HomeMy WebLinkAboutOrdinance No. 0863CITY OF MEDINA
Ordinance No. 863
AN ORDINANCE OF THE CITY OF MEDINA, WASHINGTON,
GRANTING A NONEXCLUSIVE TELECOMMUNICATIONS
FRANCHISE TO CONSTRUCT AND OPERATE A DISTRIBUTED
ANTENNA SYSTEM; PROVIDING FOR SEVERABILITY; AND
ESTABLISHING AN EFFECTIVE DATE
WHEREAS, the Right -of -Way within the City of Medina ("City") belong to the
public and are built and maintained at public expense for the use of the general public,
the primary purpose of which is public travel, and must be managed and controlled
consistent with that intent; and
WHEREAS, ATC Outdoor DAS, LLC ("ATC") has made application to the City
of Medina for a telecommunications franchise to construct, install, maintain, repair and
operate a Distributed Antenna System to provide telecommunications services using the
Right -of -Way; and
WHEREAS, ATC represents that it desires to install and operate
telecommunications facilities, within the meaning of Medina Municipal Code Section
19.02.020 (Exhibit B), within Medina; and
WHEREAS, based on representations and information provided by ATC, and in
response to its request for the grant of a franchise, the City Council has determined that
the grant of a nonexclusive franchise, on the terms and conditions herein and subject to
applicable law, are consistent with the public interest; and
WHEREAS, the City is authorized by applicable law to grant such a nonexclusive
franchises within the boundaries of the City;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MEDINA,
WASHINGTON, DO ORDAIN AS FOLLOWS:
Section 1. Grant of Franchise. The City of Medina hereby grants to ATC Outdoor
DAS, LLC a nonexclusive telecommunications franchise to construct and operate a
distributed antenna system, which Franchise Agreement shall read as follows:
1.
TABLE OF CONTENTS.
ARTICLE 1. DEFIlVITIONS
ARTICLE 2. FRANCHISE GRANT
2.1 Right -of -Way Use Authorized
2.2 Authorized Services
2.3 No rights shall pass to Franchisee by implication
2.4 Interest in the Right -of -Way
2.5 Condition of Franchise Area
2.6 Franchise Nonexclusive
2.7 Transfer
2.8 Street Vacation
2.9 Reservation of City Use of Right -of -
ARTICLE 3. COMPLIANCE WITH LAWS/ORDER OF PRECEDENCE
3.1 Compliance with Laws
3.2 Police Powers
3.3 Alteration of Material Terms and Conditions
3.4 Reservation of Rights/Wavier
3.5 Subsequent Action
3.6 Change in Form of Government
3.7 Relationship to MMC
ARTICLE 4. ACCEPTANCE
_ 4.1
Acceptance
4.2
Failure to Timely File Acceptance
4.3
Effective Date: Term
4.4
Effect of Acceptance
4.5
Effect of Expiration/Tennination '
4.6
Renewal
ARTICLE 5. PROTECTION OF THE CITY AND PUBLIC
5.1 Indemnification
5.2 Environmental Indemnity - Attached Exhibit E
5.3 Insurance Requirements - Attached Exhibit F
5.4 Financial Security - Attached Exhibit G
5.5 Parental Guarantee - Attached Exhibit H
5.6 Contractors/Subcontractors - Attached Exhibit I
5.7 Liens
5.8 Financial Conditions
2.
ARTICLE 6. ENFORCEMENT AND REMEDIES.
6.1 Communication and Discussion
6.2 Breach/Ri t to Cure
6.3 Remedies
6.4 Revocation
6.5 Assessment of Liquidated Damages
6.6 Receivership
ARTICLE 7. GENERAL CONDITIONS UPON USE OF RIGHT-OF-WAY
7.1 Conditions Precedent to Work
7.2 Compliance with Standards/Codes
7.3 Undergrounding Requirements
7.4 Work in the Right -of -Way
7.5 Alterations
7.6 General Conditions
7.7 Telecommunications Facility Relocation at Request of the City for Public
Improvements
7.8 Movement of Telecommunications Facilities for Others
7.9 Movement of Telecommunications Facilities During Emergencies
7.10 Record of Installations
7.11 Restoration of Right -of -Way Public and Private Property
7.12 Approvals
7.13 Abandonment of Telecommunications Facilities
7.14 Relationship to MMC
ARTICLE 8. MISCELLANEOUS
8.1 Headings
8.2 Entire Agreement
8.3 Incorporation of Exhibits
8.4 Calculation of Time
8.5 Time Limits Strictly Construed
8.6 No Joint Venture
8.7 Approval Authority
8.8 Binding Effect upon Successors and Assi is
8.9 Waiver
8.10 Severability
8.11 Sin
8.12 Discriminatory Practices Prohibited
8.13 Notice
8.14 Survival of Terms
8.15 Force Majeure
8.16 Attorne ' Fees
8.17 Venue/Choice of Law
3.
8.18 Publication
A. Map Depicting Franchise Area
B. Medina Municipal Code Title 19
C. Form of Transfer Agreement
C-1. Acceptance of Franchise and Performance Guarantee
D. Acceptance of Franchise
E. Environmental Indemnity
F. Insurance Requirements
G. Financial Security
H. Form of Parental Guarantee
I. Contractor/Subcontractor Insurance Requirements
ARTICLE 1. DEFINITIONS
For the purposes of this Franchise and the Exhibits attached hereto, the following
terms, phrases, words and their derivations where capitalized shall have the meanings given
herein. Words not defined herein shall have the meaning given in Medina Municipal Code
"MMC") Title 19 (as set forth in Exhibit B hereto). Words not defined herein or in MMC
Title 19 (Exhibit B), shall have the meaning given in MMC Chapter 17.90. Words not
defined herein or in MMC Title 19 (Exhibit B) or MMC Chapter 17.90 shall have the same
meaning given pursuant to such federal or state statutes, rules, or regulations that apply to
and regulate the services provided by Franchisee. Words not otherwise defined shall be
given their common and ordinary meaning. When not inconsistent with the context, words
used in the present tense include the future, words in the plural include the singular, and
words in the singular include the plural. The word "shall" is always mandatory and not
merely directory. References to governmental entities (whether persons or entities) refer
to those entities or their successors in authority. If specific provisions of law, regulation
or rule referred to herein be renumbered, then the reference shall be read to refer to the
renumbered provision.
"Breach" shall mean any failure of a Party to keep, observe, or perform any of its
duties or obligations under this Franchise.
"City" shall mean the City of Medina.
"Construct", "Constructing" or "Construction" shall mean to construct,
reconstruct, install, reinstall, align, realign, locate, relocate, adjust, affix, attach, remove,
or support.
"Direct Costs" shall mean and include all costs and expenses incurred by the City
directly related to a particular activity or activities set forth in this Franchise, including by
way of example:
4.
i. All costs and expenses of materials, equipment, supplies, utilities,
consumables, goods and other items used or incorporated in connection with and in
furtherance of the activity or activities set forth in this Franchise and any taxes, insurance,
and interest expenses related thereto, including costs for crews and equipment;
ii. All costs and expenses of labor inclusive of payroll benefits, non-
productive time and overhead for each of the labor classifications of the employees
performing work for the activity or activities set forth in this Franchise and determined in
accordance with the City's ordinary governmental accounting procedures; and
iii. All costs and expenses to the City for any Work performed by
consultants or contractors to the extent performed for a particular activity or activities set
forth in this Franchise, including by way of example and not limitation, engineering and
legal services.
"Dispute" shall mean a question or controversy that arises between the Parties
concerning the observance, performance, interpretation or implementation of any of the
terms, provisions, or conditions contained in this Franchise or the rights or obligations of
either Party under this Franchise.
"DAS" or "Distributed Antenna System" means a network comprised of small,
spatially separated, low -power antennas referred to as "nodes", connected to a "central
hub" by "fiber optic cable" or other transport medium.
"Effective Date" shall mean and refer to that term as it is defined at Section 4.3
herein.
"Emergency" shall, in addition to the meaning given pursuant to MMC Section
19.02.020 in Exhibit B, mean and refer to a sudden condition or set of circumstances that
significantly disrupts or interrupts the operation of Telecommunications Facilities in the
Right -of -Way and Franchisee's ability to continue to provide services if immediate action
is not taken.
"Environmental Law(s)" means any federal, state or local statute, regulation,
code, rule, ordinance, order, judgment, decree, injunction or common law pertaining in
any way to the protection of human health or the environment, including without
limitation, the Resource Conservation and Recovery Act, the Comprehensive
Environmental Response, the Compensation and Liability Act, the Toxic Substances
Control Act, and any similar or comparable state or local law.
"Franchisee" shall mean ATC Outdoor DAS, LLC, and any of its Affiliates.
"Franchise Ordinance" shall mean this Ordinance setting forth the terms and
conditions upon which Franchisee shall be granted a Franchise.
"Franchise Area" shall mean the area identified in Exhibit A. If, as a
consequence of the Special Use Permit process for Franchisee's Facilities, Franchisee is
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not permitted to locate its Facilities exactly as shown on Exhibit A, the Parties agree
automatically, with no further action required by either Parry, to substitute as part of this
Franchise a revised Exhibit A identifying as the Franchise Area the locations for which
Franchisee successfully obtains Special Use Permit approval to construct its Facilities.
"Hazardous Substance" means any hazardous, toxic, radioactive or infectious
substance, material or waste as defined, listed or regulated under any Environmental
Law, and any element, compound, mixture, solution, particle, or substance which
presents danger or potential danger for damage or injury to health, welfare, or to the
environment, including, but not limited to: those substances which are inherently or
potentially radioactive, explosive, ignitable, corrosive, reactive, carcinogenic, or toxic;
those substances which have been recognized as dangerous or potentially dangerous to
health, welfare, or to the environment by any federal, municipal, state, City, or other
governmental or quasi -governmental authority, and/or any department or agency thereof;
those substances which use, or have a component thereof or therein which uses, asbestos
or lead -based paint; and petroleum oil and any of its fractions.
"Law(s)" shall mean all present and future applicable laws, ordinances, rules,
regulations, resolutions, permits, environmental standards, orders, decrees and
requirements of all federal, state, City and municipal governments, the departments,
bureaus or commissions thereof, government authorities, boards or officers, any national
or local board of fire underwriters, or any other governmental body or bodies exercising
similar functions having or acquiring jurisdiction over all or any part of the
Telecommunications Facilities, including the City acting in its governmental capacity.
References to Laws shall be interpreted broadly to cover government actions, however
nominated.
"Legal action" shall mean filing a lawsuit or invoking the right to arbitration.
"Noticed Party" shall mean the Party in receipt of notice that it is in Breach.
"Party(ies)" shall mean either the City or Franchisee or both.
"Public Works Director" means and refers to the Public Works Director for the
City or his or her designee, or such officer or person who has been assigned the duties of
Public Works Director or his or her designee.
"Regulatory Permit" means a construction permit issued pursuant to MMC
Chapter 19.12 that provides specific requirements and conditions for Work to Construct
Telecommunications Facilities within the Right -of -Way, and any other permit required
pursuant to the Medina Municipal Code to perform the proposed work within the Right -
of -Way including a special use permit, building permit, street cut permit, or clearing and
grading permit.
"Remedy", "Remediate" and "Remedial Action" shall have the same meaning as
these are given under the Model Toxics Control Act (Chapter 70.105D RCW) and its
implementing regulations at Chapter 173-340 WAC.
NJ
"Right -of -Way" shall have that meaning given pursuant to MMC Chapter 19.02
in Exhibit B; provided that, it shall not include railroad rights -of -way, airports, harbor
areas, buildings, parks, and other such similar facilities or property owned, maintained or
leased by the City in its governmental or proprietary capacity or as an operator of a
utility.
"Standards" shall mean those standards and codes set forth in Section 7.2 of this
Franchise.
"Telecommunications" is the transmission of information by wire, radio, optical
cable, electromagnetic, or other similar means. As used in this definition, "information"
means knowledge or intelligence represented by any form of writing, signs, signals,
pictures, sounds, or any other symbols.
"Telecommunications Facilities" shall have the same meaning given pursuant
MMC Chapter 19.02 in Exhibit B, and by way of further clarification, shall mean and
include any part or all of the facilities, equipment and appurtenances of Franchisee,
whether underground or overhead, located within the Right -of -Way as part of
Franchisee's Distributed Antenna System, including by way of example and not
limitation, radios, amplifiers, optical converters, multiplexers, antennas, nodes,
innerducts, pedestals, boxes, cabinets, coax cable trays, primary and auxiliary power
supplies, power meters, support structures, foundations, mounting hardware, cases, pipes,
lines, fiber, equipment, equipment cabinets and shelters, vaults, conductors, poles,
carriers, drains, vents, guy wires, encasements, sleeves, valves, wires, supports, towers,
anchors, transmitters, receivers, and signage.
"Transfer" shall mean any transaction in which all or a portion of the
Telecommunications Facilities are sold, leased or assigned (except a sale or transfer that
results in removal of a particular portion of the Telecommunications Facilities from the
Right -of -Way), or any transaction in which all or a portion of the the rights, and/or
obligations held by Franchisee under the Franchise are transferred, sold, assigned, or
leased, in whole or in part, directly or indirectly, to another Person. A transfer of control
of an operator shall not constitute a transfer as long as the same person continues to hold
the Franchise both before and after the transfer of control. Notwithstanding the
foregoing, an agreement with a third party Telecommunications service provider to
utilize the Telecommunications Facilities shall not constitute a Transfer under this
Franchise.
"Work" shall mean any and all activities of Franchisee, or its officers, directors,
employees, agents, contractors, subcontractors, volunteers, invitees, or licensees, within
the Right -of -Way to Construct the Telecommunications Facilities.
ARTICLE 2. FRANCHISE GRANT
2.1 Right -of --Way Use Authorized. Subject to the terms and conditions of this
Franchise, the City hereby grants to Franchisee a nonexclusive Franchise authorizing
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Franchisee to Construct and operate Telecommunications Facilities in, along, among, upon,
across, above, over, and under the Right -of -Ways located within the Franchise Area.
Further, this Franchise incorporates by reference the provisions of MMC Title 19 as in
effect on the Effective Date of this Franchise, a copy of which is attached hereto as
Exhibit B; provided that, in the case of conflict between this Franchise and any term or
provision in Exhibit B or any future term or provision of the Medina Municipal Code, the
conflict shall be resolved as provided in Exhibit B (see e.g., MMC Sections 19.06.040and
19.10.360). Notwithstanding the foregoing, the Parties acknowledge that the City may
hereafter modify MMC Title 19 and those modification may apply to this Franchise as
provided in Section 3.3.
2.2 Authorized Services. The grant given herein expressly authorizes Franchisee
to Construct, install, maintain, repair and operate a Distributed Antenna System to
provide Telecommunications services. This authorization is limited and is not intended nor
shall it be construed as granting Franchisee or any other Person the right, duty or privilege to
use its Telecommunications Facilities or the Right -of -Way to provide services not
specifically authorized therein. This Franchise shall not be interpreted to prevent the City
from lawfully imposing additional conditions, including additional compensation conditions
for use of the Right -of -Way, should Franchisee provide service other than
Telecommunications service. Specifically, this grant does not include the authorization to
provide Cable Service. However, this Franchise shall not be read as a concession by
Franchisee that it needs authorization to provide any services not otherwise authorized
herein.
2.3 No Rights Shall Pass to Franchisee by Irn ham. No rights shall pass to
Franchisee by implication. Without limiting the foregoing and by way of example, this
Franchise shall not include or be a substitute for:
2.3.1 Any other authorization required for the privilege of transacting and
carrying on a business within the City that may be lawfully required by the Laws of the
City,
2.3.2 Any agreement or authorization required by the City for Right -of -
Way users in connection with operations on or in Right -of -Way or public property
including, by way of example and not limitation, a utility permit; or
2.3.3 Any licenses, leases, easements or other agreements for occupying
any other property or infrastructure of the City or other Persons to which access is not
specifically granted by this Franchise including, without limitation, agreements for placing
devices on poles, light standards, in conduits, in vaults, in or on pipelines, or in or on other
structures or public buildings.
2.3.4 Any permits or other authorizations that may be required under the
land use code and development regulations of the City for the construction of
Telecommunications Facilities within a particular zoning district in the City, including by
way of example and not limitation, a conditional use permit or a variance.
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2.4 Interest in the Ri t-of-Way. This Franchise shall not operate or be
construed to convey title, equitable or legal, in the Right -of -Way to Franchisee. No
reference herein to a Right -of -Way shall be deemed to be a representation or guarantee
by the City that its interest, or other right to control the use of such Right -of -Way, is
sufficient to grant its use for such purposes. This Franchise shall be deemed to grant no
more than those rights which the City may have the undisputed right and power to give.
The grant given herein does not confer rights other than as expressly provided in the grant
hereof and is subject to the limitations in applicable Law. Such right may not be
subdivided or subleased to a person other than Franchisee.
Franchisee acknowledges that, where City has an ownership interest in a
Franchise Area, that ownership interest may be a determinable fee, a public Right -of -
Way dedication, or a Right -of -Way easement, which may terminate when City either: (i)
ceases to use that Right -of -Way for Right -of -Way purposes; or (ii) uses such Right -of -
Way for purposes found to be inconsistent with use of the Right -of -Way for Right -of -
Way purposes, and that in such circumstances, City's right to franchise or grant the use of
any such Right -of -Way, or rights under any franchise of any such Right -of -Way, may be
subject to termination as of the date the circumstances set forth in either (i) or (ii) above
(unless Franchisee improves the quality of title to the applicable Franchise Area, or
acquiring additional property interests from other Persons).
Franchisee also acknowledges that, where City has ownership rights, those
ownership rights may terminate for other reasons, such as a street vacation. Franchisee
further acknowledges that Franchisee's rights under this Franchise as to any Franchise
Area are subject and subordinate to all outstanding rights and encumbrances on City's
Right -of -Way, and any easements, other Franchise Agreements, licenses, permits or
agreements in effect on or before the Effective Date. City therefore grants to Franchisee
no more right, title and interest in any Right -of -Way than the City holds in such Right -of -
Way at the time of grant, and Franchisee hereby releases City from any and all liability,
cost, loss, damage or expense in connection with any claims that City lacked sufficient
legal title or other authority to convey the rights described herein. In case of eviction of
Franchisee or Franchisee's contractors by anyone owning or claiming title to, or any
interest in the Franchise Area, City shall not be liable to Franchisee or Franchisee's
Contractors for any costs, losses or damages of any Party.
CITY DOES NOT WARRANT ITS TITLE OR PROPERTY INTEREST IN OR
TO ANY FRANCHISE AREA NOR UNDERTAKE TO DEFEND FRANCHISEE IN
THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET
ENJOYMENT IS MADE.
2.5 Condition of Franchise Area. Franchisee has inspected or will inspect
Franchise Area, and enters upon each such Franchise Area with knowledge of its physical
condition and the danger inherent in operations conducted in, on or near any Franchise
Area. FRANCHISEE ACCEPTS THE FRANCHISE AREA IN AN "AS -IS WITH ALL
FAULTS" BASIS, WITH ANY AND ALL PATENT AND LATENT DEFECTS, AND
0
IS NOT RELYING ON ANY REPRESENTATION OR WARRANTIES, EXPRESS OR
IMPLIED, OF ANY KIND WHATSOEVER FROM THE CITY AS TO ANY
MATTERS CONCERNING THE FRANCHISE AREA, including, but not limited to the
physical condition of the Franchise Area; zoning status; presence and location of existing
utilities; operating history; compliance by the Franchise Area with Environmental Laws
or other Laws and other requirements applicable to the Franchise Area; the presence of
any Hazardous Substances or wetlands, asbestos, or other environmental conditions in,
on, under, or in proximity to the Franchise Area; the condition or existence of any of the
above ground or underground structures or improvements, including tanks and
transformers in, on or under the Franchise Area; the condition of title to the Franchise
Area, and the leases, easements, Franchises, orders, licensees, or other agreements,
affecting the Franchise Area (collectively, the "Condition of the Franchise Area").
Franchisee represents and warrants to the City that neither Franchisee nor its
contractors or subcontractors have relied and will not rely on, and the City is not liable
for or bound by, any warranties, guaranties, statements, representations or information
pertaining to the Condition of the Franchise Area or relating thereto made or furnished by
the City, or any agent representing or purporting to represent the City, to whomever made
or given, directly or indirectly, orally or in writing. CITY HEREBY DISCLAIMS ANY
REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, AS TO
THE DESIGN OR CONDITION OF THE FRANCHISE AREA, ITS
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, THE
QUALITY OF THE MATERIAL OR WORKMANSHIP OF THE RIGHT-OF-WAY,
OR THE CONFORMITY OF ANY PART OF THE RIGHT-OF-WAY TO ITS
INTENDED USES. CITY SHALL NOT BE RESPONSIBLE TO FRANCHISEE OR
ANY OF FRANCHISEE'S CONTRACTORS FOR ANY DAMAGES RELATING TO
THE DESIGN, CONDITION, QUALITY, SAFETY, MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE OF ANY PART OF THE RIGHT-OF-
WAY PRESENT ON OR CONSTITUTING ANY FRANCHISE AREA, OR THE
CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED USES.
2.6 Franchise Nonexclusive. This Franchise shall be nonexclusive, and subject
to all prior rights, interests, easements, permits, franchises or licenses granted by the City to
any other Person prior to the Effective Date of this Franchise to use the Right -of -Way for
the purposes set forth in such authorizations, and subject to the right of the City to use the
same for any purpose it deems fit, including similar purposes allowed Franchisee hereunder.
Further, except as otherwise provided herein for public entities, the City may at any time
grant authorization to use the Right -of -Way for any purpose that does not unreasonably
interfere with Franchisee's authority under this Franchise.
2.7 Transfer. In addition to the requirements set forth in MMC Section
19.10.300 in Exhibit B, no Transfer may be approved by the City unless Franchisee has
delivered to the City the transferee's written commitment, in substantially the form of
the agreements attached hereto as Exhibits C and C-1, that transferee(s) shall thereafter
be responsible for all obligations of Franchisee with respect to the Franchise and
guaranteeing performance under the terms 'and conditions of the Franchise and that
transferee(s) will be bound by all of the conditions of the Franchise and will assume all of
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the obligations of its predecessor. Such a written commitment and approval of the
Transfer shall relieve Franchisee of any further obligations under the Franchise, including
any obligations not fulfilled by Franchisee's transferee; provided that, the Transfer shall
not in any respect relieve Franchisee, or any of its successors in interest, of responsibility
for acts or omissions, known or unknown, or the consequences thereof, which acts or
omissions occur prior to the time of the Transfer. It is further provided that, this
Franchise may not be Transferred without the transferee filing or establishing with the
City the insurance certificates, security fund and performance bond required pursuant to
this Franchise.
Notwithstanding the foregoing, notice to the City shall not be required for a
mortgage, hypothecation or an assignment of Franchisee's interest in the Franchise in order
to secure indebtedness.
Notwithstanding any provisions in MMC Section 19.10.300 in Exhibit B to the
contrary, Franchisee may, without the prior written notice to and consent of the City: (i)
lease the Telecommunications Facilities, or any portion thereof, to another Person; (ii)
grant an Indefeasible Right of User Interest in the Telecommunications Facilities, or any
portion thereof, to another Person; or (iii) offer or provide capacity or bandwidth in its
Telecommunications Facilities to another Person; provided that, Franchisee at all times
retains exclusive control over it Telecommunications Facilities and remains responsible
for Constructing its Telecommunications Facilities pursuant to the terms and conditions
of this Franchise; and provided further that: Franchisee may grant no rights to any such
Person that are greater than any rights Franchisee has pursuant to this Franchise; such
Persons shall not be construed to be a third -Party beneficiary hereunder; and, no such
Person may use the Telecommunications Facilities for any purpose not authorized herein.
2.8 Street Vacation. If any Right -of -Way or portion thereof used by
Franchisee is to be vacated during the term of this Franchise, unless as a condition of
such vacation Franchisee is granted the right to continue its Telecommunications
Facilities in the vacated Right -of -Way, Franchisee shall, without delay or expense to
City, remove its Telecommunications Facilities from such Right -of -Way, and restore,
repair or reconstruct the Right -of -Way where such removal has occurred, and place the
Right -of -Way in the same or better condition than existed prior to Franchisee's
Construction of its Telecommunications Facilities.
2.9 Reservation of City Use of Ri t-of-Way. Nothing in this Franchise shall
prevent the City from: Constructing sanitary or storm sewers; grading, changing grade,
paving, repairing or altering any Right -of -Way; laying down, repairing or removing water
mains; or installing conduit or fiber optic cable.
ARTICLE 3. COMPLIANCE WITH LAWS
3.1 Compliance with Laws. Except as otherwise provided herein, Franchisee
agrees to comply with all applicable Laws as now or hereafter in effect; provided that,
nothing herein shall operate as a waiver of Franchisee's right to contest the validity of
such laws or the application of such Laws to Franchisee.
11.
3.2 Police Powers. Franchisee acknowledges that its rights hereunder are
subject to those powers expressly reserved by the City and further are subject to the
police powers of the City to adopt and enforce ordinances necessary to protect the health,
safety and welfare of the public. Such powers include but are not limited to: the right to
adopt and enforce applicable zoning, building, permitting and safety ordinances and
regulations; the right to adopt and enforce ordinances and regulations relating to equal
employment opportunities; and the right to adopt and enforce ordinances and regulations
governing Work performed in the Right -of -Way. However, this Section 3.2 shall not be
read or interpreted as a waiver of Franchisee's right to contest the validity of such
ordinances or the application of such ordinances to Franchisee.
The Parties acknowledge and agree that any Regulatory Permits for the
Construction of Facilities shall be subject to the laws in effect at the time Franchisee
submits a complete application for such permit. Following completion of the
Construction authorized by such permit(s), the Parties agree that, if the Laws are
thereafter modified such that an existing Facility becomes non -conforming, such
Facilities shall be considered under the non -conforming use and structures provisions of
the Medina Municipal Code (MMC Chapter 17.60). The Parties further acknowledge and
agree that, any time Franchisee is doing work in the Right -of -Way, Franchisee shall
comply with the applicable Medina right-of-way construction standards in effect at the
time Franchisee is undertaking such work in the Medina Right -of -Way. Such standards
are, upon the effective date of this Franchise, set forth in Title 12 of the Medina
Municipal Code.
3.3 Alteration of Material Terms and Conditions. Subject to federal and State
preemption, the material rights, benefits, obligations or duties as specified in this
Franchise may not be unilaterally altered by the City through subsequent amendments to
any ordinance, regulation, resolution or other enactment of the City, except within the lawful
exercise of the City's police power. In the event of a unilateral alteration to this Franchise
by the City pursuant to this Section, either Party may initiate renegotiation of the Franchise
pursuant to Section 3.5.
3.4 Reservation of Rights/Waiver. The City shall be vested with the power and
right to administer and enforce the requirements of this Franchise and the regulations and
requirements of applicable Law, or to delegate that power and right, or any part thereof, to
the extent permitted under Law, to any agent in the sole discretion of the City. The City
expressly reserves all of its rights, authority and control arising from any relevant provisions
of federal, State or local Laws granting the City rights, authority or control over the Right -
of -Way or the activities of Franchisee. Except as provided herein, nothing in this Franchise
shall be deemed to waive the requirements of the various codes and ordinances of the
City regarding Franchises, fees to be paid or manner of Construction. Nothing in this
Franchise shall be deemed to waive, and Franchisee specifically reserves the right to
challenge, any City ordinance, regulation or resolution that conflicts with its rights under
this Franchise.
12.
3.5 Subsequent Action. In the event that after this Franchise becomes
effective, (a) there is a change in or clarification of the Law which changes, broadens or
clarifies the authority or obligations of the City or Franchisee with respect to any act
permitted or authorized under this Franchise, or (b) the State of Washington or any
agency thereof or any agency of the Federal government requires Franchisee or the City
to act in a manner which is inconsistent with any provisions of this Franchise, or (c) any
term, article, section, subsection, paragraph, provision, condition, clause, sentence, or
other portion of this Franchise, or its application to any person or circumstance, shall be
held to be illegal, invalid or unconstitutional for any reason by any court or agency of
competent jurisdiction, or (d) because of a change in circumstances, the City or
Franchisee believe that amendments to this Franchise are necessary or appropriate, then
the City and Franchisee agree to enter into good faith negotiations to amend this
Franchise so as to enable the City and Franchisee to address, in a manner reasonably
acceptable to the City and Franchisee, such change or other development which formed
the basis for the negotiations. The City and Franchisee recognize that the purpose of the
negotiations would be to preserve, to the maximum extent consistent with Law, the
intent, scope and purpose of this Franchise.
If the terms of this Franchise are materially altered due to changes in or
clarifications of governing Law or due to agency rule making or other action, then the
Parties shall negotiate in good faith to reconstitute this Franchise in a way consistent with
then -applicable Law in a form that, to the maximum extent possible, is consistent with
the original scope, intent and purpose of the City and Franchisee and preserves the
benefits bargained for by each Party.
3.6 Change in Form of Government. Any change in the form of government
of the City shall not affect the validity of this Franchise. Any governmental unit
succeeding the City shall, without the consent of Franchisee, succeed to all of the rights
and obligations of the City provided in this Franchise.
3.7 Relationship to MMC.
19.10.030 and 19.10.040.
ARTICLE 4. ACCEPTANCE
This Article 3 supersedes MMC Sections
4.1 Acceptance. Within thirty (30) days after the passage and approval of this
Franchise by the City Council, this Franchise shall be accepted by Franchisee by filing with
the City Clerk during regular business hours, or such other person as may be designated by
the City, three originals of this Franchise with its original signed and notarized written
acceptance of all of the terms, provisions and conditions of this Franchise in conformance
with Exhibit C, together with all of the following, if required herein:
4.1.1 Payment in readily available funds of the administrative costs for
issuance of the Franchise in conformance with the requirements of Section 5.7 herein;
13.
4.1.2 Submission of proof of financial security in accordance with
Section 5.4 herein;
4.1.3 Payment of the costs of publication of this Franchise Ordinance in
conformance with the requirements of Sections 5.7 and 8.18 herein; and
4.1.4 Parental Guarantee, if required, in conformance with the
requirements of Section 5.5 herein.
In the event that the thirtieth day falls on a Saturday, Sunday or legal holiday during
which the City is closed for business, the filing date shall fall on the last business day before
such Saturday, Sunday or legal holiday.
4.2 Failure to Timely File Acceptance. Except as provided in this Section 4.2
below, the failure of Franchisee to timely file its written acceptance shall be deemed a
rejection by Franchisee of this Franchise, and this Franchise shall then be void. In the event
that Franchisee timely files its written acceptance but fails to timely comply with the
applicable requirements of sections 4.1.1 through 4.1.4, this Franchise shall be voidable in
the sole discretion of the City Manager without further action required by the City Council
or the consent of Franchisee. The Franchise shall be voidable until such time as Franchisee
complies with all of the applicable requirements of sections 4.1.1 through 4.1.4. No
opportunity to cure or public hearing is required to void the Franchise pursuant to this
Section 4.2 by giving written notice of the same to Franchisee.
4.3 Effective Date; Term.
4.3.1 Effective Date. Except as provided pursuant to Section 4.2 of this
Franchise, the Effective Date of this Ordinance and franchise shall be 12:01 a.m. on the 3 1 "
day following passage and approval of this Franchise by the City Council. This Franchise
and the rights, privileges, and authority granted hereunder and the contractual relationship
established hereby shall take effect and be in force from and after the Effective Date of this
Ordinance for the term hereof.
4.3.2 Term. The term of this Franchise shall commence on the Effective
Date and shall continue in full force and effect for a period of ten years, unless sooner
terminated, revoked or rendered void. This Section supersedes MMC Section 19.06.060.
4.4 Effect of Acceptance. By accepting the Franchise, Franchisee:
4.4.1 Accepts and agrees to comply with and abide by all of the lawful
terms and conditions of this Franchise;
Franchise;
4.4.2 Acknowledges and accepts the City's legal right to grant this
14.
4.4.3 Agrees that the Franchise was granted pursuant to processes and
procedures consistent with applicable Law and that it will not raise any claim to the
contrary,
4.4.4 Agrees that it enters into this Franchise freely and voluntarily,
without any duress or coercion, after free and full negotiations, after carefully reviewing
all of the provisions, conditions and terms of this Franchise Agreement, and after
consulting with counsel;
4.4.5 Acknowledges and agrees that: it has carefully read the terms and
conditions of this Franchise; it unconditionally accepts all of the terms and conditions of
this Franchise; it unconditionally agrees to abide by the same; it has relied upon its own
investigation of all relevant facts; it has had the assistance of counsel; it was not induced
to accept a Franchise; and that this Franchise represents the entire agreement between
Franchisee and the City;
4.4.6 Warrants that Franchisee has full right and authority to enter into
and accept this Franchisee in accordance with the terms hereof, and by entering into or
performing this Franchise, Franchisee is not in violation of its charter or by-laws, or any
law, regulation, or agreement by which it is bound or to which it is subject; and
4.4.7 Warrants that acceptance of this Franchise by Franchisee has been
duly authorized by all requisite Board action, that the signatories for Franchisee hereto
are authorized to sign the Franchise acceptance, and that the joinder or consent of any
other party, including a court, trustee, or referee, is not necessary to make valid and
effective the execution, delivery, and performance of this Franchise.
4.5 Effect of Expiration/Termination. Upon expiration or termination of the
Franchise without renewal or other authorization, Franchisee shall no longer be
authorized to operate the Telecommunications Facilities within the Franchise Area and
shall, to the extent it may lawfully do so, cease operation of the Telecommunications
Facilities. Forthwith thereafter, except as provided in this Section, or as otherwise
provided by ordinance, Franchisee shall: (1) remove its structures or property from the
Right -of -Way and restore the Right -of -Way as required pursuant to the applicable Right -
of -Way restoration standards; (2) sell its Telecommunications Facilities to another entity
authorized to operate Telecommunications Facilities within the Franchise Area (which
may include the City) upon City approval, to the extent the City may lawfully require its
approval; or (3) abandon any Telecommunications Facilities in place in the Right -of -Way
upon written notice to the City of Franchisee's intent to so do. If, within ninety (90) days
of the City's receipt of Franchisee's notice of abandonment, the City determines that the
safety, appearance, or use of the Right -of -Way would be adversely affected, the
Telecommunications Facilities must be removed by Franchisee by a date reasonably
specified by the City in light of the amount of work to be performed. In the event of
failure by Franchisee properly to perform such work, then the City may, after thirty (30)
days written notice to Franchisee, perform the work and collect the actual and reasonable
costs thereof.
15.
4.6 Renewal. This Franchise may be renewed pursuant to the renewal
provisions set forth in MMC Section 19.06.120 in Exhibit B.
ARTICLE 5. PROTECTION OF THE CITY AND PUBLIC
5.1 Indemnification.
5.1.1 Limitation of Liability. Franchisee hereby releases, covenants not
to bring suit and agrees to indemnify, defend and hold harmless the City, its elected and
appointed officials, officers, employees, agents, representatives, engineers, and
consultants from any and all claims, costs, judgments, awards, or liability to any person,
including claims by Franchisee's employees to which Franchisee might otherwise be
immune under Title 51 RCW, arising from injury or death of any person or damage to
property of which the negligent acts or omissions of Franchisee, its agents, servants,
officers, or employees in performing under this Franchise are the proximate cause.
Franchisee further releases, covenants not to bring suit and agrees to indemnify, defend
and hold harmless the City, its elected and appointed officials, officers, employees,
agents, representatives, engineers, and consultants from any and all claims, costs,
judgments, awards, or liability to any person including claims by Franchisee's
employees, including those claims to which Franchisee might otherwise have immunity
under Title 51 RCW, arising against the City solely by virtue of the City's ownership or
control of the Rights -of -Way or other public properties, by virtue of Franchisee's
exercise of the rights granted herein, or by virtue of the City's permitting Franchisee's
use of the City's Rights -of -Way or other public property, based upon the City's
inspection or lack of inspection of work performed by Franchisee, its agents and servants,
officers or employees in connection with work authorized on the City's property or
property over which the City has control, pursuant to this Franchise, or pursuant to any
other permit or approval issued in connection with this Franchise. This covenant of
indemnification shall include, but not be limited by this reference, to claims against the
City arising as a result of the negligent acts or omissions of Franchisee, its agents,
servants, officers, or employees in barricading, instituting trench safety systems or
providing other adequate warnings of any excavation, construction, or work in any Right -
of -Way or other public place in performance of work or services permitted under this
Franchise.
5.1.2 Inspection. Inspection or acceptance by the City of any work
performed by Franchisee at the time of completion of Construction shall not be grounds
for avoidance of any of these covenants of indemnification.
5.1.3 Compromise of Claims. Said indemnification obligations shall
extend to claims which are not reduced to a suit and any claims which may be
compromised prior to the culmination of any litigation or the institution of any litigation.
5.1.4 Refusal of Tender of Defense. In the event that Franchisee refuses
the tender of defense in any suit or any claim, said tender having been made pursuant to
the indemnification clauses contained herein, and said refusal is subsequently determined
V
by a court having jurisdiction (or such other tribunal that the Parties shall agree to decide
the matter), to have been a wrongful refusal on the part of Franchisee, then Franchisee
shall pay all of the City's costs for defense of the action, including all reasonable expert
witness fees and reasonable attorneys' fees and the reasonable costs of the City, including
reasonable attorneys' fees of recovering under this indemnification clause.
5.1.5 Concurrent Negligence. In the event of liability for damages
arising out of bodily injury to persons or damages to property caused by or resulting from
the concurrent negligence of Franchisee and the City, its officers, employees and agents,
Franchisee's liability hereunder shall be only to the extent of Franchisee's negligence. It
is further specifically and expressly understood that the indemnification provided herein
constitutes Franchisee's waiver of immunity under Title 51 RCW, solely for the purposes
of this indemnification. This waiver has been mutually negotiated by the Parties.
5.1.6 Survival. The provisions of this Section shall survive the
expiration or termination of this Franchise.
5.1.7 Assumption of Risk/Waiver. Notwithstanding any other
provisions of this Section, Franchisee assumes the risk of damage to any
Telecommunications Facilities located in the Right -of -Way from activities conducted by
the City, its officers, agents, employees, and contractors, except to the extent any such
damage or destruction is caused by or arises from the negligence or any willful or
malicious action on the part of the City, its officers, agents, employees, or contractors.
Franchisee releases and waives any and all claims against the City, its officers, agents,
employees, or contractors for damage to or destruction of any Telecommunications
Facility caused by or arising out of activities conducted by the City, its officers, agents,
employees, and contractors, in the Right -of -Way or other public property subject to this
Franchise, except to the extent any such damage or destruction is caused by or arises
from the negligence or any willful or malicious action on the part of the City, its officers,
agents, employees, or contractors. Franchisee further agrees to indemnify, hold harmless
and defend the City against any claims for damages, including, but not limited to,
business interruption damages and lost profits, brought by or under users of Franchisee's
Telecommunications Facilities or service as the result of any interruption of service due
to damage or destruction of any Telecommunications Facility caused by or arising out of
activities conducted by the City, its officers, agents, employees, or contractors, except to
the extent any such damage or destruction is caused by or arises from the negligence or
any willful or malicious actions on the part of the City, its officers, agents, employees, or
contractors.
5.2 Environmental Indemnity. See attached Exhibit E.
5.3 Insurance Requirements. See Attached Exhibit F.
5.4 Financial Security. See Attached Exhibit G.
17.
5.5 Parental Guarantee. If the Franchise is wholly owned or is controlled by
another Person, the City may require Franchisee to cause such Person to provide, upon
acceptance of this Franchise, a guarantee by such Person of performance by Franchisee of
Franchisee's rights, duties and obligations herein, in substantially the form of the parental
guarantee attached hereto as Exhibit H. "Control" shall mean de jure or de facto control
over Franchisee and does not necessarily imply a majority ownership of Franchisee by
such Person. If Franchisee is a partnership or limited liability company or similar entity,
the City may require a guarantee from the principal partners/members of the partnership,
limited liability company or similar entity.
5.6 Contractors/Subcontractors. Franchisee contractors and subcontractors
performing Work in the Right -of -Way shall comply with such bond, indemnity and
insurance requirements as may be required by City code or regulations, or other
applicable Law. If no such requirements are set forth in the City code or regulations,
Franchisee contractors and subcontractors shall comply with the requirements set forth in
attached Exhibit I.
5.7 Liens. In the event that any City property becomes subject to any claims
for mechanics', artisans', or materialmen's liens, or other encumbrances chargeable to or
through Franchisee which Franchisee does not contest in good faith, Franchisee shall
promptly, and in any event within 30 days, cause such lien claim or encumbrance to be
discharged or released of record (by payment, posting of bond, court deposit, or other
means), without cost to the City, and shall indemnify the City against all costs and
expenses (including attorneys' fees) incurred in discharging and releasing such claim of
lien or encumbrance. If any such claim or encumbrance is not so discharged and
released, the City may pay or secure the release or discharge thereof at the expense of
Franchisee after first giving Franchisee fifteen (15) business days' advance notice of its
intention to do so. Nothing herein shall preclude Franchisee's or the City's contest of a
claim for lien or other encumbrance chargeable to or through Franchisee or the City, or of
a contract or action upon which the same arose.
5.8 Financial Conditions.
5.8.1 Franchise Fee. The Parties understand that, upon the Effective Date
of this Franchise, RCW 35.21.860 prohibited the imposition of a municipal Franchise Fee
upon revenues derived from Franchisee Telephone Business Activities; however, the Parties
dispute the application of this prohibition to revenues derived by Franchisee from its
activities within the Public Right -of -Way. The Parties have, for good and valuable
consideration the adequacy of which is hereby acknowledged, agreed that for the term of
this Franchise, no franchise fees shall be due or required.
5.8.2 Reimbursement of Direct Costs of Issuance RenewalAmendment
and Administration. Franchisee shall reimburse the City for the City's Direct Costs relating
to the issuance, renewal, amendment (if requested by or for the benefit of Franchisee) and
administration of this Franchise.
10
5.8.3 Reimbursement of Direct Costs of Design Review and Ins ep ction.
City approvals and inspections, as provided for in this Franchise, are for the sole purpose
of protecting the City's rights as the owner or manager of the road Right -of -Way and are
separate and distinct from the approvals and inspections and fees that may be required
pursuant to a Regulatory Permit. Therefore, Franchisee shall reimburse to the City its
Direct Costs of approvals and inspections, to the extent that such Direct Costs are not
included in the costs for issuance of and compliance with the Regulatory Permit.
Approvals and inspection, by way of example and not limitation, include review of
design documents and inspection for compliance with Standards and plans approved by
the City.
5.8.4 Reimbursement of Direct Costs of Altering Ri t-of-Way.
Franchisee shall reimburse the City for the Direct Costs incurred by the City in planning,
designing, constructing, installing, repairing or altering any City infrastructure, structure,
or facility as the result of the actual or proposed presence in the Right -of -Way of
Franchisee's Telecommunications Facilities. Such costs and expenses shall include, but
not be limited to, the Direct Costs of City personnel and contractors utilized to oversee or
engage in any work in the Right -of -Way as the result of the presence of Franchisee's
Telecommunications Facilities in the Right -of -Way, and any time spent reviewing
construction plans in order to either accomplish the relocation of Franchisee's
Telecommunications Facilities or the routing or rerouting of any public utilities or Right -
of -Way so as not to interfere with Franchisee's Telecommunications Facilities. Upon
request as a condition of payment by Franchisee, all billing will be itemized so as to
specifically identify the Direct Costs and expenses for each project for which the City
claims reimbursement. A reasonable charge for the actual cost incurred in preparing the
billing may also be included in said billing.
5.8.5 Franchisee Responsibility for Costs. Except as expressly provided
otherwise in this Franchise, any acts that Franchisee, its contractors or subcontractors are
required to perform under this Franchise shall be performed at their sole cost and
expense.
5.8.6 Franchisee Work Performed by the City. Any work performed by
the City that Franchisee has failed to perform as required pursuant to this Franchise and
which is performed by the City in accordance with the terms of this Franchise, shall be
performed at the cost and expense of Franchisee. Franchisee shall be obligated to pay the
Direct Costs to the City of performing such work.
5.8.7 Costs to be Borne by Franchisee. Franchisee shall reimburse the
City for all costs of publication of this Franchise, and any notices prior to any public hearing
regarding this Franchise, contemporaneous with its acceptance of this Franchise.
5.8.8 Taxes and Fees. Nothing contained in this Franchise Agreement
shall exempt Franchisee from Franchisee's obligation to pay any utility tax, business tax,
or ad valorem property tax, now or hereafter levied against real or personal property
within the City, or against any local improvement assessment imposed on Franchisee.
IGa
Any fees, charges and/or fines provided for in the Medina Municipal Code or any other
City ordinance, and any compensation charged and paid for the Right -of -Way, whether
pecuniary or in -kind, are separate from, and additional to, any and all federal, state, local,
and City taxes as may be levied, imposed or due from Franchisee.
5.8.9 Itemized Invoice. Upon request and as a condition of payment by
Franchisee of Direct Costs payable by Franchisee under this Franchise, the City shall
submit an itemized billing so as to specifically identify the Direct Costs incurred by the
City for each project for which the City claims reimbursement.
5.8.10 Time for Payment. All non -contested Direct Costs shall be due
and paid within thirty (30) days of receipt of invoice; provided that, in the event that an
itemized invoice is not provided at the time of receipt of invoice and the City receives a
request from Franchisee for an itemized invoice within 30 days of receipt of invoice, such
amounts shall be due and paid within (30) days of receipt of the itemized invoice.
5.8.11 Overdue Payments. Any Direct Costs payable under this Franchise
by Franchisee which are not paid upon the due date thereof shall bear interest at a rate of
twelve (12%) percent per annum.
5.8.12 Contesting Char es. Franchisee may contest all or parts of any
Direct Cost within thirty (30) days of receipt of any invoice. The City shall investigate
Franchisee's contest and make appropriate adjustments to the invoice and resubmit the
invoice to Franchisee. Franchisee shall pay the Direct Costs as itemized in the
resubmitted invoice which shall be due within thirty (30) days of receipt of the
resubmitted invoice. However, Franchisee reserves the right to further contest any
charges through Legal Action.
5.8.13 Receivables. Either Party hereto may assign any monetary
receivables due them under this Franchise; provided, however, such transfer shall not
relieve the assignor of any of its rights or obligations under this Franchise.
5.8.14 Relationship to MMC. This Section 5.8 supersedes MMC Sections
19.06.090, 19.06.160, and 19.06.170.
ARTICLE 6. ENFORCEMENT AND REMEDIES
6.1 Communication and Discussion. The Parties are fully committed to
working with each other throughout the Term of this Franchise and agree to communicate
regularly with each other at all times so as to avoid or minimize Disputes. The Parties
agree to act in good faith to prevent and resolve potential sources of conflict before they
escalate into a Dispute. The Parties each commit to resolving a Dispute in an amicable,
professional and expeditious manner.
20.
6.2 Breach/Right to Cure Breach.
6.2.1 Notice. Except as provided at Section 6.2.4 herein, if a Party
believes that the other Party is in Breach, such Parry shall give written notice to the Noticed
Parry stating with reasonable specificity the nature of the alleged Breach. The Noticed Party
shall have thirty (30) days, or such lesser or greater time as specified in the notice, from the
receipt of such notice to:
6.2.1.1 Respond to the other Party, contesting that Party's assertion
that a Breach has occurred; or
6.2.1.2 Cure the alleged Breach; or
6.2.1.3 Notify the other Party that the Noticed Party cannot cure the
Breach within the time provided in the notice because of the nature of the Breach. In the
event the Breach cannot be cured within time provided in the notice, the Noticed Party shall
promptly take all reasonable steps to cure the Breach and notify the other Party in writing
and in detail as to the exact steps that will be taken and the projected completion date. In
such case, the other Party may set a meeting to determine whether additional time beyond
the time provided in the notice is indeed needed, and whether the Noticed Party's proposed
completion schedule and steps are reasonable.
6.2.2 Time to Cure. When specifying the time period for cure, the Party
giving notice shall take into account, the nature and scope of the alleged Breach, the nature
and scope of the work required to cure the Breach, whether the Breach has created or will
allow to continue an unsafe condition, the extent to which delay in implementing a cure
will result in adverse financial consequences or other harm to the Party giving notice, and
whether delay in implementing a cure will result in a violation of applicable Law or
breach of contract.
6.2.3 Failure to Cure. If the Noticed Party fails to promptly commence
and diligently pursue cure of a Breach to completion to the reasonable satisfaction of the
Party giving notice and in accordance with the time to cure, as established pursuant to
Sections 6.2.1, 6.2.1.3 and 6.2.2, then the party giving such notice shall be entitled to
seek remedies as set forth in Section 6.3 herein or any such other remedies allowed at
Law, in contract or in equity.
6.2.4 Election. In the event of a Breach that may also constitute grounds
for revocation as set forth at Section 6.4.1.1 through 6.4.1.12 herein, the City may, at its
election and in lieu of the notice and cure procedures set forth in Section 6.2.1 through
6.2.3, follow the procedures and exercise the rights and remedies as set forth in Section
6.4 herein.
6.3 Remedies. The Parties have the right to seek any and all of the following
remedies, singly or in combination, in the event of Breach:
21.
6.3.1 Specific Performance. Each Party shall be entitled to specific
performance of each and every obligation of the other Party under this Franchise without
any requirement to prove or establish that such Party does not have an adequate remedy
at law. The Parties hereby waive the requirement of any such proof and acknowledge
that either Party would not have an adequate remedy at law for the commission of a
Material Breach hereunder.
6.3.2 Injunction. Each Party shall be entitled to restrain, by injunction,
the actual or threatened commission or attempt of an Event of Default and to obtain a
judgment or order specifically prohibiting a Material Breach of this Franchise without, in
either case, being required to prove or establish that such Party does not have an adequate
remedy at law. The Parties hereby waive the requirement of any such proof and
acknowledge that the other Party would not have an adequate remedy at law for the
commission of a Material Breach hereunder.
6.3.3 Damages; Equitable Relief. Each Party shall be entitled to
commence a Legal Action at law for monetary damages or impose liquidated damages as
set forth below or seek other equitable relief.
6.4 Revocation.
6.4.1 Cause. This Franchise, and all rights granted hereunder to
Franchisee, may be revoked by the City for any one or more of the following reasons:
6.4.1.1 Construction or operation in the City or in the Right -of -
Way of the City or upon City property without a grant of authority from an authorization,
franchise, or lease;
Franchisee;
6.4.1.2 Construction or operation at an unauthorized location;
6.4.1.3 Unauthorized substantial transfer of control of
6.4.1.4 Unauthorized assignment of the Franchise;
6.4.1.5 Unauthorized sale, assignment or transfer of a
Franchisee's Franchise assets, or a substantial interest therein;
6.4.1.6 Misrepresentation by or on behalf of Franchisee in any
application or written statement upon which the City relies in making the decision to
grant, review or amend the Franchise pursuant to MMC Title 19 (Exhibit B) or this
Franchise;
6.4.1.7 Abandonment of Telecommunications Facilities in the
public Right -of -Way or upon City property;
22.
6.4.1.8 Failure to relocate or remove Telecommunications
Facilities as required in this Franchise;
and as due the City;
Title 19; or
6.4.1.9 Failure to pay taxes, compensation, fees or costs when
6.4.1.10 Insolvency or bankruptcy of Franchisee;
6.4.1.11 Violation of any material applicable provision of MMC
6.4.1.12 Violation of any material term of this Franchise.
6.4.2 Notice and Duty to Cure. In the event that the City believes that
grounds exist for revocation of this Franchise, Franchisee shall be given written notice of
the apparent violation or noncompliance, providing a short and concise statement of the
nature and general facts of the violation or noncompliance, and providing Franchisee a
reasonable period of time not exceeding 30 days to furnish evidence:
6.4.2.1 That corrective action has been, or is being actively and
expeditiously pursued, to remedy the violation or noncompliance;
6.4.2.2 That rebuts the alleged violation or noncompliance; or
6.4.4.3 That it would be in the public interest to impose some
penalty or sanction less than revocation.
6.4.3 Hearin. In the event that Franchisee fails to provide evidence
reasonably satisfactory to the City as provided in Section 6.4.2 herein, the City shall refer
the apparent violation or noncompliance to the City Council. The City Council shall
provide Franchisee with notice and a reasonable opportunity to be heard concerning the
matter.
6.4.4 Standards for Revocation or Lesser Sanctions. If the City Council
determines that Franchisee willfully violated or failed to comply with any of the
applicable provisions of MMC Title 19 (Exhibit B) or this Franchise, or through willful
misconduct or gross negligence failed to heed or comply with any notice given
Franchisee by the City under the applicable provisions of MMC Title 19 (Exhibit B) or
this Franchise, then Franchisee shall, at the election of the City Council, forfeit all rights
conferred hereunder and the Franchise may be revoked or annulled by the City Council.
The City Council may elect, in lieu of the above and without any prejudice to any of its
other legal rights and remedies, to pursue other remedies as set forth in Section 6.3
herein. The City Council shall utilize the following factors in analyzing the nature,
circumstances, extent, and gravity of the violation and in making its determination under
this Section:
23.
6.4.4.1
6.4.4.2
6.4.4.3
6.4.4.4
same or other requirements;
6.4.4.5
6.4.4.6
admitted or cured.
Whether the misconduct was egregious;
Whether substantial harm resulted;
Whether the violation was intentional;
Whether there is a history of prior violations of the
Whether there is a history of overall compliance; and
Whether the violation was voluntarily disclosed,
6.5 Assessment of Liquidated Dama-ges.
6.5.1 Because it may be difficult to ascertain or quantify the harm to the
City in the event of a Breach of this Franchise by Franchisee, the Parties agree to liquidated
damages as a reasonable estimation of the actual economic losses resulting from a Breach of
those provisions of this Franchise set forth in Section 6.5.7. To the extent that the City
elects to assess liquidated damages as provided in this Franchise, such damages shall be the
City's sole and exclusive remedy for recovery of damages resulting from such Breach and
shall not exceed a time period of one hundred eighty (180) days. Nothing in this subsection
is intended to preclude the City from exercising any other right or remedy with respect to a
Breach that continues past the time the City stops assessing liquidated damages for such
Breach.
6.5.2 Prior to assessing any liquidated damages, the City shall follow the
procedures set forth in this Franchise that provide Franchisee proper notice and a right to
cure when applicable.
6.5.3 With the exception of failure to comply with a stop work order
pursuant to Section 7.4.4 herein, the City shall not assess any liquidated damages if
Franchisee has cured or commenced to and completes the cure under the enforcement
provisions of Article 6 of this Franchise.
In the event Franchisee fails to cure, the City may assess liquidated damages
and shall inform Franchisee in writing of the assessment. Franchisee shall have thirty (30)
days to pay the damages. The City may immediately begin assessing liquidated damages
upon issuance of a stop work order in the event that Franchisee, or its contractors or
subcontractors, fails to comply with such stop work order.
6.5.4 The first day for which liquidated damages may be assessed, if there
has been no cure after the end of the applicable cure period, shall be the day that Franchisee
received the notice of Breach.
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6.5.5 Franchisee may challenge in court any assessment of liquidated
damages.
6.5.6 The liquidated damages amount may be adjusted by the City every
five years from the date of execution of this Franchise to take into account cumulative
inflation.
6.5.7 Pursuant to the requirements outlined herein, liquidated damages
shall not exceed the following amounts:
6.5.7.1 One hundred dollars ($100.00) per day for failure to
comply with the requirements of the following Sections: 2.2 (Authorized Services); 2.7
(Transfer); 4.5 (Expiration/Termination), 5.3 (Insurance Requirements), 5.4 (Financial
Security), 5.5 (Parental Guarantee); and
6.5.7.2 Five hundred dollars ($500) per day for the first two days
for failure to comply with the requirements of Section 7.4.4 (Stop Work), and one thousand
dollars ($1,000) per day for each day thereafter.
6.5.8 It is not the City's intention to subject Franchisee to liquidated
damages for a Breach of the Franchise where the violation was a good faith error that
resulted in no or minimal negative impact to the City, or where strict performance would
result in practical difficulties and hardship to Franchisee which outweighs the benefit to
be derived by the City. The City may not collect both liquidated damages and actual
damages for the same violation.
6.5.9 Franchisee shall not be: (1) obligated to pay these liquidated
damages; or (2) held to violation if the noncompliance is due to a Force Majeure as set
forth in Section 8.15 herein.
6.6 Receivership. At the option of the City, subject to applicable Law and
lawful orders of courts of jurisdiction, this Franchise may be revoked after the appointment
of a receiver or trustee to take over and conduct the business of Franchisee whether in a
receivership, reorganization, bankruptcy or other action or proceeding, unless:
6.6.1 The receivership or trusteeship is timely vacated; or
6.6.2 The receiver or trustee has timely and fully complied with all the
terms and provisions of this Franchise, and has remedied all defaults under the Franchise.
Additionally, the receiver or trustee shall have executed an agreement duly approved by the
court having jurisdiction, by which the receiver or trustee assumes and agrees to be bound
by each and every term, provision and limitation of this Franchise.
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ARTICLE 7. CONDITIONS UPON USE OF RIGHT-OF-WAY
7.1 Conditions Precedent to Work. Except as may be otherwise required by
applicable City code, rule, regulation or Standard, Franchisee shall comply with the
following as a condition precedent to Work:
7.1.1 Regulatory Permits Required. Except as otherwise set forth in this
Franchise, prior to performing any Work in the Right -of -Way requiring a Regulatory
Permit, Franchisee shall apply for, and obtain in advance, such appropriate Regulatory
Permits from the City as are required by ordinance or rule; provided that, Franchisee may
perform preliminary site investigation Work within a proposed Franchise Area pursuant to
such authorization (e.g., consent to entry, temporary street occupancy permit) as the City
and Franchisee may otherwise agree upon. Franchisee shall pay all generally applicable and
lawful fees for the requisite City Regulatory Permits.
In the event that, as a condition of applying for a Regulatory Permit,
Franchisee must have authorization from the City (as the owner/manager of the property to
be developed) to apply for such Regulatory Permit, the general Franchise grant given herein
shall, as to the proposed Franchise Area, constitute any such consent or authorization of the
City that is necessary for such application. This consent or authorization shall not be
deemed to be consent to or approval of the governmental action being sought.
7.1.2 Compliance with Franchise. Franchisee shall be in material
compliance with the Franchise, including by way of example and not limitation, payment
of fees invoiced to Franchisee for City reimbursable costs and expenses related to review
and approval of the Regulatory Permit(s), proof of insurance and proof of financial
security.
7.2 Compliance with Standards/Codes. Except as may be preempted by federal
or state Laws, and subject to Article 3, all Work shall be performed in compliance with the
following "Standards":
7.2.1 City Regulations. City Ordinances and regulations adopted by the
City Engineer or Public Works Director establishing standards for placement of
Telecommunications Facilities in Right -of -Way, including by way of example and not
limitation, the specific location of Telecommunications Facilities in the Right -of -Way.
This shall also include any road design and construction standards set forth in Title 12 of the
Medina Municipal Code that the City shall deem necessary to provide adequate protection
to the Right -of -Way, its safe operation and maintenance; and
7.2.2 Industry Standards. All Telecommunications Facilities shall be
durable and Constructed in accordance with good engineering practices and standards
promulgated by the government and industry for placement, Construction, design, type of
materials and operation of Franchisee Telecommunications Facilities.
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Notwithstanding the foregoing, nothing in Section 7.2 shall be read or interpreted as
a waiver of any vested rights Franchisee may have or a waiver of any rights Franchisee
may have for a Telecommunications Facility that qualifies as a nonconforming use or
structure.
7.3 Undergrounding Requirements.
7.3.1 MMC Section 19.10.050(A) (Exhibit B) requires all new
Telecommunications Facilities to be located underground unless otherwise provided in a
franchise. The Parties agree that this requirement shall not apply to Antennas, Support
Structures, Ancillary Facilities and Equipment Housing Structures, as those terms are
defined in MMC Chapter 17.90, that are located above ground pursuant to the
requirements of MMC Chapter 17.90. Further, the Parties agree that in those portions of
the Franchise Area where the wires and lines of electric, cable and/or telephone service
providers are located above grade, Franchisee is authorized to Construct its fiber optic
cables above grade. In those portions of the Franchise Area where all of the wires and
lines of electric, cable and telephone service providers are located underground,
Franchisee shall Construct its fiber optic cables underground. In any part of the
Franchise Area where the wires and lines of the electric, cable and telephone service
providers are both aerial and underground, Franchisee shall have the discretion to
Construct all of its fiber optic cables, or any part thereof, aerially or underground.
Whenever any new or existing electric utilities, cable facilities, or Telecommunications
Facilities are located or relocated underground within a City Right -of -Way , if
Franchisee fiber optic cable or related facilities occupies the same Right -of -Way, it shall
relocate its fiber optic cable and related facilities underground at no expense to the City.
Absent extraordinary circumstances or undue hardship as determined by the city
manager, such relocation shall be made concurrently to minimize the disruption of the
Right -of -Way.
7.3.2 Franchisee and the City recognize that situations may occur in the
future where the City may desire to place its own conduit and fiber optic cable in trenches
or bores opened by Franchisee. Franchisee agrees to cooperate with the City in any such
construction that involves trenching or boring. Franchisee shall allow the City to lay City
conduit and fiber optic cable in Franchisee's trenches and bores, provided that the City
and Franchisee enter into a mutually acceptable cost sharing arrangement consistent with
State law. The City shall be responsible for maintaining its respective conduit and fiber
optic cable, which is buried in Franchisee's trenches and bores.
7.4 Work in the Ri t-of-Way.
7.4.1 Least Interference. Work in the Right -of -Way shall be done in a
manner that does not unnecessarily hinder or obstruct the free use of the Right -of -Way or
other public property and which causes the least interference with the rights and reasonable
convenience of property owners, businesses and residents along the Right -of -Way.
Franchisee Telecommunications Facilities shall be designed, located, and Constructed so
as not to impair the use or operation of any street improvements, utilities, and related
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facilities of the City or the City's existing lessees, licensees, franchisees, easement
beneficiaries or lien holders, without prior written consent of City or the parties whose
improvements are impaired and whose consent is required pursuant to agreements with
the City existing prior to the Effective Date. Franchisee's Telecommunications Facilities
shall be designed, located, and Constructed in such a manner as not to interfere with any
planned utilities. For purposes of this Section, "planned" shall mean utilities which the
City intends to construct in the future, which intent is evidenced by the inclusion of said
utility project in a Capital Investment Program Plan, a comprehensive utility plan, a
transportation improvement plan, the City's Comprehensive Plan, or other written
construction or planning schedule.
7.4.2 Work of Contractors and Subcontractors. Franchisee's contractors
and subcontractors performing Work in the Franchise Area shall be licensed and bonded
in accordance with the City's and State's applicable regulations and requirements. Any
contractors or subcontractors performing Work within the Right -of -Way on behalf of
Franchisee shall be deemed servants and agents of Franchisee for the purposes of this
Franchise and are subject to the same restrictions, limitations and conditions as if the
Work were performed by Franchisee. Franchisee shall be responsible for all Work
performed by its contractors and subcontractors and others performing Work at
Franchisee's request as if the Work were performed by it, and shall ensure that all such
Work is performed in compliance with this Franchise and other applicable Laws, and
shall be jointly and severally liable for all damages and correcting all damage caused by
them. It is Franchisee's responsibility to ensure that contractors, subcontractors or other
Persons performing Work at Franchisee's request are familiar with the requirements of
this Franchise and other applicable Laws governing the Work performed by them.
7.4.3 Emergency Permits. In the event that Emergency repairs are
necessary, Franchisee shall, as soon as practicable under the circumstances, notify the city
manager or designee of the need for such repairs. Franchisee may initiate such Emergency
repairs, and shall apply for appropriate Regulatory Permits, to the extent necessary, within
forty-eight (48) hours after discovery of the Emergency. In the event of an Emergency, a
Franchisee may perform Emergency Work in the Right -of -Way without first securing a
Regulatory Permit for such Emergency Work, provided that: (1) Franchisee notifies the
City in advance of performing such Emergency Work and the type and location of such
Work; (2) Franchisee applies for a Regulatory Permit on the first business day following
commencement of such Work; and (3) Franchisee, at its sole cost and expense, makes its
Work performed in the Right -of -Way available for inspection to determine compliance
with applicable Laws and Standards.
7.4.4 Stop Work. If a stop work order is issued consistent with the
Medina Municipal Code, Franchisee shall cease, and shall cause its contractors and
subcontractors to cease, such activity until the City is reasonably satisfied that Franchisee
is in compliance. If an unsafe condition is found to exist, the City, in addition to taking any
other action permitted under applicable Law, may order Franchisee to make the necessary
repairs and alterations specified therein forthwith to correct the unsafe condition by a time
the City reasonably establishes. The City has the right to inspect, repair and correct the
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unsafe condition if Franchisee fails to do so, and to charge Franchisee the Direct Costs
thereof.
7.4.5 Dedication of City Utilities/Public Improvements. Upon
substantial completion of Construction of the Telecommunications Facilities and any
related restoration of or improvements to or within the Right -of -Way, including without
limitation, curbs, gutters, sidewalks, underlayment, roadway surface, pipe, connectors,
catch basins, or any part thereof that will be dedicated to City ownership (collectively
"Dedicated Improvements"), Franchisee shall submit a written request to the City for a
final inspection and acceptance of dedication of all Dedicated Improvements.
When the City is reasonably satisfied that the Work related to the
Dedicated Improvements is substantially complete, it shall by ordinance, resolution or
other lawful means accept ownership of such Dedicated Improvements and thereafter
become responsible for maintenance, repair, and replacement of the same.
7.5 Alterations. Except as may be shown in any plans approved by the City,
or as may be necessary to respond to an Emergency, Franchisee, and Franchisee's
contractors and subcontractors, may not make any material alterations to the Franchise
Area without City's prior written consent. Material alteration shall include by way of
example and not limitation, a change in the dimension or height of the above ground
Telecommunications Facilities or the addition of or change in configuration of an
antenna; but shall not include changes to the equipment used as part of the
Telecommunications Facilities that do not affect the exterior appearance of the
Telecommunications Facilities. If Franchisee desires to change either the location of any
Telecommunications Facilities or otherwise materially deviate from the approved design
of any of the Telecommunications Facilities, Franchisee shall submit such change to the
City for its approval pursuant to the procedures outlined in the Medina Municipal Code.
Franchisee shall have no right to commence any such alteration change until after
Franchisee has received City's approval of such change in writing.
7.6 General Conditions.
7.6.1 Right -of -Way Meetings. Subject to receiving advance notice,
Franchisee shall make reasonable efforts to attend and participate in meetings of the City
regarding Right -of -Way issues that may impact its Telecommunications Facilities.
7.6.2 Compliance Inspection. Following the completion of
Construction, Franchisee's Telecommunications Facilities shall be subject to the City's
right of periodic inspection upon at least twenty-four (24) hours notice, or, in case of an
Emergency, upon demand without prior notice, to determine compliance with the
provisions of this Franchise or Regulatory Permit or other applicable Law over which the
City has jurisdiction. Franchisee shall respond to requests for information regarding its
Telecommunications Facilities as the City may from time to time issue to determine
compliance with this Franchise, including requests for information regarding
Franchisee's plans for Construction and the purposes for which the Telecommunications
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Facility is being Constructed. Notwithstanding the foregoing, the City agrees that it shall
only conduct such inspections when: (a) it has received a complaint; (b) such inspection
is required as part of the approval of the Regulatory Permit; or (c) when there is
reasonable cause to believe that a violation exists. Franchisee reserves the right to
dispute any City charge for such inspections if Franchisee believes that such inspection
was unnecessary or redundant.
7.6.3 One Call. If Franchisee places Telecommunications Facilities
underground, Franchisee shall, at its own expense, continuously be a member of the State
of Washington one number locator service under Chapter 19.122 RCW, or an approved
equivalent, and shall comply with all such applicable rules and regulations. Franchisee
shall locate and field mark its Telecommunications Facilities for the City at no charge.
7.6.4 Graffiti Removal. Within 48 hours after notice from the City,
Franchisee shall remove any graffiti on any part of its Telecommunications Facilities,
including, by way of example and not limitation, equipment cabinets. If Franchisee fails
to do so, the City may remove the graffiti and bill Franchisee for the cost thereof.
7.6.5 Dangerous Conditions, Authority for City to Abate. Whenever
Construction of Telecommunications Facilities has caused or contributed to a condition
that appears to substantially impair the lateral support of the adjoining Right -of -Way,
street, or public place, or endangers the public, any utilities, or City -owned property, the
City may reasonably require Franchisee to take reasonably necessary action to protect the
Right -of -Way, the public, adjacent public places, City -owned property, streets, and
utilities. Such action may include compliance within a reasonably 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, the City may, to the extent it may lawfully do so, take such
actions as are necessary to protect the Right -of -Way, the public, adjacent public places,
City -owned property, streets, and utilities, to maintain the lateral support thereof, or
actions regarded as necessary safety precautions; and Franchisee shall be liable to the
City for the Direct Costs thereof to the extent of Franchisee's responsibility for the
condition.
7.6.6 No Du . Notwithstanding the right of the City to inspect the
Work, issue a stop work order, and order or make repairs or alterations, the City has no
duty or obligation to observe or inspect, or to halt work on, the applicable
Telecommunications Facilities, it being solely Franchisee's responsibility to ensure that
the Telecommunications Facilities are Constructed and operated in strict accordance with
this Franchise, the approved plans, the Standards, and applicable Law. Neither the
exercise nor the failure by the City to exercise any right set forth in this Article 7 shall
alter the liability allocation set forth in this Franchise.
7.6.7 Roadside Hazard. All of Franchisee's Telecommunications
Facilities shall be kept by Franchisee at all times in a reasonably safe and hazard -free
condition. Franchisee shall ensure that Telecommunications Facilities within the Right-
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of -Way do not become or constitute an impassible roadside obstacle and do not interfere
with or create a hazard to maintenance of and along the Right -of -Way. In such event, or
in the event that the City determines that a Telecommunications Facility within the Right -
of -Way is impairing passage within the Right -of -Way or may interfere with or create a
hazard to maintenance of and along the Right -of -Way, Franchisee shall:
7.6.7.1If the hazard results from disrepair, repair the
Telecommunications Facility to a safe condition;
7.6.7.2 Relocate the Telecommunications Facility to another place
within the Right -of -Way or underground;
7.6.7.3 Crash -protect the Telecommunications Facility; or
7.6.7.4In the event that the Telecommunications Facility is
screened from view (i.e., not readily visible from all directions by persons standing at
ground level), remove or trim vegetation in and around the Telecommunications Facility.
Franchisee, at all times, shall employ the standard of care attendant to the
risks involved and shall install and maintain in use commonly accepted methods and
devices for preventing failures and accidents which are likely to cause damage, injury, or
nuisance to the public or to Franchisee's agents or employees. Franchisee, at its own
expense, shall repair, renew, change, and improve its Telecommunications Facilities from
time to time as may be necessary to accomplish this purpose. Franchisee shall use
suitable barricades, flags, flaggers, lights, flares and other measures as required for the
safety of all members of the general public and to prevent injury or damage to any
person, vehicle or property by reason of such Work in or affecting such Right -of -Way or
property. All excavations made by Franchisee in the Right -of -Way shall be properly
safeguarded for the prevention of accidents.
7.6.8 Verification of Alignment/Depth. Upon the reasonable request and
prior written notice, in non -Emergency situations, with at least thirty (30) days notice
provided by the City and in order to facilitate the location, alignment and design of Public
Improvements, Franchisee agrees to locate, and if reasonably determined necessary by
the City, to excavate and expose portions of its Telecommunications Facilities for
inspection so that the location of same may be taken into account in the improvement
design; provided that, Franchisee shall not be required to excavate and expose its
Telecommunications Facilities unless Franchisee's record drawings and maps of its
Telecommunications Facilities are reasonably determined by the City to be inadequate
for purposes of this subsection.
7.7 Telecommunications Facility Relocation at Request of the City for Public
Improvements.
7.7.1 Public Project. The City may require Franchisee to alter, adjust,
relocate, or protect in place its Telecommunications Facilities within the Right -of -Way
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when reasonably necessary for Construction, alteration, repair, or improvement of any
portion of the Right -of -Way for purposes of public welfare, health, or safety ("Public
Improvements"). Such Public Improvements include, by way of example but not
limitation, Right -of -Way Construction; Right -of -Way repair (including resurfacing or
widening); change of Right -of -Way grade; Construction, installation or repair of sewers,
drains, water pipes, power lines, signal lines, communication lines, or any other type of
government -owned communications utility or public transportation systems, public work,
public facility, or improvement of any government owned utility; Right -of -Way vacation;
and the Construction of any Public Improvement by any governmental agency acting in a
governmental capacity or by a developer as required by development approval.
7.7.2 Alternatives. Franchisee may, after receipt of written notice
requesting a relocation of its Telecommunications Facilities, submit to the City written
alternatives to such relocation. The City shall evaluate such alternatives and advise
Franchisee in writing if one or more of the alternatives are suitable to accommodate the
Public Improvement which would otherwise necessitate relocation of the
Telecommunications Facilities. If so requested by the City, Franchisee shall submit
additional information to assist the City in making such evaluation. The City shall give
each alternative proposed by Franchisee full and fair consideration, within a reasonable
time, so as to allow for the relocation Work to be performed in a timely manner. In the
event the City ultimately determines, in its sole discretion, that there is no other
reasonable alternative, Franchisee shall relocate its Telecommunications Facilities as
otherwise provided in this Section. In the event that the City reasonably determines that
it does not have available resources to evaluate Franchisee's proposal, the City shall not
be obligated to further consider such proposal unless and until Franchisee funds the
additional costs to the City to complete its evaluation.
7.7.3 Notice/Timeline. The City shall notify Franchisee as soon as
practicable of the need for relocation for a Public Improvement and shall specify the date
by which relocation shall be completed. Except in case of Emergency, such notice shall
be no less than one hundred and eighty (180) days. Within 30 days following written
notice from the City, Franchisee shall provide a schedule to the City indicating the
estimated completion date for temporarily or permanently removing, relocating,
changing, or altering the position of any Telecommunications Facilities within the Right -
of -Way or upon City property. In calculating the date that relocation must be completed,
City shall consult with Franchisee and consider the extent of Telecommunications
Facilities to be relocated, the service requirements, the time required to obtain the
Regulatory Permits to relocate the Telecommunications Facilities to the new location(s),
and the construction sequence for the relocation, within the overall project construction
sequence and constraints, to safely complete the relocation. Franchisee shall complete
the relocation by the date specified, unless the City, or a reviewing court, establishes a
later date for completion, after a showing by Franchisee that the relocation cannot be
completed by the date specified using best efforts and meeting safety and service
requirements.
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7.7.4 Coordination of Work. Franchisee acknowledges and understands
that any delay by Franchisee in performing the Work to alter, adjust, relocate, or protect
in place its Telecommunications Facilities within the Right -of -Way may delay, hinder, or
interfere with the work performed by the City and its contractors and subcontractors in
furtherance of Construction, alteration, repair, or improvement of the Public
Improvement, and result in damage to the City, including but not limited to, delay claims.
Franchisee shall cooperate with the City and its contractors and subcontractors to
coordinate such Franchisee Work to accommodate the Public Improvement project and
project schedules to avoid delay, hindrance of, or interference with such project.
7.7.5 Failure to Comply. Should Franchisee fail to alter, adjust, protect
in place or relocate any Telecommunications Facilities ordered by the City to be altered,
adjusted, protected in place, or relocated, within the time prescribed pursuant to Section
7.7.3, or if it is not done to the City's reasonable satisfaction, the City may, to the extent
the City may lawfully do so, cause such work to be done and bill the Direct Costs of the
work to Franchisee. In such event, the City shall not be liable for any damage to any
portion of Franchisee's Telecommunications Facilities, unless directly or proximately
caused by willful, intentional, or malicious acts by the City.
7.7.6 Assignment of Rights. In addition to any other rights of assignment
the City may have, the City may from time to time assign or transfer to its contractors or
subcontractors its rights under Sections 7.7 or 7.9 of this Franchise to require Franchisee to
alter, adjust, relocate, or protect in place its Telecommunications Facilities within the
Right -of -Way to accommodate a Public Improvement. Franchisee acknowledges and
consents to such an assignments)/transfer(s) and agrees that it is bound by all lawful orders
issued by such assignee(s) of the City under color of authority of such
assignments)/transfer(s) as though such orders had been issued by the City under the terms
and conditions of this Franchise. Such assignment/transfer is an assignment/transfer of the
City's contract rights under this Franchise and shall not in any way be interpreted or
construed as an assignment, transfer, delegation or relinquishment of the City's rights under
its police powers to require Franchisee to alter, adjust, relocate, or protect in place its
Telecommunications Facilities within the Right -of -Way to accommodate a Public
Improvement.
7.7.7 Reimbursement for Costs. Notwithstanding the cost allocation
provisions set forth in this Franchise, Franchisee does not waive its right(s) to and shall
be entitled to seek reimbursement of its relocation costs as may be otherwise specifically
set forth and authorized in statute.
7.8 Movement of Telecommunications Facilities for Others.
7.8.1 Private Benefit. If any alteration, adjustment, temporary
relocation, or protection in place of any of Franchisee's Telecommunications Facilities is
required to accommodate the Construction of facilities or equipment that are not part of a
Public Improvement project, Franchisee shall, after at least ninety (90) days advance written
notice, take action to effect the necessary changes requested by the requesting entity;
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provided that, (a) the Person requesting the same pays for Franchisee's time and material
costs associated with the requested work; (b) the alteration, adjustment, temporary
relocation or protection in place is reasonably necessary to accommodate such work; (c) the
Person requesting the alteration, adjustment, temporary relocation, or protection in place
considers alternatives in the same manner as provided at Section 7.7.2; (d) such alteration,
adjustment, temporary relocation or protection in place does not unreasonably interfere with
Franchisee's ability to continue to provide Telecommunications service; (e) Franchisee is
able to obtain all necessary Regulatory Permits before completing such alteration,
adjustment, temporary relocation or protection in place; and (f) such alteration, adjustment,
or temporary relocation is not requested for the purpose of obtaining a competitive
advantage over Franchisee.
7.8.2 Temporary Changes for Other Persons. At the request of any Person
holding a valid permit and upon reasonable advance notice, Franchisee shall temporarily
raise, lower or remove its wires as necessary to permit the moving of a building, vehicle,
equipment or other item. The expense of such temporary changes shall be paid by the
permit holder. Franchisee shall be given not less than fourteen (14) days' advance notice
to arrange for such temporary wire changes.
7.9 Movement of Telecommunications Facilities During Emergencies.
7.9.1 Immediate Threat. In the event of an unforeseen event, condition
or circumstance that creates an immediate threat to the public safety, health, or welfare,
the City shall have the right to require Franchisee to shut down, relocate, remove, replace,
modify, or disconnect Franchisee's Telecommunications Facilities located in the Right -of -
Way at the expense of Franchisee without regard to the cause or causes of the immediate
threat.
7.9.2 Emergency. In the event of an Emergency, or where a
Telecommunications Facility creates or is contributing to an imminent danger to health,
safety, or public property, the City shall have the right to require Franchisee to shut
down, relocate, modify or disconnect one or more of its Telecommunications Facilities
located in the Right -of -Way at Franchisee's expense.
7.9.3 Notice. During Immediate Threats and/or Emergencies, the City shall
endeavor to, as soon as practicable, provide notice to Franchisee of such Immediate Threat
or Emergency at a designated response contact number, to allow Franchisee the opportunity
to respond and rectify the problem without disrupting Franchisee's Telecommunications
service. To the extent Franchisee fails to timely respond to such notice, the City may
protect, support, temporarily disconnect, remove, or relocate any or all parts of
Franchisee's Telecommunications Facilities located within the Right -of -Way to the
extent the City, in its sole discretion, determines it is necessary to respond to the
Immediate Threat or Emergency, and the City may charge Franchisee for the reasonable
costs incurred.
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7.9.4 Limitation on Liability. The City shall not be liable 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, unless directly or
proximately caused by willful, intentional, or malicious acts by the City.
7.10 Record of Installations.
7.10.1 Planned Improvements. Upon written request of the City,
Franchisee shall provide the City with the most recent update available of any planned
improvements to its Telecommunication Facilities to the extent such plans do not contain
confidential or proprietary information or such information can be redacted; provided,
however, any such plan submitted shall be for informational purposes only and shall not
obligate Franchisee to undertake any specific improvements, nor shall such plan be
construed as a proposal to undertake any specific improvements.
7.10.2 Maps/Record Drawings of Telecommunications Facilities. After
Construction involving the locating or relocating of Telecommunications Facilities, or
upon request by the City, Franchisee shall provide the City with accurate copies of all
record drawings and maps showing the horizontal and vertical location and configuration
of all located or relocated Telecommunications Facilities within the Right -of -Way. These
record -drawings and maps shall be provided at no cost to the City, and shall include hard
copies and digital copies in a format reasonably specified by the City. As to any such
record drawings and maps so provided, Franchisee does not warrant the accuracy thereof
and to the extent the location of the Telecommunications Facilities are shown, such
Telecommunications Facilities are shown in their approximate location.
7.11 Restoration of Ri t-of-WgL Public and Private Property.
7.11.1 Restoration after Construction. Franchisee shall, after completion
of Construction of any part of its Telecommunications Facilities, leave the Right -of -Way
and other property disturbed thereby, in as good or better condition in all respects as it
was in before the commencement of such Construction. Franchisee agrees to promptly
complete restoration work to the reasonable satisfaction of the City.
7.11.2 Notice. If Franchisee's Work causes unplanned, unapproved, or
unanticipated disturbance of or alteration or damage to Right -of -Way or other public or
private property, Franchisee shall promptly notify the property owner within twenty-four
(24) hours of discovery.
7.11.3 Duty to Restore. If Franchisee's Work causes unplanned,
unapproved, or unanticipated disturbance of or alteration or damage to the Right -of -Way or
other public property, it shall promptly restore such Right -of -Way and public property to
as good or better condition as existed before the Work was undertaken, unless otherwise
directed by the City. If the City determines that complete or satisfactory restoration is not
obtainable, the City shall have the right to require compensation for the less than
complete or satisfactory condition of the Right -of -Way or public property. Franchisee
35.
shall initiate the restoration work within forty-eight (48) hours or as authorized by the City's
Public Works Director, and shall diligently continue such restoration work until completed.
7.11.4 Temporary Restoration. If weather or other conditions do not
allow the complete restoration required by this Section, Franchisee shall temporarily
restore the affected Right -of -Way or public property. Franchisee shall promptly undertake
and complete the required permanent restoration when the weather or other conditions no
longer prevent such permanent restoration.
7.11.5 Survey Monuments. All survey monuments which are disturbed or
displaced by any Work shall be referenced and restored, as per WAC 332-120, as the
same now exists or may hereafter be amended, and pursuant to all pertinent federal, state
and local standards and specifications.
7.11.6 Approval. The City shall be responsible for observation and final
approval of the condition of the Right -of -Way and City property following any
restoration activities therein. Franchisee is responsible for all testing and monitoring of
restoration activities.
7.11.7 Warr Franchisee shall warrant any restoration work performed
by Franchisee in the Right -of -Way or on other public property for one (1) year, unless a
longer period is required by the Municipal Code or any generally applicable ordinance or
resolution of the City. If restoration is not satisfactorily and timely performed by
Franchisee, the City may, after prior written notice to Franchisee, or without notice in case
of Emergency, cause the repairs to be made and recover the Direct Costs of those repairs
from Franchisee.
7.11.8 Restoration of Private Property. When Franchisee does any Work
in the Right -of -Way that affects, disturbs, alters, or damages any adjacent private
property, it shall, at its own expense, be responsible for restoring such private property to
the condition that existed prior to the Work to the reasonable satisfaction of the private
property owner.
7.12 Approvals. Nothing in this Franchise shall be deemed to impose any
duty or obligation upon the City to determine the adequacy or sufficiency of Franchisee's
plans or to ascertain whether Franchisee's proposed or actual Construction is adequate or
sufficient or in conformance with any plans approved by the City. No approval given,
inspection made, review or supervision performed by the City pursuant to or under
authority of this Franchise shall constitute or be construed as a representation or
warranty, express or implied, by the City that such item reviewed, approved, inspected, or
supervised complies with applicable Laws or this Franchise or meets any particular
Standard, code or requirement, or is in conformance with the approved plans by the City,
and no liability shall attach with respect thereto. City approvals and inspections as
provided herein, are for the sole purpose of protecting the City's rights as the owner
and/or manager of the Right -of -Way and shall not constitute any representation or
warranty, express or implied, as to the adequacy of the design or Construction of the
Telecommunication Facilities, suitability of the Franchise Area for Construction, or any
36.
obligation on the part of the City to insure that Work or materials are in compliance with
any requirements imposed by a governmental entity. City is under no obligation or duty
to supervise the design, Construction, or operation of the Telecommunication Facilities.
7.13 Abandonment of Telecommunications Facilities. Franchisee's rights,
duties and obligations to remove its unauthorized Telecommunications Facilities or
abandon in place shall be as set forth in MMC Section 19.10.170 in Exhibit B.
7.14 Relationship to MMC. The provisions in this Article 7 supersede MMC
Sections 19.10.050, 19.10.100, 19.10.110, 19.10.130, 19.10.150, 19.10.160, 19.10.180,
19.10.190, 19.10.200, 19.10.210, 19.12.010 (to the extent it incorporates MMC Sections
19.12.130 and 19.12.140), 19.12.130 and 19.12.140.
ARTICLE 8 MISCELLANEOUS
8.1 Headinas. Titles to articles and sections of this Franchise are not a part of
this Franchise and shall have no effect upon the construction or interpretation of any part
hereof.
8.2. Entire Agreement. This Franchise contains all covenants and agreements
between the City and Franchisee relating in any manner to the Franchise, use, and
occupancy of the Right -of -Way and other matters set forth in this Franchise. No prior
agreements or understanding pertaining to the same, written or oral, shall be valid or of
any force or effect, and the covenants and agreement of this Franchise shall not be
altered, modified, or added to except in writing signed by the City and Franchisee and
approved by the City in the same manner as the original Franchise was approved.
8.3 Incorporation of Exhibits. All exhibits attached hereto at the time of
execution of this Franchise, or in the future as contemplated herein, are hereby
incorporated by reference as though fully set forth herein.
8.4 Calculation of Time. All periods of time referred to herein shall include
Saturdays, Sundays, and legal holidays in the State of Washington, except that if the last
day of any period falls on any Saturday, Sunday, or legal holiday in the State of
Washington, the period shall be extended to include the next day which is not a Saturday,
Sunday, or legal holiday in the State of Washington; provided that, the Effective Date
shall be determined as provided at Section 4.3 of this Franchise.
8.5 Time Limits Strictly Construed. Whenever this Franchise sets forth a time
for any act to be performed by either Party, such time shall be deemed to be of the essence,
and any failure of either Party to perform within the allotted time may be considered a
Breach of this Franchise.
8.6 No Joint Venture. It is not intended by this Franchise to, and nothing
contained in this Franchise shall, create any partnership, joint venture, or principal -agent
relationship or other arrangement between Franchisee and the City. Neither Party is
37.
authorized to, nor shall either Parry act toward third Persons or the public, in any manner
which would indicate any such relationship with the other. The Parties intend that the
rights, obligations, and covenants in this Franchise and the collateral instruments shall be
exclusively enforceable by the City and Franchisee, their successors, and assigns. No
term or provision of this Franchise is intended to be, or shall be, for the benefit of any
Person not a Party hereto, and no such Person shall have any right or cause of action
hereunder, except as may be otherwise provided herein. Further, Franchisee is not granted
any express or implied right or authority to assume or create any obligation or responsibility
on behalf of or in the name of the City. Nothing in this Section 8.6 shall be construed to
prevent an assignment as provided for at Section 7.7.6 of this Franchise.
8.7 Approval Authority. Except as may be otherwise provided by applicable
Law or herein, any approval or authorization required to be given by the City, shall be
given by the Public Works Director (or its successor).
8.8 Binding Effect Upon Successors and Assigns. All of the provisions,
conditions, and requirements contained in this Franchise shall further be binding upon the
heirs, successors, executors, administrators, receivers, trustees, legal representatives and
assigns of Franchisee and the City; and all privileges, as well as all obligations and
liabilities of Franchisee and the City shall inure to its heirs, successors, and assigns
equally as if they were specifically mentioned wherever Franchisee is named herein.
8.9 Waiver. No failure by either Party to insist upon the performance of any
of the terms of this Franchise, or to exercise any right or remedy consequent upon a
Breach thereof, shall constitute a waiver of any such Breach or of any of the terms of this
Franchise. None of the terms of this Franchise to be kept, observed or performed by
either Party, and no Breach thereof, shall be waived, altered or modified except by a
written instrument executed by the injured Party. No waiver of any Breach shall affect or
alter this Franchise, but each of the terms of this Franchise shall continue in full force and
effect with respect to any other then existing or subsequent Breach thereof. No waiver of
any default of the defaulting Party hereunder shall be implied from any omission by the
injured Party to take any action on account of such default if such default persists or is
repeated, and no express waiver shall affect any default other than the default specified in
the express waiver and then only for the time and to the extent therein stated. One or
more waivers by the injured Party shall not be construed as a waiver of a subsequent
breach of the same covenant, term or conditions.
8.10 Severability. If any word, article, section, subsection, paragraph, provision,
condition, clause, sentence, or its application to any person or circumstance (collectively
referred to as "Term"), shall be held to be illegal, invalid, or unconstitutional for any
reason by any court or agency of competent jurisdiction, such Term declared illegal,
invalid or unconstitutional shall be severable and the remaining Terms of the Franchise
shall remain in full force and effect unless to do so would be inequitable or would result
in a material change in the rights and obligations of the Parties hereunder, in which case
the Parties shall reform the Franchise pursuant to Section 3.5 herein.
8.11 Signs. No signs or advertising shall be permitted in the Franchise Area
except as may be required by applicable Law or as may be required by the City for the
protection of the public health, safety and welfare, to the extent it has authority to do so.
8.12 Discriminatory Practices Prohibited. Throughout the term of this Franchise,
Franchisee shall fully comply with all equal employment and nondiscrimination provisions
of applicable Law.
8.13 Notice. Any notice required or permitted to be given hereunder shall be in
writing, unless otherwise expressly permitted or required, and shall be deemed effective
either: (i) upon hand delivery to the person then holding the office shown on the attention
line of the address below, or, if such office is vacant or no longer exists, to a person
holding a comparable office; (ii) or when delivered by a nationally recognized overnight
mail delivery service, to the Party and at the address specified below; or (iii) on the third
business day following its deposit with the United States Postal Service, first class and
certified or registered mail, return receipt requested, postage prepaid, properly sealed and
addressed as follows:
Franchisee's address:
The City's Address:
And to the City Attorney
ATC Outdoor DAS, LLC
10 Presidential Way
Woburn, MA 01810
Attn: Land Management
American Tower Corporation
116 Huntington Avenue
Boston, MA 02116
Attn: General Counsel
City of Medina
Attn. City Manager
501 Evergreen Point Road
Medina, WA 98039
City of Medina
Attn. City Attorney
501 Evergreen Point Road
Medina, WA 98039
The City and Franchisee may designate such other address from time to time by giving
written notice to the other, . but notice cannot be required to more than two addresses,
except by mutual agreement.
8.14 Survival of Terms. Upon the expiration, termination, revocation or
forfeiture of the Franchise, Franchisee shall no longer have the right to occupy the
Franchise Area for the purpose of providing services authorized herein. However,
Franchisee's obligations under this Franchise to the City shall survive the expiration,
termination, revocation or forfeiture of these rights according to its terms for so long as
39.
Franchisee's Telecommunications Facilities or any part thereof shall remain in whole or
in part in the Right -of -Way, Franchisee transfers ownership of all Telecommunications
Facilities in the Franchise Area to a third -parry, or Franchisee abandons said
Telecommunications Facilities in place, all as provided herein. Said obligations include,
by way of illustration and not limitation, Franchisee's obligations to indemnify, defend,
and protect the City, to provide insurance, to relocate its Facilities, and to reimburse the
City for its Direct Costs to perform Franchisee Work.
8.15 Force Majeure. In the event Franchisee is prevented or delayed in the
performance of any of its obligations herein due to circumstances beyond its control or by
reason of a force majeure occurrence, such as, but not limited to, acts of God, acts of
terrorism, war, riots, civil disturbances, natural disasters, floods, tornadoes, earthquakes,
unusually severe weather conditions, employee strikes and unforeseen labor conditions
not attributable to Franchisee's employees, Franchisee shall not be deemed in Breach of
the provisions of this Franchise.
If Franchisee believes that circumstances beyond its control or by reason of a force
majeure occurrence have prevented or delayed its compliance with the provisions of this
Franchise, Franchisee shall provide documentation as reasonably required by the City to
substantiate Franchisee's claim. Franchisee shall have a reasonable time, under the
circumstances, to perform the affected obligation under this Franchise or to procure a
substitute for such obligation which is reasonably satisfactory to the City, provided that,
Franchisee shall perform to the maximum extent it is able to perform and shall take
immediate and diligent steps to bring itself back into compliance and to comply as soon
as possible under the circumstances with the Franchise without unduly endangering the
health, safety, and integrity of Franchisee's employees or property, or the health, safety,
and integrity of the public, Right -of -Way, public property, or private property.
8.16 Attorneys' Fees. In the event a suit, action, arbitration, or other proceeding
of any nature whatsoever, whether in contract or in tort or both, is instituted to enforce
any word, article, section, subsection, paragraph, provision, condition, clause or sentence
of this Franchise or its application to any person or circumstance, the prevailing Party shall
be entitled to recover from the losing Parry its reasonable attorneys', paralegals',
accountants', and other experts' fees, and all other fees, costs, and expenses actually
incurred and reasonably necessary in connection therewith, as allowed by Washington
Law and as determined by the judge or arbitrator at trial or arbitration, as the case may
be, or on any appeal or review, in addition to all other amounts provided by Law. This
provision shall cover costs and attorneys' fees related to or with respect to proceedings in
Federal Bankruptcy Courts, including those related to issues unique to bankruptcy law.
This provision shall not apply to the extent that the suit, action, arbitration or other
proceeding is brought to interpret any term, condition, provision, section, article or clause of
this Franchise.
8.17 Venue/Choice of Law. This Franchise shall be governed and construed in
accordance with the laws of the State of Washington. Any action brought relative to
enforcement of this Franchise, or seeking a declaration of rights, duties or obligations
HO
herein, shall be initiated in the King County Superior Court, and shall not be removed to
a federal court, except as to claims over which such the Superior Court has no
jurisdiction. Removal to federal court shall be to the Federal Court of the Western
District of Washington.
8.18 Publication. This ordinance, or a summary thereof, shall be published in the
official newspaper of the City, the expense of which shall be borne by Franchisee, and shall
take effect and be in full force in accordance with Section 4.3 herein.
ADOPTED BY THE CITY COUNCIL AT A REGULAR MEETING THEREOF
ON THE _,_ DAY OF Jdmg6W, 20 tO AND SIGNED IN AUTHENTICATION
OF ITS PASSAGE THIS DAY OF .t20—LV—.
Appr rdasIoform:
Bruce Disend, City Attomey
Passed: It [orU-
Published: O
Eff Date: 1 Q
41.
Attel,
Ra t
el Baker, City Clerk
EXHIBIT A
Map Depicting Franchise Area
42.
Figure 1
CITY
E�et9{egnt
po+
MEDINA
LEGEND
Underground Fiber 1000' +/.
venal river Koine 1 tuuu•+/- (y.sz miles)
Node # 10 locations
1*04.4 1:
Medina Municipal Code Title 19
43.
Title 19
TELECOMMUNICATIONS
Chapters:
19.02
General Provisions
19.04
Telecommunications Right -of -Way Use Authorizations
19.06
Telecommunications Franchise
19.07
Special Rules Applicable to Open Video Systems
19.08
Facilities Lease
19.10 Conditions of Telecommunications Right -of -Way Use Authorizations,
Franchises, and Facilities Leases
19.12 Construction Standards
19-1
Medina Municipal Code 19.02.020
Chapter 19.02
GENERAL PROVISIONS
Sections:
19.02.010
Purpose and intent.
19.02.020
Definitions.
19.02.030
Telecommunications right-of-way use
authorization required.
19.02.040
Telecommunications franchise
required.
19.02.050
Cable television franchise required.
19.02.060
Facilities lease required.
19.02.070
Construction permits required.
19.02.080
Application to existing franchise
ordinances, agreements, leases, and
permits — Effect of other laws.
19.02.090
Universal service.
19.02.100
General penalties.
19.02.110
Initial inquiry/responsibilities.
19.02.120
Other remedies.
19.02.130
Fees and compensation not a tax.
19.02.010 Purpose and intent.
The purpose and intent of this title is to:
A. Establish a local policy concerning telecom-
munications providers and service;
B. Establish guidelines, standards and time
frames for the exercise of local authority with
respect to the regulation of telecommunications
providers and services;
C. Promote competition in telecommunica-
tions;
D. Minimize unnecessary local regulation of
telecommunications providers and services;
E. Encourage the provision of advanced and
competitive telecommunications services on the
widest possible basis to the businesses, institutions
and residents of the city and the region;
F. Permit and manage reasonable access to the
rights -of -way of the city for telecommunications
purposes on a competitively neutral basis;
G. Conserve the limited physical capacity of
the rights -of -way of the city;
H. Assure that the city's current and ongoing
costs of granting and regulating private access to
and use of the rights -of -way are fully paid by the
persons seeking such access and causing such
costs;
I. Secure fair and reasonable compensation to
the city for permitting private use of the rights -of -
way;
J. Assure that all telecommunications carriers
providing facilities or services within the city com-
19-3
ply with the ordinances, rules and regulations of
the city; and
K. Enable the city to discharge its public trust
consistent with rapidly evolving federal and state
regulatory policies, industry competition and tech-
nological development. (Ord. 692 § 1, 2001)
19.02.020 Definitions.
The following words and phrases shall have the
following meanings, unless the context of the sen-
tence in which they are used shall indicate other-
wise:
"Affiliate" means a person who (directly or indi-
rectly) owns or controls, is owned or controlled by,
or is under common ownership or control with
another person;
"Applicant" means any person or entity that
applies for any authorization, franchise, lease, or
permit pursuant to this title;
"Cable Act" means the Cable Communications
Policy Act of 1984 and the Cable Television Con-
sumer Protection and Competition Act of 1992;
"Cable facilities" means equipment and wiring
used to transmit audio and video signals to sub-
scribers;
"Cable operator" means a telecommunications
carrier providing or offering to provide "cable ser-
vice" within the city as that term is defined in the
Cable Act;
"Cable service," for the purpose of this title,
shall have the same meaning provided by the Cable
Act;
"Cable system" means a facility, consisting of a
set of closed transmission paths and associated sig-
nal generation, reception, and control equipment
that is designed to provide cable service and other
service to subscribers;
"City" means the city of Medina, Washington;
"City property" means and includes all real
property owned by the city, other than public
streets and utility easements as those terms are
defined herein, and all property held in a propri-
etary capacity by the city, which are not subject to
right-of-way licensing and franchising;
"Council" means the city council of the city of
Medina, Washington acting in its official capacity;
"Data communication" means:
1. The transmission of encoded information,
or
2. The transmission of data from one point to
another;
"Emergency" means a condition of imminent
danger to the health, safety, and welfare of prop-
erty or persons located within the city including,
19.02.020
without limitation, damage to persons or property
from natural consequences, such as storms, earth-
quakes, riots or wars;
"Excess capacity" means the volume or capacity
in any existing or future duct, conduit, manhole,
handhole or other utility facility within the public
way that is or will be available for use for addi-
tional telecommunications facilities;
"FCC" or "Federal Communications Commis-
sion" means the federal administrative agency, or
lawful successor, authorized to regulate and over-
see telecommunications carriers, services and pro-
viders on a national level;
"Fiber optics" means the technology of guiding
and projecting light for use as a communications
medium;
"Franchise" shall mean the initial authorization,
or renewal thereof, approved by an ordinance of
the city, which authorizes the franchisee to con-
struct, install, operate, or maintain telecommunica-
tions facilities in, under, over, or across rights -of -
way of the city and to also provide telecommunica-
tions service to persons or areas in the city;
"Franchisee" means the person, firm or corpora-
tion to whom or which a franchise, as defined in
this section, is granted by the council under this
title and the lawful successor, transferee or
assignee of said person, furn or corporation subject
to such conditions as may be defined in this title•,
"Open video system" or "OVS" refers to a facil-
ity consisting of a set of transmission paths and
associated signal generation, reception, and control
equipment that is designed to provide cable ser-
vice, which is provided to multiple subscribers
within a community, and which the Federal Com-
munications Commission or its successors has cer-
tified as compliant with Part 76 of its rules, 47
C.F.R., Part 76, as amended from time -to -time;
"Operator" means the person, firm or corpora-
tion to whom a franchise is granted pursuant to the
provisions of this title;
"Overhead facilities" means utility poles, utility
facilities and telecommunications facilities located
above the surface of the ground, including the
underground supports and foundations for such
facilities;
"Person" means and includes corporations,
companies, associations, joint stock companies or
associations, firms, partnerships, limited liability
companies and individuals and includes their les-
sors, trustees and receivers;
"Property of franchisee" means all property
owned, installed or used by a franchisee in the con-
19-4
duct of its business in the city under the authority
of a franchise granted pursuant to this title;
"Proposal" means the response, by an individual
or organization, to a request by the city regarding
the provision of cable services; or an unsolicited
plan submitted by an individual or organization
seeking to provide cable services in the city;
"Right-of-way" means land acquired or dedi-
cated for public roads and streets, but does not
include state highways or land dedicated for roads,
streets and highways not opened and not improved
for motor vehicle use by the public;
"State" means the state of Washington;
"Surplus space" means that portion of the usable
space on a utility pole which has. the necessary
clearance from other pole users, as required by the
federal or state orders and regulations, to allow its
use by a telecommunications carrier for a pole
attachment;
"Telecommunications carrier" means and
includes every person that directly or indirectly
owns, controls, operates or manages plant, equip-
ment or property within the city, used or to be used
for the purpose of offering telecommunications
service;
"Telecommunications facilities" means the
plant, equipment and property, including but not
limited to, cables, wires, conduits, ducts, pedestals,
antennas, electronics and other appurtenances used
or to be used to transmit, receive, distribute, pro-
vide or offer telecommunications services;
"Telecommunications provider" means and
includes every person who provides telecommuni-
cations services over telecommunications facilities
without any ownership or management control of
the facilities;
"Telecommunications service" means the pro-
viding or offering for rent, sale or lease, or in
exchange for other value received, of the transmit-
tal of voice, data, image, graphic and video pro-
gramming information between or among points
by wire, cable, fiber optics, laser, microwave,
radio, satellite or similar facilities, with or without
benefit of any closed transmission medium;
"Telecommunications system" see "telecom-
munications facilities";
"Underground facilities" means utility and tele-
communications facilities located under the sur-
face of the ground, excluding the underground
foundations or supports for overhead facilities;
"Universal service" means a level of and defini-
tion of telecommunications services as the term is
defined by the FCC through its authority granted
pursuant to Section 254 of the Act;
Medina Municipal Code
"Usable space" means the total distance
between the top of a utility pole and the lowest pos-
sible attachment point that provides the minimum
allowable vertical clearance as specified in any
federal or state orders and regulations;
"Utility facilities" means the plant, equipment
and property, including but not limited to the poles,
pipes, mains, conduits, ducts, cables, wires, plant
and equipment located under, on or above the sur-
face of the ground within the rights -of -way of the
city and used or to be used for the purpose of pro-
viding utility or telecommunications services.
(Ord. 692 § 1, 2001)
19.02.030 Telecommunications right-of-way
use authorization required.
Except as otherwise provided herein, any tele-
communications carrier who desires to construct,
install, operate, maintain, or otherwise locate tele-
communications facilities in, under, over or across
any public way of the city for the sole purpose of
providing telecommunications service to persons
and areas outside the city shall first obtain a tele-
communications right-of-way use authorization
granting the use of such rights -of -way from the city
pursuant to Chapter 19.04 MMC. (Ord. 692 § 1,
2001)
19.02.040 Telecommunications franchise
required.
Except as otherwise provided herein, any tele-
communications carrier who desires to construct,
install, operate, maintain or otherwise locate tele-
communications facilities in, under, over or across
any public way of the city, and to also provide tele-
communications service to persons or areas in the
city, shall first obtain a telecommunications fran-
chise granting the use of such rights -of -way from
the city pursuant to Chapter 19.06 MMC. (Ord. 692
§ 1, 2001)
19.02.050 Cable television franchise required.
Except as otherwise provided herein, any tele-
communications carrier or other person who
desires to construct, install, operate, maintain or
locate cable or telecommunications facilities in any
public way in the city for the purpose of providing
cable service to persons in the city shall first obtain
a cable franchise from the city. Said franchises
shall be negotiated on a case -by -case basis taking
into account the terms and provisions of existing
such franchises and the requirements of the Cable
Acts of 1984 and 1992; provided, however, unless
otherwise authorized or exempted by the terms of
19-5
19.02.090
an unexpired franchise, lease or agreement, cable
service operators shall comply with the relevant
provisions of Chapters 19.10 and 19.12 MMC.
(Ord. 692 § 1, 2001)
19.02.060 Facilities lease required.
No telecommunications carrier or other entity
who desires to locate telecommunications or other
equipment on city property shall locate such facil-
ities or equipment on city property unless granted
a facilities lease from the city pursuant to Chapter
19.08 MMC. The city council reserves unto itself
the sole discretion to lease city property for tele-
communications and other facilities, and no vested
or other right shall be created by any provision of
this title. (Ord. 692 § 1, 2001)
19.02.070 Construction permits required.
Except as otherwise provided herein, the holder
of an authorization, franchise, or lease granted pur-
suant to this title, and the holders of cable fran-
chises granted by the city, and telecommunication
providers claiming to have a state-wide grant to oc-
cupy the rights -of -way, shall, in addition to said au-
thorization, franchise, or lease, be required to
obtain a construction permit from the city pursuant
to Chapter 19.12 MMC. No work, construction, de-
velopment, excavation, or installation of any equip-
ment or facilities shall take place within the rights -
of -way or upon city property until such time as the
construction permit is issued. (Ord. 692 § 1, 2001)
19.02.080 Application to existing franchise
ordinances, agreements, leases, and
permits — Effect of other laws.
A. These provisions shall have no effect on any
existing franchise ordinance, franchise agreement,
lease, permit, or other authorization to use or
occupy a public way in the city until:
1. The expiration of said franchise ordinance,
agreement, lease, permit, or authorization; or
2. An amendment to an unexpired franchise
ordinance, franchise agreement, lease, permit, or
authorization that has been approved, unless both
parties agree to defer full compliance to a specific
date not later than the present expiration date.
B. Nothing in these provisions shall be deemed
to create an obligation upon any person for which
the city is forbidden to require pursuant to federal,
state, or other law. (Ord. 692 § 1, 2001)
19.02.090 Universal service.
Except as otherwise provided herein, all cable
operators, telecommunications carriers, and tele-
19.02.100
communications providers engaged in the business
of transmitting, supplying or furnishing telecom-
munications service of any kind originating or ter-
minating in the city are subject to the city's right,
which is expressly reserved, to require said opera-
tor, carrier, or provider to make an equitable and
nondiscriminatory contribution to the preservation
and advancement of universal service to the extent
permitted by state and federal law. (Ord. 692 § 1,
2001)
19.02.100 General penalties.
A. Civil Penalty.
1. Any person, and the officers, directors,
managing agents, or partners of any corporation,
firm, partnership or other organization or business
violating or failing to comply with any of the pro-
visions of this title shall be subject to a penalty in
an amount not less than $100.00 nor more than
$1,000 per day for each violation from the date set
for compliance until compliance with the order is
achieved.
2. In addition to any penalty which may be
imposed by the city, any person violating or failing
to comply with any of the provisions of this title
shall be liable for all damage to public or private
property arising from such violation, including the
cost of restoring the affected area in accordance
with the city's development guidelines.
3. The penalty imposed by this section shall
be collected by civil action brought by the city
attorney.
B. Criminal Penalty. Any person, and the offic-
ers, directors, managing agents, or partners of any
corporation, firm, partnership or other organization
or business violating or failing to comply with any
of the applicable provisions of this title shall be
subject to criminal prosecution and upon convic-
tion of such violation shall be fined in a sum not
exceeding $5,000 or be imprisoned for a term not
exceeding one year or be both fined and impris-
oned. Each day of noncompliance with any of the
applicable provisions of the title shall constitute a
separate offense.
C. Additional Relief. The city may seek legal or
equitable relief to enjoin any acts or practices and
abate any condition which constitutes or will con-
stitute a violation of the applicable provisions of
this title when civil or criminal penalties are inade-
quate to effect compliance. In addition to the pen-
alties set forth in this section, violation of the terms
of this title may also result in the revocation of any
authorization, franchise, approval, lease, or permit
19-6
issued or granted hereunder, as set forth in this title.
(Ord. 692 § 1, 2001)
19.02.110 Initial inquiry/responsibilities.
Initial inquiries regarding cable television and
telecommunications franchises, telecommunica-
tions right-of-way authorizations or facilities leases
shall be directed to the city manager or designee for
determination of which type or types of agreements
and permits are required. The city manager or des-
ignee shall have lead responsibility for negotiating
authorizations, franchises and leases. (Ord. 692 § 1,
2001)
19.02.120 Other remedies.
Nothing in this chapter shall be construed as
limiting any judicial remedies that the city may
have, at law or in equity, for enforcement of this
title. (Ord. 692 § 1, 2001)
19.02.130 Fees and compensation not a tag.
The fees, charges and fines provided for in this
title and any compensation charged and paid for
the rights -of -way provided for herein, whether
financial or in -kind, are separate from, and addi-
tional to, any and all federal, state, local, and city
taxes as may be levied, imposed or due from a tele-
communications carrier or provider, its customers
or subscribers or on account of the lease, sale,
delivery or transmission of telecommunications
services. (Ord. 692 § 1, 2001)
Medina Municipal Code 19.04.020
Chapter 19.04
TELECOMMUNICATIONS RIGHT-OF-
WAY USE AUTHORIZATIONS
Sections:
19.04.010
Telecommunications right-of-way use
authorization.
19.04.020
Telecommunications right-of-way use
authorization application.
19.04.030
Issuance/denial of
telecommunications right-of-way use
authorization.
19.04.040
Appeal of city manager's decision.
19.04.050
Agreement.
19.04.060
Nonexclusive grant.
19.04.070
Rights granted.
19.04.080
Term of telecommunications right-of-
way use authorization.
19.04.090
Specified route.
19.04.100
Service to city users.
19.04.110
Compensation to the city.
19.04.120
Amendment of authorization.
19.04.130
Renewal of telecommunications right-
of-way use authorization.
19.04.140
Standards for renewal of
authorization.
19.04.150
Obligation to cure as a condition of
renewal.
19.04.160
Universal service.
19.04.170
Annual fee for recovery of city costs.
19.04.180
Other city costs.
19.04.010 Telecommunications right-of-way
use authorization.
A telecommunications right-of-way use authori-
zation shall be required of any telecommunications
carrier or provider who desires to occupy specific
rights -of -way of the city for the sole purpose of
providing telecommunications services to persons
or areas outside the city. (Ord. 692 § 2, 2001)
19.04.020 Telecommunications right-of-way
use authorization application.
Any person that desires a telecommunications
right-of-way use authorization pursuant to this
chapter shall file an application with the city clerk
which shall include the following information:
A. The name of the applicant, including all
affiliates of the applicant;
B. A description of the telecommunications
services that are or will be offered or provided by
the applicant over its telecommunications facili-
ties;
19-7
C. A description of the transmission medium
that will be used by the applicant to offer or pro-
vide such telecommunications services;
D. Preliminary engineering plans, specifica-
tions and a network map of the facilities to be lo-
cated within the city, all in sufficient detail to
identify:
1. The location and route requested for appli-
cant's proposed telecommunications facilities;
2. The location of all overhead and under-
ground public utility, telecommunication, cable,
water, sewer drainage and other facilities in the
public way along the proposed route;
3. The location(s), if any, for interconnection
with the telecommunications facilities of other
telecommunications carriers; and
4. The specific trees, structures, improve-
ments, facilities and obstructions, if any, that appli-
cant proposes to temporarily or permanently
remove or relocate;
E. If applicant is proposing to install overhead
facilities, evidence that surplus space is available
for locating its telecommunications facilities on
existing utility poles along the proposed route;
F. If applicant is proposing an underground
installation in existing ducts or conduits within the
rights -of -way, information in sufficient detail to
identify:
1. The excess capacity currently available in
such ducts or conduits before installation of appli-
cant's telecommunications facilities;
2. The excess capacity, if any, that will exist
in such ducts or conduits after installation of appli-
cant's telecommunications facilities; and
3. Evidence of ownership or a right to use
such ducts or conduits;
G. If applicant is proposing an underground
installation within new ducts or conduits to be con-
structed within the rights -of -way:
1. The location proposed for the new ducts or
conduits; and
2. The excess capacity that will exist in such
ducts or conduits after installation of applicant's
telecommunications facilities;
H. A preliminary construction schedule and
completion date;
I. Information to establish that the applicant has
obtained all other governmental approvals and per-
mits to construct and operate the facilities, and to
offer or provide the telecommunications services,
including, but not limited to, evidence that the
applicant has registered with the Washington Util-
ities and Transportation Commission or is not
required to so register;
19.04.030
J. All deposits or charges required pursuant to
this chapter; and
K. An application fee which shall be set by the
city council by resolution. (Ord. 692 § 2, 2001)
19.04.030 Issuance/denial of
telecommunications right-of-way
use authorization.
Within 120 days after receiving a complete
application, the city manager or designee shall
issue a written determination granting or denying
the authorization in whole or in part. The 120-day
limitation may be waived by the applicant and shall
not apply if action by the city council is requested.
If the authorization is denied, the written determi-
nation shall include the reason(s) for denial. The
decision to grant or deny an application for a tele-
communications right-of-way use authorization
shall be based upon the following standards:
A. Whether the applicant has received all requi-
site licenses, certificates, and authorizations from
the Federal Communications Commission, the
Washington Utilities and Transportation Commis-
sion, and any other federal or state agency with
jurisdiction over the activities proposed by the
applicant;
B. The capacity of the rights -of -way to accom-
modate the applicant's proposed facilities;
C. The capacity of the rights -of -way to accom-
modate additional utility, cable, and telecommuni-
cations facilities if the authorization is granted;
D. The damage or disruption, if any, of public
or private facilities, improvements, service, travel
or landscaping if the authorization is granted and
efforts proposed to mitigate such damages or dis-
ruption;
E. The public interest in minimizing the cost
and disruption of construction within the rights -of -
way;
F. Applicant's proposed compliance with the
city's development guidelines;
G. The effect, if any, on public health, safety
and welfare if the authorization is granted;
H. The availability of alternate routes and/or
locations for the proposed facilities;
I. Such other factors as may demonstrate that
the grant to use the rights -of -way will or will not
serve the community interest. (Ord. 692 § 2, 2001)
19.04.040 Appeal of city manager's decision.
Any person aggrieved by the granting or deny-
ing of a telecommunications right-of-way authori-
zation or the renewal thereof pursuant to this
19-8
chapter shall have the right to appeal to the board
of adjustment as,follows:
A. All appeals filed pursuant to this section
must be filed in writing with the city clerk within
10 days of the date of the decision appealed from;
B. All appeals filed pursuant to this section
shall specify the error of law or fact, or new evi-
dence which could not have been reasonably avail-
able at the time of the city manager's decision,
which shall constitute the basis of the appeal;
C. Unless substantial relevant information is
presented which was not considered by the city
manager, such decision shall be accorded substan-
tial weight, but may be reversed or modified by the
board of adjustment if, after considering all of the
evidence in light of the applicable goals, policies,
and provisions of this title, the board of adjustment
determines that a mistake has been made. Where
substantial new relevant information which was
not considered in the making of the decision
appealed from has been presented, the board of
adjustment shall make its decision only upon the
basis of the facts presented at the hearing of the
appeal, or may elect to remand the matter for
reconsideration by the city manager in light of the
additional information. (Ord. 692 § 2, 2001)
19.04.050 Agreement.
No authorization shall be deemed to have been
granted hereunder until the applicant and the city
have executed a written agreement setting forth the
particular terms and provisions under which the
grantee has been granted the right to occupy and
use rights -of -way of the city. (Ord. 692 § 2, 2001)
19.04.060 Nonexclusive grant.
No authorization granted under this chapter
shall confer any exclusive right, privilege, license
or franchise to occupy or use the rights -of -way of
the city for delivery of telecommunications ser-
vices or any other purposes. (Ord. 692 § 2, 2001)
19.04.070 Rights granted.
No authorization granted under this chapter
shall convey any right, title or interest in the rights -
of -way, but shall be deemed an authorization only
to use and occupy the rights -of -way for the limited
purposes and term stated in the authorization. Fur-
ther, no authorization shall be construed as any
warranty of title. (Ord. 692 § 2, 2001)
Medina Municipal Code 19.04.170
19.04.080 Term of telecommunications right-
of-way use authorization.
Unless otherwise specified in an authorization,
no authorization granted hereunder shall be in
effect for a term exceeding five years. (Ord. 692
§ 2, 2001)
19.04.090 Specified route.
A telecommunications right-of-way use authori-
zation granted under this chapter shall be limited to
a grant for use of specific rights -of -way and
defined portions thereof. (Ord. 692 § 2, 2001)
19.04.100 Service to city users.
A grantee shall be permitted to offer or provide
telecommunications services to persons or areas
within the city upon approval of an application for
a telecommunications franchise pursuant to Chap-
ter 19.06 MMC. (Ord. 692 § 2, 2001)
19.04.110 Compensation to the city.
Each authorization granted pursuant to this
chapter is subject to the city's right under the 1996
Federal Telecommunications Act, which is ex-
pressly reserved, to annually fix a fair and reason-
able compensation to be paid for the right to occupy
and use the rights -of -way of the city granted under
such authorization; provided, that nothing in this
chapter shall prohibit the city and a grantee from
agreeing to the compensation to be paid; provided
further, that the compensation required from any
telecommunications provider shall be consistent
with state law. (Ord. 692 § 2, 2001)
19.04.120 Amendment of authorization.
A new application shall be required of any tele-
communications carrier or provider who desires to
extend or locate its telecommunications facilities
in rights -of -way of the city which are not included
in an authorization previously granted under this
title. If ordered by the city to locate or relocate its
telecommunications facilities in rights -of -way not
included in a previously granted authorization, the
city shall grant an amendment to the authorization
without further application. (Ord. 692 § 2, 2001)
19.04.130 Renewal of telecommunications
right-of-way use authorization.
A grantee that desires to renew its authorization
under this chapter for an additional term shall, not
more than 180 days nor less than 90 days before
expiration of the current authorization, file an
application with the city for renewal which shall
include the following:
19-9
A. The information required pursuant to MMC
19.04.020;
B. Any information required pursuant to the
authorization agreement between the city and the
grantee;
C. All deposits or charges required pursuant to
this chapter; and
D. An application fee which shall be set by the
city council by resolution. (Ord. 692 § 2, 2001)
19.04.140 Standards for renewal of
authorization.
Within 90 days after receiving a complete appli-
cation for renewal, the city manager or designee
shall issue a written determination granting or
denying the renewal application in whole or in part.
If the renewal application is denied, the written
determination shall include the reason(s) for
denial. The decision to grant or deny an application
for the renewal of a telecommunications right-of-
way use authorization shall, in addition to the stan-
dards set forth in MMC 19.04.030, be based upon
the following standards:
A. The continuing capacity of the rights -of -way
to accommodate the applicant's existing facilities;
and
B. The applicant's compliance with the require-
ments of this title and the authorization. (Ord. 692
§ 2, 2001)
19.04.150 Obligation to cure as a condition of
renewal.
No authorization shall be renewed until any
ongoing violations or defaults in the grantee's per-
formance under the authorization, or of the require-
ments of this title, have been cured, or a plan
detailing the corrective action to be taken by the
grantee has been approved by the city manager.
(Ord. 692 § 2, 2001)
19.04.160 Universal service.
Each telecommunications right-of-way use
authorization granted under this chapter is subject
to the city's right, which is expressly reserved, to
require the telecommunication carrier or provider
to make an equitable and nondiscriminatory contri-
bution to the preservation and advancement of uni-
versal service to the extent permitted by state and
federal law. (Ord. 692 § 2, 2001)
19.04.170 Annual fee for recovery of city costs.
Each authorization granted under this chapter is
subject to the city's right, which is expressly
reserved, to annually fix a fair and reasonable com-
19.04.180
pensation to be paid as reimbursement for the
city's costs in connection with reviewing, inspect-
ing and supervising the use and occupancy of the
rights -of -way on behalf of the public and existing
or future users. (Ord. 692 § 2, 2001)
19.04.180 Other city costs.
All grantees shall, within 30 days after written
demand, reimburse the city for all direct and indi-
rect costs, expenses and consultant fees incurred by
the city in connection with any modification,
amendment, renewal or transfer of the authoriza-
tion or any authorization agreement. In addition, all
grantees shall, within 30 days after written demand,
reimburse the city for any and all costs the city rea-
sonably incurs in response to any emergency in-
volving the grantee's telecommunications facili-
ties. All grantees shall, within 30 days after written
demand, reimburse the city for the grantee's pro-
portionate share of all actual, identified expenses
incurred by the city in planning, constructing, in-
stalling, repairing or altering any city facility as a
result of the construction or the presence in the
right-of-way of the grantee's telecommunications
facilities. (Ord. 692 § 2, 2001)
19-10
Chapter 19.06
TELECOMMUNICATIONS FRANCHISE
Sections:
19.06.010
Telecommunications franchise.
19.06.020
Franchise application.
19.06.030
Determination by the city.
19.06.040
Agreement.
19.06.050
Nonexclusive grant.
19.06.060
Term of franchise grant.
19.06.070
Rights granted.
19.06.080
Franchise territory.
19.06.090
Compensation to the city.
19.06.100
Nondiscrimination.
19.06.110
Amendment of franchise grant.
19.06.120
Renewal application.
19.06.130
Renewal determination.
19.06.140
Obligation to cure as a condition of
renewal.
19.06.150
Universal service.
19.06.160
Annual fee for recovery of city costs.
19.06.170
Other city costs.
19.06.010 Telecommunications franchise.
A telecommunications franchise shall be
required of any telecommunications provider or
carrier or other person who currently occupies or
desires in the future to occupy rights -of -way of the
city and to provide telecommunications services to
any person or area in the city; provided, however,
that no franchise shall be required for de minimis
uses of rights -of -way made in conjunction with the
placement of a wireless telecommunications facil-
ity. (Ord. 692 § 3, 2001)
19.06.020 Franchise application.
Any person who desires a telecommunications
franchise pursuant to this chapter shall file an
application with the city clerk which, in addition to
the information required by MMC 19.04.020, shall
include the following:
A. Whether the applicant intends to provide ca-
ble service, video dialtone service, other video pro-
gramming service or telecommunication services,
and sufficient information to determine whether
such service is subject to cable franchising;
B. An accurate map showing the location of
any existing telecommunications facilities in the
city that applicant intends to use or lease;
C. A description of the services or facilities that
the applicant will offer or make available to the city
and other public, educational and governmental
institutions;
Medina Municipal Code
D. A description of applicant's access and line
extension policies;
E. The area or areas of the city the applicant
desires to serve and a schedule for build -out to the
entire franchise area;
F. All fees, deposits or charges required pursu-
ant to this chapter;
G. Such other and further information as may
be requested by the city; and
H. An application fee which shall be set by the
city council by resolution. (Ord. 692 § 3, 2001)
19.06.030 Determination by the city.
Within 120 days after receiving a complete
application under MMC 19.06.020, unless addi-
tional time is reasonably necessary for action by
the city council, the city shall issue a written deter-
mination granting or denying the application in
whole or in part. Prior to granting or denying a
franchise under this chapter, the city council shall
conduct a public hearing and make a decision
based upon the standards set forth below. Pursuant
to RCW 35A.47.040, the city council shall not
approve any franchise hereunder until the next reg-
ularly scheduled council meeting following the
public hearing. If the application is denied, a writ-
ten determination shall be included setting forth the
reason for denial:
A. Whether the applicant has received all requi-
site licenses, certificates, and authorizations from
the Federal Communications Commission, the
Washington Utilities and Transportation Commis-
sion, and any other federal or state agency with ju-
risdiction over the activities proposed by the
applicant;
B. The capacity of the rights -of -way to accom-
modate the applicant's proposed facilities;
C. The capacity of the rights -of -way to accom-
modate additional utility and telecommunications
facilities if the franchise is granted;
D. The damage or disruption, if any, of public
or private facilities, improvements, service, travel
or landscaping if the franchise is granted;
E. The public interest in minimizing the cost
and disruption of construction within the rights -of -
way;
F. Applicant's proposed compliance with all
applicable development guidelines;
G. The effect, if any, on public health, safety
and welfare if the franchise requested is granted;
H. The availability of alternate routes and/or
locations for the proposed facilities;
19.06.090
I. Such other factors as may demonstrate that
the grant to use the rights -of -way will or will not
serve the community interest. (Ord. 692 § 3, 2001)
19.06.040 Agreement.
No telecommunications franchise shall be
deemed to have been granted hereunder until the
applicant and the city have executed a written fran-
chise agreement setting forth the particular terms
and provisions under which the franchisee has been
granted the right to occupy and use rights -of -way
of the city. If the city determines it is in the public
interest, the city and a franchisee may enter into an
agreement that differs from one or more specific
provisions of this chapter. (Ord. 692 § 3, 2001)
19.06.050 Nonexclusive grant.
No franchise granted under this chapter shall
confer any exclusive right, privilege, license or
franchise to occupy or use the rights -of -way of the
city for delivery of telecommunications services or
any other purposes. (Ord. 692 § 3, 2001)
19.06.060 Term of franchise grant.
Unless otherwise specified in a franchise agree-
ment, a telecommunications franchise granted
hereunder shall be valid for a term of five years.
(Ord. 692 § 3, 2001)
19.06.070 Rights granted.
No franchise granted under this chapter shall
convey any right, title or interest in the rights -of -
way, but shall be deemed a franchise only to use
and occupy the rights -of -way for the limited pur-
poses and term stated in the grant. Further, no fran-
chise shall be construed as any warranty of title.
(Ord. 692 § 3, 2001)
19.06.080 Franchise territory.
Unless otherwise provided in the franchise
agreement, a telecommunications franchise grant-
ed under this chapter shall be limited to the specific
geographic area of the city to be served by the fran-
chisee, and the specific rights -of -way necessary to
serve such areas. (Ord. 692 § 3, 2001)
19.06.090 Compensation to the city.
Each franchise granted under this chapter is sub-
ject to the city's right under the 1996 Telecommu-
nications Act, which is expressly reserved, to
annually fix a fair and reasonable compensation to
be paid for the franchise rights granted to the fran-
chisee; provided, that nothing in this chapter shall
prohibit the city and a franchisee from agreeing to
19.06.100
the compensation to be paid; provided, further, that
the compensation required from any telecommuni-
cations provider or carrier shall be consistent with
state law. (Ord. 692 § 3, 2001)
19.06.100 Nondiscrimination.
A franchisee which purports to serve the general
public shall make its telecommunications services
available to any customer within its franchise area
who shall request such service, without discrimina-
tion as to the terms, conditions, rates or charges for
the franchisee's services; provided, however, that
nothing in this title shall prohibit a franchisee from
making any reasonable classifications among dif-
ferently situated customers. (Ord. 692 § 3, 2001)
19.06.110 Amendment of franchise grant.
Except as otherwise provided within a franchise
agreement, a new franchise application and grant
shall be required of any telecommunications car-
rier or provider that desires to extend its franchise
territory or to locate its telecommunications facili-
ties in rights -of -way of the city which are not
included in a franchise previously granted under
this chapter. If ordered by the city to locate or relo-
cate its telecommunications facilities in rights -of -
way not included in a previously granted franchise,
the city shall grant a franchise amendment without
further application. (Ord. 692 § 3, 2001)
19.06.120 Renewal application.
A franchisee that desires to renew its franchise
under this chapter for an additional term shall, not
more than 180 days nor less than 120 days before
expiration of the current franchise, file an applica-
tion with the city for renewal of its franchise which
shall include the following:
A. The information required pursuant to MMC
19.06.020;
B. Any information required pursuant to the
franchise agreement between the city and the
grantee;
C. All deposits or charges required pursuant to
this chapter; and
D. An application fee which shall be set by the
city council by resolution. (Ord. 692 § 3, 2001)
19.06.130 Renewal determination.
Within 120 days after receiving a complete
application for renewal under MMC 19.06.120,
unless additional time is reasonably necessary for
action by the city council, the city shall issue a
written determination granting or denying the
renewal application in whole or in part. Prior to
19-12
granting or denying renewal of a franchise under
this chapter, the city council shall conduct a public
hearing and make a decision based upon the stan-
dards set forth below. If the renewal application is
denied, the written determination shall include the
reasons for nonrenewal.
A. The continuing capacity of the rights -of -way
to accommodate the applicant's existing facilities.
B. The applicant's compliance with the require-
ments of this chapter and the franchise agreement.
C. Applicable federal, state and local telecom-
munications laws, rules and policies.
D. Such other factors as may demonstrate that
the continued grant to use the rights -of -way will or
will not serve the community interest. (Ord. 692
§ 3, 2001)
19.06.140 Obligation to cure as a condition of
renewal.
No franchise shall be renewed until any ongoing
violations or defaults in the franchisee's perfor-
mance of the franchise agreement, or of the
requirements of this title, have been cured, or a
plan detailing the corrective action to be taken by
the franchisee has been approved by the city. (Ord.
692 § 3, 2001)
19.06.150 Universal service.
Each franchise granted under this chapter is sub-
ject to the city's right under the 1996 Telecommu-
nications Act, which is expressly reserved, to
require the franchisee to make an equitable and
nondiscriminatory contribution to the preservation
and advancement of universal service to the extent
permitted by state and federal law. (Ord. 692 § 3,
2001)
19.06.160 Annual fee for recovery of city costs.
Subject to the 1996 Telecommunications Act,
each franchise granted under this chapter is subject
to the city's right, which is expressly reserved, to
annually fix a fair and reasonable compensation to
be paid as reimbursement for the city's costs in
connection with reviewing, inspecting and super-
vising the use and occupancy of the rights -of -way
on behalf of the public and existing or future users.
(Ord. 692 § 3, 2001)
19.06.170 Other city costs.
All franchisees shall, within 30 days after written
demand, reimburse the city for all direct and indi-
rect costs, expenses and consulting fees incurred by
the city in connection with any modification,
amendment, renewal or transfer of the franchise or
Medina Municipal Code 19.07.020
any franchise agreement. In addition, all franchi-
sees shall, within 30 days after written demand, re-
imburse the city for any and all costs the city
reasonably incurs in response to any emergency in-
volving the franchisee's telecommunications facil-
ities. Finally, all franchisees shall, within 30 days
after written demand, reimburse this city for the
franchisee's proportionate share of all actual, iden-
tified expenses incurred by the city in planning,
constructing, installing, repairing or altering any
city facility as a result of the presence in the right-
of-way of the franchisee's telecommunications fa-
cilities. (Ord. 692 § 3, 2001)
19-13
Chapter 19.07
SPECIAL RULES APPLICABLE TO
OPEN VIDEO SYSTEMS
Sections:
19.07.010 Open video systems franchise
required.
19.07.020 Open video system franchise —
Contents of application for initial or
renewal franchise.
19.07.030 Applications for transfer.
19.07.040 City review.
19.07.050 Compensation.
19.07.060 Annual reports.
19.07.010 Open video systems franchise
required.
No person, partnership, corporation or other
entity shall offer open video system programming
or operate an open video system as defined in
MMC 19.02.020 without first obtaining a franchise
from the city of Medina. (Ord. 692 § 4, 2001)
19.07.020 Open video system franchise —
Contents of application for initial or
renewal franchise.
In order to obtain an initial or renewal franchise,
an operator of an open video system must apply for
a franchise. The application must contain the fol-
lowing information, and such information as the
city may from time to time require:
A. Identity of the applicant; the persons who
exercise working control over the applicant; and
the persons who control those persons, to the ulti-
mate parent.
B. A proposal for construction of the open
video system that includes at least the following:
1. A description of the services that are to be
provided over the facility;
2. Identification of the area of the city to be
served by the proposed system, including a
description of the proposed franchise area bound-
aries;
3. The location of the proposed facility and
facility design, including a description of the miles
of plant to be installed, and a description of the size
of equipment cabinets, shielding and electronics
that will be installed along the plant route, the
power sources that will be used and a description of
the noise, exhaust and pollutants, if any, that will
be generated by the operation of the same;
4. A map of the route the facility will follow;
a description of the portions of the system that will
19.07.030
be placed aboveground and the portions that will
be placed underground, and the construction tech-
niques that the operator proposes to use in install-
ing the system aboveground and underground; a
schedule for construction of the facility, describing
when and where construction will begin, how it
will proceed, and when it will be completed; and
the expected effect on right-of-way usage, includ-
ing information on the ability of the public rights -
of -way to accommodate the proposed system,
including, as appropriate given the system pro-
posed, an estimate of the availability of space in
conduits and an estimate of the cost of any neces-
sary rearrangement of existing facilities;
5. A description, where appropriate, of how
services will be converted from existing facilities
to new facilities, and what will be done with exist-
ing facilities;
6. Evidence satisfactory to the city that the
applicant has the financial resources to complete
the proposed project, and to construct, operate and
repair the proposed facility over the franchise term.
It is not the intent of the city to require an applicant
to prove that the services it proposes to offer will
succeed in the marketplace;
7. Evidence satisfactory to the city that
applicant is technically qualified to construct,
operate and repair the proposed facility. At a mini-
mum, the applicant must show that it has experi-
ence or resources to ensure that work is to be
performed adequately, and can respond to emer-
gencies during and after construction is complete;
8. Evidence satisfactory to the city that the
applicant is legally qualified, which proof must
include a demonstration that the applicant:
a. Has received, or is in a position to
receive, necessary authorizations from state and
federal authorities;
b. Has not engaged in conduct (fraud,
racketeering, violation of antitrust laws, consumer
protection laws, or similar laws) that allows the
city to conclude the applicant cannot be relied upon
to comply with requirements of franchise, or provi-
sions of this title;
c. Is willing to enter into a franchise, to
pay required compensation and to abide by the pro-
visions of applicable law, including those relating
to the construction, operation or maintenance of its
facilities, and has not entered into any agreement
that would prevent it from doing so;
9. An affidavit or declaration of the applicant
or authorized officer thereof certifying the truth
and accuracy of the information in the application,
19-14
and certifying that the application meets all
requirements of applicable law;
10. An application or renewal fee which
shall be set by the city council by resolution.
C. An applicant may show that it would be
inappropriate to deny it a franchise under subsec-
tion (B)(8)(b) of this section, by virtue of the par-
ticular circumstances surrounding the acts or
omissions at issue; the steps taken by the applicant
to cure all harms flowing therefrom and to prevent
their recurrence; and the lack of involvement of the
applicant's principals, or the remoteness of the acts
or omissions from the operation of open video sys-
tem facilities.
D. To the extent that the applicant is in any
respect relying on the financial or technical
resources of another person, including another
affiliate, the proofs required by subsections (B)(5)
through (13)(7) of this section should be provided
for that person. An applicant will be presumed to
have the requisite financial, or technical or legal
qualifications to the extent such qualifications have
been reviewed and approved by a state agency of
competent jurisdiction; or if applicant is a holder of
a franchise in the city for a cable system or open
video system, and conduct under such other fran-
chise provides no basis for additional investiga-
tion. (Ord. 692 § 4, 2001)
19.07.030 Applications for transfer.
An application for the transfer of an existing
franchise must contain the same information
required by MMC 19.07.020, except that, if the
transferor submitted an application under MMC
19.07.020, to the extent information provided by
the transferor under MMC 19.07.020(B) remains
accurate, the transferee may simply cross-refer-
ence the earlier application. (Ord. 692 § 4, 2001)
19.07.040 City review.
The city may. request such additional informa-
tion as it finds necessary, and require such modifi-
cations to the application as may be necessary in
the exercise of the city's authority over open video
systems. Once the information required by the city
has been provided, the application shall be subject
to review by the city and any approval will also be
subject to a city determination that:
A. The applicant has the qualifications to con-
struct, operate and repair the system proposed in
conformity with applicable law;
B. The applicant will accept the modifications
required by the city to its proposed system;
Medina Municipal Code 19.07.060
C. The applicant will enter into a franchise and
comply with any required conditions, including but
not limited to the obligation to establish intercon-
nections for provision of local access channels des-
ignated by the city;
D. In the case of a transfer, the approval is also
subject to a determination that:
1. There will be no adverse effect on the pub-
lic interest, or the city's interest in the franchise;
2. Transferee will agree to be bound by all
the conditions of the franchise and to assume all the
obligations of its predecessor; and
3. Any outstanding compliance and compen-
sation issues will be resolved to the satisfaction of
the city;
E. An applicant shall not be issued a franchise
if it files or has in the previous three years filed
materially inaccurate or misleading information in
a franchise application or intentionally withheld
information that the applicant lawfully is required
to provide. (Ord. 692 § 4, 2001)
19.07.050 Compensation.
Every operator of an open video system shall
pay compensation to the city in the amount set.
forth in the franchise, which amount shall be sub-
ject to annual adjustment.
To the extent that the open video system is used
for the provision of telecommunications services,
the open video system operator shall pay the fee
required for telecommunications providers. (Ord.
692 § 4, 2001)
19.07.060 Annual reports.
No later than 90 days after the end of its fiscal
year, a cable operator shall submit a written report
that shall contain such information as may be
required from time to time by the city, and at least
the following, unless the city waives the require-
ment:
A. A summary of the previous year's activities
in the development of the open video system,
including descriptions of services begun or discon-
tinued, the number of subscribers gained or lost for
each category of cable service;
B. A revenue report from the previous calendar
year for the open video system, certified by the
operator's chief financial officer;
C. An ownership report, including all persons
who at the time of filing control or own an interest
in the open video system operator of 10 percent or
more;
D. A list of officers and members of the board
of directors of the franchisee and any affiliates
19-15
directly involved in the operation or the mainte-
nance of the open video system;
E. A complete report on its plant. This plant
report shall state the physical miles of plant con-
struction and plant in operation during the prior
calendar year categorized as aerial and under-
ground, identify any cases where subscribers con-
tributed to plant extension, provide revisions to the
open video system maps filed with the city, and
report the results of appropriate electronic mea-
surements to show conformity with FCC technical
standards;
F. Once the information required by subsec-
tions (A) through (E) of this section has been filed,
it need be refiled only if it changes. (Ord. 692 § 4,
2001)
19.08.010
Chapter 19.08
FACILITIES LEASE
Sections:
19.08.010
Facilities lease.
19.08.020
Lease application.
19.08.030
Determination by the city.
19.08.040
Agreement.
19.08.050
Nonexclusive lease.
19.08.060
Term of facilities lease.
19.08.070
Rights granted.
19.08.080
Interference with other users.
19.08.090
Ownership and removal of
improvements.
19.08.100
Compensation to the city.
19.08.110
Amendment of facilities lease.
19.08.120
Renewal application.
19.08.130
Renewal determination.
19.08.140
Obligation to cure as a condition of
renewal.
19.08.010 Facilities lease.
The city council may, in its sole discretion which
is hereby reserved, approvefacilities leases for the
location of telecommunications facilities and other
facilities upon city property other than rights -of -
way. Neither this section, nor any other provision
of this title shall be construed to create an entitle-
ment or vested right in any person or entity of any
type. Facilities leases granted for the installation
and/or construction of wireless communications fa-
cilities shall also comply with the terms and provi-
sions of Chapter 17.90 MMC. (Ord. 692 § 5, 2001)
19.08.020 Lease application.
Any person that desires to solicit the city's
approval of a facilities lease pursuant to this chap-
ter shall file a lease proposal with the city's clerk
which, in addition to the information required by
MMC 19.04.020, shall include the following:
A. A description of the telecommunications
facilities or other equipment proposed to be located
upon city property;
B. A description of the city property upon
which the applicant proposes to locate telecommu-
nications facilities or other equipment;
C. Preliminary plans and specifications in suffi-
cient detail to identify:
1. The location(s) of existing telecommuni-
cations facilities or other equipment upon the city
property, whether publicly or privately owned;
19-16
2. The location and source of electric and
other utilities required for the installation and oper-
ation of the proposed facilities;
D. Accurate scale conceptual drawings and dia-
grams of sufficient specificity to analyze the aes-
thetic impacts of the proposed telecommunications
facilities or other equipment;
E. Whether the applicant intends to provide
cable service, video dialtone service or other video
programming service, and sufficient information to
determine whether such service is subject to cable
franchising;
F. An accurate map showing the location of any
existing telecommunications facilities in the city
that the applicant intends to use or lease;
G. A description of the services or facilities that
the applicant will offer or make available to the city
and other public, educational, and governmental
institutions;
H. Such other and further information as may
be requested by the city; and
I. An application fee which shall be set by the
city council by resolution. (Ord. 692 § 5, 2001)
19.08.030 Determination by the city.
Recognizing that the city is under no obligation
to grant a facilities lease for the use of city prop-
erty, the city shall strive to consider and take action
on applications for facilities leases within 120 days
after receiving a complete application for such a
lease unless additional time is reasonably neces-
sary for action by the city council. When such
action is taken, the city shall issue a written deter-
mination granting or denying the lease in whole or
in part, applying the standards set forth below, or
any other such criteria as the city council may
choose to apply. If the lease application is denied,
the determination shall include the reason for
denial, if any.
A. The capacity of the city property and rights -
of -way to accommodate the applicant's proposed
facilities;
B. The capacity of the city property and rights -
of -way to accommodate additional utility and tele-
communications facilities if the lease is granted;
C. The damage or disruption, if any, of public
or private facilities, improvements, service, travel
or landscaping if the lease is granted;
D. The public interest in minimizing the cost
and disruption of construction upon city property
and within the rights -of -way;
E. The service that applicant will provide to the
community and region;
Medina Municipal Code 19.08.090
F. The effect, if any, on public health, safety,
and welfare if the lease requested is approved;
G. The availability of alternate routes and/or
locations for the proposed facilities;
H. Whether the applicant is in compliance with
applicable federal and state telecommunications
laws, regulations and policies, including, but not
limited to, the registration requirements adminis-
tered by the Washington Utilities and Transporta-
tion Commission;
I. The potential for radio frequency and other
interference with existing public and private tele-
communications or other facilities located upon the
city property;
J. The potential for radio frequency and other
interference or impacts upon residential, commer-
cial, and other uses located within the vicinity of
the city property;
K. Such other factors, such as aesthetics, as
may demonstrate that the lease to use the city prop-
erty will or will not serve the community interest;
L. The maximization of co -location opportuni-
ties with other similar uses. (Ord. 692 § 5, 2001)
19.08.040 Agreement.
No facilities lease shall be deemed to have been
granted hereunder until the applicant and the city
have executed a written agreement setting forth the
particular terms and provisions under which the
lessee has been granted the right to occupy and use
the city property. (Ord. 692 § 5, 2001)
19.08.050 Nonexclusive lease.
No facilities lease granted under this chapter
shall confer any exclusive right, privilege, license,
or franchise to occupy or use city property for
delivery of telecommunications services or any
other purposes. (Ord. 692 § 5, 2001)
19.08.060 Term of facilities lease.
Unless otherwise specified in a lease agreement,
a facilities lease granted hereunder shall be valid
for a term of one year, subject to annual renewal as
provided in this chapter. (Ord. 692 § 5, 2001)
19.08.070 Rights granted.
No facilities lease granted under this chapter
shall convey any right, title or interest in the city
property, but shall be deemed a license only to use
and occupy the city property for the limited pur-
poses and term stated in the lease agreement. Fur-
ther, no facilities lease shall be construed as any
warranty of title. (Ord. 692 § 5, 2001)
19-17
19.08.080 Interference with other users.
No facilities lease shall be granted under this
chapter unless it contains a provision which is sub-
stantially similar to the following:
The City has previously entered into or
may enter into leases with other tenants
for their equipment and antenna facilities.
Lessee acknowledges that the City may
lease the City property for the purposes of
transmitting and receiving telecommunica-
tion signals from the City property. The
City, however, is not in any way responsi-
ble or liable for any interference with Les-
see's use of the City property which may
be caused by the use and operation of any
other tenant's equipment, even if caused
by new technology. In the event that any
other tenant's activities interfere with the
Lessee's use of the City property, and the
Lessee cannot work out this interference
with the other tenants, the Lessee may,
upon 30 days' notice to the City, terminate
this lease and restore the City property to
its original condition, reasonable wear and
tear excepted. The Lessee shall cooperate
with all other tenants to identify the causes
of and work towards the resolution of any
electronic interference problem. In addi-
tion, the Lessee agrees to eliminate any
radio or television interference caused to
City -owned facilities or surrounding resi-
dences at Lessee's own expense and
without installation of extra filters on City -
owned equipment. Lessee further agrees
to accept such interference as may be re-
ceived from City operated telecommunica-
tions or other facilities located upon the
City property subject to this lease.
(Ord. 692 § 5, 2001)
19.08.090 Ownership and removal of
improvements.
No facilities lease shall be granted under this
chapter unless it contains a provision which states
that all buildings, landscaping, and all other im-
provements, except telecommunications equip-
ment, shall become the property of the city upon
expiration or termination of the lease. In the event
that the city requires removal of such improve-
ments, such removal shall be accomplished at the
sole expense of the lessee and completed within 90
days after receiving notice from the city requiring
removal of the improvements. In the event that tele-
19.08.100
communications facilities or other equipment are
left upon city property after expiration or termina-
tion of the lease, they shall become the property of
the city if not removed by the lessee upon 30 days'
written notice from the city. (Ord. 692 § 5, 2001)
19.08.100 Compensation to the city.
Each facilities lease granted under this chapter is
subject to the city's right, which is expressly
reserved, to annually fix a fair and reasonable com-
pensation to be paid for the rights granted to the
lessee; provided, nothing in this title shall prohibit
the city and a lessee from agreeing to the compen-
sation to be paid. Such compensation shall be pay-
able in advance of the effective date of the lease
and on or before January 31 st of each calendar
year. Any payments received after the due date
shall include a late payment penalty of two percent
of the annual rental fee for each day or part thereof
past the due date. The compensation shall be nego-
tiated by the city manager or designee, subject to
the city council's final approval, based on the fol-
lowing criteria:
A. Comparable lease rates for other public or
private property;
B. In the case land is leased, the value of the
land and any associated air space;
C. If structure of another user is involved, any
amount needed to reimburse that user, in addition
to the above;
D. A yearly escalator rate commonly used in
comparable leases;
E. Any unique characteristics of the leased area
tending to affect the value of the leasehold. (Ord.
692 § 5, 2001)
19.08.110 Amendment of facilities lease.
Except as provided within an existing lease
agreement, a new lease application and lease agree-
ment shall be required of any telecommunications
carrier or other entity that desires to expand, mod-
ify, or relocate its telecommunications facilities or
other equipment located upon city property. If or-
dered by the city to locate or relocate its telecom-
munications facilities or other equipment on the
city property, the city shall grant a lease amend-
ment without further application. (Ord. 692 § 5,
2001)
19.08.120 Renewal application.
A lessee that desires to renew its facilities lease
under this chapter shall, not more than 180 days
nor less than 120 days before expiration of the cur-
rent facilities lease, file an application with the city
19-18
for renewal of its facilities lease which shall
include the following:
A. The information required pursuant to MMC
19.08.020;
B. Any information required pursuant to the
facilities lease agreement between the city and the
lessee;
C. All deposits or charges required pursuant to
this chapter; and
D. A renewal fee which shall be set by the city
council by resolution. (Ord. 692 § 5, 2001)
19.08.130 Renewal determination.
Recognizing that the city is under no obligation
to grant a renewal of a facilities lease for the use of
city property, the city shall strive to consider and
take action on applications for renewal of such
leases within 60 days after receiving a complete
application for such a lease renewal unless addi-
tional time is reasonably necessary for action by
the city council. When such action is taken, the city
shall issue a written determination granting or
denying the lease renewal in whole or in part,
applying the standards set forth below, or any other
such criteria as the city council may choose to
apply. If the renewal application is denied, the
written determination shall include the reason for
denial, if any:
A. The financial and technical ability of the
applicant;
B. The legal ability of the applicant;
C. The continuing capacity of the city property
to accommodate the applicant's existing facilities;
D. The applicant's compliance with the require-
ments of this chapter and the lease agreement;
E. Applicable federal, state and local telecom-
munications laws, rules and policies;
F. Such other factors as may demonstrate that
the continued grant to use the city property ways
will or will not serve the community interest. (Ord.
692 § 5, 2001)
19.08.140 Obligation to cure as a condition of
renewal.
No facilities lease shall be renewed until any
ongoing violations or defaults in the lessee's per-
formance of the lease agreement, or of the require-
ments of this title, have been cured, or a plan
detailing the corrective action to be taken by the
lessee has been approved by the city. (Ord. 692 § 5,
2001)
Medina Municipal Code 19.10.040
Chapter 19.10
CONDITIONS OF
TELECOMMUNICATIONS
RIGHT-OF-WAY USE AUTHORIZATIONS,
FRANCHISES, AND FACILITIES LEASES
Sections:
19.10.010 Purpose.
19.10.020 Acceptance.
19.10.030 Police power.
19.10.040 Rules and regulations by the city.
19.10.050 Location of facilities.
19.10.060 Conduit occupancy.
19.10.070 Occupancy of city -owned conduit.
19.10.080 Compliance with One Number
Locator Service.
19.10.090 Construction permits.
19.10.100 Interference with rights -of -way.
19.10.110 Damage to property.
19.10.120 Notice of work.
19.10.130 Repair and emergency work.
19.10.140 Maintenance of facilities.
19.10.150 Relocation or removal of facilities.
19.10.160 Building moving.
19.10.170 Removal of unauthorized facilities.
19.10.180 Emergency removal or relocation of
facilities.
19.10.190 Damage to facilities.
19.10.200 Restoration of rights -of -way, other
ways, and city property.
19.10.210 Facilities maps.
19.10.220 Duty to provide information.
19.10.230 Leased capacity.
19.10.240 Insurance.
19.10.250 General indemnification.
19.10.260 Performance and construction surety
19.10.270 Security fund.
19.10.280 Restoration bond.
19.10.290 Coordination of construction
activities.
19.10.300 Assignments or transfers of grant.
19.10.310 Transactions affecting control of
grant.
19.10.320 Revocation or termination of grant.
19.10.330 Notice and duty to cure.
19.10.340 Hearing.
19.10.350 Standards for revocation or lesser
sanctions.
19.10.360 Incorporation by reference.
19.10.370 Notice of entry on private property.
19.10.380 Safety requirements.
19-19
19.10.390 Most favored community.
19.10.400 Relationship with WUTC
proceedings.
19.10.010 Purpose.
The purpose of this chapter is to set forth certain
terms and conditions which are common to all tele-
communications right-of-way use authorizations,
telecommunications franchises, and facilities
leases. Except as otherwise provided in this title or
in such an authorization, franchise, or lease, the
provisions of this chapter apply to all such authori-
zations, franchises, and leases approved or granted
by the city. (Ord. 692 § 6, 2001)
19.10.020 Acceptance.
No authorization, franchise, or lease granted
pursuant to the provisions of this title shall become
effective unless and until the ordinance or other
city action granting the same has become effective.
Within 30 days after the effective date of the ordi-
nance or other city action granting an authoriza-
tion, franchise, or lease, or within such extended
period of time as the council in its discretion may
authorize, the applicant shall file with the city
administrator an unconditional written acceptance
of the authorization, franchise, or lease, in a form
satisfactory to the city attorney, together with the
bonds, insurance policies, and security fund
required by this chapter. (Ord. 692 § 6, 2001)
19.10.030 Police power.
In accepting any authorization, franchise or
lease, the grantee, franchisee, or lessee acknowl-
edges that its rights hereunder are subject to the
legitimate rights of the police power of the city to
adopt and enforce general ordinances necessary to
protect the safety and welfare of the public, and it
agrees to comply with all applicable general laws
enacted by the city pursuant to such power. (Ord.
692 § 6, 2001)
19.10.040 Rules and regulations by the city.
In addition to the inherent powers of the city to
regulate and control any authorization, franchise,
or lease it issues, the authority granted to it by the
Cable Act and the Telecommunications Act of
1996, and those powers expressly reserved by the
city, or agreed to and provided for in any authori-
zation, franchise, or lease, the right and power is
hereby reserved by the city to promulgate such
additional regulations as it may find necessary in
the exercise of its lawful powers giving due regard
to the rights of grantees, franchisees, and lessees.
19.10.050
Except as provided in this title, the foregoing does
not allow for amendment by the city of material
terms of any authorization, franchise, or lease it
issues without the consent of the grantee, franchi-
see, or lessee. (Ord. 692 § 6, 2001)
19.10.050 Location of facilities.
All facilities shall be constructed, installed, and
located in accordance with the following terms and
conditions, unless otherwise specified in an autho-
rization, franchise, or lease agreement:
A. Unless otherwise provided in an authoriza-
tion, franchise, or lease, a grantee, franchisee, or
lessee with permission to occupy a public way
must locate its cable or telecommunications facili-
ties underground.
B. Whenever any new or existing electric utili-
ties, cable facilities, or telecommunications facili-
ties are located or relocated underground within a
public way of the city, a grantee, franchisee, or les-
see that currently occupies the same public way
shall relocate its facilities underground at no ex-
pense to the city. Absent extraordinary circum-
stances or undue hardship as determined by the city
manager, such relocation shall be made concur-
rently to minimize the disruption of the rights -of -
way. No extension granted by the city manager un-
der this subsection shall exceed a period of 12
months.
C. At the option of the city, whenever new
ducts or conduit are constructed, relocated or
placed, the grantee, franchisee or lessee may be
required to provide the city with additional duct or
conduit and related structures necessary to access
the duct and conduit. The cost of such items shall
be recovered as provided in state law.
D. Any overhead facilities will be installed as
part of the backbone system only. No service leads
will be installed overhead. (Ord. 692 § 6, 2001)
19.10.060 Conduit occupancy.
In furtherance of the public purpose of reduction
of rights -of -way excavation, it is the goal of the
city to encourage both the shared occupancy of
underground conduit as well as the construction,
whenever possible, of excess conduit capacity for
occupancy of future right-of-way occupants. (Ord.
692 § 6, 2001)
19.10.070 Occupancy of city -owned conduit.
In furtherance of the same objectives of MMC
19.10.060, if the city owns or leases conduit in the
path of grantee's proposed telecommunications
facilities, and provided it is technologically feasi-
19-20
ble for grantee to occupy the conduit owned or
leased by the city, grantee shall be required to
occupy the conduit owned or leased by the city in
order to reduce the necessity to excavate the rights -
of -way. Grantee shall pay to the city a fee for such
occupancy which shall be the cost grantee would
have expended to construct its own conduit from
the outset, as certified by the grantee's engineer
and approved by the city engineer. The city and
grantee may agree to amortize the fee through
annual payments to the city over the term of the
license or franchise, including the time value of
money. (Ord. 692 § 6, 2001)
19.10.080 Compliance with One Number
Locator Service.
All grantees, franchisees, and lessees shall,
before commencing any construction in the rights -
of -way, comply with the provisions of the One
Number Locator Service. (Ord. 692 § 6, 2001)
19.10.090 Construction permits.
All grantees, franchisees, and lessees are
required to obtain construction permits for cable
and telecommunications facilities as required by
this code. However, nothing in this title shall pro-
hibit the city and a grantee, franchisee, or lessee
from agreeing to alternative plan review, permit,
and construction procedures for an authorization,
franchise, or lease granted under this title, provided
such alternative procedures provide substantially
equivalent safeguards for responsible construction
practices. (Ord. 692 § 6, 2001)
19.10.100 Interference with rights -of -way.
No grantee, franchisee, or lessee may locate or
maintain its cable or telecommunications facilities
so as to unreasonably interfere with the use of the
rights -of -way by the city, by the general public or
by other persons authorized to use or be present in
or upon the rights -of -way. All such facilities shall
be moved by the grantee, franchisee, or lessee, at
the grantee, franchisee, or lessee's cost, tempo-
rarily or permanently, as determined by the city
engineer, subject to any restrictions imposed by
state law. (Ord. 692 § 6, 2001)
19.10.110 Damage to property.
No grantee, franchisee, or lessee, nor any person
acting on a grantee, franchisee, or lessee's behalf
shall take any action or permit any action to be
done which may impair or damage any city prop-
erty, rights -of -way of the city or other property,
whether publicly or privately owned, located in, on
Medina Municipal Code
19.10.170
or adjacent thereto. This section shall not apply to
necessary street cuts approved by the city. (Ord.
692 § 6, 2001)
19.10.120 Notice of work.
Unless otherwise provided in an authorization,
franchise, or lease agreement, no grantee, franchi-
see, or lessee, nor any person acting on the grantee,
franchisee, or lessee's behalf, shall commence any
nonemergency work in or about the rights -of -way
or upon city property without 10 working days'
advance notice to the city. (Ord. 692 § 6, 2001)
19.10.130 Repair and emergency work.
In the event of an unexpected repair or emer-
gency, a grantee, franchisee, or lessee may com-
mence such repair and emergency response work
as required under the circumstances, provided the
grantee, franchisee, or lessee shall notify the city as
promptly as possible, before such repair or emer-
gency work commences or as soon thereafter as
possible if advance notice is not practicable. (Ord.
692 § 6, 2001)
19.10.140 Maintenance of facilities.
Each grantee, franchisee, or lessee shall main-
tain its facilities in good and safe condition and in
a manner that complies with all applicable federal,
state and local requirements. (Ord. 692 § 6, 2001)
19.10.150 Relocation or removal of facilities.
Within 30 days following written notice from
the city, a grantee, franchisee, or lessee shall pro-
vide a schedule to the city indicating the estimated
completion date for temporarily or permanently
removing, relocating, changing, or altering the
position of any cable or telecommunications facil-
ities within the rights -of -way or upon city property
whenever the city engineer shall have determined
that such removal, relocation, change, or alteration
is reasonably necessary for:
A. The construction, repair, maintenance, or
installation of any city or other public improve-
ment in or upon the rights -of -way either by the city
or a developer as required by development
approval; and
B. The operations of the city or other govern-
mental entity in or upon the rights -of -way.
C. This work shall generally be completed
within 90 days following the original notice by the
city unless a different duration is specifically
authorized by the city. (Ord. 692 § 6, 2001)
19-21
19.10.160 Building moving.
Whenever any person shall have obtained per-
mission from the city to use any street or public
way for the purpose of moving any building, a
grantee, franchisee, or lessee, upon 15 days' writ-
ten notice from the city, shall raise or remove, at
the expense of the person desiring to move the
building, any of the grantee, franchisee, or lessee's
facilities which may obstruct the removal of such
building; provided, that the person desiring to
move the building shall comply with all require-
ments of the city for the movement of buildings.
(Ord. 692 § 6, 2001)
19.10.170 Removal of unauthorized facilities.
Within 90 days following written notice from the
city, any telecommunications carrier or provider or
other person who owns, controls, or maintains any
unauthorized cable or telecommunications system,
facility, or related appurtenances within the rights -
of -way of the city shall, at its own expense, remove
such facilities or appurtenances from the rights -of -
way of the city. A cable or telecommunications sys-
tem or facility is unauthorized and subject to
removal in the following circumstances:
A. Upon expiration or termination of the
grantee or franchisee's authorization or franchise;
B. Upon abandonment of a facility within the
rights -of -way of the city. Any property of a grantee
or franchisee shall be deemed abandoned if left in
place 90 days after expiration or termination of an
authorization or franchise;
C. If the system or facility was constructed or
installed without the prior grant of an authorization
or franchise;
D. If the system or facility was constructed or
installed without the- prior issuance of a required
construction permit; and
E. If the system or facility was constructed or
installed at a location not permitted by the authori-
zation or franchise.
Provided, however, that the city may, in its sole
discretion, allow a grantee, franchisee, or other
such persons who may own, control, or maintain
cable or telecommunications facilities within the
rights -of -way of the city to abandon such facilities
in place. No facilities of any type may be aban-
doned in place without the express written consent
of the city. Any plan for abandonment or removal
of a grantee or franchisee's facilities must be first
approved by the city manager, and all necessary
permits must be obtained prior to such work. Upon
permanent abandonment of the property of such
persons in place, the property shall become that of
19.10.180
the city, and such persons shall submit to the city
an instrument in writing, to be approved by the city
attorney, transferring to the city the ownership of
such property. The provisions of this section shall
survive the expiration, revocation, or termination
of an authorization or franchise granted under this
title. (Ord. 692 § 6, 2001)
19.10.180 Emergency removal or relocation of
facilities.
The city retains the right and privilege to cut or
move any cable or telecommunications facilities
located within the rights -of -way of the city and
upon city property, as the city may determine to be
necessary, appropriate or useful in response to any
public health or safety emergency. The city shall
not be liable to any cable operator, telecommunica-
tions carrier or provider, or any other party 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 sec-
tion. (Ord. 692 § 6, 2001)
19.10.190 Damage to facilities.
Unless directly and proximately caused by the
willful, intentional, or malicious acts by the city,
the city shall not be liable for any damage to or loss
of any cable or telecommunications facility upon
city property or within the rights -of -way of the city
as a result of or in connection with any public
works, public improvements, construction, exca-
vation, grading, filling, or work of any kind on
such city property or within the rights -of -way by or
on behalf of the city. (Ord. 692 § 6, 2001)
19.10.200 Restoration of rights -of -way, other
ways, and city property.
A. When a grantee, franchisee, lessee, or any
person acting on its behalf, does any work in or af-
fecting any rights -of -way or city property, it shall,
at its own expense, promptly remove any obstruc-
tions therefrom and restore such ways or property
to as good a condition as existed before the work
was undertaken, unless otherwise directed by the
city.
B. If weather or other conditions do not permit
the complete restoration required by this section,
the grantee, franchisee, or lessee shall temporarily
restore the affected ways or property. Such tempo-
rary restoration shall be at the grantee, franchisee,
or lessee's sole expense and the grantee, franchi-
see, or lessee shall promptly undertake and com-
plete the required permanent restoration when the
19-22
weather or other conditions no longer prevent such
permanent restoration.
C. A grantee, franchisee, lessee or other person
acting in its behalf shall adhere to traffic control
measures established by the Manual of Uniform
Traffic Control Devices, latest edition, and use suit-
able barricades, flags, flagmen, lights, flares, and
other measures as required for the safety of all
members of the general public and to prevent injury
or damage to any person, vehicle, or property by
reason of such work in or affecting such ways or
property-
D. The city engineer shall be responsible for
inspection and final approval of the condition of
the rights -of -way and city property following any
construction and restoration activities therein. Fur-
ther, the provisions of this section shall survive the
expiration, revocation, or termination of an autho-
rization, franchise, lease, or other agreement
granted pursuant to this title. (Ord. 692 § 6, 2001)
19.10.210 Facilities maps.
For all new or relocated facilities, each grantee,
franchisee, and lessee shall provide the city with a
map or maps accurately reflecting the horizontal
and vertical location and configuration of all of
their telecommunications facilities within the
rights -of -way and upon city property. Each grantee,
franchisee, and lessee shall provide the city with
updated maps annually or upon request by the city.
(Ord: 692 § 6, 2001)
19.10.220 Duty to provide information.
Within 10 days of a written request from the
city, each grantee, franchisee, or lessee shall fur-
nish the city with information sufficient to demon-
strate:
A. That the grantee, franchisee, or lessee has
complied with all requirements of this title; and
B. That all sales, utility and/or telecommunica-
tions taxes due the city in connection with the cable
or telecommunications services and facilities pro-
vided by the grantee, franchisee, or lessee have
been properly collected and paid by the grantee,
franchisee, or lessee.
All books, records, maps and other documents,
maintained by the grantee, franchisee, or lessee
with respect to its facilities within the rights -of -
way and upon city property shall be made available
for inspection by the city at reasonable times and
intervals; provided, however, that nothing in this
section shall be construed to require a grantee,
franchisee, or lessee to violate state or federal law
regarding subscriber privacy, nor shall this section
Medina Municipal Code 19.10.240
be construed to require a grantee, franchisee, or
lessee to disclose proprietary or confidential infor-
mation without adequate safeguards for its confi-
dential or proprietary nature. (Ord. 692 § 6, 2001)
19.10.230 Leased capacity.
A grantee, franchisee, or lessee shall have the
right, without prior city approval, to offer or pro-
vide capacity or bandwidth to another telecommu-
nications provider consistent with such permit,
franchise, or lease; provided:
A. The grantee, franchisee, or lessee shall fur-
nish the city with a copy of any such lease or agree-
ment between the grantee, franchisee, or lessee and
the provider; and
B. The telecommunications provider has com-
plied, to the extent applicable, with the require-
ments of this title. (Ord. 692 § 6, 2001)
19.10.240 Insurance.
Unless otherwise provided in an authorization,
franchise, or lease agreement, each grantee, fran-
chisee, or lessee shall, as a condition of the permit
or grant, secure and maintain the following liability
insurance policies insuring both the grantee, fran-
chisee, or lessee and the city, and its elected and
appointed officers, officials, agents, employees,
representatives, engineers, consultants, and volun-
teers as co -insureds against claims for injuries to
persons or damages to property which may arise
from or in connection with the exercise of the
rights, privileges, and authority granted to the
grantee, franchisee, or lessee:
A. Comprehensive general liability insurance,
written on an occurrence basis, with limits not less
than:
1. Five million dollars for bodily injury or
death to each person;
2. Five million dollars for property damage
resulting from any one accident; and
3. Five million dollars for all other types of
liability;
B. Automobile liability for owned, non -owned
and hired vehicles with a limit of $3,000,000 for
each person and $3,000,000 for each accident;
C. Worker's compensation within statutory
limits and employer's liability insurance with lim-
its of not less than $1,000,000;
D. Comprehensive form premises -operations,
explosions and collapse hazard, underground haz-
ard and products completed hazard with limits of
not less than $3,000,000;
E. The liability insurance policies required by
this section shall be maintained by the grantee,
19-23
franchisee, or lessee throughout the term of the au-
thorization, franchise, or lease, and such other pe-
riod of time during which the grantee, franchisee,
or lessee is operating without an authorization,
franchise, or lease hereunder, or is engaged in the
removal of its telecommunications facilities. The
grantee, franchisee, or lessee shall provide an insur-
ance certificate, together with an endorsement
naming the city, and its elected and appointed of-
ficers, officials, agents, employees, representa-
tives, engineers, consultants, and volunteers as ad-
ditional insureds, to the city prior to the
commencement of any work or installation of any
facilities pursuant to said authorization, franchise,
or lease. Any deductibles or self -insured retentions
must be declared to and approved by the city. Pay-
ment of deductibles and self -insured retentions
shall be the sole responsibility of the grantee, fran-
chisee, or lessee. The insurance certificate required
by this section shall contain a clause stating that
coverage shall apply separately to each insured
against whom claim is made or suit is brought, ex-
cept with respect to the limits of the insurer's lia-
bility. The grantee, franchisee, or lessee's insur-
ance shall be primary insurance as respects the city,
its officers, officials, employees, agents, consult-
ants, and volunteers. Any insurance maintained by
the city, its officers, officials, employees, consult-
ants, agents, and volunteers shall be in excess of the
grantee, franchisee, or lessee's insurance and shall
not contribute with it;
F. In addition to the coverage requirements set
forth in this section, each such insurance policy
shall contain the following endorsement:
It is hereby understood and agreed that
this policy may not be canceled nor the in-
tention not to renew be stated until 60 days
after receipt by the City, by registered mail,
of a written notice addressed to the City
Manager of such intent to cancel or not to
renew.
G. Within 30 days after receipt by the city of
said notice, and in no event later than 15 days prior
to said cancellation or intent not to renew, the
grantee, franchisee, or lessee shall obtain and fur-
nish to the city replacement insurance policies
meeting the requirements of this section;
H. For those companies who are self -insured,
they must provide documentation acceptable to the
city demonstrating that the coverage provided
meets or exceeds that described above. (Ord. 692
§ 6, 2001)
19.10.250
19.10.250 General indemnification.
lease. This covenant of indemnification
No authorization, franchise, or lease shall be
shall include, but not be limited by this ref -
deemed to be granted under this title unless it
erence, claims against the City arising as a
includes an indemnity clause substantially con-
result of the negligent acts or omissions of
forming to the following:
the grantee, franchisee, or lessee, its
agents, servants, officers, or employees in
The grantee, franchisee, or lessee hereby
barricading, instituting trench safety sys-
releases, covenants not to bring suit and
tems or providing other adequate warnings
agrees to indemnify, defend and hold
of any excavation, construction, or work in
harmless the City, its elected and appoint-
any public right-of-way or other public
ed officials, officers, employees, agents,
place in performance of work or services
representatives, engineers, and consult-
permitted under this authorization, fran-
ants from any and all claims, costs, judg-
chise, or lease.
ments, awards, or liability to any person, in-
cluding claims by the grantee, franchisee,
Inspection or acceptance by the City of
or lessee's own employees to which the
any work performed by the grantee, fran-
grantee, franchisee, or lessee might other-
chisee, or lessee at the time of completion
wise be immune under Title 51 RCW, aris-
of construction shall not be grounds for
ing from injury or death of any person or
avoidance of any of these covenants of in -
damage to property of which the negligent
demnification. Said indemnification obliga-
acts or omissions of the grantee, franchi-
tions shall extend to claims which are not
see, or lessee, its agents, servants, offic-
reduced to a suit and any claims which
ers, or employees in performing under this
may be compromised prior to the culmina-
authorization, franchise, or lease are the
tion of any litigation or the institution of any
proximate cause. The grantee, franchisee,
litigation.
or lessee further releases, covenants not to
bring suit and agrees to indemnify, defend
In the event that the grantee, franchisee,
and hold harmless the City, its elected and
or lessee refuses the tender of defense in
appointed officials, officers, employees,
any suit or any claim, said tender having
agents, representatives, engineers, and
been made pursuant to the indemnification
consultants from any and all claims, costs,
clauses contained herein, and said refusal
judgments, awards, or liability to any per-
is subsequently determined by a court
son including claims by the grantee, fran-
having jurisdiction (or such other tribunal
chisee, or lessee's own employees, includ-
that the parties shall agree to decide the
ing those claims to which the grantee,
matter), to have been a wrongful refusal on
franchisee, or lessee might otherwise have
the part of the grantee, franchisee, or les-
immunity under Title 51 RCW, arising
see, then the grantee, franchisee, or les-
against the City solely by virtue of the City's
see shall pay all of the City's costs for de -
ownership or control of the rights -of -way or
fense of the action, including all
other public properties, by virtue of the
reasonable expert witness fees and rea-
grantee, franchisee, or lessee's exercise of
sonable attorneys' fees and the reason -
the rights granted herein, or by virtue of the
able costs of the City, including reasonable
City's permitting the franchisee, or lessee's
attorneys' fees of recovering under this in -
use of the City's rights -of -way or other pub-
demnification clause.
lic property, based upon the City's inspec-
tion or lack of inspection of work performed
In the event of liability for damages arising
by the grantee, franchisee, or lessee, its
out of bodily injury to persons or damages
agents and servants, officers or employees
to property caused by or resulting from the
in connection with work authorized on the
concurrent negligence of the grantee, fran-
City's property or property over which the
chisee, or lessee, and the City, its officers,
City has control, pursuant to this authoriza-
employees and agents, the grantee, fran-
tion, franchise, or lease, or pursuant to any
chisee, or lessee's liability hereunder shall
other permit or approval issued in connec-
be only to the extent of the grantee, fran-
tion with this authorization, franchise, or
chisee, or lessee's negligence. It is further
19-24
Medina Municipal Code
19.10.270
specifically and expressly understood that
the indemnification provided herein consti-
tutes the grantee, franchisee, or lessee's
waiver of immunity under Title 51 RCW,
solely for the purposes of this indemnifica-
tion. This waiver has been mutually nego-
tiated by the parties.
The provisions of this Section shall survive
the expiration or termination of this autho-
rization, franchise, or lease agreement.
Notwithstanding any other provisions of
this Section, the grantee, franchisee, or
lessee assumes the risk of damage to its
facilities located in the City's rights -of -way,
easements, and property from activities
conducted by the City, its officers, agents,
employees, and contractors. The grantee,
franchisee, or lessee releases and waives
any and all claims against the City, its of-
ficers, agents, employees, or contractors
for damage to or destruction of the grantee,
franchisee, or lessee's facilities caused by
or arising out of activities conducted by the
City, its officers, agents, employees, and
contractors, in the rights -of -way, ease-
ments, or property subject to this authori-
zation, franchise, or lease, except to the
extent any such damage or destruction is
caused by or arises from the sole negli-
gence or any willful or malicious action on
the part of the City, its officers, agents, em-
ployees, or contractors. The grantee, fran-
chisee, or lessee further agrees to indem-
nify, hold harmless and defend the City
against any claims for damages, including,
but not limited to, business interruption
damages and lost profits, brought by or un-
der users of the grantee, franchisee, or les-
see's facilities as the result of any interrup-
tion of service due to damage or
destruction of the user's facilities caused
by or arising out of activities conducted by
the City, its officers, agents, employees, or
contractors, except to the extent any such
damage or destruction is caused by or aris-
es from the sole negligence or any willful or
malicious actions on the part of the City, its
officers, agents, employees, or contrac-
tors.
(Ord. 692 § 6, 2001)
19-25
19.10.260 Performance and construction
surety.
Before an authorization, franchise, or lease
granted pursuant to this title is effective, and as
necessary thereafter, the grantee, franchisee, or les-
see shall provide and deposit such moneys, bonds,
letters of credit, or other instruments in form and
substance acceptable to the city as may be required
by this title or by an applicable authorization, fran-
chise, or lease agreement. (Ord. 692 § 6, 2001)
19..10.270 Security fund.
Each grantee, franchisee, or lessee shall estab-
lish a permanent security fund with the city by
depositing the amount of $20,000, or such lesser
amount as deemed necessary by the city engineer
with the city manager in the form of an uncondi-
tional letter of credit, or other instrument accept-
able to the city, which fund shall be maintained at
the sole expense of the grantee, franchisee, or les-
see so long as any of the grantee, franchisee, or les-
see's cable or telecommunications facilities are
located within the rights -of -way of the city or upon
city property.
A. The fund shall serve as security for the full
and complete performance of this chapter, includ-
ing any costs, expenses, damages, or loss the city
pays or incurs, including civil penalties, because of
any failure attributable to the grantee, franchisee,
or lessee to comply with the codes, ordinances,
rules, regulations, or permits of the city.
B. Before any sums are withdrawn from the
security fund, the city shall give written notice to
the grantee, franchisee, or lessee:
1. Describing the act, default or failure to be
remedied, or the damages, costs or expenses which
the city has incurred by reason of grantee, franchi-
see, or lessee's act or default;
2. Providing a reasonable opportunity for
grantee, franchisee, or lessee to first remedy the
existing or ongoing default or failure, if applicable;
3. Providing a reasonable opportunity for
grantee, franchisee, or lessee to pay any moneys
due the city before the city withdraws the amount
thereof from the security fund, if applicable; and
4. That the grantee, franchisee, or lessee will
be given an opportunity to review the act, default
or failure described in the notice with the city man-
ager or designee.
C. Grantees, franchisees and lessees shall
replenish the security fund within 14 days after
written notice from the city that there is a defi-
ciency in the amount of the fund. (Ord. 692 § 6,
2001)
19.10.280
19.10.280 Restoration bond.
Unless otherwise provided in an authorization,
franchise, or lease agreement, a performance bond
written by a corporate surety acceptable to the city
equal to at least 100 percent of the estimated cost
of removing the grantee, franchisee, or lessee's
telecommunications equipment and facilities and
restoring the rights -of -way of the city and/or city -
owned property to its preconstruction condition
shall be deposited before any construction is com-
menced. Said bond shall be required to remain in
full force until 60 days after completion of the con-
struction and/or improvements within the rights -
of -way of the city or upon city -owned property,
and shall warrant all such restoration work for a
period of two years. The purpose of this bond is to
guarantee removal of partially completed and/or
nonconforming telecommunications facilities and
to fully restore the rights -of -way of the city and
city -owned property to its preconstruction condi-
tion. (Ord. 692 § 6, 2001)
19.10.290 Coordination of construction
activities.
All grantees and franchisees are required to
cooperate with the city and with each other.
A. By February 1st of each year, grantees and
franchisees shall provide the city with a schedule
of their proposed construction activities in, around,
or that may affect the rights -of -way.
B. Each grantee and franchisee shall meet with
the city, other grantees and franchisees and users of
the rights -of -way annually or as determined by the
city to schedule and coordinate construction in the
rights -of -way.
C. All construction locations, activities and
schedules shall be coordinated, as ordered by the
city engineer, to minimize public inconvenience,
disruption or damages. (Ord. 692 § 6, 2001)
19.10.300 Assignments or transfers of grant.
Ownership or control of a cable or telecommu-
nications system, license, authorization, franchise,
or lease may not, directly or indirectly, be trans-
ferred, assigned or disposed of by sale, lease,
merger, consolidation or other act of the grantee or
franchisee, by operation of law or otherwise, with-
out the prior written consent of the city, which con-
sent shall not be unreasonably withheld or delayed,
except as expressed by ordinance and then only on
such reasonable conditions as may be prescribed
therein. This obligation shall not apply to involun-
tarymergers or acquisitions.
19-26
A. No authorization, franchise, lease, or other
grant shall be assigned or transferred in any man-
ner within 12 months after the initial grant of the
authorization or franchise, unless otherwise pro-
vided in the authorization or franchise agreement.
B. Absent extraordinary and unforeseeable cir-
cumstances, no grant, system or integral part of a
system shall be assigned or transferred before con-
struction of the telecommunications system has
been completed.
C. The grantee, franchisee, or lessee and the
proposed assignee or transferee of the grant or sys-
tem shall provide and certify the following infor-
mation to the city not less than 150 days prior to the
proposed date of transfer:
1. Complete information setting forth the
nature, terms and conditions of the proposed trans-
fer or assignment;
2. All information required of an authoriza-
tion, franchise, or lease applicant pursuant to this
title with respect to the proposed transferee or
assignee;
3. Any other information reasonably
required by the city; and
4. An application fee which shall be set by
the city council by resolution.
D. No transfer shall be approved unless the
assignee or transferee has the legal, technical,
financial, and other requisite qualifications to own,
hold and operate the cable or telecommunications
system pursuant to this title.
E. Unless otherwise provided in an authoriza-
tion, franchise, or lease agreement, the grantee,
franchisee, or lessee shall reimburse the city for all
direct and indirect costs, expenses and consultant
fees reasonably incurred by the city" in considering
a request to transfer or assign an authorization,
franchise, or lease. No approval shall be deemed
approved until all such costs and expenses have
been paid.
F. Any transfer or assignment of an authoriza-
tion, franchise, lease, system, or integral part of a
system without prior written approval of the city
under this section or pursuant to an authorization,
franchise, or lease agreement shall be void and is
cause for revocation of the grant. (Ord. 692 § 6,
2001)
19.10.310 Transactions affecting control of
grant.
Any transactions which singularly or collec-
tively result in a change of 50 percent or more of the
ownership or working control of the grantee, fran-
chisee, lessee, of the ownership or working control
Medina Municipal Code 19.10.350
of a cable or telecommunications system, of the
ownership or working control of affiliated entities
having ownership or working control of the
grantee, franchisee, or lessee or of a telecommuni-
cations system, or of control of the capacity or
bandwidth of the grantee, franchisee, or lessee's ca-
ble or telecommunication system, facilities or sub-
stantial parts thereof, shall be considered an
assignment or transfer requiring city approval pur-
suant to MMC 19.10.300. Transactions between af-
filiated entities are not exempt from city approval.
A grantee, franchisee, or lessee shall promptly no-
tify the city prior to any proposed change in, or
transfer of, or acquisition by any other party of con-
trol of a grantee, franchisee, or lessee's company.
Every change, transfer, or acquisition of control of
a grantee, franchisee, or lessee's company shall
cause a review of the proposed transfer. In the event
that the city adopts a resolution or other appropriate
order denying its consent and such change, transfer
or acquisition of control has been effected, the city
may cancel the authorization, franchise, or lease.
Approval shall not be required for mortgaging pur-
poses or if said transfer is from a grantee, franchi-
see, or lessee to another person or entity
controlling, controlled by, or under common con-
trol with a grantee, franchisee, or lessee. (Ord. 692
§ 6, 2001)
19.10.320 Revocation or termination of grant.
An authorization, franchise, or lease granted by
the city to use or occupy rights -of -way of the city
or city property may be revoked for the following
reasons:
A. Construction or operation in the city or in the
rights -of -way of the city or upon city property
without a grant of authority from an authorization,
franchise, or lease;
B. Construction or operation at an unauthorized
location;
C. Unauthorized substantial transfer of control
of a grantee, franchisee or lessee;
D. Unauthorized assignment of an authoriza-
tion, franchise or lease;
E. Unauthorized sale, assignment or transfer of
a grantee, franchisee, or lessee's authorization,
franchise, lease, assets, or a substantial interest
therein;
F. Misrepresentation by or on behalf of a
grantee, franchisee, or lessee in any application or
written or oral statement upon which the city relies
in making the decision to grant, review or amend
any authorization, franchise, or lease pursuant to
this title;
19-27
G. Abandonment of cable or telecommunica-
tions facilities in the rights -of -way or upon city
property;
H. Failure to relocate or remove facilities as
required in this title;
I. Failure to pay taxes, compensation, fees or
costs when and as due the city;
J. Insolvency or bankruptcy of the grantee,
franchisee, or lessee;
K. Violation of any material provision of this
title; and
L. Violation of the material terms of an authori-
zation, franchise, or lease agreement. (Ord. 692
§ 6, 2001)
19.10.330 Notice and duty to cure.
In the event that the city believes that grounds
exist for revocation of an authorization, franchise,
or lease, the grantee, franchisee, or lessee shall be
given written notice of the apparent violation or
noncompliance, providing a short and concise
statement of the nature and general facts of the vio-
lation or noncompliance, and providing the
grantee, franchisee, or lessee a reasonable period of
time not exceeding 30 days to furnish evidence:
A. That corrective action has been, or is being
actively and expeditiously pursued, to remedy the
violation or noncompliance;
B. That rebuts the alleged violation or noncom-
pliance; and
C. That it would be in the public interest to
impose some penalty or sanction less than revoca-
tion. (Ord. 692 § 6, 2001)
19.10.340 Hearing.
In the event that a grantee, franchisee, or lessee
fails to provide evidence reasonably satisfactory to
the city as provided in MMC 19.10.330, the city
shall refer the apparent violation or noncompliance
to the city council. The city council shall provide
the grantee, franchisee, or lessee with notice and a
reasonable opportunity to be heard concerning the
matter. (Ord. 692 § 6, 2001)
19.10.350 Standards for revocation or lesser
sanctions.
If the city council determines that a grantee, fran-
chisee, or lessee willfully violated or failed to com-
ply with any of the provisions of this title or an
authorization, franchise, or lease granted under this
title, or through willful misconduct or gross negli-
gence failed to heed or comply with any notice
given the grantee, franchisee, or lessee by the city
under the provisions of this title, then the grantee,
19.10.360
franchisee, or lessee shall, at the election of the city
council, forfeit all rights conferred hereunder and
the authorization, franchise, or lease may be re-
voked or annulled by the city council. The city
council may elect, in lieu of the above and without
any prejudice to any of its other legal rights and
remedies, to pursue other remedies, including ob-
taining an order from the superior court having ju-
risdiction compelling the grantee, franchisee, or
lessee to comply with the provisions of this title and
any authorization, franchise, or lease granted here-
under, and to recover damages and costs incurred
by the city by reason of the grantee, franchisee, or
lessee's failure to comply. The city council shall
utilize the following factors in analyzing the nature,
circumstances, extent, and gravity of the violation
and in making its determination under this section:
A. Whether the misconduct was egregious;
B. Whether substantial harm resulted;
C. Whether the violation was intentional;
D. Whether there is a history of prior violations
of the same or other requirements;
E. Whether there is a history of overall compli-
ance; and
F. Whether the violation was voluntarily dis-
closed, admitted or cured. (Ord. 692 § 6, 2001)
19.10.360 Incorporation by reference.
The provisions of this title shall be incorporated
by reference in any authorization, franchise, or
lease approved hereunder. Failure to so incorporate
by reference shall not affect the binding effect of
the provisions of this title. However, in the event of
any conflict between the proposal, this title, and the
authorization, franchise, or lease, the authoriza-
tion, franchise, or lease shall be the prevailing doc-
ument. (Ord. 692 § 6, 2001)
19.10.370 Notice of entry on private property.
If directed by the city, at least 24 hours prior to
entering private property or streets or public ease-
ments adjacent to or on such private property to per-
form new construction or reconstruction, a notice
indicating the nature and location of the work to be
performed shall be physically posted, at no expense
to the city, upon the affected property by the
grantee or franchisee. A door hanger may be used
to comply with the notice and posting requirements
of this section. A grantee or 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 exist-
ing cable paths), consistent with sound engineering
19-28
practices; provided, however, that nothing in this
chapter shall permit a grantee or franchisee to un-
lawfully enter or construct improvements upon the
property or premises of another. Underground in-
stallations on private property shall be located such
as to not kill or damage significant trees as defined
in this code. (Ord. 692 § 6, 2001)
19.10.380 Safety requirements.
A grantee, franchisee, or lessee, in accordance
with applicable federal, state, and local safety
requirements shall, at all times, employ ordinary
care and shall install and maintain and use com-
monly accepted methods and devices for prevent-
ing failures and accidents which are likely to cause
damage, injury, or nuisance to the public and/or
workers. All structures and all lines, equipment and
connections in, over, under, and upon the streets,
sidewalks, alleys, and rights -of -way or places of a
permit, franchise, or lease area, wherever situated
or located, shall at all times be kept and maintained
in a safe, suitable condition, and in good order and
repair. The city reserves the general right to see
that the system of a grantee, franchisee, or lessee is
constructed and maintained in a safe condition. If a
violation of the National Electrical Safety Code or
other applicable regulation is found to exist by the
city, the city will, after discussions with a grantee,
franchisee, or lessee, establish a reasonable time
for a grantee, franchisee, or lessee to make neces-
sary repairs. If the repairs are not made within the
established time frame, the city may make the
repairs itself or have them made and collect all rea-
sonable costs thereof from a grantee, franchisee, or
lessee. (Ord. 692 § 6, 2001)
19.10.390 Most favored community.
In the event that a grantee, franchisee, or lessee
enters into any agreement, franchise or other
understanding with any other city, town or county
in the state of Washington which provides terms or
conditions more favorable to the city, town or
county than those provided in its agreement with
the city, such as, but not limited to, free or reduced
fee hookups, access or service, the city shall be
entitled to request at the city's option, and the
grantee, franchisee, or lessee in question shall be
required to execute, an amendment to its agree-
ment which incorporates the more favorable terms
and conditions. (Ord. 692 § 6, 2001)
Medina Municipal Code 19.12.030
19.10.400 Relationship with WUTC
proceedings.
If grantee shall file, pursuant to Chapter 80.28
RCW, with the Washington Utilities and Transpor-
tation Commission (or such other regulatory
agency having jurisdiction) any tariff affecting the
city's rights under its grant or franchise or relating
to charges for facility relocations, the provider
shall give the city manager written notice thereof
within five days of the date of such filing. If, during
the term of this grant or franchise, grantee shall file
and the Washington Utilities and Transportation
Commission (or such other regulatory agency hav-
ing jurisdiction) shall permit to become effective, a
schedule or tariff which conflicts with or is incon-
sistent with any portion of this grant or franchise,
the city may, within 30 days of the effective date of
such schedule or tariff, notify grantee in writing
that the franchise is terminated, effective on receipt
of the notice. Thereafter, the city and grantee shall
conduct negotiations concerning the terms and
conditions of a new franchise, at reasonable times,
in a reasonable manner, in good faith and with due
regard to all pertinent facts and circumstances.
(Ord. 692 § 6, 2001)
19-29
Chapter 19.12
CONSTRUCTION STANDARDS
Sections:
19.12.010 General construction standards.
19.12.020 Construction codes.
19.12.030 Construction permits.
19.12.040 Applications.
19.12.050 Engineer's certification.
19.12.060 Traffic control plan.
19.12.070 Issuance of permit.
19.12.080 Compliance with permit.
19.12.090 Display of permit.
19.12.100 Survey of underground facilities.
19.12.110 Noncomplying work.
19.12.120 Completion of construction.
19.12.130 As -built drawings.
19.12.140 Restoration after construction.
19.12.150 Landscape restoration.
19.12.160 Construction surety.
19.12.170 Exceptions.
19.12.180 Responsibilities of the owner.
19.12.190 Use permit.
19.12.010 General construction standards.
Notwithstanding any other provision of this
code, no person shall commence or continue with
the construction, installation, maintenance, or
repair of cable or telecommunications facilities
within rights -of -way of the city or upon city -owned
property, except as provided in this chapter. At the
discretion of the city, directional drilling or boring
may be required as opposed to cuts or trenches.
(Ord. 692 § 7, 2001)
19.12.020 Construction codes.
Cable and telecommunications facilities shall be
constructed, installed, operated, and maintained in
accordance with all applicable federal, state and
local codes, rules and regulations, including the
city of Medina right-of-way construction require-
ments, latest edition. (Ord. 692 § 7, 2001)
19.12.030 Construction permits.
No person shall construct, install, repair, or
maintain any cable or telecommunications facili-
ties within the rights -of -way of the city or upon city
property without first obtaining the appropriate
construction permit therefor; provided, however:
A. No permit shall be issued for the construc-
tion or installation of cable or telecommunications
facilities without payment of any applicable con-
struction permit fee; and
19.12.040
B. No permit shall be issued for the construction
or installation of telecommunications or other
equipment on city property unless the telecommu-
nications carrier or provider has applied for and re-
ceived a facilities lease from the city. The city
council reserves unto itself the sole discretion to
lease city property for telecommunications and
other facilities, and no vested or other rights shall
be created by this section or any provision of this
title applicable to such facilities leases. (Ord. 692
§ 7, 2001)
19.12.040 Applications.
Applications for permits to construct cable or
telecommunications facilities shall be submitted to
the city building permit coordinator and shall be
accompanied by drawings, plans and specifications
in sufficient detail to demonstrate:
A. That the facilities will be constructed in
accordance with the Washington State Department
of Transportation Standard Specifications for
Road, Bridge and Municipal Construction, latest
edition, and all applicable codes, rules and regula-
tions;
B. The location and route of all facilities to be
installed on existing utility poles;
C. The location, route, and configuration of all
facilities to be located under the surface of the
ground, including the line and grade proposed for
the burial at all points along the route which are
within the rights -of -way;
D. The location of all existing underground
utilities, conduits, ducts, pipes, mains, and installa-
tions which are within the rights -of -way along the
underground route proposed by the applicant;
E. The location of all other facilities to be con-
structed within the city, but not within the rights -
of -way;
F. The construction methods to be employed for
protection of existing structures, fixtures, streets
and facilities within or adjacent to the rights -of -
way;
G. The location, dimension and types of all
trees within or adjacent to the rights -of -way along
the route proposed by the applicant, together with
a landscape plan for protecting, trimming, remov-
ing, replacing and restoring any trees or areas to be
disturbed during construction;
H. Proposed construction schedule and work
hours; and
I. The location of all survey monuments which
may be displaced or disturbed by the proposed con-
struction. (Ord. 692 § 7, 2001)
19-30
19.12.050 Engineer's certification.
Where required by the city engineer, permit ap-
plications shall be accompanied by drawings, plans
and specifications bearing the certification of a reg-
istered professional engineer. (Ord. 692 § 7, 2001)
19.12.060 Traffic control plan.
All permit applications which involve work on,
in, under, across, or along any rights -of -way shall
be accompanied by a traffic control plan demon-
strating the protective measures and devices that
will be employed, consistent with the Manual of
Uniform Traffic Control Devices, latest edition, to
prevent injury or damage to persons or property
and to minimize disruptions to efficient pedestrian
and vehicular traffic. (Ord. 692 § 7, 2001)
19.12.070 Issuance of permit.
After submission of all plans and documents
required of the applicant and payment of the permit
fees required by this title, the city engineer, if sat-
isfied that the applications, plans and documents
comply with all requirements of this title, shall
issue a permit authorizing construction of the facil-
ities,. subject to such further conditions, restrictions
or regulations affecting the time, place and manner
of performing the work as he or she may deem nec-
essary or appropriate. (Ord. 692 § 7, 2001)
19.12.080 Compliance with permit.
All construction practices and activities shall be
in accordance with the permit and approved final
plans and specifications for the facilities. The city
engineer and his or her representatives shall be pro-
vided access to the work and such further informa-
tion as he or she may require to ensure compliance
with such requirements. (Ord. 692 § 7, 2001)
19.12.090 Display of permit.
The pem- ittee shall maintain a copy of the con-
struction permit and approved plans at the con-
struction site, which shall be displayed and made
available for inspection by the city engineer or his
or her representatives at all times when construc-
tion work is occurring. (Ord. 692 § 7, 2001)
19.12.100 Survey of underground facilities.
If the construction permit specifies the location
of facilities by depth, line, grade, proximity to
other facilities or other standard, the permittee
shall cause the location of such facilities to be ver-
ified by a state registered land surveyor. The per-
mittee may be required to relocate any facilities
Medina Municipal Code
19.12.190
which are not located in compliance with permit
requirements. (Ord. 692 § 7, 2001)
19.12.110 Noncomplying work.
Upon order of the city engineer, all work which
does not comply with the permit, the approved
plans and specifications for the work, or the
requirements of this chapter, shall be remedied or
removed. (Ord. 692 § 7, 2001)
19.12.120 Completion of construction.
The permittee shall promptly complete all con-
struction activities so as to minimize disruption of
the public and other ways and other public and pri-
vate property. All construction work authorized by
a permit within public and other ways, including
restoration, must be completed within 120 days of
the date of issuance. (Ord. 692 § 7, 2001)
19.12.130 As -built drawings.
Within 60 days after completion of construction,
the permittee shall furnish the city with two com-
plete sets of plans, drawn to scale and certified to
the city as accurately depicting the horizontal and
vertical location and configuration of all cable or
telecommunications facilities constructed pursuant
to the permit. The city engineer shall have the dis-
cretion to prescribe the format and/or media of said
as -built drawings, consistent with city codes and
policies. (Ord. 692 § 7, 2001)
19.12.140 Restoration after construction.
Upon completion of any construction, mainte-
nance, or repair work, the permittee shall promptly
repair any and all public and private property im-
provements, fixtures, structures, and facilities in
the public or other ways or otherwise damaged dur-
ing the course of construction, restoring the same as
nearly as practicable to its condition before the start
of construction. All survey monuments disturbed or
displaced shall be referenced and replaced as re-
quired by Chapter 332-120 WAC and city policy.
The referencing and replacement of survey monu-
ments shall be performed by a licensed land sur-
veyor. The city engineer shall have final approval
of the completeness of all restoration work and all
permittees shall warrant said restoration work for a
period of one year. (Ord. 692 § 7, 2001)
19.12.150 Landscape restoration.
A. All trees, landscaping and grounds removed,
damaged or disturbed as a result of the construc-
tion, installation, maintenance, repair, or replace-
ment of cable or telecommunications facilities,
19-31
whether such work is done pursuant to a franchise,
permit, or lease shall be replaced or restored as
nearly as may be practicable, to the condition exist-
ing prior to performance of work.
B. All landscape restoration work within the
rights -of -way shall be done in accordance with
landscape plans approved by the city landscape
architect. (Ord. 692 § 7, 2001)
19.12.160 Construction surety.
Prior to issuance of a construction permit, the
permittee shall provide a performance bond, as
provided in MMC 19.10.280. (Ord. 692. § 7, 2001)
19.12.170 Exceptions.
Unless otherwise provided in an authorization,
franchise, or lease agreement, all cable operators
and telecommunications carriers are subject to the
requirements of this title. (Ord. 692 § 7, 2001)
19.12.180 Responsibilities of the owner.
The owner of the facilities to be constructed and,
if different, the grantee, franchisee, or lessee, are
responsible for performance of and compliance
with all provisions of this title. (Ord. 692 § 7, 2001)
19.12.190 Use permit.
A construction permit shall be considered the
equivalent of a use permit for purposes of state law
(ESSB 6676, Law of 2000). (Ord. 692 § 7, 2001)
EXHIBIT C
Form of Transfer Agreement
THIS TRANSFER AGREEMENT ("Agreement") is made this
, 20_, by and between:
1. PARTIES.
1.1
1.2
1.3
RECITALS
day of
City of Medina, a legal subdivision of the state of Washington ("City').
WHEREAS the City has issued
Franchisee, which was authorized on the
pursuant to Ordinance No. ; and
("Franchisee").
("Transferee").
a single Franchise (the "Franchise") to
day of , 20 ,
WHEREAS Franchisee has reached an agreement with Transferee on a (describe
transaction, example: conveyance of benefited property)
with
Transferee, to (example: acquire from Franchisee its facilities and equipment located in the Right -of -
Way)
and
WHEREAS Franchisee and Transferee have requested that the City approve a
transfer of the Franchise from Franchisee to Transferee; and
WHEREAS, as a result of the transfer of the Franchise, Transferee shall assume
all rights, duties, and obligations that Franchisee has under the Franchise, shall be
responsible for full compliance with the Franchise, and shall meet or exceed all
applicable and lawful federal, state, and local requirements; and
WHEREAS, relying on the representations made by the Transferee and
Franchisee, the City, on the _ day of , 20_, has, pursuant to Resolution
No. and the Franchise, approved the transfer upon the terms and conditions
as stated herein;
NOW, THEREFORE, in consideration of the City's approval of the transfer,
subject to the terms and conditions of this Agreement, THE PARTIES DO HEREBY
AGREE as follows:
2. TRANSFER. Transfer of the Franchise shall be effective upon the following
conditions precedent:
2.1 Receipt by the City of the fully executed acceptance of franchise and
performance guarantee attached hereto as Exhibit C-1, together with all required
certificates of insurance, a security fund, and a performance bond;
2.2 Payment to the City of the Direct Costs of processing the Transfer; and
2.3 The date of closing of the sale/conveyance of the property benefited by
this Franchise and/or the Telecommunications Facilities located in the Franchise Area, or
the date mutually agreed to by the City, Franchisee and Transferee as follows:
, whichever occurs first.
3. ACCEPTANCE OF FRANCHISE OBLIGATIONS.
3.1 Franchisee agrees that neither the Transfer nor the City's approval of this
Agreement shall in any respect relieve Franchisee, or any of its successors in interest, of
any obligation or liability arising from acts or omissions occurring prior to the Transfer of
the Franchise, whether known or unknown, or the consequences thereof.
3.2 The Transfer is not intended and shall not be construed to authorize
Franchisee to take any position or exercise any right that could not have been exercised
prior to the Transfer.
3.3 Notwithstanding anything to the contrary herein, Transferee shall not be
responsible for any of Franchisee's financial liabilities and obligations under the
Franchise or pursuant to the City code, rules, and regulations that accrued before the
Transfer of the Franchise.
3.4 The City waives none of its rights with respect to Franchisee's or
Transferee's compliance with the terms, conditions, requirements, and obligations as set
forth in the Franchise. The City's approval of this Agreement shall in no way be deemed
a representation by the City that Franchisee is in compliance with all of Franchisee's
obligations under the Franchise.
3.5 Franchisee and Transferee acknowledge and agree that the City's approval
and acceptance of this Agreement and the resulting Transfer is made in reliance upon the
representations, documents, and information provided by Franchisee and Transferee in
connection with the request for transfer.
4. MISCELLANEOUS PROVISIONS.
4.1 Conditions Precedent. The Agreement shall be effective and binding upon
the signatories once it has been signed by all signatories; provided that, within 30 days of
execution of the Agreement by all of the signatories, Transferee shall provide the City
45.
with the following: (1) all Direct Costs required for this Transfer; (2) its acceptance of
the Franchise in substantially the form of the document attached as Exhibit C-1; (3) its
insurance certificate in conformance with the requirements of the Franchise; and (4) a
performance bond or cash deposit in conformance with the requirements of the Franchise.
4.2 Entire Agreement. The Agreement constitutes the entire agreement of the
Parties with respect to the matters addressed herein. No statements, promises, or
inducements inconsistent with the Agreement made by any Party shall be valid or binding
unless in writing and executed by all Parties.
4.3 Binding Acceptance. The Agreement shall bind and benefit the Parties
hereto and their respective heirs, beneficiaries, administrators, executors, receivers,
trustees, successors, and assigns, and the promises and obligations herein shall survive
the expiration date hereof. Any purported transfer of the Agreement is void without the
express written consent of the signatories.
4.4 Severability. In the event that the Agreement shall, to any extent, be held
to be invalid, preempted, or unenforceable, the remainder hereof shall be valid in all other
respects and continue to be effective.
4.5 Defined Terms. Terms not defined in this Agreement shall have the same
meaning as given in the Franchise.
4.6 Governing Law. The Agreement shall be governed in all respects by the
laws of the state of Washington.
IN WITNESS WHEREOF the Parties hereto have executed this Agreement as of the
day and year first written above.
CITY FRANCHISEE
By: Donna Hansen, City Manager By:
Title:
TRANSFEREE
By:'_
Title:
46.
TRANSFER EXHIBIT C-1
Acceptance of Franchise and Performance Guarantee
Franchise issued pursuant to Ordinance No. and accepted
20 ; Transfer authorized pursuant to Resolution No. , effective
M(
I, , am the
and (am the authorized representative to) accept the above -referenced Franchise on
behalf of I certify that this Franchise and all
terms and conditions thereof are accepted by without
qualification or reservation and that unconditionally
guarantee(s) performance of all such terms and conditions.
DATED this day of 120
Tax Payer ID#
STATE OF
ss.
CITY OF
By
Its
I certify that I know or have satisfactory evidence that
is the person who appeared before me, and said person
acknowledged that said person signed this instrument, on oath stated that said person was
authorized to execute the instrument and acknowledged it (as the
of , a
corporation,) to be the free and voluntary act of such corporation/individual for the uses
and purposes mentioned in the instrument.
Dated this day of ,
(Signature of Notary)
47.
Print Name
Notary public in and for the state of
residing at
My appointment expires
Acceptance of Franchise
Franchise issued pursuapt to Ordinance No.
I, 1&4 s �-ern am the ,
and (am the authorized representative to) accept the above -referenced Fraiichise on
behalf of d/_ . I certify }at this Franchise and all
terms and conditions thereof ar accep ed by -f `C, without
qualification or reservation and that C unconditionally
guarantee(s) performance of all such terms and conditions.
DATED this day of f , 20j.
Tax Payer ID#
STATE OF tQ ey4J, Ca,,,,Cv ,,
ss.
CITY OF
I certify that I know or have satisfactory evidence that
is the person who appeared before me, and said person
acknowledged that said person signed this instrument, on oath stated that said person was
aulhorized to execute the instrument and acknowledged it (as the
�F,,.� ✓� ofa �—
corporation,) to be the free and voluntaryact of such corporation/individual for the uses
and purposes mentioned in the instrument.
Dated this � "-day ofu�ar
JILL HOUSE
OUSE
NOTARY PUBLIC
Wake County
North Carolina
Commission Expires Jan.1, 2D12
of Notary)
Print Name
Notary public in and for the state of
/Jv44-\ Cam residing at , &r tti"
My appointment expires I `t �-
49.
Environmental Indemnity
1. Duty to Indemnify/Release/Defend. Franchisee assumes the risk that
Hazardous Substances or other adverse matters may affect the Franchise Area that were
not revealed by Franchisee inspection, and indemnifies, holds harmless, and hereby
waives, releases and discharges forever the City and City's officers, employees and
agents (collectively, "Indemnitees") from any and all present or future claims or
demands, and any and all damages, losses, injuries, liabilities, causes of actions
(including, without limitation, causes of action in tort) costs and expenses (including,
without limitation, fines, penalties, judgments, and attorneys' fees) of any and every kind
or character, known or unknown, which Franchisee might have asserted or alleged
against Indemnitees arising from or in any way related to the Condition of the Franchise
Area or alleged presence, use, storage, generation, manufacture, transport, release, leak,
spill, disposal or other handling of any Hazardous Substances in, on or under the
Franchise Area (the "Franchisee Losses"). Franchisee Losses shall include, without
limitation, (a) the cost of any investigation, removal, or Remedial Action (defined below)
that is required by any Environmental Law, that is required by judicial order or by order
of or agreement with any governmental authority, or that is necessary or otherwise is
reasonable under the circumstances, (b) losses for injury or death of any person caused by
the Condition of the Franchise Area, and (c) losses arising under any Environmental Law
-enacted-after fine --date -hereof. - Except- --as -may- be --limited below;- Franchisee-L--osses - - -
specifically include losses sustained by Franchisee as a result of any obligation of
Franchisee to remove, close, Remediate, reimburse or take other actions required by any
governmental agency concerning any Hazardous Substances on the Franchise Area.
Notwithstanding the above, Franchisee Losses waived, released, and discharged
hereunder by Franchisee shall not include losses as a result of releases or contamination
caused by the acts of the City after the Effective Date. The rights, duties and obligations
of the City and Franchisee pursuant Sections 2 and 3 herein apply to the duty to
indemnify and defend as provided in this Section 1.
2. Discovery Within Franchise Area. In the event that the Work of
Franchisee in, on, and upon the Franchise Area results in the discovery of the presence of
Hazardous Substances ("Discovered Matters") in, on or upon the areas excavated or
otherwise opened or exposed by Franchisee within the Franchise Area (the "Excavated
Areas"), Franchisee shall immediately notify the City and take whatever other reporting
action is required by applicable Environmental Law as it relates to the Discovered
Matters in the Excavated Areas. In the event that, as a result of such discovery, an
agency with jurisdiction to address Hazardous Substances in, on or upon the Franchise
Area (`Environmental Authority") orders, obtains a judgment or court order requiring, or
otherwise exercises its authority to require Remedial Actions to be taken by the City or
Franchisee, or Franchisee decides, to undertake Remedial Actions independently or enter
into a consent order or consent decree with an Environmental Authority, then in such
event, Franchisee agrees to indemnify, defend, and hold the City harmless from and
against the cost of all Remedial Actions which are required by the Environmental
50.
Authority within the Excavated Areas under the applicable Environmental Laws with
respect to the Discovered Matters; provided, however, the City, subject to the provisions
of Section 3 below, shall be solely responsible for all necessary Remedial Actions which
are required by the Environmental Authority within other portions of the Franchise Area
(outside the Excavated Areas) under the applicable Environmental Laws with respect to
the Discovered Matters.
3 Release by Franchisee. In the event Franchisee's Work, in, on or upon the
Franchise Area within the Excavated Areas results in a release (as determined under
applicable Environmental Laws) of Hazardous Substances which were, before such
activities, confined to areas within the Excavated Areas, but which after such activities by
Franchisee are released beyond the Excavated Areas, and if the release is caused in whole
or in part by Franchisee, then Franchisee shall indemnify, defend and hold the City
harmless from the costs of all necessary Remedial Actions which are required under the
applicable Environmental Laws, to the extent of Franchisee's share of the liability for the
release. Franchisee's liability for the release may, inter alia, be determined by
Franchisee's admission of the same, or as determined by a final non -appealable decision
by a court of competent jurisdiction, or as provided in a final non -appealable
administrative order issued by the Environmental Authority, or by a consent decree
entered by Franchisee and the Environmental Authority.
51.
Insurance Requirements
1 General Requirement. Commencing upon issuance of the first Site Specific
Permit under this Franchise, Franchisee must have adequate insurance at all times while
Franchisee owns or operates Telecommunications Facilities in the Right -of -Way, to protect
the City against claims for death or injuries to Persons or damages to property or equipment
which in any way relate to, arise from or are connected with this Franchise or Site Specific
Permit, or involve the Telecommunications Facilities, Franchisee, its agents, representatives,
contractors, subcontractors and their employees.
2 Minimum Insurance Limits. Franchisee shall maintain the following
minimum insurance coverages and limits:
2.1 Commercial General Liability insurance to cover liability, bodily
injury, and property damage. The Commercial General Liability insurance shall be
written on an occurrence basis, with an aggregate limit location endorsement for the
Franchise Area, and shall provide coverage for any and all costs, including defense costs,
and losses and damages resulting from personal injury, bodily injury and death, property
damage, products liability and completed operations. Such insurance shall include broad
form and blanket contractual coverage, including coverage for the Franchise as now or
hereafter amended and specific coverage for the indemnity provisions set forth herein.
Coverage must be written with the following limits of liability:
$5,000,000 for bodily injury or death to each person;
$5,000,000 for property damage resulting form any one accident;
$5,000,000 for all other types of liability; and
$3,000,000 for premises -operations, explosions and collapse hazard,
underground hazard and products completed hazard;
2.2 Automobile Liability shall include owned, hired, and non -owned
vehicles on an occurrence basis with coverage of at least $3,000,000 per occurrence;
2.3 Workers Compensation Insurance: shall be maintained during the
life of this Franchise to comply with statutory limits for all employees, and in the case
any work is sublet, Franchisee shall require its contractors and subcontractors similarly to
provide workers' compensation insurance for all the employees. Franchisee shall also
maintain, during the life of this policy, employer's liability insurance with limits of
$1,000,000 each occurrence;
2.4 Excess or Umbrella Liability: $5,000,000 each occurrence and
$5,000,000 policy limit; and
2.5 Pollution Legal Liability Insurance: $5,000,000 per occurrence and
$10,000,000 in the aggregate (at the option of the City).
52.
Endorsements.
3.1 Franchisee's insurance coverage shall be primary insurance with
respect to the City. Any insurance, self-insurance, or insurance pool coverage maintained
by the City shall be in excess of Franchisee's insurance and shall not contribute to it.
3.2 Franchisee, through policy endorsement, shall waive its rights of
subrogation against the City for all claims and suits.
3.3 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.
3.4 Franchisee's insurance shall name the City as an additional insured,
and other Persons to whom the City is obligated under separate agreement or by Law, to
protect or insure as an additional insured, from and against Liabilities arising out of Work
performed in the Right -of -Way under a grant of authority of the City.
3.5 Franchisee's insurance shall include a requirement that the "railroad
exclusion" be deleted or may include, in the alternative, ISO endorsement CG 2417.
3.6 Franchisee shall request from its insurance provider that the
insurance coverages and limits provided herein shall not be canceled or reduced, nor the
intention not to renew be stated so as to be out of compliance with the requirements
herein without sixty (60) days written notice, certified mail, return receipt requested, first
being given to the City. If the insurance is canceled or reduced in coverage, Franchisee
shall provide a replacement policy. ATC shall request from its insurance provider that
each policy contain the following endorsement:
It is hereby understood and agreed that this policy may not be canceled
nor the intention not to renew be stated until 60 days after receipt by the
City, by registered mail, of a written notice addressed to the City Manager
of such intent to cancel or not to renew.
4. Acceptability of Insurers. Each insurance policy obtained pursuant to this
Franchise shall be issued by financially sound insurers who may lawfully do business in
the State of Washington with a financial strength rating at all times during coverage of no
less than an "A' and in a financial size category of no less than "X", in the latest edition
of "Best's Rating Guide" published by A.M. Best Company. In the event that at any time
during coverage, the insurer does not meet the foregoing standards, Franchisee shall give
prompt notice to the City and shall seek coverage from an insurer that meets the
foregoing standards. The City reserves the right to change the rating or the rating guide
depending upon the changed risks or availability of other suitable and reliable rating
guides.
5. Verification of Coverage. Franchisee shall furnish the City with signed
certificates of insurance and a copy of the amendatory endorsements, including, but not
53.
necessarily limited to, the additional insured endorsement, evidencing the Automobile
Liability, Commercial General Liability and Umbrella or Excess insurance of Franchisee
upon acceptance of this Franchise. The certificate for each insurance policy is to be signed
by a Person authorized by that insurer to bind coverage on its behalf. The certificate for
each insurance policy must be on standard forms or on such forms as are consistent with
standard industry practices. Franchisee hereby warrants that its insurance policies satisfy the
requirements of this Franchise.
6. Deductible. Commercial General Liability Insurance policies and
coverage required herein may include a reasonable deductible not to exceed 10% of the
minimum per occurrence commercial general liablity policy limits; provided, however,
that if Franchisee elects to include any deductible, Franchisee shall itself directly cover,
in lieu of insurance, any and all City Liabilities that would otherwise in accordance with
the provisions of this Franchise be covered by Franchisee insurance if Franchisee elected
not to include a deductible. Such direct coverage by Franchisee shall be in an amount
equal to the amount of Franchisee's actual deductible.
7. No Limitation. Franchisee's maintenance of insurance policies required by
this Franchise shall not be construed to excuse unfaithful performance by Franchisee or limit
the liability of Franchisee to the coverage provided in the insurance policies, or otherwise
limit the City's recourse to any other remedy available at law or in equity.
8. Modifications of Coverages and Limits. The City reserves the right,
during the term of the Franchise, to require any other insurance coverage or adjust the
policy limits as it deems reasonably necessary utilizing sound risk management practices
and principals based upon the loss exposures; provided that the City may not require
other insurance limits or change the policy limits for Franchisee unless the City
contemporaneously makes comparable changes to the insurance requirements for other
franchisees with comparable franchises, services and installations in the Right -of -Way.
Prior to imposing such additional coverage or adjusting existing required coverages or
limits, the City shall provide reasonable notice to Franchisee and an opportunity to
provide comments, and the City shall review and consider such comments that are timely
made.
9. Public Franchisees. Franchisee Commercial General Liability,
Automobile Liablity and Umbrella Coverage Insurance policies and coverage required
herein for Public Franchisees may include a reasonable self -insured retention; provided,
however, that as to any self -insured retention, Franchisee shall itself directly cover, in
lieu of insurance, any and all City liabilities that would otherwise in accordance with the
provisions of this Franchise be covered by Franchisee insurance if Franchisee elected not
to include a self -insured retention. Such direct coverage by Franchisee shall be in an
amount equal to the amount of Franchisee's actual self -insured retention. "Public
Franchisee" for purposes of this Section 9 shall mean and include, any Franchisee
organized as a political subdivision of the state of Washington, but shall not mean or
include agents, contractors and subcontractors of Franchisee that are not also organized
54.
as political subdivisions. Franchisee shall be required to provide verification of self-
insurance retention coverage in a form and content acceptable to the City.
55.
la I:
Financial Security
Franchisee shall comply with the financial security requirements set forth in Exhibit B.
56.
EXHIBIT H
Form of Parental Guarantee
This Guaranty is made on the date set forth below by SpectraSite Communications, LLC,
a Delaware limited liability company (hereinafter referred to as the "Guarantor").
RECITALS:
WHEREAS, ATC Outdoor DAS, LLC, a Delaware limited liability company, with a
principal place of business at 116 Huntington Ave. 11t' Floor, Boston, MA 02116,
("Franchisee") is a directly held, wholly -owned subsidiary of the Guarantor; and
WHEREAS, Franchisee and the City of Medina (the "City"), have entered into a
Franchise Agreement (the "Franchise") dated , 2011; and
WHEREAS, the Franchise requires Guarantor to guaranty the observance, fulfillment and
performance of Franchisee's obligations under the Franchise;
NOW, THEREFORE, in partial consideration of the City's grant of the Franchise
Agreement to Franchisee, and in addition to other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the Guarantor hereby agrees to the following:
TERMS:
1. Guarantor guarantees to the City the observance, fulfillment and performance by
Franchisee of each and every obligation of Franchisee in the Franchise, except to the extent that
any such provision or obligation is unenforceable under applicable law (the "Guaranty").
2. The Guaranty shall continue in full force and effect until the City releases the
Guarantor from its obligations under this Guaranty, Franchisee Transfers all of its
Telecommunications Facilities to a third person pursuant to Section 2.7 of the Franchise;
provided that such third person is not an Affiliate of Guarantor, Franchisee abandons its
Telecommunications Facilities in place pursuant to Section 7.14 of the Franchise, Franchisee
removes all of its Telecommunications Facilities from the Right -of -Way, or otherwise by
operation of Law or contract. In no event shall the Guaranty extend beyond the Term of the
Franchise Agreement.
3. This Guaranty shall be governed by and construed in accordance with the Laws of the
State of Washington.
4. If any provision of this Guaranty is determined to be illegal, invalid , or
unconstitutional by any court of competent jurisdiction or by any state or federal regulatory
authority having jurisdiction, then such determination shall have no effect on the validity of any
other provision of this Guaranty unless to do so would be inequitable or would result in a
material change in the rights and/or obligations of any Party hereunder, in which case the Parties
shall reform this Guaranty using the process set forth in Section 3.5 of the Franchise.
IN WITNESS WHEREOF, the Guarantor has caused the Guaranty to be executed by its
duly authorized representative on the date set forth below.
BY:� ....�.
NAME: Steven C. Marshall
TITLE: Executive Vice President and President, U.S. Tower Division
DATE:
COMMONWEALTH OF
MASSACHUSETTS I ss.
COUNTY OF ESSEX
On this day of ft,n,L^f 4 , 2011, before me, the undersigned notary
public, personally appeared Steven C. Marshaft, as Executive Vice President and President, U.S.
Tower Division for SpectraSite Communications, LLC, proved to me through satisfactory
evidence of identification, which were kj)o".!/1 , to be the person whose
name is signed on the preceding or attached document, and acknowledged to me that he signed it
voluntarily for its stated purpose.
� j r
C F -
Pa Aw
i
(Signat o Notary)
T(t S, i ��
Print Name
Notary public in and for the Commonwealth of
Massachusetts
My commission expires 3 o2Ul
Proved as to fbrI' :
nericen TCVW L4961
W.e�i1.1rr�
Contractor/Subcontractor Insurance Requirements
1 General Requirement. Prior to commencing and during the period of Work
performed within the Franchise Area, Franchisee contractors and subcontractors (hereafter
the "Contractors") must have in place adequate insurance to protect the City against claims
for death or injuries to Persons or damages to property or equipment which in any way
relate to, arise from or are connected with such Work.
2 Minimum Insurance Limits. The Contractors shall maintain the following
minimum insurance coverages and limits:
2.1 Commercial General Liability: insurance to cover liability, bodily
injury, and property damage. The Commercial General Liability insurance shall be
written on an occurrence basis, with an aggregate limit location endorsement for the
Franchise Area, and shall provide coverage for any and all costs, including defense costs,
and losses and damages resulting from personal injury, bodily injury and death, property
damage, products liability and completed operations. Coverage must be written with the
following limits of liability:
$1,000,000 per occurrence;
$2,000,000 general aggregate; and
$1,000,000 products/completed operations aggregate.
2.2 Automobile Liability shall include owned, hired, and non -owned
vehicles on an occurrence basis with coverage of at least $1,000,000 per occurrence.
2.3 Workers Compensation Insurance: shall be maintained during the
period of such Work to comply with statutory limits for all employees.
Endorsements.
3.1 The Contractor's insurance coverage shall be primary insurance with
respect to the City. Any insurance, self-insurance, or insurance pool coverage maintained
by the City shall be in excess of the Contractor's insurance and shall not contribute to it.
3.2 Contractor, through policy endorsement, shall waive its rights of
subrogation against the City for all claims and suits.
3.3 That the 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.
3.4 The Contractor's insurance shall name the City as an additional
insured, and other Persons to whom the City is obligated under separate agreement or by
59.
Law, to protect or insure as an additional insured, from and against Liabilities arising out of
Work performed in the Right -of -Way under a grant of authority of the City.
3.5 The Contractor's insurance shall include a requirement that the
"railroad exclusion" be deleted or may include, in the alternative, ISO endorsement CG
2417.
3.6 The insurance coverages and limits provided herein shall not be
canceled or reduced, nor the intention not to renew be stated so as to be out of
compliance with the requirements herein without thirty (30) days written notice, certified
mail, return receipt requested, first being given to the City. If the insurance is canceled or
reduced in coverage, Franchisee shall provide a replacement policy.
4 Acceptability of Insurers. Each insurance policy required herein shall be
issued by financially sound insurers who may lawfully do business in the State of
Washington with a financial strength rating at all times during coverage of no less than an
"A-" and in a financial size category of no less than "IX", in the latest edition of `Best's
Rating Guide" published by A.M. Best Company. In the event that at any time during
coverage, the insurer does not meet the foregoing standards, Contractor shall give prompt
notice to the City and shall seek coverage from an insurer that meets the foregoing
standards. The City reserves the right to change the rating or the rating guide depending
upon the changed risks or availability of other suitable and reliable rating guides.
5 Verification of Coverage. Franchisee shall furnish the City with Contractors'
signed certificates of insurance and a copy of the amendatory endorsements, including, but
not necessarily limited to, the additional insured endorsement, evidencing the Automobile
Liability, and Commercial General Liability policies of the Contractors. The certificate for
each insurance policy is to be signed by a Person authorized by that insurer to bind coverage
on its behalf. The certificate for each insurance policy must be on standard forms or on such
forms as are consistent with standard industry practices.
6 Deductible. Commercial General Liability Insurance policies and
coverage required herein may include a reasonable deductible not to exceed % of the
minimum per occurrence commercial general liablity policy limits; provided, however,
that if Contractor elects to include any deductible, Contractor shall itself directly cover, in
lieu of insurance, any and all City Liabilities that would otherwise in accordance with the
provisions of these requirements be covered by Contactors insurance if Contractor
elected not to include a deductible. Such direct coverage by Contractor shall be in an
amount equal to the amount of Contractor's actual deductible.
7 No Limitation. Contractor's maintenance of insurance policies required by
herein shall not be construed to excuse unfaithful performance by Franchisee or limit the
liability of Franchisee or Contractor to the coverage provided in the insurance policies, or
otherwise limit the City's recourse to any other remedy available at law or in equity.
8 Modifications of Coverages and Limits. The City reserves the right,
during the term of the Franchise, to require any other insurance coverage or adjust the
roll)
policy limits as it deems reasonably necessary utilizing sound risk management practices
and principals based upon the loss exposures; provided that the City may not require
other insurance limits or change the policy limits for Franchisee's Contractors and/or
Subcontractors unless the City contemporaneously makes comparable changes to the
insurance requirements for other franchisee's with comparable franchises, services and
installations in the Right -of -Way. Prior to imposing such additional coverage or
adjusting existing required coverages or limits, the City shall provide reasonable notice to
Franchisee and an opportunity to provide comments, and the City shall review and
consider such comments that are timely made.
61.
DATE (MM/DDIYYYY)
CC 'Q> CERTIFICATE OF LIABILITY INSURANCE 1 2/3/2011
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED
REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to
the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the
certificate holder in lieu of such endorsement(s). CONTACT
PRODUCER Wells Fargo Insurance Services USA, Inc. PHONE AIC No FAX
C
699 Boylston Street, 6th Floor EMAIL
ADDRESS:
Boston, MA 02116 PRODUCER AME82345
r11cTnMFR In It
INSURED
INSURERA: Liberty Mutual Insurance Co. 23043
American Tower Corporation INSURER B : Great American Assurance Company 26344
116 Huntington Ave INSURER C : American International Specialty Lines Ins. Co. 26883
E:
Boston, MA 02116
kit iIu RFR• See below
COVERAGES
GEKIII-IGAIt_
IS TO CERTIFY THAT THE POLICIES
NOTWITHSTANDING ANY REQUIREMENT,
MAY BE ISSUED OR MAY PERTAIN,
AND CONDITIONS OF SUCH POLICIES,
TYPE OF INSURANCE
OF INSURANCE
ADDL
INS
THE
SUBR
NUmGCrc: -------
LISTED BELOW HAVE BEEN
TERM OR CONDITION OF ANY
INSURANCE AFFORDED BY THE
LIMITS SHOWN MAY HAVE BEEN REDUCED
POLICY NUMBER
ISSUED TO
CONTRACT
POLICIES
BY PAID
POLICY EFF
MMIDDIYYYY
THE INSURED
OR OTHER DOCUMENT
DESCRIBED
CLAIMS.
POLICY EXP
MM/DDIYYYY
12/01/11
—
NAMED ABOVE FOR THE POLICY PERIOD
WITH RESPECT TO WHICH THIS
HEREIN IS SUBJECT TO ALL THE TERMS,
LIMITS
THIS
INDICATED.
CERTIFICATE
EXCLUSIONS
ILTR
$ 1,000,000
A
GENERAL LIABILITY
X COMMERCIAL GENERAL LIABILITY
CLAIMS -MADE a OCCUR
X
TB7-611-260127-030
12/01/10
CH CCURRENCE
EAO
DAMAGE TO RENTED
PREMISES Ea occurrence
1,000,000
$ _
MED EXP (Any one person)
$ 10,000
PERSONAL & ADV INJURY
$ 1,000,000
GENERAL AGGREGATE
$ 2,000,000
PRODUCTS - COMP/OP AGG
$ 2,000,000
GEN'L AGGREGATE LIMIT APPLIES PER:
PRO- X LOC
POLICY
AUTOMOBILE LIABILITY
X
AS7-611-260127-020
12/1/10
12/1l11
COMBINED SINGLE LIMIT
(Ea accident)
$ 1,000,000
A
BODILY INJURY (Per person)
$
X ANY AUTO
BODILY INJURY (Per accident)
$
ALL OWNED AUTOS
PROPERTY DAMAGE
(Per accident)
$
SCHEDULED AUTOS
HIRED AUTOS
NON -OWNED AUTOS
B
X
UMBRELLA LIAB
EXCESS LIAB
X
OCCUR
CLAIMS -MADE
X
UMB2098582
12/1/10
1211/11
EACH OCCURRENCE
$ 5,000,000
AGGREGATE
$ 5.0001000
DEDUCTIBLE
RETENTION $
WORKERS COMPENSATION
AND EMPLOYERS' LIABILITY Y / N
ANY PROPRIETOR/PARTNER/EXECUTIVE
OFFICERIMEMBER EXCLUDED?
(Mandatory in NH)
If yes, describe under
DESCRIPTION OF OPERATIONS below
Pollution Liability
NIA
WA7-61 D-260127-040 (AOS)
WC7-611-260127-010 (OR, W
PLS 8088059
12,01/10
12/01/10
07/25/10
12/01/11
12
07/25/11
WC STATU- OTH-
X
A
A
E.L. EACH ACCIDENT
$ 1,000,000
E.L. DISEASE - EA EMPLOYE
$ 1,000,000
E.L. DISEASE - POLICY LIMIT
Each IncidenUAgg $1,000,000
$ 1,000,000
C
DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required)
City of Medina is included as additional insured with the respect to the operations of the named insured.
M
City of Medina
333 S. Meridian
Medina, WA 98371
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN
ACCORDANCE WITH THE POLICY PROVISIONS.
AUTHORIZED REPRESENTATIVE
nf1�wT1A\I A11 . e.kf. rnc.-A
ACORD 25 (2009/09) The ACORD name and logo are registered marks of ACORD
Bond No. BMN 1880043
PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS, that we, American Tower
Corporation as Principal, and The Hanover Insurance Company a corporation
organized and existing under the laws of the State of New Hampshire and authorized to
do business in the State of Washington, as Surety, are held and firmly bound unto City of
Medina as Obligee, in the penal sum of $50,000 (fifty thousand dollars) Lawful money
of the United States of America, to the payment of which, well and truly to be made, we
hereby bind ourselves, our heirs, executors, administrators, successors and assigns,
jointly and severally, firmly by these presents.
WHEREAS, the City of Medina has approved the tower communications
facility site plan of American Tower Corporation, subject to the filing of a bond
guaranteeing completion in accordance with the approved site plan for:
'MEDINA - NODE 1
344020
2850-2864 76th Ave NE
Medina
1Jashtngton
47,63 j
_1222
MEDINA - NODE 10
449
_ _.
8001-8611 NE 7th St
Medlna
Win shln ton �
47.61 (
_1222
MEDINA - NODE 2
344929
1761-811 Overiake Dr E
Madina
Washington
47 61
-122.2
MEDINA - NODE 3
34p1
- • _.
2221 76th Ave NE
11819 761h Ave NE
_
Medina
Medlna
1 ashington
Washington
( 47 63
47.62
122.2
i
MEOiNA - NODE 4
MEDINA -NODE 5
344931
3gg932
i1304 1306 761h Ave NE
_ _.
Medina
tiNashingtan
r
{ 47.82
_122.2
_ 122.2
NODE 6
: 44933
601-605 76th Ave NE
Medina
Washtngien
I. 47 61
F -122.2
,MEDINA-
;MEDINA - NODE 7
44934
8000 8024 NE 8th St
Medina
�Nashington
{ 47.61
_ 122.2
MEDINA- NODE 8
4493
8819 8899NE 2nd PI _
Medina
Washington__
j 47 617
.122.22
MEDINA - NODE 9
444936
,8801-8809 NE 10th Sl
Medina
Washington
47.61
f -122.2
NOW THEREFORE, if the said Principal shall complete the site
facility (1) in accordance with plans and engineer's certification, (2) that Principal shall
comply with all terms of the agreement with regard to removal of partially completed
and/or nonconforming telecommunications facilities and restoration of the right-of-ways
of the city and city -owned property to its preconstruction condition, then this obligation
shall be void; otherwise to remain in full force and effect until 60 days after completion.
Signed, sealed and dated this 9"' day of February, 2011. This bond is to be effective for
the period of February 4, 2011 to February 4, 2012.
AMERI�ArOWERS, IN
By.
THE HANOV INSURA OMPANY
By
yn Co or, Attorney -in- act
THE HANOVER INSURANCE COMPANY
MASSACHUSETTS BAY INSURANCE COMPANY
CITIZENS INSURANCE COMPANY OF AMERICA
POWERS OF ATTORNEY
CERTIFIED COPY
KNOW ALL MEN BY THESE PRESENTS: That THE HANOVER INSURANCE COMPANY and MASSACHUSETTS BAY INSURANCE COMPANY,
both being corporations organized and existing under the laws of the State of New Hampshire, and CITIZENS INSURANCE COMPANY OF
AMERICA, a corporation organized and existing under the laws of the State of Michigan, do hereby constitute and appoint
Eva M. Durkin, Donna M. Fennell, Kristen Baez and/or Evelyn O'Connor
of Boston, MA and each Is a true and lawful Attorneys) -in -fact to sign, execute, seal, acknowledge and deliver for, and on its behalf,
and as its act and deed any place within the United States, or, if the following line be filled In, only within the area therein designated
any and all bonds, recognizances, undertakings, contracts of indemnity or other writings obligatory in the nature thereof, as follows:
Any such obligations in the United States, not to exceed One Million and Noi100 ($1,000,000) in any single Instance
and said companies hereby ratify and confirm all and whatsoever said Attorneys) -in -tact may lawfully do in the premises by virtue of these presents.
These appointments are made under and by authority of the following Resolution passed by the Board of Directors of said Companies which
resolutions are still In effect:
"RESOLVED, That the President or any Vice President, in conjunction with any Assistant Vice President, be and they are hereby authorized and
empowered to appoint Attorneys -In -fact of the Company, in its name and as its acts, to execute and acknowledge for and on its behalf as Surety any and
all bonds, recognizances, contracts of indemnity, waivers of citation and all other writings obligatory In the nature thereof, with power to attach thereto the
seal of the Company. Any such writings so executed by such Attorneys -in -fact shall be as binding upon the Company as If they had been duly executed
and acknowledged by the regularly elected officers of the Company in their own proper persons" (Adopted October 7, 1981 - The Hanover Insurance
Company; Adopted April 14,1982 — Massachusetts Bay insurance Company; Adopted September 7, 2001 - Citizens Insurance Company of America)
IN WITNESS WHEREOF, THE HANOVER INSURANCE COMPANY, MASSACHUSETTS BAY INSURANCE COMPANY and CITIZENS
INSURANCE COMPANY OF AMERICA have caused these presents to be sealed with their respective corporate seals, duly attested by a Vice
President and an Assistant Vice President, this 28th day of January 2011.
t � 4
THE COMMONWEALTH OF MASSACHUSETTS )
COUNTY OF WORCESTER ) SS.
THE HANOVER INSURANCE COMPANY
MASSACHUSETTS BAY INSURANCE COMPANY
CIT12E SURANCE COMPANY OF AMERICA
Mary Joanna 4d11r on, Vice Pre_Sldiqpt
Robert K. Grennan, Assistan(0ico President
On this 28th day of January 2011, before me came the above named Vice President and Assistant Vice President of The Hanover Insurance
Company, Massachusetts Bay Insurance Company and Citizens Insurance Company of America, to me personally known to be the individuals and
officers described herein, and acknowledged that the seals affixed to the preceding instrument are the corporate seals of The Hanover Insurance
Company Massachusetts Bay insurance Company and Citizens Insurance Company of America, respectively, and that the said corporate seals and
their signatures as officers were duly affixed and subscribed to said instrument by the authority and direction of said Corporations.
UMNUNIrkwtuac
��a
Nofelypollc
ww.�+wa.cq+nar�sor
My commission expires on November 3, 2011
1, the undersigned Assistant Vice President of The Hanover Insurance Company, Massachusetts Bay Insurance Company and Citizens Insurance
Company of America, hereby certify that the above and foregoing is a full, true and correct copy of the Original Power of Attorney issued by said
Companies, and do hereby further certify that the said Powers of Attorney are still in force and effect.
This Certificate may be signed by facsimile under and by authority of the following resolution of the Board of Directors of The Hanover Insurance
Company, Massachusetts Bay Insurance Company and Citizens insurance Company of America.
"RESOLVED, That any and all Powers of Attorney and Certified Copies of such Powers of Attorney and certification in respect thereto, granted and
executed by the President or any Vice President in conjunction with any Assistant Vice President of the Company, shall be binding on the Company to the
same extent as if all signatures therein were manually affixed, even though one or more of any such signatures thereon may be facsimile." (Adopted
October 7. 1981 - The Hanover Insurance Company; Adopted April 14, 1982 Massachusetts Bay Insurance Company; Adopted September 7, 2001 -
Citizens Insurance Company of America) /
GIVEN under my hand and the seals of said Companies, at Worcester, Massachusetts, this - day of r('6i rsu , 20 /( .
THE HANOVER INSURANCE COMPANY
MASSACHUSETTS BAY INSURANCE COMPANY
CITIUNS INSU CE C ANY OF ERICA
rzA,
Srepp i3reul , ssisfa r Ica Pies n!
8398 NORTHEAST 12 STREET I P.O. BOX 144 1 MEDINA, WA 98039-0144
TELEPHONE 425.233.6400 1 FAX 425.451.8197 1 www.medina-wa.gov
January 26, 2011
ATC Outdoor DAS, LLC
American Tower Corporation
Attn: Alexander P. Gamota
10 Presidential Way
Woburn, MA 01801
Re: Franchise Agreement — Ordinance No. 863 - Acceptance
Dear Mr. Gamota:
The purpose of this letter agreement (the "Letter Agreement") is to express our
mutual understanding of the effect of Section 4.1 and 4.2 of the franchise agreement (City
Ordinance No. 863) passed and approved by the Medina City Council.
As you are aware, the City and ATC Outdoor DAS, LLC ("ATC") had mutually
agreed that after passage of the ordinance on November 8, 2010, certain clerical errors
within the franchise ordinance would need to be corrected before the final ordinance
could be prepared for attestation by the City Clerk and the Mayor's signature and prior to
formal written acceptance by ATC. However, the clerical errors were not completed
until the 14`Y' day of January, thus delaying formal written acceptance of the franchise
agreement by ATC beyond the 30 period set forth at section 4.1 of the franchise
agreement.
We believe that the parties are in agreement that any delay in formal written
acceptance of the franchise agreement by ATC was due to circumstances beyond its
control and that such failure to timely accept the franchise is excused by the provisions of
Section 8.15 (Force Majeure) of the franchise agreement. Thus, ATC is not in violation
of the provisions of section 4.1 of the franchise requiring written acceptance within 30
days following passage and approval of the franchise ordinance. Further, we believe that
the parties are in agreement that, for purposes of the provisions of section 4.2 of the
franchise providing that failure timely file acceptance will result in the franchise being
deemed void, the written acceptance that has been, or will contemporaneously herewith
be, filed with the City Clerk, will deemed by the City and ATC Outdoor DAS, LLC, to
have been timely filed.
If you are in agreement with the foregoing, please have the appropriate person on
behalf of ATC execute the acceptance below.
• Page 2
January 26, 2011
Youp truly,
Donna Hanson
City Manager
City of Medina
4,
Acc pted and agreed to by ATC Outdoor DAS, LLC on this day of
2011.
ATC Outdoor DAS, LLC:
-t- K 5� , '-
Print ame: yQ,,r.
Title:UP l
Mailing Address: ATC Outdoor DAS, LLC
Attn: Alex Gamota
116 Huntington Ave.
Boston, MA 02116
CITY OF MEDINA
Ordinance No. 863
AN ORDINANCE OF THE CITY OF MEDINA, WASHINGTON,
GRANTING A NONEXCLUSIVE TELECOMMUNICATIONS
FRANCHISE TO CONSTRUCT AND OPERATE A DISTRIBUTED
ANTENNA SYSTEM; PROVIDING FOR SEVERABILITY; AND
ESTABLISHING AN EFFECTIVE DATE
WHEREAS, the Right -of -Way within the City of Medina ("City") belong to the
public and are built and maintained at public expense for the use of the general public,
the primary purpose of which is public travel, and must be managed and controlled
consistent with that intent; and
WHEREAS, ATC Outdoor DAS, LLC ("ATC") has made application to the City
of Medina for a telecommunications franchise to construct, install, maintain, repair and
operate a Distributed Antenna System to provide telecommunications services using the
Right -of -Way; and
WHEREAS, ATC represents that it desires to install and operate
telecommunications facilities, within the meaning of Medina Municipal Code Section
19.02.020 (Exhibit B), within Medina; and
WHEREAS, based on representations and information provided by ATC, and in
response to its request for the grant of a franchise, the City Council has determined that
the grant of a nonexclusive franchise, on the terms and conditions herein and subject to
applicable law, are consistent with the public interest; and
WHEREAS, the City is authorized by applicable law to grant such a nonexclusive
franchises within the boundaries of the City;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MEDINA,
WASHINGTON, DO ORDAIN AS FOLLOWS:
Section 1. Grant of Franchise. The City of Medina hereby grants to ATC Outdoor
DAS, LLC a nonexclusive telecommunications franchise to construct and operate a
distributed antenna system, which Franchise Agreement shall read as follows:
1.
TABLE OF CONTENTS.
ARTICLE 1. DEFINITIONS
ARTICLE 2. FRANCHISE GRANT
2.1 Right -of -Way Use Authorized
2.2 Authorized Services
2.3 No rights shall pass to Franchisee by implication
2.4 Interest in the Ri t-of-Way
2.5 Condition of Franchise Area
2.6 Franchise Nonexclusive
2.7 Transfer
2.8 Street Vacation
2.9 Reservation of City Use of Ri t-of-Way
ARTICLE 3. COMPLIANCE WITH LAWS/ORDER OF PRECEDENCE
3.1 Compliance with Laws
3.2 Police Powers
3.3 Alteration of Material Terms and Conditions
3.4 Reservation of Rights/Wavier
3.5 Subsequent Action
3.6 Change in Form of Government
3.7 Relationship to MMC
ARTICLE 4. ACCEPTANCE
4.1
4.2
Acceptance
Failure to Timely File Acceptance
4.3
Effective Date; Term
4.4
Effect of Acceptance
4.5
Effect of Expiration/Termination
4.6
Renewal
ARTICLE 5. PROTECTION OF THE CITY AND PUBLIC
5.1 Indemnification
5.2 Environmental Indemnity - Attached Exhibit E
5.3 Insurance Requirements - Attached Exhibit F
5.4 Financial Security - Attached Exhibit G
5.5 Parental Guarantee - Attached Exhibit H
5.6 Contractors/Subcontractors - Attached Exhibit I
5.7 Liens
5.8 Financial Conditions
2.
ARTICLE 6. ENFORCEMENT AND REMEDIES.
6.1 Communication and Discussion
6.2 Breach/Right to Cure
6.3 Remedies
6.4 Revocation
6.5 Assessment of Liquidated Damages
6.6 Receivership
ARTICLE 7. GENERAL CONDITIONS UPON USE OF RIGHT-OF-WAY
7.1 Conditions Precedent to Work
7.2 Compliance with Standards/Codes
7.3 Undergrounding Requirements
7.4 Work in the Ri t-of-Way
7.5 Alterations
7.6 General Conditions
7.7 Telecommunications Facility Relocation at Request of the City for Public
Improvements
7.8 Movement of Telecommunications Facilities for Others
7.9 Movement of Telecommunications Facilities During Emergencies
7.10 Record of Installations
7.11 Restoration of Right -of -Way, Public and Private Property
7.12 Approvals
7.13 Abandonment of Telecommunications Facilities
7.14 Relationship to MMC
ARTICLE 8. MISCELLANEOUS
8.1 Headings
8.2 Entire Agreement
8.3 Incorporation of Exhibits
8.4 Calculation of Time
8.5 Time Limits Strictly Construed
8.6 No Joint Venture
8.7 Approval AuthoritX
8.8 Binding Effect upon Successors and Assigns
8.9 Waiver
8.10 Severabilitv
8.11 Signs
8.12 Discriminatory Practices Prohibited
8.13 Notice
8.14 Survival of Terms
8.15 Force Majeure
8.16 Attorne. s' Fees
8.17 Venue/Choice of Law
a
8.18 Publication
EXHIBITS:
A. Map Depicting Franchise Area
B. Medina Municipal Code Title 19
C. Form of Transfer Agreement
C-1. Acceptance of Franchise and Performance Guarantee
D. Acceptance of Franchise
E. Environmental Indemnity
F. Insurance Requirements
G. Financial Security
H. Form of Parental Guarantee
I. Contractor/Subcontractor Insurance Requirements
ARTICLE 1. DEFINITIONS
For the purposes of this Franchise and the Exhibits attached hereto, the following
terms, phrases, words and their derivations where capitalized shall have the meanings given
herein. Words not defined herein shall have the meaning given in Medina Municipal Code
("MMC") Title 19 (as set forth in Exhibit B hereto). Words not defined herein or in MMC
Title 19 (Exhibit B), shall have the meaning given in MMC Chapter 17.90. Words not
defined herein or in MMC Title 19 (Exhibit B) or MMC Chapter 17.90 shall have the same
meaning given pursuant to such federal or state statutes, rules, or regulations that apply to
and regulate the services provided by Franchisee. Words not otherwise defined shall be
given their common and ordinary meaning. When not inconsistent with the context, words
used in the present tense include the future, words in the plural include the singular, and
words in the singular include the plural. The word "shall" is always mandatory and not
merely directory. References to governmental entities (whether persons or entities) refer
to those entities or their successors in authority. If specific provisions of law, regulation
or rule referred to herein be renumbered, then the reference shall be read to refer to the
renumbered provision.
"Breach" shall mean any failure of a Party to keep, observe, or perform any of its
duties or obligations under this Franchise.
"City" shall mean the City of Medina.
"Construct", "Constructing" or "Construction" shall mean to construct,
reconstruct, install, reinstall, align, realign, locate, relocate, adjust, affix, attach, remove,
or support.
"Direct Costs" shall mean and include all costs and expenses incurred by the City
directly related to a particular activity or activities set forth in this Franchise, including by
way of example:
4.
i. All costs and expenses of materials, equipment, supplies, utilities,
consumables, goods and other items used or incorporated in connection with and in
furtherance of the activity or activities set forth in this Franchise and any taxes, insurance,
and interest expenses related thereto, including costs for crews and equipment;
ii. All costs and expenses of labor inclusive of payroll benefits, non-
productive time and overhead for each of the labor classifications of the employees
performing work for the activity or activities set forth in this Franchise and determined in
accordance with the City's ordinary governmental accounting procedures; and
iii. All costs and expenses to the City for any Work performed by
consultants or contractors to the extent performed for a particular activity or activities set
forth in this Franchise, including by way of example and not limitation, engineering and
legal services.
"Dispute" shall mean a question or controversy that arises between the Parties
concerning the observance, performance, interpretation or implementation of any of the
terms, provisions, or conditions contained in this Franchise or the rights or obligations of
either Party under this Franchise.
"DAS" or "Distributed Antenna System" means a network comprised of small,
spatially separated, low -power antennas referred to as "nodes", connected to a "central
hub" by "fiber optic cable" or other transport medium.
"Effective Date" shall mean and refer to that term as it is defined at Section 4.3
herein.
"Emergency" shall, in addition to the meaning given pursuant to MMC Section
19.02.020 in Exhibit B, mean and refer to a sudden condition or set of circumstances that
significantly disrupts or interrupts the operation of Telecommunications Facilities in the
Right -of -Way and Franchisee's ability to continue to provide services if immediate action
is not taken.
"Environmental Law(s)" means any federal, state or local statute, regulation,
code, rule, ordinance, order, judgment, decree, injunction or common law pertaining in
any way to the protection of human health or the environment, including without
limitation, the Resource Conservation and Recovery Act, the Comprehensive
Environmental Response, the Compensation and Liability Act, the Toxic Substances
Control Act, and any similar or comparable state or local law.
"Franchisee" shall mean ATC Outdoor DAS, LLC, and any of its Affiliates.
"Franchise Ordinance" shall mean this Ordinance setting forth the terms and
conditions upon which Franchisee shall be granted a Franchise.
"Franchise Area" shall mean the area identified in Exhibit A. If, as a
consequence of the Special Use Permit process for Franchisee's Facilities, Franchisee is
a
not permitted to locate its Facilities exactly as shown on Exhibit A, the Parties agree
automatically, with no further action required by either Party, to substitute as part of this
Franchise a revised Exhibit A identifying as the Franchise Area the locations for which
Franchisee successfully obtains Special Use Permit approval to construct its Facilities.
"Hazardous Substance" means any hazardous, toxic, radioactive or infectious
substance, material or waste as defined, listed or regulated under any Environmental
Law, and any element, compound, mixture, solution, particle, or substance which
presents danger or potential danger for damage or injury to health, welfare, or to the
environment, including, but not limited to: those substances which are inherently or
potentially radioactive, explosive, ignitable, corrosive, reactive, carcinogenic, or toxic;
those substances which have been recognized as dangerous or potentially dangerous to
health, welfare, or to the environment by any federal, municipal, state, City, or other
governmental or quasi -governmental authority, and/or any department or agency thereof;
those substances which use, or have a component thereof or therein which uses, asbestos
or lead -based paint; and petroleum oil and any of its fractions.
"Law(s)" shall mean all present and future applicable laws, ordinances, rules,
regulations, resolutions, permits, environmental standards, orders, decrees and
requirements of all federal, state, City and municipal governments, the departments,
bureaus or commissions thereof, government authorities, boards or officers, any national
or local board of fire underwriters, or any other governmental body or bodies exercising
similar functions having or acquiring jurisdiction over all or any part of the
Telecommunications Facilities, including the City acting in its governmental capacity.
References to Laws shall be interpreted broadly to cover government actions, however
nominated.
"Legal action" shall mean filing a lawsuit or invoking the right to arbitration.
"Noticed Party" shall mean the Party in receipt of notice that it is in Breach.
"Party(ies)" shall mean either the City or Franchisee or both.
"Public Works Director" means and refers to the Public Works Director for the
City or his or her designee, or such officer or person who has been assigned the duties of
Public Works Director or his or her designee.
"Regulatory Permit" means a construction permit issued pursuant to MMC
Chapter 19.12 that provides specific requirements and conditions for Work to Construct
Telecommunications Facilities within the Right -of -Way, and any other permit required
pursuant to the Medina Municipal Code to perform the proposed work within the Right -
of -Way including a special use permit, building permit, street cut permit, or clearing and
grading permit.
"Remedy", "Remediate" and "Remedial Action" shall have the same meaning as
these are given under the Model Toxics Control Act (Chapter 70.105D RCW) and its
implementing regulations at Chapter 173-340 WAC.
rol
"Right -of -Way" shall have that meaning given pursuant to MMC Chapter 19.02
in Exhibit B; provided that, it shall not include railroad rights -of -way, airports, harbor
areas, buildings, parks, and other such similar facilities or property owned, maintained or
leased by the City in its governmental or proprietary capacity or as an operator of a
utility.
"Standards" shall mean those standards and codes set forth in Section 7.2 of this
Franchise.
"Telecommunications" is the transmission of information by wire, radio, optical
cable, electromagnetic, or other similar means. As used in this definition, "information"
means knowledge or intelligence represented by any form of writing, signs, signals,
pictures, sounds, or any other symbols.
"Telecommunications Facilities" shall have the same meaning given pursuant
MMC Chapter 19.02 in Exhibit B, and by way of further clarification, shall mean and
include any part or all of the facilities, equipment and appurtenances of Franchisee,
whether underground or overhead, located within the Right -of -Way as part of
Franchisee's Distributed Antenna System, including by way of example and not
limitation, radios, amplifiers, optical converters, multiplexers, antennas, nodes,
innerducts, pedestals, boxes, cabinets, coax cable trays, primary and auxiliary power
supplies, power meters, support structures, foundations, mounting hardware, cases, pipes,
lines, fiber, equipment, equipment cabinets and shelters, vaults, conductors, poles,
carriers, drains, vents, guy wires, encasements, sleeves, valves, wires, supports, towers,
anchors, transmitters, receivers, and signage.
"Transfer" shall mean any transaction in which all or a portion of the
Telecommunications Facilities are sold, leased or assigned (except a sale or transfer that
results in removal of a particular portion of the Telecommunications Facilities from the
Right -of -Way), or any transaction in which all or a portion of the the rights and/or
obligations held by Franchisee under the Franchise are transferred, sold, assigned, or
leased, in whole or in part, directly or indirectly, to another Person. A transfer of control
of an operator shall not constitute a transfer as long as the same person continues to hold
the Franchise both before and after the transfer of control. Notwithstanding the
foregoing, an agreement with a third party Telecommunications service provider to
utilize the Telecommunications Facilities shall not constitute a Transfer under this
Franchise.
"Work" shall mean any and all activities of Franchisee, or its officers, directors,
employees, agents, contractors, subcontractors, volunteers, invitees, or licensees, within
the Right -of -Way to Construct the Telecommunications Facilities.
ARTICLE 2. FRANCHISE GRANT
2.1 Right -of -Way Use Authorized. Subject to the terms and conditions of this
Franchise, the City hereby grants to Franchisee a nonexclusive Franchise authorizing
7.
Franchisee to Construct and operate Telecommunications Facilities in, along, among, upon,
across, above, over, and under the Right -of -Ways located within the Franchise Area.
Further, this Franchise incorporates by reference the provisions of MMC Title 19 as in
effect on the Effective Date of this Franchise, a copy of which is attached hereto as
Exhibit B; provided that, in the case of conflict between this Franchise and any term or
provision in Exhibit B or any future term or provision of the Medina Municipal Code, the
conflict shall be resolved as provided in Exhibit B (see e.g., MMC Sections 19.06.040and
19.10.360). Notwithstanding the foregoing, the Parties acknowledge that the City may
hereafter modify MMC Title 19 and those modification may apply to this Franchise as
provided in Section 3.3.
2.2 Authorized Services. The grant given herein expressly authorizes Franchisee
to Construct, install, maintain, repair and operate a Distributed Antenna System to
provide Telecommunications services. This authorization is limited and is not intended nor
shall it be construed as granting Franchisee or any other Person the right, duty or privilege to
use its Telecommunications Facilities or the Right -of -Way to provide services not
specifically authorized therein. This Franchise shall not be interpreted to prevent the City
from lawfully imposing additional conditions, including additional compensation conditions
for use of the Right -of -Way, should Franchisee provide service other than
Telecommunications service. Specifically, this grant does not include the authorization to
provide Cable Service. However, this Franchise shall not be read as a concession by
Franchisee that it needs authorization to provide any services not otherwise authorized
herein.
2.3 No Rights Shall Pass to Franchisee by Implication. No rights shall pass to
Franchisee by implication. Without limiting the foregoing and by way of example, this
Franchise shall not include or be a substitute for:
2.3.1 Any other authorization required for the privilege of transacting and
carrying on a business within the City that may be lawfully required by the Laws of the
City;
2.3.2 Any agreement or authorization required by the City for Right -of -
Way users in connection with operations on or in Right -of -Way or public property
including, by way of example and not limitation, a utility permit; or
2.3.3 Any licenses, leases, easements or other agreements for occupying
any other property or infrastructure of the City or other Persons to which access is not
specifically granted by this Franchise including, without limitation, agreements for placing
devices on poles, light standards, in conduits, in vaults, in or on pipelines, or in or on other
structures or public buildings.
2.3.4 Any permits or other authorizations that may be required under the
land use code and development regulations of the City for the construction of
Telecommunications Facilities within a particular zoning district in the City, including by
way of example and not limitation, a conditional use permit or a variance.
2.4 Interest in the Right -of -Way. This Franchise shall not operate or be
construed to convey title, equitable or legal, in the Right -of -Way to Franchisee. No
reference herein to a Right -of -Way shall be deemed to be a representation or guarantee
by the City that its interest, or other right to control the use of such Right -of -Way, is
sufficient to grant its use for such purposes. This Franchise shall be deemed to grant no
more than those rights which the City may have the undisputed right and power to give.
The grant given herein does not confer rights other than as expressly provided in the grant
hereof and is subject to the limitations in applicable Law. Such right may not be
subdivided or subleased to a person other than Franchisee.
Franchisee acknowledges that, where City has an ownership interest in a
Franchise Area, that ownership interest may be a determinable fee, a public Right -of -
Way dedication, or a Right -of -Way easement, which may terminate when City either: (i)
ceases to use that Right -of -Way for Right -of -Way purposes; or (ii) uses such Right -of -
Way for purposes found to be inconsistent with use of the Right -of -Way for Right -of -
Way purposes, and that in such circumstances, City's right to franchise or grant the use of
any such Right -of -Way, or rights under any franchise of any such Right -of -Way, may be
subject to termination as of the date the circumstances set forth in either (i) or (ii) above
(unless Franchisee improves the quality of title to the applicable Franchise Area, or
acquiring additional property interests from other Persons).
Franchisee also acknowledges that, where City has ownership rights, those
ownership rights may terminate for other reasons, such as a street vacation. Franchisee
further acknowledges that Franchisee's rights under this Franchise as to any Franchise
Area are subject and subordinate to all outstanding rights and encumbrances on City's
Right -of -Way, and any easements, other Franchise Agreements, licenses, permits or
agreements in effect on or before the Effective Date. City therefore grants to Franchisee
no more right, title and interest in any Right -of -Way than the City holds in such Right -of -
Way at the time of grant, and Franchisee hereby releases City from any and all liability,
cost, loss, damage or expense in connection with any claims that City lacked sufficient
legal title or other authority to convey the rights described herein. In case of eviction of
Franchisee or Franchisee's contractors by anyone owning or claiming title to, or any
interest in the Franchise Area, City shall not be liable to Franchisee or Franchisee's
Contractors for any costs, losses or damages of any Party.
CITY DOES NOT WARRANT ITS TITLE OR PROPERTY INTEREST IN OR
TO ANY FRANCHISE AREA NOR UNDERTAKE TO DEFEND FRANCHISEE IN
THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET
ENJOYMENT IS MADE.
2.5 Condition of Franchise Area. Franchisee has inspected or will inspect
Franchise Area, and enters upon each such Franchise Area with knowledge of its physical
condition and the danger inherent in operations conducted in, on or near any Franchise
Area. FRANCHISEE ACCEPTS THE FRANCHISE AREA IN AN "AS -IS WITH ALL
FAULTS" BASIS, WITH ANY AND ALL PATENT AND LATENT DEFECTS, AND
a
IS NOT RELYING ON ANY REPRESENTATION OR WARRANTIES, EXPRESS OR
IMPLIED, OF ANY KIND WHATSOEVER FROM THE CITY AS TO ANY
MATTERS CONCERNING THE FRANCHISE AREA, including, but not limited to the
physical condition of the Franchise Area; zoning status; presence and location of existing
utilities; operating history; compliance by the Franchise Area with Environmental Laws
or other Laws and other requirements applicable to the Franchise Area; the presence of
any Hazardous Substances or wetlands, asbestos, or other environmental conditions in,
on, under, or in proximity to the Franchise Area; the condition or existence of any of the
above ground or underground structures or improvements, including tanks and
transformers in, on or under the Franchise Area; the condition of title to the Franchise
Area, and the leases, easements, Franchises, orders, licensees, or other agreements,
affecting the Franchise Area (collectively, the "Condition of the Franchise Area").
Franchisee represents and warrants to the City that neither Franchisee nor its
contractors or subcontractors have relied and will not rely on, and the City is not liable
for or bound by, any warranties, guaranties, statements, representations or information
pertaining to the Condition of the Franchise Area or relating thereto made or furnished by
the City, or any agent representing or purporting to represent the City, to whomever made
or given, directly or indirectly, orally or in writing. CITY HEREBY DISCLAIMS ANY
REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, AS TO
THE DESIGN OR CONDITION OF THE FRANCHISE AREA, ITS
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, THE
QUALITY OF THE MATERIAL OR WORKMANSHIP OF THE RIGHT-OF-WAY,
OR THE CONFORMITY OF ANY PART OF THE RIGHT-OF-WAY TO ITS
INTENDED USES. CITY SHALL NOT BE RESPONSIBLE TO FRANCHISEE OR
ANY OF FRANCHISEE'S CONTRACTORS FOR ANY DAMAGES RELATING TO
THE DESIGN, CONDITION, QUALITY, SAFETY, MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE OF ANY PART OF THE RIGHT-OF-
WAY PRESENT ON OR CONSTITUTING ANY FRANCHISE AREA, OR THE
CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED USES.
2.6 Franchise Nonexclusive. This Franchise shall be nonexclusive, and subject
to all prior rights, interests, easements, permits, franchises or licenses granted by the City to
any other Person prior to the Effective Date of this Franchise to use the Right -of -Way for
the purposes set forth in such authorizations, and subject to the right of the City to use the
same for any purpose it deems fit, including similar purposes allowed Franchisee hereunder.
Further, except as otherwise provided herein for public entities, the City may at any time
grant authorization to use the Right -of -Way for any purpose that does not unreasonably
interfere with Franchisee's authority under this Franchise.
2.7 Transfer. In addition to the requirements set forth in MMC Section
19.10.300 in Exhibit B, no Transfer may be approved by the City unless Franchisee has
delivered to the City the transferee's written commitment, in substantially the form of
the agreements attached hereto as Exhibits C and C-1, that transferee(s) shall thereafter
be responsible for all obligations of Franchisee with respect to the Franchise and
guaranteeing performance under the terms and conditions of the Franchise and that
transferee(s) will be bound by all of the conditions of the Franchise and will assume all of
10.
the obligations of its predecessor. Such a written commitment and approval of the
Transfer shall relieve Franchisee of any further obligations under the Franchise, including
any obligations not fulfilled by Franchisee's transferee; provided that, the Transfer shall
not in any respect relieve Franchisee, or any of its successors in interest, of responsibility
for acts or omissions, known or unknown, or the consequences thereof, which acts or
omissions occur prior to the time of the Transfer. It is further provided that, this
Franchise may not be Transferred without the transferee filing or establishing with the
City the insurance certificates, security fund and performance bond required pursuant to
this Franchise.
Notwithstanding the foregoing, notice to the City shall not be required for a
mortgage, hypothecation or an assignment of Franchisee's interest in the Franchise in order
to secure indebtedness.
Notwithstanding any provisions in MMC Section 19.10.300 in Exhibit B to the
contrary, Franchisee may, without the prior written notice to and consent of the City: (i)
lease the Telecommunications Facilities, or any portion thereof, to another Person; (ii)
grant an Indefeasible Right of User Interest in the Telecommunications Facilities, or any
portion thereof, to another Person; or (iii) offer or provide capacity or bandwidth in its
Telecommunications Facilities to another Person; provided that, Franchisee at all times
retains exclusive control over it Telecommunications Facilities and remains responsible
for Constructing its Telecommunications Facilities pursuant to the terms and conditions
of this Franchise; and provided further that: Franchisee may grant no rights to any such
Person that are greater than any rights Franchisee has pursuant to this Franchise; such
Persons shall not be construed to be a third -Party beneficiary hereunder; and, no such
Person may use the Telecommunications Facilities for any purpose not authorized herein.
2.8 Street Vacation. If any Right -of -Way or portion thereof used by
Franchisee is to be vacated during the term of this Franchise, unless as a condition of
such vacation Franchisee is granted the right to continue its Telecommunications
Facilities in the vacated Right -of -Way, Franchisee shall, without delay or expense to
City, remove its Telecommunications Facilities from such Right -of -Way, and restore,
repair or reconstruct the Right -of -Way where such removal has occurred, and place the
Right -of -Way in the same or better condition than existed prior to Franchisee's
Construction of its Telecommunications Facilities.
2.9 Reservation of City Use of Ri t-of-Way. Nothing in this Franchise shall
prevent the City from: Constructing sanitary or storm sewers; grading, changing grade,
paving, repairing or altering any Right -of -Way; laying down, repairing or removing water
mains; or installing conduit or fiber optic cable.
ARTICLE 3. COMPLIANCE WITH LAWS
3.1 Compliance with Laws. Except as otherwise provided herein, Franchisee
agrees to comply with all applicable Laws as now or hereafter in effect; provided that,
nothing herein shall operate as a waiver of Franchisee's right to contest the validity of
such laws or the application of such Laws to Franchisee.
11.
3.2 Police Powers. Franchisee acknowledges that its rights hereunder are
subject to those powers expressly reserved by the City and further are subject to the
police powers of the City to adopt and enforce ordinances necessary to protect the health,
safety and welfare of the public. Such powers include but are not limited to: the right to
adopt and enforce applicable zoning, building, permitting and safety ordinances and
regulations; the right to adopt and enforce ordinances and regulations relating to equal
employment opportunities; and the right to adopt and enforce ordinances and regulations
governing Work performed in the Right -of -Way. However, this Section 3.2 shall not be
read or interpreted as a waiver of Franchisee's right to contest the validity of such
ordinances or the application of such ordinances to Franchisee.
The Parties acknowledge and agree that any Regulatory Permits for the
Construction of Facilities shall be subject to the laws in effect at the time Franchisee
submits a complete application for such permit. Following completion of the
Construction authorized by such permit(s), the Parties agree that, if the Laws are
thereafter modified such that an existing Facility becomes non -conforming, such
Facilities shall be considered under the non -conforming use and structures provisions of
the Medina Municipal Code (MMC Chapter 17.60). The Parties further acknowledge and
agree that, any time Franchisee is doing work in the Right -of -Way, Franchisee shall
comply with the applicable Medina right-of-way construction standards in effect at the
time Franchisee is undertaking such work in the Medina Right -of -Way. Such standards
are, upon the effective date of this Franchise, set forth in Title 12 of the Medina
Municipal Code.
3.3 Alteration of Material Terms and Conditions. Subject to federal and State
preemption, the material rights, benefits, obligations or duties as specified in this
Franchise may not be unilaterally altered by the City through subsequent amendments to
any ordinance, regulation, resolution or other enactment of the City, except within the lawful
exercise of the City's police power. In the event of a unilateral alteration to this Franchise
by the City pursuant to this Section, either Party may initiate renegotiation of the Franchise
pursuant to Section 3.5.
3.4 Reservation of Rights/Waiver. The City shall be vested with the power and
right to administer and enforce the requirements of this Franchise and the regulations and
requirements of applicable Law, or to delegate that power and right, or any part thereof, to
the extent permitted under Law, to any agent in the sole discretion of the City. The City
expressly reserves all of its rights, authority and control arising from any relevant provisions
of federal, State or local Laws granting the City rights, authority or control over the Right -
of -Way or the activities of Franchisee. Except as provided herein, nothing in this Franchise
shall be deemed to waive the requirements of the various codes and ordinances of the
City regarding Franchises, fees to be paid or manner of Construction. Nothing in this
Franchise shall be deemed to waive, and Franchisee specifically reserves the right to
challenge, any City ordinance, regulation or resolution that conflicts with its rights under
this Franchise.
12.
3.5 Subsequent Action. In the event that after this Franchise becomes
effective, (a) there is a change in or clarification of the Law which changes, broadens or
clarifies the authority or obligations of the City or Franchisee with respect to any act
permitted or authorized under this Franchise, or (b) the State of Washington or any
agency thereof or any agency of the Federal government requires Franchisee or the City
to act in a manner which is inconsistent with any provisions of this Franchise, or (c) any
term, article, section, subsection, paragraph, provision, condition, clause, sentence, or
other portion of this Franchise, or its application to any person or circumstance, shall be
held to be illegal, invalid or unconstitutional for any reason by any court or agency of
competent jurisdiction, or (d) because of a change in circumstances, the City or
Franchisee believe that amendments to this Franchise are necessary or appropriate, then
the City and Franchisee agree to enter into good faith negotiations to amend this
Franchise so as to enable the City and Franchisee to address, in a manner reasonably
acceptable to the City and Franchisee, such change or other development which formed
the basis for the negotiations. The City and Franchisee recognize that the purpose of the
negotiations would be to preserve, to the maximum extent consistent with Law, the
intent, scope and purpose of this Franchise.
If the terms of this Franchise are materially altered due to changes in or
clarifications of governing Law or due to agency rule making or other action, then the
Parties shall negotiate in good faith to reconstitute this Franchise in a way consistent with
then -applicable Law in a form that, to the maximum extent possible, is consistent with
the original scope, intent and purpose of the City and Franchisee and preserves the
benefits bargained for by each Party.
3.6 Change in Form of Government. Any change in the form of government
of the City shall not affect the validity of this Franchise. Any governmental unit
succeeding the City shall, without the consent of Franchisee, succeed to all of the rights
and obligations of the City provided in this Franchise.
3.7 Relationship to MMC
19.10.030 and 19.10.040.
ARTICLE 4. ACCEPTANCE
This Article 3 supersedes MMC Sections
4.1 Acceptance. Within thirty (30) days after the passage and approval of this
Franchise by the City Council, this Franchise shall be accepted by Franchisee by filing with
the City Clerk during regular business hours, or such other person as may be designated by
the City, three originals of this Franchise with its original signed and notarized written
acceptance of all of the terms, provisions and conditions of this Franchise in conformance
with Exhibit C, together with all of the following, if required herein:
4.1.1 Payment in readily available funds of the administrative costs for
issuance of the Franchise in conformance with the requirements of Section 5.7 herein;
13.
4.1.2 Submission of proof of financial security in accordance with
Section 5.4 herein;
4.1.3 Payment of the costs of publication of this Franchise Ordinance in
conformance with the requirements of Sections 5.7 and 8.18 herein; and
4.1.4 Parental Guarantee, if required, in conformance with the
requirements of Section 5.5 herein.
In the event that the thirtieth day falls on a Saturday, Sunday or legal holiday during
which the City is closed for business, the filing date shall fall on the last business day before
such Saturday, Sunday or legal holiday.
4.2 Failure to Timely File Acceptance. Except as provided in this Section 4.2
below, the failure of Franchisee to timely file its written acceptance shall be deemed a
rejection by Franchisee of this Franchise, and this Franchise shall then be void. In the event
that Franchisee timely files its written acceptance but fails to timely comply with the
applicable requirements of sections 4.1.1 through 4.1.4, this Franchise shall be voidable in
the sole discretion of the City Manager without further action required by the City Council
or the consent of Franchisee. The Franchise shall be voidable until such time as Franchisee
complies with all of the applicable requirements of sections 4.1.1 through 4.1.4. No
opportunity to cure or public hearing is required to void the Franchise pursuant to this
Section 4.2 by giving written notice of the same to Franchisee.
4.3 Effective Date; Term.
4.3.1 Effective Date. Except as provided pursuant to Section 4.2 of this
Franchise, the Effective Date of this Ordinance and franchise shall be 12:01 a.m. on the 3 1 "
day following passage and approval of this Franchise by the City Council. This Franchise
and the rights, privileges, and authority granted hereunder and the contractual relationship
established hereby shall take effect and be in force from and after the Effective Date of this
Ordinance for the term hereof.
4.3.2 Term. The term of this Franchise shall commence on the Effective
Date and shall continue in full force and effect for a period of ten years, unless sooner
terminated, revoked or rendered void. This Section supersedes MMC Section 19.06.060.
4.4 Effect of Acceptance. By accepting the Franchise, Franchisee:
4.4.1 Accepts and agrees to comply with and abide by all of the lawful
terms and conditions of this Franchise;
Franchise;
4.4.2 Acknowledges and accepts the City's legal right to grant this
14.
4.4.3 Agrees that the Franchise was granted pursuant to processes and
procedures consistent with applicable Law and that it will not raise any claim to the
contrary;
4.4.4 Agrees that it enters into this Franchise freely and voluntarily,
without any duress or coercion, after free and full negotiations, after carefully reviewing
all of the provisions, conditions and terms of this Franchise Agreement, and after
consulting with counsel;
4.4.5 Acknowledges and agrees that: it has carefully read the terms and
conditions of this Franchise; it unconditionally accepts all of the terms and conditions of
this Franchise; it unconditionally agrees to abide by the same; it has relied upon its own
investigation of all relevant facts; it has had the assistance of counsel; it was not induced
to accept a Franchise; and that this Franchise represents the entire agreement between
Franchisee and the City;
4.4.6 Warrants that Franchisee has full right and authority to enter into
and accept this Franchisee in accordance with the terms hereof, and by entering into or
performing this Franchise, Franchisee is not in violation of its charter or by-laws, or any
law, regulation, or agreement by which it is bound or to which it is subject; and
4.4.7 Warrants that acceptance of this Franchise by Franchisee has been
duly authorized by all requisite Board action, that the signatories for Franchisee hereto
are authorized to sign the Franchise acceptance, and that the joinder or consent of any
other party, including a court, trustee, or referee, is not necessary to make valid and
effective the execution, delivery, and performance of this Franchise.
4.5 Effect of Expiration/Termination. Upon expiration or termination of the
Franchise without renewal or other authorization, Franchisee shall no longer be
authorized to operate the Telecommunications Facilities within the Franchise Area and
shall, to the extent it may lawfully do so, cease operation of the Telecommunications
Facilities. Forthwith thereafter, except as provided in this Section, or as otherwise
provided by ordinance, Franchisee shall: (1) remove its structures or property from the
Right -of -Way and restore the Right -of -Way as required pursuant to the applicable Right -
of -Way restoration standards; (2) sell its Telecommunications Facilities to another entity
authorized to operate Telecommunications Facilities within the Franchise Area (which
may include the City) upon City approval, to the extent the City may lawfully require its
approval; or (3) abandon any Telecommunications Facilities in place in the Right -of -Way
upon written notice to the City of Franchisee's intent to so do. If, within ninety (90) days
of the City's receipt of Franchisee's notice of abandonment, the City determines that the
safety, appearance, or use of the Right -of -Way would be adversely affected, the
Telecommunications Facilities must be removed by Franchisee by a date reasonably
specified by the City in light of the amount of work to be performed. In the event of
failure by Franchisee properly to perform such work, then the City may, after thirty (30)
days written notice to Franchisee, perform the work and collect the actual and reasonable
costs thereof.
15.
4.6 Renewal. This Franchise may be renewed pursuant to the renewal
provisions set forth in MMC Section 19.06.120 in Exhibit B.
ARTICLE 5. PROTECTION OF THE CITY AND PUBLIC
5.1 Indemnification.
5.1.1 Limitation of Liability. Franchisee hereby releases, covenants not
to bring suit and agrees to indemnify, defend and hold harmless the City, its elected and
appointed officials, officers, employees, agents, representatives, engineers, and
consultants from any and all claims, costs, judgments, awards, or liability to any person,
including claims by Franchisee's employees to which Franchisee might otherwise be
immune under Title 51 RCW, arising from injury or death of any person or damage to
property of which the negligent acts or omissions of Franchisee, its agents, servants,
officers, or employees in performing under this Franchise are the proximate cause.
Franchisee further releases, covenants not to bring suit and agrees to indemnify, defend
and hold harmless the City, its elected and appointed officials, officers, employees,
agents, representatives, engineers, and consultants from any and all claims, costs,
judgments, awards, or liability to any person including claims by Franchisee's
employees, including those claims to which Franchisee might otherwise have immunity
under Title 51 RCW, arising against the City solely by virtue of the City's ownership or
control of the Rights -of -Way or other public properties, by virtue of Franchisee's
exercise of the rights granted herein, or by virtue of the City's permitting Franchisee's
use of the City's Rights -of -Way or other public property, based upon the City's
inspection or lack of inspection of work performed by Franchisee, its agents and servants,
officers or employees in connection with work authorized on the City's property or
property over which the City has control, pursuant to this Franchise, or pursuant to any
other permit or approval issued in connection with this Franchise. This covenant of
indemnification shall include, but not be limited by this reference, to claims against the
City arising as a result of the negligent acts or omissions of Franchisee, its agents,
servants, officers, or employees in barricading, instituting trench safety systems or
providing other adequate warnings of any excavation, construction, or work in any Right -
of -Way or other public place in performance of work or services permitted under this
Franchise.
5.1.2 Inspection. Inspection or acceptance by the City of any work
performed by Franchisee at the time of completion of Construction shall not be grounds
for avoidance of any of these covenants of indemnification.
5.1.3 Compromise of Claims. Said indemnification obligations shall
extend to claims which are not reduced to a suit and any claims which may be
compromised prior to the culmination of any litigation or the institution of any litigation.
5.1.4 Refusal of Tender of Defense. In the event that Franchisee refuses
the tender of defense in any suit or any claim, said tender having been made pursuant to
the indemnification clauses contained herein, and said refusal is subsequently determined
16.
by a court having jurisdiction (or such other tribunal that the Parties shall agree to decide
the matter), to have been a wrongful refusal on the part of Franchisee, then Franchisee
shall pay all of the City's costs for defense of the action, including all reasonable expert
witness fees and reasonable attorneys' fees and the reasonable costs of the City, including
reasonable attorneys' fees of recovering under this indemnification clause.
5.1.5 Concurrent Negligence. In the event of liability for damages
arising out of bodily injury to persons or damages to property caused by or resulting from
the concurrent negligence of Franchisee and the City, its officers, employees and agents,
Franchisee's liability hereunder shall be only to the extent of Franchisee's negligence. It
is further specifically and expressly understood that the indemnification provided herein
constitutes Franchisee's waiver of immunity under Title 51 RCW, solely for the purposes
of this indemnification. This waiver has been mutually negotiated by the Parties.
5.1.6 Survival. The provisions of this Section shall survive the
expiration or termination of this Franchise.
5.1.7 Assumption of Risk/Waiver. Notwithstanding any other
provisions of this Section, Franchisee assumes the risk of damage to any
Telecommunications Facilities located in the Right -of -Way from activities conducted by
the City, its officers, agents, employees, and contractors, except to the extent any such
damage or destruction is caused by or arises from the negligence or any willful or
malicious action on the part of the City, its officers, agents, employees, or contractors.
Franchisee releases and waives any and all claims against the City, its officers, agents,
employees, or contractors for damage to or destruction of any Telecommunications
Facility caused by or arising out of activities conducted by the City, its officers, agents,
employees, and contractors, in the Right -of -Way or other public property subject to this
Franchise, except to the extent any such damage or destruction is caused by or arises
from the negligence or any willful or malicious action on the part of the City, its officers,
agents, employees, or contractors. Franchisee further agrees to indemnify, hold harmless
and defend the City against any claims for damages, including, but not limited to,
business interruption damages and lost profits, brought by or under users of Franchisee's
Telecommunications Facilities or service as the result of any interruption of service due
to damage or destruction of any Telecommunications Facility caused by or arising out of
activities conducted by the City, its officers, agents, employees, or contractors, except to
the extent any such damage or destruction is caused by or arises from the negligence or
any willful or malicious actions on the part of the City, its officers, agents, employees, or
contractors.
5.2 Environmental Indemnity. See attached Exhibit E.
5.3 Insurance Requirements. See Attached Exhibit F.
5.4 Financial Security. See Attached Exhibit G.
17.
5.5 Parental Guarantee. If the Franchise is wholly owned or is controlled by
another Person, the City may require Franchisee to cause such Person to provide, upon
acceptance of this Franchise, a guarantee by such Person of performance by Franchisee of
Franchisee's rights, duties and obligations herein, in substantially the form of the parental
guarantee attached hereto as Exhibit H. "Control" shall mean de jure or de facto control
over Franchisee and does not necessarily imply a majority ownership of Franchisee by
such Person. If Franchisee is a partnership or limited liability company or similar entity,
the City may require a guarantee from the principal partners/members of the partnership,
limited liability company or similar entity.
5.6 Contractors/Subcontractors. Franchisee contractors and subcontractors
performing Work in the Right -of -Way shall comply with such bond, indemnity and
insurance requirements as may be required by City code or regulations, or other
applicable Law. If no such requirements are set forth in the City code or regulations,
Franchisee contractors and subcontractors shall comply with the requirements set forth in
attached Exhibit I.
5.7 Liens. In the event that any City property becomes subject to any claims
for mechanics', artisans', or materialmen's liens, or other encumbrances chargeable to or
through Franchisee which Franchisee does not contest in good faith, Franchisee shall
promptly, and in any event within 30 days, cause such lien claim or encumbrance to be
discharged or released of record (by payment, posting of bond, court deposit, or other
means), without cost to the City, and shall indemnify the City against all costs and
expenses (including attorneys' fees) incurred in discharging and releasing such claim of
lien or encumbrance. If any such claim or encumbrance is not so discharged and
released, the City may pay or secure the release or discharge thereof at the expense of
Franchisee after first giving Franchisee fifteen (15) business days' advance notice of its
intention to do so. Nothing herein shall preclude Franchisee's or the City's contest of a
claim for lien or other encumbrance chargeable to or through Franchisee or the City, or of
a contract or action upon which the same arose.
5.8 Financial Conditions.
5.8.1 Franchise Fee. The Parties understand that, upon the Effective Date
of this Franchise, RCW 35.21.860 prohibited the imposition of a municipal Franchise Fee
upon revenues derived from Franchisee Telephone Business Activities; however, the Parties
dispute the application of this prohibition to revenues derived by Franchisee from its
activities within the Public Right -of -Way. The Parties have, for good and valuable
consideration the adequacy of which is hereby acknowledged, agreed that for the term of
this Franchise, no franchise fees shall be due or required.
5.8.2 Reimbursement of Direct Costs of Issuance Renewal Amendment
and Administration. Franchisee shall reimburse the City for the City's Direct Costs relating
to the issuance, renewal, amendment (if requested by or for the benefit of Franchisee) and
administration of this Franchise.
a
5.8.3 Reimbursement of Direct Costs of Design Review and Inspection.
City approvals and inspections, as provided for in this Franchise, are for the sole purpose
of protecting the City's rights as the owner or manager of the road Right -of -Way and are
separate and distinct from the approvals and inspections and fees that may be required
pursuant to a Regulatory Permit. Therefore, Franchisee shall reimburse to the City its
Direct Costs of approvals and inspections, to the extent that such Direct Costs are not
included in the costs for issuance of and compliance with the Regulatory Permit.
Approvals and inspection, by way of example and not limitation, include review of
design documents and inspection for compliance with Standards and plans approved by
the City.
5.8.4 Reimbursement of Direct Costs of Altering Ri t-of-Way.
Franchisee shall reimburse the City for the Direct Costs incurred by the City in planning,
designing, constructing, installing, repairing or altering any City infrastructure, structure,
or facility as the result of the actual or proposed presence in the Right -of -Way of
Franchisee's Telecommunications Facilities. Such costs and expenses shall include, but
not be limited to, the Direct Costs of City personnel and contractors utilized to oversee or
engage in any work in the Right -of -Way as the result of the presence of Franchisee's
Telecommunications Facilities in the Right -of -Way, and any time spent reviewing
construction plans in order to either accomplish the relocation of Franchisee's
Telecommunications Facilities or the routing or rerouting of any public utilities or Right -
of -Way so as not to interfere with Franchisee's Telecommunications Facilities. Upon
request as a condition of payment by Franchisee, all billing will be itemized so as to
specifically identify the Direct Costs and expenses for each project for which the City
claims reimbursement. A reasonable charge for the actual cost incurred in preparing the
billing may also be included in said billing.
5.8.5 Franchisee Responsibility for Costs. Except as expressly provided
otherwise in this Franchise, any acts that Franchisee, its contractors or subcontractors are
required to perform under this Franchise shall be performed at their sole cost and
expense.
5.8.6 Franchisee Work Performed by the City. Any work performed by
the City that Franchisee has failed to perform as required pursuant to this Franchise and
which is performed by the City in accordance with the terms of this Franchise, shall be
performed at the cost and expense of Franchisee. Franchisee shall be obligated to pay the
Direct Costs to the City of performing such work.
5.8.7 Costs to be Borne by Franchisee. Franchisee shall reimburse the
City for all costs of publication of this Franchise, and any notices prior to any public hearing
regarding this Franchise, contemporaneous with its acceptance of this Franchise.
5.8.8 Taxes and Fees. Nothing contained in this Franchise Agreement
shall exempt Franchisee from Franchisee's obligation to pay any utility tax, business tax,
or ad valorem property tax, now or hereafter levied against real or personal property
within the City, or against any local improvement assessment imposed on Franchisee.
19.
Any fees, charges and/or fines provided for in the Medina Municipal Code or any other
City ordinance, and any compensation charged and paid for the Right -of -Way, whether
pecuniary or in -kind, are separate from, and additional to, any and all federal, state, local,
and City taxes as may be levied, imposed or due from Franchisee.
5.8.9 Itemized Invoice. Upon request and as a condition of payment by
Franchisee of Direct Costs payable by Franchisee under this Franchise, the City shall
submit an itemized billing so as to specifically identify the Direct Costs incurred by the
City for each project for which the City claims reimbursement.
5.8.10 Time for Payment. All non -contested Direct Costs shall be due
and paid within thirty (30) days of receipt of invoice; provided that, in the event that an
itemized invoice is not provided at the time of receipt of invoice and the City receives a
request from Franchisee for an itemized invoice within 30 days of receipt of invoice, such
amounts shall be due and paid within (30) days of receipt of the itemized invoice.
5.8.11 Overdue Payments. Any Direct Costs payable under this Franchise
by Franchisee which are not paid upon the due date thereof shall bear interest at a rate of
twelve (12%) percent per annum.
5.8.12 Contesting Charges. Franchisee may contest all or parts of any
Direct Cost within thirty (30) days of receipt of any invoice. The City shall investigate
Franchisee's contest and make appropriate adjustments to the invoice and resubmit the
invoice to Franchisee. Franchisee shall pay the Direct Costs as itemized in the
resubmitted invoice which shall be due within thirty (30) days of receipt of the
resubmitted invoice. However, Franchisee reserves the right to further contest any
charges through Legal Action.
5.8.13 Receivables. Either Party hereto may assign any monetary
receivables due them under this Franchise; provided, however, such transfer shall not
relieve the assignor of any of its rights or obligations under this Franchise.
5.8.14 Relationship to MMC. This Section 5.8 supersedes MMC Sections
19.06.090, 19.06.160, and 19.06.170.
ARTICLE 6. ENFORCEMENT AND REMEDIES
6.1 Communication and Discussion. The Parties are fully committed to
working with each other throughout the Term of this Franchise and agree to communicate
regularly with each other at all times so as to avoid or minimize Disputes. The Parties
agree to act in good faith to prevent and resolve potential sources of conflict before they
escalate into a Dispute. The Parties each commit to resolving a Dispute in an amicable,
professional and expeditious manner.
20.
6.2 Breach/Right to Cure Breach.
6.2.1 Notice. Except as provided at Section 6.2.4 herein, if a Parry
believes that the other Party is in Breach, such Party shall give written notice to the Noticed
Party stating with reasonable specificity the nature of the alleged Breach. The Noticed Party
shall have thirty (30) days, or such lesser or greater time as specified in the notice, from the
receipt of such notice to:
6.2.1.1 Respond to the other Party, contesting that Parry's assertion
that a Breach has occurred; or
6.2.1.2 Cure the alleged Breach; or
6.2.1.3 Notify the other Party that the Noticed Party cannot cure the
Breach within the time provided in the notice because of the nature of the Breach. In the
event the Breach cannot be cured within time provided in the notice, the Noticed Party shall
promptly take all reasonable steps to cure the Breach and notify the other Party in writing
and in detail as to the exact steps that will be taken and the projected completion date. In
such case, the other Party may set a meeting to determine whether additional time beyond
the time provided in the notice is indeed needed, and whether the Noticed Parry's proposed
completion schedule and steps are reasonable.
6.2.2 Time to Cure. When specifying the time period for cure, the Party
giving notice shall take into account, the nature and scope of the alleged Breach, the nature
and scope of the work required to cure the Breach, whether the Breach has created or will
allow to continue an unsafe condition, the extent to which delay in implementing a cure
will result in adverse financial consequences or other harm to the Party giving notice, and
whether delay in implementing a cure will result in a violation of applicable Law or
breach of contract.
6.2.3 Failure to Cure. If the Noticed Party fails to promptly commence
and diligently pursue cure of a Breach to completion to the reasonable satisfaction of the
Party giving notice and in accordance with the time to cure, as established pursuant to
Sections 6.2.1, 6.2.1.3 and 6.2.2, then the party giving such notice shall be entitled to
seek remedies as set forth in Section 6.3 herein or any such other remedies allowed at
Law, in contract or in equity.
6.2.4 Election. In the event of a Breach that may also constitute grounds
for revocation as set forth at Section 6.4.1.1 through 6.4.1.12 herein, the City may, at its
election and in lieu of the notice and cure procedures set forth in Section 6.2.1 through
6.2.3, follow the procedures and exercise the rights and remedies as set forth in Section
6.4 herein.
6.3 Remedies. The Parties have the right to seek any and all of the following
remedies, singly or in combination, in the event of Breach:
21.
6.3.1 Specific Performance. Each Party shall be entitled to specific
performance of each and every obligation of the other Party under this Franchise without
any requirement to prove or establish that such Party does not have an adequate remedy
at law. The Parties hereby waive the requirement of any such proof and acknowledge
that either Party would not have an adequate remedy at law for the commission of a
Material Breach hereunder.
6.3.2 Injunction. Each Party shall be entitled to restrain, by injunction,
the actual or threatened commission or attempt of an Event of Default and to obtain a
judgment or order specifically prohibiting a Material Breach of this Franchise without, in
either case, being required to prove or establish that such Party does not have an adequate
remedy at law. The Parties hereby waive the requirement of any such proof and
acknowledge that the other Party would not have an adequate remedy at law for the
commission of a Material Breach hereunder.
6.3.3 Damages; Equitable Relief. Each Party shall be entitled to
commence a Legal Action at law for monetary damages or impose liquidated damages as
set forth below or seek other equitable relief.
6.4 Revocation.
6.4.1 Cause. This Franchise, and all rights granted hereunder to
Franchisee, may be revoked by the City for any one or more of the following reasons:
6.4.1.1 Construction or operation in the City or in the Right -of -
Way of the City or upon City property without a grant of authority from an authorization,
franchise, or lease;
Franchisee;
6.4.1.2 Construction or operation at an unauthorized location;
6.4.1.3 Unauthorized substantial transfer of control of
6.4.1.4 Unauthorized assignment of the Franchise;
6.4.1.5 Unauthorized sale, assignment or transfer of a
Franchisee's Franchise assets, or a substantial interest therein;
6.4.1.6 Misrepresentation by or on behalf of Franchisee in any
application or written statement upon which the City relies in making the decision to
grant, review or amend the Franchise pursuant to MMC Title 19 (Exhibit B) or this
Franchise;
6.4.1.7 Abandonment of Telecommunications Facilities in the
public Right -of -Way or upon City property;
22.
6.4.1.8 Failure to relocate or remove Telecommunications
Facilities as required in this Franchise;
and as due the City;
Title 19; or
6.4.1.9 Failure to pay taxes, compensation, fees or costs when
6.4.1.10 Insolvency or bankruptcy of Franchisee;
6.4.1.11 Violation of any material applicable provision of MMC
6.4.1.12 Violation of any material term of this Franchise.
6.4.2 Notice and Duty to Cure. In the event that the City believes that
grounds exist for revocation of this Franchise, Franchisee shall be given written notice of
the apparent violation or noncompliance, providing a short and concise statement of the
nature and general facts of the violation or noncompliance, and providing Franchisee a
reasonable period of time not exceeding 30 days to furnish evidence:
6.4.2.1 That corrective action has been, or is being actively and
expeditiously pursued, to remedy the violation or noncompliance;
6.4.2.2 That rebuts the alleged violation or noncompliance; or
6.4.4.3 That it would be in the public interest to impose some
penalty or sanction less than revocation.
6.4.3 Hearin. In the event that Franchisee fails to provide evidence
reasonably satisfactory to the City as provided in Section 6.4.2 herein, the City shall refer
the apparent violation or noncompliance to the City Council. The City Council shall
provide Franchisee with notice and a reasonable opportunity to be heard concerning the
matter.
6.4.4 Standards for Revocation or Lesser Sanctions. If the City Council
determines that Franchisee willfully violated or failed to comply with any of the
applicable provisions of MMC Title 19 (Exhibit B) or this Franchise, or through willful
misconduct or gross negligence failed to heed or comply with any notice given
Franchisee by the City under the applicable provisions of MMC Title 19 (Exhibit B) or
this Franchise, then Franchisee shall, at the election of the City Council, forfeit all rights
conferred hereunder and the Franchise may be revoked or annulled by the City Council.
The City Council may elect, in lieu of the above and without any prejudice to any of its
other legal rights and remedies, to pursue other remedies as set forth in Section 6.3
herein. The City Council shall utilize the following factors in analyzing the nature,
circumstances, extent, and gravity of the violation and in making its determination under
this Section:
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6.4.4.1 Whether the misconduct was egregious;
6.4.4.2 Whether substantial harm resulted;
6.4.4.3 Whether the violation was intentional;
6.4.4.4 Whether there is a history of prior violations of the
same or other requirements;
6.4.4.5 Whether there is a history of overall compliance; and
6.4.4.6 Whether the violation was voluntarily disclosed,
admitted or cured.
6.5 Assessment of Liguidated Damages.
6.5.1 Because it may be difficult to ascertain or quantify the harm to the
City in the event of a Breach of this Franchise by Franchisee, the Parties agree to liquidated
damages as a reasonable estimation of the actual economic losses resulting from a Breach of
those provisions of this Franchise set forth in Section 6.5.7. To the extent that the City
elects to assess liquidated damages as provided in this Franchise, such damages shall be the
City's sole and exclusive remedy for recovery of damages resulting from such Breach and
shall not exceed a time period of one hundred eighty (180) days. Nothing in this subsection
is intended to preclude the City from exercising any other right or remedy with respect to a
Breach that continues past the time the City stops assessing liquidated damages for such
Breach.
6.5.2 Prior to assessing any liquidated damages, the City shall follow the
procedures set forth in this Franchise that provide Franchisee proper notice and a right to
cure when applicable.
6.5.3 With the exception of failure to comply with a stop work order
pursuant to Section 7.4.4 herein, the City shall not assess any liquidated damages if
Franchisee has cured or commenced to and completes the cure under the enforcement
provisions of Article 6 of this Franchise.
In the event Franchisee fails to cure, the City may assess liquidated damages
and shall inform Franchisee in writing of the assessment. Franchisee shall have thirty (30)
days to pay the damages. The City may immediately begin assessing liquidated damages
upon issuance of a stop work order in the event that Franchisee, or its contractors or
subcontractors, fails to comply with such stop work order.
6.5.4 The first day for which liquidated damages may be assessed, if there
has been no cure after the end of the applicable cure period, shall be the day that Franchisee
received the notice of Breach.
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6.5.5 Franchisee may challenge in court any assessment of liquidated
damages.
6.5.6 The liquidated damages amount may be adjusted by the City every
five years from the date of execution of this Franchise to take into account cumulative
inflation.
6.5.7 Pursuant to the requirements outlined herein, liquidated damages
shall not exceed the following amounts:
6.5.7.1 One hundred dollars ($100.00) per day for failure to
comply with the requirements of the following Sections: 2.2 (Authorized Services); 2.7
(Transfer); 4.5 (Expiration/Termination), 5.3 (Insurance Requirements), 5.4 (Financial
Security), 5.5 (Parental Guarantee); and
6.5.7.2 Five hundred dollars ($500) per day for the first two days
for failure to comply with the requirements of Section 7.4.4 (Stop Work), and one thousand
dollars ($1,000) per day for each day thereafter.
6.5.8 It is not the City's intention to subject Franchisee to liquidated
damages for a Breach of the Franchise where the violation was a good faith error that
resulted in no or minimal negative impact to the City, or where strict performance would
result in practical difficulties and hardship to Franchisee which outweighs the benefit to
be derived by the City. The City may not collect both liquidated damages and actual
damages for the same violation.
6.5.9 Franchisee shall not be: (1) obligated to pay these liquidated
damages; or (2) held to violation if the noncompliance is due to a Force Majeure as set
forth in Section 8.15 herein.
6.6 Receivership. At the option of the City, subject to applicable Law and
lawful orders of courts of jurisdiction, this Franchise may be revoked after the appointment
of a receiver or trustee to take over and conduct the business of Franchisee whether in a
receivership, reorganization, bankruptcy or other action or proceeding, unless:
6.6.1 The receivership or trusteeship is timely vacated; or
6.6.2 The receiver or trustee has timely and fully complied with all the
terms and provisions of this Franchise, and has remedied all defaults under the Franchise.
Additionally, the receiver or trustee shall have executed an agreement duly approved by the
court having jurisdiction, by which the receiver or trustee assumes and agrees to be bound
by each and every term, provision and limitation of this Franchise.
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ARTICLE 7. CONDITIONS UPON USE OF RIGHT-OF-WAY
7.1 Conditions Precedent to Work. Except as may be otherwise required by
applicable City code, rule, regulation or Standard, Franchisee shall comply with the
following as a condition precedent to Work:
7.1.1 Regulatory Permits Required. Except as otherwise set forth in this
Franchise, prior to performing any Work in the Right -of -Way requiring a Regulatory
Permit, Franchisee shall apply for, and obtain in advance, such appropriate Regulatory
Permits from the City as are required by ordinance or rule; provided that, Franchisee may
perform preliminary site investigation Work within a proposed Franchise Area pursuant to
such authorization (e.g., consent to entry, temporary street occupancy permit) as the City
and Franchisee may otherwise agree upon. Franchisee shall pay all generally applicable and
lawful fees for the requisite City Regulatory Permits.
In the event that, as a condition of applying for a Regulatory Permit,
Franchisee must have authorization from the City (as the owner/manager of the property to
be developed) to apply for such Regulatory Permit, the general Franchise grant given herein
shall, as to the proposed Franchise Area, constitute any such consent or authorization of the
City that is necessary for such application. This consent or authorization shall not be
deemed to be consent to or approval of the governmental action being sought.
7.1.2 Compliance with Franchise. Franchisee shall be in material
compliance with the Franchise, including by way of example and not limitation, payment
of fees invoiced to Franchisee for City reimbursable costs and expenses related to review
and approval of the Regulatory Permit(s), proof of insurance and proof of financial
security.
7.2 Compliance with Standards/Codes. Except as may be preempted by federal
or state Laws, and subject to Article 3, all Work shall be performed in compliance with the
following "Standards":
7.2.1 City Regulations. City Ordinances and regulations adopted by the
City Engineer or Public Works Director establishing standards for placement of
Telecommunications Facilities in Right -of -Way, including by way of example and not
limitation, the specific location of Telecommunications Facilities in the Right -of -Way.
This shall also include any road design and construction standards set forth in Title 12 of the
Medina Municipal Code that the City shall deem necessary to provide adequate protection
to the Right -of -Way, its safe operation and maintenance; and
7.2.2 Industry Standards. All Telecommunications Facilities shall be
durable and Constructed in accordance with good engineering practices and standards
promulgated by the government and industry for placement, Construction, design, type of
materials and operation of Franchisee Telecommunications Facilities.
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Notwithstanding the foregoing, nothing in Section 7.2 shall be read or interpreted as
a waiver of any vested rights Franchisee may have or a waiver of any rights Franchisee
may have for a Telecommunications Facility that qualifies as a nonconforming use or
structure.
7.3 UnderUounding Requirements.
7.3.1 MMC Section 19.10.050(A) (Exhibit B) requires all new
Telecommunications Facilities to be located underground unless otherwise provided in a
franchise. The Parties agree that this requirement shall not apply to Antennas, Support
Structures, Ancillary Facilities and Equipment Housing Structures, as those terms are
defined in MMC Chapter 17.90, that are located above ground pursuant to the
requirements of MMC Chapter 17.90. Further, the Parties agree that in those portions of
the Franchise Area where the wires and lines of electric, cable and/or telephone service
providers are located above grade, Franchisee is authorized to Construct its fiber optic
cables above grade. In those portions of the Franchise Area where all of the wires and
lines of electric, cable and telephone service providers are located underground,
Franchisee shall Construct its fiber optic cables underground. In any part of the
Franchise Area where the wires and lines of the electric, cable and telephone service
providers are both aerial and underground, Franchisee shall have the discretion to
Construct all of its fiber optic cables, or any part thereof, aerially or underground.
Whenever any new or existing electric utilities, cable facilities, or Telecommunications
Facilities are located or relocated underground within a City Right -of -Way , if
Franchisee fiber optic cable or related facilities occupies the same Right -of -Way, it shall
relocate its fiber optic cable and related facilities underground at no expense to the City.
Absent extraordinary circumstances or undue hardship as determined by the city
manager, such relocation shall be made concurrently to minimize the disruption of the
Right -of -Way.
7.3.2 Franchisee and the City recognize that situations may occur in the
future where the City may desire to place its own conduit and fiber optic cable in trenches
or bores opened by Franchisee. Franchisee agrees to cooperate with the City in any such
construction that involves trenching or boring. Franchisee shall allow the City to lay City
conduit and fiber optic cable in Franchisee's trenches and bores, provided that the City
and Franchisee enter into a mutually acceptable cost sharing arrangement consistent with
State law. The City shall be responsible for maintaining its respective conduit and fiber
optic cable, which is buried in Franchisee's trenches and bores.
7.4 Work in the Ri t-of-Way.
7.4.1 Least Interference. Work in the Right -of -Way shall be done in a
manner that does not unnecessarily hinder or obstruct the free use of the Right -of -Way or
other public property and which causes the least interference with the rights and reasonable
convenience of property owners, businesses and residents along the Right -of -Way.
Franchisee Telecommunications Facilities shall be designed, located, and Constructed so
as not to impair the use or operation of any street improvements, utilities, and related
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facilities of the City or the City's existing lessees, licensees, franchisees, easement
beneficiaries or lien holders, without prior written consent of City or the parties whose
improvements are impaired and whose consent is required pursuant to agreements with
the City existing prior to the Effective Date. Franchisee's Telecommunications Facilities
shall be designed, located, and Constructed in such a manner as not to interfere with any
planned utilities. For purposes of this Section, "planned" shall mean utilities which the
City intends to construct in the future, which intent is evidenced by the inclusion of said
utility project in a Capital Investment Program Plan, a comprehensive utility plan, a
transportation improvement plan, the City's Comprehensive Plan, or other written
construction or planning schedule.
7.4.2 Work of Contractors and Subcontractors. Franchisee's contractors
and subcontractors performing Work in the Franchise Area shall be licensed and bonded
in accordance with the City's and State's applicable regulations and requirements. Any
contractors or subcontractors performing Work within the Right -of -Way on behalf of
Franchisee shall be deemed servants and agents of Franchisee for the purposes of this
Franchise and are subject to the same restrictions, limitations and conditions as if the
Work were performed by Franchisee. Franchisee shall be responsible for all Work
performed by its contractors and subcontractors and others performing Work at
Franchisee's request as if the Work were performed by it, and shall ensure that all such
Work is performed in compliance with this Franchise and other applicable Laws, and
shall be jointly and severally liable for all damages and correcting all damage caused by
them. It is Franchisee's responsibility to ensure that contractors, subcontractors or other
Persons performing Work at Franchisee's request are familiar with the requirements of
this Franchise and other applicable Laws governing the Work performed by them.
7.4.3 Emergency Permits. In the event that Emergency repairs are
necessary, Franchisee shall, as soon as practicable under the circumstances, notify the city
manager or designee of the need for such repairs. Franchisee may initiate such Emergency
repairs, and shall apply for appropriate Regulatory Permits, to the extent necessary, within
forty-eight (48) hours after discovery of the Emergency. In the event of an Emergency, a
Franchisee may perform Emergency Work in the Right -of -Way without first securing a
Regulatory Permit for such Emergency Work, provided that: (1) Franchisee notifies the
City in advance of performing such Emergency Work and the type and location of such
Work; (2) Franchisee applies for a Regulatory Permit on the first business day following
commencement of such Work; and (3) Franchisee, at its sole cost and expense, makes its
Work performed in the Right -of -Way available for inspection to determine compliance
with applicable Laws and Standards.
7.4.4 Stop Work. If a stop work order is issued consistent with the
Medina Municipal Code, Franchisee shall cease, and shall cause its contractors and
subcontractors to cease, such activity until the City is reasonably satisfied that Franchisee
is in compliance. If an unsafe condition is found to exist, the City, in addition to taking any
other action permitted under applicable Law, may order Franchisee to make the necessary
repairs and alterations specified therein forthwith to correct the unsafe condition by a time
the City reasonably establishes. The City has the right to inspect, repair and correct the
0.1
unsafe condition if Franchisee fails to do so, and to charge Franchisee the Direct Costs
thereof
7.4.5 Dedication of City Utilities/Public Improvements. Upon
substantial completion of Construction of the Telecommunications Facilities and any
related restoration of or improvements to or within the Right -of -Way, including without
limitation, curbs, gutters, sidewalks, underlayment, roadway surface, pipe, connectors,
catch basins, or any part thereof that will be dedicated to City ownership (collectively
"Dedicated Improvements"), Franchisee shall submit a written request to the City for a
final inspection and acceptance of dedication of all Dedicated Improvements.
When the City is reasonably satisfied that the Work related to the
Dedicated Improvements is substantially complete, it shall by ordinance, resolution or
other lawful means accept ownership of such Dedicated Improvements and thereafter
become responsible for maintenance, repair, and replacement of the same.
7.5 Alterations. Except as may be shown in any plans approved by the City,
or as may be necessary to respond to an Emergency, Franchisee, and Franchisee's
contractors and subcontractors, may not make any material alterations to the Franchise
Area without City's prior written consent. Material alteration shall include by way of
example and not limitation, a change in the dimension or height of the above ground
Telecommunications Facilities or the addition of or change in configuration of an
antenna; but shall not include changes to the equipment used as part of the
Telecommunications Facilities that do not affect the exterior appearance of the
Telecommunications Facilities. If Franchisee desires to change either the location of any
Telecommunications Facilities or otherwise materially deviate from the approved design
of any of the Telecommunications Facilities, Franchisee shall submit such change to the
City for its approval pursuant to the procedures outlined in the Medina Municipal Code.
Franchisee shall have no right to commence any such alteration change until after
Franchisee has received City's approval of such change in writing.
7.6 General Conditions.
7.6.1 Subject to receiving advance notice,
Franchisee shall make reasonable efforts to attend and participate in meetings of the City
regarding Right -of -Way issues that may impact its Telecommunications Facilities.
7.6.2 Compliance Inspection. Following the completion of
Construction, Franchisee's Telecommunications Facilities shall be subject to the City's
right of periodic inspection upon at least twenty-four (24) hours notice, or, in case of an
Emergency, upon demand without prior notice, to determine compliance with the
provisions of this Franchise or Regulatory Permit or other applicable Law over which the
City has jurisdiction. Franchisee shall respond to requests for information regarding its
Telecommunications Facilities as the City may from time to time issue to determine
compliance with this Franchise, including requests
for which theTelecommunicationstion
Franchisee's plans for Construction and the purposes
29.
Facility is being Constructed. Notwithstanding the foregoing, the City agrees that it shall
only conduct such inspections when: (a) it has received a complaint; (b) such inspection
is required as part of the approval of the Regulatory Permit; or (c) when there is
reasonable cause to believe that a violation exists. Franchisee reserves the right to
dispute any City charge for such inspections if Franchisee believes that such inspection
was unnecessary or redundant.
7.6.3 One Call. If Franchisee places Telecommunications Facilities
underground, Franchisee shall, at its own expense, continuously be a member of the State
of Washington one number locator service under Chapter 19.122 RCW, or an approved
equivalent, and shall comply with all such applicable rules and regulations. Franchisee
shall locate and field mark its Telecommunications Facilities for the City at no charge.
7.6.4 Graffiti Removal. Within 48 hours after notice from the City,
Franchisee shall remove any graffiti on any part of its Telecommunications Facilities,
including, by way of example and not limitation, equipment cabinets. If Franchisee fails
to do so, the City may remove the graffiti and bill Franchisee for the cost thereof.
7.6.5 Dangerous Conditions, Authority for City to Abate. Whenever
Construction of Telecommunications Facilities has caused or contributed to a condition
that appears to substantially impair the lateral support of the adjoining Right -of -Way,
street, or public place, or endangers the public, any utilities, or City -owned property, the
City may reasonably require Franchisee to take reasonably necessary action to protect the
Right -of -Way, the public, adjacent public places, City -owned property, streets, and
utilities. Such action may include compliance within a reasonably 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, the City may, to the extent it may lawfully do so, take such
actions as are necessary to protect the Right -of -Way, the public, adjacent public places,
City -owned property, streets, and utilities, to maintain the lateral support thereof, or
actions regarded as necessary safety precautions; and Franchisee shall be liable to the
City for the Direct Costs thereof to the extent of Franchisee's responsibility for the
condition.
7.6.6 No Duty. Notwithstanding the right of the City to inspect the
Work, issue a stop work order, and order or make repairs or alterations, the City has no
duty or obligation to observe or inspect, or to halt work on, the applicable
Telecommunications Facilities, it being solely Franchisee's responsibility to ensure that
the Telecommunications Facilities are Constructed and operated in strict accordance with
this Franchise, the approved plans, the Standards, and applicable Law. Neither the
exercise nor the failure by the City to exercise any right set forth in this Article 7 shall
alter the liability allocation set forth in this Franchise.
7.6.7 Roadside Hazard. All of Franchisee's Telecommunications
Facilities shall be kept by Franchisee at all times in a reasonably safe and hazard -free
condition. Franchisee shall ensure that Telecommunications Facilities within the Right-
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of -Way do not become or constitute an impassible roadside obstacle and do not interfere
with or create a hazard to maintenance of and along the Right -of -Way. In such event, or
in the event that the City determines that a Telecommunications Facility within the Right -
of -Way is impairing passage within the Right -of -Way or may interfere with or create a
hazard to maintenance of and along the Right -of -Way, Franchisee shall:
7.6.7.1If the hazard results from disrepair, repair the
Telecommunications Facility to a safe condition;
7.6.7.2 Relocate the Telecommunications Facility to another place
within the Right -of -Way or underground;
7.6.7.3 Crash -protect the Telecommunications Facility; or
7.6.7.4In the event that the Telecommunications Facility is
screened from view (i.e., not readily visible from all directions by persons standing at
ground level), remove or trim vegetation in and around the Telecommunications Facility.
Franchisee, at all times, shall employ the standard of care attendant to the
risks involved and shall install and maintain in use commonly accepted methods and
devices for preventing failures and accidents which are likely to cause damage, injury, or
nuisance to the public or to Franchisee's agents or employees. Franchisee, at its own
expense, shall repair, renew, change, and improve its Telecommunications Facilities from
time to time as may be necessary to accomplish this purpose. Franchisee shall use
suitable barricades, flags, flaggers, lights, flares and other measures as required for the
safety of all members of the general public and to prevent injury or damage to any
person, vehicle or property by reason of such Work in or affecting such Right -of -Way or
property. All excavations made by Franchisee in the Right -of -Way shall be properly
safeguarded for the prevention of accidents.
7.6.8 Verification of Alignment/Depth. Upon the reasonable request and
prior written notice, in non -Emergency situations, with at least thirty (30) days notice
provided by the City and in order to facilitate the location, alignment and design of Public
Improvements, Franchisee agrees to locate, and if reasonably determined necessary by
the City, to excavate and expose portions of its Telecommunications Facilities for
inspection so that the location of same may be taken into account in the improvement
design; provided that, Franchisee shall not be required to excavate and expose its
Telecommunications Facilities unless Franchisee's record drawings and maps of its
Telecommunications Facilities are reasonably determined by the City to be inadequate
for purposes of this subsection.
7.7 Telecommunications Facility Relocation at Request of the City for Public
Improvements.
7.7.1 Public Project. The City may require Franchisee to alter, adjust,
relocate, or protect in place its Telecommunications Facilities within the Right -of -Way
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when reasonably necessary for Construction, alteration, repair, or improvement of any
portion of the Right -of -Way for purposes of public welfare, health, or safety ("Public
Improvements"). Such Public Improvements include, by way of example but not
limitation, Right -of -Way Construction; Right -of -Way repair (including resurfacing or
widening); change of Right -of -Way grade; Construction, installation or repair of sewers,
drains, water pipes, power lines, signal lines, communication lines, or any other type of
government -owned communications utility or public transportation systems, public work,
public facility, or improvement of any government owned utility; Right -of -Way vacation;
and the Construction of any Public Improvement by any governmental agency acting in a
governmental capacity or by a developer as required by development approval.
7.7.2 Alternatives. Franchisee may, after receipt of written notice
requesting a relocation of its Telecommunications Facilities, submit to the City written
alternatives to such relocation. The City shall evaluate such alternatives and advise
Franchisee in writing if one or more of the alternatives are suitable to accommodate the
Public Improvement which would otherwise necessitate relocation of the
Telecommunications Facilities. If so requested by the City, Franchisee shall submit
additional information to assist the City in making such evaluation. The City shall give
each alternative proposed by Franchisee full and fair consideration, within a reasonable
time, so as to allow for the relocation Work to be performed in a timely manner. In the
event the City ultimately determines, in its sole discretion, that there is no other
reasonable alternative, Franchisee shall relocate its Telecommunications Facilities as
otherwise provided in this Section. In the event that the City reasonably determines that
it does not have available resources to evaluate Franchisee's proposal, the City shall not
be obligated to further consider such proposal unless and until Franchisee funds the
additional costs to the City to complete its evaluation.
7.7.3 Notice/Timeline. The City shall notify Franchisee as soon as
practicable of the need for relocation for a Public Improvement and shall specify the date
by which relocation shall be completed. Except in case of Emergency, such notice shall
be no less than one hundred and eighty (180) days. Within 30 days following written
notice from the City, Franchisee shall provide a schedule to the City indicating the
estimated completion date for temporarily or permanently removing, relocating,
changing, or altering the position of any Telecommunications Facilities within the Right -
of -Way or upon City property. In calculating the date that relocation must be completed,
City shall consult with Franchisee and consider the extent of Telecommunications
Facilities to be relocated, the service requirements, the time required to obtain the
Regulatory Permits to relocate the Telecommunications Facilities to the new location(s),
and the construction sequence for the relocation, within the overall project construction
sequence and constraints, to safely complete the relocation. Franchisee shall complete
the relocation by the date specified, unless the City, or a reviewing court, establishes a
later date for completion, after a showing by Franchisee that the relocation cannot be
completed by the date specified using best efforts and meeting safety and service
requirements.
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7.7.4 Coordination of Work. Franchisee acknowledges and understands
that any delay by Franchisee in performing the Work to alter, adjust, relocate, or protect
in place its Telecommunications Facilities within the Right -of -Way may delay, hinder, or
interfere with the work performed by the City and its contractors and subcontractors in
furtherance of Construction, alteration, repair, or improvement of the Public
Improvement, and result in damage to the City, including but not limited to, delay claims.
Franchisee shall cooperate with the City and its contractors and subcontractors to
coordinate such Franchisee Work to accommodate the Public Improvement project and
project schedules to avoid delay, hindrance of, or interference with such project.
7.7.5 Failure to Comply. Should Franchisee fail to alter, adjust, protect
in place or relocate any Telecommunications Facilities ordered by the City to be altered,
adjusted, protected in place, or relocated, within the time prescribed pursuant to Section
7.7.3, or if it is not done to the City's reasonable satisfaction, the City may, to the extent
the City may lawfully do so, cause such work to be done and bill the Direct Costs of the
work to Franchisee. In such event, the City shall not be liable for any damage to any
portion of Franchisee's Telecommunications Facilities, unless directly or proximately
caused by willful, intentional, or malicious acts by the City.
7.7.6 Assignment of Rights. In addition to any other rights of assignment
the City may have, the City may from time to time assign or transfer to its contractors or
subcontractors its rights under Sections 7.7 or 7.9 of this Franchise to require Franchisee to
alter, adjust, relocate, or protect in place its Telecommunications Facilities within the
Right -of -Way to accommodate a Public Improvement. Franchisee acknowledges and
consents to such an assignment(s)/transfer(s) and agrees that it is bound by all lawful orders
issued by such assignee(s) of the City under color of authority of such
assignment(s)/transfer(s) as though such orders had been issued by the City under the terms
and conditions of this Franchise. Such assignment/transfer is an assignment/transfer of the
City's contract rights under this Franchise and shall not in any way be interpreted or
construed as an assignment, transfer, delegation or relinquishment of the City's rights under
its police powers to require Franchisee to alter, adjust, relocate, or protect in place its
Telecommunications Facilities within the Right -of -Way to accommodate a Public
Improvement.
7.7.7 Reimbursement for Costs. Notwithstanding the cost allocation
provisions set forth in this Franchise, Franchisee does not waive its right(s) to and shall
be entitled to seek reimbursement of its relocation costs as may be otherwise specifically
set forth and authorized in statute.
7.8 Movement of Telecommunications Facilities for Others.
7.8.1 Private Benefit. If any alteration, adjustment, temporary
relocation, or protection in place of any of Franchisee's Telecommunications Facilities is
required to accommodate the Construction of facilities or equipment that are not part of a
Public Improvement project, Franchisee shall, after at least ninety (90) days advance written
notice, take action to effect the necessary changes requested by the requesting entity;
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provided that, (a) the Person requesting the same pays for Franchisee's time and material
costs associated with the requested work; (b) the alteration, adjustment, temporary
relocation or protection in place is reasonably necessary to accommodate such work; (c) the
Person requesting the alteration, adjustment, temporary relocation, or protection in place
considers alternatives in the same manner as provided at Section 7.7.2; (d) such alteration,
adjustment, temporary relocation or protection in place does not unreasonably interfere with
Franchisee's ability to continue to provide Telecommunications service; (e) Franchisee is
able to obtain all necessary Regulatory Permits before completing such alteration,
adjustment, temporary relocation or protection in place; and (f) such alteration, adjustment,
or temporary relocation is not requested for the purpose of obtaining a competitive
advantage over Franchisee.
7.8.2 Temporary Changes for Other Persons. At the request of any Person
holding a valid permit and upon reasonable advance notice, Franchisee shall temporarily
raise, lower or remove its wires as necessary to permit the moving of a building, vehicle,
equipment or other item. The expense of such temporary changes shall be paid by the
permit holder. Franchisee shall be given not less than fourteen (14) days' advance notice
to arrange for such temporary wire changes.
7.9 Movement of Telecommunications Facilities During Emergencies.
7.9.1 Immediate Threat. In the event of an unforeseen event, condition
or circumstance that creates an immediate threat to the public safety, health, or welfare,
the City shall have the right to require Franchisee to shut down, relocate, remove, replace,
modify, or disconnect Franchisee's Telecommunications Facilities located in the Right -of -
Way at the expense of Franchisee without regard to the cause or causes of the immediate
threat.
7.9.2 Emergency. In the event of an Emergency, or where a
Telecommunications Facility creates or is contributing to an imminent danger to health,
safety, or public property, the City shall have the right to require Franchisee to shut
down, relocate, modify or disconnect one or more of its Telecommunications Facilities
located in the Right -of -Way at Franchisee's expense.
7.9.3 Notice. During Immediate Threats and/or Emergencies, the City shall
endeavor to, as soon as practicable, provide notice to Franchisee of such Immediate Threat
or Emergency at a designated response contact number, to allow Franchisee the opportunity
to respond and rectify the problem without disrupting Franchisee's Telecommunications
service. To the extent Franchisee fails to timely respond to such notice, the City may
protect, support, temporarily disconnect, remove, or relocate any or all parts of
Franchisee's Telecommunications Facilities located within the Right -of -Way to the
extent the City, in its sole discretion, determines it is necessary to respond to the
Immediate Threat or Emergency, and the City may charge Franchisee for the reasonable
costs incurred.
34.
7.9.4 Limitation on Liability. The City shall not be liable 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, unless directly or
proximately caused by willful, intentional, or malicious acts by the City.
7.10 Record of Installations.
7.10.1 Planned Improvements. Upon written request of the City,
Franchisee shall provide the City with the most recent update available of any planned
improvements to its Telecommunication Facilities to the extent such plans do not contain
confidential or proprietary information or such information can be redacted; provided,
however, any such plan submitted shall be for informational purposes only and shall not
obligate Franchisee to undertake any specific improvements, nor shall such plan be
construed as a proposal to undertake any specific improvements.
7.10.2 Maps/Record Drawings of Telecommunications Facilities. After
Construction involving the locating or relocating of Telecommunications Facilities, or
upon request by the City, Franchisee shall provide the City with accurate copies of all
record drawings and maps showing the horizontal and vertical location and configuration
of all located or relocated Telecommunications Facilities within the Right -of -Way. These
record -drawings and maps shall be provided at no cost to the City, and shall include hard
copies and digital copies in a format reasonably specified by the City. As to any such
record drawings and maps so provided, Franchisee does not warrant the accuracy thereof
and to the extent the location of the Telecommunications Facilities are shown, such
Telecommunications Facilities are shown in their approximate location.
7.11 Restoration of Right -of -Way, Public and Private Property.
7.11.1 Restoration after Construction. Franchisee shall, after completion
of Construction of any part of its Telecommunications Facilities, leave the Right -of -Way
and other property disturbed thereby, in as good or better condition in all respects as it
was in before the commencement of such Construction. Franchisee agrees to promptly
complete restoration work to the reasonable satisfaction of the City.
7.11.2 Notice. If Franchisee's Work causes unplanned, unapproved, or
unanticipated disturbance of or alteration or damage to Right -of -Way or other public or
private property, Franchisee shall promptly notify the property owner within twenty-four
(24) hours of discovery.
7.11.3 Duty to Restore. If Franchisee's Work causes unplanned,
unapproved, or unanticipated disturbance of or alteration or damage to the Right -of -Way or
other public property, it shall promptly restore such Right -of -Way and public property to
as good or better condition as existed before the Work was undertaken, unless otherwise
directed by the City. If the City determines that complete or satisfactory restoration is not
obtainable, the City shall have the right to require compensation for the less than
complete or satisfactory condition of the Right -of -Way or public property. Franchisee
35.
shall initiate the restoration work within forty-eight (48) hours or as authorized by the City's
Public Works Director, and shall diligently continue such restoration work until completed.
7.11.4 Temporary Restoration. If weather or other conditions do not
allow the complete restoration required by this Section, Franchisee shall temporarily
restore the affected Right -of -Way or public property. Franchisee shall promptly undertake
and complete the required permanent restoration when the weather or other conditions no
longer prevent such permanent restoration.
7.11.5 Survey Monuments. All survey monuments which are disturbed or
displaced by any Work shall be referenced and restored, as per WAC 332-120, as the
same now exists or may hereafter be amended, and pursuant to all pertinent federal, state
and local standards and specifications.
7.11.6 Approval. The City shall be responsible for observation and final
approval of the condition of the Right -of -Way and City property following any
restoration activities therein. Franchisee is responsible for all testing and monitoring of
restoration activities.
7.11.7 Warr Franchisee shall warrant any restoration work performed
by Franchisee in the Right -of -Way or on other public property for one (1) year, unless a
longer period is required by the Municipal Code or any generally applicable ordinance or
resolution of the City. If restoration is not satisfactorily and timely performed by
Franchisee, the City may, after prior written notice to Franchisee, or without notice in case
of Emergency, cause the repairs to be made and recover the Direct Costs of those repairs
from Franchisee.
7.11.8 Restoration of Private Property. When Franchisee does any Work
in the Right -of -Way that affects, disturbs, alters, or damages any adjacent private
property, it shall, at its own expense, be responsible for restoring such private property to
the condition that existed prior to the Work to the reasonable satisfaction of the private
property owner.
7.12 Approvals. Nothing in this Franchise shall be deemed to impose any
duty or obligation upon the City to determine the adequacy or sufficiency of Franchisee's
plans or to ascertain whether Franchisee's proposed or actual Construction is adequate or
sufficient or in conformance with any plans approved by the City. No approval given,
inspection made, review or supervision performed by the City pursuant to or under
authority of this Franchise shall constitute or be construed as a representation or
warranty, express or implied, by the City that such item reviewed, approved, inspected, or
supervised complies with applicable Laws or this Franchise or meets any particular
Standard, code or requirement, or is in conformance with the approved plans by the City,
and no liability shall attach with respect thereto. City approvals and inspections as
provided herein, are for the sole purpose of protecting the City's rights as the owner
and/or manager of the Right -of -Way and shall not constitute any representation or
warranty, express or implied, as to the adequacy of the design or Construction of the
Telecommunication Facilities, suitability of the Franchise Area for Construction, or any
36.
obligation on the part of the City to insure that Work or materials are in compliance with
any requirements imposed by a governmental entity. City is under no obligation or duty
to supervise the design, Construction, or operation of the Telecommunication Facilities.
7.13 Abandonment of Telecommunications Facilities. Franchisee's rights,
duties and obligations to remove its unauthorized Telecommunications Facilities or
abandon in place shall be as set forth in MMC Section 19.10.170 in Exhibit B.
7.14 Relationship to MMC. The provisions in this Article 7 supersede MMC
Sections 19.10.050, 19.10.100, 19.10.110, 19.10.130, 19.10.150, 19.10.160, 19.10.180,
19.10.190, 19.10.200, 19.10.210, 19.12.010 (to the extent it incorporates MMC Sections
19.12.130 and 19.12.140), 19.12.130 and 19.12.140.
ARTICLE 8 MISCELLANEOUS
8.1 Headings. Titles to articles and sections of this Franchise are not a part of
this Franchise and shall have no effect upon the construction or interpretation of any part
hereof.
8.2. Entire Agreement. This Franchise contains all covenants and agreements
between the City and Franchisee relating in any manner to the Franchise, use, and
occupancy of the Right -of -Way and other matters set forth in this Franchise. No prior
agreements or understanding pertaining to the same, written or oral, shall be valid or of
any force or effect, and the covenants and agreement of this Franchise shall not be
altered, modified, or added to except in writing signed by the City and Franchisee and
approved by the City in the same manner as the original Franchise was approved.
8.3 Incorporation of Exhibits. All exhibits attached hereto at the time of
execution of this Franchise, or in the future as contemplated herein, are hereby
incorporated by reference as though fully set forth herein.
8.4 Calculation of Time. All periods of time referred to herein shall include
Saturdays, Sundays, and legal holidays in the State of Washington, except that if the last
day of any period falls on any Saturday, Sunday, or legal holiday in the State of
Washington, the period shall be extended to include the next day which is not a Saturday,
Sunday, or legal holiday in the State of Washington; provided that, the Effective Date
shall be determined as provided at Section 4.3 of this Franchise.
8.5 Time Limits Strictly Construed. Whenever this Franchise sets forth a time
for any act to be performed by either Party, such time shall be deemed to be of the essence,
and any failure of either Party to perform within the allotted time may be considered a
Breach of this Franchise.
8.6 No Joint Venture. It is not intended by this Franchise to, and nothing
contained in this Franchise shall, create any partnership, joint venture, or principal -agent
relationship or other arrangement between Franchisee and the City. Neither Party is
37.
authorized to, nor shall either Party act toward third Persons or the public, in any manner
which would indicate any such relationship with the other. The Parties intend that the
rights, obligations, and covenants in this Franchise and the collateral instruments shall be
exclusively enforceable by the City and Franchisee, their successors, and assigns. No
term or provision of this Franchise is intended to be, or shall be, for the benefit of any
Person not a Party hereto, and no such Person shall have any right or cause of action
hereunder, except as may be otherwise provided herein. Further, Franchisee is not granted
any express or implied right or authority to assume or create any obligation or responsibility
on behalf of or in the name of the City. Nothing in this Section 8.6 shall be construed to
prevent an assignment as provided for at Section 7.7.6 of this Franchise.
8.7 Approval Authority. Except as may be otherwise provided by applicable
Law or herein, any approval or authorization required to be given by the City, shall be
given by the Public Works Director (or its successor).
8.8 Binding Effect Upon Successors and Assigns. All of the provisions,
conditions, and requirements contained in this Franchise shall further be binding upon the
heirs, successors, executors, administrators, receivers, trustees, legal representatives and
assigns of Franchisee and the City; and all privileges, as well as all obligations and
liabilities of Franchisee and the City shall inure to its heirs, successors, and assigns
equally as if they were specifically mentioned wherever Franchisee is named herein.
8.9 Waiver. No failure by either Party to insist upon the performance of any
of the terms of this Franchise, or to exercise any right or remedy consequent upon a
Breach thereof, shall constitute a waiver of any such Breach or of any of the terms of this
Franchise. None of the terms of this Franchise to be kept, observed or performed by
either Party, and no Breach thereof, shall be waived, altered or modified except by a
written instrument executed by the injured Party. No waiver of any Breach shall affect or
alter this Franchise, but each of the terms of this Franchise shall continue in full force and
effect with respect to any other then existing or subsequent Breach thereof. No waiver of
any default of the defaulting Party hereunder shall be implied from any omission by the
injured Party to take any action on account of such default if such default persists or is
repeated, and no express waiver shall affect any default other than the default specified in
the express waiver and then only for the time and to the extent therein stated. One or
more waivers by the injured Party shall not be construed as a waiver of a subsequent
breach of the same covenant, term or conditions.
8.10 Severability. If any word, article, section, subsection, paragraph, provision,
condition, clause, sentence, or its application to any person or circumstance (collectively
referred to as "Term"), shall be held to be illegal, invalid, or unconstitutional for any
reason by any court or agency of competent jurisdiction, such Term declared illegal,
invalid or unconstitutional shall be severable and the remaining Terms of the Franchise
shall remain in full force and effect unless to do so would be inequitable or would result
in a material change in the rights and obligations of the Parties hereunder, in which case
the Parties shall reform the Franchise pursuant to Section 3.5 herein.
8.11 Signs. No signs or advertising shall be permitted in the Franchise Area
except as may be required by applicable Law or as may be required by the City for the
protection of the public health, safety and welfare, to the extent it has authority to do so.
8.12 Discriminatory Practices Prohibited. Throughout the term of this Franchise,
Franchisee shall fully comply with all equal employment and nondiscrimination provisions
of applicable Law.
8.13 Notice. Any notice required or permitted to be given hereunder shall be in
writing, unless otherwise expressly permitted or required, and shall be deemed effective
either: (i) upon hand delivery to the person then holding the office shown on the attention
line of the address below, or, if such office is vacant or no longer exists, to a person
holding a comparable office; (ii) or when delivered by a nationally recognized overnight
mail delivery service, to the Party and at the address specified below; or (iii) on the third
business day following its deposit with the United States Postal Service, first class and
certified or registered mail, return receipt requested, postage prepaid, properly sealed and
addressed as follows:
Franchisee's address:
The City's Address:
And to the City Attorney
ATC Outdoor DAS, LLC
10 Presidential Way
Woburn, MA 01810
Attn: Land Management
American Tower Corporation
116 Huntington Avenue
Boston, MA 02116
Attn: General Counsel
City of Medina
Attn. City Manager
501 Evergreen Point Road
Medina, WA 98039
City of Medina
Attn. City Attorney
501 Evergreen Point Road
Medina, WA 98039
The City and Franchisee may designate such other address from time to time by giving
written notice to the other, but notice cannot be required to more than two addresses,
except by mutual agreement.
8.14 Survival of Terms. Upon the expiration, termination, revocation or
forfeiture of the Franchise, Franchisee shall no longer have the right to occupy the
Franchise Area for the purpose of providing services authorized herein. However,
Franchisee's obligations under this Franchise to the City shall survive the expiration,
termination, revocation or forfeiture of these rights according to its terms for so long as
39.
Franchisee's Telecommunications Facilities or any part thereof shall remain in whole or
in part in the Right -of -Way, Franchisee transfers ownership of all Telecommunications
Facilities in the Franchise Area to a third -party, or Franchisee abandons said
Telecommunications Facilities in place, all as provided herein. Said obligations include,
by way of illustration and not limitation, Franchisee's obligations to indemnify, defend,
and protect the City, to provide insurance, to relocate its Facilities, and to reimburse the
City for its Direct Costs to perform Franchisee Work.
8.15 Force Majeure. In the event Franchisee is prevented or delayed in the
performance of any of its obligations herein due to circumstances beyond its control or by
reason of a force majeure occurrence, such as, but not limited to, acts of God, acts of
terrorism, war, riots, civil disturbances, natural disasters, floods, tornadoes, earthquakes,
unusually severe weather conditions, employee strikes and unforeseen labor conditions
not attributable to Franchisee's employees, Franchisee shall not be deemed in Breach of
the provisions of this Franchise.
If Franchisee believes that circumstances beyond its control or by reason of a force
majeure occurrence have prevented or delayed its compliance with the provisions of this
Franchise, Franchisee shall provide documentation as reasonably required by the City to
substantiate Franchisee's claim. Franchisee shall have a reasonable time, under the
circumstances, to perform the affected obligation under this Franchise or to procure a
substitute for such obligation which is reasonably satisfactory to the City; provided that,
Franchisee shall perform to the maximum extent it is able to perform and shall take
immediate and diligent steps to bring itself back into compliance and to comply as soon
as possible under the circumstances with the Franchise without unduly endangering the
health, safety, and integrity of Franchisee's employees or property, or the health, safety,
and integrity of the public, Right -of -Way, public property, or private property.
8.16 Attom sue. In the event a suit, action, arbitration, or other proceeding
of any nature whatsoever, whether in contract or in tort or both, is instituted to enforce
any word, article, section, subsection, paragraph, provision, condition, clause or sentence
of this Franchise or its application to any person or circumstance, the prevailing Party shall
be entitled to recover from the losing Party its reasonable attorneys', paralegals',
accountants', and other experts' fees, and all other fees, costs, and expenses actually
incurred and reasonably necessary in connection therewith, as allowed by Washington
Law and as determined by the judge or arbitrator at trial or arbitration, as the case may
be, or on any appeal or review, in addition to all other amounts provided by Law. This
provision shall cover costs and attorneys' fees related to or with respect to proceedings in
Federal Bankruptcy Courts, including those related to issues unique to bankruptcy law.
This provision shall not apply to the extent that the suit, action, arbitration or other
proceeding is brought to interpret any term, condition, provision, section, article or clause of
this Franchise.
8.17 Venue/Choice of Law. This Franchise shall be governed and construed in
accordance with the laws of the State of Washington. Any action brought relative to
enforcement of this Franchise, or seeking a declaration of rights, duties or obligations
.o
herein, shall be initiated in the King County Superior Court, and shall not be removed to
a federal court, except as to claims over which such the Superior Court has no
jurisdiction. Removal to federal court shall be to the Federal Court of the Western
District of Washington.
8.18 Publication. This ordinance, or a summary thereof, shall be published in the
official newspaper of the City, the expense of which shall be borne by Franchisee, and shall
take effect and be in full force in accordance with Section 4.3 herein.
ADOPTED BY THE CITY COUNCIL AT A REGULAR MEETING THEREOF
ON THE _2_ DAY OF tJQWXbW, 20 tO AND SIGNED IN AUTHENTICATION
OF ITS PASSAGE THIS DAY OF 0J-0.
Approved as to form:
Bruce Disend, City Attorney
Passed: it �d � l o
Published: 0
Eff Date: I O
CITY �ME]� A
rVU
Bret J6rd n, May
Atte
- 11(
Ra t
el Baker, City Clerk
41.
8398 NORTHEAST 12 STREET I P.O. BOX 144 1 MEDINA, WA 98039-0144
TELEPHONE 425.233.6400 1 FAX 425.451.8197 1 www.medina-wa.gov
January 26, 2011
ATC Outdoor DAS, LLC
American Tower Corporation
Attn: Alexander P. Gamota
10 Presidential Way
Woburn, MA 01801
Re: Franchise Agreement — Ordinance No. 863 - Acceptance
Dear Mr. Gamota:
The purpose of this letter agreement (the "Letter Agreement") is to express our
mutual understanding of the effect of Section 4.1 and 4.2 of the franchise agreement (City
Ordinance No. 863) passed and approved by the Medina City Council.
As you are aware, the City and ATC Outdoor DAS, LLC ("ATC") had mutually
agreed that after passage of the ordinance on November 8, 2010, certain clerical errors
within the franchise ordinance would need to be corrected before the final ordinance
could be prepared for attestation by the City Clerk and the Mayor's signature and prior to
formal written acceptance by ATC. However, the clerical errors were not completed
until the le day of January, thus delaying formal written acceptance of the franchise
agreement by ATC beyond the 30 period set forth at section 4.1 of the franchise
agreement.
We believe that the parties are in agreement that any delay in formal written
acceptance of the franchise agreement by ATC was due to circumstances beyond its
control and that such failure to timely accept the franchise is excused by the provisions of
Section 8.15 (Force Majeure) of the franchise agreement. Thus, ATC is not in violation
of the provisions of section 4.1 of the franchise requiring written acceptance within 30
days following passage and approval of the franchise ordinance. Further, we believe that
the parties are in agreement that, for purposes of the provisions of section 4.2 of the
franchise providing that failure timely file acceptance will result in the franchise being
deemed void, the written acceptance that has been, or will contemporaneously herewith
be, filed with the City Clerk, will deemed by the City and ATC Outdoor DAS, LLC, to
have been timely filed.
If you are in agreement with the foregoing, please have the appropriate person on
behalf of ATC execute the acceptance below.
• Page 2
January 26, 2011
Your truly,
f
l�
a -
Donna Hanson
City Manager
City of Medina
Accepted and agreed to by ATC Outdoor DAS, LLC on this _ day of
, 2011.
ATC Outdoor DAS, LLC :
Print Name:
Title:
Mailing Address: ATC Outdoor DAS, LLC
Attn: Alex Gamota
116 Huntington Ave.
Boston, MA 02116
Figure 1
CITY
E,4etgt %nt
MEDINA
LEGEND
Underground Fiber 1000' +/-
Aenal Hoer Route 1 tbuu' +/- Miles)
Node # 10 locations
EXHIBIT B
Medina Municipal Code Title 19
43.
Title 19
TELECOMMUNICATIONS
Chapters:
19.02
General Provisions
19.04
Telecommunications Right -of -Way Use Authorizations
19.06
Telecommunications Franchise
19.07
Special Rules Applicable to Open Video Systems
19.08
Facilities Lease
19.10 Conditions of Telecommunications Right -of -Way Use Authorizations,
Franchises, and Facilities Leases
19.12 Construction Standards
19-1
Medina Municipal Code
Chapter 19.02
GENERAL PROVISIONS
Sections:
19.02.010
Purpose and intent.
19.02.020
Definitions.
19.02.030
Telecommunications right-of-way use
authorization required.
19.02.040
Telecommunications franchise
required.
19.02.050
Cable television franchise required.
19.02.060
Facilities lease required.
19.02.070
Construction permits required.
19.02.080
Application to existing franchise
ordinances, agreements, leases, and
permits — Effect of other laws.
19.02.090
Universal service.
19.02.100
General penalties.
19.02.110
Initial inquiry/responsibilities.
19.02.120
Other remedies.
19.02.130
Fees and compensation not a tax.
19.02.010 Purpose and intent.
The purpose and intent of this title is to:
A. Establish a local policy concerning telecom-
munications providers and service;
B. Establish guidelines, standards and time
frames for the exercise of local authority with
respect to the regulation of telecommunications
providers and services;
C. Promote competition in telecommunica-
tions;
D. Minimize unnecessary local regulation of
telecommunications providers and services;
E. Encourage the provision of advanced and
competitive telecommunications services on the
widest possible basis to the businesses, institutions
and residents of the city and the region;
F. Permit and manage reasonable access to the
rights -of -way of the city for telecommunications
purposes on a competitively neutral basis;
G. Conserve the limited physical capacity of
the rights -of -way of the city;
H. Assure that the city's current and ongoing
costs of granting and regulating private access to
and use of the rights -of -way are fully paid by the
persons seeking such access and causing such
costs;
I. Secure fair and reasonable compensation to
the city for permitting private use of the rights -of -
way;
J. Assure that all telecommunications carriers
providing facilities or services within the city com-
19-3
19.02.020
ply with the ordinances, rules and regulations of
the city; and
K. Enable the city to discharge its public trust
consistent with rapidly evolving federal and state
regulatory policies, industry competition and tech-
nological development. (Ord. 692 § 1, 2001)
19.02.020 Definitions.
The following words and phrases shall have the
following meanings, unless the context of the sen-
tence in which they are used shall indicate other-
wise:
"Affiliate" means a person who (directly or indi-
rectly) owns or controls, is owned or controlled by,
or is under common ownership or control with
another person;
"Applicant" means any person or entity that
applies for any authorization, franchise, lease, or
permit pursuant to this title;
"Cable Act" means the Cable Communications
Policy Act of 1984 and the Cable Television Con-
sumer Protection and Competition Act of 1992;
"Cable facilities" means equipment and wiring
used to transmit audio and video signals to sub-
scribers;
"Cable operator" means a telecommunications
carrier providing or offering to provide "cable ser-
vice" within the city as that term is defined in the
Cable Act;
"Cable service," for the purpose of this title,
shall have the same meaning provided by the Cable
Act;
"Cable system" means a facility, consisting of a
set of closed transmission paths and associated sig-
nal generation, reception, and control equipment
that is designed to provide cable service and other
service to subscribers;
"City" means the city of Medina, Washington;
"City property" means and includes all real
property owned by the city, other than public
streets and utility easements as those terms are
defined herein, and all property held in a propri-
etary capacity by the city, which are not subject to
right-of-way licensing and franchising;
"Council" means the city council of the city of
Medina, Washington acting in its official capacity;
"Data communication" means:
1. The transmission of encoded information,
or
2. The transmission of data from one point to
another;
"Emergency" means a condition of imminent
danger to the health, safety, and welfare of prop-
erty or persons located within the city including,
19.02.020
without limitation, damage to persons or property
from natural consequences, such as storms, earth-
quakes, riots or wars;
"Excess capacity" means the volume or capacity
in any existing or future duct, conduit, manhole,
handhole or other utility facility within the public
way that is or will be available for use for addi-
tional telecommunications facilities;
"FCC" or "Federal Communications Commis-
sion" means the federal administrative agency, or
lawful successor, authorized to regulate and over-
see telecommunications carriers, services and pro-
viders on a national level;
"Fiber optics" means the technology of guiding
and projecting light for use as a communications
medium;
"Franchise" shall mean the initial authorization,
or renewal thereof, approved by an ordinance of
the city, which authorizes the franchisee to con-
struct, install, operate, or maintain telecommunica-
tions facilities in, under, over, or across rights -of -
way of the city and to also provide telecommunica-
tions service to persons or areas in the city;
"Franchisee" means the person, firm or corpora-
tion to whom or which a franchise, as defined in
this section, is granted by the council under this
title and the lawful successor, transferee or
assignee of said person, firm or corporation subject
to such conditions as may be defined in this title;
"Open video system" or "OV S" refers to a facil-
ity consisting of a set of transmission paths and
associated signal generation, reception, and control
equipment that is designed to provide cable ser-
vice, which is provided to multiple subscribers
within a community, and which the Federal Com-
munications Commission or its successors has cer-
tified as compliant with Part 76 of its rules, 47
C.F.R., Part 76, as amended from time -to -time;
"Operator" means the person, firm or corpora-
tion to whom a franchise is granted pursuant to the
provisions of this title;
"Overhead facilities" means utility poles, utility
facilities and telecommunications facilities located
above the surface of the ground, including the
underground supports and foundations for such
facilities;
"Person" means and includes corporations,
companies, associations, joint stock companies or
associations, firms, partnerships, limited liability
companies and individuals and includes their les-
sors, trustees and receivers;
"Property of franchisee" means all property
owned, installed or used by a franchisee in the con-
19-4
duct of its business in the city under the authority
of a franchise granted pursuant to this title;
"Proposal" means the response, by an individual
or organization, to a request by the city regarding
the provision of cable services; or an unsolicited
plan submitted by an individual or organization
seeking to provide cable services in the city;
"Right-of-way" means land acquired or dedi-
cated for public roads and streets, but does not
include state highways or land dedicated for roads,
streets and highways not opened and not improved
for motor vehicle use by the public;
"State" means the state of Washington;
"Surplus space" means that portion of the usable
space on a utility pole which has the necessary
clearance from other pole users, as required by the
federal or state orders and regulations, to allow its
use by a telecommunications carrier for a pole
attachment;
"Telecommunications carrier" means and
includes every person that directly or indirectly
owns, controls, operates or manages plant, equip-
ment or property within the city, used or to be used
for the purpose of offering telecommunications
service;
"Telecommunications facilities" means the
plant, equipment and property, including but not
limited to, cables, wires, conduits, ducts, pedestals,
antennas, electronics and other appurtenances used
or to be used to transmit, receive, distribute, pro-
vide or offer telecommunications services;
"Telecommunications provider" means and
includes every person who provides telecommuni-
cations services over telecommunications facilities
without any ownership or management control of
the facilities;
"Telecommunications service" means the pro-
viding or offering for rent, sale or lease, or in
exchange for other value received, of the transmit-
tal of voice, data, image, graphic and video pro-
gramming information between or among points
by wire, cable, fiber optics, laser, microwave,
radio, satellite or similar facilities, with or without
benefit of any closed transmission medium;
"Telecommunications system" see "telecom-
munications facilities";
"Underground facilities" means utility and tele-
communications facilities located under the sur-
face of the ground, excluding the underground
foundations or supports for overhead facilities;
"Universal service" means a level of and defini-
tion of telecommunications services as the term is
defined by the FCC through its authority granted
pursuant to Section 254 of the Act;
Medina Municipal Code
"Usable space" means the total distance
between the top of a utility pole and the lowest pos-
sible attachment point that provides the minimum
allowable vertical clearance as specified in any
federal or state orders and regulations;
"Utility facilities" means the plant, equipment
and property, including but not limited to the poles,
pipes, mains, conduits, ducts, cables, wires, plant
and equipment located under, on or above the sur-
face of the ground within the rights -of -way of the
city and used or to be used for the purpose of pro-
viding utility or telecommunications services.
(Ord. 692 § 1, 2001)
19.02.030 Telecommunications right-of-way
use authorization required.
Except as otherwise provided herein, any tele-
communications carrier who desires to construct,
install, operate, maintain, or otherwise locate tele-
communications facilities in, under, over or across
any public way of the city for the sole purpose of
providing telecommunications service to persons
and areas outside the city shall first obtain a tele-
communications right-of-way use authorization
granting the use of such rights -of -way from the city
pursuant to Chapter 19.04 MMC. (Ord. 692 § 1,
2001)
19.02.040 Telecommunications franchise
required.
Except as otherwise provided herein, any tele-
communications carrier who desires to construct,
install, operate, maintain or otherwise locate tele-
communications facilities in, under, over or across
any public way of the city, and to also provide tele-
communications service to persons or areas in the
city, shall first obtain a telecommunications fran-
chise granting the use of such rights -of -way from
the city pursuant to Chapter 19.06 MMC. (Ord. 692
§ 1, 2001)
19.02.050 Cable television franchise required.
Except as otherwise provided herein, any tele-
communications carrier or other person who
desires to construct, install, operate, maintain or
locate cable or telecommunications facilities in any
public way in the city for the purpose of providing
cable service to persons in the city shall first obtain
a cable franchise from the city. Said franchises
shall be negotiated on a case -by -case basis taking
into account the terms and provisions of existing
such franchises and the requirements of the Cable
Acts of 1984 and 1992; provided, however, unless
otherwise authorized or exempted by the terms of
19-5
19.02.090
an unexpired franchise, lease or agreement, cable
service operators shall comply with the relevant
provisions of Chapters 19.10 and 19.12 MMC.
(Ord. 692 § 1, 2001)
19.02.060 Facilities lease required.
No telecommunications carrier or other entity
who desires to locate telecommunications or other
equipment on city property shall locate such facil-
ities or equipment on city property unless granted
a facilities lease from the city pursuant to Chapter
19.08 MMC. The city council reserves unto itself
the sole discretion to lease city property for tele-
communications and other facilities, and no vested
or other right shall be created by any provision of
this title. (Ord. 692 § 1, 2001)
19.02.070 Construction permits required.
Except as otherwise provided herein, the holder
of an authorization, franchise, or lease granted pur-
suant to this title, and the holders of cable fran-
chises granted by the city, and telecommunication
providers claiming to have a state-wide grant to oc-
cupy the rights -of -way, shall, in addition to said au-
thorization, franchise, or lease, be required to
obtain a construction permit from the city pursuant
to Chapter 19.12 MMC. No work, construction, de-
velopment, excavation, or installation of any equip-
ment or facilities shall take place within the rights -
of -way or upon city property until such time as the
construction permit is issued. (Ord. 692 § 1, 2001)
19.02.080 Application to existing franchise
ordinances, agreements, leases, and
permits — Effect of other laws.
A. These provisions shall have no effect on any
existing franchise ordinance, franchise agreement,
lease, permit, or other authorization to use or
occupy a public way in the city until:
1. The expiration of said franchise ordinance,
agreement, lease, permit, or authorization; or
2. An amendment to an unexpired franchise
ordinance, franchise agreement, lease, permit, or
authorization that has been approved, unless both
parties agree to defer full compliance to a specific
date not later than the present expiration date.
B. Nothing in these provisions shall be deemed
to create an obligation upon any person for which
the city is forbidden to require pursuant to federal,
state, or other law. (Ord. 692 § 1, 2001)
19.02.090 Universal service.
Except as otherwise provided herein, all cable
operators, telecommunications carriers, and tele-
19.02.100
communications providers engaged in the business
of transmitting, supplying or furnishing telecom-
munications service of any kind originating or ter-
minating in the city are subject to the city's right,
which is expressly reserved, to require said opera-
tor, carrier, or provider to make an equitable and
nondiscriminatory contribution to the preservation
and advancement of universal service to the extent
permitted by state and federal law. (Ord. 692 § 1,
2001)
19.02.100 General penalties.
A. Civil Penalty.
1. Any person, and the officers, directors,
managing agents, or partners of any corporation,
firm, partnership or other organization or business
violating or failing to comply with any of the pro-
visions of this title shall be subject to a penalty in
an amount not less than $100.00 nor more than
$1,000 per day for each violation from the date set
for compliance until compliance with the order is
achieved.
2. In addition to any penalty which may be
imposed by the city, any person violating or failing
to comply with any of the provisions of this title
shall be liable for all damage to public or private
property arising from such violation, including the
cost of restoring the affected area in accordance
with the city's development guidelines.
3. The penalty imposed by this section shall
be collected by civil action brought by the city
attorney.
B. Criminal Penalty. Any person, and the offic-
ers, directors, managing agents, or partners of any
corporation, firm, partnership or other organization
or business violating or failing to comply with any
of the applicable provisions of this title shall be
subject to criminal prosecution and upon convic-
tion of such violation shall be fined in a sum not
exceeding $5,000 or be imprisoned for a term not
exceeding one year or be both fined and impris-
oned. Each day of noncompliance with any of the
applicable provisions of the title shall constitute a
separate offense.
C. Additional Relief. The city may seek legal or
equitable relief to enjoin any acts or practices and
abate any condition which constitutes or will con-
stitute a violation of the applicable provisions of
this title when civil or criminal penalties are inade-
quate to effect compliance. In addition to the pen-
alties set forth in this section, violation of the terms
of this title may also result in the revocation of any
authorization, franchise, approval, lease, or permit
19-6
issued or granted hereunder, as set forth in this title.
(Ord. 692 § 1, 2001)
19.02.110 Initial inquiry/responsibilities.
Initial inquiries regarding cable television and
telecommunications franchises, telecommunica-
tions right-of-way authorizations or facilities leases
shall be directed to the city manager or designee for
determination of which type or types of agreements
and permits are required. The city manager or des-
ignee shall have lead responsibility for negotiating
authorizations, franchises and leases. (Ord. 692 § 1,
2001)
19.02.120 Other remedies.
Nothing in this chapter shall be construed as
limiting any judicial remedies that the city may
have, at law or in equity, for enforcement of this
title. (Ord. 692 § 1, 2001)
19.02.130 Fees and compensation not a tax.
The fees, charges and fines provided for in this
title and any compensation charged and paid for
the rights -of -way provided for herein, whether
financial or in -kind, are separate from, and addi-
tional to, any and all federal, state, local, and city
taxes as may be levied, imposed or due from a tele-
communications carrier or provider, its customers
or subscribers or on account of the lease, sale,
delivery or transmission of telecommunications
services. (Ord. 692 § 1, 2001)
Medina Municipal Code
Chapter 19.04
TELECOMMUNICATIONS RIGHT-OF-
WAY USE AUTHORIZATIONS
Sections:
19.04.010
Telecommunications right-of-way use
authorization.
19.04.020
Telecommunications right-of-way use
authorization application.
19.04.030
Issuance/denial of
telecommunications right-of-way use
authorization.
19.04.040
Appeal of city manager's decision.
19.04.050
Agreement.
19.04.060
Nonexclusive grant.
19.04.070
Rights granted.
19.04.080
Term of telecommunications right-of-
way use authorization.
19.04.090
Specified route.
19.04.100
Service to city users.
19.04.110
Compensation to the city.
19.04.120
Amendment of authorization.
19.04.130
Renewal of telecommunications right-
of-way use authorization.
19.04.140
Standards for renewal of
authorization.
19.04.1.50
Obligation to cure as a condition of
renewal.
19.04.160
Universal service.
19.04.170
Annual fee for recovery of city costs.
19.04.180
Other city costs.
19.04.010 Telecommunications right-of-way
use authorization.
A telecommunications right-of-way use authori-
zation shall be required of any telecommunications
carrier or provider who desires to occupy specific
rights -of -way of the city for the sole purpose of
providing telecommunications services to persons
or areas outside the city. (Ord. 692 § 2, 2001)
19.04.020 Telecommunications right-of-way
use authorization application.
Any person that desires a telecommunications
right-of-way use authorization pursuant to this
chapter shall file an application with the city clerk
which shall include the following information:
A. The name of the applicant, including all
affiliates of the applicant;
B. A description of the telecommunications
services that are or will be offered or provided by
the applicant over its telecommunications facili-
ties;
19-7
19.04.020
C. A description of the transmission medium
that will be used by the applicant to offer or pro-
vide such telecommunications services;
D. Preliminary engineering plans, specifica-
tions and a network map of the facilities to be lo-
cated within the city, all in sufficient detail to
identify:
1. The location and route requested for appli-
cant's proposed telecommunications facilities;
2. The location of all overhead and under-
ground public utility, telecommunication, cable,
water, sewer drainage and other facilities in the
public way along the proposed route;
3. The location(s), if any, for interconnection
with the telecommunications facilities of other
telecommunications carriers; and
4. The specific trees, structures, improve-
ments, facilities and obstructions, if any, that appli-
cant proposes to temporarily or permanently
remove or relocate;
E. If applicant is proposing to install overhead
facilities, evidence that surplus space is available
for locating its telecommunications facilities on
existing utility poles along the proposed route;
F. If applicant is proposing an underground
installation in existing ducts or conduits within the
rights -of -way, information in sufficient detail to
identify:
1. The excess capacity currently available in
such ducts or conduits before installation of appli-
cant's telecommunications facilities;
2. The excess capacity, if any, that will exist
in such ducts or conduits after installation of appli-
cant's telecommunications facilities; and
3. Evidence of ownership or a right to use
such ducts or conduits;
G. If applicant is proposing an underground
installation within new ducts or conduits to be con-
structed within the rights -of -way:
1. The location proposed for the new ducts or
conduits; and
2. The excess capacity that will exist in such
ducts or conduits after installation of applicant's
telecommunications facilities;
H. A preliminary construction schedule and
completion date;
I. Information to establish that the applicant has
obtained all other governmental approvals and per-
mits to construct and operate the facilities, and to
offer or provide the telecommunications services,
including, but not limited to, evidence that the
applicant has registered with the Washington Util-
ities and Transportation Commission or is not
required to so register;
19.04.030
J. All deposits or charges required pursuant to
this chapter; and
K. An application fee which shall be set by the
city council by resolution. (Ord. 692 § 2, 2001)
19.04.030 Issuance/denial of
telecommunications right-of-way
use authorization.
Within 120 days after receiving a complete
application, the city manager or designee shall
issue a written determination granting or denying
the authorization in whole or in part. The 120-day
limitation may be waived by the applicant and shall
not apply if action by the city council is requested.
If the authorization is denied, the written determi-
nation shall include the reason(s) for denial. The
decision to grant or deny an application for a tele-
communications right-of-way use authorization
shall be based upon the following standards:
A. Whether the applicant has received all requi-
site licenses, certificates, and authorizations from
the Federal Communications Commission, the
Washington Utilities and Transportation Commis-
sion, and any other federal or state agency with
jurisdiction over the activities proposed by the
applicant;
B. The capacity of the rights -of -way to accom-
modate the applicant's proposed facilities;
C. The capacity of the rights -of -way to accom-
modate additional utility, cable, and telecommuni-
cations facilities if the authorization is granted;
D. The damage or disruption, if any, of public
or private facilities, improvements, service, travel
or landscaping if the authorization is granted and
efforts proposed to mitigate such damages or dis-
ruption;
E. The public interest in minimizing the cost
and disruption of construction within the rights -of -
way;
F. Applicant's proposed compliance with the
city's development guidelines;
G. The effect, if any, on public health, safety
and welfare if the authorization is granted;
H. The availability of alternate routes and/or
locations for the proposed facilities;
I. Such other factors as may demonstrate that
the grant to use the rights -of -way will or will not
serve the community interest. (Ord. 692 § 2, 2001)
19.04.040 Appeal of city manager's decision.
Any person aggrieved by the granting or deny-
ing of a telecommunications right-of-way authori-
zation or the renewal thereof pursuant to this
19-8
chapter shall have the right to appeal to the board
of adjustment as,follows:
A. All appeals filed pursuant to this section
must be filed in writing with the city clerk within
10 days of the date of the decision appealed from;
B. All appeals filed pursuant to this section
shall specify the error of law or fact, or new evi-
dence which could not have been reasonably avail-
able at the time of the city manager's decision,
which shall constitute the basis of the appeal;
C. Unless substantial relevant information is
presented which was not considered by the city
manager, such decision shall be accorded substan-
tial weight, but may be reversed or modified by the
board of adjustment if, after considering all of the
evidence in light of the applicable goals, policies,
and provisions of this title, the board of adjustment
determines that a mistake has been made. Where
substantial new relevant information which was
not considered in the making of the decision
appealed from has been presented, the board of
adjustment shall make its decision only upon the
basis of the facts presented at the hearing of the
appeal, or may elect to remand the matter for
reconsideration by the city manager in light of the
additional information. (Ord. 692 § 2, 2001)
19.04.050 Agreement.
No authorization shall be deemed to have been
granted hereunder until the applicant and the city
have executed a written agreement setting forth the
particular terms and provisions under which the
grantee has been granted the right to occupy and
use rights -of -way of the city. (Ord. 692 § 2, 2001)
19.04.060 Nonexclusive grant.
No authorization granted under this chapter
shall confer any exclusive right, privilege, license
or franchise to occupy or use the rights -of -way of
the city for delivery of telecommunications ser-
vices or any other purposes. (Ord. 692 § 2, 2001)
19.04.070 Rights granted.
No authorization granted under this chapter
shall convey any right, title or interest in the rights -
of -way, but shall be deemed an authorization only
to use and occupy the rights -of -way for the limited
purposes and term stated in the authorization. Fur-
ther, no authorization shall be construed as any
warranty of title. (Ord. 692 § 2, 2001)
Medina Municipal Code 19.04.170
19.04.080 Term of telecommunications right-
of-way use authorization.
Unless otherwise specified in an authorization,
no authorization granted hereunder shall be in
effect for a term exceeding five years. (Ord. 692
§ 2, 2001)
19.04.090 Specified route.
A telecommunications right-of-way use authori-
zation granted under this chapter shall be limited to
a grant for use of specific rights -of -way and
defined portions thereof. (Ord. 692 § 2, 2001)
19.04.100 Service to city users.
A grantee shall be permitted to offer or provide
telecommunications services to persons or areas
within the city upon approval of an application for
a telecommunications franchise pursuant to Chap-
ter 19.06 MMC. (Ord. 692 § 2, 2001)
19.04.110 Compensation to the city.
Each authorization granted pursuant to this
chapter is subject to the city's right under the 1996
Federal Telecommunications Act, which is ex-
pressly reserved, to annually fix a fair and reason-
able compensation to be paid for the right to occupy
and use the rights -of -way of the city granted under
such authorization; provided, that nothing in this
chapter shall prohibit the city and a grantee from
agreeing to the compensation to be paid; provided
further, that the compensation required from any
telecommunications provider shall be consistent
with state law. (Ord. 692 § 2, 2001)
19.04.120 Amendment of authorization.
A new application shall be required of any tele-
communications carrier or provider who desires to
extend or locate its telecommunications facilities
in rights -of -way of the city which are not included
in an authorization previously granted under this
title. If ordered by the city to locate or relocate its
telecommunications facilities in rights -of -way not
included in a previously granted authorization, the
city shall grant an amendment to the authorization
without further application. (Ord. 692 § 2, 2001)
19.04.130 Renewal of telecommunications
right-of-way use authorization.
A grantee that desires to renew its authorization
under this chapter for an additional term shall, not
more than 180 days nor less than 90 days before
expiration of the current authorization, file an
application with the city for renewal which shall
include the following:
19-9
A. The information required pursuant to MMC
19.04.020;
B. Any information required pursuant to the
authorization agreement between the city and the
grantee;
C. All deposits or charges required pursuant to
this chapter; and
D. An application fee which shall be set by the
city council by resolution. (Ord. 692 § 2, 2001)
19.04.140 Standards for renewal of
authorization.
Within 90 days after receiving a complete appli-
cation for renewal, the city manager or designee
shall issue a written determination granting or
denying the renewal application in whole or in part.
If the renewal application is denied, the written
determination shall include the reason(s) for
denial. The decision to grant or deny an application
for the renewal of a telecommunications right-of-
way use authorization shall, in addition to the stan-
dards set forth in MMC 19.04.030, be based upon
the following standards:
A. The continuing capacity of the rights -of -way
to accommodate the applicant's existing facilities;
and
B. The applicant's compliance with the require-
ments of this title and the authorization. (Ord. 692
§ 2, 2001)
19.04.150 Obligation to cure as a condition of
renewal.
No authorization shall be renewed until any
ongoing violations or defaults in the grantee's per-
formance under the authorization, or of the require-
ments of this title, have been cured, or a plan
detailing the corrective action to be taken by the
grantee has been approved by the city manager.
(Ord. 692 § 2, 2001)
19.04.160 Universal service.
Each telecommunications right-of-way use
authorization granted under this chapter is subject
to the city's right, which is expressly reserved, to
require the telecommunication carrier or provider
to make an equitable and nondiscriminatory contri-
bution to the preservation and advancement of uni-
versal service to the extent permitted by state and
federal law. (Ord. 692 § 2, 2001)
19.04.170 Annual fee for recovery of city costs.
Each authorization granted under this chapter is
subject to the city's right, which is expressly
reserved, to annually fix a fair and reasonable com-
19.04.180
pensation to be paid as reimbursement for the
city's costs in connection with reviewing, inspect-
ing and supervising the use and occupancy of the
rights -of -way on behalf of the public and existing
or future users. (Ord. 692 § 2, 2001)
19.04.180 Other city costs.
All grantees shall, within 30 days after written
demand, reimburse the city for all direct and indi-
rect costs, expenses and consultant fees incurred by
the city in connection with any modification,
amendment, renewal or transfer of the authoriza-
tion or any authorization agreement. In addition, all
grantees shall, within 30 days after written demand,
reimburse the city for any and all costs the city rea-
sonably incurs in response to any emergency in-
volving the grantee's telecommunications facili-
ties. All grantees shall, within 30 days after written
demand, reimburse the city for the grantee's pro-
portionate share of all actual, identified expenses
incurred by the city in planning, constructing, in-
stalling, repairing or altering any city facility as a
result of the construction or the presence in the
right-of-way of the grantee's telecommunications
facilities. (Ord. 692 § 2, 2001)
19-10
Chapter 19.06
TELECOMMUNICATIONS FRANCHISE
Sections:
19.06.010
Telecommunications franchise.
19.06.020
Franchise application.
19.06.030
Determination by the city.
19.06.040
Agreement.
19.06,050
Nonexclusive grant.
19.06.060
Term of franchise grant.
19.06.070
Rights granted.
19.06.080
Franchise territory.
19.06.090
Compensation to the city.
19.06.100
Nondiscrimination.
19.06.110
Amendment of franchise grant.
19.06.120
Renewal application.
19.06.130
Renewal determination.
19.06.140
Obligation to cure as a condition of
renewal.
19.06.150
Universal service.
19.06.160
Annual fee for recovery of city costs.
19.06.170
Other city costs.
19.06.010 Telecommunications franchise.
A telecommunications franchise shall be
required of any telecommunications provider or
carrier or other person who currently occupies or
desires in the future to occupy rights -of -way of the
city and to provide telecommunications services to
any person or area in the city; provided, however,
that no franchise shall be required for de minimis
uses of rights -of -way made in conjunction with the
placement of a wireless telecommunications facil-
ity. (Ord. 692 § 3, 2001)
19.06.020 Franchise application.
Any person who desires a telecommunications
franchise pursuant to this chapter shall file an
application with the city clerk which, in addition to
the information required by MMC 19.04.020, shall
include the following:
A. Whether the applicant intends to provide ca-
ble service, video dialtone service, other video pro-
gramming service or telecommunication services,
and sufficient information to determine whether
such service is subject to cable franchising;
B. An accurate map showing the location of
any existing telecommunications facilities in the
city that applicant intends to use or lease;
C. A description of the services or facilities that
the applicant will offer or make available to the city
and other public, educational and governmental
institutions;
Medina Municipal Code 19.06.090
D. A description of applicant's access and line
extension policies;
E. The area or areas of the city the applicant
desires to serve and a schedule for build -out to the
entire franchise area;
F. All fees, deposits or charges required pursu-
ant to this chapter;
G. Such other and further information as may
be requested by the city; and
H. An application fee which shall be set by the
city council by resolution. (Ord. 692 § 3, 2001)
19.06.030 Determination by the city.
Within 120 days after receiving a complete
application under MMC 19.06.020, unless addi-
tional time is reasonably necessary for action by
the city council, the city shall issue a written deter-
mination granting or denying the application in
whole or in part. Prior to granting or denying a
franchise under this chapter, the city council shall
conduct a public hearing and make a decision
based upon the standards set forth below. Pursuant
to RCW 35A.47.040, the city council shall not
approve any franchise hereunder until the next reg-
ularly scheduled council meeting following the
public hearing. If the application is denied, a writ-
ten determination shall be included setting forth the
reason for denial:
A. Whether the applicant has received all requi-
site licenses, certificates, and authorizations from
the Federal Communications Commission, the
Washington Utilities and Transportation Commis-
sion, and any other federal or state agency with ju-
risdiction over the activities proposed by the
applicant;
B. The capacity of the rights -of -way to accom-
modate the applicant's proposed facilities;
C. The capacity of the rights -of -way to accom-
modate additional utility and telecommunications
facilities if the franchise is granted;
D. The damage or disruption, if any, of public
or private facilities, improvements, service, travel
or landscaping if the franchise is granted;
E. The public interest in minimizing the cost
and disruption of construction within the rights -of -
way;
F. Applicant's proposed compliance with all
applicable development guidelines;
G. The effect, if any, on public health, safety
and welfare if the franchise requested is granted;
H. The availability of alternate routes and/or
locations for the proposed facilities;
I. Such other factors as may demonstrate that
the grant to use the rights -of -way will or will not
serve the community interest. (Ord. 692 § 3, 2001)
19.06.040 Agreement.
No telecommunications franchise shall be
deemed to have been granted hereunder until the
applicant and the city have executed a written fran-
chise agreement setting forth the particular terms
and provisions under which the franchisee has been
granted the right to occupy and use rights -of -way
of the city. If the city determines it is in the public
interest, the city and a franchisee may enter into an
agreement that differs from one or more specific
provisions of this chapter. (Ord. 692 § 3, 2001)
19.06.050 Nonexclusive grant.
No franchise granted under this chapter shall
confer any exclusive right, privilege, license or
franchise to occupy or use the rights -of -way of the
city for delivery of telecommunications services or
any other purposes. (Ord. 692 § 3, 2001)
19.06.060 Term of franchise grant.
Unless otherwise specified in a franchise agree-
ment, a telecommunications franchise granted
hereunder shall be valid for a term of five years.
(Ord. 692 § 3, 2001)
19.06.070 Rights granted.
No franchise granted under this chapter shall
convey any right, title or interest in the rights -of -
way, but shall be deemed a franchise only to use
and occupy the rights -of -way for the limited pur-
poses and term stated in the grant. Further, no fran-
chise shall be construed as any warranty of title.
(Ord. 692 § 3, 2001)
19.06.080 Franchise territory.
Unless otherwise provided in the franchise
agreement, a telecommunications franchise grant-
ed under this chapter shall be limited to the specific
geographic area of the city to be served by the fran-
chisee, and the specific rights -of -way necessary to
serve such areas. (Ord. 692 § 3, 2001)
19.06.090 Compensation to the city.
Each franchise granted under this chapter is sub-
ject to the city's right under the 1996 Telecommu-
nications Act, which is expressly reserved, to
annually fix a fair and reasonable compensation to
be paid for the franchise rights granted to the fran-
chisee; provided, that nothing in this chapter shall
prohibit the city and a franchisee from agreeing to
19.06.100
the compensation to be paid; provided, further, that
the compensation required from any telecommuni-
cations provider or carrier shall be consistent with
state law. (Ord. 692 § 3, 2001)
19.06.100 Nondiscrimination.
A franchisee which purports to serve the general
public shall make its telecommunications services
available to any customer within its franchise area
who shall request such service, without discrimina-
tion as to the terms, conditions, rates or charges for
the franchisee's services; provided, however, that
nothing in this title shall prohibit a franchisee from
making any reasonable classifications among dif-
ferently situated customers. (Ord. 692 § 3, 2001)
19.06.110 Amendment of franchise grant.
Except as otherwise provided within a franchise
agreement, a new franchise application and grant
shall be required of any telecommunications car-
rier or provider that desires to extend its franchise
territory or to locate its telecommunications facili-
ties in rights -of -way of the city which are not
included in a franchise previously granted under
this chapter. If ordered by the city to locate or relo-
cate its telecommunications facilities in rights -of -
way not included in a previously granted franchise,
the city shall grant a franchise amendment without
further application. (Ord. 692 § 3, 2001)
19.06.120 Renewal application.
A franchisee that desires to renew its franchise
under this chapter for an additional term shall, not
more than 180 days nor less than 120 days before
expiration of the current franchise, file an applica-
tion with the city for renewal of its franchise which
shall include the following:
A. The information required pursuant to MMC
19.06.020;
B. Any information required pursuant to the
franchise agreement between the city and the
grantee;
C. All deposits or charges required pursuant to
this chapter; and
D. An application fee which shall be set by the
city council by resolution. (Ord. 692 § 3, 2001)
19.06.130 Renewal determination.
Within 120 days after receiving a complete
application for renewal under MMC 19.06.120,
unless additional time is reasonably necessary for
action by the city council, the city shall issue a
written determination granting or denying the
renewal application in whole or in part. Prior to
19-12
granting or denying renewal of a franchise under
this chapter, the city council shall conduct a public
hearing and make a decision based upon the stan-
dards set forth below. If the renewal application is
denied, the written determination shall include the
reasons for nonrenewal.
A. The continuing capacity of the rights -of -way
to accommodate the applicant's existing facilities.
B. The applicant's compliance with the require-
ments of this chapter and the franchise agreement.
C. Applicable federal, state and local telecom-
munications laws, rules and policies.
D. Such other factors as may demonstrate that
the continued grant to use the rights -of -way will or
will not serve the community interest. (Ord. 692
§ 3, 2001)
19.06.140 Obligation to cure as a condition of
renewal.
No franchise shall be renewed until any ongoing
violations or defaults in the franchisee's perfor-
mance of the franchise agreement, or of the
requirements of this title, have been cured, or a
plan detailing the corrective action to be taken by
the franchisee has been approved by the city. (Ord.
692 § 3, 2001)
19.06.150 Universal service.
Each franchise granted under this chapter is sub-
ject to the city's right under the 1996 Telecommu-
nications Act, which is expressly reserved, to
require the franchisee to make an equitable and
nondiscriminatory contribution to the preservation
and advancement of universal service to the extent
permitted by state and federal law. (Ord. 692 § 3,
2001)
19.06.160 Annual fee for recovery of city costs.
Subject to the 1996 Telecommunications Act,
each franchise granted under this chapter is subject
to the city's right, which is expressly reserved, to
annually fix a fair and reasonable compensation to
be paid as reimbursement for the city's costs in
connection with reviewing, inspecting and super-
vising the use and occupancy of the rights -of -way
on behalf of the public and existing or future users.
(Ord. 692 § 3, 2001)
19.06.170 Other city costs.
All franchisees shall, within 30 days after written
demand, reimburse the city for all direct and indi-
rect costs, expenses and consulting fees incurred by
the city in connection with any modification,
amendment, renewal or transfer of the franchise or
Medina Municipal Code 19.07.020
any franchise agreement. In addition, all franchi-
sees shall, within 30 days after written demand, re-
imburse the city for any and all costs the city
reasonably incurs in response to any emergency in-
volving the franchisee's telecommunications facil-
ities. Finally, all franchisees shall, within 30 days
after written demand, reimburse this city for the
franchisee's proportionate share of all actual, iden-
tified expenses incurred by the city in planning,
constructing, installing, repairing or altering any
city facility as a result of the presence in the right-
of-way of the franchisee's telecommunications fa-
cilities. (Ord. 692 § 3, 2001)
19-13
Chapter 19.07
SPECIAL RULES APPLICABLE TO
OPEN VIDEO SYSTEMS
Sections:
19.07.010
Open video systems franchise
required.
19.07.020
Open video system franchise —
Contents of application for initial or
renewal franchise.
19.07.030
Applications for transfer.
19.07.040
City review.
19.07.050
Compensation.
19.07.060
Annual reports.
19.07.010 Open video systems franchise
required.
No person, partnership, corporation or other
entity shall offer open video system programming
or operate an open video system as defined in
MMC 19.02.020 without first obtaining a franchise
from the city of Medina. (Ord. 692 § 4, 2001)
19.07.020 Open video system franchise —
Contents of application for initial or
renewal franchise.
In order to obtain an initial or renewal franchise,
an operator of an open video system must apply for
a franchise. The application must contain the fol-
lowing information, and such information as the
city may from time to time require:
A. Identity of the applicant; the persons who
exercise working control over the applicant; and
the persons who control those persons, to the ulti-
mate parent.
B. A proposal for construction of the open
video system that includes at least the following:
1. A description of the services that are to be
provided over the facility;
2. Identification of the area of the city to be
served by the proposed system, including a
description of the proposed franchise area bound-
aries;
3. The location of the proposed facility and
facility design, including a description of the miles
of plant to be installed, and a description of the size
of equipment cabinets, shielding and electronics
that will be installed along the plant route, the
power sources that will be used and a description of
the noise, exhaust and pollutants, if any, that will
be generated by the operation of the same;
4. A map of the route the facility will follow;
a description of the portions of the system that will
m
■
19.07.030
be placed aboveground and the portions that will
be placed underground, and the construction tech-
niques that the operator proposes to use in install-
ing the system aboveground and underground; a
schedule for construction of the facility, describing
when and where construction will begin, how it
will proceed, and when it will be completed; and
the expected effect on right-of-way usage, includ-
ing information on the ability of the public rights -
of -way to accommodate the proposed system,
including, as appropriate given the system pro-
posed, an estimate of the availability of space in
conduits and an estimate of the cost of any neces-
sary rearrangement of existing facilities;
5. A description, where appropriate, of how
services will be converted from existing facilities
to new facilities, and what will be done with exist-
ing facilities;
6. Evidence satisfactory to the city that the
applicant has the financial resources to complete
the proposed project, and to construct, operate and
repair the proposed facility over the franchise term.
It is not the intent of the city to require an applicant
to prove that the services it proposes to offer will
succeed in the marketplace;
7. Evidence satisfactory to the city that
applicant is technically qualified to construct,
operate and repair the proposed facility. At a mini-
mum, the applicant must show that it has experi-
ence or resources to ensure that work is to be
performed adequately, and can respond to emer-
gencies during and after construction is complete;
8. Evidence satisfactory to the city that the
applicant is legally qualified, which proof must
include a demonstration that the applicant:
a. Has received, or is in a position to
receive, necessary authorizations from state and
federal authorities;
b. Has not engaged in conduct (fraud,
racketeering, violation of antitrust laws, consumer
protection laws, or similar laws) that allows the
city to conclude the applicant cannot be relied upon
to comply with requirements of franchise, or provi-
sions of this title;
c. Is willing to enter into a franchise, to
pay required compensation and to abide by the pro-
visions of applicable law, including those relating
to the construction, operation or maintenance of its
facilities, and has not entered into any agreement
that would prevent it from doing so;
9. An affidavit or declaration of the applicant
or authorized officer thereof certifying the truth
and accuracy of the information in the application,
19-14
and certifying that the application meets all
requirements of applicable law;
10. An application or renewal fee which
shall be set by the city council by resolution.
C. An applicant may show that it would be
inappropriate to deny it a franchise under subsec-
tion (13)(8)(b) of this section, by virtue of the par-
ticular circumstances surrounding the acts or
omissions at issue; the steps taken by the applicant
to cure all harms flowing therefrom and to prevent
their recurrence; and the lack of involvement of the
applicant's principals, or the remoteness of the acts
or omissions from the operation of open video sys-
tem facilities.
D. To the extent that the applicant is in any
respect relying on the financial or technical
resources of another person, including another
affiliate, the proofs required by subsections (13)(5)
through (13)(7) of this section should be provided
for that person. An applicant will be presumed to
have the requisite financial, or technical or legal
qualifications to the extent such qualifications have
been reviewed and approved by a state agency of
competent jurisdiction; or if applicant is a holder of
a franchise in the city for a cable system or open
video system, and conduct under such other fran-
chise provides no basis for additional investiga-
tion. (Ord. 692 § 4, 2001)
19.07.030 Applications for transfer.
An application for the transfer of an existing
franchise must contain the same information
required by MMC 19.07.020, except that, if the
transferor submitted an application under MMC
19.07.020, to the extent information provided by
the transferor under MMC 19.07.020(B) remains
accurate, the transferee may simply cross-refer-
ence the earlier application. (Ord. 692 § 4, 2001)
19.07.040 City review.
The city may request such additional informa-
tion as it finds necessary, and require such modifi-
cations to the application as may be necessary in
the exercise of the city's authority over open video
systems. Once the information required by the city
has been provided, the application shall be subject
to review by the city and any approval will also be
subject to a city determination that:
A. The applicant has the qualifications to con-
struct, operate and repair the system proposed in
conformity with applicable law;
B. The applicant will accept the modifications
required by the city to its proposed system;
Medina Municipal Code
C. The applicant will enter into a franchise and
comply with any required conditions, including but
not limited to the obligation to establish intercon-
nections for provision of local access channels des-
ignated by the city;
D. In the case of a transfer, the approval is also
subject to a determination that:
1. There will be no adverse effect on the pub-
lic interest, or the city's interest in the franchise;
2. Transferee will agree to be bound by all
the conditions of the franchise and to assume all the
obligations of its predecessor; and
3. Any outstanding compliance and compen-
sation issues will be resolved to the satisfaction of
the city;
E. An applicant shall not be issued a franchise
if it files or has in the previous three years filed
materially inaccurate or misleading information in
a franchise application or intentionally withheld
information that the applicant lawfully is required
to provide. (Ord. 692 § 4, 2001)
19.07.050 Compensation.
Every operator of an open video system shall
pay compensation to the city in the amount set
forth in the franchise, which amount shall be sub-
ject to annual adjustment.
To the extent that the open video system is used
for the provision of telecommunications services,
the open video system operator shall pay the fee
required for telecommunications providers. (Ord.
692 § 4, 2001)
19.07.060 Annual reports.
No later than 90 days after the end of its fiscal
year, a cable operator shall submit a written report
that shall contain such information as may be
required from time to time by the city, and at least
the following, unless the city waives the require-
ment:
A. A summary of the previous year's activities
in the development of the open video system,
including descriptions of services begun or discon-
tinued, the number of subscribers gained or lost for
each category of cable service;
B. A revenue report from the previous calendar
year for the open video system, certified by the
operator's chief financial officer;
C. An ownership report, including all persons
who at the time of filing control or own an interest
in the open video system operator of 10 percent or
more;
D. A list of officers and members of the board
of directors of the franchisee and any affiliates
19-15
19.07.060
directly involved in the operation or the mainte-
nance of the open video system;
E. A complete report on its plant. This plant
report shall state the physical miles of plant con-
struction and plant in operation during the prior
calendar year categorized as aerial and under-
ground, identify any cases where subscribers con-
tributed to plant extension, provide revisions to the
open video system maps filed with the city, and
report the results of appropriate electronic mea-
surements to show conformity with FCC technical
standards;
F. Once the information required by subsec-
tions (A) through (E) of this section has been filed,
it need be refiled only if it changes. (Ord. 692 § 4,
2001)
19.08.010
Chapter 19.08
FACILITIES LEASE
Sections:
19.08.010
Facilities lease.
19.08.020
Lease application.
19.08.030
Determination by the city.
19.08.040
Agreement.
19.08.050
Nonexclusive lease.
19.08.060
Term of facilities lease.
19.08.070
Rights granted.
19.08.080
Interference with other users.
19.08.090
Ownership and removal of
improvements.
19.08.100
Compensation to the city.
19.08.110
Amendment of facilities lease.
19.08.120
Renewal application.
19.08.130
Renewal detennination.
19.08.140
Obligation to cure as a condition of
renewal.
19.08.010 Facilities lease.
The city council may, in its sole discretion which
is hereby reserved, approve facilities leases for the
location of telecommunications facilities and other
facilities upon city property other than rights -of -
way. Neither this section, nor any other provision
of this title shall be construed to create an entitle-
ment or vested right in any person or entity of any
type. Facilities leases granted for the installation
and/or construction of wireless communications fa-
cilities shall also comply with the terms and provi-
sions of Chapter 17.90 MMC. (Ord. 692 § 5, 2001)
19.08.020 Lease application.
Any person that desires to solicit the city's
approval of a facilities lease pursuant to this chap-
ter shall file a lease proposal with the city's clerk
which, in addition to the information required by
MMC 19.04.020, shall include the following:
A. A description of the telecommunications
facilities or other equipment proposed to be located
upon city property;
B. A description of the city property upon
which the applicant proposes to locate telecommu-
nications facilities or other equipment;
C. Preliminary plans and specifications in suffi-
cient detail to identify:
1. The location(s) of existing telecommuni-
cations facilities or other equipment upon the city
property, whether publicly or privately owned;
19-16
2. The location and source of electric and
other utilities required for the installation and oper-
ation of the proposed facilities;
D. Accurate scale conceptual drawings and dia-
grams of sufficient specificity to analyze the aes-
thetic impacts of the proposed telecommunications
facilities or other equipment;
E. Whether the applicant intends to provide
cable service, video dialtone service or other video
programming service, and sufficient information to
determine whether such service is subject to cable
franchising;
F. An accurate map showing the location of any
existing telecommunications facilities in the city
that the applicant intends to use or lease;
G. A description of the services or facilities that
the applicant will offer or make available to the city
and other public, educational, and governmental
institutions;
H. Such other and further information as may
be requested by the city; and
I. An application fee which shall be set by the
city council by resolution. (Ord. 692 § 5, 2001)
19.08.030 Determination by the city.
Recognizing that the city is under no obligation
to grant a facilities lease for the use of city prop-
erty, the city shall strive to consider and take action
on applications for facilities leases within 120 days
after receiving a complete application for such a
lease unless additional time is reasonably neces-
sary for action by the city council. When such
action is taken, the city shall issue a written deter-
mination granting or denying the lease in whole or
in part, applying the standards set forth below, or
any other such criteria as the city council may
choose to apply. If the lease application is denied,
the determination shall include the reason for
denial, if any.
A. The capacity of the city property and rights -
of -way to accommodate the applicant's proposed
facilities;
B. The capacity of the city property and rights -
of -way to accommodate additional utility and tele-
communications facilities if the lease is granted;
C. The damage or disruption, if any, of public
or private facilities, improvements, service, travel
or landscaping if the lease is granted;
D. The public interest in minimizing the cost
and disruption of construction upon city property
and within the rights -of -way;
E. The service that applicant will provide to the
community and region;
Medina Municipal Code 19.08.090
F. The effect, if any, on public health, safety,
and welfare if the lease requested is approved;
G. The availability of alternate routes and/or
locations for the proposed facilities;
H. Whether the applicant is in compliance with
applicable federal and state telecommunications
laws, regulations and policies, including, but not
limited to, the registration requirements adminis-
tered by the Washington Utilities and Transporta-
tion Commission;
I. The potential for radio frequency and other
interference with existing public and private tele-
communications or other facilities located upon the
city property;
J. The potential for radio frequency and other
interference or impacts upon residential, commer-
cial, and other uses located within the vicinity of
the city property;
K. Such other factors, such as aesthetics, as
may demonstrate that the lease to use the city prop-
erty will or will not serve the community interest;
L. The maximization of co -location opportuni-
ties with other similar uses. (Ord. 692 § 5, 2001)
19.08.040 Agreement.
No facilities lease shall be deemed to have been
granted hereunder until the applicant and the city
have executed a written agreement setting forth the
particular terms and provisions under which the
lessee has been granted the right to occupy and use
the city property. (Ord. 692 § 5, 2001)
19.08.050 Nonexclusive lease.
No facilities lease granted under this chapter
shall confer any exclusive right, privilege, license,
or franchise to occupy or use city property for
delivery of telecommunications services or any
other purposes. (Ord. 692 § 5, 2001)
19.08.060 Term of facilities lease.
Unless otherwise specified in a lease agreement,
a facilities lease granted hereunder shall be valid
for a term of one year, subject to annual renewal as
provided in this chapter. (Ord. 692 § 5, 2001)
19.08.070 Rights granted.
No facilities lease granted under this chapter
shall convey any right, title or interest in the city
property, but shall be deemed a license only to use
and occupy the city property for the limited pur-
poses and term stated in the lease agreement. Fur-
ther, no facilities lease shall be construed as any
warranty of title. (Ord. 692 § 5, 2001)
19-17
19.08.080 Interference with other users.
No facilities lease shall be granted under this
chapter unless it contains a provision which is sub-
stantially similar to the following:
The City has previously entered into or
may enter into leases with other tenants
for their equipment and antenna facilities.
Lessee acknowledges that the City may
lease the City property for the purposes of
transmitting and receiving telecommunica-
tion signals from the City property. The
City, however, is not in any way responsi-
ble or liable for any interference with Les-
see's use of the City property which may
be caused by the use and operation of any
other tenant's equipment, even if caused
by new technology. In the event that any
other tenant's activities interfere with the
Lessee's use of the City property, and the
Lessee cannot work out this interference
with the other tenants, the Lessee may,
upon 30 days' notice to the City, terminate
this lease and restore the City property to
its original condition, reasonable wear and
tear excepted. The Lessee shall cooperate
with all other tenants to identify the causes
of and work towards the resolution of any
electronic interference problem. In addi-
tion, the Lessee agrees to eliminate any
radio or television interference caused to
City -owned facilities or surrounding resi-
dences at Lessee's own expense and
without installation of extra filters on City -
owned equipment. Lessee further agrees
to accept such interference as may be re-
ceived from City operated telecommunica-
tions or other facilities located upon the
City property subject to this lease.
(Ord. 692 § 5, 2001)
19.08.090 Ownership and removal of
improvements.
No facilities lease shall be granted under this
chapter unless it contains a provision which states
that all buildings, landscaping, and all other im-
provements, except telecommunications equip-
ment, shall become the property of the city upon
expiration or termination of the lease. In the event
that the city requires removal of such improve-
ments, such removal shall be accomplished at the
sole expense of the lessee and completed within 90
days after receiving notice from the city requiring
removal of the improvements. In the event that tele-
19.08.100
communications facilities or other equipment are
left upon city property after expiration or termina-
tion of the lease, they shall become the property of
the city if not removed by the lessee upon 30 days'
written notice from the city. (Ord. 692 § 5, 2001)
19.08.100 Compensation to the city.
Each facilities lease granted under this chapter is
subject to the city's right, which is expressly
reserved, to annually fix a fair and reasonable com-
pensation to be paid for the rights granted to the
lessee; provided, nothing in this title shall prohibit
the city and a lessee from agreeing to the compen-
sation to be paid. Such compensation shall be pay-
able in advance of the effective date of the lease
and on or before January 31 st of each calendar
year. Any payments received after the due date
shall include a late payment penalty of two percent
of the annual rental fee for each day or part thereof
past the due date. The compensation shall be nego-
tiated by the city manager or designee, subject to
the city council's final approval, based on the fol-
lowing criteria:
A. Comparable lease rates for other public or
private property;
B. In the case land is leased, the value of the
land and any associated air space;
C. If structure of another user is involved, any
amount needed to reimburse that user, in addition
to the above;
D. A yearly escalator rate commonly used in
comparable leases;
E. Any unique characteristics of the leased area
tending to affect the value of the leasehold. (Ord.
692 § 5, 2001)
19.08.110 Amendment of facilities lease.
Except as provided within an existing lease
agreement, anew lease application and lease agree-
ment shall be required of any telecommunications
carrier or other entity that desires to expand, mod-
ify, or relocate its telecommunications facilities or
other equipment located upon city property. If or-
dered by the city to locate or relocate its telecom-
munications facilities or other equipment on the
city property, the city shall grant a lease amend-
ment without further application. (Ord. 692 § 5,
2001)
19.08.120 Renewal application.
A lessee that desires to renew its facilities lease
under this chapter shall, not more than 180 days
nor less than 120 days before expiration of the cur-
rent facilities lease, file an application with the city
19-18
for renewal of its facilities lease which shall
include the following:
A. The information required pursuant to MMC
19.08.020;
B. Any information required pursuant to the
facilities lease agreement between the city and the
lessee;
C. All deposits or charges required pursuant to
this chapter; and
D. A renewal fee which shall be set by the city
council by resolution. (Ord. 692 § 5, 2001)
19.08.130 Renewal determination.
Recognizing that the city is under no obligation
to grant a renewal of a facilities lease for the use of
city property, the city shall strive to consider and
take action on applications for renewal of such
leases within 60 days after receiving a complete
application for such a lease renewal unless addi-
tional time is reasonably necessary for action by
the city council. When such action is taken, the city
shall issue a written determination granting or
denying the lease renewal in whole or in part,
applying the standards set forth below, or any other
such criteria as the city council may choose to
apply. If the renewal application is denied, the
written determination shall include the reason for
denial, if any:
A. The financial and technical ability of the
applicant;
B. The legal ability of the applicant;
C. The continuing capacity of the city property
to accommodate the applicant's existing facilities;
D. The applicant's compliance with the require-
ments of this chapter and the lease agreement;
E. Applicable federal, state and local telecom-
munications laws, rules and policies;
F. Such other factors as may demonstrate that
the continued grant to use the city property ways
will or will not serve the community interest. (Ord.
692 § 5, 2001)
19.08.140 Obligation to cure as a condition of
renewal.
No facilities lease shall be renewed until any
ongoing violations or defaults in the lessee's per-
formance of the lease agreement, or of the require-
ments of this title, have been cured, or a plan
detailing the corrective action to be taken by the
lessee has been approved by the city. (Ord. 692 § 5,
2001)
Medina Municipal Code
Chapter 19.10
CONDITIONS OF
TELECOMMUNICATIONS
RIGHT-OF-WAY USE AUTHORIZATIONS,
FRANCHISES, AND FACILITIES LEASES
Sections:
19.10.010
Purpose.
19.10.020
Acceptance.
19.10.030
Police power.
19.10.040
Rules and regulations by the city.
19.10.050
Location of facilities.
19.10.060
Conduit occupancy.
19.10.070
Occupancy of city -owned conduit.
19.10.080
Compliance with One Number
Locator Service.
19.10.090
Construction permits.
19.10.100
Interference with rights -of -way.
19.10.110
Damage to property.
19.10.120
Notice of work.
19.10.130
Repair and emergency work.
19.10.140
Maintenance of facilities.
19.10.150
Relocation or removal of facilities.
19.10.160
Building moving.
19.10.170
Removal of unauthorized facilities.
19.10.180
Emergency removal or relocation of
facilities.
19.10.190
Damage to facilities.
19.10.200
Restoration of rights -of -way, other
ways, and city property.
19.10.210
Facilities maps.
19.10.220
Duty to provide information.
19.10.230
Leased capacity.
19.10.240
Insurance.
19.10.250
General indemnification.
19.10.260
Performance and construction surety
19.10.270
Security fund.
19.10.280
Restoration bond.
19.10.290
Coordination of construction
activities.
19.10.300
Assignments or transfers of grant.
19.10.310
Transactions affecting control of
grant.
19.10.320
Revocation or termination of grant.
19.10.330
Notice and duty to cure.
19.10.340
Hearing.
19.10.350
Standards for revocation or lesser
sanctions.
19.10.360
Incorporation by reference.
19.10.370
Notice of entry on private property.
19.10.380
Safety requirements.
19-19
19.10.040
19.10.390 Most favored community.
19.10.400 Relationship with WUTC
proceedings.
19.10.010 Purpose.
The purpose of this chapter is to set forth certain
terms and conditions which are common to all tele-
communications right-of-way use authorizations,
telecommunications franchises, and facilities
leases. Except as otherwise provided in this title or
in such an authorization, franchise, or lease, the
provisions of this chapter apply to all such authori-
zations, franchises, and leases approved or granted
by the city. (Ord. 692 § 6, 2001)
19.10.020 Acceptance.
No authorization, franchise, or lease granted
pursuant to the provisions of this title shall become
effective unless and until the ordinance or other
city action granting the same has become effective.
Within 30 days after the effective date of the ordi-
nance or other city action granting an authoriza-
tion, franchise, or lease, or within such extended
period of time as the council in its discretion may
authorize, the applicant shall file with the city
administrator an unconditional written acceptance
of the authorization, franchise, or lease, in a form
satisfactory to the city attorney, together with the
bonds, insurance policies, and security fund
required by this chapter. (Ord. 692 § 6, 2001)
19.10.030 Police power.
In accepting any authorization, franchise or
lease, the grantee, franchisee, or lessee acknowl-
edges that its rights hereunder are subject to the
legitimate rights of the police power of the city to
adopt and enforce general ordinances necessary to
protect the safety and welfare of the public, and it
agrees to comply with all applicable general laws
enacted by the city pursuant to such power. (Ord.
692 § 6, 2001)
19.10.040 Rules and regulations by the city.
In addition to the inherent powers of the city to
regulate and control any authorization, franchise,
or lease it issues, the authority granted to it by the
Cable Act and the Telecommunications Act of
1996, and those powers expressly reserved by the
city, or agreed to and provided for in any authori-
zation, franchise, or lease, the right and power is
hereby reserved by the city to promulgate such
additional regulations as it may find necessary in
the exercise of its lawful powers giving due regard
to the rights of grantees, franchisees, and lessees.
19.10.050
Except as provided in this title, the foregoing does
not allow for amendment by the city of material
terms of any authorization, franchise, or lease it
issues without the consent of the grantee, franchi-
see, or lessee. (Ord. 692 § 6, 2001)
19.10.050 Location of facilities.
All facilities shall be constructed, installed, and
located in accordance with the following terms and
conditions, unless otherwise specified in an autho-
rization, franchise, or lease agreement:
A. Unless otherwise provided in an authoriza-
tion, franchise, or lease, a grantee, franchisee, or
lessee with permission to occupy a public way
must locate its cable or telecommunications facili-
ties underground.
B. Whenever any new or existing electric utili-
ties, cable facilities, or telecommunications facili-
ties are located or relocated underground within a
public way of the city, a grantee, franchisee, or les-
see that currently occupies the same public way
shall relocate its facilities underground at no ex-
pense to the city. Absent extraordinary circum-
stances or undue hardship as determined by the city
manager, such relocation shall be made concur-
rently to minimize the disruption of the rights -of -
way. No extension granted by the city manager un-
der this subsection shall exceed a period of 12
months.
C. At the option of the city, whenever new
ducts or conduit are constructed, relocated or
placed, the grantee, franchisee or lessee may be
required to provide the city with additional duct or
conduit and related structures necessary to access
the duct and conduit. The cost of such items shall
be recovered as provided in state law.
D. Any overhead facilities will be installed as
part of the backbone system only. No service leads
will be installed overhead. (Ord. 692 § 6, 2001)
19.10.060 Conduit occupancy.
In furtherance of the public purpose of reduction
of rights -of -way excavation, it is the goal of the
city to encourage both the shared occupancy of
underground conduit as well as the construction,
whenever possible, of excess conduit capacity for
occupancy of future right-of-way occupants. (Ord.
692 § 6, 2001)
19.10.070 Occupancy of city -owned conduit.
In furtherance of the same objectives of MMC
19.10.060, if the city owns or leases conduit in the
path of grantee's proposed telecommunications
facilities, and provided it is technologically feasi-
19-20
ble for grantee to occupy the conduit owned or
leased by the city, grantee shall be required to
occupy the conduit owned or leased by the city in
order to reduce the necessity to excavate the rights -
of -way. Grantee shall pay to the city a fee for such
occupancy which shall be the cost grantee would
have expended to construct its own conduit from
the outset, as certified by the grantee's engineer
and approved by the city engineer. The city and
grantee may agree to amortize the fee through
annual payments to the city over the term of the
license or franchise, including the time value of
money. (Ord. 692 § 6, 2001)
19.10.080 Compliance with One Number
Locator Service.
All grantees, franchisees, and lessees shall,
before commencing any construction in the rights -
of -way, comply with the provisions of the One
Number Locator Service. (Ord. 692 § 6, 2001)
19.10.090 Construction permits.
All grantees, franchisees, and lessees are
required to obtain construction permits for cable
and telecommunications facilities as required by
this code. However, nothing in this title shall pro-
hibit the city and a grantee, franchisee, or lessee
from agreeing to alternative plan review, permit,
and construction procedures for an authorization,
franchise, or lease granted under this title, provided
such alternative procedures provide substantially
equivalent safeguards for responsible construction
practices. (Ord. 692 § 6, 2001)
19.10.100 Interference with rights -of -way.
No grantee, franchisee, or lessee may locate or
maintain its cable or telecommunications facilities
so as to unreasonably interfere with the use of the
rights -of -way by the city, by the general public or
by other persons authorized to use or be present in
or upon the rights -of -way. All such facilities shall
be moved by the grantee, franchisee, or lessee, at
the grantee, franchisee, or lessee's cost, tempo-
rarily or permanently, as determined by the city
engineer, subject to any restrictions imposed by
state law. (Ord. 692 § 6, 2001)
19.10.110 Damage to property.
No grantee, franchisee, or lessee, nor any person
acting on a grantee, franchisee, or lessee's behalf
shall take any action or permit any action to be
done which may impair or damage any city prop-
erty, rights -of -way of the city or other property,
whether publicly or privately owned, located in, on
Medina Municipal Code
or adjacent thereto. This section shall not apply to
necessary street cuts approved by the city. (Ord.
692 § 6, 2001)
19.10.120 Notice of work.
Unless otherwise provided in an authorization,
franchise, or lease agreement, no grantee, franchi-
see, or lessee, nor any person acting on the grantee,
franchisee, or lessee's behalf, shall commence any
nonemergency work in or about the rights -of -way
or upon city property without 10 working days'
advance notice to the city. (Ord. 692 § 6, 2001)
19.10.130 Repair and emergency work.
In the event of an unexpected repair or emer-
gency, a grantee, franchisee, or lessee may com-
mence such repair and emergency response work
as required under the circumstances, provided the
grantee, franchisee, or lessee shall notify the city as
promptly as possible, before such repair or emer-
gency work commences or as soon thereafter as
possible if advance notice is not practicable. (Ord.
692 § 6, 2001)
19.10.140 Maintenance of facilities.
Each grantee, franchisee, or lessee shall main-
tain its facilities in good and safe condition and in
a manner that complies with all applicable federal,
state and local requirements. (Ord. 692 § 6, 2001)
19.10.150 Relocation or removal of facilities.
Within 30 days following written notice from
the city, a grantee, franchisee, or lessee shall pro-
vide a schedule to the city indicating the estimated
completion date for temporarily or permanently
removing, relocating, changing, or altering the
position of any cable or telecommunications facil-
ities within the rights -of -way or upon city property
whenever the city engineer shall have determined
that such removal, relocation, change, or alteration
is reasonably necessary for:
A. The construction, repair, maintenance, or
installation of any city or other public improve-
ment in or upon the rights -of -way either by the city
or a developer as required by development
approval; and
B. The operations of the city or other govern-
mental entity in or upon the rights -of -way.
C. This work shall generally be completed
within 90 days following the original notice by the
city unless a different duration is specifically
authorized by the city. (Ord. 692 § 6, 2001)
19-21
19.10.170
19.10.160 Building moving.
Whenever any person shall have obtained per-
mission from the city to use any street or public
way for the purpose of moving any building, a
grantee, franchisee, or lessee, upon 15 days' writ-
ten notice from the city, shall raise or remove, at
the expense of the person desiring to move the
building, any of the grantee, franchisee, or lessee's
facilities which may obstruct the removal of such
building; provided, that the person desiring to
move the building shall comply with all require-
ments of the city for the movement of buildings.
(Ord. 692 § 6, 2001)
19.10.170 Removal of unauthorized facilities.
Within 90 days following written notice from the
city, any telecommunications carrier or provider or
other person who owns, controls, or maintains any
unauthorized cable or telecommunications system,
facility, or related appurtenances within the rights -
of -way of the city shall, at its own expense, remove
such facilities or appurtenances from the rights -of -
way of the city. A cable or telecommunications sys-
tem or facility is unauthorized and subject to
removal in the following circumstances:
A. Upon expiration or termination of the
grantee or franchisee's authorization or franchise;
B. Upon abandonment of a facility within the
rights -of -way of the city. Any property of a grantee
or franchisee shall be deemed abandoned if left in
place 90 days after expiration or termination of an
authorization or franchise;
C. If the system or facility was constructed or
installed without the prior grant of an authorization
or franchise;
D. If the system or facility was constructed or
installed without the prior issuance of a required
construction permit; and
E. If the system or facility was constructed or
installed at a location not permitted by the authori-
zation or franchise.
Provided, however, that the city may, in its sole
discretion, allow a grantee, franchisee, or other
such persons who may own, control, or maintain
cable or telecommunications facilities within the
rights -of -way of the city to abandon such facilities
in place. No facilities of any type may be aban-
doned in place without the express written consent
of the city. Any plan for abandonment or removal
of a grantee or franchisee's facilities must be first
approved by the city manager, and all necessary
permits must be obtained prior to such work. Upon
permanent abandonment of the property of such
persons in place, the property shall become that of
19.10.180
the city, and such persons shall submit to the city
an instrument in writing, to be approved by the city
attorney, transferring to the city the ownership of
such property. The provisions of this section shall
survive the expiration, revocation, or termination
of an authorization or franchise granted under this
title. (Ord. 692 § 6, 2001)
19.10.180 Emergency removal or relocation of
facilities.
The city retains the right and privilege to cut or
move any cable or telecommunications facilities
located within the rights -of -way of the city and
upon city property, as the city may determine to be
necessary, appropriate or useful in response to any
public health or safety emergency. The city shall
not be liable to any cable operator, telecommunica-
tions carrier or provider, or any other party 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 sec-
tion. (Ord. 692 § 6, 2001)
19.10.190 Damage to facilities.
Unless directly and proximately caused by the
willful, intentional, or malicious acts by the city,
the city shall not be liable for any damage to or loss
of any cable or telecommunications facility upon
city property or within the rights -of -way of the city
as a result of or in connection with any public
works, public improvements, construction, exca-
vation, grading, filling, or work of any kind on
such city property or within the rights -of -way by or
on behalf of the city. (Ord. 692 § 6, 2001)
19.10.200 Restoration of rights -of -way, other
ways, and city property.
A. When a grantee, franchisee, lessee, or any
person acting on its behalf, does any work in or af-
fecting any rights -of -way or city property, it shall,
at its own expense, promptly remove any obstruc-
tions therefrom and restore such ways or property
to as good a condition as existed before the work
was undertaken, unless otherwise directed by the
city.
B. If weather or other conditions do not permit
the complete restoration required by this section,
the grantee, franchisee, or lessee shall temporarily
restore the affected ways or property. Such tempo-
rary restoration shall be at the grantee, franchisee,
or lessee's sole expense and the grantee, franchi-
see, or lessee shall promptly undertake and com-
plete the required permanent restoration when the
19-22
weather or other conditions no longer prevent such
permanent restoration.
C. A grantee, franchisee, lessee or other person
acting in its behalf shall adhere to traffic control
measures established by the Manual of Uniform
Traffic Control Devices, latest edition, and use suit-
able barricades, flags, flagmen, lights, flares, and
other measures as required for the safety of all
members of the general public and to prevent injury
or damage to any person, vehicle, or property by
reason of such work in or affecting such ways or
property.
D. The city engineer shall be responsible for
inspection and final approval of the condition of
the rights -of -way and city property following any
construction and restoration activities therein. Fur-
ther, the provisions of this section shall survive the
expiration, revocation, or termination of an autho-
rization, franchise, lease, or other agreement
granted pursuant to this title. (Ord. 692 § 6, 2001)
19.10.210 Facilities maps.
For all new or relocated facilities, each grantee,
franchisee, and lessee shall provide the city with a
map or maps accurately reflecting the horizontal
and vertical location and configuration of all of
their telecommunications facilities within the
rights -of -way and upon city property. Each grantee,
franchisee, and lessee shall provide the city with
updated maps annually or upon request by the city.
(Ord. 692 § 6, 2001)
19.10.220 Duty to provide information.
Within 10 days of a written request from the
city, each grantee, franchisee, or lessee shall fur-
nish the city with information sufficient to demon-
strate:
A. That the grantee, franchisee, or lessee has
complied with all requirements of this title; and
B. That all sales, utility and/or telecommunica-
tions taxes due the city in connection with the cable
or telecommunications services and facilities pro-
vided by the grantee, franchisee, or lessee have
been properly collected and paid by the grantee,
franchisee, or lessee.
All books, records, maps and other documents,
maintained by the grantee, franchisee, or lessee
with respect to its facilities within the rights -of -
way and upon city property shall be made available
for inspection by the city at reasonable times and
intervals; provided, however, that nothing in this
section shall be construed to require a grantee,
franchisee, or lessee to violate state or federal law
regarding subscriber privacy, nor shall this section
Medina Municipal Code
be construed to require a grantee, franchisee, or
lessee to disclose proprietary or confidential infor-
mation without adequate safeguards for its confi-
dential or proprietary nature. (Ord. 692 § 6, 2001)
19.10.230 Leased capacity.
A grantee, franchisee, or lessee shall have the
right, without prior city approval, to offer or pro-
vide capacity or bandwidth to another telecommu-
nications provider consistent with such permit,
franchise, or lease; provided:
A. The grantee, franchisee, or lessee shall fur-
nish the city with a copy of any such lease or agree-
ment between the grantee, franchisee, or lessee and
the provider; and
B. The telecommunications provider has com-
plied, to the extent applicable, with the require-
ments of this title. (Ord. 692 § 6, 2001)
19.10.240 Insurance.
Unless otherwise provided in an authorization,
franchise, or lease agreement, each grantee, fran-
chisee, or lessee shall, as a condition of the permit
or grant, secure and maintain the following liability
insurance policies insuring both the grantee, fran-
chisee, or lessee and the city, and its elected and
appointed officers, officials, agents, employees,
representatives, engineers, consultants, and volun-
teers as co -insureds against claims for injuries to
persons or damages to property which may arise
from or in connection with the exercise of the
rights, privileges, and authority granted to the
grantee, franchisee, or lessee:
A. Comprehensive general liability insurance,
written on an occurrence basis, with limits not less
than:
1. Five million dollars for bodily injury or
death to each person;
2. Five million dollars for property damage
resulting from any one accident; and
3. Five million dollars for all other types of
liability;
B. Automobile liability for owned, non -owned
and hired vehicles with a limit of $3,000,000 for
each person and $3,000,000 for each accident;
C. Worker's compensation within statutory
limits and employer's liability insurance with lim-
its of not less than $1,000,000;
D. Comprehensive form premises -operations,
explosions and collapse hazard, underground haz-
ard and products completed hazard with limits of
not less than $3,000,000;
E. The liability insurance policies required by
this section shall be maintained by the grantee,
19-23
19.10.240
franchisee, or lessee throughout the term of the au-
thorization, franchise, or lease, and such other pe-
riod of time during which the grantee, franchisee,
or lessee is operating without an authorization,
franchise, or lease hereunder, or is engaged in the
removal of its telecommunications facilities. The
grantee, franchisee, or lessee shall provide an insur-
ance certificate, together with an endorsement
naming the city, and its elected and appointed of-
ficers, officials, agents, employees, representa-
tives, engineers, consultants, and volunteers as ad-
ditional insureds, to the city prior to the
commencement of any work or installation of any
facilities pursuant to said authorization, franchise,
or lease. Any deductibles or self -insured retentions
must be declared to and approved by the city. Pay-
ment of deductibles and self -insured retentions
shall be the sole responsibility of the grantee, fran-
chisee, or lessee. The insurance certificate required
by this section shall contain a clause stating that
coverage shall apply separately to each insured
against whom claim is made or suit is brought, ex-
cept with respect to the limits of the insurer's lia-
bility. The grantee, franchisee, or lessee's insur-
ance shall be primary insurance as respects the city,
its officers, officials, employees, agents, consult-
ants, and volunteers. Any insurance maintained by
the city, its officers, officials, employees, consult-
ants, agents, and volunteers shall be in excess of the
grantee, franchisee, or lessee's insurance and shall
not contribute with it;
F. In addition to the coverage requirements set
forth in this section, each such insurance policy
shall contain the following endorsement:
It is hereby understood and agreed that
this policy may not be canceled nor the in-
tention not to renew be stated until 60 days
after receipt by the City, by registered mail,
of a written notice addressed to the City
Manager of such intent to cancel or not to
renew.
G. Within 30 days after receipt by the city of
said notice, and in no event later than 15 days prior
to said cancellation or intent not to renew, the
grantee, franchisee, or lessee shall obtain and fur-
nish to the city replacement insurance policies
meeting the requirements of this section;
H. For those companies who are self -insured,
they must provide documentation acceptable to the
city demonstrating that the coverage provided
meets or exceeds that described above. (Ord. 692
§ 6, 2001)
19.10.250
19.10.250 General indemnification.
lease. This covenant of indemnification
No authorization, franchise, or lease shall be
shall include, but not be limited by this ref -
deemed to be granted under this title unless it
erence, claims against the City arising as a
includes an indemnity clause substantially con-
result of the negligent acts or omissions of
forming to the following:
the grantee, franchisee, or lessee, its
agents, servants, officers, or employees in
The grantee, franchisee, or lessee hereby
barricading, instituting trench safety sys-
releases, covenants not to bring suit and
tems or providing other adequate warnings
agrees to indemnify, defend and hold
of any excavation, construction, or work in
harmless the City, its elected and appoint-
any public right-of-way or other public
ed officials, officers, employees, agents,
place in performance of work or services
representatives, engineers, and consult-
permitted under this authorization, fran-
ants from any and all claims, costs, judg-
chise, or lease.
ments, awards, or liability to any person, in-
cluding claims by the grantee, franchisee,
Inspection or acceptance by the City of
or lessee's own employees to which the
any work performed by the grantee, fran-
grantee, franchisee, or lessee might other-
chisee, or lessee at the time of completion
wise be immune under Title 51 RCW, aris-
of construction shall not be grounds for
ing from injury or death of any person or
avoidance of any of these covenants of in -
damage to property of which the negligent
demnification. Said indemnification obliga-
acts or omissions of the grantee, franchi-
tions shall extend to claims which are not
see, or lessee, its agents, servants, offic-
reduced to a suit and any claims which
ers, or employees in performing under this
may be compromised prior to the culmina-
authorization, franchise, or lease are the
tion of any litigation or the institution of any
proximate cause. The grantee, franchisee,
litigation.
or lessee further releases, covenants not to
bring suit and agrees to indemnify, defend
In the event that the grantee, franchisee,
and hold harmless the City, its elected and
or lessee refuses the tender of defense in
appointed officials, officers, employees,
any suit or any claim, said tender having
agents, representatives, engineers, and
been made pursuant to the indemnification
consultants from any and all claims, costs,
clauses contained herein, and said refusal
judgments, awards, or liability to any per-
is subsequently determined by a court
son including claims by the grantee, fran-
having jurisdiction (or such other tribunal
chisee, or lessee's own employees, includ-
that the parties shall agree to decide the
ing those claims to which the grantee,
matter), to have been a wrongful refusal on
franchisee, or lessee might otherwise have
the part of the grantee, franchisee, or les-
immunity under Title 51 RCW, arising
see, then the grantee, franchisee, or les-
against the City solely by virtue of the City's
see shall pay all of the City's costs for de -
ownership or control of the rights -of -way or
fense of the action, including all
other public properties, by virtue of the
reasonable expert witness fees and rea-
grantee, franchisee, or lessee's exercise of
sonable attorneys' fees and the reason -
the rights granted herein, or by virtue of the
able costs of the City, including reasonable
City's permitting the franchisee, or lessee's
attorneys' fees of recovering under this in -
use of the City's rights -of -way or other pub-
demnification clause.
lic property, based upon the City's inspec-
tion or lack of inspection of work performed
In the event of liability for damages arising
by the grantee, franchisee, or lessee, its
out of bodily injury to persons or damages
agents and servants, officers or employees
to property caused by or resulting from the
in connection with work authorized on the
concurrent negligence of the grantee, fran-
City's property or property over which the
chisee, or lessee, and the City, its officers,
City has control, pursuant to this authoriza-
employees and agents, the grantee, fran-
tion, franchise, or lease, or pursuant to any
chisee, or lessee's liability hereunder shall
other permit or approval issued in connec-
be only to the extent of the grantee, fran-
tion with this authorization, franchise, or
chisee, or lessee's negligence. It is further
19-24
Medina Municipal Code
specifically and expressly understood that
the indemnification provided herein consti-
tutes the grantee, franchisee, or lessee's
waiver of immunity under Title 51 RCW,
solely for the purposes of this indemnifica-
tion. This waiver has been mutually nego-
tiated by the parties.
The provisions of this Section shall survive
the expiration or termination of this autho-
rization, franchise, or lease agreement.
Notwithstanding any other provisions of
this Section, the grantee, franchisee, or
lessee assumes the risk of damage to its
facilities located in the City's rights -of -way,
easements, and property from activities
conducted by the City, its officers, agents,
employees, and contractors. The grantee,
franchisee, or lessee releases and waives
any and all claims against the City, its of-
ficers, agents, employees, or contractors
for damage to or destruction of the grantee,
franchisee, or lessee's facilities caused by
or arising out of activities conducted by the
City, its officers, agents, employees, and
contractors, in the rights -of -way, ease-
ments, or property subject to this authori-
zation, franchise, or lease, except to the
extent any such damage or destruction is
caused by or arises from the sole negli-
gence or any willful or malicious action on
the part of the City, its officers, agents, em-
ployees, or contractors. The grantee, fran-
chisee, or lessee further agrees to indem-
nify, hold harmless and defend the City
against any claims for damages, including,
but not limited to, business interruption
damages and lost profits, brought by or un-
der users of the grantee, franchisee, or les-
see's facilities as the result of any interrup-
tion of service due to damage or
destruction of the user's facilities caused
by or arising out of activities conducted by
the City, its officers, agents, employees, or
contractors, except to the extent any such
damage or destruction is caused by or aris-
es from the sole negligence or any willful or
malicious actions on the part of the City, its
officers, agents, employees, or contrac-
tors.
(Ord. 692 § 6, 2001)
19-25
19.10.270
19.10.260 Performance and construction
surety.
Before an authorization, franchise, or lease
granted pursuant to this title is effective, and as
necessary thereafter, the grantee, franchisee, or les-
see shall provide and deposit such moneys, bonds,
letters of credit, or other instruments in form and
substance acceptable to the city as may be required
by this title or by an applicable authorization, fran-
chise, or lease agreement. (Ord. 692 § 6, 2001)
19.10.270 Security fund.
Each grantee, franchisee, or lessee shall estab-
lish a permanent security fund with the city by
depositing the amount of $20,000, or such lesser
amount as deemed necessary by the city engineer
with the city manager in the form of an uncondi-
tional letter of credit, or other instrument accept-
able to the city, which fund shall be maintained at
the sole expense of the grantee, franchisee, or les-
see so long as any of the grantee, franchisee, or les-
see's cable or telecommunications facilities are
located within the rights -of -way of the city or upon
city property.
A. The fund shall serve as security for the full
and complete performance of this chapter, includ-
ing any costs, expenses, damages, or loss the city
pays or incurs, including civil penalties, because of
any failure attributable to the grantee, franchisee,
or lessee to comply with the codes, ordinances,
rules, regulations, or permits of the city.
B. Before any sums are withdrawn from the
security fund, the city shall give written notice to
the grantee, franchisee, or lessee:
1. Describing the act, default or failure to be
remedied, or the damages, costs or expenses which
the city has incurred by reason of grantee, franchi-
see, or lessee's act or default;
2. Providing a reasonable opportunity for
grantee, franchisee, or lessee to first remedy the
existing or ongoing default or failure, if applicable;
3. Providing a reasonable opportunity for
grantee, franchisee, or lessee to pay any moneys
due the city before the city withdraws the amount
thereof from the security fund, if applicable; and
4. That the grantee, franchisee, or lessee will
be given an opportunity to review the act, default
or failure described in the notice with the city man-
ager or designee.
C. Grantees, franchisees and lessees shall
replenish the security fund within 14 days after
written notice from the city that there is a defi-
ciency in the amount of the fund. (Ord 692 § 6,
2001)
19.10.280
19.10.280 Restoration bond.
Unless otherwise provided in an authorization,
franchise, or lease agreement, a performance bond
written by a corporate surety acceptable to the city
equal to at least 100 percent of the estimated cost
of removing the grantee, franchisee, or lessee's
telecommunications equipment and facilities and
restoring the rights -of -way of the city and/or city -
owned property to its preconstruction condition
shall be deposited before any construction is com-
menced. Said bond shall be required to remain in
full force until 60 days after completion of the con-
struction and/or improvements within the rights -
of -way of the city or upon city -owned property,
and shall warrant all such restoration work for a
period of two years. The purpose of this bond is to
guarantee removal of partially completed and/or
nonconforming telecommunications facilities and
to fully restore the rights -of -way of the city and
city -owned property to its preconstruction condi-
tion. (Ord. 692 § 6, 2001)
19.10.290 Coordination of construction
activities.
All grantees and franchisees are required to
cooperate with the city and with each other.
A. By February 1st of each year, grantees and
franchisees shall provide the city with a schedule
of their proposed construction activities in, around,
or that may affect the rights -of -way.
B. Each grantee and franchisee shall meet with
the city, other grantees and franchisees and users of
the rights -of -way annually or as determined by the
city to schedule and coordinate construction in the
rights -of -way.
C. All construction locations, activities and
schedules shall be coordinated, as ordered by the
city engineer, to minimize public inconvenience,
disruption or damages. (Ord. 692 § 6, 2001)
19.10.300 Assignments or transfers of grant.
Ownership or control of a cable or telecommu-
nications system, license, authorization, franchise,
or lease may not, directly or indirectly, be trans-
ferred, assigned or disposed of by sale, lease,
merger, consolidation or other act of the grantee or
franchisee, by operation of law or otherwise, with-
out the prior written consent of the city, which con-
sent shall not be unreasonably withheld or delayed,
except as expressed by ordinance and then only on
such reasonable conditions as may be prescribed
therein. This obligation shall not apply to involun-
tary mergers or acquisitions.
19-26
A. No authorization, franchise, lease, or other
grant shall be assigned or transferred in any man-
ner within 12 months after the initial grant of the
authorization or franchise, unless otherwise pro-
vided in the authorization or franchise agreement.
B. Absent extraordinary and unforeseeable cir-
cumstances, no grant, system or integral part of a
system shall be assigned or transferred before con-
struction of the telecommunications system has
been completed.
C. The grantee, franchisee, or lessee and the
proposed assignee or transferee of the grant or sys-
tem shall provide and certify the following infor-
mation to the city not less than 150 days prior to the
proposed date of transfer:
1. Complete information setting forth the
nature, terms and conditions of the proposed trans-
fer or assignment;
2. All information required of an authoriza-
tion, franchise, or lease applicant pursuant to this
title with respect to the proposed transferee or
assignee;
3. Any other information reasonably
required by the city; and
4. An application fee which shall be set by
the city council by resolution.
D. No transfer shall be approved unless the
assignee or transferee has the legal, technical,
financial, and other requisite qualifications to own,
hold and operate the cable or telecommunications
system pursuant to this title.
E. Unless otherwise provided in an authoriza-
tion, franchise, or lease agreement, the grantee,
franchisee, or lessee shall reimburse the city for all
direct and indirect costs, expenses and consultant
fees reasonably incurred by the city in considering
a request to transfer or assign an authorization,
franchise, or lease. No approval shall be deemed
approved until all such costs and expenses have
been paid.
F. Any transfer or assignment of an authoriza-
tion, franchise, lease, system, or integral part of a
system without prior written approval of the city
under this section or pursuant to an authorization,
franchise, or lease agreement shall be void and is
cause for revocation of the grant. (Ord. 692 § 6,
2001)
19.10.310 Transactions affecting control of
grant.
Any transactions which singularly or collec-
tively result in a change of 50 percent or more of the
ownership or working control of the grantee, fran-
chisee, lessee, of the ownership or working control
Medina Municipal Code 19.10.350
of a cable or telecommunications system, of the
ownership or working control of affiliated entities
having ownership or working control of the
grantee, franchisee, or lessee or of a telecommuni-
cations system, or of control of the capacity or
bandwidth of the grantee, franchisee, or lessee's ca-
ble or telecommunication system, facilities or sub-
stantial parts thereof, shall be considered an
assignment or transfer requiring city approval pur-
suant to MMC 19.10.300. Transactions between af-
filiated entities are not exempt from city approval.
A grantee, franchisee, or lessee shall promptly no-
tify the city prior to any proposed change in, or
transfer of, or acquisition by any other party of con-
trol of a grantee, franchisee, or lessee's company.
Every change, transfer, or acquisition of control of
a grantee, franchisee, or lessee's company shall
cause a review of the proposed transfer. In the event
that the city adopts a resolution or other appropriate
order denying its consent and such change, transfer
or acquisition of control has been effected, the city
may cancel the authorization, franchise, or lease.
Approval shall not be required for mortgaging pur-
poses or if said transfer is from a grantee, franchi-
see, or lessee to another person or entity
controlling, controlled by, or under common con-
trol with a grantee, franchisee, or lessee. (Ord. 692
§ 6, 2001)
19.10.320 Revocation or termination of grant.
An authorization, franchise, or lease granted by
the city to use or occupy rights -of -way of the city
or city property may be revoked for the following
reasons:
A. Construction or operation in the city or in the
rights -of -way of the city or upon city property
without a grant of authority from an authorization,
franchise, or lease;
B. Construction or operation at an unauthorized
location;
C. Unauthorized substantial transfer of control
of a grantee, franchisee or lessee;
D. Unauthorized assignment of an authoriza-
tion, franchise or lease;
E. Unauthorized sale, assignment or transfer of
a grantee, franchisee, or lessee's authorization,
franchise, lease, assets, or a substantial interest
therein;
F. Misrepresentation by or on behalf of a
grantee, franchisee, or lessee in any application or
written or oral statement upon which the city relies
in making the decision to grant, review or amend
any authorization, franchise, or lease pursuant to
this title;
19-27
G. Abandonment of cable or telecommunica-
tions facilities in the rights -of -way or upon city
property;
H. Failure to relocate or remove facilities as
required in this title;
I. Failure to pay taxes, compensation, fees or
costs when and as due the city;
J. Insolvency or bankruptcy of the grantee,
franchisee, or lessee;
K. Violation of any material provision of this
title; and
L. Violation of the material terms of an authori-
zation, franchise, or lease agreement. (Ord. 692
§ 6, 2001)
19.10.330 Notice and duty to cure.
In the event that the city believes that grounds
exist for revocation of an authorization, franchise,
or lease, the grantee, franchisee, or lessee shall be
given written notice of the apparent violation or
noncompliance, providing a short and concise
statement of the nature and general facts of the vio-
lation or noncompliance, and providing the
grantee, franchisee, or lessee a reasonable period of
time not exceeding 30 days to furnish evidence:
A. That corrective action has been, or is being
actively and expeditiously pursued, to remedy the
violation or noncompliance;
B. That rebuts the alleged violation or noncom-
pliance; and
C. That it would be in the public interest to
impose some penalty or sanction less than revoca-
tion. (Ord. 692 § 6, 2001)
19.10.340 Hearing.
In the event that a grantee, franchisee, or lessee
fails to provide evidence reasonably satisfactory to
the city as provided in MMC 19.10.330, the city
shall refer the apparent violation or noncompliance
to the city council. The city council shall provide
the grantee, franchisee, or lessee with notice and a
reasonable opportunity to be heard concerning the
matter. (Ord. 692 § 6, 2001)
19.10.350 Standards for revocation or lesser
sanctions.
If the city council determines that a grantee, fran-
chisee, or lessee willfully violated or failed to com-
ply with any of the provisions of this title or an
authorization, franchise, or lease granted under this
title, or through willful misconduct or gross negli-
gence failed to heed or comply with any notice
given the grantee, franchisee, or lessee by the city
under the provisions of this title, then the grantee,
19.10.360
franchisee, or lessee shall, at the election of the city
council, forfeit all rights conferred hereunder and
the authorization, franchise, or lease may be re-
voked or annulled by the city council. The city
council may elect, in lieu of the above and without
any prejudice to any of its other legal rights and
remedies, to pursue other remedies, including ob-
taining an order from the superior court having ju-
risdiction compelling the grantee, franchisee, or
lessee to comply with the provisions of this title and
any authorization, franchise, or lease granted here-
under, and to recover damages and costs incurred
by the city by reason of the grantee, franchisee, or
lessee's failure to comply. The city council shall
utilize the following factors in analyzing the nature,
circumstances, extent, and gravity of the violation
and in making its determination under this section:
A. Whether the misconduct was egregious;
B. Whether substantial harm resulted;
C. Whether the violation was intentional;
D. Whether there is a history of prior violations
of the same or other requirements;
E. Whether there is a history of overall compli-
ance; and
F. Whether the violation was voluntarily dis-
closed, admitted or cured. (Ord. 692 § 6, 2001)
19.10.360 Incorporation by reference.
The provisions of this title shall be incorporated
by reference in any authorization, franchise, or
lease approved hereunder. Failure to so incorporate
by reference shall not affect the binding effect of
the provisions of this title. However, in the event of
any conflict between the proposal, this title, and the
authorization, franchise, or lease, the authoriza-
tion, franchise, or lease shall be the prevailing doc-
ument. (Ord. 692 § 6, 2001)
19.10.370 Notice of entry on private property.
If directed by the city, at least 24 hours prior to
entering private property or streets or public ease-
ments adjacent to or on such private property toper -
form new construction or reconstruction, a notice
indicating the nature and location of the work to be
performed shall be physically posted, at no expense
to the city, upon the affected property by the
grantee or franchisee. A door hanger may be used
to comply with the notice and posting requirements
of this section. A grantee or 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 exist-
ing cable paths), consistent with sound engineering
19-28
practices; provided, however, that nothing in this
chapter shall permit a grantee or franchisee to un-
lawfully enter or construct improvements upon the
property or premises of another. Underground in-
stallations on private property shall be located such
as to not kill or damage significant trees as defined
in this code. (Ord. 692 § 6, 2001)
19.10.380 Safety requirements.
A grantee, franchisee, or lessee, in accordance
with applicable federal, state, and local safety
requirements shall, at all times, employ ordinary
care and shall install and maintain and use com-
monly accepted methods and devices for prevent-
ing failures and accidents which are likely to cause
damage, injury, or nuisance to the public and/or
workers. All structures and all lines, equipment and
connections in, over, under, and upon the streets,
sidewalks, alleys, and rights -of -way or places of a
permit, franchise, or lease area, wherever situated
or located, shall at all times be kept and maintained
in a safe, suitable condition, and in good order and
repair. The city reserves the general right to see
that the system of a grantee, franchisee, or lessee is
constructed and maintained in a safe condition. If a
violation of the National Electrical Safety Code or
other applicable regulation is found to exist by the
city, the city will, after discussions with a grantee,
franchisee, or lessee, establish a reasonable time
for a grantee, franchisee, or lessee to make neces-
sary repairs. If the repairs are not made within the
established time frame, the city may make the
repairs itself or have them made and collect all rea-
sonable costs thereof from a grantee, franchisee, or
lessee. (Ord. 692 § 6, 2001)
19.10.390 Most favored community.
In the event that a grantee, franchisee, or lessee
enters into any agreement, franchise or other
understanding with any other city, town or county
in the state of Washington which provides terms or
conditions more favorable to the city, town or
county than those provided in its agreement with
the city, such as, but not limited to, free or reduced
fee hookups, access or service, the city shall be
entitled to request at the city's option, and the
grantee, franchisee, or lessee in question shall be
required to execute, an amendment to its agree-
ment which incorporates the more favorable terms
and conditions. (Ord. 692 § 6, 2001)
Medina Municipal Code
19.10.400 Relationship with WUTC
proceedings.
If grantee shall file, pursuant to Chapter 80.28
RCW, with the Washington Utilities and Transpor-
tation Commission (or such other regulatory
agency having jurisdiction) any tariff affecting the
city's rights under its grant or franchise or relating
to charges for facility relocations, the provider
shall give the city manager written notice thereof
within five days of the date of such filing. If, during
the term of this grant or franchise, grantee shall file
and the Washington Utilities and Transportation
Commission (or such other regulatory agency hav-
ing jurisdiction) shall permit to become effective, a
schedule or tariff which conflicts with or is incon-
sistent with any portion of this grant or franchise,
the city may, within 30 days of the effective date of
such schedule or tariff, notify grantee in writing
that the franchise is terminated, effective on receipt
of the notice. Thereafter, the city and grantee shall
conduct negotiations concerning the terms and
conditions of a new franchise, at reasonable times,
in a reasonable manner, in good faith and with due
regard to all pertinent facts and circumstances.
(Ord. 692 § 6, 2001)
19-29
19.12.030
Chapter 19.12
CONSTRUCTION STANDARDS
Sections:
19.12.010
General construction standards.
19.12.020
Construction codes.
19.12.030
Construction permits.
19.12.040
Applications.
19.12.050
Engineer's certification.
19.12.060
Traffic control plan.
19.12.070
Issuance of permit.
19.12.080
Compliance with permit.
19.12.090
Display of permit.
19.12.100
Survey of underground facilities.
19.12.110
Noncomplying work.
19.12.120
Completion of construction.
19.12.130
As -built drawings.
19.12.140
Restoration after construction.
19.12.150
Landscape restoration.
19.12.160
Construction surety.
19.12.170
Exceptions.
19.12.180
Responsibilities of the owner.
19.12.190
Use permit.
19.12.010 General construction standards.
Notwithstanding any other provision of this
code, no person shall commence or continue with
the construction, installation, maintenance, or
repair of cable or telecommunications facilities
within rights -of -way of the city or upon city -owned
property, except as provided in this chapter. At the
discretion of the city, directional drilling or boring
may be required as opposed to cuts or trenches.
(Ord. 692 § 7, 2001)
19.12.020 Construction codes.
Cable and telecommunications facilities shall be
constructed, installed, operated, and maintained in
accordance with all applicable federal, state and
local codes, rules and regulations, including the
city of Medina right-of-way construction require-
ments, latest edition. (Ord. 692 § 7, 2001)
19.12.030 Construction permits.
No person shall construct, install, repair, or
maintain any cable or telecommunications facili-
ties within the rights -of -way of the city or upon city
property without first obtaining the appropriate
construction permit therefor; provided, however:
A. No permit shall be issued for the construc-
tion or installation of cable or telecommunications
facilities without payment of any applicable con-
struction permit fee; and
19.12.040
B. No permit shall be issued for the construction
or installation of telecommunications or other
equipment on city property unless the telecommu-
nications carrier or provider has applied for and re-
ceived a facilities lease from the city. The city
council reserves unto itself the sole discretion to
lease city property for telecommunications and
other facilities, and no vested or other rights shall
be created by this section or any provision of this
title applicable to such facilities leases. (Ord. 692
§ 7, 2001)
19.12.040 Applications.
Applications for permits to construct cable or
telecommunications facilities shall be submitted to
the city building permit coordinator and shall be
accompanied by drawings, plans and specifications
in sufficient detail to demonstrate:
A. That the facilities will be constructed in
accordance with the Washington State Department
of Transportation Standard Specifications for
Road, Bridge and Municipal Construction, latest
edition, and all applicable codes, rules and regula-
tions;
B. The location and route of all facilities to be
installed on existing utility poles;
C. The location, route, and configuration of all
facilities to be located under the surface of the
ground, including the line and grade proposed for
the burial at all points along the route which are
within the rights -of -way;
D. The location of all existing underground
utilities, conduits, ducts, pipes, mains, and installa-
tions which are within the rights -of -way along the
underground route proposed by the applicant;
E. The location of all other facilities to be con-
structed within the city, but not within the rights -
of -way;
F. The construction methods to be employed for
protection of existing structures, fixtures, streets
and facilities within or adjacent to the rights -of -
way;
G. The location, dimension and types of all
trees within or adjacent to the rights -of -way along
the route proposed by the applicant, together with
a landscape plan for protecting, trimming, remov-
ing, replacing and restoring any trees or areas to be
disturbed during construction;
H. Proposed construction schedule and work
hours; and
I. The location of all survey monuments which
may be displaced or disturbed by the proposed con-
struction. (Ord. 692 § 7, 2001)
19-30
19.12.050 Engineer's certification.
Where required by the city engineer, permit ap-
plications shall be accompanied by drawings, plans
and specifications bearing the certification of a reg-
istered professional engineer. (Ord. 692 § 7, 2001)
19.12.060 Traffic control plan.
All permit applications which involve work on,
in, under, across, or along any rights -of -way shall
be accompanied by a traffic control plan demon-
strating the protective measures and devices that
will be employed, consistent with the Manual of
Uniform Traffic Control Devices, latest edition, to
prevent injury or damage to persons or property
and to minimize disruptions to efficient pedestrian
and vehicular traffic. (Ord. 692 § 7, 2001)
19.12.070 Issuance of permit.
After submission of all plans and documents
required of the applicant and payment of the permit
fees required by this title, the city engineer, if sat-
isfied that the applications, plans and documents
comply with all requirements of this title, shall
issue a permit authorizing construction of the facil-
ities, subject to such further conditions, restrictions
or regulations affecting the time, place and manner
of performing the work as he or she may deem nec-
essary or appropriate. (Ord. 692 § 7, 2001)
19.12.080 Compliance with permit.
All construction practices and activities shall be
in accordance with the permit and approved final
plans and specifications for the facilities. The city
engineer and his or her representatives shall be pro-
vided access to the work and such further informa-
tion as he or she may require to ensure compliance
with such requirements. (Ord. 692 § 7, 2001)
19.12.090 Display of permit.
The permittee shall maintain a copy of the con-
struction permit and approved plans at the con-
struction site, which shall be displayed and made
available for inspection by the city engineer or his
or her representatives at all times when construc-
tion work is occurring. (Ord. 692 § 7, 2001)
19.12.100 Survey of underground facilities.
If the construction permit specifies the location
of facilities by depth, line, grade, proximity to
other facilities or other standard, the permittee
shall cause the location of such facilities to be ver-
ified by a state registered land surveyor. The per-
mittee may be required to relocate any facilities
Medina Municipal Code
which are not located in compliance with permit
requirements. (Ord. 692 § 7, 2001)
19.12.110 Noncomplying work.
Upon order of the city engineer, all work which
does not comply with the permit, the approved
plans and specifications for the work, or the
requirements of this chapter, shall be remedied or
removed. (Ord. 692 § 7, 2001)
19.12.120 Completion of construction.
The permittee shall promptly complete all con-
struction activities so as to minimize disruption of
the public and other ways and other public and pri-
vate property. All construction work authorized by
a permit within public and other ways, including
restoration, must be completed within 120 days of
the date of issuance. (Ord. 692 § 7, 2001)
19.12.130 As -built drawings.
Within 60 days after completion of construction,
the permittee shall furnish the city with two com-
plete sets of plans, drawn to scale and certified to
the city as accurately depicting the horizontal and
vertical location and configuration of all cable or
telecommunications facilities constructed pursuant
to the permit. The city engineer shall have the dis-
cretion to prescribe the format and/or media of said
as -built drawings, consistent with city codes and
policies. (Ord. 692 § 7, 2001)
19.12.140 Restoration after construction.
Upon completion of any construction, mainte-
nance, or repair work, the permittee shall promptly
repair any and all public and private property im-
provements, fixtures, structures, and facilities in
the public or other ways or otherwise damaged dur-
ing the course of construction, restoring the same as
nearly as practicable to its condition before the start
of construction. All survey monuments disturbed or
displaced shall be referenced and replaced as re-
quired by Chapter 332-120 WAC and city policy.
The referencing and replacement of survey monu-
ments shall be performed by a licensed land sur-
veyor. The city engineer shall have final approval
of the completeness of all restoration work and all
permittees shall warrant said restoration work for a
period of one year. (Ord. 692 § 7, 2001)
19.12.150 Landscape restoration.
A. All trees, landscaping and grounds removed,
damaged or disturbed as a result of the construc-
tion, installation, maintenance, repair, or replace-
ment of cable or telecommunications facilities,
19-31
19.12.190
whether such work is done pursuant to a franchise,
permit, or lease shall be replaced or restored as
nearly as may be practicable, to the condition exist-
ing prior to performance of work.
B. All landscape restoration work within the
rights -of -way shall be done in accordance with
landscape plans approved by the city landscape
architect. (Ord. 692 § 7, 2001)
19.12.160 Construction surety.
Prior to issuance of a construction permit, the
permittee shall provide a performance bond, as
provided in MMC 19.10.280. (Ord. 692 § 7, 2001)
19.12.170 Exceptions.
Unless otherwise provided in an authorization,
franchise, or lease agreement, all cable operators
and telecommunications carriers are subject to the
requirements of this title. (Ord. 692 § 7, 2001)
19.12.180 Responsibilities of the owner.
The owner of the facilities to be constructed and,
if different, the grantee, franchisee, or lessee, are
responsible for performance of and compliance
with all provisions of this title. (Ord. 692 § 7, 2001)
19.12.190 Use permit.
A construction permit shall be considered the
equivalent of a use permit for purposes of state law
(ESSB 6676, Law of2000). (Ord. 692 § 7, 2001)
EXHIBIT C
Form of Transfer Agreement
THIS TRANSFER AGREEMENT ("Agreement") is made this
20, by and between:
1. PARTIES.
1.1
1.2
1.3
RECITALS
day of
City of Medina, a legal subdivision of the state of Washington ("City").
WHEREAS the City has issued
Franchisee, which was authorized on the
pursuant to Ordinance No. ; and
("Franchisee").
("Transferee")
a single Franchise (the "Franchise") to
day of , 20 ,
WHEREAS Franchisee has reached an agreement with Transferee on a (describe
transaction, example: conveyance of benefited property)
with
Transferee, to (example: acquire from Franchisee its facilities and equipment located in the Right -of -
Way)
and
WHEREAS Franchisee and Transferee have requested that the City approve a
transfer of the Franchise from Franchisee to Transferee; and
WHEREAS, as a result of the transfer of the Franchise, Transferee shall assume
all rights, duties, and obligations that Franchisee has under the Franchise, shall be
responsible for full compliance with the Franchise, and shall meet or exceed all
applicable and lawful federal, state, and local requirements; and
WHEREAS, relying on the representations made by the Transferee and
Franchisee, the City, on the _ day of , 2C_, has, pursuant to Resolution
No. and the Franchise, approved the transfer upon the terms and conditions
as stated herein;
NOW, THEREFORE, in consideration of the City's approval of the transfer,
subject to the terms and conditions of this Agreement, THE PARTIES DO HEREBY
AGREE as follows:
44.
2. TRANSFER. Transfer of the Franchise shall be effective upon the following
conditions precedent:
2.1 Receipt by the City of the fully executed acceptance of franchise and
performance guarantee attached hereto as Exhibit C-1, together with all required
certificates of insurance, a security fund, and a performance bond;
2.2 Payment to the City of the Direct Costs of processing the Transfer; and
2.3 The date of closing of the sale/conveyance of the property benefited by
this Franchise and/or the Telecommunications Facilities located in the Franchise Area, or
the date mutually agreed to by the City, Franchisee and Transferee as follows:
, whichever occurs first.
3. ACCEPTANCE OF FRANCHISE OBLIGATIONS.
3.1 Franchisee agrees that neither the Transfer nor the City's approval of this
Agreement shall in any respect relieve Franchisee, or any of its successors in interest, of
any obligation or liability arising from acts or omissions occurring prior to the Transfer of
the Franchise, whether known or unknown, or the consequences thereof.
3.2 The Transfer is not intended and shall not be construed to authorize
Franchisee to take any position or exercise any right that could not have been exercised
prior to the Transfer.
3.3 Notwithstanding anything to the contrary herein, Transferee shall not be
responsible for any of Franchisee's financial liabilities and obligations under the
Franchise or pursuant to the City code, rules, and regulations that accrued before the
Transfer of the Franchise.
3.4 The City waives none of its rights with respect to Franchisee's or
Transferee's compliance with the terms, conditions, requirements, and obligations as set
forth in the Franchise. The City's approval of this Agreement shall in no way be deemed
a representation by the City that Franchisee is in compliance with all of Franchisee's
obligations under the Franchise.
3.5 Franchisee and Transferee acknowledge and agree that the City's approval
and acceptance of this Agreement and the resulting Transfer is made in reliance upon the
representations, documents, and information provided by Franchisee and Transferee in
connection with the request for transfer.
4. MISCELLANEOUS PROVISIONS.
4.1 Conditions Precedent. The Agreement shall be effective and binding upon
the signatories once it has been signed by all signatories; provided that, within 30 days of
execution of the Agreement by all of the signatories, Transferee shall provide the City
45.
with the following: (1) all Direct Costs required for this Transfer; (2) its acceptance of
the Franchise in substantially the form of the document attached as Exhibit C-1; (3) its
insurance certificate in conformance with the requirements of the Franchise; and (4) a
performance bond or cash deposit in conformance with the requirements of the Franchise.
4.2 Entire Agreement. The Agreement constitutes the entire agreement of the
Parties with respect to the matters addressed herein. No statements, promises, or
inducements inconsistent with the Agreement made by any Party shall be valid or binding
unless in writing and executed by all Parties.
4.3 Binding Acceptance. The Agreement shall bind and benefit the Parties
hereto and their respective heirs, beneficiaries, administrators, executors, receivers,
trustees, successors, and assigns, and the promises and obligations herein shall survive
the expiration date hereof. Any purported transfer of the Agreement is void without the
express written consent of the signatories.
4.4 Severability. In the event that the Agreement shall, to any extent, be held
to be invalid, preempted, or unenforceable, the remainder hereof shall be valid in all other
respects and continue to be effective.
4.5 Defined Terms. Terms not defined in this Agreement shall have the same
meaning as given in the Franchise.
4.6 Governing Law. The Agreement shall be governed in all respects by the
laws of the state of Washington.
IN WITNESS WHEREOF the Parties hereto have executed this Agreement as of the
day and year first written above.
CITY FRANCHISEE
By: Donna Hansen, City Manager By:
Title:
TRANSFEREE
By: _
Title:
46.
TRANSFER EXHIBIT C-1
Acceptance of Franchise and Performance Guarantee
Franchise issued pursuant to Ordinance No. and accepted
20 ; Transfer authorized pursuant to Resolution No. , effective
20
I, , am the
and (am the authorized representative to) accept the above -referenced Franchise on
behalf of . I certify that this Franchise and all
terms and conditions thereof are accepted by , without
qualification or reservation and that unconditionally
guarantee(s) performance of all such terms and conditions.
DATED this day of , 20_
Tax Payer ID#
STATE OF
ss.
CITY OF
By
Its
I certify that I know or have satisfactory evidence that
is the person who appeared before me, and said person
acknowledged that said person signed this instrument, on oath stated that said person was
authorized to execute the instrument and acknowledged it (as the
of , a
corporation,) to be the free and voluntary act of such corporation/individual for the uses
and purposes mentioned in the instrument.
Dated this day of
(Signature of Notary)
47.
Print Name
Notary public in and for the state of
residing at
My appointment expires
EXHIBIT D
Acceptance of Franchise
Franchise issued pursuant to Ordinance No.
1, , am the
and (am the authorized representative to) accept the above -referenced Franchise on
behalf of . I certify that this Franchise and all
terms and conditions thereof are accepted by , without
qualification or reservation and that unconditionally
guarantee(s) performance of all such terms and conditions.
DATED this day of , 20
Tax Payer ID#
STATE OF
ss.
CITY OF
By
Its
I certify that I know or have satisfactory evidence that
is the person who appeared before me, and said person
acknowledged that said person signed this instrument, on oath stated that said person was
authorized to execute the instrument and acknowledged it (as the
of , a
corporation,) to be the free and voluntary act of such corporation/individual for the uses
and purposes mentioned in the instrument.
Dated this day of
(Signature of Notary)
Print Name
Notary public in and for the state of
, residing at
My appointment expires
We
EXHIBIT E
Environmental Indemnity
1. Duty to Indemnify/Release/Defend. Franchisee assumes the risk that
Hazardous Substances or other adverse matters may affect the Franchise Area that were
not revealed by Franchisee inspection, and indemnifies, holds harmless, and hereby
waives, releases and discharges forever the City and City's officers, employees and
agents (collectively, "Indemnitees") from any and all present or future claims or
demands, and any and all damages, losses, injuries, liabilities, causes of actions
(including, without limitation, causes of action in tort) costs and expenses (including,
without limitation, fines, penalties, judgments, and attorneys' fees) of any and every kind
or character, known or unknown, which Franchisee might have asserted or alleged
against Indemnitees arising from or in any way related to the Condition of the Franchise
Area or alleged presence, use, storage, generation, manufacture, transport, release, leak,
spill, disposal or other handling of any Hazardous Substances in, on or under the
Franchise Area (the "Franchisee Losses"). Franchisee Losses shall include, without
limitation, (a) the cost of any investigation, removal, or Remedial Action (defined below)
that is required by any Environmental Law, that is required by judicial order or by order
of or agreement with any governmental authority, or that is necessary or otherwise is
reasonable under the circumstances, (b) losses for injury or death of any person caused by
the Condition of the Franchise Area, and (c) losses arising under any Environmental Law
enacted after the date hereof. Except as may be limited below, Franchisee Losses
specifically include losses sustained by Franchisee as a result of any obligation of
Franchisee to remove, close, Remediate, reimburse or take other actions required by any
governmental agency concerning any Hazardous Substances on the Franchise Area.
Notwithstanding the above, Franchisee Losses waived, released, and discharged
hereunder by Franchisee shall not include losses as a result of releases or contamination
caused by the acts of the City after the Effective Date. The rights, duties and obligations
of the City and Franchisee pursuant Sections 2 and 3 herein apply to the duty to
indemnify and defend as provided in this Section 1.
2. Discoverer Within Franchise Area. In the event that the Work of
Franchisee in, on, and upon the Franchise Area results in the discovery of the presence of
Hazardous Substances ("Discovered Matters") in, on or upon the areas excavated or
otherwise opened or exposed by Franchisee within the Franchise Area (the "Excavated
Areas"), Franchisee shall immediately notify the City and take whatever other reporting
action is required by applicable Environmental Law as it relates to the Discovered
Matters in the Excavated Areas. In the event that, as a result of such discovery, an
agency with jurisdiction to address Hazardous Substances in, on or upon the Franchise
Area ("Environmental Authority") orders, obtains a judgment or court order requiring, or
otherwise exercises its authority to require Remedial Actions to be taken by the City or
Franchisee, or Franchisee decides to undertake Remedial Actions independently or enter
into a consent order or consent decree with an Environmental Authority, then in such
event, Franchisee agrees to indemnify, defend, and hold the City harmless from and
against the cost of all Remedial Actions which are required by the Environmental
50.
Authority within the Excavated Areas under the applicable Environmental Laws with
respect to the Discovered Matters; provided, however, the City, subject to the provisions
of Section 3 below, shall be solely responsible for all necessary Remedial Actions which
are required by the Environmental Authority within other portions of the Franchise Area
(outside the Excavated Areas) under the applicable Environmental Laws with respect to
the Discovered Matters.
3 Release by Franchisee. In the event Franchisee's Work, in, on or upon the
Franchise Area within the Excavated Areas results in a release (as determined under
applicable Environmental Laws) of Hazardous Substances which were, before such
activities, confined to areas within the Excavated Areas, but which after such activities by
Franchisee are released beyond the Excavated Areas, and if the release is caused in whole
or in part by Franchisee, then Franchisee shall indemnify, defend and hold the City
harmless from the costs of all necessary Remedial Actions which are required under the
applicable Environmental Laws, to the extent of Franchisee's share of the liability for the
release. Franchisee's liability for the release may, inter alia, be determined by
Franchisee's admission of the same, or as determined by a final non -appealable decision
by a court of competent jurisdiction, or as provided in a final non -appealable
administrative order issued by the Environmental Authority, or by a consent decree
entered by Franchisee and the Environmental Authority.
51.
EXHIBIT F
Insurance Requirements
1 General Requirement. Commencing upon issuance of the first Site Specific
Permit under this Franchise, Franchisee must have adequate insurance at all times while
Franchisee owns or operates Telecommunications Facilities in the Right -of -Way, to protect
the City against claims for death or injuries to Persons or damages to property or equipment
which in any way relate to, arise from or are connected with this Franchise or Site Specific
Permit, or involve the Telecommunications Facilities, Franchisee, its agents, representatives,
contractors, subcontractors and their employees.
2 Minimum Insurance Limits. Franchisee shall maintain the following
minimum insurance coverages and limits:
2.1 Commercial General Liabilitv: insurance to cover liability, bodily
injury, and property damage. The Commercial General Liability insurance shall be
written on an occurrence basis, with an aggregate limit location endorsement for the
Franchise Area, and shall provide coverage for any and all costs, including defense costs,
and losses and damages resulting from personal injury, bodily injury and death, property
damage, products liability and completed operations. Such insurance shall include broad
form and blanket contractual coverage, including coverage for the Franchise as now or
hereafter amended and specific coverage for the indemnity provisions set forth herein.
Coverage must be written with the following limits of liability:
$5,000,000 for bodily injury or death to each person;
$5,000,000 for property damage resulting form any one accident;
$5,000,000 for all other types of liability; and
$3,000,000 for premises -operations, explosions and collapse hazard,
underground hazard and products completed hazard;
2.2 Automobile Liabilitv: shall include owned, hired, and non -owned
vehicles on an occurrence basis with coverage of at least $3,000,000 per occurrence;
2.3 Workers Compensation Insurance: shall be maintained during the
life of this Franchise to comply with statutory limits for all employees, and in the case
any work is sublet, Franchisee shall require its contractors and subcontractors similarly to
provide workers' compensation insurance for all the employees. Franchisee shall also
maintain, during the life of this policy, employer's liability insurance with limits of
$1,000,000 each occurrence;
2.4 Excess or Umbrella Liabilitv: $5,000,000 each occurrence and
$5,000,000 policy limit; and
2.5 Pollution Legal Liability Insurance: $5,000,000 per occurrence and
$10,000,000 in the aggregate (at the option of the City).
52.
Endorsements.
3.1 Franchisee's insurance coverage shall be primary insurance with
respect to the City. Any insurance, self-insurance, or insurance pool coverage maintained
by the City shall be in excess of Franchisee's insurance and shall not contribute to it.
3.2 Franchisee, through policy endorsement, shall waive its rights of
subrogation against the City for all claims and suits.
3.3 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.
3.4 Franchisee's insurance shall name the City as an additional insured,
and other Persons to whom the City is obligated under separate agreement or by Law, to
protect or insure as an additional insured, from and against Liabilities arising out of Work
performed in the Right -of -Way under a grant of authority of the City.
3.5 Franchisee's insurance shall include a requirement that the "railroad
exclusion" be deleted or may include, in the alternative, ISO endorsement CG 24 17.
3.6 Franchisee shall request from its insurance provider that the
insurance coverages and limits provided herein shall not be canceled or reduced, nor the
intention not to renew be stated so as to be out of compliance with the requirements
herein without sixty (60) days written notice, certified mail, return receipt requested, first
being given to the City. If the insurance is canceled or reduced in coverage, Franchisee
shall provide a replacement policy. ATC shall request from its insurance provider that
each policy contain the following endorsement:
It is hereby understood and agreed that this policy may not be canceled
nor the intention not to renew be stated until 60 days after receipt by the
City, by registered mail, of a written notice addressed to the City Manager
of such intent to cancel or not to renew.
4. Acceptability of Insurers. Each insurance policy obtained pursuant to this
Franchise shall be issued by financially sound insurers who may lawfully do business in
the State of Washington with a financial strength rating at all times during coverage of no
less than an "A" and in a financial size category of no less than "X", in the latest edition
of `Best's Rating Guide" published by A.M. Best Company. In the event that at any time
during coverage, the insurer does not meet the foregoing standards, Franchisee shall give
prompt notice to the City and shall seek coverage from an insurer that meets the
foregoing standards. The City reserves the right to change the rating or the rating guide
depending upon the changed risks or availability of other suitable and reliable rating
guides.
5. Verification of Coverage. Franchisee shall furnish the City with signed
certificates of insurance and a copy of the amendatory endorsements, including, but not
53.
necessarily limited to, the additional insured endorsement, evidencing the Automobile
Liability, Commercial General Liability and Umbrella or Excess insurance of Franchisee
upon acceptance of this Franchise. The certificate for each insurance policy is to be signed
by a Person authorized by that insurer to bind coverage on its behalf. The certificate for
each insurance policy must be on standard forms or on such forms as are consistent with
standard industry practices. Franchisee hereby warrants that its insurance policies satisfy the
requirements of this Franchise.
6. Deductible. Commercial General Liability Insurance policies and
coverage required herein may include a reasonable deductible not to exceed 10% of the
minimum per occurrence commercial general liablity policy limits; provided, however,
that if Franchisee elects to include any deductible, Franchisee shall itself directly cover,
in lieu of insurance, any and all City Liabilities that would otherwise in accordance with
the provisions of this Franchise be covered by Franchisee insurance if Franchisee elected
not to include a deductible. Such direct coverage by Franchisee shall be in an amount
equal to the amount of Franchisee's actual deductible.
7. No Limitation. Franchisee's maintenance of insurance policies required by
this Franchise shall not be construed to excuse unfaithful performance by Franchisee or limit
the liability of Franchisee to the coverage provided in the insurance policies, or otherwise
limit the City's recourse to any other remedy available at law or in equity.
8. Modifications of Coverages and Limits. The City reserves the right,
during the term of the Franchise, to require any other insurance coverage or adjust the
policy limits as it deems reasonably necessary utilizing sound risk management practices
and principals based upon the loss exposures; provided that the City may not require
other insurance limits or change the policy limits for Franchisee unless the City
contemporaneously makes comparable changes to the insurance requirements for other
franchisees with comparable franchises, services and installations in the Right -of -Way.
Prior to imposing such additional coverage or adjusting existing required coverages or
limits, the City shall provide reasonable notice to Franchisee and an opportunity to
provide comments, and the City shall review and consider such comments that are timely
made.
9. Public Franchisees. Franchisee Commercial General Liability,
Automobile Liablity and Umbrella Coverage Insurance policies and coverage required
herein for Public Franchisees may include a reasonable self -insured retention; provided,
however, that as to any self -insured retention, Franchisee shall itself directly cover, in
lieu of insurance, any and all City liabilities that would otherwise in accordance with the
provisions of this Franchise be covered by Franchisee insurance if Franchisee elected not
to include a self -insured retention. Such direct coverage by Franchisee shall be in an
amount equal to the amount of Franchisee's actual self -insured retention. "Public
Franchisee" for purposes of this Section 9 shall mean and include, any Franchisee
organized as a political subdivision of the state of Washington, but shall not mean or
include agents, contractors and subcontractors of Franchisee that are not also organized
54.
as political subdivisions. Franchisee shall be required to provide verification of self-
insurance retention coverage in a form and content acceptable to the City.
55.
EXHIBIT G
Financial Security
Franchisee shall comply with the financial security requirements set forth in Exhibit B.
56.
EXHIBIT H
Form of Parental Guarantee
This Guaranty is made on the date set forth below by [NAME OF
GUARANTOR] (hereinafter referred to as the "Guarantor").
RECITALS:
WHEREAS, * * (Guarantor) and the City of Medina (the "City"), have entered
into a Franchise Agreement (the "Franchise") dated , 20_; and
WHEREAS, the Franchise requires Guarantor to guaranty the observance,
fulfillment and performance of Franchisee's obligations under the Franchise;
NOW, THEREFORE, in partial consideration of the City's grant of the Franchise
Agreement to Franchisee, and in addition to other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Guarantor hereby agrees to
the following:
TERMS:
1. Guarantor guarantees to the City the observance, fulfillment and performance
by Franchisee of each and every obligation of Franchisee in the Franchise, except to the
extent that any such provision or obligation is unenforceable under applicable law (the
"Guaranty").
2. The Guaranty shall continue in full force and effect until the City releases the
Guarantor from its obligations under this Guarantee, Franchisee Transfers all of its
Telecommunications Facilities to a third person pursuant to Section 2.7 of the Franchise;
provided that such third person is not an Affiliate of Guarantor, Franchisee abandons its
Telecommunications Facilities in place pursuant to Section 7.14 of the Franchise,
Franchisee removes all of its Telecommunications Facilities from the Right -of -Way, or
otherwise by operation of Law or contract. In no event shall the Guaranty extend beyond
the Term of the Franchise Agreement.
3. This Guaranty shall be governed by and construed in accordance with the
Laws of the State of Washington.
4. If any provision of this Guaranty is determined to be illegal, invalid or
unconstitutional by any court of competent jurisdiction or by any state or federal
regulatory authority having jurisdiction, then such determination shall have no effect on
the validity of any other provision of this Guaranty unless to do so would be inequitable
or would result in a material change in the rights and/or obligations of any Party
hereunder, in which case the Parties shall reform this Guaranty using the process set forth
in Section 3.5 of the Franchise.
57.
IN WITNESS WHEREOF, the Guarantor has caused the Guaranty to be executed
by its duly authorized representative on the date set forth below.
BY:
NAME:
TITLE:
DATE:
STATE OF
CITY OF
ss.
I certify that I know or have satisfactory evidence that
is the person who appeared before me, and said person
acknowledged that said person signed this instrument, on oath stated that said person was
authorized to execute the instrument and acknowledged it (as the
of a
corporation,) to be the free and voluntary act of such corporation/individual for the uses
and purposes mentioned in the instrument.
Dated this day of
(Signature of Notary)
Print Name
Notary public in and for the state of
residing at
My appointment expires
93
EXHIBIT I
Contractor/Subcontractor Insurance Requirements
1 General Requirement. Prior to commencing and during the period of Work
performed within the Franchise Area, Franchisee contractors and subcontractors (hereafter
the "Contractors") must have in place adequate insurance to protect the City against claims
for death or injuries to Persons or damages to property or equipment which in any way
relate to, arise from or are connected with such Work.
2 Minimum Insurance Limits. The Contractors shall maintain the following
minimum insurance coverages and limits:
2.1 Commercial General Liabilitv: insurance to cover liability, bodily
injury, and property damage. The Commercial General Liability insurance shall be
written on an occurrence basis, with an aggregate limit location endorsement for the
Franchise Area, and shall provide coverage for any and all costs, including defense costs,
and losses and damages resulting from personal injury, bodily injury and death, property
damage, products liability and completed operations. Coverage must be written with the
following limits of liability:
$1,000,000 per occurrence;
$2,000,000 general aggregate; and
$1,000,000 products/completed operations aggregate.
2.2 Automobile Liabilitv: shall include owned, hired, and non -owned
vehicles on an occurrence basis with coverage of at least $1,000,000 per occurrence.
2.3 Workers Compensation Insurance: shall be maintained during the
period of such Work to comply with statutory limits for all employees.
3 Endorsements.
3.1 The Contractor's insurance coverage shall be primary insurance with
respect to the City. Any insurance, self-insurance, or insurance pool coverage maintained
by the City shall be in excess of the Contractor's insurance and shall not contribute to it.
3.2 Contractor, through policy endorsement, shall waive its rights of
subrogation against the City for all claims and suits.
3.3 That the 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.
3.4 The Contractor's insurance shall name the City as an additional
insured, and other Persons to whom the City is obligated under separate agreement or by
59.
Law, to protect or insure as an additional insured, from and against Liabilities arising out of
Work performed in the Right -of -Way under a grant of authority of the City.
3.5 The Contractor's insurance shall include a requirement that the
"railroad exclusion" be deleted or may include, in the alternative, ISO endorsement CG
2417.
3.6 The insurance coverages and limits provided herein shall not be
canceled or reduced, nor the intention not to renew be stated so as to be out of
compliance with the requirements herein without thirty (30) days written notice, certified
mail, return receipt requested, first being given to the City. If the insurance is canceled or
reduced in coverage, Franchisee shall provide a replacement policy.
4 Acceptability of Insurers. Each insurance policy required herein shall be
issued by financially sound insurers who may lawfully do business in the State of
Washington with a financial strength rating at all times during coverage of no less than an
"A-" and in a financial size category of no less than "IX", in the latest edition of `Best's
Rating Guide" published by A.M. Best Company. In the event that at any time during
coverage, the insurer does not meet the foregoing standards, Contractor shall give prompt
notice to the City and shall seek coverage from an insurer that meets the foregoing
standards. The City reserves the right to change the rating or the rating guide depending
upon the changed risks or availability of other suitable and reliable rating guides.
5 Verification of Coverage. Franchisee shall furnish the City with Contractors'
signed certificates of insurance and a copy of the amendatory endorsements, including, but
not necessarily limited to, the additional insured endorsement, evidencing the Automobile
Liability, and Commercial General Liability policies of the Contractors. The certificate for
each insurance policy is to be signed by a Person authorized by that insurer to bind coverage
on its behalf. The certificate for each insurance policy must be on standard forms or on such
forms as are consistent with standard industry practices.
6 Deductible. Commercial General Liability Insurance policies and
coverage required herein may include a reasonable deductible not to exceed _% of the
minimum per occurrence commercial general liablity policy limits; provided, however,
that if Contractor elects to include any deductible, Contractor shall itself directly cover, in
lieu of insurance, any and all City Liabilities that would otherwise in accordance with the
provisions of these requirements be covered by Contactors insurance if Contractor
elected not to include a deductible. Such direct coverage by Contractor shall be in an
amount equal to the amount of Contractor's actual deductible.
7 No Limitation. Contractor's maintenance of insurance policies required by
herein shall not be construed to excuse unfaithful performance by Franchisee or limit the
liability of Franchisee or Contractor to the coverage provided in the insurance policies, or
otherwise limit the City's recourse to any other remedy available at law or in equity.
8 Modifications of Coverages and Limits. The City reserves the right,
during the term of the Franchise, to require any other insurance coverage or adjust the
'A"$
policy limits as it deems reasonably necessary utilizing sound risk management practices
and principals based upon the loss exposures; provided that the City may not require
other insurance limits or change the policy limits for Franchisee's Contractors and/or
Subcontractors unless the City contemporaneously makes comparable changes to the
insurance requirements for other franchisee's with comparable franchises, services and
installations in the Right -of -Way. Prior to imposing such additional coverage or
adjusting existing required coverages or limits, the City shall provide reasonable notice to
Franchisee and an opportunity to provide comments, and the City shall review and
consider such comments that are timely made.
rem