HomeMy WebLinkAboutO-2675 - Grants wireless facilities franchise (Special)J>»...,•
CITY OF MARYSVILLE
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ORDINANCE NO.do"S
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AN ORDINANCE OF THE CITY OF MARYSVILLE,WASHINGTON,SETTING
FORTH THE AGREEMENT BETWEEN THE CITY OF MARYSVILLE AND
CLEARWIRE US LLC, a Nevada limited liability company,GRANTING CLEARWIRE
US LLC, ITS SUCCESSORS AND ASSIGNS A NONEXCLUSIVE FRANCHISE TO
CONSTRUCT,OPERATE,MAINTAIN,REMOVE,REPLACE,AND REPAIR
WIRELESS FACILITIES WITHIN CITY RIGHT OF WAY.
WHEREAS, on /0 12-3 ,2006,the City of Marysville adopted Ordinance No.
2 (piP?,adopting Wireless Communication Facility Franchise Regulations and
adopting a new Chapter 5.73 ofthe Marysville Municipal Code; and
WHEREAS,the City has also adopted land use regulations regarding Wireless
Communications Facilities,which regulations are set forth in Ch,19.43 MMC;
and
WHEREAS,pursuant to Ch. 5.73 MMC,CLEARWIRE US LLC (hereinafter
"Company")has applied for a nonexclusive franchise to operate and maintain its wireless
facilities ("Facilities")through certain public rights of way and property within the City
of Marysville (hereinafter the "City");and,
WHEREAS,Company and the City have engaged in negotiations regarding the right of
Company to install, operate and maintain wireless telecommunications equipment and
facilities in portions ofthe right of way ofthe City; and
WHEREAS,Company and the City desire to enter into an agreement authorizing
Company to use portions of the right of way in the City for its wireless
telecommunications equipment and facilities subject to certain conditions and
restrictions;
WHEREAS, RCW 35A.47.040 and Ch. 35.99 RCW authorize the City to grant
nonexclusive master permits or franchises for telecommunications facilities in City rights
ofway, streets and other designated public properties,public ways, or other ways;
NOW,THEREFORE,THE PARTIES DO HEREBY AGREE AS FOLLOWS:
Section 1.Grant ofFranchise
1.1 Subject to Chapters 5.73 and 19.43 of the Marysville Municipal Code ("MMC")
COMPANY is hereby granted a franchise (also referred to as a "master permit" or
"Wireless Right of Way Use Agreement"or "Agreement")to use portions of the
improved and maintained City right of way (also referred to as the "Franchise Area") for
the purpose ofconstructing,replacing,maintaining and using equipment and facilities for
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a wireless telecommunications system,provided COMPANY shall first obtain all
necessary permits and authorizations required by the City.
Such permits and authorizations shall be issued subject to the provisions of Title
12 MMC and the provisions ofthis Agreement,which provisions may be incorporated by
reference in such permits and authorizations as if fully set forth in whole therein. Such
permits and authorizations shall also be subject to any other applicable statutes,
ordinances,resolutions,codes, policies and standards. Nothing provided herein shall in
any way limit the City's authority to otherwise exercise its police powers.
1.2.COMPANY and the City recognize that the rights authorized to be used by
COMPANY pursuant to 1.1 above will permit COMPANY to construct some or all of a
wireless telecommunications system in the City right ofway.
COMPANY agrees to cooperate with the City's Public Works Department to
identify and evaluate the portions of right of way necessary for COMPANY to serve its
customers.Priority shall be given to use ofthose portions of right of way,construction
upon which can be coordinated with other City and private construction activities,which
will least impact the existing condition ofthe right ofway, will least impact traffic during
construction,and will least impact adjacent neighborhoods during construction and after
installation.The Chief Administrative Officer, or other person designated by the Chief
Administrative Officer or hislher designee (e.g., the City Engineer), shall be authorized to
approve the use by COMPANY of such right of way requested by COMPANY,and the
final decision regarding the use of the right of way shall remain in the sole discretion of
the Chief Administrative Officer or hislher designee in accordance with state and federal
law.
1.3.COMPANY shall be subject to a one-time administrative fee of two thousand
dollars ($2,000.00)for City's costs relating to the issuance and administration of this
Agreement.COMPANY agrees to pay such administrative fee upon acceptance of this
Agreement.
Nothing provided herein shall exempt or otherwise limit COMPANY's obligation
to pay any applicable tax required by the Marysville Municipal Code or any other
applicable regulation.
Pursuant to Section 35.21.860 ofthe Revised Code of Washington ("RCW"),the
City is precluded from imposing a franchise fee on a telephone business as defmed in
RCW 82.04.065,except for administrative expenses or any tax authorized by RCW
35.21.865.COMPANY hereby warrants that its operations as authorized under this
Agreement are those of a telephone business as defined in RCW 82.04.065. As a result,
the City currently lacks the authority to impose a franchise fee under the terms of this
Agreement,other than as described herein.
However,the City hereby reserves its right to impose a franchise fee on
COMPANY,for purposes other than to recover its administrative expenses,if
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COMPANY's operations as authorized by this Agreement change so that not all uses of
the right of way 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 or amended. In either
instance, the City also reserves its right to require that COMPANY obtain a separate
franchise for its change in use, which franchise may include provisions intended to
regulate COMPANY's operations, as allowed under applicable law.
The City reserves its right to impose site specific charges for the use ofCity right
of way for placement of wireless services equipment or facilities as provided in RCW
35.2I.860(1)(e)by execution of an agreement in substantially the form set forth in
Exhibit A -Addendum to Wireless Right ofWay Use Agreement.
No rights shall pass to COMPANY by implication. Without limiting the
foregoing, this Franchise shall not include or be a substitute for any permits,
authorization or agreements for occupying any other property of the City or private
entities to which access is not specifically granted by this Franchise, for operations on or
in rights of way or on public property, or for the privilege of carrying on business within
the City.
This Franchise is intended to convey limited rights and interests only as to those
rights of way in which the City has an actual interest.It is not a warranty of title or
interest in any right of way; it does not provide the Grantee with any interest in any
particular location with the right of way; and it does not confer rights other than as
expressly provided in the grant thereof.
COMPANY reserves its right to contest or challenge the City's determination that
it may impose a franchise fee or require that COMPANY obtain a separate franchise
under the provisions ofthis Section, federal or state law.
1.4.This Agreement shall be in effect for a period offive (5) years from the effective
date of this Agreement. This Agreement shall automatically renew for four (4) additional
five (5) year periods thereafter, upon the same terms and conditions, unless either party
informs the other in writing ofthat party's intention not to renew this Agreement at least
ninety (90) days prior to the expiration ofthe then-currentterm.
1.5.This Agreement may additionally be terminated by the City ifCOMPANY fails to
commence construction of its facilities/system within one (I)year ofthe effective date of
this Agreement unless otherwise agreed to inwriting by the City.
Section 2. Permitsand Authorizations
COMPANY shall apply for and obtain all necessary permits and authorizations prior
to the construction, installation and operation of its wireless telecommunications
equipment and facilities inthe right of way.
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Section 3.Installation of Equipment
(A) All facilities shall be installed and maintained so as to least interfere with
existing and planned utilities and with the free passage oftraffic, in accordance with the
laws of the State of Washington and the ordinances and standards of the City regulating
such construction. For purposes of this Section 3,"planned"shall mean utilities which
the City intends to construct or allow to be constructed in the future, which intent is
evidenced by the inclusion of said utility project in an existing or future Capital
Investment Program Plan, Comprehensive Plan,comprehensive utility plan, or other
written construction or planning schedule. No permit condition shall conflict with or be
deemed to waive any requirement of the Marysville Municipal Code for the construction
of said facilities. Within parameters reasonably related to the City's role in protecting the
public health, safety and welfare, the City may require that System facilities be installedat a
particular time, at a specific place or in a particular manner, as a condition of access to a
particular right of way; may deny access if Grantee is not willing to comply with the City'S
requirements; may, subject to giving Grantee prior written notice and an opportunity to take
the requisite corrective action, remove, or require removal of, any facility that is not
installed in compliance with the requirementsestablished by the City, or which is installed
without prior Cityapproval, and charge Granteefor all ofthe costs associated with removal;
and may requireGrantee to cooperatewith othersto minimize adverse impacts on the Rights
ofwaythrough joint trenching and other arrangements.
(B)Subject to the City'S supervision and control, Grantee may erect, install,
construct, repair, replace, reconstruct, and retain its facilities in, on, over, under, upon,
across, and along the rights ofway within the Franchise Area,as necessary and appurtenant
to the operation ofthe facilities.
SECTION 4.GENERAL RIGHT OF WAY USE AND CONSTRUCTION
4.1 Right to Construct
Subjectto generally applicablelaws, regulations,rules,resolutions and ordinances of
the City, including Ch.19.43 MMC, and the provisions of this Franchise, Grantee may
perform all construction in the Rights of way for any facility needed for the maintenance,
upgrade or extension ofGrantee's facilities.
4.2 Right of Way Meetings
Subject to receiving advance notice, Grantee shall make reasonable efforts to attend
and participate in meetings of the City regarding right of way issues that may impact the
Facilities.
4.3 General Standard
All work authorized and required hereunder shall be done in a safe, thorough and
workmanlike manner. All installations of equipment shall be durable and installed in
accordance with good engineering practices.
4.4 Movement of Facilities During Emergencies
During emergencies, the Citymay move Grantee's facilitieswithout prior notice.
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4.5 Permits Required for Construction
Prior to doing any work in the right of way or other public property, Grantee shall
apply for, and obtain, appropriate permits from the City. As part ofthe permitting process,
the City may impose such conditions and regulations as are necessary for the purpose of
protecting any structures in such rights ofway, and in providing for the proper restoration of
such Rights of way and to protect the public and the continuity of pedestrian or vehicular
traffic. Grantee shall pay all generally applicable fees forthe requisite City permits,
4.6 Emergency Permits
In the event that emergency repairs are necessary, Grantee shall immediately notify
the City ofthe need for such repairs. Grantee may initiatesuch emergency repairs, and shall
apply for appropriate permits, within forty-eight (48) hours after discovery of the
emergency.
4.7 Compliance with Applicable Codes
(A) City Codes. Grantee shall comply with all applicable City codes, including,
without limitation, Chapters 5.73 and 19.43 MMC, Title 12 MMC, and the City's
construction codes, building codes, the Fire Code, and zoning codes and regulations.
(B)Regulations and Safety Codes. Grantee shall comply with all applicable
federal, State and City safety requirements, rules, regulations,laws and practices. By way of
illustration and not limitation, Grantee shall comply with the National Electric Code,
National Electrical Safety Code, and Occupational Safety and Health Administration
(OSHA) Standards.
4.8 GIS Mapping
Grantee shall comply with any generally applicable ordinances, rules and regulations
of the City, regarding geographic information systems mapping for users of the rights of
way.
4.9 Least Interference
Work in the right of way, or on other public or private property, shall be done in a
manner that causes the least interference with the rights and reasonable convenience of
property owners and residents. Grantee's Facilities shall be constructed and maintained in
such a manner as not to interfere with sewers, water pipes or any other property ofthe City,
or with any other pipes, wires, conduits, pedestals, structures or other facilities that may
have been laid in the rights of way by, or under, the City's authority. The Grantee's
Facilities shall be located, erected and maintained so as not to endanger or interfere with the
lives of persons, or to unreasonably interfere with new improvements the City may deem
proper to make, or to unnecessarily hinder or obstruct the free use ofthe rights of way or
other public property, and shall not interfere with travel and use ofpublic places by persons
during the construction, repair, operation or removal thereof, and shall not obstruct or
impede traffic.In the event of such unreasonable interference, the City may require the
removal or relocation of Grantee's lines, cables, equipment and other appurtenances from
the property in question at Grantee's expense.
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4.10 PreventInjury/Safety
Grantee shall provide and use any equipment and facilities necessary to control and
carry Grantee's signals so as to prevent injury to the City's property or property belonging to
any Person.Grantee,at its own expense, shall repair, renew,change and improve its
facilities to keep them in good repair, and safe and presentable condition. All excavations
made by Grantee in the Rights ofway shall be properly safeguarded for the prevention of
accidents.
4.11 Noticeto PrivatePropertyOwners
Except in the case ofan emergency involving public safety, or an outage or service
interruption to a large number ofSubscribers, Grantee shall give reasonable advance notice
to private property owners or tenants of construction work or material modifications that
require construction-type activities on or adjacent to such private property.
4.12 Restorationof Property
(A) The Grantee shall protect public and private property from damage.If
damage occurs, the Grantee shall promptly notify the property owner within twenty-four
(24)hours.
(B)Whenever Grantee disturbs or damages any right of way, other public
property or any private property, Grantee shall promptly restore the right ofway or property
to at least its prior condition, normal wear and tear excepted, at its own expense.
(C)Grantee shall warrant any restoration work performed by or for Grantee in
the right of way or on other public property or private property for one (I)year, unless a
longer period is required by the City Code or any generally applicable ordinance or
resolution ofthe City.If restoration is not satisfactorily performed by the Grantee within a
reasonable time, the City may, after prior notice to the Grantee, or without notice where the
disturbance or damage may create a risk to public health or safety, cause the repairs to be
made and recover the reasonable cost ofthose repairs from the Grantee. Within thirty (30)
days of receipt of an itemized list ofthose costs, including the costs of labor,materials and
equipment,the Grantee shall pay the City.
(D)Upon completion of the work that caused any disturbance or damage,
Grantee shall promptly commence restoration of private property and shall use its best
efforts to complete the restoration within twenty-four (24)hours,considering the nature of
the work that must be performed.
4.13 Movement ofFacilities For CityPurposes
The City shall have the right to require Grantee to relocate, remove, replace,modify
or disconnect Grantee's facilities and equipment located in the rights ofway or on any other
property ofthe City in the event ofan emergency or when necessary to protect or further the
health, safety or welfare of the general public, and such work shall be performed at
Grantee's expense. Except during an emergency, the City shall endeavor to provide
reasonable notice to Grantee, not to be less than ten (10)business days, and allow Grantee
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the opportunity to perform such action. In the event of any capital improvement project
exceeding $150,000 in expenditures by the City, which requires the removal, replacement,
modification or disconnection ofGrantee's facilitiesor equipment, the City shall endeavor to
provide at least sixty (60) days written notice to Grantee. Following notice by the City,
Grantee shall relocate, remove, replace, modify or disconnect any of its facilities or
equipment within any right of way, or on any other property ofthe City. If the City requires
Grantee to relocate its facilities located within the rights of way, the City shall make a
reasonable effort to provide Grantee with an alternate location within the rights of way. If
funds are generally made available to users ofthe rights ofway for such relocation, Grantee
shall be entitled to its pro rata share ofsuch funds.
If the Grantee failsto complete the above work within the time prescribed and to the
City's reasonable satisfaction, the City may cause such work to be done and bill the
reasonable cost of the work to the Grantee, including all reasonable costs and expenses
incurred by the City due to Grantee's delay. In such event, the City shall not be liable for
any damage to any portion of Grantee's Facilities. Within thirty (30) days of receipt ofan
itemized list ofthose costs, the Grantee shallpay the City.
4.14 Movement of Facilities for Other Franchise Holders
If any removal, replacement, modification or disconnection of the Facilities is
required to accommodate the construction, operation or repair of the facilities or equipment
ofanother City franchise holder, Grantee shall, after at least thirty (30) days advance written
notice, take action to effect the necessary changes requested by the responsible entity.
Grantee may require that the costs associated with the removal, replacement, modification
or disconnection of the Facilities be paid by the benefited party, and Grantee may require a
reasonable deposit ofthe estimated payment in advance.
4.15 Temporary Changes for Other Permitees
At the request of any person holding a valid permit and upon reasonable advance
notice, Grantee shall temporarily raise, lower or remove its facilities as necessary to permit
the moving ofa building, vehicle, equipment or other item. The expense ofsuch temporary
changes must bepaid by the permit holder, and Grantee may require a reasonable deposit of
the estimated payment in advance.
4.16 Reservation ofCity Use of Right of way
Nothing in this Franchise shall prevent the City from constructing sewers; grading,
paving, repairing or altering any right of way; laying down, repairing or removing water
mains; or constructing or establishing any other public work or improvement. All such
work shall be done, insofar as practicable, so as not to obstruct, injure or prevent the use and
operation ofGrantee's Facilities.
4.17 Tree Trimming
Grantee may prune or cause to be pruned, using proper pruning practices, any tree in
the rights of way which interferes with Grantee's Facilities. Grantee shall comply with any
general ordinance or regulations of the City regarding tree trimming. Except in
emergencies, Grantee may not prune trees at a point below thirty (30) feet above sidewalk
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grade until one (I)week written notice has been given to the owner or occupant of the
premises abutting the right of way in or over which the tree is growing. The owner or
occupant ofthe abutting premises may prune such tree at his or her own expense during this
one (I)week period. If the owner or occupant fails to do so, Grantee may prune such tree at
its own expense. For purposes ofthis subsection, emergencies exist when it is necessary to
prune to protect the public or Grantee's facilities from imminentdanger only.
4.18 Inspection of Construction and Facilities
The City may inspect any of Grantee's facilities, equipment or construction within
the rights of way and on other public property upon at least twenty-four (24) hours notice,
or, in case of an emergency, upon demand without prior notice. If an unsafe condition is
found to exist, the City, in addition to taking any other action permitted under applicable
law, may order Grantee, in writing, to make the necessary repairs and alterations specified
therein forthwith to correct the unsafe condition by a time the City establishes. The City has
the right to inspect, repair and correct the unsafe condition ifGrantee fails to do so and to
reasonablycharge Grantee therefor.
4.19 Stop Work
(A) On notice from the City that any work is being performed contrary to the
provisions ofthis Franchise, or in an unsafe or dangerous manner as reasonably determined
by the City, or in violation of the terms of any applicable permit, laws, regulations,
ordinances or standards, the work may immediately be stopped by the City.
(B) The stop work order shall:
(1) Be in writing;
(2) Be given to the person doing the work or be posted on the work site;
(3) Be sent to Grantee by overnight deliveryat the address given herein;
(4) Indicate the nature ofthe alleged violation or unsafe condition; and
(5) Establish conditions under which work maybe resumed.
4.20 Work of Contractors and Subcontractors
Grantee's contractors and subcontractors shall be licensed and bonded in accordance
with the City's generally applicable ordinances, regulations and requirements. Work by
contractors and subcontractors is subject to the same restrictions, limitations and conditions
as if the work were performed by Grantee. Grantee shall be responsible for all work
performed by its contractors and subcontractors and others performing work on its behalfas
ifthe work were performed by it, shall ensure that all such work is performed in compliance
with this Franchise and applicable laws, and shall be jointly and severally liable for all
damages and correcting all damage caused by them.It is Grantee's responsibility to ensure
that contractors, subcontractors or other persons performing work on Grantee's behalf are
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familiar with the requirements of this Franchise and applicable laws governing the work
performedbythem.
Section 5.Record of Installations
5.1 As a condition of this Agreement, COMPANY shall provide to the City upon
request and at no cost, a copy of all as-built plans, maps and records, including revealing
the final location and condition ofits facilities within the right of way. Such records shall
be provided in a format acceptable to the City. With respect to excavations by
COMPANY near any other facilities in the right of way, COMPANY and the City shall
each comply with their respective obligations pursuant to Chapter 19.122 RCW and any
other applicable state law.
5.2 Upon written request of the City, COMPANY shall provide the City with the
most recent update available of any plan of potential improvements to its facilities that
are subject to this Agreement; provided, however, any such plan submitted shall be for
informational purposes only and shall not obligate COMPANY to undertake any specific
improvements, nor shall such plan be construed as a proposal to undertake any specific
improvements. The City agrees not to disclose such information unless required to do so
pursuant to Chapter 42.56 RCW.
Section 6.Hold Harmless and Indemnity
6.1 COMPANY shall indemnify, save harmless and defend the City, its elected and
appointed officials, employees, and agents (including reimbursing the City for all costs,
reasonable attorneys'fees, and expert witness fees) from any and all damages, claims, or
demands,of any kind,on account of injury to or death of any and all persons, directly
caused by COMPANY or arising directly out of COMPANY's use of the right ofway, or
breach of any provision ofthis Agreement, including, but not limited to, COMPANY, its
agents, employees, subcontractors and their successors and assigns. COMPANY shall
further indemnify, save harmless and defend the City, as provided above, from all
property damage of any kind, whether tangible or intangible, including loss of use
resulting from such damage, that occurs in connection with any work performed by
COMPANY or caused, in whole or in part, by the presence of COMPANY or its
officials, employees, agents, contractors, subcontractors, or their property upon or in
proximity to City right of way or City utilities. Such indemnification will not extend to
that portion of any damages, claims, or demands that are caused by the negligence and
intentional misconduct ofthe City, its employees, agents or contractors.
6.2 The City shall indemnify, save harmless and defend COMPANY from and against
any and all injury, loss, damage or liability (or any claims in respect of the foregoing),
and costs or expenses (including reasonable attorneys' fees and court costs) arising
directly out of the actions of the City, or its employees or agents, or the City's breach of
any provision of this Agreement, except to the extent attributable to the negligence or
intentional misconduct ofCOMPANY, its employees, agents or independent contractors.
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6.3 This indemnification, hold harmless, and defense agreement includes the promise
that COMPANY shall indemnify, save harmless and defend the City, its elected and
appointed officials, employees and agents (including reimbursing the City for all costs,
attorneys'fees, and expert witness fees) from any and all damages, claims, or demands of
any kind on account of COMPANY's violation of city, county, state or federal laws,
including those relating to environmental health, except to the extent caused by the
negligence and intentional misconduct ofthe City, its employees, agents or contractors.
6.4 COMPANY agrees that its obligations under this Section extend to any claim,
demand, and/or cause of action brought by, or on behalf of, any of its employees or
agents. For this purpose, COMPANY, by mutual negotiation, hereby waives, as respects
the City only, any immunity that would otherwise be available against such claims under
the Industrial Insurance provisions of Title 51 RCW. In the event the City incurs any
judgment,award, and/or cost arising therefrom, including attorneys'fees and expert
witness fees to enforce the provisions of this Agreement, all such fees, expenses, and
costs shall be recoverable from COMPANY.
Section 7.Insurance and Bond
7.1 Insurance
(A) General Requirement.Grantee must have adequate insurance during the
entire term of this Franchise to protect the City against claims for death or injuries to
Persons or damages to property or equipmentwhich in any way relate to, arise from or are
connected with this Franchise, or involve Grantee, its agents,representatives,contractors,
subcontractorsand their employees.
(B)Minimum Insurance Limits.Grantee must keep insurance in effect III
accordancewith the minimuminsurancelimitshereinset forth:
(I)Commercial General Liability:Two million dollars ($2,000,000)
aggregate limit per occurrence for bodily injury, personal injury and property
damage;
(2) Automobile Liability:Two million dollars ($2,000,000) combined
singlelimitper accidentforbodily injuryand propertydamage; and
(3)Employer's Liability:One milliondollars ($1,000,000).
(4) Excess Liability or Umbrella Coverage:Five million dollars
($5,000,000).
(C)Endorsements.
(I)All policiesshallcontain,or shallbe endorsedso that:
(a) TheCityshallbedesignatedas an additionalinsured;
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(b) The Grantee's insurance coverage shall be primary insurance
with respect to the City, its officers,officials,boards,commissions,
employees and agents. Any insurance or self-insurance maintained by the
City, its officers, officials, boards,commissions,employees and agents shall
be in excess ofthe Grantee's insurance and shall not contribute to it; and
(c) The policy shall contain a severability of interests provision.
Grantee's insurance shall apply separately to each insured against whom a
claim is made or lawsuit is brought,except with respect to the limits ofthe
insurer's liability.
(2) The insurance provided herein shall not be cancelled or the limits
reduced so as to be out ofcompliance with the requirements ofthis Section without
forty-five (45) days' written notice first being given to the City.If the insurance is
cancelled Grantee shall provide a replacement policy.Grantee agrees to maintain
continuous uninterrupted insurance coverage, in the amounts required,for the
duration ofthis Franchise.
(D)Acceptability ofInsurers. The insurance obtained by Grantee shall be placed
with insurers with a Best's rating ofno less than "A VII".
(E)Verification of Coverage. The Grantee shall furnish the City with a
certificate or certificates of insurance. The certificate for each insurance policy is to be
signed by a person authorized by that insurer to bind coverage on its behalf. The certificate
for each insurance policy must be on standard forms or on such forms as are consistent with
standard industry practices,and are to be provided to the City upon acceptance of this
Franchise. The Grantee hereby warrants that its insurance policies satisfy the requirements
ofthis Franchise.
7.2 Surety Bond
(A)If there is an uncured breach by Grantee of a material provision of this
Franchise or a pattern ofrepeated violations of any provision(s)ofthis Franchise,then the
City may request and Grantee shall establish and provide to the City, as security for the
faithful performance by Grantee of all of the provisions of this Franchise,a surety bond
from a financial institution satisfactory to the City in the amount of ten thousand dollars
($10,000).
(B)Ifa surety bond is required pursuant to subsection (A), the surety bond shall
then be maintained at that same amount throughout the remainder of the term of this
Franchise.
(C)After the giving of notice to Grantee and expiration of any applicable cure
period, the surety bond may be drawn upon by the City for purposes including,but not
limited to, the following:
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(1)
Franchise;
Failure of Grantee to pay the City sums due under the terms ofthis
(2)Reimbursement of costs borne by the City to correct Franchise
violations not corrected by Grantee;
(3)Monetary remedies or damages assessed against Grantee as provided
in this Franchise.
(D)The City shall give Grantee written notice of its intent to withdraw from the
surety bond pursuant to this subsection. Within thirty (30)days following notice that such
withdrawal has occurred, Grantee shall restore the surety bond to the full amount required
by subsection (A). Grantee's maintenance of the surety bond shall not be construed to
excuse unfaithful performance by Grantee or limit the liability of Grantee to the amount of
the surety bond or otherwise limit the City's recourse to any other remedy available at law or
in equity.
(E)Grantee shall have the right to appeal to the City Council for reimbursement
in the event Grantee believes that the surety bond was drawn upon improperly. Grantee
shall also have the right ofjudicial appeal if Grantee believes the surety bond has not been
properly drawn upon in accordance with this Franchise. Any funds the City erroneously or
wrongfully withdraws from the surety bond shall be returned to Grantee.
7.3 Bonds
(A) Grantee shall comply with the bonding requirements provided for in the
Marysville Municipal Code. Grantee may be required to obtain other additional bonds in
accordance with the City's ordinary practices.
(8)Grantee's maintenance of the bond(s) shall not be construed to excuse
unfaithful performance by Grantee or limit the liability of Grantee to the amount of the
bond(s) or otherwise limit the City's recourse to any other remedy available at law or in
equity.
Section 8. Civil Penalties and Additional Relief
8.1 COMPANY,and the officers,directors,and employees of COMPANY or any
agent,subcontractor or other person acting on behalf of COMPANY,failing to comply
with any of the provisions of this Agreement,shall be subject to a civil penalty and
abatement in the manner and to the extent provided for in the MMC,including Chapter
4.02.
8.2 In addition to any penalty which may be imposed by the City, any person
violating or failing to comply with any ofthe provisions of this Agreement shall be liable
for any and all damage to City property or right of way arising from such violation,
including the cost ofrestoring the affected area to its condition prior to the violation.
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Marysville Master Wireless ROW Agreement-Clearwire Final
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8.3 Notwithstanding any other provision herein, the City may seek legal or equitable
relief to enjoin any act or practice and abate any condition,which constitutes or will
constitute a violation of the applicable provisions of this Agreement,when civil or
criminal penalties are inadequate to effect compliance.In addition to the penalties
otherwise set forth in this Section,COMPANY and the City acknowledge that any
pattern of violations with respect to any material provision of this Agreement,consisting
of three (3) or more such violations within a period of twelve (12)consecutive months,
may further result in the revocation of any right of way use agreement,right of way use
permit,facilities lease, or other such authorization.
8.4 Nothing in this Section shall be construed as limiting any remedies the City may
have, at law or in equity,for enforcement ofthis Agreement.
Section 9.Non-Exclusive
The rights and privileges herein granted shall not be deemed exclusive and the right is
hereby reserved to the City to grant to any other person,company,corporation or
association,including the City, the right to exercise the rights and privileges herein
granted;provided that such grant to any other person,company,corporation or
association,including the City, does not unreasonably disturb or unreasonably affect the
rights and privileges herein granted to COMPANY.
Section 10.Police Powers
Nothing contained herein shall be deemed to affect the City's authority to exercise its
police powers to the fullest extent afforded by the Washington state constitution and
Washington law.COMPANY shall not by this Agreement obtain any vested right to use
any portion of the City right of way except for the locations approved by the City and
then only subject to the terms and conditions ofthis Agreement.This Agreement and the
permits and authorizations issued thereunder shall be governed by applicable City
ordinances in effect at the time ofapplication for such permits and authorizations.
Section 11.Construction Permit Required
Prior to the performance of any work in any public right of way, and in addition
to any other permits required by law,COMPANY shall apply for and obtain from the
City a Right of Way Construction Permit, which application and permit shall comply
with all applicable City ordinances,regulations and standards,including Title 12 MMC.
Ifthe City reasonably determines that there is a potential for injury,damage or expense to
the City as a result of COMPANY's use of the right of way, the City may require
COMPANY to provide an assurance devise,in a form acceptable to the City, for
activities described in the subject permit.
Section 12.Modifications ofTerms and Conditions
The City and COMPANY hereby reserve the right to alter,amend or modify the
terms and conditions of this Agreement and any permit issued thereunder upon written
agreement by both parties to such alteration,amendment or modification.
Section 13.Interference
13
Marysville Master Wireless ROW Agreement-Clearwire Final
".••
The City shall not use, nor shall the City permit others to use, any portion of the
right of way in any way which materially interferes with the operation of COMPANY's
facilities in the locations authorized under this Agreement. COMPANY shall provide
notice to the City of such interference and the City and COMPANY shall then work
cooperatively to eliminate or substantiallymitigate such interference.
Section 14.Abandonment or Non-Use of Facilities
In the event COMPANY discontinues commercial use of any facility located in
the City right ofway for a period of one hundredeighty (180) consecutive days or longer,
the City may, upon ninety (90) days written notice from the City, require removal of all
such facilities from the City right of way at COMPANY's sole expense.If COMPANY
fails to remove such facilities upon proper notice from the City, the City may remove
such facilities and COMPANY shall be responsible for reimbursing the City for the
City's cost of removal. Notwithstanding any other provision of this Agreement, the City
may permit COMPANY to abandon such facilities in place. However, no facilities of
any type may be abandoned in place without the express written consent ofthe City, said
consent not to be unreasonably withheld. Upon permanent abandonment, the facilities
shall become the property of the City, and COMPANY shall submit to the City an
instrument in writing, to be approved by the City Attorney, transferring ownership of
such facilities to the City. The provisions of this Section shall survive the expiration,
revocation or termination ofthis Agreement.
Section 15.Severability
Ifany term, provision, condition, or portion of this Agreement shall be held to be
invalid or unconstitutional for any reason, the portion declared invalid shall be severable
and the remaining portions of this Agreement shall be enforceable unless to do so would
be inequitable or would result in a material change in the rights and obligations of the
parties hereunder.
Section 16.Transferability
The rights and privileges granted to COMPANY as provided in this Agreement
may only be assigned or transferred to another entity with the prior written approval of
the City, which shall not be unreasonably withheld, conditioned or delayed. However,
COMPANY may assign or transfer the rights and privileges granted herein to any
affiliate, parent or subsidiary of COMPANY, or to an entity with or into which
COMPANY may merge or consolidate, or to an entity which controls, is controlled by, or
is under common control with such entity, or to any purchaser ofall or substantially all of
the assets of COMPANY, without the requirement for City approval, so long as the
successor provides written notice to the City that it agrees to be fully liable to the City for
compliance with all terms and conditions ofthis Agreement.
Section 17.Reimbursement of City
COMPANY shall reimburse the City, upon submittal by the City of an itemized
billing by project costs, for COMPANY's proportionate share of all actual, identifiable
and reasonable expenses incurred by the City in planning, designing, constructing,
installing, repairing or altering any City facility as the result of the actual or proposed
14
Marysville Master Wireless ROW Agreement -Clearwire Final
:,'••
presence in the right of way of COMPANY's facilities. Such costs and expenses shall
include but not be limited to the proportionate cost of City personnel utilized to oversee
or engage in any work in the right of way as the result of the presence of COMPANY's
facility in the right of way. Such costs and expenses shall also include the proportionate
share of any time spent reviewing construction plans in order to either accomplish the
relocation offacilities or the routing or rerouting ofany utilities so as not to interfere with
facilities. The time of City employees shall be charged at their respective rate of salary,
including overtime ifutilized,plus benefits and overhead. Any other costs will be billed
proportionately on an actual cost basis. All billing will be itemized so as to specifically
identify the costs and expenses for each project for which the City claims reimbursement.
The billing may be on an annual basis, but the City shall provide COMPANY with the
City's itemization ofcosts at the conclusion ofeach project for informational purposes.
Section 18.Effective Date
(A) This Franchise and the rights, privileges, and authority granted hereunder
and the contractual relationship established hereby shall take effect and be in force from and
after the effective date ofthis Franchise.
(B) The effective date ofthis Franchise shall be five days after publication ofthis
ordinance by summary.
Section 19.Miscellaneous
19.1 This Agreement constitutes the entire agreement and understanding
between the parties and supersedes all offers,negotiations and other agreements
concerning the subject matter contained herein. Any amendments to this Agreement
must be in writing and executed by both parties.
19.2 This Agreement shall be binding on and inure to the benefit of the
successors and permitted assignees of the respective parties.
19.3 Any notice or demand required to be given herein shall be made by United
States mail or reliable overnight courier to the address ofthe respective parties set forth
below:
The City
City ofMarysville
1049 State Avenue
Marysville,WA 98270
Attn:ChiefAdministrative Officer
COMPANY
Clearwire US LLC
Attn: Site Property Manager
5808 Lake Washington Blvd NE, Suite 300
Kirkland,WA 98033
15
Marysville MasterWireless ROWAgreement -Clearwire Final
------_..------------------------
.i'••
With a Copy To:
Clearwire US LLC
Attn: Legal Department
5808 Lake Washington Blvd NE, Suite 300
Kirkland, WA 98033
•
The City or COMPANY may from time to time designate any other address for
this purpose by written notice to the other party. All notices hereunder shall be deemed
received upon actual receipt.
19.4 This Agreement shall be governed by the laws ofthe State ofWashington.
19.5 In any case where the approval or consent ofone party hereto is required,
requested or otherwise to be given under this Agreement, such party shall not
unreasonably delay or withhold its approval or consent.
19.6 All Amendments and Exhibits annexed hereto form material parts of this
Agreement.
19.7 This Agreement may be executed in duplicate counterparts, each of which
shall be deemed an original.
19.8 Subject to applicable law, all rights and remedies given to the City by this
Franchise or retained by the City herein shall be in addition to and cumulative with any
and all rights and remedies, existing or implied, now or hereafter available to the City, at
law or in equity.
19.9 Venue for any dispute related to this Franchise shall be in Snohomish
County Superior Court in Everett, Washington.
19.10 Nothing herein shall be deemed to create ajoint venture or principal-agent
relationship between the parties, and neither party is authorized to, nor shall either party
act toward third persons or the public in any manner that would indicate any such
relationship with the other.
The failure of the City at any time to require performance by Grantee of any provision
hereof shall in no way affect the right ofthe City hereafterto enforce the same, nor shallthe
waiver by the City of any breach ofany provision hereof be taken or held to be a waiver of
any succeeding breach of such provision, or as a waiver ofthe provision itself or any other
provision.
16
Marysville Master Wireless ROW Agreement -Clearwire Final
:• •
IN WITNESS WHEREOF, this Franchise is signed in the name of the City of
Marysville, Washington,thisl~~ay ofNl~2006.
Dennis Kendall,Mayor
ATTEST:
By ~.<~
City C ~uu:e.
Approved as to form:
By /l~1<.~
GRANT K. WEED, City Attorney
By
Clearwire US LLC, a Nevada limited'~;!iE;;Jl
David P.Schnebele
Its DIrector NetworkDeployment
Date ofPublication:-.JL2-_4-'-/:...O_·7'--_
Effective Date (S days after publication):_....:...j.-=::..!...L:~'---_
17
Marysville MasterWireless ROWAgreement -Clearwire Final
,.•
EXHIBIT A
•
Addendum to Wireless Right of Way Use Agreement
Site Specific Right of Way Fee Agreement for Wireless Facilities
(Pursuantto RCW 35.21.860)
I.Previous Agreements.All terms identified in the Franchise Agreement (Record No..->,between the City of Marysville ("City") and Clearwire US LLC, a Nevada limited
liability company ("Company"), remain applicable, are incorporated by reference, and
are supplemented by the followingterms and conditions.
2. Site.Company's facilities for site reference WA-SN0217-F / Newsom will be
located:
In the right of way on the west side of 67
th Ave NE to the east of 6623 66
th Dr
NE.
3.Description of Facilities.Company's facilities located in the right of way are
described as:
Three panel antennas (35.8" tall, 5.5" wide, 4.7" deep) and three accompanying
BTS units (1' 7" tall, 11" wide, 5" deep) to be mounted on the top of a 65-foot,
Snohomish County POD utilitypole.
4.Term.This Addendum shall run concurrently with the Right of Way Use
Agreement.
5.Payment.Company shall pay the City a monthly fee in the amount of two hundred
dollars ($200.00) ("Monthly Fee") for the duration of the term of this Addendum.
Payment of the Monthly Fee shall be made no later than the 5
th day of each calendar
month to the following address:
City ofMarysville
1049State Ave.
Marysville, WA 98270
Attn: Chief AdministrativeOfficer
\Addendumto Wireless Iht ofWay Use Agreement -Site spe!Fee (April 2006)
Page 2 of4
To reduce the amount of paperwork involved for each party, an annual payment of two
thousand four hundred dollars ($2,400.00) may be submitted to the above stated City
address no later than January 15 of each year. Arrangements may also be made for
payment for longer periods.
At the beginning of each subsequent year, the Monthly Fee shall automatically be
increased by 3%.
6.Executed in Counterparts.This Addendum may be executed in any number of
counterparts, each of which shall be an original, but all of which together shall constitute
but one instrument.
7.Governed by the Laws of the State of Washington,Invalidity of Provisions.This
Addendum shall be governed by the laws of the State of Washington. If any term or
provision of this Addendum, or application thereof, shall to any extent be invalid or
unenforceable, the remainder ofthis Addendum shall not be affected thereby, but shall be
valid and enforceable to the fullest extent permitted by law.
8.Binding on Successors.This Addendum shall be binding upon and inure to the
benefit of the heirs, executors, administrators, successors and assigns of the parties,
subject to the conditions set forth.
9.Failure to Insist upon Strict Performance.The failure of either party to insist upon
strict performance of any of the terms or conditions of this Addendum shall not constitute
a waiver thereof.
10.Termination.Except as otherwise provided herein, this Addendum may be
terminated, without penalty or further liability, as follows:
a) Upon thirty (30) days' written notice by the City if Company fails to cure a
default for payment of amounts due under this Addendum within that thirty
(30) day period;
b) Upon thirty (30) days' written notice by either party ifthe other party commits
a non-monetary default and fails to cure or commence curing such default
within that thirty (30) day period, or such longer period as may be required to
diligently complete a cure commenced within that thirty (30) day period;
c) Upon ninety (90) days' written notice by the Company if the location, or the
facilities are or become unacceptable under the Company's design or
engineering specifications for its antenna facilities or the communications
system to which the antenna facilities belong. Such facilities must be removed
within 90 days.
J •,,,
----------------• •
Addendum to Wireless Right of Way Use Agreement -Site Specific Fee (April 2006)
Page 3 of4
d)Upon ninety (90)days'written notice by City if the City determines to
remove the facilities that are the subject matter of this lease for the purpose of
placing utilities underground.
11.After the passage and approval ofthis addendum and within thirty (30) days after
such approval,this addendum shall be accepted by Grantee by filing with the City Clerk
an unconditional,acknowledged written acceptance of all terms and conditions ofthis
Franchise.Failure ofGrantee to file such an acceptance within thirty days ofapproval
shall be deemed a rejection by Grantee,and the rights and privileges herein granted shall
cease after expiration ofthe thirty day period after approval,unless the thirty day period
is extended by ordinance duly passed for thatpurpose.
Dennis Kendall,Mayor
ATTEST:
BY.~)i~
City CleFl(L/((,'e !...e/H,Derwft r!/erlc
Approved as to form:
By }JHJ:k..W~
GlUNT K.WEED,City Attorney
Clearwire US LLC, a Nevada limited
~bilitYcompanY\I)(.I,.~~.\,
.~.
B
David P.Schnebele
Dire~tgr Ne~rk Defl1eymll\I
"• Addendumto Wireless;ght ofWay Use Agreement- Site spe!Fee (April 2006)
Page4 of4
,(.
=-
Date of Publication:----'---'---'--"----=---
I he,101I
Effective Date (5 days after publication):_--Lj-iC.-4-~l.-_