HomeMy WebLinkAbout2011-011 Telecommunications System Non-Exclusive Franchise with ATI and ELI; Integra Telecom Holdings, Inc.ORDINANCE NO. 2011 -11
AN ORDINANCE granting a non - exclusive franchise to Advanced TelCom, Inc. and
Electric Lightwave, LLC ( "ATI/ELI "), wholly -owned subsidiaries of
Integra Telecom Holdings, Inc., 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
Advanced TelCom, Inc. and Electric Lightwave, LLC, wholly -owned subsidiaries of Integra
Telecom Holdings, 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 ATI/ELI utilizing the Telecommunications System.
1.5 "Days" shall mean calendar days.
1.6 "Facility(ies)" means all wires, lines, cables, conduits, equipment and
supporting structures, and /or any other tangible component of ATI/ELI's
Telecommunications' System, located in the City's rights -of -way, utilized by ATI/ELI in the
operation of activities authorized by this Franchise. The abandonment by ATI /ELI 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 ATI /ELI 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 ATI /ELI shall extend its services.
1.10 "Grantee" shall refer to, as incorporated or used herein, Advanced TelCom,
Inc. and Electric Lightwave, LLC, wholly -owned subsidiaries of Integra Telecom Holdings,
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 ATI /ELI or any affiliate
of ATI /ELI or any other person who would constitute an operator of ATI /ELI'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 " Permtttee" means any person who has been granted a permit by the
assigned permitting authority.
1A4 "Permitting Authority" means the head of the City division or department
authorized to process and grant permits required to perform work in the City's rights -of -way,
or the head of any agency authorized to perform this function on the City's behalf. Unless
otherwise indicated, all references to the Permitting Authority shall include the designee of
the department, division or agency head.
1.15 "Person" means any individual, sole proprietorship, corporation, partnership,
association, joint venture or other form of organization of any kind and the lawful trustee,
successor, assignee, transferee or personal representative thereof.
1.16 "Penalties" means any and all monetary penalties provided for in this
Franchise.
1.17 "Right -of -Way" or "Rights -of -Way" shall mean the surface of and the space
above and below any public street, road, highway, freeway, easement, lane, path, alley,
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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.
1.20 - "Telecommunications System" means all wires, cables, ducts, conduits,
vaults, poles and other necessary Facilities owned or used by ATI /ELI 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" or "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.
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SECTION 2 - FRANCHISE
2.1 Grant of Franchise. The City hereby grants to Advanced TelCom, Inc. and
Electric Lightwave, LLC, wholly -owned subsidiaries of Integra Telecom Holdings, Inc., a non-
exclusive franchise which authorizes ATUELI, subject to the terms of the Franchise
Ordinance, to construct a Telecommunications System and offer Telecommunications
Services in, along, among, upon, across, above, over, under, or in any matter connected
with, the rights -of -way located in the City and for that purpose to erect, install, construct,
repair, replace, reconstruct, maintain or retain in, on, over, under, upon, across or along any
rights -of -way or extensions thereof and additions thereto, such poles, wires, cables,
conductors, ducts, conduits, vaults, utility access covers, pedestals, amplifiers, appliances,
attachments and other related property or equipment as may be necessary or appurtenant to
the Telecommunications System. Said franchise shall constitute both a right and an
obligation to provide the services of a Telecommunications System as required by the
provisions of this Ordinance.
2.2 Franchise Term. The term of this Franchise shall be ten (10) years from the
effective date unless 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 ATUELI. The grant of any additional franchise shall not of itself be
deemed to constitute a modification, revocation or termination of rights previously granted to
ATUELI. Any franchise granted pursuant to this Franchise shall confer and impose
substantially similar rights and obligations. In establishing the rights and obligations
pursuant to a franchise, consideration shall be given to the services to be provided, the area
to be served, the commitments made by the applicant to the City, the regulatory authority of
the City and the investment proposed by such applicant. In no event will the City impose
discriminatory rights or obligations on any franchise applicant.
2.4 Authority Granted.
A. Subject to local, state and federal law, this Franchise grants the
authority, right and privilege to ATUELI 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. ATUELI'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 ATUELI's right to construct, erect, install or modify its
Telecommunications System is specifically subject to the requirement that ATUELI obtain
permits as set forth in this Franchise.
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C. ATUELI 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 ATUELI 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 ATUELI, 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 ATUELI shall be subject to the exercise thereof by the City at any time.
D. ATUELI 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 ATUELI 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 ATUELI 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 ATUELI 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, ATUELI's use is also subject to conditions now or
hereafter recognized by the City as generally applicable to telecommunications or
underground conduit utilities.
2.5 Limits on Permission.
A. As used in Section 2.4, E, "Telecommunications Services" means
local, intrastate and interstate message transmission 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. ATUELI stipulates that this Franchise
extends no such rights or privileges.
B. Permission does not extend to areas outside those listed in Section
2.4, E of this Franchise, or otherwise to any area outside the authority of the City to extend
franchised -use permission, such as buildings or private areas not reserved for utilities.
ATUELI 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, ATUELI shall make
specific arrangements directly with the municipal department or division controlling such
building or other structure.
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D. Permission granted by this Franchise is non - exclusive. ATUELI
stipulates the City may grant similar permission to others.
E. ATUELI 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, ATUELI 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 ATUELI any fee title property rights in
or on any public or private property to which ATUELI 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 may, at three -year intervals, conduct a comprehensive, public
review of this Franchise: 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 purpose of such reviews shall be to accurately and
completely evaluate compliance by ATUELI with this Franchise and to identify any violations
by ATUELI of any provision(s) of this Franchise. Both the City and ATUELI 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 ATUELI to make available
records, documents and other information necessary for the effective completion of such
reviews and may inquire in particular whether ATUELI is supplying a level and variety of
services equivalent to those proposed by ATUELI 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 ATUELI 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 ATUELI from engaging in a continuous review of the performance of ATUELI. The City
may also, at any time, conduct a public hearing on any issue related to compliance by
ATUELI with this Franchise or any permit related thereto.
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.
Franchise.
B. Nothing in this Franchise shall be construed to require renewal of this
2.9 Renegotiation. In the event that any provision of this Franchise becomes
invalid or unenforceable and the City or ATI/ELI 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 ATI/ELI's functions, the City and ATI /ELI 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 ATI /ELI of an offer to renegotiate.
2.10 Revocation.
A. In addition to any rights set out elsewhere in this Franchise, the City
reserves the right to declare a forfeiture or otherwise revoke this Franchise and all rights and
privileges pertaining thereto in the event that:
(1) The City determines ATI /ELI 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) ATI /ELI 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) ATI /ELI becomes insolvent, unable or unwilling to pay its debts as they
become due, or is adjudged a bankrupt; or
(4) ATI /ELI fails, refuses, neglects or is otherwise unable to obtain and /or
maintain any permit required by any federal or state regulatory body regarding
ATI /ELI'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 ATI/ELI's payment
of any fees or taxes due the City under this Franchise;
(2) Any failure by ATI /ELI 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 ATI /ELI to maintain the liability insurance required under
this Franchise;
(4) Any failure by ATI /ELI to maintain and provide the City a copy of a
Performance Bond as required under this Franchise;
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(5) Any failure by ATI /ELI 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 ATI /ELI of the occurrence and the proposed forfeiture and an
opportunity for ATI /ELI to be heard, the City may, by ordinance or other appropriate
document, declare a forfeiture. In a hearing of ATI /ELI, ATI /ELI shall be afforded due
process rights as if the hearing were a contested case hearing subject to Washington law,
including the right to cross - examine witnesses and to require that all testimony be on the
record. Findings from the hearing shall be written and shall stipulate the reasons for the
City's decision. If a forfeiture is lawfully declared, all rights of ATI /ELI 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 ATI /ELI, 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, 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 ATI /ELI, either by act of ATI /ELI or operation of law, without the
prior consent of the City, expressed in writing. The granting of such prior consent in one
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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.
B. Upon any transfer as heretofore described, ATI /ELI 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 ATI /ELI.
C. Every such transfer as heretofore described, whether voluntary or
involuntary, shall be deemed void and of no effect unless ATI /ELI 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 ATI / ELI'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 ATI /ELT'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 No Stock to be Issued. ATI /ELI 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. ATI /ELI 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
ATI /ELI, any payment or award on account of this Franchise or permission or its value.
ATI /ELI 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 ATI / ELI's franchised activities. The City shall have no obligation to
make any payment to ATI /ELI or award in condemnation for any other asset or interest of
ATI /ELI, except as required under the State of Washington Constitution and the United
States Constitution or as state or federal laws may preemptively require.
2.15 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.
2.16 Survival of Terms. Sections 4.9, 6, and 9 of this Franchise shall continue in
effect as to ATI /ELI notwithstanding any expiration, forfeiture or revocation of this Franchise.
SECTION 3 - ENFORCEMENT AND ADMINISTRATION BY THE CITY
3.1 City Jurisdiction and Supervision. The City, through its Community
Relations 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
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manager of the Community Relations Division (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 ATI /ELI.
3.2 Grantee to Have No Recourse. Subject to state and federal law, AT[/ELI
shall have no recourse and be awarded no monetary recovery whatsoever other than non -
monetary declaratory or injunctive relief against the City for any loss, cost, expense or
damage 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. ATI /ELI 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
ATI /ELI 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
(4) The matters contained in ATI /ELT'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.
ATI /ELI stipulates and agrees that this Franchise is subject to any lawful provisions
contained within the City Charter of the City of Yakima. ATI /ELI understands the Charter's
provisions are incorporated herein, where applicable. ATI /ELI 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 public rights -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. ATI /ELI may, subject to terms of this Franchise, erect, install,
construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and along
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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
ATI / ELI's provision of Telecommunications Services shall, regardless of who performs
installation, construction, alteration and /or maintenance, be and remain the responsibility of
ATI /ELI.
4.2 Construction or Alteration.
4.2.1 Permits. ATI /ELI 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. ATI /ELI 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. ATI /ELI shall pay all applicable fees due for any such permits.
4.2.2 Schedule and Maps.
A. Prior to beginning installation, construction, alteration or maintenance
of the Telecommunications System, ATI /ELI 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. ATI /ELI 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, ATI /ELI 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. ATI /ELI shall provide a map to the City's Community Relations
Division, or its successor, showing the location of ATI /ELT'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. ATI /ELI 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 ATI / ELI's Telecommunications System, such
as, but not limited to, trenching, paving, compaction and locations, AT[/ELI 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.
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B. ATI/ELI 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. ATI /ELI 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 ATI /ELI and other utility purveyors or authorized users of City streets or
rights -of -way, will develop and follow the City's determination of a consensus for guidelines
and procedures for determining specific utility locations, subject additionally to this
Franchise.
4.3.2 Limited Access. The City reserves the right to limit or. exclude
ATI /ELI's access to a specific route, right -of -way or other location when there is inadequate
space, a pavement cutting moratorium, potential for unnecessary damage to public property,
public expense, inconvenience, interference with City utilities, or for any other reason
determined by the City.
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 rights -of -way shall be
used by ATI /ELI 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. ATI /ELI 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. ATI /ELI shall, where possible in the case of aboveground lines,
make use of existing poles and other facilities available to ATI /ELI. ATI /ELI 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, ATI /ELI 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;
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(4) ATI /ELI is unable to obtain pole clearance;
(5) Underground easements are obtained from developers of new
residential areas; or
(6) Utilities are overhead but residents prefer same to be located
underground (such undergrounding to be provided at residents' expense).
ATI /ELI 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
ATI /ELI's participation in municipally imposed undergrounding or related requirements as a
condition of ATI /ELI's installation or continued maintenance of overhead facilities authorized
under this Franchise. ATI /ELI hereby agrees to coordinate its underground installation and
planning activities with the City's underground plan and policies.
4.4 Coordination with Other Users. ATI /ELI 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 ATI /ELI 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 ATI /ELI 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, ATI /ELI 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 ATI /ELI'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
ATI /ELI to change the location of its Telecommunications System within City streets and
rights -of -way when the public convenience 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, ATI /ELI 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 ATI/ELI to remove or relocate its facilities located
within City streets or rights -of -way, the City will make a reasonable effort to provide ATI/ELI
with an alternate location for its facilities within City streets or rights -of -way.
C. The City shall provide ATI/ELI 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 ATI/ELI 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 ATI/ELI is using a facility which the requesting party
has a right or duty to remove, and the City has determined that such removal or relocation
serves the best interests of the City in the management of its rights -of -way, then ATI/ELI
shall remove or relocate its Telecommunications System Facilities at the requesting party's
sole expense. ATI /ELI may request payment in advance from such third party prior to any
preparation for any removal or relocation. The City shall not be liable for any such cost(s).
E. Any person requesting ATI /ELI to remove or relocate its facilities shall
give ATI/ELI no less than one hundred eighty (180) days advance written notice advising
ATI/ELI of the date or dates removal or relocation is to be undertaken.
F. If ATI /ELI fails, neglects or refuses to remove or relocate its facilities
as directed by the City, 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 ATI/ELI's failure, neglect or refusal thereof, shall be paid solely by ATI /ELI.
G. If ATI /ELI causes any damage to private property or public property in
the process of removing or relocating its facilities, ATI /ELI shall pay the owner of the
property for such damage.
H. ATI /ELI does hereby promise to protect and save harmless the City,
its officers, agents and employees from any customer or third party claims for service
interruption or other losses in connection with any removal or relocation of ATI/ELI's
Telecommunications System Facilities.
4.6 Movement of Buildings. ATI /ELI shall, upon request by any person holding
a building permit, franchise or other approval issued by the City, temporarily remove, raise or
lower its transmission or other wires appurtenant to the Telecommunications System to
permit the movement of buildings. The expense for such removal, raising or lowering shall
be paid by the person requesting the same and ATI /ELI 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 ATI /ELI for such temporary wire changes.
4.7 Tree Trimming. ATI /ELI, 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 ATI /ELI.
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4.8 Restoration.
A. Whenever ATI/ELI damages or disturbs any area in or near City
streets, rights -of -way, paved area or public improvement, ATI/ELI 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 to the satisfaction of the City.
B. Whenever any opening is made by ATI/ELI in a hard surface
pavement in any City street or rights -of -way, ATI/ELI 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 ATI/ELI until such time as the area is
resurfaced or reconstructed.
D. The City hereby reserves the right, after providing reasonable notice to
ATI/ELI, to remove and /or repair any work done by ATI/ELI which, in the determination of the
City, is inadequate. The cost thereof, including the cost of inspection and supervision, shall
be paid solely by ATI/ELI.
E. Should ATI/ELI fail, neglect, refuse or delay in performing any
obligation here or elsewhere stated, or where the City deems necessary to protect public
rights -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 ATI/ELI's sole expense. Prior to undertaking
corrective effort, the City shall make a reasonable effort to notify ATI /ELI, 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 ATI /ELI damages or disturbs any area in or near City
streets, rights -of -way, paved area or public improvement, ATI /ELI stipulates that the City
may, without limitation:
(1) Require ATI /ELI to repave an entire lane or greater affected area
within any cut or disturbed location; and /or
(2) Require ATI /ELI 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.
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 ATI /ELI causes any damage to private property in the process of
restoring facilities, ATI /ELI shall pay the owner of the property for such damage.
I. All of ATI/ELI's work under this Section shall be done in strict
compliance with all applicable rules, regulations and ordinances of the City.
J. ATI /ELI shall perform all restoration work promptly.
M
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
ATI /ELI to remove, at ATI /ELI'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
ATI /ELI fails to do so, the City may perform the work or cause such work to be performed
and collect the cost thereof from ATI /ELI. The actual cost thereof, including direct and
indirect administrative costs, shall be a lien upon all plant and property of ATI /ELI effective
upon filing of the lien with the Yakima County Auditor.
B. Any order by the City Council to remove any of ATI /ELI's
Telecommunications System Facilities shall be mailed to ATI /ELI not later than thirty (30)
calendar days following the date of expiration of this Franchise. ATI /ELI 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. ATI /ELI 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. ATI /ELI may voluntarily remove
any underground Facilities from City streets and rights -of -way which have been installed in
such a manner that they can be removed without trenching or other opening of City streets
and rights -of -way along the extension of the Facilities to be removed.
D. Subject to applicable law, ATI /ELI 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, ATI /ELI shall notify the City of the need for such
repairs. ATI /ELI 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 ATI /ELI
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 ATI /ELI, 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 ATI /ELI. In addition, the City
may require ATI /EL.I to furnish certification from a qualified independent engineer that
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ATI /ELT's Facilities are constructed in accordance with good engineering practice and are
reasonably protected from damage and injury.
4.12 After - Acquired Facilities. ATI /ELI 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 ATI /ELI or upon addition or
annexation to the City of any area in which AT[/ELI 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. 'ATI/ELI hereby promises to maintain and supply to the City, at
ATI / ELI's sole expense, any information requested by the City to coordinate municipal
functions with ATI /ELT's activities within City streets and rights -of -way. AT[/ELI 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. ATI /ELI shall keep the City informed of its long -range
plans so as to allow coordination with the City's long -range plans.
SECTION 5 - SYSTEM DESIGN AND STANDARDS
5.1 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 ATI /ELI 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. .
5.2 General Minimum Standards. ATI /ELI shall, throughout the term of this
Franchise, at a minimum, make available to all customers all signals and /or services that are
required to be made available as federal, state or local law provides.
5.3 Performance Testing. ATI /ELI 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.
SECTION 6 - COMPENSATION AND FINANCIAL PROVISIONS
6.1 Taxes and Fees.
6.1.1 City Occupation Tax on Utilities.
A. ATI /ELI and the City understand and agree that RCW 35.21.860, as of
the effective date of this Franchise, prohibits a municipal franchise fee for permission to use
the right -of -way for telephone business purposes. ATI /ELI agrees if this prohibition is
17
removed or in the event ATI /ELI should add or modify the services it offers so that the
prohibition against franchise fees did not apply, the City may assess a reasonable franchise
fee. ATI /ELI and the City agree a reasonable amount would be no less than five percent
(5 %) of ATI /ELI's gross receipts from its business activities within the City.
B. ATI /ELI and the City further understand and agree that RCW
35.21.870, as of the effective date of this Franchise, limits the rate of City tax upon
telephone business activities as defined in Yakima Municipal Code ( "YMC ") Section 5.50.050
to six percent (6 %) of gross receipts, unless a higher rate is approved by a vote of the
people. However, ATI /ELI and the City agree that nothing in this Franchise shall limit the
City's power of taxation, as may now or hereafter exist.
C. ATI /ELI 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, ATI /ELI
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.
6.1.2 Other Fees.
A. - ATI /ELI 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, as well as expenses of retaining independent technical, legal, financial
or other consultants or advisors. 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 43.21 C.
B. Upon request of ATI /ELI, the City will submit proof of any charges or
expenses incurred as defined in Section 6.1.2, A of this Franchise. Said charges or
expenses shall be paid by ATI /ELI no later than thirty (30) days after ATI /ELI's receipt of the
City's billing thereof.
C. ATI /ELI 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.
6.2 Payments.
A. ATI /ELI 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 ATI /ELI 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
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each payment, ATI/ELI shall file with the City a written statement signed by the
Telecommunication System manager of ATI/ELI which identifies in detail the sources and
amounts of gross revenues earned by ATI/ELI during the month for which payment is made,
in accordance with Section 8.1 of this Franchise. No acceptance of any payment by the City
shall be construed as an accord that the amount paid is, in fact, the correct amount, nor shall
such acceptance of payment be construed as a release of any claim which the City may
have for further or additional sums payable under the provisions of this Franchise.
C. Neither current nor previously paid utility taxes may be subtracted from
the gross revenue amount upon which utility tax payments are calculated and due for any
period. Nor shall any license fee(s) paid by ATI /ELI 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.
6.3 ' Financial Records.
A. ATI /ELI 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 reasonable notice, all books,
records, maps, plans, financial statements, service complaint logs, performance test results,
records required to be kept by ATI /ELI and /or any parent company of ATI /ELI pursuant to
the rules and regulations of the FCC, WUTC and other regulatory agencies, and other like
materials ATI /ELI and /or any parent company of ATI /ELI which directly relate to the
operation of this Franchise.
B. Access to the aforementioned records referenced in Section 6.3 A
shall not be denied by ATI /ELI 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 ATI /ELI and /or any
parent company of ATI /ELI.
C. ATI /ELI 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 it rights under this Franchise, which it deems reasonably necessary for the
enforcement and administration of this Franchise.
6.4 Auditing.
A. The City or its authorized agent may at any time conduct an
independent audit of the revenues of ATI /ELI in order to verify the accuracy of utility tax
payments made to the City. ATI /ELI and each parent company of ATI /ELI shall cooperate
fully in the conduct of such audit. In case of audit, the City director of budget and finance
may require ATI /ELI to furnish a verified statement of compliance with ATI/ELI's obligations
19
or in response to any questions. Said certificate may be required from an independent
certified public accountant at ATI/ELI's sole expense. All audits will take place on ATI/ELI's
premises or at offices furnished by ATI /ELI, which shall be a location within the City of
Yakima. ATI /ELI 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 ATI/ELI's facilities or
business operations in the State of Washington.
B. In the event it is determined, as a result of an audit conducted by the
City or its authorized agent, that ATI /ELI has underpaid City utility taxes by five percent (5 %)
or more than was due the City for any given period, then ATI /ELI 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.,
6.5 Insurance.
6.5.1 Coverages. ATI /ELI shall maintain, throughout the term of this
Franchise, liability insurance insuring ATI /ELI, its officers, employees and
agents, with regard to all claims and damages specified in Section 6.5 herein,
in the minimum amounts as follows:
(1) Commercial Liability Insurance.
On or before the date this Franchise is fully executed by the parties, ATI /ELI
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 per occurrence and Two Million Dollars
($2,000,000) in the aggregate. This coverage will have 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 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.
Said policy shall be in effect for the duration of this Franchise. The policy shall name
the City, its elected officials, officers, agents and employees as additional insureds.
The insurance shall be with an insurance company or companies rated A -VII or
higher in Best's Guide and authorized to conduct business in the State of
Washington. If ATI /ELI 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) Business Automobile Liability Insurance.
On or before the date this Franchise is fully executed by the parties, ATI /ELI
shall.provide the City with a certificate of insurance as proof of business automobile
liability insurance with a minimum liability limit of One Million Dollars ($1,000,000)
combined single limit bodily injury and property damage. Said certificate of insurance
shall clearly state who the provider is, the amount of coverage, the policy number and
when the policy and provisions provided are in effect 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. Said policy shall be in effect for the duration
of this Franchise. The policy shall name the City, its elected officials, officers, agents
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and employees as additional insureds. The insurance shall be with an insurance
company or companies rated A -VII or higher in Best's Guide and authorized to
conduct business in the State of Washington. If ATI /ELI 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
"Business Automobile Liability Insurance."
(3) Umbrella Liability Insurance.
ATI /ELI 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, ATI /ELI shall provide the City with a certificate of insurance as proof of
umbrella coverage with a minimum liability limit of Five Million Dollars ($5,000,000).
The insurance shall be with an insurance company or companies rated A -VII or
higher in Best's Guide and authorized to conduct business in the State of
Washington.
Providing coverage in the amounts as set forth above shall not be construed to relieve
ATI /ELI from liability in excess of those limits.
6.5.2 Proof of Insurance. ATI /ELI 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. ATI /ELI shall file a certificate of
insurance along with written evidence of payment of the required premiums with the
manager of the City Community Relations Division or his or her designee.
6.5.3 Alteration of Insurance. Insurance coverages, as required by this
Franchise, shall not be changed, cancelled or otherwise altered without approval of the City.
ATI /ELI 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, ATI /ELI and ATI/ELI's officers, agents and employees, the City may require
additional insurance to be acquired by ATI /ELI. Should the City exercise its right to require
additional insurance, the City will provide ATI /ELI with no less than thirty (30) days prior
written notice.
6.5.4 Failure to . Procure. ATI /ELI acknowledges and agrees,' by
acceptance of this Franchise, that failure to procure and maintain the insurance coverages
as detailed in Section 6.5.1 of this Franchise shall constitute a material breach of this
Franchise, as provided for in Section 2.10, B, 3) of this Franchise. In the event of such
failure to procure the City may immediately suspend ATI/ELI'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 ATI /ELI
for all premiums in connection therewith.
6.6 Performance Bond. Prior to the effective date of this Franchise, ATI /ELI
shall furnish to the City proof of the posting of a performance bond running to the City, with
surety rated A -VII or higher in Best' Guide in the penal sum of Fifty Thousand Dollars
($50,000), conditioned that ATI /ELI shall well and truly observe, fulfill and perform each term
and condition of this Franchise. ATI /ELI shall pay all premiums charged for said bond. Said
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bond shall be effective to continue obligation for the term of this Franchise, including any
extensions, and thereafter until ATI /ELI or any successor or assign of ATI /ELI has liquidated
all of its obligations with the City that may have arisen from the acceptance of this Franchise
by ATI /ELI 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. ATI /ELI shall provide
said bond to the City and said bond shall be kept on file at the City Community Relations
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 ATI /ELI or to limit liability of ATI /ELI under this Franchise either to the full amount of the
performance bond or otherwise, except as otherwise provided herein.
6.7 Waiver, Indemnity, No Estoppel, No Duty.
A. ATI /ELI hereby waives all claims, direct or indirect, for loss or liability
against the City arising out of ATI / ELI's franchised or permitted operations.
B. ATI /ELI 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 ATI /ELI, 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 ATI / ELI'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 ATI /ELT'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 ATI /ELI and its business. Nothing herein shall be deemed to prevent the
parties indemnified and held harmless herein from participating in the defense of any
litigation by their own counsel at such parties' expense. Such participation shall not under
any circumstances relieve ATI /ELI from its duty of defense against liability or of paying any
judgment entered against such party.
C. ATI /ELI hereby waives immunity under Title 51 RCW and affirms that
the City and ATI /ELI have specifically negotiated this provision, as required by RCW
4.24.115, to the extent that it may apply.
D. 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 ATI /ELI, not only as to the amount of such damage, but as to its liability, provided
ATI /ELI has reasonable notice or actually knew, or should have known, of the pendency of
such suit. Under such circumstances, ATI /ELI may also request the opportunity to defend or
22
participate in the suit with legal counsel of its choice, at its expense, said request not to be
unreasonably denied.
E. 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 ATI /ELI, 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.
F. 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 7 — REPORTING REQUIREMENTS
All reports required under Section 7'of this Franchise may be requested by the City to be
provided by ATI /ELI in hard copy and /or electronic format compatible with City databases,
including, but not limited to, the GIS system.
7.1 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,
ATI /ELI shall submit to the City a completed form reporting any and all revenues and
customer counts by categories for the previous month. Said reports shall be verified by an
officer or other authorized representative of ATI /ELI. Said reports shall contain an accurate
statement in summarized form, as well as in detail, of ATI /ELI'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.
7.2 Additional Reports. ATI /ELI 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 such regulatory authority.
7.3 Preservation of Confidential Information. The City shall protect
information provided to the City by ATI /ELI designated as confidential or proprietary by
ATI /ELI, 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 8 — REMEDIES AND PROCEDURE FOR REMEDYING
FRANCHISE VIOLATIONS
8.1 Remedies for Franchise Violations.
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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 ATUELI
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 6.6 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, ATUELI 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 ATUELI has a history of previous violations of the same or similar kind and
such other considerations as are appropriate under the circumstances.
8.2 Procedure for Remedying Franchise Violations.
8.2.1 Notice of Violation. In the event the City determines ATUELI has not
complied with any term or condition of this Franchise, the City shall notify ATUELI of the
exact nature of the alleged noncompliance. .
8.2.2 ATUELI's Right to Cure or Respond. ATUELI 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.
8.2.3 Public Hearing. In the event ATUELI fails to respond to a notice, as
described herein, or in the event ATUELI 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 ATUELI twenty (20) calendar days notice
of the time and place of such hearing and provide ATUELI an opportunity to be heard at such
hearing.
AM
8.3 Enforcement. In the event the City, after such hearing as described in
subsection 8.2.3 of this Franchise has been conducted, upholds its determination that
ATI /ELI has violated or defaulted on any provision of this Franchise, the City may impose
any of the remedies set out in Section 8.1, A of this Franchise.
8.4 Failure to Enforce. ATI /ELI 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 ATI/ELI's conduct.
8.5 Acts of Nature. ATI /ELI 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, ATI /ELI
shall take all reasonable steps necessary to provide service despite such occurrences.
8.6 Alternative Remedies. Nothing in this Franchise shall be deemed to bar the
right of the City 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
ATI /ELI, or .to seek and obtain judicial enforcement of ATI /ELI's obligations under this
Franchise by means of specific performance, injunctive relief or mandate, or any other
judicial remedy at law or in equity.
SECTION 9 — MISCELLANEOUS PROVISIONS
9.1 Posting and Publication. ATI /ELI 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 ATI /ELI's filing of acceptance of this Franchise.
9.2 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, Community Relations Manager
City of Yakima Community Relations Division
124 South 2nd Street
Yakima, WA 98901
Facsimile Number: (509) 576 -6380
Notices to ATI /ELI shall be addressed to the following:
25
Integra Telecom Holdings, Inc.
1201 NE Lloyd Blvd., Ste 500 .
Portland, Oregon 97232
Attn: Department of Law & Policy
With a copy to:
Integra Telecom Holdings, Inc.
1201 NE Lloyd Blvd., Ste 500
Portland, Oregon 97232
Attn: Manager, Outside Plant and Engineering
9.3 Compliance with Laws. ATI/ELI shall comply with all federal and state laws
and regulations, including regulations of any administrative agency thereof, as well as the
lawful 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
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.
9.4 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. In case of conflict or ambiguity between this document and ATI/ELI's
Request, this document shall be controlling. In any action or suit to enforce any right or
remedy under this Franchise, the prevailing party shall be entitled to recover its cost,
including without limitation attorney's fees.
9.5 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 ATI/ELI 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 ATI/ELI 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.
9.6 Guarantee of Performance. ATI/ELI 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 ten (10) year franchise. Performance pursuant to the terms and conditions of this
Franchise is guaranteed by ATI /ELI.
9.7 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,
26
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 ATI/ELI is wholly or partially unable to carry out its obligations under
this Franchise as a result of a Force Majeure, ATI/ELI shall provide the City prompt notice of
such Force Majeure, describing the same in reasonable detail, and ATI/ELI'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. ATI/ELI agrees to use its best
efforts to remedy as soon as possible, under the circumstances, ATI/ELI's inability, by
reason of Force Majeure, to carry out its responsibilities and duties under this Franchise.
9.8 City Right of Intervention. If the City otherwise has the right to intervene,
ATI/ELI expressly acknowledges and agrees, by acceptance of this Franchise, not to oppose
such intervention by the City in any suit or proceeding to which ATI /ELI is a party related to
this Franchise.
9.9. Consent. Wherever the consent or approval of either ATI /ELI or the City is
specifically required in this Franchise, such consent or approval shall not be unreasonably
withheld.
9.10 No Third Party Beneficiaries. There shall be no third party beneficiaries of
this Franchise.
9.11 Franchise Ordinance Acceptance. ATI /ELI 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 ATI /ELI
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, ATI /ELI 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 ATI /ELI and the City and that ATI /ELI 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 6.6 of this Franchise and evidence of insurance as required
in Sections 6.5.1 and 6.5.2 of this Franchise. In the event ATI /ELI 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.
9.12 Previous Rights Abandoned. This Franchise supersedes any and all other
rights, privileges, powers, immunities and authorities owned, possessed, controlled or
exercisable by ATI /ELI pursuant to any previous franchise in the City.
9.13 Effective Date. This Franchise and the Franchise Ordinance shall be
effective thirty (30) days after its adoption; PROVIDED, however, that if ATI /ELI does not
accept this Franchise pursuant to Section 9.11 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.
27
PASSED BY THE CITY COUNCIL, signed and approved this 1St day of March, 2011.
CITY OF YAKIMA
Micah Cawley, May
ATTEST:
City Clerk
Publication Date: March 4, 2011
Effective Date: April 3, 2011
r- Ranch use
City Gen#ad No: F 1\ o01
Ordinance No: 2011 -11
State of Urmn n. )
)ss. M (.- 1��
County of
ADVANCED TELCOM, INC.
ELECTRIC LIGHTWAVE, LLC
By:
Its: eud f? C. IVa.JC,-P
M, I ereby certify that I know or have satisfactory evidence that
is the person who appeared before
me, and said per acknowledged that he /she signed this instrument, and on oath stated
that he /she was authorized to execute the instrument on behalf of Advanced TelCom, Inc.
and_ El g1ric Li htwave, LLC., and acknowledged it as the
5y y ak- %iVICt V1 of Advanced TelCom, Inc. and Electric Lightwave,
LLC., to be the free and voluntary act of such party for the uses and purposes mentioned in
this instrument.
Dated this 1� day of 1
OFFICIAL SEAL
JENNIFER JOHNSON
NOTARY PUBLIC - OREGON
COMMISSION NO. 431984
MY COMMISSION EXPIRES AUGUST 27, 2012
, 2011.
9Print Names! Jem)4 ►J�br='►
OTARY PUBLIC in and for the State of
'w-eo-Alo in residing at
My commission expires:
PA
•
•
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. '* I?—
For Meeting Of March 1, 2011
ITEM TITLE: An ordinance granting a non - exclusive franchise to Advanced Te1Com, Inc. and
Electric Lightwave, LLC ( "ATFELI "), wholly -owned subsidiaries of Integra Telecom Holdings,
Inc., which authorizes ATFELI to occupy City of Yakima rights -of -way in order to constrict,
operate, and maintain a telecommunications system.
SUBMITTED BY: Randy Beehler, Community Relations Manager
CONTACT PERSON /TELEPHONE: Randy Beehler, Community Relations Manager,
575 -6092
SUMMARY EXPLANATION: Both ATI and ELI have owned and operated
telecommunications systems in Yakima for several years under separate franchises granted by
the City. ATI and ELI are now both owned by a single entity; Integra Telecom Holdings, Inc.
Both the ATI and ELI franchises have recently expired. Integra preferred, and the City agreed,
to combine rights -of -way occupation authority for ATI and ELI into a single franchise. The
attached Telecommunications System Franchise Ordinance (the "Ordinance ") and the franchise
it grants allow ATI /ELI 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
tern of ten (10) years. The Ordinance provides, in Section 6.1.1.C, that ATFELI will pay the
City a tax equal to six percent (6 %) of the total gross income derived from ATI/ELI'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 riled 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 Mail to (name & address)
Phone:
Funding Source
APPROVAL FOR SUBMITTAL: City Manager
STAFF RECOMMENDATION: Pass ordinance
BOARD /COMMISSION RECOMMENDATION: N/A
COUNCIL ACTION: