ORDINANCE NO. 87-12
AN ORDINANCE GRANTING A FRANCHISE TO US SPRINT COMMUNICATIONS COMPANY, A NEW YORK GENERAL PARTNERSHIP, ITS SUCCESSORS AND ASSIGNS, TO USE CERTAIN STREETS AND PUBLIC WAYS WITHIN THE CITY OF CASTLE ROCK FOR CONSTRUCTING, OPERATING AND MAINTAINING CONDUITS AND OTHER FACILITIES, AND FIXING THE TERMS AND CONDITIONS OF THE GRANT IN CONNECTION WITH ITS BUSINESS OF FURNISHING COMPETITIVE FIBER OPTIC TELECOMMUNICATIONS SERVICES FOR A PERIOD OF 15 YEARS, AS MORE PARTICULARLY SET FORTH HEREIN.
WHEREAS, US Sprint Communications Company has applied to the City of Castle Rock for a non-exclusive franchise to use certain streets and public ways within the City of Castle Rock for the purpose of constructing, operating, and maintaining conduits and other facilities in connection with its business of furnishing competitive fiber optic communications services, and
WHEREAS, the City has reviewed US Sprint’s request and directed the City Attorney to prepare a Franchise Agreement providing reasonable compensation to the City and protecting the City’s interests in conjunction with such grant.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CASTLE ROCK, WASHINGTON, DO ORDAIN AS FOLLOWS:
SECTION 1. NATURE AND TERM OF GRANT:
A. The City of Castle Rock, (City), does hereby grant to US Sprint Communications Company, A New York General Partnership, (Grantee), a non-exclusive franchise to construct, operate, and maintain a fiber optic telecommunication system, with all necessary appurtenances, in and under the surface of those streets and public places in the City, as shown in red on the map on file in the Clerk’s office and incorporated by reference comprising approximately 2930 lineal feet.
B. This franchise is for the purpose of supplying competitive fiber optic telecommunications services within the City, subject to the terms and conditions of this franchise, for a term of fifteen (15) years.1
SECTION 2.
All such facilities shall be constructed underground. No overhead facilities shall be constructed within the city of Castle Rock.
Grantee shall file with the City of Castle Rock before performing any work under authority of this Ordinance, plans for all such facilities which it proposes to construct under the authority of this Ordinance in the street rights-of-way of said City in such form and detail as the City may require, and such plans shall first receive the approval of said City. Any relocation and/or change shall be indicated on an “As Built” plan; underground cables, other underground conduits and pipes shall be laid at such depths in the street rights-of-way, or other public places, as may be directed by the City.
All facilities shall be constructed, operated and maintained in accordance with Federal, State, and local construction and safety codes and standards.
SECTION 3.
All facilities constructed, operated, and maintained by said Grantee under and by virtue of this Ordinance, shall be so placed with reference to all said street rights-of-way of said City so as to not unduly or unnecessarily interfere with the public use thereof, and whenever the said Grantee, in the exercise of the rights granted by this Ordinance, shall disturb or obstruct the surface of any street or alley, the said Grantee shall, as soon as reasonably practical, restore said surface to as good or better condition as existed prior to the exercise of the rights hereby granted.
SECTION 4.
All construction maintenance of any and all facilities within City streets incident to Grantee’s provision of service shall, regardless of who performs construction, be and remain the responsibility of Grantee. Grantee shall apply for and obtain all permits necessary for construction of any such facilities and for excavation and laying of any lines, conduits or other appurtenances within City streets. Grantee shall pay all fees applicable to specific construction segments upon issuance of the requisite construction permits by the City to Grantee. In the event that emergency repairs are necessary, Grantee shall immediately notify the city of the need for such repairs, and apply for appropriate permits within 48 hours after discovery of the emergency. Grantee must comply with all Ordinance provisions relating to such excavations or construction, including the payment of permit or license fees.
Within forty-eight (48) hours after the City notifies Grantee of a proposed street excavation, the Grantee shall:
(a) Mark all of its locatable underground facilities within the area of the proposed excavation;
(b) Notify the excavator of any unlocatable underground facilities in the area of the proposed excavation; or
(c) Notify the excavator that the owner does not have any underground facilities in the vicinity of the proposed excavation.
The City shall have the right to require Grantee to change the location of any conduit, structure or facility within the street area when the public convenience requires such change, and the expense thereof shall be paid by the Grantee. Should Grantee fail to remove or relocate any such pipes, wires, conduits or other facilities by the date established by the City, the City may effect such removal or relocation, and the expense thereof shall be paid by Grantee, including all costs and expenses incurred by the City due to Grantee’s delay.
All Grantee’s pipes, conduits and underground facilities shall be laid down and maintained in such manner as not to interfere with sewers, water pipes, or any other property of the City, or with any other pipes, wires, conduits or other facilities that may have been laid in the street by or under the City’s authority. The system of pipes, wires, conduits, and other facilities constructed or erected by Grantee shall be of good quality and workmanship and shall be maintained in good repair and efficiency.
SECTION 5.
Whenever Grantee disturbs the surface of any street for any purpose mentioned above, Grantee shall promptly refill the opening and restore the street surface to a condition satisfactory to the City Engineer.
Following excavation of the surface of any street, Grantee shall be responsible for maintenance of the street and its surface within the area affected by the excavation. The City may, after providing notice to Grantee, refill and/or repave any street opening made by Grantee, and the expense thereof shall be paid by Grantee. The City reserves the right, after providing notice to Grantee, to remove and/or repair any work done by Grantee which, in the determination of the City Engineer, is inadequate. The cost thereof, including the cost of inspection and supervision, shall be paid by the Grantee. All excavations made by Grantee in streets shall be properly safeguarded for the prevention of accidents. The work hereby required shall be done in strict compliance with all rules, regulations and Ordinances of the City. If the Grantee’s use of the City’s streets or rights-of-way imposes additional maintenance costs upon the City, Grantee shall pay a reasonable fee on an ongoing basis for its pro rata share of such costs.
SECTION 6.
In consideration of this franchise, Grantee shall pay to the City of Castle Rock a franchise fee calculated by multiplying the total number of lineal feet of fiber optic cable Grantee proposes to lay within the City of Castle Rock by the sum of one dollar ($1.00), per year, payable annually in advance. For purposes of this franchise, the date upon which this franchise is passed by the City of Castle Rock shall be deemed to be the commencement date hereof, and a date one year later shall be deemed the conclusion of the first annual period hereof.
Such annual franchise fee shall remain constant for the first five (5) annual periods hereof. For each annual period six (6) through ten (10) inclusive, Grantee shall pay an annual franchise fee equal to that paid in the fifth (5th) annual period adjusted and increased by a five (5) percent per year escalator to take into account inflation and projected increased activated capacity of Grantee’s system. Said five (5) percent escalator shall be applied to each preceeding years’ rate to establish the annual rate for the sixth (6th) through tenth (10th) annual periods.
No less than 120 days preceeding the commencement of annual period eleven (11), Grantee shall request negotiations with the City to determine what rate should be applied for the remaining five (5) annual periods of the franchise. In no event shall such annual rate be less than a rate established by the application of the same formula established for use in periods six (6) through ten (10).
Payment of this franchise shall not exempt Grantee from the payment of any other license fees, tax or charge on the business, occupation, property or income or Grantee that may be imposed by the City, except as may otherwise be provided in the Ordinance or Ordinances imposing such other license, fee, tax or charge.
Except as otherwise required by law, no portion of this franchise fee shall be noted separately on any bill to any customer or user of services or commodities furnished by Grantee.
The Grantee shall pay the cost of publication of this franchise Ordinance and any amendments thereto, as such publication is required by law. Grantee shall also pay the City or its agent for such reasonable pre-franchising costs as are City incurred in entering into this franchise agreement with the City.
City understands that Grantee intends to install three (3) two (2) inch conduits or alternatively one (1) four (4) inch conduit as a part of the grant provided hereunder. For the stated consideration, Grantee shall be authorized to lay and activate one (1) fiber optic cable within the conduit system. In the event Grantee install any additional fiber optic cable, except as a replacement to the fiber optic cable described above, prior to any such installation, Grantee shall be obligated to pay additional Franchise fees to the City to be negotiated between the parties.
SECTION 7.
Unless Grantee shall within thirty (30) days after notification of the passage of this Ordinance, file an acceptance hereof with the City of Castle Rock and pay those fees provided in Section 6, the consent herein granted, subject to the conditions and privileges herein set forth, shall become null and void.
SECTION 8.
Grantee hereby agrees and covenants to indemnify and hold the City, its officers, agents and employees, harmless from any claim for injury, damage, loss, liability, cost or expense, including court and appeal costs and attorney fees or expenses, arising from any casualty or accident to person or property by reason of any construction, excavation or any other act done under this franchise, by or for Grantee, its agents or employees, or by reason of any neglect or omission of Grantee to keep its pipes, wires, conduits, or other facilities in a safe condition.
Grantee also hereby agrees to indemnify the City for any damages, claims, additional costs or expenses assessed against or payable by the city arising out of or resulting directly or indirectly from Grantee’s failure to remove, adjust or relocate any of its facilities in a timely manner in accordance with a relocation schedule furnished Grantee by the City in writing.
SECTION 9.
A. The Grantee shall maintain public liability and property damage insurance that protects the Grantee and the City and its officers, agents, and employees from any and all claims referred to in Section 6. The insurance shall provide coverage at all times for not less than $100,000 for personal injury to each person, $250,000 for each occurrence, and $300,000 for each occurrence involving property damages plus costs of defense; or a single limit policy of not less than $300,000 covering all claims per occurrence, plus costs of defense.
The insurance shall be without prejudice to coverage otherwise existing and shall name as additional insureds the City and its officers, agents, and employees. Notwithstanding the naming of additional insureds, the insurance shall protect each insured in the same manner as though a separate policy had been issued to each, but nothing herein shall operate to increase the insurer’s liability as set forth elsewhere in the policy beyond the amount or amounts for which the insurer would have been liable if only one person or interest had been named as insured. The coverage must apply as to claims between insureds on the policy. The insurance shall provide that the insurance shall not terminate or be cancelled without thirty (30) days written notice first being given to the City Clerk. If the insurance is cancelled or terminated prior to completion of the contract, Grantee shall provide a new policy with the same terms. Grantee agrees to maintain continuous uninterrupted coverage, in the amounts required for the duration of the contract.
B. The Contractor shall maintain on file with the City Clerk a certificate of insurance certifying the coverage required under Section 9A. The adequacy of the insurance shall be subject to the approval of the City Attorney. Failure to maintain liability insurance shall be cause for immediate termination of this franchise by the City.
SECTION 10.
The City of Castle Rock reserves the right to regrade, widen, change the grade or alignment of any or all of its streets, or alleys, and to make any other improvements, and to require Grantee, at its own expense, to readjust or relocate its facilities to conform therewith. In the event the City should vacate any right-of-way, Grantee may be required to readjust or relocate its facilities, at its sole cost and expense, provided, however, City shall provide such alternative right-of-way at no expense to Grantee.
SECTION 11.
This Ordinance shall not be construed as any limitation upon the right of the City of Castle Rock to exercise its rights, privileges, or authority similar to or different from those herein set forth, or to grant rights, privileges, or authority to other persons or corporations similar to or different from those herein set forth in the same streets or alleys.
SECTION 12.
Except for a transfer to a wholly owned subsidiary or affiliate, this franchise shall not be assignable or transferable by Grantee without the prior written permission of the City of Castle Rock.
SECTION 13.
Whenever Grantee intends to discontinue using any facility within the streets, Grantee shall submit to the City for its approval a completed application describing the facility and the date on which the Grantee intends to discontinue using the facility. Grantee may remove the facility or request that the City permit it to remain in place. Notwithstanding the Grantee’s request that any such facility remain in place, the City may require the Grantee to remove the facility from the street area or modify the facility in order to protect the public health and safety or otherwise serve the public interest. The City may require the Grantee to perform a combination of modification and removal of the facility. Grantee shall complete such removal or modification in accordance with a schedule set by the City. Until such time as Grantee removes or modifies the affected facility as directed by the City, or until the rights to and responsibility for the affected facility are accepted by another utility having authority to construct and maintain such facilities, Grantee shall be responsible for all necessary repairs, relocations of the facility, and maintenance of the street area in the same manner and degree as if the facility were in active use, and shall retain all liability for such facility.
In removing or modifying facilities as provided in this Section, Grantee shall also remove all residue of harmful or toxic substances associated with such facilities. Grantee hereby agrees to remain forever liable to and indemnify the City against any claims, costs, and expenses, of any kind, whether direct or indirect, incurred by the City arising out of harmful or toxic substances associated with facilities whose use has been discontinued by Grantee.
SECTION 14.
A. In addition to any other rights set out elsewhere in this franchise, the City reserves the right to declare a forfeiture of the franchise and all of Grantee’s rights arising thereunder, in the event that:
(1) The Grantee violates any material provision of the franchise; or
(2) The Grantee’s construction schedule is delayed for over 6 months; or
(3) The Grantee becomes insolvent or unable or unwilling to pay its debts or is adjudged a bankrupt; or
(4) The Grantee is found to have practiced any fraud or deceit upon the City; or
(5) The Grantee fails to obtain and maintain any permit required by any federal or state regulatory body.
The City must give Grantee thirty (30) days written notice of its intent to declare a forfeiture, stating the reason for the forfeiture. If Grantee cures the stated reason for the forfeiture within the thirty (30) day notice period or if the Grantee initiates efforts satisfactory to the City to remedy the stated reason and the efforts continue in good faith, the forfeiture shall not take place.
If Grantee fails to cure the stated reason within the thirty (30) day notice period or if the Grantee does not undertake efforts satisfactory to the City to remedy the stated effect, then the City Council may revoke the franchise by Ordinance.
B. In addition to any rights set out elsewhere in this franchise, the City reserves the right at its sole option to apply any of the following alone or in combination, for violation of items (1) – (5) above:
(1) Impose a financial penalty of $100.00, whether per day, incident, or other measure of violation;
(2) Reduce the duration of the franchise, as the City deems reasonable; or
(3) Suspend the Grantee’s franchise rights until the Grantee corrects or otherwise remedies the violation.
In determining which remedy or remedies are appropriate, the City shall consider the nature of the violation, the person or persons burdened by the violation, the nature of the remedy required in order to prevent further such violations and any other matters the City deems appropriate.
C. The City Council may revoke this franchise in the event that any provision becomes invalid or unenforceable and the City Council expressly finds that such provision constituted a consideration material to the grant of the franchise.
SECTION 15.
Upon the expiration of this franchise, the City shall have the right, at its election, to:
(A) Renew or extend the franchise, in accordance with applicable law, though nothing herein shall be construed to require such renewal or extension;
(B) Invite additional proposals and award this franchise to another grantee;
(C) Terminate the franchise without further action; or
(D) Take such further action as the City deems appropriate.
SECTION 16.
This Ordinance shall take effect from and after its passage and five (5) days following its publication as required by law.
ADOPTED by the City Council and SIGNED by the MAYOR this 10th day of August, 1987.
Code reviser’s note: A telecommunications license agreement dated October 21, 2002, was signed between the city and Sprint Communications Company L.P. with a term of 15 years.