Ordinance 3295ORDINANCE NO. 3295
AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, GRANTING TO
METROMEDIA FIBER NETWORK SERVICES, INC., A NON - EXCLUSIVE
FRANCHISE TO INSTALL, OPERATE, AND MAINTAIN A MULTIPLE CONDUIT
FIBER OPTIC TELECOMMUNICATIONS SYSTEM IN, ON, OVER, UPON,
ALONG, AND ACROSS THE 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, Metromedia Fiber Network Services, Inc. has requested that the City grant it
the right to install, operate, and maintain a multiple conduit fiber optic telecommunications
system within the public ways 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,
THE CITY COUNCIL OF THE CITY OF EDMONDS, WASHINGTON DO ORDAIN
AS FOLLOWS:
Section 1. Definitions. For the purposes of this Franchise, the following terms, phrases,
words, and abbreviations shall have the meanings ascribed to them below. When not
inconsistent with the context, words used in the present tense include the future tense, words in
the plural number include the singular number, and words in the singular number include the
plural number.
a. "Affiliate" means an entity which owns or controls, is owned or controlled
by, or is under common ownership with the Franchisee.
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b. "City" means the City of Edmonds, Washington.
C. "Communication Service" shall mean any telecommunications services,
telecommunications capacity, or dark fiber, provided by the Franchisee using its
Communication System or Facilities, either directly or as a carrier for its subsidiaries,
Affiliates, or any other person engaged in Communication Services, including, but not
limited to, the transmission of voice, data or other electronic information, facsimile
reproduction, burglar alarm monitoring, meter reading and home shopping, or other
subsequently developed technology that carries an electronic signal over fiber optic cable.
Communication Service shall also include non - switched, dedicated and private line, high
capacity fiber optic transmission services to firms, businesses or institutions within the
City. However, Communications Services shall not include the provision of cable
television, open video, or similar services, as defined in the Communications Act of
1934, as amended, for which a separate franchise would be required.
d. "Communication System" or "Facilities" shall mean the Franchisee's
multiple conduit fiber optic cable system constructed and operated within the City's
Public Way, and shall include all cables, wires, conduits, ducts, pedestals, and any
associated converter, equipment, or other facilities within the City's Public Way,
designed and constructed for the purpose of providing Communication Service.
e. "FCC" means the Federal Communications Commission, or any successor
governmental entity hereto.
f. "Franchise" shall mean the initial authorization, or renewal thereof,
granted by the City, through this franchise Ordinance, or a subsequently adopted
franchise Ordinance, which authorizes construction and operation of the Franchisee's
Communication System and associated Facilities for the purpose of offering
Communication Service.
g. "Franchisee" means Metromedia Fiber Network Services, Inc., a Delaware
corporation, or the lawful successor, transferee, or assignee thereof.
h. "Person" means an individual, partnership, association, joint stock
company, trust, corporation, or governmental entity.
i. "Public Way" shall mean the surface of, and any space above or below,
any public street, highway, freeway, bridge, path, alley, court, boulevard, sidewalk,
parkway, lane, drive, circle, or other public right -of -way, including, but not limited to,
public utility easements, utility strips, or rights -of -way dedicated for compatible uses and
any temporary or permanent fixtures or improvements located thereon now or hereafter
held by the City in the Service Area, which shall entitle the City and the Franchisee the
use thereof for the purpose of installing, operating, repairing, and maintaining the
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Communication System. Public Way shall also mean any easement now or hereafter held
by the City within the Service Area for the purpose of public travel, or for utility or
public service use dedicated for compatible uses, and shall include other easements or
rights -of -way, which within their proper use and meaning entitle the City and the
Franchisee to the use thereof for the purposes of installing or transmitting the
Franchisee's Communication Service over wires, cable, conductors, amplifiers,
appliances, attachments, and other property as may be ordinarily necessary and pertinent
to the Communication System.
j. "Service Area" means the present municipal boundaries of the City, and
shall include any additions thereto by annexation or other legal means.
Section 2. 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 acquire, construct, operate, maintain, replace, use,
install, remove, repair, reconstruct, inspect, sell, lease, transfer or to otherwise utilize in any
lawful manner, all necessary equipment and Facilities thereto for the Franchisee's
Communication System, and to provide Communication Service to persons located within the.
City.
Section 3. Construction Permits Required.
A. Prior to site - specific location and installation of any portion of its communication
Facilities within a Public Way, the Franchisee shall apply for and obtain a Construction Permit
pursuant to ECDC Chapter 18.60. In addition to any criteria set forth in ECDC Chapter 18.60,
the Development Services Director shall apply the following criteria in the issuance or denial of
a Construction Permit application:
1. Whether the Franchisee has received all requisite licenses, certificates, and
authorizations from applicable federal, state, and local agencies with
jurisdiction over the activities proposed by the Franchisee;
2. Whether there is sufficient capacity in the Public Way to accommodate
the Franchisee's proposed Facilities;
3. The capacity of the Public Ways to accommodate additional utility, cable,
and telecommunications Facilities if the Construction Permit is granted;
4. The damage or disruption, if any, of public or private Facilities,
improvements, service, travel or landscaping if the Construction Permit is
granted;
5. The public interest in minimizing the cost and disruption of construction
within the Public Ways; and
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6. The availability of alternate routes and/or locations for the proposed
Facilities.
B. Unless otherwise provided in said Permit, the Franchisee shall give the City at
least 48 hours notice of the Franchisee's intent to commence work in the Public Ways. The
Franchisee shall file plans or maps with the City showing the. proposed location of its
communication Facilities and 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 Way
without said Permit, except as otherwise provided in this Franchise.
Section 4 Grant Limited to Occupation. Nothing contained herein shall be construed to
grant or convey any right, title, or interest in the Public Ways of the City to the Franchisee, nor
shall anything contained herein constitute a warranty of title.
Section 5. Term of Franchise. The first term of this Franchise shall be for a period of
five (5) years from the date of acceptance as set forth in Section 32, unless sooner terminated.
This Franchise shall automatically renew for two (2) additional five (5) year terms. Provided,
however, that either party may notify the other of its desire to renegotiate any of the terms set
forth herein or of its desire to add to or delete any such terms not later than 180 days prior to
expiration of the initial term hereof or any subsequent renewal terms. If either party makes such
a request, this Franchise shall not renew unless and until the City and Franchisee reach
agreement on said modification, addition, and/or deletion, and said agreement is approved by
ordinance of the City Council. In the event that agreement cannot be reached, this Franchise
shall terminate at the end of the then current term. Nothing in this Section prevents the parties
from reaching agreement on renewal earlier than the time periods indicated.
Section 6. 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 Public Ways of the City. However, the City
shall not permit any such future franchisee to physically interfere with the Franchisee's
communication Facilities. In the event that such physical interference or disruption occurs, the
Development Services Director may assist the Franchisee and such subsequent franchisee in
resolving the dispute. Further, this Franchise shall in no way prevent or prohibit the City from
using any of its Public Ways 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 the same as the City may deem fit, including the
dedication, establishment, maintenance, and improvement of all new Public Ways, all in
compliance with this Franchise.
Section 7 Relocation of Communication System.
A. The Franchisee agrees and covenants, at its sole cost and expense, to protect, .
support, temporarily disconnect, relocate, or remove from any Public Way any portion of its
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communication Facilities when so required by the Development Services Director by reason of
traffic conditions, public safety, dedications of new Public Ways and the establishment and
improvement thereof, widening and improvement of existing Public Ways, 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 cases have the privilege to temporarily bypass, in the
authorized portion of the same public way upon approval by the Development Services Director,
any section of cable or any other facility required to be temporarily disconnected or removed.
Upon the reasonable request of the Development Services Director 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 reasonably determined necessary by the City, to excavate
and expose portions of its communication 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 it's Facilities unless the Franchisee's as -built plans and maps of
it's Facilities submitted pursuant to Section 9 of this Franchise are reasonably determined by the
Development Services Director to be inadequate for purposes of this paragraph. The decision to
relocate said Facilities in order to accommodate the City's improvements shall be made by the
Development Services Director upon review of the location and construction of the Franchisee's
Facilities.
If the Development Services Director determines that the project necessitates the
relocation of the Franchisee's then existing Facilities, the City shall:
1. Within a reasonable time, which shall be no less than 30 days, prior to the
commencement of such improvement project, provide the Franchisee with written
notice requiring such relocation. Provided, however, that in the event an
emergency posing a threat to public safety, health 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; and
2. Provide the Franchisee with copies of information for such improvement project
and a proposed location for the Franchisee's Facilities so that the Franchisee may
relocate its Facilities in other Public Ways in order to accommodate such
improvement project.
3. 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. In the event of an emergency as described herein,
the Franchisee shall relocate its Facilities within the time period specified by the
Development Services Director.
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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 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.
B. 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 the City or circumstances beyond the control of the Franchisee.
Section 8. Undergrounding of Facilities. Consistent with ECDC Chapter 18.05, all of
Franchisee's facilities shall be placed under- ground.
Section 9. The Franchisee's Maps and Records. After construction is complete, the
Franchisee shall provide the City with accurate copies of all as -built plans and maps in a form
and content prescribed by the Development Services Director. These plans and maps shall be
provided at no cost to the City, and shall include hard copies and digital copies in a format
specified by the Development Services Director.
Section 10. Work in Public Ways. 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 Ways 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. The Franchisee shall at all times
post and maintain proper barricades and comply with all applicable safety regulations during
such period of construction as required by the ordinances of the City or the laws of the state of
Washington, including RCW 39.04.180 for the construction of trench safety systems.
During the progress of the work, the Franchisee shall not unnecessarily obstruct the
passage or proper use of the Public Ways, and all work by the Franchisee in any area covered by
this Franchise and as described in this Section shall be preformed in accordance with City of
Edmonds Public Works Construction Standards and warranted for a period of one year.
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If either the City or the Franchisee shall at any time after installation of the Facilities plan
to make excavations in area covered by this Franchise and as described in this Section, the party
planning such excavation shall afford the other, upon receipt of written request to do so, an
opportunity to share such an excavation. PROVIDED THAT:
A. Such joint use shall not unreasonably delay the work of the party causing the
excavation to be made or unreasonably increase its costs;
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 or if their respective uses of
the trench are incompatible.
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
users the opportunity to share the Franchisee's excavations.
Section 11. Restoration after Construction. The Franchisee shall, after installation,
construction, relocation, maintenance, removal, or repair of its communication Facilities within
the Public Ways, restore the surface of said Public Ways and any other City-owned property that
may be disturbed by the work, to at least the same condition the Public Way or City -owned
property was in immediately prior to any such installation, construction, relocation, maintenance,
or repair, reasonable wear and tear excepted. The Public Works Department shall have final
approval of the condition of such Public Ways and City -owned property after restoration, all in
accordance with the Edmonds Municipal Code and Public Works Construction standards. 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
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
Public Ways or other affected area at its sole cost and expense according to the time and terms
specified in the Construction Permit issued by the City all in accordance with the applicable
provisions of the Edmonds Municipal Code, as the same now exists or as it may hereafter be
amended or superseded. All work and restoration by the Franchisee pursuant to this Section
shall be performed in accord with City of Edmonds Public Works Construction standards and
warranted for a period of one year.
Section 12. Emergency Work — Permit Waiver. In the event of any emergency in which
any of the Franchisee's communication Facilities located in, above, or under any Public Way
break, are damaged, 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
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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 after the emergency work. The Franchisee shall
notify the City by telephone immediately upon learning of the emergency and shall apply for all
required permits not later than the second succeeding day during which the Edmonds City Hall is
open for business.
Section 13. Dangerous Conditions, Authority for City to Abate. Whenever construction,
installation, or excavation of the communication Facilities authorized by this Franchise has
caused or contributed to a condition that appears to substantially impair the lateral support of the
adjoining Public Way, street, or public place, or endangers the public, street utilities, or City -
owned property, the Development Services Director may reasonably require the Franchisee, at
the Franchisee's own expense, to take action to protect the public, adjacent public places, City -
owned property, streets, utilities, and Public Ways. Such action may include compliance within
a prescribed time.
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, utilities, Public Ways, to maintain the lateral
support thereof, or actions regarded as necessary safety precautions; and the Franchisee shall be
liable to the City for the reasonable costs thereof.
Section 14. Recovery of Costs. The Franchisee shall 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 Franchisee shall reimburse the City
directly for any and all reasonable costs, after receipt of an itemized bill.
, In addition to the above, the Franchisee shall promptly reimburse the City for any and all
reasonable costs the City incurs in response to any emergency involving the Franchisee's
communication Facilities, after receipt of an itemized bill.
The time of City employees shall be charged at their respective rate of salary, including
overtime if applicable, plus benefits and, a reasonable overhead. All billings will be itemized as
to specifically identify the costs and expenses for each project for which the City claims
reimbursement. The billing may be on an annual basis, but the City shall provide the Franchise
with the City's itemization of costs at the conclusion of each project for information purposes.
Section 15. Consideration. Pursuant to RCW 35.21.860, the City is precluded from
imposing a fee on a "telephone business" as defined in RCW 82.04.065, except for administrative
expenses or any applicable tax authorized by RCW 35.21.865. This Franchise is premised upon the
City and Franchisee's understanding that the activities proposed by the Franchisee constitute a
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"telephone business." As such, the rights granted under this Franchise are not conditioned upon
payment of compensation in addition to reimbursement for administrative costs as set forth in
Section 14 herein, payment of the grant fee set forth in Section 16, and payment of any applicable
local utility tax applicable to Franchisee's operations. The City hereby reserves its right to impose a
fee on the Franchisee, to the extent authorized by law, for purposes other than to recover its
administrative expenses, if the Franchisee's operations are not those of a "telephone business" as
defined in RCW 82.04.065, if the Franchisee's operations are now those of a telephone business and
change in the future, or if statutory prohibitions on the imposition of such fees are removed. The
City also reserves its right to require that the Franchisee obtain a separate,agreement for its change
in use, which agreement may include provisions intended to regulate the Franchisee's operations, as
allowed under applicable law. Franchisee reserves its right to contest: (i) Any and all fee(s)
imposed by the City on Franchisee and, (ii) any separate agreement(s) the City requires Franchisee
to obtain.
Section 16. Grant Fee. As additional consideration for the right and privileges granted
hereunder, the Franchisee agrees to pay, at the time of acceptance of this Franchise, a one -time
grant fee of One Thousand Dollars ($1,000.00) to defray the City's legal and administrative costs
and expenses associated with negotiating and approving this Franchise, provided that such
expenses shall not be included in the reimbursement provisions set forth in Section 14 of this
Franchise.
Section 17. Indemnification and Waiver.
A. 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, judgements, awards or liability to any person arising from injury, sickness,
or death of any person or damage to property:
1. For which the negligent acts or omissions of Franchisee, its agents,
servants, officers or. employees in performing the activities authorized by
this Franchise are the proximate cause;
2. By virtue of the Franchisee's exercise of the rights granted herein;
3. By virtue of the City permitting Franchisee use of the City's Public Ways
or other public property;
4. Based on 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 Public Ways 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;
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5. 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 upon the Public Ways, in any Public Way, or other
public place in performance of work or services permitted under this
Franchise.
B. The provisions of Subsection A of this Section shall apply to claims by
Franchisee's own employees and the employees of the Franchisee's agents, representatives,
contractors, and subcontractors to which Franchisee might otherwise be immune under Title 51
RCW. This waiver of immunity under Title 51 RCW has been mutually negotiated by the
parties hereto, and Franchisee acknowledges that the City would not enter into this Franchise
without Franchisee's waiver thereof.
C. 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. Provided that Franchisee has been given prompt written notice by
the City of any such claim, said indemnification obligations shall extend to claims which are not
reduced to a suit and any claims which may be compromised with Franchisee's consent prior to
the culmination of any litigation or the institution of any litigation. The City 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, provided that Franchisee shall not be liable
for such settlement or other compromise unless it has consented thereto.
D. In the event that Franchisee refuses the tender of defense in any suit or any claim,
said tender having been made pursuant to this Section, and said refusal is subsequently
determined by a court having jurisdiction (or such other tribunal that the parties shall agree to the
matter), to have been a wrongful refusal on the part of the Franchisee, then Franchisee shall pay
all of the City's costs for defense of the action, including all reasonable expert witness fees,
reasonable attorney's fees, the reasonable costs of the City, and reasonable fees of recovering
under this Subsection.
E. The obligations of Franchisee under the indemnification provisions of this Section
shall apply regardless of whether liability for damages arising out of bodily injury to persons or
damages to property were caused or contributed to by the City, its officers, agents, employees or
contractors except to the extent that such claims, actions, damages, costs, expenses, and attorneys
fees were caused by the sole negligence or any willful, malicious, or criminal act on the part of
the City, its officers, agents, employees or contractors. In the event that a court of competent
jurisdiction determines that this Franchise is subject to the provisions 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.
F. Notwithstanding any other provisions of this Section, Franchisee assumes the risk
of damage to its communication Facilities located in the Public Ways and upon City -owned
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property from such 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
sole negligence or any willful, malicious, or criminal act on the part of the City, its officers,
agents, employees or contractors. Franchisee releases and waives any and all such claims against
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
Facilities as the result of any interruption of service due to damage or destruction of Franchisee's
Facilities caused by or arising out of activities conducted by the City, its officers, agents,
employees or contractors, except to the extent any such damage or destruction is caused by or
arises from the sole negligence or any willful or malicious actions on the part of the City, its
officers, agents, employees or contractors.
Section 18. Insurance. The Franchisee shall procure and maintain 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 to the City, for its inspection, an
insurance certificate naming the City as an additional insured as its respective interests may
appear prior to the commencement of any work or installation of any Facilities pursuant to this
Franchise. Such insurance certificate shall evidence:
A. Comprehensive general liability insurance, written on an occurrence basis,
including contractual liability coverage, with limits, inclusive of umbrella or excess liability
coverage, not less than:
(1) $3,000,000.00 for bodily injury or death to each person; and
(2) $3,000,000.00 for property damage resulting from any one
accident.
B. Automobile liability for owned, non -owned and hired vehicles with a limit,
inclusive of umbrella or excess liability coverage, of $3,000,000.00 for each person and
$3,000,000.00 for each accident.
C. Worker's compensation within statutory limits and employer's liability insurance
with limits, inclusive of umbrella or excess liability coverages, of not less than $1,000,000.00.
The liability insurance policies required by this Section shall be maintained by the
Franchisee throughout the term of this Franchise, and such other period of time during which the
Franchisee is operating without a Franchise hereunder, or is engaged in the removal of its
Communication System. Payment of deductibles and self - insured retentions shall be the sole
responsibility of the Franchisee. The insurance certificate required by this Section shall contain
a clause stating 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. The
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Franchisee's insurance shall be primary insurance with respect to the City. Any insurance
maintained by the City, its officers, officials, employees, consultants, agents, and volunteers shall
be in excess of the Franchisee's insurance and shall not contribute with it.
In addition to the coverage requirements set forth in this Section, the insurance certificate
required by this Section shall contain language which provides that the policy may not be
cancelled, reduced in coverage, nor the intention not to renew be stated until at least 30 days
after receipt by the City of written notice of the same via U.S. mail. Within 15 days after receipt
by the City of said notice, and in no event later than 5 days prior to said cancellation or non -
renewal, the Franchisee shall obtain and furnish to the City replacement insurance certificate(s)
meeting the requirements of this Section
Section 19. Abandonment and Removal of the Franchisee's Communication Facilities.
Upon the expiration, termination, or revocation of the rights granted under this Franchise, the
Franchisee shall remove all of its communications Facilities from the Public Ways of the City
within 90 days of receiving notice from the Development Services Director. Provided, however,
that the City may permit the Franchisee's improvements to be abandoned in place in such a
manner as the City may prescribe. Upon permanent abandonment, and Franchisee's agreement
to transfer ownership of the communication Facilities to the City, the Franchisee shall submit to
the City a proposal and instruments for transferring ownership to the City. Any such Facilities
which are not permitted to be abandoned in place which are not removed within ninety (90) days
of receipt of said notice shall automatically become the property of the City. Provided, however,
that nothing contained within this Section shall prevent the City from compelling the Franchisee
to remove any such Facilities through judicial action when the City has not permitted the
Franchisee to abandon said Facilities in place.
Section 20. Construction Bond. Before undertaking any of the work, installation,
improvements, construction, repair, relocation or maintenance authorized by this Franchise, other
than installation of fiber optic cable within existing conduits where such placement does not
involve cutting or otherwise disrupting the surface of Public Ways, the Franchisee shall furnish a
street repair or sidewalk bond written by a corporate surety acceptable to the City equal to at
least 125% of the estimated cost of restoring the Public Ways of the City to the pre - construction
condition required by Section 11 of this Franchise. Said bond shall be required to remain in full
force until 60 days after completion of the construction of Grantee's communication Facilities
and other improvements from the Public Ways of the City, and said bond, or separate bond
acceptable to the City, shall warrant all such restoration work for a period of one year. In the
event that a bond issued to meet the requirements of this Section is canceled by the surety, after
proper notice and pursuant to the terms of said bond, Franchisee shall, prior to expiration of said
bond, be responsible for obtaining a replacement bond which complies with the terms of this
Section.
Section 21. Modification. The City and the Franchisee hereby reserve the right to alter,
amend or modify the terms and conditions of this Franchise upon the written agreement of both
{ RJM413585. DOC;3 /00006.080000/900000 }
Metromedia Franchise 12
parties to such alteration, amendment or modification. Said modifications shall be approved by
the City by ordinance and accepted by the Franchisee consistent with Section 32 hereof.
Section 22. 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 with any notice given the Franchisee by the City under
the provisions of this Franchise, then the Franchisee shall, at the election of the City Council,
forfeit all rights conferred hereunder and this Franchise may be revoked, terminated or annulled
by the City Council after a hearing held upon reasonable written notice to Franchisee. The City
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 prejudice 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
reasonable and documented damages and costs incurred by the , City by reason of the
Franchisee's failure to comply.
Section 23. 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
locations, elevation, manner or construction and maintenance of any 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 the law.
Section 24. Survival. All of the provisions, conditions, and requirements 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. The provisions, conditions, and
requirements of Sections 7, Relocation of Communication System; 8, Undergrounding of
Facilities: 10, Work in Public Ways; 11, Restoration after Construction; 13, Dangerous
Conditions. Authority for City to Abate; 17, Indemnification and Waiver; 18, Insurance: and 19,
Abandonment and Removal of the Franchisee's Communication Facilities, shall survive the
expiration or termination of this Franchise, and any renewals or extensions thereof and remain
effective until such time as the Franchisee removes its communication Facilities from the Public
Ways, transfers ownership of said Facilities to a third party, or abandons said System in place, all
as provided herein. 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. Severability. In any section, sentence, clause, or phrase of this Franchise
should be held to 'be invalid or unconstitutional by a court of competent jurisdiction, such
{ RJM413585 .DOC;3/00006.080000/9000001
Metromedia Franchise 13
invalidity or unconstitutionality shall not affect the validity or constitutionality of any other
section, sentence, clause, or phrase of this Franchise.
Section 26. 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 that the Franchisee may freely assign this Franchise in whole or 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.
Franchisee may, without the prior written consent of the City: (i) Lease the Facilities, or
any portion thereof, to another; (ii) grant an Indefeasible Right of User Interest in the Facilities,
or any portion thereof, to another; or (iii) offer or provide capacity or bandwidth in its Facilities
to another, PROVIDED THAT: Franchisee at all times retains exclusive control over such
Facilities and remains responsible for locating, servicing, repairing, relocating or removing its
Facilities pursuant to the terms and conditions of this Franchise.
Section 27. Notice. Any notice or information required or permitted to be given to the
parties under this Franchise may be sent to the following addresses unless otherwise specified:
City:
City of Edmonds
Development Services Director
1215 th Avenue North
Edmonds, WA 98020
771 -0220
Fax: (425) 771 -0221
Franchisee:
Metromedia Fiber Network Services, Inc.
V.P. Legal Affairs
One North Lexington Ave.
White Plains, N.Y. 10601Telephone: (425)
Telephone: (201) 531 -8000
Notice shall be deemed given upon receipt in the case of personal delivery, three days after
deposit in the United States Mail in the case of regular mail, or the next day in the case of
overnight delivery.
Section 28. 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 approval and
acceptance of this Franchise.
Section 29. Attorney's Fees. If any suit or other action is instituted in connection with
any controversy arising under this Franchise, the prevailing party shall be entitled to recover all
of its costs and expenses including such sum as the court may judge reasonable for attorney's
fees, including fees upon appeal of any judgement or ruling.
{ RJM413585 .DOC;3/00006.080000/900000}
Metromedia Franchise 14
Section 30. Non - waiver. Failure of the City to declare any such breach or default
immediately upon the occurrence thereof, or delay in taking any action in connection therewith,
shall not waive such breach or default, but the City shall have the right to declare any such
breach or default at any time. Failure of the City to declare one breach or default does not act as
a waiver of the City's right to declare another breach or default.
Section 31. Governing Law/Venue. This Franchise shall be governed by and construed
in accordance with the laws of the state of Washington. The venue and jurisdiction over any
dispute related to this Franchise shall be with the Snohomish County Superior Court.
Section 32. Acceptance. This Franchise shall be accepted by Franchisee by its filing
with the City Clerk an unconditional written acceptance thereof.
Section 33. 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 the passage and publication of an approved summary thereof consisting of the title.
CITY OF DMONDS
MAYOR, G Y HAAKENSEN
ATTEST /AUTHENTICATED:
CITY CLERK SANDRA S. CHASE
APPROVED AS TO ROM:
OFFICE OF H ITY Y:
By:
W. SCOTT SNYDER
FILED WITH THE CITY CLERK: 01/28/2000
PASSED BY THE CITY COUNCIL: 02/01/2000
PUBLISHED: 02/09/2000
EFFECTIVE DATE: 02/14/2000
ORDINANCE NO.: 3295
{ RJM413585. DOC;3/00006.080000/900000 }
Metromedia Franchise 15
SUMMARY ORDINANCE NO. 3295
of the City of Edmonds, Washington
On the 1 st day of February, 2000, the City Council of the City of Edmonds, passed
Ordinance No. 3295. 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
METROMEDIA FIBER NETWORK SERVICES, INC., A NON - EXCLUSIVE FRANCHISE
TO INSTALL, OPERATE, AND MAINTAIN A MULTIPLE CONDUIT FIBER OPTIC
TELECOMMUNICATIONS SYSTEM IN, ON, OVER, UPON, ALONG, AND ACROSS THE
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 2 °a day of February, 2000.
City Clerk, Sandra S. Chase
{ RJM413585 .DOC;3/00006.080000/900000 }
Metromedia Franchise 16
STATE OF WASHINGTON,
COUNTY OF SNOHO1rLISH, )}
s -2 -1
M
Affidavit of Publication
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.... ...............
Ordinance No. 3295
................................................................................ ...............................
City of Edmonds
........................................................................................... ...............................
............................................... ............................... ................ ...............................
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:
February 9, 2000
........................ ...............................
...............
a d th t saidewspaper w egularl distrib ted to its subscribers
all of said nerind
.... ...............................
Principal Clerk
Subscribed and sworn to before me this ........... 9th
Februa y .. 00
a of........ 20.........
Notary Public in and for ` to , Lo f>ishingto
residing at Everett, Sno un+� goo
M
:0 NOTARY
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710. legal Notices
leaning entitle the City and the t-rancnisee to the use thereof for
ie purposes of Installing or transmitting the Franchisee's
iommumcation Service over wires, cable, conductors, amplifiers,
ppliances, attachments, and other property as may a ordinarily
ecessary and pertinent to the Communication System.
j. "Service Area" means the present municipal boundaries of
to City, and shall include any additions thereto by annexation or
ther legal means.
Wi nn�2. Authority Granted. The City hereby grants to the
nc ih "see, its heirs, successors, legal representatives, and
igns, subject to the terms and conditions hereinafter set forth, the
t, privilege, and authority to acquire, construct, operate,
ntam, replace, use, install, remove, repair, reconstruct, inspect,
lease, transfer or to otherwise utilize in any lawful manner, all
essary equipment and Facilities thereto for the Franchisee's
nmur 41ion System, and to provide Communication Service to
ions located within the City.
tec ion 3. Qonstruction Permits Required.
nor o si e�pecii c Tocation an installation of any portion
s communication Facilities within a Public Way, the Franchisee
I apply for and obtain a Construction Permit pursuant to ECDC
pter 18.60. In addition to any criteria set forth in ECDC Chapter
A, the Development Services Director shall apply the following
aria in the issuance or denial of a Construction Permit
lication-
1. Whether the Franchisee has received all requisite
licenses, certificates, and authorizations from applicable
federal, state, and local agencies with jurisdiction over
the activities proposed by the Franchisee;
2. Whether there Is sufficient capacity in the Public Way to
accommodate the Franchisee's proposed Facilities;
3. The capacity of the Public Ways to accommodate
additional utility, cable, and telecommunications
Facilities if the Construction Permit is granted;
• 4. The damage or disruption, if any, of public or private
Facilities, improvements, service, travel or landscaping if
the Construction Permit is granted-,
5. The public interest in minimumg the cost and disruption
of construction within the Public Ways; and
6. The availability of alternate routes and /or locations for
the proposed Facilities.
1. Unless otherwise provided in said Permit, the Franchisee
01 give the City at least 48 hours notice of the Franchisee's intent
lommence work in the Public Ways. The Franchisee shall file
ps or maps with the City showing the pr osed location of its
pmunication Facilities and pay alt duly established permit and
Section fees associated with the processing of the permit. In no
p shall any work commence within any Public Way without said
JI be construed to grant or cone any night, tine, or Interest in
'Public Ways of the City to the ranchisee, nor shall anything
tained herein constitute a warranty of title.
Ior i n�5. Term of Fr nchis . The first term of this Franchise shall
orf a pert o ( years from the date of acceptance as set
h in Section 32, unless sooner terminated. This Franchise shall
omatically renew for two (2) additional five (5) year terms.
,vided, however, that either party may notify the other of its desire
enegotiate any of the terms set forth herein or of its desire to add
or delete any such terms not later than 180 days prior to
iration of the initial term hereof or any subsequent renewal
ins. If either party makes such a request, this Franchise shall not
ew, unless and until the City and Franchisee reach agreement on
J modification, addition, and/or deletion, and said agreement is
)roved by ordinance of the City Council. In the event that
eement cannot be reached, this Franchise shall terminate at the
) of the then current term. Nothing in this Section prevents the
ties from reaching agreement on renewal earlier than the time
cods indicated.
iection 6. Non-Exclusive Grant. This Franchise shall not in any
nner prevent me City from entering into other similar agreements
granting other or further franchises in, under, on, across, over,
)ugh, along or below any of said Public Ways of the City.
Never, the City shall not permit any such future franchisee to
sicaliy interfere with the Franchisee's communication Facilities.
he event that such physical interference or disruption occurs, the
relopment Services Director may assist the Franchisee and such
'Sequent franchisee in resolving the dispute. Further, this
nchise shall in noway prevent or prohibit the City from using any
is Public Ways or affect its jurisdiction over them or any part of
M, and the City shall retain power to make all necessary
urges, relocations, repairs, maintenance, establishment,
irovement, dedication of the same as the City may deem fit,
uding the dedication, establishment, maintenance, and
'rovement of all new Public Ways, all in compliance with this
nchise.
; ection 7. Relocation of Communication Svsiem.
i ihe Franchisee agrees an covenants, at its sole cost and
'ense, to protect, support, temporarily disconnect, relocate, or
love from any Public Way any portion Of Its communication
;ilities when so required by the Development Services Director by
son of traffic conditions, public safety, dedications of new Public
ys and the establishment and improvement thereof, widening
1 improvement of existing Public Ways, street vacations, freeway
istruction, change or establishment of street grade, or the
istruction of any public improvement or structure by any
,ernmental agency acting in a governmental capacity; provided
I the Franchisee shall in all cases have the privilege to
1porarily bypass, in the authorized portion of the same public way
>n approval by the Development Services Director, any section of
'le or any other facility required to be temporarily disconnected or
loved.
)Pon the reasonable request of the Development Services
ector and in order to facilitate the design of City street and right -
vay improvements, the Franchisee agrees to, at its sole cost and
'ense, locate, and if reasonably determined necessary by the
/, to excavate and expose portions of its communication Facilities
tinspection so that the location of same may be taken into
Aunt in the improvement design, PROVIDED that, Franchisee
ill not be required to excavate and expose it's Facilities unless
Franchisee's as -built plans and maps of it's Facilities submitted
suant to Section 9 of this Franchise are reasonably determined
the Development Services Director to be inadequate for
poses of this paragraph. The decision to relocate said Facilities
)rder to accommodate the City's improvements shall be made by
Development Services Director upon review of the location and
istruction of the Franchisee's Facilities.
f the Development Services Director determines that the project
;essitates the relocation of the Franchisee's then existing
;ilities, the City shall: -
710. legal Notices
after the emergency work. The Franchisee shall notify the
telephone immediately upon learning of the emergency and
oply for all required permits not later than the second
ling day during which the Edmonds City Hall Is open for
communication Facilities authorized by this Franchise has caused or
contributed to a condition that appears to substantially impair the
lateral support of the adjoining Public Way, street, or public place,
or endangers the public, street utilities, or City -owned property, the
Development Services Director may reasonably require the
Franchisee, at the Franchisee's own expense, to take action to
protect the public, adjacent public places, City -owned property
streets, utilities, and Public Ways. Such action may include
compliance within a prescribed time.
In the event that the Franchisee fails or refuses to promptly take
the actions directed by the City, or falls 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, utilities,
Public Ways, to maintain the lateral support thereof, or actions
regarded as necessary safety precautions; and the Franchisee shall
be liable to the City for the reasonable costs thereof.
Section 14. R over of Costs. The Franchisee shall be subject to
al pet rmit %es 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 Franchisee shah reimburse the
City directly for any and all reasonable costs, after receipt of an
itemized bill.
In addition to the above, the Franchisee shall promptly reimburse
the City for any and all reasonable costs the City incurs in response
to any emergency involving the Franchisee's communication
Facilities, after receipt of an itemized bill.
The time of City employees shall be charged at their respective
rate of salary, including overtime if applicable, plus benefits and a
reasonable overhead. All billings will be itemized as to specifically
identify the costs and expenses for each project for which the City
claims reimbursement. The billing may be on an annual basis, but
the City shall provide the Franchise with the City's itemization of
costs at the conclusion of each project for information purposes.
She tion�l5. Consideration. Pursuant to RCW 35.21.860, the City
is precluded from imposing a fee on a 'telephone business" as
defined in RCW 82.04.065, except for administrative expenses or
any applicable tax authorized by RCW 35.21.865. This Franchise is
premised upon the City and Franchisee's understanding that the
activities proposed by the Franchisee constitute a 'telephone
business." As such, the rights granted under this Franchise are not
conditioned upon payment of compensation in addition to
reimbursement for administrative costs as set forth in Section 14
herein, payment of the grant fee set forth in Section 16, and
payment of any applicable local utility tax applicable to Franchisee's
o eratrons. The City hereby reserves its right to impose a fee on the
Franchisee, to the extent authorized by law, for purposes other than
to recover Its administrative expenses, if the Franchlsee's
operations are not those of a 'telephone business" as defined in
RCW 82.04.065, if the Franchisee's operations are now those of a
telephone business and change in the future, or if statutory
prohibitions on the imposition of such fees are removed. The City
also reserves its right to require that the Franchisee obtain a
separate agreement for its change in use, which agreement may
include provisions intended to regulate the Franchisee's operations,
as allowed under applicable law. Franchisee reserves its right to
contest: (i) Any and all feels) im osed by the City on Franchisee
and,. (ii) any separate agreements) the City requires Franchisee to
As additional consideration for the right
eunder, the Franchisee agrees to pay, at
this Franchise, a one -time grant fee of
1,000.00) to defray the City's legal and
xpenses associated with negotiating and
xovided that such expenses shall not be
nent provisions set forth in Section 14 of
rant isee hereby re eases, covenants not to bring suit and
agrees to indemnity, defend and hold harmless the City, its officers,
employees, agents and representatives from any and all claimsm ,
costs, judgements, awards or liability to any person arising fro
injury, sickness, or death of any person or damage to property:
1. For which the negligent acts or omissions of Franchisee,
its agents, servants, officers or employees in performing
the activities authorized by this Franchise are the
cause;
of the Franchisee's exercise of the rights
3. §y virtue of the City permitting Franchisee use of the
City's Public Ways or other public property;
4. Based on 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 Public Ways 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%
5. 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 ant excavation,
construction, or work upon the Public Ways, in any
Public Way, or other public place in performance of work
or services permitted under this Franchise.
B. The provisions of Subsection A of this Section shall apply to
claims by Franchisee's own employees and the employees of the
Franchisee's agents, representatives, contractors, and
subcontractors to which Franchisee might otherwise be immune
under Title 51 RCW. This waiver of immunity under Title 51 RCW
has been mutually negotiated by the parties hereto. and Franchisee
acknowledges that the City would not enter into this Franchise
710. legal Notices
>dificati n_. The City and the Franchisee hereby
o a
ter, amend or modify the terms and conditions
ipon the written agreement of both parties to such
ment or modification. Said modifications shall be
'ily by ordinance and accepted by the Franchisee
ction 32 hereof.
Section 22. Forfeiture and Revocation. If the Franchisee willfully I
violates fails to comp y with any o the material provisions of this
Franchise, or through willful misconduct or gross negligence fails to
heed or comply with any notice given the Franchisee by the City
under the provisions of this Franchise, then the Franchisee shall, at
the election of the City Council, forfeit all rights conferred hereunder
and this Franchise may b re v oked, terminated or annulled by the
City Council after a hearing held upon reasonable written notice to
Franchisee. The City 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
prejudice 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 reasonable and documented damages and costs incurred
by the City by reason of the Franchisee's failure to comply.
Section 23. CQfty Ordinances and R29ulatiQns . Nothing herein
snail be aeemea to direct or restrict me 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
locations, elevation, manner or construction and maintenance of any
Facilities by the franchisee, and the Franchisee shall promptly
conform with all such regulations, unless compliance wou cause
the Franchisee to violate other requirements of the law.
Section 24. Survival. All of the provisions, conditions, and
regwremenTs of ilk's 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. the provisions,
conditions, and requirements of Sections 7, Relocation ofi
or termination of this Franchise, an any renewals or extensions
thereof and remain effective until such lime as the Franchisee
removes its communication Facilities from the Public Ways,
transfers ownership of said Facilities to a third party, or abandons{
said System in pplace, all as provided herein. 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 I
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.
action 25. v rabilit . In any section, sentence, clause, or
phrase o is rant ise should be held to be invalid or
unconstitutional by a court of competent jurisdiction, such invalidity
or unconstitutionality shall not affect the validity or constitutionality'
of any other section, sentence, clause, or phrase of this Franchise.
Section 26. Assignment. This agreement may not be assigned or
trans erre wit ouh t the written approval of the City, which approval',
shall not be unreasonably withheld or delayed, except that the
Franchisee may freely assign this Franchise In whole or 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 ass'gnment.
Franchisee may, without the prior written consent of the City: (i)
Lease the Facilities, or any portion thereof, to another; (ii) grant an
Indefeasible Right of User Interest In the Facilities, or any portion
thereof, to another; or (iii offer or PProvide capacity or bandwidth in
its Facilities to another, ROVIDED THAT: Franchisee at all times
retains exclusive control over such Facilities and remains
responsible for locating, servicing, repairing, relocating or, removing
its Facilities pursuant to the terms and conditions of this Franchise.
Section 27. No, lice. Any notice or information required or
permitt to a given to the parties under this Franchise may be
sent to the following addresses unless otherwise specified:
Cc t : Franchise
ity of Edmonds etrom is Fiber Network
Services, Inc.
Development Services Director V.P. Legal Affairs
121 5th Avenue North One North Lexington Ave.
Edmonds, WA 98020 White Plains, N.Y. 10601
Telephone: (425) 771 -0220 Telephone: (201) 531 -8000
Fax: (425) 771 -0221
Notice shall be deemed given upon receipt in the case of personal
delivery, three days after deposit in the United States Mail in the
case of regular mail, or the next day in the case of overnight
delivery.
Section 28. Entire Franchise. This Franchise constitutes the entire
un erstan ing an agreement etween the parties as to the subject
matter herein and no other agreements or understandings, written or
otherwise, shall be binding upon the parties upon approval and
acceptance of this Franchise.
S_ lion 29. AAttRmme 'ss Fees. If any suit or other action is instituted
in connection wit a' h nY controversy arising under this Franchise, the
prevailing party shall be entitled to recover all of its costs and
expenses including such sum as the court may judge reasonable for
attorney's fees, including fees upon appeal of any judgement or
ruling.
Section 30. Non - waiver. Failure of the City to declare any such
breac of _r tau t imm lately upon the occurrence thereof, or delay
in taking any action in connection therewith, shall not waive such
(breach or default, but the City shall have the right to declare any
such breach or default at any time. Failure of the City to declare one
without Franchisee's waiver thereof. breach or default does not act as a waiver of the City's right to
declare another breach or default.
C. Inspection or acceptance by the City of any work performed Section 31. Governin LawNenue. This Franchise shall be
by the Franchisee at the time of completion of construction shall not govern y an�nstrue in actor once with the laws of the state
be grounds for avoidance of any of these covenants of of ris i tin ver an dispute related
indemnification. Provided that Franchisee has been given pprompt to Vs0')�1$eZ ��y &.,9 9� --X
written notice by the City of any such claim, said indemnI IcationIC JO 6ulxees uo woo IDid 6uipengoanoyeisnyysipuosree(
obligations shall extend to claims which are not reduced to a suit' S83AI80 H3ft81 salon re4unoo speeu eio4,
and any claims which may be compromised with Franchisee's If 9ZSL-60V -099 d-V4 wdf.6 Wl'os oy puo iagwni 7ltrli
consent prior to the culmination of any litigation or the institution of, .out sio4ngli1slp 4uawa
an litigation. The City has the right to defend Or participate in theld Ilo3 i paliejerd peoua tlM 'PoomuuAt V s19 66 AN
defense of a0 such claim, and has the right to rove an I 'pedxg OI4Dwneud 'sionpoid OZ9LT 9999-L91-9ZV 'tq'i
entlic meM.r,r ii,er.,.,.,.,,,.,,�,iee .gninim �PPlddi.ina i Pueg A� 4sv^Ail lueweJ -V-4uaa ioilop nDAD sdiq