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HomeMy WebLinkAbout2013-012ORDINANCE NO.2013-012 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ARLINGTON, WASHINGTON, GRANTING A FRANCHISE TO ASTOUND BROADBAND LLC WHEREAS, Astound Broadband, LLC ("Grantee") has applied to the City of Arlington ("City") for a non-exclusive franchise for the right of entry, use, and occupation of the public Rights -of -Way within City, expressly to install, construct, erect, operate, maintain, repair, relocate and remove its facilities in, on, upon, along and/or across those Rights -of -Way for purposes of offering and providing Network Telephone Service and Telecommunications Infrastructure Services ("Grantee Services"); and WHEREAS, from facts and circumstances developed or discovered through independent study and investigation, the City Council now deems it appropriate and in the best interest of the City and its inhabitants that a franchise be granted to Grantee . NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ARLINGTON, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: Section 1. Grant of Franchise Right to Use Franchise Area. A. Subject to the terms and conditions stated herein, City hereby grants Grantee a franchise as set forth in this Ordinance (this "Franchise"), including without limitation general permission to enter, use and occupy the right(s)-of-way within the City as now or hereafter constituted (the "Franchise Area"). This Franchise shall be considered a "Master Permit" as that term is defined in RCW 35.99.010(3). B. Grantee is authorized to install, remove, construct, erect, operate, maintain, relocate and repair the types of facilities necessary or convenient for Grantee Services and all appurtenances thereto (collectively, "Grantee Facilities") in, along, under and across the Franchise Area, subject to Applicable Law, City Zoning Requirements, and the most current City of Arlington Engineering and Construction Standards. C. This Franchise does not authorize the use of the Franchise Area for any facilities or services other than Grantee Facilities and Grantee Services, and it extends no rights or privilege relative to any facilities or services of any type, including Grantee Facilities and Grantee Services, on private property within City. By way of example, and not of limitation, this Franchise does not authorize Grantee to operate a cable system or to provide cable service or other multi -channel video service, without first obtaining a separate franchise from City addressing those services. D. This Franchise is non-exclusive and does not prohibit City from entering into other agreements, including other franchises, within or impacting the Franchise Area. E. Except as explicitly set forth herein, this Franchise does not waive any rights Telecommunications Franchise that City has or may hereafter acquire with respect to the Franchise Area or any other City roads, Rights -of -Way, property, or any portions thereof. This Franchise shall be subject to the power of eminent domain, and in any proceeding under eminent domain, Grantee acknowledges its use of the Franchise Area shall have no value. F. City reserves the right to change, regrade, relocate, abandon, or vacate any Right -of -Way within the Franchise Area. If, at any time during the term of this Franchise, City vacates any portion of the Franchise Area containing Grantee Facilities, City shall reserve an easement for public utilities within that vacated portion, pursuant to RCW 35.79.030, within which Grantee may continue to operate any existing Grantee Facilities under the terms of this Franchise for the remaining period set forth under Section 3, or may, in the City's sole discretion, provide for an alternative easement in which Grantee may relocate its Facilities, pursuant to RCW 35.99.060. G. Grantee agrees that its use of Franchise Area shall at all times be subordinated to and subject to City and the public's need for municipal infrastructure, travel, and access to the Franchise Area, except as may be otherwise required by law. Section 2. Notices. A. Written notices to the parties shall be sent by certified mail to the following addresses, unless a different address shall be designated in writing and delivered to the other party. City: Barbara Tolbert, Mayor, City of Arlington 238 N. Olympic Avenue Arlington, WA 98223 with a copy to: Kristin Banfield, City Clerk 238 N. Olympic Avenue Arlington, WA 98223 Grantee: Astound Broadband, LLC 401 Kirkland Parkplace, Suite 500 Kirkland, WA 98033 Attention: Steve Weed, CEO, and Jim Penney, EVP B. Any changes to the Grantee's information shall be sent to City's Public Works Director, with copies to the City Clerk, referencing the title of this agreement. C. The Grantee's voice numbers shall be staffed at least during normal business hours, Pacific time zone. Section 3. Term of Franchise. Telecommunications Franchise A. This Franchise shall run for a period of ten (10) years, from the date of execution specified in Section 5. B. If the Parties fail to formally renew this Franchise prior to the expiration of its term or any extension thereof, this Franchise shall automatically continue in full force and effect until renewed or either party gives written notice at least one hundred and eighty (180) days in advance of intent not to renew this Franchise. Section 4. Definitions. For the purpose of this Franchise: "Affiliate" means, with respect to any Person, any other Person controlling, controlled by or under common control with such Person. For purposes of this definition, the term "control" (including the correlative meanings of the terms "controlled by" and "under common control with"), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct, or cause the direction of, the management policies of such Person, whether through the ownership of voting securities, by contract or otherwise. "Applicable Law" means any statute, ordinance, judicial decision, executive order or regulation having the force and effect of law that determines the legal standing of a case or issue. "E►ner ency" means a condition of imminent danger to the health, safety and welfare of persons or property located within City including, without limitation, damage to persons or property from natural consequences, such as storms, earthquakes, riots, acts of terrorism or wars. "Maintenance" or "Maintain" means examining, testing, inspecting, repairing, maintaining and replacing the existing Grantee Facilities or any part thereof as required and necessary for safe operation. "Person" means any individual, sole proprietorship, partnership, association, corporation or other form of organization authorized to do business in the State of Washington, and includes any natural person. "Relocation" means permanent movement of Grantee Facilities required by City, and not temporary or incidental movement of such facilities, or other revisions Grantee would accomplish and charge to third parties without regard to municipal request. "Right -of -Wax" (pluralized as "Rights -of -Way") means the surface and the space above and below streets, roadways, highways, avenues, courts, lanes, alleys, sidewalks, easements, and similar public properties and areas. Rights -of -Way, for the purpose of this Franchise, do not include buildings, parks, poles, or similar facilities or property owned by or leased to the City, including, by way of example and not limitation, structures in the Rights -of -Way such as utility 3 Telecommunications Franchise poles and light poles. "State" means the State of Washington. "Network Telephone Service" has the same meaning as "Network telephone service" as defined under RCW 82.16.010 (2012). "Telecommunications Infrastructure Services" means any communications services provided by Grantee using Grantee Facilities in the Rights -of -Way excluding Network Telephone Service and cable service as that term is defined in Applicable Law. Section 5. Acceptance of Franchise. A. This Franchise, and any rights granted hereunder, shall not become effective for any purpose unless and until Grantee files with the City Clerk the Statement of Acceptance, attached hereto as Exhibit A (the "Franchise Acceptance"). The date that the Franchise Acceptance is filed with the City Clerk shall be the effective date of this Franchise. B. Should Grantee fail to file the Franchise Acceptance with the City Clerk within 30 days after the effective date of this Franchise will automatically terminate and shall be null and void. Section 6. Construction and Maintenance. A. Grantee shall apply for, obtain, and comply with the terms of all permits required under Chapter 12.40 of the Arlington Municipal Code, and any other City ordinances or regulations for any work done on Grantee Facilities or within the Franchise Area. Grantee shall comply with all Applicable Law in undertaking such work, which shall be done in a thorough and proficient manner consistent with the standards of the telecommunications industry, the City of Arlington Engineering and Construction Standards, and the version of the Manual on Uniform Traffic Control Devices (MUTCD) as adopted by the Washington State Department of Transportation (WSDOT). B. Grantee agrees to use commercially reasonable efforts to coordinate its activities with City and all other utilities located within the Franchise Area to minimize damage to, and avoid undue disruption and interference with, the public use of the Rights -of - Way. C. Grantee shall not install or store within Franchise Area any materials, wastes, or products known to be hazardous or contain hazardous substances without written approval from the City, which approval shall not be unreasonably withheld. D. City expressly reserves the right to prescribe how and where Grantee Facilities shall be installed within the Franchise Area and may from time to time, pursuant to the applicable sections of this Franchise, require the removal, Relocation and/or replacement thereof in the public interest and safety at the expense of Grantee. 4 Telecommunications Franchise E. Before commencing any work within the Franchise Area, Grantee shall comply with the One Number Locator provisions of RCW Chapter 19.122 to identify, locate and mark existing utility infrastructure. F. Upon prior written approval of City and in accordance with City ordinances, Grantee shall have the authority (but not the obligation) to reasonably trim trees upon and overhanging streets, Rights -of -Ways and places in the Franchise Area so as to prevent the branches of such trees from coming in physical contact with Grantee Facilities. Grantee shall be responsible for debris removal from such activities. If such debris is not removed within twenty-four (24) hours of completion of the trimming, City may, at its sole discretion, remove such debris and charge Grantee for the cost thereof. This section does not, in any instance, grant automatic authority to clear vegetation for purposes of providing a clear path for radio signals. Any such general vegetation clearing will require a land clearing permit. Section 7. Repair and Emergency Work. In the event of an Emergency, Grantee may commence such repair and Emergency response work as required under the circumstances, provided that Grantee shall notify by telephone, in advance of commencing the work, the City Public Works Maintenance and Operations office (360-618-2166), Wastewater Department (425-754-7445) and Water Department (360-386-5926). In addition, Grantee shall notify the City Public Works Director or his or her designee in writing as promptly as possible, before such repair or Emergency work commences, or as soon thereafter as possible, if advance notice is not practical. The Grantee shall apply to the City for a permit on or before the third working day after such work has commenced. City may act, at any time, without prior written notice in the case of Emergency, but shall notify Grantee in writing as promptly as possible under the circumstances. Section 8. Damages to City and Third -Party Property. Grantee agrees that should any of its actions under this Franchise materially impair or damage any City property, survey monument, or property owned by a third -party, Grantee will restore, at its own cost and expense, said property to a safe condition. Such repair work shall be performed and completed to the reasonable satisfaction of the City Engineer, or in the case of damage to private property, to the reasonable satisfaction of the property owner. Section 9. Location Preference. A. Any structure, equipment, appurtenance or tangible property of a utility, other than Grantee's, which was installed, constructed, completed or in place prior in time to Grantee's application for a permit to construct Grantee Facilities under this Franchise shall have preference as to positioning and location with respect to Grantee Facilities. However, to the extent that Grantee Facilities are completed and installed prior to another utility's submittal of a permit for new or additional structures, equipment, appurtenances or tangible property, then Grantee Facilities shall have priority. These rules governing preference shall continue in 5 Telecommunications Franchise the event of the necessity of relocating or changing the grade of any City road or Right -of - Way. A relocating utility shall not necessitate the relocation of another utility that otherwise would not require Relocation. This Section shall not apply to any City facilities or utilities that may in the future require the Relocation of Grantee Facilities. Such Relocations shall be governed by Section 11. B. Grantee shall maintain a minimum underground horizontal separation of five (5) feet from City water, sewer and storm facilities. Grantee shall maintain a minimum 18 inch vertical separation of any crossing of underground telecommunications facilities and any City water, sewer or storm utilities, with such crossings to occur at a 90-degree angle. When not feasible, a lesser depth or angle may be permitted by the Public Works Director. Grantee shall maintain a separation of its facilities from above -ground City water facilities in accordance with Applicable Law; provided, that for development of new areas and to the extent not inconsistent with Applicable Law, City, together with Grantee and other utility purveyors or authorized users of Rights -of -Way, will develop and follow the Public Works Director's determination of a consensus for guidelines and procedures for determining specific utility locations, subject additionally to this Franchise. Section 10. Grantee Information. A. Grantee agrees to supply, at no cost to City, any information reasonably requested of the Director of Public Works to coordinate municipal functions with Grantee's activities and fulfill any municipal obligations under State law. Said information shall include, at a minimum, as -built drawings of Grantee Facilities, installation inventory, and maps and plans showing the location of existing or planned facilities within City. Said information may be requested either in hard copy and/or electronic format, if reasonably possible in a format compatible with City's database system, as now or hereinafter existing, including City's geographic information Service (GIS) data base. Grantee shall use its commercially reasonable efforts to keep the Public Works Director informed of its long-range plans for coordination with City's long-range plans. B. The parties understand that Washington law limits the ability of City to shield from public disclosure any information given to City. Accordingly, the parties agree to work together to avoid disclosures of information which would result in economic loss or damage to Grantee because of mandatory disclosure requirements to third persons. Grantee shall indemnify and hold harmless City for any loss or liability for costs for attorneys fees because of non -disclosures requested by Grantee under Washington's open public records law, or incurred in connection with the City's provision of assistance to Grantee to keep Grantee's information from disclosure, provided reasonable notice and opportunity to defend was given to Grantee or Grantee is made aware of the pending of a request or claim. Section 11. Relocation of Grantee Facilities. A. Grantee agrees to Relocate, remove, or reroute its facilities as ordered by the City Engineer at no expense or liability to City, except as may be required by RCW Chapter 35.99. Any determination to require the Relocation of Grantee Facilities shall be made in a 6 Telecommunications Franchise reasonable, uniform and non-discriminatory manner.. Pursuant to the provisions of Section 14, Grantee agrees to protect and save harmless City from any customer or third -party claims for service interruption or other losses in connection with any such change, Relocation, abandonment, or vacation of public property. B. If a readjustment or Relocation of Grantee Facilities is necessitated by a request from a Person other than City, that party shall pay Grantee the actual costs thereof. Section 12. Abandonment and or Removal of Grantee Facilities. A. Whenever Grantee intends to discontinue using any Facility within the Rights - of -Way, Grantee shall submit to City a complete description of the Facility and the date on which Grantee intends to discontinue using the Facility. Grantee may remove the Facility or request that City allow it to remain in place. Notwithstanding Grantee's request that any such Facility remain in place, City may require Grantee to remove the Facility from the Rights -of - Way. Grantee shall complete such removal in accordance with a schedule set by City. Until such time as Grantee removes the Facility as directed by City, or until the rights to and responsibility for the Facility are accepted by another person having authority from the City to construct and maintain such Facility, Grantee shall be responsible for the Facility, as well as maintenance of the Rights -of -Way, in the same manner and degree as if the Facility were in active use, and Grantee shall retain all liability for such facility. Grantee's failure to notify City as required herein does not relieve Grantee of the obligation to remove abandoned Facilities. Facilities shall be considered abandoned, if use has been discontinued for a period of two (2) years and Grantee does not have a specific plan in place to begin utilizing such facilities within the ensuing year. B. The parties expressly agree that this Section shall survive the expiration, revocation or termination of this Franchise. Section 13. Undergrounding. A. The parties agree that this Franchise does not limit City's authority under federal law, State law, or local ordinance, to require the undergrounding of utilities. B. Whenever City requires the undergrounding of aerial utilities in the Franchise Area, Grantee shall underground Grantee Facilities in the manner specified by the City Engineer at no expense or liability to City, except as may be required by RCW Chapter 35.99. Where other utilities are present and involved in the undergrounding project, Grantee shall be required to pay only its fair share of common costs borne by all utilities, in addition to the costs specifically attributable to the undergrounding of Grantee Facilities. Common costs shall include necessary costs for common trenching and utility vaults. Fair share shall be determined in comparison to the total number and size of all other utility facilities being undergrounded. Section 14. Indemnification and Hold Harmless. A. Grantee shall defend, indemnify, and hold City and its officers, officials, agents, 7 Telecommunications Franchise employees, and volunteers harmless from any and all costs, injuries, damages, losses, suits, or liabilities of any nature including court and appeal costs and attorneys' fees and expenses, arising out of or in connection with any third party claims arising from Grantee's performance under this Franchise, including, all damages in any way arising out of, or by reason of, any construction, excavation, erection, operation, maintenance, repair or reconstruction, or any other act done under this Franchise, by or for Grantee, its authorized agents, or by reason of any neglect or omission of Grantee its authorized agents or its employees, except to the extent such costs, claims, injuries, damages, losses, suits, or liabilities are caused by the negligence or willful misconduct of City. Grantee shall consult and cooperate with the City while conducting its defense of the City. The fact that Grantee carries out any activities under this Franchise through independent contractors shall not constitute an avoidance of or defense to Grantee's duty of defense and indemnification under this Section. The Indemnification provisions of this Section 14.A shall survive the expiration or termination of this Franchise. B. City shall be liable to Grantee for any damage or loss to Grantee Facilities caused by Maintenance and/or construction work performed by City or its contractors within the Franchise Area, except to the extent any such damage or loss is directly caused by the negligence of Grantee, or its agent performing such work. C. Grantee acknowledges that neither City nor any other public agency with responsibility for firefighting, Emergency rescue, public safety or similar duties within City has the capability to provide trench, close trench or confined space rescue. Grantee, and its agents, assigns, successors, or contractors, shall make such arrangements as Grantee deems fit for the provision of such services. Grantee shall hold City harmless from any liability arising out of or in connection with any damage or loss to Grantee for City's failure or inability to provide such services, and, pursuant to the terms of Section 14(A), Grantee shall indemnify City against any and all third -party costs, claims, injuries, damages, losses, suits, or liabilities based on City's failure or inability to provide such services. D. Acceptance by City of any work performed by Grantee shall not be grounds for avoidance of this section. Section 15. Insurance. A. Grantee shall procure and maintain for the duration of this Franchise, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by Grantee, its agents, representatives, or employees in the amounts and types set forth below: 1. Automobile Liability insurance covering all owned, non -owned, hired, and leased vehicles with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident. 2. Commercial General Liability insurance with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate and a $2,000,000 products - completed operations aggregate limit. Coverage shall cover liability arising from premises, operations, independent contractors, products -completed operations, stop gap 8 Telecommunications Franchise liability, and personal injury and advertising injury and liability assumed under an insured contract. City shall be named as an additional insured under Grantee's Commercial General Liability insurance policy with respect to the work performed under this Franchise. 3. Workers' Compensation coverage as required by the Industrial Insurance laws of the State of Washington. B. Grantee's insurance coverage shall be primary insurance as respects City. Any insurance, self-insurance, or insurance pool coverage maintained by City shall be in excess of Grantee's insurance and shall not contribute with it. C. Grantee shall furnish City with certificates of the foregoing insurance coverage or a copy of amendatory endorsements, including but not necessarily limited to the additional insured endorsement. D. Grantee's insurance shall be placed with insurers with a current A.M. Best rating of not less than A:VII. Upon prior written approval of the City, and in the City's sole discretion, Grantee may self -insure any or all of the above -required insurance. E. Grantee's maintenance of insurance as required by this Franchise shall not be construed to limit the liability of Grantee to the coverage provided by such insurance, or otherwise limit City's recourse to any remedy to which City is otherwise entitled at law or in equity. Section 16. Performance Security. Grantee shall provide City with a surety bond in the amount of Fifty Thousand Dollars ($50,000) running or renewable for the term of this Franchise, in a form and substance reasonably acceptable to City. In the event Grantee shall fail to substantially comply with any one or more of the provisions of this Franchise following notice and a reasonable opportunity to cure, then there shall be recovered jointly and severally from the principal and any surety of such surety bond any damages suffered by City as a result thereof, including but not limited to staff time, material and equipment costs, compensation or indemnification of third parties, and the cost of removal or abandonment of facilities hereinabove described. Grantee specifically agrees that its failure to comply with the terms of Section 19 shall constitute damage to City in the monetary amount set forth therein. Such a financial guarantee shall not be construed to limit Grantee's liability to the guarantee amount, or otherwise limit City's recourse to any remedy to which City is otherwise entitled at law or in equity. The requirement of a surety bond as described herein shall not relieve Grantee from the obligation to post any other bond that may be required with any Maintenance or construction undertaken within the City, pursuant to Applicable Law. Section 17. Successors and Assignees. A. All the provisions, conditions, regulations and requirements herein contained 9 Telecommunications Franchise shall be binding upon the successors, assigns of, and independent contractors of Grantee, and all rights and privileges, as well as all obligations and liabilities of Grantee shall inure to its successors, assignees and contractors equally as if they were specifically mentioned herein wherever Grantee is mentioned. B. This Franchise shall not be sold, leased, assigned, transferred or otherwise alienated, either in whole or in part, either by involuntary sale or by voluntary sale, merger or consolidation; nor shall title thereto, either legal or equitable, or any right, interest or property therein pass to or vest in any person or entity except to an Affiliate of Grantee, without the express written consent of City by ordinance or otherwise, which approval shall not be unreasonably withheld. Grantee shall promptly notify City of any actual or proposed change in, or transfer of, or acquisition by any other party of control of the Grantee. The word "control" as used herein is not limited to majority stockholders but includes actual working control in whatever manner exercised. Such a change, transfer or acquisition of control of the Grantee shall make this Franchise subject to cancellation unless and until City shall have consented in writing thereto. C. Grantee and any proposed assignee or transferee shall provide and certify the following to City not less than ninety (90) days prior to the proposed date of transfer: (a) complete information setting forth the nature, term and conditions of the proposed assignment or transfer; (b) all information required by City of an applicant for a Franchise with respect to the proposed assignee or transferee; (c) statements from Grantee or the proposed assignee or transferee indicating whether the proposed assignee or transferee (1) Has ever been convicted or held liable for acts involving deceit including any violation of federal, State or local law or regulations, or is currently under an indictment, investigation or complaint charging such acts; (2) Has ever had a judgment in an action for fraud, deceit, or misrepresentation entered against the proposed transferee by any court of competent jurisdiction; (3) Has pending any material legal claim, lawsuit, or administrative proceeding arising out of or involving a communications network or Telecommunications Infrastructure Services; (4) Is financially solvent, by submitting financial data including financial statements that are audited by a certified public accountant who may also be an officer of the transferee or controlling entity, along with any other data that is lawfully required; and (5) Has the financial, legal and technical capability to enable it to maintain and 10 Telecommunications Franchise operate the Grantee Facilities for the remaining term of the Franchise; and (d) an application fee which shall be set by City, plus any other costs actually and reasonably incurred by City in processing, and investigating the proposed assignment or transfer, including, without limitation, City's reasonable attorneys' fees and costs. D. Prior to City's consideration of a request by Grantee to consent to a Franchise assignment or transfer, the proposed assignee or transferee shall file with City a written promise to unconditionally accept all terms of this Franchise, effective upon such transfer or assignment of this Franchise. City is under no obligation to undertake any investigation of the transferor's state of compliance and failure of City to insist on full compliance prior to transfer does not waive any right to insist on full compliance thereafter. Section 18. Dispute Resolution. A. In the event of a dispute between City and Grantee arising by reason of this Franchise, the dispute shall first be referred to the operational officers or representatives designated by City and Grantee to have oversight over the administration of this Franchise. The officers or representatives shall meet within thirty (30) calendar days of either party's request for a meeting, whichever request is first, and the parties shall make a good faith effort to achieve a resolution of the dispute. B. If the parties fail to achieve a resolution of the dispute in this manner, either party may then pursue any available judicial remedies. This Franchise shall be governed by and construed in accordance with the laws of the State of Washington without respect to choice of law provisions. In the event any suit, arbitration, or other proceeding is instituted to enforce any term of this Franchise, the parties specifically understand and agree that venue shall be exclusively in Snohomish County, Washington. The substantially prevailing party in any such action shall be entitled to its attorneys' fees and costs of suit, which shall be fixed by the judge hearing the case, and such fees shall be included in the judgment. Section 19. Enforcement and Remedies. A. If Grantee shall violate, or fail to comply with any of the provisions of this Franchise, or should it fail to heed or comply with any notice given to Grantee under the provisions of this Franchise, City may shall provide Grantee with written notice specifying with reasonable particularity the nature of any such breach and Grantee shall undertake all commercially reasonable efforts to cure such breach within thirty (30) days of receipt of notification. If City reasonably determines the breach cannot be cured within (30) thirty days, City may specify a longer cure period, and condition the extension of time on Grantee's submittal of a plan to cure the breach within the specified period, commencement of work within the original thirty (30) day cure period, and diligent prosecution of the work to completion. If the breach is not cured within the specified time, or Grantee does not comply with the specified conditions, City may, at its discretion, either (1) revoke this Franchise with no further notification, or (2) claim damages of Five Hundred Dollars ($500.00). Damages shall be imposed for each day of violation, beginning with the date of the City's notice Telecommunications Franchise specifying the breach. B. Should City determine that Grantee is acting beyond the scope of permission granted herein for Grantee Facilities and Grantee Services, City reserves the right to cancel this Franchise and require Grantee to apply for, obtain, and comply with all applicable City permits, franchises, or other City permissions for such actions, and if Grantee's actions are not allowed under applicable federal and state or City laws, to compel Grantee to cease such actions. Section 20. Compliance with Laws and Regulations. A. This Franchise is subject to, and Grantee shall comply with all Applicable Laws, regulations and policies (including all applicable elements of City's comprehensive plan). Furthermore, notwithstanding any other terms hereof to the contrary, Grantee shall be subject to the police power of City to adopt and enforce general ordinances necessary to protect the safety and welfare of the general public in relation to the rights granted in the Franchise Area. B. City reserves the right at any time to amend this Franchise to conform to any hereafter enacted, amended, or adopted federal or state statute or regulation relating to the public health, safety, and welfare, or relating to roadway regulation, or a City Ordinance enacted pursuant to such federal or state statute or regulation upon providing Grantee with thirty (30) days written notice of its action setting forth the full text of the amendment and identifying the statute, regulation, or ordinance requiring the amendment. Said amendment shall become automatically effective upon expiration of the notice period unless, before expiration of that period, Grantee delivers a written notice requesting negotiations over the terms of the amendment. If the parties do not reach agreement as to the terms of the amendment within thirty (30) days of the request for negotiations, City may enact the proposed amendment, by incorporating Grantee's concerns to the maximum extent City deems reasonable. Section 21. License, Tax, Charges and Consideration. A. This Franchise shall not exempt Grantee from any future license, tax, fee or charge which City may hereinafter adopt pursuant to authority granted to it under Applicable Law for revenue or as reimbursement for use and occupancy of the Franchise Area. B. Consistent with RCW 35.21.860, Grantee commits to pay a City utility tax not to exceed six percent (6%) on revenues derived from Grantee's provision of Grantee Services (net of bad debt or other uncollectable amounts) in the City, or an amount equivalent to the amount due under such a tax, regardless of any change in law, or whether any authority may determine that said tax does not apply to said revenues. C. Grantee shall provide two (2) strands of dark fiber optic cable connecting City Hall to the City's Utilities Department, the City Shop and the City's Fire Station 48, at no cost to the City and in accordance with the terms and conditions of the Dark Fiber Optic 12 Telecommunications Franchise Agreements for each site, attached hereto as Exhibits B, C and D. Section 22. Consequential Damages Limitation. Notwithstanding any other provision of this Franchise, in no event shall either party be liable for any special, incidental, indirect, punitive, reliance, consequential or similar damages. Section 23. Severability. If any portion of this Franchise is deemed invalid, the remainder portions shall remain in effect. Section 24. Titles. The section titles used herein are for reference only and should not be used for the purpose of interpreting this Franchise. ADOPTED AND APPROVED this 5th day of August, 2013. CITY OF ARLINGTON Barbara Tolbert, Mayor ATTEST: Kristin anfield, City Clerk APPROVED AS TO FORM: Stev n J. Pei e, ,Attorney .--- , 13 Telecommunications Franchise EXHIBIT "A" STATEMENT OF ACCEPTANCE Astound Broadband LLC, for itself, its successors and assigns, hereby accepts and agrees to be bound by all lawful terms, conditions and provisions of the Franchise attached hereto and incorporated herein by this reference. ASTOUND BROADBAND, LLC —,ram By: Date: 'a Name: Ja z A. Penn jy Title: Executive Vice President STATE OF WASHINGTON ) ) ss. COUNTY OF KING ) Ora this 6*` day of • , 2013, before me the undersigned, a Notary Public in and for the State of Washington, duly commissioned and sworn, personally appeared, James A. Penney, the Executive Vice President of Astound Broadband, LLC, the limited liability company that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said company, for the uses and purposes therein mentioned, and on oath stated that he/she is authorized to execute said instrument. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal on the date hereinabove set forth. 1.0-� / ,,(a" v__- ure -DA1+D `,Mt'3 VDW M OX-aM NOTARY PUBLIC in and for the State of Washington, Residing at ._5 - My Commission Expires: 10 • ate• PI.413 14 Telecommunications Franchise DAVID JOHANNES VON MORITZ STATE OF WASHINGTCJk- NOTARY PUB c MY COtAMISSION, EXPIRtS 9 Os07=1 3 CERTIFICATION OF ORDINANCE I, Kristin Banfield, being the duly appointed and acting Clerk of the City of Arlington, Washington, a municipal corporation, do hereby certify that the following Ordinance 42013-012 was approved at the August 5, 2013 City Council meeting. ORDINANCE #2013-012 "AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ARLINGTON, WASHINGTON, GRANTING A FRANCHISE TO ASTOUND BROADBAND LLC" A true and correct copy of the original ordinance is attached. Dated this 13t" day of August, 2013. c-- . _ +� Kristin anfield City Cler for the City of Arlington (i)(1VE@ C]IVISION HOLDINGS WAVE ; BUSINESS 6R A..A.D SOLUTIONS astound Via FedEx September 9, 2013 City of Arlington Attn: Kristin Banfield 238 North Olympic Avenue Arlington, WA 98223 Re: City of Arlington ("City") Ordinance No. 2013-012 granting a non-exclusive franchise (the "Franchise") to Astound Broadband, LLC ("Astound") Dear Ms. Banfield: Enclosed, please find the fully executed ink -original Franchise and "Exhibit A" Statement of Acceptance thereto that has been executed on behalf of Astound by James A. Penney, pursuant to the requirements of section 5 of the Franchise. The Certificate of Insurance and Performance Security required pursuant to sections 15 and 16 of the Franchise will be issued in favor of the City and sent directly to your attention in the coming days. Please do not hesitate to contact me if you have any questions or concerns. I can be reached by telephone at (425) 896-1868 or email at dvonmoritz@wavebroadband.com. Very Truly Yours, David von Moritz Legal Assistant Cc: James A. Penney (via email) C 0 ro E 0 U C ro M 0 ro N N O O fl— Lq N U_ O O N co tl- Lq L0 N M O O O O Q c ro s W.