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ORD 20-005ORDINANCE NO. 20-005 AN ORDINANCE OF ITM CITY OF CAMAS, WASHINGTON GRANTING CELLCO PARTNERSHIP D/B/A VERIZON WIRELESS A NON-EXCLUSIVE FRANCHISE FOR TEN YEARS, TO CONSTRUCT, MAINTAIN, OPERATE, REPLACE AND REPAIR A TELECOMMUNICATIONS SYSTEM, IN, ALONG, UNDER, THROUGH AND BELOW PUBLIC RIGHTS-OF-WAY OF THE CITY OF CAMAS, WASHINGTON WHEREAS, Verizon, through its wholly owned subsidiary Cellco Partnership d/b/a Verizon Wireless ("VZW") has requested a non-exclusive franchise with the City of Camas ("City") for a period of ten years for the operation of a telecommunications system within the City Right -of --Way; and WHEREAS, RCW 35A.11.020 grants the City broad authority to regulate the use of the public Right -of --Way; and WHEREAS, RCW 35A.47.040 grants the City broad authority to grant non-exclusive franchises; and WHEREAS, VZW wishes to construct, operate and maintain a telecommunications system within the City Right -of -Way; and WHEREAS, the City Council finds that itis in the best interests of the health, safety and welfare of residents of the Camas community to enter into a non-exclusive franchise with VZW for the operation of a telecommunications system within the City Right -of --Way. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CAMAS, WASHINGTON, DO ORDAIN AS FOLLOWS: Section I Grant of Franchise The Franchise as set forth in the Franchise Agreement att ached hereto as Exhibit "A" is hereby granted according to its terms. Section II This ordinance shall take effect five (5) days after its publication according � o law. PASSED by the Council and APPROVED by the Mailor this 5th dat Bf Odl� ber, SIGNED: ATTEST: �� Clerk AP Das to form: City Attorney EXHIBIT FRANCHISE AGREEMENT FOR THE INSTALLATION AND MAINTENANCE OF TELECOMMUNICATIONS FACILITIES IN THE CITY OF CAMAS, WASHINGTON Parties: City of Camas, a Washington Municipal Corporation ("City") Cellco Partnership d/b/a Verizon Wireless, a Delaware limited liability company ("VZW"). In consideration of the mutual promises set forth herein, the parties agree as follows: Section 1. Definitions The following terms contained herein, unless otherwise indicated, shall be defined as follows: 1.1 VZW: Cellco Partnership d/b/a Verizon Wireless and its respective successors and assigns. 1.2 City: The City of Camas, a municipal corporation of the State of Washington, specifically including all areas incorporated therein as of the effective date of this ordinance and any other areas later added thereto by annexation or other means. 1.3 Days: Calendar days. 1.4 Facilities: All ofthe equipment, fixtures, appurtenances, and other facilities necessary to furnish and deliver Telecommunications Services, including but not limited to all optical converters, remote radios, multiplexers, antennas, transmitters, receivers, equipment boxes, backup power supplies, power transfer switches, cut-off switches, electric meters, coaxial cables, fiber optic cables, conduit, wires, telecom demarcation boxes and related materials and equipment; and any and all other equipment, appliances, attachments, appurtenances and other items necessary or incidental to distribution and use of Telecommunications Services and all other facilities associated with the Telecommunications System located in the Right -of --Way, utilized by VZW in the operation of activities for small cell facilities authorized by this Ordinance. The abandonment by VZW of any Facilities as defined herein shall not act to remove the same from this definition. 1.5 Franchise: This document and any amendments or modifications hereto. 1.6 Permitt ing Authority: The head of the City department authorized to process and grant permits required to perform work in the City's Right -of --Way, or the head of any agency authorized to perform this function on the City's behalf. Unless otherwise indicated, all references to Permitting Authority shall include the designee of the department or agency head. 1.7 Person: An entity or natural person. 1.8 Public Works Director or Director: The head of the Public Works department of the City, or in the absence thereof, the acting director, or the designee of either of these individuals. 5.1 Any other permit or authorization required for the privilege of transacting and carrying on a business within the City that may be required by the ordinances and laws of the City; 5 .2 Any permit, agreement or authorization required by the City for Rights -of --Way users in connection with operations on or in Rights -of- Way or public property; or 5.3 Any pernlits or agreements for occupying any other property of Y or private enes to which access is not specifically granted by this Franchise. Section 6. Conveyance of Rights. This Franchise is intended to convey limited rights and interests only as to those Rights -of --Way in which the City has an actual interest. It is not a warranty of title or interest in any Rights -of --Way; it does not provide VZW with any interest in any particular location within the Rights -of -Way; and it does not confer rights other than as expressly provided in the grant hereof. Section 7. No Waiver. The failure of City on one or more occasions to exercise a right or to require compliance or performance under this Franchise or any other applicable state or federal law shall not be deemed to constitute a waiver of such right or a waiver of compliance or performance by the City nor to excuse VZW from complying or performing, unless such right or such compliance or performance has been specificallywaived in writing. Section 8. Other Ordinances. VZW agrees to comply with the terms of any lawful, generally applicable local ordinance, in effect upon adoption of this Franchise or as enacted or modified thereafter. In the event of a conflict between any ordinance and a specific provision of this Franchise, the Franchise shall control, provided however that VZW agrees that it is subject to the lawful exercise of the police power of the City. If any federal or state laws or regulations or any binding judicial interpretations thereof that govern Lily aspect of the rights or obligations of one or more parties under this Franchise shall change after the Effective Date and such change makes any aspect of such rights or obligations inconsistent with the then -effective federal or state laws, regulations or binding judicial interpretations, then the parties agree to promptly amend this Franchise as reasonably required to accommodate and/or ensure compliance with any such legal or regulatory change. Section 9. Right -of --Way Vacation. If any Right -of --Way or portion thereof used by VZW is vacated by the City during the term of this Franchise, the City shall endeavor to specifically reserve the continued use of the Right -of -Way by VZW. Unless the City specifically reserves to VZW the right to continue the use of vacated Rights - of -Way, VZW shall, without delay or expense to the City, remove its facilities from such Right -of - Way and restore, repair or reconstruct the Right -of -Way where such removal occurred. In the event of failure, neglect or refusal of VZW to restore, repair or reconstruct such Right -of --Way after thirty (30) days written notice from the City, the City may do such work or cause it to be done, and the reasonable cost thereof shall be paid by VZW within thirty (30) days of receipt of an invoice and documentation. Section 10. Relocation of Facilifies. 10.1 VZW agrees and covenants at no cost to the City, to relocate its Facilities when requested to do so by the City for a public project, provided that, VZW shall in all such cases have the privilege, upon approval by the City, which approval shall not be unreasonably withheld, delayed, or Section 11. VZW's Maps and Records. Upon the City's request, VZW shall provide the City with typicals and as -built plans, maps, and records that show the vertical and horizontal location of its Facilities within the Right -of --Way using a minimum scale of one inch, equals one hundred feet (1 "=100'), measured from the center line of the Right -of -Way, which maps shall be in hard copy format reasonably acceptable to the City and in other digital electronic format reasonably acceptable to the City. Section 12. Undergrounding. 12.1 This Franchise is subject to the Undergrounding requirements as may be required or later adopted by the Camas Municipal Code and consistent with applicable federal and Washington State law. VZW shall install all of its Facilities (excluding antennas, equipment cabinets, cabling, and other equipment that must be above -ground in order to be functional) underground where all adjacent existing telecommunications and cable facilities are located underground. Any new Facilities to be located above -ground shall be placed on existing utility poles. No new utility poles shall be installed in connection with placement of new above -ground Facilities, unless otherwise agreed by the City. 12.2 VZW will also share information necessary to facilitate joint -trenching and other Undergrounding projects, andwill otherwise cooperate with the City and other utility providers to serve the objective to maximize utility undergrounding where possible or as required. Section 13. Service to Public Buildings (intentionally blank) Section 14. Excavafion and Notice of Entry. 14.1 During any period of relocation or maintenance, all surface structures, if any, shall be erected and used in such places and positions within the Right -of --Way so as to minimize interference with the passage of traffic and the use of adjoining property. VZW shall at all times post and maintain proper barricades and comply with all applicable safety regulations during such period of construction as required by the ordinances of the City or State law, including RCW 39.04.180, for the construction of trench safety systems. 14.2 Whenever VZW excavates in any Right -of --Way for the purpose of installation, construction, repair, maintenance or relocation of its Facilities, it shall apply to the City fora permit to do so in accordance with the ordinances and regulations of the City requiring permits to operate in the Right - of -Way. In no case shall any work commence within any Right -of -Way without a permit. During the progress of the work, VZW shall not unnecessarily obstruct the passage or use of the Right -of --Way, and shall provide the City with plans, maps, and information showing the final location of any Facilities in accordance with Section 11 of this Franchise. 14.3 At least five (5) days pri or to construction of Facilities consisting of digging, trenching, cutting, or other activities that may impact the utilization of the Right -of --Way for more than a four (4) hour period, VZW shall take reasonable steps to inform all apparent owners or occupiers of property within fifty (50) feet of said activities that a construction project will commence. The notice shall include, at a rummium, the dates and nature of the project and a toll-free or local telephone number that the resident may call for further information. A pre-printed door hanger may be used to satisfy VZW's obligations under this Section of this Franchise. Section 18. Dangerous Conditions, Authority for City to Abate. 18.1 Whenever installation, maintenance or excavation of Facilities authorized by this Franchise causes or contributes to a condition that appears to substantially impair the lateral support of the adjoining Right -of --Way, public or private property, or endangers any person, the City may direct VZW, at VZW's expense, to take reasonable actions to resolve the condition or remove the endangerment. Such directive may include compliance within a prescribed time period. 18.2 In the event VZW fails or refuses to promptly take the directed action, or fails to fully comply with such direction or if emergency conditions exist which require immediate action to prevent injury or damages to persons or property, the City may take such actions as it believes are reasonably necessary to protect persons or property and VZW shall reimburse the City for all costs incurred. Section 19. Safety. 19.1 VZW, in accordance with applicable federal, State, and local safety rules and regulations shall, at all times, employ ordinary care in the installation, maintenance, and repair of its Facilities utilizing methods and devices commonly accepted in their industry of operation to prevent failures and accidents that are likely to cause damage, injury, or nuisance to persons or property. 19.2 All of VZW's Facilities in the Right -of --Way shall be constructed and maintained in a safe and operational condition, in accordance with applicable federal, State, and local safety rules and regulations. 19.3 The City reserves the right to ensure that VZW's Facilities are constructed and maintained in a safe condition. If a violation of any applicable safety regulation is found to exist, the City will notify VZW in writing of said violation and establish a reasonable time for VZW to take the necessary action to correct the violation. If the correction is not made within the established time frame, the City, or its authorized agent, may make the correction. VZW shall reimburse the City for all reasonable costs incurred by the City in correcting the violation. Section 20. Authorized Activities. This Franchise is solely for the location, construction, installation, ownership, operation, replacement, repair, maintenance, acquisition, sale, lease, and use of the Telecommunications System and associated Facilities for providing Telecommunications Services. VZW shall obtain a separate franchise for any operations or services other than these authorized activities. Section 21. Administrative Fee and Utility Tax. 21.1 Pursuant to RCW 35.21.860, the City is precluded from imposing franchise fees upon a telephone business, as defined in RCW 82.16.010, or a Service Provider for use of the Right -of- Way, as defined in RCW 35.99.010, except a utility tax or actual administrative expenses related to the Franchise incurred by the City. VZW does hereby warrant that its operations, as authorized under this Franchise, are those of a Service Provider as defined in RCW 35.99.010. 21.2 VZW shall be subject to a $5,000 administrative fee for reimbursement of costs associated with the preparation, processing and approval of this Franchise Agreement, including wages, benefits, overhead expenses, meetings, negotiations and other functions related to the approval. The administrative fee excludes normal permit fees required for work, in the Right -of- Way. Payment of 24.3 Scope of Insurance. VZW shall obtain insurance of the types and coverage described below: 24.3.1 Commercial General Liability insurance shall be at least as broad as Insurance Services Office (ISO) occurrence form or its equivalent and shall cover liability arising from premises operations, products -completed operations, and stop -gap liability. There shall be no exclusion for liability arising from explosion, collapse or underground property damage. The City shall be included as an additional insured as their interest may appear under this Agreement, under VZW's Commercial General Liability insurance policy using ISO Additional Insured -State or Political Subdivisions -Permits CG 20 12 or a substitute endorsement providing at least as broad coverage. 24.3.2 Automobile Liability insurance covering all owned, non -owned, hired and leased vehicles. Coverage shall be at least as broad as Insurance Services Office (ISO) form or its equivalent. 24.4 Amounts of Insurance. VZW shall maintain the following insurance limits: 24.4.1 Commercial General Liability insurance shall be written with limits of $5,000,000 each occurrence for bodily injury and property damage, and $5,000,000 general aggregate, including $5,000,000 products -completed operations aggregate limit 24.4.2 Automobile Liability insurance with a combined single limit for bodily ury and property damage of $5,000,000 per accident. 24.5 Other Insurance Provision. VZW's Commercial General Liability insurance policy shall be primary insurance as respect the City. Any Insurance, self-insurance, or self-insured pool coverage maintained by the City shall be excess of the VZW's insurance and shall not contribute with it. 24.6 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII. 24.7 Verification of Coverage. VZW shall furnish the City with original certificates and a copy of the blanket additional insured endorsements, evidencing the insurance requirements of VZW before the issuance of any penult. 24.8 Notice of Cancellation. Upon receipt of notice fr om its insurer(s), VZW shall provide the Public Entity with written notice of any policy cancellation, within two business days of their receipt of such notice. 24.9 Failure to Maintain Insurance. Failure on the part of VZW to maintain the insurance as required shall constitute a material breach of the Franchise Agreement entitling the City to Liquidated Damages under Section 29, below, or such other and further relief provided for herein or by law. Alternatively, the City may, after giving thirty (30) days' notice to VZW to correct the breach, immediately terminate the Franchise. Section 25. Abandonment of VZW's Facilities. No portion of the Facilities laid, installed, or constructed in the Right -of --Way by VZW may be abandoned by VZW without the express written consent of the City. Any plan for abandonment or such repaired streets by the City. VZW may meet the obligations of this Section of this Franchise with one or more bonds reasonably acceptable to the City. In the event that a bond issued pursuant to this Section of this Franchise is canceled by the surety, after proper notice and pursuant to the terms of said bond, VZW shall, prior to the expiration of said bond, procure a replacement bond which complies with the terms of this Section of this Franchise. Section 28. Recourse Against Bonds and Other Security. So long as the bond is in place, it may be utilized by the City as provided herein for reimbursement of the City by reason of VZW's failure to pay the City for actual costs and expenses incurred by the City to make emergency corrections under Section 17 of this Franchise, to correct Franchise violations not corrected by VZW after notice, and to compensate the City for monetary remedies or damages reasonably assessed against VZW due to material default or violations of the requirements of City ordinances. 28.1 In the event VZW has been declared to be in default of a material provision of this Franchise by the City and if VZW fails, within thirty (30) days after VZW's receipt of default notice, to pay the City any penalties, or monetary amounts, or fails to perform any of the conditions of this Franchise, or fails to begin to perform any condition that may take more than 30 days to complete, the City may thereafter obtain from the bond, after a proper claim is made to the surety, an amount sufficient to compensate the City for its damages. Upon such withdrawal from the bond, the City shall notify VZW in writing, by First Class Mail, postage prepaid, of the amount withdrawn and date thereof. 28.2 Thit-ry (30) days after the City's mailing of notice of the bond forfeiture or withdrawal authorized herein, VZW shall deposit such further bond, or other security, as the City may require, which is sufficient to meet the requirements of this franchise. 28.3 The rights reserved to the City with respect to any bond are in addition to all other rights of the City, whether reserved by this Ordinance or authorized by law, and no action, proceeding, or exercise of a right with respect to any bond shall constitute an election or waiver of any rights or Aber remedies the City may have. Section 29. Liquidated Damages. 29.1 The City and VZW recognize the delays, expense and unique difficulties involved in proving in a legal preceding the actual loss suffered by the City as a result of VZW's breach of certain provisions of this Franchise. Accordingly, instead of requiring such proof, the City and VZW agree that VZW shall pay to the City, the sum set forth below for each day or part thereof that VZW shall be in breach of specific provisions of this Franchise. Such amount is agreed to by both parties as a reasonable estimate of the actual damages the City would suffer in the event of VZW's breach of such provisions of this Franchise. 29.1.1 Subject to the provision of written notice to VZW and a thirty (30) day right to cure period, the Ciry may assess against VZW liquidated damages as follows: two hundred dollars ($200.00) per day for any material breach as specified in this Franchise. 29.1.2 The City shall provide VZW a reasonable extension of the thirt y (30) day right to cure period described in Section 28.1 of this Franchise if VZW has commenced work to cure the violation, is diligently and continuously pursuing the cure to completion and requested such an extension, provided Section 35. Survival. All of the provisions, conditions and requirements of Sections 10, Relocation of Facilities; 13, Excavation And Notice Of Entry; 17, Dangerous Conditions; 22, Indemnification; 24, Abandonment of VZW's Facilities; and 25, Restoration After Construction, of this Franchise shall be in addition to any and all other obligations and liabilities VZW may have to the City at common law, by statute, or by contract, and shall survive the City's Franchise to VZW and any renewals or extensions thereof. All of the provisions, conditions, regulations and requirements contained in this Franchise Ordinance shall further be binding upon the heirs, successors, executors, administrators, legal representatives and assigns of the parties and all privileges, as well as all obligations and liabilities of each party shall inure to its heirs, successors and assigns equally as if they were specifically mentioned wherever such party is named herein. Section 36. Severability. If any section, sentence, clause or phrase of this Franchise Ordinance should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause or phrase of this Franchise Ordinance. In the event that any of the provisions of this Franchise Ordinance or of this Franchise are held to be invalid by a court of competent jurisdiction, the City reserves the right to reconsider the grant of this Franchise and may amend, repeal, add, replace or modify any other provision of this Franchise Ordinance or of the Franchise granted herein, or may terminate this Franchise. Section 37. WUTC Tariff Filings, Notice Thereof. If VZW intends to file, pursuant to RCW Chapter 80.28, with the Washington Utilities and Transportation Commission (WUTC), or its successor, any tariff affecting the City's rights arising under this Franchise, VZW shall provide the City with fourteen (14) days prior written notice. Section 38. Binding Acceptance. This Franchise shall bind and benefit the parties hereto and their respective successors and assigns. Section 39. Assignment. 39.1 This Franchise shall not be sold, transferred, assigned, or disposed of in whole or in part either by sale or otherwise, without the written approval of the City. The City's approval shall not be unreasonably withheld or delayed. Any reasonable costs associated with the City's review of any transfer proposed by VZW shall be reimbursed to the City by the new prospective Franchisee, if the City approves the transfer, or by VZW if said transfer is not approved by the City. 39.2 Notwithstanding the foregoing, VZW may assign this Franchise, or its rights or obligations to any person or entity controlling, controlled by, or under common control with VZW as of the date of such assignment. VZW shall provide notice of any such assignment to the City. Section 40. Alternate Dispute Resolution. If the City and VZW are unable to resolve disputes arising from the terms of the Franchise granted herein, prior to resorting to a court of competent jurisdiction, the parties shall submit the dispute to an alternate dispute resolution process in Clark County agreed to by the parties. Unless otherwise agreed between the parties or determined herein, the cost of that process shall be shared equally. Either party can alter their official address for notifications provided in this Section of this Franchise by providing the other party written notice thereof. Section 44. Directions to City Clerk. The City Clerk is hereby directed to publish this Ordinance in full and forward certified copies of this ordinance to VZW. VZW shall have thirty (30) days from receipt of the certified copy of this ordinance to execute this Franchise Agreement. If VZW fails to execute this Franchise in accordance with the above provisions, this Franchise shall be null and void. Section 45. Publication Costs. VZW shall reimburse the City for the cost of publishing this Franchise ordinance within thirty (30) Days of receipt of the City's invoice. Section 46. Effective Date. This ordinance shall take effect and be in full force five (5) Days after the date of publication. VZW Cellco Partnership d/b/a Verizon Wireless, a Delaware limited liability company By: _ Name: Title: PASSED BY THE CITY COUNCIL ON ATTEST: City Clerk APPROVED AS TO FORM: City Attorney City City of Camas, a Washington Municipal Corporation by Barry McDonnell, Mayor 2020.