AN ORDINANCE OF THE CITY OF BOTHELL, WASHINGTON, GRANTING UNTO METROMEDIA FIBER
NETWORK SERVICES, INC., ITS SUCCESSORS AND ASSIGNS, FOR THE RIGHT, PRIVILEGE,
AUTHORITY AND NONEXCLUSIVE FRANCHISE FOR TEN YEARS, TO CONSTRUCT, MAINTAIN,
OPERATE, REPLACE AND REPAIR A FIBER-OPTICS TELECOMMUNICATIONS SYSTEM, IN, ACROSS,
OVER, ALONG, UNDER, THROUGH AND BELOW CERTAIN DESIGNATED PUBLIC RIGHTS-OF-WAY
OF THE CITY OF BOTHELL, WASHINGTON.
This franchise shall grant MFNS the right, privilege and authority to construct,
operate, maintain, replace, acquire, sell, lease and use all necessary Facilities
for a fiber-optics telecommunications network , in, under, on, across, over,
through, along or below the public Rights-of-Ways located in the City of Bothell,
as approved under City permits issued pursuant to this franchise. Public "Rights-of-Way"
or "Franchise Area" as used herein means all public streets, roads,
alleys and highways of the City as now or hereafter laid out, platted, dedicated
or improved. "Facilities" as used herein means a fiber-optic cable
system, with all necessary cables, wires, conduits, ducts, pedestals, antennas,
electronics, and other necessary appurtenances; provided that new utility
poles for overhead wires or cabling are specifically excluded. Equipment enclosures
with air conditioning or other noise generating equipment are also excluded
from permitted "Facilities."
Section 2. Non-Exclusive Franchise Grant. This franchise is
granted upon the express condition that it shall not in any manner prevent
the City from granting other or further franchises in, along, over, through,
under, below or across any of said Rights-of-Ways. Such franchise shall in
no way prevent or prohibit the City from using any of said roads, streets
or other public properties or affect its jurisdiction over them or any part
of them, and the City shall retain power to make all necessary changes, relocations,
repairs, maintenance, establishment, improvement, dedication of same as the
City may deem fit, including the dedication, establishment, maintenance, and
improvement of all new Rights-of-Ways, thoroughfares and other public properties
of every type and description.
Section 3. Location of Fiber-Optics Telecommunications Network
Facilities. MFNS is creating a fiber optic network, consisting partially
of Facilities within the City. . MFNS may locate its Facilities anywhere within
the Franchise Area consistent with the City's Design and Construction Standards
and subject to the City's applicable permit requirements. MFNS shall not be
required to amend this franchise to construct or acquire Facilities within
the Franchise Area.
Section 4. Relocation of Fiber-Optics Telecommunications System
Facilities.
4.1 MFNS agrees and covenants at its sole cost and expense, to protect, support,
temporarily disconnect, relocate or remove from any street any of its installations
when reasonably required by the City by reason of traffic conditions or public
safety, dedications of new Rights-of-Way and the establishment and improvement
thereof, widening and improvement of existing Rights-of-Way, street vacations,
freeway construction, change or establishment of street grade, or the construction
of any public improvement or structure by any governmental agency acting in
a governmental capacity, provided that MFNS shall in all such cases have the
privilege to temporarily bypass, in the authorized portion of the same street
upon approval by the City, any section of cable required to be temporarily
disconnected or removed.
4.2 Any condition or requirement imposed by the City upon any person or entities
(including, without limitation, any condition or requirement imposed pursuant
to any contract or in conjunction with approvals for permit for zoning, land
use, construction or development) which reasonably necessitates the relocation
of MFNS's facilities within the Franchise Area shall be a required relocation
for purposes of subsection 4.1 above. Provided that the condition or requirement
imposed on such person or entity which necessitates relocation of MFNS's facilities
is directly related to a public improvement or structure.
4.3 If the City determines that the project necessitates the relocation of
MFNS's then existing facilities, the City shall:
A. At least sixty (60) days prior to the commencement of such improvement
project, provide MFNS with written notice requiring such relocation; and
B. Provide MFNS with copies of pertinent portions of the plans and specifications
for such improvement project and a proposed location for MFNS's facilities
so that MFNS may relocate its facilities in other City Rights-of-Way in
order to accommodate such improvement project.
C. After receipt of such notice and such plans and specifications, MFNS
shall complete relocation of its facilities at least ten (10) days prior
to commencement of the City's project at no charge or expense to the City.
Relocation shall be accomplished in such a manner as to accommodate the
City's project.
4.4 MFNS 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 MFNS 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, MFNS shall submit at its sole cost and expense additional information
to assist the City in making such evaluation. The City shall give each alternative
proposed by MFNS full and fair consideration. In the event the City ultimately
determines that there is no other reasonable or feasible alternative, MFNS
shall relocate its facilities as otherwise provided in this Section. The provisions
of this Section shall survive the expiration or termination of this franchise
agreement.
4.5 The provisions of this Section shall in no manner preclude or restrict
MFNS 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.
Section 5. Undergrounding of Facilities. Except as specifically
authorized by permit of the City, MFNS shall not be permitted to erect poles
or to run or suspend wires, cables or other facilities thereon, but shall
lay such wires, cables or other facilities underground in the manner required
by the City. MFNS acknowledges and agrees that if the City does not require
the undergrounding of its facilities at the time of permit application, the
City may, at any time in the future, require the conversion of MFNS's aerial
facilities to underground installation at MFNS's expense.
Whenever the City may require the undergrounding of the aerial utilities
in any area of the City, MFNS shall underground its aerial facilities in the
manner specified by the City, concurrently with and in the area of the other
affected utilities. Where other utilities are present and involved in the
undergrounding project, MFNS shall only be required to pay its fair share
of common costs borne by all utilities, in addition to the costs specifically
attributable to the undergrounding of MFNS's own facilities. "Common
costs" shall include necessary costs not specifically attributable to
the undergrounding of any particular facility, such as costs for common trenching
and utility vaults. "Fair share" shall be determined for a project
on the basis of the number and size of MFNS facilities being undergrounded
in comparison to the total number and size of all other utility facilities
being undergrounded.
Section 6. Maps and Records. After construction is complete,
and as a condition of this franchise, MFNS shall provide to the City upon
request and at no cost, a copy of all as-built plans, maps and records revealing
the final location and condition of its facilities within the public Rights-of-Ways
and public places.
Section 7. Excavations. During any period of relocation, construction
or maintenance, all work performed by MFNS or its contractors shall be accomplished
in a safe and workmanlike manner, so to minimize interference with the free
passage of traffic and the free use of adjoining property, whether public
or private. MFNS 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.
Whenever MFNS shall excavate in any public Rights-of-Way for the purpose
of installation, construction, repair, maintenance or relocation of its cable
or equipment, it shall apply to the City for a permit to do so and, in addition,
shall give the City at least five (5) working days prior notice of its intent
to commence work in the public Rights-of-Way. In no case shall any work commence
within any public Rights-of-Way without a permit, except as otherwise provided
in this franchise ordinance.
If either the City or MFNS shall at any time plan to make excavations in
any area covered by this franchise and as described in this Section, the party
planning such excavation shall afford the other, upon receipt of a written
request to do so, an opportunity to share such excavation, PROVIDED THAT:
A. Such joint use shall not unreasonably delay the work of the party causing
the excavation to be made;
B. such joint use shall be arranged and accomplished on terms and conditions
satisfactory to both parties; and
C. either party may deny such request for safety reasons. The provisions
of this Section shall survive the expiration or termination of this franchise
agreement.
Section 8. Restoration after Construction. MFNS shall, after
abandonment approved under Section 15 herein, or installation, construction,
relocation, maintenance or repair of its facilities within the franchise area,
restore the surface of the Rights-of-Way to at least the same condition the
property was in immediately prior to any such installation, construction,
relocation, maintenance or repair. The Director of Public Improvements shall
have final approval of the condition of such streets and public places after
restoration. All concrete encased monuments which have been disturbed or displaced
by such work shall be restored pursuant to all federal, state and local standards
and specifications. MFNS agrees to promptly complete all restoration work
and to promptly repair any damage caused by such work to the franchise area
or other affected area at its sole cost and expense. The provisions of this
Section shall survive the expiration, revocation or termination by other means
of this franchise.
Section 9. Emergency Work -- Permit Waiver. In the event of
any emergency in which any of MFNS's facilities located in or under any street
breaks, becomes damaged, or if MFNS's construction area is otherwise in such
a condition as to immediately endanger the property, life, health or safety
of any individual, MFNS 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 MFNS from the requirement of obtaining any permits
necessary for this purpose, and MFNS shall apply for all such permits not
later than the next succeeding day during which the Bothell City Hall is open
for business.
Section 10. Dangerous Conditions, Authority for City to Abate.
Whenever the construction, installation or excavation of facilities authorized
by this franchise has caused or contributed to a condition that appears to
substantially impair the lateral support of the adjoining street or public
place, or endangers the public, an adjoining public place, street utilities
or City property, the Director of Public Improvements may direct MFNS, at
MFNS's own expense, to take actions to protect the public, adjacent public
places, City property or street utilities, and such action may include compliance
within a prescribed time.
In the event that MFNS fails or refuses to promptly take the actions directed
by the City, or fails to fully comply with such directions, or if emergency
conditions exist which require immediate action, before the City can timely
contact MFNS to request MFNS effect the immediate repair, the City may enter
upon the property and take such actions as are necessary to protect the public,
the adjacent streets, or street utilities, or to maintain the lateral support
thereof, or actions regarded as necessary safety precautions, and MFNS shall
be liable to the City for the costs thereof. The provisions of this Section
shall survive the expiration, revocation or termination of this franchise.
Section 11. Recovery of Costs. MFNS shall pay a filing fee
for the City's administrative costs in drafting and processing this franchise
agreement and all work related thereto. MFNS shall further be subject to all
permit fees associated with activities undertaken through the authority granted
in this franchise ordinance 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, MFNS shall
pay such costs and expenses directly to the City. In addition to the above,
MFNS shall promptly reimburse the City for any and all costs the City reasonably
incurs in response to any emergency involving MFNS's cable and facilities.
Section 12. City's Reservation of Rights. Pursuant to Section
35.21.860 of the Revised Code of Washington (RCW), the City is precluded from
imposing a franchise fee on a telephone business as defined in RCW 82.04.065,
except for administrative expenses or any tax authorized by RCW 35.21.865.
MFNS hereby warrants that its operations as authorized under this franchise
are those of a telephone business as defined in RCW 82.04.065. As a result,
the City will not impose a franchise fee under the terms of this ordinance,
other than as described herein.
However, the City hereby reserves its right to impose a franchise fee on
MFNS for purposes other than to recover its administrative expenses, if MFNS's
operations as authorized by this franchise change so that not all uses of
the franchise are those of a "telephone business" as defined in
RCW 82.04.065; or, if statutory prohibitions on the imposition of such fees
are removed. In either instance, the City also reserves its right to require
that MFNS obtain a separate franchise for its change in use, which franchise
may include provisions intended to regulate MFNS's operations, as allowed
under applicable law. . MFNS reserves its right to contest or challenge the
City's determination that it may impose a franchise fee or require that MFNS
obtain a separate franchise under the provisions of this section, federal
or state law.
Section 13. Indemnification. MFNS hereby releases, covenants
not to bring suit and agrees to indemnify, defend and hold harmless the City,
its officers, employees, agents and representatives from any and all claims,
costs, judgments, awards or liability to any person, including claims by MFNS's
own employees for which MFNS might otherwise be immune under Title 51 RCW,
for injury or death of any person or damage to property caused by or arising
out of the negligent acts or omissions of MFNS, its agents, servants, officers
or employees in the performance of this franchise, and any rights granted
hereunder.
Inspection or acceptance by the City of any work performed by MFNS at the
time of completion of construction shall not be grounds for avoidance by MFNS
of any of its obligations under this Section. Said indemnification obligations
shall extend to claims which are not reduced to a suit and any claims which
may be compromised, with MFNS's consent, prior to the culmination of any litigation
or the institution of any litigation.
In the event that MFNS refuses the tender of defense in any suit or any claim,
said tender having been made pursuant to the indemnification provision contained
herein, and said refusal is subsequently determined by a court having jurisdiction
(or such other tribunal that the parties shall agree to decide the matter),
to have been a wrongful refusal on the part of MFNS, then MFNS shall pay all
of the City's costs for defense of the action, including all expert witness
fees, costs, and attorney's fees, including costs and fees incurred in recovering
under this indemnification provision.
In the event of liability for damages arising out of bodily injury to persons
or damages to property caused by or resulting from the concurrent negligence
of MFNS and the City, its officers, employees and agents, MFNS's liability
hereunder shall be only to the extent of MFNS's negligence. It is further
specifically and expressly understood that the indemnification provision provided
herein constitutes MFNS's waiver of immunity under Title 51 RCW, solely for
the purposes of this indemnification. This waiver has been mutually negotiated
by the parties. The provisions of this Section shall survive the expiration
or termination of this franchise agreement.
Section 14. Insurance. MFNS shall procure and maintain for
the duration of the franchise, insurance against claims for injuries to persons
or damages to property which may arise from or in connection with the exercise
of the rights, privileges and authority granted hereunder to MFNS, its agents,
representatives or employees. MFNS shall provide a copy of a Certificate of
Insurance to the City for its inspection prior to the adoption of this franchise
ordinance, and such insurance certificate shall evidence a policy of insurance
that includes:
A. Automobile Liability insurance with limits no less than $1,000,000 Combined
Single Limit per occurrence for bodily injury and property damage; and
B. Commercial General Liability insurance, written on an occurrence basis
with limits no less than $1,000,000 combined single limit per occurrence
and $2,000,000 aggregate for personal injury, bodily injury and property
damage. Coverage shall include but not be limited to: blanket contractual;
products and completed operations; broad form property damage; explosion,
collapse and underground (XCU); and employer's liability.
Any deductibles or self-insured retentions must be declared to and approved
by the City. Payment of deductible or self-insured retention shall be the
sole responsibility of MFNS.
The insurance policies obtained by MFNS shall name the City (its officers,
employees and volunteers,) as an additional insured with regard to activities
performed by or on behalf of MFNS. The coverage shall contain no special limitations
on the scope of protection afforded to the City, its officers, officials,
employees or volunteers. In addition, the insurance policy shall contain a
clause stating that coverage shall apply separately to each insured against
whom claim is made or suit is brought, except with respect to the limits of
the insurer's liability. MFNS's insurance shall be primary insurance as respects
the City, its officers, employees, agents volunteers. Any insurance maintained
by the City, its officers, employees, agents or volunteers shall be excess
of MFNS's insurance and shall not contribute with it. The insurance policy
or polices required by this clause shall be endorsed to state that coverage
shall not be suspended, voided, canceled by either party, reduced in coverage
or in limits except after thirty (30) days prior written notice by certified
mail, return receipt requested, has been given to the City.
Section 15. Abandonment of MFNS's Fiber-Optics Telecommunication
System Facilities. No cable, section of cable or other equipment laid
in the street by MFNS may be abandoned by MFNS without written
notice to the City. Any plan for abandonment or removal of MFNS's cable
and facilities must be first approved by the Director of Public Improvements,
and all necessary permits must be obtained prior to such work. The provisions
of this Section shall survive the expiration, revocation or termination of
this franchise agreement.
Section 16. Bond. Before undertaking any of the work, installation,
improvements, construction, repair, relocation or maintenance authorized by
this franchise, MFNS shall furnish a bond executed by MFNS and
a corporate surety authorized to do a surety business in the State of Washington,
in a sum to be set and approved by the Director of Public Improvements consistent
with the City's Design and Construction Standards and other applicable permit
requirements. The bond shall be conditioned so that MFNS shall observe
all the covenants, terms and conditions and faithfully perform all of the
obligations of this franchise, and to erect or replace any defective work
or materials discovered in the replacement of the City's streets or property
within a period of two years from the date of the replacement and acceptance
of such repaired streets by the City.
Section 17. Modification. The City and MFNS hereby reserve
the right to alter, amend or modify the terms and conditions of this franchise
upon written agreement of both parties to such alteration, amendment or modification.
Section 18. Forfeiture and Revocation. If MFNS willfully
violates or fails to comply with any of the provisions of this franchise,
or through willful misconduct or gross negligence fails to heed or comply
with any notice given MFNS by the City under the provisions of this
franchise, then MFNS shall, at the election of the Bothell City Council,
forfeit all rights conferred hereunder and this franchise may be revoked or
annulled by the Council after a hearing held upon notice to MFNS.
Section 19. Remedies to Enforce Compliance. The City may elect,
in lieu of the above and without any prejudice to any of its other legal rights
and remedies, to obtain an order from the superior court having jurisdiction
compelling MFNS to comply with the provisions of this Ordinance and
to recover damages and costs incurred by the City by reason of MFNS's
failure to comply. In addition to any other remedy provided herein, the City
reserves the right to pursue any remedy to compel or force MFNS and/or
its successors and assigns to comply with the terms hereof, and the pursuit
of any right or remedy by the City shall not prevent the City from thereafter
declaring a forfeiture or revocation for breach of the conditions herein.
Section 20. City Ordinances and Regulations. Nothing herein
shall be deemed to restrict the City's ability to adopt and enforce all necessary
and appropriate ordinances regulating the performance of the conditions of
this franchise, including any valid ordinance made in the exercise of its
police powers in the interest of public safety and for the welfare of the
public. The City shall have the authority at all times to control by appropriate
regulations the location, elevation, manner of construction and maintenance
of any fiber optic cable or cable facilities by MFNS, and MFNS
shall promptly conform with all such regulations, unless compliance would
cause MFNS to violate other requirements of law. In the event of a
conflict between the provisions of this Franchise and any other ordinance(s)
enacted under the City's police power authority, such other ordinance(s) shall
take precedence over the provisions set forth herein. The provisions of Chapter
17.24 of the Bothell Municipal Code shall apply except as inconsistent or
in conflict with the provisions of this Franchise Ordinance.
Section 21. Cost of Publication. The cost of the publication
of this Ordinance shall be borne by MFNS.
Section 22. Acceptance. This franchise may be accepted by MFNS
by its filing with the City Clerk an unconditional written acceptance thereof.
Failure of MFNS to so accept this franchise shall be deemed a rejection
thereof by MFNS, and the rights and privileges herein granted shall
absolutely cease and determine.
Section 23. Survival. All of the provisions, conditions and
requirements of Sections 4, Relocation of Telecommunication Facilities;
5, Undergrounding of Facilities; 7, Excavation; 8, Restoration
after Construction; 10, Dangerous Conditions; 13, Indemnification;
and 15, Abandonment of MFNS's Facilities, of this franchise shall be
in addition to any and all other obligations and liabilities MFNS may have
to the City at common law, by statute, or by contract, and shall survive the
City's franchise to MFNS for the use of the areas mentioned in Section 1 herein,
and any renewals or extensions thereof. All of the provisions, conditions,
regulations and requirements contained in this franchise Ordinance shall further
be binding upon the heirs, successors, executors, administrators, legal representatives
and assigns of MFNS and all privileges, as well as all obligations and liabilities
of MFNS shall inure to its heirs, successors and assigns equally as if they
were specifically mentioned wherever MFNS is named herein.
Section 24. Assignment. This agreement may not be assigned
or transferred without the written approval of the City, except MFNS may freely
assign this Franchise in whole or in part to a parent, subsidiary, or affiliated
corporation or as part of any corporate financing, reorganization or refinancing.
In the case of transfer or assignment as security by mortgage or other security
instrument in whole or in part to secure indebtedness, such consent shall
not be required unless and until the secured party elects to realize upon
the collateral. MFNS shall provide prompt, written notice to the City of any
such assignment.
MFNS may, without the prior written consent of the City: (i) Lease the Facilities,
or any portion thereof, to another entity; (ii) Grant an Indefeasible Right
of User Interest in the Facilities, or any portion thereof, to another entity;
or (iii) offer or provide capacity or bandwidth from the Facilities to another
Person, PROVIDED THAT: MFNS at all times retains exclusive control over the
Facilities and remains responsible for locating, servicing, repairing, relocating
or removing its facilities pursuant to the terms and conditions of this Franchise.
Section 25. Notice. Any notice or information required or permitted
to be given to the parties under this franchise agreement may be sent to the
following addresses unless otherwise specified:
|
CITY OF BOTHELL
Director of Public Improvements
18305 - 101st N.E.
Bothell, WA 98011
|
METROMEDIA FIBER NETWORK SERVICES, INC.
General Counsel
One North Lexington Ave.
White Plains, NY 10601
|
Section 26. Severability. If any section, sentence, clause
or phrase of this ordinance should be held to be invalid or unconstitutional
by a court of competent jurisdiction, such invalidity or unconstitutionality
shall not affect the validity or constitutionality of any other section, sentence,
clause or phrase of this ordinance unless such invalidity or unconstitutionality
materially alters the rights, privileges, duties, or obligations hereunder,
in which event either party may request renegotiation of those remaining terms
of this franchise materially affected by such courts' ruling.
Section 27. Effective Date. This ordinance, being an exercise
of a power specifically delegated to the City legislative body, is not subject
to referendum, and shall take effect (5) days after passage and publication
of an approved summary thereof consisting of the title.
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF BOTHELL, WASHINGTON, GRANTING UNTO METROMEDIA FIBER
NETWORK SERVICES, INC., ITS SUCCESSORS AND ASSIGNS, FOR THE RIGHT, PRIVILEGE,
AUTHORITY AND NONEXCLUSIVE FRANCHISE FOR TEN YEARS, TO CONSTRUCT, MAINTAIN,
OPERATE, REPLACE AND REPAIR A FIBER-OPTICS TELECOMMUNICATIONS SYSTEM, IN, ACROSS,
OVER, ALONG, UNDER, THROUGH AND BELOW CERTAIN DESIGNATED PUBLIC RIGHTS-OF-WAY
OF THE CITY OF BOTHELL, WASHINGTON.
ORDINANCE NO.
The undersigned authorized representative of Metromedia Fiber Network Services,
Inc., hereby declares on behalf of Metromedia Fiber Network Services, Inc.,
the acceptance of the nonexclusive franchise to Metromedia Fiber Network Services,
Inc., approved by the Bothell City Council on January 27, 2000, by the adoption
of Bothell City Ordinance No. 1795.
DATED this ______ day of ________________, 2000.
METROMEDIA FIBER NETWORK SERVICES, INC.
