inclusion of mitigation measures detailed in Exhibit B, Mitigation Measures, as well as other applicable City, county, state, and federal requirements and conditions, which together constitute sufficient mitigation for the significant environmental impacts associated with the proposed project; ✓ The proposed project complies with all applicable local, county, state, and federal regulations, and where appropriate, the proposed project complies with needed variances or modifications or other special permits that have been identified; and ✓ The proposed project is not an essential public facility. Agenda Item 8. a. Yelm E. Gateway Planned Action Page 7 of 11 c. The City shall base its decision on a proposal on review of a development application or an alternative form approved by state law, and review of the application and supporting documentation. 6. Effect of the Planned Action a. Upon designation by the SEPA official that the development proposal within the Planned Action area qualifies as a Planned Action pursuant to this Ordinance and Section 197 -11 -172 WAC, the project shall not be subject to a SEPA threshold determination, an EIS, SEPA appeal, or any other additional review under SEPA. b. Being designated as a Planned Action or a Planned Action Project means that a proposed project has been reviewed in accordance with this Ordinance and found to be consistent with the development parameters and environmental analysis included in the EIS. 7. Planned Action Permit Process. The Community Development Director or designee shall review development applications and determine whether they meet the criteria as Planned Actions under applicable state, federal, and local laws, regulations, codes and ordinances. The review procedure shall consist, at a minimum, of the following: a. Development applications will meet the requirements of the Yelm Municipal Code and the Unified Development Code b. The Community Development Department Director will determine whether the application is complete based on the requirements in Chapter 18.10 YMC. c. After the City receives and reviews a complete application, the SEPA Official shall determine, using the criteria and procedures contained in Section 2.5 above, and Section 197 -11 -172 WAC, whether the project qualifies as a Planned Action. If the project does qualify as a Planned Action, the Community Development Department Director shall notify the applicant, and the project shall proceed in accordance with the appropriate permit procedures, except that no additional SEPA review, threshold determination, or EIS will be required. d. For projects that qualify as Planned Actions, public notice shall be provided in compliance with Section 197 -11 -172 (3) WAC "Public notice for projects that qualify as planned actions shall be tied to the underlying permit. If notice is otherwise required for the underlying permit, the notice shall state that the project has qualified as a planned action..." e. If a project is determined not to be a Planned Action, the Community Development Director shall notify the applicant and prescribe a SEPA review procedure consistent with the City SEPA procedures and state laws. The notice to the applicant shall describe the elements of the application that result in disqualification as a Planned Action. This decision may be appealed pursuant to Section 18.10.100 YMC. f. Projects disqualified as Planned Action may use or incorporate relevant elements of the environmental review analysis in the EIS prepared for the Planned Action, as well as other environmental review documents to assist in meeting SEPA requirements. Agenda Item 8. a. Yelm E. Gateway Planned Action Page 8 of 11 The SEPA Official may choose to limit the scope of the SEPA review to those issues and environmental impacts not previously addressed in the EIS. SECTION 3. PLANNED ACTION AREA MONITORING. The Planned Action Ordinance shall be reviewed periodically by the Community Development Director to determine its continuing validity with respect to the environmental conditions of the project area and vicinity and applicability of Planned Action requirements, including a review prior to the end of 2025 to ensure continued applicability of the transportation analysis and impacts. Based upon this review, this Ordinance may be amended as needed, and another review period specified. SECTION 4. CONFLICT. In the event of a conflict between the Ordinance and /or any mitigation measures imposed related to the Ordinance and any ordinance or regulation of the City, the provisions of the Ordinance shall control. SECTION S. SEVERABILITY. If any section, subsection, paragraph, sentence, clause or phrase of this Ordinance is declared unconstitutional or invalid for any reason, such decision shall not affect the validity of the remaining parts of this Ordinance. SECTION 6. EFFECTIVE DATE. This ordinance shall take effect five days after passage, approval, and publication. PASSED BY THE CITY COUNCIL OF YELM THIS 26TH DAY OF MAY, 2015. Ron Harding, Mayor Authenticated: Janine A. Schnepf, City Clerk PUBLISHED: Nisqually Valley News, June 5, 2015 EFFECTIVE DATE: June 10, 2015 Agenda Item 8. a. Yelm E. Gateway Planned Action Page 9 of 11 Agenda Item 8. a. Yelm E. Gateway Planned Action Page 10 of 11 Exhibit B Ordinance 1001 Mitigation Measures A. Air quality 1. Dust suppression techniques shall be incorporated in grading and construction activities. Water trucks will be kept on site at all times during construction. 2. Any proposed uses that are considered major employers as defined by Section 70.94.524 RCW shall develop and implement programs to reduce drive -alone commute trips and encourage use of alternative transportation modes. 3. Construction vehicles and delivery trucks shall be routed and scheduled to avoid peak travel times and shall not be left idling on site in order to reduce the amount of drive time and vehicle emissions. B. Cultural resources 1. If an archaeological resource is discovered during construction site earthwork, all activity in the immediate vicinity of the find shall cease pending notification of the Nisqually Indian Tribe and the Department of Archaeology and Historic Preservation (DAHP). Consultation with DAHP shall take place and, if deemed necessary after consultation with DAHP, a qualified archaeologist will be retained by the applicant to assess the significance of the find and develop a preservation plan which shall be implemented by the applicant. C Mazama pocket gopher 1. Prior to construction of any individual development proposal within the planned action area, a critical areas report shall be prepared to the standards of the Yelm Critical Areas Code. If gophers are present on the site, a mitigation plan shall be prepared pursuant to the Critical Areas Code that is approved by the City and implemented by the applicant. 2. Compliance with Yelm's requirements under the Critical Areas Code does not ensure compliance with the provisions of the Endangered Species Act, as enforced by the US Fish and Wildlife Service. D. Transportation 1. Driveways shall be designed to accommodate the ultimate configuration of the coordinated conceptual access plan, but based on a Site Circulation Study, may be constructed to a lesser configuration with property and frontage improvement setbacks to accommodate the ultimate configuration. 2. Each development within the project area shall design internal site circulation systems to accommodate connections to adjacent properties. Internal connections shall be designed to accommodate through- traffic within the project area between individual parcels. 3. Prior to any development approval within the planned action area, a conceptual design for a two -lane modern roundabout at the intersection of Grove Road and Yelm Avenue (SR 507) shall be prepared by the applicant and reviewed and approved by the City of Yelm and the Washington State Department of Agenda Item 8. a. Yelm E. Gateway Planned Action Page 11 of 11 Transportation. The design shall include a construction sequencing plan for the construction of a single lane roundabout within the full design and shall specify the conditions under which a two lane roundabout is required. 4. Prior to occupancy of any development on parcels located south of Yelm Avenue and west of the extension of the Yelm Loop (SR 510 Alt) that provide access to Yelm Avenue (SR 507) and creates fewer than 25 peak PM trips, the southbound approach lanes of the Grove Road /Yelm Avenue intersection shall be constructed. The intersection shall be controlled by stop signs on the north and south approaches until a roundabout is triggered. 5. Prior to occupancy of any development on parcels located south of Yelm Avenue and west of the extension of the Yelm Loop (SR 510 Alt) that provide access to Yelm Avenue (SR 507) and creates 25 or more peak PM trips the single lane roundabout shall be constructed. 6. Prior to any development approval within the planned action area, a conceptual design for the completion of the Walmart Boulevard (SR 510 Alt) and Yelm Avenue (SR 507) intersection shall be prepared by the applicant and approved by the City of Yelm and the Washington State Department of Transportation. The design shall include a construction sequencing plan for the construction of: a. A new northbound approach with a dedicated left turn lane and a combined through /right turn lane b. Improving the southbound approach with a dedicated left turn lane, a dedicated through lane, and a dedicated right turn lane. C. Improving the westbound approach with a dedicated left turn lane, a dedicated through lane and a combined through /right turn lane. d. Improving the eastbound approach with a dedicated left turn lane, a dedicated through lane and a combined through /right turn lane. 7. Any development approval within the planned action area shall require the dedication of any necessary right of way for a single lane roundabout and the initial intersection improvement at Yelm Avenue (SR 507) and Walmart Boulevard (SR 510 Alt). No buildings, parking, or other impediments shall be permitted within the future right of way for the two lane roundabout at Grove Road and the full intersection improvements of Yelm Avenue (SR 507) and Walmart Boulevard (SR 510 Alt). To: Mayor Ron Harding Yelm City Council Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Pagel of 63 City of Yelm From: Shelly Badger, City Administrator STAFF REPORT Date: May 15, 2015 (for May 26, 2015 City Council Meeting) Subj: Franchise — Astound Broadband (d /b /a Wave) Recommendation Adopt Ordinance No. 1001 granting to Astound Broadband, LLC, a nonexclusive telecommunications franchise to install and operate a telecommunications system within public rights of way in the City of Yelm. Background Astound Broadband, LLC, doing business as Wave, applied to the City for a telecommunications franchise to install and operate a fiber optic based telecommunications system within the public rights of way of the City of Yelm. The initial project would be to construct fiber optic facilities through the City to provide telecommunications, private line, and internet access services to major employers, schools, government buildings, and health care facilities, as well as provide service to existing cell phone towers. The current phase of construction would include a new fiber optic line from 1St Street, along Mosman Avenue, 3rd Street, McKenzie Street, 4th Street and then to Yelm Avenue and SR 507. The cable would be attached to existing Puget Sound Energy power poles except at 5 corners and at Wal Mart, where the cable will be placed underground. The City contracted with the law firm of Kenyon Disend, PLLC to represent the City's interests in negotiating a franchise with Wave. Kenyon Disend specializes in Municipal Law and franchises. Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 2 of 63 Key provisions of the Franchise Ordinance, as more fully described in the overview prepared by Kenyon Disend and attached to this staff report, include: • The Franchise is non - exclusive, meaning the City remains free to grant a similar franchise to another qualified telecommunications system operator during the same time period. • The Franchise does not include the right to install or operate cable television or cellular services. • Wave must still obtain other licenses, permits, easements, or agreements needed to place devices on other City or private property. • Wave must comply with applicable land -use and development regulations. • If approved by Council, Wave has 30 days to accept the Franchise by paying administrative costs of the City, submitting proof of financial security, submitting required insurance certificates, and paying the costs of publication of the Franchise Ordinance. • Wave is permitted to transfer the Franchise to another provider, with notice to the City. • The term is 10 years following acceptance by Wave. The Mayor may renew the Franchise for an additional 5 years without further action by the City Council. • The City retains full authority to use the public rights -of -way. • The City has disclaimed liability to Wave for any damages relating to the Wave's activities within the Franchise area. • Wave indemnifies the City and its officials and employees for claims by third parties that arise out of or relate to Wave's activities. • Wave is required to obtain a performance bond in the amount of $50,000. • Wave is required to maintain commercial general liability insurance with minimum coverage limits. • Wave is required to reimburse the City for costs it incurs in approving and inspecting Wave's work on its facilities. • Wave is required to reimburse the City up to $3,000 per year for costs incurred in administering the Franchise. • Wave must pay the costs of publication of the Franchise Ordinance and any other public notices prior to any public hearings on the Franchise Ordinance. • Wave may not commence work without the City's prior approval of its design documents. • The City may review and approve Wave's design documents. • Wave is required to use suitable traffic control. • The City may require Wave to relocate any facilities when reasonably necessary for public projects in the rights -of -way. Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 3 of 63 • Wave has a duty to leave the public rights -of -way and other property disturbed by its work in as good or better condition than before work starts. The City Council has the legal authority to deny Wave's franchise application. However, a denial cannot be arbitrary and capricious or for an unlawful reason. RCW 35.99.030(3) requires that a denial be "supported by substantial evidence contained in a written record." Current Situation The City Council may approve, approve with amendments, or deny the adoption of the proposed Franchise Ordinance. Kenyon Disend and City staff have reviewed the proposed franchise and have determined that the terms and conditions adequately protect the City's interest in its rights of way and recommend that Ordinance No. 1001 be adopted by the City Council. Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 4 of 63 City of Yelm Community Development Department 105 Yelm Avenue West Yelm, WA 98597 Yelm City Council Notice of Public Hearing Astound Broadband Franchise The Yelm City Council has scheduled a public hearing to receive comments on Ordinance 1001 granting to Astound Broadband, LLC, a nonexclusive telecommunications franchise to install and operate a telecommunications system within public rights of way. Astound proposes initially to install fiber optics through Yelm on existing Puget Sound Energy power poles and, at 5 corners, underground. The hearing is scheduled for 6:00 PM on Tuesday, May 26, 2015, and will take place in the Council Chambers /Court Room at the Yelm Public Safety Building, 206 McKenzie Street SE. For additional information, please contact Grant Beck, at 360- 458 -3835. Written comments will be received up to the close of the public hearing. Written comments may be submitted at the hearing, or may be mailed to Grant Beck, City of Yelm, 105 Yelm Avenue West, Yelm, WA 98597. It is the City of Yelm's policy to provide reasonable accommodations for people with disabilities. If you are a person with a disability in need of accommodations to conduct business or to participate in government processes or activities, please contact Janine Schnepf, at 360- 458 -8402 at least five working days prior to the scheduled event. Janine Schnepf, City Clerk Published: Nisqually Valley News, May 15, 2015 PLEASE DO NOT PUBLISH BELOW THIS LINE Posted Yelm City Hall and Yelm Timberland Library Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 5 of 63 City of Yelm City Council Study Session April 29, 2015, 5:00 P.M. OVERVIEW OF TELECOMMUNICATIONS FRANCHISE ORDINANCE FRANCHISEE Astound Broadband, LLC, d /b /a "Wave" AUTHORIZED SERVICES Fiber -Optic Telecommunications Services FRANCHISE AREA Public Rights -of -Way within the Jurisdictional Boundaries of the City of Yelm DURATION 10 Years Franchise Grant • The Franchise Ordinance authorizes Wave to construct, maintain, operate, and repair a fiber -optic broadband telecommunications system using the public rights -of -way within city limits. The Franchise is non - exclusive, meaning the City remains free to grant a similar franchise to another qualified telecommunications system operator during the same time period, so long as the terms are competitively neutral and nondiscriminatory consistent with federal law. • The Franchise does not include the right to install or operate cable television or commercial mobile radio (i.e., cellular) services. The City may impose additional compensation requirements (e.g., right -of -way permit fees and, if a future cable franchise ordinance is approved, cable fees) for use of public rights -of -way to provide services beyond those specifically authorized in the Franchise Ordinance. • The Franchise Ordinance does not exempt Wave from having to obtain other licenses, easements, or agreements needed to place devices on other City or Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 6 of 63 private property (e.g., on utility poles, pipelines, or buildings), nor does it exempt Wave from having to comply with applicable land -use or development regulations (e.g., conditional use permits or zoning variances). Conditions of Acceptance If the City Council passes and approves the Franchise Ordinance, Wave has 30 days to accept the Franchise by paying certain administrative costs of the City, submitting proof of financial security, submitting required insurance certificates, and paying the costs of publication of the Franchise Ordinance. Otherwise, the Franchise will be deemed rejected by Wave. Transferability of Franchise With prior notice to the City, Wave is permitted to transfer the Franchise to another provider, so long as the transferee agrees in writing to assume and be responsible for all of Wave's obligations and guarantees their performance. The transferee must also supply the required insurance certificates, security fund, and performance bond. Term of Franchise and Renewal The Franchise runs for a term of 10 years following acceptance by Wave. Within 180 days of expiration, and with the agreement of the parties, the Mayor may renew the Franchise for an additional 5 years without further action by the City Council. Powers Retained by City The City retains full authority to use the public rights -of -way, including construction of sanitary and storm sewers; paving, widening, or altering rights -of -way; laying down water mains; etc. The City also retains its full police powers to make and enforce laws, although it may not enact new ordinances or amendments that unilaterally alter or impair material rights or benefits granted to Wave under this Franchise Ordinance. Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 7 of 63 Liability Protections • The City has disclaimed liability to Wave (and its contractors) for any damages relating to the design, condition, or safety of the public rights -of -way within the Franchise area, except for damages due to gross negligence or willful misconduct by the City. • Wave has also agreed to a very broad indemnification of the City and its officials and employees for claims by third parties that arise out of or relate to Wave's occupation and use of the public rights -of -way, its operation of the Telecommunications System, environmental contamination that Wave causes or contributes to, and any acts or omission of Wave or its contractors, agents, and employees in connection with its work in the rights -of -way. The City retains liability for third -party damages caused by its own gross negligence or intentional misconduct. • Wave is required to obtain a performance bond in the amount of $50,000 to ensure full and faithful performance of Wave's obligations under the Franchise. • Wave and its subcontractors are required to maintain commercial general liability insurance with minimum coverage limits. For Wave, the applicable limits are $2,000,000 per occurrence, $4,000,000 general aggregate, and $1,000,000 products /completed operations aggregate. For subcontractors, the applicable limits are $1,000,000 per occurrence, $2,000,000 general aggregate, and $1,000,000 products /completed operations aggregate. Wave is also required to maintain umbrella or excess liability insurance with limits of at least $5,000,000. Reimbursement of City Costs • Wave is required to reimburse the City for costs (including labor, materials, equipment, and consultant fees) it incurs in approving and inspecting Wave's Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 8 of 63 work on its facilities (e.g., the City's review of design documents and inspections for compliance with the City's Design Standards) to the extent such costs are not included in the issuance of regulatory permits (construction permits, street excavation permits, clearing and grading permits, etc.). Any required work that the City has to perform after Wave has failed to perform it will be charged to Wave. The City is required to invoice Wave for such costs. • Additionally, Wave is required to reimburse the City up to $3,000 per year for costs incurred in administering the Franchise or amending the Ordinance at Wave's request or for its benefit. Finally, Wave must pay the costs of publication of the Franchise Ordinance and any other public notices prior to any public hearings on the Franchise Ordinance. • Federal law prohibits the imposition of telecommunications franchise fees if they may prohibit or have the effect of prohibiting the provision of services. Certain fees may be permissible if limited to what is necessary for management and regulation of use of the public rights -of -way. 47 U.S.C. § 253. Construction Standards, Permit Application, and Approval Process • Wave may not commence work without the City's prior approval of its design documents. The City may require Wave to install facilities at a particular time, or in a particular place or manner as a condition of access, and may require removal of any facilities not installed in compliance with the current edition of the City Standards for Public Work Engineering and Construction, or any of the other federal, state, and City standards and codes specified in Section 7.3 of the Franchise Ordinance. • The City may review and approve Wave's design documents with respect to, among other things: location, alignment, and depth; any measures needed to preserve the free flow of traffic; structural integrity, functionality, and Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 9 of 63 compatibility with roadways, sidewalks, traffic signals, etc.; ease of road maintenance; appearance; and compatibility with the City's longer -term plans. Before performing any work in public rights -of -way, Wave must apply for and obtain all regulatory permits required by City ordinance or rule, at Wave's expense. • Any contractors or subcontractors of Wave must adhere to the conditions and limitations of the Franchise Ordinance, and Wave must ensure that they are familiar with the Franchise Ordinance and that all work performed by them is in compliance with it. • Wave is required to use suitable barricades, flags, lights, and other measures as required for the safety of the general public and to prevent accidents and injuries to persons, vehicles, or other property due to work done in public rights -of -way. Right of Inspection Upon 72 hours' notice, or without notice in case of emergency, the City may inspect Wave's facilities to determine compliance with the Franchise Ordinance or other applicable requirements. The City retains the power to immediately stop all work that the City learns or determines is non - compliant or is being performed in an unsafe or dangerous manner, and may compel Wave to take actions necessary to correct the unsafe condition or otherwise bring the work into compliance. Facility Relocations • The City may require Wave to alter, adjust, or relocate any facilities when reasonably necessary for the construction, repair, or improvement of any public rights -of -way in furtherance of the public health, safety, or welfare. The City must give 180 days' notice, and must make reasonable efforts to provide an alternate location for Wave's facilities. The City also must, within budgetary Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 10 of 63 constraints, consider any alternative designs proposed by Wave to mitigate the impact on its facilities. Wave may seek reimbursement of its relocation costs when authorized by law to do so. • If there is an immediate threat to public health or safety, the City may require Wave, at Wave's expense, to shut down, relocate, remove, or modify its facilities in a public right -of -way, without regard to fault. A party seeking alteration, adjustment or temporary relocation of Wave facilities for something other than a public improvement project must compensate Wave for its time, engineering, design, and material costs. After construction of any facilities, or upon request by the City, Wave must provide up -to -date maps showing the horizontal and vertical location and configuration of located or relocated facilities in the public rights -of -way. Wave does not, however, warrant the accuracy of such maps; it represents only that its Telecommunications Systems are shown in approximate locations. Duty of Restoration Wave has a duty to leave the public rights -of -way and other property disturbed by its work in as good or better condition as it was before commencement of construction. Wave must complete restoration work to the reasonable satisfaction of the City, as determined by the City Engineer, and warrant restoration work for at least two years. Restoration work for adjacent private property disturbed or damaged by Wave must be performed to the private owner's reasonable satisfaction. Revocation of Franchise Upon an uncured default by Wave, the City may give notice of intent to revoke the Franchise. If Wave objects to the revocation, it may object in writing and provide its rationale. The City may then conduct a public hearing, at which evidence and witness Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 11 of 63 may be examined, before deciding whether to terminate or revoke the Franchise. The City Council's decision is final, subject only to other appeal rights provided by law. Denial of Franchise The City Council has the legal authority to deny Wave's franchise application. However, a denial cannot be arbitrary and capricious or for an unlawful reason. RCW 35.99.030(3) requires that a denial be "supported by substantial evidence contained in a written record." Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 13 of 63 CITY OF YELM, WASHINGTON ORDINANCE NO. 1001 AN ORDINANCE OF THE CITY OF YELM, WASHINGTON, GRANTING TO ASTOUND BROADBAND, LLC, A LIMITED LIABILITY COMPANY, A NONEXCLUSIVE TELECOMMUNICATIONS FRANCHISE TO INSTALL, CONSTRUCT, MAINTAIN, REPAIR, AND OPERATE A TELECOMMUNICATIONS SYSTEM WITHIN THE PUBLIC RIGHTS OF WAY; PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE WHEREAS, Astound Broadband, LLC, a Washington limited liability company d/b /a Wave (hereinafter "Franchisee ") has made application to the City to construct, install, maintain, repair and operate a fiber optic -based telecommunications system with the public rights -of -way of the City; and WHEREAS, Franchisee represents that it has the legal, technical and financial qualifications to operate in the rights -of -way of the City as a wireline telephone business and a telecommunications company within the meaning of Title 80 RCW; and WHEREAS, based on representations and information provided by Franchisee, and in response to its request for the grant of a franchise, the City Council has determined that the grant of a nonexclusive franchise, on the terms and conditions herein and subject to applicable law, are consistent with the public interest; and WHEREAS, the City is authorized by applicable law to grant such a nonexclusive franchises within the boundaries of the City; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF YELM, WASHINGTON, DO ORDAIN AS FOLLOWS: Table of Contents. ARTICLE 1. DEFINITIONS ARTICLE 2. FRANCHISE GRANT 2.1 Public Right -of -Way Use Authorized 2.2 Authorized Services 2.3 No Rights Shall Pass to Franchisee by Implication 2.4 Interest in the Public Right -of -Way; Release; Indemnity Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 14 of 63 2.5 Rights Subordinate 2.6 Condition of Franchise Area 2.7 Franchise Nonexclusive 2.8 Transfer 2.9 Street Vacation 2.10 Reservation of City Use of Public Right -of -Way ARTICLE 3. COMPLIANCE WITH LAWS /ORDER OF PRECEDENCE 3.1 3.2 3.3 3.4 Alteration of Material Terms and Conditions Compliance with Laws Reservation of Rights/Wavier Change in Form of Government ARTICLE 4. ACCEPTANCE 4.1 Acceptance 4.2 Failure to Timely File Acceptance 4.3 Effective Date; Term 4.4 Effect of Acceptance 4.5 Effect of Expiration/Termination ARTICLE 5. PROTECTION OF THE CITY AND PUBLIC 5.1 Limitation of Liability 5.2 Insurance Requirements - Attached Exhibit D 5.3 Financial Security - Attached Exhibit E 5.4 Contractors /Subcontractors 5.5 Liens 5.6 Financial Conditions ARTICLE 6. ENFORCEMENT AND REMEDIES 6.1 6.2 6.3 6.4 6.5 Communications and Discussion Remedies Right to Cure Default Termination/Revocation Receivership ARTICLE 7. GENERAL CONDITIONS UPON USE OF PUBLIC RIGHTS -OF -WAY 7.1 Regulatory Permit 7.2 Submission; Approval of Design Documents 7.3 Compliance with Standards /Codes 7.4 Conditions Precedent to Work 7.5 Work in the Public Rights -of -Way Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 15 of 63 7.6 Alterations 7.7 General Conditions 7.8 Facility Relocation at Request of the City 7.9 Movement of Facilities for Others 7.10 Movement of Facilities During Emergencies 7.11 Record of Installations 7.12 Restoration of Public Rights -of -Way, Public and Private Property 7.13 Approvals 7.14 Abandonment of Facilities ARTICLE 8. MISCELLANEOUS 8.1 Headings 8.2 Entire Agreement 8.3 Incorporation of Exhibits 8.4 Calculation of Time 8.5 Time Limits Strictly Construed 8.6 No Joint Venture 8.7 Approval Authority 8.8 Binding Effect upon Successors and Assigns 8.9 Waiver 8.10 Severability 8.11 Sims 8.12 Discriminatory Practices Prohibited 8.13 Notice 8.14 Survival of Terms 8.15 Force Mai cure 8.16 Attorneys' Fees 8.17 Venue /Choice of Law 8.18 Publication FXATRTTC- A. Form of Acceptance of Franchise B. Form of Transfer Agreement C. Description of Franchise Area D. Insurance Requirements E. Financial Security F. Contractor /Subcontractor Insurance Requirements ARTICLE 1. DEFINITIONS. For the purposes of this Franchise and the Exhibits attached hereto, the following terms, phrases, words and their derivations where capitalized shall have the meanings given herein. Words not defined herein shall have the meaning given in Title 15 of the Yelm Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 16 of 63 Municipal Code. Words not defined herein or in Title 15 of the Yelm Municipal Code, shall have the meaning given pursuant to such federal statutes, rules, or regulations that apply to and regulate the services provided by the Franchisee. Words not otherwise defined, shall be given their common and ordinary meaning. When not inconsistent with the context, words used in the present tense include the future, words in the plural include the singular, and words in the singular include the plural. The word "shall" is always mandatory and not merely directory. References to governmental entities (whether persons or entities) refer to those entities or their successors in authority. If specific provisions of law, regulation or rule referred to herein be renumbered, then the reference shall be read to refer to the renumbered provision. "Affiliate" when used in connection with Franchisee means any Person who owns or controls, is owned or controlled by, or is under common ownership or control with Franchisee. "City" shall mean the City of Yelm, a municipal corporation organized as a non- charter code city, operating under the laws of the state of Washington. "Construct" shall mean to construct, reconstruct, install, reinstall, align, realign, locate, relocate, adjust, affix, attach, remove, or support. "Default" shall mean any failure of a Party to keep, observe, or perform any of its duties or obligations under this Franchise. "Design Document(s)" shall mean the plans and specifications for the Construction of the Facilities meeting the minimum applicable general plan submittal requirements for engineering services plan review as set forth in the City's Design Standards manual, illustrating and describing the refinement of the design of the Telecommunications System Facilities to be Constructed, establishing the scope, relationship, forms, size and appearance of the Facilities by means of plans, sections and elevations, typical construction details, location, alignment, materials, and equipment layouts. The Design Documents shall include specifications that identify utilities, major material and systems, Public Right -of -Way improvements, restoration and repair, and establish in general their quality levels. "Direct Costs" shall mean and include all costs and expenses incurred by the City and directly related to a particular activity or activities, including by way of example: i. All costs and expenses of materials, equipment, supplies, utilities, consumables, goods and other items used or incorporated in connection with and in furtherance of such activity or activities and any taxes, insurance, and interest expenses related thereto, including costs for crews and equipment; ii. All costs and expenses of labor inclusive of payroll benefits, non- productive time and overhead for each of the labor classifications of the employees performing work for the activity and determined in accordance with the City's ordinary governmental accounting procedures; and, Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 17 of 63 iii. All costs and expenses to the City for any work by consultants or contractors to the extent performing work for a particular activity or activities, including by way of example and not limitation, engineering and legal services. "Dispute" shall mean a question or controversy that arises between the Parties concerning the observance, performance, interpretation or implementation of any of the terms, provisions, or conditions contained in this Franchise or the rights or obligations of either Party under this Franchise. "Effective Date" shall mean and refer to that term as it is defined at Section 4.3 herein. "Emergency" shall mean and refer to a sudden condition or set of circumstances that, (a) significantly disrupts or interrupts the operation of Facilities in the Public Rights - of -Way and Franchisee's ability to continue to provide services if immediate action is not taken, or (b) presents an imminent threat of harm to persons or property if immediate action is not taken. "Environmental Law(s)" means any federal, state or local statute, regulation, code, rule, ordinance, order, judgment, decree, injunction or common law pertaining in any way to the protection of human health or the environment, including without limitation, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Toxic Substances Control Act, and any similar or comparable state or local law. "Facility" or "Facilities" means any part or all of the facilities, equipment and appurtenances of Franchisee whether underground or overhead and located within the Public Rights -of -Way as part of the Franchisee's Telecommunications System, including but not limited to, conduit, case, pipe, line, fiber, cabling, equipment, equipment cabinets and shelters, vaults, generators, conductors, poles, carriers, drains, vents, guy wires, encasements, sleeves, valves, wires, supports, foundations, anchors, transmitters, receivers, antennas, and signage. "Franchise" shall mean the grant, once accepted, giving general permission to the Franchisee to enter into and upon the Public Rights -of -Way to use and occupy the same for the purposes authorized herein, all pursuant and subject to the terms and conditions as set forth herein. "Franchisee" shall mean Astound Broadband, LLC d/b /a Wave and any of its Affiliates. "Franchise Area" shall mean collectively or individually the Public Rights -of- Way located within the area described in Exhibit "C ". "Franchise Ordinance" shall mean the Ordinance authorizing the Franchise. Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 18 of 63 "Hazardous Substance" means those substances which have been recognized as dangerous or potentially dangerous to health, welfare, or to the environment by any federal, municipal, state, City, or other governmental or quasi - governmental authority, and/or any department or agency thereof, those substances which use, or have as its component thereof or therein, asbestos or lead -based paint; and petroleum oil and any of its fractions; and as such has been defined, listed or regulated under any Environmental Law. "Law(s)" shall mean all present and future applicable laws, ordinances, rules, regulations, resolutions, environmental standards, orders, decrees and requirements of all federal, state, and local governments, the departments, bureaus or commissions thereof, or other governmental authorities, including the City acting in its governmental capacity. References to Laws shall be interpreted broadly to cover government actions, however nominated, and include laws, ordinances and regulations now in force or hereinafter enacted or amended. "Noticed Party" shall mean the Party in receipt of notice that it is in Default. "Person" means and includes any individual, corporation, partnership, association, joint- stock - company, limited liability company, political subdivision, public corporation, taxing districts, trust, or any other legal entity, but not the City or any Person under contract with the City to perform work in the Public Rights -of -Way. "Party(ies)" shall mean either the City or the Franchisee or both. "Private telecommunications system" means a telecommunications system controlled by a person or entity for the sole and exclusive use of such person, entity, or affiliate thereof, including the provision of private shared telecommunications services by such person or entity. "Private telecommunications system" does not include a system offered for hire, sale, or resale to the general public. "Public Rights -of -Way" means the surface of, and the space above and below, any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, way, lane, public way, drive, circle or other public right -of -way, including, any easement now or hereafter held by the City within the corporate boundaries of the City as now or hereafter constituted for the purpose of public travel, and over which the City has authority to grant permits, licenses or franchises for use thereof, or has regulatory authority thereover, excluding railroad rights -of -way, airports, harbor areas, buildings, parks, poles, conduits, and excluding such similar facilities or property owned, maintained or leased by the City in its proprietary capacity or as an operator of a utility. "Public Works Director" means and refers to the Public Works Director for the City or his or her designee or such officer or person who has been assigned the duties of public works director or his or her designee. Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 19 of 63 "Regulatory Permit" means a permit issued under the regulatory authority of the City that provides specific requirements and conditions for Work to Construct Facilities within the Public Rights -of -Way and includes by way of example and not limitation, a construction permit, building permit, street excavation permit, barricade permit, and clearing and grading permit. "Remedy ", "Remediate" and "Remedial Action" shall have the same meaning as these are given under the Model Toxics Control Act (Chapter 70.105D RCW) and its implementing regulations at Chapter 173 -340 WAC. "Service" shall mean the service or services authorized to be provided by the Franchisee under the terms and conditions of this Franchise. "Telecommunications Service" means the electronic transmission, conveyance, or routing of voice, data, audio, video, or any other information or signals to a point, or between or among points. Telecommunications Service includes such transmission, conveyance, or routing in which computer processing applications are used to act on the form, code, or protocol of the content for purposes of transmission, conveyance, or routing without regard to whether such service is referred to as voice over internet protocol services or is classified by the federal communications commission as enhanced or value added. Telecommunications Service excludes, radio and television audio and video programming services, regardless of the medium, including the furnishing of transmission, conveyance, and routing of such services by the programming service provider. Radio and television audio and video programming services include but are not limited to cable service as defined in 47 U.S.C. Sec. 522(6) and audio and video programming services delivered by commercial mobile radio service providers, as defined in section 20.3, Title 47 C.F.R. "Transfer" shall mean any transaction in which all or a portion of the Telecommunications System is sold, leased or assigned (except a sale or transfer that results in removal of a particular portion of the Telecommunications System from the Public Rights -of -Way); or the rights and/or obligations held by the Franchisee under the Franchise are transferred, sold, assigned, or leased, in whole or in part, directly or indirectly, to another Person. A transfer of control of an operator shall not constitute a transfer as long as the same person continues to hold the Franchise both before and after the transfer of control. "Telecommunications System" shall mean collectively the Facilities that together with other facilities, appurtenances and equipment of Franchisee or other Persons are used to provide Telecommunications Services. "Work" shall mean any and all activities of the Franchisee, or its officers, directors, employees, agents, contractors, subcontractors, volunteers, invitees, or licensees, within the Public Rights -of -Way to Construct the Facilities. ARTICLE 2. FRANCHISE GRANT. Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 20 of 63 2.1 Public Right -of -Way Use Authorized. Subject to the terms and conditions of this Franchise, the City hereby grants to Franchisee a nonexclusive Franchise authorizing the Franchisee to Construct, maintain, repair and operate Facilities in, along, among, upon, across, above, over, and under the Public Rights -of -Ways located within the Franchise Area. 2.2 Authorized Services. The grant given herein expressly authorizes Franchisee to use the Public Rights -of -Way to Construct, maintain, repair and operate its Facilities as part of its Telecommunications System to provide Telecommunications Services. This authorization is limited and is not intended nor shall it be construed as granting Franchisee or any other Person the right, duty or privilege to use its Facilities or the Public Rights -of- Way to provide Services not specifically authorized herein. This Franchise shall not be interpreted to prevent the City from lawfully imposing additional conditions, including additional compensation conditions, if authorized by applicable law for use of the Public Rights -of -Way, should Franchisee provide Service other than Service specifically authorized herein. However, this Franchise shall not be read as a concession by the Franchisee that it needs authorization to provide any services not otherwise authorized herein. 2.3 No Rights Shall Pass to Franchisee by Implication. No rights shall pass to the Franchisee by implication. Without limiting the foregoing and by way of example, this Franchise shall not include or be a substitute for: 2.3.1 Any other authorization required for the privilege of transacting and carrying on a business within the City that may be lawfully required by the Laws of the City; 2.3.2 Any Regulatory Permit required by the City for Public Rights -of- Way users in connection with operations on or in Public Rights -of -Way or public property; or 2.3.3 Any licenses, leases, easements or other agreements for occupying any other property or infrastructure of the City or other Persons to which access is not specifically granted by this Franchise including, without limitation, agreements for placing devices on poles, light standards, in conduits, in vaults, in or on pipelines, or in or on other structures or public buildings. 2.3.4 Any permits or other authorizations that may be required under the land use code and development regulations of the City for the construction of Facilities within a particular zoning district in the City, including by way of example and not limitation, a conditional use permit or a variance. 2.4 Interest in the Public Right- of- Wav /Release/Indemnity. This Franchise shall not operate or be construed to convey title, equitable or legal, in the Public Rights - of -Way. This Franchise shall be deemed to grant no more than those rights which the City may have the undisputed right and power to give. The grant given herein does not confer rights other than as expressly provided in the grant hereof and is subject to the Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 21 of 63 limitations in applicable Law. Such right may not be subdivided or subleased to a person other than the Franchisee except as set forth in Section 2.8 below. CITY DOES NOT WARRANT ITS TITLE OR PROPERTY INTEREST IN OR TO ANY FRANCHISE AREA NOR UNDERTAKE TO DEFEND FRANCHISEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE. Franchisee hereby releases City from any and all liability, cost, loss, damage or expense in connection with any claims that City lacked sufficient legal title or other authority to convey the rights described herein. In case of eviction of Franchisee or Franchisee's contractors by anyone owning or claiming title to, or any interest in the Franchise Area, City shall not be liable to Franchisee or Franchisee's contractors for any costs, losses or damages of any Party. 2.5 Rights Subordinate. Franchisee further acknowledges that Franchisee's rights under this Franchise to Construct Facilities in the Franchise Area, are subject and subordinate to all outstanding rights and encumbrances on the City's Public Rights -of- Way. 2.6 Condition of Franchise Area. Franchisee has inspected or will inspect the Franchise Area described on the attached Exhibit C, and enters upon each such Franchise Area with knowledge of its physical condition and the danger inherent in operations conducted in, on or near any Franchise Area. Franchisee acknowledges that Hazardous Substances or other adverse matters may affect the Franchise Area that were not revealed by Franchisee's inspection. CITY HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, AS TO THE DESIGN OR CONDITION OF THE FRANCHISE AREA, INCLUDING THE ENVIRONMENTAL CONDITION OF THE FRANCHISE AREA, ITS MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, THE QUALITY OF THE MATERIAL OR WORKMANSHIP OF THE PUBLIC RIGHT -OF -WAY, OR THE CONFORMITY OF ANY PART OF THE PUBLIC RIGHT -OF -WAY TO ITS INTENDED USES. CITY SHALL NOT BE RESPONSIBLE TO FRANCHISEE OR ANY OF FRANCHISEE'S CONTRACTORS FOR ANY DAMAGES RELATING TO THE DESIGN, CONDITION, QUALITY, SAFETY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY PART OF THE PUBLIC RIGHT -OF -WAY PRESENT ON OR CONSTITUTING ANY FRANCHISE AREA, OR THE CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED USES, EXCEPT TO THE EXTENT ANY DAMAGES RELATING TO THE CONDITION, QUALITY, OR SAFETY OF ANY PART OF THE PUBLIC RIGHT -OF -WAY ARISE FROM THE CITY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. 2.7 Franchise Nonexclusive. This Franchise shall be nonexclusive. Subject to the terms and conditions herein, the City may at any time grant authorization to others to use Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 22 of 63 the Public Rights -of -Way for any lawful purpose on terms and conditions that are competitively neutral and nondiscriminatory among similarly situated franchisees; provided that, no other Person holding a valid franchise shall have superior rights to Franchisee to use and occupy the space within the Public Right -of -Way lawfully occupied by Franchisee Facilities, except as provided pursuant to Section 7.8 (Facility Relocation) hereof 2.8 Transfer. Franchisee may Transfer this Franchise after prior written notice to the City and Transferee's written commitment, in substantially the form of the agreement attached hereto as Exhibit "B ", delivered to the City, that transferee(s) shall thereafter be responsible for all obligations of Franchisee with respect to the Franchise and guaranteeing performance under the terms and conditions of the Franchise and that transferees will be bound by all the conditions of the Franchise and will assume all the obligations of its predecessor. Such a Transfer shall relieve the Franchisee of any further obligations under the Franchise, including any obligations not fulfilled by Franchisee's Transferee; provided that, the Transfer shall not in any respect relieve the Franchisee, or any of its successors in interest, of responsibility for acts or omissions, known or unknown, or the consequences thereof, which acts or omissions occur prior to the time of the Transfer. This Franchise may not be transferred without filing or establishing with the City the insurance certificates, security fund and performance bond as required pursuant to this Franchise and paying all Direct Costs to the City related to the Transfer. Notwithstanding the foregoing, notice to the City shall not be required for a mortgage, hypothecation or an assignment of Franchisee's interest in the Franchise in order to secure indebtedness. Franchisee may, without the prior written notice to or consent of the City: (i) lease the Telecommunications System, or any portion thereof, to another Person; (ii) grant an Indefeasible Right of User Interest in the Telecommunications System, or any portion thereof, to another Person; or (iii) offer or provide capacity or bandwidth in its Telecommunications System to another Person; provided that, Franchisee at all times retains exclusive control over its Telecommunications System and remains responsible for Constructing its Facilities pursuant to the terms and conditions of this Franchise, and provided further that, Franchisee may grant no rights to any such Person that are greater than any rights Franchisee has pursuant to this Franchise; such Persons shall not be construed to be a third -party beneficiary hereunder; and, no such Person may use the Telecommunications System for any purpose not authorized herein. 2.9 Street Vacation. If any Public Right -of -Way or portion thereof used by Franchisee is to be vacated during the term of this Franchise, unless as a condition of such vacation the Franchisee is granted the right to continue to occupy the vacated Public Right -of -Way, Franchisee shall, without delay or expense to City, remove its Facilities from such Public Right -of -Way, and restore, repair or reconstruct the Public Right -of- Way where such removal has occurred, and place the Public Right -of -Way in such condition as may be required by the City. Nothing herein is intended to operate as a waiver of Franchisee's right or entitlement under state law or City ordinance to receive notice of or to object to vacation of the Public Right -of -Way occupied by Franchisee Facilities. Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 23 of 63 2.10 Reservation of City Use of Public Right -of -Way. Nothing in this Franchise shall prevent the City from constructing sanitary or storm sewers; grading, changing grade, paving, repairing, widening or otherwise altering any Public Right -of -Way; laying down, repairing or removing water mains; or installing conduit or fiber optic cable. ARTICLE 3. COMPLIANCE WITH LAWS /ORDER OF PRECEDENCE. 3.1 Alteration of Material Terms and Conditions. Subject to federal and State preemption, the material rights, benefits, obligations or duties as specified in this Franchise may not be unilaterally altered or impaired by the City through subsequent amendments to, or enactment of, any ordinance, regulation, resolution or other enactment of the City. Notwithstanding the foregoing, the City specifically reserves its right to make and enforce those laws that are within the lawful exercise of the City's police power. 3.2 Compliance with Laws. Except as provided herein pursuant to Section 3. 1, the Franchisee agrees to comply with all applicable Laws as now or hereafter in effect, and any lawful orders from regulatory agencies or courts with jurisdiction over Franchisee and its Facilities, or over the City and the Public Rights -of -Way. 3.3 Reservation of Rights/Wavier. The City expressly reserves all of its rights, authority and control arising from any relevant provisions of federal, State or local Laws granting the City rights, authority or control over the Public Rights -of -way or the activities of the Franchisee. 3.4 Change in Form of Government. Any change in the form of government of the City shall not affect the validity of this Franchise. Any governmental unit succeeding the City shall, without the consent of Franchisee, succeed to all of the rights and obligations of the City provided in this Franchise. ARTICLE 4. ACCEPTANCE. 4.1 Acceptance. Within thirty (30) days after the passage and approval of this Franchise by the City Council, this Franchise shall be accepted by Franchisee by filing with the City Clerk during regular business hours, or to the City Attorney, three originals of this Franchise with its original signed and notarized written acceptance of all of the terms, provisions and conditions of this Franchise in conformance with Exhibit "A ", together with the following, if required herein: 4.1.1 Payment in readily available funds of the administrative costs for issuance of the Franchise in conformance with the requirements of Section 5.6 herein. 4.1.2 Submission of proof of financial security in accordance with Section 5.3 herein. 4.1.3 Submission of an insurance certificate in accordance with Section 5.2 herein. Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 24 of 63 4.1.4 Payment of the costs of publication of this Franchise Ordinance in conformance with the requirements of Section 8.18 herein. In the event that the thirtieth day falls on a Saturday, Sunday or legal holiday during which the City is closed for business, the filing date shall fall on the last business day before such Saturday, Sunday or legal holiday. 4.2 Failure to Timely File Acceptance. The failure of Franchisee to timely file its written acceptance shall be deemed a rejection by Franchisee of this Franchise, and this Franchise shall then be void. 4.3 Effective Date: Term. 4.3.1 Effective Date. Except as provided pursuant to Section 4.2 of this Franchise, the Effective Date of this Ordinance and Franchise shall be 12:01 a.m. on the day following Franchisee's acceptance under Section 4.1 and not later than the 31st day following passage and approval of this Franchise by the City Council. This Franchise and the rights, privileges, and authority granted hereunder and the relationship established hereby shall take effect and be in force from and after the Effective Date of this Ordinance for the term hereof. 4.3.2 Term. The term of this Franchise shall commence on the Effective Date and shall continue in full force and effect for a period of ten (10) years, unless sooner terminated, revoked or rendered void. No more than one hundred eighty (180) days prior to expiration, the Parties may mutually agree in writing to extend the term of this Franchise for an additional five (5) year term upon the same terms and conditions as provided herein. The City Manager is authorized to execute such an extension on behalf of the City without further action or approval by the City Council. 4.4 Effect of Acceptance. By accepting the Franchise the Franchisee: 4.4.1 Accepts and agrees to comply with and abide by all of the lawful terms and conditions of this Franchise; 4.4.2 Acknowledges and agrees that it has carefully read the terms and conditions of this Franchise; it unconditionally accepts all of the terms and conditions of this Franchise; it unconditionally agrees to abide by the same; it has relied upon its own investigation of all relevant facts; it has had the assistance of counsel; it was not induced to accept a Franchise; and, that this Franchise represents the entire agreement between the Franchisee and the City; 4.4.3 Warrants that Franchisee has full right and authority to enter into and accept this Franchise in accordance with the terms hereof, and by entering into or performing this Franchise, Franchisee is not in violation of its charter or by -laws, or any law, regulation, or agreement by which it is bound or to which it is subject; and Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 25 of 63 4.4.4 Warrants that Franchisee has full right and authority to enter into and accept this Franchise in accordance with the terms hereof, that the signatories for Franchisee hereto are authorized to sign the Franchise acceptance, and that the joinder or consent of any other party, including a court, trustee, or referee, is not necessary to make valid and effective the execution, delivery, and performance of this Franchise. 4.5 Effect of Expiration/Termination. Upon expiration, revocation or termination of the Franchise without renewal or other authorization, Franchisee shall no longer be authorized to operate the Facilities within the Franchise Area and shall, to the extent it may lawfully do so, cease operation of the Facilities. Forthwith thereafter, except as provided in this Section, or as otherwise provided by ordinance, Franchisee shall: (1) remove its Facilities from the Public Rights -of -Ways and restore the Public Right -of -Way in accordance with Section 7.12.1 (Restoration of Public Rights -of -Way) hereof, (2) sell its Facilities to another entity authorized to operate Facilities within the Franchise Area (which may include the City) in accordance with the transfer provisions under Section 2.8; or (3) abandon any Facilities in place in the Public Rights -of -Way in accordance with Section 7.14 (Abandonment of Facilities) hereof. ARTICLE 5. PROTECTION OF THE CITY AND PUBLIC. 5.1 Limitation of Liability. 5.1.1 INDEMNITY/RELEASE /DEFENSE. TO THE FULLEST EXTENT PERMITTED BY LAW, FRANCHISEE SHALL RELEASE, INDEMNIFY, DEFEND, AND HOLD HARMLESS THE CITY AND THE CITY'S SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS (ELECTED OR APPOINTED), EMPLOYEES, AND AGENTS (COLLECTIVELY, "INDEMNITEES ") FOR, FROM, AND AGAINST CLAIMS, LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS, JUDGMENTS, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS, REASONABLE ATTORNEYS' FEES, AND COSTS OF INVESTIGATION, REMOVAL AND REMEDIATION, AND GOVERNMENTAL OVERSIGHT COSTS), ENVIRONMENTAL OR OTHERWISE (COLLECTIVELY "LIABILITIES ") ARISING OUT OF, RESULTING FROM, OR RELATED TO (IN WHOLE OR IN PART): 5.1.1.1 FRANCHISEE'S OCCUPATION AND USE OF THE PUBLIC RIGHT -OF -WAY; 5.1.1.2 FRANCHISEE'S OPERATION OF THE TELECOMMUNICATIONS SYSTEM; 5.1.1.3 ENVIRONMENTAL CONTAMINATION OF THE PUBLIC RIGHTS -OF -WAY CAUSED BY, AGGRAVATED BY, OR CONTRIBUTED TO, IN WHOLE OR IN PART, BY FRANCHISEE OR ITS CONTRACTORS, SUBCONTRACTORS, OR AGENTS (BUT ONLY TO THE EXTENT OF SUCH AGGRAVATION OR CONTRIBUTION); OR Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 26 of 63 5.1.1.4 ANY ACT OR OMISSION OF FRANCHISEE OR FRANCHISEE'S CONTRACTORS, SUBCONTRACTORS, AGENTS AND SERVANTS, OFFICERS OR EMPLOYEES IN CONNECTION WITH WORK IN THE PUBLIC RIGHTS -OF -WAY. THE ONLY LIABILITIES WITH RESPECT TO WHICH FRANCHISEE'S OBLIGATION TO RELEASE AND INDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE LIABILITIES TO THE EXTENT PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF AN INDEMNITEE OR FOR LIABILITIES THAT BY LAW THE INDEMNITEES CANNOT BE INDEMNIFIED FOR. This covenant of indemnification shall include, but not be limited by this reference, to Liabilities arising, (1) as a result of the negligent acts or omissions of Franchisee, its agents, servants, officers, or employees in barricading, instituting trench safety systems or providing other adequate warnings of any excavation, construction, or work in any public Rights -of -Way or other public place in performance of work or services Permitted under this Franchise; and (2) solely by virtue of the City's ownership or control of the Public Rights -of -Way or other public properties occupied or used by Franchisee. The fact that Franchisee carries out any activities under this Franchise through independent contractors shall not constitute an avoidance of or defense to Franchisee's duties of defense and indemnification under this Section 5.1. 5.1.2 Tender of Defense. Upon written notice from the City, Franchisee agrees to assume the defense of any lawsuit, claim or other proceeding brought against any Indemnitee by any entity, relating to any matter covered by this Franchise for which Franchisee has an obligation to assume liability for and /or save and hold harmless any Indemnitee. Franchisee shall pay all costs incident to such defense, including, but not limited to, attorneys' fees, investigators' fees, litigation and appeal expenses, settlement payments, and amounts paid in satisfaction of judgments. Further, said indemnification obligations shall extend to claims that 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 and may participate in the defense of a claim and, in any event, Franchisee may not agree to any settlement of claims financially affecting the City without the City's prior written approval which shall not be unreasonably withheld. If separate representation to fully protect the interests of both Parties is necessary, such as a conflict of interest between the City and the counsel selected by Franchisee to represent the City, Franchisee shall select additional counsel with no conflict with the City. Franchisee's indemnification obligations do not apply to any lawsuit, claim, or proceeding, including any settlement or compromise of a claim that is not reduced to a suit, if the City fails to provide timely notice to Franchisee, or if City enters into a settlement or compromise, or consents to entry of judgment, without Franchisee's prior written consent. 5.1.3 Refusal to Accept Tender. In the event Franchisee refuses the tender of defense in any suit or any claim, said tender having been made pursuant to the Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 27 of 63 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 Franchisee, then Franchisee 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. 5.1.4 Title 51 Waiver. THE FRANCHISEE WAIVES IMMUNITY UNDER RCW TITLE 51 AND AFFIRMS THAT THE CITY AND THE FRANCHISEE HAVE SPECIFICALLY NEGOTIATED THIS PROVISION, AS REQUIRED BY RCW 4.24.115, TO THE EXTENT IT MAY APPLY. 5.1.5 Inspection. Inspection or acceptance by the City of any Work performed by Franchisee at the time of completion of construction shall not be grounds for avoidance of any of these covenants of indemnification. 5.2 Insurance Requirements. See Attached Exhibit "D ". 5.3 Financial Securitv. See Attached Exhibit "E ". 5.4 Contractors /Subcontractors. Franchisee contractors and subcontractors performing Work in the Public Rights -of -Way shall comply with such bond, indemnity and insurance requirements as may be required by City code or regulations, or other applicable Law. If no such requirements are set forth in the City code or regulations, the Franchisee contractors and subcontractors shall comply with the requirements set forth in attached Exhibit "17". 5.5 Liens. In the event that any City property becomes subject to any claims for mechanics', artisans', or materialmen's liens, or other encumbrances chargeable to or through Franchisee which Franchisee does not contest in good faith, Franchisee shall promptly, and in any event within 30 days from receipt of written notice of such lien, cause such lien claim or encumbrance to be discharged or released of record (by payment, posting of bond, court deposit, or other means), without cost to the City, and shall indemnify the City against all costs and expenses (including attorneys' fees) incurred in discharging and releasing such claim of lien or encumbrance. If any such claim or encumbrance is not so discharged and released, the City may pay or secure the release or discharge thereof at the expense of Franchisee after first giving Franchisee five business days' advance notice of its intention to do so. Nothing herein shall preclude Franchisee's or the City's contest of a claim for lien or other encumbrance chargeable to or through Franchisee or the City, or of a contract or action upon which the same arose. 5.6 Financial Conditions. 5.6.1 Franchise Fees. During the term of this Franchise, should federal and/or state Law change or the statutory prohibition or limitation upon assessment of Franchise fees be invalidated, amended, or modified allowing revenues derived by Franchisee from any Services provided by Franchisee using the Franchise Area to be Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 28 of 63 subject to a Franchise fee or other fee in lieu of a Franchise fee that was otherwise prohibited or limited on the Effective Date, the City and Franchisee shall in good faith endeavor to negotiate a reasonable Franchise fee or other fee or other consideration in lieu of a Franchise fee, consistent with federal and/or state Law. The fee or other consideration shall be comparable to Franchise or similar fees received by the City, or other cities of comparable population or assessed property value, for other similar uses of the Public Rights -of -Way by similar users. 5.6.2 Reimbursement of Direct Costs of Amendment, Administration, and Renewal. Franchisee shall reimburse the City for the City's Direct Costs relating to the amendment (if requested by or for the benefit of the Franchisee) and administration of this Franchise; provided, however, such reimbursement shall not exceed $3,000 in any calendar year of the initial ten (10) year term of this Franchise. In the event of renewal, the Parties shall renegotiate the annual reimbursement cap on the City's Direct Costs. 5.6.3 Reimbursement of Direct Costs of Design Review and Inspection. City approvals and inspections, as provided for in this Franchise, are for the sole purpose of protecting the City's rights as the owner or manager of the road Public Rights -of -Way and are separate and distinct from the approvals and inspections and fees that may be required pursuant to a Regulatory Permit. Therefore, Franchisee shall reimburse to the City, its Direct Costs of approvals and inspections, to the extent that such Direct Costs are not included in the costs for issuance of and compliance with a Regulatory Permit. Approvals and inspection, by way of example and not limitation, include review of design documents and inspection for compliance with Standards and Design Document submittal. 5.6.4 Franchisee Responsibility for Costs. Except as expressly provided otherwise in this Franchise, any act that Franchisee, its contractors or subcontractors are required to perform under this Franchise shall be performed at their sole cost and expense. 5.6.5 Franchisee Work Performed by the City. Any work performed by the City that Franchisee has failed to perform as required pursuant to this Franchise and which is performed by the City in accordance with the terms of this Franchise, shall be performed at the cost and expense of the Franchisee. Franchisee shall be obligated to pay the Direct Costs to the City for performing such work. 5.6.6 Costs to be Borne by Franchisee. Franchisee shall reimburse the City for all costs of publication of this Franchise, and any notices prior to any public hearing regarding this Franchise, contemporaneous with its acceptance of this Franchise. 5.6.7 Taxes and Fees. Nothing contained in this Franchise Agreement shall exempt Franchisee from Franchisee's obligation to pay any utility tax, business tax, or ad valorem property tax, now or hereafter levied against real or personal property within the City, or against any local improvement assessment imposed on Franchisee. Any fees, charges and/or fines provided for in the City Municipal Code or any other City Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 29 of 63 ordinance, whether pecuniary or in -kind, are separate from, and additional to, any and all federal, state, local, and City taxes as may be levied, imposed or due from Franchisee. 5.6.8 Itemized Invoice. Upon request and as a condition of payment by the Franchisee of Direct Costs payable by Franchisee under this Franchise, City shall submit an itemized billing so as to specifically identify the Direct Costs incurred by the City for each project for which the City claims reimbursement. 5.6.9 Time for Payment. All non - contested amounts owing shall be due and paid within sixty (60) days of receipt of invoice, or itemized invoice if requested; provided that, in the event that an itemized invoice is not provided at the time of receipt of invoice and the City receives a request from Franchisee for an itemized invoice within 30 days of receipt of invoice, such amounts shall be due and paid within sixty (60) days of receipt of the itemized invoice. 5.6. 10 Overdue Payments. Any amounts payable under this Franchise by Franchisee which shall not be paid upon the due date thereof, shall bear interest at the lower of (x) the maximum interest rate allowed by law, and (y) a rate of twelve (12 %) percent per annum. 5.6.11 Contesting charges. Franchisee may contest all or parts of amounts owed within sixty (60) days of receipt of any invoice. The City will investigate Franchisee's contest and will make appropriate adjustments to the invoice, if necessary, and resubmit the invoice to Franchisee. Franchisee shall pay any amounts owning as itemized in the resubmitted invoice which amounts shall be due within thirty (30) days of receipt of the resubmitted invoice. However, Franchisee does not waive its rights to further dispute resolution processes pursuant to Section 6.1 of this Franchise. Submittal of a dispute over amounts owing pursuant to Section 6.1 does not relieve the Franchisee of its obligation to pay amounts due under the resubmitted invoice. 5.6.12 Receivables. Either Party hereto may assign any monetary receivables due them under this Franchise upon notice to the other; provided, however, (i) such transfer shall not relieve the assignor of any of its rights or obligations under this Franchise, and (ii) Franchisee shall have no such notice obligation with respect to any receivables other than those owed by the City. ARTICLE 6. ENFORCEMENT AND REMEDIES. 6.1 Communication and Discussion. The Parties are fully committed to working with each other throughout the term of this Franchise and agree to communicate regularly with each other at all times so as to avoid or minimize Disputes. The Parties agree to act in good faith to prevent and resolve potential sources of conflict before they escalate into a Dispute. The Parties each commit to resolving a Dispute in an amicable, professional and expeditious manner. The Parties further agree that in the event a Dispute arises, they will attempt to resolve any such Disputes through discussions between representatives of each Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 30 of 63 Parry. Each Party will exchange relevant information that will assist the Parties in resolving the Dispute. 6.2 Remedies. The Parties have the right to seek any and all remedies, in equity, at law or in contract. Remedies are cumulative; the exercise of one shall not foreclose the exercise of others. No provision of this Franchise shall be deemed to bar either Parry from seeking appropriate judicial relief. Neither the existence of other remedies identified in this Franchise nor the exercise thereof shall be deemed to bar or otherwise limit the right of either Parry to recover monetary damages, as allowed under applicable Law, or to seek and obtain judicial enforcement by means of specific performance, injunctive relief or mandate, or to commence an action for equitable or other relief, and/or proceed against the other Party and any guarantor for all direct monetary damages, costs and expenses arising from the Default and to recover all such damages, costs and expenses, including reasonable attorneys' fees. The City specifically does not, by any provision of this Franchise, waive any right, immunity, limitation or protection otherwise available to the City, its officers, officials, City Council, Boards, commissions, agents, or employees under federal, State, or local law. 6.3 Right to Cure Default. 6.3.1 Notice. If a Party believes that the other Party is in default, such Parry shall give written notice to the Noticed Party stating with reasonable specificity the nature of the alleged default. The Noticed Party shall have thirty (30) days, or such greater time as specified in the notice or such lesser time as specified in the event that there is an imminent threat of harm to the public health, safety or welfare resulting from the default, from the receipt of such notice to: 6.3.1.1 Respond to the other Party, contesting that Party's assertion that a Default has occurred; or 6.3.1.2 Cure the default; or 6.3.1.3 Notify the other Party that the Noticed Party cannot cure the default within the time provided in the notice, because of the nature of the Default. In the event the Default cannot be cured within the time provided in the notice, the Noticed Parry shall promptly take all reasonable steps to begin to cure the Default and notify the other Parry in writing and in detail as to the exact steps that will be taken and the projected completion date. In such case, the other Parry may set a meeting to determine whether additional time beyond the time provided in the notice is indeed needed, and whether the Noticed Party's proposed completion schedule and steps are reasonable. 6.3.2 Time to Cure. When specifying the time period for cure, the Party giving notice shall take into account, the nature and scope of the alleged Default, the nature Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 31 of 63 and scope of the work required to cure the Default, whether the Default has created or will allow to continue an unsafe condition, the extent to which delay in implementing a cure will result in adverse financial consequences or other harm to the Parry giving notice, and whether delay in implementing a cure will result in a violation of Law or Default of contract. 6.3.3 Failure to Cure. If the Noticed Party fails to promptly commence and diligently pursue cure of a Default to completion to the reasonable satisfaction of the Parry giving notice and in accordance with the agreed upon time line or the time provided for in the Notice of Default, then the parties may pursue any remedies available to them. 6.4 Termination/Revocation. In addition to the remedies available to the City as provided at Law, in equity or in this Franchise, upon a Default without cure, the City may revoke this Franchise and rescind all rights and privileges associated with this Franchise in accordance with the following: 6.4.1 Notice. Prior to termination of the Franchise, the City shall give written notice to the Franchisee of its intent to revoke the Franchise. The notice shall set forth the exact nature of the Default. If Franchisee objects to such termination, Franchisee shall object in writing and state its reasons for such objection and provide any explanation. 6.4.2 Hearing. The City may then seek a termination/revocation of the Franchise in accordance with this Subsection. 6.4.2.1 The City Council, or its designee, shall conduct a public hearing to determine if termination/revocation of the Franchise is warranted. 6.4.2.2 At least fourteen (14) days prior to the public hearing, the City shall issue a public hearing notice that shall establish the issue(s) to be addressed in the public hearing; provide the time, date and location of the hearing; provide that the Hearing Body /Officer shall hear any Persons interested therein; and provide that the Franchisee shall be afforded fair opportunity for full participation, including the right to introduce evidence, to require the production of evidence, to be represented by counsel and to question witnesses. The public hearing notice shall be provided to Franchisee in accordance with Section 8.13 hereof and public notice of the hearing shall be provided in the same manner as notice is provided for regular meetings of the City Council. 6.4.2.3 Within sixty (60) days after the close of the hearing, the City Council shall issue a written decision regarding the termination/revocation of the Franchise. If the City Council has designated another hearing body /officer to conduct the public hearing, such hearing body /officer shall make a recommendation to the City Council within thirty (30) days following the close of the public hearing, and the City Council shall make a decision upon the recommendation of the Hearing Body /Officer after a closed record hearing and within sixty (60) days following receipt of the recommendation of the Hearing Body /Officer. The decision of the City Council shall be final. The Parties recognize that a decision to terminate /revoke a Franchise is not a land use decision that is subject to appeal Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 32 of 63 pursuant to the Land Use Petition Act (Chapter 36.70C RCW). Failure to render a decision within the required time period shall not be a basis for invalidation of the decision that is made. Any appeal to which the Franchisee may be entitled (e.g., constitutional or statutory writ of review) shall be filed within 30 calendar days of issuance of the final decision of the City Council. 6.4.3 Decision to Terminate. The City Council may consider one or more of the following when determining whether or not to terminate /revoke the Franchise based upon the material Default: 6.4.3.1 The history of repeated non - compliance by Franchisee with material terms and conditions of this Franchise; Franchise; 6.4.3.2 Whether other remedies will achieve compliance with this 6.4.3.3 Whether the Franchisee has acted in good faith; 6.4.3.4 Whether the acts or omissions that gave rise to the Default were willful or indifferent to the requirements that gave rise to the Default; 6.4.3.5 Whether the type of services provided by the Franchisee will be available to the general public through other providers; 6.4.3.6 Whether services provided by the Franchisee are essential public services or regulated utilities; 6.4.3.7 The impact or potential impact of the Default upon the public health, safety and welfare; 6.4.3.8 The economic risk the City is exposed to as a result of the Default; 6.4.3.9 Whether consent, permission, adjudication, an order or other authorization of a governmental agency or body, is required as a condition precedent to the City ordering the Franchisee to abandon or remove Facilities from the Public Rights -of -Way or to cease operations (temporarily or otherwise) of the Facilities. 6.4.3.10 Such other facts and circumstances that are relevant to the controversy that gave rise to the Default and/or to whether or not the continued presence and operation of the Franchisee Facilities with the Franchise Area will be harmful to the public health, safety or welfare. 6.5 Receivership. At the option of the City, subject to applicable law and lawful orders of courts of competent jurisdiction, this Franchise may be revoked after the Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 33 of 63 appointment of a receiver or trustee to take over and conduct the business of Franchisee whether in a receivership, reorganization, bankruptcy or other action or proceeding, unless: 6.5.1 The receivership or trusteeship is timely vacated; or 6.5.2 The receiver or trustee has timely and fully complied with all the terms and provisions of this Franchise, and has remedied all defaults under the Franchise. Additionally, the receiver or trustee shall have executed an agreement duly approved by the court having jurisdiction, by which the receiver or trustee assumes and agrees to be bound by each and every term, provision and limitation of this Franchise. ARTICLE 7. CONDITIONS UPON USE OF PUBLIC RIGHTS -OF -WAY. 7.1 Regulatory Permit. If Franchisee has submitted an application for a Regulatory Permit to perform work in the Public Rights -of -Way, the City shall, to the extent practicable, consider such application contemporaneously with the design review requirements hereunder. 7.2 Submission/Approval of Design Documents. 7.2.1 Submission. At the time of application for a Regulatory Permit, or in the event that Franchisee seeks to alter or change the location of Facilities in a Franchise Area, Franchisee shall submit its Design Documents to the City for review and approval in accordance with the City's plan review process. 7.2.2 Use of Public Rights- of -Way. Within parameters reasonably related to the City's role in protecting the public health, safety and welfare and except as may be otherwise preempted by Law, the City may require that Facilities be installed at a particular time, at a specific place or in a particular manner as a condition of access to the proposed Franchise Area and may deny access if Franchisee is not willing to comply with such requirements; and, may require removal of any Facility that is not installed in compliance with the Standards (defined in Section 7.3 below) or which is installed without prior City approval of the time, place, or manner of installation. 7.2.3 Approval of Plans. Work may not commence without prior approval by the City of the Design Documents submitted by the Franchisee, which approval will not be unreasonably withheld, conditioned or delayed. The City may review and approve the Franchisee's Design Documents with respect to: 7.2.3.1 Location /Alignment/Depth; 7.2.3.2 The manner in which the Facility is to be installed; 7.2.3.3 Measures to be taken to preserve safe and free flow of traffic; Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 34 of 63 7.2.3.4 Structural integrity, functionality, appearance, compatibility with and impact upon roadways, bridges, sidewalks, planting strips, signals, traffic control signs, intersections, or other facilities and structures in the Public Rights - of -Way; 7.2.3.5 Ease of future road maintenance, and appearance of the roadway; 7.2.3.6 Compliance with applicable Standards (as defined below) and codes; and 7.2.3.7 Compliance and compatibility with the City's comprehensive plan, six -year transportation plan, capital improvements plan, and regional transportation improvement plans. 7.3 Compliance with Standards /Codes. Except as may be preempted by federal or state Laws, all Facilities shall conform to and all Work shall be performed in compliance with the following "Standards" as now or may be hereafter revised, updated, amended or re- adopted: 7.3.1 Standards for Public Works Engineering and Construction. The most current edition of the City Standards for Public Works Engineering and Construction as adopted from time to time by the City. This document includes the City Design Standards Manual, Design Standards Detail, and appendixes, and the most recently City adopted edition of the Standard Specifications for Road, Bridge and Municipal Construction as prepared by the Washington State Department of Transportation ( "WSDOT ") and the Washington State Chapter of American Public Works Association ( "APWA "); 7.3.2 MUTCD. The Washington State Department of Transportation Manual of Uniform Traffic Control Devices ( "MUTCD "); 7.3.3 Special Conditions. Requirements and standards set forth as additional conditions in a Regulatory Permit. 7.3.4 City Regulations. City ordinances, codes, and regulations establishing standards for placement of Facilities in Public Rights -of -Way, including by way of example and not limitation, the specific location of Facilities in the Public Rights -of -Way. 7.3.5 Other Regulatory Requirements. Applicable requirements of federal or state governmental authorities that have regulatory authority over the placement, construction, or design of Franchisee Facilities; 7.3.6 Industry Standards. All Facilities shall be durable and Constructed in accordance with good engineering practices and standards promulgated by the Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 35 of 63 government and industry for placement, Construction, design, type of materials and operation of Franchisee Facilities; 7.3.7 Safety Codes and Regulations. Franchisee Facilities and Work shall comply with all applicable federal, State and City safety requirements, rules, regulations, Laws and practices. By way of illustration and not limitation, Franchisee shall comply with the National Electrical Safety Code and the Occupational Safety and Health Administration (OSHA) Standards; and 7.3.8 Building Codes. Franchisee Facilities and Work shall comply with all applicable City Building Codes. 7.4 Conditions Precedent to Work. Except as may be otherwise required by applicable City code, rule, regulation or Standard, Franchisee shall comply with the following as a condition precedent to Work: 7.4.1 Regulatory Permits Required. Except in the event of an Emergency, prior to performing any Work in the Public Right -of -Way requiring a Regulatory Permit, Franchisee shall apply for, and obtain, in advance, such appropriate Regulatory Permits from the City as are required by ordinance or rule. Franchisee shall pay all generally applicable and lawful fees for the requisite City Regulatory Permits. 7.4.2 Compliance with Franchise. Franchisee shall be in material compliance with the Franchise. 7.5 Work in the Public Rights- of -Way. 7.5.1 Least Interference. Work in the Public Rights -of -Way shall be done in a manner that does not unnecessarily hinder or obstruct the free use of the Public Rights - of -Way or other public property and which causes the least interference with the rights and reasonable convenience of property owners, businesses and residents along the Public Rights -of -Way. Franchisee Facilities shall be designed, located, aligned and Constructed so as not to disturb or impair the use or operation of any street improvements, utilities, and related facilities of City or City's existing lessees, licensees, permitees, franchisees, easement beneficiaries or lien holders, without prior written consent of City or the Parties whose improvements are interfered with and whose consent is required pursuant to agreements with the City existing prior to the Effective Date. 7.5.2 Work Subject to Inspection. The City may observe or inspect the Construction Work, or any portion thereof, at any time to ensure compliance with applicable Regulatory Permits, this Franchise, applicable Law, the applicable approved Design Documents, the Standards, and to ensure the Work is not being performed in an unsafe or dangerous manner. 7.5.4 Notice to the Public. Except in the case of an Emergency, City retains the right to require the Franchisee to notify the public prior to commencing any Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 36 of 63 significant planned Construction that Franchisee reasonably anticipates will materially disturb or disrupt public property or have the potential to present a danger or affect the safety of the public generally. 7.5.5 Work of Contractors and Subcontractors. Franchisee's contractors and subcontractors performing Work in the Franchise Area shall be licensed and bonded in accordance with the City's and State's applicable regulations and requirements. Any contractors or subcontractors performing Work within the Public Rights -of -Way on behalf of the Franchisee shall be deemed servants and agents of the Franchisee for the purposes of this Franchise and are subject to the same restrictions, limitations and conditions as if the Work were performed by Franchisee. Franchisee shall be responsible for all Work performed by its contractors and subcontractors and others performing Work on its behalf as if the Work were performed by it, and shall ensure that all such Work is performed in compliance with this Franchise and other applicable laws, and shall be jointly and severally liable for all damages and correcting all damage caused by them. It is Franchisee's responsibility to ensure that contractors, subcontractors or other Persons performing Work on Franchisee's behalf are familiar with the requirements of this Franchise and other applicable Laws governing the Work performed by them. 7.5.6 Emergency Permits. In the event that Emergency repairs are necessary, Franchisee shall perform such Work, provide such notices, and obtain Regulatory Permits in conformance with applicable Standards. 7.5.7 Stop Work. On notice from the City that any Work does not comply with the Franchise, the approved Design Documents for the Work, the Standards, or other applicable Law, or is being performed in an unsafe or dangerous manner as reasonably determined by the City, the non - compliant Work may immediately be stopped by the City. The stop work order shall be in writing, given to the Person doing the Work and be posted on the Work site, indicate the nature of the alleged violation or unsafe condition; and establish conditions under which Work may be resumed. If so ordered, Franchisee shall cease and shall cause its contractors and subcontractors to cease such activity until the City is reasonably satisfied that Franchisee is in compliance. If an unsafe condition is found to exist, the City, in addition to taking any other action permitted under applicable Law, may order Franchisee to make the necessary repairs and alterations specified therein forthwith to correct the unsafe condition by a time the City establishes in its reasonable discretion. The City has the right to inspect, repair and correct the unsafe condition if Franchisee fails to do so, and to reasonably charge Franchisee for the costs incurred to perform such inspection, repair or correction. Payment by Franchisee will be made in accordance with Section 5.6.9. The authority and remedy set forth herein in this section is in addition to, and not a substitute for, any authority the City may otherwise have to take enforcement action for violation of City Codes or Standards. 7.5.8 Discovery of Hazardous Substances /Indemnity. In the event that the Work of the Franchisee in, on, and upon the Franchise Area results in the discovery of the presence of Hazardous Substances ( "Discovered Matters ") in, on or upon the areas excavated or otherwise opened or exposed by Franchisee within the Franchise Area (the Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 37 of 63 "Excavated Areas "), the Franchisee shall immediately notify the City and, take whatever other reporting action is required by applicable Environmental Law as it relates to the Discovered Matters in the Excavated Areas. In the event the Franchisee's Work, in, on or upon the Franchise Area within the Excavated Areas results in a release (as determined under applicable Environmental Laws) of Hazardous Substances which were, before such activities, confined to areas within the Excavated Areas, but which after such activities by Franchisee are released beyond the Excavated Areas, and if the release is caused in whole or in part by the Franchisee, then the Franchisee shall indemnify, defend and hold the City harmless from the costs of all necessary Remedial Actions which are required under the applicable Environmental Laws, to the extent of Franchisee's share of the liability for the release. Franchisee's liability for the release may, inter alia, be determined by a final non - appealable decision by a court of competent jurisdiction, or as provided in a final non - appealable administrative order issued by the Environmental Authority, or by a consent decree entered by Franchisee and the Environmental Authority. 7.6 Alterations. Except as may be shown in the Design Documents or Regulatory Permits approved by the City or the record drawings, or as may be necessary to respond to an Emergency, Franchisee, and Franchisee's contractors and subcontractors, may not make any material alterations to the Franchise Area, or permanently affix anything to the Franchise Area, without the City's prior written consent. Material alteration shall include by way of example and not limitation, a change in the dimension or height of the above ground Facilities. If Franchisee desires to change either the location of any Facilities or otherwise materially deviates from the approved design of any of the Facilities, Franchisee shall submit such change to the City in writing for its approval pursuant to Section 7.2 of this Franchise. Franchisee shall have no right to commence any such alteration change until after Franchisee has received the City's approval of such change in writing. 7.7 General Conditions. 7.7.1 Right -of -Way Meetings. Subject to receiving advance notice, Franchisee will make reasonable efforts to attend and participate in meetings of the City regarding Right -of -Way issues that may impact the Telecommunications System. 7.7.2 Compliance Inspection. Franchisee's Facilities shall be subject to the City's right of periodic inspection upon at least seventy -two (72) hours' notice, or, in case of an emergency, upon demand without prior notice, to determine compliance with the provisions of this Franchise or other applicable Law over which the City has jurisdiction. Franchisee shall respond to reasonable requests for information regarding its Telecommunications System as the City may from time to time issue in writing to determine compliance with this Franchise, including requests for information regarding the Franchisee's plans for Construction and the purposes for which the Facility is being Constructed. Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 38 of 63 7.7.3 One Call. If Franchisee places Facilities underground, Franchisee shall, at its own expense, continuously be a member of the State of Washington one number locator service under Chapter 19.122 RCW, or an approved equivalent, and shall comply with all such applicable rules and regulations. The Franchisee shall locate and field mark its Facilities for the City at no charge. 7.7.4 Graffiti Removal. Within 5 business days after notice from the City, Franchisee shall remove any graffiti on any part of its Telecommunications System, including, by way of example and not limitation, equipment cabinets. If either the Franchisee fails to do so within 5 business days or in the City's discretion and subject to advance communication with the Franchisee, the City may remove the graffiti and bill the Franchisee for the reasonable cost thereof. 7.7.5 Dangerous Conditions, Authority for City to Abate. Whenever Construction of Facilities has caused or contributed to a condition that in the reasonable opinion of the City Engineer, substantially impairs the lateral support of the adjoining Public Right -of -Way, street, or public place, or endangers the public, any utilities, or City -owned property, the City may reasonably require the Franchisee to take action to protect the Public Right -of -Way, the public, adjacent public places, City -owned property, streets, and utilities. Such action may include compliance within a prescribed time. In the event that the Franchisee fails or refuses to promptly take the actions directed by the City, or fails to fully comply with such directions, or if Emergency conditions exist which require immediate action, the City may, to the extent it may lawfully do so, take such actions as are necessary to protect the Public Right -of -Way, the public, adjacent public places, City -owned property, streets, and utilities, to maintain the lateral support thereof, or actions regarded as necessary safety precautions; and the Franchisee shall be liable to the City for the reasonable costs thereof to the extent Franchisee is determined to be the proximate cause of such condition. 7.7.6 No Duty. Notwithstanding the right of the City to inspect the Work, issue a stop work order, and order or make repairs or alterations, the City has no duty or obligation to observe or inspect, or to halt Work on, the applicable Facilities, it being solely Franchisee's responsibility to ensure that the Facilities are Constructed and operated in strict accordance with this Franchise, the approved Design Documents, the Standards, and applicable Law. Neither the exercise nor the failure by the City to exercise any right set forth in this Article 7 shall alter the liability allocation set forth in this Franchise. 7.7.7 Roadside Hazard. All of Franchisee's Facilities shall be kept by Franchisee at all times in a safe and hazard -free condition. Franchisee shall ensure that Facilities within the Public Rights -of -Way do not become or constitute an unacceptable roadside obstacle and do not interfere with or create a hazard to maintenance of and along the Public Rights -of -Way. In such event, the Franchisee shall take corrective action. In the event that the City determines that a Facility within the Public Rights -of -Way has become or constitutes an unacceptable roadside obstacle or may interfere with or create a hazard to maintenance of and along the Public Rights -of -Way, following written notice Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 39 of 63 explaining with reasonable specificity the nature of any such matter and a reasonable opportunity to cure of not less than thirty (30) days, the Franchisee shall take corrective action; provided that, nothing herein shall relieve the Franchisee from keeping its Facilities at all times in safe and hazard -free condition. Franchisee, at all times, shall employ the standard of care attendant to the risks involved and shall install and maintain in use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injury, or nuisance to the public or to Franchisee's agents or employees. Franchisee, at its own expense, shall repair, renew, change, and improve its Facilities from time to time as may be necessary to accomplish this purpose. Franchisee shall use suitable barricades, flags, flaggers, lights, flares and other measures as required for the safety of all members of the general public and to prevent injury or damage to any person, vehicle or property by reason of such Work in or affecting such Public Rights -of -Way or property. All excavations made by Franchisee in the Public Rights -of -Way shall be properly safeguarded for the prevention of accidents. 7.7.8 Verification of Alignment/Depth. Upon the reasonable request and prior written notice, in non - Emergency situations at least thirty (30) days' notice by the City and in order to facilitate the location, alignment and design of Public Improvements (defined below), the Franchisee agrees to locate, and if reasonably determined necessary by the City, to excavate and expose portions of its Facilities for inspection so that the location of same may be taken into account in the Public Improvement design; PROVIDED that, Franchisee shall not be required to excavate and expose its Facilities unless the Franchisee's record drawings and maps of its Facilities submitted pursuant to Section 7.11 of this Franchise are reasonably determined by the City to be inadequate for purposes of this paragraph. 7.8 Facility Relocation at Request of the City. 7.8.1 Public Improvement. The City may require Franchisee to alter, adjust, relocate, or protect in place its Facilities within the Public Rights -of -Way when reasonably necessary for construction, alteration, repair, or improvement of any portion of the Public Rights -of -Way for purposes of public welfare, health, or safety ( "Public Improvements "). Such Public Improvements include, by way of example but not limitation, Public Rights -of -Way construction; Public Rights -of -Way repair (including resurfacing or widening); change of Public Rights -of -Way grade; construction, installation or repair of sewers, drains, water pipes, power lines, signal lines, communication lines, or any other type of government -owned communications, utility or public transportation systems, public work, public facility, or improvement of any government -owned utility; Public Rights -of -Way vacation, and the Construction of any public improvement or structure by any governmental agency acting in a governmental capacity for the public benefit. 7.8.2 Alternatives. If the City requires Franchisee to relocate its Facilities, the City shall make a reasonable effort to provide Franchisee with an alternate Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 40 of 63 location within the Public Right -of -Way. The Franchisee may, after receipt of written notice requesting a relocation of its Facilities, propose design alternatives that would mitigate or lessen the impact upon Franchisee's Facilities. The City shall provide a full and fair evaluation of such proposed design alternatives that, in the reasonable judgment of the City, would not impair, interfere with, or materially alter the scope, purpose or functioning of the Public Improvement and would not increase the anticipated public costs of the Public Improvement. If so requested by the City, Franchisee shall submit additional information to assist the City in making such evaluation. In the event that the City reasonably determines that it does not have available resources within the existing Public Improvement budget to fully and fairly evaluate Franchisee's proposal, the City shall not be obligated to further consider such proposal unless and until the Franchisee funds the additional costs to the City to complete its evaluation. 7.8.3 Notice. The City shall notify Franchisee in writing as soon as practicable of the need for relocation and shall specify the date by which relocation shall be completed. Except in case of Emergency such notice shall be no less than one hundred and eighty (180) days. In calculating the date that relocation must be completed, City shall consult with Franchisee and consider the extent of Facilities to be relocated, the service requirements, and the construction sequence for the relocation, within the overall project construction sequence and constraints, to safely complete the relocation. Franchisee shall complete the relocation by the date specified, unless the City, or a reviewing court, establishes a later date for completion, after a showing by the Franchisee that the relocation cannot be completed by the date specified using best efforts and meeting safety and service requirements. 7.8.4 Coordination of Work. Franchisee acknowledges and understands that any delay by Franchisee in performing the Work to alter, adjust, relocate, or protect in place its Facilities within the Public Rights -of -Way may delay, hinder, or interfere with the work performed by the City and its contractors and subcontractors in furtherance of construction, alteration, repair, or improvement of the Public Improvement, and result in damage to the City and/or its contractors, including but not limited to, delay and disruption claims. Franchisee shall cooperate with the City and its contractors and subcontractors to coordinate such Franchisee Work to accommodate the Public Improvement project and project schedules to avoid delay, hindrance, or disruption of such project. 7.8.5 Assignment of Rights. In addition to any other rights of assignment the City may have, the City may from time to time assign or transfer to its contractors or subcontractors its rights under Section 7.10 of this Franchise. 7.8.6 Reimbursement for Costs. Notwithstanding the cost allocation provisions set forth in this Franchise, Franchisee does not waive its right(s) to and shall be entitled to seek reimbursement of its relocation costs as may be otherwise specifically set forth and authorized by Law, including in statute. Further, if the City reimburses or pays the relocation costs of a similarly situated franchisee for a given Public Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 41 of 63 Improvement project, the City shall reimburse or pay Franchisee's relocation costs on the same basis 7.9 Movement of Facilities for Others. 7.9.1 Private Benefit. If any alteration, adjustment, temporary relocation, or protection in place of the Telecommunications System is required solely to accommodate the Construction of facilities or equipment that are not part of a Public Improvement project, Franchisee shall, after at least one hundred eighty (180) days advance written notice, take action to effect the necessary changes requested by the responsible Person; provided that, (a) the Person requesting the same pays for the Franchisee's time, design, engineering and material costs associated with the requested work; (b) the alteration, adjustment, relocation or protection in place is reasonably necessary to accommodate such work; (c) Franchisee's services are not interrupted; and (d) such alteration, adjustment, or relocation is not requested for the purpose of obtaining a competitive advantage over the Franchisee. 7.9.2 Temporary Changes for Other Franchisees. At the request of any Person holding a valid permit and upon reasonable advance notice, Franchisee shall temporarily raise, lower or remove its wires as necessary to permit the moving of a building, vehicle, equipment or other item. The expense of such temporary changes must be paid by the permit holder. Franchisee shall be given not less than thirty (30) days' advance notice to arrange for such temporary wire changes. 7.10 Movement of Facilities During Emergencies. 7.10.1 Immediate Threat. In the event of an unforeseen event, condition or circumstance that creates an immediate threat to the public safety, health, or welfare, the City shall have the right to require Franchisee to shut down, relocate, remove, replace, modify, or temporarily disconnect Franchisee's Facilities located in the Public Rights -of- Way at the expense of the Franchisee without regard to the cause or causes of the immediate threat. 7.10.2 Emergency. In the event of an Emergency, or where a Facility creates or is contributing to an imminent danger to health, safety, or property, the City retains the right and privilege to protect, support, temporarily disconnect, remove, or relocate any or all parts of the Telecommunications System located within the Public Rights -of -Way, as the City may determine to be reasonably necessary, appropriate or useful in response to any public health or safety Emergency and charge the Franchisee for costs incurred. 7.10.3 Notice. During Emergencies the City shall endeavor to, as soon as practicable, provide notice to Franchisee of such Emergency at a designated Emergency response contact number, to allow Franchisee the opportunity to respond and rectify the problem without disrupting Telecommunications Service. If after providing notice, there is no immediate response, the City may protect, support, temporarily disconnect, remove, or Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 42 of 63 relocate any or all parts of the Telecommunications System located within the Public Rights -of -Way in accordance with this Section 7.10. 7.10.4 Limitation on Liability. The City shall not be liable for any direct, indirect, or any other such damages suffered by any person or entity of any type as a direct or indirect result of the City's actions under this Section. 7.11 Record of Installations. 7.11.1 Map /Record Drawing of Telecommunications System. Upon request by the City, Franchisee shall search for and provide the City with the most accurate and available maps and record drawings in a form and content reasonably prescribed by the City reflecting the horizontal and vertical location and configuration of its Telecommunications System within the Public Rights -of -Way and upon City property in a format reasonably acceptable to the City. Franchisee shall provide the City with updated record drawings and maps within a reasonable period of time following receipt of written request. As to any such record drawings and maps so provided, Franchisee does not warrant the accuracy thereof and to the extent the location of the Telecommunications System is shown, such Telecommunications System is shown in its approximate location. 7.11.2 Maps /Record Drawings of Improvements. After Construction involving the locating or relocating of Facilities, the Franchisee shall provide the City with accurate copies of all record drawings and maps showing the horizontal and vertical location and configuration of all located or relocated Facilities within the Public Rights - of -Way. These record - drawings and maps shall be provided at no cost to the City, and shall include hard copies and digital copies in a format reasonably specified by the City. As to any such record drawings and maps so provided, Franchisee does not warrant the accuracy thereof and to the extent the location of the Telecommunications System is shown, such Telecommunications System is shown in its approximate location. 7.12 Restoration of Public Rights -of -Way, Public and Private Property. 7.12.1 Restoration after Construction. Franchisee shall, after completion of Construction of any part of its Telecommunications System, leave the Public Rights - of -Way and other property disturbed thereby, in as good or better condition in all respects as it was in before the commencement of such Construction. Franchisee agrees to promptly complete restoration work to the reasonable satisfaction of the City and in conformance with City Standards, including by way of example and not limitation, backfilling and restoration requirements as set forth in City Standards. 7.12.2 Notice. If Franchisee's Work causes unplanned, unapproved, or unanticipated disturbance of or alteration or damage to Public Rights -of -Way or other public or private property, the Franchisee shall promptly notify the property owner within twenty - four (24) hours. Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 43 of 63 7.12.3 Duty to Restore. If Franchisee's Work causes unplanned, unapproved, or unanticipated disturbance of or alteration or damage to Public Rights -of- Way or other public property, it shall promptly remove any obstructions therefrom and restore such Public Rights -of -Way and public property to the reasonable satisfaction of the City and in accordance with City Standards. 7.12.4 Temporary Restoration. If weather or other conditions do not allow the complete restoration required by this Section, Franchisee shall temporarily restore the affected Public Right -of -Way or public property. Franchisee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration. 7.12.5 Survey Monuments. All survey monuments which are disturbed or displaced by any Work shall be referenced and restored, as per WAC 332 -120, as the same now exists or may hereafter be amended, and all pertinent federal, state and local standards and specifications. 7.12.6 Approval. The City Engineer, or designee, shall be responsible for observation and final approval of the condition of the Public Rights -of -Way and City property following any restoration activities therein. Franchisee is responsible for all testing and monitoring of restoration activities. 7.12.7 Warranty. Franchisee shall warrant any restoration work performed by Franchisee in the Public Rights -of -Way or on other public property for two (2) years, unless a longer period is required by applicable City Standards. If restoration is not satisfactorily and timely performed by the Franchisee, the City may, after prior notice to the Franchisee, or without notice where the disturbance or damage may create an imminent risk to public health or safety, cause the repairs to be made and recover the reasonable cost of those repairs from the Franchisee. Franchisee shall pay the City for such costs in accordance with Section 5.6.9. 7.12.8 Restoration of Private Property. When Franchisee does any Work in the Public Rights -of -Way that affects, disturbs, alters, or damages any adjacent private property, it shall, at its own expense, be responsible for restoring such private property to the reasonable satisfaction of the private property owner. 7.13 Approvals. Nothing in this Franchise shall be deemed to impose any duty or obligation upon the City to determine the adequacy or sufficiency of Franchisee's Design Documents or to ascertain whether Franchisee's proposed or actual Construction is adequate or sufficient or in conformance with the Design Documents reviewed and approved by the City. No approval given, inspection made, review or supervision performed by the City pursuant to or under authority of this Franchise shall constitute or be construed as a representation or warranty express or implied by the City that such item reviewed, approved, inspected, or supervised, complies with applicable Laws or this Franchise or meets any particular Standard, code or requirement, or is in conformance with the approved Design Documents, and no liability shall attach with respect thereto. Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 44 of 63 City approvals and inspections as provided herein, are for the sole purpose of protecting the City's rights as the owner and/or manager of the Public Rights -of -Way and shall not constitute any representation or warranty, express or implied, as to the adequacy of the design or Construction of the Facilities or Telecommunications System, suitability of the Franchise Area for Construction, or any obligation on the part of the City to insure that Work or materials are in compliance with any requirements imposed by a governmental entity. The City is under no obligation or duty to supervise the design, Construction, or operation of the Telecommunications System. 7.14 Abandonment of Facilities. Except as may be otherwise provided by Law, Franchisee may abandon in place any Facilities in the Public Rights -of -Way upon written notice to the City, which notice shall include a description of the Facilities it intends to abandon, the specific location in the Public Rights -of -Way of such Facilities, and the condition of such Facilities. However, if the City determines within 180 days of the receipt of notice of abandonment from the Franchisee, that the safety, appearance, functioning, or use of the Public Rights -of -Way and other facilities in the Public Rights - of -Way, including without limitation, utilities and related facilities, will be adversely affected, the operator must remove its abandoned Facilities by a date specified by the City and restore the Public Rights -of -Way in accordance with City Standards. Franchisee shall be and remain responsible in perpetuity for any Facilities abandoned in the Public Rights -of -Way. ARTICLE 8. MISCELLANEOUS. 8.1 Headings. Titles to articles and sections of this Franchise are not a part of this Franchise and shall have no effect upon the construction or interpretation of any part hereof. 8.2. Entire Agreement. This Franchise contains all covenants and agreements between the City and the Franchisee relating in any manner to the Franchise, use, and occupancy of the Public Rights -of -Way and other matters set forth in this Franchise. No prior agreements or understanding pertaining to the same, written or oral, shall be valid or of any force or effect and the covenants and agreement of this Franchise shall not be altered, modified, or added to except in writing signed by the City and Franchisee and approved by the City in the same manner as the original Franchise was approved. 8.3 Incorporation of Exhibits. All exhibits annexed hereto at the time of execution of this Franchise or in the future as contemplated herein, are hereby incorporated by reference as though fully set forth herein. 8.4 Calculation of Time. Except where a period of time refers to "business days," all periods of time referred to herein shall include Saturdays, Sundays, and legal holidays in the State of Washington, except that if the last day of any period falls on any Saturday, Sunday, or legal holiday in the State of Washington, the period shall be extended to include the next day which is not a Saturday, Sunday, or legal holiday in the Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 45 of 63 State of Washington; provided that, the Effective Date shall be determined as provided at Section 4.3 of this Franchise. 8.5 Time Limits Strictly Construed. Whenever this Franchise sets forth a time for any act to be performed by Franchisee, such time shall be deemed to be of the essence, and any failure of Franchisee to perform within the allotted time may be considered a Default of this Franchise. 8.6 No Joint Venture. It is not intended by this Franchise to, and nothing contained in this Franchise shall, create any partnership, joint venture, or principal -agent relationship or other arrangement between Franchisee and the City. Neither Party is authorized to, nor shall either Parry act toward third Persons or the public in any manner which would indicate any such relationship with the other. The Parties intend that the rights, obligations, and covenants in this Franchise and the collateral instruments shall be exclusively enforceable by the City and Franchisee, their successors, and assigns. No term or provision of this Franchise is intended to be, or shall be, for the benefit of any Person not a Party hereto, and no such Person shall have any right or cause of action hereunder, except as may be otherwise provided herein. Further, the Franchisee is not granted any express or implied right or authority to assume or create any obligation or responsibility on behalf of or in the name of the City. Nothing in this Section 8.6 shall be construed to prevent an assignment as provided for at Sections 2.8 or 7.8.5 of this Franchise. 8.7 Approval Authority. Except as may be otherwise provided by Law or herein, any approval or authorization required to be given by the City, shall be given by the Public Works Director (or its successor), or by the Public Works Director's designee. 8.8 Binding Effect upon Successors and Assigns. All of the provisions, conditions, and requirements contained in this Franchise shall further be binding upon the heirs, successors, executors, administrators, receivers, trustees, legal representatives, transferees and assigns of the Franchisee; and all privileges, as well as all obligations and liabilities of the Franchisee shall inure to its heirs, successors, and assigns equally as if they were specifically mentioned wherever the Franchisee is named herein. 8.9 Waiver. No failure by either Party to insist upon the performance of any of the terms of this Franchise or to exercise any right or remedy consequent upon a Default thereof, shall constitute a waiver of any such Default or of any of the terms of this Franchise. None of the terms of this Franchise to be kept, observed or performed by either Party, and no Default thereof, shall be waived, altered or modified except by a written instrument executed by the injured Party. No waiver of any Default shall affect or alter this Franchise, but each of the terms of this Franchise shall continue in full force and effect with respect to any other then existing or subsequent Default thereof. No waiver of any default of the defaulting Party hereunder shall be implied from any omission by the injured Party to take any action on account of such default if such default persists or is repeated, and no express waiver shall affect any default other than the default specified in the express waiver and then only for the time and to the extent therein Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 46 of 63 stated. One or more waivers by the injured Party shall not be construed as a waiver of a subsequent Default of the same covenant, term or conditions. 8.10 Severability. If any word, article, section, subsection, paragraph, provision, condition, clause, sentence set forth herein, or its application to any person or circumstance (collectively referred to as "Term "), shall be held to be illegal, invalid, or unconstitutional for any reason by any court or agency of competent jurisdiction, such Term declared illegal, invalid or unconstitutional shall be severable and the remaining Terms of the Franchise shall remain in full force and effect unless to do so would be inequitable or would result in a material change in the rights and obligations of the Parties hereunder. 8.11 Sims. No signs or advertising shall be permitted in the Franchise Area except as may be required by Law or as may be required by the City for the protection of the public health, safety and welfare, to the extent it has authority to do so. 8.12 Discriminatory Practices Prohibited. Throughout the term of this Franchise, Franchisee shall fully comply with all equal employment and nondiscrimination provisions of applicable Law. 8.13 Notice. Any notice required or permitted to be given hereunder shall be in writing, unless otherwise expressly permitted or required, and shall be deemed effective either, (i) upon hand delivery to the person then holding the office shown on the attention line of the address below, or, if such office is vacant or no longer exists, to a person holding a comparable office, or (ii) or when delivered by a nationally recognized overnight mail delivery service, to the Party and at the address specified below, or (ii) on the third business day following its deposit with the United States Postal Service, first class and certified or registered mail, return receipt requested, postage prepaid, properly sealed and addressed as follows: Franchisee's address: Astound Broadband, LLC 401 Kirkland Parkplace Suite 500 Kirkland, WA 98033 Attention: Steve Weed, CEO, and Jim Penney, EVP The City's Address: City of Yelm 105 Yelm Avenue West Yelm, WA 98597 Attention: Shelly Badger, City Administrator And to the City Attorney Brent F. Dille Bean Gentry Wheeler Peternell 910 Lakeridge Way SW Olympia, WA 98502 Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 47 of 63 The City and Franchisee may designate such other address from time to time by giving written notice to the other, but notice cannot be required to more than two addresses, except by mutual agreement. 8.14 Survival of Terms. Upon the expiration, termination, revocation or forfeiture of the Franchise, the Franchisee shall no longer have the right to occupy the Franchise Area for the purpose of providing services authorized herein. However, the Franchisee's obligations under this Franchise to the City shall survive the expiration, termination, revocation or forfeiture of these rights according to its terms for so long as the Franchisee's Telecommunications System or any part thereof shall remain in whole or in part in the Public Rights -of -Way, or until such time as the Franchisee transfers ownership of all Facilities in the Franchise Area to the City or a third- Party, or until such time as the Franchisee abandons said Facilities in place, all as provided herein. Said obligations include, by way of illustration and not limitation, Franchisee's obligations to indemnify, defend, and protect the City, to provide insurance, to relocate its Facilities, and to reimburse the City for its costs to perform Franchisee's Work. 8.15 Force Maieure. In the event Franchisee is prevented or delayed in the performance of any of its obligations herein due to circumstances beyond its control or by reason of a force majeure occurrence, such as, but not limited to, acts of God, acts of terrorism, war, riots, civil disturbances, natural disasters, floods, tornadoes, earthquakes, severe weather conditions, employee strikes and unforeseen labor conditions not attributable to Franchisee's employees, Franchisee shall not be deemed in Default of provisions of this Franchise. If Franchisee believes that circumstances beyond its control or by reason of a force majeure occurrence have prevented or delayed its compliance with the provisions of this Franchise, Franchisee shall provide documentation as reasonably required by the City to substantiate the Franchisee's claim. Franchisee shall have a reasonable time, under the circumstances, to perform the affected obligation under this Franchise or to procure a substitute for such obligation which is reasonably satisfactory to the City; provided that, the Franchisee shall perform to the maximum extent it is able to perform and shall take reasonable steps within its power to correct such cause(s) in as expeditious a manner as possible, provided that the Franchisee takes prompt and diligent steps to bring itself back into compliance and to comply as soon as possible under the circumstances with the Franchise without unduly endangering the health, safety, and integrity of the Franchisee's employees or property, or the health, safety, and integrity of the public, Public Rights -of- Way, public property, or private property. 8.16 Attorneys' Fees. In the event of a suit, action, arbitration, or other proceeding of any nature whatsoever, whether in contract or in tort or both, is instituted to enforce any word, article, section, subsection, paragraph, provision, condition, clause or sentence of this Franchise or its application to any person or circumstance, the prevailing Parry shall be entitled to recover from the losing Parry its reasonable attorneys, paralegals, accountants, and other experts fees and all other fees, costs, and expenses actually incurred and reasonably necessary in connection therewith, as allowed by Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 48 of 63 Washington law and as determined by the judge or arbitrator at trial or arbitration, as the case may be, or on any appeal or review, in addition to all other amounts provided by Law. This provision shall cover costs and attorneys' fees related to or with respect to proceedings in Federal Bankruptcy Courts, including those related to issues unique to bankruptcy law. This provision shall not apply to the extent that the suit, action, arbitration or other proceeding is brought to interpret any term, condition, provision, section, article or clause of this Franchise. 8.17 Venue /Choice of Law. This Franchise shall be governed by, and construed in accordance with, the laws of the State of Washington. Any action brought relative to enforcement of this Franchise, or seeking a declaration of rights, duties or obligations herein, shall be initiated in the Superior Court of the County in which the City is located, and shall not be removed to a federal court, except as to claims over which such Superior Court has no jurisdiction. Removal to federal court shall be to the Federal Court of the Western District of Washington. 8.18 Publication. This ordinance, or a summary thereof, shall be published in the official newspaper of the City, the expense of which shall be borne by Franchisee, and shall take effect and be in full force in accordance with Section 4.3 herein. ADOPTED BY THE CITY COUNCIL AT A REGULAR MEETING THEREOF ON THE DAY OF , 2015, AND SIGNED IN AUTHENTICATION OF ITS PASSAGE THIS DAY OF , 2015. CITY OF YELM Ron Harding, Mayor ATTEST /AUTHENTICATED: Janine Schnepf, City Clerk Approved as to form: Brent F. Dille, City Attorney Date of Publication: Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 49 of 63 EXHIBIT "A" (Acceptance of Franchise) Franchise issued pursuant to Ordinance No I am the and am the authorized representative to accept the above - referenced Franchise on behalf of In my capacity as and not individually, I certify that this Franchise and all terms and conditions thereof are accepted by , without qualification or reservation and that unconditionally guarantee(s) performance of all such terms and conditions. DATED this day of , 20 STATE OF ss. CITY OF By Its Tax Payer ID# I certify that I know or have satisfactory evidence that is the person who appeared before me, and said person acknowledged that said person signed this instrument, on oath stated that said person was authorized to execute the instrument and acknowledged it (as the of , a corporation,) to be the free and voluntary act of such corporation/individual for the uses and purposes mentioned in the instrument. Dated this day of (Signature of Notary) Print Name Notary public in and for the state of ,residing at My appointment expires Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 50 of 63 EXHIBIT `B" (Form of Transfer Agreement) THIS TRANSFER AGREEMENT ( "Agreement ") is made this day of 20 , by and between: 1. PARTIES. 1.1 1.2 1.3 City of Yelm, a legal subdivision of the state of Washington ( "City ") ( "Franchisee "). ( "Transferee ") RECITALS WHEREAS the City has issued Franchisee, which was authorized on the to Ordinance No. , and a single Franchise (the "Franchise ") to day of , 2015, pursuant WHEREAS Franchisee has reached an agreement with Transferee on a (describe transaction, example: conveyance of benefited property) Transferee, to (example Rights -of -Way) with acquire from Franchisee its facilities and equipment located in the Public and WHEREAS Franchisee and Transferee have requested that the City approve a transfer of the Franchise from Franchisee to Transferee, and WHEREAS, as a result of the transfer of the Franchise, Transferee will assume all rights, duties, and obligations that Franchisee has under the Franchise, will be responsible for full compliance with the Franchise, and will meet or exceed all applicable and lawful federal, state, and local requirements, and WHEREAS, relying on the representations made by the Transferee and Franchisee, the City, on the day of , 20 , has, pursuant to Resolution No. and the Franchise, approved the transfer upon the terms and conditions as stated herein; Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 51 of 63 NOW, THEREFORE, in consideration of the City's approval of the transfer, subject to the terms and conditions of this Agreement, THE PARTIES DO HEREBY AGREE as follows: 2. TRANSFER. Transfer of the Franchise shall be effective upon the following conditions precedent: 2.1 Receipt by the City of the fully executed acceptance of Franchise attached hereto as Exhibit B -1 together with all required certificates of insurance, security fund and performance bond; 2.2 Payment to the City of the Transfer fees; and 2.3 The date of closing of the sale /conveyance of the property benefited by this Franchise and/or the Facilities located in the Franchise Area or upon a date as mutually agreed to by the City, Franchisee and Transferee as follows: 3. ACCEPTANCE OF FRANCHISE OBLIGATIONS. 3.1 The Franchisee and Transferee hereby accept, acknowledge, and agree that neither the proposed transaction between Franchisee and Transferee nor the City's approval of this Agreement shall diminish or affect the existing and continuing commitments, duties, or obligations, present, continuing, and future, of the Franchisee and Transferee embodied in the Franchise. 3.2 Transferee and Franchisee agree that neither the transfer nor the City's approval of this Agreement and the resulting transfer shall in any respect relieve Franchisee, or any of its successors in interest, of any obligation or liability arising from acts or omissions occurring prior to the transfer of the Franchise, whether known or unknown, or the consequences thereof. 3.3 The transfer is not intended and shall not be construed to authorize the Franchisee to take any position or exercise any right that could not have been exercised prior to the Transfer. 3.4 Notwithstanding anything to the contrary herein, Transferee shall not be responsible for any of Franchisee's financial liabilities and obligations under the Franchise or pursuant to the City code, rules, and regulations that accrued before the Transfer of the Franchise, and Franchisee shall not be responsible for any financial liabilities and obligations under the Franchise or pursuant to the City code, rules, and regulations that accrue on or after the Transfer of the Franchise. 3.5 The City waives none of its rights with respect to the Franchisee's or Transferee's compliance with the terms, conditions, requirements, and obligations set forth in the Franchise. The City's approval of this Agreement shall in no way be deemed Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 52 of 63 a representation by the City that Franchisee is in compliance with all of Franchisee's obligations under the Franchise. 3.6 Franchisee and Transferee acknowledge and agree that the City's approval and acceptance of this Agreement and the resulting transfer is made in reliance upon the representations, documents, and information provided by the Franchisee and Transferee in connection with the request for Transfer. 4. MISCELLANEOUS PROVISIONS. 4.1 Conditions Precedent. The Agreement shall be effective and binding upon the signatories once it has been signed by all signatories; provided that, within 30 days of execution of the Agreement by all of the signatories, Transferee has provided to the City the following: (1) all fees required for this Transfer, (2) its acceptance of the Franchise in substantially the form of the document attached hereto as Exhibit B -1; (3) its insurance certificate in conformance with the requirements of the Franchise; (4) a performance bond or cash deposit in conformance with the requirements of the Franchise. 4.2 Entire Agreement. The Agreement constitutes the entire agreement of the Parties with respect to the matters addressed herein. No statements, promises, or inducements inconsistent with the Agreement made by any Party shall be valid or binding, unless in writing and executed by all Parties. 4.3 Binding Acceptance. The Agreement shall bind and benefit the Parties hereto and their respective heirs, beneficiaries, administrators, executors, receivers, trustees, successors, and assigns, and the promises and obligations herein shall survive the expiration date hereof. Any purported transfer of the Agreement is void without the express written consent of the signatories. 4.4 Severability. In the event that any provision of the Agreement shall, to any extent, be held to be invalid, preempted, or unenforceable, the remainder hereof shall be valid in all other respects and continue to be effective. 4.5 Defined Terms. Terms not defined in this Agreement shall have the same meaning as given in the Franchise. 4.6 Governing Law. The Agreement shall be governed in all respects by the laws of the state of Washington. 4.7 Notice. Pursuant to Section 8.13 of the Franchise, Notices to Transferee shall be delivered to: Transferee's address: ** Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 53 of 63 And to: ** IN WITNESS WHEREOF the Parties hereto have executed this Agreement as of the day and year first written above. CITY: FRANCHISEE: By: Shelly Badger, City Administrator By: Title: TRANSFEREE: By: _ Title: Tax Id. No. Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 54 of 63 TRANSFER EXHIBIT B -I Acceptance of Franchise Franchise issued pursuant to Ordinance No. and accepted 20 ; Transfer authorized pursuant to Resolution No. effective 20 I am the and am the authorized representative to accept the above - referenced Franchise on behalf of In my capacity as and not individually, I certify that this Franchise and all terms and conditions thereof are accepted by , without qualification or reservation and that unconditionally guarantee(s) performance of all such terms and conditions. DATED this day of , 20 STATE OF ss. CITY OF By Its Tax Payer ID# I certify that I know or have satisfactory evidence that is the person who appeared before me, and said person acknowledged that said person signed this instrument, on oath stated that said person was authorized to execute the instrument and acknowledged it (as the of , a corporation,) to be the free and voluntary act of such corporation/individual for the uses and purposes mentioned in the instrument. Dated this day of (Signature of Notary) Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 55 of 63 Print Name Notary public in and for the state of residing at My appointment expires: Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 56 of 63 EXHIBIT "C" (Description of Franchise Area) The area within the jurisdictional boundaries of the City of Yelm, Washington, and such additional areas as may be included in the jurisdictional boundaries of the City of Yelm, Washington, during the term of this Franchise. Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 57 of 63 EXHIBIT "D" (Insurance Requirements) 1. General Requirement. Franchisee shall have adequate insurance at all times while Franchisee owns or operates Facilities in the Public Rights -of -Way, to protect the City against claims for death or injuries to Persons or damages to property or equipment which in any way relate to, arise from or are connected with the Work, the Facilities, or the activities of Franchisee, its employees, agents, representatives, contractors, subcontractors and their employees, within the Franchise Area. 2. Minimum Insurance Limits. The Franchisee shall maintain the following minimum insurance coverages and limits: 2.1 Commercial General Liability: insurance to cover liability, bodily injury, and property damage. The Commercial General Liability insurance shall be written on an occurrence basis, and shall provide coverage for any and all costs, including reasonable defense costs, and losses and damages resulting from personal injury, bodily injury and death, property damage, products liability and completed operations. Such insurance shall include broad form and blanket contractual coverage, including coverage for the Franchise as now or hereafter amended. Coverage must be written with the following limits of liability: $2,000,000 per occurrence, $4,000,000 general aggregate and $1,000,000 products /completed operations aggregate. 2.2 Automobile Liability: shall include owned, hired, and non -owned vehicles on an occurrence basis with coverage of at least $2,000,000 per occurrence. 2.3 Workers Comt)ensation Insurance: shall be maintained during the life of this Franchise to comply with statutory limits for all employees, and in the case any work is sublet, the Franchisee shall require its contractors and subcontractors similarly to provide workers' compensation insurance for all the employees. The Franchisee shall also maintain, during the life of this policy, employer's liability insurance with limits of $1,000,000 each occurrence. 2.4 Excess or Umbrella Liability: $5,000,000 each occurrence and $5,000,000 policy limit. 3. Endorsements. Franchisee Commercial General Liability insurance policies are to contain, or be endorsed to contain, the following: 3.1 The Franchisee's insurance coverage shall be primary insurance with respect to the City. Any insurance, self - insurance, or insurance pool coverage maintained by the City shall be in excess of the Franchisee's insurance and shall not contribute to it. Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 58 of 63 3.2 Franchisee, through policy endorsement, shall waive its rights of subrogation against the City for all claims and suits. 3.3 That the 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. 3.4 The Franchisee's insurance shall name the City as an additional insured, to protect or insure as an additional insured, from and against Liabilities arising out of work performed in the Public Rights -of -Way under a grant of authority of the City. 3.5 The Franchisee's insurance shall include a requirement that the "railroad exclusion" be deleted or may include, in the alternative, ISO endorsement CG 24 17 or the equivalent. 3.6 The insurance coverages and limits provided herein shall not be canceled without thirty (30) days' prior written notice first being given to the City, with the exception that ten (10) days' notice shall be required for cancellation resulting from non - payment of premium. If the insurance is canceled or reduced in coverage, Franchisee shall provide a replacement policy. 4. Acceptability of Insurers. Each insurance policy obtained pursuant to this Franchise shall be issued by financially sound insurers who may lawfully do business in the State of Washington with a financial strength rating at all times during coverage of no less than an "A -" and in a financial size category of no less than "VII ", in the latest edition of "Best's Rating Guide" published by A.M. Best Company. In the event that at any time during coverage, the insurer does not meet the foregoing standards, Franchisee shall give prompt notice to the City and shall seek coverage from an insurer that meets the foregoing standards. The City reserves the right to change the rating or the rating guide depending upon the changed risks or availability of other suitable and reliable rating guides. 5. Verification of Coverage. The Franchisee shall furnish the City with signed certificates of insurance and a copy of the amendatory endorsements, including, but not necessarily limited to, the additional insured endorsement, evidencing the Automobile Liability, Commercial General Liability and Umbrella or Excess insurance of the Franchisee upon acceptance of this Franchise. The certificate for each insurance policy is to be signed by a Person authorized by that insurer to bind coverage on its behalf. The certificate for each insurance policy must be on standard forms or on such forms as are consistent with standard industry practices. The Franchisee hereby warrants that its insurance policies satisfy the requirements of this Franchise. 6. Deductible. Commercial General Liability Insurance policies and coverage required herein may include a deductible; provided, however, that if Franchisee elects to include any deductible, Franchisee shall itself directly cover, in lieu of insurance, any and all City Liabilities that would otherwise in accordance with the Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 59 of 63 provisions of this Franchise be covered by Franchisee insurance if Franchisee elected not to include a deductible. Such direct coverage by Franchisee shall be in an amount equal to the amount of Franchisee's actual deductible. 7. No Limitation. Franchisee's maintenance of insurance policies required by this Franchise shall not be construed to excuse unfaithful performance by Franchisee or limit the liability of Franchisee to the coverage provided in the insurance policies, or otherwise limit the City's recourse to any other remedy available at law or in equity. Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 60 of 63 EXHIBIT "E" (Financial Security) 1. Performance Bond. 1.1 Franchisee shall provide to the City a faithful performance and payment bond in the initial amount of $50,000 to ensure the full and faithful performance of all of its responsibilities under this Franchise and applicable Laws, including, by way of example and not limitation, its obligations to relocate and remove its Facilities, to restore the Public Rights -of -Way and other property when damaged or disturbed, to reimburse the City for its Direct Costs and keeping Franchisee's insurance in full force. 1.2 The performance bond shall be in a form with terms and conditions reasonably acceptable to the City and reviewed and approved by the City Attorney. 1.3 The performance bond shall be with a surety with a rating no less than "A- VII" in the latest edition of "Bests Rating Guide," published by A.M. Best Company. 1.4 The Franchisee shall pay all premiums or costs associated with maintaining the performance and payment bond, and shall keep the same in full force and effect at all times. If Franchisee fails to provide or maintain the bond, then the City, in its sole discretion, may require Franchisee to substitute an equivalent cash deposit as described below in lieu of the bond. 1.5 Franchisee's maintenance of the bond(s) shall not be construed to excuse unfaithful performance by Franchisee, or limit the liability of Franchisee to the amount of the bond(s), or otherwise limit the City's recourse to any other remedy available at law or in equity. 1.6 The amount of the bond may, in the reasonable discretion of the City, be adjusted by the City to take into account (1) cumulative inflation, (2) increased risk to the City, (3) the experiences of the Parties regarding Franchisee compliance with its obligations under the Franchise, and (4) issuance of Site Specific Permits for installation of new Facilities. Prior to adjusting the amount of the bond, the City shall provide reasonable notice to the Franchisee and an opportunity to provide comments, and the City shall review and consider such comments that are timely made. 2. Cash Deposit/Irrevocable Letter of Credit in Lieu of Bond. Franchisee may, at its election substitute an equivalent cash deposit with an escrow agent approved by the City or an irrevocable letter of credit in form and content reasonably approved by the City Attorney, instead of a performance and payment bond. This cash deposit or irrevocable letter of credit shall ensure the full and faithful performance of all of Franchisee's responsibilities hereto under this Franchise and all Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 61 of 63 applicable Laws. This includes but, is not limited to, its obligations to relocate or remove its facilities, restore the Public Rights -of -Way and other property to their original condition, reimbursing the City for its costs, and keeping Franchisee's insurance in full force. In the event that the Franchisee fails to cure a Default as provided in Section 6 of the Franchise, the City may, at its option, draw upon the cash deposit or letter of credit up to the amount of the City's costs incurred to cure Franchisee's default. Upon the City's cure of Franchisee's default, the City shall notify Franchisee in writing of such cure. In the event that the City draws upon the cash deposit or letter of credit, Franchisee shall thereupon replenish the cash deposit or letter of credit to the full amount as specified herein or provide a replacement performance and payment bond. Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 62 of 63 EXHIBIT "F" (Contractor /Subcontractor Insurance Requirements) 1. General Requirement. Prior to commencing and during the period of Work performed within the Franchise Area, Franchisee contractors and subcontractors (hereafter the "Contractors ") must have in place adequate insurance to protect the City against claims for death or injuries to Persons or damages to property or equipment which in any way relate to, arise from or are connected with this such Work. 2 Minimum Insurance Limits. The Contractors shall maintain the following minimum insurance coverages and limits: 2.1 Commercial General Liability: insurance to cover liability, bodily injury, and property damage. The Commercial General Liability insurance shall be written on an occurrence basis, , and shall provide coverage for any and all costs, including reasonable defense costs, and losses and damages resulting from personal injury, bodily injury and death, property damage, products liability and completed operations. Coverage must be written with the following limits of liability: $1,000,000 per occurrence, $2,000,000 general aggregate and $1,000,000 products /completed operations aggregate. 2.2 Automobile Liability: shall include owned, hired, and non -owned vehicles on an occurrence basis with coverage of at least $1,000,000 per occurrence. 2.3 Workers Compensation Insurance: shall be maintained during the period of such Work to comply with statutory limits for all employees. 3. Endorsements. Commercial General Liability insurance policies are to contain, or be endorsed to contain, the following: 3.1 The Contractor's insurance coverage shall be primary insurance with respect to the City. Any insurance, self - insurance, or insurance pool coverage maintained by the City shall be in excess of the Contractor's insurance and shall not contribute to it. 3.2 Contractor, through policy endorsement, shall waive its rights of subrogation against the City for all claims and suits. 3.3 That the 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. Agenda Item 8. b. Ordinance No. 1001 Astound Broadband, LLC Franchise Page 63 of 63 3.4 The Contractor's insurance shall name the City as an additional insured, to protect or insure as an additional insured, from and against Liabilities arising out of Work performed in the Public Rights -of -Way under a grant of authority of the City. 3.5 The Contractor's insurance shall include a requirement that the "railroad exclusion" be deleted or may include, in the alternative, ISO endorsement CG 24 17 or equivalent. 3.6 The insurance coverages and limits provided herein shall not be canceled without thirty (30) days written notice first being given to the City, with the exception that ten (10) days' notice shall be required for cancellation resulting from non- payment of premium. If the insurance is canceled or reduced in coverage, Franchisee shall provide a replacement policy. 4. Acceptability of Insurers. Each insurance policy required herein shall be issued by financially sound insurers who may lawfully do business in the State of Washington with a financial strength rating at all times during coverage of no less than an "A - "and in a financial size category of no less than "VII ", in the latest edition of "Best's Rating Guide" published by A.M. Best Company. In the event that at any time during coverage, the insurer does not meet the foregoing standards, Contractor shall give prompt notice to the City and shall seek coverage from an insurer that meets the foregoing standards. The City reserves the right to change the rating or the rating guide depending upon the changed risks or availability of other suitable and reliable rating guides. 5. Verification of Coverage. The Franchisee shall furnish the City with Contractors' signed certificates of insurance and a copy of the amendatory endorsements, including, but not necessarily limited to, the additional insured endorsement, evidencing the Automobile Liability, and Commercial General Liability policies of the Contractors. The certificate for each insurance policy is to be signed by a Person authorized by that insurer to bind coverage on its behalf. The certificate for each insurance policy must be on standard forms or on such forms as are consistent with standard industry practices. 6. No Limitation. Contractor's maintenance of insurance policies required herein shall not be construed to excuse unfaithful performance by Franchisee or limit the liability of Franchisee or contractor to the coverage provided in the insurance policies, or otherwise limit the City's recourse to any other remedy available at law or in equity. To: Mayor Ron Harding Yelm City Council Agenda Item 8. c. Ordinance No. 999 Page 1 of 15 City of Yelm From: Tami Merriman, Associate Planner STAFF REPORT Date: May 15, 2015 (for May 26, 2015 City Council Meeting) Subj: Chapter 15.72 YMC — Conditions for the use of rights -of -way Recommendation Adopt Ordinance No. 999 relating to Franchises and adopting conditions for the use of rights -of -way. Background The City Council adopted the Unified Development Code (UDC) as a new Title 18 of the Municipal Code on January 27, 2015 via Ordinance No. 995. The UDC affected a number of provisions in the Municipal Code, moving many of these provisions into the UDC, but re- enacting some which were not development related. One of the chapters that was re- enacted outside the UDC related to the processing of telecommunication, cable television, and other utility franchises, and the requirements for operators of these franchises within the City. Through the process of readopting these procedures, the standards for franchisees previously codified were inadvertently not included in the new Title 15 YMC relating to Franchises. It is appropriate for the Council to readopt these standards at this time. Current Situation The standards have been reviewed and found to be up to date, so no changes to the conditions for the use of rights of way are proposed. Citations to other sections of the Municipal Code have been updated. The City Council may approve, approve with amendments, or deny the adoption of the proposed Ordinance adopting conditions for the use of rights -of -way. Community Development and Public Works staff recommends adoption of these standards. Agenda Item 8. c. Ordinance No. 999 Page 2 of 15 CITY OF YELM ORDINANCE NO. 999 AN ORDINANCE of the City of Yelm amending Title 15 of the Yelm Municipal Code relating to Franchises and adopting conditions for Use of Rights -of -Way. WHEREAS, the Yelm City Council on January 27, 2015, adopted Ordinance No. 995 which amended the Yelm Municipal Code; and WHEREAS, Ordinance No. 995, in part, repealed Title 15 YMC and replaced it with a new Title 15 Franchises; and WHEREAS, Ordinance No. 995 did not re -adopt certain provisions for the conditions of use of rights -of -way; and WHEREAS, the City Council wishes to readopt provisions for the conditions of use of rights -of- way; Now, THEREFORE, the Yelm City Council do ordain as follows: SECTION 1. A new chapter is added to the Yelm Municipal Code at Chapter 15.72 — Conditions for Use of Rights -of -Way. The new Chapter is Exhibit A to this Ordinance. SECTION 2. This ordinance shall take effect five days after passage, approval, and publication. PASSED by the City Council of Yelm this 26th day of May, 2015. Ron Harding, Mayor Authenticated: Janine A. Schnepf, City Clerk PUBLISHED: Nisqually Valley News, June 5, 2015 EFFECTIVE DATE: June 10, 2015 Agenda Item 8. c. Ordinance No. 999 Page 3 of 15 Exhibit A Ordinance No. 999 Chapter 15.72 Conditions for Use of Rights -of -Way Table of Contents CHAPTER 15.72 CONDITIONS FOR USE OF RIGHTS -OF- WAY ......................................................... ..............................2 15.72.010 APPLICABILITY ......................................................................................................... ..............................2 15.72.020 GENERAL DUTIES ...................................................................................................... ..............................2 15.72.030 INTERFERENCE WITH THE RIGHTS -OF- WAY ..................................................................... ..............................2 15.72.040 DAMAGE TO PROPERTY ............................................................................................. ..............................2 15.72.050 NOTICE OF WORK ..................................................................................................... ..............................2 15.72.060 REPAIR AND EMERGENCY WORK .................................................................................. ..............................2 15.72.070 MAINTENANCE OF FACILITIES ...................................................................................... ..............................3 15.72.080 RELOCATION OR REMOVAL OF FACILITIES ....................................................................... ..............................3 15.72.090 REMOVAL OF UNAUTHORIZED FACILITIES ....................................................................... ..............................3 15.72.100 FAILURE TO RELOCATE ............................................................................................... ..............................4 15.72.110 EMERGENCY REMOVAL OR RELOCATION OF FACILITIES ...................................................... ..............................4 15.72.120 DAMAGE TO GRANTEES FACILITIES .............................................................................. ..............................4 15.72.130 RESTORATION OF RIGHTS -OF- WAY ............................................................................... ..............................5 15.72.150 DUTYTO PROVIDE INFORMATION ................................................................................ ..............................5 15.72.160 GRANTEE INSURANCE ................................................................................................ ..............................6 15.72.170 RELEASE, INDEMNITY AND HOLD HARMLESS ................................................................... ..............................7 15.72.180 SECURITY FUND ....................................................................................................... ..............................8 15.72.190 CONSTRUCTION AND COMPLETION BOND ...................................................................... ..............................8 15.72.200 ACTS AT GRANTEES EXPENSE ...................................................................................... ..............................9 15.72.210 COORDINATION OF CONSTRUCTION ACTIVITIES ............................................................... ..............................9 15.72.220 ASSIGNMENTS OR TRANSFERS .................................................................................... .............................10 15.72.230 TRANSACTIONS AFFECTING CONTROL ........................................................................... .............................11 15.72.240 REVOCATION OR TERMINATION .................................................................................. .............................12 15.72.250 NOTICE AND DUTY TO CURE ....................................................................................... .............................12 15.72.260 HEARING ............................................................................................................... .............................13 15.72.270 STANDARDS FOR REVOCATION OR LESSER SANCTIONS ..................................................... .............................13 Agenda Item 8. c. Ordinance No. 999 Page 4 of 15 CHAPTER 15.72 CONDITIONS FOR USE OF RIGHTS -OF -WAY 15.72.010 Applicability The terms of this chapter and Chapter 18.28 YMC, Engineering Specifications and Standard Details, shall apply to all grantees. 15.72.020 General duties A. All grantees, before commencing any construction in the rights -of -way, shall comply with all requirements of the City of Yelm Municipal Code or other ordinances of the City. B. All grantees shall have no ownership rights in rights -of -way, even though they may be granted a license, franchise or cable franchise to construct or operate their facilities. 15.72.030 Interference with the rights -of -way No grantee may locate or maintain its telecommunications facilities so as to unreasonably interfere with the use of the rights -of -way by the City, by the general public or other persons authorized to use or be present in or upon the rights -of -way. All such facilities shall be moved by and at the expense of the grantee, temporarily or permanently, as determined by the City. 15.72.040 Damage to property No grantee or any person acting on a grantee'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 Section 15.72.130 YMC. 15.72.050 Notice of work Unless otherwise provided in a license or franchise agreement, no grantee, or any person acting on the grantee's behalf, shall 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 a grantee's work shall be afforded the same notice. 15.72.060 Repair and emergency work In the event of an unexpected repair or emergency, a grantee may commence such repair and emergency response work as required under the circumstances, provided the grantee shall notify the City 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. Agenda Item 8. c. Ordinance No. 999 Page 5 of 15 15.72.070 Maintenance of facilities Each grantee shall maintain its facilities in good and safe condition and in a manner that complies with all applicable federal, state and local requirements. 15.72.080 Relocation or removal of facilities Within 60 days (or a longer period if mutually agreed upon by the grantee and Administrator) following written notice from the City, a grantee shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any telecommunications facilities within the rights -of- way whenever the City Administrator or designee shall have determined that such removal, relocation, change or alteration is reasonably necessary for: A. The construction, repair, maintenance or installation of any City or other public improvement in or upon the rights -of -way. B. The operations of the City or other governmental entity in or upon the rights -of -way. C. The vacation of a public street or the release of a utility easement. 15.72.090 Removal of unauthorized facilities A. In its discretion, the Administrator at any time may require any person who owns, controls or maintains any unauthorized telecommunications facility or cable facility or related appurtenances within the rights -of -way to: 1. Apply for a license, franchise or cable franchise within 30 days of receipt of written notice from the City to such person that such a license, franchise or cable franchise is required; or 2. Require such person to remove its facilities and restore the affected area within 90 days to a condition satisfactory to the City; or 3. Direct City personnel to remove the facilities and restore the affected area to a condition satisfactory to the City and charge the person the costs therefor, including by placing a lien on the person's property; or 4. Take any other action authorized by applicable law. B. A telecommunications facility or cable facility is unauthorized and subject to removal in the following circumstances: 1. Upon expiration or termination of the grantee's license, franchise or cable franchise unless otherwise provided by law. 2. Upon abandonment of a facility within the rights -of -way. In certain situations facilities may be required to be abandoned in place for the preservation of the rights -of -way. In this case, the facilities would not be subject to removal. Agenda Item 8. c. Ordinance No. 999 Page 6 of 15 3. If the facility was constructed or installed without the prior issuance of a required encroachment, utility or other permit. 4. If the facility was constructed or installed at a location not permitted by the grantee's license, franchise or cable franchise. 5. To the extent permitted by law, any such other reasonable circumstances affecting public health, safety and welfare deemed necessary by the Administrator. C. Notwithstanding any other provision of this section, the Administrator may, in its sole discretion, allow a grantee or other person who may own, control or maintain telecommunications facilities or cable facilities within the rights -of -way of the City of Yelm to abandon such facilities in place. No facilities of any type may be abandoned in place without the express written consent of the Administrator. Any plan for abandonment or removal of such facilities must be first approved by the Administrator and all necessary permits must be obtained prior to commencement of such work. Upon permanent abandonment of any telecommunications facilities or cable facilities of such persons in place, the facilities shall become the property of the City, and such persons shall submit to the Administrator an instrument in writing, to be approved by the City attorney's office, transferring ownership of such facilities to the City. The provisions of this section shall survive the expiration, revocation or termination of any license, franchise or cable franchise granted under this division. 15.72.100 Failure to relocate If a grantee is required to relocate, change or alter the telecommunications facilities hereunder and fails to do so, the City may cause such to occur and charge the grantee for the costs incurred. 15.72.110 Emergency removal or relocation of facilities The City retains the right and privilege to cut or move any telecommunications facilities located within the rights -of -way as the City may determine to be necessary, appropriate or useful in response to any public health or safety emergency. 15.72.120 Damage to grantee's facilities Unless directly and proximately caused by the willful, intentional or malicious acts of the City, the City shall not be liable for any damage to or loss of any telecommunications facility within the rights -of -way as a result of or in connection with any public works public improvements, construction, excavation, grading, filling, or work of any kind in the rights -of -way by or on behalf of the City. State law requires that all utilities contact the utility underground locate service 48 hours prior to start of construction. Agenda Item 8. c. Ordinance No. 999 Page 7 of 15 15.72.130 Restoration of rights -of -way Restoration shall comply with the following: A. When a grantee, or any person acting on its behalf, does any work in or affecting any rights -of -way, it shall, at its own expense, promptly remove any obstructions therefrom and restore such ways or property to the same condition which existed before the work was undertaken. As used in this section, "promptly" means as required by the City's Public Works Director in the reasonable exercise of the Director's discretion. B. If weather or other conditions do not permit the complete restoration required hereunder, the grantee shall temporarily restore the affected ways or property. Such temporary restoration shall be at the grantee's sole expense and the grantee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration. C. A grantee or other person acting on its behalf shall use suitable barricades, flags, flagmen, lights, flares and other measures as required for the safety of all members of the general public and to prevent injury or damage to any person, vehicle or property by reason of such work in or affecting such rights -of -way. Upon request by the Director, the grantee shall provide the City with maps in a format agreed to by the grantee and the City, identifying the location of all telecommunications facilities and cable facilities within the rights -of -way except individual service connections. 15.72.150 Duty to provide information Within 10 days of a written request from the Administrator, each grantee shall furnish the Administrator with information reasonably necessary to fulfill purposes of this division and sufficient to demonstrate: A. That grantee has complied with all requirements of this division. B. That all taxes and fees due the City in connection with the telecommunications services and telecommunications facilities or cable services and cable facilities provided by the grantee have been properly collected and paid by the grantee. C. That all books, records, maps and other documents maintained by the grantee with respect to its facilities within the rights -of -way have been made available for inspection by the Administrator and the Director at reasonable times and intervals. Agenda Item 8. c. Ordinance No. 999 Page 8 of 15 15.72.160 Grantee insurance Unless otherwise provided by a license, franchise, or cable franchise, before commencing construction in the rights -of -way, each grantee shall secure and maintain the following liability insurance policies. A. Commercial general liability insurance, and if necessary, umbrella liability insurance, which will cover bodily injury, property damage, and any other exposure which can be reasonably identified as potentially arising from the grantee's activities within the rights -of -way. The limit of liability shall not be less than $2,000,000 each occurrence. The City, its elected and appointed officers, officials, employees, agents, and representatives shall be named as additional insured's with respect to activities occurring within its rights -of -way. Coverage shall be comprehensive with respect to the grantee's activities within the rights -of -way and shall include completed operations, explosions, collapse, and underground hazards. B. Business automobile liability insurance for owned, nonowned and hired vehicles with limits of not less than $2,000,000 per person, $3,000,000 per accident. C. Workers' compensation insurance as required by Title 51 RCW and employers' liability coverage with a limit of not less than $1,000,000 per occurrence. D. The insurance policies required by this section shall be maintained at all times by the grantee. Each liability policy shall be endorsed to require the insurer to notify the City at least 45 days before the policy can be canceled by either party, and to require notice of cancellation due to nonpayment of premium to be mailed to the Administrator as well as the named insured. The grantee will be obligated to replace or renew the canceled or expiring policy and show proof in the form of a certificate of insurance, at least 20 days before the expiration or cancellation of the existing policy(ies). E. The grantee shall furnish the City with properly executed certificates of insurance or a signed policy endorsement which shall clearly evidence all insurance required in this section. The certificate will, at a minimum, list limits of liability, coverage, and all exclusions. F. The grantee or its agent will provide a copy of any and all insurance policies specified in this division upon request of the Administrator. G. The insurance limits mandated for any insurance coverage required by this division are not intended to be an indication of limits of exposure nor are they limitations on liability or indemnification. Agenda Item 8. c. Ordinance No. 999 Page 9 of 15 15.72.170 Release, indemnity and hold harmless A. In addition to and distinct from the insurance requirements of this division, grantee releases and shall defend, indemnify and hold harmless City, its elected and appointed officers, officials, employees, agents, and representatives (collectively referred to as the "indemnities ") from any and all claims, losses, costs, liabilities, damages and expenses, including, but not limited to, those of the grantee's lessees, and also including, but not limited to, reasonable attorneys' fees (except those damages caused solely by the negligence of the indemnities) arising out of or in connection with the telecommunications facilities or cable facilities or installation of any telecommunications facilities or cable facilities, the performance of any work, the operation of any cable communications facilities or cable facilities, or the grantee's system, or the acts or omissions of the grantee or any of its suppliers or contractors of any tier, or anyone acting on the grantee's behalf in connection with said installation of telecommunications facilities or cable facilities, performance of work, or operation of the telecommunications facilities or cable facilities or grantee's system. B. Such indemnity, protection and hold harmless shall include any demand, claim, suit or judgment for damages to property or injury to or death of persons, including officers, agents, and employees of any person including payment made under or in connection with any worker's compensation law or under any plan for employees' disability and death benefits, which may arise out of or be caused or contributed to directly or indirectly by the erection, maintenance, presence, operation, use or removal of grantee's telecommunications facilities or cable facilities or installations of telecommunications facilities or cable facilities including any claims or demands of customers of the grantee with respect thereto. C. Indemnities shall not be liable to the grantee or to the grantee's customers, and the grantee indemnifies, protects and saves harmless the indemnities against any and all such claims or demands, suit or judgment for loss, liability, damages and expense by the grantee's customers, or for any interruption to the service of the grantee, or for interference with the operation of the telecommunications facilities or cable facilities. D. To the fullest extent permitted by applicable law, the foregoing release, indemnity and hold harmless provisions shall apply to and be for the benefit of the indemnities. E. All provisions of this section shall apply to the successors and assigns of the grantee. Agenda Item 8. c. Ordinance No. 999 Page 10 of 15 15.72.180 Security fund Before commencing construction or obtaining a license, franchise or cable franchise in the rights -of -way, each grantee shall establish a permanent security fund with the City by depositing the amount of up to $50,000 with the City in cash, an unconditional letter of credit, or other instrument acceptable to the City, which fund shall be maintained in the designated amount at the sole expense of grantee so long as any of grantee's telecommunications facilities or cable facilities are located within the rights - of -way. This security fund shall be separate and distinct from any other bond, letter of credit or deposit required by a telecommunications franchise or cable franchise. If a grantee has telecommunications facilities or cable facilities in the rights -of -way for five consecutive years, the grantee may request the City to waive the requirement for a security fund. In addition, if, at the discretion of the council, an existing grantee is considered to be "in good standing" with the City, the security fund may be waived. This determination is made during the utility permit process as described in Chapter 18.12 YMC. A. The fund shall serve as security for the full and complete performance of grantee's obligations under this division, including any costs, expenses, damages or loss the City pays or incurs because of any failure attributable to the grantee to comply with the codes, ordinances, rules, regulations or permits of the City. B. Before any sums are withdrawn from the security fund, the Administrator shall give written notice to the grantee: 1. Describing the act, default or failure to be remedied, or the damages, cost or expenses which the City has incurred by reason of the grantee's act or default; 2. Providing a reasonable opportunity for the grantee to first remedy the existing or ongoing default or failure; 3. Providing a reasonable opportunity for the grantee to pay any moneys due the City before the City withdraws the amount thereof from the security fund; and 4. That the grantee will be given an opportunity to review the act, default or failure described in the notice with the Administrator. C. Grantee shall replenish the security fund within 14 days after written notice from the Administrator that there is a deficiency in the amount of the fund. 15.72.190 Construction and completion bond Unless otherwise provided in a license or franchise agreement, a bond written by a surety acceptable to the City equal to at least 100 percent of Agenda Item 8. c. Ordinance No. 999 Page 11 of 15 the estimated cost of restoration of the rights -of -way shall be secured before a construction permit is issued. An annual bond may be approved by the Director for numerous small line extension projects in lieu of an individual bond for each project. A. The construction bond shall remain in force until 60 days after substantial completion of the work, as determined by the City Administrator or designee, including restoration of rights -of -way and other property affected by the construction. B. The construction bond shall guarantee, to the satisfaction of the City: 1. Timely completion of construction; 2. Construction in compliance with applicable plans, permits, technical codes and standards; 3. Proper location of the facilities as specified by the City; 4. Restoration of the rights -of -way and other property affected by the construction; 5. The submission of as -built drawings after completion of the work as required by this title; 6. Timely payment and satisfaction of all claims, demands or liens for labor, material or services provided in connection with the work. 15.72.200 Acts at grantee's expense Any act that a grantee is or may be required to perform under this division, a license, franchise, or cable franchise or applicable law shall be performed at the grantee's expense. 15.72.210 Coordination of construction activities All grantees are required to cooperate with the City and with each other as follows: A. By February 1st of each year, grantee 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. B. Each grantee shall meet with the City, other grantees and users of the rights -of -way annually or as determined by the City to schedule and coordinate construction. C. All construction locations, activities and schedules shall be coordinated, as ordered by the City Administrator or designee, to minimize public inconvenience, disruption or damages. Agenda Item 8. c. Ordinance No. 999 Page 12 of 15 15.72.220 Assignments or transfers Ownership or control of a license, franchise or cable franchise may not directly or indirectly be transferred, assigned or disposed of by sale, lease, merger or consolidation, by operation of law or otherwise, nor may there be a transfer of working control (which includes not only actual control, but also, the ability to affect or influence decisions) without the prior written consent of the City, as expressed by ordinance and then on such conditions as may be prescribed therein and: A. No grant with respect to a telecommunications service shall be assigned or transferred in any manner within 12 months after the initial grant of the license or franchise unless otherwise provided by law. B. Absent extraordinary and unforeseeable circumstances and to the extent permitted by law, no grant with respect to a telecommunications service shall be assigned or transferred before construction of the telecommunications facilities have been completed. C. The proposed assignee or transferee shall provide and certify the following information to the Administrator: 1. Complete information setting forth the nature, terms and conditions of the proposed transfer or assignment; 2. All information required of a license, franchise or cable franchise applicant pursuant to this division with respect to the proposed transferee or assignee; 3. All information required by federal, state and local law or regulation, including, but not limited to, FCC Form 394; 4. Any other information reasonably required by the Administrator. D. No transfer shall be approved unless the assignee or transferee has the legal, technical, financial and other qualifications in the City's reasonable discretion to own, hold and operate the telecommunications system pursuant to this division, and unless there is compliance with the license, franchise and cable franchise (as applicable). E. The assignee or transferee shall reimburse the City for all direct and indirect fees, costs and expenses incurred by the City in considering a request to transfer ownership in or assign a license, franchise or cable franchise unless otherwise prohibited by law. F. Any transfer of ownership in or assignment of a license, franchise or cable franchise without prior approval of the City under this division shall be void and is cause for revocation of the grant. G. Upon receipt of all information required herein, and any other information reasonably required by the City, the City shall have 120 days Agenda Item 8. c. Ordinance No. 999 Page 13 of 15 to review and approve or deny the requested assignment or transfer. If the City is unable to approve or deny the requested assignment or transfer within such period, the City shall provide notice of the reasons for the delay and the period of time needed to complete its review, and such review period shall be extended to the extent permitted by law. H. In addition to the other requirements herein, a copy of the transfer or assignment document, deed or other documentation deemed necessary by the City shall also be filed with the Administrator within 10 days of any change in ownership or control. I. Except as provided in Section 15.72.230 YMC, City's consent shall not be required for any assignment which is the result of a corporate merger, sale of all or substantially all of the corporate assets, sale of any or all of the corporate stock, consolidation or reorganization, whether voluntary or involuntary, or assignment to a subsidiary, parent, or affiliated company so long as such assignee or transferee is financially qualified and there are no outstanding issues of noncompliance under this division, a license, franchise or cable franchise. Nothing contained herein shall prevent or restrict an assignor's, lessor's, or person's right to (a) mortgage its interest or (b) assign or lease to a third party fiber optic cables or telecommunication capacity (so long as it is for uses authorized by telecommunications franchises or cable franchises), and no consent shall be required for such mortgage, lease or assignment. Such assignors and lessors shall, however, be responsible for written notification to City of such assignment or lease due to those occurrences defined herein in which City's consent is not required, and such notification shall include the appropriate names, address and contact points for the assignee or lessee. 15.72.230 Transactions affecting control Franchisee shall promptly notify the City of any proposed change in, transfer of, or acquisition by any other party of control of franchisee. If beneficial ownership of 30 percent or more of the voting stock of franchisee, or of any parent company of franchisee, immediate or otherwise, or of any entity now owning or later acquiring such a beneficial interest, is acquired by a single entity or by several entities under common control, and if such entity or entities of common control is other than an organization that is more than 50 percent owned by franchisee, or a parent or affiliate of franchisee, then a change of control will be deemed to have taken place unless the City, upon request of franchisee, finds otherwise. Such change of control shall make this franchise subject to revocation unless and until the City shall have given written consent thereto. For the purpose of determining whether it will consent to such change, transfer, or acquisition of control, the City may inquire into qualifications of the prospective controlling party to perform the Agenda Item 8. c. Ordinance No. 999 Page 14 of 15 obligations of franchisee under this agreement. Franchisee shall assist the City in any such inquiry. Franchisee shall reimburse the City for all reasonable costs incurred in a change of control approval process. The City may condition its consent upon such reasonable terms and conditions as it deems appropriate. Consent to a change of control request shall not be unreasonably withheld. 15.72.240 Revocation or termination A license, franchise or cable franchise granted by the City to use or occupy rights -of -way may be revoked for any one or more of the following reasons: A. Construction or operation at an unauthorized location; B. Unauthorized transfer of control; C. Unauthorized assignment of a license, franchise or cable franchise; D. Misrepresentation in any application to the City; E. Abandonment of telecommunications facilities or cable facilities in the rights -of -way; F. Failure to relocate or remove telecommunications facilities or cable facilities as required in this division; G. Failure to pay taxes, compensation, fees or costs when and as due the City; H. Insolvency or bankruptcy; I. Violation of a provision of this division; J. Violation of a term of a license, franchise or cable franchise. 15.72.250 Notice and duty to cure In the event that the Administrator believes that grounds exist for revocation of a license, franchise or cable franchise, written notice shall be given of the apparent violation or noncompliance, there shall be provided a short and concise statement of the nature and general facts of the violation or noncompliance, and there shall be given a reasonable period of time not exceeding 30 days to furnish evidence: A. That corrective action has been, or is being actively and expeditiously pursued, to remedy the violation or noncompliance; B. That rebuts the alleged violation or noncompliance; C. That it would be in the public interest to impose some monetary damages, penalty or sanction less than revocation. Agenda Item 8. c. Ordinance No. 999 Page 15 of 15 15.72.260 Hearing In the event that a grantee fails to provide evidence reasonably satisfactory to the Administrator as provided hereunder, the Administrator shall make a preliminary determination as to whether an event of default by grantee has occurred and initially prescribe remedies in accordance with Section 15.72.270 YMC. In the event that a grantee wants to appeal such determination, it shall do so to the hearing examiner, as provided in Section 18.10.100 YMC. 15.72.270 Standards for revocation or lesser sanctions If persuaded that the grantee has violated or failed to comply with a provision of this division or of a license, franchise, cable franchise or applicable codes, ordinances, statutes, or rules and regulations, the Administrator shall make a preliminary determination whether to revoke the license, franchise or cable franchise, and issue a written order, or to impose monetary damages, a penalty, or other such lesser sanction and cure, considering the nature, circumstances, extent and gravity of the violation as reflected by one or more of the following factors: A. Whether the misconduct was egregious; B. Whether substantial harm resulted; C. Whether the violation was intentional; D. Whether there is a history of prior violations of the same or other requirements; E. Whether there is a history of overall compliance; F. Whether the violation was voluntarily disclosed, admitted or cured. To: Mayor Ron Harding Yelm City Council Agenda Item 8. d. Yelm Ave. Sidewalk Contract Page 1 of 2 City of Yelm STAFF REPORT From: Ryan Johnstone, Public Works Director Date: May 12, 2015 (for May 26, 2015 City Council Meeting) Subj: Yelm Avenue Sidewalk Improvements Construction Award Recommendation Authorize Mayor Harding to sign a contract with Iversen and Sons, Inc. in the amount of (Two Hundred Thousand One Hundred Eighty Five Dollars and No Cents) $200,185.00 for construction services related to the Yelm Avenue E. sidewalk improvement project. Background Historically, the City pursues grant funding in order to complete sections of new sidewalk. In 2014, the City was successful in obtaining Transportation Improvement Board (TIB) grant funding in the amount of $184,184.00 to complete a section of missing sidewalk on Yelm Avenue East between Cullens and Solberg Streets. Design was completed in April 2015 and the project was sent out for construction bids. Current Situation Bids were opened on May 6, 2015 and five bids were received. They were: Iversen and Sons, Inc. $200,185.00 Rainier General Development, Inc. $230,576.75 Northwest Cascade, Inc. $228,714.00 R.W. Scott Construction Co. $252,590.00 Nova Contracting, Inc. $337,650.00 Bid accuracy has been checked and Iversen and Sons, Inc. is the low responsive bid at $200,185.00. The amount budgeted in the Street Construction Fund #316 for engineering and construction was $234,184, which included a $50,000 city match towards the grant. The project total with the low bid stands at $255,185, which requires an additional $21,001 in revenue. A request has been sent to the TIB for additional dollars, however, a response is pending at this time. The difference not covered by TIB, will be paid for out of the remaining reserve in the Street Construction Fund #316 (approximately $10,000) and /or the Arterial Street Fund #102 (remaining reserve of $91,500). Staff recommends awarding the contract to Iversen and Sons, Inc. May 26, 2015 Page 1 of 1 Agenda Item 8. d. Yelm Ave. Sidewalk Contract Page 2 of 2 May 26, 2015 Page 2 of 1 12. Correspondence Pagel of 4 1`� uuw News RJE�CY0llh,�TlfNIG XlfNUlD WAS T IE IIRR I V I�E IlfNI 1 ( YfNI IlfNUE�WS IIF(YR T f� -Ih ,,,! I�R S T(YfNI - a c e y c II t y cm, n n c II II to Ii e c o n n s II c: ro.G Ii Ik: n a g Ib :7f Ir n at vI a y '12,1. vv m I:11' sessbn Please see the Olympian article in today's paper at L,AL n: lwww.theoi. 1 ian.con,/_a¢ .5 O- /igz a aoa co� an- seeks -to- overturn- pi.astic.hLm.I ?rh= 1 Note that the statement attributed to Councilmember Greinstein is incorrect: plastic bags are not recyclable in Thurston County. Our local waste and recycling hauler, Lemay - Waste Connections, discontinued collection at area stores over a year ago. Plastic film had no value in the recycling market and they could not find a buyer for the bags and other materials. They have never been accepted in curbside recycling and cause expensive problems for processors when residents place them there. Some Lacey councilmembers had discounted the favorable results from an earlier survey done by Solid Waste, stating the survey was unscientific and self - reporting. The county used the same survey system for the followup survey, that some councilmembers are using to seek a repeal of the ban. The six month initial poll provided early interim information but was not intended for the cities to use to make direction changes before the community had adjusted to the 12. Correspondence Page 2 of 4 ban. We encourage jurisdicitons to wait until the July 2o16 survey and report is complete - basically a year away. Funds are included in the Solid Waste proposed budget to hire a consulting firm for that survey - which will provide the scientific data that Lacey is seeking. Countywide, the initial poll, before the ban, indicated 49% of the population would support a ban. The six month follow -up found 54% want the ban repealed. These numbers do not differ too much. For more information, contact Terri Thomas at Thom.asTeCc)co.thurston.wa.us or (360) 867-2279. THURSTON COUNTY SINN. M2 News Release FOR IMMEDIATE RELEASE: Tuesday, May 19, 2015 12. Correspondence Page 3 of 4 Mary Hall AUDITOR CONTACT: Mary Hall, Thurston County Auditor, TCAuditor @co.thurston.wa.us Valerie Walston, Voter Outreach Coordinator, WalstoV @co.thurston.wa.us (360) 786 -5408 TTY (360) 754 -2933 Special Three -Day Filing Period for Positions without Candidates Open positions are with the Munn Lake and Gibson Valley Fire Protection Districts, Tanglewilde Parks & Recreation District, and Yelm Cemetery District Olympia, WA — A special three -day filing period will be held Wednesday, May 27 through Friday, May 29 to encourage citizens to consider filing declarations of candidacy for positions without candidates. Open positions include: • Fire Protection District No. 15 (Munn Lake), Fire Commissioner, Position No. 1 • Fire Protection District No. 15 (Munn Lake), Fire Commissioner, Position No. 2 • Fire Protection District No. 16 (Gibson Valley), Fire Commissioner, Position No. 1 • Tanglewilde Parks & Recreation District No. 1, Parks & Recreation Commissioner, Position No. 3 • Tanglewilde Parks & Recreation District No. 1, Parks & Recreation Commissioner, Position No. 4 • Cemetery District No. 2 (Yelm), Cemetery Commissioner, Position No. 2 These positions have no filing fee. Candidates may file: • Online at ThurstonVotes.org beginning 9:00 a.m. Wednesday through 4:00 p.m. Friday during the three -day filing period. • In person at the Thurston County Auditor's Office (2000 Lakeridge Dr SW, Bldg. 1, Rm. 118, Olympia, WA 98502) between 8:00 a.m. — 4:30 p.m. during the three -day filing period. (Mailed filings must be received by 4:30 p.m. on Friday, May 29, 2015.) • By fax /email: (360) 786 -5223 or elections @co.thurston.wa.us. -30- Thurston County Auditor, 2000 Lakeridge Drive SW, Olympia, WA 98502 -6090 (360) 786 -5408 FAX (360) 786 -5223 E -mail: elections @co.thurston.wa.us 12. Correspondence Page 4 of 4 THE YELM BUSINESS ASSOCIATION 715 Yelm Ave E • Suite 1 • Yelm • Washington • 98597 Tel (360) 960 -8366 • Fax (360) 350 -5627 info@yelmbusiness.org www.yelmbusiness.org May 15, 2015 City Council The Hon. Ron Harding c/o City of Yelm 105 Yelm Ave. West Yelm, WA 98597 Re: The Yelm Business Association Dear City Council Members and Mayor Harding: The purpose of this letter is to make certain that you are aware of the concerns that have been expressed in the City of Yelm both by locally owned businesses and by citizens of the City. Our organization was formed to bridge the gap between locally owned businesses and their city gov- ernment through advocacy, as well as to create a positive and successful working relationship between the city and our members. The term "advocacy" does not necessarily mean "adversari- al", and when used in the context of our organization, it simply means to make our concerns, needs and ideas known to our city leaders so that the decisions they make in taking Yelm for- ward will be made with those issues in mind. Since forming the organization, we have been very excited to see the positive response from the community. Local business owners have repeatedly told us that they are excited to have an or- ganization to speak on their behalf. Business owners have conveyed to us that the local citizens are welcoming and friendly, and that it is a pleasure doing business in a small town environment. They desperately want to keep that environment as is, and are almost unanimous in wanting to see the city promote local and small businesses as well as attracting light industrial and manufac- turing businesses to add to the job -base and the tax base and to infill some of our vacant land that is not being used. Local business owners understand that money spent locally stays local. Mon- ey spent in big -box stores and national chain stores leaves the community forever. Local busi- ness hire local people and pay living wages, and that money stays in the local economy as well. Overall, the businesses we represent love Yelm. They love the community. They hire locally, spend their money locally, and buy homes in Yelm and the surrounding area. Page 1 However, all is not rosy in Yelm. There is, at least a perception, if not a reality, that the City of Yelm is extremely unfriendly to businesses. Unfortunately, because the City has refused to meet with us, it is not possible for us to address these concerns with our members and give them ad- vice on improving the way we interact with the city. We have approached several business own- ers who have refused to join us or speak up because they fear retaliation from the City. Local businesses should not have to fear their government. If we could form a working relationship, we could open up the lines of communication and, perhaps, heal those wounds. To that end, I would like to invite you to sit down with us at a board meeting so we can discuss the common goals we have and how to approach our common challenges. If you would be more comfortable discussing these issues outside of a formal meeting setting, we would be happy to meet with you over a cup of coffee or lunch. Our only goal is to open the lines of communication between the Yelm Business Association and the City of Yelm. Once we establish a dialog, I firmly believe that you will be excited at the vision our community members and business owners have for the future of Yelm. In the short time that we have been actively growing our association, we have co- hosted events with the Chamber, had community meetings, including the first town -hall meeting Yelm has seen in almost two decades, and have gathered input from literally hundreds of community leaders, citizens and business owners. They all have expressed a desire to see Yelm grow into destination community. They all have stated that they love our diversity, and that they would like to see our military families honored and integrated into the community. We have heard, repeatedly that there need to be places for our youth and programs to get them involved in the community in a safe and appropriate manner. Yelm is seen by many as a "drive -by" town. It's one long road with derelict, dilapidated build- ing and a dying core. It appears to people driving through to be a town that just doesn't care, and as you and we know, that just isn't the case. We need, desperately, to give people from out of town a reason to come to Yelm, and to stop in Yelm and shop on their way the Mt. Rainier. We need to develop a walkable and inviting downtown core and actively attract businesses to that downtown core that are unique, interesting and that cause people to want to stop and enjoy what we have to offer. We need to enforce the laws which are already on the books to hold building owners accountable for maintaining nuisances. We have also repeatedly heard concerns that our police department is not fully funded. Our po- lice officers are dedicated, hard- working, and do a commendable job, but there simply are not enough of them to cover a city that has grown as rapidly as Yelm has. Building a strong business community and fostering an environment that is inviting to small and mid -sized businesses would give the City the added tax revenues it needs to hire and support more officers, as well as to accomplish its other goals. The Vision Plan is a brilliant piece of work, but it has never been updated. Yelm has exploded in size. The economy both locally and statewide has changed. The needs of the community are not what they were when the plan was formed. We are sponsoring an event in June involving the Page 2 author of Yelm's Vision Plan, John Owen. He has graciously agreed to come to Yelm to host a walking tour and talk about how his plan has been implemented through the years, what his ex- pectations were, and where we should go from here. The Yelm Business Association will for- ward the dates and details to you as soon as they become available, and we would love to have you in attendance. As a final matter, I want you to know that interacting with the community here in Yelm has been one of the most refreshing experiences I have ever had. People love this town. They want it to succeed, but they want it to do so without losing its character. We had 65 people show up at our town hall meeting on fairly short notice, and they were all excited and happy to be heard. That meeting could have gone all night. We will have more meetings in the future. Please make time in your busy schedules to attend and really listen to what your constituents are saying. If their enthusiasm doesn't inspire you, then I don't know what will. Siin e f rs j aniel TowG Executive Director Page 3