Ordinance 4093ORDINANCE NO. 4093
AN ORDINANCE OF THE CITY OF EDMONDS,
WASHINGTON, GRANTING TO MCIMETRO ACCESS
TRANSMISSION SERVICES CORP. D/B/A VERIZON ACCESS
TRANSMISSION SERVICES, A DELAWARE CORPORATION,
A NON-EXCLUSIVE FRANCHISE TO INSTALL, OPERATE,
AND MAINTAIN A 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,
ESTABLISHING AN EFFECTIVE DATE.
WHEREAS, MCImetro Access Transmission Services Corp. d/b/a Verizon Access
Transmission Services, has requested that the City grant it the right to install, operate, and maintain
a telecommunications system within the public ways of the City, which system shall not include
antennae and support structures except for pedestals and small GPS antennae; 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 MCImetro Access Transmission
Services Corp. d/b/a Verizon Access Transmission Services; and
WHEREAS, the City Council has the authority under state law 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.
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 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: (i) non -
switched, dedicated and private line, high capacity transmission services to firms,
businesses and institutions within the City; and (ii) internet access services to residents,
firms, businesses and 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. "Facilities" shall mean Franchisee's telecommunications system
constructed and operated within the City's Public Ways, and shall include all cables, wires,
conduits, ducts, pedestals, and any associated converter, equipment, or other facilities
within the City's Public Ways, designed and constructed for the purpose of providing
Communication Service, provided that facilities shall not include antennae and support
structures except for pedestals and small GPS antennae.
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 Ordinance, or a subsequently adopted Ordinance, which
authorizes construction and operation of the Franchisee's Facilities for the purpose of
offering Communication Service.
g. "Franchisee" means MCImetro Access Transmission Services Corp. d/b/a
Verizon Access Transmission Services, 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 Facilities. 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 the Service over the Facilities.
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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 utilize the Public Ways of the City for construction and
operation of the Franchisee's Facilities and 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 Franchisee's Facilities, and to provide
Communication Service.
Section 3. Construction Permits epuired.
A. Prior to site -specific location and installation of any portion of its 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 City Engineer shall
apply the following criteria in the issuance or denial of a Construction Permit application:
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 Ways to accommodate the
Franchisee's proposed Facilities;
3. The capacity of the Public Ways to accommodate additional utility, cable,
and Facilities if the Construction Permit is granted;
4. The damage or disruption, if any, of public or private Facilities, utilities,
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
6. The availability of alternate routes and/or locations for the proposed
Facilities.
B. Unless otherwise provided in said Permit and except for emergency repairs, 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 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 term of this Franchise shall be for a period of five (5)
years from the date of acceptance as set forth in Section 31 (Acceptance), unless sooner
terminated. This Franchise shall not renew unless and until the City and Franchisee reach
agreement on a renewal 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. If Franchisee requests renewal of this Franchise, then during the period
that the parties are conducting good faith discussions concerning renewal, this Franchise shall not
terminate in the event the term of this Franchise as set forth in this Section 5 expires, PROVIDED
THAT the request for renewal must occur prior to the expiration date to take advantage of this
continuation provision.
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 Facilities and
any such rights shall be granted pursuant to applicable law. In the event that such physical
interference or disruption occurs, the City Engineer 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 Facilities.
A. The Franchisee agrees and covenants, to protect, support, temporarily disconnect,
relocate, or remove from any Public Way any portion of its Facilities when so required by the City
Engineer 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 City Engineer, any section
of cable or any other facility required to be temporarily disconnected or removed.
B. Upon the reasonable request of the City Engineer 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 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
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it's Facilities unless the Franchisee's as -built plans and maps of its Facilities submitted pursuant
to Section 9 (Maps and Records) of this Franchise are reasonably determined by the City Engineer
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 City Engineer upon review of the
location and construction of the Franchisee's Facilities.
C. If the City Engineer determines that the project necessitates the relocation of the
Franchisee's then existing Facilities, the City shall:
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
City Engineer.
D. 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 are 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.
E. 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.
F. 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
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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 reasonable control of the Franchisee.
G. The cost and expenses associated with relocation of the Franchisee's Facilities shall
be the responsibility of the Franchisee unless the Franchisee had paid for the installation or
relocation cost of the same Facilities within the past five years. Notwithstanding any other
provision of this Ordinance, in the event of a conflict between this Ordinance and the provisions
of applicable state law, the provisions of the applicable state law shall control.
H. In the event that the City orders the Franchisee to relocate its Facilities for a project
which is primarily for private benefit, the private party or parties causing the need for such project
shall reimburse the Franchisee for the cost of relocation in the same proportion as their contribution
to the cost of the project. In the event of an unforeseen emergency that creates a threat to the
public safety, health, or welfare, the City may require the Franchisee to relocate its Facilities at its
own expense, any other portion of this Section notwithstanding.
Section 8. Undergrounding of Facilities. Consistent with ECDC Chapter 18.05, all of
Franchisee's facilities shall be placed underground.
Section 9. Maps and Records. After construction is complete, the Franchisee shall provide
the City with accurate copies of as -built plans and maps in a form and content prescribed by the
City Engineer. 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 City Engineer.
Section 10. Work in Public Ways.
A. 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.
B. 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 performed in accordance with City of
Edmonds Public Works Construction Standards and warranted for a period of one year.
C. The City may require the Franchisee in its construction, relocation, or placement of
ducts or conduits within the Public Ways to provide the City with additional ducts or conduits and
related structures necessary to access the same. The terms and conditions under which additional
ducts and/or conduits shall be provided shall be consistent with Section 070 (Relocation of
Communications System) of RCW Chapter 35.99.
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D. The Franchisee shall cooperate with the City and all other persons with authority
from the City to occupy and use the Public Ways of the City in coordination of construction
activities and joint trenching projects. By February I" of each calendar year, the Franchisee shall
provide the City with a schedule of its proposed construction activities for that calendar year in,
around, or that may affect the Public Ways of the City. The Franchisee shall also meet with the
City and other grantees, franchisees, permittees, and users of the Public Ways of the City annually,
or as determined by the City, to schedule and coordinate construction activities. The City Engineer
shall coordinate all construction locations, activities, and schedules to minimize public
inconvenience, disruption, or damage to the Public Ways of the City.
E. Consistent with RCW Chapter 35.99, the Franchisee may, on an annual basis, file
notice with the City Clerk and the City Engineer of its desire to receive notices related to public
improvement projects within the Public Ways of the City. In the event that the Franchisee is
mailed such a notice and fails to coordinate installation or construction of its Facilities with the
public improvement project, the City Engineer may deny the Franchisee's construction permit
application for those portions of any of the Franchisee's construction projects which seek to disrupt
the surface of any said street for a period of up to five years, as reasonably determined by the City
Engineer for the purpose of protecting the City's investment in said public improvement
projects. In the alternative, the City Engineer may require the Franchisee to fully restore the
surface and sub -surface areas of such street to the condition that it was in immediately after
completion of the public improvement project.
F. 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:
1. Such joint use shall not unreasonably delay the work of the party causing
the excavation to be made or unreasonably increase its costs;
2. Such joint use shall be arranged and accomplished on terms and conditions
satisfactory to both parties; and
3. Either party may deny such request for safety reasons or if their respective
uses of the trench are incompatible.
Section 11. Restoration after Construction. The Franchisee shall, after installation,
construction, relocation, maintenance, removal, or repair of its 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
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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 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 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 as promptly as reasonably possible 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, Authori for City to Abate. Whenever construction,
installation, or excavation of the 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 City
Engineer 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 reasonably 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
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. Provided, however, that this Section shall not be construed to allow the City to invoice
Franchisee for costs incurred during the processing of Franchisee's initial franchise application to
the extent that such costs were covered by application fees paid to the City pursuant to a fee
schedule duly established by the City.
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 or a service provider for use
of the right-of-way, except for certain authorized costs and 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" or Franchisee is acting as
a service provider in its use of the City Public Way. If state law is changed or clarified to indicate that
Franchisee is not a "telephone business" or service provider, as referenced above, then the City may
provide notice to Franchisee that a new Franchise must be agreed to within a year of the notice to
continue operating under the Franchise. As such, the rights granted under this Franchise are not
conditioned upon payment of compensation in addition to reimbursement for costs and expenses as
set forth in Section 14 (Recovery of Costs) herein, payment of the cost recovery fees as set forth by
the City 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. Notwithstanding any other provision of
this Ordinance, nothing in this Ordinance is intended to alter, amend, modify, reduce or expand
the taxes and fees that may lawfully be assessed on Franchisee's business activities under this
Ordinance pursuant to applicable law.
Section 16. 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, judgments, awards or liability to any person arising from injury, sickness, or
death of any person or damage to property:
l . 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;
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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;
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. Franchisee shall control the defense of any
claim under which it is providing indemnification, and the City has the right to 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 attorney's
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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.
E. Notwithstanding any other provisions of this Section, Franchisee assumes the risk
of damage to its Facilities located in the Public Ways and upon City -owned 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 17. 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 including the City as an additional insured as its respective interests may
appear under this Agreement on the commercial general liability and commercial automobile
liability prior to the commencement of any work or installation of any Facilities pursuant to this
Franchise. Such insurance certificate shall evidence:
A. Commercial general liability insurance, written on an occurrence basis, including
contractual liability coverage, with limits of $5,000,000 per occurrence for bodily injury and
property damage,
B. Commercial Automobile liability covering all owned, non -owned and hired
vehicles with a combined single limit of $3,000,000.00 each accident for bodily injury and
property damage.
C. Worker's compensation within statutory limits and employer's liability insurance
with limits of $1,000,000.00 each accident/disease/policy limit.
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
Facilities. Payment of deductibles and self -insured retentions shall be the sole responsibility of
the Franchisee. The commercial general liability insurance 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. The Franchisee's insurance shall be primary insurance with respect to the
11
City. Any insurance maintained by the City shall be in excess of the Franchisee's insurance and
shall not contribute with it.
Upon receipt of notice from its insurer(s) Franchisee shall provide the city with thirty (30)
days prior written notice of cancellation. Franchisee shall obtain and furnish to the City
replacement insurance certificate(s) meeting the requirements of this Section
Section 18. Abandonment and Removal of the Franchisee's Facilities. Upon the
expiration, termination, or revocation of the rights granted under this Franchise, the Franchisee
shall remove all of its Facilities from the Public Ways of the City within 90 days of receiving
notice from the City Engineer. 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 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 19. Construction Bond. Before undertaking any of the work, installation,
improvements, construction, repair, relocation or maintenance authorized by this Franchise, 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 (Restoration after Construction) of this
Franchise. Said bond shall be required to remain in full force until 60 days after completion of the
construction of Grantee's 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 20. 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
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 31 (Acceptance)
hereof.
Section 21. Forfeiture and Revocation.
A. This Franchise may be terminated for failure by Franchisee to comply with the
material provisions hereof and other provisions of the Edmonds Municipal Code. In addition to
termination, the City may impose lesser sanctions, including, but not limited to, monetary
penalties, for violation of this Franchise in accordance with the terms of the Franchise herein.
12
B. If the City has reason to believe that Franchisee is in violation of this Franchise or
other provisions of the Edmonds Municipal Code, the following procedures shall be followed by
the City:
1. The City shall provide Franchisee with a detailed written notice, by certified
mail, detailing the violation, the steps necessary to cure such violation, and a reasonable time
period within which the violation must be cured. Within thirty days (30) thereafter, Franchisee
shall respond demonstrating that no violation occurred, that any problem has been corrected, or
with a proposal to correct the problem within a specified period of time.
2. Franchisee may request an extension of time to cure an alleged violation if
construction is suspended or delayed by the City, or where unusual weather, natural consequences
(e.g., earthquakes, floods, etc.), extraordinary acts of third parties, or other circumstances which
are reasonably beyond the control of Franchisee delay progress, provided that Franchisee has not,
through its own actions or inactions, contributed to the delay. The amount of additional time
allowed will be determined by the City. The extension of time in any case shall not be greater than
the extent of the actual non-contributory delay experienced by Franchisee.
3. If said response is not satisfactory to City, the City may declare Franchisee
to be in default, with written notice, by certified mail, to Franchisee. Within ten business days
after notice to Franchisee, Franchisee may deliver to the City a request for a hearing before the
City Council. If no such request is received, the City may declare the Franchise terminated for
cause or impose lesser sanctions.
4. If Franchisee files a timely written request for a hearing, such hearing shall
be held within thirty (30) days after the City's receipt of the request therefor. Such hearing shall
be open to the public and Franchisee and other interested parties may offer written and/or oral
evidence explaining or mitigating such alleged non-compliance. Within ten days after the hearing,
the City Council, on the basis of the record, will make the determination as to whether there is
cause for termination, whether the Franchise will be terminated, or whether lesser sanctions should
be imposed. The City Council may in its sole discretion fix an additional time period to cure
violations. If the deficiency has not been cured at the expiration of any additional time period or
if the City Council does not grant any additional period, the City Council may by resolution declare
the Franchise to be terminated and forfeited or impose lesser sanctions.
5. If Franchisee appeals revocation and termination, such revocation may be
held in abeyance pending judicial review by a court of competent jurisdiction, provided the
Franchisee is otherwise in compliance with this Franchise. In any such appeal, Franchisee shall
be responsible for the costs of preparing and filing the City's administrative record with the Court
and such costs shall be paid prior to the City's filing thereof.
C. In the event that the City elects to impose monetary penalties upon the Franchisee
for failure to comply with the material provisions of this Franchise, said penalties shall be assessed
at five hundred ($500.00) per day, per violation, for each day beyond thirty (30) days that
Franchisee has been in violation.
13
D. Monetary penalties may be assessed retroactive to the date that notification was
provided to Franchisee in such cases where Franchisee has been non -responsive in correcting the
violation or in the case of flagrant violations. If payment of any penalty is delinquent by three (3)
months or more, the City may: (1) require partial or total forfeiture of any performance bond or
other surety posted by Franchisee; (2) terminate this Franchise; and/or (3) commence a civil action
in a court of competent jurisdiction to collect said penalty.
E. Franchisee shall not be deemed to be in default, failure, violation, or non-
compliance with any provision of this Franchise where performance was rendered impossible due
to materially, substantially, and reasonably to an act of God, fire, flood, storm, or other element or
casualty, theft, war, disaster, strike, lock -out, boycott, prevailing war or war preparation, or bona
fide legal proceedings, beyond the control of Franchisee.
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 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 23. 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 Facilities, 8, Undergrounding of Facilities; 10, Work in Public
Wyss 11, Restoration after Construction; 13, Dangerous Conditions, Authority for City to
Abate; 16, Indemnification and Waiver; 17, Insurance, and 18,Abandonment and Removal of the
Franchisee's 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
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 24. 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 invalidity
or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence,
clause, or phrase of this Franchise.
Section 25. Assignment. This agreement may not be assigned or transferred without prior
written notice to the City, except that the Franchisee may freely assign this Franchise without
notice 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
14
mortgage or other security instrument in whole or in part to secure indebtedness, such notice shall
not be required unless and until the secured party elects to realize upon the collateral.
Franchisee may, without the prior written notice to 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 26. 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
City Engineer
121 5t" Avenue North
Edmonds, WA 98020
Telephone: (425) 771-0220
FRANCHISEE:
MCIMETRO ACCESS TRANSMISSION SERVICES CORP. D/B/A VERIZON ACCESS
TRANSMISSION SERVICES
Attn: Franchise Manager
600 Hidden Ridge
Mailcode: HQE02G295
Irving, TX 75038NAME
with a copy (except for invoices) to:
Verizon Business Services
1320 N. Courthouse Road, Suite 900
Arlington, VA, USA 22201
Attn: Vice President and Deputy General Counsel, Network and Technology
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 27. 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
15
acceptance of this Franchise. Provided further, that the City and Franchisee reserve all rights they
may have under law to the maximum extent possible and neither the City nor Franchisee shall be
deemed to have waived any rights they may now have or may acquire in the future by entering
into this Franchise.
Section 28. 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 judgment or ruling.
Section 29. 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 30. 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, or, with respect to
any federal question, with the United States District Court for the Western District of Washington,
at Seattle.
Section 31. _Acceptance. Within 60 days after the passage and approval of this ordinance,
this Franchise shall be accepted by Franchisee by its filing with the City Clerk an unconditional
written acceptance thereof. Failure of the Franchisee to so accept this Franchise within said period
of time shall be deemed a rejection thereof, 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 32. 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.
ATTESPAUTHENTICATED
CI` 'LE SC PASSEY
16
CITY EDMONDS
C.]l.
MA OR, DAVE EARLING
APPROVED AS TO FROM:
OFFICE OF THE C TY ATTORNEY:
By:
EFF TARADAY
FILED WITH THE CITY CLERK:
PASSED BY THE CITY COUNCIL:
PUBLISHED:
EFFECTIVE DATE:
ORDINANCE NO.:
October 20, 2017
October 24, 2017
December 10, 2017
December 15, 2017
4093
17
SUMMARY ORDINANCE NO.4093
of the City of Edmonds, Washington
On the 24th day of October, 2017, the City Council of the City of Edmonds, passed
Ordinance No. 4093. 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 MCIMETRO ACCESS
TRANSMISSION SERVICES CORP. D/B/A VERIZON ACCESS
TRANSMISSION SERVICES, A DELAWARE CORPORATION,
A NON-EXCLUSIVE FRANCHISE TO INSTALL, OPERATE,
AND MAINTAIN A 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,
ESTABLISHING AN EFFECTIVE DATE.
The full text of this Ordinance will be mailed upon request.
DATED this 25th day of October, 2017.
:S
ity Clerk, Scott assey
18
Everett Daily Herald
Affidavit of Publication
State of Washington }
County of Snohomish } ss
Dicy Sheppard being first duly sworn, upon
oath deposes and says: that he/she is the legal
representative of the Everett Daily Herald a
daily newspaper. The said newspaper is a legal
newspaper by order of the superior court in the
county in which it is published and is now and
has been for more than six months prior to the
date of the first publication of the Notice
hereinafter referred to, published in the English
language continually as a daily newspaper in
Snohomish County, Washington and is and
always has been printed in whole or part in the
Everett Daily Herald and is of general
circulation in said County, and is a legal
newspaper, in accordance with the Chapter 99
of the Laws of 1921, as amended by Chapter
213, Laws of 1941, and approved as a legal
newspaper by order of the Superior Court of
Snohomish County, State of Washington, by
order dated June 16, 1941, and that the annexed
is a true copy of EDH788584 ORDINANCE
4093 as it was published in the regular and
entire issue of said paper and not as a
supplement form thereof for a period of 1
issue(s), such publication commencing on
12/10/2017 and ending on 12/10/2017 and that
said newspaper was regularly distributed to its
subscribers during all of said period.
The amount of the fee for such publication is
$36.12
::1�w
I ri
Subscribed and sworn re me on this
frfc - day ofZ�/ I
7
N ot6ry Public in and for the State of
Washington.
City of Edmonds -LEGAL ADS 114101416
SCOTT PASSEY
f_inaa p3 hr.!ll.
ps
Notary puttlic
M stateof Washington
n . _APcrntmertt �xpsras L1$1291?02y
CLASSIFIED ADVERTISING
SUMMARY OF ORDINANCE NO.4093
of the Gity of Edmonds, Washington
On the 2AIh day a! pctaher, 2017, the City CaOncEl of the City of
Edmonds. passed Ordinance No 4093. A eummar9y of the content
of said ord9nence, ponsla0npp of Lha lilW, pprarldas as lcdtowa:
AN ORDINANCE pF THE GTTY OF EDMONDS,
WASHINGTON, GRANTING TO MCIMETRO ACCESS
TRANSMISSION SERVICES CORP. D/B/A VERIZON
ACCESS TRANSMISSION SERVICES, A DELAWARE
CORPORATION, A NON-EXCLUSIVE FRANCHISE TO
INSTALL, OPERATE, AND MAINTAIN A
'UBLIC RIGHTS -OF -WAY OF
tSHINGTON, PRESCRIBING
TERMS, AND CONDITIONS
TO. ESTABLISHING AN
The full text of this Ordinance will be mailed upon reouasl,
DATED this 7th day of December, 2017.
CITY CLERK, SCOTT PASSEY
P blished: December 10, 2017. EDH7885B4_
STATEMENT OF ACCEPTANCE
MClmetro Access Transmission Services Corp. d/b:'a Verizon Access Transmission Services, for
itself, its successors and assigns, hereby accepts and agrees to be bound by all lawful terms,
conditions and provisions of the franchise attached hereto and incorporated herein by this
reference.
MCIMETRO ACCESS TRANSMISSION SERCVICES CORP. D.B. A VERIZON ACCESS
TRANSMISSION SERVICES
I3y: a Date:
obert J. Hayes
Senior Mgr. Network Engineering & Operations
STATE OF TEXAS )
) ss
COUNTY OF DALLAS )
Before me, ,. � E k , on this day personally appeared Robert J. Hayes,
known to me to be t}c person whose name is subscribed to the foregoing instrument and known to
me to be the Senior Manager Network Engineering & Operations of MClmetro Access
Transmission Services Corp., a Delaware Corporation, and acknowledged to me that he executed
the said instrument for the purposes and consideration therein expressed, on behalf of said
Corporation.
Given under my hand and seal of office this f: _ day of September, 2018.
My Commission Expires: o� Lj' a G�
[SEAL]
ZANDRA HUBBARD
_}-Notary Public, State of Texas
t Comm. Expires 02-04-2021
����
Notary 10 126832875
c
Notary Public
Arl fd�
Printed Name:
James Wallace III
Right -of -Way Specialist
Verizon Network Engineering & Operations
October 1, 2018
Scott Passey, City Clerk
First Floor City Hall
121 Fifth Avenue North
Edmonds, WA 98020
(425) 775-2525
Subject: Revised Statement of Acceptance of Ordinance No. 4093
Dear Mr. Passey
verizon✓
Mail Code: HQE02EO87
600 Hidden Ridge
Irving, TX 75038
work: 972-444-5357
james.wallace1 @verizon.com
Per the request of Edmonds' City Attorney (Jeff Taraday), enclosed is a revised original (signed
& notarized) copy of MClmetro's Statement of Acceptance of Ordinance No. 4093. Also
enclosed is a certificate of authority stating that the individual who signed the Statement of
Acceptance has the authority to bind the corporation to the terms of the franchise. Please
contact me at 972-444-5357 or via email at james.wallacel@verizon.com if you have any
questions or need any additional information.
Thank you,
James Wallace III
Right -of -Way Specialist
Enc: Statement of Acceptance (signed & notarized)
Certificate of Authority
Copy of Ordinance 4093
STATEMENT OF ACCEPTANCE
MCImetro Access Transmission Services Corp. d/b/a Verizon Access Transmission Services, for
itself, its successors and assigns, hereby accepts and agrees to be bound by all terms, conditions
and provisions of the franchise set forth in City of Edmonds, Washington Ordinance 4093, which
Ordinance is fully incorporated herein by this reference.
MCIMETRO ACCESS TRANSMISSION SERCVICES CORP. D/B/A VERIZON ACCESS
TRANSMISSION SERVICES
By: Date: /OZZZ�
Timothy J. G. Sikkink
Engr. IV — Network Engineering & Operations
STATE OF TEXAS )
) ss
COUNTY OF DALLAS )
Before me, r _ on this day personally appeared Timothy J. G.
Sikkink, known to me fo be the p son whose name is subscribed to the foregoing instrument and
known to me to be the Engr. IV — Network Engineering & Operations of MCImetro Access
Transmission Services Corp., a Delaware Corporation, and acknowledged to me that he executed
the said instrument for the purposes and consideration therein expressed, on behalf of said
Corporation, and acknowledged the said instrument to be the free and voluntary act and deed of
said corporation, for the uses and purposes therein mentioned, and on oath stated that he is
authorized to execute the said instrument and that the seal affixed is the corporate seal of
said corporation.
Given under my hand and seal of office this _� day of October, 2018.
My Commission Expires:
[S E A L]
Notary Public
�� rtbi
Printed Name:
ZANDRA HUBBARD
Notary Public, State of Texas
Comm. Expires 02-04-2021
�''%,oF�i►,�� Notary ID 128832875
MClmetro ACCESS TRANSMISSION SERVICES CORP.
ASSISTANT SECRETARY'S CERTIFICATE
I, Christy K. Reyes., a duly elected and qualified Assistant Secretary of MClmetro Access
Transmission Services Corp. d/b/a Verizon Access Transmission Services., a Delaware
corporation (the "Corporation"), do hereby certify that:
I am the duly appointed Assistant Secretary of the Corporation, am familiar with the
Corporations corporate books and records and duly authorized to execute and deliver
this Assistant Secretary's Certificate on behalf and in the name of the Corporation.
2. Timothy J.G. Sikkink, Engineer IV Consultant -Network Engineer & Operations, is
authorized, pursuant to a Schedule of Authorizations duly adopted by the Board of
Directors of the Company, to make, enter into, execute and deliver documents in
connection with the Franchise Agreement with the City of Edmonds, Washington.
3. The foregoing Schedule of Authorizations has not been revoked, annulled, or
amended in any manner whatsoever and remain in full force and effect as of the date
hereof.
V ` h3 IN WITNESS WHEREOF, I have hereunto set my hand and seal of the Corporation this
._�� f- day of September 2018.
i
Christy K,/Ryes
Assistant Secretary