HomeMy WebLinkAbout2001-055 Touch Americal, Inc. Telecommunications Franchise (TAI) CITY OF YAKIMA
Telecommunications System
Franchise Ordinance and
Franchise with
Touch America, Inc.
No. 2001- 55
OCTOBER 16 , 2001
TABLE OF CONTENTS
Page
SECTION 1 DEFINITIONS
1.1(A) Captions 1
1.1(B) Definitions 1
1.2 "City" 1
1.3 "City Council" 1
1.4 "Customer" 1
1.5 "Days ".. 1
1.6 "Facility(ies)" 2
1.7 "FCC" 2
1.8 "Franchise" 2
1.9 "Franchise Service Area" 2
1.10 "Grantee" 2
1.11 "Gross Operating Revenues" 2
1.12 "Network Telephone Service" 2
1.13 "Permittee" 2
1.14 "Permitting Authority" 2
1.15 "Person" 2
1.16 "Penalties" 3
1.17 "Right -of -Way" or "Rights -of -Way" 3
1.18 "Street" or "Streets ". 3
1.19 "Telecommunications Services" 3
1.20 "Telecommunications System" 3
1.21 "WUTC" 4
1.22 "Year ", "Annual" or "Annually" 4
SECTION 2 FRANCHISE
2.1 Grant of Franchise 4
2.2 Franchise Term 4
2.3 Franchise Non - Exclusive 4
2.4 Authority Granted 5
2.5 Limits on Permission 6
2.6 Franchise Service Area 6
2.7 Periodic Public Review of Franchise 6
2.8 Franchise Renewal or New Franchise 7
2.9 ' Renegotiation 7
2.10 Revocation 8
2.11 Receivership 9
2.12 Expiration 9
2.13 Transfer of Ownership 9
2.14 Change in Control 10
2.15 No Stock to be Issued 10
2.16 Other Codes and Ordinances 11
2.17 Survival of Terms 11
SECTION 3 ENFORCEMENT AND ADMINISTRATION BY CITY
3.1 City Jurisdiction and Supervision 11
3.2 Grantee to Have No Recourse 11
3.3 Acceptance of Power and Authority of City 11
3.4 Acts Discretionary, Reservation of Authority 12
3.5 Delegation of Authority to Regulate 12
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SECTION 4 OPERATION IN STREETS AND RIGHTS -OF -WAY
4.1 Use of Streets 12
4.2 Construction or Alteration 12
4.2.1 Permits 12
4.2.2 Schedule and Maps 13
4.2.3 Good Engineering 13
4.3 Facilities Placement 13
4.3.1 General Standards 13
" 4.3.2 Limited Access 14
4.3.3 Consistency with Designated Use 14
4.3.4 Non - Interference 14
4.3.5 Undergrounding 14
4.4 Coordination with Other Users 15
4.5 Relocation 15
4.6 Movement of Buildings 16
4.7 Tree Trimming 17
4.8 Restoration 17
4.9 City Right to Require Removal of Property 18
4.10 Emergency Repairs 19
4.11 City Right of Inspection 19
4.12 After- Acquired Facilities 19
4.13 Information 19
SECTION 5 SYSTEM DESIGN AND STANDARDS
5.1 Initial Telecommunications System Construction 20
5.1.1 Construction Schedule 20
5.1.2 Construction Timeline 20
5.2 Technical Standards 20
5.3 Performance Testing 20
SECTION 6 CUSTOMER SERVICE POLICIES
6.1 City Reservation of Rights 20
6.2 Response to Customers 20
6.3 City Franchise Contact Identified 21
6.4 Notice of Change in Services 21
6.5 Complaints 21
6.6 Regulation of Rates and Charges 21
SECTION 7 COMPENSATION AND FINANCIAL PROVISIONS
7.1 Taxes and Fees 21
7.1.1 City Occupation Tax on Utilities 21
7.1.2 Other Fees 22
7.2 Payments 22
7.3 Financial Records 23
7.4 Auditing 23
7.5 Insurance 24
7.5.1 Coverages 24
7.5.2 Proof of Insurance 25
7.5.3 Alteration of Insurance 25
7.5.4 Failure to Procure 25
7.6 Performance Bond 26
7.7 Indemnity, No Estoppel, No Duty 26
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SECTION 8 REPORTING REQUIREMENTS
8.1 Monthly Reports 27
8.2 Annual Reports 28
8.3 Monitoring and Compliance Reports 28
8.4 Additional Reports 28
8.5 Communication with Regulatory Agencies 28
8.6 Preservation of Confidential Information 29
SECTION 9 REMEDIES AND PROCEDURE FOR REMEDYING
FRANCHISE VIOLATIONS
9.1 Remedies for Franchise Violations 29
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 30
9.2.3 Public Hearing 30
9.3 Enforcement 30
9.4 Failure to Enforce 30
9.5 Acts of Nature 30
9.6 Alternative Remedies 30
SECTION 10 MISCELLANEOUS PROVISIONS
10.1 Posting and Publication 31
10.2 Service of Notice 31
10.3 Compliance with Laws 31
10.4 Governing Law and Venue 32
10.5 Severability 32
10.6 Guarantee of Performance 32
10.7 Force Majeure 32
10.8 City Right of Intervention 32
10.9 Consent 33
10.10 No Third Party Beneficiaries 33
10.11 Franchise Ordinance Acceptance 33
10.12 Previous Rights Abandoned 33
10.13 Effective Date 33
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ORDINANCE NO. 2001 -
AN ORDINANCE granting a non - exclusive franchise to Touch America, Inc. ( "TAI ") to
construct, operate and maintain a Telecommunications System, with all
necessary facilities, within the City of Yakima, Washington (the
"City "); setting forth provisions, terms and conditions accompanying
the grant of this Franchise; providing for City regulation of
construction, operation, maintenance and use of the
Telecommunications System; prescribing penalties for the violations of
its provisions; and setting an effective date.
BE IT ORDAINED BY THE CITY OF YAKIMA that a franchise is hereby granted to
Touch America, Inc., 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 TAI utilizing the Telecommunications System.
1.5 "Days" shall mean calendar days.
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1.6 "Facility(ies)" means all wires, lines, cables, conduits, equipment and
supporting structures, and/or any other tangible component of TAI's Telecommunications
System, located in the City's rights -of -way, utilized by TAI in the operation of activities
authorized by this Franchise. The abandonment by TAI 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 TAI 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 TAI shall extend its services.
1.10 "Grantee" shall refer to, as incorporated or used herein, Touch America, Inc.
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 TAI or any affiliate of
TAI or any other person who would constitute an operator of TAI'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.
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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;
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.
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1.20 "Telecommunications System" means all wires, cables, ducts, conduits,
vaults, poles and other necessary Facilities owned or used by TAI 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 Touch America, Inc., a non-
exclusive franchise which authorizes TAI, 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 nine (9) years from the
effective date unless extended in accordance with the provisions in Sections 2.7 and 2.12 of
this Franchise or 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 TAI. The grant of any additional franchise shall not of itself be deemed
to constitute a modification, revocation or termination of rights previously granted to TAI.
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.
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2.4 Authority Granted.
A. Subject to local, state and federal law, this Franchise grants the
authority, right and privilege to TAI 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. TAI'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 TAI's right to construct, erect, install or modify its
Telecommunications System is specifically subject to the requirement that TAI obtain permits
as set forth in this Franchise.
C. TAI 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 TAI 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 TAI, 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 TAI shall be subject to
the exercise thereof by the City at any time.
D. TAI 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 TAI 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 TAI 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 TAI 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, TAI'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 TAI 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. TAI
stipulates that this Franchise extends no such rights or privileges.
B. Permission does not extend to areas outside those listed 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. TAI 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, TAI 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. TAI stipulates
the City may grant similar permission to others.
E. TAI 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, TAI 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 TAI any fee title property rights in or
on any public or private property to which TM 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 Periodic Public Review of Franchise.
A. The City shall, at three -year intervals, conduct a comprehensive, public
review of this Franchise. The first review shall begin upon the third anniversary of the
effective date of this Franchise and occur every three (3) years thereafter. One purpose of
such reviews shall be to ensure that this Franchise continues to effectively serve the public in
light of new developments in telecommunications law and regulation, telecommunications
technology, local regulatory environment and community needs and interests. Another
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purpose of such reviews shall be to accurately and completely evaluate compliance by TAI
with this Franchise and to identify any violations by TAI of any provision(s) of this Franchise.
Both the City and TAI agree to make a full and good faith effort to participate in such reviews
in a manner that accomplishes the goals stated.
B. During such reviews, the City may require TAI to make available
records, documents and other information necessary for the effective completion of such
reviews and may inquire in particular whether TAI is supplying services equivalent to those
proposed by TAI during the process leading to the granting of this Franchise.
C. The periodic reviews described in this Section may be, but need not be,
made coincident with reviews involved in the consideration of TAI requests for Franchise
renewal, Franchise extension or approval of transfer of ownership of the Telecommunications
System. Nothing in this Section shall be construed to prohibit the City and TAI from
engaging in a continuous review of the performance of TAI. The City may also, at any time,
conduct a public hearing on any issue related to compliance by TAI with this Franchise or any
permit related thereto.
D. After completion of each such review described herein, if the City is
satisfied TAI has substantially complied with this Franchise during the previous three years
and is satisfied the public interest will be served by extending the term of this Franchise, it
may, with the consent of TAI, extend the term set forth in Section 2.2 of this Franchise by one
(1) additional year. In no event, however, shall the total term of this Franchise, including any
extensions, exceed twelve (12) years.
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 TAI 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
TAI's functions, the City and TAI 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 TAI of an offer
to renegotiate.
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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 TAI 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) TM 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) TAI becomes insolvent, unable or unwilling to pay its debts as they
become due, or is adjudged a bankrupt; or
(4) TAI fails, refuses, neglects or is otherwise unable to obtain and/or
maintain any permit required by any federal or state regulatory body regarding TAI'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:
(1) The invalidation, failure to pay or any suspension of TAI's payment of
any fees or taxes due the City under this Franchise;
(2) Any failure by TAI 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 TAI to maintain the liability insurance required under
this Franchise;
(4) Any failure by TM to maintain and provide the City a copy of a
Performance Bond as required under this Franchise;
(5) Any failure by TAI 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 TAI of the occurrence and the proposed forfeiture and an
opportunity for TAI to be heard, the City may, by ordinance or other appropriate document,
declare a forfeiture. In a hearing of TAI, TAI 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
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lawfully declared, all rights of TM 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 TAI, 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) Extend this Franchise, as provided for herein, for up to a total of three
(3) years, though nothing in this provision shall be construed to require such
extension;
(2) Renew this Franchise, in accordance with applicable valid law;
(3) Invite additional franchise applications or proposals;
(4) Terminate this Franchise without further action; and
(5) Take such other action as the City deems appropriate.
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 TM, either by act of TAI 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. Any transfer of
ownership shall make this Franchise subject to revocation unless and until the City shall have
given written prior consent.
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B. Upon any transfer as heretofore described, TAI 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 TAI.
C. Every such transfer as heretofore described, whether voluntary or
involuntary, shall be deemed void and of no effect unless TAI 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 TAI'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 TAI'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. TAI 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
TAI. If beneficial ownership of thirty percent (30 %) or more of the stock of TAI, or any
parent company of TAI 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 TAI or a parent of TAI, then a change in control will be deemed to
have taken place unless the City, upon request of TAI, 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 control, the City may inquire into the qualifications of the
prospective controlling party to perform the obligations of TAI under this Franchise. TAI
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. TAI 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. TAI 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 TAI, any payment or
award on account of this Franchise or permission or its value. TAI 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 TAI's
franchised activities. The City shall have no obligation to make any payment to TAI or award
in condemnation for any other asset or interest of TAI, except as required under the State of
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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 TAI 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
Telecommunications Division (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 City's Telecommunications Manager (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 TAI.
3.2 Grantee to Have No Recourse. Subject to state and federal law, TM 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. TAI 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;
(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 TAI
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
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(4) The matters contained in TAI'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. TAI
stipulates and agrees that this Franchise is subject to the City Charter of the City of Yakima.
TAI understands the Charter's provisions are incorporated herein, where applicable. TAI
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 government, state government 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. TAI 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 TAI's
provision of Telecommunications Services shall, regardless of who performs installation,
construction, alteration and/or maintenance, be and remain the responsibility of TAI.
4.2 Construction or Alteration.
4.2.1 Permits. TAI 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. TAI shall apply for and obtain all permits necessary for installation, construction,
alteration and/or maintenance of any such Facilities, and for excavation and laying of any
Telecommunications System Facilities within City streets and rights -of -way. TAI shall pay all
applicable fees due for any such permits.
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4.2.2 Schedule and Maps.
A. Prior to beginning installation, construction, alteration or maintenance
of the Telecommunications System, TAI 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. TAI 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, TAI 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. TAI shall provide a map to the City's Telecommunications Division, or
its successor, showing the location of TAI'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. TAI 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 TAI's Telecommunications System, such as,
but not limited to, trenching, paving, compaction and locations, TAI 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. TAI 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. TAI 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 TAI and other utility purveyors or authorized users of City streets or rights -of-
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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.
4.3.2 Limited Access. TAI 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 TAI 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 TM'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 TAI 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. TM 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. TAI shall, where possible in the case of aboveground lines, make use of
existing poles and other facilities available to TAI. TAI 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, TAI 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) TAI is unable to obtain pole clearance;
(5) Underground easements are obtained from developers of new
residential areas; or
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(6) Utilities are overhead but residents prefer same to be located
underground (such undergrounding to be provided at residents' expense).
TAI 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 TAI's
participation in municipally imposed undergrounding or related requirements as a condition of
TAI's installation or continued maintenance of overhead facilities authorized under this
Franchise. TAI hereby agrees to coordinate its underground installation and planning
activities with the City's underground plan and policies.
4.4 Coordination with Other Users. TAI 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 TAI 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 TAI 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, TAI 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 TAI'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 TAI 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, TAI 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.
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B. If the City requires TAI to remove or relocate its facilities located
within City streets or rights -of -way, the City will make a reasonable effort to provide TAI
with an alternate location for its facilities within City streets or rights -of -way.
C. The City shall provide TAI 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 TAI to remove or relocate its Telecommunications System Facilities to
accommodate the construction, maintenance or repair of the requesting party's facilities, or the
more efficient use of such facilities, or to "make ready" the requesting party's facilities for use
by others, or because TAI is using a facility which the requesting party has a right or duty to
remove, TAI 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 TAI to remove or relocate its facilities shall give
TAI no less than forty -five (45) days advance written notice advising TAI 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 TAI 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 TAI's
failure, neglect or refusal thereof shall be paid solely by TAI. If TAI 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 TAI 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 TAI.
G. If TAI causes any damage to private property or public property in the
process of removing or relocating its facilities, TAI shall pay the owner of the property for
such damage.
H. TAI does hereby promise to protect and save harmless the City, its
officers, agents, elected officials and employees from any customer or third party claims for
service interruption or other losses in connection with any removal or relocation of TAI's
Telecommunications System Facilities.
4.6 Movement of Buildings. TAI 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
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by the person requesting the same and TAI 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 TAI for such temporary wire changes.
4.7 Tree Trimming. TAI, 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 TAI.
4.8 Restoration.
A. Whenever TAI damages or disturbs any area in or near City streets,
rights -of -way, paved area or public improvement, TAI shall, at its 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 TAI in a hard surface pavement in
any City street or right -of -way, TAI 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 TAI until such time as the area is
resurfaced or reconstructed.
D. The City hereby reserves the right, after providing reasonable notice to
TAI, to remove and/or repair any work done by TAI which, in the determination of the City, is
inadequate. The cost thereof, including the cost of inspection and supervision, shall be paid
solely by TAI.
E. Should TAI 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 TAI's sole expense and liability, but no action or inaction by the City
shall relieve TAI 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 TM, 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 TAI damages or disturbs any area in or near City streets,
rights -of -way, paved area or public improvement, TAI stipulates that the City may, without
limitation:
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(1) Require TAI to repave an entire lane or greater affected area within any
cut or disturbed location; and/or
(2) Require TAI 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 TAI causes any damage to private property in the process of restoring
facilities, TAI shall pay the owner of the property for such damage.
I. All of TAI's work under this Section shall be done in strict compliance
with all applicable rules, regulations and ordinances of the City.
J. TAI 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 TAI
to remove, at TAI'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 TAI fails to do
so, the City may perform the work and collect the cost thereof from TAI. The actual cost
thereof, including direct and indirect administrative costs, shall be a lien upon all plant and
property of TAI effective upon filing of the lien with the Yakima County Auditor.
B. Any order by the City Council to remove any of TAI's
Telecommunications System Facilities shall be mailed to TAI not later than thirty (30)
calendar days following the date of expiration of this Franchise. TAI 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. TAI 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. TAI 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.
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D. Subject to applicable law, TAI 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, TAI shall notify the City of the need for such
repairs. TAI 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 TAI 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 TAI, but no action or inaction by the City shall create any duty or
obligation by the City to inspect, test or approve any installation, construction, alteration or
maintenance work performed by TAI. In addition, the City may require TAI to furnish
certification from a qualified independent engineer that TAI's Facilities are constructed in
accordance with good engineering practice and are reasonably protected from damage and
injury.
4.12 After - Acquired Facilities. TAI 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 TAI or upon addition or
annexation to the City of any area in which TAI 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. TAI hereby promises to maintain and supply to the City, at
TAI'S sole expense, any information requested by the City to coordinate municipal functions
with TAI's activities within City streets and rights -of -way. TAI 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. TAI shall keep the City informed of its long -range plans
so as to allow coordination with the City's long -range plans.
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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 TAI to the City's Telecommunications
Division 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. TAI 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 TAI 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.
5.3 Performance Testing. TAI 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. TAI 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. TAI shall promptly respond to complaints
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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. TAI 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 TAI'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, TAI
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 TAI.
6.5 Complaints. TAI hereby acknowledges the City's interest in the prompt
resolution of all complaints made to the City regarding TAI'S operation in City streets and
rights -of -way and TAI 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. TAI 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. TAI agrees that if this statutory prohibition is removed,
and the City obtains the explicit authority from the State to impose a 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 TAI'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,
TAI 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. TAI and the City agree that a reasonable franchise fee would be no
less than five percent (5 %) of TAI's Gross Receipts for telephone business activities within
the City. TAI and the City agree that nothing in this Section limits the right of TAI to
challenge imposition of a municipal franchise fee pursuant to 47 USC § 253.
B. TAI 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
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•
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, TAI
and the City agree that nothing in this Franchise shall limit the City's power of taxation, as
may now or hereafter exist.
C. TAI 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, TAI 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. TAI 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 TAI, 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 TAI no later than thirty (30) days after TAI's receipt of the City's billing
thereof.
C. TAI 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.
7.2 Payments.
A. TAI 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 TAI 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, TAI
shall file with the City a written statement signed by the Telecommunication System manager
of TAI which identifies in detail the sources and amounts of gross revenues earned by TAI
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
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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 TAI 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. TAI 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 TAI and/or any parent company of TAI pursuant to the rules
and regulations of the FCC, WUTC and other regulatory agencies, and other like materials
TAI and/or any parent company of TAI 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 TAI 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 TAI and/or any parent company
of TAI.
C. TAI 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.
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 TM in order to verify the accuracy of utility tax
payments made to the City. TAI and each parent company of TAI shall cooperate fully in the
conduct of such audit. In case of audit, the City director of budget and finance may require
TAI to furnish a verified statement of compliance with TAI's obligations or in response to any
23
questions. Said certificate may be required from an independent certified public accountant at
TAI's sole expense. All audits will take place on TAI's premises or at offices furnished by
TAI, which shall be a location within the City of Yakima. TAI 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 TAI'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 TAI has underpaid City utility taxes by five percent (5 %) or
more than was due the City for any given period, then TAI 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. TAI shall maintain, throughout the term of this Franchise,
liability insurance insuring TAI, 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, TAI 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 TAI 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 Liability Insurance."
(2) Commercial Automobile Liability Insurance.
On or before the date this Franchise is fully executed by the parties, TAI 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
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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 TAI
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.
TAI 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, TAI 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 TAI
from liability in excess of those limits.
7.5.2 Proof of Insurance. TAI 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. TAI shall file and maintain a certificate
of insurance along with written evidence of payment of the required premiums with the
manager of the City Telecommunications Division, 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.
TAI 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, TAI and TAI's officers, agents and employees, the City may require additional
insurance to be acquired by TAI. Should the City exercise its right to require additional
insurance, the City will provide TAI with written notice.
7.5.4 Failure to Procure. TAI 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
25
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 TAI'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 TAI for all premiums in connection therewith.
7.6 Performance Bond. Prior to the effective date of this Franchise, TM 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 (S 100,000), conditioned that TM shall well and truly observe, fulfill and perform each
term and condition of this Franchise. TM 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 TM or any successor or assign of TM has liquidated all of its
obligations with the City that may have arisen from the acceptance of this Franchise by TAI 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. TAI shall provide a duplicate copy of said bond to the City and said duplicate copy
shall be kept on file at the City Telecommunications Division 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 TAI or to limit liability of TAI 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. TM 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 TM, 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 TAI'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 TAI'S failure to comply with any
and all provisions of any statute, regulation or resolution of the United States, State of
Washington or any local agency applicable to TM and its business. Nothing herein shall be
deemed to prevent the parties indemnified and held harmless herein from participating in the
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defense of any litigation by their own counsel at such parties' expense. Such participation
shall not under any circumstances relieve TAI 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, TAI 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. TAI hereby waives immunity under Title 51 RCW and affirms that the
City and TAI 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 TAI, not only as to the amount of such damage, but as to its liability, provided TAI has
reasonable notice or actually knew, or should have known, of the pendency of such suit.
Under such circumstances, TAI 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 TAI, 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 TAI in hard copy and/or electronic format compatible with City data bases,
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,
TAI 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 TAI.
Said reports shall contain an accurate statement in summarized form, as well as in detail, of
TAI'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 TAI's
fiscal year each year, TAI 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 TAI, 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 TAI to be an accurate reflection of
TAI'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 TAI'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 TAI 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, TAI 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. TAI 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 TAI'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. TAI 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 TAI to, or received by TAI from,
any federal, state or other regulatory commissions or agencies having competent jurisdiction
to regulate the construction or operation of the Telecommunications System, including,
28
specifically, the FCC and the WUTC. In addition, TAI and its affiliates shall within ten (10)
days of any communication transmitted by TAI to, or received by TAI from, any judicial or
regulatory agency regarding any alleged or actual violation of a law, regulation or other
requirement related 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 TAI designated as confidential or proprietary by TAI,
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 TAI 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, TAI 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 alternative 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 TAI has a history of previous violations of the same or similar kind and such other
considerations as are appropriate under the circumstances.
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9.2 Procedure for Remedying Franchise Violations.
9.2.1 Notice of Violation. In the event the City determines TAI has not
complied with any term or condition of this Franchise, the City shall notify TAI of the exact
nature of the alleged noncompliance.
9.2.2 TAI's Right to Cure or Respond. TAI 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:
(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 TAI fails to respond to a notice, as
described herein, or in the event TAI 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 TAI twenty (20) calendar days notice of the time
and place of such hearing and provide TAI 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 TAI 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. TAI 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 TAI's conduct.
9.5 Acts of Nature. TAI 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, TAI 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 TAI 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
TAI, or to seek and obtain judicial enforcement of TAI'S obligations under this Franchise by
means of specific performance, injunctive relief or mandate, or any other judicial remedy at
law or in equity.
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SECTION 10 — MISCELLANEOUS PROVISIONS
10.1 Posting and Publication. TAI 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 TAI'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:
Notices to the City shall be addressed to the following:
Randy Beehler, Telecommunications Manager
City of Yakima Telecommunications Division
124 South 2 Street
Yakima, WA 98901
Facsimile Number: (509) 576 -6380
Notices to TAI shall be addressed to the following:
Touch America, Inc.
Attn:
Facsimile Number:
With a copy to:
Attn:
Facsimile Number:
10.3 Compliance with Laws. TAI 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 governing
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
31
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 TAI 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 TAI 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. TAI 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 TAI.
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 TAI is wholly or partially unable to carry out its obligations under
this Franchise as a result of a Force Majeure, TAI shall provide the City prompt notice of
such Force Majeure, describing the same in reasonable detail, and TAI'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. TAI agrees to use its best efforts to remedy as soon as
possible, under the circumstances, TAI'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,
TAI expressly acknowledges and agrees, by acceptance of this Franchise, not to oppose such
intervention by the City in any suit or proceeding to which TAI is a party related to this
Franchise.
32
10.9 Consent. Wherever the consent or approval of either TAI 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. TAI 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 TAI 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, TAI 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 TAI and
the City and that TAI 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
TAI 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 TAI pursuant to any previous franchise or other agreement granted to TAI by
the City.
10.13 Effective Date. This Franchise and the Franchise Ordinance shall be effective
thirty (30) days after its adoption; PROVIDED, however, that if TAI 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.
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PASSED BY THE CITY COUNCIL, signed and approved this / day of CknaER, 2001.
CITY OF YAKIMA TO - - • ERICA, INC.
& C- /
B7A._ _ • Ii
Mary P , Mayor Its• - • •
Attest:
N k x
City Clerk 'x i
City Contract No: N/A Publication Date: 10 -19 -2001
Ordinance No: 2001 - Effective Date: 11 -18 -2001
State of Y m Ill; )
)ss.
County of.3Q ), C )
I hereby certify that I know or have satisfactory evidence that , r, -
L�� is the person who appeared before me, and said person
acknowledged that he /she signed this instrument, and on oath stated that he /she was
authorized to execute Ole instrument on behalf of Touch America, Inc., and acknowledged it
as the ``j P . Pr k , RC, Cr of Touch America, Inc., to be the free and
C
voluntary act of such p ty for the uses d purposes mentioned in this instrument.
Dated this 4 5 - *,1-‘ day of e,yy,_D , 2001.
1
Print Name: AM �,
NOTARY P LIC in and for the State of
1 112)NA V. "a . , residing at
Q
My commission expires:, G6
*' r _l 'tom`.
�L7 ••••.
34
,
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
/
Item No. /
For Meeting Of October 2, 2001
ITEM TITLE: An ordinance granting a non - exclusive franchise to Touch America, Inc. which
authorizes Touch America, Inc. to occupy City of Yakima rights -of -way in order to construct,
operate and maintain elecommunications system.
SUBMITTED BY 13i 1 Cook, Director, Community and Economic Development Department
CONTACT PERSON /TELEPHONE: Randy Beehler, Telecommunications Manager,
575 -6092
SUMMARY EXPLANATION: On December 5, 2000 the City Council granted Touch
America, Inc. ( "TAI ") a six -month Temporary License so that TAI could proceed with
construction of a telecommunications system in the City. On June 5, 2000 the City Council
granted a second six -month Temporary License to TAI allowing TAI to continue construction of
its telecommunications system while negotiations regarding a final franchise agreement
continued. TAI completed construction of its telecommunications system in the early summer of
2001 and plans to utilize the system to provide various telecommunications services to customers
in the City. The attached Telecommunications System Franchise Ordinance (the "Ordinance ")
and the franchise it grants allow TAI to occupy City streets and rights -of -way in order to
construct, operate and maintain a telecommunications system. The franchise authorized by the
Ordinance is for a term of nine (9) years. The Ordinance provides, in Section 7.1.1.C, that TAI
will pay the City a tax equal to six percent (6 %) of the total gross income derived from TAI'S
business in the City, pursuant to Yakima Municipal Code 5.50.050. The City will not charge a
separate franchise fee at this time, pursuant to RCW 35.21.860. No public vote on the franchise
authorized by the Ordinance will be required due to an Order by Yakima County Superior Court
Judge Robert N. Hackett, Jr., which was entered on July 14, 1999. Judge Hackett ruled that the
Yakima City Charter provision (Article XI, Section 2) requiring such a vote was preempted with
regard to telecommunications franchises by 47 U.S.C. § 253(a) of the federal
Telecommunications Act of 1996.
Resolution Ordinance X Other (specify)
Contract X Mail to (name & address)
Phone:
Funding Source
APPROVAL FOR SUBMITTAL: ��� City Manager
STAFF RECOMMENDATION: Pass ordinance.
BOARD /COMMISSION RECOMMENDATION: N/A
COUNCIL ACTION: Ordinance passed. ORDINANCE NO. 2001 -55
IV11141EV I O/.LUANLW V BVil
To: Glenn Rice, Asst. City Manager t° *+
From: Randy Beehler, Telecommunications Manager' Y. Y OC .,.
Subject: Touch America, Inc. Telecom Franchise Lltu�
Date: 10 -08 -01
OFFICE CF CITY MANAGER
Glenn,
Attached is a "punchlist" memo written by staff of the City's Engineering
Division dated 7 -18 -01 re: remaining outstanding property restoration items
related to construction of the Touch America, Inc. ( "TAI ") telecommunications
system within the City. City Engineer Kay Adams has recently discussed the
remaining items on the "punchlist" with TAI's contractor representatives and has
received assurances that all required restoration of public and private property
disturbed by construction of TAI's telecommunications system will be completed
in a timely manner.
It should be noted that construction is ongoing on TAI's telecommunications
system. The project remains "open ". The City Engineer has informed TAI that he
will not "close" the project nor release the maintenance bond (see attached) until
all items on the "punchlist" have been completed to the satisfaction of the City.
The discretion of the City Engineer to withhold closing out the project and
releasing the bond, along with protection provided by an insurance policy (see
attached certificate) required by the Temporary License Agreement granted to
TAI by the City, should allay any concerns regarding completion of the
remaining "punchlist" items.
Further, the City Engineer has told me verbally and in writing that, during
construction of TAI's telecommunications system, TAI and its contractors have
demonstrated "...pro- active methods of solving most problems and taking care of
unsafe conditions in a timely manner." The City Engineer has described TAI and
its contractors as "...better than most of the fiber optics providers I have dealt
with in the past." The City Engineer is confident, given the combination of
enforcement mechanisms available to the City and the demonstrated cooperative
nature of TAI and its contractors, that all remaining "punchlist" items will be
completed in a timely manner and to the satisfaction of the City.
With regard to the Council's consideration of the proposed TAI franchise on Oct.
16, the issues of granting a franchise to TAI and resolving any outstanding issues
related to the construction of the telecommunications system should be
considered separately. As detailed above, the City has the necessary
mechanisms in place, through its permitting processes and the issuance of a
Temporary License to TAI, to ensure all property disturbed by construction of
TAI's telecommunications system will be restored.
That having been said, it is, in my opinion, in the best interests of the City to
issue a franchise to TAI sooner rather than later. The enforcement mechanisms
included in the proposed TAI franchise are much stronger than those in the
current Temporary License Agreement TAI is operating under. Should TAI
and/or its contractors delay completion or fail to complete any remaining or
future "punchlist" items, the ability of the City to penalize TAI for such non-
compliance will be much greater under the provisions of the proposed franchise
than those of the current Temporary License.
It is the opinion of the City's Telecommunications Manager, the City's Legal
Department and the City Engineer that denying or delaying issuance of a
franchise to TAI based on the performance of TAI or its contractors during
construction of TAI's telecommunications system are not options available to the
City. The Federal Telecommunications Act of 1996 (the "Act ") and recent court
decisions interpreting the Act have made it clear that local laws and/or
regulations cannot prohibit or have the effect of prohibiting entry into a market
by a telecommunications provider. Denying or delaying issuance of a franchise
could be interpreted as prohibiting TAI from entering the Yakima market.
The current Temporary License expires Dec. 5, 2001. Should consideration by the
Council of the proposed TAI franchise be delayed beyond Oct. 16, 2001, it is my
opinion that the City would be placing itself in a tenuous position and possibly
be in violation of federal law.
Therefore, I strongly recommend that consideration by the Council of the
proposed TAI franchise proceed on Oct. 16.
Please contact me should you have any additional questions or comments
regarding this matter.
rpb
cc: Dick Zais, City Manager
Bill Cook, Community and Economic Development Dept. Director
Kay Adams, City Engineer
•
•
PUNCH LIST
DATE: 7 / 18 / 01
TO: Jim Maine
FROM: Bruce Floyd
City of Yakima, Construction Inspector _
SUBJECT: Punch List for AT &T -Touch America
Areas to be patched with asphalt
1) Two pot hole areas in the intersection of 18 Street and Nob Hill Blvd. One is on the
NE corner and the other is located on the NW corner.
2) Two pot hole areas on `B' Street at the alley between Naches and 6 Street.
3) 1005 E. Lincoln around the new curb and gutter.
4) 10 Street and `B' Street in the Island when curb is replaced.
5) `D' Street between l Ave. and Front Street after the bore is completed. Pave Y2 the
road.
6) 2 Ave. between Yakima Ave. and Chestnut Ave. next to the tracks there are two
areas that have settled. This is where there was an asphalt patch before, we must
have not filled the void under these areas and they will need to be fixed. Each one of
these areas is approximately 2 x 1.5 feet.
Areas of concern for lawns on 6 Street
07) Pacific and Adams, This entire block needs to be redone. Grass is very sparse and
has a lot of weeds.
Adams to Race, rocks need to be picked up at 703 and seed again, add top soil, 705
and 707 have cars driving and parking on this area and it is a mute point for these
two lawns, 709 to 717 the grass is very sparse and will need to be seeded again.
Race to Beech, Beech to Maple, Maple to Pine, Pine to Chestnut, these blocks are
OK! The areas that are bad were all bored.
Chestnut to Walnut, 211 grass is sparse. Seed again.
`B' Street
From 6 Street to 8 Street the grass is very sparse and needs more seed.
8 to 9 Street are fine.
9 Street to the alley to the East needs to be seeded.
Misc.
On `B' Street from 6 Street to the alley West, there are-large rocks that need to be
relocated as directed.
Your attention to these details will aid in the final closeout of this Project. If you have
any questions concerning this Punch List or other items dealing with this Project please
call me at (509) 961 -0058.
TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA
Hartford, Connecticut 06156
MAINTENANCE BOND
In conjunction with
BOND NO. 77SB103508028BCM
KNOW ALL MEN BY THESE PRESENTS:
UNDERGROUND SPECIALTIES, A DIVISION OF
That ARGUSS COMMUNICATIONS GROUP, INC. , as Principal, hereinafter
called Contractor, and TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, as
Surety, hereinafter called Surety, are held and firmly bound unto CITY OF YAKIMA, WASHINGTON
as Obligee, hereinafter called Owner, in the penal sum of $ 100 , 000 for the
payment whereof Contractor and Surety bind themselves, their heirs, executors, administrators,
successors, and assigns, jointly and severally, firmly by these presents.
WHEREAS, Contractor has by written agreement, dated JANUARY 8, 2001
entered into P a
permit with Owner for yAK IMA METRO FIBER BUILD FOR TOUCH AMERICA
CONTRACT
in accordance with the General Conditions, the Drawings and Specifications, which contract is by
reference incorporated herein, and made a part hereof, and is referred to as the Contract.
NOW, THEREFORE, the condition of this obligation is such that, if Contractor shall remedy any
defects due to faulty materials or workmanship which shall appear within a period of one year from
the date hereof, then this obligation to be void; otherwise to remain in full force and effect.
PROVIDED, HOWEVER, that Owner shall give Contractor and Surety notice of observed defects
with reasonable promptness.
SIGNED and sealed this 8 ay of JANuARy2000c 2001
In the presence of: UNDERGROUND SPECIALTIES, A DIVISION OF
i COMMUNICATIONS GROUP, INC.
TRAVELERS CASUALTY AND SURETY COMPANY
OF AMERICA
By:�n� /,
Attorney -in -Fact
HONORE' P. KOHLER
•
CONTRACTOR'S INDEMNITY AGREEMENT
UNDERGROUND SPECIALTIES' DIVISION,
ARGUSS COMMUNICATIONS GROUP, INC. , Contractor, hereby agrees to hold harmless, indemnify,
and defend the City of Yakima, a Municipal Corporation; and each of their officers, officials,
employees, or agents, from any and all liability claims, losses, or damages arising, or alleged to
have arisen, from the performance of work during the construction of public works
improvements described as
TOUCH AMERICA - YAKIMA FIBER BUILD
by, reason of any negligent act of omission of the Contractor, any
Subcontractor, or Supplier, or by any agent, employee, or representative of any of them.
In witness whereof, the undersigned has caused the Indemnity Agreement to be executed and its
seal affixed by the duly authorized officers this 8TH day of JANUARY , 2001
UNDERGROUND SPECILATIES DIVISION,
ARGUSS COMMUNICATIONS GROUP, INC.
Name of Corporation/Business
4
By:
Title: MARK SWANSriN VICE PRES.
Mat
Attest: MOW 1
K.Callow/Proc. Permit PrjJPrivate 10
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ACORD .CERTIFIC :. TE(MWDD/YY)
... :.:.:.::::::.. .::... : :::.._:::.:::: :::::.. .: :: :: .:::.::.:::: :,:.:::::.:::.. .
: ::::::.::.. of .
...::.: ..:...... ._........ /04/01 .:. .
PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
Hobbs Group, LLC ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
10420 Little Patuxent Part HOLDER. THIS CERTIFICATE DOES NOT 'AMEND, EXTEND OR
Parkway ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
Suite 550
COMPANIES AFFORDING COVERAGE
Columbia,. MD 21044 -3559 COMPANY
AZurich American
INSURED
UNDERGROUND SPECIALTIES - COMPANY
BAmerican International Cos.
ARGUSS COMMUNICATIONS GROUP
•
13024A BEVERLY PARK ROAD COMPANY
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MUKILTEO, WA 98275
COMPANY
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: COVERAGES '::...:is:<:<: : : ::> `.:::. ... ;; •: ;.: i: :.:`i ;;::;: :::i: ::::; :: : » > ............................... ..:.. .. ..
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED, NOTWITHSTANDING ANY. REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. • POLICY EFFECTIVE POUCY
L T R EXPIRATION TYPE OF INSURANCE POLICY NUMBER LIMITS
DATE (MM/DDlYY) DATE (MM /DD/YY)
A GENERALUABIUTY ; GL0349552600 11 /01 /00 11 /01 /01 I GENERAL AGGREGATE I s2,000,000
X COMMERCIAL GENERAL LIABILITY I PRODUCTS - COMP/OP AGG s2 , 0 0 0, 0 0 0
I CLAIMS MADE I X! OCCUR I PERSONAL 8 ADV INJURY I $1 , 0 0 0, 0 0 0
OWNER'S 8 CONTRACTOR'S PROT i EACH OCCURRENCE i $1 , 0 0 0, 0 0 0
FIRE DAMAGE (Any one fire) ISl O 0 , 0 0 0
1 I I ■ MED EXP (Any one person) ;$5,000
A I AUTOMOBILE TAP349552800 - TX 11/01/00 11 /01 /01 '
A ANY AUTO ' BAP349552700 -ALL 11 /01 /00 11 /01 /01 ; COMBINED SINGLE LIMIT I$1, QQQ QQQ
AU
ALL OWNED AUTOS OTHER STATES i BODILY INJURY
SCHEDULED AUTOS ; (Per person) $
HIRED AUTOS $1,000 DED COMP
NON -OWNED AUTOS $1,000 DED COLL I I ( a L a `)RY IS
j PROPERTY DAMAGE I s
GARAGE UABIUTY I AUTO ONLY-EA ACCIDENT 15
I ANY AUTO I OTHER THAN ALTO ONLY: (
I _ __ EACH ACCIDENT IS
7 AGGREGATE Is
B i EXCESS UABIUTY : BE7393536 ' i1/01 /00 11 /01 /01 I EACH OCCURRENCE I $10,000,000
X UMBRELLA FORM I AGGREGATE $10,000,000
I OTHER THAN UMBRELLA FORM I I $
A WORKERS COMPENSATION AND ' WC3 4 9 5 5 2 5 - OREGON 11/01/00 11 01 01 ! X sTATUTORY LIMITS
EMPLOYERS' LIABILITY / / :.:: ; <>
:::!'r; ;;
:.;'::E:E r:'
A WC3495524 - ALL 11 /01 /00 11 /O1 /01 ,E CHACCIDENT $1, 000,000
THE PROPRIETOR! X I INCL ' OTHER STATES
PARTNERS /EXECUTIVE 1 DISEASE POLICY LIMIT $1, O O O, O O O
OFFICERS ARE: I EXCL DISEASE -EACH EMPLOYEE $1 , 000,000
A OTHER ALL RISK IM3184733 11/01/00 11 /01 /01I6.9MM BLANKET
PROPERTY I 1
1
IESCRIPTION OF OPERATIONS /LOCATIONSNEHICLESISPECIAL ITEMS 'k t \
CHE CERTIFICATE HOLDER IS NAMED AS ADDITIONAL INSURED. ,/4/1/. , c •
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.ERTIFICATE HOLDER: :
CANCELLATION ::::: >::; i:.. >::::::: 4 ::;::' ;;; ; ::: : >.;
SHOULD ANY OF THE ABOVE DESCRIBED POUCIES BE CANCEYD BEFORE THE
CITY OF YAK I MA EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL
ATTN: K. WENDALL ADAMS . 1 () DAYS WRITTEN NOTICE TO THE CERTIRCATE HOLDER NAMED TO THE LEFT.
129 N. 2ND STREET BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBUGATION OR IJABIUTY
Yakima, WA 98901 OF ANY KIND UPON THE COMPANY, AGENTS R EP SENTATIVES.
' AUTHORIZED REPRESENTATIVE
•
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