Loading...
Sample Franchise InfoOrdinance No. C-______________ An ordinance granting a non-exclusive franchise to use the public right of way to provide noncable telecommunications service to the public, to____________________________________, subject to certain conditions and duties as further provided. THE CITY OF SPOKANE DOES ORDAIN: Section 1. Parties, grant Section 2. Limits on permission Section 3. Term. Section 4. Grantee's general promises. Section 5. Plans to be submitted; expedited approvals. Section 6. Location or relocation. Section 7. Grantee to restore affected areas. Section 8. Information, good engineering, inspections. Section 9. Limited access, no obstruction, accommodation. Section 10. Undergrounding. Section 11. City use. Section 12. Waiver, indemnity, no estoppel, no duty. Section 13. Insurance. Section 14. Taxes, fees. Section 15. Franchise administration. Section 16. Acts discretionary, reservation of authority Section 17. No transfer, no stock to be issued. Section 18. Additional. Section 19. Effective date. Section 1. Parties, grant. A. This is a franchise agreement between the City of Spokane as Grantor, hereafter also "City", and ___________________________________________ as Grantee, hereafter also "Grantee". Grantee is an ___________ Corporation whose home office is ______________________________________________, telephone _____________________; email___________________; fax__________________________. B. In return for promises made and subject to the stipulations and conditions stated, the City grants to Grantee general permission to enter, use, and occupy the right of way, as defined in ch. 83, laws of 2000, section 1 (5), to locate facilities to provide telecommunications service to the public in the City of Spokane. This grant is in the nature of a master permit, as referenced in ch. 83, laws of 2000, section 1 (3), and is not in lieu of a specific use permit as referenced under section 1 (8) thereof. General permission is similarly granted to Grantee to use other areas reserved by regulation, practice, or dedication for public telecommunications utilities, as determined by the Administering Officer, but to the extent such other areas may be outside the right of way as defined by section 1 (5), the protections of ch. 83, laws of 2000, as to Grantee are specifically disclaimed. In addition, Grantee's use is also subject to conditions now or hereafter recognized by the Administering Officer as generally applicable to telecommunications or underground conduit utilities. In accepting this franchise, Grantee stipulates and agrees to the City's authority to issue and require the franchise and stipulates and agrees to the other terms and conditions hereof. Section 2. Limits on permission A. As used in Section 1, "telecommunications service" means the transmission of information by wire, radio, optical cable, electromagnetic, or other similar means for hire, sale, or resale to the general public. For the purpose of this subsection, "information" means knowledge or intelligence represented by any form of writing, signs, signals, pictures, sounds, or any other symbols. "Telecommunications service" excludes the over-the-air transmission of broadcast television or broadcast radio signals and "cable service" as defined in 42 USC 522 (5) or other distribution of multichannel video programming. Grantee stipulates that this instrument extends no rights or privileges relative to the use of the right of way or other areas for such excluded purposes or any other purpose beyond telecommunications service. Should the Administering Officer, with the advice of the City Attorney, determine Grantee is functioning as a cable operator or performing other business functions beyond the scope of permission extended to use the public right of way, the City reserves the right to cancel this franchise and require Grantee to follow any applicable requirements to obtain a cable franchise or other franchise from the City. B. Permission granted is in the nature of a quitclaim of any interest or authority the City may now or hereafter hold to grant general permission. It should not be construed to warrant or guarantee any rights or extend beyond such interest or authority. Permission does not extend to areas outside those listed in Section 1 B or activities outside those stated in Section 2 A, or otherwise to any area outside the authority of the City to extend franchised or general permit access permission, such as buildings or private areas not reserved for general utility access. Grantee is solely responsible to make its own arrangements for any access needed to such places. Permission granted is nonexclusive. Grantee stipulates that the City may grant similar permission to others. The City reserves the right itself to engage in Grantee's business at any time. C. The grant of permission from the City does not extend to municipal buildings or other municipally owned or leased structures or premises held in a proprietary or ownership capacity. For such locations, Grantee should make specific written lease arrangements directly with the municipal department controlling such building or other structure or area. Section 3. Term. This franchise expires at midnight _______________________. This does not affect the City's right to revoke the franchise for cause, abandonment, or because of breach of any promise, condition or stipulation stated. Section 4. Grantee's general promises. As general promises in return for the grant of franchise: A. Grantee promises to become and remain in good standing a corporation registered to do business in the State of Washington, and pay all taxes or fees applicable thereto. Grantee further promises to maintain a reliable mailing address, with a named responsible individual person as necessary for consumer contact and a local agent for service of process, a toll free public telephone number, fax number, and accessible email address 24 hours a day, seven days a week for customer access. Currently, the pertinent information is: Responsible official and mailing address:______________________________________________ _______________________________________________________________________________ local agent, address for process:______________________________________________________ voice telephone:__________________________________________ fax telephone:____________________________________________ email:___________________________________________________ The voice and fax telephone numbers shall be personally staffed at least during normal business hours, Pacific time zone. Any changes to this information shall be stated in writing and sent to the Administering Officer, with copies to the City Clerk, referencing the title of this franchise, ordinance number, and this Section 4 A. B. Grantee promises to provide safe and reliable service to the public at rates that are fair and reasonable, in accordance with all applicable federal, state, and local laws. Grantee promises to comply with any other applicable federal, state and local laws, including municipal regulatory ordinances, resolutions of the City Council and orders of the Administering Officer relating to use of the right of way or otherwise to the application, enforcement or interpretation of this ordinance, as may now or hereafter arise. Besides obligations specific to new construction, Grantee stipulates that all construction, operation, maintenance and repair activity in permitted areas is subject to the City's street obstruction or use permit ordinances or other applicable City ordinances or regulations. C. Grantee promises to coordinate its activities with other utilities and users of permitted areas scrupulously to avoid any unnecessary cutting, damage or disturbance to the public right of way and other permitted areas, and to conduct its planning, design, installation, construction and repair operations at all times so to maximize the life and usefulness of the paving and municipal infrastructure. "Municipal infrastructure" means the road bed and road area, street and sidewalk paving, curbing, associated drainage facilities, bike paths and other construction or improvements pertaining to public travel. It further includes municipal water and sewer lines or other municipal utility facilities, as well as municipal traffic signal, street lighting and communications facilities in the right of way or easements for municipal use. It further includes skywalks, street trees, plants, shrubs, lawn and other ornamental or beautification installations owned by the City in the right of way or other ways open for public travel and accepted for municipal management or control as such. The definition is intended to encompass any municipal physical plant, equipment, fixtures, appurtenances or other facilities located in or near the right of way or easements for municipal use. D. Grantee promises that its uses of the right of way or other permitted areas, and any rights granted herein, shall at all times be subordinated to and subject to municipal infrastructure needs and uses, the general public travel and access uses and the public convenience, except as may be otherwise required by law. E. Grantee promises to conduct all operations in or near the right of way and other permitted areas so to minimize or entirely avoid any hazard, danger or inconvenience to municipal infrastructure needs and uses, public travel, and the public convenience. F. Grantee promises to maintain membership in good standing with the Inland Empire Utility Coordinating Council (IEUCC) or other similar or successor organization designated to coordinate underground fixture locations and installations. Grantee is familiar with ch. 19.122 RCW, Washington State's "Underground Utilities" statute. Grantee certifies it understands local procedures, custom and practice relating to the one-call locator service program, and will see to it that its contractors or others working in the right of way on Grantee?s behalf are similarly well informed. Section 5. Plans to be submitted; expedited approvals A. Grantee's initial construction and installation plan shall be submitted to the Administering Officer as requested under such advance notification as the Administering Officer may reasonably require. B. As requested, Grantee promises to submit all new or remodel construction plans to the Administering Officer for review and approval, with a copy of such plans to the Director of Transportation and any other information requested by the City. Grantee promises that all its installations shall be placed in the standard location for telephone conduit or overhead lines, as determined by local regulation, custom and practice, or as designated by the Administering Officer. C. Procedures to expedite approvals i. Where Grantee requires action from the City on a use permit as referenced in section 3 (2) (c), ch. 83, laws of 2000 of the State of Washington in less than thirty (30) days, it shall make application therefore to the responsible municipal official, with a copy to the Administering Officer, or if no official is designated, simply to the Administering Officer. Grantee shall state in writing the request for expedited action and the full circumstances, including the reasons why a shortened time period is necessary and the time within which action is requested, except in case of emergency, verbal contact with the Administering Officer with a writing complying with this section within 1 business day of contact is permitted. Grantee shall reference this Section 5 C, and a reference to the City of Spokane Ordinance number for this number. ii. The responsible official shall consult with the Administering Officer and a decision made on the request, in the sound discretion of the responsible official, or in absence of such designation, by the Administrating Officer. Grantee is responsible for any municipal expenses, loss or liability in accommodating the request for expedited approval, including staff overtime or outside support needed to expedite approvals. Section 6. Location or relocation A. The City reserves the right to change, regrade, relocate, abandon, or vacate the right of way, and/or any skywalk or other permitted area, at no expense or liability to the City except as may be required by section 6, ch. 83, laws of 2000 of the State of Washington, also referenced in subsections B-F of this section. Except as otherwise so required by law, Grantee promises to relocate, remove, or reroute its facilities, as ordered by the Administering Officer, at its sole expense and liability. Grantee promises to protect and save harmless the City, its officers, agents and employees from any customer or other third party claims for service interruption or other losses in connection with any such change, relocation or vacation of the right of way or other permitted areas. B. The Administering Officer may require Grantee to relocate permitted facilities within the right of way, as defined in ch. 83, laws of 2000, section 1 (5), when reasonably necessary for construction, alteration, repair, or improvement of the right of way for purposes of public welfare, health, or safety, giving such notice thereof as may be required by law in any means reasonably calculated to inform Grantee, including posting the same on the City?s website, publication in the Official Gazette, or other means. In calculating the date that relocation must be completed, the Administering Officer shall consult with affected parties as may be required by law and consider the extent of facilities to be relocated, the services requirements, and the construction sequence for the relocation, within the City's overall project construction sequence and constraints, to safely complete the relocation. C. Grantee shall complete the relocation by the date specified by the Administering Officer, unless extended by said official after a showing by Grantee that the relocation cannot be completed by the date specified using best efforts and meeting safety and service requirements. D. Grantee may not seek reimbursement for its relocation expenses from the City when the City requests relocation under subsection B of this section except: 1. Where Grantee has paid for the relocation cost of the same facilities in the right of way, as defined, at the request of the City within the past five years, Grantee's share of the cost of relocation will be paid by the City when the City is requesting the relocation; 2. Where aerial to underground relocation of authorized facilities in the right of way as defined is required by the City under subsection B of this section, where Grantee has any ownership share of the aerial supporting structures, the additional incremental cost of underground compared to aerial relocation, or as provided for in the approved tariff if less, will be paid by the City requiring relocation; and 3. Where the City requests relocation under subsection B of this section in the right of way as defined solely for aesthetic purposes, unless otherwise agreed to by the parties. 4. The parties agree that "relocation" refers to a permanent movement of facilities required of Grantee by the City, and not a temporary or incidental movement of facilities, such as a raising of lines to accommodate housemoving and the like, or other revisions Grantee would accomplish without regard to municipal request. E. As provided by state law, where a project referenced in subsection B of this section is primarily for private benefit, the private party or parties shall reimburse the cost of relocation in the same proportion to their contribution to the costs of the project. Grantee understands however that the City has no obligation to collect such reimbursement and enforcement of any such rights shall be at Grantee?s sole expense and liability. On submission of the issue by stipulation of all parties, the Administering Officer may arbitrate any dispute referenced in this subsection E or refer the matter to the Hearings Examiner, provided, costs of the same as may be assessed by the City shall be borne by the participants. Grantee is not otherwise precluded from recovering costs associated with relocation required under subsection B of this section consistent with applicable state or federal law. F. The Administering Officer may require the relocation of facilities at Grantee's expense at any location in the event of an unforeseen emergency that creates an immediate threat to the public safety, health, or welfare. [B.-F. cross ref., ch. 83, laws of 2000, section 6] G. Where the City determines to abandon or vacate any right or way or other permitted area, it is the Grantee's responsibility to resolve any question of Grantee's continued occupancy or use of such areas directly with the owner of such areas, and the City has no obligation whatsoever with respect thereto. Section 7. Grantee to restore affected areas. Subject always to the cost apportionment requirements of section 6, as may apply: A. Whenever Grantee damages or disturbs any location in or near the right of way or other permitted area, Grantee agrees promptly to restore such area to its original or better condition at its sole expense and liability, to the satisfaction of the Administering Officer. Grantee promises likewise to restore and patch all surfaces cut and to repave entirely any such portions of the right of way or other permitted areas as determined necessary by the Administering Officer to maintain and preserve the useful life thereof. Grantee promises that any damage or disturbance to facilities, fixtures or equipment of the City or others shall be promptly repaired to standards approved by the Administering Officer. For pavement restorations, any resulting patch or restoration shall be thereafter properly maintained in good condition and repair by Grantee until such time as the area is resurfaced or reconstructed. B. Whenever Grantee damages or disturbs any area in or near the public right of way or permitted areas, or plans to do so, Grantee stipulates the City may: 1) require Grantee to repave an entire lane within any cut or disturbed location, or greater area, to the extent affected by Grantee's construction; 2) require Grantee to common trench with any other underground installation in the right of way, with cost sharing to be negotiated between the parties involved, or in absence of agreement, as directed by the Administering Officer; and/or 3) to avoid frequent or needless street cuts, require Grantee to install additional conduit with or without dark fiber, as directed by the Administering Officer, making such additional conduit available to others under fair and reasonable terms and conditions, including full reimbursement of Grantee's costs, unless Grantee shows such requirement is unreasonable because such requirement operates to impose unfair an burden or expense upon Grantee. C. Should Grantee fail or delay in performing any obligation here or elsewhere stated, or where the Administering Officer deems necessary to protect the right of way or other permitted areas or to avoid liability, risk or injury to the public or the City, the Administering Officer may proceed to perform such obligation, including any remedial or preventive action deemed necessary, at Grantee's sole expense and liability, except where otherwise required by law, but no action or inaction by the Administering Officer shall relieve Grantee of its obligation to indemnify and hold the City harmless set forth hereafter. Prior to undertaking corrective effort, the Administering Officer shall make a reasonable attempt to notify to Grantee, except no notice is needed if the Administering Officer declares an emergency or determines a need for expedient action. This remedy is supplemental and not in alternative to any other municipal right. Section 8. Information, good engineering, inspections. A. Grantee promises to supply and maintain updated, at no cost, any information requested by the Administering Officer or City Director of Transportation to coordinate municipal functions with Grantee's activities and fulfill any municipal obligations under state law. Said information may include an installation inventory, location of existing or planned facilities, maps, plans, operational data, and as-built drawings of Grantee's installations, either in the City or County of Spokane. Said information may be requested either in hard copy and/or electronic format compatible with the City's data base system, as now or hereafter existing, including the City's geographic information service (GIS) data base. Grantee shall keep the Administering Officer informed of its long-range plans for coordination with the City's long range plans. B. The parties understand that Washington law limits the ability of the City to shield from public disclosure any information given to the City. Accordingly, the parties agree to work together to avoid disclosures of information which would result in economic loss to Grantee because of anticipated mandatory disclosure requirements to third persons. In the event the parties cannot agree, the dispute shall be submitted to the City Hearings Examiner, subject to the right of either party to appeal the decision to superior court within 30 days on the basis of the record before the Hearings Examiner because the decision is arbitrary and capricious, rests on an error of law, or is not supported by substantial evidence. Notwithstanding this option, Grantee must indemnify and hold harmless the City for any loss or liability for costs or attorneys fees because of nondisclosures requested by Grantee under Washington?s open public records laws. C. Grantee promises all of its property and facilities shall be constructed, operated and maintained in good order and condition and in accordance with good engineering practice. In connection with the civil works of Grantee's system, such as, but not limited to, trenching, paving, compaction and locations, Grantee promises to comply with the American Public Works Association Standard Specifications, the edition being that in current use by the City, together with the City's Supplemental Specifications thereto, all as now or hereafter amended. D. Grantee promises its system shall comply with the applicable federal, state and local laws, and the National Electric Safety Code and Washington Electrical Construction Code, where applicable. E. The City reserves the right to reasonably inspect and approve all of Grantee's installations, now or hereafter, and Grantee shall pay all charges for inspection, but no action or inaction shall create any duty or obligation by the City to inspect or approve any installation. Additionally, when deemed necessary, but not more than once every three (3) years, the Administering Officer may require the Grantee to furnish at Grantee's expense a verified certificate by an independent professional engineer that he/she has inspected Grantee's installations in the public right of way, and that the facilities are reasonably protected from damage and injury, and the system is maintained in accord with good engineering practice any applicable legal system standards. Section 9. Limited access, no obstruction, accommodation. A. The City reserves the right to limit or exclude Grantee's access to a specific route, public right of way or other location when, in the judgment of the Administering Officer, there is inadequate space, a pavement cutting moratorium, subject to the requirements of applicable law, unnecessary damage to public property, public expense, inconvenience, interference with City utilities, or for any other reasonable cause determined by the Administering Officer, provided, it shall do so consistent with the federal Telecommunications Act of 1996. [cross reference, ch. 83, laws of 2000, section 5] B. Grantee will not obstruct, hinder, damage, or otherwise interfere with municipal infrastructure uses of the right of way or other permitted areas. Except where otherwise authorized in writing, Grantee shall maintain a minimum underground horizontal separation of five (5) feet from City water facilities and ten (10) feet from above-ground City water facilities; PROVIDED, that for development in new areas, the City, together with Grantee and other utility purveyors or authorized users of the right of way, will develop and follow the Administering Officer's determination of a consensus for guidelines and procedures for determining specific utility locations, subject additionally to this franchise. C. In addition, subject however to Ch. 83, laws of 2000, the Administering Officer may determine with respect to franchised uses, in the exercise of reasonable discretion, when and where reasonable accommodation shall be made by Grantee to the City for public needs or, where requested, other third party needs, how such accommodation should be made, and a reasonable apportionment of any expenses of the same; PROVIDED, that this franchise creates no third party beneficial interests in any other entity, or any enforceable contractual right to require the City to order such accommodation. Notwithstanding the foregoing, it remains the responsibility of the Grantee to anticipate and avoid conflicts with other right of way occupants or users, other utilities, franchisees, or permittees. The City assumes no responsibility for such conflicts. Section 10 Undergrounding. A. The purpose of this section is to recognize and preserve the City's control over uses of the public right of way, consistent with the municipal policy favoring undergrounding of overhead lines for aesthetic reasons. B. The City finds that overhead lines and aboveground wire facilities and installations in the right of way and other permitted areas adversely impact upon the public use and enjoyment of such areas. Consistent with any general municipal undergrounding policy or program now or hereafter developed, the City reserves the right to require Grantee's participation in municipally imposed undergrounding or related requirements as may now or hereafter arise, as a condition of Grantee's new installation or major maintenance or restoration construction activities of overhead facilities under this franchise. Grantee agrees to coordinate its underground installation and planning activities with the City's underground plan and policies; provided, in no event shall any third party beneficiary rights be implied or created. C. Nothing in this section shall be permitted in conflict with section 6 of Ch. 83, laws of 2000, and the provisions of this section shall be applied in conformity thereto. Section 11. Facilities for city use. A. Consistent with ch. 83, laws of 2000, section 7, at such time when Grantee is constructing, relocating, or placing ducts or conduits in right of way or other permitted areas, the Administering Officer may require Grantee to provide the City with additional duct or conduit and related structures necessary to access the conduit at mutually convenient locations. In such event, the parties further agree that the City?s access points to City fiber in Grantee?s system shall be at least sufficient to permit municipal access for municipal needs, provided that, where required by law: 1. The City enters into a contract with the Grantee consistent with RCW 80.36.150. The contract rates to be charged should recover the incremental costs of Grantee. If the City makes the additional duct or conduit and related access structures available to any other entity for the purposes of providing telecommunications or cable television service for hire, sale, or resale to the general public, the rates to be charged, as set forth in the contract with the entity that constructed the conduit or duct, shall recover at least the fully allocated costs of Grantee. Grantee shall state both contract rates in the contract. The Administering Officer shall inform the Grantee of the use, and any change in use, of the requested duct or conduit and related access structures to determine the applicable rate to be paid by the City. 2. Except as otherwise agreed by Grantee and the City, the City agrees that the requested additional duct or conduit space and related access structures will not be used by the City to provide telecommunications or cable television service for hire, sale, or resale to the general public. 3. The City shall not require that the additional duct or conduit space be connected to the access structures and vaults of the Grantee. B. This section shall not affect the provision of an institutional network by a cable television provider under federal law. [cross ref., ch. 83, laws of 2000, section 7] Section 12. Waiver, indemnity, no estoppel, no duty. A. Grantee waives all claims, direct or indirect, for loss or liability, whether for property damage, bodily injury or otherwise, against the City arising out of Grantee's enjoyment of franchise or permit privileges. B. Grantee shall at all times fully defend, indemnify, and hold harmless the City, its boards, officers, agents and employees harmless from any and all claims, accidents, losses, or liabilities arising from or by reason of any intentional or negligent act, occurrence or omission of the Grantee, whether singularly or jointly with others, its representatives, permittees, employees or contractors, in the construction, operation, use, or maintenance of any of the Grantee's property or facilities, and/or enjoyment of any privileges granted by this franchise, or because of Grantee's performance or failure to perform any franchise obligations. Such indemnity includes costs of negotiation or defense, any other costs incurred, and reasonable attorneys fees. C. Grantee hereby waives immunity under Title 51 RCW in any cases involving the City of Spokane and affirms that the City and Grantee have specifically negotiated this provision, as required by RCW 4.24.115, to the extent it may apply. _________________________ (Grantee must initial) D. Whenever any judgment is recovered against the City or any other indemnitee for any such liability, costs, or expenses, such judgment shall be conclusive against the Grantee, not only as to the amount of such damage, but as to its liability, provided the Grantee has reasonable notice or actually knew, or should have known, of the pendency of such suit. E. Grantee understands it must accept the right of way or any other permitted areas "as is", and the City has made no assessment and makes no representations or guarantees as to 1) the suitability or safety of its location of facilities, 2) the safety or security of any other facilities, or 3) possible hazards or dangers arising from other uses of the right of way or permitted by the City, other users, or anyone else. Grantee agrees to protect the City from any claims for refund or damages claimed by its customers or other third parties because of loss or interruption of service arising from damage or disruption to Grantee?s facilities placed in the right of way or other areas subject to this instrument. F. No action, error, or omission, or failure to act by the City, its agents or employees, in connection with administering its rights, duties, or regulatory functions related to this ordinance shall be asserted by the Grantee, directly, indirectly, or by way of seeking indemnification or as an assertion that the City has waived or is estopped to assert any municipal right hereunder, against the City, its agencies, boards, officers, agents, or employees. G. It is not the intent of this ordinance to acknowledge, create, imply, or expand any duty or liability of the City with respect to its role as permitting authority, in the exercise of its police power or for any other purpose. Any City duty nonetheless deemed created shall be a duty to the general public and not to any specific party, group, or entity. Section 13. Insurance. A. During the term of this franchise, the Administering Officer, with the advice of the City Risk Manager and City Attorney may review the relative risk of Grantee's installation and operations and direct changes to insurance and liability protections as he/she may require. Unless so modified, Grantee shall furnish satisfactory evidence of commercial general liability insurance and maintain the same in good standing, with limits of at least five hundred thousand dollars ($500,000) per occurrence and one million dollars ($1,000,000) aggregate, with the City of Spokane named as an additional insured. B. Any Grantee insurance policy or approved self insurance arrangements addressing requirements of this franchise, including this section, section 12, or otherwise because of Grantee's negligent or intentional acts or omissions shall be primary to any City insurance coverage or, in the event the City is self insured, any Grantee policy shall afford first dollar protection coverage for risks included in Grantee's operations. On or before June 1st of each year and at the time of granting this franchise, Grantee shall file with the City Clerk, with copy to the City Risk Manager, proof of continued insurance coverage, at least in the amounts required in this Section, through a Certificate of Insurance, including the additional insured endorsement indicating City coverage required herein and a provision that said coverage may not be cancelled or reduced without at least thirty (30) days notice to the City, filed as above provided. Section 14. Taxes, fees. A. The parties understand that RCW 35.21.860 currently prohibits a municipal franchise fee for permission to use the right of way for telephone business purposes, as that activity is legally defined in that context. Grantee agrees if this prohibition is removed, that the City may assess a reasonable franchise fee, consistent with any applicable requirements of the 1996 federal Telecommunications Act. In addition, Grantee acknowledges and accepts section 8 of Ch. 83, Laws of 2000. B. The parties further understand that RCW 35.21.870 currently limits the rate of City tax upon telephone business activities, as defined in the applicable context, to six percent (6%) of gross receipts, unless a higher rate is approved by vote of the people. The parties agree however that nothing in this franchise shall limit the City's power of taxation, as may now or hereafter exist. Grantee stipulates that all of its business activities now or hereafter conducted in the City of Spokane are taxable activities subject to the six percent (6%) rate to be included in gross receipts received, as imposed under the City's telephone tax, adopted in chapter 8.10 SMC, and as may now or hereafter be lawfully amended. C. Grantee will pay the City all reasonable costs of granting, enforcement, or as necessary to review the provisions of this franchise, as ordered by the Administering Officer, whether as a result of accrued in house staff time or out-of-pocket expenses or administrative costs, as well as expenses of retaining independent technical, legal or financial consultants or advisors. Such obligation further includes municipal fees related to receiving and approving permits or licenses, inspecting plans and construction, or relating to the preparation of a detailed statement pursuant to chapter 43.21C RCW. Upon request of Grantee, the City will submit proof of any charges or expenses incurred. For any project or time frame, Grantee can also request a written estimate from the Administering Officer, in advance of costs planned to be expended by the City, and Grantee may object to any costs as provided hereafter in the case of a challenged cost billed by the City. Except as otherwise provided, said fees must be paid within thirty (30) days of receipt of the City's billing. Grantee will pay all other taxes applicable to its operations or activities within the City of Spokane, all such obligations also being a condition of this franchise. D. Grantee shall make all required payments in the form, intervals and manner requested by the City Treasurer, and furnish him/her any information related to his/her revenue collection functions reasonably requested. In case of audit, the Treasurer may require Grantee to furnish a verified statement of compliance with Grantee's obligations or in response to any questions. Said certificate may be required from an independent, certified public accountant, at Grantee's expense. All audits will take place on Grantee's premises or offices furnished by Grantee, which shall be a location within the City of Spokane. Grantee agrees, upon request of the City Auditor, to provide copies of all documents filed with any federal, state, or local regulatory agency, to be mailed to the City Auditor on the same day as filed, postage prepaid, affecting any of Grantee's facilities or business operations in the State of Washington. Section 15. Franchise administration. A. General administration of this franchise for the City is through the office of the Administering Officer, an official appointed by the City Manager until January 1, 2001 and thereafter by the Mayor. All questions of application, interpretation, conflict or ambiguity arising out of or in connection with this franchise are determined by the Administering Officer, except only where otherwise specifically stated. B. The Administering Officer may promulgate rules, interpret provisions, resolve conflicts and develop procedures needed to implement and enforce the franchise provisions. Considering Sections 1, 2, 4, 16, and the other portions of this franchise, the Administering Officer may grant exceptions or impose additional requirements in particular circumstances in the exercise of reasonable discretion, but the same shall not be a defense to any franchise obligation unless set forth in writing by the Administering Officer. All exceptions shall be revocable. The Administering Officer may issue inspection orders, compliance orders, with a compliance schedule and terms thereof, with or without notice, and failure to adhere to the terms thereof shall be a violation of this franchise. For the performance of all franchise obligations, Grantee agrees that time is of the essence. C. Should Grantee wish to challenge any cost billed, obligation or requirement arising under this franchise, Grantee must submit its complete file, with verification, showing the basis of Grantee's position. The Administering Officer may also request any additional information deemed necessary. Within twenty (20) days after receiving Grantee's submittal and any requested information, the Administering Officer shall issue a decision, and in the case of any challenged cost, a finding determining the true and allowed amount of said cost. The Administering Officer may set off any allowed cost against any other cost owing the City, whether under this franchise or otherwise arising between Grantee and the City. D. Grantee may appeal any decision of the Administering Officer to the City Hearings Examiner by filing a written notice of appeal within ten (10) days of the date of issuance by the Administering Officer, with copies also sent to the Administering Officer and City Attorney. The notice must include a copy of the decision and record submitted to the Administering Officer by Grantee. The Hearings Examiner shall request the Administering Officer to submit any response thereto within ten (10) days. After this, the Hearings Examiner shall schedule an administrative hearing within twenty (20) days and decide the question submitted. The Examiner's decision is final, PROVIDED, the parties agree it may be subject to judicial review solely on the question of whether the decision is arbitrary and capricious, contrary to law, or not supported by substantial evidence, considering the record presented to the Hearings Examiner. Section 16. Acts discretionary, reservation of authority A. All City acts undertaken pursuant to this franchise shall be deemed discretionary, guided by considerations of the public health, safety, esthetics and convenience, sections 1, 2, 4 and other provisions of this franchise. Grantee stipulates and agrees that this franchise is subject to the City Charter of the City of Spokane. Grantee understands the Charter's provisions are incorporated herein, where applicable. Grantee agrees that the City reserves all municipal powers now or hereafter granted by law, including without limitation the power to tax and license, regulate activities and land use, protect the public health and safety, and regulate and control use of public right of way. B. Should Grantee have any question as to a conflict or ambiguity with respect to its rights under this franchise or applicable federal or state law, it agrees to first submit the same first to the Administering Officer, with any supporting materials or authorities. The Administering Officer may hold a hearing or refer the matter to the Hearings Examiner for prompt resolution. The intent of this provision is to provide a quick and efficient means of understanding and resolving problems arising under this instrument, consistent with the objectives of any general municipal regulatory program, as now or hereafter arising and other applicable laws. Section 17. No transfer, no stock to be issued. A. This franchise shall not be sold, leased, assigned, or otherwise alienated without the express consent of the City, expressed by ordinance of the City Council passed for that purpose, and no rule of estoppel shall be invoked against the City in case the City shall assert the invalidity of any attempted transfer in violation of this section. The City agrees not to withhold consent where Grantee demonstrates that the requested assignment is in the nature of a change of name or a change in the nature of a reorganization or merger of or with an entity controlled by, controlling, or under the common control of the Grantee, there being no other change in the resulting entity's ability to meet its franchise obligations. B. The City reserves the right to invoke any or all provisions of this franchise upon the Grantee's successors or assigns, judgment creditors, or distributees of facilities or property used in enjoyment of privileges conferred herein, whether or not stated elsewhere, all without waiver of the right to withhold consent not expressly given of any such transfer and/or require a new franchise. C. Grantee will not permit installations by others in franchised areas, without written approval from the Administering Officer. Such approval shall not be in lieu of a franchise or other requirements of the City. Whether or not permitted, Grantee remains responsible for all third party users permitted or allowed by Grantee for compliance with this franchise. The intent of this provision is so third parties who might otherwise desire to use Grantee's facilities are also required to comply with City requirements regarding franchises, as may apply. D. Grantee promises never to issue any capital stock on account of this franchise or any permission granted under the terms of this ordinance, or the value thereof. Grantee further agrees that it will not have any right to receive, upon a condemnation proceeding or other negotiation by the City to acquire the properties of the Grantee, any payment or award on account of this franchise or permission or its value. Grantee waives all such claims against the City, and also any claims for any municipal revision, action, inaction, curtailment, suspension, revocation, or change in municipal policy or regulation relating to Grantee's franchised activities. The City shall have no obligation to make any payment to Grantee or award in condemnation for any other asset or interest of Grantee, except as required under the State of Washington and United States Constitutions or as state or federal laws may preemptively require. Section 18. Additional. A. A determination by the City Attorney or court of competent jurisdiction that any section or portion of a section of this franchise is unenforceable, illegal, preempted, waived or otherwise ineffective, or that the City is exposed to substantial risk or liability because of Grantee?s enjoyment of franchise privileges, shall comprise at the City's option, an expiration event, effective upon ninety (90) days' written notice by the City to Grantee; PROVIDED, that under non-emergent circumstances, Grantee shall first be afforded a right of cure of thirty (30) days written notice. No notice is required in case of emergent conditions. Except as provided heretofore, if any provision is held unlawful or unenforceable, in general or in any specific circumstance, it shall not affect the remainder. The parties agree also as an option in this case that affected portions of the franchise may be renegotiated, and that such agreement may include severability of any affected portion. B. In the event of significant change in the law regulating Grantee's activities under this franchise or change in municipal authority to act under the terms of the franchise, or significant change or advancement in technology governing Grantee's functions, the parties, upon mutual agreement, may renegotiate any or all provisions of this franchise, but no obligation to do so is created by this section. C. This franchise may be revoked by the City Council by resolution in event the Grantee or any of Grantee's lessees or other users shall fail, after notice or demand, to comply with any of the terms, conditions, or obligations imposed upon the Grantee hereunder, but the City shall have no obligation to do so. No forbearance by the City of any term or condition of this franchise in any instance or at any time shall ever comprise a waiver or estoppel of the City's right to enforce said term or condition. D. Grantee may abandon and surrender its franchise to the City upon six (6) months written notice to the Administering Officer, with copies thereof served upon the City Manager and City Attorney. Abandonment shall be subject to acceptance by the City, by a resolution of acceptance adopted by the City Council. E. Upon abandonment, non renewal, revocation or expiration of this franchise, and if no extension is granted, Grantee may, at the discretion of the Administering Officer, be required in part or entirely, to remove all its fiber, wire, poles, fixtures, and other facilities or equipment installed or used in the enjoyment of the franchise. Alternatively, the Administering Officer may direct, limit or condition Grantee's removal, sale or continued use or abandonment of Grantee's facilities and equipment, either by agreement or through means of any other lawful municipal power or right. The City may continue to invoke any provision of this franchise against Grantee or any successor entity enjoying de facto franchise privileges after revocation or expiration. The City may take all other actions deemed necessary and proper by the City to accommodate the transition to any successor as may be in the best interests of the City and its residents. F. This franchise is governed by the laws of the State of Washington, and venue for any litigation arising out of or in connection with privileges extended herein is stipulated to be in Spokane County. Section 19. Effective date. The provisions of this ordinance and grant of franchise permission shall be effective as of ____________________, 2000, and remain in force and effect for the remainder of the term, as specified in Section 3; PROVIDED, that it shall not be effective unless and until the written acceptance of this ordinance by the Grantee, signed by its proper officers, shall be filed with the City Clerk prior to ________________________, 2000. Passed the City Council _______________________________, 2000. _______________________________________ M A Y O R Attest: ____________________________________ City Clerk Approved as to form: _____________________________________________ Assistant City Attorney _________________________________________________ ACCEPTANCE OF CITY FRANCHISE Ordinance No. ________________, effective _______________________, 2000. I, , am the President and Chief Executive Officer of _________________________________,and am an authorized representative to accept the above referenced City franchise ordinance on behalf of ______________________________________. I certify that this franchise and all terms and conditions thereof are accepted without qualification or reservation. DATED this ______ day of ___________________________, 2000. ________________________________________ Witness: _______________________________  Bothell, WA Ordinance No. 1795 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. WHEREAS, Metromedia Fiber Network Services, Inc., ("MFNS") has requested that the City Council grant it a nonexclusive franchise, and WHEREAS, the City Council has the authority to grant franchises for the use of its streets and other public properties (RCW 35A.47.040), NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BOTHELL, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. Franchise Granted. Pursuant to RCW 35A.47.040, the City of Bothell, a Washington municipal corporation (hereinafter the "City"), hereby grants to MFNS, a corporation organized under the laws of the State of Delaware, its heirs, successors, legal representatives and assigns, subject to the terms and conditions hereinafter set forth, a franchise for a period of ten (10) years, beginning on the effective date of this ordinance, set forth in Section 27 herein. 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. APPROVED: MAYOR, MICHAEL W. NOBLET ATTEST/AUTHENTICATED: CITY CLERK, JOANNE TRUDEL APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY: BY GREG A. RUBSTELLO FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: PUBLISHED: EFFECTIVE DATE: ORDINANCE NO. SUMMARY OF ORDINANCE NO. of the City of Bothell, Washington On the _______ day of _____________, 2000, the City Council of the City of Bothell, passed Ordinance No. ________. A summary of the content of said ordinance, consisting of the title and a summary of each section, provides as follows: 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. The full text of this Ordinance will be mailed upon request. DATED this day of , 2000. CITY CLERK, JOANNE TRUDEL FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: PUBLISHED: EFFECTIVE DATE: ORDINANCE NO. ACCEPTANCE OF FRANCHISE 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. By: ______________________________ Its: _____________________________