HomeMy WebLinkAboutORD. NO. 2026-002 franchise agmt with NFC Northwest_telecommunications systemORDINANCE NO. 2026-002
AN ORDINANCE granting a non-exclusive franchise to NFC Northwest, LLC to construct,
operate, and maintain a telecommunication system within the City of
Yakima, Washington and setting forth the conditions accompanying the
grant of the franchise.
TABLE OF CONTENTS
Page
SECTION 1 DEFINITIONS
1.1(A) Captions 5
1.1(B) Definitions 5
1.2 "City" 5
1.3 "City Council" 5
1.4 "Customer" 5
1.5 "Days" 5
1.6 "Facility(ies)" 5
1.7 "FCC" 5
1.8 "Franchise" 5
1.9 "Franchise Service Area" 6
1.10 "Grantee" 6
1.11 "Gross Operating Revenues" 6
1.12 "Network Telephone Service" 6
1.13 "Permittee" 6
1.14 "Permitting Authority" 6
1.15 "Person" 6
1.16 "Penalties" 6
1.17 "Right -of -Way" or "Rights -of -Way" 6
1.18 "Street" or "Streets". 6
1.19 "Telecommunications Services" 7
1.20 "Telecommunications System" 7
1.21 "WUTC" 7
1.22 "Year", "Annual" or "Annually" 7
SECTION 2 FRANCHISE
2.1 Grant of Franchise 7
2.2 Franchise Term 8
2.3 Franchise Non -Exclusive 8
2.4 Authority Granted 8
2.5 Limits on Permission 9
2.6 Franchise Service Area 9
2.7 Periodic Public Review of Franchise 10
2.8 Franchise Renewal or New Franchise 10
2.9 Renegotiation 10
2.10 Revocation 10
2.11 Receivership 11
2.12 Expiration 12
2.13 Transfer of Ownership 12
2.14 Change in Control 12
2.15 No Stock to be Issued 13
2.16 Other Codes and Ordinances 13
2.17 Survival of Terms 13
SECTION 3 ENFORCEMENT AND ADMINISTRATION BY CITY
3.1 City Jurisdiction and Supervision 13
3.2 Grantee to Have No Recourse 13
3.3 Acceptance of Power and Authority of City 14
3.4 Acts Discretionary, Reservation of Authority 14
3.5 Delegation of Authority to Regulate 14
SECTION 4 OPERATION IN STREETS AND RIGHTS -OF -WAY
4.1 Use of Streets 14
4.2 Construction or Alteration 15
4.2.1 Permits 15
4.2.2 Schedule and Maps 15
4.2.3 Good Engineering 15
4.3 Facilities Placement 15
4.3.1 General Standards 15
4.3.2 Limited Access 16
4.3.3 Consistency with Designated Use 16
4.3.4 Non -Interference 16
4.3.5 Undergrounding 16
4.4 Coordination with Other Users 17
4.5 Relocation 17
4.6 Movement of Buildings 18
4.7 Tree Trimming 19
4.8 Restoration 19
4.9 City Right to Require Removal of Property 20
4.10 Emergency Repairs 20
4.11 City Right of Inspection 21
4.12 After -Acquired Facilities 21
4.13 Information 21
SECTION 5 SYSTEM DESIGN AND STANDARDS
5.1 Initial Telecommunications System Construction 21
5.1.1 Construction Schedule 21
5.1.2 Construction Timeline 21
5.2 Technical Standards 21
5.3 Performance Testing 22
SECTION 6 CUSTOMER SERVICE POLICIES
6.1 City Reservation of Rights 22
6.2 Response to Customers 22
6.3 City Franchise Contact Identified 22
6.4 Notice of Change in Services 22
6.5 Complaints 22
6.6 Regulation of Rates and Charges 22
SECTION 7 COMPENSATION AND FINANCIAL PROVISIONS
7.1 Taxes and Fees 23
7.1.1 City Occupation Tax on Utilities 23
7.1.2 Other Fees 23
7.2 Payments 24
7.3 Financial Records 24
7.4 Auditing 25
7.5 Insurance 25
7.5.1 Coverages 25
7.5.2 Proof of Insurance 26
7.5.3 Alteration of Insurance 26
7.5.4 Failure to Procure 27
7.6 Performance Bond 27
7.7 Indemnity, No Estoppel, No Duty 27
SECTION 8 REPORTING REQUIREMENTS
8.1 Monthly Reports 28
8.2 Annual Reports 29
8.3 Monitoring and Compliance Reports 29
8.4 Additional Reports 29
8.5 Communication with Regulatory Agencies 29
8.6 Preservation of Confidential Information 30
SECTION 9 REMEDIES AND PROCEDURE FOR REMEDYING
FRANCHISE VIOLATIONS
9.1 Remedies for Franchise Violations 30
9.2 Procedure for Remedying Franchise Violations 30
9.2.1 Notice of Violation 30
9.2.2 NWM's Right to Cure or Respond 31
9.2.3 Public Hearing 31
9.3 Enforcement 31
9.4 Failure to Enforce 31
9.5 Acts of Nature 31
9.6 Altemative Remedies 31
SECTION 10 MISCELLANEOUS PROVISIONS
10.1 Posting and Publication 31
10.2 Service of Notice 32
10.3 Compliance with Laws 32
10.4 Governing Law and Venue 32
10.5 Severability 33
10.6 Guarantee of Performance 33
10.7 Force Majeure 33
10.8 City Right of Intervention 33
10.9 Consent 33
10.10 No Third Party Beneficiaries 33
10.11 Franchise Ordinance Acceptance 34
10.12 Previous Rights Abandoned 34
10.13 Effective Date 34
BE IT ORDAINED BY THE CITY OF YAKIMA that a franchise is hereby granted to NFC
Northwest, LLC, to operate and maintain a telecommunications system in the City of Yakima,
Washington upon the following express terms and conditions:
SECTION 1 - DEFINITIONS
1.1 (A) Captions. Throughout this Franchise, captions to sections are intended solely to
facilitate reading and to reference the sections and provisions of this Franchise. The captions
shall not affect the meaning and interpretation of this Franchise.
1.1 (B) Definitions. For the purposes of this Franchise the following terms, phrases,
words and their derivations shall have the meaning given herein. When not inconsistent with the
context, words used in the present tense include the future, words in the plural number include
the singular number, words in the singular number include the plural number and the use of any
gender shall be applicable to all genders whenever the sense requires. The words "shall" and
"will" are mandatory and the word "may" is permissive. Where a term in this Franchise is not
defined in this Section and there exists a definition for the term in the Telecommunications Act of
1996, Pub. Law No. 104-104, 110 Stat. 56 (1996) (the "Telecommunications Act"), the
Telecommunications Act definition shall apply. Other terms in this Franchise that are not defined
in this Section shall be given their common or ordinary meaning.
1.2 "City" shall mean City of Yakima, Washington, and all the incorporated territory
within as of the effective date of this Franchise and any other areas later added thereto by
annexation or other means.
1.3 "City Council" shall mean the City Council of the City of Yakima, Washington.
1.4 "Customer" means any person(s) who legally receives any one or more of the
services provided by NFC Northwest, LLC utilizing the Telecommunications System.
1.5 "Days" shall mean calendar days.
1.6 "Facility(ies)" means all wires, lines, cables, conduits, equipment and supporting
structures, and/or any other tangible component of NFC Northwest, LLC's Telecommunications
System, located in the City's rights -of -way, utilized by NFC Northwest, LLC in the operation of
activities authorized by this Franchise. The abandonment by NFC Northwest, LLC of any
Facilities as defined herein shall not act to remove the same from this definition.
1.7 "FCC" shall mean the Federal Communications Commission.
1.8 "Franchise" shall mean the right granted by the Franchise Ordinance and
conditioned as set forth herein by which the City authorizes NFC Northwest, LLC to erect,
construct, reconstruct, operate, dismantle, test, use and maintain a Telecommunications System
in the City. The franchise granted herein shall be a non-exclusive franchise.
1.9 "Franchise Service Area" shall mean that area within the incorporated City limits
in which NFC Northwest, LLC shall extend its services.
1.10 "Grantee" shall refer to, as incorporated or used herein, NFC Northwest, LLC.
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1.11 "Gross Operating Revenues" shall have a meaning consistent with any existing
or future City Code. Gross Operating Revenues shall include any and all compensation in
whatever form, from any source, directly earned by NFC Northwest, LLC or any affiliate of NFC
Northwest, LLC or any other person who would constitute an operator of NFC Northwest, LLC's
Telecommunications System under applicable local, state and/or federal law, derived from the
provision of Telecommunications Services originating or terminating in the City and/or charged to
a circuit location in the City regardless of where the circuit is billed or paid.
1.12 "Network Telephone Service" means the provision of access to the local
telephone network, local telephone switching service, toll service, or otherwise providing
telephonic, data, video conferencing or similar communication or transmission services for hire
via a local network, line, channel or similar communication or transmission system. Network
Telephone Service includes intrastate or interstate services and specifically excludes cable
television or open video system service, broadcast services or other multi -channel video services.
1.13 "Permittee" means any person who has been granted a permit by the assigned
permitting authority.
1.14 "Permitting Authority" means the head of the City division or department
authorized to process and grant permits required to perform work in the City's rights -of -way, or
the head of any agency authorized to perform this function on the City's behalf. Unless otherwise
indicated, all references to the Permitting Authority shall include the designee of the department,
division or agency head.
1.15 "Person" means any individual, sole proprietorship, corporation, partnership,
association, joint venture or other form of organization of any kind and the lawful trustee,
successor, assignee, transferee or personal representative thereof.
1.16 "Penalties" means any and all monetary penalties provided for in this Franchise.
1.17 "Right -of -Way" or "Rights -of -Way" shall mean the surface of and the space
above and below any public street, road, highway, freeway, easement, lane, path, alley, court,
sidewalk, parkway or driveway now or hereafter existing as such within all incorporated areas of
the City.
1.18 "Street" or "Streets" shall mean the surface of and the space above and below
the right-of-way of any public street, road, highway, freeway, easement, lane, path, alley, court,
sidewalk, parkway or driveway now or hereafter existing as such within all incorporated areas of
the City.
1.19 "Telecommunications Services" shall mean:
A. Services interconnecting interexchange carriers, competitive carriers,
and/or wholesale telecommunications providers for the purpose of voice, video or data
transmission;
B. Services connecting interexchange carriers and/or competitive carriers to
telephone companies providing local exchange services for the purpose of voice, video or data
transmission;
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C. Services connecting interexchange carriers or competitive carriers to any
entity, other than another interexchange carrier, competitive carriers, or telephone company
providing local exchange services for the purpose of voice, video or data transmission;
D. Services interconnecting any entities, other than interexchange carriers,
competitive carriers, or telephone companies providing local exchange services for the purpose
of voice, video or data transmission;
E. Other telecommunications services as authorized by the Federal
Communications Commission or the Washington Utilities and Transportation Commission; and
F. Telecommunications Services include intrastate and interstate services
and specifically exclude cable television or open video system services, broadcast services or
other multi -channel video services.
1.20 "Telecommunications System" means all wires, cables, ducts, conduits, vaults,
poles and other necessary Facilities owned or used by NFC Northwest, LLC for the purpose of
providing Telecommunications Services and located in, under and above the City streets and/or
rights -of -way, excluding ducts, conduits and vaults leased from another City franchisee, licensee
or permittee.
1.21 "WUTC" shall mean the Washington Utilities and Transportation Commission.
1.22 "Year", "Annual" or "Annually" means the period consisting of a full calendar
year, beginning January 1 and ending December 31, unless otherwise provided for in this
Franchise.
SECTION 2 - FRANCHISE
2.1 Grant of Franchise. The City hereby grants to NFC Northwest, LLC Networks
LLC a non-exclusive franchise which authorizes NFC Northwest, LLC, subject to the terms of the
Franchise Ordinance, to construct a Telecommunications System and offer Telecommunications
Services in, along, among, upon, across, above, over, under or in any matter connected with the
rights -of -way located in the City and for that purpose to erect, install, construct, repair, replace,
reconstruct, maintain or retain in, on, over, under, upon, across or along any rights -of -way or
extensions thereof and additions thereto, such poles, wires, cables, conductors, ducts, conduits,
vaults, utility access covers, pedestals, amplifiers, appliances, attachments and other related
property or equipment as may be necessary or appurtenant to the Telecommunications System.
Said franchise shall constitute both a right and an obligation to provide the services of a
Telecommunications System as required by the provisions of this Ordinance.
2.2 Franchise Term. The term of this Franchise shall be ten (10) years from the
effective date unless terminated sooner in accordance with this Franchise. This provision does
not affect the City's right to revoke this Franchise for cause, because of a breach of any promise,
condition or stipulation stated herein.
2.3 Franchise Non -Exclusive. The franchise granted herein shall be non-exclusive.
The City specifically reserves the right to grant, at any time, such additional franchises for a
Telecommunications System as it deems appropriate provided, however, such additional grants
shall not operate to materially modify, revoke or terminate any rights previously granted to NFC
Northwest, LLC. The grant of any additional franchise shall not of itself be deemed to constitute
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a modification, revocation or termination of rights previously granted to NFC Northwest, LLC. Any
franchise granted pursuant to this Franchise shall confer and impose substantially similar rights
and obligations. In establishing the rights and obligations pursuant to a franchise, consideration
shall be given to the services to be provided, the area to be served, the commitments made by
the applicant to the City, the regulatory authority of the City and the investment proposed by such
applicant. In no event will the City impose discriminatory rights or obligations on any franchise
applicant.
2.4 Authority Granted.
A. Subject to local, state and federal law, this Franchise grants the authority,
right and privilege to NFC Northwest, LLC to operate and maintain a Telecommunications System
including the towers, antenna, satellite dishes, lines and other appurtenances necessary for the
provision of Network Telephone Service, as defined in Section 1.12 of this Franchise and in RCW
82.04.065, and other Telecommunications Services as defined herein, in, upon, along, above,
over and under the streets and rights -of -way in the City.
B. NFC Northwest, LLC's right to operate and maintain its
Telecommunications System is subject to the terms, conditions and requirements of the Franchise
Ordinance, this Franchise and the City Charter and NFC Northwest, LLC's right to construct,
erect, install or modify its Telecommunications System is specifically subject to the requirement
that NFC Northwest, LLC obtain permits as set forth in this Franchise.
C. NFC Northwest, LLC expressly acknowledges and agrees, by acceptance
of this Franchise, that its rights under this Franchise are subject to the police power of the City to
adopt and enforce general ordinances necessary to the safety, health and welfare of the public
and NFC Northwest, LLC agrees to comply with all such applicable general laws and ordinances
enacted by the City pursuant to such police power. The City, by the granting of this Franchise,
does not render or to any extent lose, waive, impair or lessen the lawful powers and rights now
or hereafter vested in the City to regulate the use of its rights -of -way and tax, regulate or license
the use thereof, and NFC Northwest, LLC, by its acceptance of this Franchise, acknowledges and
agrees that all lawful powers and rights, whether regulatory or otherwise, as are or may be from
time to time vested in or reserved to the City, shall be in full force and effect and NFC Northwest,
LLC shall be subject to the exercise thereof by the City at any time.
D. NFC Northwest, LLC expressly acknowledges and agrees, by acceptance
of this Franchise, that lines, equipment, conduits and other facilities and appurtenance in the City
rights -of -way which are subsequently acquired by NFC Northwest, LLC and which, if acquired
prior to this original franchise grant, would have been subject to this Franchise and the permitting
authority related thereto, shall be subject to the provisions of this Franchise and all permits related
thereto.
E. In return for promises made and subject to the stipulations and conditions
stated herein, the City grants to NFC Northwest, LLC permission to use the City's rights -of -way
to provide Telecommunications Services to persons within the Franchise Service Area. To the
extent of the City's interests, permission is similarly granted to NFC Northwest, LLC to use areas
outside the City's rights -of -way which are reserved by regulation, practice or dedication for public
telephone utilities, but in such areas, NFC Northwest, LLC's use is also subject to conditions now
or hereafter recognized by the City as generally applicable to telecommunications or underground
conduit utilities.
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2.5 Limits on Permission.
A. As used in Section 2.4, E, "Telecommunications Services" means such
services as those defined in Section 1.19 of this Franchise provided by NFC Northwest, LLC to
persons within the City. Permission is not granted to use the City rights -of -way for any other
purpose, including but not limited to providing cable television service as defined in 47 USC § 522
or distribution of multi -channel video programming or any other video programming. NFC
Northwest, LLC stipulates that this Franchise extends no such rights or privileges.
B. Permission does not extend to areas outside those listed in Section 2.4, E
of this Franchise, or otherwise to any area outside the authority of the City to extend franchised -
use permission, such as buildings or private areas not reserved for utilities. NFC Northwest, LLC
is solely responsible to make its own arrangements for any access to such places.
C. This Franchise does not extend permission to municipal buildings or other
municipally owned or controlled structures. For such locations, NFC Northwest, LLC shall make
specific arrangements directly with the municipal department or division controlling such building
or other structure.
D. Permission granted by this Franchise is non-exclusive. NFC Northwest,
LLC stipulates the City may grant similar permission to others.
E. NFC Northwest, LLC shall not permit installations by others in the
Franchise Service Area without written approval of the City. Such approval shall not be in lieu of
a franchise or other requirements of the City. Whether or not permitted, NFC Northwest, LLC
remains responsible for all third party users of the Telecommunications System for compliance
with this Franchise.
F. No privilege or exemption is granted or conferred by this Franchise except
as may be specifically prescribed.
G. Any privilege claimed under this Franchise in any street or right-of-way
shall be subordinate to any prior lawful occupancy or any subsequent exercise of City police
power. The grant of this Franchise shall not impart to NFC Northwest, LLC any fee title property
rights in or on any public or private property to which NFC Northwest, LLC does not otherwise
have title.
2.6 Franchise Service Area. The Franchise Service Area shall be that area within
the present or future city limits of the City of Yakima, Washington.
2.7 Public Review of Franchise. The field of requirements and conditions applicable
to this franchise continue to evolve. Therefore, in order to provide for a maximum degree of
flexibility in this Franchise, and the help achieve a continued advanced and modern
Telecommunications System, the following evaluation provision will apply:
A. Following year five (5) of this Franchise, and only upon the request of either
party, a public review may be held, should there be a material change to law, technology or
services that may have an effect on the terms and conditions of this Franchise.
B. As a result of such public review, either party may request a change or
amendment in the terms of this Franchise. Parties will, in good faith, review and negotiate the
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terms of the change and any amendment required to this Franchise. Based on such public review
and adoption of such a change or new requirement through a mutually acceptable Franchise
amendment, such change will become effective.
2.8 Franchise Renewal or New Franchise.
A. The City may establish appropriate requirements for new franchises or
franchise renewals consistent with federal, state and local law.
B. Nothing in this Franchise shall be construed to require renewal of this
Franchise.
2.9 Renegotiation. In the event that any provision of this Franchise becomes invalid
or unenforceable and the City or NFC Northwest, LLC expressly finds that such provision
constituted a consideration material to entering into this Franchise, or in the event of significant
change in the law regulating this Franchise or change in municipal authority to act under the terms
of this Franchise, or in the event of significant change or advancement in technology governing
NFC Northwest, LLC's functions, the City and NEC Northwest, LLC may mutually agree to
renegotiate any or all of the terms of this Franchise. The party seeking renegotiation shall serve
on the other party written notice of an offer to renegotiate. In the event the other party accepts
the offer to renegotiate, the parties shall have one hundred twenty (120) days to conduct and
complete the renegotiation. Nothing in this Franchise shall be construed to require acceptance
by either the City or NFC Northwest, LLC of an offer to renegotiate.
2.10 Revocation.
A. In addition to any rights set out elsewhere in this Franchise, the City
reserves the right to declare a forfeiture or otherwise revoke this Franchise and all rights and
privileges pertaining thereto in the event that:
(1) The City determines NFC Northwest, LLC is in violation of any material
provision of this Franchise and fails to correct the violation after written notice of the
violation and proposed forfeiture and a reasonable opportunity thereafter to correct the
violation as noted in Section 9.2 of this Franchise; or
(2) NFC Northwest, LLC is found by a court of competent jurisdiction to have
engaged in any actual or attempted fraud or deceit upon the City, persons or customers;
or
(3) NFC Northwest, LLC becomes insolvent, unable or unwilling to pay its
debts as they become due, or is adjudged a bankrupt; or
(4) NFC Northwest, LLC fails, refuses, neglects or is otherwise unable to
obtain and/or maintain any permit required by any federal or state regulatory body
regarding NFC Northwest, LLC's construction, maintenance and operation of its
Telecommunications System.
B. For purposes of this Section, the following are material provisions of this
Franchise, allowing the City, without limitation, to exercise its rights under this Section or as set
forth elsewhere in this Franchise:
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(1) The invalidation, failure to pay or any suspension of NFC Northwest, LLC's
payment of any fees or taxes due the City under this Franchise;
(2) Any failure by NFC Northwest, LLC to submit timely reports regarding the
calculation of any gross revenue -based fees or taxes due the City under this Franchise;
(3) Any failure by NFC Northwest, LLC to maintain the liability insurance
required under this Franchise;
(4) Any failure by NFC Northwest, LLC to maintain and provide the City a copy
of a Performance Bond as required under this Franchise;
(5) Any failure by NFC Northwest, LLC to otherwise fully comply with the
requirements of this Franchise.
C. Upon occurrence of one or more of the events set out above, following sixty
(60) days written notice to NFC Northwest, LLC of the occurrence and the proposed forfeiture and
an opportunity for NFC Northwest, LLC to be heard, the City may, by ordinance or other
appropriate document, declare a forfeiture. In a hearing of NFC Northwest, LLC shall be afforded
due process rights as if the hearing were a contested case hearing subject to Washington law,
including the right to cross-examine witnesses and to require that all testimony be on the record.
Findings from the hearing shall be written and shall stipulate the reasons for the City's decision.
If a forfeiture is lawfully declared, all rights of NFC Northwest, LLC under this Franchise shall
immediately be divested without a further act upon the part of the City.
2.11 Receivership. The City shall have the right to declare a forfeiture or otherwise
revoke this Franchise one hundred eighty (180) days after the appointment of a receiver, or
trustee, to take over and conduct the business of NFC Northwest, LLC, whether in receivership,
reorganization, bankruptcy or other action or proceeding, unless such receivership or trusteeship
shall have vacated prior to the expiration of said one hundred eighty (180) days, or unless:
(1) Within one hundred eighty (180) days after his/her election or appointment,
such receiver or trustee shall have been approved by the City and shall fully have complied
with all the provisions of this Franchise and remedied all defaults thereunder; and
(2) Such receiver or trustee, within said one hundred eighty (180) days, shall
have executed an agreement, duly approved by the City as well as the court having
jurisdiction in the premises, whereby such receiver or trustee assumes and agrees to be
bound by each and every provision of this Franchise.
2.12 Expiration. Upon expiration of this Franchise, the City shall have the right, at its
own election, to:
(1) Renew this Franchise, in accordance with applicable valid law;
(2) Invite additional franchise applications or proposals;
(3) Terminate this Franchise without further action; and
(4) Take such other action as the City deems appropriate.
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2.13 Transfer of Ownership.
A. This Franchise shall not be sold, leased, mortgaged, assigned or otherwise
transferred, nor shall any of the rights or privileges herein granted or authorized be sold, leased,
mortgaged, assigned or otherwise transferred, either in whole or in part, nor shall title hereto,
either legal or equitable, or any right, interest or property herein, pass to or vest in any person,
except NFC Northwest, LLC, either by act of NFC Northwest, LLC or operation of law, without the
prior consent of the City, expressed in writing. The granting of such prior consent in one instance
shall not render unnecessary any subsequent prior consent in another instance. No transfer will
be granted unless the transferee agrees in writing that it will abide by and accept all terms of this
Franchise, and that it will assume the obligations, liabilities, and responsibility for all acts and
omissions, known and unknown, of the Grantee under this Franchise for all purposes, including
renewal. Any transfer of ownership shall make this Franchise subject to revocation unless and
until the City shall have given written prior consent. A transfer of ownership shall incur an
administrative fee of five thousand dollars ($5000.00) for reimbursement of costs associated with
the preparation, processing and approval of the transfer, including wages, benefits, overhead
expenses, meetings, negotiations and other functions related to the approval. Payment of the
administrative fee shall be paid within thirty (30) days of approval of the transfer.
B. Upon any transfer as heretofore described, NFC Northwest, LLC shall,
within sixty (60) days thereafter, file with the City a copy of the deed, agreement, mortgage, lease
or other written instrument evidencing such sale, lease, mortgage, assignment or transfer,
certified and sworn as correct by NFC Northwest, LLC.
C. Every such transfer as heretofore described, whether voluntary or
involuntary, shall be deemed void and of no effect unless NFC Northwest, LLC shall, within sixty
(60) days after such transfer has been made, file such certified copy as is required.
D. The requirements of this Section shall not be deemed to prohibit the use of
NFC Northwest, LLC's property as collateral for security in financing the construction or
acquisition of all or part of the Telecommunications System franchised hereunder. However, such
financing shall be subject to the provisions of this Franchise.
E. The City reserves the right to invoke any or all provisions of this Franchise
upon NFC Northwest, LLC's successors or assigns, judgment creditors or distributees of facilities
or property used in enjoyment of privileges conferred herein, whether or not stated elsewhere, all
without waiver of the right to withhold consent not expressly given of any such transfer and/or
require a new franchise.
2.14 Change in Control. NFC Northwest, LLC shall promptly notify the City through
the City Council of any proposed change in, transfer of or acquisition by any other party of control
of NFC Northwest, LLC. If beneficial ownership of thirty percent (30%) or more of the stock of
NFC Northwest, LLC, or any parent company of NFC Northwest, LLC 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 agent of common control is
other than an organization a) whose primary business is telecommunications system operation,
and b) is more than fifty percent (50%) owned by NFC Northwest, LLC or a parent of NFC
Northwest, LLC, then a change in control will be deemed to have taken place unless the City,
upon request of NFC Northwest, LLC, finds otherwise. Such a change in 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
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control, the City may inquire into the qualifications of the prospective controlling party to perform
the obligations of NFC Northwest, LLC under this Franchise. NFC Northwest, LLC shall assist
the City in any such inquiry. The City may condition its consent upon such terms and conditions
as it deems appropriate. Consent to the transfer shall not be unreasonably withheld.
2.15 No Stock to be Issued. NFC Northwest, LLC promises never to issue any capital
stock on account of this Franchise or any permission granted under the terms of this Franchise,
or the value thereof. NFC Northwest, LLC further agrees it will not have any right to receive, upon
a condemnation proceeding or other negotiation by the City to acquire the properties of NFC
Northwest, LLC, any payment or award on account of this Franchise or permission or its value.
NFC Northwest, LLC waives all such claims against the City and also any claims for any municipal
revision, action, inaction, curtailment, suspension, revocation or change in municipal policy or
regulation relating to NFC Northwest, LLC's franchised activities. The City shall have no
obligation to make any payment to NFC Northwest, LLC or award in condemnation for any other
asset or interest of NFC Northwest, LLC, except as required under the State of Washington
Constitution and United States Constitution or as state or federal laws may preemptively require.
2.16 Other Codes and Ordinances. Nothing in this Franchise shall be deemed to
waive the requirements of the other lawful codes and ordinances of the City regarding permits,
fees to be paid or manner of construction.
2.17 Survival of Terms. Sections 4.9, 6.3, 7 and 10 of this Franchise shall continue in
effect as to NFC Northwest, LLC notwithstanding any expiration, forfeiture or revocation of this
Franchise.
SECTION 3 - ENFORCEMENT AND ADMINISTRATION BY THE CITY
3.1 City Jurisdiction and Supervision. The City, through its Community Relations
office (or its successor(s)), shall have continuing regulatory jurisdiction and supervision over the
operation and enforcement of this Franchise and may from time to time adopt such reasonable
rules and regulations as it may deem necessary for the conduct of the business contemplated
herein. All questions of application, interpretation, conflict or ambiguity arising out of or in
connection with this Franchise are to be determined by the manager of the Community Relations
office (or his/her successor(s)), except only where otherwise specifically stated, or in the event
that a different person or body may be designated by the City through written notice to NFC
Northwest, LLC.
3.2 Grantee to Have No Recourse. Subject to state and federal law, NFC Northwest,
LLC shall have no recourse other than non -monetary declaratory or injunctive relief against the
City and shall be awarded no monetary recovery whatsoever for any incidental or consequential
damages, including but not limited to lost profits, arising out of any provision or requirement of
this Franchise, nor from the City's regulation under this Franchise, nor from the City's exercise of
its authority to grant additional franchises.
3.3 Acceptance of Power and Authority of City. NFC Northwest, LLC expressly
acknowledges by acceptance of this Franchise that:
(1) It has relied upon its own investigation and understanding of the power and
authority of the City to grant and enforce this Franchise and that it has no objection to the
exercise of the City's power and authority therein;
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(2) It has not been induced to enter into this Franchise arrangement by any
understanding or promise or other statement, whether verbal or written, by or on behalf of
the City concerning any term or condition of this Franchise that is not specifically included
herein;
(3) It has carefully read the terms and conditions contained herein and NFC
Northwest, LLC is willing to and does accept all the obligations of such terms and
conditions to the extent not inconsistent with state or federal law and further agrees that it
will not set up as against the City any claim that any provision of this Franchise is
unreasonable, arbitrary, invalid or void subject to its rights herein; and
(4) The matters contained in NFC Northwest, LLC's application and all
subsequent applications or proposals for renewals of this Franchise, and as stated in any
and all other presentations to the City, except as inconsistent with law, regulations or local
ordinance, are incorporated into this Franchise as though set out verbatim.
3.4 Acts Discretionary, Reservation of Authority. All City acts undertaken pursuant
to this Franchise shall be deemed discretionary, guided by the provisions of this Franchise and
considerations of the public health, safety, aesthetics and convenience. NFC Northwest, LLC
stipulates and agrees that this Franchise is subject to the City Charter of the City of Yakima. NFC
Northwest, LLC understands the Charter's provisions are incorporated herein, where applicable.
NFC Northwest, LLC agrees that the City reserves all municipal powers now or hereafter granted
by law, including without limitation, the power to tax and license, regulate activities of land use,
protect the public health and safety and regulate and control use of the public right-of-way.
3.5 Delegation of Authority to Regulate. The City reserves the right to delegate its
regulatory authority wholly or in part to the federal govemment, state govemment and/or to agents
of the City, including but not limited to an agency which may be formed to regulate several City
franchises.
SECTION 4 - OPERATION IN STREETS AND RIGHTS -OF -WAY
4.1 Use of Streets. NFC Northwest, LLC may, subject to terms of this Franchise,
erect, install, construct, repair, replace, reconstruct and retain in, on, over, under, upon, across
and along the City streets and rights -of -way such lines, cables, conductors, ducts, conduits,
vaults, utility access covers, amplifiers, appliances, pedestals, attachments and other property
and equipment as are necessary and appurtenant to the operation of a Telecommunications
System within the City. All installation, construction, alteration and/or maintenance of any and all
Telecommunications System Facilities within City streets and rights -of -way incident to NFC
Northwest, LLC's provision of Telecommunications Services shall, regardless of who performs
installation, construction, alteration and/or maintenance, be and remain the responsibility of NFC
Northwest, LLC.
4.2 Construction or Alteration.
4.2.1 Permits. NFC Northwest, LLC shall in all cases comply with all lawful City
ordinances and regulations regarding the acquisition of permits and other such items as may be
reasonably required in order to install, construct, alter and maintain the Telecommunications
System. NFC Northwest, LLC shall apply for and obtain all permits necessary for installation,
construction, alteration and/or maintenance of any such Facilities, and for excavation and laying
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of any Telecommunications System Facilities within City streets and rights -of -way. NFC
Northwest, LLC shall pay all applicable fees due for any such permits.
4.2.2 Schedule and Maps.
A. Prior to beginning installation, construction, alteration or maintenance of
the Telecommunications System, NFC Northwest, LLC shall provide the City with an initial work
schedule for work to be conducted in City streets and rights -of -way and the estimated total cost
of such work. NFC Northwest, LLC shall, upon request, provide information to the City regarding
its progress in completing or altering the Telecommunications System.
B. Upon completion of construction or alteration of the Telecommunications
System, NFC Northwest, LLC shall provide the City with a map showing the location of its installed
Telecommunications System, as built. Such "as -built" maps shall be in a form acceptable to the
City.
C. NFC Northwest, LLC shall provide a map to the City showing the location
of NFC Northwest, LLC's optical fibers in City streets and rights -of -way on a scale of 3500 feet
per inch or in whatever standard scale the City adopts for general use:
(1) One year after the effective date of this Franchise; and
(2) Annually thereafter.
4.2.3 Good Engineering.
A. NFC Northwest, LLC promises all of its property and facilities shall be
constructed, operated and maintained in good order and condition in accordance with good
engineering practice. In connection with the civil works of NFC Northwest, LLC's
Telecommunications System, such as, but not limited to, trenching, paving, compaction and
locations, NFC Northwest, LLC promises to comply with the edition of the American Public Works
Association Standard Specifications which is in current or future use by the City, together with the
City's Supplemental Specifications thereto, all as now or hereafter amended.
B. NFC Northwest, LLC promises that the Telecommunications System shall
comply with the applicable federal, state and local laws, the National Electric Safety Code and
the Washington Electrical Construction Code, where applicable.
4.3 Facilities Placement.
4.3.1 General Standards. The Telecommunications System shall be
constructed and maintained in such manner as not to obstruct, hinder, damage or otherwise
interfere with sewers, water pipes, other utility fixtures or any other property of the City, or any
other pipes, wires, conduits or other facilities that may have been installed in City streets or rights -
of -way by or under the City's authority. NFC Northwest, LLC shall maintain a minimum
underground horizontal separation of five (5) feet from City water facilities and ten (10) feet from
above -ground City water facilities; PROVIDED, that for development in new areas, the City,
together with NFC Northwest, LLC and other utility purveyors or authorized users of City streets
or rights -of -way, will develop and follow the City's determination of a consensus for guidelines
and procedures for determining specific utility locations, subject additionally to this Franchise.
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4.3.2 Limited Access. NFC Northwest, LLC must follow the City's requirements
for the placement of facilities in City streets and rights -of -way, including City requirements for
location of facilities in specific City streets and rights -of -way, and must in any event install facilities
in a manner that minimizes interference with the use of City streets and rights -of -way by others,
including others that may have or may install telecommunications facilities in City streets and
rights -of -way. The City may require that NFC Northwest, LLC install facilities at a particular time,
at a specific place and/or in a particular manner as a condition of access to a particular City street
or right-of-way and the City may exclude NFC Northwest, LLC's access to a particular street or
right-of-way in accordance with City requirements for placement of facilities.
4.3.3 Consistency with Designated Use. Notwithstanding the grant to use City
streets and rights -of -way contained in this Franchise, no street or right-of-way shall be used by
NFC Northwest, LLC if the City, in its sole opinion, determines that such use is inconsistent with
the terms, conditions or provisions by which such street or rights -of -way were created or
dedicated or presently used under state and local laws.
4.3.4 Non -Interference. NFC Northwest, LLC shall exert its best efforts to
construct and maintain the Telecommunications System so as not to interfere with other uses of
City streets or rights -of -way. NFC Northwest, LLC shall, where possible in the case of
aboveground lines, make use of existing poles and other facilities available to NFC Northwest,
LLC. NFC Northwest, LLC shall individually notify all residents affected by any proposed
installation, construction, alteration or maintenance of the Telecommunications System of such
work where and when such notification is reasonably possible.
4.3.5 Undergrounding. The City finds that overhead lines and aboveground
wire facilities and installations in the streets or rights -of -way and other franchised areas adversely
impact upon the public use and enjoyment of property in the City, including an aesthetic impact.
Therefore, NFC Northwest, LLC shall place underground all of its transmission lines that are
located or are to be located above or within City streets or rights -of -way in the following cases
where:
(1) All existing utilities are located underground;
(2) Transmission or distribution facilities of the local exchange carrier and/or
the electric utility are underground or hereafter placed underground;
(3) Statute, ordinance, policy or other regulation of the City requires utilities to
be placed underground;
(4) NFC Northwest, LLC is unable to obtain pole clearance;
(5) Underground easements are obtained from developers of new residential
areas; or
(6) Utilities are overhead but residents prefer same to be located underground
(such undergrounding to be provided at residents' expense).
NFC Northwest, LLC hereby states it is familiar with RCW Ch. 19.122, Washington
State's "Underground Utilities" statute, and understands local procedures, custom and practice
relating to the one -number locator service program. Consistent with any general municipal
undergrounding policy or program now or hereafter developed, the City may require NFC
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Northwest, LLC's participation in municipally imposed undergrounding or related requirements as
a condition of NFC Northwest, LLC's installation or continued maintenance of overhead facilities
authorized under this Franchise. NFC Northwest, LLC hereby agrees to coordinate its
underground installation and planning activities with the City's underground plan and policies.
4.4 Coordination with Other Users. NFC Northwest, LLC shall coordinate its
activities with other utilities and users of City streets and rights -of -way scrupulously to avoid
unnecessary cutting, damage or disturbance of such streets and rights -of -way and shall conduct
its planning, design, installation, construction, alteration and maintenance of the
Telecommunications System at all times so as to maximize the life and usefulness of the paving
and municipal infrastructure. In addition, the City may determine with respect to franchised uses,
in the exercise of reasonable discretion, when and where reasonable accommodation shall be
made by NFC Northwest, LLC to the City for public needs or, where requested, other third party
needs, how such accommodation should be made and a reasonable apportionment of any
expenses of same; PROVIDED, that this Franchise creates no third party beneficial interests or
accommodation. Notwithstanding the foregoing, it remains the responsibility of NFC Northwest,
LLC to anticipate and avoid conflicts with other City streets or rights -of -way occupants or users,
other utilities, franchisees or permittees. The City assumes no responsibility for such conflicts.
Further, NFC Northwest, LLC shall give appropriate notices to any other City streets or rights -of -
way occupants or users, other utilities, franchisees, permittees, divisions of the City or other units
of government owning or maintaining facilities which may be affected by NFC Northwest, LLC's
planning, design, installation, construction, alteration or maintenance of the Telecommunications
System.
4.5 Relocation.
A. The City shall have the right during the term of this Franchise, as it may be
extended, renewed or otherwise altered in accordance with this Franchise, to require NFC
Northwest, LLC to change the location of its Telecommunications System within City streets and
rights -of -way when the public convenience and necessity requires such change. If the City or any
government entity elects or requires a third party to alter, repair, realign, abandon, improve,
vacate, reroute or change the grade of any street, public way or other public property; or to
construct, maintain or repair any public improvement; or to replace, repair, install, maintain or
otherwise alter any cable, wire, wire conduit, pipe, line, pole, wireholding structure, structure or
other facility, including a facility used for the provision of utility or other services or transportation
of drainage, sewage or other liquids, NFC Northwest, LLC shall, upon request, except as
otherwise hereinafter provided, at no expense to the City, remove or relocate as necessary its
poles, wires, cables, underground conduits, vaults, pedestals, utility access covers and any other
facilities which it has installed.
B. If the City requires NFC Northwest, LLC to remove or relocate its facilities
located within City streets or rights -of -way, the City will make a reasonable effort to provide NFC
Northwest, LLC with an alternate location for its facilities within City streets or rights -of -way.
C. The City shall provide NFC Northwest, LLC with the standard notice given
under the circumstances to other franchisees, licensees or permittees.
D. If during the term of this Franchise, as it may be extended, renewed or
otherwise altered in accordance with this Franchise, another entity which holds a franchise or any
utility requests NFC Northwest, LLC to remove or relocate its Telecommunications System
Facilities to accommodate the construction, maintenance or repair of the requesting party's
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facilities, or the more efficient use of such facilities, or to "make ready" the requesting party's
facilities for use by others, or because NFC Northwest, LLC is using a facility which the requesting
party has a right or duty to remove, NFC Northwest, LLC shall do so. The parties involved may
decide among themselves who is to bear the cost of removal or relocation; PROVIDED, that the
City shall not be liable for any such cost(s).
E. Any person requesting NFC Northwest, LLC to remove or relocate its
facilities shall give NFC Northwest, LLC no Tess than forty-five (45) days advance written notice
advising NFC Northwest, LLC of the date or dates removal or relocation is to be undertaken;
PROVIDED, that no advance written notice shall be required in emergencies or in cases where
public health and/or safety or property is endangered.
F. If NFC Northwest, LLC fails, neglects or refuses to remove or relocate its
facilities as directed by the City, or in emergencies or where public health and/or safety or property
is endangered, the City may do such work or cause it to be done and the cost, including all direct,
indirect and/or consequential costs and expenses incurred by the City due to NFC Northwest,
LLC's failure, neglect or refusal thereof shall be paid solely by NFC Northwest, LLC. If NFC
Northwest, LLC fails, neglects or refuses to remove or relocate its facilities as directed by another
franchisee or utility, that franchisee or utility may do such work or cause it to be done, and if NFC
Northwest, LLC would have been liable for the cost of performing such work, the cost, including
all direct, indirect and/or consequential costs and expenses incurred by such franchisee or utility
thereof to the party performing the work or having the work performed shall be paid solely by NFC
Northwest, LLC.
G. If NFC Northwest, LLC causes any damage to private property or public
property in the process of removing or relocating its facilities, NFC Northwest, LLC shall pay the
owner of the property for such damage.
H. NFC Northwest, LLC does hereby promise to protect and save harmless
the City, its officers, agents and employees from any customer or third party claims for service
interruption or other losses in connection with any removal or relocation of NFC Northwest, LLC's
Telecommunications System Facilities.
4.6 Movement of Buildings. NFC Northwest, LLC shall, upon request by any person
holding a building permit, franchise or other approval issued by the City, temporarily remove, raise
or lower its transmission or other wires appurtenant to the Telecommunications System to permit
the movement of buildings. The expense for such removal, raising or lowering shall be paid by
the person requesting the same and NFC Northwest, LLC shall be authorized to require such
payment in advance. The City shall require all building movers to provide not less than three (3)
business days' notice to NFC Northwest, LLC for such temporary wire changes.
4.7 Tree Trimming. NFC Northwest, LLC, with twenty-four (24) hour notice to the
property owner, shall have the authority to trim or cause to have trimmed trees upon and
overhanging streets, alleys, sidewalks and rights -of -way so as to prevent the branches of such
trees from coming in contact or otherwise interfering with the Telecommunications System;
PROVIDED, that the cost for such trimming of trees shall be paid solely by NFC Northwest, LLC.
4.8 Restoration.
A. Whenever NFC Northwest, LLC damages or disturbs any area in or near
City streets, rights -of -way, paved area or public improvement, NFC Northwest, LLC shall, at its
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sole cost, expense and liability, restore such area in or near City streets, rights -of -way, paved
area or public improvement to at least its prior condition, or the City standard, whichever is greater,
to the satisfaction of the City.
B. Whenever any opening is made by NFC Northwest, LLC in a hard surface
pavement in any City street or right-of-way, NFC Northwest, LLC shall refill, restore, patch and
repave entirely all surfaces opened as determined necessary by the City in order to maintain and
preserve the useful life thereof.
C. For pavement restorations, any patch or restoration shall be thereafter
properly maintained in good condition and repair by NFC Northwest, LLC until such time as the
area is resurfaced or reconstructed.
D. The City hereby reserves the right, after providing reasonable notice to
NFC Northwest, LLC, to remove and/or repair any work done by NFC Northwest, LLC which, in
the determination of the City, is inadequate. The cost thereof, including the cost of inspection and
supervision, shall be paid solely by NFC Northwest, LLC.
E. Should NFC Northwest, LLC fail, neglect, refuse or delay in performing any
obligation here or elsewhere stated, or where the City deems necessary to protect the public right-
of-way or to avoid liability, risk or injury to the public or the City, the City may proceed to perform
or cause to have performed such obligation, including any remedial or preventative action deemed
necessary, at NFC Northwest, LLC's sole expense and liability, but no action or inaction by the
City shall relieve NFC Northwest, LLC of its obligation to hold the City harmless as set forth in
Section 7.7 of this Franchise. Prior to undertaking corrective effort, the City shall make a
reasonable effort to notify NFC Northwest, LLC, except no notice is needed if the City declares
an emergency or determines a need for expedient action. This remedy is supplemental and not
alternative to any other municipal right.
F. Whenever NFC Northwest, LLC damages or disturbs any area in or near
City streets, rights -of -way, paved area or public improvement, NFC Northwest, LLC stipulates that
the City may, without limitation:
(1) Require NFC Northwest, LLC to repave an entire lane or greater affected
area within any cut or disturbed location; and/or
(2) Require NFC Northwest, LLC to common trench with any other
underground installation in City streets or rights -of -way, with cost sharing
to be negotiated between the parties involved, or in the absence of
agreement, as directed by the City in a non-discriminatory manner.
G. All requirements of this Section pertaining to public property shall also
apply to the restoration of private easements and other private property.
H. If NFC Northwest, LLC causes any damage to private property in the
process of restoring facilities, NFC Northwest, LLC shall pay the owner of the property for such
damage.
I. All of NFC Northwest, LLC's work under this Section shall be done in strict
compliance with all applicable rules, regulations and ordinances of the City.
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J. NFC Northwest, LLC shall perform all restoration work promptly.
4.9 City Right to Require Removal of Property.
A. At the expiration of the term for which this Franchise is granted, providing
no extension or renewal is granted by the City, or upon the forfeiture or revocation of this
Franchise, as provided for in this Franchise, the City shall have the right to require NFC Northwest,
LLC to remove, at NFC Northwest, LLC's sole expense, all or any part of the Telecommunications
System from all City streets and rights -of -way within the Franchise Service Area, where the
abandoned Facilities interfere with reasonable uses of City streets and rights -of -way. If NFC
Northwest, LLC fails to do so, the City may perform the work and collect the cost thereof from
NFC Northwest, LLC. The actual cost thereof, including direct and indirect administrative costs,
shall be a lien upon all plant and property of NFC Northwest, LLC effective upon filing of the lien
with the Yakima County Auditor.
B. Any order by the City Council to remove any of NFC Northwest, LLC's
Telecommunications System Facilities shall be mailed to NFC Northwest, LLC not later than thirty
(30) calendar days following the date of expiration of this Franchise. NFC Northwest, LLC shall
file written notice with the Clerk of the City Council not later than thirty (30) calendar days following
the date of expiration or termination of this Franchise of its intention to remove any
Telecommunications System Facilities intended to be removed and a schedule for removal by
location. The schedule and timing of removal shall be subject to approval and regulation by the
City. Removal shall be completed not later than twelve (12) months following the date of
expiration of this Franchise.
C. NFC Northwest, LLC shall not remove any underground Facilities which
require trenching or other opening of City streets or rights -of -way along the extension of the
Facilities to be removed, except as hereinafter provided. NFC Northwest, LLC may voluntarily
remove any underground Facilities from City streets and rights -of -way which have been installed
in such a manner that they can be removed without trenching or other opening of City streets and
rights -of -way along the extension of the Facilities to be removed.
D. Subject to applicable law, NFC Northwest, LLC shall remove, at its sole
cost and expense, any underground Facilities by trenching or opening City streets and rights -of -
way along the extension thereof or otherwise which is ordered to be removed by the City Council
based upon a determination, in the sole discretion of said Council, that removal is required in
order to eliminate or prevent a hazardous condition. Underground Facilities in City streets and
rights -of -way that are not removed shall be deemed abandoned and title thereto shall be vested
in the City.
4.10 Emergency Repairs. In the event that emergency repairs to the
Telecommunications System are necessary, NFC Northwest, LLC shall notify the City of the need
for such repairs. NFC Northwest, LLC may immediately initiate such emergency repairs and shall
apply for appropriate permits the next business day following discovery of the emergency.
4.11 City Right of Inspection. The City shall have the right to inspect and approve all
installation, construction, alteration or maintenance work performed by NFC Northwest, LLC
within the Franchise Service Area and to make such tests as it deems necessary to ensure
compliance with the terms and conditions of this Franchise and other pertinent provisions of law,
the cost thereof to be paid solely by NFC Northwest, LLC, but no action or inaction by the City
shall create any duty or obligation by the City to inspect, test or approve any installation,
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construction, alteration or maintenance work performed by NFC Northwest, LLC. In addition, the
City may require NFC Northwest, LLC to furnish certification from a qualified independent
engineer that NFC Northwest, LLC's Facilities are constructed in accordance with good
engineering practice and are reasonably protected from damage and injury.
4.12 After -Acquired Facilities. NFC Northwest, LLC expressly acknowledges and
agrees, by acceptance of this Franchise, that any Telecommunications System Facilities located
within City streets or rights -of -way which are subsequently acquired by NFC Northwest, LLC or
upon addition or annexation to the City of any area in which NFC Northwest, LLC retains or
acquires any such Facilities (if acquired prior to this original Franchise grant) and which would
have been subject to this Franchise and the permitting authority related thereto shall immediately
be subject to the provisions of this Franchise and all permits related thereto.
4.13 Information. NFC Northwest, LLC hereby promises to maintain and supply to the
City, at NFC Northwest, LLC's sole expense, any information requested by the City to coordinate
municipal functions with NFC Northwest, LLC's activities within City streets and rights -of -way.
NFC Northwest, LLC shall provide such information, upon request, either in hard copy and/or
electronic format compatible with the City's data base system, as now or hereafter existing,
including the City's geographic information service (GIS) data base. NFC Northwest, LLC shall
keep the City informed of its long-range plans so as to allow coordination with the City's long-
range plans.
SECTION 5 - SYSTEM DESIGN AND STANDARDS
5.1 Initial Telecommunications System Construction.
5.1.1 Construction Schedule. A detailed construction schedule, which shall be
subject to City approval, shall be submitted by NFC Northwest, LLC to the City no later than forty-
five (45) days prior to the commencement of construction. For the purposes of this Franchise,
"commencement of construction," as finally determined by the City if necessary, shall mean the
beginning of installation of any part of the Telecommunications System including, but not limited
to, strand mapping, system design, the construction of any facility, building or structure, or the
stringing of any wire or the laying of any conduit, or the installation of any active or passive
electronic equipment to facilitate the activation of the Telecommunications System.
5.1.2 Construction Timeline. NFC Northwest, LLC shall commence
construction of the Telecommunications System during the calendar year 2001 and shall
complete initial activation procedures within six (6) months of the effective date of this Franchise.
5.2 Technical Standards. The technical standards used in the design, construction,
alteration, maintenance and operation of the Telecommunications System shall comply, at a
minimum, with the applicable technical standards promulgated by the Federal Communications
Commission ("FCC") or the Washington Utilities and Transportation Commission ('WUTC"), as
now or hereafter constituted or amended, and any and all other applicable federal, state or local
law, regulations or technical standards which may currently or may subsequently concern any
services which NFC Northwest, LLC provides or may provide using the Telecommunications
System. The City may establish reasonable technical standards for the performance of the
Telecommunications System if the FCC or WUTC permit it to do so or if the FCC or WUTC
standards are repealed in whole or in part.
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5.3 Performance Testing. NFC Northwest, LLC shall perform all tests of the
Telecommunications System as required by and at the intervals as required by the FCC and/or
any and all federal, state and local law or regulations, and all other tests reasonably necessary to
determine compliance with technical standards required by this Franchise.
SECTION 6 - CUSTOMER SERVICE POLICIES
6.1 City Reservation of Rights. The City reserves the right to enforce any and all
customer service and consumer protection standards at any time that such standards are
established by state or federal law or regulation as applicable to telecommunications system
operations should such right be granted to the City by such state or federal law or regulation.
6.2 Response to Customers. NFC Northwest, LLC shall promptly respond to all
requests from customers of the Telecommunications System for service, repair, installation,
information or any other such reasonable and appropriate requests and shall render effective
service, make repairs promptly and interrupt service only for good cause and for the shortest time
possible as required by state and/or federal law or regulation. NFC Northwest, LLC shall promptly
respond to complaints from customers of the Telecommunications System and shall attempt to
promptly resolve such complaints as required by state and/or federal law or regulation.
6.3 City Franchise Contact Identified. NFC Northwest, LLC shall provide all
appropriate and pertinent contact information for the person identified by the City as responsible
for handling questions and complaints for the City regarding NFC Northwest, LLC's operation in
City streets and rights -of -way to any and all customers of the Telecommunications System and
any interested persons. Said information shall be provided to such customers in a format
acceptable to the City.
6.4 Notice of Change in Services. Throughout the term of this Franchise, NFC
Northwest, LLC shall provide the City written notice of any intended deletions, additions or other
modifications to the Telecommunications Services authorized by this Franchise to be provided by
NFC Northwest, LLC.
6.5 Complaints. NFC Northwest, LLC hereby acknowledges the City's interest in the
prompt resolution of all complaints made to the City regarding NFC Northwest, LLC's operation
in City streets and rights -of -way and NFC Northwest, LLC shall work in close cooperation with the
City to resolve such complaints.
6.6 Regulation of Rates and Charges. The City expressly reserves the right to
regulate rates and charges for Telecommunications Services and equipment in accordance with
and to the extent provided by applicable federal or state laws, rules or regulations.
SECTION 7 - COMPENSATION AND FINANCIAL PROVISIONS
7.1 Taxes and Fees.
7.1.1 City Occupation Tax on Utilities.
A. NFC Northwest, LLC and the City understand that RCW 35.21.860, as of
the effective date of this Franchise, prohibits imposition of a municipal franchise fee applicable to
revenues from telephone business activities. NFC Northwest, LLC agrees that if this statutory
prohibition is removed, and the City obtains the explicit authority from the State to impose a
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municipal franchise fee applicable to revenue from telephone business activities, and if the City
imposes such a fee on all other entities engaged in telephone business activities within the City,
then NFC Northwest, LLC's Gross Receipts for telephone business activities will be included in
the Gross Receipts from its business activities and subject to a franchise fee. Further, if, during
the term of this Franchise, NFC Northwest, LLC should add to or modify the services it offers in
such a way so that the aforementioned prohibition against imposition of a municipal franchise fee
did not apply, the City may assess a reasonable franchise fee. NFC Northwest, LLC and the City
agree that a reasonable franchise fee would be no less than five percent (5%) of NFC Northwest,
LLC's Gross Receipts for telephone business activities within the City. NFC Northwest, LLC and
the City agree that nothing in this Section limits the right of NFC Northwest, LLC to challenge
imposition of a municipal franchise fee pursuant to 47 USC § 253.
B. NFC Northwest, LLC and the City further understand and agree that RCW
35.21.870, as of the effective date of this Franchise, limits the rate of City tax upon telephone
business activities as defined in Yakima Municipal Code ("YMC") Section 5.50.050 to six percent
(6%) of gross receipts, unless a higher rate is approved by a vote of the people. However, NFC
Northwest, LLC and the City agree that nothing in this Franchise shall limit the City's power of
taxation, as may now or hereafter exist.
C. NFC Northwest, LLC hereby stipulates that all of its business activities in
the City as identified in Section 1.19, A through F, Section 2.4, and Section 2.5, A of this Franchise
are taxable activities subject to the six percent (6%) rate to be included in gross receipts received,
as imposed under the City's occupation taxes on utilities, adopted in Yakima Municipal Code
Section 5.50.050. Therefore, throughout the term of this Franchise, NFC Northwest, LLC shall
include all revenue received from all of its business activities within the City as taxable activities,
subject to the six percent (6%) rate imposed under the City's occupation taxes on utilities as
adopted in Yakima Municipal Code Section 5.50.050.
7.1.2 Other Fees.
A. NFC Northwest, LLC shall pay the City all reasonable costs of granting,
enforcing or reviewing the provisions of this Franchise as ordered by the City manager or
designee, whether as a result of accrued in-house staff time or out-of-pocket expenses or
administrative costs. Such obligation further includes municipal fees related to receiving and
approving permits, licenses or other required approvals, inspecting plans and construction, or
relating to the preparation of a detailed statement pursuant to RCW 43.21C.
B. Upon request of NFC Northwest, LLC, the City will submit proof of any
charges or expenses incurred as defined in Section 7.1.2, A of this Franchise. Said charges or
expenses shall be paid by NFC Northwest, LLC no later than thirty (30) days after NFC Northwest,
LLC's receipt of the City's billing thereof.
C. NFC Northwest, LLC shall pay all other taxes and fees applicable to its
operations and activities within the City, all such obligations also being a condition of this
Franchise. Such payments shall not be deemed franchise fees or payments in lieu thereof.
D. NFC Northwest, LLC shall be subject to a five thousand dollar ($5000.00)
administrative fee for reimbursement of costs associated with the preparation, processing and
approval of this Franchise, including wages, benefits, overhead expenses, meetings, negotiations
and other functions related to the approval. Payment of this administrative fee is due thirty (30)
days after Franchise approval.
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7.2 Payments.
A. NFC Northwest, LLC shall make all required payments in the form, intervals
and manner requested by the City director of budget and finance and shall furnish the City any
and all information related to the City's revenue collection functions reasonably requested.
B. As provided for in Section 5.50.090 of the Yakima Municipal Code, City
occupation tax on utilities payments shall be transmitted by NFC Northwest, LLC monthly by
electronic funds transfer to such City of Yakima bank account as may be designated by the City
director of budget and finance. Said payments shall be received by the City no later than the 25th
of each month for the preceding calendar month. Not later than the date of each payment, NFC
Northwest, LLC shall file with the City a written statement signed by the Telecommunication
System manager of NFC Northwest, LLC which identifies in detail the sources and amounts of
gross revenues earned by NFC Northwest, LLC during the month for which payment is made, in
accordance with Section 8.1 of this Franchise. No acceptance of any payment by the City shall
be construed as an accord that the amount paid is, in fact, the correct amount, nor shall such
acceptance of payment be construed as a release of any claim which the City may have for further
or additional sums payable under the provisions of this Franchise.
C. Neither current nor previously paid utility taxes may be subtracted from the
gross revenue amount upon which utility tax payments are calculated and due for any period. Nor
shall any license fee(s) paid by NFC Northwest, LLC be subtracted from gross revenues for
purposes of calculating utility tax payments.
D. Any utility taxes owing pursuant to this Franchise which remain unpaid for
more than ten (10) days after the dates specified herein shall be delinquent and shall thereafter
accrue interest at twelve percent (12%) per annum or two percent (2%) above prime lending rate
as quoted by major Seattle banks, whichever is greater.
7.3 Financial Records.
A. NFC Northwest, LLC shall manage all of its operations in accordance with
a policy of keeping books and records open and accessible to the City. The City shall have the
right, as necessary or desirable for effectively administering and enforcing this Franchise, to
inspect at any time during normal business hours upon thirty (30) days prior written notice, all
books, records, maps, plans, financial statements, service complaint logs, performance test
results, records required to be kept by NFC Northwest, LLC and/or any parent company of NFC
Northwest, LLC pursuant to the rules and regulations of the FCC, WUTC and other regulatory
agencies, and other like materials NFC Northwest, LLC and/or any parent company of NFC
Northwest, LLC which directly relate to the operation of this Franchise.
B. Access to the aforementioned records referenced in Section 7.3, A shall
not be denied by NFC Northwest, LLC to representatives of the City on the basis that said records
contain "proprietary" information. However, to the extent allowed by Washington law, the City
shall protect the trade secrets and other confidential information of NFC Northwest, LLC and/or
any parent company of NFC Northwest, LLC.
C. NFC Northwest, LLC hereby agrees to meet with a representative of the
City upon request to review its methodology of record keeping, financial reporting, computing
utility tax payments and other procedures, the understanding of which the City deems necessary
for understanding the meaning of such reports and records.
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D. The City agrees to request access to only those books and records, in
exercising its rights under this Franchise, which it deems reasonably necessary for the
enforcement and administration of this Franchise.
7.4 Auditing.
A. The City or its authorized agent may at any time conduct an independent
audit of the revenues of NFC Northwest, LLC in order to verify the accuracy of utility tax payments
made to the City. NFC Northwest, LLC and each parent company of NFC Northwest, LLC shall
cooperate fully in the conduct of such audit. In case of audit, the City director of budget and
finance may require NFC Northwest, LLC to furnish a verified statement of compliance with NFC
Northwest, LLC's obligations or in response to any questions. Said certificate may be required
from an independent certified public accountant at NFC Northwest, LLC's sole expense. All audits
will take place on NFC Northwest, LLC's premises or at offices furnished by NFC Northwest, LLC,
which shall be a location within the City of Yakima. NFC Northwest, LLC agrees, upon request
of the City director of budget and finance, to provide copies of all documents filed with any federal,
state or local regulatory agency, to mail to the City on the same day as filed, postage prepaid,
affecting any of NFC Northwest, LLC's facilities or business operations in City.
B. In the event it is determined, as a result of an audit conducted by the City
or its authorized agent, that NFC Northwest, LLC has underpaid City utility taxes by five percent
(5%) or more than was due the City for any given period, then NFC Northwest, LLC shall
reimburse the City for the entire cost of such audit and any back utility taxes with interest accrued
at twelve percent (12%) per annum or two percent (2%) above prime lending rate as quoted by
major Seattle banks, whichever is greater, within thirty (30) days of the completion and
acceptance of the audit by the City.
7.5 Insurance.
7.5.1 Coverages. NFC Northwest, LLC shall maintain, throughout the term of
this Franchise, liability insurance insuring NFC Northwest, LLC, its officers, employees and
agents, with regard to all claims and damages specified in Section 7.5 herein, in the minimum
amounts as follows:
(1) Commercial Liability Insurance.
On or before the date this Franchise is fully executed by the parties, NFC
Northwest, LLC shall provide the City with a certificate of insurance as proof of commercial
liability insurance with a minimum liability limit of One Million Dollars ($1,000,000)
combined single limit bodily injury and property damage. This coverage will have a per
job aggregate endorsement and Washington stop gap coverage. Said certificate of
insurance shall clearly state who the provider is, the amount of coverage, the policy
number, and when the policy and provisions provided are in effect. Said policy shall be in
effect for the duration of this Franchise. The policy shall name the City, its elected and
appointed officials, officers, agents and employees as additional insureds, and shall
contain a clause that the insurer will not cancel or change the insurance without first giving
the City thirty (30) calendar days prior written notice (any language in the clause to the
effect of "but failure to mail such notice shall impose no obligation or liability of any kind
upon the company" shall be crossed out and initialed by the insurance agent). The
insurance shall be with an insurance company or companies rated A-VII or higher in Best's
Guide and admitted in the State of Washington. If NFC Northwest, LLC uses any
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contractors and/or subcontractors to perform any of the work referenced in this Franchise,
such contractors and/or subcontractors shall maintain the same minimum limits of liability
and comply with all other provisions discussed above in this subsection entitled
"Commercial Liability Insurance."
(2) Commercial Automobile Liability Insurance.
On or before the date this Franchise is fully executed by the parties, NFC
Northwest, LLC shall provide the City with a certificate of insurance as proof of commercial
automobile liability insurance with a minimum liability limit of One Million Dollars
($1,000,000) combined single limit bodily injury and property damage. Said certificate of
insurance shall clearly state who the provider is, the amount of coverage, the policy
number, and when the policy and provisions provided are in effect. Said policy shall be in
effect for the duration of this Franchise. The policy shall name the City, its elected and
appointed officials, officers, agents and employees as additional insureds, and shall
contain a clause that the insurer will not cancel or change the insurance without first giving
the City thirty (30) calendar days prior written notice (any language in the clause to the
effect of "but failure to mail such notice shall impose no obligation or liability of any kind
upon the company" shall be crossed out and initialed by the insurance agent). The
insurance shall be with an insurance company or companies rated A-VII or higher in Best's
Guide and admitted in the State of Washington. If NFC Northwest, LLC uses any
contractors and/or subcontractors to perform any of the work referenced in this Franchise,
such contractors and/or subcontractors shall maintain the same minimum limits of liability
and comply with all other provisions discussed above in this subsection entitled
"Commercial Automobile Liability Insurance."
(3) Umbrella Liability Insurance.
NFC Northwest, LLC and its contractors and/or subcontractors shall maintain
umbrella liability insurance coverage, in an occurrence form, over underlying commercial
liability and automobile liability. On or before the date this Franchise is fully executed by
the parties, NFC Northwest, LLC shall provide the City with a certificate of insurance as
proof of umbrella coverage with a minimum liability limit of Three Million Dollars
($3,000,000). The insurance shall be with an insurance company or companies rated A-
VII or higher in Best's Guide and admitted in the State of Washington.
Providing coverage in the amounts as set forth above shall not be construed to relieve NFC
Northwest, LLC from liability in excess of those limits.
7.5.2 Proof of Insurance. NFC Northwest, LLC shall file with the City copies of
all certificates of insurance showing up-to-date coverages, additional insured coverages and
evidence of payment of premiums as set forth above. NFC Northwest, LLC shall file and maintain
a certificate of insurance along with written evidence of payment of the required premiums with
the manager of the City Community Relations office, or his or her designee.
7.5.3 Alteration of Insurance. Insurance coverages, as required by this
Franchise, shall not be changed, cancelled or otherwise altered without approval of the City. NFC
Northwest, LLC shall provide the City no less than thirty (30) days prior written notice of any such
proposed change, cancellation or other alteration. The City may, at its option, review all insurance
coverages. If it is determined by the City that circumstances require and that it is reasonable and
necessary to increase insurance coverage and liability limits above such coverage and limits as
are set forth in this Franchise, in order to adequately cover the risks of the City, NFC Northwest,
LLC and NFC Northwest, LLC's officers, agents and employees, the City may require additional
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insurance to be acquired by NFC Northwest, LLC. Should the City exercise its right to require
additional insurance, the City will provide NFC Northwest, LLC with written notice.
7.5.4 Failure to Procure. NFC Northwest, LLC acknowledges and agrees, by
acceptance of this Franchise, that failure to procure and maintain the insurance coverages as
detailed in Section 7.5.1 of this Franchise shall constitute a material breach of this Franchise, as
provided for in Section 2.10, B, 3) of this Franchise. In the event of such failure to procure and
maintain the referenced insurance coverages, the City may immediately suspend NFC Northwest,
LLC's operations under this Franchise, terminate or otherwise revoke this Franchise and/or, at its
discretion, procure or renew such insurance in order to protect the City's interests and be
reimbursed by NFC Northwest, LLC for all premiums in connection therewith.
7.6 Performance Bond. Prior to the effective date of this Franchise, NFC Northwest,
LLC shall furnish to the City proof of the posting of a performance bond running to the City, with
good and sufficient surety approved by the City, in the penal sum of One Hundred Thousand
Dollars ($100,000), conditioned that NFC Northwest, LLC shall well and truly observe, fulfill and
perform each term and condition of this Franchise. NFC Northwest, LLC shall pay all premiums
charged for said bond. Said bond shall be effective to continue obligation for the term of this
Franchise, including any extensions, and thereafter until NFC Northwest, LLC or any successor
or assign of NFC Northwest, LLC has liquidated all of its obligations with the City that may have
arisen from the acceptance of this Franchise by NFC Northwest, LLC or from its exercise of any
privilege herein granted. Said bond shall contain a provision stating that said bond shall not be
terminated or otherwise allowed to expire without thirty (30) days prior written notice having been
provided to the City. The form and content of said bond and any associated documents shall be
approved in advance by the City Attorney, or his or her designee. NFC Northwest, LLC shall
provide a duplicate copy of said bond to the City and said duplicate copy shall be kept on file at
the City Community Relations office or its successor(s). Neither the provisions of this Section nor
any performance bond accepted by the City pursuant thereto, nor any damages or other amounts
recovered by the City thereunder, shall be construed to excuse faithful performance by NFC
Northwest, LLC or to limit liability of NFC Northwest, LLC under this Franchise either to the full
amount of the performance bond or otherwise, except as otherwise provided herein.
7.7 Indemnity, No Estoppel, No Duty.
A. NFC Northwest, LLC shall, at its sole expense, protect, defend, indemnify
and hold harmless the City, its elected officials, and in their capacity as such, the officials, agents,
officers and employees of the City from any and all claims, lawsuits, demands, actions, accidents,
damages, losses, liens, liabilities, penalties, fines, judgments, awards, costs and expenses arising
directly or indirectly from or out of, relating to or in any way connected with the performance or
non-performance, by reason of any intentional or negligent act, occurrence or omission of NFC
Northwest, LLC, whether singularly or jointly with others, its representatives, permittees,
employees, contractors or subcontractors, whether or not such acts or omissions were authorized
or contemplated by this Franchise or applicable law, including by not limited to the construction,
installation, maintenance, alteration or modification of the Telecommunication System; arising
from actual or alleged injury to persons or property, including the loss of use of property due to
an occurrence, whether or not such property is physically damaged or destroyed; arising out of
or alleged to arise out of any claim for damages for NFC Northwest, LLC's invasion of privacy,
defamation of any person, firm or corporation, or the violation or infringement of any copyright,
trademark, trade name, service mark or patent, or of any other right of any person, firm or
corporation; arising out of or alleged to arise out of NFC Northwest, LLC's failure to comply with
any and all provisions of any statute, regulation or resolution of the United States, State of
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Washington or any local agency applicable to NFC Northwest, LLC and its business. Nothing
herein shall be deemed to prevent the parties indemnified and held harmless herein from
participating in the defense of any litigation by their own counsel at such parties' expense. Such
participation shall not under any circumstances relieve NFC Northwest, LLC from its duty of
defense against liability or of paying any judgment entered against such party. Notwithstanding
any provision of this Section to the contrary, NEC Northwest, LLC shall not be obligated to
indemnify, defend or hold the City harmless to the extent any claim, demand, lien, damage or
liability arises out of or in connection with negligent acts or omissions of the City.
B. NFC Northwest, LLC hereby waives immunity under Title 51 RCW and
affirms that the City and NFC Northwest, LLC have specifically negotiated these provisions, as
required by RCW 4.24.115, to the extent that it may apply.
C. Whenever any judgment is recovered against the City or any other
indemnitee for any such liability, costs, or expenses, such judgment shall be conclusive against
NFC Northwest, LLC, not only as to the amount of such damage, but as to its liability, provided
NFC Northwest, LLC has reasonable notice or actually knew, or should have known, of the
pendency of such suit. Under such circumstances, NFC Northwest, LLC may also request the
opportunity to defend or participate in the suit with legal counsel of its choice, at its expense, said
request not to be unreasonably denied.
D. No action, error or omission, or failure to act by the City, its agents, officers,
officials or employees, in connection with administering its rights, duties or regulatory functions
related to this Franchise shall be asserted by NFC Northwest, LLC, directly, indirectly or by way
of seeking indemnification or as an assertion that the City has waived or is estopped to assert any
municipal right hereunder, against the City, its boards, departments, divisions, officers, officials
or employees.
E. It is not the intent of this Franchise to acknowledge, create, imply or expand
any duty or liability of the City with respect to its role as a franchising authority, in the exercise of
its police powers or for any other purpose. Any City duty nonetheless deemed created shall be a
duty to the general public and not to any specific party, group or entity.
SECTION 8— REPORTING REQUIREMENTS
All reports required under Section 8 of this Franchise may be requested by the City to be provided
by NFC Northwest, LLC in hard copy and/or electronic format compatible with City databases,
including, but not limited to, the GIS system.
8.1 Monthly Reports. As provided for in Section 5.50.090 of the Yakima Municipal
Code, within twenty-five (25) calendar days after the end of the previous month, NFC Northwest,
LLC shall submit to the City a completed form reporting any and all revenues for the previous
month. Said reports shall be verified by an officer or other authorized representative of NFC
Northwest, LLC. Said reports shall contain an accurate statement in summarized form, as well
as in detail, of NFC Northwest, LLC's gross revenues and the computation basis and method.
These reports shall be in a form reasonably required by the City. The City may, from time to time,
make such reasonable amendments to the forms as are required to ensure that all gross revenues
are reported clearly and accurately.
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8.2 Annual Reports. Not later than sixty (60) days following the end of NFC
Northwest, LLC's fiscal year each year, NFC Northwest, LLC shall present, at its sole expense, a
written report to the City which shall include:
(1) Full financial statements for the previous year, including income statement,
balance sheet, cash flow statement, and appropriate explanatory footnotes, for NFC
Northwest, LLC Networks LLC, and a full income statement with appropriate explanatory
footnotes for the Telecommunications System with specific breakouts for the System
within the corporate limits of the City of Yakima. All financial statements shall be certified
by an officer or other authorized representative of NFC Northwest, LLC to be an accurate
reflection of NFC Northwest, LLC's books and records. In the event any audited financial
report has not been published by the date due under this Section, then the audited
financial report shall be deemed presented on time if presented within thirty (30) days after
publication.
(2) A current list of all of NFC Northwest, LLC's officers and directors or
partners, if any, including postal addresses, telephone numbers and, where applicable,
electronic mail addresses.
(3) The names and business postal addresses, telephone numbers and,
where applicable, the electronic mail addresses of the Telecommunications System's local
manager and engineer.
(4) Complete and accurate maps of the Telecommunications System including
the location of Facilities.
(5) A description of future plans by NFC Northwest, LLC to expand or alter the
Telecommunications System and/or expand or alter services provided over the
Telecommunications System.
8.3 Monitoring and Compliance Reports. Only upon request of the City, but no
more than once per year, NFC Northwest, LLC shall provide a written report of any and all
technical performance tests for the Telecommunications System required by the FCC, WUTC or
any other governmental agency having jurisdiction over the Telecommunications System.
8.4 Additional Reports. NFC Northwest, LLC shall prepare and furnish to the City or
any other entity exercising lawful regulatory authority in connection with this Franchise, at the
times and in the form prescribed by the City or such other regulatory entity, such additional reports
with respect to NFC Northwest, LLC's operations, affairs, transactions or property, as may be
reasonably necessary and appropriate to the performance of the rights, functions or duties of the
City or such other regulatory entity in connection with this Franchise.
8.5 Communication with Regulatory Agencies. NFC Northwest, LLC shall
simultaneously file with the City a copy of each petition, application, tariff, report or any other
communication related to the Telecommunications System transmitted by NFC Northwest, LLC
to, or received by NFC Northwest, LLC from, any federal, state or other regulatory commissions
or agencies having competent jurisdiction to regulate the construction or operation of the
Telecommunications System, including, specifically, the FCC and the WUTC. In addition, NFC
Northwest, LLC and its affiliates shall within ten (10) days of any communication transmitted by
NFC Northwest, LLC to, or received by NFC Northwest, LLC from, any judicial or regulatory
agency regarding any alleged or actual violation of a law, regulation or other requirement related
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to the Telecommunications System, provide the City a copy of the communication, whether
specifically requested by the City to do so or not.
8.6 Preservation of Confidential Information. The City shall protect information
provided to the City by NFC Northwest, LLC designated as confidential or proprietary by NFC
Northwest, LLC, given such information had been so designated at the time it was provided to the
City, to the maximum extent permissible under Chapter 42.17 RCW, or as provided by other state
law as it may now or hereafter exist.
SECTION 9 — REMEDIES AND PROCEDURE FOR REMEDYING
FRANCHISE VIOLATIONS
9.1 Remedies for Franchise Violations.
A. In addition to the remedies set forth elsewhere in this Franchise, the City
shall have the right to assert any or all of the following remedies in the event NFC Northwest, LLC
violates or defaults on, as determined by the City, any provision of this Franchise:
(1) Drawing upon or foreclosing all or any part of any security provided under
this Franchise, including without limitation the Faithful Performance Bond provided for
under Section 7.6 herein; PROVIDED, however, such drawing or foreclosure shall be only
in such a manner and in such amount as the City reasonably determines is necessary to
remedy the violation or default. Should the City take such action as described herein,
NFC Northwest, LLC shall be responsible for all direct and actual costs related to such
action, including, but not limited to, legal and administrative costs incurred by the City;
(2) Commence an action at law for monetary damages or seek other equitable
relief;
(3) In the case of substantial violation or default, as determined by the City, of
a material provision of this Franchise, declare this Franchise to be revoked;
(4) Seek specific performance of any provision of this Franchise, which
reasonably lends itself to such remedy, as an altemative to seeking damages.
B. In determining which remedy or remedies, as set forth herein, are
appropriate, the City shall take into consideration the nature and extent of the violation or default,
the remedy needed to prevent such violations or defaults from occurring in the future, whether
NFC Northwest, LLC has a history of previous violations of the same or similar kind and such
other considerations as are appropriate under the circumstances.
9.2 Procedure for Remedying Franchise Violations.
9.2.1 Notice of Violation. In the event the City determines NFC Northwest, LLC
has not complied with any term or condition of this Franchise, the City shall notify NFC Northwest,
LLC of the exact nature of the alleged noncompliance.
9.2.2 NFC Northwest, LLC's Right to Cure or Respond. NFC Northwest, LLC
shall have thirty (30) days from receipt of notice by the City of any alleged noncompliance with
any term or condition of this Franchise to:
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(1) Respond to the City contesting the assertion of noncompliance; or
(2) Cure such violation or default or, in the event that by the nature of the
violation or default such violation or default cannot be cured within a thirty (30) day period,
initiate reasonable steps to remedy such violation or default and notify the City of the steps
being taken and the projected date such remedy will be completed.
9.2.3 Public Hearing. In the event NFC Northwest, LLC fails to respond to a
notice, as described herein, or in the event NFC Northwest, LLC fails to cure such violation or
default pursuant to the procedures set forth herein, the City shall schedule a public hearing to
investigate any alleged violation or default. The City shall provide NFC Northwest, LLC twenty
(20) calendar days notice of the time and place of such hearing and provide NFC Northwest, LLC
an opportunity to be heard at such hearing.
9.3 Enforcement. In the event the City, after such hearing as described in subsection
9.2.3 of this Franchise has been conducted, upholds its determination that NFC Northwest, LLC
has violated or defaulted on any provision of this Franchise, the City may impose any of the
remedies set out in Section 9.1, A of this Franchise.
9.4 Failure to Enforce. NFC Northwest, LLC shall not be relieved of any of its
obligations to comply promptly with any provision of this Franchise by reason of any failure of the
City to enforce prompt compliance, and the City's failure to enforce shall not constitute a waiver
of rights or acquiescence in NFC Northwest, LLC's conduct.
9.5 Acts of Nature. NFC Northwest, LLC shall not be held in violation, default or
noncompliance with the provisions of this Franchise, nor suffer any enforcement or penalty related
thereto, where such violation, default or noncompliance is caused by acts of nature, power
outages or other events reasonably beyond its ability to control. However, NFC Northwest, LLC
shall take all reasonable steps necessary to provide service despite such occurrences.
9.6 Alternative Remedies. Nothing in this Franchise shall be deemed to bar the right
of the City or NFC Northwest, LLC to seek or obtain judicial relief from any violation of this
Franchise or any rule, regulation, requirement or directive promulgated thereunder. 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 the City to recover monetary damages for such violation by
NFC Northwest, LLC, or to seek and obtain judicial enforcement of NFC Northwest, LLC's
obligations under this Franchise by means of specific performance, injunctive relief or mandate,
or any other judicial remedy at law or in equity.
SECTION 10 — MISCELLANEOUS PROVISIONS
10.1 Posting and Publication. NFC Northwest, LLC shall assume the cost of posting
and publication of this Franchise as such posting and publication is required by law, and such is
payable upon NFC Northwest, LLC's filing of acceptance of this Franchise.
10.2 Service of Notice. Except as otherwise specifically provided herein, any notice
required or permitted to be given under this Franchise shall be deemed sufficient if provided in
writing and when (1) delivered personally to the following addressee(s) or deposited with the
United States Postal Service, postage paid, certified or registered mail; (2) sent by overnight or
commercial air courier; or (3) sent by facsimile transmission addressed as follows, or to such
other address as the receiving party hereafter shall specify in writing:
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Notices to the City shall be addressed to the following:
Randy Beehler, Communications & Public Affairs Director
City of Yakima Community Relations office
129 N. 2nd Street
Yakima, WA 98901
Notices to NFC Northwest, LLC shall be addressed to the following:
NEC Northwest, LLC
135 Lake Street South, Suite 155
Kirkland, Washington 98033
Attn: Legal
10.3 Compliance with Laws. NFC Northwest, LLC shall comply with all federal and
state laws and regulations, including regulations of any administrative agency thereof, as well as
the general ordinances, resolutions, rules and regulations of the City, pursuant to the City's lawful
authority, heretofore or hereafter adopted or established during the entire term of this Franchise.
In the event any valid and superior law, rule or regulation of any goveming authority or agency
having jurisdiction contravenes the provisions of this Franchise subsequent to its adoption, then
the provisions of this Franchise shall be superseded only to the limited extent that the provisions
hereof are in conflict and contrary to any such law, rule or regulation. Nothing in this Franchise
shall limit the City's right of eminent domain under state law. Nothing in this Franchise shall be
deemed to waive the requirements of any lawful code or resolution of the City regarding permits,
fees to be paid or manner of construction.
10.4 Governing Law and Venue. This Franchise shall be governed by and construed
in accordance with the laws of the State of Washington, and venue for any litigation arising out of
or in connection with privileges extended herein is stipulated to be in Yakima County.
10.5 Severability. If any section, subsection, sentence, clause, phrase or portion of
this Franchise is for any reason declared by a court of competent jurisdiction to be void, invalid or
unenforceable, such portion shall be deemed a separate, distinct and independent provision and
such declaration shall not affect the validity of the remaining portions thereof. In such event, the
City and NFC Northwest, LLC shall negotiate in good faith to modify this Franchise as may be
necessary to meet the requirements of the law and/or to effectuate the intention of this Franchise.
In the event that such modifications are barred by any legal requirements governing any party,
the City and NFC Northwest, LLC shall use their best efforts to otherwise avoid prejudice to the
respective parties' interests and to implement changes to effectuate the intent in entering into this
Franchise.
10.6 Guarantee of Performance. NFC Northwest, LLC hereby agrees that it enters
into this Franchise voluntarily and in order to secure and in consideration of the grant from the
City of a nine-year franchise. Performance pursuant to the terms and conditions of this Franchise
is guaranteed by NFC Northwest, LLC.
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10.7 Force Majeure.
A. For the purposes of this Section, the term "Force Majeure" shall mean acts
of God, landslides, earthquakes, lightning, fires, hurricanes, volcanic activity, storms, floods,
washouts, droughts, civil disturbances, acts of terrorism or of the public enemy, partial or entire
failure of utilities, strikes, explosions, lockouts or other industrial disturbances, insurrections,
public riots or other similar events which are not reasonably within in the control of the parties
hereto.
B. If NEC Northwest, LLC is wholly or partially unable to carry out its
obligations under this Franchise as a result of a Force Majeure, NFC Northwest, LLC shall provide
the City prompt notice of such Force Majeure, describing the same in reasonable detail, and NFC
Northwest, LLC's obligations under this Franchise, other than for payment of moneys due, shall
not be deemed in violation or default for the duration of the Force Majeure. NFC Northwest, LLC
agrees to use its best efforts to remedy as soon as possible, under the circumstances, NFC
Northwest, LLC's inability, by reason of Force Majeure, to carry out its responsibilities and duties
under this Franchise.
10.8 City Right of Intervention. If the City otherwise has the right to intervene, NFC
Northwest, LLC expressly acknowledges and agrees, by acceptance of this Franchise, not to
oppose such intervention by the City in any suit or proceeding to which NFC Northwest, LLC is a
party related to this Franchise.
10.9 Consent. Wherever the consent or approval of either NFC Northwest, LLC or the
City is specifically required in this Franchise, such consent or approval shall not be unreasonably
withheld.
10.10 No Third Party Beneficiaries. There shall be no third party beneficiaries of this
Franchise.
10.11 Franchise Ordinance Acceptance. NFC Northwest, LLC shall execute and
return to the City, within sixty (60) days after the date of adoption of the Franchise Ordinance by
the Yakima City Council, three (3) original Franchise Agreements, by which NFC Northwest, LLC
acknowledges that it has carefully read the terms and conditions of the Franchise Ordinance and
accepts all of the terms and conditions of the Franchise Ordinance and this Franchise and agrees
to abide by the same. In accepting this Franchise, NFC Northwest, LLC shall indicate that it has
relied upon its own investigation of all relevant facts, that it has had the assistance of counsel,
that it was not induced to accept this Franchise, that the Franchise Ordinance represents the
entire agreement between NFC Northwest, LLC and the City and that NFC Northwest, LLC
accepts all reasonable risks related to the interpretation of the Franchise Ordinance and this
Franchise. The executed Franchise Agreements shall be returned to the City accompanied by
the Letter of Credit as required in Section 7.6 of this Franchise and evidence of insurance as
required in Sections 7.5.1 and 7.5.2 of this Franchise. In the event NFC Northwest, LLC fails to
submit a Franchise Agreement as provided for herein, or fails to provide the required
accompanying documents, this Franchise shall be null and void.
10.12 Previous Rights Abandoned. This Franchise supersedes any and all other
rights, privileges, powers, immunities and authorities owned, possessed, controlled or exercisable
by NFC Northwest, LLC pursuant to any previous franchise in the City.
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10.13 Effective Date. This Franchise and the Franchise Ordinance shall be effective
thirty (30) days after its adoption; PROVIDED, however, that if NFC Northwest, LLC does not
accept this Franchise pursuant to Section 10.11 of this Franchise and comply with all conditions
for such acceptance set forth herein within sixty (60) days after the adoption of the Franchise
Ordinance, this Franchise and the Franchise Ordinance shall be null and void.
PASSED BY THE CITY COUNCIL, signed and approved this 3rd day of February, 2026.
CITY OF YAKIMA
salinda Ibarra, CMC, City Clerk
Publication Date: February 7, 2026
Effective Date: March 9, 2026
City Contract No: a-o'o - cm s
State of
County of %tY)
) ss.
NFC NORTHWEST, LLC NETWORKS LCC
I hereby certify that 1 know or have satisfactory evidence that 7/ V►'
is the person who appeared before re, and said person
acknowledged that he/she signed this instrument, and on oath stated that he/she was authorized
to execu a the instrument on behalf of NFC Northwest, LLC, and acknowledged it as the
l la o 4i ; 'c e / ' „4ef of NFC Northwest, LLC, to be the free and voluntary
act of such party for the uses and purposes mentioned in this instrument.
Dated this 1 day of , 2026.
ANDREW HALL
Notary Public
State of Washington
Commission # 20103472
My Comm. Expires Nov 8, 2027
Print Name: /J 2 / JO' /1 j,•-Lt..
NOTARY PUBLIC in and for the State of
, residing at
My commission expires: O2 7
33