Loading...
Ordinance 31280006.080.037 RJM/ 01/03/97 R:01 /07 /96hrw R :01 /15 /97hrw R:01 /21 /97gjz ORDINANCE NO. 3128 AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, GRANTING TO METRICOM, INC., A CALIFORNIA CORPORATION, ITS SUCCESSORS AND ASSIGNS, A NON EXCLUSIVE FRANCHISE FOR FIVE YEARS, TO ATTACH, INSTALL, OPERATE, AND MAINTAIN A WIRELESS DIGITAL COMMUNICATIONS RADIO NETWORK IN, ON, OVER, UPON, ALONG, AND ACROSS CERTAIN DESIGNATED PUBLIC RIGHTS -OF -WAY OF THE CITY OF EDMONDS, WASHINGTON, PRESCRIBING CERTAIN RIGHTS, DUTIES, TERMS, AND CONDITIONS WITH RESPECT THERETO, AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, Metricom, Inc. (hereinafter "the Franchisee ") has requested that the City grant it the right to install, operate and maintain a communications system within the rights -of- way of the City; and WHEREAS, the City Council has found it desirable for the welfare of the City and its residents that such a non - exclusive franchise be granted to the Franchisee; and WHEREAS, the City Council has the authority under RCW 35A.47.040 to grant franchises for the use of its streets and other public properties; and WHEREAS, the City is willing to grant the rights requested subject to certain terms and conditions, NOW, THEREFORE, 152382 - 1 - THE CITY COUNCIL OF THE CITY OF EDMONDS, WASHINGTON DO ORDAIN AS FOLLOWS: Section 1. Authority Granted. The City hereby grants to the Franchisee, its heirs, successors, legal representatives and assigns, subject to the terms and conditions hereinafter set forth, the right, privilege and authority to construct, operate, maintain, replace, and use all necessary equipment and facilities thereto for the telecommunications system described in the Franchisee's application to the City, in, under, on, across, over, through, along or below the public rights -of -way and easements which the City and the Franchisee determine allow for the installation of telecommunication facilities located in the territorial limits of the City of Edmonds as they currently exist or may expand, as approved under City permits issued pursuant to this Franchise. The precise location of any and all facilities installed pursuant to this Franchise shall be approved by the City according to the street use and excavation permit process referred to in Section 7 below. Section 2. Term. The term of this Franchise shall be for a period of 5 years from the effective date set forth in Section 31 below, unless sooner terminated by the Franchisee or the City as further provided herein. This Franchise may be renewed for an additional 5 year term according to the following process: If the Franchisee desires to renew, the Franchisee shall notify the City not later than 180 days prior to the expiration date of this Franchise of the desire to renew and whether the Franchisee desires to renegotiate any of this Franchise's terms or desires to add or delete any terms. The City will respond to the request for renewal not later than 120 days prior the expiration date and may request renegotiation of any term or the addition or deletion of any term at that time. If the Franchisee does not request renegotiation, addition 152382 - 2 - or deletion of any term and the City does not respond within the time period stated or responds in the affirmative without a request for renegotiation, addition or deletion, this Franchise shall automatically renew for the additional 5 year period on the same terms and conditions. If the Franchisee asks to renegotiate, add or delete any term or terms, this Franchise shall not renew unless and until the City and Franchisee reach agreement on the terms and said terms are approved by the City Council. If the City responds to the Franchisee's request for renewal by requesting renegotiation, addition, or deletion of any term or terms, this Franchise shall not be renewed unless and until the City and the Franchisee reach agreement on the terms and said terms are approved by the City Council. Nothing in this paragraph prevents the parties from reaching agreement on renewal earlier than the time periods indicated. Section 3. Non - Exclusive Grant. This Franchise shall not in any manner prevent the City from entering into other similar agreements or granting other or further franchises in, under, on, across, over, through, along or below any of said rights -of -way, streets, avenues or all other public lands and properties of every type and description. Such Franchise shall in no way prevent or prohibit the City from using any of said roads, streets or other public properties or affect its jurisdiction over them or any part of them, and the City shall retain power to make all necessary changes, relocations, repairs, maintenance, establishment, improvement, dedication of same as the City may deem fit, including the dedication, establishment, maintenance, and improvement of all new rights -of -ways, thoroughfares and other public properties of every type and description. Section 4. Relocation of Telecommunications Facilities. The Franchisee agrees and covenants at its sole cost and expense, to protect, support, temporarily disconnect, relocate or 152382 -3 - remove from any street any of its installations when so required by the City by reason of traffic conditions or public safety, dedications of new rights -of -way and the establishment and improvement thereof, widening and improvement of existing rights -of -way, street vacations, freeway construction, change or establishment of street grade, or the construction of any public improvement or structure by any governmental agency acting in a governmental capacity, provided that the Franchisee shall in all such cases have the privilege to temporarily bypass, in the authorized portion of the same street upon approval by the City, any section of cable or any other facility required to be temporarily disconnected or removed. Upon request of the City and in order to facilitate the design of City street and right -of- way improvements, the Franchisee agrees to, at its sole cost and expense, locate and if determined necessary by the City, to excavate and expose the Franchisee's facilities for inspection so that the location of the same may be taken into account in the improvement design. The decision as to whether said facilities need to be relocated in order to accommodate the City's improvements shall be made by the City upon review of the location and construction of the Franchisee's facilities. If the City determines that the project necessitates the relocation of the Franchisee's then existing facilities, the City shall: A. At least 180 days prior to the commencement of such improvement project, provide the Franchisee with written notice requiring such relocation. Provided, however, that in the event of an emergency posing a threat to the public safety or welfare, or in the event of an emergency beyond the control of the City and which will result in severe financial consequences to the City, the City shall give the Franchisee written notice as soon as practicable; B. Provide the Franchisee with copies of pertinent information for such improvement project and a proposed location for the 152382 - 4 - Franchisee's facilities so that the Franchisee may relocate its facilities in other City right -of -way in order to accommodate such improvement project; and C. After receipt of such notice and such pertinent information, the Franchisee shall complete relocation of its facilities at no charge or expense to the City so as to accommodate the improvement project at least 10 days prior to commencement of the project. The Franchisee may, after receipt of written notice requesting a relocation of its facilities, submit to the City written alternatives to such relocation. The City shall evaluate such alternatives and advise the Franchisee in writing if one or more of the alternatives is suitable to accommodate the work which would otherwise necessitate relocation of the facilities. If so requested by the City, the Franchisee shall submit additional information to assist the City in making such evaluation. The City shall give each alternative proposed by the Franchisee full and fair consideration, within a reasonable time so as to allow for the relocation work to be performed in a timely manner. In the event the City ultimately determines that there is no other reasonable alternative, the Franchisee shall relocate its facilities as otherwise provided in this Section. The provisions of this Section shall survive the expiration, revocation or termination of this Franchise, provided, that relocation shall not be required after expiration of this Franchise if the City consents to the Franchisee abandoning its facilities in place. The provisions of this Section shall in no manner preclude or restrict the Franchisee from making any arrangements it may deem appropriate when responding to a request for relocation of its facilities by any person or entity other than the City, where the facilities to be constructed by said person or entity are not or will not become city - owned, operated or maintained facilities, provided that such arrangements do not unduly delay a City construction project. 152382 -5 - The Franchisee will indemnify, hold harmless, and pay the costs of defending the City against any and all claims, suits, actions, damages or liabilities for delays on City construction projects caused by or arising out of the failure of the Franchisee to relocate its facilities in a timely manner, provided, that the Franchisee shall not be responsible for damages due to delays caused by circumstances beyond the control of the Franchisee. The indemnity provisions of this Section shall survive the expiration, revocation or termination of this Franchise. Section 5. Undergrounding of Facilities. The undergrounding requirements of this Section shall apply where the Franchisee's facilities consist of cable or any other facilities which are capable of being placed underground. Where the Franchisee's facilities consist of antennae or other facilities which are required to remain above ground in order to be functional, this Section shall not apply. As currently proposed, the facilities of the Franchisee do not require undergrounding. However, if future design modifications include features which would otherwise be required to be placed underground, then those portions of the Franchisee's future facilities shall be placed underground to the extent that it is technologically feasible. In any area of the City in which there are no aerial facilities other than antennae or other facilities required to remain above ground in order to be functional, or in any City right -of -way or easement in which all telephone, electric power wires and cables have been placed underground, the Franchisee shall not be permitted to erect poles or to run or suspend wires, cables or other facilities thereon, but shall lay such wires, cables or other facilities underground in the manner required by the City. The Franchisee acknowledges and agrees that if the City does not require the undergrounding of its facilities at the time of permit application, the City 152382 - 6 - may, at any time in the future, require the conversion of the Franchisee's aerial facilities to underground installation at the Franchisee's expense. Whenever the City requires the undergrounding of all aerial utilities in any area of the City which the City has the legal authority to require to underground without the payment of costs under any tariff, the Franchisee shall underground its aerial facilities in the manner specified by the City, concurrently with and in the area of all the other affected utilities. The location of any such relocated and underground utilities shall be approved by the City. The Franchisee shall underground its facilities at its own expense, but the Franchisee is encouraged to contact and agree with other affected utilities so that all costs for common trenching, common utility vaults and other costs not specifically attributable to the undergrounding of any particular facility are borne fairly and proportionately by all the utilities involved in the underground project. The provisions of this section shall survive the expiration, revocation or termination of this Franchise. Nothing in this paragraph shall be construed as requiring the City to pay any costs of undergrounding any of the Franchisee's facilities. Section 6. The Franchisee's Maps and Records. After construction is complete, and as a condition of this Franchise, the Franchisee shall provide to the City upon request and at no cost, accurate copies of all as -built plans, maps and records. Section 7. Work in the Right -of -Way. During any period of relocation, construction or maintenance, all surface structures, if any, shall be erected and used in such places and positions within said public rights -of -way and other public properties so as to interfere as little as possible with the free passage of traffic and the free use of adjoining property, and the Franchisee shall at all times post and maintain proper barricades and comply with all applicable safety regulations 152382 - 7 - during such period of construction as required by the ordinances of the City or the laws of the State of Washington, including RCW 39.04.180 for the construction of trench safety systems. Unless otherwise required by the Community Services Director, the Franchisee shall obtain a permit from the City prior to the commencement of any excavation within a public right -of -way or any other work within such a right -of -way not requiring excavation, for the purpose of installation, construction, repair, maintenance or relocation of its cable or equipment. In addition, the City shall be given at least 3 working days notice of the Franchisee's intent to commence work in the public right -of -way. The Franchisee shall pay all duly established permit and inspection fees associated with the processing of the permit. In no case shall any work commence within any public right -of -way without a permit, except as otherwise provided in this Franchise. During the progress of the work, the Franchisee shall not unnecessarily obstruct the passage or proper use of the right -of -way, and shall file as -built plans or maps with the City showing the proposed and final location of the cable or its facilities. All work by the Franchisee in any area covered by this Franchise and as described in this Section shall be performed in accordance with City of Edmonds construction standards. If the City has plans to improve any right -of -way to which this Franchise applies within 2 years of the Franchisee's application for a permit to locate its facilities in such right -of -way, the Franchisee may be allowed to install its facilities above ground, to the extent feasible, until such time as the City's improvements occur, at which time the Franchisee will underground its facilities concurrent with the City's improvement project. If either the City or the Franchisee shall at any time plan to make excavations in any area covered by this Franchise and as described in this Section, the party planning such excavation 152392 - 8 - shall afford the other, upon receipt of a written request to do so, an opportunity to share such excavation, provided that: A. Such joint use shall not unreasonably delay the work of the party causing the excavation to be made; B. Such joint use shall be arranged and accomplished on terms and conditions satisfactory to both parties; and C. Either party may deny such request for safety reasons. The joint use provisions of this Section shall apply only to joint use by the City and the Franchisee. Nothing in this Section is intended to require the Franchisee to afford other similar Franchisee's or other users the opportunity to share the Franchisee's excavations. The provisions of this section shall survive the expiration, revocation or termination of this Franchise. Section 8. Restoration After Construction. The Franchisee shall, after installation, construction, relocation, maintenance, removal or repair of cable or facilities within the Franchise area, restore the surface of the right -of -way and any other City facilities which may be disturbed by the work, to at least the same condition the right -of -way or facility was in immediately prior to any such installation, construction, relocation, maintenance or repair. The Community Services Director shall have final approval of the condition of such streets and public places after restoration. All survey monuments which are to be disturbed or displaced by such work shall be referenced and restored, as per WAC 332 -120, as the same now exists or may hereafter be amended, and all other pertinent federal, state and local standards and specifications. The Franchisee agrees to promptly complete all restoration work and to promptly repair any damage caused by such work to the right -of -way or other affected area at its sole cost and expense according to the time and terms specified in the permit issued by the City and in any applicable local ordinance or regulation, as the same now exist or as it may hereafter be 152382 - 9 - amended or superseded. The provisions of this Section shall survive the expiration, revocation or termination by other means of this Franchise. All work by the Franchisee pursuant to this Section shall be performed in accord with City of Edmonds construction standards. Section 9. Emergency Work -- Permit Waiver. In the event of any emergency in which any of the Franchisee's facilities located in, above or under any street, right -of -way or easement, are damaged or broken, or if the Franchisee's construction area is otherwise in such a condition as to immediately endanger the property, life, health or safety of any individual, the Franchisee shall immediately take the proper emergency measures to repair its facilities, to cure or remedy the dangerous conditions for the protection of property, life, health or safety of individuals without first applying for and obtaining a permit as required by this Franchise. However, this shall not relieve the Franchisee from the requirement of notifying the City of the emergency work and obtaining any permits necessary for this purpose. The Franchisee shall notify the City by telephone immediately upon learning of the emergency and the Franchisee shall apply for all required permits not later than the second succeeding day during which the Edmonds City Hall is open for business. Section 10. Dangerous Conditions, Authority for City to Abate. Whenever construction, installation or excavation of facilities authorized by this Franchise has caused or contributed to a condition that appears to substantially impair the lateral support of the adjoining street or public place, or endangers the public, an adjoining public place, street utilities or City property, the Community Services Director may direct the Franchisee, at the Franchisee's own expense, to take action to protect the public, adjacent public places, City property or street utilities; and such action may include compliance within a prescribed time. 152382 -10- In the event that the 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 enter upon the property and take such actions as are necessary to protect the public, the adjacent streets, or street utilities, or to maintain the lateral support thereof, or actions regarded as necessary safety precautions; and the Franchisee shall be liable to the City for the costs thereof. The provisions of this Section shall survive the expiration, revocation or termination by other means of this Franchise. Section 11. Recovery of Costs. The Franchise shall pay a one time administrative fee in the amount of $2,000.00 to cover the City's costs in drafting and processing this Franchise and all work related thereto. The fee shall be paid at the time of acceptance of this Franchise as set forth in Section 30 and this Franchise shall not become effective until payment of the fee. The Franchise shall further be subject to all permit fees associated with activities undertaken through the authority granted in this Franchise or under the laws of the City. Where the City incurs costs and expenses for review, inspection or supervision of activities undertaken through the authority granted in this Franchise or any ordinances relating to the subject for which a permit fee is not established, the Franchise shall reimburse the City directly for any and all costs. In addition to the above, the Franchisee shall promptly reimburse the City for any and all costs the City reasonably incurs in response to any emergency involving the Franchisee's communications facilities. Finally, the Franchisee shall reimburse the City upon submittal by the City of an itemized billing by project of costs, for the Franchisee's proportionate share of all actual, identified IkM - 11 - expenses incurred by the City in planning, constructing, installing, repairing or altering any City facility as the result of the presence in the right -of -way of the Franchisee's facilities. Such costs and expenses shall include but not be limited to the Franchisee's proportionate cost of City personnel assigned to oversee or engage in any work in the right -of -way as the result of the presence of the Franchisee's facility in the right -of -way. Such costs and expenses shall also include the Franchisee's proportionate share of any time spent reviewing construction plans in order to either accomplish the relocation of the Franchisee's facilities or the routing or rerouting of any utilities so as not to interfere with the Franchisee's facilities. The time of City employees shall be charged at their respective rate of salary, including overtime if applicable, plus benefits and overhead. Any other costs will be billed proportionately on an actual cost basis. All billings will be itemized so as to specifically identify the costs and expenses for each project for which the City claims reimbursement. A charge for the actual costs incurred in preparing the billing may also be included in said billing. The billing may be on an annual basis, but the City shall provide the Franchisee with the City's itemization of costs at the conclusion of each project for information purposes. Section 12. Fee for City -Owned Poles and Locations. In addition to any other fees or taxes for which the Franchisee is required to pay the City, the Franchisee shall pay the City an annual fee in the amount of $60.00 for the use of each City -owned pole or other City -owned property upon which the Franchisee's telecommunications facilities are installed pursuant to this Franchise. The initial annual fee shall be due and payable not later than the date of installation on the first City -owned pole or other City -owned property pursuant to this Franchise, and shall equal the total number of City -owned poles or other City -owned locations the Franchisee then 152382 - 12- estimates it will install during the remaining portion of the calendar year multiplied by the annual fee. In all subsequent years, the annual fee shall equal the total number of City -owned poles or other City -owned locations occupied for any portion of the calendar year multiplied by the annual fee. The annual fee imposed by this Section may be prorated for any portion of any year; provided, however, that the Franchisee shall make and keep records of sufficient accuracy to demonstrate that it is entitled to prorate any portion of the annual fee imposed by this Section. The fee imposed by this Section shall be due by January 31st of each year following the initial year of installation. Section 13. Consideration and Reservation of Rights. It is the understanding of the parties in reaching agreement regarding consideration for this franchise that: (1) the Franchisee's operations as currently proposed are those of a "telephone business" as that term is defined in RCW 82.04.065; and (2) that the City is prohibited from imposing a franchise fee or other charges, except for administrative fees and the utility tax authorized by RCW Chapter 35.21. If in the future the business of the Franchisee should cease to qualify as a "telephone business" under the provisions of the state statute, the business itself shall change such that all or a portion of it no longer qualifies as a "telephone business ", or state laws are amended in a way which permit the City greater latitude in the imposition of a franchise fee or other taxes, the City reserves the right, subject to bilateral renegotiation with the Franchisee, to change the provisions of this Franchise as they relate to taxes and /or franchise fees in order to preserve the considerations embodied in this franchise. At the date of passage of this franchise ordinance, maximum consideration for the life of this agreement pursuant to a tax or franchise fee shall be limited to six percent of gross revenues. 152382 - 13 - Section 14. Indemnification. The Franchisee hereby releases, covenants not to bring suit and agrees to indemnify, defend and hold harmless the City, its officers, employees, agents and representatives from any and all claims, costs, judgments, awards or liability to any person, including claims by the Franchisee's own employees to which the Franchisee might otherwise be immune under Title 51 RCW, arising from injury, sickness or death of any person or damage to property of which the negligent acts or omissions of the Franchisee, its agents, servants, officers or employees in performing the activities authorized by this Franchise are the proximate cause. The Franchisee further releases, covenants not to bring suit and agrees to indemnify, defend and hold harmless the City, its officers and employees from any and all claims, costs, judgments, awards or liability to any person including claims by the Franchisee's own employees, including those claims to which the 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 the Franchisee's exercise of the rights granted herein, or by virtue of the City's permitting the Franchisee's use of the City's rights -of- way or other public property, or based upon the City's inspection or lack of inspection of work performed by the 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 the 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 public right- 152382 -14- of -way or other public place in performance of work or services permitted under this Franchise. In the event that the Franchisee's transmission technology or facilities emit electromagnetic impulses (EMF), the Franchisee expressly agrees that this indemnity provision extends to any and all claims for injury, sickness or death of any person, including employees of the Franchisee, arising out of or caused by said emissions. Inspection or acceptance by the City of any work performed by the Franchisee at the time of completion of construction shall not be grounds for avoidance of any of these covenants of indemnification. 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, provided that the Franchisee has been given prompt written notice by the City of any such claim, has the right to defend or participate in the defense of any such claim and has the right to approve any settlement or other compromise of any such claim. In the event that the Franchisee refuses the tender of defense in any suit or any claim, said tender having been made pursuant to the indemnification clauses contained herein, and said refusal is subsequently determined by a court having jurisdiction (or such other tribunal that the parties shall agree to decide the matter), to have been a wrongful refusal on the part of the Franchisee, then the 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. The obligations of the Franchisee under the indemnification provisions of this paragraph shall apply regardless of whether liability for damages arising out of bodily injury to persons or 152382 - 15- damages to property were caused or contributed to by the concurrent negligence of the City, its officers, agents, employees or contractors. The provisions of this Section, however, are not to be construed to require the Franchisee to hold harmless, defend or indemnify the City as to any claim, demand, suit or action which arises out of the sole negligence of the City. It is further specifically and expressly understood that the indemnification provided herein constitutes the 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. In the event that any court of competent jurisdiction determines that this contract is subject to the provisions of RCW 4.24.115, the parties agree that the indemnity provisions hereunder shall be deemed amended to conform to said statute and liability shall be allocated as provided therein. Notwithstanding any other provisions of this Section, the Franchisee assumes the risk of damage to its facilities located in the City's rights -of -way and easements from activities conducted by the City, its officers, agents, employees and contractors. The Franchisee releases and waives any and all claims against the City, its officers, agents, employees or contractors for damage to or destruction of the Franchisee's facilities caused by or arising out of activities conducted by the City, its officers, agents, employees and contractors, in the public rights -of- way and easements subject to this Franchise, except to the extent any such damage or destruction is caused by or arises from the sole negligence or any wilful or malicious action on the part of the City, its officers, agents, employees or contractors. The 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 the Franchisee's facilities as the result of any interruption of service due to damage or destruction 152382 - 16- of the Franchisee'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 arises from the sole negligence or any wilful or malicious actions on the part of the City, its officers, agents, employees or contractors. The provisions of this Section shall survive the expiration, revocation or termination of this Franchise. Section 15. Insurance. The Franchisee shall procure and maintain for the duration of the Franchise, insurance 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 hereunder to the Franchisee, its agents, representatives or employees. The Franchisee shall provide an insurance certificate, together with an endorsement naming the City, its officers, elected officials, agents, employees, representatives, engineers, consultants and volunteers as additional insureds, to the City for its inspection prior to the commencement of any work or installation of any facilities pursuant to this Franchise, and such insurance certificate shall evidence: A. Automobile Liability insurance with limits no less than $1,000,000 Combined Single Limit per accident for bodily injury and property damage; and B. Commercial General Liability insurance, written on an occurrence basis with limits no less than $1,000,000 combined single limit per occurrence and $2,000,000 aggregate for personal injury, bodily injury and property damage. Coverage shall include but not be limited to: blanket contractual; products /completed operations; broad form property damage; explosion, collapse and underground (XCU); and employer's liability. 152382 -17- The above coverages may be provided, in part, through an umbrella policy, with the approval of the City's Risk Manager. Any deductibles or self - insured retentions must be declared to and approved by the City. Payment of deductible or self - insured retention shall be the sole responsibility of the Franchisee. The insurance policy(ies) obtained by the Franchisee shall name the City, its officers, elected officials, agents, employees, representatives, engineers, consultants and volunteers, as additional insureds with regard to activities performed by or on behalf of the Franchisee. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, elected officials, agents, employees, representatives, engineers, consultants or volunteers. In addition, the insurance policy shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. The Franchisee's insurance shall be primary insurance as respects the City, its officers, officials, employees and volunteers. Any insurance maintained by the City, its officers, officials, employees or volunteers shall be in excess of the Franchisee's insurance and shall not contribute with it. The insurance policy or policies required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after 30 days prior written notice by certified mail, return receipt requested, has been given to the City. The insurance certificate shall contain language evidencing these requirements. Any failure to comply with the reporting provisions of the policies required herein shall not affect coverage provided to the City, its officers, officials, employees or volunteers. 152382 - 1 8 - Section 16. Abandonment and Removal of the Franchisee's Telecommunications System Facilities. No cable, section of cable or other facility laid in the right -of -way by the Franchisee may be abandoned by the Franchisee without the express written consent of the City. Any plan for abandonment or removal of the Franchisee's cable and facilities must be first approved by the Community Services Director, and all necessary permits must be obtained prior to such work. The provisions of this Section shall survive the expiration, revocation or termination of this Franchise. In the event that the City allows the Franchisee to abandon any portion of its cable or facilities, the City shall be responsible for such cable or facilities and the Franchisee shall have no further obligation to maintain, relocate or remove such facilities. Section 17. Commencement of Construction. Construction of the facilities contemplated by this Franchise shall commence no later than two years after the effective date of this Franchise, provided that such time limit shall not apply to delays caused by acts of God, strikes, eminent domain litigation or other occurrences over which the Franchisee has no control. Section 18. Surety. Before undertaking any of the work, installation, improvements, construction, repair, relocation or maintenance authorized by this Franchise, the Franchisee shall furnish a surety reasonably acceptable to the City in an aggregate amount consistent with the Franchisee's performance of all covenants, terms, conditions and obligations under this Franchise. If the surety is in a form other than cash, it shall be issued by a corporate surety authorized to do a surety business in the State of Washington in the form set forth in Exhibit A. The required surety shall be maintained during the term of this Franchise (including any extension thereof) and for a two -year period thereafter. The initial amount of the surety required by this Section shall not be greater than $15,000.00; provided, however, that the Community 152382 - 19- Services Director may from time to time review the amount of surety and determine an appropriate level based upon the Franchisee's performance of the covenants, terms, conditions and obligations under this Franchise. In the event that the Community Services Director elects to raise the amount of surety required, he or she shall give written notice to the Franchisee setting forth the reasons for doing so. The Franchisee's operations do not require undergrounding of facilities, are relatively few in number, and readily accessible. Therefore, the total surety in this case shall not exceed $15,000.00. Section 19. Modification. The City and the Franchisee hereby reserve the right to alter, amend or modify the administrative terms and conditions of this Franchise upon written agreement of both parties to such alteration, amendment or modification. Provided, however, that any alteration, amendment, or modification of any substantive term or condition of this Franchise shall be approved by the City Council in the manner in which this Franchise was initially approved. Section 20. Forfeiture and Revocation. If the Franchisee willfully violates or fails to comply with any of the material provisions of this Franchise, or through willful misconduct or gross negligence fails to heed or comply, within 30 days, with any notice given the Franchisee by the City under the provisions of this Franchise, then the Franchisee shall, at the election of the Edmonds City Council, forfeit all rights conferred hereunder and this Franchise may be revoked, terminated or annulled by the Council after a hearing held upon reasonable notice to the Franchisee. The Council may decide, after consideration of the reasons for the Franchisee's failure to comply with the Franchise, to allow the Franchisee additional time to cure before such termination or revocation. The City may elect, in lieu of the above and without any prejudice 152382 -20- to any of its other legal rights and remedies, to obtain an order from the superior court having jurisdiction compelling the Franchisee to comply with the provisions of this Franchise and to recover damages and costs incurred by the City by reason of the Franchisee' failure to comply. Section 21. Remedies to Enforce Compliance. In addition to any other remedy provided herein, the City reserves the right to pursue any remedy to compel or force the Franchisee and /or its successors and assigns to comply with the terms hereof. The pursuit of any right or remedy by the City shall not prevent the City from thereafter declaring a forfeiture or revocation for breach of the conditions herein, as set forth in Section 20. Section 22. City Ordinances and Regulations. Nothing herein shall be deemed to direct or restrict the City's ability to adopt and enforce all necessary and appropriate ordinances regulating the performance of the conditions of this Franchise, including any valid ordinance made in the exercise of its police powers in the interest of public safety and for the welfare of the public. The City shall have the authority at all times to control by appropriate regulations the location, elevation, manner of construction and maintenance of any communications or cable facilities by the Franchisee, and the Franchisee shall promptly conform with all such regulations, unless compliance would cause the Franchisee to violate other requirements of law. Section 23. Technological Changes. To address technological changes in the state -of- the -art communication services provided by the Franchisee during the term of this Franchise, the City may elect to review the Franchisee's communications facilities after 30 months in light of City needs and interests. Should such review identify a needed change in facilities or the provisions of this Franchise, the City and the Franchisee shall meet and confer concerning the need for any such changes. 152382 -21- Section 24. Survival. All of the provisions, conditions and requirements of Sections 4, Relocation of Telecommunications Facilities; 5, Undergrounding of Facilities; 7, Work in the Right-of-Way ; 8, Restoration after Construction; 10, Dangerous Conditions; 14, Indemnification; and 16, Abandonment and Removal of the Franchisee's Facilities, of this Franchise shall be in addition to any and all other obligations and liabilities the Franchisee may have to the City at common law, by statute, or by contract, and shall survive the expiration or termination of this Franchise, and any renewals or extensions thereof. All of the provisions, conditions, regulations and requirements contained in this Franchise shall further be binding upon the heirs, successors, executors, administrators, legal representatives and assigns of the Franchisee and all privileges, as well as all obligations and liabilities of the Franchisee shall inure to its heirs, successors and assigns equally as if they were specifically mentioned wherever the Franchisee is named herein. Section 25. Most Favored Community. In the event that the Franchisee enters into any agreement, franchise or other understanding with any other city, town or county in the state of Washington and which provides terms or conditions more favorable to the city, town, or county than those provided in this Franchise, such as, but not limited to, free or reduced fee hookups, access or service, the City of Edmonds shall be entitled to request at the City's option, and the Franchisee shall be required to execute an amendment to this Franchise which incorporates the more favorable terms and conditions. Section 26. Non- Severability. Each term and condition of this Franchise is an integral part of the consideration given by each party and as such, the terms and conditions of this Franchise are not severable. If any section, sentence, clause or phrase of this Franchise should 152382 -22- be held to be invalid or unconstitutional by a court of competent jurisdiction, this Franchise shall terminate unless suitable replacement terms cannot be worked out by the parties. Section 27. Assignment. This agreement may not be assigned or transferred without the written approval of the City, which approval shall not be unreasonably withheld or delayed, except the Franchisee may freely assign this Franchise in whole or in part to a parent, subsidiary, or affiliated corporation or as part of any corporate financing, reorganization or refinancing. In the case of transfer or assignment as security by mortgage or other security instrument in whole or in part to secure indebtedness, such consent shall not be required unless and until the secured party elects to realize upon the collateral. The Franchisee shall provide prompt, written notice to the City of any such assignment. Section 28. Notice. Any notice or information required or permitted to be given to the parties under this Franchise shall be deemed received upon receipt or 3 business days after being placed into the United States Mail properly addressed with First Class postage affixed thereto, whichever is sooner. Said notices may be sent to the following addresses unless otherwise specified in this Franchise: City of Edmonds Metricom, Inc. Attn: Community Services Director Attn: Property Manager 250 5th Avenue North 980 University Avenue Edmonds, WA 98020 Los Gatos, CA 95030 Section 29. Entire Franchise. This Franchise constitutes the entire understanding and agreement between the parties as to the subject matter herein and no other agreements or understandings, written or otherwise, shall be binding upon the parties upon execution of this Franchise. 152382 -23 - Section 30. Acceptance. Within 60 days after the passage and approval of this ordinance, this Franchise may be accepted by Metricom by its filing with the City Clerk an unconditional written acceptance thereof. Failure of Metricom to so accept this franchise within said period of time shall be deemed a rejection thereof by Metricom, and the rights and privileges herein granted shall, after the expiration of the 60 day period, absolutely cease and determine, unless the time period is extended by ordinance duly passed for that purpose. Section 31. Effective Date. This ordinance, being an exercise of a power specifically delegated to the City legislative body, is not subject to referendum, and shall take effect 5 days after passage and publication of an approved summary thereof consisting of the title. APPROVED: l ATTEST /AUTHENTICATED: 'CITY CLERK, SANDRA S. CHASE APPROVED AS TO FORM: OFFICE CITY ATTORNEY: BY (A)WZ""� FILED WITH THE CITY CLERK: 1/17/97 PASSED BY THE CITY COUNCIL: 1/21/97 PUBLISHED: 1/26/97 EFFECTIVE DATE: 1/31/97 ORDINANCE NO. 3128 152382 -24- SUMMARY OF ORDINANCE NO. 3128 of the City of Edmonds, Washington On the 21 st day of January , 199 7 , the City Council of the City of Edmonds, passed Ordinance No. 3128 A summary of the content of said ordinance, consisting of the title, provides as follows: AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, GRANTING TO METRICOM, INC., A CALIFORNIA CORPORATION, ITS SUCCESSORS AND ASSIGNS, A NON EXCLUSIVE FRANCHISE FOR FIVE YEARS, TO ATTACH, INSTALL, OPERATE, AND MAINTAIN A WIRELESS DIGITAL COMMUNICATIONS RADIO NETWORK IN, ON, OVER, UPON, ALONG, AND ACROSS CERTAIN DESIGNATED PUBLIC RIGHTS -OF -WAY OF THE CITY OF EDMONDS, WASHINGTON, PRESCRIBING CERTAIN RIGHTS, DUTIES, TERMS, AND CONDITIONS WITH RESPECT THERETO, AND ESTABLISHING AN EFFECTIVE DATE. The full text of this Ordinance will be mailed upon request. DATED this 22nd day of January . , 199 7 CITY CLERK, SANDRA S. CHASE EXHIBIT A Bond No. U2694109 Premium: $100.00 per annum. PERFORMANCE BOND FOR TELECOMMUNICATIONS FRANCHISE KNOW ALL MEN BY THESE PRESENTS: WHEREAS, the City of Edmonds, Washington, has granted the undersigned Principal a Non - Exclusive Franchise by Ordinance, dated January 22, 1997, which authorizes the Principal to construct, install, maintain and operate telecommunications facilities within the City's right -of -way; and, WHEREAS, said franchise provides that the undersigned Principal shall furnish a bond or other suitable surety to secure the faithful performance of the terms, conditions and covenants of said franchise; NOW, THEREFORE, we the undersigned Principal and UNITED PACIFIC INSURANCE COMPANY, a corporation duly organized and existing under the laws of the State of Pennsylvania and authorized to transact business in the State of Washington, are held and firmly bound unto the CITY OF EDMONDS, WASHINGTON, in the sum of FIVE THOUSAND AND NO /100 DOLLARS ($5,000.00) lawful money of the United States, for the payment of which sum, well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION IS SUCH, that if the undersigned Principal, his or its heirs, executors, administrators, successors, or assigns, shall in all things stand to and abide by, and well and truly keep and faithfully perform the covenants, conditions and provisions in the said franchise and shall also well and truly keep and faithfully perform and fulfill all of the undertakings, covenants, terms, conditions and agreements of any and all duly authorized modifications of said franchise that may hereafter be made, at the time and in the manner therein specified, then this obligation shall become null and void; otherwise it shall remain in full force and effect. PROVIDED, HOWEVER, that the surety reserves the right to withdraw as surety from this bond, except as to any liability incurred or accrued, and may do so by giving sixty (60) days written notice to the City of Edmonds. IN WITNESS WHEREOF, the said undersigned principal and the said surety have caused this bond to be signed and sealed this 10`h day of July, 1997 ME 1. RICOM INC. UNITED PACIFIC INSURANCE COMPANY BX. l�- ! By Title Donna Ellis, Attorney -in -Fact Address: 580 California. Street, Suite 1300.. San Francisco, CA 94104 Telephone: 415- 273 -5205 APPROVE AS O FO By: City Att a CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT State of California County of San Francisco On July 10, 1997 before me Dena Mitchel, Notary Public DATE NAME, TITLE OF OFFICER - E.G.. "JANE DOE. NOTARY PUBLIC" personally appeared Donna Ellis NAME(S) OF SIGNER(S) D personally known to me - OR - ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and ac- knowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the DENANIITCHL=L person(s) acted, executed the instrument. r 91W COMM. #021762 '� NOTARY PIJBL C- CAUFORNU 19 a SAN FRANCISCO COUNTY WITNESS my hand and official seal. Y Comm. Expires May 26,1998', ., SIGNATURE OF NOTARY OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER ❑ INDIVIDUAL ❑ CORPORATE OFFICER TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL O ATTORNEY -IN -FACT ❑ TRUSTEE(S) ❑ GUARDIAN /CONSERVATOR ❑ OTHER: SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) DESCRIPTION OF ATTACHED DOCUMENT TITLE OR TYPE OF DOCUMENT NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S) OTHER THAN NAMED ABOVE RELIANCE SURETY COMPANY RELIANCE INSURANCE COMPANY UNITED PACIFIC INSURANCE COMPANY RELIANCE NATIONAL INDEMNITY COMPANY ADMINISTRATIVE OFFICE, PHILADELPHIA, PENNSYLVANIA POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that RELIANCE SURETY COMPANY is a corporation duly organized under the laws of the State of Del- aware, and that RELIANCE INSURANCE COMPANY and UNITED PACIFIC INSURANCE COMPANY, are corporations duly organized under the laws of the Commonwealth of Pennsylvania and that RELIANCE NATIONAL INDEMNITY COMPANY is a corporation duly organized under the laws of the State of Wisconsin (herein collectively called "the Companies ") and that the Companies by virtue of signature and seals do hereby make, constitute and appoint Donna Ellis, of San Francisco, California their true and lawful Attorneys) -in -Fact, to make, execute, seal and deliver for and on their behalf, and as their act and deed any and all, bonds and undertakings of suretyship and to bind the Companies thereby as fully and to the same extent as if such bonds and undertakings and other writings obligatory in the nature thereof were signed by an Executive Officer of the Companies and seated and attested by one other of such officers, and hereby ratifies and confirms all that their said Attorney(s) -in -Fact may do in pursuance hereof. This Power of Attorney is granted under and by the authority of Article VII of the By -Laws of RELIANCE SURETY COMPANY, RELIANCE INSURANCE COMPANY, UNITED PACIFIC INSURANCE COMPANY, and RELIANCE NATIONAL INDEMNITY COMPANY which provisions are now in full force and effect, reading as follows: ARTICLE VII - EXECUTION OF BONDS AND UNDERTAKINGS 1. The Board of Directors, the President, the Chairman of the Board, any Senior Vice President, any Vice President or Assistant Vice President or other officer designated by the Board of Directors shall have power and authority to (a) appoint Attorneys) -in -Fact and to authorize them to execute on behalf of the Company, 'bonds and undertakings, recognizances, contracts of indemnity and other writings obligatory in the nature thereof, and lb) to remove any such Attorney(s) -in -Fact at any time and revoke the power and authority given to them. 2. Attorney(s)-in -Fact shall have power and authority, subject to the terms and limitations of the Power of Attorney issued to them, to execute deliver on behalf of the Company, bonds and undertakings, recognizances, contracts of indemnity and other writings obligatoryAn the nature thereof. The corporate seal Is not necessary for the validity of any bonds and undertakings, recognizances, contracts of indemnity and other writings obligatory in the nature thereof. 3. Attorneys) -in -Fact shall have power and authority to execute affidavits required to be attached to bonds, recognizances, contracts of indemnity or other conditional or obligatory undertakings and they shall also have power and authority to certify the financial statement of the Company and to copies of the By -Laws of the Company or any article or section thereof. This Power of Attorney is signed and sealed by facsimile under and by authority of the following resolution adopted by the Executive and Finance Committees of the Boards of Directors of Reliance Insurance Company, United Pacific Insurance Company and Reliance National Indemnity Company by Unanimous Consent dated as of February 28, 1994 and by the Executive and Financial Committee of the Board of Directors of Reliance Surety Company by Unanimous Consent dated as of March 31, 1994. . `Resolved that the signatures of such directors and officers and the seal of the Company may be affixed to any such Power of Attorney or any certificates relating thereto by facsimile,and any such Power of Attorney or certificate bearing such facsimile signatures or facsimile seal shall be valid and binding upon the Company and any such Power so executed and certified by facsimile signatures and facsimile seal shall be valid and binding upon the Company, in the future with respect to any bond or undertaking to which it is attached.' IN WITNESS WHEREOF, the Companies have caused these presents to be signed and their corporate seals to be hereto affixed, this July 19, 1996. RELIANCE SURETY COMPANY c +•°o a"""`r ,+ro 4♦1►tr4� RELIANCE INSURANCE COMPANY +� °' ' s �• �+. 'r : UNITED PACIFIC INSURANCE COMPANY `s►at ')) °SLrAL' yiiioLa t RELIANCE NATIONAL INDEMNITY COMPANY 4 rN• � 7 /��� � � •POMP l' STATE OF Washington } COUNTY OF King } ss. On this, July 19, 1996, before me, Janet Blankley, personally appeared Mark W. Alsup, who acknowledged himself to be the Vice President of the Reliance Surety Company, and the Vice President of Reliance Insurance Company, United Pacific Insurance Company, and Reliance National Indemnity Company and that as such, being authorized to do so, executed the foregoing instrument for the purpose therein contained by signing the name of the corporation by himself as its duly authorized officer. _____ In witness whereof, I hereunto set my hand and official seal. C� —+""i► No ry Public in and for the State of Washington Re ding at Puyallup 1, Robyn Layng, Assistant Secretary of RELIANCE SURETY COMPANY, iEUANCE INSURANCE COMPANY, UNITED PACIFIC INSURANCE COMP- ANY, and RELIANCE NATIONAL INDEMNITY COMPANY do hereby certify that the above and foregoing is a true and correct copy of the Power of Attorney executed by said Companies, which is still in full force and effect. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seals of said Companies this 10th day of • ' , ,r„"""� fir-- .t,++r e•roe `s�►e t¢.`aul.'� Sint trasr t ry reo>w�r Assistant Secretary July 1997 1► III i State of �x4hrKA-0— County of S U"-- On\jo 1Rarl before me, �- /I Id %y��'�"H fit Id it -- 8 15ATE I NAME, TITLE OF OFFICER - E. d., "JANE DOE, NOkARY PUBLIC" personally appeared L, ka�— T6y",S(A^ NAME'S) OF SIGNER'S) ❑ personally known to me - OR -roved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and ac- knowledged to me that he /she /they executed LeICI the same in his /her /their authorized "f .•. COAIMM.+it06131bf capacity(ies), and that by his /her /their On' � Cd lta signature(s) on the instrument the person(s), �sy Comm. �,�„ � orthe entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. SIGNATURE OF CAPACITY CLAIMED BY SIGNER ❑ INDIVIDUAL(S) �1 �ORPORATE STi OFFICER(S) r43 Wf f�— TITLE(S) ❑ PARTNER(S) ❑ ATTORNEY -IN -FACT ❑ TRUSTEE(S) ❑ SUBSCRIBING WITNESS ❑ GUARDIAN /CONSERVATOR ❑ OTHER: SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) ATTENTION NOTARY: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to unauthorized document. THIS CERTIFICATE Title or Type of Document ���Ce_ %C n�.. MUST BE ATTACHED D f P b Numer oa es ate of Document TO THE DOCUMENT g �JU % �i / q DESCRIBED AT RIGHT: Signer(s) Other Than Named Above O 1991 NATIONAL NOTARY ASSOCIATION • 8236 Remmet Ave. • P.O. Box 7184 • Canoga Park, CA 91304 -7184 STATE OF WASHINGTON, COUNTY OF SNOHO:"aISH, SUMMARY OF ORDINANCE NO. 3128 of the City of Edmonds, Washington On the 21st day of January, 11997, the City Councd of the City of Edmonds, passed ordinance No. 3128. A summary of the cv.ptent of said lordinance. consisllg. of the 'YEARS, TO ATTACH, 'STALL, OPERATE, .MAINTAIN A WIRE gAcrt'aa t,tn'HUV uwiv- 1 NATED PUBLIC RIGHTS -OF- I WAY OF THE CITY OF ED- �MONDS 'WASHINGTON,. iAESCAII3ING CERTAIN' `RIGHTS, DUTIES, TERMS, SAND CONDITIONS WITH RE SPECT THERETO, AND ES- TABLISHING AN EFFECTIVE DATE. The full text of this Ordinance will be mailed upon request. DATED this 22nd day of January, 1997. SANDRA S. CHASE City Clerk Published: January 26, 1997. 8 -2 -1 Affidavit of Publication RECEIVED JAN 30199' EDMONDS CITY CLERK The undersigned, being first duly sworn on oath deposes and says that she is Principal Clerk of THE HERALD, a daily newspaper printed and published in the City of-Everett, County of Snohomish, and State of Washington; that said newspaper is a newspaper of general circulation in said County and State; that said newspaper has been approved as a legal newspaper by order of the Superior Court of Snohomish County and that the notice ......... ............................... City of Edmonds ............................................................................. ............................... .................... Ordinance 3128 ...................................................................................................... ............................... ......-----• ............................................................................................ ............................... a printed copy of which is hereunto attached, was published in said newspaper proper and not in supplement form, in the regular and entire edition of said paper on the following days and times, namely: ...January... 2 6.s... 199. 7 ........................................................... ........... .................... ..-------- •.........` ............................................:................................................................. an +tha sai newspaper was regularly distributed to its subscribers du ing al of said period. - - -_ - -_ ------ - - - - -- - Principal Clerk Subscribed and sworn to before me this .... .27.th ............. January. i. 19_27 of.......... .............................. ... ............................... .. - -- ............... Notary Public in and r th State of Washington, residing at Everett, S o h County. ', 0 �7'j \GF W ASN�/