HomeMy WebLinkAbout09-23-2024 - Agenda Packet� l�IEDINA
AA- 4SHINGTON
MEDINA CITY COUNCIL
Monday, September 23, 2024
5:00 PM — REGULAR MEETING
AGENDA
VISION STATEMENT
Medina is a family -friendly, diverse and inclusive community on the shores
of Lake Washington. With parks and open spaces, Medina is a quiet and
safe small city, with active and highly -engaged residents. Medina honors its
heritage while preserving its natural environment and resources for current
and future generations.
MISSION STATEMENT
Ensure efficient delivery of quality public services, act as responsible
stewards of Medina's financial and natural resources, celebrate diversity,
leverage local talent, and promote the safety, health, and quality of life of
those who live, work, and play in Medina.
IN
MEDINA, WASHINGTON
MEDINA CITY COUNCIL
REGULAR MEETING
Hybrid - Virtual/In-Person
Medina City Hall - Council Chambers
501 Evergreen Point Road, Medina, WA 98039
Monday, September 23, 2024 — 5:00 PM
AGENDA
MAYOR I Jessica Rossman
DEPUTY MAYOR I Randy Reeves
COUNCIL MEMBERS I Joseph Brazen, Jennifer Garone, Harini Gokul, Mac Johnston,
Michael Luis
CITY MANAGER I Stephen R. Burns
CITY ATTORNEY I Jennifer S. Robertson
CITY CLERK I Aimee Kellerman
Hybrid Meeting Participation
The Medina City Council has moved to hybrid meetings, offering both in -person and online
meeting participation. In accordance with the direction from Governor Inslee, masking and social
distancing will be optional for those participating in person. Individuals who are participating online
and wish to speak live can register their request with the City Clerk at 425.233.6411 or
email akellerman@medina-wa.gov and leave a message before 2PM on the day of the Council
meeting. Please reference Public Comments for the Council Meeting on your correspondence.
The City Clerk will call on you by name or telephone number when it is your turn to speak. You
will be allotted 3 minutes for your comment and will be asked to stop when you reach the 3 minute
limit. The city will also accept written comments. Any written comments must be submitted by 2
PM on the day of the Council meeting to the City Clerk at akellerman@medina-wa.gov.
Join Zoom Meeting
https://medina-
wa.zoom.us/j/81961696176?pwd=WjRuK3ErVy9jdmttelAvek1 VeHkzUT09
Meeting ID: 819 6169 6176
Passcode:689036
One tap mobile
+1 253 205 0468, 81961696176# US
REGULAR MEETING - CALL TO ORDER / ROLL CALL
Council Members Brazen, Garone, Gokul, Luis, Johnston, Reeves, Rossman
2. APPROVAL OF MEETING AGENDA
3. PUBLIC COMMENT PERIOD
Individuals wishing to speak live during the Virtual City Council meeting may register their
request with the City Clerk at 425.233.6411 or email akellerman@medina-wa.gov and
leave a message before 2PM on the day of the Council meeting. Please reference Public
Comments for the Council Meeting on your correspondence. The City Clerk will call on
you by name or telephone number when it is your turn to speak. You will be allotted 3
minutes for your comment and will be asked to stop when you reach the 3 minute limit.
4. PRESENTATIONS
None.
5. CITY MANAGER'S REPORT
None.
6. CONSENT AGENDA
Time Estimate: 5 minutes
Consent agenda items are considered to be routine and will be considered for adoption
by one motion. There will be no separate discussion of these items unless a
Councilmember or City staff requests the Council to remove an item from the consent
agenda.
Ordinance Amending Medina Municipal Code (MMC) Chapter 12.44 Street Vacation
Recommendation: Adopt Ordinance No. 1030.
Staff Contacts: Stephen R. Burns, City Manager and Jennifer S. Robertson, City
Attorney
7. LEGISLATIVE HEARING
None.
8. PUBLIC HEARING
8.1 American Towers (ATC) Franchise Agreement
Recommendation: Hold public hearing, take public testimony, and add to October 14
City Council meeting for a second public hearing and action.
Staff Contacts: Stephen R. Burns, City Manager and Tripp May, Shareholder and
Managing Partner, Telecom Law Firm, PC
Time Estimate: 45 minutes
9. CITY BUSINESS
9.1 Comprehensive Plan Update
Recommendation: Discussion item only; no action needed.
Staff Contact: Jonathan Kesler, AICP, Planning Manager and Dane Jepsen, Planner
with LDC, Inc., Consultant
Time Estimate: 60 minutes
9. Budget Deep Dive and Business License Discussion
Recommendation: Discussion and direction.
Staff Contact: Ryan Wagner, Director of Finance and Human Resources
Time Estimate: 60 minutes
10. REQUESTS FOR FUTURE AGENDA ITEMS AND COUNCIL ROUND TABLE
11. PUBLIC COMMENT
Comment period is limited to 10 minutes. Speaker comments limited to one minute per
person.
12. ADJOURNMENT
Next regular City Council Meeting: October 14, 2024 at 5 PM.
ADDITIONAL INFORMATION
Public documents related to items on the open session portion of this agenda, which are
distributed to the City Council less than 72 hours prior to the meeting, shall be available for public
inspection at the time the documents are distributed to the Council. Documents are available for
inspection at the City Clerk's office located in Medina City Hall.
The agenda items are accessible on the City's website at www.medina-wa.gov on Thursdays or
Fridays prior to the Regular City Council Meeting.
In compliance with the Americans with Disabilities Act, if you need a disability -related modification
or accommodation, including auxiliary aids or services, to participate in this meeting, please
contact the City Clerk's Office at (425) 233-6410 at least 48 hours prior to the meeting.
UPCOMING MEETINGS AND EVENTS
Monday, October 14, 2024 - City Council Meeting (5:OOPM)
Monday, October 28, 2024 - City Council Meeting (5:OOPM)
Monday, November 11, 2024 - Veterans Day - City Hall Closed
Tuesday, November 12, 2024 - City Council Meeting (5:OOPM)
Monday, November 25, 2024 - City Council Meeting (5:OOPM)
Thursday, November 28, 2024 - Thanksgiving Holiday - City Hall Closed
Friday, November 29, 2024 - Day After Thanksgiving Holiday - City Hall Closed
Monday, December 9, 2024 - City Council Meeting (5:OOPM)
Monday, December 23, 2024 - City Council Meeting (5:OOPM)
Wednesday December 25, 2024 - Christmas Day - City Hall Closed
CERTIFICATION OF POSTING AGENDA
The agenda for Monday, September 23, 2024, Regular Meeting of the Medina City Council was
posted and available for review on Thursday, September 19, 2024 at City Hall of the City of
Medina, 501 Evergreen Point Road, Medina, WA 98039. The agenda is also available on the city
website at www.medina-wa.aov.
AGENDA ITEM 6.1
MEDINA, WASHINGTON
AGENDA BILL
Monday, September 23, 2024
Subject: Ordinance Amending Medina Municipal Code (MMC) Chapter 12.44 Street Vacation
Category: Consent
Staff Contacts: Stephen R. Burns, City Manager and Jennifer S. Robertson, City Attorney
Summary
On October 23, 2023 the City Council adopted a moratorium on processing right of way vacation
petitions via adoption of Resolution No. 438 and extended the moratorium for additional six-month
period on April 8, 2024 via Resolution No. 442 which included adopting a work plan to study the
same desire to undertake the work described above without having disruptions or interruptions
that would be created by the filing of any ROW vacation petition. That work plan included review
of Chapter 12.44 MMC and consideration of adopting a policy regarding property vacations.
The City Attorney's office has reviewed Chapter 12.44 MMC and proposed changes to incorporate
prior Council input. In addition, a proposed draft policy that may be issued by the City Manager is
also included in Council materials. Please note that the policy is written so that it can also be used
for vacating streets as well as for vacating utility property (which is not addressed in your code).
The attached ordinance includes the following revisions to Chapter 12.44 MMC and incorporates
the changes to 12.44.025 and 12.44.100 as directed by the Council:
Two new sections are added:
12.44.015: Specifically allows the City Manager to adopt policies to implement the Chapter.
12.44.025: Sets forth a general policy of the City Council which expresses how much the City
values its unopened rights of way and expresses the policy that due to the "broad
public benefits provided by public rights of way, street vacations should be rarely
granted and should only approved after the city council performs meticulous review
and consideration of all unintended consequences of the vacation" and that that
the Council will only vacate rights of way "either as a property exchange which
provides greater public benefit than existing facilities or if the council cannot
foresee any possible potential future use of the property."
The following sections were changed:
12.44.040: This adds the requirement of the city's application as part of the submittal for
property vacation.
12.44.050.D: This fixes a typo that the code revisor found where the word "days" was missing.
10893514.3 - 371096 - 0018 F
AGENDA ITEM 6.1
12.44.090: The change here allows the Council to hold extra meetings both before and after
setting the public hearing (and following the public hearing).
12.44.100: This section is amended to require posting of signs, mailing of postcards to
properties within 300 feet of the property subject to the petition, and notice to be
placed on the City website when a petition for vacation is deemed complete. This
public notice will be in addition to the notice requirements that exist in the code for
after the public hearing is set.
12.44.120.A: This change references the new policy at MMC 12.44.025 as a required
component in drafting the staff report and also requires the staff to inform the
Council about land use implications that may result from the vacation and the
impacts, if any, on the surrounding properties.
12.44.130.B: The change here allows the Council to take additional time following the public
hearing to make a decision on the petition.
12.44.140: This change references the new policy at MMC 12.44.025 as a required
component of the decision on the vacation.
12.44.180.A: This change confirms that the petitioner will pay all costs and fees of the vacation,
in addition to the appraisal amount.
Once this ordinance is adopted, it is appropriate to terminate the moratorium that was first adopted
under Resolution No. 438 and extended by Resolution No. 442. Therefore, Section 10 of the
ordinance terminates the moratorium.
The Council had previously been provided with a draft policy implementing this ordinance. That
policy will be brought forward to council at a later date for further discussion prior to it being issued
by the City Manager.
This meets and supports Council's priorities 2 through 5.
Council Priorities:
1. Financial Stability and Accountability
2. Quality Infrastructure
3. Efficient and Effective Government
4. Public Safety and Health
5. Neighborhood Character and Community Building
Attachment:
• Ordinance No. 1030
Budget/Fiscal Impact: N/A
10893514.3 - 371096 - 0018 F
AGENDA ITEM 6.1
Recommendation: Approve Ordinance No. 1030.
City Manager Approval:
Proposed Council Motion: "I move adoption of Ordinance No. 1030 amending Chapter 12.44
of the Medina Municipal Code and terminating the moratorium adopted under Resolution No. 438
and extended under Resolution No. 442."
10893514.3 - 371096 - 0018 F81
AGENDA ITEM 6.1
CITY OF MEDINA, WASHINGTON
Ordinance No. 1030
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
MEDINA, WASHINGTON, AMENDING CHAPTER 12.44 OF THE
MEDINA MUNICIPAL CODE, ADDING NEW SECTIONS
12.44.015 TO ALLOW ADOPTION OF POLICIES AND 12.44.025
TO EXPRESS THE COUNCIL POLICY REGARDING STREET
VACATIONS, AMENDING SECTION 12.44.040 AND 12.44.050
FOR HOUSEKEEPING PURPOSES, 12.44.090 TO CLARIFY
THAT COUNCIL MAY HOLD ADDITIONAL MEETINGS
REGARDING A PETITION FOR STREET VACATION, 12.44.100
ADD NEW NOTICE REQUIREMENTS, 12.44.120.A TO
INCORPORATE MMC 12.44.025, 12.44.130 TO CLARIFY
COUNCIL'S AUTHORITY TO DEFER ACTION, 12.44.180 TO
INCORPORATE PAYMENT OF COSTS AS A PREREQUISITE
TO THE EFFECTIVE DATE OF A STREET VACATION,
TERMINATING MORATORIUM ADOPTED UNDER
RESOLUTION NO. 438 AND EXTENDED UNDER RESOLUTION
NO. 442, PROVIDING FOR SEVERABILITY AND
CORRECTIONS, AND ESTABLISHING AN EFFECTIVE DATE.
WHEREAS, the City's ROW are highly visible and are extremely important to the City's
current and future transportation needs; and to the City's character, identity and development;
and comprise a significant and valuable public asset related to the City's long term planning goals
and community vision; and
WHEREAS, the City received and processed three different ROW vacation petitions in
recent years, each of which presented unique issues and concerns; consumed significant City
resources, staff time and expenses to review and decide; and resulted in the subsequent
preparation, review and adoption of MMC modifications to better regulate and protect the City's
ROW and provide better guidance to the public, City and Council concerning the issues and
processes involved in such petitions; and
WHEREAS, in the process of reviewing and acting on those ROW vacation petitions the
City and Council became aware of the need for further changes in the MMC to address adequate
and timely public notice requirements, cost identification, limitation and recovery; and evaluation
of potential gift of public funds issues; and the establishment of long-term planning and use polices
which can be timely integrated into the City's ongoing 2024 Comprehensive Plan update; and
WHEREAS, on October 23, 2023 the City Council adopted a moratorium on processing
right of way vacation petitions via adoption of Resolution No. 438 and extended the moratorium
for additional six-month period on April 8, 2024 via Resolution No. 442 which included adopting a
work plan to study the same desire to undertake the work described above without having
disruptions or interruptions that would be created by the filing of any ROW vacation petition; and
WHEREAS, having undertaken the work, the City Council supports making additional
changes to Chapter 12.44 MMC in order to clarify its policy regarding unopened or partially
unopened rights of way and the process for considering vacation of the same; and
Ordinance No. 1030 Page 1 of 7
10891408.8 - 371096 - 0018 191
AGENDA ITEM 6.1
WHEREAS, with the adoption of this ordinance, it is appropriate and timely to terminate
the moratorium that was first adopted under Resolution No. 438 and extended by Resolution No.
442; NOW, THEREFORE,
THE CITY COUNCIL OF THE CITY OF MEDINA, WASHINGTON, DO ORDAIN AS
FOLLOWS:
Section 1. A new Section 12.44.015 is hereby added to the Medina Municipal Code to
read as follows:
12.44.015. Policies.
The city manager may adopt policies regarding processing of petitions for
street vacation consistent with this chapter.
Section 2. A new Section 12.44.025 is hereby added to the Medina Municipal Code to
read as follows:
12.44.025 General Policy on Street Vacations.
Medina is a small sylvan community with limited public space. The
residents of Medina value the ability to walk within the community and value the
trees, vegetation, and open space that exist within the city. Unopened or partially
unopened streets and rights of way often provide landscaping which beautifies the
city as well as providing trails and other recreational opportunities. These
unopened or partially unopened streets and rights of way also provide future
opportunities to add more public space for transportation, including walking and
bicycling, and provide opportunities for expanding recreational facilities. Given the
broad public benefits provided by public rights of way, street vacations should be
rarely granted and should only approved after the city council performs meticulous
review and consideration of all unintended consequences of the vacation.
Therefore, it is the policy of the Medina city council to only vacate unopened rights
of way either as a property exchange which provides greater public benefit than
existing facilities or if the council cannot foresee any possible potential future use
of the property.
Section 3. Section 12.44.040 of the Medina Municipal Code is hereby amended to read
as follows:
12.44.040. Initiation of proceedings.
A vacation may be initiated in two ways:
A. A resolution of the city council.
B. A petition of the owners of more than two-thirds of the property abutting or
underlying the subject property as may be applicable accompanied by the City's
application form for property vacation.
Ordinance No. 1030 Page 2 of 7
10891408.8 - 371096 - 0018 Flo]
AGENDA ITEM 6.1
Section 4. Section 12.44.050.D of the Medina Municipal Code is hereby amended to
read as follows:
12.44.050. Petition by owners.
The owners of an interest in real estate abutting upon or underlying public ROW
may petition the city council for vacation thereof in accordance with requirements of
this chapter.
D. Each petitioner shall be responsible to reimburse the city for the full
expenses and costs incurred by the city to process the petitioner's
requested vacation regardless of the outcome of the city's review and
decision thereon or petitioner's withdrawal of the petition. In addition to any
other provisions of the MMC or this chapter, the city manager or designee
shall keep account of all administrative time, costs and expenses incurred
by city employees, contractors, consultants, legal counsel, appraisers,
appointed officers and other individuals acting on behalf of or for the benefit
of the city in the course of processing the petition. The city manager or
designee shall periodically compile such time, costs and expenses and
invoice the petitioner for payment thereof, which shall be made by petitioner
not more than fifteen (15) {days} from the date of the invoice. Upon the city's
final decision to grant, deny or otherwise act on the petition, the city
manager or designee shall compile a final invoice for all remaining unpaid
time, costs and expenses and shall present such invoice to the petitioner
for prompt payment. No vacation shall become final nor be recorded until
all invoices have been paid in full by the petitioner. In the event the
petitioner does not make timely payment as set forth herein, the city may
suspend further review and processing of the petition.
Section 5. Section 12.44.090 of the Medina Municipal Code is hereby amended to read
as follows:
12.44.090. Date of public hearing.
Upon determining the application for vacation is complete, or upon passage of
a resolution by the city council seeking vacation, the council shall, by resolution, fix a
time when the city will hold a public hearing on the proposed vacation. The hearing
will be not more than 60 days nor less than 20 days after the date of passage of the
resolution scheduling the public hearing. Nothing in this section prohibits the council
from holding meetings about the petition for vacation prior to passing a resolution
setting the public hearing, prior to holding the public hearing, or following the date of
the public hearing.
Section 6. Section 12.44.100 of the Medina Municipal Code is hereby amended to read
as follows:
Ordinance No. 1030 Page 3 of 7
10891408.8 - 371096 - 0018 Fill
AGENDA ITEM 6.1
12.44.100. Public Notice requirements. ^{ pub4^ wear;^^
A. After the application and petition for vacation is determined to be complete, the
city clerk shall post and distribute notice of the petition and application for
vacation as follows:
1. A copy of the application and petition shall be posted in three conspicuous
public places in the city.
2. A copy shall be posted in a conspicuous place on the subject property or
at a nearby location that can be viewed by the public.
3. A copy shall be posted on the city's website.
4. A copy shall be mailed to each owner of property within 300 feet of the
subject property, including all the petitioners, at a local address if a resident
of the citv. or otherwise to the last address showina on the records of the
King County assessor.
B. Upon the passage of the council resolution fixing the date and time for a public
hearing, the city clerk shall give 20 days' notice of the pendency of the petition
as set forth in subsections C and D below.
9C. The hearing notice shall contain the following information: a statement that a
petition has been filed to vacate the subject property; the date, time and place
fixed for the hearing of the petition; that interested persons may appear at the
hearing and be heard for or against the petition; and that interested persons may
submit written comment to the city clerk prior to or at the hearing.
CD. The city clerk shall post and distribute the hearing notice as follows:
A copy shall be posted in three conspicuous public places in the city.
2. A copy shall be posted in a conspicuous place on the subject property or
at a nearby location that can be viewed by the public.
3. A copy shall be posted on the city's website.
4. A copy shall be published in the official newspaper of the city.
5. A copy shall be mailed to each owner of property within 300 feet of the
subject property, including all the petitioners, at a local address if a
resident of the city, or otherwise to the last address showing on the
records of the King County assessor.
Section 7. Section 12.44.120.A of the Medina Municipal Code is hereby amended to read
as follows:
12.44.120. Staff report.
A. The planning manager and/or public works director or their designee(s) shall
prepare a staff report which shall identify and address the requirements of this
section, the vacation criteria in MMC 12.44.140, the council policy set forth in
MMC 12.44.025, and all other pertinent issues raised by or resulting from the
vacation, including any land use implications that may result from the vacation
and the impacts, if any, on surrounding properties. The staff report shall be
Ordinance No. 1030 Page 4 of 7
10891408.8 - 371096 - 0018 12
AGENDA ITEM 6.1
presented to the city council at the public hearing and as otherwise requested,
appropriate or necessary, and may be supplemented as needed.
Section 8. Section 12.44.130 of the Medina Municipal Code is hereby amended to read
as follows:
12.44.130. Hearing.
A. At the day and time appointed for the hearing of the petition or city council
resolution, or at such other day and time as the same may be continued or
adjourned to by the city council, the matter shall be considered and persons
desiring to speak for or against the vacation shall be heard in accordance with
the council's usual rules.
B. The city council may deliberate on the merits of the petition in accordance with
its usual rules, may adjourn from time to time and may recess to executive
session as needed, may require additional information and evaluation from any
petitioner or city staff, and may continue and resume the hearing as appropriate.
At the conclusion of the city council's deliberations, the city council s#allmay
decide the petition in accordance with MMC 12.44.170, or may defer action to a
later date_
Section 9. Section 12.44.140 of the Medina Municipal Code is hereby amended to read
as follows:
12.44.140. Vacation criteria.
A. In determining whether to vacate the subject property, the city council shall
consider, but shall not be limited to, the following criteria as well as the policy
set forth in MMC 12.44.025:
Whether a change of use or vacation of the subject property will provide a
benefit to the city as determined by the council, including but not limited to
any of the following examples: reduction of unnecessary ROW;
preservation of streetscape character; expanding the city's property tax roll;
addressing neighborhood requests related to traffic impacts; better
accommodation of pedestrians, bicyclists, motorists and/or emergency
responders; reservation of an easement will accommodate the city's
current or projected needs.
2. Whether the subject property is no longer required for public use or public.
3. Whether the substitution of a new and different public way would be more
or less useful to the city and/or the public.
4. Whether conditions may or could change in the future, creating or providing
a greater or different public use or need than presently exists.
5. Whether existing property access will be restricted or denied as a result of
the vacation.
Ordinance No. 1030 Page 5 of 7
10891408.8 - 371096 - 0018 F13]
AGENDA ITEM 6.1
6. Whether objections to the petition or proposed vacation are made by (i)
owners of private property (exclusive of petitioners) abutting or in proximity
to the subject property, (ii) governmental agencies, (iii) private users of the
subject property, and/or (iv) members of the general public.
Section 10. Section 12.44.180.A of the Medina Municipal Code is hereby amended to
read as follows:
12.44.180. Compensation for vacation.
A. Ordinances vacating any public ROW shall not be adopted by the city council
until the owners of the property abutting the subject property shall
compensate the city in the amount required by this subsection and all costs
and fees have been reimbursed in accordance with MMC 12.44.050.D.
Section 11. Termination of Moratorium. The City Council hereby terminates the
moratorium imposed by Resolution No. 438 and extended by Resolution No. 442.
Section 12. Severability. If any section, sentence, clause, or phrase of this ordinance
should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or
unconstitutionality shall not affect the validity of any other section, sentence, clause, or phrase of
this ordinance.
Section 13. Publication. This Ordinance shall be published by an approved summary
consisting of the title.
Section 14. Corrections. Upon the approval of the city attorney, the city clerk, and/or
the code publisher is authorized to make any necessary technical corrections to this ordinance,
including but not limited to the correction of scrivener's/clerical errors, references, ordinance
numbering, section/subsection numbers, and any reference thereto.
Section 15. Effective Date. This ordinance shall take effect five days after
publication as provided by law.
Ordinance No. 1030 Page 6 of 7
10891408.8 - 371096 - 0018 F14]
AGENDA ITEM 6.1
PASSED BY THE CITY COUNCIL ON THIS 23rd DAY OF SEPTEMBER 2024 BY A
VOTE OF _ FOR, _ AGAINST, AND _ ABSTAINING, AND IS SIGNED IN
AUTHENTICATION OF ITS PASSAGE ON THE 23rd DAY OF SEPTEMBER 2024.
Approved as to form:
Inslee Best Doezie & Ryder, P.S.
Jennifer S. Robertson, City Attorney
PUBLISHED:
EFFECTIVE DATE:
ORDINANCE NO.: / AB
Jessica Rossman, Mayor
Attest:
Aimee Kellerman, City Clerk
Ordinance No. 1030
10891408.8 - 371096 - 0018
Page 7 of 7
15
AGENDA ITEM 8.1
MEDINA, WASHINGTON
AGENDA BILL
Monday, September 23, 2024
Subject: American Towers Franchise (ATC) Franchise Agreement
Category: Public Hearing
Staff Contacts: Stephen R. Burns, City Manager and Tripp May, Shareholder and Managing
Partner, Telecom Law Firm, PC
Summary:
ATC Outdoor DAS LLC ("ATC") seeks a franchise from the City of Medina ("City") to provide
telecommunications services via the City's public rights -of -way ("ROW"). ATC currently operates
10 small wireless facilities on wood utility poles in the ROW under a prior franchise that expired
in December 2020. ATC must obtain a new franchise to continue its operations.
Staff recommends the City Council approve Ordinance No. 1032 (Attachment 1), which would
approve a new franchise agreement between the City and ATC (the "Proposed Franchise")
(Exhibit A to Attachment 1) for 10 years.
The Proposed Franchise would largely maintain the status quo with additional protections for the
City against potential liabilities that could arise from the agreement. Like the expired franchise
agreement, the Proposed Franchise would: (1) require ATC to reimburse the City for all its costs;
(2) not exempt ATC from any licenses, permits or other regulatory authorizations needed to
conduct business, deploy new wireless facilities or expand existing wireless facilities in the City;
and (3) preserve the City's police powers to implement new ordinances in the future and require
ATC's compliance with such new ordinances.
Background:
Ordinance No. 863 — The Original Franchise to be Renewed
On November 8, 2010, the City Council adopted Ordinance No. 863 (the "Original Franchise")
(see Attachment 2). The Original Franchise granted ATC the nonexclusive right to access the
City's ROW and operate small wireless facilities to provide telecommunication services, subject
to the terms and conditions in the Original Franchise and applicable provisions within the MMC.
The Original Franchise did not exempt ATC from any:
• business licenses or other authorizations required to transact or operate a business within
the City;
• utility permits or other agreements/authorizations in connection with other ROW users;
• leases, licenses or other agreements required to access any private property or
infrastructure owned by the City or third parties (e.g., poles, vaults, conduits, etc.);
4882-9613-3350, v. 1 16
AGENDA ITEM 8.1
• zoning permits or similar authorizations required to construct and operate
telecommunication facilities within the City's ROW;
• police powers held by the City, which included without limitation the City's authority to
adopt and enforce future ordinances necessary to protect public health, safety and
welfare.
Although certain federal and state laws limit the City's ability to charge a revenue -generating
franchise fee for small wireless facilities in the ROW and/or from telephone businesses, the
Original Franchise entitled the City to recover all its costs in connection with the agreement. The
Original Franchise also included broad insurance, indemnification and financial security
requirements to protect the City and the ROW.
The Original Franchise expired on December 9, 2020. ATC needs a renewed franchise
agreement to continue its operations within the City's ROW.
Existing Facilities Deployed by ATC
Under the Original Franchise, ATC deployed 10 small wireless facilities on wood utility poles
within the ROW (see Attachment 2). The locations for these facilities are shown in Figure 1,
below:
[space intentionally left blank]
4882-9613-3350, v. 1 F17]
AGENDA ITEM 8.1
Figure 1: Existing ATC Small Cell Locations
ATC operates as an "infrastructure provider" that leases space at its node locations and capacity
on its data transport network to "service providers" (e.g., AT&T, Verizon, T-Mobile and similar
entities that offer personal wireless services directly to end users). Each node can be used to
collocate (i.e., host) multiple service providers. Collocation can be an effective method to avoid
additional obstructions in and burdens on the ROW.
Prior City Council Discussion Item
On September 9, 2020, the City Council received a report from staff about the Proposed
Franchise. Key points from that report include:
4882-9613-3350, v. 1 F18]
AGENDA ITEM 8.1
• The City can (and does) require a franchise from providers like ATC as a precondition for
access to the right-of-way ("ROW"), which is needed to install facilities and deliver
telecommunications services.
The franchise can (and does) require the provider to comply with generally applicable laws
for: (1) public health, safety and welfare; (2) land -use approvals and compliance with
aesthetic regulations; (3) the City's general ROW management authority; and (4) fair and
reasonable compensation in exchange for the right to use the ROW for telecommunication
facilities, which includes both reimbursement for the City's costs to implement and enforce
the franchise and payment for generally applicable taxes and fees.
The proposed franchise would renew ATC's ability to operate 10 existing facilities within
the City's ROW. However, the proposed franchise does not directly or indirectly authorize
ATC or its customers to any expanded or additional facilities, which would require separate
applications and approvals under a separate review process.
The City Council had the opportunity to ask questions and allowed one member of the public to
comment and present questions. Questions for staff broadly concerned (1) whether the City
Council's approval of the Proposed Franchise directly or indirectly authorized any new or
expanded wireless facilities; and (2) the extent to which "liquidated damages" payable to the City
under the Proposed Franchise could or should be increased.
Staff responds to these questions as follows:
(1) No, the Proposed Franchise does not directly or indirectly authorize ATC to deploy new
or expanded wireless facilities because the Proposed Franchise sets "ground rules" for
the relationship between the City and ATC, which includes ATC's obligation to comply with
all applicable permitting requirements in the Medina Municipal Code ("MMC").
Accordingly, any new or expanded wireless facilities would be subject to a separate
permit -review process set out in the MMC.
(2) The liquidated damages required under the Proposed Franchise are equal or greater than
the monetary penalties for code enforcement violations under the MMC.' For example,
both the Proposed Franchise and the MMC imposes a $100 fine per day for general
noncompliance issues, but the Proposed Franchise imposes a fine between 1.4 and 1.74
time greater for stop -work order violations in the ROW. The greater fines are reasonable
based on the seriousness of unpermitted work in the ROW and likelihood that City staff
would need to immediately respond to violations, and the additional costs the City would
likely incur as a result.
Legal Considerations:
Local authority over telecommunication facilities deployment —especially deployment within the
ROW —is subject to multiple legal frameworks imposed at the federal, state and local levels. The
subsections below summarize applicable legal considerations.
Federal Law Considerations
See MEDINA, WASH., CODE § 1.15.330.
4882-9613-3350, v. 1 19
AGENDA ITEM 8.1
Federal law preempts local laws or acts that prohibit or effectively prohibit any entity's ability to
provide personal wireless services or telecommunication services.' However, these statutes
included protections for local authority. Federal law preserved local land -use authority, which
included aesthetic discretion over wireless facilities placement and appearance.' Federal law also
creates a "safe harbor" for local laws or acts in connection with competitively neutral and
nondiscriminatory requirements for: (1) ROW management and (2) fair and reasonable
compensation from telecommunications providers.'
In 2018, the Federal Communications Commission ("FCC") interpreted these federal statutes.
The key interpretations most relevant to this matter before the City Council are:
"Material Inhibition" Standard: Any "local statute, regulation ... or local legal requirement"
qualifies as an "effective prohibition" if it "materially inhibits or limits the ability of any
competitor or potential competitor to compete in a fair and balanced legal and regulatory
environment."5 Under this standard, the FCC found that an effective prohibition could
occur when a local government prevents new services or improvements to existing
services.6
Cost -Based Fees for Small Wireless Facilities in the ROW: The FCC found that fees for
small wireless facilities in the ROW (both one-time and recurring) that exceed cost
recovery effectively prohibit entity's ability to provide telecommunication services. Based
on this view, state and local fees for small wireless facilities in the ROW must be
reasonably approximate to the local government's objectively reasonable costs and
imposed on a nondiscriminatory basis.' However, this federal limitation does not extend
to fees for wireline facilities in the ROW that connect small wireless facilities to the broader
communications network.
• Moratorium Ban: Moratoria on telecommunications deployment generally qualifies as an
effective prohibition.' This interpretation includes de jure moratoria (i.e., express
restrictions on new deployments adopted into local law) and de facto moratoria (i.e.,
practices or policies that, in effect, prevent a provider's ability to reasonably anticipate
when deployments will be allowed to proceed).'
Although the FCC also attempted to curtail local discretionary authority over aesthetics, the Ninth
Circuit invalidated those limitations.10
State Law Considerations
2 See 47 U.S.C. §§ 253(a), 332(c)(7)(13)(i)(II).
3 See 47 U.S.C. § 332(c)(7)(A); T-Mobile S. LLC v. City of Roswell, 574 U.S. 293, 300 (2015); see also
City of Portland v. United States, 969 F.3d 1020, 1040-1043 (9th Cir. 2020).
4 See 47 U.S.C. § 253(c).
5 See In RE Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure
Investment, FCC 18-133, 33 FCC Rcd. 9088, 137 (Sep. 27, 2018) (quoting In RE California Payphone
Ass'n, FCC 97-251, 12 FCC Rcd. 14191, 131 (Jul. 17, 1997)) [hereinafter, the "Small Cell Order"].
6 See Small Cell Order, 33 FCC Rcd. 9088 at 137.
7 See id. at 150.
s See In RE Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure
Investment, FCC 18-111, 33 FCC Rcd. 7705, ¶ 144 (Aug. 3, 2018) [hereinafter the "Moratoria Order"];
Portland, 969 F.3d at 1047-1048 (upholding the Moratoria Order).
9 See Moratoria Order, 33 FCC Rcd. 7705 at IT 145-151.
10 See Portland, 969 F.3d at 1040-1043.
4882-9613-3350, v. 1 20
AGENDA ITEM 8.1
State law authorizes cities to require telecommunications providers to obtain a "master permit"
(i.e., a "franchise") before the provider uses the local ROW." However, cities may not
"[u]nreasonably deny" a provider's ability to use the local ROW for telecommunications services.12
Unreasonable denials generally include any denials that would violate applicable federal law.13
With respect to franchise fees, state law generally prohibits local franchise fees on a "telephone
business" that seeks access to the ROW.14 However, cities may collect: (1) reimbursement for
administrative expenses directly related to the franchise and any permits issued in connection
with the franchise; (2) applicable taxes authorized by state law, such as a utility tax; and (3)
compensation on a site -specific basis for certain new or enlarged facilities in the ROW or facilities
installed on city -owned infrastructure (e.g., light standards, traffic signals, wayfinding signs,
etc.).15
Local Law Considerations
Medina Municipal Code ("MMC") Chapter 15.06 governs franchises for telecommunications
service providers in the ROW. The MMC requires all telecommunications providers who desire to
use the ROW to provide telecommunication services to first obtain a nonexclusive franchise from
the City.16
The MMC reserves the City's right to "fair and reasonable consideration" and to recover all the
City's costs in connection with the franchise.17 MMC Chapter 15.10 also imposes common terms
and conditions applicable to all franchise agreements, which include, for example: (1) an express
reservation by the City to exercise police powers; (2) a requirement that franchisees to obtain
permits for proposed installations within the ROW; and (3) various conditions to preserve the
City's ability to manage the ROW and mitigate a franchisee's impact on other ROW users.18 The
terms and conditions in the MMC automatically apply unless expressly stated otherwise in the
franchise agreement.19
MMC Section 15.06.030 sets out factors for the City Council to consider when it weighs whether
to approve or deny a franchise. Those factors are listed and analyzed in the "Staff Analysis"
section of this report.
Procedurally, the City must conduct at least one public hearing to consider the franchise and
cannot approve or deny a franchise until the next regularly scheduled meeting after the public
hearing.20
Proposed Franchise Agreement:
11 See WASH. REV. CODE ANN. § 35.99.030(1).
12 See id. § 35.99.040(1)(d).
13 See id. § 35.99.040(2). Like the FCC's Moratoria Order, state law also generally prohibits moratoria on
telecommunications facilities. See id. § 35.99.050.
14 See id. § 35.21.860(1).
15 See id. §§ 35.21.860(1)(a)—(e).
16 See MEDINA, WASH., CODE §§ 15.06.010, 15.06.050.
17 See id. §§ 15.06.090, 15.06.160-15.06.170.
111 See generally id. §§ 15.10 et seq.
19 See id. § 15.06.010.
20 See id. § 15.06.030.
4882-9613-3350, v. 1 21
AGENDA ITEM 8.1
The proposed franchise agreement between the City and ATC (Attachment 3) (the "Proposed
Franchise") would largely maintain the status quo and renew ATC's franchise for another 10 years
from its effectiveness. If approved, the Proposed Franchise would:
• authorize ATC to continue its existing operations (i.e., the 10 existing nodes already
deployed within the City as shown in Figure 1 and Attachment 2);
• not directly or indirectly authorize or entitle ATC to any future expansions or additional
nodes, which would require separate permit applications submitted by ATC and approved
by the City;
• require ATC to comply with all applicable requirements in the MMC, which includes any
future amendments or additions to the MMC;
• maintain broad insurance, indemnification and financial security protections for the City;
• clarify that the City retains the right to terminate the Proposed Franchise if ATC fails to
cure any material defaults, even if the defaults trigger liquidated damages owed to the
City;
• expand the City's right to seek attorneys' fees for claims that include declaratory relief on
which the City prevails;
• require ATC to reimburse the City for its actual costs in connection with the Proposed
Franchise;
• reserve the City's right to require revenue -generating franchise fees if permissible under
applicable laws; and
• become effective upon acceptance by ATC after adoption by the City Council at a second
meeting after a public hearing.
Staff Analysis:
Staff evaluated each factor in MMC Section 15.06.030. The following recounts each factor and
provides Staff's analysis in italics below the codified factor.
A. Whether the applicant has received all requisite licenses, certificates, and
authorizations from the Federal Communications Commission, the
Washington Utilities and Transportation Commission, and any other
federal or state agency with jurisdiction over the activities proposed by the
applicant;
ATC Outdoor DAS LLC is registered with the Washington Utilities
and Transportation Commission as a Telecommunications
Provider.21 Although ATC Outdoor DAS LLC does not provide
services that require FCC spectrum licenses, its customers do and
21 https://www.utc.wa.gov/company/42475
4882-9613-3350, v. 1 F22
AGENDA ITEM 8.1
will be required to maintain those licenses (and any other
approvals).
B. The capacity of the rights -of -way to accommodate the applicant's
proposed facilities;
Each individual facility and the ROW's capacity to accommodate
the proposed improvements would be evaluated on a case -by -
case basis.
C. The capacity of the rights -of -way to accommodate additional utility and
telecommunications facilities if the franchise is granted;
Each individual facility and the ROW's capacity to accommodate
the proposed improvements would be evaluated on a case -by -
case basis.
D. The damage or disruption, if any, of public or private facilities,
improvements, service, travel or landscaping if the franchise is granted;
The Proposed Franchise requires the franchisee to take
precautions to avoid damage or disruption to the ROW, and to
repair any damage that nevertheless occurs. Work within the
ROW would require construction, traffic control and any other
applicable health and safety approvals that would be evaluated on
a case -by -case basis.
E. The public interest in minimizing the cost and disruption of construction
within the rights -of -way;
The Proposed Franchise requires the franchisee to take
precautions to avoid damage or disruption to the ROW, and to
repair any damage that nevertheless occurs. Work with the
potential to disrupt the ROW would require traffic control and any
other applicable health and safety approvals that would be
evaluated on a case -by -case basis.
F. Applicant's proposed compliance with all applicable development
guidelines;
The Proposed Franchise does not exempt the franchisee from all
applicable development guidelines or other regulations or
ordinances by the City.
G. The effect, if any, on public health, safety and welfare if the franchise
requested is granted;
No adverse impacts are a foreseeable result from approval of the
Proposed Franchise. If an application for any future facility or
other work created a foreseeable adverse impact on public health,
4882-9613-3350, v. 1 F23]
AGENDA ITEM 8.1
safety or welfare, the City would have the opportunity to impose
mitigation conditions or deny such applications.
H. The availability of alternate routes and/or locations for the proposed
facilities;
Staff sees no comparable alternative to the ROW.
I. Such other factors as may demonstrate that the grant to use the rights -of -
way will or will not serve the community interest.
The Proposed Franchise will maintain the status quo under the
Original Ordinance with additional liability protections and
enforcement mechanisms for the City's benefit. If any future
additions or expansions to the existing facilities created cause for
concern, those proposals would be evaluated and any concerns
would be mitigated on a case -by -case basis. Staff perceives no
other factors to suggest that the Proposed Franchise would be
counter to the community interest.
Recommendation:
Staff recommends that the City Council hold two public hearings (9/23/24 and 10/14/24), take
public testimony, and direct staff to add a second public hearing to the October 14 City Council
for meeting for adoption of Ordinance No. 1032, approving the Proposed Franchise.
Attachments:
1. DRAFT Ordinance No. 1032 —An Ordinance of the City of Medina, Washington, Granting
a Nonexclusive Telecommunications Franchise to Construct and Operate a Distributed
Antenna System; Providing for Severability; and Establishing an Effective Date, including
Exhibit A— Proposed Franchise Agreement.
2. Ordinance No. 863 — An Ordinance of the City of Medina, Washington, Granting a
Nonexclusive Telecommunications Franchise to Construct and Operate a Distributed
Antenna System; Providing for Severability; and Establishing an Effective Date.
Budget/Fiscal Impact: Various.
Recommendation: Hold public hearing, take public testimony, and add to October 14 City
Council meeting for a second public hearing and action.
City Manager Approval:. -
Proposed Council Motion: N/A
Time Estimate: 45 minutes
4882-9613-3350, v. 1 F24]
AGENDA ITEM 8.1
CITY OF MEDINA, WASHINGTON
ORDINANCE NO. 1032
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
MEDINA, WASHINGTON, GRANTING TO ATC OUTDOOR
DAS LLC THE RIGHT, PRIVILEGE AND AUTHORITY FOR A
NON-EXCLUSIVE TELECOMMUNICATIONS FRANCHISE
IN, ACROSS, OVER, ALONG, UNDER, THROUGH AND
BELOW THE PUBLIC RIGHTS -OF -WAY OF THE CITY OF
MEDINA, WASHINGTON, PROVIDING FOR SEVERABILITY
AND CORRECTIONS, AND ESTABLISHING AN EFFECTIVE
DATE.
WHEREAS, on November 8, 2010, the Medina City Council (the "City Council")
adopted Ordinance No. 863 (the "Original Franchise"), which granted ATC Outdoor DAS
LLC (the "Franchisee") a non-exclusive telecommunications franchise to use the public
rights -of -way ("ROW") within the City of Medina, Washington (the "City"); and
WHEREAS, on December 9, 2020, the Original Franchise expired by its own
terms but the Franchisee continued to operate the facilities authorized by the Original
Franchise and permitted by the City; and
WHEREAS, the Franchisee has requested that the City Council grant a new non-
exclusive telecommunications franchise as shown in Exhibit A (the "Proposed
Franchise") that will allow, subject to its terms and conditions, the Franchisee to
continue its operations within the City's ROW; and
WHEREAS, pursuant to RCW 35A.47.040, the City Council has the authority to
grant franchises for telecommunication services in the City's ROW; and
WHEREAS, pursuant to Medina Municipal Code ("MMC") Chapter 15.06, any
person who desires to use the ROW for telecommunications facilities must first obtain a
franchise from the City Council; and
WHEREAS, the City Council is willing to approve the Franchisee's request
subject to the terms and conditions in the Proposed Franchise, which both the City
Council and the Franchisee reviewed and deemed acceptable; and
WHEREAS, on September 23, 2024, the City Council held a duly noticed public
hearing to consider the Proposed Franchise, a report and recommendation by City staff
and any public testimony; and
-1-
4882-5818-4934, v. 1
10927711.1 - 371096 - 0022 25
AGENDA ITEM 8.1
WHEREAS, on October 14, 2024, the City Council at a regular meeting approved
the Proposed Franchise by a majority of the entire city council consistent with the
requirements of RCW 35A.47.040.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MEDINA,
WASHINGTON, HEREBY ORDAIN AS FOLLOWS:
Section 1. Findings. The recitals set forth above are hereby adopted as findings
in support of this ordinance.
Section 2. Franchise Granted. The City Council approves the Proposed
Franchise, as shown in Exhibit A, and grants the Franchisee a non-exclusive franchise
to provide telecommunication services in, across, over, along, under, through and below
the City's ROW.
Section 3. Deadline for Acceptance. The rights and privileges granted pursuant to
this Ordinance shall not become effective until the Franchisee accepts the terms and
conditions in the Proposed Franchise. Such acceptance shall be filed with the City Clerk
within thirty (30) days after the Effective Date (as defined in Section 7 below), and must
contain: (a) a true and correct copy of the Proposed Franchise executed by the
Franchisee; (b) any required letter of credit or other security instrument required under
the Proposed Franchise; (c) evidence of insurance required under the Proposed
Franchise; and (d) full payment of any applicable application fees pursuant to MMC.
Such instrument shall evidence the unconditional acceptance of the terms hereof and a
promise to comply with and abide by the provisions, terms and conditions in the
Proposed Franchise.
Section 4. Severability. If any section, sentence, clause or phrase of this
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 Ordinance.
Section 5. Publication. This Ordinance shall be published by an approved
summary consisting of the title.
Section 6. Corrections. Upon the approval of the city attorney, the city clerk is
authorized to make any necessary technical corrections to this ordinance, including but
not limited to the correction of scrivener's/clerical errors, references, ordinance
numbering, section/subsection numbers, and any reference thereto.
Section 7. Effective Date. This Ordinance, being an exercise of a power
specifically delegated to the City legislative body, is not subject to referendum, and shall
take effect five (5) days after passage and publication of an approved summary thereof
consisting of the title, all as required by law ("Effective Date").
-2-
4882-5818-4934, v. 1
10927711.1 - 371096 - 0022 26
AGENDA ITEM 8.1
PASSED BY THE CITY COUNCIL ON THIS _ DAY OF , 2024
BY A VOTE OF X FOR, X AGAINST, AND X ABSTAINING, AND IS SIGNED IN
AUTHENTICATION OF ITS PASSAGE ON THE XX DAY OF ,
2024.
Jessica Rossman
Mayor
ATTEST/AUTH ENTICATED:
Aimee Kellerman
City Clerk
APPROVED AS TO FORM:
INSLEE, BEST, DOEZIE and RYDER PS
Jennifer S. Robertson
City Attorney
PUBLISHED:
EFFECTIVE DATE:
ORDINANCE NO.: 1032
-3-
4882-5818-4934, v. 1
10927711.1 - 371096 - 0022 27
AGENDA ITEM 8.1
EXHIBIT A
PROPOSED FRANCHISE
[appears behind this coversheet (106 pages)]
-4-
4882-5818-4934, v. 1
10927711.1 - 371096 - 0022 28
AGENDA ITEM 8.1
DISTRIBUTED ANTENNA SYSTEM ("DAS") FRANCHISE
This DISTRIBUTED ANTENNA SYSTEM ("DAS") FRANCHISE (this "Franchise") is entered
between the City of Medina, Washington (the "City") and ATC Outdoor DAS, LLC ("ATC" or
"Franchisee") as of the Effective Date (as defined below).
BACKGROUND
WHEREAS, the Right -of -Way within the City of Medina belong to the public and are
built and maintained at public expense for the use of the general public, the primary purpose of
which is public travel, and must be managed and controlled consistent with that intent; and
WHEREAS, ATC operates a Distributed Antenna System in the City's Right -of -Way
pursuant to that certain that certain Ordinance No. 863 providing a grant of telecommunication
franchise to ATC to construct, install, maintain, repair and operate a Distributed Antenna System
to provide telecommunications services using the Right -of -Way; and
WHEREAS, the grant of telecommunication franchise expired on December 9, 2020, and
ATC represents that it desires to continue operating its telecommunication facilities, as that term
is defined in the Medina Municipal Code Section 15.02.020 as further described in Exhibit A,
attached here to and incorporated by reference herein, within the City; and
WHEREAS, based on representations and information provided by ATC, and in response
to its request for a renewal of the grant of a franchise, the City Council has determined that the
renewal of the grant of a nonexclusive franchise, on the terms and conditions herein and subject to
applicable law, are consistent with the public interest; and
WHEREAS, the City is authorized by applicable law to grant such a nonexclusive
franchises within the boundaries of the City,
NOW, THEREFORE, for good and valuable consideration, received and acknowledged
by the City and ATC, the parties agree as follows:
ARTICLE 1. DEFINITIONS
For the purposes of this Franchise and the exhibits attached hereto, the following terms,
phrases, words and their derivations where capitalized shall have the meanings given herb Words
not defined herein shall have the meaning given in Medina Municipal Code ("MMC") Title 15 (as
set forth in Exhibit A hereto). Words not defined herein or in MMC Title 15, shall have the
meaning given in MMC Chapter 16.12. Words not defined herein or in MMC Title 15 or MMC
Chapter 16.12 shall have the same meaning given pursuant to such federal or state statutes, rules,
or regulations that apply to and regulate the services provided by Franchisee. Words not otherwise
defined shall be given their common and ordinary meaning. When not inconsistent with the
context, words used in the present tense include the future, words in the plural include the singular,
and words in the singular include the plural. The word "shall" is always mandatory and not merely
4884-5145-5457, v. 1 29
AGENDA ITEM 8.1
directory. References to governmental entities (whether persons or entities) refer to those entities
or their successors in authority. If specific provisions of law, regulation or rule referred to herein
be renumbered, then the reference shall be read to refer to the renumbered provision.
"Agent" means a Party's agent, employee, director, officer, contractor, subcontractor or
representative in relation to this Franchise or the Franchise Area.
"Breach" shall mean any failure of a Party to keep, observe, or perform any of its duties or
obligations under this Franchise.
"City" shall mean the City of Medina.
"City Manager" means the City Manager of the City of Medina whether permanent or
acting, or the City Manager's designee.
"Construct", "Constructing" or "Construction" shall mean to construct, reconstruct, install,
reinstall, align, realign, locate, relocate, adjust, affix, attach, remove, or support.
"Direct Costs" shall mean and include all costs and expenses incurred by the City directly
related to a particular activity or activities set forth in this Franchise, including by way of example:
i. All costs and expenses of materials, equipment, supplies, utilities,
consumables, goods and other items used or incorporated in connection with and in
furtherance of the activity or activities set forth in this Franchise and any taxes,
insurance, and interest expenses related thereto, including costs for crews and
equipment;
ii. All costs and expenses of labor inclusive of payroll benefits, non-
productive time and overhead for each of the labor classifications of the employees
performing work for the activity or activities set forth in this Franchise and
determined in accordance with the City's ordinary governmental accounting
procedures; and
iii. All costs and expenses to the City for any Work performed by
consultants or contractors to the extent performed for a particular activity or
activities set forth in this Franchise, including by way of example and not limitation,
engineering and legal services.
"Dispute" shall mean a question or controversy that arises between the Parties concerning
the observance, performance, interpretation or implementation of any of the terms, provisions, or
conditions contained in this Franchise or the rights or obligations of either Party under this
Franchise.
"DAS" or "Distributed Antenna System" means a network comprised of small, spatially
separated, low -power antennas referred to as "nodes", connected to a "central hub" by "fiber optic
cable" or other transport medium.
4884-5145-5457, v. 1 30
AGENDA ITEM 8.1
"Effective Date" shall mean and refer to that term as it is defined at Section 4.3
herein.
"Emergency" shall, in addition to the meaning given pursuant to MMC Section
15.02.020 in Exhibit A, mean and refer to a sudden condition or set of circumstances that
significantly disrupts or interrupts the operation of Telecommunications Facilities in the Right -of -
Way and Franchisee's ability to continue to provide services if immediate action is not taken.
"Environmental Law(s)" means any federal, state or local statute, regulation, code, rule,
ordinance, order, judgment, decree, injunction or common law pertaining in any way to the
protection of human health or the environment, including without limitation, the Resource
Conservation and Recovery Act, the Comprehensive Environmental Response, the Compensation
and Liability Act, the Toxic Substances Control Act, and any similar or comparable federal, state
or local law.
"Franchisee" shall mean ATC Outdoor DAS, LLC, and any of its Affiliates.
"Franchise Ordinance" shall mean this Ordinance setting forth the terms and conditions
upon which Franchisee shall be granted a Franchise.
"Franchise Area" shall mean the area identified in Exhibit B attached hereto and
incorporated by reference herein. If, as a consequence of the special use permit process for
Franchisee's Facilities, Franchisee is not permitted to locate its Facilities exactly as shown on
Exhibit B, the Parties agree automatically, with no further action required by either Party, to
substitute as part of this Franchise a revised Exhibit B identifying as the Franchise Area the
locations for which Franchisee successfully obtains special use permit approval to construct its
Facilities.
"Hazardous Substance" means any hazardous, toxic, radioactive or infectious substance,
material or waste as defined, listed or regulated under any Environmental Law, and any element,
compound, mixture, solution, particle, or substance which presents danger or potential danger for
damage or injury to health, welfare, or to the environment, including, but not limited to: those
substances which are inherently or potentially radioactive, explosive, ignitable, corrosive, reactive,
carcinogenic, or toxic; those substances which have been recognized as dangerous or potentially
dangerous to health, welfare, or to the environment by any federal, municipal, state, City, or other
governmental or quasi -governmental authority, and/or any department or agency thereof; those
substances which use, or have a component thereof or therein which uses, asbestos or lead -based
paint; and petroleum oil and any of its fractions.
"Indemnified City Party" or "Indemnified City Parties" means the City, its Agents, elected
and appointed officials, engineers, consultants, and volunteers.
"Law(s)" shall mean all applicable laws, ordinances, rules, regulations, resolutions,
permits, environmental standards, orders, decrees and requirements of all federal, state, City and
municipal governments, the departments, bureaus or commissions thereof, government authorities,
4884-5145-5457, v. 1 31
AGENDA ITEM 8.1
boards or officers, any national or local board of fire underwriters, or any other governmental body
or bodies exercising similar functions having or acquiring jurisdiction over all or any part of the
Telecommunications Facilities, including the City acting in its governmental capacity. References
to Laws shall be interpreted broadly to cover government actions, however nominated.
"Legal Action" shall mean filing a lawsuit, invoking the right to arbitration, or taking action
to enforce a Party's rights under this Franchise.
"Noticed Party" shall mean the Party in receipt of a Breach notice.
"Party(ies)" shall mean either the City or Franchisee or both.
"Public Works Director" means and refers to the Public Works Director for the City or his
or her designee, or such officer or person who has been assigned the duties of Public Works
Director or his or her designee.
"Regulatory Permit" means a construction permit issued pursuant to MMC Chapter 15.12
that provides specific requirements and conditions for Work to Construct Telecommunications
Facilities within the Right -of -Way, and any other permit required pursuant to the Medina
Municipal Code to perform the proposed work within the Right- of -Way including a special use
permit, building permit, street cut permit, or clearing and grading permit.
"Remedy", "Remediate" and "Remedial Action" shall have the same meaning as these are
given under the Model Toxics Control Act (Chapter 70A.305 RCW) and its implementing
regulations at Chapter 173-340 WAC.
"Right -of -Way" shall have that meaning given pursuant to MMC Chapter 15.02 in Exhibit
A; provided that, it shall not include railroad rights -of -way, airports, harbor areas, buildings, parks,
and other such similar facilities or property owned, maintained or leased by the City in its
governmental or proprietary capacity or as an operator of a utility.
"Standards" shall mean those standards and codes set forth in Section 7.2 of this Franchise.
"Telecommunications" is the transmission of information by wire, radio, optical cable,
electromagnetic, or other similar means. As used in this definition, "information" means
knowledge or intelligence represented by any form of writing, signs, signals, pictures, sounds, or
any other symbols.
"Telecommunications Facilities" shall have the same meaning given pursuant MMC
Chapter 15.02 in Exhibit A, and by way of further clarification, shall mean and include any part
or all of the facilities, equipment and appurtenances of Franchisee, whether underground or
overhead, located within the Right -of -Way as part of Franchisee's Distributed Antenna System,
including by way of example and not limitation, radios, amplifiers, optical converters,
multiplexers, antennas, nodes, innerducts, pedestals, boxes, cabinets, coax cable trays, primary and
auxiliary power supplies, power meters, support structures, foundations, mounting hardware,
cases, pipes, lines, fiber, equipment, equipment cabinets and shelters, vaults, conductors, poles,
4884-5145-5457, v. 1 32
AGENDA ITEM 8.1
carriers, drains, vents, guy wires, encasements, sleeves, valves, wires, supports, towers, anchors,
transmitters, receivers, and signage.
"Transfer" shall mean any transaction in which all or a portion of the Telecommunications
Facilities are sold, leased or assigned (except a sale or transfer that results in removal of a particular
portion of the Telecommunications Facilities from the Right -of -Way), or any transaction in which
all or a portion of the rights and/or obligations held by Franchisee under the Franchise are
transferred, sold, assigned, or leased, in whole or in part, directly or indirectly, to another entity.
A transfer of control of an operator shall not constitute a transfer as long as the same entity
continues to hold the Franchise both before and after such transfer. Notwithstanding the foregoing,
an agreement with a third -party Telecommunications service provider to utilize the
Telecommunications Facilities shall not constitute a Transfer under this Franchise.
"Work" shall mean any and all activities of Franchisee, or its officers, directors, employees,
Agents, contractors, subcontractors, volunteers, invitees, or licensees, within the Right -of -Way to
Construct the Telecommunications Facilities.
2 ARTICLE 2. FRANCHISE GRANT
2.1 Right -of -Way Use Authorized. Subject to the terms and conditions of this Franchise,
the City hereby grants to Franchisee a nonexclusive Franchise authorizing Franchisee
to Construct and operate Telecommunications Facilities in, along, among, upon,
across, above, over, and under the Right -of -Ways located within the Franchise Area.
Further, this Franchise incorporates by reference the provisions of MMC Title 15 as
in effect on the Effective Date of this Franchise, a copy of which is attached hereto
as Exhibit A; provided that, in the case of conflict between this Franchise and any
term or provision in Exhibit A or any future term or provision of the Medina
Municipal Code, the conflict shall be resolved as provided in Exhibit A (see e.g.,
MMC Sections 15.06.040 and 15.10.360). Notwithstanding the foregoing, the Parties
acknowledge that the City may hereafter modify MMC Title 15 and those
modification may apply to this Franchise as provided in Section 3.3.
2.2 Authorized Services. The grant given herein expressly authorizes Franchisee to
Construct, install, maintain, repair and operate a Distributed Antenna System to
provide Telecommunications services. This authorization is limited and is not
intended nor shall it be construed as granting Franchisee or any other Person the
right, duty or privilege to use its Telecommunications Facilities or the Right -of -Way
to provide services not specifically authorized therein. This Franchise shall not be
interpreted to prevent the City from lawfully imposing additional conditions,
including additional compensation conditions for use of the Right -of -Way, should
Franchisee provide service other than Telecommunications service. Specifically, this
grant does not include the authorization to provide Cable Service.
2.3 No Rights Shall Pass to Franchisee bImplication. No rights shall pass to Franchisee
by implication. Without limiting the foregoing and by way of example, this Franchise
shall not include or be a substitute for:
4884-5145-5457, v. 1 33
AGENDA ITEM 8.1
2.3.1 Any other authorization required for the privilege of transacting and
carrying on a business within the City that may be lawfully required by the
Laws of the City;
2.3.2 Any agreement or authorization required by the City for Right -of- Way
users in connection with operations on or in Right -of -Way or public
property including, by way of example and not limitation, a utility permit;
or
2.3.3 Any licenses, leases, easements or other agreements for occupying any
other property or infrastructure of the City or other Persons to which access
is not specifically granted by this Franchise including, without limitation,
agreements for placing devices on poles, light standards, in conduits, in
vaults, in or on pipelines, or in or on other structures or public buildings.
2.3.4 Any permits or other authorizations that may be required under the land use
code and development regulations of the City for the construction of
Telecommunications Facilities within a particular zoning district in the
City, including by way of example and not limitation, a conditional use
permit or a variance.
2.4 Interest in the Right-of-WaX. This Franchise shall not operate or be construed to
convey title, equitable or legal, in the Right -of -Way to Franchisee. No reference
herein to a Right -of -Way shall be deemed to be a representation or guarantee by the
City that its interest, or other right to control the use of such Right -of -Way, is
sufficient to grant its use for such purposes. This Franchise shall be deemed to grant
no more than those rights which the City may have the undisputed right and power
to give. The grant given herein does not confer rights other than as expressly provided
in the grant hereof and is subject to the limitations in applicable Law. Such right may
not be subdivided or subleased to a person other than Franchisee.
Franchisee acknowledges that, where City has an ownership interest in a Franchise
Area, that ownership interest may be a determinable fee, a public Right -of- Way
dedication, or a Right -of -Way easement, which may terminate when City either: (i)
ceases to use that Right -of -Way for Right -of -Way purposes; or (ii) uses such Right-
of- Way for purposes found to be inconsistent with use of the Right -of -Way for
Right -of- Way purposes, and that in such circumstances, City's right to franchise or
grant the use of any such Right -of -Way, or rights under any franchise of any such
Right -of -Way, may be subject to termination as of the date the circumstances set
forth in either (i) or (ii) above (unless Franchisee improves the quality of title to the
applicable Franchise Area, or acquiring additional property interests from other
persons or entity).
Franchisee also acknowledges that, where City has ownership rights, those
4884-5145-5457, v. 1 34
AGENDA ITEM 8.1
ownership rights may terminate for other reasons, such as a street vacation.
Franchisee further acknowledges that Franchisee's rights under this Franchise as to
any Franchise Area are subject and subordinate to all outstanding rights and
encumbrances on City's Right -of -Way, and any easements, other Franchise
Agreements, licenses, permits or agreements in effect on or before the Effective Date.
City therefore grants to Franchisee no more right, title and interest in any Right -of -
Way than the City holds in such Right -of- Way at the time of grant, and Franchisee
hereby releases City from any and all liability, cost, loss, damage or expense in
connection with any claims that City lacked sufficient legal title or other authority to
convey the rights described herein. In case of eviction of franchisee or Franchisee's
contractors by anyone owning or claiming title to, or any interest in the Franchise
Area, City shall not be liable to Franchisee or Franchisee's Contractors for any costs,
losses or damages of any Party.
CITY DOES NOT WARRANT ITS TITLE OR PROPERTY INTEREST IN OR TO
ANY FRANCHISE AREA NOR UNDERTAKE TO DEFEND FRANCHISEE IN
THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF
QUIET ENJOYMENT IS MADE.
2.5 Condition of Franchise Area. Franchisee has inspected or will inspect Franchise
Area. Franchisee enters upon each such Franchise Area with knowledge of its
physical condition and the danger inherent in operations conducted in, on or near any
Franchise Area. FRANCHISEE ACCEPTS THE FRANCHISE AREA IN AN "AS -
IS WITH ALL FAULTS" BASIS, WITH ANY AND ALL PATENT AND LATENT
DEFECTS, AND IS NOT RELYING ON ANY REPRESENTATION OR
WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND WHATSOEVER
FROM THE CITY AS TO ANY MATTERS CONCERNING THE FRANCHISE
AREA, including, but not limited to the physical condition of the Franchise Area;
zoning status; presence and location of existing utilities; operating history;
compliance by the Franchise Area with Environmental Laws or other Laws and other
requirements applicable to the Franchise Area; the presence of any Hazardous
Substances or wetlands, asbestos, or other environmental conditions in, on, under, or
in proximity to the Franchise Area; the condition or existence of any of the above
ground or underground structures or improvements, including tanks and transformers
in, on or under the Franchise Area; the condition of title to the Franchise Area, and
the leases, easements, Franchises, orders, licensees, or other agreements, affecting
the Franchise Area (collectively, the "Condition of the Franchise Area").
Franchisee represents and warrants to the City that neither Franchisee nor its
contractors or subcontractors have relied and will not rely on, and the City is not
liable for or bound by, any warranties, guaranties, statements, representations or
information pertaining to the Condition of the Franchise Area or relating thereto
made or furnished by the City, or any agent representing or purporting to represent
the City, to whomever made or given, directly or indirectly, orally or in writing.
4884-5145-5457, v. 1 0
AGENDA ITEM 8.1
CITY HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY,
WHETHER EXPRESS OR IMPLIED, AS TO THE DESIGN OR CONDITION OF
THE FRANCHISE AREA, ITS MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE, THE QUALITY OF THE MATERIAL OR
WORKMANSHIP OF THE RIGHT-OF-WAY, OR THE CONFORMITY OF ANY
PART OF THE RIGHT-OF-WAY TO ITS INTENDED USES. CITY SHALL NOT
BE RESPONSIBLE TO FRANCHISEE OR ANY OF FRANCHISEE'S
CONTRACTORS FOR ANY DAMAGES RELATING TO THE DESIGN,
CONDITION, QUALITY, SAFETY, MERCHANTABILITY OR FITNESS FOR
ANY PARTICULAR PURPOSE OF ANY PART OF THE RIGHT -OF- WAY
PRESENT ON OR CONSTITUTING ANY FRANCHISE AREA, OR THE
CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED USES.
2.6 Franchise Nonexclusive. This Franchise shall be nonexclusive, and subject to all
prior rights, interests, easements, permits, franchises or licenses granted by the City
to any other person or entity prior to the Effective Date of this Franchise to use the
Right -of -Way for the purposes set forth in such authorizations, and subject to the
right of the City to use the same for any purpose it deems at including similar
purposes allowed Franchisee hereunder. Further, except as otherwise provided herein
for public entities, the City may at any time grant authorization to third parties to use
the Right -of -Way for any purpose that does not unreasonably interfere with
Franchisee's authority under this Franchise.
Transfer. In addition to the requirements set forth in MMC Section 15.10.300, no Transfer
may be approved by the City unless Franchisee has delivered to the City the transferee's
written commitment, in substantially the form of the agreements attached hereto as Exhibits
C and C-1, that transferee(s) shall thereafter be responsible for all obligations of Franchisee
with respect to the Franchise and guaranteeing performance under the terms and conditions
of the Franchise and that transferee(s) will be bound by all of the conditions of the
Franchise and will assume all of the obligations of its predecessor. Such a written
commitment and approval of the Transfer shall relieve Franchisee of any further
obligations under the Franchise, including any obligations not fulfilled by Franchisee's
transferee; provided that, the Transfer shall not in any respect relieve Franchisee, or any of
its successors in interest, of responsibility for acts or omissions, known or unknown, or the
consequences thereof, which acts or omissions occur prior to the time of the Transfer. It is
further provided that, this Franchise may not be Transferred without the transferee filing
or establishing with the City the insurance certificates, security fund and performance bond
required pursuant to this Franchise.
Notwithstanding the foregoing, notice to the City shall not be required for a mortgage,
hypothecation or an assignment of Franchisee's interest in the Franchise in order to secure
indebtedness.
Notwithstanding any provisions in MMC Section 15.10.300 to the contrary, Franchisee
may, without the prior written notice to and consent of the City: (i) lease the
Telecommunications Facilities, or any portion thereof, to another person or entity; (ii) grant
4884-5145-5457, v. 1 36
AGENDA ITEM 8.1
an Indefeasible Right of User Interest in the Telecommunications Facilities, or any portion
thereof, to another person or entity; or (iii) offer or provide capacity or bandwidth in its
Telecommunications Facilities to another person or entity; provided that (a) Franchisee at
all times retains exclusive control over it Telecommunications Facilities and remains
responsible for Constructing its Telecommunications Facilities pursuant to the terms and
conditions of this Franchise; (b) Franchisee may grant no rights to any such person or entity
that are greater than any rights Franchisee has pursuant to this Franchise; (c) such person
or entity shall not be construed to be a third -party beneficiary hereunder; and, (d) no such
person or entity may use the Telecommunications Facilities for any purpose not authorized
herein.
2.7 Street Vacation. Unless as a condition of such vacation Franchisee is granted the
right to continue its Telecommunications Facilities in the vacated Right -of -Way, if
any Right -of -Way or portion thereof used by Franchisee is to be vacated during the
term of this Franchise, Franchisee shall, without delay or expense to City, remove its
Telecommunications Facilities from such Right -of -Way, and restore, repair or
reconstruct the Right -of -Way where such removal has occurred, and place the Right -
of -Way in the same or better condition than existed prior to Franchisee's
Construction of its Telecommunications Facilities.
2.8 Reservation of City Use of Right -of -Way. Nothing in this Franchise shall prevent the
City from performing the following actions in any Right -of -Way: Constructing
sanitary or storm sewers; grading, changing grade, paving, repairing or altering any
Right -of -Way; laying down, repairing or removing water mains; or installing conduit
or fiber optic cable.
3 ARTICLE 3. COMPLIANCE WITH LAWS
3.1 Compliance with Laws. Except as otherwise provided herein, Franchisee agrees to
comply with all applicable Laws as now or hereafter in effect; provided that, nothing
herein shall operate as a waiver of Franchisee's right to contest the validity of such
Laws or the application of such Laws to Franchisee.
3.2 Police Powers. Franchisee acknowledges that its rights hereunder are subject to those
powers expressly reserved by the City and further are subject to the police powers of
the City to adopt and enforce ordinances necessary to protect the health, safety and
welfare of the public. Such powers include but are not limited to (a) the right to adopt
and enforce applicable zoning, building, permitting and safety ordinances and
regulations; (b) the right to adopt and enforce ordinances and regulations relating to
equal employment opportunities; and (c) the right to adopt and enforce ordinances
and regulations governing Work performed in the Right -of -Way. However, this
Section 3.2 shall not be read or interpreted as a waiver of Franchisee's right to contest
the validity of such ordinances or the application of such ordinances to Franchisee.
The Parties acknowledge and agree that any Regulatory Permits for the Construction
of Telecommunications Facilities shall be subject to the laws in effect at the time
4884-5145-5457, v. 1 37
AGENDA ITEM 8.1
Franchisee submits a complete application for such permit. Following completion of
the Construction authorized by such permit(s), the Parties agree that, if the Laws are
thereafter modified such that any existing Telecommunication Facilities becomes
non -conforming, such Telecommunication Facilities shall be considered under the
non -conforming use and structures provisions of the Medina Municipal Code (MMC
Chapter 16.36). The Parties further acknowledge and agree that any time Franchisee
is doing work in the Right -of -Way, Franchisee shall comply with the applicable
Medina Right -of -Way construction standards in effect at the time Franchisee is
undertaking such work in the Medina Right -of -Way. Such standards are, upon the
effective date of this Franchise, set forth in Title 12 of the Medina Municipal Code.
3.3 Alteration of Material Terms and Conditions. Subject to federal and State
preemption, the material rights, benefits, obligations or duties as specified in this
Franchise may not be unilaterally altered by the City through subsequent
amendments to any ordinance, regulation, resolution or other enactment of the City,
except within the lawful exercise of the City's police power. In the event of a
unilateral alteration to this Franchise by the City pursuant to this Section, either Party
may initiate renegotiation of the Franchise pursuant to Section 3.5.
3.4 Reservation of Rights/Waiver. The City shall be vested with the power and right to
administer and enforce the requirements of this Franchise and the regulations and
requirements of applicable Law, or to delegate that power and right, or any part
thereof, to the extent permitted under Law, to any agent in the sole discretion of the
City. The City expressly reserves all of its rights, authority and control arising from
any relevant provisions of federal, State or local Laws granting the City rights,
authority or control over the Right- of -Way or the activities of Franchisee. Except as
provided herein, nothing in this Franchise shall be deemed to waive the requirements
of the various codes and ordinances of the City regarding franchises, fees to be paid
or manner of Construction. Nothing in this Franchise shall be deemed to waive, and
Franchisee specially reserves the right to challenge any City ordinance, regulation or
resolution that conflicts with its rights under this Franchise.
3.5 Subsequent Action. In the event that after this Franchise becomes effective, (a) there
is a change in or clarification of the Law which changes, broadens or clarifies the
authority or obligations of the City or Franchisee with respect to any act permitted
or authorized under this Franchise, or (b) the State of Washington or any agency
thereof or any agency of the Federal government requires Franchisee or the City to
act in a manner which is inconsistent with any provisions of this Franchise, or (c)
any term, article, section, subsection, paragraph, provision, condition, clause,
sentence, or other portion of this Franchise, or its application to any person, entity,
or circumstance, shall be held to be illegal, invalid or unconstitutional for any reason
by any court or agency of competent jurisdiction, or (d) because of a change in
circumstances, the City or Franchisee believe that amendments to this Franchise are
necessary or appropriate, then the City and Franchisee agree to enter into good faith
negotiations to amend this Franchise so as to enable the City and Franchisee to
address, in a manner reasonably acceptable to the City and Franchisee, such change
4884-5145-5457, v. 1 38
AGENDA ITEM 8.1
or other development which formed the basis for the negotiations. The City and
Franchisee recognize that the purpose of the negotiations would be to preserve, to
the maximum extent consistent with Law, the intent, scope and purpose of this
Franchise.
If the terms of this Franchise are materially altered due to changes in or clarifications
of governing Law or due to agency rule making or other action, then the Parties shall
negotiate in good faith to reconstitute this Franchise in a way consistent with then -
applicable Law in a form that, to the maximum extent possible, is consistent with
the original scope, intent and purpose of the City and Franchisee and preserves the
benefits bargained for by each Party.
3.6 Change in Form of Government. Any change in the form of government of the City
shall not affect the validity of this Franchise. Any governmental unit succeeding the
City shall, without the consent of Franchisee, succeed to all of the rights and
obligations of the City provided in this Franchise.
3.7 Relationship to MMC. This Article 3 supersedes MMC Sections 15.10.030 and
15.10.040.
4 ARTICLE 4. ACCEPTANCE
4.1 Acceptance. Within thirty (30) days after the passage and approval of this Franchise
by the City Council, this Franchise shall be accepted by Franchisee by filing with the
City clerk during regular business hours, or such other person as may be designated
by the City, three originals of this Franchise with its original signed and notarized
written acceptance of all of the terms, provisions and conditions of this Franchise in
conformance with Exhibit D, together with all of the following, if required herein:
4.1.1 Payment in readily available funds of the administrative costs for issuance
of the Franchise in conformance with the requirements of Section 5.7
herein;
4.1.2 Submission of proof of financial security in accordance with Section 5.4
herein;
4.1.3 Payment of the costs of publication of this Franchise Ordinance in
conformance with the requirements of Sections 5.7 and 8.18 herein; and
4.1.4 Parental guarantee (on the form attached in Exhibit H), if required, in
conformance with the requirements of Section 5.5 herein.
In the event that the thirtieth (30th) day falls on a Saturday, Sunday or legal holiday
during which the City is closed for business, the filing date shall fall on the last
business day before such Saturday, Sunday or legal holiday.
4884-5145-5457, v. 1 39
AGENDA ITEM 8.1
4.2 Failure to Timely File Acceptance. Except as provided in this Section 4.2, the failure
of the Franchisee to timely file its written acceptance shall be deemed a rejection by
Franchisee of this Franchise, and this Franchise shall then be void. In the event that
Franchisee timely files its written acceptance but fails to timely comply with the
applicable requirements of sections 4.1.1 through 4.1.4, this Franchise shall be
voidable in the sole discretion of the City Manager, without further action required
by the City Council, by giving a written notice of the same to Franchisee. The
Franchise shall be voidable until such time as Franchisee complies with all of the
applicable requirements of sections 4.1.1 through 4.1.4. No opportunity to cure or
public hearing is required to void the Franchise pursuant to this Section 4.2.
4.3 Effective Date; Term.
4.3.1 Effective Date. Except as provided pursuant to Section 4.2 of this Franchise,
the Effective Date of this Franchise Ordinance and Franchise shall be 12:01
a.m. on the 31 st day following passage and approval of this Franchise by
the City Council. This Franchise and the rights, privileges, and authority
granted herein, and the contractual relationship established hereby, shall
take effect and be in force from and after the Effective Date of this Franchise
Ordinance for the term specified in Section 4.3.2 below.
4.3.2 Term. The term of this Franchise shall commence on the Effective Date and
shall continue in full force and effect for a period of ten (10) years, unless
sooner terminated, revoked or rendered void. This Section supersedes
MMC Section 15.06.060.
4.4 Effect of Acceptance. By accepting the Franchise, Franchisee:
4.4.1 Accepts and agrees to comply with and abide by all of the lawful terms and
conditions set forth in this Franchise;
Acknowledges and accepts the City's legal right to grant thisFranchise;
4.4.2 Agrees that the Franchise was granted pursuant to processes and procedures
consistent with applicable Law and that Franchisee will not raise any claim
to the contrary;
4.4.3 Agrees that it enters into this Franchise freely and voluntarily, without any
duress or coercion, after free and full negotiations, after carefully reviewing
all of the provisions, conditions and terms of this Franchise Agreement, and
after consulting with counsel;
4.4.4 Acknowledges and agrees that Franchise has carefully read the terms and
conditions of this Franchise; Franchise unconditionally accepts and agrees
to abide by all of the terms and conditions of this Franchise; Franchise has
4884-5145-5457, v. 1 40
AGENDA ITEM 8.1
relied upon its own investigation of all relevant facts; and this Franchise
represents the entire agreement between Franchisee and the City;
4.4.5 Warrants that Franchisee has full right and authority to enter into and accept
this Franchisee in accordance with the terms hereof, and by entering into or
performing this Franchise, Franchisee is not in violation of Franchisee's
charter or by-laws, or any law, regulation, or agreement by which
Franchisee is bound or to which Franchisee is subject; and
4.4.6 Warrants that acceptance of this Franchise by Franchisee has been duly
authorized by all requisite board action; that the signatories for Franchisee
hereto are authorized to sign the Franchise acceptance; and that the joinder
or consent of any other party, including a court, trustee, or referee, is not
necessary to make valid and effective the execution, delivery, and
performance of this Franchise.
4.5 Effect of Expiration/Termination. Upon expiration or termination of the Franchise
without renewal or other authorization, Franchisee shall no longer be authorized to
operate the Telecommunications Facilities within the Franchise Area and shall, to
the extent it may lawfully do so, cease operation of the Telecommunications
Facilities. Forthwith thereafter, except as provided in this Section, or as otherwise
provided by ordinance, Franchisee shall: (1) remove its structures or property from
the Right -of -Way and restore the Right -of -Way as required pursuant to the
applicable Right- of -Way restoration standards; or (2) sell its Telecommunications
Facilities to another entity authorized to operate Telecommunications Facilities
within the Franchise Area (which may include the City) upon City approval, to the
extent the City may lawfully require its approval. Franchisee may not abandon its
Telecommunication Facilities within the Franchise Area. In the event of failure by
Franchisee to remove the Telecommunication Facilities, then the City may, after
thirty (30) days written notice to Franchisee, perform the work and collect the actual
and reasonable costs thereof.
4.6 Renewal. This Franchise may be renewed pursuant to the renewal provisions
set forth in MMC Section 15.06.120.
5 ARTICLE 5. PROTECTION OF THE CITY AND PUBLIC
5.1 Indemnification.
5.1.1 Limitation of Liability. Franchisee hereby releases, covenants not to bring
suit and agrees to indemnify, defend and hold harmless the Indemnified City
Parties from any and all claims, costs, judgments, awards, or liability to any
person, including claims by Franchisee's Agents to which Franchisee might
otherwise be immune under Title 51 RCW (Industrial Insurance), arising
from injury or death of any person or damage to property of which the
4884-5145-5457, v. 1 41
AGENDA ITEM 8.1
negligent acts or omissions of Franchisee or its Agents in performing under
this Franchise are the proximate and/or direct cause. Franchisee further
releases, covenants not to bring suit and agrees to indemnify, defend and
hold harmless the Indemnified City Parties from any and all claims, costs,
judgments, awards, or liability to any person including claims by
Franchisee's Agents, including those claims to which Franchisee might
otherwise have immunity under Title 51 RCW, arising against the City
solely by virtue of the City's ownership or control of the Rights -of -Way or
other public properties, by virtue of Franchisee's exercise of the rights
granted herein, or by virtue of the City's permitting Franchisee's use of the
City's Rights -of -Way or other public property, based upon the City's
inspection or lack of inspection of work performed by Franchisee or its
Agents in connection with work authorized on the City's property or
property over which the City has control, pursuant to this Franchise, or
pursuant to any other permit or approval issued in connection with this
Franchise. This covenant of indemnification shall include, but not be limited
by this reference, to claims against the City arising as a result of the
negligent acts or omissions of Franchisee or its Agents in barricading,
instituting trench safety systems or providing other adequate warnings of
any excavation, Construction, or work in any Right- of -Way or other public
place in performance of work or services permitted under this Franchise.
5.1.2 Inspection. Inspection or acceptance by the City of any work performed by
Franchisee at the time of completion of Construction shall not be grounds
for avoidance of any of these covenants of indemnification.
5.1.3 Compromise of Claims. Said indemnification obligations shall extend to
claims which are not reduced to a suit and any claims which may be
compromised prior to the culmination of any litigation or the institution of
any litigation.
5.1.4 Refusal of Tender of Defense. In the event that Franchisee refuses the tender
of defense in any suit or any claim, said tender having been made pursuant
to the indemnification clauses contained herein, and said refusal is
subsequently determined by a court having jurisdiction (or such other
tribunal that the Parties shall agree to decide the matter), to have been a
wrongful refusal on the part of Franchisee, then Franchisee shall pay all of
the City's costs for defense of the action, including all reasonable expert
witness fees and reasonable attorneys' fees and the reasonable costs of the
City, including reasonable attorneys' fees of recovering under this
indemnification clause.
5.1.5 Concurrent Negligence. In the event of liability for damages arising out of
bodily injury to persons or damages to property caused by or resulting from
the concurrent negligence of Franchisee, or its Agents, and the Indemnified
City Parties, Franchisee's liability hereunder shall be only to the extent of
4884-5145-5457, v. 1 42
AGENDA ITEM 8.1
Franchisee's negligence. It is further specifically and expressly understood
that the indemnification provided herein constitutes Franchisee's waiver of
immunity under Title 51 RCW, solely for the purposes of this
indemnification. This waiver has been mutually negotiated by the Parties.
5.1.6 Survival. The provisions of this Section shall survive the expiration or
termination of this Franchise.
5.1.7 Assumption of Risk/Waiver. Notwithstanding any other provisions of this
Section, Franchisee assumes the risk of damage to any Telecommunications
Facilities located in the Right -of -Way from activities conducted by the
Indemnified City Parties, except to the extent any such damage or
destruction is caused by or arises from the negligence or any willful or
malicious action on the part of the Indemnified City Parties. Franchisee
releases and waives any and all claims against the Indemnified City Parties
for damage to or destruction of any Telecommunications Facility caused by
or arising out of activities conducted by the Indemnified City Parties, in the
Right -of -Way or other public property subject to this Franchise, except to
the extent any such damage or destruction is caused by or arises from the
negligence or any willful or malicious action on the part of the Indemnified
City Parties. Without limiting any indemnification obligation placed on
Franchisee or other waivers contained in this Section 5.1.7, the Franchisee
and the City each fully release, waive, and discharge forever any and all
claims against the other Party for consequential, special, indirect, punitive
and incidental damages that may arise from or in connection with this
Franchise or any Franchise Area, which includes without limitation any lost
profits related to any disruption to Telecommunication Facilities and any
interference with uses or operations conducted by the other Party, from any
cause whatsoever, and whether or not due to the active or passive negligence
or willful misconduct by the other Party or any Indemnified City Parties,
and covenants not to sue for such damages against the other Party or its
Agents. Franchisee further agrees to indemnify, hold harmless and defend
the Indemnified City Parties against any claims for damages, including, but
not limited to, business interruption damages and lost profits, brought by or
under users of Franchisee's Telecommunications Facilities or service as the
result of any interruption of service due to damage or destruction of any
Telecommunications Facilities caused by or arising out of activities
conducted by the Indemnified City Parties.
5.2 Environmental Indemnity. See attached Exhibit E.
5.3 Insurance Requirements. See attached Exhibit F.
5.4 Financial Security. See attached Exhibit G.
5.5 Parental Guarantee. If the Franchise is wholly owned or is under Control by another
4884-5145-5457, v. 1 43
AGENDA ITEM 8.1
person or entity, the City may require Franchisee to cause such person or entity to
provide, upon acceptance of this Franchise, a guarantee by such person or entity of
performance by Franchisee of Franchisee's rights, duties and obligations herein, in
substantially the form of the parental guarantee attached hereto as Exhibit H (Form
of Parental Guarantee). "Control" shall mean (i) the ownership, directly or indirectly,
or at least fifty percent (50%) of either: (a) the voting rights attached to issued voting
shares; or (b) the power to elect fifty percent (50%) of the directors of such entity, or
(ii) the ability to direct the actions of the entity.
5.6 Contractors/Subcontractors. Franchisee contractors and subcontractors performing
Work in the Right -of -Way shall comply with such bond, indemnity and insurance
requirements as may be required by City code or regulations, or other applicable
Law. If no such requirements are set forth in the City code or regulations, Franchisee
contractors and subcontractors shall comply with the requirements set forth in
attached Exhibit I (Contractor/Subcontractor Insurance Requirements).
5.7 Liens. In the event that any City property becomes subject to any claims for
mechanics', artisans', or materialmen's liens, or other encumbrances chargeable to
or through Franchisee which Franchisee does not contest in good faith, Franchisee
shall cause such lien claim or encumbrance to be discharged or released of record
(by payment, posting of bond, court deposit, or other means) within thirty (30) days
from receipt of notice of such claim(s) of lien or encumbrances, without cost to the
City, and shall indemnify the City against all costs and expenses (including
attorneys' fees) incurred in discharging and releasing such claim of lien or
encumbrance. If any such lien or encumbrance is not so discharged and released, the
City may pay or secure the release or discharge thereof at the expense of Franchisee
after first giving Franchisee fifteen (15) business days' advance notice of its intention
to do so. Nothing herein shall preclude Franchisee's or the City's contest of a claim
for lien or other encumbrance chargeable to or through Franchisee or the City, or of
a contract or action upon which the same arose.
5.8 Financial Conditions.
5.8.1 Franchise Fee. The Parties understand that, upon the Effective Date of this
Franchise, RCW 35.21.860 prohibited the imposition of a municipal
franchise fee upon revenues derived from Franchisee's telephone business
activities; however, the Parties dispute the application of this prohibition to
revenues derived by Franchisee from its activities within the Public Right -
of -Way. The Parties have, for good and valuable consideration the adequacy
of which is hereby acknowledged, agreed that for the term of this Franchise,
no franchise fees shall be due or required.
5.8.2 Reimbursement of Direct Costs of Issuance, Renewal, Amendment and
Administration. Franchisee shall reimburse the City for the City's Direct
Costs relating to the issuance, renewal, amendment (if requested by or for
the benefit of Franchisee) and administration of this Franchise.
4884-5145-5457, v. 1 44
AGENDA ITEM 8.1
5.8.3 Reimbursement of Direct Costs of Design Review and Inspection. City
approvals and inspections, as provided for in this Franchise, are for the sole
purpose of protecting the City's rights as the property owner or manager of
the road Right -of -Way and are separate and distinct from the approvals and
inspections and fees that may be required pursuant to a Regulatory Permit.
Therefore, Franchisee shall reimburse to the City its Direct Costs of
approvals and inspections, to the extent that such Direct Costs are not
included in the costs for issuance of and compliance with the Regulatory
Permit. Approvals and inspection, by way of example and not limitation,
include review of design documents and inspection for compliance with
Standards and plans approved by the City.
5.8.4 Reimbursement of Direct Costs of Altering Right-of-WaX. Franchisee shall
reimburse the City for the Direct Costs incurred by the City in planning,
designing, constructing, installing, repairing or altering any City
infrastructure, structure, or facility as the result of the actual or proposed
presence in the Right -of -Way of Franchisee's Telecommunications
Facilities. Such costs and expenses shall include, but not be limited to, the
Direct Costs of City personnel and contractors utilized to oversee or engage
in any work in the Right -of -Way as the result of the presence of
Franchisee's Telecommunications Facilities in the Right -of -Way, and any
time spent reviewing construction plans in order to either accomplish the
relocation of Franchisee's Telecommunications Facilities or the routing or
rerouting of any public utilities or Right- of -Way so as not to interfere with
Franchisee's Telecommunications Facilities. Upon request, all billing will
be itemized so as to specifically identify the Direct Costs and expenses for
each project for which the City claims reimbursement. A reasonable charge
for the actual cost incurred in preparing the billing may also be included in
said billing.
5.8.5 Franchisee Responsibility for Costs. Except as expressly provided
otherwise in this Franchise, any acts that Franchisee or its Agents are
required to perform under this Franchise shall be performed at their sole
cost and expense.
5.8.6 Franchisee Work Performed by the City. Any work performed by the City
that Franchisee has failed to perform as required pursuant to the terms of
this Franchise and which is performed by the City in accordance with the
terms of this Franchise, shall be performed at the cost and expense of
Franchisee. Franchisee shall be obligated to pay the Direct Costs to the City
of performing such work.
5.8.7 Costs to be Borne be Franchisee. Franchise shall reimburse the City for all
costs of publication of this Franchise, and any notices prior to any public
hearing regarding this Franchise, contemporaneous with its acceptance of
4884-5145-5457, v. 1 45
AGENDA ITEM 8.1
this Franchise.
5.8.8 Taxes and Fees. Nothing contained in this Franchise Agreement shall
exempt Franchisee from Franchisee's obligation to pay any utility tax,
business tax, or ad valorem property tax, now or hereafter levied against
real or personal property within the City, or against any local improvement
assessment imposed on Franchisee. Any fees, charges and/or fines provided
for in the Medina Municipal Code or any other City ordinance, and any
compensation charged and paid for the Right -of -Way, whether pecuniary or
in -kind, are separate from, and additional to, any and all federal, state, local,
and City taxes as may be levied, imposed or due from Franchisee.
5.8.9 Time for Payment. All non -contested Direct Costs shall be due and paid
within thirty (30) days of receipt of invoice by Franchisee; provided that, in
the event that an itemized invoice is not provided at the time of receipt of
invoice and the City receives a request from Franchisee for an itemized
invoice within thirty (30) days of receipt of invoice, such amounts shall be
due and paid within (30) days of receipt of the itemized invoice.
5.8.10 Overdue Payments. Any Direct Costs payable under this Franchise by
Franchisee which are not paid upon the due date thereof shall bear interest
at a rate of twelve (12%) percent per annum.
5.8.11 Contesting Charges. Franchisee may contest all or parts of any Direct Cost
within thirty (30) days of receipt of any invoice. The City shall investigate
Franchisee's contest and make appropriate adjustments to the invoice and
resubmit the invoice to Franchisee. Franchisee shall pay the Direct Costs as
itemized in the resubmitted invoice which shall be due within thirty (30)
days of receipt of the resubmitted invoice. Franchisee reserves the right to
further contest any charges through Legal Action after making payment
(under protest) as required under this Section 5.8.11.
5.8.12 Receivables. Either Party hereto may assign any monetary receivables due
them under this Franchise; provided, however, such transfer shall not
relieve the assignor of any of its rights or obligations under this Franchise.
5.8.13 Relationship to MMC. This Section 5.8 supersedes MMC Sections
15.06.090, 15.06.160, and 15.06.170.
6 ARTICLE 6. ENFORCEMENT AND REMEDIES
6.1 Communication and Discussion. The Parties are fully committed to working with
each other throughout the Term of this Franchise and agree to communicate regularly
with each other at all times so as to avoid or minimize Disputes. The Parties agree to
act in good faith to prevent and resolve potential sources of conflict before they
4884-5145-5457, v. 1 46
AGENDA ITEM 8.1
escalate into a Dispute. The Parties each commit to resolving a Dispute in an
amicable, professional and expeditious manner.
6.2 Breach/Right to Cure Breach.
6.2.1 Notice. Except as provided at Section 6.2.4 herein, if a Party believes that
the other Party is in Breach, such Parry shall give written notice to the other
Party stating with reasonable specificity the nature of the alleged Breach.
The Noticed Party shall have thirty (30) days from receipt of such notice
to:
6.2.1.1 Respond to the other Party, contesting that Party's assertion that a
Breach has occurred; or
6.2.1.2 Cure the alleged Breach; or
6.2.1.3 Notify the other Party that the Noticed Party cannot cure the
Breach within the time frame provided in Section 6.2.1 because of
the nature of the Breach. In the event the Breach cannot be cured
within time provided in the notice, the Noticed Party shall
promptly take all reasonable steps to commence cure of the Breach
within thirty (30) days and notify the other Party in writing and in
detail as to the exact steps that will be taken and the projected
completion date, in which case the Noticed Party shall have such
additional time beyond the thirty (30) day time period, but no more
than one hundred and twenty (120) days to cure the Breach.
6.2.2 Time to Cure. When specifying the time period for cure, the Noticed Party
shall take into account, the nature and scope of the alleged Breach, the
nature and scope of the work required to cure the Breach, whether the
Breach has created or will allow to continue an unsafe condition, the extent
to which delay in implementing a cure will result in adverse financial
consequences or other harm to the Party giving notice, and whether delay
in implementing a cure will result in a violation of applicable Law.
6.2.3 Failure to Cure. If the Noticed Party fails to promptly commence and
diligently pursue cure of a Breach to completion to the reasonable
satisfaction of the Party giving notice and in accordance with the time to
cure, as established pursuant to Sections 6.2.1, 6.2.1.3 and 6.2.2, then the
Party giving such notice shall be entitled to seek remedies as set forth in
Section 6.3 herein or any such other remedies allowed at Law, in contract
or in equity.
6.2.4 Election. In the event of a Breach that may also constitute grounds for
revocation as set forth at Section 6.4.1.1 through 6.4.1.12 herein, the City
4884-5145-5457, v. 1 47
AGENDA ITEM 8.1
may, at its election and in lieu of the notice and cure procedures set forth in
Section 6.2.1 through 6.2.3, follow the procedures and exercise the rights
and remedies as set forth in Section 6.4 herein.
6.3 Remedies. The Parties have the right to seek any and all of the following
remedies, singly or in combination, in the event that a Breach is not timely cured by the Noticed
Party:
6.3.1 Specific Performance. Each Party shall be entitled to specific performance
of each and every obligation of the other Party under this Franchise without
any requirement to prove or establish that such Party does not have an
adequate remedy at law. The Parties hereby waive the requirement of any
such proof and acknowledge that either Party would not have an adequate
remedy at law.
6.3.2 Damages;Equitable Relief. Each Party shall be entitled to commence a
Legal Action at law for monetary damages or impose liquidated damages
as set forth below or seek other equitable relief.
6.4 Revocation.
6.4.1 Cause. This Franchise, and all rights granted hereunder to Franchisee, may
be revoked by the City for any one or more of the following reasons:
6.4.1.1 Construction or operation in the City or in the Right -of- Way of
the City or upon City property without a grant of authority from an
authorization, franchise, or lease;
6.4.1.2 Construction or operation at an unauthorized location;
6.4.1.3 Unauthorized substantial transfer ofcontrol of the
Telecommunication Facilities;
6.4.1.4 Unauthorized assignment of the Franchise;
6.4.1.5 Unauthorized sale, assignment or transfer of a Franchisee's
Franchise assets, or a substantial interest therein;
6.4.1.6 Misrepresentation by or on behalf of Franchisee in any application
or written statement upon which the City relies in making the
decision to grant, review or amend this Franchise pursuant to
MMC Title 15;
6.4.1.7 Abandonment of Telecommunications Facilities in the public
Right -of -Way or upon City property;
4884-5145-5457, v. 1 48
AGENDA ITEM 8.1
6.4.1.8 Failure to relocate or remove Telecommunications Facilities as
required in this Franchise;
6.4.1.9 Failure to timely pay taxes, compensation, fees or costs due under
this Franchise; Title 15; or
6.4.1.10 Insolvency or bankruptcy of Franchisee;
6.4.1.11 Violation of any material applicable provision of MMC
6.4.1.12 Violation of any material term of this Franchise.
6.4.2 Notice and Duty to Cure. In the event that the City believes that grounds
exist for revocation of this Franchise, Franchisee shall be given written
notice of the apparent violation or noncompliance with a short and concise
statement of the nature and general facts of the violation or noncompliance
and a reasonable period of time not exceeding thirty (30) days to furnish
evidence:
6.4.2.1 That corrective action has been, or is being actively and
expeditiously pursued, to remedy the violation or noncompliance;
6.4.2.2 That rebuts the alleged violation or noncompliance; or
6.4.2.3 That it would be in the public interest to impose some penalty or
sanction less than revocation.
6.4.3 Hearing. In the event that Franchisee fails to provide evidence reasonably
satisfactory to the City as provided in Section 6.4.2 herein, the City shall
refer the apparent violation or noncompliance to the City Council. The City
Council shall provide Franchisee with notice and a reasonable opportunity
to be heard concerning the matter.
6.4.4 Standards for Revocation or Lesser Sanctions. If the City Council
determines that Franchisee willfully violated or failed to comply with any
of the applicable provisions of MMC Title 15 or this Franchise, or through
willful misconduct or gross negligence failed to heed or comply with any
notice given to Franchisee by the City under the applicable provisions of
MMC Title 15 or this Franchise, then Franchisee shall, at the election of the
City Council, forfeit all rights conferred hereunder and the Franchise may
be revoked or annulled by the City Council. The City Council may elect, in
lieu of the above and without any prejudice to any of its other legal rights
and remedies, to pursue other remedies as set forth in Section 6.3 herein.
The City Council shall utilize the following factors in analyzing the nature,
4884-5145-5457, v. 1 49
AGENDA ITEM 8.1
circumstances, extent, and gravity of the violation and in making its
determination under this Section:
6.4.4.1 Whether the misconduct was egregious;
6.4.4.2 Whether substantial harm resulted;
6.4.4.3 Whether the violation was intentional;
6.4.4.4 Whether there is a history of prior violations of the same or other
requirements;
6.4.4.5 Whether there is a history of overall compliance; and
6.4.4.6 Whether the violation was voluntarily disclosed,
admitted or cured.
6.5 Assessment of Liquidated Damages.
6.5.1 Because it may be difficult to ascertain or quantify the harm to the City in
the event of a Breach of this Franchise by Franchisee, the Parties agree to
liquidated damages as set forth in Section 6.5.7 to be a reasonable
estimation of the actual economic losses resulting from a Breach of this
Franchise. To the extent that the City elects to assess liquidated damages as
provided in this Franchise, such damages shall be the City's sole and
exclusive remedy for recovery of damages resulting from such Breach and
shall not exceed a time period of one hundred eighty (180) days. Nothing in
this subsection is intended to preclude the City from exercising any other
right or remedy with respect to a Breach that continues past the time the
City stops assessing liquidated damages for such Breach, which includes,
without limitation, the City's right to terminate this Franchise Agreement
for an uncured breach.
6.5.2 Prior to assessing any liquidated damages, the City shall follow the
procedures set forth in this Franchise that provide Franchisee proper notice
and a right to cure when applicable.
6.5.3 With the exception of failure to comply with a stop work order pursuant to
Section 7.4.4 herein, the City shall not assess any liquidated damages if
Franchisee has cured or commenced to and completes the cure under the
enforcement provisions of Article 6 of this Franchise.
In the event Franchisee fails to cure, the City may assess liquidated damages
and shall inform Franchisee in writing of the assessment. Franchisee shall
have thirty (30) days to pay the damages. The City may immediately begin
4884-5145-5457, v. 1 Fol
AGENDA ITEM 8.1
assessing liquidated damages upon issuance of a stop work order in the
event that Franchisee, or its contractors or subcontractors, fails to comply
with such stop work order.
6.5.4 The first day for which liquidated damages may be assessed, if there has
been no cure after the applicable cure period expired, shall be the day that
Franchisee received the notice of Breach.
6.5.5 Franchisee may challenge in court any assessment of liquidated damages
6.5.6 The liquidated damages amount may be adjusted by the City every five
years from the date of execution of this Franchise to take into account
cumulative inflation.
6.5.7 Pursuant to the requirements outlined herein, liquidated damages shall not
exceed the following amounts:
6.5.7.1 One hundred dollars ($100.00) per day for failure to comply with
the requirements of the following Sections: 2.2 (Authorized
Services); 2.7 (Transfer); 4.5 (Expiration/Termination), 5.3
(Insurance Requirements), 5.4 (Financial Security), 5.5 (Parental
Guarantee); and
6.5.7.2 Five hundred dollars ($500) per day for the first two days for
failure to comply with the requirements of Section 7.4.4 (Stop
Work), and one thousand dollars ($1,000) per day for each day
thereafter.
6.5.8 It is not the City's intention to subject Franchisee to liquidated damages for
a Breach of the Franchise where the violation was a good faith error that
resulted in no or minimal negative impact to the City, or where strict
performance would result in practical difficulties and hardship to
Franchisee which outweighs the benefit to be derived by the City. The City
may not collect both liquidated damages and actual damages for the same
violation.
6.5.9 Franchisee shall not be: (1) obligated to pay liquidated damages; or (2) held
to violation if the noncompliance is due to a force majeure as set forth in
Section 8.15 herein.
6.6 Receivership. At the option of the City, subject to applicable Law and lawful orders
of courts of jurisdiction, this Franchise may be revoked after the appointment of a
receiver or trustee to take over and conduct the business of Franchisee whether in a
receivership, reorganization, bankruptcy or other action or proceeding, unless:
4884-5145-5457, v. 1 F51
AGENDA ITEM 8.1
6.6.1 The receivership or trusteeship is timely vacated; or
6.6.2 The receiver or trustee has timely and fully complied with all the terms and
provisions of this Franchise, and has remedied all defaults under the
Franchise. Additionally, the receiver or trustee shall have executed an
agreement duly approved by the court having jurisdiction, by which the
receiver or trustee assumes and agrees to be bound by each and every term,
provision and limitation of this Franchise.
7 ARTICLE 7. CONDITIONS UPON USE OF RIGHT-OF-WAY
7.1 Conditions Precedent to Work. Except as may be otherwise required by applicable
City code, rule, regulation or Standard, Franchisee shall comply with the following
as a condition precedent to Work:
7.1.1 Regulatory Permits Required. Except as otherwise set forth in this
Franchise, prior to performing any Work in the Right -of -Way requiring a
Regulatory Permit, Franchisee shall apply for, and obtain in advance, such
appropriate Regulatory Permits from the City as are required by ordinance
or rule; provided that, Franchisee may perform preliminary site
investigation Work within a proposed Franchise Area pursuant to such
authorization (e.g., consent to entry, temporary street occupancy permit) as
the City and Franchisee may otherwise agree upon. Franchisee shall pay all
generally applicable and lawful fees for the requisite Regulatory Permits.
In the event that, as a condition of applying for a Regulatory Permit,
Franchisee must have authorization from the City in its proprietary capacity
as the owner/manager of the Franchise Area, the general Franchise grant
given herein shall, as to the proposed Franchise Area, constitute any such
consent or authorization of the City in its proprietary capacity that is
necessary for such application. The City's consent or authorization shall not
be deemed to be consent to or approval of the Regulatory Permits being
sought.
7.1.2 Compliance with Franchise. Franchisee shall be in material compliance
with the Franchise, including by way of example and not limitation,
payment of fees invoiced to Franchisee for City reimbursable costs and
expenses related to review and approval of the Regulatory Permit(s), proof
of insurance and proof of financial security.
7.2 Compliance with Standards/Codes. Except as may be preempted by federal or state
Laws, and subject to Article 3 of this Franchise, all Work shall be performed in
compliance with the following Standards:
4884-5145-5457, v. 1 F52
AGENDA ITEM 8.1
7.2.1 City Regulations. City ordinances and regulations adopted by the City
Engineer or Public Works Director establishing standards for placement of
Telecommunications Facilities in Right -of -Way, including by way of
example and not limitation, the specific location of Telecommunications
Facilities in the Right -of -Way. This shall also include any road design and
construction standards set forth in Title 12 of the Medina Municipal Code
that the City shall deem necessary to provide adequate protection to the
Right -of -Way, its safe operation and maintenance; and
7.2.2 Industry Standards. All Telecommunications Facilities shall be durable and
Construct(ed) in accordance with good engineering practices and standards
promulgated by the government and industry for placement, Construction,
design, type of materials and operation of Telecommunications Facilities.
Notwithstanding the foregoing, nothing in Section 7.2 shall be read or
interpreted as a waiver of any vested rights Franchisee may have or a waiver
of any rights Franchisee may have for a Telecommunications Facility that
qualifies as a nonconforming use or structure.
7.3 Undergrounding Requirements.
7.3.1 MMC Section 15.10.050(A) requires all new Telecommunications
Facilities to be located underground unless otherwise provided in a
franchise. The Parties agree that this requirement shall not apply to
`antennas', `support structures', `ancillary facilities' and `equipment
housing structures', as those terms are defined in MMC Chapter 16.12, that
are located above ground pursuant to the requirements of MMC Chapter
16.37. Further, the Parties agree that in those portions of the Franchise Area
where the wires and lines of electric, cable and/or telephone service
providers are located above grade, Franchisee is authorized to Construct its
fiber optic cables above grade. In those portions of the Franchise Area
where all of the wires and lines of electric, cable and telephone service
providers are located underground, Franchisee shall Construct its fiber optic
cables underground. In any part of the Franchise Area where the wires and
lines of the electric, cable and telephone service providers are both aerial
and underground, Franchisee shall have the discretion to Construct all of its
fiber optic cables, or any part thereof, aerially or underground. Whenever
any new or existing electric utilities, cable facilities, or
Telecommunications Facilities are located or relocated underground within
a Right -of -Way, if Franchisee's fiber optic cable or related facilities
occupies the same Right -of -Way, it shall relocate its fiber optic cable and
related facilities underground at no expense to the City. Absent
extraordinary circumstances or undue hardship as determined by the City
Manager, such relocation shall be made concurrently to minimize the
disruption of the Right -of -Way.
4884-5145-5457, v. 1 0
AGENDA ITEM 8.1
7.3.2 Franchisee and the City recognize that situations may occur in the
future where the City may desire to place its own conduit and fiber optic
cables in trenches or bores operated by Franchisee. Franchisee agrees to
cooperate with the City in any such construction that involves trenching or
boring. Franchisee shall allow the City to lay City conduit and fiber optic
cable in Franchisee -operated trenches and bores, provided that the City and
Franchisee enter into a mutually acceptable cost sharing arrangement
consistent with State law. The City shall be responsible for maintaining its
respective conduit and fiber optic cable, which is buried in Franchisee's
trenches and bores.
7.4 Work in the Right -of -Way.
7.4.1 Least Interference. Work in the Right -of -Way shall be done in a manner
that does not unnecessarily hinder or obstruct the free use of the Right -of -
Way or other public property and which causes the least interference with
the rights and reasonable convenience of property owners, businesses and
residents along the Right -of -Way. Franchisee Telecommunications
Facilities shall be designed, located, and Constructed so as not to impair the
use or operation of any street improvements, utilities, and related facilities
of the City or the City's existing lessees, licensees, franchisees, easement
beneficiaries or lien holders, without prior written consent of City or the
parties whose improvements are impaired and whose consent is required
pursuant to agreements with the City existing prior to the Effective Date of
this Franchise. Franchisee's Telecommunications Facilities shall be
designed, located, and Constructed in such a manner as not to interfere with
any planned utilities. For purposes of this Section, "planned" shall mean
utilities which the City intends to construct in the future, which intent is
evidenced by the inclusion of said utility project in a `capital investment
program plan', a comprehensive utility plan, a transportation improvement
plan, the City's `comprehensive plan', or other written construction or
planning schedule.
7.4.2 Work of Contractors and Subcontractors. Franchisee's contractors and
subcontractors performing Work in the Franchise Area shall be licensed and
bonded in accordance with the City's and State's applicable regulations and
requirements. Any contractors or subcontractors performing Work within
the Right -of -Way on behalf of Franchisee shall be deemed Agents of
Franchisee for the purposes of this Franchise and are subject to the same
restrictions, limitations and conditions as if the Work were performed by
Franchisee. Franchisee shall be responsible for all Work performed by its
Agents at Franchisee's request and shall ensure that all such Work is
performed in compliance with this Franchise and other applicable Laws.
Franchise shall be jointly and severally liable for all damages and repair all
damage caused by its Agents at Franchisee's sole cost and expense. It is
Franchisee's responsibility to ensure that its Agents performing Work at
Franchisee's request are familiar with the requirements of this Franchise
4884-5145-5457, v. 1 54
AGENDA ITEM 8.1
and other applicable Laws governing the Work performed by them.
7.4.3 Emergency Permits. In the event that Emergency repairs are necessary,
Franchisee shall, as soon as practicable under the circumstance, notify the
City Manager or designee of the need for such repairs. In the event of an
Emergency, a Franchisee may perform Emergency Work in the Right -of -
Way without first securing a Regulatory Permit for such Emergency Work,
provided that: (1) Franchisee notifies the City in advance of performing
such Emergency Work and the type and location of such Work; (2)
Franchisee applies for a Regulatory Permit on the first business day
following commencement of such Work; and (3) Franchisee, at its sole cost
and expense, makes its Work performed in the Right -of -Way available for
inspection by the City to determine compliance with applicable Laws and
Standards.
7.4.4 Stop Work. If a stop work order is issued consistent with the Medina
Municipal Code, Franchisee shall cease, and shall cause its Agents to cease
such activity until the City is reasonably satisfied that Franchisee is in
compliance. If an unsafe condition is found to exist, the City, in addition to
taking any other action permitted under applicable Law, may order
Franchisee to make the necessary repairs and alterations specified therein
to correct the unsafe condition within a reasonable time frame as established
by the City.
7.4.5 Dedication of City Utilities/Dedicated Improvements. Upon substantial
completion of Construction of the Telecommunications Facilities and any
related restoration of or improvements to or within the Right -of -Way,
including without limitation, curbs, gutters, sidewalks, underlayment,
roadway surface, pipe, connectors, catch basins, or any part thereof that will
be dedicated to City ownership (collectively "Dedicated Improvements"),
Franchisee shall submit a written request to the City for a final inspection
and acceptance of dedication of all Dedicated Improvements.
When the City is reasonably satisfied that the Work related to the Dedicated
Improvements is substantially complete, it shall by ordinance, resolution or
other lawful means accept ownership of such Dedicated Improvements and
thereafter become responsible for maintenance, repair, and replacement of
the same.
7.5 Alterations. Except as may be shown in any plans approved by the City, or as may
be necessary to respond to an Emergency, Franchisee and Franchisee's Agents, may
not make any material alterations to the Franchise Area without City's prior written
consent. Material alteration shall include by way of example and not limitation, a
change in the dimension or height of the above ground Telecommunications
Facilities or the addition of or change in configuration of an antenna; but shall not
include changes to the equipment used as part of the Telecommunications Facilities
4884-5145-5457, v. 1 55
AGENDA ITEM 8.1
that do not affect the exterior appearance of the Telecommunications Facilities. If
Franchisee desires to change either the location of any Telecommunications
Facilities or otherwise materially deviate from the approved design of any of the
Telecommunications Facilities, Franchisee shall submit such change to the City for
its approval pursuant to the procedures outlined in the Medina Municipal Code.
Franchisee shall have no right to commence any such alteration change unless and
until after Franchisee has received City's approval of such change in writing.
7.6 General Conditions.
7.6.1 Right -of -Way Meetings. Subject to receiving advance notice, Franchisee
shall make reasonable efforts to attend and participate in meetings of the
City regarding Right -of -Way issues that may impact its
Telecommunications Facilities.
7.6.2 Compliance Inspection. Following the completion of Construction,
Franchisee's Telecommunications Facilities shall be subject to the City's
right of periodic inspection upon at least twenty-four (24) hours' notice, or,
in case of an Emergency, upon demand without prior notice, to determine
compliance with the provisions of this Franchise or Regulatory Permit or
other applicable Law over which the City has jurisdiction. Franchisee shall
respond to the City's requests for information regarding its
Telecommunications Facilities, including requests for information
regarding Franchisee's plans for Construction and the purposes for which
the Telecommunications Facility is being Constructed. Notwithstanding
the foregoing, the City agrees that it shall only conduct inspections of the
Telecommunication Facilities when: (a) it has received a complaint; (b)
such inspection is required as part of the approval of the Regulatory Permit;
or (c) when there is reasonable cause to believe that a violation exists.
Franchisee reserves the right to dispute any Direct Cost for such inspections
if Franchisee believes that such inspection was unnecessary or redundant.
7.6.3 One Call. If Franchisee places Telecommunications Facilities underground,
Franchisee shall, at its own expense, continuously be a member of the State
of Washington one number locator service under Chapter 19.122 RCW, or
an approved equivalent, and shall comply with all such applicable rules and
regulations. Franchisee shall locate and field mark its Telecommunications
Facilities for the city at no cost to the City.
7.6.4 Graffiti Removal. Within 48 hours after notice from the City, Franchisee
shall remove any graffiti on any part of its Telecommunications Facilities,
including, by way of example and not limitation, equipment cabinets. If
Franchisee fails to do so, the City may remove the graffiti and bill
Franchisee for the Direct Cost thereof payable to the City within thirty (30)
days from receipt of the demand for payment by Franchisee.
4884-5145-5457, v. 1 56
AGENDA ITEM 8.1
7.6.5 Dangerous Conditions, Authori . for City to Abate. Whenever Construction
of Telecommunications Facilities has caused or contributed to a condition
that appears to substantially impair the lateral support of the adjoining
Right -of -Way, street, or public place, or endangers the public, any utilities,
or City -owned property, the City may reasonably require Franchisee to take
reasonably necessary action to protect the Right -of -Way, the public,
adjacent public places, City -owned property, streets, and utilities. Such
action may include compliance within a reasonable time as determined by
the City. In the event that Franchisee fails or refuses to promptly take the
actions directed by the City, or fails to fully comply with such directions, or
if Emergency conditions exist which require immediate action, the City
may, to the extent it may lawfully do so, take such actions as are necessary
to protect the Right -of -Way, the public, adjacent public places, City -owned
property, streets, and utilities, to maintain the lateral support thereof, or
actions regarded as necessary safety precautions; and Franchisee shall be
liable to the City for the Direct Costs thereof to the extent of Franchisee's
responsibility for the condition.
7.6.6 No Duty. Notwithstanding the right of the City to inspect the Work, issue a
stop work order, and order or make repairs or alterations, the City has no
duty or obligation to observe or inspect, or to halt work on, the applicable
Telecommunications Facilities. Franchisee is solely responsible to ensure
that the Telecommunications Facilities are Constructed and operated in
strict accordance with this Franchise, the approved plans, the Standards, and
applicable Law. Neither the exercise nor the failure by the City to exercise
any right set forth in this Article 7 shall alter the liability allocation set forth
in this Franchise.
7.6.7 Roadside Hazard. All of Telecommunications Facilities shall be kept by
Franchisee at all times in a reasonably safe and hazard -free condition.
Franchisee shall ensure that Telecommunications Facilities within the
Right -of -Way do not become or constitute an impassible roadside obstacle
and do not interfere with or create a hazard to maintenance of and along the
Right -of -Way. In such event, or in the event that the City determines that a
Telecommunications Facility within the Right- of -Way is impairing passage
within the Right -of -Way or may interfere with or create a hazard to
maintenance of and along the Right -of -Way, Franchisee shall:
7.6.7.1 Repair the Telecommunications Facility to a safe condition, if the
hazard results from disrepair;
7.6.7.2 Relocate the Telecommunications Facility to another place within
the Right -of -Way or underground;
7.6.7.3 Crash -protect the Telecommunications Facility, or
4884-5145-5457, v. 1 57
AGENDA ITEM 8.1
7.6.7.4 Remove or trim vegetation in and around the Telecommunications
Facility, if the Telecommunications Facility is screened from view
(i.e., not readily visible from all directions by persons standing at
ground level).
Franchisee, at all times, shall employ the standard of care attendant to the risks
involved and shall install and maintain in use commonly accepted methods and
devices for preventing failures and accidents which are likely to cause damage,
injury, or nuisance to the public or to Franchisee's Agents. Franchisee, at its own
expense, shall repair and improve its Telecommunications Facilities from time to
time as may be necessary to accomplish this purpose. Franchisee shall use suitable
barricades, flags, daggers, lights, flares and other measures as required for the
safety of all members of the general public and to prevent injury or damage to any
person, vehicle or property by reason of such Work in or affecting such Right -of -
Way or property. All excavations made by Franchisee in the Right -of -Way shall be
properly safeguarded for the prevention of accidents.
7.6.8 Verification of Alignment/Depth. In order to facilitate the location,
alignment and design of Public Improvements (as that term is defined below
in Section 7.7.1), upon the reasonable request and prior written thirty (30)
days' notice, in non -Emergency situations, provided by the City Franchisee
agrees to locate, and if reasonably determined necessary by the City, to
excavate and expose portions of its Telecommunications Facilities for
inspection so that the location may be taken into account in the
improvement design; provided that, Franchisee shall not be required to
excavate and expose its Telecommunications Facilities unless Franchisee's
record drawings and maps of its Telecommunications Facilities are
reasonably determined by the City to be inadequate for purposes of this
subsection.
7.7 Telecommunications Facility Relocation at Request of the City for Public
Improvements.
7.7.1 Public Project. The City may require Franchisee to alter, adjust, relocate, or
protect in place its Telecommunications Facilities within the Right -of -Way
when reasonably necessary for Construction, alteration, repair, or
improvement of any portion of the Right -of -Way for purposes of public
welfare, health, or safety ("Public Improvements"). Such Public
Improvements include, by way of example but not limitation, Right -of -Way
Construction; Right -of -Way repair (including resurfacing or widening);
change of Right -of -Way grade; Construction, installation or repair of
sewers, drains, water pipes, power lines, signal lines, communication lines,
or any other type of government -owned communications utility or public
transportation systems, public work, public facility, or improvement of any
government owned utility; Right -of -Way vacation; and the Construction of
any Public Improvement by any governmental agency acting in a
4884-5145-5457, v. 1 F581
AGENDA ITEM 8.1
governmental capacity or by a developer as required by development
approval.
7.7.2 Alternatives to Relocation. Franchisee may, after receipt of written notice
from the City requesting a relocation of its Telecommunications Facilities,
submit to the City written alternatives to such relocation. The City shall
evaluate such alternatives and advise Franchisee in writing if one or more
of the alternatives are suitable to accommodate the Public Improvement
which would otherwise necessitate relocation of the Telecommunications
Facilities. If requested by the City, Franchisee shall submit additional
information to assist the City in making such evaluation. The City shall give
each alternative proposed by 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, in its sole
discretion, that there is no other reasonable alternative, Franchisee shall
relocate its Telecommunications Facilities. In the event that the City
reasonably determines that it does not have available resources to evaluate
Franchisee's proposal, the City shall not be obligated to further consider
such proposal unless and until Franchisee funds the costs of the City
required to complete its evaluation.
7.7.3 Notice Timeline. The City shall notify Franchisee as soon as practicable,
but no less than one hundred and eighty (180) days, except in case of
Emergency, of the need for Franchisee to relocate its Telecommunication
Facilities for a Public Improvement and shall specify the date by which
relocation shall be completed. Within thirty (30) days following written
notice from the City, Franchisee shall provide a schedule to the City
indicating the estimated completion date for temporarily or permanently
removing, relocating, changing, or altering the position of any
Telecommunications Facilities within the Right- of -Way or upon City
property. In calculating the date that relocation must be completed, City
shall consult with Franchisee and consider the extent of
Telecommunications Facilities to be relocated, the service requirements, the
time required to obtain the Regulatory Permits to relocate the
Telecommunications Facilities to the new location(s), and the construction
sequence for the relocation, within the overall project construction sequence
and constraints, to safely complete the relocation. Franchisee shall complete
the relocation by the date specified, unless the City, or a reviewing court,
establishes a later date for completion, after a showing by Franchisee that
the relocation cannot be completed by the date specified using best efforts
and meeting safety and service requirements.
7.7.4 Coordination of Work. Franchisee acknowledges and understands that any
delay by Franchisee in performing the Work to alter, adjust, relocate, or
protect in place its Telecommunications Facilities within the Right -of -Way
may delay, hinder, or interfere with the work performed by the City and its
4884-5145-5457, v. 1 59
AGENDA ITEM 8.1
Agents in furtherance of Construction, alteration, repair, or improvement of
the Public Improvement, and result in damage to the City, including but not
limited to, delay claims. Franchisee shall cooperate with the City and its
Agents to coordinate such Franchisee Work to accommodate the Public
Improvement project and project schedules to avoid delay, hindrance of, or
interference with such project.
7.7.5 Failure to Comply. Should Franchisee fail to alter, adjust, protect in place
or relocate any Telecommunications Facilities ordered by the City to be
altered, adjusted, protected in place, or relocated, within the time prescribed
pursuant to Section 7.7.3, or if it is not done to the City's reasonable
satisfaction, the City may, to the extent the City may lawfully do so, cause
such work to be done and bill the Direct Costs of the work to Franchisee. In
such event, the City shall not be liable for any damage to any portion of
Franchisee's Telecommunications Facilities, unless directly or proximately
caused by wiI Ifu1, intentional, or malicious acts by the City.
7.7.6 Assignment of Rights. In addition to any other rights of assignment the City
may have, the City may from time to time assign or transfer to its Agents
the City's rights under Sections 7.7 or 7.9 of this Franchise to require
Franchisee to alter, adjust, relocate, or protect in place its
Telecommunications Facilities within the Right -of -Way to accommodate a
Public Improvement. Franchisee acknowledges and consents to such an
assignment(s)/transfer(s) and agrees that it is bound by all lawful orders
issued by such assignee(s) of the City under color of authority of such
assignment(s)/transfer(s) as though such orders had been issued by the City
under the terms and conditions of this Franchise. Such assignment/transfer
is an assignment/transfer of the City's contract rights under this Franchise
and shall not in any way be interpreted or construed as an assignment,
transfer, delegation or relinquishment of the City's rights under its police
powers to require Franchisee to alter, adjust, relocate, or protect in place its
Telecommunications Facilities within the Right -of -Way to accommodate a
Public Improvement.
7.7.7 Reimbursement for Costs. Notwithstanding the cost allocation provisions
set forth in this Franchise, Franchisee does not waive its right(s) to and shall
be entitled to seek reimbursement of its relocation costs as may be otherwise
specifically set forth and authorized in statute.
7.8 Movement of Telecommunications Facilities for Others.
7.8.1 Private Benefit. If any alteration, adjustment, temporary relocation, or
protection in place of Telecommunications Facilities is required to
accommodate the Construction of facilities or equipment that are not part
of a Public Improvement project, Franchisee shall, after receipt of written
notice at least ninety (90) days in, take action to effect the necessary changes
4884-5145-5457, v. 1 60
AGENDA ITEM 8.1
requested by the requesting entry, provided that, (a) the person or entity
requesting the same pays for Franchisee's time and material costs associated
with the requested work; (b) the alteration, adjustment, temporary
relocation or protection in place is reasonably necessary to accommodate
such work; (c) the person or entity requesting the alteration, adjustment,
temporary relocation, or protection in place considers alternatives in the
same manner as provided at Section 7.7.2; (d) such alteration, adjustment,
temporary relocation or protection in place does not unreasonably interfere
with Franchisee's ability to continue to provide Telecommunications
service; (e) Franchisee is able to obtain all necessary Regulatory Permits
before completing such alteration, adjustment, temporary relocation or
protection in place; and (f) such alteration, adjustment, or temporary
relocation is not requested for the purpose of obtaining a competitive
advantage over Franchisee.
7.8.2 Temporary Changes for Other Persons. At the request of any person or
entity holding valid permits from the City and upon reasonable advance
notice, but no less than fourteen (14) days, Franchisee shall temporarily
raise, lower or remove its wires, as necessary, to permit the moving of a
building, vehicle, equipment or other item. The expense of such temporary
changes shall be paid by the permit holder.
7.9 Movement of Telecommunications Facilities During Emergencies.
7.9.1 Immediate Threat. In the event of an unforeseen event, condition or
circumstance that creates an immediate threat to the public safety, health,
or welfare ("Immediate Threat"), the City shall have the right to require
Franchisee to shut down, relocate, remove, replace, modify, or disconnect
Franchisee's Telecommunications Facilities located in the Right -of- Way at
the expense of Franchisee without regard to the cause or causes of the
Immediate Threat.
7.9.2 Emergency. In the event of an Emergency, or where a Telecommunications
Facility creates or is contributing to an imminent danger to health, safety,
or public property, the City shall have the right to require Franchisee to shut
down, relocate, modify or disconnect one or more of its
Telecommunications Facilities located in the Right -of -Way at Franchisee's
expense.
7.9.3 Notice. During Immediate Threats and/or Emergencies, the City shall
endeavor to, as soon as practicable, provide notice to Franchisee of such
Immediate Threat or Emergency at a designated response contact number,
to allow Franchisee the opportunity to respond and rectify the problem
without disrupting Franchisee's Telecommunications service. To the extent
Franchisee fails to timely respond to such notice, the City may protect,
support, temporarily disconnect, remove, or relocate any or all parts of
4884-5145-5457, v. 1 61