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Newcastle Ordinance No. 2000-215 - Granting a franchise to Metricom, Inc.
to install, maintain, repair, etc., facilities on utlity poles
Not an official copy.
Newcastle, WA
Ordinance No. 2000-215
AN ORDINANCE OF THE CITY OF NEWCASTLE, WASHINGTON, GRANTING METRICOM,
INC. THE RIGHT, PRIVILEGE, AUTHORITY, AND FRANCHISE TO LOCATE, INSTALL, MAINTAIN,
REPAIR, REPLACE, OPERATE AND USE FACILITIES ON UTILITY POLES IN AND ON THE
FRANCHISE AREA FOR PURPOSES OF PROVIDING TELECOMMUNICATION AND TELEPHONE SERVICES;
AND TO CHARGE AND COLLECT TOLLS, RATES, AND COMPENSATION FOR SUCH SERVICES.
WHEREAS, in order to maintain control over the use of City of Newcastle right-of-ways
by utilities operating within the City, the City has the authority to grant
franchises to such utilities; and
WHEREAS, Metricom, Inc. owns, maintains, and operates, in accordance with regulations
promulgated by the Federal Communications Commission, a mobile digital data
communications radio network known as Ricochet, utilizing Radios (as defined
in this Ordinance) and related equipment certified by the Federal Communications
Commission; and
WHEREAS, for purposes of operating Ricochet, Metricom, Inc. wishes to locate,
install, maintain, repair, replace, operate and use Radios and related equipment
in the City's right-of-way on structures owned by the City and by third parties;
NOW THEREFORE
THE CITY COUNCIL OF THE CITY OF NEWCASTLE, WASHINGTON, DO ORDAIN AS FOLLOWS:
Section 1. Definitions. Where used in this Franchise, the following
terms shall mean:
1.1 "City" means the City of Newcastle, a municipal corporation of the State
of Washington.
1.2 "Facilities" means Franchisee's radio communications antennas and all necessary
or convenient facilities and appurtenances, located in, upon, above or under
the Franchise Area.
1.3 "Franchise Area" means: any, every and all of the public roads, streets,
avenues, alleys, highways, and rights-of-way of the City as now laid out, platted,
dedicated or improved; and any, every and all public roads, streets, avenues,
alleys, highways, and rights-of-way that may hereafter be laid out, platted,
dedicated or improved within the present limits of the City and as such limits
may be hereafter extended; provided, the Franchisee Area shall not include or
convey any right to Franchisee to install Facilities on or to otherwise use
City owned or leased properties outside the Franchise Area.
1.4 "Franchisee" means Metricom Inc., a Delaware corporation, and its lawful
successors, assigns, and transferees approved pursuant to this Franchise.
1.5 "Municipal Facilities" means City-owned street light poles, lighting fixtures,
electroliers, or other City-owned structures located within the City's right-of-way.
"Municipal Facilities" may refer to such facilities in the singular or plural,
as appropriate in the context in which used.
1.6 "Ordinance" or "Franchise" means this Ordinance, which sets forth the terms
and conditions of the Franchise granted to Franchisee by the City.
1.7 "Radio" means the radio equipment, whether referred to singly or collectively,
to be installed and operated by Franchisee under this Franchise.
1.8 "Services" means the mobile digital communications services provided through
Ricochet by Franchisee.
Section 2. Facilities Within Franchise Area.
2.1 The City does hereby grant to Franchisee the right, privilege, authority,
and franchise to:
2.1.1 Locate, install, maintain, repair, replace, operate and use Facilities
on utility poles or other structures located in or on the Franchise Area for
purposes of providing telephone services. If Franchisee attaches and installs
Facilities on utility poles or other structures owned by any third party,
Franchisee shall furnish to the City documentation of the third party's consent
and permission for the attachment and installation of the Facilities; and
2.1.2 Charge and collect tolls, rates and compensation for such telephone
services and such uses as authorized by the Federal Communications Commission
(FCC) and/or the Washington Utilities and Transportation Commission (WUTC).
2.2 Notwithstanding any provision of this Franchise, this Franchise only grants
the Franchisee the right to locate, install, maintain, repair, replace, operate
and use Facilities that are standard in the wireless digital communications
radio network industry on the date of this Franchise. If the technology changes
or evolves in the future and Franchisee desires to locate, install, maintain,
replace, operate and use additional new facilities in the Franchise Area, Franchisee
shall be required to negotiate and obtain an amendment to this Franchise, or
a new franchise for those additional Services or Facilities.
2.3 Notwithstanding any provision of this Franchise, this Franchise only grants
the Franchisee the right to locate, install, maintain, repair, replace, operate
and use Facilities on existing utility poles and other structures located in
the Franchise Area, with dimensions as shown on Attachment A or as approved
by the Public Works Director. This Franchise does not authorize Franchisee to
construct or install poles, towers, or any other support structures for its
Facilities in the Franchise Area.
2.4 In the performance and exercise of the Franchisee's rights and obligations
under this Franchise, the Franchisee shall not interfere in any manner with
the existence and operation of any and all public and private rights-of-way,
sanitary sewers, water mains, storm drains, gas mains, poles, serial and underground
electrical and telephone wires, cable television, and other telecommunications
and other utilities, or any municipal property, without the express written
approval of the owner of the affected property.
Section 3. Use and Maintenance of Facilities in Franchise.
3.1 Franchisee's Facilities shall be located, installed, maintained, repaired,
replaced, operated and used within the Franchise Area so as to provide
for safety of persons and property, and not interfere with the free passage
of traffic, all in accordance with the laws of the State of Washington, and
the ordinances, resolutions, rules and regulations of the City. Priority shall
be given to use of those rights-of-way in the Franchise Area where construction
of the Facilities can be coordinated with other City and private construction
activities, will least impact the existing condition of the Franchise Area,
will least impact traffic during construction, and will least impact adjacent
neighborhoods during construction and after installation.
3.2 Whenever it shall be necessary for Franchisee to engage in any work within
the Franchise Area, Franchisee shall apply for all necessary City permits and
authorizations to do such work, and shall comply with all requirements and conditions
of this Franchise and such permits and authorizations, including but not limited
to location restrictions, traffic control, and restoration, repair or other
work to restore the surface of the Franchise Area, as nearly as practicable,
to its condition prior to such work, or as otherwise required by the Public
Works Department as a condition of the permit. Such permits and authorizations
shall also be subject to any other applicable City ordinances, resolutions,
codes, policies, and standards. After the work is completed, Franchisee shall
provide to the City upon request and at no cost, a copy of all as-built plans,
maps, and records of the Facilities. Nothing in this Franchise shall in any
way limit the City's authority to otherwise exercise its police powers or other
lawful authority.
3.3 Franchisee shall, after installation, maintenance, repair or replacement
of its Facilities, restore any disturbed right-of-way to City specifications
and standards generally applicable to all utilities utilizing City right-of-way.
All concrete encased recorded monuments which have been disturbed or displaced
by such work shall be restored pursuant to City standards and specifications.
Franchisee agrees to promptly complete restoration work and to promptly repair
any damage caused by such work to the right-of-way at its sole cost and expense.
Such restoration responsibility shall continue for a period of time to correspond
to the remaining life of the pavement and/or surface in which the work was done,
as indicated in the permit. In the event Franchisee fails to restore the Franchise
Area to its condition as required herein, the City reserves the right to make
such repairs or restoration to such Franchise Area and bill Franchisee for the
cost of such restoration, including the cost of labor and equipment. Franchisee
shall pay such bill to the City within thirty (30) days. In the event of non-payment
thereafter, Franchisee shall pay the City's attorneys' fees and other costs
incurred in collecting such amount.
3.4 Franchisee shall comply with all applicable laws in the exercise and performance
of its rights and obligations, and in the provision of Services, under this
Franchise.
3.5 The City reserves the right to modify the service voltage delivered to
or at any street light pole, utility pole, or other property on which a Facility
may be located. Franchisee shall replace or modify any Facility that will be
affected by such voltage modifications within thirty (30) days of receiving
notice of voltage modifications. If Franchisee fails to replace or modify any
Facility within the thirty (30) day notice period before the voltage modification,
the City may disconnect any such Facility until Franchisee performs and completes
the necessary work to the City's satisfaction.
3.6 Any work performed pursuant to the rights granted under this Franchise
may, at the City's option, be subject to the prior review and approval of the
City.
3.7 Prior to the effective date of the grant of this Franchise, Franchisee
shall provide to the City a statement indicating the proposed type, size and
location of each of its Facilities in the Franchise Area. Franchisee shall confirm
in writing to the City the exact type, size and location of its Facilities after
installation. During the term of this Franchise, the Franchisee shall provide
written notice of the type, size and location of each additional Facility proposed
to be installed by the Franchisee in the Franchise Area. In addition, Franchisee
shall provide written notice of the type, size and location of each Facility
that the Franchisee proposes to relocate or remove.
Section 4. Facilities Availability. To the extent that Franchisee makes
facilities and/or services available to other governmental entities within the
state of Washington, Franchisee shall also make such facilities and services
available to the City subject to similar terms and conditions unless otherwise
prohibited or restricted by state or federal laws, regulations, or tariffs.
Section 5. Technological Changes. The City may elect to review at intervals
not less than three years, Franchisee's Facilities and services in light of
reasonable City needs and interests. Should such review identify a needed change
in facilities and/or service provision, Franchisee shall meet and confer with
representatives of the City concerning any identified communications requirements
of the City that Franchisee might fulfill.
Section 6. City Reservation of Rights. The City reserves the right and
power at all times to exercise its police powers as specifically pertains to
the time, manner, and placement of Franchisee's Facilities.
Section 7. Relocation of Facilities.
7.1 Franchisee understands and acknowledges that City may require Franchisee
to relocate its Facilities. Franchisee shall, at City's direction, relocate
upon fifteen (15) business days prior written notice in situations described
in subsection (a) below, and immediately in situations described in subsections
(b) and (c) below, at Franchisee's sole cost and expense, a Facility whenever
City reasonably determines that the relocation is needed: (a) to facilitate
or accommodate the construction, completion, repair, relocation or maintenance
of a City project, (b) because the Facility is interfering with or adversely
affecting proper operation of City light poles, traffic signals or other City
facilities, or (c) to protect or preserve the public health, safety, or welfare.
If Franchisee shall fail to relocate any Facilities as requested by the City,
the City shall be entitled to relocate the Facilities at Franchisee's sole cost
and expense.
7.2 Whenever any person or entity, other than the City, requires the relocation
of Franchisee's Facilities to accommodate the work of such person or entity
within the Franchise Area; or, the City requires any person or entity to undertake
work (other than work undertaken as a public works project or at the City's
cost and expense) within the Franchise Area and such work requires the relocation
of Franchisee's Facilities within the Franchise Area, then Franchisee shall
have the right as a condition of any such relocation to require such person
or entity to:
7.2.1 Make payment to Franchisee, at a time and upon terms acceptable to
Franchisee, for any and all reasonable costs and expenses incurred by Franchisee
in the relocation of Franchisee's Facilities; and
7.2.2 Indemnify and hold Franchisee harmless from any and all claims and
demands made against it on account of injury or damage to the person or property
of another arising out of or in conjunction with the relocation of Franchisee's
Facilities, to the extent such injury or damage is caused by the negligence
of the person or entity requesting the relocation of Franchisee's Facilities
or the negligence of the agents, servants or employees of the person or entity
requesting the relocation of Franchisee's Facilities.
7.3 Any condition or requirement imposed by the City upon any person or entity,
other than Franchisee (including, without limitation, any condition or requirement
imposed pursuant to any contract or in conjunction with approvals or permits
for zoning, land use, construction or development) which requires the relocation
of Franchisee's Facilities within the Franchise Area shall be a required relocation
for the purposes of Section 7.2. of this section.
7.4 Nothing in this Section 7 "Relocation of Facilities" shall require
Franchisee to bear any cost or expense in connection with the location or relocation
of any Facilities then existing under benefit of easement or other recorded
rights or licenses and not within the Franchise Area.
7.5 Whenever the removal or relocation of Facilities is required under this
Franchise, and such removal or relocated shall cause the Franchise Area, utility
pole, or other property to be damaged, Franchisee, at is sole cost and expense,
promptly shall repair and return the Franchise Area, utility pole or other property,
in which the Facilities are located, to a safe and satisfactory condition in
accordance with applicable laws, normal wear and tear excepted. If Franchisee
does not repair the site as just described, then the City shall have the option
to perform or cause to be performed such reasonable and necessary work on behalf
of Franchisee for the proposed costs to be incurred, or the actual costs incurred
by the City, at City's standard rates. Upon the receipt of a demand for payment
by the City, Franchisee shall reimburse the City for such costs.
Section 8. Undergrounding of Facilities. Franchisee acknowledges that
the City's policy requires the undergrounding of utilities in the Franchise
Area. Franchisee shall comply with the City's lawful policies and regulations
concerning the undergrounding of utilities within the Franchise Area to the
extent such policies and regulations apply to Franchisee and its Facilities.
Section 9. Coordination of Work in City Rights-of-Way. To facilitate
the coordination of work in City rights-of-way, if the Franchisee shall at any
time plan to make excavations or perform other work in the Franchise Area, the
Franchisee shall provide written notice to the City of the planned work, affording
the City the opportunity to share in the work; provided, that (1) such joint
use shall not unreasonably delay the Franchisee's work, and (2) such joint use
shall be arranged and accomplished on terms and conditions satisfactory to both
parties.
Section 10. Reimbursement of Costs/Franchise Fees/Taxes.
10.1 Pursuant to RCW 35.21.860, Franchisee shall reimburse and pay to the City
the amount of actual administrative expenses incurred by the City which are
directly related to the receipt and approval of a permit, license and franchise,
to the inspection of plans and construction, and to the preparation of documents
and statements prepared pursuant to Chapter 43.21C of the RCW. Metricom
agrees to pay to the City on or before the effective date of this ordinance
a lump sum of $2,000 as reimbursement for all administrative costs incurred
by the City related to the receipt and approval of a permit, license and franchise,
to the inspection of plans and construction, and to the presentation of documents
and statements prepared pursuant to Chapter 43.12C of the RCW.
10.2 Also pursuant to RCW 35.21.860, the City is precluded from imposing a
franchise fee on a telephone business as defined in RCW 82.04.065. Franchisee
hereby warrants that its operations and Services, 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 Franchise,
other than as described in this Section. However, the City hereby reserves its
right to impose a franchise fee on Franchisee for purposes other than to recover
its administrative expenses or taxing, if Franchisee's operations change so
that not all uses of the Franchise Area are those of a telephone business as
defined in RCW 82.04.065; or, if statutory prohibitions on the imposition of
such fees are rescinded or amended. In the event of a change of franchise use,
the City reserves its right to require that Franchisee obtain a separate franchise
for its change in use, which franchise may include provisions intended to regulate
Franchisee's operations, as allowed under applicable law.
10.3 Franchisee acknowledges and agrees that the City is authorized by law
to require certain utility service providers to pay a tax to the City ("Utility
Tax") to the City. The City hereby reserves its right to establish a Utility
Tax and impose the Utility Tax on Franchisee. If the City establishes and imposes
such a Utility Tax, Franchisee agrees to remit such tax to the City in accordance
with City's Municipal Code.
10.4 If the Franchisee installs Facilities on City-owned utility poles or other
structures in the Franchise Area, as compensation for use of the City-owned
utility poles or other structures, the Franchisee shall pay to the City an annual
fee (the "Annual Fee") in the amount of Sixty Dollars ($60.00) for the use of
each City-owned pole or other structure on which a Facility is installed. The
initial Annual Fee shall be due and payable not later than 30 days from the
date of installation of the first Facility on a City-owned pole or other structure
under this Franchise (the "Installation Date"), and shall equal the total number
of Facilities Franchisee then estimates it will install on City-owned poles
or other property during the succeeding twelve (12) months multiplied by the
Annual Fee. The Annual Fee for subsequent years shall be due and payable on
each anniversary of the Installation Date and shall equal the number of Facilities
then installed on City-owned poles or other structures under this Franchise.
10.5 The Annual Fee shall be increased effective January of the first year
of each renewal term hereof based on the percentage change in the U.S. Department
of Labor, Bureau of Labor Statistics, Consumer Price Index of all items, Base
1982-1984, for the Seattle Metropolitan Statistical Area which occurred during
the previous term or renewal term.
10.6 Franchisee shall be solely responsible for the payment of all electrical
utility charges to the applicable utility company based upon the Radio's usage
of electricity and applicable tariffs.
Section 11. Indemnification and Waiver.
11.1 The Franchisee shall indemnify, defend, protect, and hold harmless the
City, its elected and appointed officials, employees, and agents (collectively
referred to as "City") from and against any and all claims, actions, injuries,
demands, liabilities, losses, costs, and damages, including reasonable attorneys'
fees and costs of defense (collectively referred to as "damages") resulting
from or arising out of the activities of the Franchisee, and its agents, employees,
officers, and contractors, taken under this Franchise, except to the extent
such damages are caused by the negligence or willful misconduct of the City.
11.2 Franchisee waives any and all claims, demands, causes of action, and rights
it may assert against the City on account of any loss, damage, or injury to
any Facility or any loss or degradation of the Services as a result of a sudden
or gradual loss of change of electrical power caused by, among others, an Act
of God, an event or occurrence which is beyond the reasonable control of the
City, a power outage, a lightening strike, or occasioned by the installation,
maintenance, replacement or relocation of any City-owned property to which such
Facility is attached.
11.3 The City shall be liable only for the cost of repair to damaged Facilities
arising from the sole or gross negligence or willful misconduct of City or its
employees or agents, and the City shall not be responsible for any damages,
losses, or liability of any kind occurring by reason of anything done or omitted
to be done by the City or by any third party, including, without limitation,
damages, losses or liability arising from the issuance or approval by the City
of a permit to any third party or any interruption in Services.
Section 12. Termination. If Franchisee fails to comply with the provisions
of this Franchise, the City may serve upon Franchisee a written order to so
comply within thirty (30) days from the date of the order. If Franchisee is
not in compliance with this Franchise after expiration of the thirty (30) day
period, the City may, by ordinance, declare an immediate termination of this
Franchise, provided however, if any failure to comply with this Franchise by
Franchisee cannot be corrected with due diligence within the thirty (30) day
period (Franchisee's obligation to comply and to proceed with due diligence
being subject to unavoidable delays and events beyond its control), then Franchisee
may apply to the City for an extension of time within which Franchisee may so
comply, the City's approval of any extension of time applied for by Franchisee
not to be unreasonably withheld.
Section 13. Nonexclusive Franchise. This Franchise is not and shall
not be deemed to be an exclusive Franchise. This Franchise shall not in any
manner prohibit or prevent the City from granting other and further franchises
over, upon, and along the Franchise Area. This Franchise shall not prohibit
or prevent the City from using the Franchise Area or affect the jurisdiction
of the City or any of its powers, rights or privileges over the same or any
part thereof.
Section 14. Franchise Term. This Franchise is and shall remain
in full force and effect for a period of five (5) years from and after the effective
date of the Ordinance; provided, that the parties may, but are not obligated
to, extend the term for up to two (2) five-year extensions, by written agreement.
If either party wishes to extend the term of this Franchise, the party shall
provide the other party with notice of its desire to negotiate a term extension
not less than ninety (90) days prior to the termination of the current term.
However, the Franchisee shall have no rights under this Franchise nor shall
Franchisee be bound by the terms and conditions of this Franchise unless Franchisee
shall, within thirty (30) days after the effective date of the Ordinance file
with the City its written acceptance of the Franchise.
Section 15. Assignment. Franchisee may assign its rights, benefits,
and privileges in and under this Franchise, subject to and conditioned upon
approval of the City, which approval will not be unreasonably withheld or delayed.
Any assignee shall, no later than thirty (30) days before the date of any proposed
assignment, file written notice of intent to assign the Franchise with the City
together with the assignee's written acceptance of all terms and conditions
of the Franchise and promise of compliance. Notwithstanding the foregoing, Franchisee
shall have the right, without such notice or such written acceptance, to mortgage
its rights, benefits, and privileges in and under this Franchise to the Trustee
for its bondholders and assign to any subsidiary, parent, affiliate or company
having common control with Franchisee so long as notice of same is provided
to the City and provided Franchisee remains fully liable to the City for compliance
with all the terms and conditions hereof until such time as the City shall consent
to such assignment as provided above.
Section 16. Insurance. Franchisee shall obtain and keep in force
during the term of the Franchise commercial general liability insurance policies
with insurance companies which initially have an A. M. Best's rating of "A-VI"
or better, and who are approved by the insurance commissioner of the State of
Washington pursuant to Title 48 RCW. Prior to the execution of the Franchise,
Franchisee shall purchase a commercial general liability insurance policy meeting
the requirements set forth herein. Franchisee shall file with the City a certified
copy of all policies and a certificate of insurance evidencing such policies
to be in force. The certificate shall be accompanied by such policy endorsements
as are necessary to comply with the requirements set forth herein. Franchisee's
failure to fully comply with the requirements regarding insurance will be considered
a material breach of the Franchise and shall be cause for termination of the
Franchise pursuant to Section 12 herein.
Such insurance shall name the City as an additional insured and shall provide
coverage to the City and its elected and appointed officials, employees, agents
and professional consultants, including its consulting engineers and attorney.
The coverage so provided shall protect against claims from bodily injuries,
including accidental death, as well as claims for property damages which may
arise from any act or omission of Franchisee, its subcontractors, agents, or
employees.
The insurance shall be maintained in full force and affect at Franchisee's
sole expense throughout the term of the Franchise.
The City shall be given at least forty-five (45) days written notice of cancellation,
non-renewal, material reduction or a material modification of such insurance
coverage. Such notice to the City shall be by certified mail.
The coverage provided by Franchisee's insurance policies shall be primary to
any insurance maintained by City except as to losses or damages attributable
to the sole negligence of the City. Any insurance maintained by City that might
relate to this franchise shall be in excess to Franchisee's insurance and shall
not contribute with or to it.
Franchisee's insurance policies shall protect each insured in the same manner
as though a separate policy has been issued to each. Inclusion of more than
one insured shall not affect the rights of any insured as respect to any claim,
suit or judgment made or brought by or for any other insured or by or for any
employee of any other insured.
Franchisee's insurance policies shall not contain deductible or a self-insured
retentions in excess of $10,000 unless approved by City in writing.
The provision of the coverage in the stated amount shall not be construed to
relieve Franchisee from liability in excess of such limits.
Franchisee shall maintain Worker's Compensation Insurance and/or Longshore
and Harbor Workers insurance as required by state or federal statute. Franchisee's
Labor and Industries account number shall be noted on the certificate of insurance.
Franchisee shall be solely and completely responsible for safety and safety
conditions on its job sites and for its work within the Franchise Area, including
the safety of all persons and property during performance of any work therein.
The services of the City's or City's consultant personnel in conducting construction
review of Franchisee's work relating to the Franchise is not intended to include
review of the adequacy of Franchisee's work methods, equipment, scaffolding,
or trenching, or safety measures in, on or near such Franchise Area or job site.
Franchisee shall provide safe access for the City and its inspectors to adequately
inspect the work and its conformance with applicable statutes, ordinances, rules,
regulations, and the Franchise.
Franchisee shall be solely and completely responsible to perform all work related
to this Franchise in compliance with all applicable federal, state, county and
city statutes, rules, regulations, ordinances, orders and codes. Franchisee's
attention is directed to the requirements of the Washington Industrial Safety
and Health Act, Chapter 49.17 RCW.
The contractual coverage of Franchisee's insurance policies shall be sufficiently
broad enough to insure the provisions of the indemnity/hold harmless clause
of the Franchise subject to the terms and conditions of the insurance policies.
Types and limits of insurance required:
Premises and operations
Broad form property damage including underground, explosion and collapse
hazard (XCU)
Products completed operations (through guaranty period)
Blanket Contractual
Subcontractors
General Employer's Liability & Workers Compensation up to $1,000,000
Employers liability (Stop gap)
2. Automobile Liability
$1,000,000 per accident bodily injury and property damages liability, covering
any owned automobile, hired automobiles, non-owned automobile
3. Umbrella Liability
$2,000,000 per occurrence
$2,000,000 aggregate
Section 17. Arbitration. In the case of any dispute or question arising
between the parties that could result in the award of monetary damages to either
party, the parties shall submit the dispute or question to arbitration; provided,
that this arbitration provision shall not apply to any dispute or question involving
decisions by the City concerning public policy. Unless otherwise provided by
law, the parties may agree on one arbitrator. If the parties cannot agree on
one arbitrator, there shall be three arbitrators, one appointed in writing by
each party and the third chosen by the two named arbitrators. The decision of
the arbitrator under this paragraph shall be final and binding on the parties.
Section 18. Attorneys' Fees. In the event that either party commences
litigation or arbitration proceedings against the other party relating to the
performance or alleged breach of this Franchise, the prevailing party shall
be entitled to all costs, including reasonable attorneys' fees incurred, relating
to such litigation, including those incurred in the event of any appeal.
Section 19. Forum. Any litigation filed by either party arising
out of or relating to this Franchise shall be filed in King County Superior
Court.
Section 20. Franchise Expiration. In the event the use of any Franchise
property is permanently discontinued or no Franchise has been obtained therefor
upon expiration of this Franchise, or within six (6) months after any termination
of this Franchise, Franchisee shall promptly remove from the Franchise Area
all of its Facilities at Franchisee's sole cost and expense. If Franchisee is
unable to effect removal within that six month period due to unavoidable delays
or events beyond its control (including, without limitation, Acts of God, labor
strikes, or the failure or delay of a governmental jurisdiction to issue permits
necessary to effect such removal), then Franchisee may apply to the City for
an extension of time to effect such removal, the City's approval of any extension
of time not to be unreasonably withheld. If Franchisee fails to remove the Facilities
as required by the City, the City shall be entitled to remove the Facilities
at Franchisee's sole cost and expense. The City shall bill the Franchisee for
all costs and expenses incurred in the removal of the Facilities. The Franchisee
shall pay such bill within 30 days of the date of the bill.
Section 21. Security Device to Insure Performance. Franchisee shall,
within thirty (30) days after its acceptance of this Franchise, file with the
City's Public Works Department and at all times thereafter maintain full force
and effect an acceptable security device or escrow account effective for a one-year
period, with automatic renewals unless otherwise canceled upon thirty (30) days
written notice to the City. If Franchisee shall fail to substantially comply
with any one or more of the provisions of this Franchise, then there shall be
recovered jointly and severally from the principal and surety of such security
device or escrow account any damages suffered by City as a result thereof, including
the full amount of any compensation, indemnification, or cost of removal or
abandonment of facilities hereinabove described, up to the full amount of the
said bond, said condition to be a continuing obligation for the duration of
this Franchise and thereafter until Franchisee has discharged all of its obligations
within the City which may have arisen from the acceptance of such Franchise
by Franchisee or from its exercise of any such privilege herein granted. The
security device or escrow account initially filed in accordance with the requirement
of this section shall be in the amount of Two Thousand Dollars ($2,000.00).
In the event of substantial change in volume of street space occupied by Franchisee's
Facilities, the City may permit or may require a corresponding change in the
amount of such security device or escrow account.
Section 22. Miscellaneous.
22.1 If any term, provision, condition or portion of this Franchise shall be
held to be invalid, such invalidity shall not affect the validity of the remaining
portions of this Franchise which shall continue in full force and effect. The
headings of sections and paragraphs of this Franchise are for convenience of
reference only and are not intended to restrict, affect or be of any weight
in the interpretation of construction of the provisions of such sections or
paragraphs.
22.2 Franchisee agrees, as a condition of the granting of this Franchise, that
it shall comply with all applicable laws of the State of Washington, and shall
pay, in a timely manner, all taxes, fees and costs legally imposed on Franchisee
in connection with the activities, properties, and operations of the Franchise.
22.3 Franchisee shall be available to the staff employees of any City department
having jurisdiction over Franchisee's activities 24 hours a day, 7 days a week,
regarding problems or complaints resulting from the attachment, installation,
operation, maintenance, or removal of the Facilities. The City may contact by
telephone the network control center operator at telephone number (800) 873-3468
regarding such problems or complaints.
22.4 Franchisee acknowledges that the City may develop rules, regulations,
and specifications for the attachment, installation, and removal of Facilities
and any similar purpose radios on the City-owned facilities, including poles,
and such rules, regulations, and specifications, and when finalized shall govern
Franchisee's activities hereunder as if they were in effect at the time this
Franchise was executed by the City; provided, however, that in no event shall
such rules, regulations or specifications materially interfere with or affect
Franchisee's right to install, or Franchisee's ability to transmit or receive
radio signals from Facilities installed in accordance with this Franchise, or
increase Franchisee's financial obligations under this Agreement or impose new
financial obligations not already contemplated by this Agreement.
22.5 To the extent the City has actual knowledge thereof, the City will attempt
to inform Franchisee of the displacement of any City-owned pole or other property
on which any Facility is located.
Section 23. 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 Newcastle
Attention: Andy Takata, City Manager
13020 SE 72nd Place
Newcastle, WA 98059
Metricom, Inc.
Attn: Network Real Estate
980 University Avenue
Los Gatos, California 95032
Section 24. Effective Date. This Ordinance, being in compliance
with RCW 35A.47.040, shall be take effect five days after its publication.
PASSED by the City Council this 4th day of April 2000.
APPROVED by the Mayor this 4th day of April 2000.
Sonny Putter, Mayor
ATTEST:
Laura Ulanowski, City Clerk
APPROVED AS TO FORM:
Rod Kaseguma, City Attorney
Date of Publication: 4/7/2000
Effective Date: 4/12/2000
The provisions of this franchise ordinance are agreed to and hereby accepted.
By accepting this franchise ordinance, the Franchisee covenants and agrees to
perform and be bound by each and every term and condition of this ordinance,
and of the City code.
Dated: ________________
FRANCHISEE:
Metricom, Inc.
By
Its
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