HomeMy WebLinkAboutOrdinance No. 0984City of Medina – MCImetro Franchise 1
Ordinance No. 984
MEDINA CITY COUNCIL
AN ORDINANCE OF THE CITY OF MEDINA, WASHINGTON, GRANTING TO
MCIMETRO ACCESS TRANSMISSION SERVICES CORP. D/B/A VERIZON ACCESS
TRANSMISSION SERVICES AND ITS AFFILIATES, SUCCESSORS AND ASSIGNS,
THE RIGHT, PRIVILEGE, AUTHORITY AND NONEXCLUSIVE FRANCHISE FOR
FIVE YEARS, TO CONSTRUCT, MAINTAIN, OPERATE, REPLACE AND REPAIR A
TELECOMMUNICATIONS NETWORK, IN, ACROSS, OVER, ALONG, UNDER,
THROUGH AND BELOW CERTAIN DESIGNATED PUBLIC RIGHTS-OF-WAY OF
THE CITY OF MEDINA, WASHINGTON.
WHEREAS, MCImetro Access Transmission Services Corp. D/B/A/ Verizon Access
Transmission Services (“Franchisee”) has requested that the City Council grant it a nonexclusive
franchise, and
WHEREAS, the City Council has the authority to grant franchises for the use of its
streets and other public properties pursuant to RCW 35A.47.040;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MEDINA, WASHINGTON
ORDAINS AS FOLLOWS:
Section 1 Franchise Granted.
Section 1.1 Pursuant to RCW 35A.47.040, the City of Medina, a Washington municipal
corporation (hereinafter the “City”), hereby grants to Franchisee, its affiliates, heirs, successors,
legal representatives and assigns, subject to the terms and conditions hereinafter set forth, a
franchise (“Franchise”).
Section 1.2 This Franchise shall be for five (5) years, beginning on the effective date of
this ordinance, set forth in Section 40. This Franchise shall automatically renew for an
additional five (5) year period unless either party provides notice within one hundred eighty
(180) days prior to the end of the fifth year of its desire to terminate this Franchise.
Section 1.3 This Franchise ordinance grants Franchisee the right, privilege, and authority
to construct, operate, maintain, replace, acquire, sell, lease and use all necessary Facilities for a
telecommunications network, in, under, on, across, over, through, along or below the public
Rights-of-Ways located in the City of Medina, as approved pursuant to City permits issued
pursuant to this Franchise. Public “Right-of-Way” means land acquired or dedicated to the
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public or that is hereafter dedicated to the public and maintained under public authority,
including, but not limited to, public streets or roads, highways, avenues, lanes, alleys, bridges,
sidewalks, utility easements and similar public property located within the franchise area but
does not include: State highways; land dedicated for road, streets, highways not opened and not
improved for motor vehicle use by the public; structures including poles and conduits located
within the right-of-way; federally granted trust lands or forest board trust lands; lands owned or
managed by the State Parks and Recreation Commission; federally granted railroad rights-of-
way acquired under 43 USC § 912 and related provisions of federal law that are not open for
vehicular use; or leasehold or City-owned property to which the City holds fee title or other title
and which is utilized for park, utility or a governmental or proprietary use (for example,
buildings, other City-owned physical facilities, parks, poles, conduits, fixtures, real property or
property rights owned or leased by the City not reserved for transportation purposes).
“Facilities” as used in this Franchise means one or more elements of Franchisee’s
telecommunications network, with all necessary cables, wires, conduits, ducts, pedestals,
antennas, electronics, and other necessary appurtenances; provided that placement by Franchisee
of new utility poles is specifically excluded unless otherwise specifically approved by the City.
Equipment enclosures with air conditioning or other noise generating equipment are also
excluded from “Facilities,” to the extent such equipment is located in zoned residential areas of
the City. For the purposes of this Franchise the term Facilities excludes “microcell” facilities,
“minor facilities,” “small wireless facilities,” all as defined by RCW 80.36.375, and “macrocell”
facilities, including towers and new base stations and other similar facilities (except for fiber
optic cables) used for the provision of “personal wireless services” as defined by RCW
80.36.375.
Section 2 Authority Limited to Occupation of Public Rights-of-Way.
Section 2.1 The authority granted herein is a limited authorization to occupy and use
only the Rights-of-Way delineated on the map attached and incorporated herein as Exhibit B,
including any subsequent modifications to the Rights-of-Way that may be made by City from
time to time. (the “Franchise Area”). Nothing contained herein shall be construed to grant or
convey any right, title, or interest in the Rights-of-Way of the City to the Franchisee other than
for the purpose of providing telecommunications services. Franchisee hereby represents that it
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expects to provide the following services within the City: high speed data and fiber optic
services, internet protocol-based services, internet access services, conduit and dark fiber leasing,
telephone, data transport and other telecommunications and information services (the
“Services”). No right to install any facility, infrastructure, wires, lines, cables, or other
equipment, on any City property other than a Right-of-Way, or upon private property without the
owner’s consent, or upon any City, public or privately owned utility poles or conduits is granted
herein. Nothing contained within this Franchise shall be construed to grant or convey any right,
title, or interest in the Rights-of-Way of the City to Franchisee other than for the purpose of
providing the Services, nor to subordinate the primary use of the Right-of-Way as a public
thoroughfare. Franchisee may not offer Cable Services as defined in 47 U.S.C. § 522(6) or
personal wireless services, without obtaining a new franchise or an amendment to this Franchise
approved by the City Council.
Section 2.2 Franchisee shall have the right, without prior City approval, to offer or
provide capacity or bandwidth to its customers consistent with this Franchise provided:
(a) Franchisee at all times retains exclusive ownership over its
telecommunications system, Facilities and Services and remains responsible for
constructing, installing, and maintaining its Facilities pursuant to the terms and
conditions of this Franchise;
(b) Franchisee may not grant rights to any customer or lessee that are greater
than any rights Franchisee has pursuant to this Franchise, provided that leases or other
commercial arrangements for the use of the Facilities installed pursuant to this Franchise
may extend beyond the term of the Franchise;
(c) Such customer or lessee shall not be construed to be a third-party
beneficiary under this Franchise; and
(d) No such customer or lessee may use the telecommunications system or
Services for any purpose not authorized by this Franchise, unless such rights are
otherwise granted by the City.
Section 3 Non-Exclusive Franchise Grant. This Franchise is a non-exclusive franchise, and is
granted upon the express condition that it shall not in any manner prevent the City from granting
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other or further Franchises in, along, over, through, under, below, or across any said Rights-of-
Way. This Franchise shall in no way prevent or prohibit the City from using any of said roads,
streets, or other public properties or affect its jurisdiction over them or any part of them, and the
City shall retain power to make all necessary changes, relocations, repairs, maintenance,
establishment, improvement, dedication of same as the City may deem fit and consistent with
applicable law, including the dedication, establishment, maintenance, and improvement of all
new Rights-of-Way, thoroughfares and other public properties of every type and description.
Section 4 Location of Telecommunications Network Facilities.
Section 4.1 Franchisee is maintaining a telecommunications network, consisting of
Facilities within the City. Franchisee may locate its Facilities anywhere within the Franchise
Area consistent with the City’s Public Works Standards and the Medina Municipal Code
(“MMC”), including but not limited to MMC Title 19 and subject to the City’s applicable permit
requirements. Franchisee shall not be required to amend this Franchise to construct or acquire
Facilities within the Franchise Area.
Section 4.2 To the extent that any Rights-of-Way within the Franchise Area are part of
the state highway system (“State Highways”), for which the City issues permits, and are
governed by the provisions of Chapter 47.24 RCW and applicable Washington State Department
of Transportation (WSDOT) regulations, Franchisee shall comply fully with said requirements in
addition to local ordinances and other applicable regulations. Franchisee specifically agrees that:
(a) any pavement trenching and restoration performed by Franchisee within
State Highways shall meet or exceed applicable WSDOT requirements;
(b) any portion of a State Highway damaged or injured by Franchisee shall be
restored, repaired and/or replaced by Franchisee to a condition that meets or exceeds
applicable WSDOT requirements; and
(c) without prejudice to any right or privilege of the City, WSDOT is
authorized to enforce in an action brought in the name of the State of Washington any
condition of this Franchise with respect to any portion of a State Highway.
City of Medina – MCImetro Franchise 5
Section 5 Relocation of Telecommunications Network Facilities.
Section 5.1 Improvement Projects.
(a) The City may require Franchisee, and Franchisee covenants and agrees, to
protect, support, temporarily disconnect, relocate, remove, or modify its Facilities within
the Right-of-Way when reasonably necessary for construction, alteration, repair, or
improvement of the Right-of-Way to accommodate improvement projects for purposes of
and for public welfare, health, or safety. These projects may include the construction of
any public improvement or structure by any governmental agency acting in a
governmental capacity or as otherwise necessary for the operations of the City or other
governmental entity, regardless of the type of entity (public or private) performing the
project. Collectively all such projects described in this Section 5.1(a) shall be considered
an “Improvement Project”.
(b) Except as otherwise provided by law, the costs and expenses associated
with relocations or disconnections ordered pursuant to Section 5.1 shall be borne by
Franchisee. Nothing contained within this Franchise shall limit Franchisee’s ability to
seek reimbursement for relocation costs when permitted by RCW 35.99.060.
(c) The City may require the relocation of Franchisee’s Facilities at
Franchisee’s expense in the event of an unforeseen emergency that creates an immediate
threat to the public safety, health or welfare.
(d) Franchisee shall in all such cases have the privilege to temporarily bypass
in the authorized portion of the same Rights-of-Way any Facilities required to be
temporarily disconnected or removed upon approval by the City, which approval shall
not unreasonably be withheld or delayed.
Section 5.2 Upon request of the City and in order to facilitate the design of an
Improvement Project, Franchisee agrees, at its sole cost and expense, to locate, and if reasonably
determined necessary by the City, to excavate and expose its Facilities for inspection so that the
Facilities’ location may be taken into account in the improvement design. The decision as to
whether any Facilities need to be relocated in order to accommodate the City’s improvements
shall be made by the City upon review of the location and construction of Franchisee’s Facilities.
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The City shall provide Franchisee at least fourteen (14) days’ written notice prior to any
excavation or exposure of Facilities.
Section 5.3 If the City determines that the Improvement Project necessitates the
relocation of Franchisee’s existing Facilities, the following process shall apply:
(a) The City shall consult with the Franchisee in the predesign phase of any
Improvement Project in order to coordinate the project’s design with Franchisee’s
Facilities within such project’s area.
(b) Franchisee shall participate in predesign meetings until such time as (i)
both parties mutually determine that Franchisee’s Facilities will not be affected by the
Improvement Project, or (ii) until the City provides Franchisee with written notice
regarding the relocation as provided in subsection (d) below.
(c) Franchisee shall, during the predesign phase evaluate and provide
comments to the City related to any alternatives to possible relocations. The City agrees
to give any alternatives proposed by the Franchisee full and fair consideration, but the
final decision accepting or rejecting any specific alternative shall be within the City’s
sole discretion.
(d) The City shall provide Franchisee with its decision regarding the
relocation of Franchisee’s Facilities as soon as reasonably possible, but in no event less
than ninety (90) days prior to the commencement of the construction of such
Improvement Project; provided, however that in the event that the provisions of a state or
federal grant require a different notification period or process than that outlined in this
Section 5.3, the City shall notify the Franchisee during the predesign meetings and the
process mandated by the grant funding shall control.
(e) After receipt of such written notice, Franchisee shall relocate such
Facilities to accommodate the Improvement Project consistent with the timeline provided
by the City, but subject to a Force Majeure event. Such timeline may be extended by a
mutual agreement.
(f) In the event of an emergency posing a threat to public safety or welfare, or
in the event of an emergency beyond the control of the City which will result in severe
financial consequences to the City, which necessitates the relocation of Franchisee’s
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Facilities, Franchisee shall relocate its Facilities within the time period specified by the
City.
Section 5.4 In the event the City ultimately determines that there is no other reasonable
or feasible alternative, Franchisee shall relocate its Facilities as otherwise provided in this
Section 5. Further, upon a notification of a delay due to Franchisee, Franchisee agrees to work
cooperatively with the City, other franchisees and utilities, and the City’s third party contractor
to resolve such issues.
Section 5.5 Franchisee shall be solely responsible for the out-of-pocket costs incurred by
the City for delays in an Improvement Project to the extent the delay is caused by or arises out of
Franchisee's failure to comply with the final schedule for the relocation (other than as a result of
a Force Majeure Event or causes or conditions caused by the acts or omissions of the City or any
third party unrelated to Franchisee. Franchisee’s vendors and contractors shall not be considered
unrelated third parties). Such out-of-pocket costs may include, but are not limited to, payment to
the City's contractors and/or consultants for increased costs and associated court costs, interest,
and attorneys' fees incurred by the City to the extent directly attributable to such Franchisee’s
caused delay in the Improvement Project.
Section 5.6 Franchisee will indemnify, defend, hold harmless, and pay the costs of
defending the City, in accordance with the provisions of Section 16, against any and all claims,
suits, actions, damages, or liabilities for delays on City construction projects caused by or arising
out of the failure of Franchisee to remove or relocate its Facilities in a timely manner; provided,
that Franchisee shall not be responsible for damages due to delays caused by circumstances
beyond the control of Franchisee or the negligence, willful misconduct, or unreasonable delay of
the City or any unrelated third party.
Section 5.7 Whenever any person shall have obtained permission from the City to use
any Right-of-Way for the purpose of moving any building, Franchisee, upon thirty (30) days’
written notice from the City, shall temporarily raise, remove, or relocate to another part of the
Right-of-Way, at the expense of the person desiring to move the building, any of Franchisee’s
Facilities that may obstruct the removal of such building.
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Section 5.8 If Franchisee fails, neglects, or refuses to remove or relocate its Facilities as
directed by the City following the procedures outlined in Section 5.1 through Section 5.4 the
City may perform such work or cause it to be done, and the City’s costs shall be paid by
Franchisee pursuant to Section 14.3 and Section 14.4.
Section 5.9 The provisions of this Section 5 shall survive the expiration or termination of
this Franchise during such time as Franchisee continues to have Facilities in the Rights-of-Way.
Section 6 Undergrounding of Facilities.
Section 6.1 Except as specifically authorized by permit of the City, Franchisee shall not
be permitted to erect poles. All Facilities in Exhibit B shall be installed underground in all areas
of the City. Franchisee acknowledges and agrees that if the City does not require the
undergrounding of its Facilities at the time of permit application, the City may, at any time in the
future, require the conversion of Franchisee’s aerial facilities to underground installation at
Franchisee’s expense; provided that the City requires all other wireline utilities, except electrical
utilities, with aerial facilities in the area to convert such facilities to underground installation at
the same time. Unless otherwise permitted by the City, Franchisee shall underground its
Facilities in all new developments and subdivisions, and any development or subdivision where
all utilities, other than electrical utilities, are currently underground in a manner identified for
utilities in the City’s Public Works Standards.
Section 6.2 Whenever the City may require the undergrounding of the Franchisee’s
aerial utilities (other than electrical utilities and personal wireless services facilities) in any area
of the City, Franchisee shall underground its aerial facilities in the manner specified by the City,
concurrently with and in the area of the other affected utilities. The location of any such
relocated and underground utilities shall be approved by the City. Where other utilities are
present and involved in the undergrounding project, Franchisee shall only be required to pay its
fair share of common costs borne by all utilities, in addition to the costs specifically attributable
to the undergrounding of Franchisee’s own Facilities. “Common costs” shall include necessary
costs not specifically attributable to the undergrounding of any particular facility, such as costs
for common trenching and utility vaults. “Fair share” shall be determined for a project on the
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basis of the number and size of Franchisee’s Facilities being undergrounded in comparison to the
total number and size of all other utility facilities being undergrounded.
Section 6.3 To the extent Franchisee is providing Services to personal wireless services
facilities, Franchisee shall adhere to the design standards for such personal wireless services
facilities, and shall underground its Facilities and/or place its Facilities within the pole as may be
required by such design standards and Medina Municipal Code. For the purposes of clarity, this
Section 6.3 does not require undergrounding or interior placement of Facilities within the pole to
the extent that the personal wireless services facilities are located on solid utility poles that have
pre-existing aerial wireline facilities and provided such construction of Franchisee’s Facilities
continue to comply with Section 6.1 or Section 6.2.
Section 6.4 Franchisee shall not remove any underground cable or conduit that requires
trenching or other opening of the Rights-of-Way along the extension of cable to be removed,
except as provided in this Section 6.4 and as proven necessary subject to Section 18. Franchisee
may remove any underground cable and other related facilities from the Right-of-Way that has
been installed in such a manner that it can be removed without trenching or other opening of the
Right-of-Way along the extension of cable to be removed, or if otherwise permitted by the City.
Franchisee may remove any underground cable from the Rights-of-Way where reasonably
necessary to replace, upgrade, or enhance its Facilities, or pursuant to Section 5. When the City
determines, in the City’s sole discretion, that Franchisee’s underground Facilities must be
removed in order to eliminate or prevent a hazardous condition, Franchisee shall remove the
cable or conduit at Franchisee’s sole cost and expense. Franchisee must apply and receive a
permit, pursuant to Section 8.2, prior to any such removal of underground cable, conduit and
other related facilities from the Right-of-Way and must provide as-built plans and maps pursuant
to Section 7.1.
Section 6.5 The provisions of this Section 6 shall survive the expiration, revocation, or
termination of this Franchise. Nothing in this Section 6 shall be construed as requiring the City
to pay any costs of undergrounding any of the Franchisee’s Facilities.
City of Medina – MCImetro Franchise 10
Section 7 Maps and Records.
Section 7.1 After underground construction is complete, Franchisee shall provide the
City with accurate copies of as-built plans and maps stamped and signed by a professional land
surveyor or engineer in a form and content acceptable to the Public Works Director or his/her
designee. Following any aerial construction, Franchisee shall provide the City with accurate
copies of as-built plans and maps prepared by Franchisee’s design and installation contractors.
These plans and maps shall be provided at no cost to the City, and shall include hard copies and
digital files in Geographic Information System (GIS) or other industry standard readable formats
that are acceptable to the City and delivered electronically. Further, Franchisee shall provide
such maps within ten (10) days following a request from the City. Franchisee shall warrant the
accuracy of all as-builts provided to the City.
Section 7.2 Within thirty (30) days of a written request from the Public Works Director,
the Franchisee shall furnish the City with information sufficient to demonstrate: (1) that the
Franchisee has complied with all applicable requirements of this Franchise; and (2) that all taxes,
including but not limited to sales, utility and/or telecommunications taxes, due the City in
connection with the Franchisee’s services and Facilities provided by the Franchisee have been
properly collected and paid by the Franchisee.
Section 7.3 Books, records, maps, and other documents maintained by Franchisee with
respect to its Facilities within the Rights-of-Way and which are reasonably necessary to
demonstrate compliance with the terms of this Franchise, shall, after reasonable prior notice from
the City, be made available for inspection by the City at reasonable times and intervals but no
more than one time each calendar year or upon the City’s reasonable belief that there has been a
violation of this Franchise by Franchisee; provided, however, that nothing in this Section 7.3
shall be construed to require Franchisee to violate state or federal law regarding customer
privacy, nor shall this Section 7.3 be construed to require Franchisee to disclose proprietary or
confidential information without adequate safeguards for its confidential or proprietary nature.
Unless otherwise permitted or required by State or federal law, nothing in this Section 7.3 shall
be construed as permission to withhold relevant customer data from the City that the City
requests in conjunction with a tax audit or review; provided, however, Franchisee may redact
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identifying information such as names, street addresses (excluding City and zip code), Social
Security Numbers, or Employer Identification Numbers related to any confidentiality agreements
Franchisee has with third parties.
Section 7.4 Franchisee shall not be required to disclose information that it reasonably
deems to be proprietary or confidential in nature; provided, however, Franchisee shall disclose
such information to comply with a utility tax audit, or in the event the City is permitted to charge
franchise fees as further described in Section 15.1, or as otherwise required in this Franchise.
Franchisee shall be responsible for clearly and conspicuously identifying the work as
confidential or proprietary, and shall provide a brief written explanation as to why such
information is confidential and how it may be treated as such under State or federal law. In the
event that the City receives a public records request under Chapter 42.56 RCW or similar law for
the disclosure of information Franchisee has designated as confidential, trade secret, or
proprietary, the City shall promptly provide written notice of such disclosure so that Franchisee
can take appropriate steps to protect its interests. Nothing in this Section 7.4 prohibits the City
from complying with Chapter 42.56 RCW or any other applicable law or court order requiring
the release of public records, and the City shall not be liable to Franchisee for compliance with
any law or court order requiring the release of public records. The City shall comply with any
injunction or court order obtained by Franchisee that prohibits the disclosure of any such
confidential records; however, in the event a higher court overturns such injunction or court
order and such higher court action is or has become final and non-appealable, Franchisee shall
reimburse the City for any fines or penalties imposed for failure to disclose such records as
required hereunder within sixty (60) days of a request from the City.
Section 7.5 On an annual basis, upon thirty (30) days prior written notice, the City shall
have the right to conduct an independent audit of Franchisee’s records reasonably related to the
administration or enforcement of this Franchise and the collection of utility taxes, in accordance
with GAAP. If the audit shows that tax payments have been underpaid by three percent (3%) or
more, Franchisee shall pay the total cost of the audit.
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Section 8 Work in the Rights-of-Way.
Section 8.1 During any period of relocation, modification, construction or maintenance,
all work performed by Franchisee or its contractors shall be accomplished in a safe and
workmanlike manner, so to minimize interference with the free passage of traffic and the free use
of adjoining property, whether public or private. Franchisee shall at all times post and maintain
proper barricades, flags, flaggers, lights, flares and other measures as required for the safety of
all members of the general public and comply with all applicable safety regulations during such
period of construction as required by the ordinances of the City or the laws of the State of
Washington, including RCW 39.04.180 for the construction of trench safety systems.
Section 8.2 Whenever Franchisee shall commence work in any public Rights-of-Way for
the purpose of excavation, installation, construction, repair, maintenance, modification, or
relocation of its cable or equipment, it shall apply to the City for a permit to do so. The City
shall only issue permits that are in compliance with Medina Municipal Code, the City’s Public
Works Standards, and the City’s generally applicable design standards. During the progress of
the work, the Franchisee shall not unnecessarily obstruct the passage or proper use of the Rights-
of-Way, and all work by the Franchisee in the area shall be performed in accordance with
applicable City standards and specifications. Further, when Franchisee does any work in or
affecting any Rights-of-Way or City property, it shall, at its own expense, properly remove any
obstructions therefrom and restore such ways or property to as good a condition as existed before
the work was undertaken. In no case shall any work commence within any Rights-of-Way
without a permit, except as otherwise provided in this Franchise ordinance.
Section 8.3 If the Franchisee shall at any time plan to make excavations in any area
covered by this Franchise and as described in this Section 8.3, the Franchisee shall afford the
other, upon receipt of a written request to do so, an opportunity to share such excavation,
PROVIDED THAT:
(a) Such joint use shall not unreasonably delay the work of the Franchisee
causing the excavation to be made;
(b) Such joint use shall be arranged and accomplished on terms and
conditions satisfactory to both parties; and
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(c) Franchisee may deny such request for safety reasons.
Section 8.4 Except for emergency situations, Franchisee shall give at least seven (7)
days’ prior notice of intended construction to residents in the affected area prior to any
underground construction or disturbance. Such notice shall contain the dates, contact number,
nature and location of the work to be performed. At least forty-eight (48) hours prior to entering
private property or streets or public easements adjacent to or on such private property,
Franchisee shall physically post a notice on the property indicating the nature and location of the
work to be performed. Door hangers are permissible methods of notifications to residents.
Franchisee shall make a good faith effort to comply with the property owner/resident’s
preferences, if any, on location or placement of underground installations (excluding aerial cable
lines utilizing existing poles and existing cable paths), consistent with sound engineering
practices. Following performance of the work, Franchisee shall restore the private property as
nearly as possible to its condition prior to construction, except for any change in condition not
caused by Franchisee. Any disturbance of landscaping, fencing, or other improvements on
private property caused by Franchisee’s work shall, at the sole expense of Franchisee, be
promptly repaired and restored to the reasonable satisfaction of the property owner/resident.
Notwithstanding the above, nothing herein shall give Franchisee the right to enter onto private
property without the permission of such private property owner, or as otherwise authorized by
applicable law.
Section 8.5 Upon receipt of a permit (except in emergency situations), Franchisee may
trim trees upon and overhanging on public ways, streets, alleys, sidewalks, and other public
places of the City so as to prevent the branches of such trees from coming in contact with
Franchisee’s Facilities. The right to trim trees in this Section 8.5 shall only apply to the extent
necessary to protect above ground Facilities. Franchisee’s tree trimming activities shall protect
the appearance, integrity, and health of the trees to the extent reasonably possible. Franchisee
shall be responsible for all debris removal from such activities. All trimming shall be at the
expense of Franchisee. Franchisee may contract for such services, however, any firm or
individual so retained must first receive City approval prior to commencing such trimming.
Nothing herein grants Franchisee any authority to act on behalf of the City, to enter upon any
private property, or to trim any tree or natural growth not owned by the City except to the extent
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it is necessary that Franchisee trims trees or vegetation upon, overhanging, or encroaching on
public ways, streets, alleys, sidewalks, and other public places of the City so as to prevent such
vegetation from coming in contact with Franchisee’s Facilities. Franchisee shall be solely
responsible and liable for any damage to any third parties’ trees or natural growth caused by
Franchisee’s actions. Franchisee shall indemnify, defend and hold harmless the City from third-
party claims of any nature arising out of any act or negligence of Franchisee with regard to tree
and/or natural growth trimming, damage, and/or removal. Franchisee shall reasonably
compensate the City or the property owner for any damage caused by trimming, damage, or
removal by Franchisee. Except in an emergency situation, all tree trimming must be performed
under the direction of an arborist certified by the International Society of Arboriculture, unless
otherwise approved by the Public Works Director or his/her designee.
Section 8.6 By February 1st of each year, Franchisee shall provide the City with a
schedule of their proposed construction activities in, around, or that may affect the Rights-of-
Way. Franchisee shall meet with the City and other franchise holders and users of the Rights-of-
Way annually or upon written notice as determined by the City, to schedule and coordinate
construction in the Rights-of-Way. All construction locations, activities, and schedules shall be
coordinated, as ordered by the City to minimize public inconvenience, disruption or damages.
Further, Franchisee shall provide at least thirty (30) days’ notice of Franchisee’s proposed
construction, and the proposed timing of such construction, to the City and all other utilities
known to be using or proposing to use the same Rights-of-Way. Franchisee recognizes that
within seven days of the notification, such utilities may request a delay in the commencement of
the proposed construction for the purpose of coordinating other Right-of-Way construction with
the proposed project, and City and such other utilities shall have thirty (30) days from providing
such request to Franchisee to complete coordination of timing and construction. If such work is
not completed within such thirty (30) day period, then Franchisee may proceed with its work
without further delay.
Section 8.7 Franchisee shall inform the City with at least thirty (30) days’ advance
written notice that it is constructing, relocating, or placing ducts or conduits in the Rights-of-
Way in order to provide the City with an opportunity to request that Franchisee provide the City
City of Medina – MCImetro Franchise 15
with additional duct or conduit and related structures necessary to access the conduit pursuant to
RCW 35.99.070.
Section 8.8 The provisions of this Section 8 shall survive the expiration or termination of
this Franchise ordinance.
Section 9 One Call Locator Service. Prior to doing any work in the Rights-of-Way, the
Franchisee shall follow established procedures, including contacting the Utility Notification
Center in Washington and comply with all applicable State statutes regarding the One Call
Locator Service pursuant to Chapter 19.122 RCW. Further, upon request from a third party or
the City, Franchisee shall locate its Facilities consistent with the requirements of Chapter 19.122
RCW. The City shall not be liable for any damages to Franchisee’s Facilities or for interruptions
in service to Franchisee’s customers that are a direct result of Franchisee’s failure to locate its
Facilities within the prescribed time limits and guidelines established by the One Call Locator
Service regardless of whether the City issued a permit.
Section 10 Safety Requirements.
Section 10.1 Franchisee shall, at all times, employ professional care and shall install and
maintain and use industry-standard methods for preventing failures and accidents that are likely
to cause damage, injuries, or nuisances to the public. All structures and all lines, equipment, and
connections in, over, under, and upon the Rights-of-Ways, wherever situated or located, shall at
all times be kept and maintained in a safe condition. Franchisee shall comply with all federal,
State, and City safety requirements, rules, regulations, laws, and practices, and employ all
necessary devices as required by applicable law during the construction, operation, maintenance,
upgrade, repair, or removal of its Facilities. By way of illustration and not limitation, Franchisee
shall also comply with the applicable provisions of the National Electric Code, National
Electrical Safety Code, FCC regulations, and Occupational Safety and Health Administration
(OSHA) Standards. Upon reasonable notice to Franchisee, the City reserves the general right to
inspect the Facilities to evaluate if they are constructed and maintained in a safe condition.
Section 10.2 If an unsafe condition or a violation of Section 10.1 is found to exist, and
becomes known to the City, the City agrees to give Franchisee written notice of such condition
City of Medina – MCImetro Franchise 16
and afford Franchisee a reasonable opportunity to repair the same. If Franchisee fails to start to
make the necessary repairs and alterations within the time frame specified in such notice (and
pursue such cure to completion), then the City may make such repairs or contract for them to be
made. All costs, including administrative costs, incurred by the City in repairing any unsafe
conditions shall be borne by Franchisee and reimbursed to the City pursuant to Section 14.3 and
Section 14.4.
Section 10.3 Additional standards include:
(a) Franchisee shall endeavor to maintain all equipment lines and facilities in
an orderly manner including, but not limited to, the removal of all bundles of unused
cable on any aerial facilities. If permitted pursuant to a permit, Franchisee may maintain
a bundle of unused cable on an aerial facility to be used as slack for relocation or repairs;
provided however, that Franchisee is permitted to use snow shoe style wire storage
provided that Franchisee minimizes the usage of the snow shoes only to those situations
in which is it is necessary to provide Services.
(b) All installations of equipment, lines, and ancillary facilities shall be
installed in accordance with industry-standard engineering practices and shall comply
with all federal, State, and local regulations, ordinances, and laws.
(c) Any opening or obstruction in the Rights-of-Way or other public places
made by Franchisee in the course of its operations shall be protected by Franchisee at all
times by the placement of adequate barriers, fences, or boarding, the bounds of which,
during periods of dusk and darkness, shall be clearly marked and visible.
Section 10.4 Stop Work Order. On notice from the City that any work is being
performed contrary to the provisions of this Franchise, or in an unsafe or dangerous manner as
determined by the City, or in violation of the terms of any applicable permit, laws, regulations,
ordinances, or standards, the work may immediately be stopped by the City. The stop work
order shall:
(a) Be in writing;
(b) Be given to the person doing the work or posted on the work site;
(c) Be sent to Franchisee consistent with Section 33.
City of Medina – MCImetro Franchise 17
(d) Indicate the nature of the alleged violation or unsafe condition; and
(e) Establish conditions, consistent with the applicable laws, regulations,
ordinances or generally applicable standards under which work may be resumed.
Section 11 Work of Contractors and Subcontractors. Franchisee’s contractors and
subcontractors shall be licensed and bonded in accordance with State law and the City’s
ordinances, regulations, and requirements. Work by contractors and subcontractors 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 contractors and subcontractors and
others performing work on its behalf as if the work were performed by Franchisee and shall
ensure that all such work is performed in compliance with this Franchise and applicable law.
Section 12 Restoration after Construction.
Section 12.1 Franchisee shall, after installation, construction, relocation, maintenance, or
repair of its Facilities, or after abandonment approved pursuant to Section 18, promptly remove
any obstructions from the Rights-of-Way and restore the surface of the Rights-of-Way in
accordance with the City’s Public Works Standards to at least the same condition the Rights-of-
Way were in immediately prior to any such installation, construction, relocation, maintenance or
repair, provided Franchisee shall not be responsible for any changes to the Rights-of-Way not
caused by Franchisee or anyone doing work for Franchisee. The Public Works Director or
his/her designee shall have final approval of the condition of such Rights-of-Way after
restoration. All concrete encased survey monuments that have been disturbed or displaced by
such work shall be restored pursuant to federal, state (such as Chapter 332-120 WAC), and local
standards and specifications.
Section 12.2 Franchisee agrees to promptly complete all restoration work and to
promptly repair any damage caused by work to the Franchise Area or other affected area at its
sole cost and expense and according to the time and terms specified in the construction permit
issued by the City. All work by Franchisee pursuant to this Franchise shall be performed in
accordance with the City’s Public Works Standards.
City of Medina – MCImetro Franchise 18
Section 12.3 If conditions (e.g. weather) make the complete restoration required under
Section 12 impracticable, Franchisee shall temporarily restore the affected Right-of-Way or
property. Such temporary restoration shall be at Franchisee’s sole cost and expense. Franchisee
shall promptly undertake and complete the required permanent restoration when conditions no
longer make such permanent restoration impracticable.
Section 12.4 In the event Franchisee does not repair a Right-of-Way or an improvement
in or to a Right-of-Way within the time reasonably directed by the Public Works Director, or
his/her designee, in order to maintain the public welfare, health or safety, the City may repair the
damage and shall be reimbursed its actual cost within sixty (60) days of submitting an invoice to
Franchisee in accordance with the provisions of Section 14.3 and Section 14.4. In addition, and
pursuant to Section 14.3 and Section 14.4, the City may bill Franchisee for expenses associated
with the inspection of such restoration work. The failure by Franchisee to complete such repairs
shall be considered a breach of this Franchise and is subject to remedies by the City including the
imposition of damages consistent with Section 21.2.
Section 12.5 The provisions of this Section 12 shall survive the expiration or
termination of this Franchise so long as Franchisee continues to have Facilities in the Rights-of-
Way and has not completed all restoration to the City’s standards.
Section 13 Emergency Work/Dangerous Conditions.
Section 13.1 In the event of any emergency in which any of Franchisee’s Facilities
located in or under any street endangers the property, life, health or safety of any person, or if
Franchisee’s construction area is otherwise in such a condition as to immediately endanger the
property, life, health or safety of any individual, Franchisee shall immediately take the proper
emergency measures to repair its Facilities, to cure or remedy the dangerous conditions for the
protection of property, life, health or safety of individuals without first applying for and
obtaining a permit as required by this Franchise. However, this shall not relieve Franchisee from
the requirement of obtaining any permits necessary for this purpose, and Franchisee shall apply
for all such permits not later than the next succeeding day during which the Medina City Hall is
open for business. The City retains the right and privilege to cut or move any Facilities located
within the Rights-of-Way of the City, in response to any public health or safety emergency.
City of Medina – MCImetro Franchise 19
Section 13.2 The City shall not be liable for any damage to or loss of Facilities within
the Rights-of-Way as a result of or in connection with any public works, public improvements,
construction, grading, excavation, filling, or work of any kind in the Rights-of-Way by or on
behalf of the City, except to the extent directly and proximately caused by sole negligence,
intentional misconduct or criminal actions of the City, its employees, contractors, or agents. The
City shall further not be liable to Franchisee for any direct, indirect, or any other such damages
suffered by any person or entity of any type as a direct or indirect result of the City’s actions
under this Section 13 except to the extent caused by the sole negligence, intentional misconduct
or criminal actions of the City, its employees, contractors, or agents.
Section 13.3 Whenever the construction, installation or excavation of Facilities
conducted by Franchisee as authorized by this Franchise has caused or materially contributed to
a condition that appears to substantially impair the lateral support of the adjoining street or
public place, or endangers the public, an adjoining public place, street utilities or City property,
the Public Works Director may direct Franchisee, at Franchisee’s own expense, to take
reasonable action to protect the public, adjacent public places, City property or street utilities,
and such action may include compliance within a prescribed time. 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, before the City
can timely contact Franchisee to request Franchisee effect the immediate repair, the City may
enter upon the property and take such reasonable actions as are necessary to protect the public,
the adjacent streets, or street utilities, or to maintain the lateral support thereof, or reasonable
actions regarded as necessary safety precautions, and Franchisee shall be liable to the City for the
costs thereof.
Section 14 Recovery of Costs.
Section 14.1 Franchisee shall pay a one-time fee (not to exceed $5000) for the actual
administrative expenses incurred by the City that are directly related to the receiving and
approving this Franchise pursuant to RCW 35.21.860, including the costs associated with the
City’s legal costs incurred in drafting and processing this Franchise, not to exceed $5,000.
Franchisee shall also pay a one-time special circumstances fee (not to exceed $5000) for actual
City of Medina – MCImetro Franchise 20
administrative expenses that were incurred by the City as a result of the special circumstances of
the 2020 health crisis and that were related to MCImetro’s proposed work in the City. No
construction permits shall be issued for the installation of Facilities authorized until such time as
the City has received payment of these fees; further, this Franchise shall be considered void if the
fees are not paid within ninety (90) days of receipt of the invoice. Franchisee shall further be
subject to all permit fees associated with activities undertaken through the authority granted in
this Franchise or under the laws of the City. Where the City incurs costs and expenses for
review, inspection, or supervision of activities, including but not limited to reasonable fees
associated with attorneys, consultants, City Staff and City Attorney time, undertaken through the
authority granted in this Franchise or any ordinances relating to the subject for which a permit
fee is not established, Franchisee shall pay such costs and expenses directly to the City in
accordance with the provisions of Section 14.3.
Section 14.2 In addition to Section 14, Franchisee shall promptly reimburse the City in
accordance with the provisions of Section 14.3 and Section 14.4 for any and all costs the City
reasonably incurs in response to any emergency situation involving Franchisee’s Facilities, to the
extent said emergency is not the fault of the City. The City agrees to simultaneously seek
reimbursement from any franchisee or permit holder who caused or contributed to the emergency
situation.
Section 14.3 Consistent with state law, Franchisee shall reimburse the City within sixty
(60) days of submittal by the City of an itemized billing for reasonably incurred costs, itemized
by project, for Franchisee’s proportionate share of all actual, identified expenses incurred by the
City in planning, constructing, installing, repairing, altering, or maintaining any City facility as
the result of the presence of Franchisee’s Facilities in the Right-of-Way. Such costs and
expenses shall include but not be limited to Franchisee’s proportionate cost of City personnel
assigned to oversee or engage in any work in the Right-of-Way as the result of the presence of
Franchisee’s Facilities in the Right-of-Way. Such costs and expenses shall also include
Franchisee’s proportionate share of any time spent reviewing construction plans in order to either
accomplish the relocation of Franchisee’s Facilities or the routing or rerouting of any utilities so
as not to interfere with Franchisee’s Facilities.
City of Medina – MCImetro Franchise 21
Section 14.4 The time of City employees shall be charged at their respective rate of
salary, including overtime if applicable, plus benefits and reasonable overhead. Any other costs
will be billed proportionately on an actual cost basis. All billings will be itemized so as to
specifically identify the costs and expenses for each project for which the City claims
reimbursement. A charge for the actual costs incurred in preparing the billing may also be
included in said billing. At the City’s option, the billing may be on an annual basis, but the City
shall provide the Franchisee with the City’s itemization of costs, in writing, at the conclusion of
each project for information purposes.
Section 15 City’s Reservation of Rights.
Section 15.1 Franchisee hereby represents that its operations as authorized under this
Franchise are those of a telephone business as defined in RCW 82.16.010, or service provider as
defined in RCW 35.21.860. As a result, the City will not impose a Franchise fee under the terms
of this Franchise, other than as described herein. The City hereby reserves its right to impose a
Franchise fee on Franchisee if Franchisee’s operations as authorized by this Franchise change
such that the statutory prohibitions of RCW 35.21.860 no longer apply or, if statutory
prohibitions on the imposition of such fees are removed. In either instance, the City also
reserves its right to require that Franchisee obtain a separate Franchise for its change in use.
Nothing contained herein shall preclude Franchisee from challenging any such new fee or
separate agreement under applicable federal, State, or local laws.
Section 15.2 Franchisee acknowledges that its operation with the City constitutes a
telecommunications business subject to the utility tax imposed pursuant to the Medina Municipal
Code Chapter 5.04. Franchisee stipulates and agrees that certain of its business activities are
subject to taxation as a telephone business and that Franchisee shall pay to the City the rate
applicable to such taxable services under Medina Municipal Code Chapter 5.04, and consistent
with state and federal law. The parties agree however, that nothing in this Franchise shall limit
the City's power of taxation as may exist now or as later imposed by the City. This provision
does not limit the City's power to amend Medina Municipal Code Chapter 5.04 as may be
permitted by law. Nothing in this Franchise is intended to alter, amend, modify or expand the
taxes and fees that may be lawfully assessed on Franchisee’s Services.
City of Medina – MCImetro Franchise 22
Section 16 Indemnification.
Section 16.1 Franchisee releases, covenants not to bring suit, and agrees to indemnify,
defend, and hold harmless the City, its officers, employees, agents, and representatives from any
and all claims, costs, judgments, awards, or liability to any person, for injury or death of any
person, or damage to property caused by or arising out of any acts or omissions of Franchisee, its
agents, servants, officers, or employees in the performance of this Franchise and any rights
granted within this Franchise.
Section 16.2 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 by Franchisee of any
of its obligations under this Section 16. These indemnification obligations shall extend to claims
that are not reduced to a suit and any claims that may be compromised, with Franchisee’s prior
written consent, prior to the culmination of any litigation or the institution of any litigation.
Section 16.3 The City shall promptly notify Franchisee of any claim or suit and request
in writing that Franchisee indemnify the City. Franchisee may choose counsel to defend the City
subject to this Section 16.3. City’s failure to so notify and request indemnification shall not
relieve Franchisee of any liability that Franchisee might have, except to the extent that such
failure prejudices Franchisee’s ability to defend such claim or suit. In the event that Franchisee
refuses the tender of defense in any suit or any claim, as required pursuant to the indemnification
provisions within this Franchise, 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, Franchisee shall pay all of the City’s reasonable
costs for defense of the action, including all expert witness fees, costs, and attorney’s fees, and
including costs and fees incurred in recovering under this indemnification provision. If separate
representation to fully protect the interests of both parties is necessary, such as a conflict of
interest between the City and the counsel selected by Franchisee to represent the City, then upon
the prior written approval and consent of Franchisee, which shall not be unreasonably withheld,
the City shall have the right to employ separate counsel in any action or proceeding and to
participate in the investigation and defense thereof, and Franchisee shall pay the reasonable fees
and expenses of such separate counsel, except that Franchisee shall not be required to pay the
City of Medina – MCImetro Franchise 23
fees and expenses of separate counsel on behalf of the City for the City to bring or pursue any
counterclaims or interpleader action, equitable relief, restraining order or injunction. The City’s
fees and expenses shall include all out-of-pocket expenses, such as consultants and expert
witness fees, and shall also include the reasonable value of any services rendered by the counsel
retained by the City but shall not include outside attorneys’ fees for services that are
unnecessarily duplicative of services provided the City by Franchisee. Each party agrees to
cooperate and to cause its employees and agents to cooperate with the other party in the defense
of any such claim and the relevant records of each party shall be available to the other party with
respect to any such defense.
Section 16.4 The parties acknowledge that this Franchise may be subject to RCW
4.24.115. Accordingly, 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 and the City, its officers, officials, employees, and volunteers, Franchisee’s liability
shall be only to the extent of Franchisee’s negligence. It is further specifically and expressly
understood that the indemnification provided 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.
Section 16.5 Notwithstanding any other provisions of this Section 16, Franchisee
assumes the risk of damage to its Facilities located in the Rights-of-Way and upon City-owned
property from activities conducted by the City, its officers, agents, employees, volunteers,
elected and appointed officials, except to the extent any such damage or destruction is caused by
or arises from any sole negligence, intentional misconduct or criminal actions on the part of the
City, its officers, agents, employees, volunteers, or elected or appointed officials. In no event
shall the City be liable for any indirect, incidental, special, consequential, exemplary, or punitive
damages, including by way of example and not limitation lost profits, lost revenue, loss of
goodwill, or loss of business opportunity in connection with its performance or failure to perform
under this Franchise. Franchisee releases and waives any and all such claims against the City, its
officers, agents, employees, volunteers, or elected or appointed officials. Franchisee further
agrees to indemnify, hold harmless and defend the City against any claims for damages,
including, but not limited to, business interruption damages, lost profits and consequential
City of Medina – MCImetro Franchise 24
damages, brought by users of Franchisee’s Facilities as the result of any interruption of service
due to damage or destruction of Franchisee’s Facilities caused by or arising out of activities
conducted by the City, its officers, agents, or employees.
Section 16.6 The provisions of this Section 16 shall survive the expiration, revocation, or
termination of this Franchise.
Section 17 Insurance.
Section 17.1 Franchisee shall procure and maintain for so long as Franchisee has
Facilities in the Right-of-Way, insurance against claims for injuries to persons or damages to
property which may arise from or in connection with the exercise of rights, privileges and
authority granted to Franchisee, its agents representatives or employees. The Franchisee shall
cause each and every Subcontractor to provide insurance coverage that complies with all
applicable requirements of the Franchisee-provided insurance as set forth herein, except the
Franchisee shall have sole responsibility for determining the limits of coverage required to be
obtained by Subcontractors. The Franchisee shall ensure that the City is an additional insured on
each and every Subcontractor’s insurance policy using an endorsement as least as broad as ISO
CG 20 10 10 01 for ongoing operations and CG 20 37 10 01 for completed operations.
Franchisee shall procure insurance from insurers with a current A.M. Best rating of not less than
A-. Franchisee shall provide a copy of a certificate of insurance and additional insured
endorsement to the City for its inspection at the time of or prior to acceptance of this Franchise,
and such insurance certificate shall evidence a policy of insurance that includes:
(a) Automobile Liability insurance with limits no less than $2,000,000 combined
single limit per occurrence for bodily injury and property damage.
(b) Commercial General Liability insurance, written on an occurrence basis with
limits no less than $3,000,000 combined single limit per occurrence and $5,000,000 aggregate
for personal injury, bodily injury and property damage. Coverage shall include but not be limited
to: blanket contractual; premises; operations; independent contractors; stop gap liability; personal
injury; products and completed operations; broad form property damage; explosion, collapse and
underground (XCU); and employer’s liability.
City of Medina – MCImetro Franchise 25
(c) Workers’ Compensation coverage as required by the Industrial Insurance laws of
the State of Washington. No deductible is presently required for this insurance; and
(d) Umbrella liability policy with limits not less than $10,000,000 per occurrence and
in the aggregate.
Section 17.2 Any deductibles or self-insured retentions must be declared to and approved
by the City. Such approval shall not be unreasonably withheld or delayed. The City
acknowledges that Franchisee’s current deductibles are subject to change based on business
needs and the commercial insurance market. Payment of deductible or self-insured retention
shall be the sole responsibility of Franchisee. Additionally, Franchisee shall pay all premiums
for the insurance on a timely basis. Franchisee may utilize primary and umbrella liability
insurance policies to satisfy the insurance policy limits required in this Section 17. Franchisee’s
umbrella liability insurance policy shall provide “follow form” coverage over its primary liability
insurance policies.
Section 17.3 The insurance policies, with the exception of Workers’ Compensation
obtained by Franchisee shall name the City, its officers, officials, employees, agents, and
volunteers (“Additional Insureds”), as an additional insured with regard to activities performed
by or on behalf of Franchisee. The coverage shall contain no special limitations on the scope of
protection afforded to the Additional Insureds. In addition, the insurance policy shall contain a
clause stating that coverage shall apply separately to each insured against whom a claim is made
or suit is brought, except with respect to the limits of the insurer’s liability. Franchisee shall
provide to the City prior to or upon acceptance either (1) a true copy of the additional insured
endorsement for each insurance policy required in this Section 17 and providing that such
insurance shall apply as primary insurance on behalf of the Additional Insureds or (2) a true copy
of the blanket additional insured clause from the policies. Receipt by the City of any certificate
showing less coverage than required is not a waiver of Franchisee’s obligations to fulfill the
requirements. Franchisee’s insurance shall be primary insurance with respect to the City, and the
endorsement should specifically state that the insurance is the primary insurance. Any insurance
maintained by the City shall be in excess of Franchisee’s insurance and shall not contribute with
it.
City of Medina – MCImetro Franchise 26
Section 17.4 Franchisee is obligated to notify the City of any cancellation or intent not to
renew any insurance policy, required pursuant to this Section 17, thirty (30) days prior to any
such cancellation. Within fifteen (15) days prior to said cancellation or intent not to renew,
Franchisee shall obtain and furnish to the City replacement insurance policies meeting the
requirements of this Section 17. Failure to provide the insurance cancellation notice and to
furnish to the City replacement insurance policies meeting the requirements of this Section 17
shall be considered a material breach of this Franchise, upon which the City may, after giving
five (5) business days’ notice to the Franchisee to correct the breach, immediately terminate the
contract or, at its discretion, procure or renew such insurance and pay any and all premiums in
connection therewith, with any sums so expended to be repaid to the City on demand.
Notwithstanding the cure period described in Section 21.2, the City may pursue its remedies
immediately upon a failure to furnish replacement insurance.
Section 17.5 Franchisee’s maintenance of insurance as required by this Section 17 shall
not be construed to limit the liability of Franchisee to the coverage provided by such insurance,
or otherwise limit the City’s recourse to any remedy available at law or equity. Further,
Franchisee’s maintenance of insurance policies required by this Franchise shall not be construed
to excuse unfaithful performance by Franchisee.
Section 17.6 As of the effective date of this Franchise, Franchisee is not self-insured.
Should Franchisee wish to become self-insured at the levels outlined in this Franchise at a later
date, Franchisee must provide the City with thirty (30) days advanced written notice of its intent
to self-insure. In order to self-insure, Franchisee shall comply with the following: (i) provide a
written attestation that Franchisee possesses the necessary amount of unencumbered financial
assets to support the financial exposure of self-insurance, as evidenced by an outside auditor’s
review of Franchisee’s financial statements; (ii) the City, upon request, may review Franchisee’s
financial statements; (iii) Franchisee is responsible for all payments within the self-insured
retention; and (iv) Franchisee assumes all defense and indemnity obligations as outlined in the
indemnification section of this Franchise. These requirements may be modified by written
amendment executed by both parties.
City of Medina – MCImetro Franchise 27
Section 18 Abandonment of Franchisee’s Telecommunications Fiber Optic Cable Network.
Section 18.1 Upon the expiration, termination, or revocation of the rights granted under
this Franchise, Franchisee shall remove all of its Facilities from the Right-of-Way within thirty
(30) days of receiving written notice from the Public Works Director or his/her designee. The
Facilities, in whole or in part, may not be abandoned by Franchisee without written approval by
the City. Any plan for abandonment or removal of Franchisee’s Facilities must be first approved
by the Public Works Director or his/her designee, and all necessary permits must be obtained
prior to such work. Franchisee shall restore the Right-of-Way in accordance with the City’s
Public Works Standards to at least the same condition the Right-of-Way were in immediately
prior to any such removal provided Franchisee shall not be responsible for any changes to the
Right-of-Way not caused by Franchisee or any person doing work for Franchisee. Franchisee
shall be solely responsible for all costs associated with removing its Facilities.
Section 18.2 Notwithstanding Section 18.1 above, the City may permit Franchisee’s
improvements to be abandoned in place in such a manner as the City may prescribe. Upon
permanent abandonment, and Franchisee’s agreement to transfer ownership of the Facilities to
the City, Franchisee shall submit to the City a proposal and instruments for transferring
ownership to the City.
Section 18.3 Any Facilities which are not removed within ninety (90) days of either the
date of termination or revocation or the date the City issued a permit authorizing removal,
whichever is later, shall automatically become the property of the City. Any costs incurred by
the City in safeguarding such Facilities or removing the Facilities shall be reimbursed by
Franchisee. Nothing contained within this Section 18 shall prevent the City from compelling
Franchisee to remove any such Facilities through judicial action when the City has not permitted
Franchisee to abandon said Facilities in place.
Section 18.4 If Franchisee leases a structure in the Right-of-Way from a landlord and
such landlord later replaces, removes or relocates the structure, for example by building a
replacement structure, Franchisee shall remove or relocate its Facilities within the Right-of-Way
within ninety (90) days of such notification from the landlord at no cost to the City.
City of Medina – MCImetro Franchise 28
Section 18.5 The provisions of this Section 18 shall survive the expiration, revocation, or
termination of this Franchise and for so long as Franchisee has Facilities in Rights-of-Way.
Section 19 Bonds.
Section 19.1 Construction Performance Bond. Upon an application for a permit
involving excavation, installation, construction, restoration or relocation of the Facilities and if
required by the City, Franchisee shall furnish a performance bond (“Performance Bond”) written
by a corporate surety reasonably acceptable to the city in an amount equal to 150% of the
estimate cost of removing the Franchisee’s telecommunications equipment and facilities and
restoring the Rights-of-Way of the City and/or City-owned property to its preconstruction
condition, which should not be less than $2,000. The Performance Bond shall be required to
remain in full force until sixty (60) days after completion of the construction and/or
improvements within the Rights-of-Way or upon City property and shall warrant all such
restoration work for a period of two years. The amount of the Performance Bond may be reduced
during construction as determined by the City. The Performance Bond shall guarantee the
following: (1) timely completion of construction; (2) construction in compliance with all
applicable plans, permits, technical codes, and standards; (3) proper location of the Facilities as
specified by the City; (4) restoration of the Rights-of-Way and other City properties affected by
the construction; (5) submission of as-built drawings after completion of construction; and (6)
timely payment and satisfaction of all claims, demands, or liens for labor, materials, or services
provided in connection with the work, which could be asserted against the City or City property.
Said bond must remain in full force until the completion of construction, including final
inspection, corrections, and final approval of the work, recording of all easements, provision of
as-built drawings, and the posting of a Maintenance Bond as described in Section 19.2.
Section 19.2 Maintenance Bond. Following excavation, installation, construction,
restoration or relocation of the Facilities and if required by the City, Franchisee shall furnish a
two (2) year maintenance bond (“Maintenance Bond”), or other surety acceptable to the City, at
the time of final acceptance of construction work on Facilities within the Rights-of-Way. The
Maintenance Bond amount will be equal to ten percent (10%) of the documented final cost of the
City of Medina – MCImetro Franchise 29
construction work. The Maintenance Bond in this Section 19.2 must be in place prior to City’s
release of the bond required by Section 19.1.
Section 19.3 Franchise Bond. Franchisee shall provide City with a bond in the amount
of Twenty Thousand Dollars ($20,000.00) (“Franchise Bond”) running or renewable for the term
of this Franchise, in a form and substance reasonably acceptable to City. In the event Franchisee
shall fail to substantially comply with any one or more of the provisions of this Franchise
following notice and a reasonable opportunity to cure, then there shall be recovered jointly and
severally from Franchisee and the bond any actual damages suffered by City as a result thereof,
including but not limited to staff time, material and equipment costs, compensation or
indemnification of third parties, and the cost of removal or abandonment of facilities hereinabove
described. Franchisee specifically agrees that its failure to comply with the terms of this Section
19 shall constitute a material breach of this Franchise. Franchisee shall replenish the Franchise
Bond within fourteen (14) days after written notice from the City that there is a deficiency in the
amount of the fund. The amount of the bond shall not be construed to limit Franchisee's liability
or to limit the City's recourse to any remedy to which the City is otherwise entitled at law or in
equity.
Section 20 Modification. The City and Franchisee hereby reserve the right to alter, amend, or
modify the terms and conditions of this Franchise upon written agreement of both parties to such
alteration, amendment or modification.
Section 21 Remedies to Enforce Compliance.
Section 21.1 The City may elect, without any prejudice to any of its other legal rights
and remedies, to obtain an order from the superior court having jurisdiction compelling
Franchisee to comply with the provisions of the Franchise and to recover damages and costs
incurred by the City by reason of Franchisee’s failure to comply. In addition to any other
remedy provided herein, the City reserves the right to pursue any remedy to compel or force
Franchisee and/or its successors and assigns to comply with the terms hereof, and the pursuit of
any right or remedy by the City shall not prevent the City from thereafter declaring a forfeiture
or revocation for breach of the conditions herein. In addition to any other remedy provided in
this Franchise, Franchisee reserves the right to pursue any remedy available at law or in equity to
City of Medina – MCImetro Franchise 30
compel or require the City, its officers, employees, volunteers, contractors and other agents and
representatives, to comply with the terms of this Franchise. Further, all rights and remedies
provided herein shall be in addition to and cumulative with any and all other rights and remedies
available to either the City or Franchisee. Such rights and remedies shall not be exclusive, and
the exercise of one or more rights or remedies shall not be deemed a waiver of the right to
exercise at the same time or thereafter any other right or remedy. Provided, further, that by
entering into this Franchise, it is not the intention of the City or Franchisee to waive any other
rights, remedies, or obligations as otherwise provided by law equity, or otherwise, and nothing
contained here shall be deemed or construed to effect any such waiver. The parties agree that in
the event a party obtains injunctive relief, neither party shall be required to post a bond or other
security and the parties agree not to seek the imposition of such a requirement.
Section 21.2 If either party (the “Defaulting Party”) shall violate, or fail to comply with
any of the provisions of this Franchise, or should it fail to heed or comply with any notice given
to such party under the provisions of this Franchise, the other party (the “Non-Defaulting Party”)
shall provide the Defaulting Party with written notice specifying with reasonable particularity the
nature of any such breach and the Defaulting Party shall undertake all commercially reasonable
efforts to cure such breach within thirty (30) days of receipt of notification. If the Franchisee is
the Defaulting Party, it shall have thirty (30) days to furnish evidence that: (1) corrective action
has been, or is being actively and expeditiously pursued, to remedy the violation or
noncompliance; (2) rebuts the alleged violation or noncompliance; or (3) it would be in the
public interest to impose some penalty or sanction less than revocation. If the parties reasonably
determine the breach cannot be cured within (30) thirty days, the Non-Defaulting Party may
specify a longer cure period, and condition the extension of time on the Defaulting Party’s
submittal of a plan to cure the breach within the specified period, commencement of work within
the original thirty (30) day cure period, and diligent prosecution of the work to completion. If the
breach is not cured within the specified time, or the Defaulting Party does not comply with the
specified conditions, the Non-Defaulting Party may pursue any available remedy at law or in
equity as provided in Section 21.1 above, or in the event Franchisee has failed to timely cure or
commence cure of the breach, the City may, at its discretion, (1) revoke this Franchise with no
further notification pursuant to Section 22, (2) refuse to grant additional permits, (3) claim
damages of Two Hundred Fifty Dollars ($250.00) per day against the Franchisee or Franchise
City of Medina – MCImetro Franchise 31
Bond set forth in Section 19.3, or (4) refer the apparent violation or noncompliance to the
Hearing Examiner to make prosed findings and conclusions in conformance with Section 22.
The Hearing Examiner shall provide the Franchisee with notice and a reasonable opportunity to
be heard concerning the matter.
Section 22 Revocation.
Section 22.1 If Franchisee willfully violates or fails to comply with any material
provisions of this Franchise, the City Manager may notify Franchisee of violation or failure to
comply and provide thirty (30) days’ notice to cure. If Franchisee’s fails to cure within the time
period noted, the City Manager may give notice of intent to revoke the Franchise. Within fifteen
(15) days’ notice of the intent to revoke the Franchise, Franchisee may file a written request for a
hearing to be held in front of the Hearing Examiner.
Section 22.2 The Hearing Examiner will hold an open record hearing and Franchisee and
other interested parties may offer written and/or oral evidence to challenge, explain or mitigate
such alleged noncompliance. The Hearing Examiner shall utilize the factors in MMC 19.10.350
to analyze the nature, circumstances, extent, and gravity of the violation or noncompliance.
Neither the City nor Franchisee shall have the right to conduct discovery, subpoena witnesses, or
take depositions prior to the hearing.
Section 22.3 Within thirty (30) days following the close of the hearing, the Hearing
Examiner, on the basis of the hearing record, will make proposed findings and conclusions which
shall be referred to the City Manager. If the deficiency has not been cured and if the Hearing
Examiner did not recommend any additional cure period, the Hearing Examiner may conclude
that the Franchise should be revoked and forfeited or recommend lesser sanctions. Within fifteen
(15) days of receipt of the Hearing Examiner’s proposed findings and conclusions, the City
Manager shall make a recommendation to City Council for final action. Alternatively, the City
Manager may conclude the Franchisee has successfully cured the violation and withdraw the
notice. If the Franchisee seeks judicial review of the revocation, such revocation may be held in
abeyance, provided Franchisee is otherwise in compliance with the Franchise.
City of Medina – MCImetro Franchise 32
Section 23 Non-Waiver. The failure of either party to insist upon strict performance of any of the
covenants and agreements of this Franchise or to exercise any option herein conferred in any one
or more instances, shall not be construed to be a waiver or relinquishment of any such covenants,
agreements or option or any other covenants, agreements or option.
Section 24 Police Powers and City Ordinances. Nothing herein shall be deemed to restrict the
City’s ability to adopt and enforce, consistent with applicable law, all necessary and appropriate
ordinances regulating the performance of the conditions of this Franchise, including any valid
ordinance made in the exercise of its police powers in the interest of public safety and for the
welfare of the public. The City shall have the authority at all times to reasonably control by
appropriate regulations consistent with applicable law, including but not limited to 47 U.S.C.
Section 253, the location, elevation, manner of construction and maintenance of Facilities by
Franchisee and facilities of other similarly situated franchisees, and Franchisee shall promptly
conform with all such regulations, unless compliance would cause Franchisee to violate other
requirements of law. In the event of a conflict between the provisions of this Franchise
ordinance and any other generally applicable ordinance(s) enacted under the City’s police power
authority, such other ordinances(s) shall take precedence over the provisions set forth herein.
Section 25 Cost of Publication. The cost of publication of this Franchise ordinance shall be
borne by Franchisee.
Section 26 Acceptance. The rights and privileges granted pursuant to this Franchise shall not
become effective until its terms and conditions are acceptance by Franchisee. Acceptance shall
be accomplished by Franchisee’s submission of a written instrument in the form attached hereto
as Exhibit A, executed and sworn to by a corporate officer of the Franchisee, or someone
authorized by a corporate officer of the Franchisee, before a Notary Public. Acceptance must be
filed with the City within thirty (30) days of the effective date of the ordinance authorizing the
Franchise. In addition, Franchisee shall submit proof of insurance obtained and additional
insured endorsement pursuant to Section 17, any applicable construction Performance Bond
pursuant to Section 19.1 and the Franchise Bond required pursuant to Section 19.3. The
administrative fee pursuant to Section 14.1 is due within thirty (30) days of receipt of the invoice
from the City.
City of Medina – MCImetro Franchise 33
Section 27 Survival. All of the provisions, conditions, and requirements of Section 5, Section 6,
Section 8, Section 12, Section 16, Section 18, Section 27, Section 28, and Section 39.2 of this
Franchise shall be in addition to any and all other obligations and liabilities Franchisee may have
to the City at common law, by statute, or by contract, and shall survive the City’s Franchise to
Franchisee for the use of the Franchise Area, and any renewals or extensions thereof. All of the
provisions, conditions, regulations and requirements contained in this Franchise ordinance shall
further be binding upon the heirs, successors, executors, administrators, legal representatives and
assigns of Franchisee and all privileges, as well as all obligations and liabilities of Franchisee
shall inure to its heirs, successors and assigns equally as if they were specifically mentioned
where Franchisee is named herein.
Section 28 Assignment. Franchisee shall comply with the all provisions of MMC 19.10.300-
.310 regarding assignments and/or transfers of the Franchise that are consistent with the
applicable state and federal laws.
Section 29 Extension. If this Franchise expires without renewal or is otherwise lawfully
terminated or revoked, the City may, subject to applicable law:
(a) Allow Franchisee to maintain and operate its Facilities on a month-to-
month basis, provided that Franchisee maintains insurance for such Facilities during such
period and continues to comply with this Franchise; or
(b) The City may order the removal of any and all Facilities at Franchisee’s
sole cost and expense consistent with Section 18.
Section 30 Entire Agreement. This Franchise constitutes the entire understanding and
agreement between the parties as to the subject matter herein and no other agreements or
understandings, written or otherwise, shall be binding upon the parties upon execution of this
Franchise.
Section 31 Eminent Domain. The existence of this Franchise shall not preclude the City from
acquiring by condemnation in accordance with applicable law, all or a portion of the
Franchisee’s Facilities for the fair market value thereof. In determining the value of such
Facilities, no value shall be attributed to the right to occupy the area conferred by this Franchise.
City of Medina – MCImetro Franchise 34
Section 32 Vacation. If at any time the City, by ordinance, vacates all or any portion of the area
affected by this Franchise, the City shall not be liable for any damages or loss to the Franchisee
by reason of such vacation. If Franchisee has Facilities in the vacated portion of the Right-of-
Way, the City shall use reasonable efforts to reserve an appurtenant easement for Franchisee
within the vacated portion of the Right-of-Way within which Franchisee may continue to operate
existing Facilities under the terms of this Franchise for the remaining period of the term set forth
in Section 1.2. Notwithstanding the preceding sentence, the City shall incur no liability for
failing to reserve such easement. The City shall notify the Franchisee in writing not less than
sixty (60) days before vacating all or any portion of any such area, in which Franchisee is
located. The City may, after sixty (60) days written notice to the Franchisee, terminate this
Franchise with respect to such vacated area.
Section 33 Notice. Any Notice or information required or permitted to be given to the parties
under this Franchise agreement may be sent to the following addresses unless otherwise
specified:
CITY OF MEDINA
ATTN: City Manager
501 Evergreen Point Road
PO Box 144
Medina, WA 98014-1238
FRANCHISEE:
MCImetro Access Transmission Services
Corp.
Attn: Franchise Manager
600 Hidden Ridge
Mailcode: HQE02E102
Irving, TX 75038
Invoices:
Verizon
Attn: Contract Admin
6929 N. Lakewood Ave, MD. 5.3-4009
Tulsa, OK 74117
Section 34 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 unless such invalidity or unconstitutionality materially alters
City of Medina – MCImetro Franchise 35
the rights, privileges, duties, or obligations hereunder, in which event either party may request
renegotiation of those remaining terms of this Franchise materially affected by such court’s
ruling.
Section 35 Compliance with All Applicable Laws. Each party agrees to comply with all present
and future federal, state and local laws, ordinances, rules and regulations. This Franchise is for a
limited portion of the City’s Rights-of-Way, and therefore the parties agree that MMC 19.10.070
and MMC 19.10.390, as they exist on the Effective Date of this Franchise, do not apply to the
Franchise granted herein. In the event that Franchisee seeks an amendment of this Franchise for
a City-wide Franchise, MMC 19.10.070 and MMC 19.10.390 may apply. This Franchise is
subject to ordinances of general applicability enacted pursuant to the City’s police powers.
Franchisee further agrees to remove all liens and encumbrances arising as a result of said use or
work. Franchisee shall, at its own expense, maintain its Facilities in a safe condition, in good
repair and in a manner reasonably suitable to the City. Additionally, Franchisee shall keep its
Facilities free of debris and anything of a dangerous, noxious or offensive nature or which would
create a hazard or undue vibration, heat, noise or any interference with City services. City
reserves the right at any time to amend this Franchise to conform to any hereafter enacted,
amended, or adopted federal or state statute or regulation relating to the public health, safety, and
welfare, or relating to roadway regulation, or a City ordinance enacted pursuant to such federal
or state statute or regulation when such statute, regulation, or ordinance necessitates this
Franchise be amended in order to remain in compliance with applicable laws, but only upon
providing Franchisee with thirty (30) days written notice of its action setting forth the full text of
the amendment and identifying the statute, regulation, or ordinance requiring the amendment.
Said amendment shall become automatically effective upon expiration of the notice period
unless, before expiration of that period, Franchisee makes a written request for negotiations over
the terms of the amendment. If the parties do not reach agreement as to the terms of the
amendment within thirty (30) days of the call for negotiations, either party may pursue any
available remedies at law or in equity.
Section 36 Attorneys’ Fees. If a suit or other action is instituted in connection with any
controversy arising out of this Franchise, the prevailing party shall be entitled to recover all of its
City of Medina – MCImetro Franchise 36
costs and expenses, including such sum as the court may judge as reasonable for attorneys’ fees,
costs, expenses and attorneys’ fees upon appeal of any judgment or ruling.
Section 37 Hazardous Substances. Franchisee shall not introduce or use any hazardous
substances (chemical or waste), in violation of any applicable law or regulation, nor shall
Franchisee allow any of its agents, contractors or any person under its control to do the same.
Franchisee will be solely responsible for and will defend, indemnify and hold the City, its
officers, officials, employees, agents and volunteers harmless from and against any and all
claims, costs and liabilities including reasonable attorneys’ fees and costs, arising out of or in
connection with the cleanup or restoration of the property to the extent caused by Franchisee’s
use, storage, or disposal of hazardous substances, whether or not intentional, and the use, storage
or disposal of such substances by Franchisee’s agents, contractors or other persons acting under
Franchisee’s control, whether or not intentional.
Section 38 Fees and Taxes. Franchisee shall pay promptly and before they become delinquent,
all taxes on personal property and improvements owned or placed by Franchisee and shall pay all
public utility charges relating to the conduct of its business, shall pay for all permits, and zoning
approvals, shall pay any other applicable tax unless documentation of exemption is provided to
the City and shall pay utility taxes and fees imposed by the City.
Section 39 Miscellaneous.
Section 39.1 City and Franchisee respectively represent that its signatory is duly
authorized and has full right, power and authority to execute this Franchise.
Section 39.2 This Franchise shall be construed in accordance with the laws of the State
of Washington. Venue for any dispute related to this Franchise shall be the United States
District Court for the Western District of Washington, or King County Superior Court.
Section 39.3 Section captions and headings are intended solely to facilitate the reading
thereof. Such captions and headings shall not affect the meaning or interpretation of the text
herein.
City of Medina – MCImetro Franchise 37
Section 39.4 Where the context so requires, the singular shall include the plural and the
plural includes the singular.
Section 39.5 Franchisee shall be responsible for obtaining all other necessary approvals,
authorizations and agreements from any party or entity and it is acknowledged and agreed that
the City is making no representation, warranty or covenant whether any of the foregoing
approvals, authorizations or agreements are required or have been obtained by Franchisee by any
person or entity.
Section 39.6 This Franchise may be enforced at both law and equity.
Section 39.7 Franchisee acknowledges that it, and not the City, shall be responsible for
the premises and equipment’s compliance with all marking and lighting requirements of the FAA
and the FCC. Franchisee shall indemnify and hold the City harmless from any fines or other
liabilities caused by Franchisee’s failure to comply with such requirements. Should Franchisee
or the City be cited by either the FCC or the FAA because the Facilities or the Franchisee’s
equipment is not in compliance and should Franchisee fail to cure the conditions of
noncompliance within the timeframe allowed by the citing agency, the City may either terminate
this Franchise immediately on notice to the Franchisee or proceed to cure the conditions of
noncompliance at the Franchisee’s expense.
Section 39.8 This Franchise is subject to all current and future applicable federal, State
and local laws, regulations and orders of governmental agencies as amended, including but not
limited to the Communications Act of 1934, as amended, the Telecommunications Act of 1996,
as amended and the Rules and Regulations of the FCC. Neither the City nor Franchisee waive
any rights they may have under any such laws, rules or regulations.
Section 39.9 There are no third party beneficiaries to this Franchise.
Neither party shall be required to perform any covenant or obligation in this Franchise, or be
liable in damages to the other party, so long as the performance of the covenant or obligation is
delayed, caused or prevented by a Force Majeure Event. A “Force Majeure Event” is defined for
purposes of this Franchise as strikes, lockouts, sit-down strike, unusual transportation delays,
riots, floods, washouts, explosions, earthquakes, fire, storms, weather (including inclement
City of Medina – MCImetro Franchise 38
weather which prevents construction), acts of the public enemy, wars, terrorism, insurrections,
and any other similar act of God event. Section 39.12 If Franchisee files, pursuant to RCW
80.28, with the Washington utilities and Transportation Commission any tariff affecting the
City’s rights under its Franchise, the provider shall give the City Manager written notice thereof
within five (5) days of the date of such filing. If during the term of this Franchise, Franchisee
files and the Washington Utilities Transportation Commission shall permit to become effective, a
schedule or tariff which conflicts with or is inconsistent with any portion of this Franchise, the
City may, within thirty (30) days of the effective date of such schedule or tariff, notify Franchise
in writing that the Franchise is terminated, effective on receipt of the notice. Thereafter, the
parties shall conduct negotiations concerning the terms and conditions of a new franchise
pursuant to MMC 19.10.400.
Section 40 Ordinance 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 (5) days
after passage and publication of an approved summary thereof consisting of the title.
APPROVED:
ATTEST/AUTHENTICATED:
APPROVED AS TO FORM:
FILED WITH THE CITY CLERK:
PASSED BY THE CITY COUNCIL:
PUBLISHED:
EFFECTIVE DATE:
6/11/2020
6/16/2020
6/8/2020
6/11/2020