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2639u ^J u ORDINANCE NO.2639 AN ORDINANCE GRANTING TO US SPRINT COMMUNICATIONS COMPANY,A NEW YORK GENERAL PARTNERSHIP,ITS SUCCESSORS OR ASSIGNS,A FRANCHISE TO OWN, OPERATE, AND MAINTAIN A BURIED COMMUNICATIONS SYSTEM AND MAINTAIN THAT PORTION OF RIGHT-OF-WAY TO CITY STANDARDS ABOVE AND AROUND THE COMMUNICATIONS SYSTEM THE CITY COUNCILOF THE CITY OF MOSES LAKE,WASHINGTON DOORDAIN AS FOLLOWS: Section 1.Location of Franchise:US Sprint,a NewYork General Partnership (Grantee),isgranted the right, privilege and franchise to construct a buried communication system, sometimes referred to herein as "facilities",whichhasbeen approved bythe City ofMoses Lakeasto location along andunderthe public right- of-ways of said City;to operate and maintain the communication system and to provide perpetual maintenance of the portions of the right-of-ways disturbed by construction and maintenance of the said system.This franchise is a non-exclusive grant. Section 2.Term:The rights,privileges,and franchise hereby granted to and conferred uponthe Grantee shall,unless this franchisebe sooner terminated,extend until 11:59 p.m.on December 23,2037,a period of twenty-five (25)years from the expiration of the previous grant of franchise set forth in City of Moses Lake Ordinance No.1298,and the Grantee shall,within thirty (30) days after the date of the passing of this ordinance,file withthe Finance Director,itswrittenacceptance of allterms and conditionsof this ordinance, and ifsuch acceptance is not filed as herein provided,this ordinanceshallbe null and voidinall respects as if never passed. Section 3. Assignment: The rights granted by this ordinance inure to the benefit of the Grantee, and any parent, subsidiary,affiliate,or any successor entity now or hereafter existing.The rights shall not be assignable without the express written consent of the governing body of the City of Moses Lake,except Grantee may assign itsrightsunder thisordinance toa parent,subsidiary,affiliate,or successorentitywithout such consent so longas (1) such parent, subsidiary,affiliate,or successor entity assumes allobligations of Grantee hereunder,(2) is bound to the sameextentas Grantee hereunder,and (3)notice ofsuch assignment is transmitted to the City of Moses Lake at least thirty (30)days priorto its effective date. Any required consent is to be evidenced by an ordinance or resolution of the governing body of the City that fully recites the terms and conditions,if any,upon which consent is given. Section 4. Contractual Relationships: This ordinance and written acceptance thereof by the Grantee shall constitute the contract between the Cityof Moses Lake and the Grantee and the same shall be bindingupon and inureto the benefit of the Grantee, its successors and assigns,under the conditions herein imposed. Section 5. Non-interference: All facilities of the Grantee shall be placed insuch a manner as not to interfere with any present publicor private irrigationor drain ditches,drains,sewers,water mains,conduits,sidewalks, paving, curbs, gutters, signs, landscaping, or other public improvements,and all repairs thereto or replacements requiredshallbe accomplished as providedinSection 5. The Cityof Moses Lake reserves the right toconstruct, change, orrepairany publicimprovements,and to changethe grades ofanystreets, alleys, or sidewalks;written notice of such intention to change any streets, alleys,or sidewalks, where any partor parts of the communication system of the Grantee may be involved, shall be first given the Grantee, and if any changes orrepairsare required,the Grantee shall,atitsown expense,lower,change, oralterits facilities as necessary,and in accordance with the standard engineering practice and any regulations pertaining thereto; and, the Grantee shall not interferewiththe conduits, water lines, drains,sewers,sidewalks, paving, or other publicutilities or City operated utilities therein. No pipe orconduit shall be laid closer than two feet (2')to any water main orother pipe orconduit of other utilities,except bywritten permission of the City. Section 6.Hold Harmless:All earth,materials,sidewalks,paving,crossings, orimprovements of any kind, disturbed,injured,orremoved bythe Grantee shallbe fully repairedorreplaced promptlybythe Grantee, and the Grantee shall protectand save the Cityharmless forany loss or damages thereon. The Grantee shall further be requiredtoconformtoanyordinanceofthe Cityof Moses Lakewithreference tocuttingany streets or sidewalks and the replacement thereof. Repairs,replacement,or maintenance of City owned facilities within the right-of-way necessitated because of the disturbance thereof shall be the responsibility of the Grantee to repair, replace, or maintain during the term of this franchise. ORDINANCE NO.2639 Page 2 November 22,2011 Section 7.Maps and Records:The Grantee shall at all timeskeepmapsand records showing the locations /""*\ and sizes of allfacilities placed by itor owned by itinthe City, and such maps and records shall be furnished to the officials of the Cityof Moses Lake at allreasonable times.The Grantee shall provide a location service or contract with some local utilityto provide local utilities and excavators with the location in the field of its buried cables upon request. This location service providedbythe Grantee shall have a twenty-four (24) hour telephone numberanswering service and be available for emergency location seven (7)days per week inthe field.Emergency locate service is defined as being able to locate buriedutility facilities within four(4) hours after receiving a request. Section 8.Reasonable Rules:The Grantee, its successors and assigns,may make such reasonable rules and regulations for the protection of its property for the service and charges to its customers,for the prevention of loss and waste,for safety purposes,for the conduct and operation of its business as may be advisable or necessary fromtime to time,all inaccordance herewithand inconformitywithexisting lawsand regulations. Section 9. Defaultand Forfeiture:In case of failure on the partofthe Grantee, its successors orassigns, to complywithany of the provisionsof this ordinance,orifthe Grantee, its successors or assigns,do or cause to be done, any act or thing prohibited by or in violation of the terms of this ordinance,the Grantee,its successorsorassigns,shall forfeit allrightsand privilegesgranted bythisordinance, and allrightsthereunder shallcease;providedthat such forfeitureshallnotoccur nortake effect until the Cityof Moses Lake shallcarry out the following proceedings: A.Beforethe City may proceed to forfeit this franchise,itshall serve,by certified mail, at the lastaddress provided by the Grantee,a written notice upon the Grantee,its successors or assigns,setting forth clearly and indetail the failureorviolation complained of and the Grantee,its successors or assigns, shall have ninety (90)days thereafter in which to comply with the conditions of this franchise. B.Ifsuch failureor violation continues beyond said ninety (90)days,then the City Council ofthe City of Moses Lake,at its sole discretion,shall have the right to forthwith determine that this franchise is /""N forfeited.Said determination shall bemade,however,only upon proof established tothe satisfaction f ' ofthe City Council. C.Provided,however,that such failure or default or violation, shall not constitute grounds for forfeiting of this franchise if due materially,substantially and reasonably to acts of God,fire,flood,storm or other element or casualty, theft, war, disaster, strike, lockout, boycott, prevailing war or war preparation induced conditionsorbona fidelegalproceedings beyond the controlof the Grantee, its successors or assigns. Section 10.Liability and Indemnification:The Grantee,by its use of this rightand privilege,covenants and agreeswith theCity toat all times protect andsave harmless theCity from all claims,accidents,suits,liability, loss,expense ordamage of any kind and description which mayaccrueto orbe sufferedbyany person or persons,firm,corporation orto any building for any damage arising out of the ownership,excavation, installation,construction,repair or operation of said system orany act done bythe Grantee underthis right and privilege.Notwithstanding the above,Grantee shall not hold the City harmless from any claims, accidents,suits,liability,loss,expense, ordamageas a result ofthe negligent acts oromissionsorthe City, its employees,agents,or contractors. The Grantee further agrees as follows: A. Granteeshallcarry comprehensive generalliability andcomprehensive automobileliability insurance with bodily injury limits ofnotlessthanone million dollars ($1,000,000)peroccurrence,and property damage limits of not less than one million dollars ($1,000,000). B. Grantee'sComprehensiveGeneral Liability andComprehensiveAutomobile Liability Insurance shall be written byan insurance companywith a Best B+rating orhigher andbe qualified todo business inthe State ofWashington. Granteeagrees to furnish the City withcertified copies of Certificates of Insuranceof said policies,whichshall provide thatinsuranceshallnotbe canceled unless thirty (30)x-vdayspriorwrittennoticeshallfirstbegiventotheCity.') w ^ w ORDINANCE NO.2639 Page 3 November 22,2011 C. The City has the right toadjustthe limits ofinsuranceeveryfive (5)years to maintain coverage within a direct ratio with any inflationary changes in the economy. Section 11.Taxes and Fees: The Grantee shall,during each year ofoperation under this franchise,payto the City the utility tax in accordance with the City of Moses Lake's Municipal Code Title 3,now existing or hereafter amended,if applicable. The Grantee will supply an annual statement of revenues received from any service provided by them within the city limits of Moses Lake. Section 12.Severability:Inthe event that any sentence,clause, paragraph, or section of this ordinance be heldvoid by any court,it shallnotaffectthe balance thereof,and thisordinanceshallbecome effective upon passage and approvalbythe City ofMosesLakeand itsacceptance in writing by USSprintwhich acceptance must be filed within thirty (30)days after the passage and approvalbythe City Council ofthe City of Moses Lake,Washington. Adopted by the CityCouncil and signed by its Mayoron December 22,2011 ATTEST:Jon Lknj^Mayor z?y^ Ronald R.Cone,Finance Director APPROVED AS TO FORM: