Chapter 5.40


5.40.010    Short title.

5.40.020    Purpose and intent.

5.40.030    Definitions.

5.40.040    Franchise grant.

5.40.050    Franchise purposes.

5.40.060    Nonexclusive franchises.

5.40.070    Competitive equity.

5.40.080    Application.

5.40.090    Duration.

5.40.100    Franchise area.

5.40.110    Use of rights-of-way.

5.40.120    Site fee agreements.

5.40.130    Fees and charges.

5.40.140    Taxes.

5.40.150    Police powers and rules and regulations of the City.

5.40.160    Delegation of powers.

5.40.170    Technical standards.

5.40.180    Safety requirements.

5.40.183    Primary contact named.

5.40.185    Subcontractors named.

5.40.190    Construction standards.

5.40.200    Location and relocation.

5.40.210    Street cut or repair.

5.40.220    Security for performance.

5.40.230    Insurance.

5.40.240    Reasonable notice required.

5.40.250    Reimbursement.

5.40.260    Franchise extension.

5.40.270    Franchise revocation.

5.40.280    Customer service.

5.40.290    Conditions of sale.

5.40.300    Previous rights abandoned.

5.40.310    Acceptance.

5.40.320    Conflicts.

5.40.330    Time is of the essence.

5.40.340    Indemnification and hold harmless.

5.40.010 Short title.

This chapter shall constitute the “cable, telecommunications, natural gas, fiber, electric, and wireless communication facility franchise regulations” of the City of Ferndale and may be referred to as such. (Ord. 2015 § 1 (Exh. 1), 2017)

5.40.020 Purpose and intent.

A.    The purpose and intent of this chapter is to broadly define and describe the requirements of the City of Ferndale with respect to a variety of private and quasi-public agencies and businesses generally known as utility companies, that own and/or operate infrastructure within the City of Ferndale. All franchise agreements adopted by the City in accordance with this chapter shall incorporate the requirements of this chapter into the specific agreements.

B.    This chapter is further intended to establish basic guidelines for individual franchise agreements between the City and each of these agencies or businesses, thereby providing consistency between agreements.

C.    Individual franchise agreements shall contain additional and more specific definitions, terms, and requirements when consistent with this chapter so as to clarify rights and limitations that are appropriate to the type of franchise being proposed.

D.    The City intends to limit the use of the public right-of-way to those uses which depend upon the right-of-way for travel, emergency operations, and the conveyance of utilities, both public and private. It is not the policy of the City of Ferndale to allow public or private utilities to utilize the public right-of-way primarily for the purpose of avoiding the use or acquisition costs associated with private property.

E.    This chapter is intended to facilitate the daily operations of utilities subject to adopted franchise agreements while also ensuring that new installations are properly vetted. (Ord. 2015 § 1 (Exh. 1), 2017)

5.40.030 Definitions.

For the purposes of this chapter, the following words, terms, phrases and their derivations have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future tense, words in the singular number include the plural number and words in the plural number include the singular number.

A.    “Applicant” means any person or entity that applies for an initial franchise.

B.    “City” means the City of Ferndale, a municipal corporation of the state of Washington, and all of the area within its boundaries, as such may change from time to time.

C.    “City Council” means the Ferndale City Council, or its successor, the legislative body of the City.

D.    “Complaint” means a subscriber or customer contact with the franchisee to express a grievance or dissatisfaction concerning the service provided by the franchisee. Complaints may include matters within the regulatory control of the City, but shall also include matters related to the effectiveness of customer service and associated responses (or lack thereof) from the franchisee. A complaint may be verbal or in writing but need not include initial contacts where an issue is promptly resolved to the subscriber’s or customer’s satisfaction.

E.    “Cost” means any actual, reasonable, and documented costs, fees, or expenses including but not limited to attorneys’ fees.

F.    “Day” means calendar day(s) unless otherwise specified.

G.    “Encroachment permit” (also “revocable encroachment permit”) means a permit issued by the City authorizing work within the public right-of-way and/or work associated with utilities either within a public right-of-way and/or a recorded easement, an implied easement, or any other location. Encroachment permits shall act as the primary authorization for specific work in these areas.

H.    “Emergency situation” means an event involving possible loss of life or substantial property damage or any other event which could result in severe financial consequences to the City, its citizens, or businesses, as determined by the City in good faith.

I.    “FCC” means the Federal Communications Commission or any legally appointed or designated agent or successor.

J.    “Franchise facilities” means the franchisee’s system constructed and operated within the City’s rights-of-way, and shall include all cables, wires, pipes, valves, conduits, ducts, pedestals, WCFs, and any associated converter, equipment or any other infrastructure within the City’s rights-of-way, designed and constructed for the purpose of providing those services identified within the relevant franchise agreement.

K.    “Franchise” means the right granted by the City to a person or entity to construct, operate, maintain or reconstruct cable, telecommunications, electricity, natural gas, fiber, or wireless communication facilities as described by an associated franchise agreement in City rights-of-way.

L.    “Franchise agreement” means an agreement adopted by ordinance that grants a person or entity the right to a franchise. Upon the written acceptance by a franchisee, the franchise agreement constitutes a contract between the City and the franchisee which may contain terms and requirements not contained herein. To the extent that this chapter conflicts with the specific terms of a franchise agreement, the terms of the franchise agreement shall govern.

1.    “Initial franchise” means the first franchise agreement between the City and a franchisee, or the first franchise agreement adopted five years or more following expiration of a previous agreement.

2.    “Franchise amendment” means modifications made within the valid term of a franchise agreement.

3.    “Franchise extension” means modifications made or time periods extended for a franchise agreement at the conclusion of the original term.

M.    “Franchise area” means the area within the jurisdictional boundaries of the City to be served by a franchisee, including any areas annexed by the City during the term of a franchise agreement.

N.    “Franchisee” means the person, firm, corporation or entity to whom or which a franchise, as hereinabove defined, is granted by the City Council under this chapter and the lawful successor, transferee or assignee of said person, firm, corporation or entity.

O.    “Laws” means any federal, state, or municipal code, statute, ordinance, decree, executive order, governmental approval, permit or similar that relates to the discipline(s) associated with the franchisee or its system.

P.    “Maintain” or “maintenance” means the repair, restoration, replacement, renovation, update, and testing of the system or components thereof to ensure that it operates in a safe and reliable manner and utilizes current technologies, as required by the franchise agreement.

Q.    “Right-of-way” or “rights-of-way” means the surface of and the space above and below all of the following which have been dedicated to the public or are hereafter dedicated to the public and maintained under public authority or by others and are located within the City: streets, roadways, highways, avenues, lanes, alleys, bridges, sidewalks, easements and similar public property and areas. In the case of any grant of authority or permission by the City to a franchisee, however, this term shall not exceed the scope of the City’s interests or power to extend such grant.

R.    “Site fee agreement” means an addendum to a franchise agreement establishing the site-specific right-of-way fee required for the City use of City right-of-way for the installation and maintenance of a franchise facility, to the extent such a fee is allowed by RCW 35.21.860.

S.    “System” means a franchisee’s franchise facilities, throughout the City.

T.    “Wireless communication facility” or “WCF” means facilities for the provision of wireless service. Wireless communication facilities include, but are not limited to, antennas, poles, towers, cables, wires, conduits, ducts, pedestals, vaults, buildings, backup generators, and electronic and switching equipment. When this chapter conflicts with Chapter 18.66 FMC, Chapter 18.66 FMC shall prevail.

U.    “Wireless operator” means any person or group of persons, including a franchisee, who provide(s) wireless service over a wireless communication facility and directly or through one or more affiliates owns a significant interest in such wireless communication facility or who otherwise control(s) or are (is) responsible for, through any arrangement, the management and operation of such a wireless communication facility. (Ord. 2015 § 1 (Exh. 1), 2017)

5.40.040 Franchise grant.

It is unlawful to engage in or commence construction, operation, or maintenance of franchise facilities, machinery or equipment in City rights-of-way without a franchise issued under this chapter. The City Council may, by ordinance, issue a nonexclusive franchise to construct, operate and maintain a franchise and related infrastructure within all or any portion of the City to any person or entity, whether operating under an existing franchise or not, who applies for authority to do so in compliance with the terms and conditions of this chapter; and provided, that such person or entity also agrees to enter into a franchise agreement with the City and comply with all of its terms. However, this shall not be deemed to require the grant of a franchise to any particular person or entity. The City Council may restrict the number of franchisees, should it determine such a restriction would be in the public interest or for any other valid reason, if such restriction is otherwise allowed by applicable laws. The franchise required under this chapter is separate from and in addition to the general City business license issued under Chapter 5.04 FMC, which may also be required when applicable. (Ord. 2141 § 7, 2020; Ord. 2015 § 1 (Exh. 1), 2017)

5.40.050 Franchise purposes.

A franchise granted by the City under the provisions of this chapter shall:

A.    Permit the franchisee to engage in or commence construction, operation, or maintenance of cable, telecommunications, natural gas, electricity, and wireless communication facilities within the City;

B.    Permit the franchisee to erect, install, construct, repair, reconstruct, replace and retain wires, cables, pipes, valves, WCFs, related electronic equipment, conduits and other property in connection with the operation of cable, telecommunications, natural gas, electricity, and wireless communication facilities specific to the franchise agreement in rights-of-way within the City; and

C.    Set forth the obligations of the franchisee under the franchise. (Ord. 2015 § 1 (Exh. 1), 2017)

5.40.060 Nonexclusive franchises.

A.    Any franchise granted pursuant to this chapter shall be nonexclusive and not preclude the City from granting other or future franchises or permits.

B.    All franchisees shall at all times comply with all applicable state, federal and local laws, regulations and rules regarding the discipline(s) identified and described within the franchise agreement. Compliance shall not preclude a lawful challenge. (Ord. 2015 § 1 (Exh. 1), 2017)

5.40.070 Competitive equity.

A.    All franchisees shall acknowledge and agree that the City reserves the right to grant additional franchises to provide similar service within the franchise area; provided, the City agrees that it shall consider amending existing franchise agreements to include any material terms or conditions that it makes available to any new entrant within 90 days of a franchisee’s written request, so as to ensure that the regulatory and financial burdens on each entity are materially equivalent.

1.    All franchisees shall acknowledge and agree that the City reserves the right to amend a franchise agreement to include any material terms or conditions that have been agreed to by a franchisee in another jurisdiction of the same or similar size, unless the franchisee can demonstrate that such equity will be achieved within a reasonable time frame or that there are material differences between the other jurisdiction and the City that would prevent equity from being achieved.

2.    Any franchisees shall have the right to request that the City amend the franchise agreement to include any more favorable or less burdensome terms or conditions in a manner mutually agreed upon by both parties, should another franchise agreement be subsequently adopted with such more favorable or less burdensome terms or conditions.

B.    In the event that the franchisee believes that a competitor provides the same or similar service to residents of the City under the authority granted by federal or state legislation or other regulatory entity, the franchisee shall have a right to request franchise amendments that relieve the franchisee of regulatory burdens that may create a competitive disadvantage to the franchisee. In requesting amendments, the franchisee shall file a petition within 30 days of the establishment of the competitor’s business, seeking to amend the franchise agreement. Such petition shall: (1) indicate the presence of such competitor; (2) identify the basis for the franchisee’s belief that certain provisions of the franchise agreement place the franchisee at a competitive disadvantage; and (3) identify the regulatory burdens to be amended or repealed in order to eliminate the competitive disadvantage. The City shall not unreasonably withhold consent of the franchisee’s petition, but shall, at its sole option, have the right to require that the franchisee and the alleged competitor enter into arbitration to resolve differences. (Ord. 2015 § 1 (Exh. 1), 2017)

5.40.080 Application.

A.    An applicant for an initial franchise with the City shall submit to the City a written application in a format provided by the City at the time and place specified by the City for accepting applications, and accompanied by the designated application fee. As permitted by RCW 35.21.860, an application fee in the amount specified in the Unified Fee Code shall accompany the application to cover costs associated with processing the application, including, without limitation, costs of administrative review, financial, legal and technical evaluation of the applicant, the costs of consultants, notice and publication requirements, and document preparation expenses. In the event such costs exceed the application fee, the applicant shall pay the difference to the City within 30 days following receipt of an itemized statement of such costs. If payment is not made within 30 days, the City shall cease processing the application until such time as payment is received. Conversely, if such costs are less than the application fee, the City shall refund the difference to the applicant.

B.    Application – Contents. An application for an initial franchise with the City shall contain, at a minimum:

1.    A statement as to the proposed franchise and information relating to the characteristics and location of the proposed franchise;

2.    A resume of prior history of the applicant, including the expertise of the applicant in the field for which the franchise is proposed;

3.    Information demonstrating the applicant’s legal, technical and financial ability to construct and operate the proposed infrastructure associated with the franchise;

4.    The names and addresses of any parent entity or subsidiary of the applicant or any other business entity owning or controlling the applicant in whole or in part, or owned or controlled in whole or in part by the applicant;

5.    A proposed construction and service (maintenance) schedule;

6.    The physical location of the franchisee’s local or regional offices;

7.    Any other reasonable information that the City may request.

C.    The City reserves the right to request additional information necessary to execute a comprehensive agreement. Refusal to provide the requested information will be sufficient grounds to deny the application.

D.    Consideration of Initial Franchise. Upon receipt of an application for an initial franchise and after obtaining any additional information the City in its sole discretion deems appropriate, a hearing shall be scheduled to allow public comment. At the hearing, the City Council shall receive public comment regarding the following:

1.    Public Benefit. Whether the public will benefit from granting a franchise to the applicant;

2.    Qualifications. Whether the applicant appears to have adequate legal, financial and technical qualifications and capabilities to build, operate and maintain a franchise and its related infrastructure in the City;

3.    No Conflicting Interests. Whether the applicant has any conflicting interests, either financial or commercial, that will be contrary to the interests of the City;

4.    Compliance with the Franchise and Local Laws. Whether the applicant will comply with all of the terms and conditions placed upon a franchisee by the franchise, this chapter, customer service standards and other applicable local laws and regulations;

5.    Compliance with Other Requirements. Whether the applicant will comply with all relevant federal and state laws and regulations pertaining to the construction, operation and maintenance of the franchise and its related infrastructure;

6.    Any other information the public desires to provide via written or verbal communication.

E.    Within 120 days after the submission of a complete application as provided in RCW 35.99.030, the City Council shall decide whether to grant a franchise and on what conditions. The City Council’s decision shall be based upon the application, any additional information submitted by the applicant or obtained by the City from any source, and public comments. The City Council may grant one or more franchises, or may decline to grant any franchise for any reason. (Ord. 2015 § 1 (Exh. 1), 2017)

5.40.090 Duration.

A.    The term of any franchise, and all rights, privileges, obligations and restrictions pertaining thereto, shall be specified in the franchise but shall generally not exceed a maximum of 10 years for the initial franchise and five years for each extension. The effective date of any franchise shall be as specified in the franchise.

B.    Extension upon Expiration. If the parties fail to formally renew or terminate the franchise prior to the expiration of its term or any extension, the franchise shall be automatically extended for up to one year until the franchise is renewed, terminated, or extended.

C.    Should the franchisee not initiate negotiations for franchise renewal within one year of expiration of the franchise agreement, or if the City Council should determine that the franchisee is not pursuing negotiations in good faith within one year of expiration, the City Council shall have grounds to revoke the franchise agreement. (Ord. 2015 § 1 (Exh. 1), 2017)

5.40.100 Franchise area.

Any franchise granted hereunder shall be valid only for those geographic areas specified in the franchise agreement, which, for locations in the City’s rights-of-way, may be the entire City limits. The City is under no obligation to ensure that the franchise area is consistent between different franchise types. (Ord. 2015 § 1 (Exh. 1), 2017)

5.40.110 Use of rights-of-way.

For the purposes of operating and maintaining a system in the City, a franchisee may place and maintain within the rights-of-way such property and equipment as are necessary and appurtenant to the operation of the franchise. Prior to construction or alteration of the franchise facilities in the rights-of-way, the franchisee shall procure all necessary permits, pay all applicable fees in connection therewith, and comply with all applicable laws, regulations, resolutions and ordinances, including, but not limited to, the requirements in Chapter 18.66 FMC and the Ferndale Development Standards. (Ord. 2015 § 1 (Exh. 1), 2017)

5.40.120 Site fee agreements.

The franchisee shall comply with all obligations set forth in site fee agreements, as provided in, and attached to, the franchise agreement, to the extent site fees are allowed by RCW 35.21.860. (Ord. 2015 § 1 (Exh. 1), 2017)

5.40.130 Fees and charges.

A.    The franchisee shall pay the City fees and charges in accordance with the terms of the franchise agreement, to the extent allowed by federal and/or Washington State law, including RCW 35.21.860.

B.    The franchisee shall be subject to all permit fees associated with activities undertaken through the authority granted in the franchise agreement or under applicable laws.

C.    The franchisee shall promptly reimburse the City for any and all costs incurred by the City while responding to any emergency involving public safety related to franchisee’s facilities. (Ord. 2015 § 1 (Exh. 1), 2017)

5.40.140 Taxes.

Nothing in this chapter shall limit the franchisee’s obligation to pay applicable local, state and federal taxes. (Ord. 2015 § 1 (Exh. 1), 2017)

5.40.150 Police powers and rules and regulations of the City.

A.    In entering into any franchise agreement with the City, the franchisee acknowledges that its rights thereunder are subject to the police powers of the City to adopt and enforce general ordinances necessary for the health, safety, and welfare of the public, and it agrees to comply with all applicable laws enacted by the City pursuant to such powers.

B.    In addition to the inherent powers of the City to regulate and control any franchise it issues and those powers expressly reserved by the City, or agreed to and provided for in a franchise, the right and power are reserved by the City to promulgate such additional rules and regulations as it may find necessary in the exercise of its lawful powers and in furtherance of the terms and conditions of a franchise and this chapter, and as permitted by applicable state and federal law. (Ord. 2015 § 1 (Exh. 1), 2017)

5.40.160 Delegation of powers.

Any right or power of the City may be delegated by the City to any officer, employee, department or board of the City, or to such other person or entity as the City may designate to act on its behalf. (Ord. 2015 § 1 (Exh. 1), 2017)

5.40.170 Technical standards.

The franchisee shall construct, install, operate and maintain its franchise in a manner consistent with all enacted and applicable federal, state and local laws and regulations, including Chapter 18.66 FMC, FCC technical standards and any other applicable standards set forth in the franchise. (Ord. 2015 § 1 (Exh. 1), 2017)

5.40.180 Safety requirements.

The franchisee shall, at all times, employ professional care and install, maintain and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to the public. In furtherance thereof, the franchisee must comply with the City’s traffic control requirements, including, for example, but without limitation, the use of signal devices, warning signs and flaggers when appropriate. All of the franchisee’s structures, cables, lines, equipment and connections in, over, under and upon the rights-of-way and public ways or other places in the franchise area, wherever situated or located, shall at all times be kept and maintained in a safe condition. (Ord. 2015 § 1 (Exh. 1), 2017)

5.40.183 Primary contact named.

The franchisee shall identify those individuals or offices that are responsible for maintaining direct communication with the City for both operations and administrative functions. Should the City determine that the contact information provided by the franchisee is inaccurate or unworkable, the City will require revised contact information. (Ord. 2015 § 1 (Exh. 1), 2017)

5.40.185 Subcontractors named.

A.    The City recognizes that from time to time the franchisee will contract with subcontractors or specialists in the related field to perform work required to maintain, repair, or improve the system. The franchisee shall provide the City with a list of those subcontractors known by the franchisee at the time of approval of the franchise agreement, and shall update this list as needed through the duration of the agreement. At a minimum, such list shall include the following:

1.    Name and contact information of each subcontractor;

2.    Proof of valid license(s) and bonding for each subcontractor, including City business licenses.

B.    Should a subcontractor for the franchisee be responsible for performing all work on one or more projects, the subcontractor shall identify him/herself as a contact on the associated revocable encroachment permit, for the purpose of timely communication between the City and the subcontractor.

1.    Should the subcontractor not be listed on the list of subcontractors provided by the franchisee at the time the franchise agreement is approved, the City shall not issue a revocable encroachment permit until the franchisee has specifically authorized said subcontractor to perform the work described by the revocable encroachment permit and the subcontractor has obtained a City business license. (Ord. 2015 § 1 (Exh. 1), 2017)

5.40.190 Construction standards.

A.    All facilities constructed or operated under this chapter shall be installed and maintained at such places in or upon such rights-of-way and public places as shall not interfere with the free passage of traffic and the free use of adjoining property, and shall conform to federal standards, Washington requirements, and City regulations.

B.    The franchisee shall be subject to any and all requirements established by the City with regard to the placement and screening of the franchisee’s facilities and equipment located in the rights-of-way and on other public property, as further described by Chapter 18.74 FMC (Ferndale Landscape Standards). Such requirements may include, but are not limited to, the use of landscaping to screen pedestals and cabinets, the placement of the franchisee’s equipment or facilities flush with the natural grade of the surrounding area (where applicable), or other reasonable methods.

C.    The franchisee shall comply with any applicable ordinances, resolutions, rules, regulations and policies of the City regarding geographic information systems mapping for users of the rights-of-way; provided, that all similarly situated users of the rights-of-way must also accordingly comply. (Ord. 2015 § 1 (Exh. 1), 2017)

5.40.200 Location and relocation.

A.    Except for WCFs and streetlights, the franchisee shall place any new franchise facilities underground where existing telecommunications and cable facilities are located underground. Any new franchise facilities to be located aboveground shall be placed on existing or replacement utility poles to the extent such placement is feasible.

B.    The franchise agreement shall recognize the need for the City to maintain adequate width for installation and maintenance of sanitary sewer, water and storm drainage utilities owned by the City and other public utility providers. Thus, the City reserves the right to maintain clear zones within the public right-of-way for installation and maintenance of said utilities. The clear zones for each right-of-way segment shall be noted and conditioned with the issuance of each revocable encroachment permit. If adequate clear zones are unable to be achieved on a particular right-of-way, the franchisee shall locate in an alternate right-of-way, obtain easements from private property owners, or propose alternate construction methods which maintain and/or enhance the existing clear zones.

C.    Except as otherwise required by law, the franchisee agrees to relocate, remove, or reroute its facilities as ordered by the City, at no expense or liability to the City, except as may be required by Chapter 35.99 RCW. Pursuant to the provisions of FMC 5.40.310, the franchisee agrees to protect and hold harmless the City from any third-party claims for service interruption or other losses in connection with any such change or relocation other than City’s negligence or willful misconduct.

D.    If the City determines that a project necessitates the relocation of the franchisee’s existing facilities then:

1.    Within a reasonable time, which shall be no less than 180 days prior to the commencement of the project, the City shall provide the franchisee with written notice requiring relocation;

2.    The City shall provide the franchisee with copies of information for such improvement project and a proposed location for the franchisee’s facilities so that franchisee may relocate its facilities in other rights-of-way in order to accommodate the project. For the purposes of this subsection, such information shall include project designs that are of sufficient detail to determine the type, size, and location of proposed City improvements; and

3.    The franchisee shall complete relocation of its facilities at no charge or expense to the City so as to accommodate the project at least 30 days prior to commencement of the project;

4.    In the event relocation is required due to an emergency situation, the City shall give the franchisee written notice as soon as feasible, and the franchisee shall relocate its facilities at the franchisee’s expense within a reasonable time period determined at the discretion of the City.

E.    The franchisee may, after receipt of written notice requesting a relocation of its facilities, submit to the City written alternatives to such relocation. The City shall evaluate such alternatives and advise the franchisee in writing if one or more of the alternatives are suitable to accommodate the work, which would otherwise necessitate relocation of the facilities. If so requested by the City, the franchisee shall submit additional information to assist the City in making such evaluation. The City shall give each alternative proposed by the franchisee full and fair consideration, within a reasonable time, so as to allow for the relocation work to be performed in a timely manner. In the event the City ultimately determines that there is no other reasonable alternative, the franchisee shall relocate its facilities as otherwise provided in this section. Any alternatives submitted under this section must comply with the initial timeline provided in compliance with subsection (D)(1) of this section.

F.    The provisions of this section shall in no manner preclude or restrict the franchisee from making any arrangements it may deem appropriate when responding to a request for relocation of its facilities by any person or entity other than the City, where the facilities to be constructed by said person or entity are not or will not become City-owned, operated or maintained facilities; provided, that such arrangements shall not unduly delay a City construction project.

G.    In the event that the City orders the franchisee to relocate its facilities for a project which is primarily for private benefit, the private party or parties causing the need for such project shall reimburse the franchisee for the cost of relocation in the same proportion as their contribution to the total cost of the project. (Ord. 2015 § 1 (Exh. 1), 2017)

5.40.210 Street cut or repair.

A.    If in connection with the construction, operation and/or maintenance of the franchisee’s system, the franchisee disturbs, alters, or damages any public property, the franchisee agrees that it shall at its own cost and expense pay, replace and restore any such property to a condition as good or better than the condition existing immediately prior to the disturbance. If restoration performance by the franchisee is not satisfactory or timely, the City may, after prior notice to the franchisee, or without notice where the disturbance or damage may create a risk to public health or safety, cause the repairs to be made and recover the reasonable cost of those repairs from the franchisee. Within 30 days of receipt of an itemized list of restoration costs, including the costs of labor, materials, and equipment, the franchisee shall pay the City for such costs.

1.    The franchisee shall meet the requirements of FMC 19.35.050(A), which prohibits street trenching or transverse cuts unless it can be demonstrated that no suitable alternative exists, particularly within five years of street construction or restoration. Any proposed cuts within five years of street construction or restoration require approval by the Public Works Director.

2.    Should the franchisee disturb, alter, or damage the property of any other franchisee, the franchisee responsible for the impact shall be required to notify the other franchisee to determine an appropriate resolution. The franchisee responsible for the impact shall notify the City of the impact and their intent to contact the other franchisee, within 72 hours of the event.

B.    The franchisee shall guarantee the durability and structural integrity of any street cut or repair made by it or its agents which is necessary for the construction, installation, operation, repair or maintenance of the franchisee’s facilities for the life of the street; provided, that no action by a third party materially affects the integrity of the franchisee’s street cut or repair. The franchisee shall repair or replace, at no expense to the City, any failed street cut or repair which was completed by the franchisee or the franchisee’s agent(s), to the standards of the Ferndale Development Standards, or as otherwise determined by the City Public Works Director.

C.    The franchisee shall be subject to the City’s current pavement cut policy or as amended. The public right-of-way shall be restored to a condition that is as good or better than that prior to the franchisee’s work.

D.    The franchisee agrees that, should any of its actions under the franchise materially impair or damage any City property, survey monument, or property owned by a third party, the franchisee 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 county.

E.    All survey monuments which are disturbed or displaced by the franchisee in its performance of any work under the agreement shall be referenced and restored by franchisee, as per Chapter 332-120 WAC, as from time to time amended, and all pertinent federal, state and local laws.

F.    There shall be no statute of limitations associated with the requirements to repair public or private property when it can be demonstrated that the damage, destruction, or alteration of the property was caused by the franchisee. (Ord. 2015 § 1 (Exh. 1), 2017)

5.40.220 Security for performance.

A.    Prior to commencing any work in the franchise area, the franchisee shall post a surety bond in a form and amount satisfactory to the City (as determined by the City, at the City’s sole option, judgment, and discretion) to ensure satisfactory restoration of the franchise area following the completion of the franchisee’s work therein. In lieu of separate bonds for routine individual projects involving work in the franchise area, the franchisee may satisfy the City’s bond requirements (at the discretion of the City) by posting a single ongoing performance bond in the amount of not less than $30,000 to ensure satisfactory restoration of the franchise area following the completion of the franchisee’s work therein. The bond shall be in effect and ongoing for the term of the agreement and the franchisee shall pay all premiums and costs associated with maintaining the bond(s), and shall keep the same in full force and effect at all times. The bond(s) shall be in a form reasonably acceptable to the City, as per the Ferndale Development Standards.

B.    The bond(s) shall provide that the bond(s) shall not be canceled or materially altered so as to be out of compliance with the requirements of this section without 30 days’ written notice first being given to the City. If the bond(s) is/are canceled or materially altered so as to be out of compliance with the requirements of this section, the franchisee shall provide replacement bonds. The franchisee agrees to maintain continuous uninterrupted bonds in the amounts required for the duration of the agreement or thereafter as specified by the agreement. (Ord. 2015 § 1 (Exh. 1), 2017)

5.40.230 Insurance.

A.    The franchisee shall procure and maintain, and provide to the City for the duration of the franchise agreement, insurance at an amount satisfactory to the City, or provide self-insurance, against all claims for injuries to persons or damages to property which may arise from or in connection with the exercise of the rights, privileges and authority granted to the franchisee, its agents, representatives, or employees via the franchise agreement. The franchisee shall provide evidence of self-insurance and/or an insurance certificate, that names the City, its officers, elected officials, agents, employees, representatives, engineers, consultants and volunteers as additional insureds, to the City prior to the commencement of any work or installation of any franchisee facilities pursuant to the agreement.

B.    In addition to the coverage requirements set forth in this section, the certificate of insurance shall provide that:

The above described policies will not be canceled before the expiration date thereof, without the issuing company giving sixty (60) days written notice to the certificate holder.

    In the event of said cancellation or intent not to renew, the franchisee shall obtain and furnish to the City evidence of replacement insurance policies meeting the requirements of this section by the cancellation date.

C.    Additional insurance requirements may be included in individual franchise agreements. (Ord. 2015 § 1 (Exh. 1), 2017)

5.40.240 Reasonable notice required.

All franchise agreements shall include clauses designed to provide reasonable notice to property owners that may be impacted by work associated with the franchise, but may specifically exempt actions necessary to resolve an emergency situation or to avoid threats to life, safety, or general welfare. (Ord. 2015 § 1 (Exh. 1), 2017)

5.40.250 Reimbursement.

To the extent allowed by applicable law, the City may require a franchisee to reimburse the City for the City’s reasonable processing and review expenses in connection with a sale or transfer of a franchise or a change in control of a franchise or franchisee, including, without limitation, costs of administrative review, financial, legal and technical evaluation of the proposed transferee or controlling party, costs of consultants, notice and publication costs, and document preparation expenses. (Ord. 2015 § 1 (Exh. 1), 2017)

5.40.260 Franchise extension.

Franchise extension shall be conducted in accordance with applicable law. The City and the franchisee, by mutual consent, may enter into extension negotiations at any time during the term of a franchise. (Ord. 2015 § 1 (Exh. 1), 2017)

5.40.270 Franchise revocation.

Any franchise granted by the City may be revoked during the period of such franchise, as provided in the franchise agreement, subject to the procedural requirements provided for therein. A failure by the franchisee to comply with any of the material provisions of this chapter shall be deemed a material violation of a franchise. (Ord. 2015 § 1 (Exh. 1), 2017)

5.40.280 Customer service.

A.    Except for agreements with wireless operators, franchise agreements shall discuss the general customer service goals of the franchisee, with respect to general response times, the effectiveness of response, the location of physical offices within the local area or region, as well as online customer service.

B.    Except with respect to wireless operators, at the request of the City Council, the franchisee shall provide to the Public Works Director a copy of complaints received related to the franchise area as well as a written analysis based on type of complaint and effective response rate. (Ord. 2015 § 1 (Exh. 1), 2017)

5.40.290 Conditions of sale.

If a renewal of the franchise agreement is denied or the franchise agreement is lawfully terminated, and the City lawfully acquires ownership of the system or by its actions lawfully effects a transfer of ownership of the system to another person, any such acquisition or transfer shall be at a price determined pursuant to the provision of the respective acts governing the system or the discipline. (Ord. 2015 § 1 (Exh. 1), 2017)

5.40.300 Previous rights abandoned.

A.    Franchise agreements are in lieu of any and all other contractual rights, privileges, powers, immunities, and authorities owned, possessed, controlled, or exercisable by the franchisee or any successor pertaining to the construction, operation, modification or maintenance of the system for which it pertains. The acceptance of a franchise agreement shall operate between the franchisee and the City as an abandonment of any and all such contractual rights, privileges, powers, immunities, and authorities by the franchisee within the City, including an abandonment of any previous franchise agreements that may have previously existed. All construction, operation, modification, and maintenance by the franchisee of any system in the City to provide the services provided for in the franchise agreement shall be under this franchise agreement, and not under any other contractual right, privilege, power, immunity, or authority.

B.    Nothing in a franchise agreement shall vest the franchisee to any City regulations such as land use, zoning, or development standards which may have been in effect at the time of the adoption of the agreement. All actions, including but not limited to all work within the City’s rights-of-way shall be as per the relevant standards in effect at the time the work is proposed. (Ord. 2015 § 1 (Exh. 1), 2017)

5.40.310 Acceptance.

A.    No franchise granted pursuant to the provisions of this chapter shall become effective unless and until the ordinance granting the same has become effective. Within 45 days after the adoption by the City Council of the ordinance awarding a franchise, or within such extended period of time as the City Council in its discretion may authorize, the franchisee shall file with the City Clerk its written and unconditional acceptance of the franchise agreement.

B.    All franchises and franchise agreements made subject to this chapter are also subject to the reasonable exercise of the City’s police power. Nothing in a franchise agreement shall preclude or prohibit the City from enacting any ordinance, from time to time, in the interest of public health and safety, which may impact the franchisee in its operation of the system subject to the agreement, as a proper exercise of the City’s police power. All City acts undertaken pursuant to a franchise agreement shall be deemed discretionary, guided by the purpose and considerations of the public health, safety, and general welfare. (Ord. 2015 § 1 (Exh. 1), 2017)

5.40.320 Conflicts.

Where a franchise agreement and this chapter conflict, both shall be liberally interpreted to achieve a common meaning or requirement. In the event that this is not possible within reasonable limits, the franchise agreement shall prevail. Where this chapter or a franchise agreement conflicts with Chapter 18.66 FMC, Chapter 18.66 FMC shall prevail. (Ord. 2015 § 1 (Exh. 1), 2017)

5.40.330 Time is of the essence.

Whenever a franchise agreement shall set forth any time for an act to be performed by or on behalf of the franchisee, such time shall be deemed of the essence. Any failure of the franchisee to perform within the time allotted shall always be sufficient grounds for the City to invoke any appropriate remedy, including, without limitation, termination of a franchise agreement. (Ord. 2015 § 1 (Exh. 1), 2017)

5.40.340 Indemnification and hold harmless.

A.    All franchise agreements established pursuant to this chapter shall contain indemnification and hold harmless conditions consistent with the following:

1.    Indemnification and hold harmless provisions for the City, its appointed and elected officials, officers, employees, and volunteers against any and all claims, demands, liability, loss, cost, damage of any nature whatsoever which is caused by the franchisee, employees, or agents related to injury, harm, death, damage, environmental impact or destruction or release of hazardous substances.

2.    The franchisee shall indemnify, hold harmless and pay the costs of defending the City against any and all third-party claims, suits, actions, damages, or liabilities for delays on City construction projects caused by or arising out of the failure of the franchisee to relocate its facilities in a timely manner; provided, that the franchisee shall not be responsible for damages due to delays caused by the City or circumstances beyond the reasonable control of the franchisee. (Ord. 2015 § 1 (Exh. 1), 2017)