HomeMy WebLinkAbout2012-056 Zayo Group, LLC Telecommunications FranchiseORDINANCE NO. 2012 -56
AN ORDINANCE granting a non - exclusive franchise to Zayo Group, LLC ( "Zayo ") 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 Zayo
Group, LLC, to operate and maintain a Telecommunications System in the City of Yakima,
Washington upon the following express terms and conditions:
SECTION 1 - DEFINITIONS
1.1 (A) Captions. Throughout this Franchise, captions to sections are intended
solely to facilitate reading and to reference the sections and provisions of this Franchise.
The captions shall not affect the meaning and interpretation of this Franchise.
1.1 (B) Definitions. For the purposes of this Franchise the following terms, phrases,
words and their derivations shall have the meaning given herein. When not inconsistent with
the context, words used in the present tense include the future, words in the plural number
include the singular number, words in the singular number include the plural number and the
use of any gender shall be applicable to all genders whenever the sense requires. The
words "shall" and "will" are mandatory and the word "may" is permissive. Where a term in
this Franchise is not defined in this Section and there exists a definition for the term in the
Telecommunications Act of 1996, Pub. Law No. 104 -104, 110 Stat. 56 (1996) (the
"Telecommunications Act "), the Telecommunications Act definition shall apply. Other terms
in this Franchise that are not defined in this Section shall be given their common or ordinary
meaning.
1.2 "City" shall mean City of Yakima, Washington, and all the incorporated
territory within as of the effective date of this Franchise and any other areas later added
thereto by annexation or other means.
1.3 "City Council" shall mean the City Council of the City of Yakima,
Washington.
1.4 "Customer" means any person(s) who legally receives any one or more of
the services provided by Zayo utilizing the Telecommunications System.
1.5 "Days" shall mean calendar days.
1.6 "Facility(ies)" means all wires, lines, cables, conduits, towers, antenna,
equipment and supporting structures, and /or any other tangible component of the Zayo
Telecommunications System, located in the City's rights -of -way, utilized by Zayo in the
operation of activities authorized by this Franchise. The abandonment by Zayo 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 Zayo 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 Zayo shall extend its services.
1.10 "Grantee" shall refer to, as incorporated or used herein, Zayo Group, LLC
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 Zayo or any affiliate of
Zayo or any other person who would constitute an operator of the Zayo 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. All such revenue remains
subject to applicable FCC rules and regulations which exclude revenues from internet access
services while permitted by law.
1.12 "Permittee" means any person who has been granted a permit by the
assigned permitting authority.
1.13 "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.
1.14 "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.
1.15 "Penalties" means. any and all monetary penalties provided for in this
Franchise.
1.16 "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.
1.17 "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.
1.18 "Telecommunications Services" shall mean the electronic transmission,
conveyance, or routing of voice, data, audio, video, or any other information or signals to a
point, or between and among points. Telecommunications Services include such
transmission, conveyance, or routing in which computer processing applications are used to
act on the form, code, or protocol of the content for purposes of transmission, conveyance, or
routing without regard to whether such service is referred to as voice over internet protocol
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services or is classified by the Federal Communications Commission as enhanced or value
added. Telecommunications Services do not include:
A. Data processing and information services that allow data to be
generated, acquired, stored, processed, or retrieved and delivered by an electronic
transmission to a purchaser where such purchaser's primary purpose for the underlying
transaction is the processed data or information;
premises;
B. Installation or maintenance of wiring or equipment on a customer's
C. Tangible personal property;
D. Advertising, including but not limited to directory advertising;
E. Billing and collection services provided to third parties;
F. Internet access service;
G. Radio and television audio and video programming services,
regardless of the medium, including the furnishing of transmission, conveyance, and routing
of such services by the programming service provider. Radio and television audio and video
programming services include but are not limited to cable service as defined in 47 U.S.C.
Sec. 522(6) and audio and video programming services delivered by commercial mobile
radio service providers, as defined in section 20.3, Title 47 C.F.R.;
H. Ancillary services;
I. Digital products delivered electronically, including but not limited to
music, video, reading materials, or ring tones; or
J. Software delivered electronically
1.19 "Telecommunications System" means all wires, cables, ducts, conduits,
vaults, poles and other necessary Facilities owned or used by Zayo 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.
1.20 "WUTC" shall mean the Washington Utilities and Transportation Commission.
1.21 "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.
SECTION 2 - FRANCHISE
2.1 Grant of Franchise. The City hereby grants to Zayo Group, LLC, a non-
exclusive franchise which authorizes Zayo, 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.
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 Zayo. The grant of any additional franchise shall not of itself be
deemed to constitute a modification, revocation or, termination of rights previously granted to
Zayo. 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 Zayo to operate and maintain a Telecommunications System
including the lines, equipment, conduit, antenna, towers, and other appurtenances and
facilities necessary for the provision of Telecommunications Services as defined herein, in,
upon, along, above, over and under the streets and rights -of -way in the City.
B. The right of Zayo 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 the right of Zayo to construct, erect, install or modify its
Telecommunications System is specifically subject to the requirement that Zayo obtain
permits as set forth in this Franchise.
C. Zayo 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 Zayo 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 Zayo, 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 Zayo shall be subject to the exercise thereof by the City.at any time.
D. Zayo 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 Zayo and which, if acquired prior to this
original franchise grant, would have been subject to this Franchise and the permitting
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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 Zayo 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 Zayo 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, such use by Zayo 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 such
services as those defined in Section 1.19 of this Franchise provided by Zayo 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. Zayo
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. Zayo
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, Zayo 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. Zayo stipulates
the City may grant similar permission to others.
E. Zayo 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, Zayo 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 Zayo any fee title property rights in or
on any public or private property, to which Zayo 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
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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 Zayo with this Franchise and to identify any violations by
Zayo of any provision(s) of this Franchise. Both the City and Zayo 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 Zayo to make available
records, documents and other' information necessary for the effective completion of such
reviews and may inquire in particular whether Zayo is supplying a level and variety of
services equivalent to those proposed by Zayo 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 Zayo requests for
Franchise renewal, Franchise extension or approval of transfer of ownership of the
Telecommunications System. The City may also, at any time, conduct a public hearing on
any issue related to alleged non - compliance by Zayo 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.
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 Zayo 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
the functions of Zayo, the City and Zayo 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 Zayo 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 Zayo 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
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(2) Zayo 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) Zayo becomes insolvent, unable or unwilling to pay its debts as they,
become due, or is adjudged a bankrupt; or
(4) Zayo fails, refuses, neglects or is otherwise unable to obtain and /or
maintain any permit required by any federal or state regulatory body
regarding construction, maintenance and operation of the Zayo
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 payment by Zayo
of any fees or taxes due the City under this Franchise;
(2) Any failure by Zayo 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 Zayo to maintain the liability insurance required under
this Franchise;
(4) Any failure by Zayo to maintain and provide the City a copy of a
Performance Bond as required under this Franchise;
(5) Any failure by Zayo 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 Zayo of the occurrence and the proposed forfeiture and an
opportunity for Zayo to be heard, the City may, by ordinance or other appropriate document,
declare a forfeiture. In a hearing of Zayo, Zayo 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 Zayo 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 Zayo, 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
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(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 Zayo, either by act of Zayo or operation of law, without the prior
consent of the City, which shall not be unreasonably withheld, and 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.
B. Upon any transfer as heretofore described, Zayo 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 Zayo.
C. Every such transfer as heretofore described, whether voluntary or
involuntary, shall be deemed void and of no effect unless Zayo 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 property owned by Zayo 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 successors or assigns of Zayo, 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 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.
2.15 Survival of Terms. Sections 4.9, 6, and 9 of this Franchise shall continue in
effect as to Zayo 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
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 Zayo.
3.2 Grantee to Have No Recourse. Subject to state and federal law, Zayo 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. Zayo 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
Zayo 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 the initial application by Zayo 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. Zayo
stipulates and agrees that this Franchise is subject to any lawful provisions contained within
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the City Charter of the City of Yakima. Zayo understands the Charter's provisions are
incorporated herein, where applicable. Zayo 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. Zayo 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
provision of Telecommunications Services by Zayo shall, regardless of who performs
installation, construction, alteration and /or maintenance, be and remain the responsibility of
Zayo.
4.2 Construction or Alteration.
4.2.1 Permits. Zayo 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. Zayo 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. Zayo 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, Zayo 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. Zayo 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, Zayo 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.
4.2.3 Good Engineering.
A. Zayo 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 the Zayo Telecommunications System, such
as, but not limited to, trenching, paving, compaction and locations, Zayo promises to comply
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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. Zayo 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. Zayo 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 Zayo 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 access
by Zayo 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 Zayo 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. Zayo 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. Zayo shall, where possible in the case of aboveground lines, make
use of existing poles and other facilities available to Zayo. Zayo 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, Zayo 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;
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(3) Statute, ordinance, policy or other regulation of the City requires
utilities to be placed underground;
(4) Zayo 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).
Zayo 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 Zayo to participate in
municipally imposed undergrounding or related requirements as a condition of the installation
or continued maintenance by Zayo of overhead facilities authorized under this Franchise.
Zayo hereby agrees to coordinate its underground installation and planning activities with the
City's underground plan and policies.
4.4 Coordination with Other Users. Zayo shall coordinate its activities with
other utilities and users of City streets and rights -of -way 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 Zayo 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 Zayo 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, Zayo 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 the planning,
design, installation, construction, alteration or maintenance of the Zayo 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
Zayo 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, towers, antenna, 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, Zayo shall, upon request, except as
otherwise hereinafter provided, at no expense to the City, remove or relocate as necessary
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its poles, wires, cables, underground conduits, vaults, pedestals, utility access covers and
any other facilities which it has installed.
B. If the City requires Zayo to remove or relocate its facilities located
within City streets or rights -of -way, the City will make a reasonable effort to provide Zayo with
an alternate location for its facilities within City streets or rights -of -way.
C. The City shall provide Zayo with the standard notice given under the
circumstances to other franchisees, licensees or permittees.
D. In an instance in which Zayo had paid the cost of relocation of its
facilities at the request of the City within the previous five (5) years, the share of the cost of
relocation of Zayo will be paid by the City if relocation of the same facilities is subsequently
requested by the City, except in an emergency as determined by the City.
E. 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 Zayo 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 Zayo 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 Zayo shall remove or
relocate its Telecommunications System Facilities at the requesting party's sole expense.
Zayo 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).
F. Any person requesting Zayo to remove or relocate its facilities shall
give Zayo no less than one hundred eighty (180) days advance written notice advising Zayo
of the date or dates removal or relocation is to be undertaken.
G. If Zayo 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 the
failure, neglect or refusal by Zayo thereof, shall be paid solely.by Zayo.
H. If Zayo causes any damage to private property or public property in the
process of removing or relocating its facilities, Zayo shall pay the owner of the property for
such damage.
I. Zayo 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
Telecommunications System Facilities.
4.6 Movement of Buildings. Zayo 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 Zayo shall be authorized to require such
payment in advance. The City shall require all building movers to provide not less than thirty
(30) business days notice to Zayo for such temporary wire changes.
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4.7 Tree Trimming. Zayo, 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 Zayo.
4.8 Restoration.
A. Whenever Zayo damages or disturbs any area in or near City streets,
rights -of -way, paved area or public improvement, Zayo 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 its prior condition to the satisfaction of the City.
B. Whenever any opening is made by Zayo in a hard surface pavement in
any City street or rights -of -way, Zayo 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 Zayo until such time as the area is
resurfaced or reconstructed.
D. The City hereby reserves the right, after providing reasonable notice to
Zayo, to remove and /or repair any work done by Zayo which, in the determination of the City,
is inadequate. The cost thereof, including the cost of inspection and supervision, shall be
paid solely by Zayo.
E. Should Zayo 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, after reasonable notice to Zayo, the
City may proceed to perform or cause to have performed such obligation, including any
remedial or preventative action deemed necessary, at the sole expense of Zayo. Prior to
undertaking corrective effort, the City shall make a reasonable effort to notify Zayo, 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 Zayo damages or disturbs any area in or near City streets,
rights -of -way, paved area or public improvement, Zayo stipulates that the City may, without
limitation:
(1) Require Zayo to repave an entire lane or greater affected area within
any cut or disturbed location if the integrity of such area has been
severely compromised by Zayo; and /or
(2) Require Zayo 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 work performed by Zayo under this Section shall be done in strict
compliance with all applicable rules, regulations and ordinances of the City.
H. Zayo shall perform all restoration work promptly.
4.9 City Right to Require Removal of Property.
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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
Zayo to remove, at the sole expense of Zayo, 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 Zayo
fails to do so, the City may perform the work or cause such work to be performed and collect
the cost thereof from Zayo. The actual cost thereof, including direct and indirect
administrative costs, shall be a lien upon all plant and property of Zayo effective upon filing of
the lien with the Yakima County Auditor.
B. Any order by the City Council to remove any of the Zayo
Telecommunications System Facilities shall be mailed to Zayo not later than thirty (30)
calendar days following the date of expiration of this Franchise. Zayo 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. Zayo 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. Zayo 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, Zayo 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, Zayo shall notify the City of the need for such
repairs. Zayo 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 Zayo
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 Zayo, 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 Zayo.
4.12 After- Acquired Facilities. Zayo 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 Zayo or upon addition or
annexation to the City of any area in which Zayo retains or acquires any such Facilities (if
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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. Zayo hereby promises to maintain and supply to the City, at the
sole expense of Zayo, any information requested by the City to coordinate municipal
functions with the activities of Zayo within City streets and rights -of -way. Zayo 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. Zayo 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 Zayo 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. Zayo 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. Zayo 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. Zayo 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. Zayo agrees if this prohibition is removed
or in the event Zayo 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. Zayo and the
City agree a reasonable amount would be no less than five percent (5 %) of gross receipts
from the business activities of Zayo within the City.
B. Zayo 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, Zayo
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and the City agree that nothing in this Franchise shall limit the City's power of taxation, as
may now or hereafter exist.
C. Zayo 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, Zayo
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. Zayo 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 Zayo, 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 Zayo no later than thirty (30) days after receipt by Zayo of the
City's billing thereof.
C. Zayo 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. Zayo 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 Zayo 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,
Zayo shall file with the City a written statement signed by the Telecommunication System
manager of Zayo which identifies in detail the sources and amounts of gross revenues
earned by Zayo 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 Zayo be subtracted from gross revenues for
purposes of calculating utility tax payments.
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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. Zayo 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 Zayo and /or any parent company of Zayo pursuant to the rules and
regulations of the FCC, WUTC and other regulatory agencies, and other like materials Zayo
and /or any parent company of Zayo 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 Zayo 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 Zayo and /or any
parent company of Zayo.
C. Zayo 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 Zayo in order to verify the accuracy of utility tax
payments made to the City. Zayo and each parent company of Zayo shall cooperate fully in
the conduct of such audit. In case of audit, the City director of budget and finance may
require Zayo to furnish a verified statement of compliance with the obligations of Zayo or in
response to any questions. Said certificate may be required from an independent certified
public accountant at the sole expense of Zayo. All audits will take place on the premises of
Zayo or at offices furnished by Zayo, which shall be a location within the City of Yakima.
Zayo 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 facilities or business operations of Zayo 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 Zayo has underpaid City utility taxes by five percent (5 %) or
more than was due the City for any given period, then Zayo shall reimburse the City for the
entire cost of such audit and any back utility taxes with interest accrued at twelve percent
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(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. Zayo shall maintain, throughout the term of this
Franchise, liability insurance insuring Zayo, 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, Zayo 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 Zayo 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, Zayo 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
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 Zayo 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.
Zayo and its contractors and /or subcontractors shall maintain umbrella liability
insurance coverage, in an occurrence form, over underlying commercial liability and
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automobile liability. On or before the date this Franchise is fully executed by the
parties, Zayo 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 Zayo
from liability in excess of those limits.
6.5.2 Proof of Insurance. Zayo 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. Zayo 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.
Zayo 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, Zayo and the officers, agents and employees of Zayo, the City may require
additional insurance to be acquired by Zayo. Should the City exercise its right to require
additional insurance, the City will provide Zayo with no less than thirty (30) days prior written
notice.
6.5.4 Failure to Procure. Zayo 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 all operations of Zayo 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 Zayo for all premiums in
connection therewith.
6.6 Performance Bond. Prior to the effective date of this Franchise, Zayo 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 Zayo shall well and truly observe, fulfill and perform each term and condition
of this Franchise. Zayo 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 Zayo or any successor or assign of Zayo has liquidated all of its obligations
with the City that may have arisen from the acceptance of this Franchise by Zayo 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. Zayo 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 Zayo or to limit liability of
Zayo under this Franchise either to the full amount of the performance bond or otherwise,
except as otherwise provided herein. .
►.1
6.7 Waiver, Indemnity, No Estoppel, No Duty.
A. Zayo hereby waives all claims, direct or indirect, for loss or liability
against the City arising out of the franchised or permitted operations of Zayo.
B. Zayo 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 Zayo, 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 but 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 invasion of privacy by Zayo, 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
the failure by Zayo 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 Zayo
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 Zayo
from its duty of defense against liability or of paying any judgment entered against such
party.
C. Zayo hereby waives immunity under Title 51 RCW and affirms that the
City and Zayo 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 Zayo, not only as to the amount of such damage, but as to its liability, provided Zayo
has reasonable notice or actually knew, or should have known, of the pendency of such suit.
Under such circumstances, Zayo 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.
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 Zayo, 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.
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SECTION 7 — REPORTING REQUIREMENTS
All reports required under Section 7 of this Franchise may be requested by the City to be
provided by Zayo 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,
Zayo 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 Zayo. Said reports shall contain an accurate statement in
summarized form, as well as in detail, of the gross revenues of Zayo 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. Zayo 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 Zayo designated as confidential or proprietary by Zayo, 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.
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 Zayo
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, Zayo 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;
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(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 Zayo 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 Zayo has not
complied with any term or condition of this Franchise, the City shall notify Zayo of the exact
nature of the alleged noncompliance.
8.2.2 The Right of Zayo to Cure or Respond. Zayo 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.
8.3 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 Zayo
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. Zayo 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 of conduct by Zayo.
8.5 Acts of Nature. Zayo 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, Zayo 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 Zayo,
or to seek and obtain judicial enforcement of the obligations of Zayo under this Franchise by
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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. Zayo 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 the filing of acceptance by Zayo 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
Office Phone — 509 - 575 -6092
Cell Phone — 509 - 901 -1142
E -mail — randy.beehler(cD-yakimawa.gov
Notices to Zayo shall be addressed to the following:
For all legal matters and notifications:
Zayo Group, LLC
Attn: David Lundy
400 Centennial Pkwy, Suite 200
Louisville, CO 80027
Phone - (303) 947 -7052
E -mail - David. lundy(ab-zavo.com
For all technical matters and notification:
Dan Barcomb OSP Project Manager - Zayo Group Central OR, Central and
Eastern WA, Northern ID
Office Phone - 509.688.4885
Cell Phone - 509.727.3345
E -mail - dan.barcomb @zayo.com
9.3 Compliance with Laws. Zayo 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
24
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 the request of
Zayo, 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 Zayo 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 Zayo 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. Zayo 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.
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,
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 Zayo is wholly or partially unable to carry out its obligations under
this Franchise as a result of a Force Majeure, Zayo shall provide the City prompt notice of
such Force Majeure, describing the same in reasonable detail, and the obligations of Zayo
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. Zayo agrees to use its best efforts to
remedy as soon. as possible, under the circumstances, the inability by Zayo, by reason of
Force Majeure, to.carry out its responsibilities and duties under this Franchise.
9.8 Consent. Wherever the consent or approval of either Zayo or the City is
specifically required in this Franchise, such consent or approval shall not be unreasonably
withheld.
9.9 No Third Party Beneficiaries. There shall be no third party beneficiaries of
this Franchise.
9.10 Franchise Ordinance Acceptance. Zayo 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 Zayo acknowledges
25
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, Zayo 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 Zayo and the City and that Zayo 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 evidence of insurance as required
in Sections 6.5.1 and 6.5.2 of this Franchise. In the event Zayo 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.
9.11 Previous Rights Abandoned. This Franchise supersedes any and all other
rights, privileges, powers, immunities and authorities owned, possessed, controlled or
exercisable by Zayo pursuant to any previous franchise in the City.
9.12 Effective Date. This Franchise and the Franchise Ordinance shall be in full
force and effect 30 days after its passage and publication in accordance with law;
PROVIDED, however, that if Zayo does not accept this Franchise pursuant to Section 9.10 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.
NT
0
PASSED BY THE CITY COUNCIL, signed and approved this 11th day of December, 2012.
CITY OF YAKI
Micah Cawley, Mao r
Attest:
�I No
r" ''4 �`
City Cle ��, � -ft }.
'k m
City Contract No: ,�to/ ;; ,s
Ordinance No: 2012 -56 "1,)�
Publication Date: December 14, 2012
Effective Date: January 13, 2013
State of O o It, rc,.d o )
County of Doul d e r )ss. )
Zayo Group, LLC
I hereby certify that I know or have satisfactory evidence that
�req c ,j w, 6 erc e_r, is the person who appeared before
me, an aid person ackn wledged that he /she signed this instrument, and on oath stated
that he /she was authorized to execute the instrument on behalf of Zayo Group, LLC, and
acknowledged it as the C e Q_r I 5t- 1, 7.r-TI- of Zayo Group, LLC, to be
the free and voluntary act of such party for fhe uses and purposes mentioned in this
instrument.
4-L
Dated this day of r r 2013.
NICOLELM HEWS
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 20124070670
MY COMMISSION EXPIRES OCTOBER 29, 2916
Print Name: I e k- 1- n(,-4k e -j -s
NOTARY PUBLIC in and for the State of
ii c orra '40 , residing at
L- 6o C h nh _.I-t-J rod
My commission expires: 14( q
27
ITEM TITLE:
SUBMITTED BY:
CONTACT
PERSON /TELEPHONE:
SUMMARY EXPLANATION:
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No.
For Meeting of: December 11, 2012
Ordinance granting a telecommunications system franchise
to Zayo Group, LLC.
Randy Beehler, Community Relations Manager
Randy Beehler, Community Relations Manager, 901 -1142
In September 2012, Zayo Group, LLC ( "Zayo ") formally requested the grant of a
Telecommunications System Franchise by the City. The City requested and received all
necessary and appropriate documentation from Zayo to determine that Zayo is qualified to
be granted a Telecommunications System Franchise. Franchise negotiations were
completed in late November 2012. The attached Telecommunications System Franchise
Ordinance (the "Ordinance ") and the franchise it grants allow Zayo 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 ten (10) years. The City will not
charge a franchise fee to Zayor at this time, pursuant to RCW 35.21.860
Resolution Ordinance X Other
(specify)
Contract: Mail to:
Contract Term: Amount: Expiration Date:
Insurance Required? Yes
Funding Phone:
Source:
or Z
APPROVED FOR
SUBMITTAL: ' City Manager
STAFF RECOMMENDATION:
Pass ordinance
BOARD /COMMISSION RECOMMENDATION:
N/A
ATTACHMENTS:
Click to download
❑ Zayo ord